State v. Perry , 2023 Ohio 3981 ( 2023 )

[Cite as State v. Perry, 2023-Ohio-3981.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 112627
v. :
ROBERT PERRY, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 2, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-21-660849-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Omar Siddiq, Assistant Prosecuting
Attorney, for appellee.
Robert Perry, pro se.
MARY EILEEN KILBANE, P.J.:
Defendant-appellant Robert Perry (“Perry”) appeals, pro se, his
sentencing. For the following reasons, we affirm.
Factual and Procedural History
On July 1, 2021, in Cuyahoga C.P. No. CR-21-660849, a Cuyahoga
County Grand Jury indicted Perry on one count of drug possession in violation of
R.C. 2925.11(A), a felony of the fifth degree. The charges arose from an incident on
February 20, 2021, when Perry was arrested for possession of cocaine. On
September 29, 2021, the trial court issued a capias for Perry. On May 18, 2022, the
trial court recalled the capias, declared Perry indigent, and appointed counsel, and
Perry pleaded not guilty to the indictment.
On February 22, 2023, the trial court conducted a plea hearing. At
the hearing, Perry withdrew his former plea of not guilty and pleaded guilty to drug
possession in violation of R.C. 2925.11(A), a felony of the fifth degree. The trial court
referred Perry for a presentence investigation and report as well as a substance
abuse assessment. The trial court advised Perry of the imposition of postrelease
control.
On March 22, 2023, the trial court sentenced Perry, and on March 22,
2023, the trial court issued a sentencing judgment entry that states in relevant part:
Defendant in court. Counsel Allison Hibbard present. Court reporter
present. On a former day of court the defendant plead[ed] guilty to
drug possession 2925.11(A), a [felony of the fifth degree] as charged in
the indictment. Defendant addresses the court. The court considered
all required factors of the law. The court finds that a community
control sanction will adequately protect the public and will not demean
the seriousness of the offense. It is therefore ordered that the
defendant is sentenced to two years of community control on each
count, under the supervision of the adult probation department with
the following conditions: (1) defendant to abide by all rules and
regulations of the probation department (2) defendant to be supervised
by: Group D (3) report weekly for three months and every two weeks
thereafter or as directed by [probation officer] (4) attend programming
as indicated in case plan (5) defendant is ordered to pay a monthly
supervision fee of $20.00 (6) defendant is eligible for early termination
request when all conditions have been met (7) random drug testing (8)
conditions and terms of probation are subject to modification by the
probation officer and approval of the court. Violation of the terms and
conditions may result in more restrictive sanctions, or a prison term of
12 months as approved by law. Follow TASC recommendations. Out-
patient treatment. No CCWS1 in lieu of fees. The court hereby enters
judgment against the defendant in an amount equal to the costs of his
prosecution. All motions not specifically ruled on prior to the filing of
this judgment entry are denied as moot. The court elects to not
suspend defendant’s driving privileges. Clerk to collect supervision
fees and costs.
Sentencing judgment entry, March 22, 2023. On March 23, 2023, the trial court
assessed Perry with court costs in the amount of $637.61.
On April 18, 2023, appellant, pro se, filed a timely appeal, presenting
these assignments of error for our review:
Assignment of Error 1: Whether counsel was ineffective for failing to
move for the waiver of court costs and [s]upervision fees.
Assignment of Error 2: Whether the trial court erred in sentencing the
defendant to a maximum sentence.
Legal Analysis
In his first assignment of error, Perry argues that where the trial court
declared him indigent, his trial counsel’s failure to subsequently file a motion to
waive Perry’s payment of a monthly supervision fee and court costs amounted to
ineffective assistance of counsel. We note that Perry is proceeding pro se.
1 CCWS stands for community work service. See State v. Gilbert, 8th Dist. Cuyahoga
No. 104355, 2016-Ohio-8308, ¶ 3, fn. 1.
“Generally, this court holds a pro se litigant to the same standard as all other
litigants, and presumes the pro se litigant to have knowledge of the relevant law and
applicable procedure.” State v. D.H., 8th Dist. Cuyahoga No. 105995, 2018-Ohio-
1199, ¶ 5, citing State v. Bolton, 8th Dist. Cuyahoga No. 103628, 2016-Ohio-5706, ¶
30.
When an indigent defendant presents 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), to determine whether the defendant was subject to
ineffective assistance of counsel. State v. Davis, 159 Ohio St.3d 31, 2020-Ohio-309,
146 N.E.3d 560, ¶ 1. The Bradley Court adopted the standard announced in
Strickland v. Washington, 466 U.S. 668, 688-689, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). According to Bradley and Strickland, to demonstrate ineffective assistance
of counsel a defendant must prove:
(1) that counsel’s performance was deficient (i.e., counsel’s
performance fell below an objective standard of reasonableness), and
(2) that he was prejudiced by counsel’s deficient performance (there
exists a reasonable probability that, but for counsel’s error, the result
of the proceeding would have been different).
Davis at ¶ 10. A defendant must satisfy both prongs of the Strickland test. State v.
Thompson, 8th Dist. Cuyahoga No. 99846, 2014-Ohio-1056, ¶ 28, citing Strickland
at 687. “A defendant’s failure to satisfy one prong of the Strickland test negates a
court’s need to consider the other prong.” State v. Pierce, 8th Dist. Cuyahoga No.
107752, 2019-Ohio-3762, ¶ 26, citing State v. Mays, 8th Dist. Cuyahoga No. 103785,
2016-Ohio-7481, ¶ 11.
We will first analyze the second prong of the Strickland test —
whether Perry established prejudice — which is dispositive of Perry’s first
assignment of error.
Perry relies on State v. Gibson, 8th Dist. Cuyahoga No. 104363, 2017-
Ohio-102, in support of his argument that a trial court’s finding of indigency
establishes a reasonable probability that the court would have waived costs had a
timely motion been filed. However, the Ohio Supreme Court found “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.” Davis at ¶ 15. Instead, a reviewing court must look at the totality
of the circumstances presented by the defendant and determine if there exists a
reasonable probability that the trial court would have granted a motion to waive
costs if such a motion had been made. Davis at ¶ 15.
Here, the trial court found Perry indigent and provided court-
appointed counsel. Perry’s counsel did not file a motion to waive costs and,
following sentencing, the trial court assessed Perry with court costs and a monthly
supervision fee while Perry served his community-control sanctions. Perry’s only
basis for his claim that he was prejudiced is that because the trial court previously
found him indigent, the trial court would have granted a motion for waiver of costs
if such a motion was filed. However, “indigency for purposes of receiving appointed
legal counsel is not necessarily indigency for purposes of determining ability to pay
a fine because the ability to pay a fine over a period of time is not equivalent to the
ability to raise a retainer fee required by private counsel at the outset of criminal
proceedings.” State v. Johnson, 107 Ohio App.3d 723, 728, 669 N.E.2d 483 (8th
Dist.1995).
Perry has not pointed to anything in the record that shows a
reasonable probability that the trial court would have granted a motion to waive
costs. In contrast, the sentencing journal indicates that the trial court considered
the imposition of fees and costs; did not waive fees in lieu of community-control
sanctions; and viewed Perry’s payment of fees and costs as part of his punishment:
“No [community-control sanctions] in lieu of fees. The court hereby enters
judgment against the defendant in an amount equal to the costs of his prosecution.”
Additionally, the record does not reflect any medical or health conditions that would
render Perry incapable of obtaining gainful employment and, therefore, unable to
pay supervision fees and court costs. See State v. Johnson, 8th Dist. Cuyahoga No.
109152, 2020-Ohio-4997, ¶ 40 (absent any evidence in the record that appellant had
a physical, mental, or medical condition that would prevent his employment, there
was no reason appellant could not pay court costs).
Absent any evidence that the trial court would have waived payment
of costs and fees if defense counsel filed such a motion, Perry has not shown
prejudice. Perry failed to satisfy the second prong of Strickland and, accordingly,
we find Perry’s first assignment of error is without merit and is overruled.
In his second assignment of error, Perry argues that the trial court
erred when it imposed a one-year maximum sentence without making the requisite
findings required by R.C. 2929.14(C) and 2929.19(B)(2)(d).
Pursuant to R.C. 2929.15, the trial court sentenced Perry to
community-control sanctions in lieu of a prison term. The trial court did not impose
a prison term on Perry. The only prison term referenced in the sentencing judgment
entry is if Perry violates his community-control sanctions: “Violation of the terms
and conditions may result in more restrictive sanctions, or a prison term of 12
months as approved by law.” Sentencing judgment entry, March 22, 2023. R.C.
2929.19(B)(4) requires the inclusion of such language to inform a defendant of the
consequences should he violate community-control sanctions. R.C. 2929.14(C) and
2929.19(B)(2)(d) address prison terms, not a sentence of community-control
sanctions, and are inapplicable to Perry’s imposed sentence.
Thus, Perry’s second assignment of error is without merit and 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, PRESIDING JUDGE
MARY J. BOYLE, J., and
MICHAEL JOHN RYAN, J., CONCUR