State v. Pierce ( 2014 )

[Cite as State v. Pierce, 2014-Ohio-4982.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
GEAUGA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2012-G-3103
- vs - :
RICKY H. PIERCE, :
Defendant-Appellant. :
Criminal Appeal from the Geauga County Court of Common Pleas, Case No. 12 C
000012.
Judgment: Modified and affirmed as modified.
James R. Flaiz, Geauga County Prosecutor, and Nicholas A. Burling, Assistant
Prosecuting Attorney, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH
44024 (For Plaintiff-Appellee).
Derek Cek, 2725 Abington Road, #102, Fairlawn, OH 44333 (For Defendant-
Appellant).
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, Ricky H. Pierce, appeals from the judgment of conviction
entered by the Geauga County Court of Common Pleas. For the reasons discussed in
this opinion, we modify the judgment of the trial court and affirm the entry as modified.
{¶2} On February 6, 2012, appellant was indicted on one count of gross sexual
imposition, in violation of R.C. 2907.05(A)(4), a felony of the third degree. The charge
arose from an allegation that appellant touched his seven-year-old granddaughter’s
vaginal area while he was babysitting the child. When confronted by his son, appellant
did not dispute or deny his conduct. On June 7, 2012, appellant pleaded guilty to the
indictment. The trial court ordered a presentence investigation report (“PSI”), which
revealed appellant had been previously convicted of sexual battery in Florida in 1982.
The conviction was a result of a sexually oriented offense committed against his then
seven-year-old daughter. Appellant served four years in prison for that crime.
{¶3} At the sentencing hearing, appellant took full responsibility for the
underlying offense, and defense counsel stated appellant was prepared to accept
whatever punishment the court deemed appropriate. After considering the statements
of appellant, the statements of counsel for both sides, a victim impact statement, and
the PSI, the trial court sentenced appellant to five years in prison and a $10,000 fine.
The trial court also imposed costs.
{¶4} The trial court appointed counsel for appellant’s appeal. Counsel
ultimately filed a brief, pursuant to Anders v. California, 386 U.S. 738 (1967). The brief
was served upon appellant. This court issued a judgment giving appellant 30 days to
raise additional arguments in support of the underlying appeal. Appellant failed to meet
this deadline. On April 29, 2013, however, appellant filed a “motion to file supplemental
assignments of error” with a pro se brief attached. After receipt of appellant’s motion,
this court issued a judgment permitting prior counsel to withdraw. And, after an
independent review of the proceedings below, two members of the judicial panel in this
case concluded the record disclosed colorable issues to support appellant’s direct
appeal. This court set forth those issues, appointed new counsel, and advised new
counsel to review the issues set forth in appellant’s pro se brief.
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{¶5} Appellant’s first assignment of error provides:
{¶6} “The trial court’s sentence was contrary to law and an abuse of discretion
when the trial court demonstrated judicial bias and failed to properly weigh the
seriousness and recidivism factors of R.C. 2929.12.”
{¶7} “[A]ppellate courts must apply a two-step approach when reviewing felony
sentences. First, they must examine the sentencing court’s compliance with all
applicable rules and statutes in imposing the sentence to determine whether the
sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the
trial court’s decision in imposing the term of imprisonment is reviewed under the abuse-
of-discretion standard.” State v. Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912, ¶26.
{¶8} Appellant initially contends certain comments made by the trial court at the
sentencing hearing indicate the sentence was a product of bias and thus an abuse of
discretion. Appellant challenges three particular statements. First, he objects to the
trial judge’s reference to his status as a grandfather. Next, appellant objects to the
court’s characterization of him as “not normal.” And, finally, he objects to the trial court
referring to him as a pervert after his sentence was imposed.
{¶9} It is axiomatic that judicial bias in criminal proceedings is fundamentally
unfair and violates a defendant’s right to due process of law. State v. LaMar, 95 Ohio
St.3d 181, 2002-Ohio-2128, ¶34, citing Rose v. Clark, 478 U.S. 570, 577 (1986).
Judicial bias involves “a hostile feeling or spirit of ill will or undue friendship or favoritism
toward one of the litigants or his attorney, with the formation of a fixed anticipatory
judgment on the part of the judge, as contradistinguished from an open state of mind
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which will be governed by the law and the facts.” State ex rel. Pratt v. Weygandt, 164
Ohio St. 463 (1956), paragraph four of the syllabus.
{¶10} The Supreme Court of Ohio has observed:
{¶11} “[O]pinions formed by the judge on the basis of facts introduced or
events occurring in the course of the current proceedings, or of
prior proceedings, do not constitute a basis for a bias or partiality
motion unless they display a deep-seated favoritism or antagonism
that would make fair judgment impossible. Thus, judicial remarks
during the course of a trial that are critical or disapproving of, or
even hostile to, counsel, the parties, or their cases, ordinarily do not
support a bias or partiality challenge.” On the other hand, “[t]hey
may do so [support a bias challenge] if they reveal an opinion that
derives from an extrajudicial source; and they will do so if they
reveal such a high degree of favoritism or antagonism as to make
fair judgment impossible.” (Emphasis sic.) State v. Dean, 127 Ohio
St.3d 140, 2010-Ohio-5070, ¶49, quoting Liteky v. United States,
510 U.S. 540, 555 (1994).
{¶12} Prior to imposing sentence, the trial court stated:
{¶13} There are a number of things that stand out in your situation. You
have no reason to know this, although it should be common to
everybody, I take great pleasure and pride in being a grandfather.
But that’s also an imposition of trust. It’s one of the greatest events
that anybody can have having a grandchild. But the trust is just
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with normal people, and you are not normal, that you’re going to do
what you can to help and protect them. And I frankly cannot
imagine the hurdle that your son had to overcome, especially with
his wife, in saying I’ve got a Dad who’s molested my sister but he’s
reformed. He’s better. They’re obviously people of faith and they
extended even more trust to you. And you just ripped that asunder.
You tore it apart.
{¶14} After imposing the five-year prison term and the fine, the court further
commented: “You’ve not only destroyed this family but what you have done is
implanted or I guess re-emphasized that once a pervert always a pervert. Maybe you
can get over it. Maybe not. But nobody is ever gon’na trust you again.”
{¶15} We do not perceive the trial judge’s comments to be products of
prejudicial bias.
{¶16} When the trial judge identified himself as a grandfather, he was not only
drawing on his personal experience, but underscoring the special trust society reposes
in the relationship between a grandparent and a grandchild. And, the trial court’s
characterization of appellant as “not normal” served to highlight that appellant’s criminal
conduct, to which he admitted full responsibility, placed him clearly outside the norm,
i.e., not actions of an average, law-abiding citizen. Finally, by designating appellant a
“pervert,” the trial court was making a descriptive statement, albeit indelicately; namely,
that appellant, by molesting his daughter 30 years ago and his granddaughter in 2012,
he engaged in sexually deviant behavior that is socially and legally unacceptable.
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{¶17} The crime appellant committed represented the second time he betrayed
his family’s trust by molesting a member with whom he had a relationship of trust. The
trial judge, in making his statements, was emphasizing that, by violating the trust of his
family and engaging in incestuous criminal conduct, appellant’s actions were particularly
heinous. The trial court’s statements were founded on facts taken from the record, and
not an extra-judicial source. And, although the statements reflect the trial court’s
opinions about the circumstances of the crime to which appellant pleaded guilty, they do
not indicate the judge possessed a “deep-seated favoritism or antagonism that would
make fair judgment impossible.” Liteky, supra. We therefore hold the trial court did not
exhibit a bias in sentencing appellant that would necessitate a reversal of the sentence.
{¶18} Appellant next argues the trial court failed to give proper consideration to
the seriousness and recidivism factors. We do not agree.
{¶19} The overriding purposes of felony sentencing in Ohio “are to protect the
public from future crime by the offender * * * and to punish the offender.” R.C.
2929.11(A). “A sentence imposed for a felony shall be reasonably calculated to achieve
the two overriding purposes of felony sentencing set forth in division (A) of this section,
commensurate with and not demeaning to the seriousness of the offender's conduct
and its impact upon the victim, and consistent with sentences imposed for similar crimes
committed by similar offenders.” R.C. 2929.11(B).
{¶20} It is well-recognized that a sentencing court “has discretion to determine
the most effective way to comply with the purposes and principles of sentencing.” R.C.
2929.12(A). And the Ohio Supreme Court has observed a sentencing court has "full
discretion to impose a prison sentence within the statutory range." State v. Mathis, 109
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Ohio St. 3d 54, 2006-Ohio-855, paragraph three of the syllabus; State v. Ries, 11th Dist.
Portage No. 2008-P-0064, 2009-Ohio-1316, ¶13 (“[s]uch discretion is plenary”).
{¶21} Moreover, although a trial court must consider the seriousness and
recidivism factors set forth under R.C. 2929.12, it is not required to make factual
findings pursuant to those factors. State v. ONeil, 11th Dist. Portage No. 2010-P-0041,
2011-Ohio-2202, ¶34. And, absent some evidence to the contrary, an appellate court
will presume all relevant statutory factors were considered. See e.g. State v. Tyler, 11th
Dist. Portage No. 2012-P-0041, 2013-Ohio-3393, ¶17. “[T]he trial court is not obligated,
in the exercise of its discretion, to give any particular weight or consideration to any
sentencing factor.” State v. Holin, 174 Ohio App. 3d 1, 2007-Ohio-6255, ¶34, (11th
Dist.).
{¶22} The trial court’s comments at the sentencing hearing, discussed above,
demonstrate it considered the seriousness of the crime as well as his likelihood to
recidivate. Moreover, in its judgment entry, the trial court stated appellant’s sentencing
order was premised upon its consideration of the record and other information
submitted at the sentencing hearing, including his ability to pay financial sanctions. The
court further stated it considered the purposes and principles of felony sentencing and
the seriousness and recidivism factors. Under the circumstances, we hold the court met
its statutory obligations and did not abuse its discretion in sentencing appellant to the
maximum term of imprisonment and the maximum fine.
{¶23} Appellant’s first assignment of error is without merit.
{¶24} Appellant’s second assignment of error provides:
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{¶25} “The trial court erred by imposing court costs without notifying appellant of
the possibility of community service in lieu of paying court costs.”
{¶26} Under his assignment of error, appellant asserts the trial court failed to
comply with the requirements of R.C. 2947.23(A)(1)(a) when it imposed costs. R.C.
2947.23 has been amended since appellant’s sentencing, but at the time of sentencing,
it provided, in relevant part:
{¶27} In all criminal cases, including violations of ordinances, the judge or
magistrate shall include in the sentence the costs of prosecution,
including any costs under section 2947.231 of the Revised Code,
and render a judgment against the defendant for such costs. At the
time the judge or magistrate imposes sentence, the judge or
magistrate shall notify the defendant of both of the following:
{¶28} (a) If the defendant fails to pay that judgment or fails to timely make
payments towards that judgment under a payment schedule
approved by the court, the court may order the defendant to
perform community service in an amount of not more than forty
hours per month until the judgment is paid or until the court is
satisfied that the defendant is in full compliance with the approved
payment schedule.
{¶29} In relevant part, the 2012 amendment, effective March 22, 2013,
substituted, in the second sentence of the language of section (A)(1)(a), “If” for “At the
time,” and substituted “a community control sanction or other nonresidential sanction”
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for “sentence,” and also inserted the phrase “when imposing the sanction” to that
sentence.
{¶30} Because appellant’s sentence was entered before the effective date of the
amendment, former R.C. 2947.23 applies. At no point in the proceedings was appellant
provided with the proper statutory advisement regarding costs. The trial court’s failure
to advise appellant was therefore error. This court, however, has recently held that the
proper remedy for such an error is to modify the judgment of the trial court to eliminate
the possibility that community service may be imposed in lieu of payment of court costs.
State v. Gates, 11th Dist. Portage No. 2011-P-0001, 2013-Ohio-4284, ¶4-5; see also
State v. Dye, 11th Dist. No. Portage No. 2011-P-0097, 2013-Ohio-4285, ¶17. While the
trial court’s omission was error, under these circumstances, it does not rise to the level
of reversible error.
{¶31} We therefore hold, as a result of the trial court’s failure to properly inform
appellant of the possibility that community service could be ordered in lieu of unpaid
court costs, such an order cannot be entered against him. The judgment of the trial
court is hereby modified to remove the possibility that community service may be
ordered should appellant fail to pay court costs. In this regard, the trial court’s judgment
is modified and affirmed as modified.
{¶32} Appellant’s second assignment of error is without merit.
{¶33} Appellant’s final assignment of error provides:
{¶34} “Appellant was denied effective of [sic] assistance of counsel by trial
counsel’s failure to file an affidavit of indigency prior to sentencing and failure to object
to a maximum fine at sentencing.”
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{¶35} In evaluating ineffective assistance of counsel claims, Ohio appellate
courts apply the two-part test enunciated by the United States Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984). First, it must be determined that
counsel’s performance fell below an objective standard of reasonableness. State v.
Bradley, 42 Ohio St. 3d 136 (1989), paragraph two of the syllabus. Second, it must be
shown that prejudice resulted. Id. To demonstrate prejudice, a defendant must
establish there is a reasonable probability that, but for counsel’s errors, the result of the
proceedings would have been different. Id. at paragraph three of the syllabus. See also
State v. Woodard, 11th Dist. Ashtabula No. 2009-A-0047, 2010-Ohio-2949, ¶11.
{¶36} The failure to file an affidavit attesting to a defendant’s indigency
establishes ineffective assistance of counsel only when the record demonstrates a
reasonable probability that the trial court would have found the defendant indigent and
unable to pay the fine had the instrument been filed. State v. McDowell, 11th Dist.
Portage No. 2001-P-0149, 2003-Ohio-5352, ¶75.
{¶37} In this case, appellant’s PSI reveals he was earning $12.84 per hour as a
paramedic at the time of his arrest. The probation officer who prepared the PSI
additionally verified appellant would not be considered for rehire after his release from
prison. The PSI further indicated that appellant had no assets at the time the PSI was
prepared and his collective debts totaled $3,000. With respect to education, appellant
graduated from high school and attended college for two years, but was five credit
hours short of obtaining an associates of arts degree. And, although he had certificates
as an EMT and paramedic, his conviction would apparently prevent him from returning
to this line of work. Finally, the record included information that appellant, a 54-year-
10
old man, was in poor health at the time of sentencing; to wit, he had, inter alia, diabetes
mellitus, hyperlipidemia, a herniated disc, a liver cyst, and hypertension.
{¶38} The facts surrounding appellant’s financial condition are sufficient to
establish a reasonable probability that, but for counsel’s omission, appellant would have
been deemed indigent prior to sentencing. And, appellant’s health conditions serve to
suggest appellant may have difficulty obtaining employment after his release.
Notwithstanding this point, however, the trial court stated in its judgment entry that it had
considered appellant’s ability to pay the sanctions.
{¶39} Pursuant to R.C. 2929.19(B)(5), a court must “consider the offender’s
present and future ability to pay the amount of sanction or fine” prior to imposing the
sanction. A court is not required to conduct a hearing on a defendant’s ability to pay nor
is it required to make findings regarding the defendant’s ability. State v. McNaughton,
11th Dist. Lake No. 2011-L-083, 2012-Ohio-1271, ¶30. So long as the record contains
some evidence that the trial court considered the issue, a reviewing court will not disturb
the court’s decision. Id.
{¶40} With these principles in mind, the court’s statement that it considered the
defendant’s ability to pay satisfies the requirement of R.C. 2929.19(B)(5). Appellant has
consequently failed to establish the court would have deemed him unable to pay the
fine had the affidavit been filed. Appellant has therefore failed to establish a reasonable
probability that, but for counsel’s omission, the outcome of the proceedings would have
been different.
{¶41} Appellant’s third assignment of error is without merit.
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{¶42} For the reasons discussed in this opinion, the judgment of the Geauga
County Court of Common Pleas is modified and affirmed as modified.
TIMOTHY P. CANNON, P.J., concurs with a Concurring Opinion,
DIANE V. GRENDELL, J., concurs in part and dissents in part, with a
Concurring/Dissenting Opinion.
______________________
TIMOTHY P. CANNON, P.J., concurring.
{¶43} I concur with the judgment, and I concurred with the appointment of
counsel in this case. The dissent characterizes the approach of the other members of
this court as “a waste of taxpayers’ money.” I do not believe this is an accurate or
appropriate description of a court’s decision to follow nearly 50 years of precedent
established by the U.S. Supreme Court and the Ohio Supreme Court. See, e.g., Anders
v. California, 386 U.S. 738, 744 (1967) (explaining that after a full independent review of
the record, if the court finds any arguable legal points, it must appoint new counsel to
argue the appeal); State v. Gibbs, 11th Dist. Geauga No. 2012-G-3123, 2014-Ohio-
1341, ¶31 (only after the appellate court conducts its own independent review of the
record and finds no arguable legal points on the merits may the court grant appellate
counsel’s request to withdraw without appointing new counsel to represent defendant).
{¶44} Because this court’s independent review of the proceedings below
disclosed legal points arguable on the merits, this court properly appointed new
appellate counsel. Appointment of new appellate counsel allows appellant to “vindicate
the constitutional right to appellate counsel.” Smith v. Robbins, 528 U.S. 259, 273
12
(2000). Failure to appoint new appellate counsel would have deprived appellant of his
Sixth Amendment rights. If this court had identified an error, analyzed it, and ruled on
it—without affording the state an opportunity to respond and without counsel
participating on appellant’s behalf—this court would have been advocating, which
obviously should be avoided.
______________________
DIANE V. GRENDELL, J., concurs in part and dissents in part, with a
Concurring/Dissenting Opinion.
{¶45} I concur in the judgment and the substantive analysis of the majority’s
opinion as it relates to the first and third assignments of error. I write separately,
however, to address the flaws in the procedure followed in this appeal and to dissent
from the majority’s decision to modify and affirm as modified as to the second
assignment of error regarding the issue of community service.
{¶46} In this case, an Anders brief was submitted by Pierce’s original appellate
counsel, asserting that the appeal had no merit. The writing judge, in a May 31, 2013
Judgment Entry, unilaterally found that colorable issues existed regarding the imposition
of court costs upon Pierce without notification of the possibility of being ordered to
perform community service, as well as the potential ineffectiveness of counsel for failing
to raise Pierce’s indigent status for the purposes of avoiding a fine. The Judgment
Entry then appointed a new attorney to address these “and any other issues.”
{¶47} As an initial matter, it must be emphasized that the foregoing
characterization of the writing judge’s actions as unilateral is based on the fact that the
writing judge, by herself, signed and journalized the judgment entry appointing new
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counsel. The Ohio Supreme Court has long established that courts in Ohio officially act
only through their written and journalized decisions. State ex rel. Nelson v. Griffin, 103
Ohio St. 3d 167, 2004-Ohio-4754, 814 N.E.2d 866, ¶ 7 (“courts speak only through
journalized entries”); State ex rel. Marshall v. Glavas, 98 Ohio St. 3d 297, 2003-Ohio-
857, 784 N.E.2d 97, ¶ 5. Ohio appellate court decisions are journalized when they are
filed with the appropriate clerk of court. App.R. 22(C).
{¶48} The judgment entry appointing new counsel bore only the signature of
Judge Rice. The name of a second or concurring appellate judge from this court
appears nowhere in or on that journalized judgment entry. As reflected by the writing
judge’s judgment entry appointing new counsel, the writing judge, as a matter of this
court’s official records, was the sole person to act. Thus, while the majority states that
“this court issued a judgment permitting prior counsel to withdraw” and outlining
colorable issues for review, based on the conclusion of “two members of the judicial
panel” that colorable issues exist, the indisputable fact remains that the judgment entry
itself was issued solely by the writing judge. Supra at ¶ 4.
{¶49} Regarding the procedural aspects of this case, this matter should have
been resolved without appointing additional counsel, at the taxpayers’ expense, to brief
the community service issue, as well as the additional arguments that have been briefed
and rejected by this court. Further briefing added nothing of value to the community
service analysis and did not change the ultimate disposition of the case, especially
given that the law of this court clearly establishes that the community service
advisement was required. No harm or Due Process deprivation would have been
caused to Pierce by following the foregoing course of action, since a reversal, without
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yet another appointment of counsel, benefits Pierce and would allow him to be properly
advised by the trial court.
{¶50} Several districts have applied this approach in Anders cases, remanding
to the trial court for limited purposes, without appointing new counsel or requiring
additional briefing, when a clear violation of the law occurred in the trial court. State v.
Marcum, 4th Dist. Hocking No. 11CA30, 2013-Ohio-951, ¶ 4 (“given that the trial court
clearly erred when it failed to orally notify [the defendant] about the imposition of court
costs,” a remand for the limited purpose of resolving the matter was proper, without any
further briefing or appointment of new counsel); State v. Gallardo, 6th Dist. Ottawa No.
OT-05-058, 2006-Ohio-4915, ¶ 11 (where the defendant’s sentence was clearly
contrary to law, resolution of the error through remand, without appointing new counsel,
was proper); State v. Shannon, 12th Dist. Preble No. CA2003-02-005, 2004-Ohio-
1866, ¶ 4-5 (since the error was plain and no other grounds for an appeal existed,
reversal without the appointment of new counsel was warranted); State v. Ross, 4th
Dist. Lawrence No. 10CA31, 2011-Ohio-1136, ¶ 13 (finding in an Anders case that
judicial economy favored immediate remand to the trial court due to clear error in the
imposition of post release control).
{¶51} This approach is consistent with the United States Supreme Court’s
primary concern in Anders -- recognition of the appellant’s right to Due Process -- and
allows appellate courts a constitutional way to avoid expending additional attorney’s
fees and considerable time and public taxpayers’ resources in conducting unnecessary
additional briefing that is not required to afford an appellant a proper review of his
appeal and reversal of plain error. In this case, the additional briefing uncovered no
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further errors, aside from the community service error of which this court was already
aware and could have resolved through a remand. See Shannon at ¶ 4-5. Appointing
new counsel prolonged the resolution of this matter and was not consistent with the
purposes of judicial economy. Painesville City Local Schools Bd. of Edn. v. Ohio Assn.
of Pub. School Emps., 11th Dist. Lake No. 2005-L-100, 2006-Ohio-3645, ¶ 15
(emphasizing the importance of speedy resolutions to conflicts to foster judicial
economy by “unburdening crowded court dockets”) (citation omitted); State v. Wamsley,
117 Ohio St. 3d 388, 2008-Ohio-1195, 884 N.E.2d 45, ¶ 28 (finding that the court’s
holding should “foster rather than thwart judicial economy”). Based solely on the
unnecessary appointment of new counsel and the additional briefing period, a delay of
over two months was added to the disposition of this appeal.
{¶52} This court was also not required under the law to appoint new counsel to
brief the separate community service issue. As this court has held in State v. Martin,
11th Dist. Portage No. 2005-P-0097, 2007-Ohio-4961, separate counsel need not be
appointed when further briefing could be performed by the defendant’s initial counsel.
Id. at ¶ 8.
{¶53} Regarding the merits of the second assignment of error, the majority
concludes that, since Pierce was not informed of the possibility he could be ordered to
perform community service, “[t]he judgment of the trial court is * * * modified to remove
the possibility that community service may be ordered should appellant fail to pay court
costs.” Supra at ¶ 31. It would be more appropriate to reverse and remand to the trial
court for the limited purpose of providing Pierce the proper community service
notification.
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{¶54} The decision to affirm as modified is not consistent with this court’s recent
approach in State v. Glus, 11th Dist. Geauga No. 2012-G-3087, 2014-Ohio-245, where
we held that remand for an oral notification hearing was necessary when the State
“conceded in its appellate brief that the trial court did not comply with the notification
requirement in imposing court costs,” but “did not agree to a modification of the
sentencing judgment under which the possibility of community service would be
eliminated in this instance.” Id. at ¶ 22.
{¶55} In the present case, the opinion does not address this matter. There is no
indication in the State’s brief that it would be agreeable to allowing a modification of the
trial court’s judgment. Thus, as this court held in Glus, a remand would be the
appropriate remedy. This is also consistent with the analysis in this court’s decision in
State v. Dye, 11th Dist. Portage No. 2011-P-0097, 2013-Ohio-4285, cited by the
majority. See Id. at ¶ 18 (modifying the trial court’s judgment to eliminate the possibility
that appellant be subject to community service when this method was met with the
State’s approval at oral argument).
{¶56} In Judge Cannon’s concurrence, he notes that he “concurred with the
appointment of counsel in this case.” The court’s official record does not support Judge
Cannon’s statement. The official court record does not verify that Judge Cannon
concurred in this decision. The Ohio Supreme Court has dictated that a court speaks
only through the court’s journal entry. Nelson, 103 Ohio St. 3d 167, 2004-Ohio-4754,
814 N.E.2d 866, at ¶ 7. A review of Judge Rice’s entry shows only one signature.
There is no Judge Cannon signature or even reference. As a matter of Ohio Law, the
absence of that information in a journal entry renders the appointment of counsel
17
decision “unilateral.” There is good reason for the Ohio Supreme Court’s mandate that
the courts speak only through journalized entries. To allow otherwise creates a “star
chamber” effect that erodes public confidence and cloaks the court in secrecy. Not only
does Judge Rice’s unilateral decision deprive the public of knowledge of a concurring
judge, but it also deprives this judge of the opportunity to write a dissent.
{¶57} Although concurring Judge Cannon also takes issue with the assertion
that the multiple appointment of counsel in this case wastes taxpayers’ money, as noted
throughout my opinion in the present case, various other courts, including the Fourth,
Sixth and Twelfth Districts, have taken the approach that appointment of counsel is
unnecessary and unwarranted in similar Anders cases. See Marcum; Gallardo;
Shannon, supra. It follows then, that since this approach is valid, lawful, and advanced
by appellate courts, the failure to remedy the error without the appointment of new
counsel does indeed act as an unnecessary expenditure of taxpayers’ money, for the
reasons fully discussed herein.
{¶58} There is a plethora of cases that support this judge’s position that courts
should strive for judicial economy and not waste taxpayers’ dollars. State v. Mammone,
139 Ohio St. 3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, ¶ 56; Wamsley, 117 Ohio St. 3d
388, 2008-Ohio-1195, 884 N.E.2d 45, at ¶ 28; State v. Herring, 21 Ohio App. 3d 18, 486
N.E.2d 119 (9th Dist.1984), syllabus.
{¶59} The principle concern enunciated in Anders is the protection of an
appellant’s Due Process rights. Those rights are protected under the specific
circumstances of this case by the recognition of the lower court’s error and remand as
proposed by this judge and followed by this court in Glus. As held in Marcum, Gallardo,
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and Shannon, appointment of another counsel is unnecessary when a clear violation of
the law occurred in the trial court. In this case, there was only one obvious error, easily
resolvable without the appointment of another counsel or further briefing, and no other
meritorious arguments existed. There is no absolute rule allowing the appointment of
counsel to advance issues on appeal that are baseless or cannot come to fruition. See
State v. Burnett, 11th Dist. Lake No. 2013-L-053, 2014-Ohio-1358, ¶ 27 (a defendant
has no right “to file a baseless or frivolous appeal”). The determination not to appoint
counsel would have placed Pierce at no disadvantage, since this court’s conclusion
would be favorable to him, and have only a positive result, both for Pierce and the
taxpayers. Following this judicially recognized approach would have avoided waste of
taxpayers’ money in this case while still following the precedent as directed by the
United States Supreme Court and the Ohio Supreme Court. See Glus, 2014-Ohio-245,
at ¶ 22.
{¶60} With the foregoing reservations, I concur in the substantive analysis as to
the first and third assignments of error, but would reverse and remand to the trial court
on the second assignment of error, for the appropriate notification to be given to
appellant.
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