State v. Williams , 2020 Ohio 3588 ( 2020 )

[Cite as State v. Williams, 2020-Ohio-3588.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108333
v. :
MARSHALL WILLIAMS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 2, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-18-634683-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Marc D. Bullard, and Frank Romeo
Zeleznikar, Assistant Prosecuting Attorneys, for appellee.
Mark A. Stanton, Cuyahoga County Public Defender, and
David M. King, Assistant Public Defender, for appellant.
ON RECONSIDERATION1
MARY EILEEN KILBANE, J.:
Defendant-appellant, Marshall Williams (“Mr. Williams”), appeals
his guilty plea and conviction. For the reasons that follow, we affirm.
I. FACTS
On December 7, 2018, a grand jury returned an eight-count
indictment against Mr. Williams and his wife, Shawnte Williams (“Ms. Williams”),
for an offense dated November 16, 2018. Mr. Williams was 41 years old at the time
of the offense; Ms. Williams was a few days short of 41 years old. The couple lived
together and have children and grandchildren.
Mr. Williams was charged with the following: trafficking in violation
of R.C. 2925.03(A)(2), a first-degree felony (count 1); drug possession in violation
of R.C. 2925.11(A), a first-degree felony (count 2); trafficking in violation of R.C.
2925.03(A)(2), a fifth-degree felony (count 3); drug possession in violation of R.C.
2925.11(A), a fourth-degree felony (count 4); drug possession in violation of R.C.
2925.11(A), a fifth-degree felony (count 5); and possessing criminal tools in violation
of R.C. 2923.24(A), a fifth-degree felony (count 6). All six counts included forfeiture
specifications.
1 The original decision in this appeal, State v. Williams, 8th Dist. Cuyahoga No. 108333, 2020-Ohio-1378,
released on April 9, 2020, is hereby vacated. This opinion, issued upon reconsideration, is the court’s
journalized decision in this appeal. See App.R. 22(C); see also S.Ct. Prac.R. 7.01.
Ms. Williams was indicted on count 6 and two other charges:
permitting drug abuse in violation of R.C. 2925.13(A) and (B), fifth-degree felonies
(counts 7 and 8). As with the other counts, counts 7 and 8 included forfeiture
specifications.
On December 27, 2018, Mr. and Ms. Williams initially pled not guilty
to the charges. Thereafter, they agreed to a joint plea deal. At the plea hearing on
January 23, 2019, Mr. Williams withdrew his not guilty plea and pled guilty to an
amended count 1 and the as-indicted count 4. As amended, count 1 included the
forfeiture specifications, but the weight of the drug was reduced from “equals or
exceeds one hundred grams” to 27-100 grams. As indicted, count 1 carried with it a
mandatory 11-year sentence based on the weight of the drugs. As amended, count 1
required a mandatory sentence between 3 to 11 years and a mandatory fine of
$10,000, with a discretionary fine up to $20,000. count 4 was a felony-four charge
of drug possession in violation of R.C. 2925.11. The state nolled counts 2, 3, 5, and
6 against Mr. Williams.
Ms. Williams also entered a guilty plea at the same hearing on
January 23, 2019, after previously pleading not guilty on December 27, 2018. She
pled guilty to possessing criminal tools in violation of R.C. 2923.24(A) (count 6).
The state nolled counts 7 and 8.
The trial court held a group-plea hearing at which five defendants
were present, two of which were Mr. and Ms. Williams. The other three defendants
were present for unrelated cases. The trial court instructed the defendants
collectively as follows at the plea hearing:
I’m going to be asking a series of questions. Each defendant must
answer in a loud, clear voice. If you do not have a loud, clear voice, you
can use the microphone that’s in front of you. If I have to ask you to
speak up or to speak more clearly, I’m going to take that as a sign of
disrespect to this court, which I will consider at a later time.
The court then instructed the defendants to answer in a particular
order and further explained:
The court reporter has to take this down in an organized fashion, and
he can only take one voice at a time. So wait for the person before you
to finish their answer. I may ask a follow-up question of that person.
Wait till we are done until it goes to you, okay?
The court instructed Mr. Williams to answer second among the five
defendants. Mr. Williams and the other defendants represented that they
understood the court’s instructions. Later during the plea hearing, the court
directed a question to Mr. Williams specifically and he answered. The court then
corrected itself and had the defendants answer in the order it originally prescribed:
COURT: Now, were the forfeitures, pleas also done of your own free
will and desire, Mr. Williams?
MR. WILLIAMS: Yes.
COURT: First, Mr. Ogletree?
Mr. Ogletree was another defendant in an unrelated case at the plea
hearing who was to answer first according to the trial court’s initial instructions.
On February 27, 2019, a month after the plea hearing, the trial court
sentenced Mr. and Ms. Williams. They each addressed the court at the sentencing
hearing. Ms. Williams apologized to the court. Mr. Williams stated that he accepted
responsibility for his actions, but requested leniency after explaining that he had a
difficult childhood and that he was only trying to raise money to pay for surgeries
Ms. Williams required in addition to other household and family expenses. He also
stated: “I really - - I’m really truly glad, you know, this happened because I was
looking for a way out. * * * I just want to be right. I just want to make things right.”
In response, the trial court reviewed Mr. Williams’s record and
estimated that he had made at least 700 drug sales to members of his community,
noting that he had been selling drugs since as early as 2000. The court further
underscored the gravity of Mr. Williams’s actions in the following exchanges:
COURT: Okay. But you know, you know it’s bad enough that you don’t
give it to your kids.
MR. WILLIAMS: Yes, ma’am.
COURT: That’s a monster in my book, you know? You say I didn’t
know it was so bad. Of course I wouldn’t believe that at this stage. But
you got 700 sales, and I really doubt there were only two people buying
700 times.
***
COURT: Sir, do you think it would be okay if I went out and sold drugs
to your kids and your family members so that I could buy my kids
whatever they want?
MR. WILLIAMS: No, ma’am, that is not - -
COURT: That is what you did.
The court sentenced Mr. Williams to nine years on count 1 and
eighteen months on count 4 to be served concurrently. The court also imposed the
mandatory minimum fine of $10,000 in connection with count 1 and ordered the
forfeiture of two vehicles, two digital scales, eight cell phones, and $14,630. In
addition, the court ordered five years of mandatory postrelease control. Ms.
Williams was sentenced to five years of probation.
The same counsel jointly represented Mr. Williams and Ms. Williams
at the plea hearing and at the sentencing. This appeal follows.
Mr. Williams asserts the following four assignments of error:
Assignment of Error One
Mr. Marshall Williams was denied due process when the trial court
imposed a vindictive sentence that was not supported by the record in
violation of R.C. 2929.11, 2929.12, the Fifth, Sixth and Fourteenth
Amendments to the U.S. Constitution and Article I Section 10 of the
Ohio Constitution and Ohio Crim.R. 32.
Assignment of Error Two
The trial court erred when it did not determine that the defendant
understood the nature of the offenses, the effects of the plea, and that
he was waiving certain constitutionally guaranteed trial rights by
pleading guilty in violation of the Fifth, Sixth and Fourteenth
Amendments to the U.S. Constitution and Article I Section 10 of the
Ohio Constitution and Ohio Crim.R. 11.
Assignment of Error Three
The accused was denied due process and his right to counsel in
violation of U.S. Constitution Amendments V, VI, and XIV; and Ohio
Constitution Art. I, Section 10.
Assignment of Error Four
Mr. Marshall Williams was denied effective assistance of counsel in
violation of the Sixth and Fourteenth Amendments to the United States
Constitution and Article 1, Section 10 of the Ohio Constitution when his
attorney failed to file an indigency affidavit to waive the mandatory fine
and when counsel continued to represent codefendants despite a clear
conflict.
Each of appellant’s assignments of error are overruled.
II. LAW AND ANALYSIS
A. The sentence was not vindictive.
Mr. Williams argues in his first assignment of error that he was
denied due process because his sentence was vindictive. Mr. Williams contends that
the trial court imposed a 9-year sentence as punishment for his answering out of
turn at the plea hearing a month earlier. He further contends that the 9-year
sentence was vindictive because: the sentencing range for his crimes was 3 to 11
years; the prosecution did not request a particular sentence; and Mr. Williams
argued for leniency, stating that he planned to use the money obtained in connection
with his crimes to pay for surgery for Ms. Williams.
“A sentence that is vindictively imposed on a defendant because he or
she exercised a constitutional right is contrary to law.” State v. Williams, 8th Dist.
Cuyahoga No. 108275, 2020-Ohio-269, ¶ 55, citing State v. Rahab, 150 Ohio St.3d
152, 2017-Ohio-1401, 80 N.E.3d 431, ¶ 8. “When reviewing a sentence for
vindictiveness, we begin by presuming that the trial court considered the proper
sentencing criteria.” Id., citing Rahab at ¶ 19. “We then review the record for
evidence of actual vindictiveness.” Id. “We will reverse the sentence only if we
clearly and convincingly find the sentence is contrary to law because it was imposed
as a result of actual vindictiveness on the part of the trial court.” Id., quoting Rahab
at ¶ 19.
Here, the record does not clearly and convincingly demonstrate that
the trial court based its sentence on actual vindictiveness. To the contrary, before
imposing a 9-year sentence instead of the maximum 11, the trial court properly
considered Mr. Williams’s prior record, the impact of his crimes on the community,
his knowledge regarding the perils of drug use, and his expressed remorse. See R.C.
2929.11 and 2929.12. See also Rahab at ¶ 32.
Mr. Williams asserts that the trial court’s admonition to Mr. Williams
and the other defendants to speak loudly, clearly, and one at a time during the plea
hearing reveals actual vindictiveness because the court also warned that if anyone
failed to speak loudly, clearly, and one at a time, the court would “take that as a sign
of disrespect to this court, which I will consider at a later time.” The record does not
support this theory. The court did not admonish Mr. Williams for answering before
the other defendant during the plea hearing and never referenced the incident
during sentencing. Based on our review, Mr. Williams simply answered a question
after the trial court directly addressed him and the record does not indicate that the
trial court vindictively sentenced Mr. Williams for doing so.
During sentencing, the trial court reviewed Mr. Williams’s criminal
record. It cited three prior incidents while Mr. Williams was a juvenile and
numerous incidents thereafter. The trial court also addressed Mr. Williams’s
request for leniency based on his apparent intention to use money from drug sales
to pay for his wife’s surgeries and noted that CareSource Health Insurance, not Mr.
Williams, would pay for the surgeries. The court also considered the number of sales
Mr. Williams had made, calculating as many as 700, and the harm, including
possible deaths, he caused to his customers and the community. Although the trial
court could have imposed an 11-year sentence and $20,000 fine for the amended
count 1, it imposed a lesser 9-year sentence and the mandatory minimum $10,000
fine.
Ms. Williams, who was charged with fewer offenses, received a
sentence of five years’ probation. That Ms. Williams received a lesser sentence does
not demonstrate vindictiveness towards Mr. Williams, but merely reflects Ms.
Williams’s lesser-involvement in the charged crimes. Whereas Ms. Williams faced
three charges and pled guilty to one, Mr. Williams faced six charges and pled guilty
to two, one of which carried a mandatory prison sentence and fine. Mr. Williams
likely would have faced a significantly longer sentence had he not agreed to the plea
deal and instead been found guilty of the six as-indicted counts — including counts
2, 3, 5, and 6 that the state nolled as part of the plea deal — rather than only the
amended count 1 and as-indicted count 4.
Accordingly, the first assignment of error is overruled.
B. The trial court complied with Crim.R. 11.
In his second assignment of error, Mr. Williams argues that the trial
court’s procedure at the plea hearing was insufficient to assure that Mr. Williams
was making his plea knowingly, intelligently, and voluntarily because the court used
a group-plea hearing. We disagree.
A defendant’s plea must be entered knowingly, intelligently, and
voluntarily for the plea to be constitutional under the United States and Ohio
Constitutions. State v. Engle, 74 Ohio St.3d 525, 527, 1996-Ohio-179, 660 N.E.2d
450. “Ohio Crim.R. 11(C) was adopted in order to facilitate a more accurate
determination of the voluntariness of a defendant’s plea by ensuring an adequate
record for review.” State v. Nero, 56 Ohio St.3d 106, 107, 564 N.E.2d 474 (1990).
The underlying purpose of Crim.R. 11(C) is to ensure that the trial court conveys
certain information to a defendant so that he or she can make a voluntary and
intelligent decision regarding whether to plead guilty or no contest. State v. Harris,
8th Dist. Cuyahoga No. 108529, 2020-Ohio-805, ¶ 13, citing State v. Ballard, 66
Ohio St.2d 473, 479-480, 423 N.E.2d 115 (1981).
We review whether the trial court complied with Crim.R. 11(C) de
novo. Id. at ¶ 14. In reviewing the record, appellate courts must consider the totality
of the circumstances to determine whether the plea hearing complied with Crim.R.
11(C). Id.
Crim.R. 11(C) states:
In felony cases the court may refuse to accept a plea of guilty or a plea
of no contest, and shall not accept a plea of guilty or no contest without
first addressing the defendant personally and doing all of the following:
(a) Determining that the defendant is making the plea voluntarily, with
understanding of the nature of the charges and of the maximum
penalty involved, and if applicable, that the defendant is not eligible
for probation or for the imposition of community control sanctions
at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant
understands the effect of the plea of guilty or no contest, and that
the court, upon acceptance of the plea, may proceed with judgment
and sentence.
(c) Informing the defendant and determining that the defendant
understands that by the plea the defendant is waiving the rights to
jury trial, to confront witnesses against him or her, to have
compulsory process for obtaining witnesses in the defendant’s
favor, and to require the state to prove the defendant's guilt beyond
a reasonable doubt at a trial at which the defendant cannot be
compelled to testify against himself or herself.
“Trial courts must strictly comply with the provisions concerning the
constitutional rights set forth in Crim.R. 11(C)(2)(c), but only substantial
compliance is required for the provisions concerning nonconstitutional rights set
forth in Crim.R. 11(C)(2)(a) and (b).” Harris at ¶ 16, citing State v. Griggs, 103 Ohio
St. 3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12. “Substantial compliance means that
under the totality of the circumstances the defendant subjectively understands the
implications of his plea and the rights he is waiving.” Id., quoting State v. Nero, 56
Ohio St.3d 106, 107, 108, 564 N.E.2d 474 (1990).
During the plea hearing on January 23, 2019, the trial court obtained
pleas from Mr. Williams and four additional defendants in a group-plea setting. The
court first positioned the defendants in a specific order and instructed the
defendants to answer in that order throughout the proceeding. The court then
directed questions to all of the defendants and elicited responses from each
defendant individually. There is no prohibition on a trial court conducting a group-
plea hearing. State v. Hawkins, 8th Dist. Cuyahoga No. 108057, 2019-Ohio-4162, ¶
19, citing State v. Strimpel, 8th Dist. Cuyahoga No. 106129, 2018-Ohio-1628, ¶ 12.
Based on a review of the record, we find the totality of the
circumstances demonstrates that the trial court complied with all aspects of Crim.R.
11 and that Mr. Williams subjectively understood the implications of his guilty pleas
and the rights he would waive upon entering guilty pleas.
Because the record demonstrates that Mr. Williams’s plea was
knowingly, intelligently, and voluntarily entered, his second assignment of error is
overruled.
C. The trial court had no duty to inquire about the dual
representation and the record does not reveal an actual conflict
adversely affected counsel’s performance.
Mr. Williams argues in his third assignment of error that he was
denied due process and his right to counsel. He contends that his conviction should
be vacated because the trial court failed to ensure that his counsel, who also
represented Ms. Williams, explained any potential conflict of interest before
allowing the matter to proceed.
“In reviewing a conflict of interest claim, we must resolve two distinct
issues. First, we must determine whether the trial court had a duty to investigate
the potential conflict of interest.” Cleveland v. Harris, 8th Dist. Cuyahoga No.
105545, 2018-Ohio-1522, ¶ 12, citing State v. Ingol, 89 Ohio App.3d 45, 48, 623
N.E.2d 598 (9th Dist.1993). Second, “[i]f the duty to inquire did not arise, then we
must determine whether an actual conflict occurred that adversely affected counsel’s
ability to represent the defendant.” Id. See also Cleveland v. Brewer, 8th Dist.
Cuyahoga No. 108365, 2020-Ohio-_ _ _, ¶ 4.
First, the record does not indicate any special circumstances by which
the trial court knew or reasonably should have known that a particular conflict
existed of which it had a duty to inquire. “Where a trial court knows or reasonably
should know of an attorney’s possible conflict of interest in the representation of a
person charged with a crime, the trial court has an affirmative duty to inquire
whether a conflict of interest actually exists.” State v. Gillard, 64 Ohio St.3d 304,
311, 1992-Ohio-48, 595 N.E.2d 878. Because the attorney representing multiple
defendants is in the best position to determine whether a conflict of interest exists
or might develop, it is reasonable for a trial court to assume, in the absence of special
circumstances, that there is no conflict or that the defendants knowingly accepted
any risk of conflict. State v. Ermekeil, 8th Dist. Cuyahoga Nos. 63703 and 63704,
1993 Ohio App. LEXIS 4433, 8 (Sept. 16, 1993), citing Cuyler v. Sullivan, 446 U.S.
335, 347, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).
This court has previously considered whether a trial court had a duty
to inquire about the dual representation of a husband and wife. In one such case,
we found that the trial court did not err in failing to inquire about dual
representation where the appellant did not raise any objections to the trial court
regarding the dual representation of himself and his common-law wife. Ermekeil at
8, 12. In another case, we found that the trial court erred by not explaining the risks
of dual representation to husband and wife defendants where the husband-
appellant expressed reservations about the dual representation to the trial court.
State v. Haugabrook, 8th Dist. Cuyahoga No. 103693, 2016-Ohio-5838, ¶ 17.
Neither Mr. Williams nor Ms. Williams raised any objections or
reservations to the dual representation. Instead, they each separately expressed
their understanding about their cases and satisfaction with their counsel to the trial
court at the plea hearing.
Moreover, the joint plea deal would not have given the trial court
reason to know of a particular conflict because the plea benefitted both Mr. and Ms.
Williams. Without the plea deal, Mr. Williams faced a mandatory minimum
sentence of 11 years on count 1 and the potential for a longer sentence based on the
four counts against him that the plea deal nolled. With the plea deal, the amended
count 1 allowed for a discretionary sentence between 3 and 11 years. Mr. Williams
ultimately received a lesser sentence than the mandatory minimum sentence he
faced without the plea deal.
The plea deal also nolled two felony-five charges against Ms. Williams
so that she only faced a charge for possessing criminal tools (count 6). Facing just
the single charge, Ms. Williams received five years’ probation. Although a serious
sentence, probation will nevertheless allow Ms. Williams to find employment,
attend to her health, and return to their family home and grandchildren. As the
record does not demonstrate any special circumstances by which the trial court
knew or reasonably should have known that a particular conflict existed, the trial
court need not have inquired about the dual representation.
However, “[w]e note that the Sixth Amendment right to effective
assistance of counsel secures to a criminal defendant both the right to competent
representation and the right to representation that is free from conflicts of
interest.” Haugabrook at ¶ 8, citing Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct.
1097, 67 L.Ed.2d 220 (1981); Glasser v. United States, 315 U.S. 60, 70, 62 S.Ct. 457,
86 L.Ed. 680 (1942). Accordingly, “the better practice is to make a prompt inquiry
and advise each defendant of his or her right to effective assistance of counsel,
including separate representation.” Ermekeil at 9.
Second, we do not find that an actual conflict occurred that adversely
affected counsel’s ability to represent Mr. Williams. “To establish an actual conflict,
a defendant must show: (1) the existence of some plausible alternative defense
strategy or tactic that might have been pursued and (2) that the alternative defense
was inherently in conflict with or not undertaken due to the attorney’s other loyalties
or interests.” State v. Hale, 8th Dist. Cuyahoga No. 107646, 2019-Ohio-3276, ¶ 65,
citing State v. Gillard, 78 Ohio St.3d 548, 553, 1997-Ohio-183, 679 N.E.2d 276.
Mr. Williams contends that he and Ms. Williams required separate
counsel because they faced different charges that would have necessitated different
and “potentially conflicted” legal defenses, strategies, and tactics. However, Mr.
Williams’s plea deal was a package plea deal that benefitted both him and Ms.
Williams and the record does not disclose any demonstration of an actual conflict of
interest that adversely affected his counsel’s performance. Harris, 2020-Ohio-805at ¶ 19 (trial court had no duty to inquire further about conflict of interest where
defendant failed to direct appellate court to a specific instance in the record
demonstrating an actual conflict).
Accordingly, appellant’s third assignment of error is overruled.
D. Mr. Williams was not deprived of effective assistance of
counsel.
In his fourth assignment of error, Mr. Williams argues that counsel
was ineffective in two ways. He first contends counsel was ineffective for failing to
file an indigency affidavit to seek waiver of the mandatory fine associated with count
1. Second, Mr. Williams contends counsel was ineffective for jointly representing
him and Ms. Williams.
Our review of counsel’s performance is highly deferential. State v.
Korecky, 8th Dist. Cuyahoga No. 108328, 2020-Ohio-797, ¶ 20, citing Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because we
presume licensed attorneys are competent, the party claiming ineffective assistance
of counsel bears the burden of proving that counsel was ineffective. Id., citing State
v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985).
Mr. Williams first argues that he was denied effective assistance of
counsel pursuant to Crim.R. 11 when counsel failed to file an indigency affidavit to
seek waiver of the $10,000 mandatory fine associated with count 1. “[T]he failure
to file an affidavit of indigency for purposes of waiving a mandatory fine constitutes
ineffective assistance of counsel where the record shows a ‘reasonable probability’
that the trial court would have found the defendant indigent and unable to pay the
fine had the affidavit been filed.” State v. Stovall, 8th Dist. Cuyahoga No. 104787,
2017-Ohio-2661, ¶ 10.
R.C. 2929.18(B)(1) prescribes the manner in which the court shall
proceed in waiving the mandatory fine for an indigent offender:
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.
Thus, in order for an offender to avoid the imposition of a fine at the
time of sentencing, 1) the defendant must submit an affidavit of indigency to the
court prior to sentencing; and 2) the court must make a determination that the
offender is, in fact, indigent. Stovall at ¶ 8-9. “[B]efore imposing a financial
sanction under R.C. 2929.18, the court must also consider the offender’s present and
future ability to pay the amount of the sanction or fine.” State v. Raimundy-Torres,
8th Dist. Cuyahoga No. 101490, 2015-Ohio-1450, ¶ 12. “However, there ‘are no
express factors that must be taken into consideration or findings regarding the
offender’s ability to pay that must be made on the record.’” Id., quoting State v.
Martin, 140 Ohio App.3d 326, 338, 2000-Ohio-1942, 747 N.E.2d 318 (4th Dist.).
In Stovall, we found that the record did not demonstrate a reasonable
probability that the trial court would have found the defendant indigent for purposes
of waiving a mandatory fine of $1,350 where the record showed that the defendant
was employed as a plumber and was able to work while out on bond. Stovall at ¶ 12.
In Raimundy-Torres, we affirmed the trial court’s imposition of a mandatory fine
where the defendant was caught with more than $3,300 in an earlier case and had
retained an attorney. Raimundy-Torres at ¶ 13. Noting that the defendant also had
the “resources available to you with the support of your family and whatever
resources you’re not reporting here,” the court imposed the minimum mandatory
fine of $10,000 for a first-degree felony. Id. Considering Stovall and Raimundy-
Torres, we do not find that this record shows a “reasonable probability” that the trial
court would have found Mr. Williams indigent and unable to pay the fine had the
affidavit been filed.
In Mr. Williams’s sentencing memorandum, counsel represented that
he is “self-sustaining,” was employed by Lucky Café for the last three years, paid
taxes, and provided for his family. Mr. Williams forfeited two vehicles, two digital
scales, eight cell phones, and $14,630 in connection with the charges against him.
However, looking to the future, the sentencing memorandum predicted that Mr.
Williams would be able to “launch a new life if given lenience” due to his strong
family and “substantial community support network.” At the sentencing hearing,
Mr. Williams informed the trial court that although previously unemployed, he had
been working a steady job for the last couple months. Further, the trial court made
the point that Medicare would cover the expense of Ms. Williams’s surgeries, after
Mr. Williams claimed to be saving up for the medical expenses. We also note, as we
did in Raimundy-Torres, that Mr. Williams retained counsel for this case.
In support of his argument, Mr. Williams notes that the trial court
previously found him indigent for purposes of receiving appointed counsel.
However, “a determination that a criminal defendant is indigent for the purposes of
receiving appointed counsel does not equate to a determination of indigency for
purposes of waiving the imposition of a fine.” Stovall at ¶ 11. See also State v. Carty,
2018-Ohio-2739, 116 N.E.3d 862, ¶ 35 (8th Dist.).
Mr. Williams also directs us to cases from the Sixth, Tenth, and
Eleventh Districts in which those courts found that the defendants were denied
effective assistance of counsel for failing to file an indigency affidavit to waive the
mandatory fine. We do not find these cases to be persuasive. In State v. Gilmer, the
Sixth District found that the defendant was cocaine-dependent at the time of
sentencing, had a “spotty work history,” and was represented by appointed counsel.
State v. Gilmer, 6th Dist. Ottawa No. OT-01-015, 2002 Ohio App. LEXIS 1971, 6-7
(Apr. 26, 2002). Unlike in Gilmer, the record shows that Mr. Williams was
consistently employed for at least three years and had retained counsel for his case.
In State v. McDowell, the Eleventh District found a reasonable
likelihood that the trial court would have found the defendant indigent where the
defendant was unemployed at the time of his arrest. State v. McDowell, 11th Dist.
Portage No. 2001-P-0149, 2003-Ohio-5352, ¶ 76. Here, in contrast, the record
demonstrates that Mr. Williams had been employed prior to his arrest for three
years.
In State v. Parsley, the Tenth District found ineffective assistance of
counsel for failing to file an indigency affidavit where the defendant had no source
of income or employment at the time of the offense and no prior employment. State
v. Parsley, 10th Dist. Franklin No. 09AP-612, 2010-Ohio-1689, ¶ 66. Here, once
again, the record supports that Mr. Williams was employed prior to his arrest and
had a “substantial” support system from family and his community.
In light of the above, the record fails to demonstrate a reasonable
probability that the trial court would have found Mr. Williams to be indigent and
unable to pay the mandatory fine of $10,000 over time. Accordingly, Mr. Williams
has failed to demonstrate that prejudice resulted from counsel’s failure to file an
affidavit of indigency. Therefore, counsel’s failure to do so was not ineffective.
Turning to Mr. Williams’s second complaint regarding counsel, a
defendant who pleads guilty waives the right to claim prejudice by ineffective
assistance of counsel, except to the extent that the ineffective assistance of counsel
caused the plea to be less than knowing, intelligent, and voluntary. Korecky at ¶ 19.
After entering a guilty plea, a defendant can only show prejudice by demonstrating
a “reasonable probability that, but for counsel’s deficient performance, he would not
have pleaded guilty and would have insisted on going to trial.” Id. at ¶ 20.
Mr. Williams does not argue or present any evidence that he would
not have pled guilty but for counsel’s actions and because the record does not
support such a conclusion, we overrule this assignment of error. See Univ. Hts. v.
Zaccaro-Hoffman, 8th Dist. Cuyahoga No. 108575, 2020-Ohio-113, ¶ 9 (no
ineffective assistance of counsel where appellant-defendant failed to demonstrate
that but-for counsel’s performance, she would not have pled no contest).
As discussed, the trial court complied with Crim.R. 11. Mr. Williams
received a full plea hearing and the record demonstrates he entered a knowing,
intelligent, and voluntary guilty plea as part of a package plea deal that also
benefitted Ms. Williams. He represented to the trial court that he was not forced to
plead guilty when asked if there were any threats or promises made to encourage
the entry of a guilty plea. He also represented that he was satisfied with the
representation he received from his counsel. At the sentencing hearing, Mr.
Williams reiterated that he takes responsibility for his actions. In exchange for
pleading guilty to the amended count 1 and the as-indicted count 4, Mr. Williams
avoided a mandatory 11-year sentence and the state nolled counts 2, 3, 5, and 6
against him. The joint plea deal also allowed his wife, who was in very poor health,
to plead guilty to only one of the three charges against her for which she received
probation with no prison sentence. In sum, the record does not demonstrate a
reasonable probability that but for counsel’s alleged deficiencies, Mr. Williams
would not have pled guilty and would have insisted on going to trial.
Accordingly, Mr. Williams’s fourth assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending is terminated. Case remanded to
the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
EILEEN T. GALLAGHER, A.J., and
ANITA LASTER MAYS, J., CONCUR