State v. Hinkle ( 2011 )

[Cite as State v. Hinkle, 2011-Ohio-4970.]
COURT OF APPEALS
KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
THE STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. Julie A. Edwards, J.
-vs-
Case No. 10-CA-22
BRADLEY J. HINKLE
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Appeal from the Knox County Common
Pleas Court, Case No. 10CR070118
JUDGMENT: Affirmed in part; Vacated in part; and
Remanded
DATE OF JUDGMENT ENTRY: September 26, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN C. THATCHER BRUCE J. MALEK
Knox County Prosecuting Attorney Knox County Public Defender
CHARLES T. MCCONVILLE MARK A. ZANGHI
Assistant Prosecuting Attorney Assistant Public Defender
117 East High Street, Suite 234 One Public Square
Mount Vernon, Ohio 43050 Mount Vernon, Ohio 43050
Knox County, Case No. 10-CA-22 2
Hoffman, J.
{¶1} Appellant, Bradley J. Hinkle, was indicted on one count of Aggravated
Trafficking in Drugs in violation of R.C. 2925.03(A)(1), a felony of the third degree, two
counts of Illegal Assembly or Possession of Chemicals for the Maufacture of Drugs in
violation of R.C. 2925.041(A), which are a felonies of the second degree, and one count
of Intimidation of Victim or Witness in a Criminal Case in violation of R.C. 2921.04(B),
also a felony of the third degree. Appellant entered guilty pleas to counts one, three,
and four. The State dismissed count two. Appellant was sentenced to a prison term of
four years on count one with a mandatory fine of $5,000.00; a prison term of six years
on count three with a mandatory fine of $7,500.00; and a prison term of four years on
count 4. All three prison terms were ordered to be served concurrently to one another
for a total prison term of six years. At the time of sentencing, counsel for Appellant
inquired as to whether the mandatory fines could be waived. The trial court instructed
Appellant to file an appropriate motion. The judgment entry of conviction and
sentencing was filed on November 4, 2010. Appellant’s Motion to Suspend Mandatory
Fine was filed on November 9, 2010. The trial court did not expressly rule on the
Motion to Suspend Mandatory Fine prior to Appellant’s filing his Notice of Appeal on
December 2, 2010.
{¶2} Counsel for Appellant has filed a Motion to Withdraw and a brief pursuant
to Anders v. California (1967), 386 U.S. 738, rehearing den. (1967), 388 U.S. 924,
indicating the within appeal was wholly frivolous and setting forth two proposed
assignments of error. Appellant did not file a pro se brief alleging any additional
assignments of error.
Knox County, Case No. 10-CA-22 3
{¶3} Counsel for Appellant raises the following potential assignments of error:
I.
{¶4} “THE APPELLANT’S GUILTY PLEAS TO COUNTS ONE, THREE AND
FOUR OF THE INDICTMENT WERE NOT OFFERED KNOWINGLY, VOLUNTARILY
AND INTELLIGENTLY.”
II.
{¶5} “THE TRIAL COURT ERRED BY IMPOSING MANDATORY FINES
WHEN THE APPELLANT FILED A MOTION TO WAIVE MANDATORY FINES AND AN
AFFIDAVIT OF INDIGENCY.”
{¶6} In Anders, the United States Supreme Court held if, after a conscientious
examination of the record, a defendant’s counsel concludes the case is wholly frivolous,
then he should so advise the court and request permission to withdraw. Id. at 744.
Counsel must accompany his request with a brief identifying anything in the record that
could arguably support his client’s appeal. Id. Counsel also must: (1) furnish his client
with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time
to raise any matters that the client chooses. Id. Once the defendant’s counsel satisfies
these requirements, the appellate court must fully examine the proceedings below to
determine if any arguably meritorious issues exist. If the appellate court also determines
that the appeal is wholly frivolous, it may grant counsel’s request to withdraw and
dismiss the appeal without violating constitutional requirements, or may proceed to a
decision on the merits if state law so requires. Id.
Knox County, Case No. 10-CA-22 4
{¶7} Our review of the record reveals Appellant was denied effective
assistance of trial counsel, therefore, we will proceed to a decision on the merits of the
proposed assignments of error as well as the error identified by this Court.
I.
{¶8} In his first assignment of error, Appellant argues his plea of guilty should
not have been accepted because it was not knowingly, intelligently, and voluntarily
made.
{¶9} A determination of whether a plea is knowing, intelligent, and voluntary is
based upon a review of the record. State v. Spates (1992), 64 Ohio St.3d 269, 272. If a
criminal defendant claims his plea was not knowingly, voluntarily, and intelligently made,
the reviewing court must review the totality of the circumstances in order to determine
whether or not the defendant's claim has merit. State v. Nero (1990), 56 Ohio St.3d 106,
108.
{¶10} To ensure a plea is made knowingly and intelligently, a trial court must
engage in oral dialogue with the defendant in accordance with Crim.R. 11(C)(2). Engle,
74 Ohio St.3d at 527.
{¶11} At the time Appellant entered his guilty pleas, the trial court orally engaged
in a dialogue with Appellant which establishes Appellant was aware of the nature of the
charges and the maximum penalties involved. He further acknowledged an awareness
of all of the rights he was waiving by entering guilty pleas. Additionally, he read a plea
of guilty form and discussed the form with his attorney. We find there is no affirmative
demonstration the plea was not entered in a knowing, intelligent, and voluntary manner.
{¶12} Appellant’s first assignment of error is overruled.
Knox County, Case No. 10-CA-22 5
II.
{¶13} We will address Appellant’s second assignment of error together with the
error identified by this Court as ineffective assistance of trial counsel.
{¶14} To establish ineffective assistance of counsel, an appellant must show (1)
deficient performance by counsel, i.e., performance falling below an objective standard
of reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but
for counsel's errors, the proceeding's result would have been different. Strickland v.
Washington (1984), 466 U.S. 668, 687–688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674; State
v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus.
{¶15} R.C. § 2929.18 provides,
{¶16} “(B)(1) For a first, second, or third degree felony violation of any provision
of Chapter 2925., 3719., or 4729. of the Revised Code, the sentencing court shall
impose upon the offender a mandatory fine of at least one-half of, but not more than,
the maximum statutory fine amount authorized for the level of the offense pursuant to
division (A)(3) of this section. If an offender alleges in an affidavit filed with the court
prior to sentencing that the offender is indigent and unable to pay the mandatory fine
and if the court determines the offender is an indigent person and is unable to pay the
mandatory fine described in this division, the court shall not impose the mandatory fine
upon the offender.”
{¶17} Trial counsel in this case did not file a motion or affidavit of indigency prior
to sentencing as required by R.C. 2929.18(B)(1). We have reviewed the affidavit filed
after the trial court issued its judgment of conviction and sentencing. Based upon our
review of the affidavit, we find that there is a reasonable probability that but for
Knox County, Case No. 10-CA-22 6
counsel’s error in failing to file a timely affidavit of indigency demonstrating an inability to
pay the proceedings would have been different as to the imposition of the mandatory
fines only. We are not making the finding as suggested by counsel’s second proposed
assignment of error the trial court erred in imposing the mandatory fines. We simply
find counsel failed to timely file the affidavit and motion prior to sentencing. Accordingly,
we vacate the Appellant’s sentence as to the imposition of the mandatory fines and
remand this case to the Court of Common Pleas for resentencing based upon the
Appellant’s affidavit and motion as well as the State’s reply. All other portions of
Appellant’s convictions and sentences are affirmed. Counsel’s motion to withdraw is
granted.
By: Hoffman, J.
Gwin, P.J. and
Edwards, J. concur
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
s/ Julie A. Edwards ___________________
HON. JULIE A. EDWARDS
Knox County, Case No. 10-CA-22 7
IN THE COURT OF APPEALS FOR KNOX COUNTY, OHIO
FIFTH APPELLATE DISTRICT
THE STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
BRADLEY J. HINKLE :
:
Defendant-Appellant : Case No. 10-CA-22
For the reasons stated in our accompanying Opinion, the convictions and
sentences entered by the Knox County Court of Common Pleas are affirmed in part;
vacated in part and the matter is remanded for further proceedings in accordance with
our Opinion and the law. Costs waived.
s/ William B. Hoffman _________________
HON. WILLIAM B. HOFFMAN
s/ W. Scott Gwin _____________________
HON. W. SCOTT GWIN
s/ Julie A. Edwards___________________
HON. JULIE A. EDWARDS