State v. Davis (Slip Opinion) , 2020 Ohio 309 ( 2020 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Davis, Slip Opinion No. 2020-Ohio-309.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
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the opinion is published.
SLIP OPINION NO. 2020-OHIO-309
THE STATE OF OHIO, APPELLEE, v. DAVIS, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Davis, Slip Opinion No. 2020-Ohio-309.]
Criminal law—Ineffective assistance of counsel—When defense counsel fails to
request that the trial court waive court costs on behalf of a defendant who
has previously been found to be indigent, a determination of prejudice in an
ineffective-assistance-of-counsel analysis depends on whether the facts and
circumstances presented by the defendant establish that there is a
reasonable probability that the trial court would have granted the request
to waive court costs had one been made—Court of appeals’ judgment
reversed and cause remanded.
(No. 2018-0312—Submitted March 5, 2019—Decided February 4, 2020.)
CERTIFIED by the Court of Appeals for Licking County,
No. 2017-CA-55, 2017-Ohio-9445.
_________________
SUPREME COURT OF OHIO
FISCHER, J.
{¶ 1} In this certified-conflict case, we are asked to determine whether trial
counsel’s failure to file a motion to waive court costs at a defendant’s sentencing
hearing constitutes ineffective assistance of counsel when the defendant has
previously been found indigent. We decline to answer the certified-conflict
question in either the affirmative or the negative. Rather, a court’s finding of
ineffective assistance of counsel depends on the facts and circumstances in each
case. See Strickland v. Washington, 466 U.S. 668, 688-689, 104 S. Ct. 2052, 80
L. Ed. 2d 674 (1984). We hold that when an indigent defendant makes an
ineffective-assistance-of-counsel claim based upon counsel’s failure to request a
waiver of court costs, a reviewing court must apply the test in State v. Bradley, 42
Ohio St. 3d 136, 141-142, 538 N.E.2d 373 (1989), which adopted the standard that
had been announced in Strickland, for determining whether a defendant received
ineffective assistance of counsel. If a court analyzes the prejudice prong, then it
must consider the facts and circumstances of the case objectively to determine
whether the defendant established the necessary prejudice sufficient to support that
claim—i.e., but for counsel’s deficient performance, there exists a reasonable
probability that the result of the proceeding would have been different.
I. Background
{¶ 2} A jury found appellant, Benjamin A. Davis, guilty of assaulting a
peace officer, a violation of R.C. 2903.13(A) and (C)(5). At Davis’s sentencing
hearing, the trial court imposed a prison term among other penalties and assessed
court costs against Davis. Despite Davis’s indigent status, defense counsel did not
request that the trial court waive Davis’s court costs.
{¶ 3} Davis appealed the judgment. He asserted that his trial counsel was
ineffective for failing to request that the trial court waive Davis’s court costs. To
support his argument, Davis relied on State v. Springer, 8th Dist. Cuyahoga No.
104649, 2017-Ohio-8861, in which the Eighth District Court of Appeals reaffirmed
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its decision in State v. Gibson, 8th Dist. Cuyahoga No. 104363, 2017-Ohio-102,
and stated that “a prior finding by the trial court that a defendant was indigent
demonstrated a reasonable probability that the trial court would have waived costs
had counsel made a timely motion,” Springer at ¶ 46.
{¶ 4} The Fifth District, in analyzing Davis’s ineffective-assistance-of-
counsel claim, rejected the Eighth District’s rationale in Springer. Recognizing
that Gibson relied on State v. Clevenger, 114 Ohio St. 3d 258, 2007-Ohio-4006, 871
N.E.2d 589, an opinion from this court that predated the enactment of R.C.
2947.23(C)—which allows a trial court to waive the costs of prosecution at any
time after sentencing—the Fifth District determined that Davis was “not prejudiced
by trial counsel’s failure to request waiver of costs at sentencing because he [was]
not foreclosed from filing a request at a later time.” 2017-Ohio-9445, ¶ 31. The
Fifth District thus determined that “the basis for a finding of ineffective assistance
of counsel for failure to request that waiver no longer exists.” Id.
{¶ 5} Subsequently, the Fifth District certified a conflict between its
judgment and the Eighth District’s judgment in Springer. This court accepted the
following conflict question for review: “ ‘Is trial counsel’s failure to file a motion
to waive court costs at sentencing ineffective assistance of counsel when defendant
has previously been found indigent?’ ” 152 Ohio St. 3d 1441, 2018-Ohio-1600, 96
N.E.3d 297, quoting the court of appeals’ February 13, 2018 judgment entry.
II. Analysis
A. Davis’s right to assert ineffective assistance of counsel
{¶ 6} As a preliminary issue, the second dissenting opinion raises a concern
over whether Davis has a constitutional right to assert ineffective assistance of
counsel based on defense counsel’s failure to request a waiver of court costs. We
recognize that this issue was not raised by either party. Without either party having
preserved that argument and without briefing, we decline to hold in this case that a
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defendant has no right to assert an ineffective-assistance claim based on counsel’s
failure to request a waiver of court costs.
{¶ 7} We recognize that court costs are not punishment, State v. Threatt,
108 Ohio St. 3d 277, 2006-Ohio-905, 843 N.E.2d 164, ¶ 15, superseded by statute
as stated in State v. Braden, __ Ohio St.3d __, 2019-Ohio-4204, __ N.E.3d __, and
are thus not a part of a sentence, State v. White, 156 Ohio St. 3d 536, 2019-Ohio-
1215, 130 N.E.3d 247, ¶ 14. However, under R.C. 2947.23(A)(1)(a), the General
Assembly has nevertheless ordered trial courts to include the costs in an offender’s
sentence and judgment. Because R.C. 2947.23 costs are imposed at sentencing and
because sentencing is a critical stage in which a felony offender has a right to
counsel, State v. Schleiger, 141 Ohio St. 3d 67, 2014-Ohio-3970, 21 N.E.3d 1033,
¶ 15, see also Gardner v. Florida, 430 U.S. 349, 358, 97 S. Ct. 1197, 51 L. Ed. 2d
393 (1977), an ineffective-assistance-of-counsel claim regarding counsel’s failure
to request a waiver of costs may be raised on appeal, as they are a particular result
of the sentencing process. To hold otherwise would permit the parsing of the right
to effective counsel to particular instances rather than to critical stages of
proceedings. We decline to adopt such a ruling without the benefit of argument
and briefing.
{¶ 8} We acknowledge the second dissenting opinion’s concern regarding
the impact of this interpretation on R.C. 2947.23(C) motions that are made after
sentencing. But the treatment of those motions need not be addressed in this
opinion. The only issue currently before this court is determining the correct
analysis for whether defense counsel may be found ineffective for failing to a
request a waiver of an indigent client’s court costs.
{¶ 9} Therefore, we proceed to address the certified-conflict question.
B. Appellate courts must apply the test announced in Bradley
{¶ 10} In order to prevail on an ineffective-assistance-of-counsel claim, a
defendant must prove that counsel’s performance was deficient and that the
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defendant was prejudiced by counsel’s deficient performance. Bradley, 42 Ohio
St.3d at 141-142, 538 N.E.2d 373; Strickland, 466 U.S. 668, 104 S. Ct. 2052, 80
L. Ed. 2d 674. Thus, the defendant must demonstrate that counsel’s performance
fell below an objective standard of reasonableness and that there exists a reasonable
probability that, but for counsel’s error, the result of the proceeding would have
been different. See Bradley at paragraphs two and three of the syllabus. “ ‘A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.’ ” Id. at 142, quoting Strickland at 694.
{¶ 11} The conflict cases address the same question but reach different
results, specifically as to the prejudice prong of the ineffective-assistance-of-
counsel test. In Springer, the Eighth District determined that “ ‘it is nearly
impossible to establish prejudice as a result of counsel’s failure to move for a
waiver of costs at sentencing’ because under R.C. 2947.23(C), as amended in 2013,
trial courts now retain jurisdiction to waive, suspend or modify the payment of court
costs at any time.” 2017-Ohio-8861 at ¶ 45, quoting State v. Mihalis, 8th Dist.
Cuyahoga No. 104308, 2016-Ohio-8056, ¶ 33. The court found, however, that a
narrow exception applied for indigent defendants: “a prior finding by the trial court
that a defendant was indigent demonstrated a reasonable probability that the trial
court would have waived costs had counsel made a timely motion.” Springer at
¶ 46. After determining that counsel’s performance was deficient and that Springer
was prejudiced by counsel’s deficient performance, the court determined that
Springer had received ineffective assistance of counsel. Id.
{¶ 12} The Fifth District, on the other hand, rejected the argument that
defense counsel was ineffective for failing to request that the trial court waive
Davis’s court costs due to demonstrated indigency, relying solely on the prejudice
prong of the ineffective-assistance-of-counsel analysis. 2017-Ohio-9445 at ¶ 31;
see also State v. Madrigal, 87 Ohio St. 3d 378, 389, 721 N.E.2d 52 (2000) (“A
defendant’s failure to satisfy one prong of the Strickland test negates a court’s need
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to consider the other”). The Fifth District determined that Davis was “not
prejudiced by trial counsel’s failure to request waiver of costs at sentencing because
he [was] not foreclosed from filing a request at a later time.” 2017-Ohio-9445 at
¶ 31.
{¶ 13} R.C. 2947.23(A)(1)(a) requires a trial court to impose the costs of
prosecution against all convicted criminal defendants. White, 103 Ohio St. 3d 580,
2004-Ohio-5989, 817 N.E.2d 393, at ¶ 14. While the imposition of those costs is
mandatory, the court may waive the payment of all costs when the defendant is
determined to be indigent. Id.; see also R.C. 2743.70, 2949.091, and 2949.092.
R.C. 2947.23(C) permits the trial court “to waive, suspend, or modify the payment
of the costs of prosecution, including any costs under section 2947.231 of the
Revised Code, at the time of sentencing or at any time thereafter.”
{¶ 14} An appellate court’s reliance on the fact that a defendant may move
for a waiver of costs at a later time under R.C. 2947.23(C) in its prejudice analysis
is improper. Whether the defendant may move for a waiver of court costs at a later
time has little or no bearing on whether the trial court would have granted a motion
to waive court costs at the time of sentencing. The enactment of R.C. 2947.23(C)
did not change how courts of appeals should evaluate the prejudice prong of the
ineffective-assistance-of-counsel analysis. The analysis remains the same: a court
must review the facts and circumstances of each case objectively and determine
whether the defendant demonstrated a reasonable probability that had his counsel
moved to waive court costs, the trial court would have granted that motion.
{¶ 15} To evaluate whether a defendant has been prejudiced, as part of an
ineffective-assistance-of-counsel claim, a court does not assess whether the
defendant was simply harmed by counsel’s alleged deficient performance. More
specifically, the court does not analyze whether the defendant has been required to
pay court costs at a given moment, see, e.g., State v. Cowan, 7th Dist. Columbiana
No. 18 CO 0010, 2019-Ohio-2691, ¶ 59, or even whether the defendant has the
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ability to have court costs waived in the future. Furthermore, a determination of
indigency alone does not rise to the level of creating a reasonable probability that
the trial court would have waived costs had defense counsel moved the court to do
so, contrary to the Eighth District’s holding in Gibson, 2017-Ohio-102, and in
Springer, 2017-Ohio-8861. See State v. Dean, 146 Ohio St. 3d 106, 2015-Ohio-
4347, 54 N.E.3d 80, ¶ 233; State v. Smith, 12th Dist. Warren No. CA2010–06–057,
2011-Ohio-1188, ¶ 63-64, rev’d in part on other grounds, 131 Ohio St. 3d 297,
2012-Ohio-781, 964 N.E.2d 423 (an indigent defendant fails to show that there is a
reasonable probability that the trial court would have waived costs when the trial
court made a finding that the defendant had the ability to work and therefore had
the ability to pay the costs in the future). The court of appeals, instead, must look
at all the circumstances that the defendant sets forth in attempting to demonstrate
prejudice and determine whether there is a reasonable probability that the trial court
would have granted a motion to waive costs had one been made.
{¶ 16} For these reasons, we answer the certified-conflict question neither
in the affirmative nor in the negative. Instead, we conclude that when trial counsel
fails to request that the trial court waive court costs on behalf of a defendant who
has previously been found to be indigent, a determination of prejudice for purposes
of an ineffective-assistance-of-counsel analysis depends upon whether the facts and
circumstances presented by the defendant establish that there is a reasonable
probability that the trial court would have granted the request to waive costs had
one been made.
III. Conclusion
{¶ 17} Because the Fifth District incorrectly analyzed the prejudice prong
of the ineffective-assistance-of-counsel analysis in this case, we reverse its
judgment and remand the cause to that court so that it may conduct the ineffective-
assistance-of-counsel analysis set forth in Bradley, 42 Ohio St.3d at 141-142, 538
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N.E.2d 373, in accordance with this opinion. See In re Adoption of P.L.H., 151
Ohio St. 3d 554, 2017-Ohio-5824, 91 N.E.3d 698, ¶ 33.
Judgment reversed
and cause remanded.
O’CONNOR, C.J., and FRENCH, DONNELLY, and STEWART, JJ., concur.
DONNELLY, J., concurs, with an opinion.
KENNEDY, J., dissents, with an opinion.
DEWINE, J., dissents, with an opinion.
_________________
DONNELLY, J., concurring.
{¶ 18} I concur in the majority’s decision to reject the categorical
ineffective-assistance-of-counsel analyses advocated by the parties and reverse the
judgment of the court of appeals. I agree that a reviewing court must objectively
consider, on a case-by-case basis, the specific facts and circumstances of a case
when determining whether a reasonable probability exists that a sentencing court
would have waived a defendant’s payment of court costs had such a request been
made by defense counsel.
{¶ 19} In reviewing those facts and circumstances, courts should be mindful
of the true impact that court costs have. Many jurisdictions impose interest and late
fees on court costs, thereby multiplying the financial burden on those debtors who
are least able to pay. See, e.g., Sara Dorn, Some Cuyahoga County Municipal
Courts Bluff About Their Payment Plans (Apr. 27, 2017),
https://www.cleveland.com/metro/2017/04/some_cuyahoga_county_municipal.ht
ml (accessed Oct. 4, 2019) [https://perma.cc/NK5L-RR4X]. Aggressive collection
practices against an indigent defendant may result in negative collateral
consequences, such as damaging a person’s credit, interfering with a defendant’s
other commitments (like child support), restricting employment opportunities, and
otherwise impeding a defendant’s rehabilitation and reentry into society. When
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coupled with these debilitating collateral consequences, court-costs debt imposes
an enduring burden that may sometimes exceed the penalty for the crime. See
Appleman, Nickel and Dimed into Incarceration: Cash-Register Justice in the
Criminal System, 57 B.C.L.Rev. 1483 (2016); Development in the Law Policing,
Chapter One Policing and Profit, 128 Harv.L.Rev. 1723 (2015). The law permits
the prison-commissary accounts of those who are incarcerated to be attached,
depriving inmates from purchasing necessities and small creature comforts that
their meager earnings or family contributions are able to provide. R.C. 2949.14;
Ohio Adm.Code 5120-5-03. Thus, the burdens imposed by assessing court costs
on indigent defendants are by no means inconsequential.
{¶ 20} As a former trial-court judge, I am keenly aware that certain costs
(such as witness-subpoena fees) have been incorrectly assessed against a first-
named defendant in a case involving one or more codefendants. An indigent
defendant would have no way of knowing whether a cost has been imposed
inequitably. Thus, it is incumbent on defense counsel to ensure that any court costs
that have been assessed against his or her client are accurate and equitable.
{¶ 21} It is not unreasonable for a client who has already been declared
indigent to expect counsel to move for a waiver of court costs at sentencing. The
process for doing so is not particularly difficult, but the failure to do so could expose
a client to significant financial burdens and subject defense counsel to a claim of
professional nonfeasance.
{¶ 22} I agree with the majority’s determination that the court of appeals’
analysis was improper because whether Davis may move for a waiver of court costs
at a later time has little to no bearing on whether the trial court would have granted
a motion to waive court costs at the time of sentencing. Because the court of
appeals did not apply the correct analysis to Davis’s claim for ineffective assistance
of counsel, I concur.
_________________
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KENNEDY, J., dissenting.
{¶ 23} This court accepted this case based on a certified conflict that
presents the following question: “ ‘Is trial counsel’s failure to file a motion to waive
court costs at sentencing ineffective assistance of counsel when defendant has
previously been found indigent?’ ” 152 Ohio St. 3d 1441, 2018-Ohio-1600, 96
N.E.3d 297, quoting 5th Dist. Licking No. 17-CA-55 (Feb. 13, 2018). In contrast
with the majority’s determination that the certified-conflict question cannot be
answered with a simple yes or no, I would answer the certified-conflict question in
the negative.
{¶ 24} Courts should apply the two-prong test for ineffective assistance of
counsel established in Strickland v. Washington, 466 U.S. 668, 687-688, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984), and adopted by this court in State v. Bradley, 42 Ohio
St.3d 136, 141-143, 538 N.E.2d 373 (1989), to determine whether a defendant has
met his burden of demonstrating that counsel was ineffective, State v. Gondor, 112
Ohio St. 3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62, for failing to file a motion
to waive court costs. And here, the Fifth District Court of Appeals—like the Eighth
District Court of Appeals in the conflict case, State v. Springer, 8th Dist. Cuyahoga
No. 104649, 2017-Ohio-8861—created a bright-line rule for determining whether
trial counsel’s failure to file a motion to waive court costs at sentencing constitutes
ineffective assistance of counsel for a defendant who has previously been found
indigent. Because bright-line rules are contrary to Strickland, I dissent.
{¶ 25} An application of the prejudice prong of the Strickland analysis to
appellant Benjamin Davis’s case shows that he has failed to demonstrate that he
was prejudiced by trial counsel’s failure to file a motion to waive court costs at
sentencing. Consequently, I would affirm the judgment of the Fifth District but on
different grounds.
{¶ 26} Resolution of the certified-conflict question begins with an
examination of the underlying facts in this case and in Springer. In this case, Davis
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argued in the court of appeals that in accordance with Springer, a previous
determination of indigency by the trial court required the court of appeals to hold
that trial counsel was ineffective for failing to request a waiver of court costs at his
sentencing hearing. The Fifth District began its analysis by setting out Strickland’s
two-prong test for ineffective assistance of counsel:
First, the trial court must determine whether counsel’s assistance was
ineffective; i.e., whether counsel’s performance fell below an objective
standard of reasonable representation and was violative of any of his or her
essential duties to the client. If the court finds ineffective assistance of
counsel, it must then determine whether or not the defense was actually
prejudiced by counsel’s ineffectiveness such that the reliability of the
outcome of the trial is suspect. This requires a showing [that] there is a
reasonable probability that but for counsel’s unprofessional error, the
outcome of the trial would have been different.
2017-Ohio-9445, ¶ 25. The appellate court recognized that to find trial counsel’s
performance ineffective, Davis needed to establish both prongs of Strickland. Id.
at ¶ 26.
{¶ 27} In rejecting Davis’s challenge, the Fifth District considered only the
prejudice prong. See State v. Madrigal, 87 Ohio St. 3d 378, 389, 721 N.E.2d 52(2000) (an ineffective-assistance-of-counsel challenge lacking in merit may be
expediently disposed of by finding that the defendant failed to establish one of the
Strickland prongs), citing Strickland, 466 U.S. at 697, 104 S. Ct. 2052, 80 L. Ed. 2d
674. The Fifth District held, “Because R.C. 2947.23(C) grants [Davis] the ability
to seek waiver of costs at any time, including after sentencing, [he] has not been
prejudiced by the failure of his counsel to request a waiver at sentencing.” 2017-
Ohio-9445 at ¶ 27. Therefore, considering only the effect of R.C. 2947.23(C), the
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appellate court created a per se rule, holding that trial counsel’s failure to file a
motion to waive court costs at the time of a defendant’s sentencing hearing could
never constitute prejudice in an ineffective-assistance-of-counsel claim because the
defendant is able to file a motion to waive court costs at any time after sentencing.
{¶ 28} Similar to the Fifth District’s analysis, the Eighth District’s
ineffective-assistance-of-counsel analysis in Springer also focused on the prejudice
prong: “As to Springer’s claim of ineffective assistance of counsel relating to the
imposition of costs, he must show that a reasonable probability exists that the trial
court would have waived payment of the costs if such motion had been filed.”
2017-Ohio-8861 at ¶ 45.
{¶ 29} The Springer court held that trial counsel was ineffective for failing
to request a waiver of court costs when the trial court had previously found Springer
indigent. Id. at ¶ 46 (“under such circumstances counsel’s failure * * * was
deficient and prejudiced the defendant” [emphasis added]), citing State v. Gibson,
8th Dist. Cuyahoga No. 104308, 2016-Ohio-8056, ¶ 16. Considering only
Springer’s prior determination of indigency, the Eighth District enforced a per se
rule that that prior finding “demonstrate[s] a reasonable probability that the trial
court would have waived costs had counsel made a timely motion.” Id. at ¶ 46,
citing Gibson at ¶ 16.
{¶ 30} The majority sets forth the two-prong test of Strickland. However,
neither the Fifth District nor the Eighth District actually applied the Strickland test.
Each court established a bright-line rule.
{¶ 31} As set forth above, the Fifth District held that a defendant who has
previously been found indigent could never be prejudiced by trial counsel’s failure
to file a motion to waive court costs at sentencing, because R.C. 2947.23(C) permits
the defendant to file a motion to waive court costs after sentencing. Conversely,
the Eighth District held that a defendant who has previously been found indigent is
always prejudiced by trial counsel’s failure to file a motion to waive court costs at
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sentencing. By creating bright-line rules, however, both courts failed to “consider
the totality of the evidence,” Strickland, 466 U.S. at 695, 104 S. Ct. 2052, 80
L. Ed. 2d 674, in determining whether prejudice was established. See also Lee v.
United States, __ U.S. __, 137 S. Ct. 1958, 1966, 198 L. Ed. 2d 476 (2017).
{¶ 32} Therefore, I would answer the certified-conflict question in the
negative. When a defendant has previously been found to be indigent, trial
counsel’s failure to file a motion to waive court costs at sentencing does not
constitute per se ineffective assistance of counsel. When reviewing whether a
defendant has met his burden of demonstrating that trial counsel was ineffective for
failing to file a motion to waive an indigent defendant’s court costs, see Gondor,
112 Ohio St. 3d 377, 2006-Ohio-6679, 860 N.E.2d 77, at ¶ 62 (defendant has the
burden of proof to establish ineffective assistance of counsel), lower courts should
apply the two-prong test for ineffective assistance of counsel established in
Strickland, 687-688, and adopted by this court in Bradley, 42 Ohio St.3d at 141-
143, 538 N.E.2d 373. And when considering the second prong of the Strickland
test, courts should review the totality of the evidence. See Strickland at 695; Lee at
__, 137 S.Ct. at 1966.
{¶ 33} Moreover, contrary to the majority’s determination, I would not
remand this cause to the Fifth District. Davis has the burden to prove that he was
prejudiced by trial counsel’s failure to file a motion to waive court costs at
sentencing. See Gondor at ¶ 62. To satisfy the prejudice prong, Davis needed to
show that but for trial counsel’s error in failing to file the motion to waive court
costs at sentencing, there was a reasonable probability that the trial court would
have waived court costs at sentencing. Strickland at 694. In support of his claim,
Davis relies on the Eighth District’s opinion in Springer, 2017-Ohio-8861, and the
fact that the trial court had previously declared him to be indigent. Having rejected
the analysis in Springer, I would hold that evidence of a prior determination of
indigency, standing alone, does not support a finding of prejudice.
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{¶ 34} R.C. 2947.23 addresses the imposition of court costs. In State v.
White, this court held that the plain language of R.C. 2947.23 requires a trial court
to impose court costs on all defendants, including those defendants who have been
determined to be indigent. 103 Ohio St. 3d 580, 2004-Ohio-5989, 817 N.E.2d 393,
¶ 8, 14. This court further held that it is within the sound discretion of the trial court
whether to waive an indigent defendant’s court costs. Id. at ¶ 14. Therefore, a prior
determination that a defendant is indigent, standing alone, does not demonstrate
prejudice in an ineffective-assistance-of-counsel claim when trial counsel’s sole
failure is not filing a motion to waive his client’s court costs at the time of
sentencing. Based on this record, Davis has failed to satisfy his burden. Therefore,
I would affirm the Fifth District Court of Appeals on different grounds.
{¶ 35} I dissent.
_________________
DEWINE, J., dissenting.
{¶ 36} The majority today remands this case for the court of appeals to
decide whether Benjamin A. Davis’s rights under the Sixth Amendment to the
United States Constitution were violated when his attorney failed to file a motion
for a waiver of court costs on the day of Davis’s sentencing. I respectfully dissent.
{¶ 37} To start with, Davis’s right to effective assistance of counsel could
not have been violated in this case because there is no Sixth Amendment right to
counsel to ask for a waiver of court costs. “[W]here there is no constitutional right
to counsel there can be no deprivation of effective assistance.” Coleman v.
Thompson, 501 U.S. 722, 752, 111 S. Ct. 2546, 115 L. Ed. 2d 640 (1991), citing
Wainwright v. Torna, 455 U.S. 586, 102 S. Ct. 1300, 71 L. Ed. 2d 475 (1982). Thus,
before determining whether to remand for application of Strickland v. Washington,
466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the majority should have
first asked whether Davis possessed a right to counsel to request a waiver of court
costs.
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{¶ 38} The answer is most assuredly no. By its terms, the Sixth Amendment
guarantees an accused the right “to have the [a]ssistance of [c]ounsel for his
defen[s]e” against a “criminal prosecution[].” Once the right to counsel
commences through the initiation of a criminal prosecution, it applies to any
“critical stage” of the proceedings. Rothgery v. Gillespie Cty., Tex., 554 U.S. 191,
212, 128 S. Ct. 2578, 171 L. Ed. 2d 366 (2008). A stage is critical if appointed
counsel is necessary to “guarantee effective assistance at trial.” Id. at 218 (Alito,
J., concurring). The Supreme Court of the United States has never suggested that
the right extends beyond the defense of criminal charges to include a right to
counsel to seek a waiver of court costs.
{¶ 39} Under Ohio law, a judge “shall include in the sentence the costs of
prosecution * * * and render a judgment against the defendant for such costs.” R.C.
2947.23(A)(1)(a). The judge, however, retains jurisdiction to “waive, suspend, or
modify” the payment of costs “at the time of sentencing or at any time thereafter.”
R.C. 2947.23(C). Court costs are not a criminal sanction but rather a civil
obligation that “may be collected only by the methods provided for the collection
of civil judgments.” Strattman v. Studt, 20 Ohio St. 2d 95, 103, 253 N.E.2d 749(1969). Because court costs are a civil matter, the Sixth Amendment right to
counsel “for defen[s]e” against a “criminal prosecution[]” simply does not apply.
{¶ 40} Indeed, if one accepts the majority’s premise that there is a right to
counsel to seek a waiver of court costs, there is no plausible justification to limit
that right to the time of a defendant’s sentencing. If such a right is really guaranteed
by the federal Constitution, then the defendant has the right to counsel whenever
he decides to ask for a waiver of court costs.
{¶ 41} That there is no Sixth Amendment right to counsel to ask for a
waiver of court costs is not to say that counsel has no duty to advise his client about
court costs and a possible waiver—counsel is always bound to provide “competent
representation” to his client. See Prof.Cond.R. 1.1. And it may well be a good idea
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as a policy matter for state and county public-defender offices to instruct appointed
counsel to seek a waiver of court costs for indigent clients unless there are good
reasons not to do so. But nothing in the Sixth Amendment requires that counsel be
provided for that purpose. At the very least, before remanding for an assessment
whether Davis was prejudiced by his counsel’s failure to file a motion to waive
court costs at sentencing, the majority should consider whether the Sixth
Amendment even guarantees such a right.
{¶ 42} The majority protests that neither party has properly preserved the
issue about the existence of a right to counsel to seek a waiver of court costs. But
there is no way to determine whether Davis suffered a constitutional deprivation
when his counsel failed to request a waiver without first determining whether the
Constitution guarantees him a right to counsel for that purpose. As we have
explained:
When an issue of law that was not argued below is implicit in
another issue that was argued and is presented by an appeal, we may
consider and resolve that implicit issue. To put it another way, if we
must resolve a legal issue that was not raised below in order to reach
a legal issue that was raised, we will do so.
Belvedere Condominium Unit Owners’ Assn. v. R.E. Roark Cos., Inc., 67 Ohio
St.3d 274, 279, 617 N.E.2d 1075 (1993). This is such a case. If there is no right to
counsel to ask for a waiver of court costs, it is nonsensical to remand to ask if that
right was violated. And if the majority’s concern is a lack of briefing, it would be
far better for it to order additional briefing on the matter than to blithely presume
the existence of a previously unrecognized constitutional right.
{¶ 43} Furthermore, even setting aside the questionable underpinnings of
the majority’s opinion, Davis has suffered no prejudice of a type that calls for a
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remand. As mentioned, a convicted criminal defendant has the option to ask a trial
court to “waive, suspend, or modify” the payment of court costs “at the time of
sentencing or at any time thereafter.” (Emphasis added.) R.C. 2947.23(C). So, if
Davis is successful in the remand ordered by the majority, what he will get is no
more than what he already has.
{¶ 44} Indeed, we recently rejected an argument similar to the one that
prevails today. In State v. Beasley, the trial court did not mention court costs during
the sentencing hearing but imposed them in its entry. State v. Beasley, 153 Ohio
St. 3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 263. Beasley asked this court to
order a remand, but we refused. Id. We held that a remand was not necessary in
order for Beasley to file a motion to waive costs because R.C. 2947.23(C) already
allowed him to do so. Id. at ¶ 265. Based on the majority’s decision today, Beasley
was wrongly decided.
{¶ 45} Finally, I agree with much of the first dissent’s analysis. The record
does not demonstrate a reasonable probability that the trial court would have
waived court costs had it been requested to do so. But I see no need to get to this
issue. Because there is no Sixth Amendment right to counsel to request a waiver
of court costs, Davis has not suffered a deprivation of his constitutional rights.
_________________
William Hayes, Licking County Prosecuting Attorney, and Clifford J.
Murphy, Assistant Prosecuting Attorney, for appellee.
Anzelmo Law and James A. Anzelmo; and Durst Law Firm and Alexander
J. Durst, for appellant.
Timothy Young, Ohio Public Defender, and Nikki Trautman Baszynski,
Assistant Public Defender, urging reversal for amicus curiae, Office of the Ohio
Public Defender.
___________________
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