State v. Williams , 2012 Ohio 5873 ( 2012 )

[Cite as State v. Williams, 2012-Ohio-5873.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26014
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
EDWARD WILLIAMS COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 09 10 3223 (B)
DECISION AND JOURNAL ENTRY
Dated: December 12, 2012
CARR, Judge,
{¶1} Defendant-Appellant, Edward Williams, appeals from his convictions in the
Summit County Court of Common Pleas. This Court affirms in part and reverses in part.
I.
{¶2} Williams was indicted on two counts of grand theft and two counts of tampering
with records after he received benefits from the Ohio Department of Job and Family Services
and the United States Social Security Administration. The State alleged that Williams was not
entitled to the benefits he had received due to his having misrepresented certain information on
his applications and supplements to his applications for benefits. Williams pleaded not guilty to
the charges and requested a jury trial. Because a related case in which Williams was involved
had been highly publicized, the court requested a large pool of prospective jurors.
{¶3} On the morning of trial, sixty prospective jurors reported to the courtroom of the
judge presiding over the trial. Noting that the entire courtroom would likely be needed to
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accommodate the jury pool, the judge asked a lone spectator in the courtroom to step out before
the prospective jurors entered. Subsequently, the trial commenced, and the jury found Williams
guilty on all four counts. The trial court sentenced him to one year in prison. The court further
ordered Williams to pay restitution in the amount of $36,023.87 to the Ohio Department of Job
and Family Services and $64,900 to the United States Social Security Administration. Williams
appealed from the trial court’s judgment.
{¶4} Williams died in prison before this Court could hear his appeal. Williams’
appointed attorney then moved to dismiss the appeal, dismiss the trial court proceedings, and
vacate Williams’ convictions as a result of his passing. The State opposed the motion and asked
this Court to substitute Williams’ appointed counsel in place of Williams for purposes of hearing
the appeal. See State v. McGettrick, 31 Ohio St.3d 138 (1987). This Court granted the State’s
motion by way of journal entry. State v. Williams, 9th Dist. No. 26014 (June 18, 2012). As
such, the appeal will proceed as if Williams’ death had not occurred.
{¶5} Williams’ appeal is now before this Court and raises seven assignments of error
for our review. For ease of analysis, we combine several of the assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT COMMITTED PLAIN, REVERSIBLE, AND
STRUCTURAL ERROR WHEN IT PARTIALLY CLOSED THE
COURTROOM DURING VOIR DIRE IN VIOLATION OF WILLIAMS’
FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A PUBLIC TRIAL
AS GUARANTEED BY THE FIRST, SIXTH AND FOURTEENTH
AMENDMENTS TO THE CONSTITUTION AND ARTICLE I, §10 OF THE
OHIO CONSTITUTION, AND PRESLEY V. GEORGIA, 130 S.CT. 721, 175
L.ED.2D 675 (2010).
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ASSIGNMENT OF ERROR II
WILLIAMS WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL
FAILED TO OBJECT THAT THE TRIAL COURT’S PARTIAL CLOSING OF
THE COURTROOM DURING VOIR DIRE VIOLATED WILLIAMS’ RIGHT
TO A PUBLIC TRIAL AS GUARANTEED BY THE FIRST, SIXTH AND
FOURTEENTH AMENDMENTS TO THE CONSTITUTION AND ARTICLE I,
§10 OF THE OHIO CONSTITUTION, AND PRESLEY V. GEORGIA, 130 S.CT.
721, 175 L.ED.2D 675 (2010).
{¶6} In his first assignment of error, Williams argues that the trial court committed
either structural or plain error by partially closing the courtroom during voir dire. In his second
assignment of error, Williams argues that he received ineffective assistance of counsel because
his counsel failed to object to the partial closure of the courtroom. As set forth below, we reject
both propositions.
{¶7} The Sixth Amendment to the U.S. Constitution and Article I, Section 10 of the
Ohio Constitution guarantee an accused the right to a public trial. State v. Lane, 60 Ohio St.2d
112, 119 (1979). The “Sixth Amendment right to a public trial extends to the voir dire of
prospective jurors.” Presley v. Georgia, 558 U.S. ___, 130 S.Ct. 721, 724 (2010). Moreover,
“the right * * * cannot be waived by the defendant’s silence.” State v. Bethel, 110 Ohio St.3d
416, 2006-Ohio-4853, ¶ 81. Absent proof in the record that the defendant somehow consented to
the closing of the trial, an appellate court must consider a defendant’s claim that the court
violated his public trial right. See id. at ¶ 81-82. Compare State v. Drummond, 111 Ohio St.3d
14, 2006-Ohio-5084, ¶ 54-59 (error as to February 5th courtroom closure waived when counsel
had objected to February 4th courtroom closure, but not the February 5th closure); State v.
Bayless, 48 Ohio St.2d 73, 110-111 (1976), vacated on other grounds, 438 U.S. 911 (1978)
(defense agreed to closure that “was primarily for the benefit of the defense”). “The violation of
the right to a public trial is considered structural error and not subject to harmless-error analysis.”
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Drummond at ¶ 50. “Before discussing structural error, however, an appellate court must first
find that a constitutional error has occurred.” State v. Dovala, 9th Dist. No. 05CA008767, 2007-
Ohio-4914, ¶ 10.
{¶8} Williams contends that the trial court committed structural error by excluding his
daughter from the courtroom during voir dire. The only evidence Williams points to in support
of his argument is a ruling that the court made on the record directly before the prospective
jurors were to be brought into the courtroom. The court stated:
The only thing is, I see [Williams’] daughter in the back. The problem is I think
every seat is going to be taken by jurors. So, Miss Bolar-Williams, I would ask
that you step out and have a seat. There [are] some round tables out there. Quite
frankly, I don’t think there [are] going to be any additional seats during the jury
selection process, but why don’t you go out and have a seat, and then we will see.
Williams did not object to the trial court’s ruling, and no further discussions about the ruling
took place on the record. According to Williams, “[a]t no time thereafter during the voir dire
selection of the jury did [the judge] ever permit [his] daughter back into the courtroom to observe
the selection of the jury.” That fact, however, is not in evidence. It is entirely unclear from the
record whether spectators were actually excluded from the courtroom once the prospective jurors
arrived. The judge’s ruling was only that she thought there might not be enough seats once the
jurors arrived, but when the jurors got there “[they] w[ould] see.” The record is devoid of any
additional evidence.
{¶9} The cases that Williams cites in support of his position all involve definitive
courtroom closures. That is, no question existed in the record in those cases that courtroom
closures actually occurred. See, e.g., Presley, 558 U.S. ___, 130 S.Ct. 721 (court ordered
courtroom closed for voir dire and specified that spectators could return at the start of trial);
Waller v. Georgia, 467 U.S. 39 (1984) (court ordered closure over objection that seven-day
5
suppression hearing be closed to the public); Lane, 60 Ohio St.2d 112 (trial occurred in
“improvised courtroom” in maximum security penitentiary). Moreover, in the case upon which
Williams primarily relies, Presley v. Georgia, the defendant moved for a new trial so that the
court could take additional evidence on the closure issue. There, the trial court had closed the
courtroom for voir dire on the basis that each row would be occupied by potential jurors and it
would be inappropriate to allow spectators to “intermingle” with members of the jury pool.
Presley at 722. In moving for a new trial, the defendant went so far as to present evidence as to
the size of the courtroom and the number of seats that would have been available once the
potential jurors entered. Id. No such evidence exists in this case. Unlike the cases upon which
Williams relies, the record here is inconclusive with regard to whether spectators were or were
not allowed in the courtroom once the potential jurors arrived.
{¶10} The trial court here essentially issued a preliminary ruling, as its ruling hinged
upon whether there would, in fact, be room for spectators in the courtroom once the potential
jurors arrived. It is entirely plausible that after the potential jurors arrived, spectators were able
to enter the courtroom. The evidence in the record is simply inconclusive. Although Williams
need not have objected to the court’s ruling to raise the issue on appeal, see Bethel, 110 Ohio
St.3d 416, 2006-Ohio-4853, at ¶ 81-82, there is not enough evidence in the record from which
one can conclusively deduce that a closure actually occurred. See State v. Conway, 108 Ohio
St.3d 214, 2006-Ohio-791, ¶ 101-102 (defendant failed to establish courtroom closure or that any
spectators were actually excluded). Williams’ argument essentially asks this Court to engage in
speculation. See State v. Patel, 9th Dist. No. 24024, 2008-Ohio-4692, ¶ 43 (“[T]his Court will
not rely upon pure speculation in determining whether an error occurred.”). We are unwilling to
conclude that the trial court’s preliminary ruling, without more, definitively resulted in a
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courtroom closure. Williams has not shown that a constitutional error actually occurred. As
such, this Court need not engage in a structural error analysis. See Dovala, 2007-Ohio-4914, at ¶
10-13. Williams’ first assignment of error is overruled.
{¶11} Williams also argues that he received ineffective assistance of counsel because his
trial counsel failed to object to the closure of the courtroom. In order to demonstrate ineffective
assistance of counsel, a defendant most show (1) deficiency in the performance of counsel “so
serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment,” and (2) that the errors made by counsel were “so serious as to deprive the
defendant of a fair trial[.]” Strickland v. Washington, 466 U.S. 668, 687 (1984). A defendant
must demonstrate prejudice by showing that, but for counsel’s errors, there is a reasonable
probability that the outcome of the trial would have been different. Id. at 694. As previously
noted, a defendant need not object to preserve a claim of structural error on appeal when a trial
court erroneously orders the proceedings closed. See Bethel at ¶ 81-82. But see Drummond, 111
Ohio St.3d 14, 2006-Ohio-5084, at ¶ 54-59 (error can be waived if circumstances support a
waiver). The problem here is that the record does not contain sufficient evidence to show that a
courtroom closure actually occurred. Williams fails to explain how his counsel’s objection to the
trial court’s preliminary ruling would have remedied that problem. See App.R. 16(A)(7).
Accordingly, he has not shown that he was prejudiced by his trial counsel’s failure to object to
the trial court’s preliminary ruling. Williams’ second assignment of error is overruled.
ASSIGNMENT OF ERROR III
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
FAILING TO PROVIDE WILLIAMS WITH HIS RIGHT TO ALLOCUTION
PRIOR TO THE IMPOSITION OF HIS PRISON SENTENCE IN VIOLATION
OF R.C. 2929.19(A) AND CRIM.R. 32(A).
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{¶12} In his third assignment of error, Williams argues that the trial court denied him his
right of allocution before it imposed his sentence. We disagree.
{¶13} Pursuant to Crim.R. 32(A)(1), a trial court shall “[a]fford counsel an opportunity
to speak on behalf of the defendant and address the defendant personally and ask if he or she
wishes to make a statement in his or her own behalf or present any information in mitigation of
punishment.” See also R.C. 2929.19(A) (court shall hold sentencing hearing at which it asks the
offender whether he “has anything to say as to why sentence should not be imposed upon
[him]”). The rule “requires a trial court to afford a defendant an opportunity to speak before the
court imposes sentence.” State v. Maynard, 9th Dist. No. 07CA0116-M, 2009-Ohio-282, ¶ 38.
{¶14} Before the court orally pronounced Williams’ sentence in open court, the court
spoke to Williams and his attorney. The following exchange took place:
THE COURT: * * * Is there anything either the defendant or his counsel * * *
would like to say?
[DEFENSE COUNSEL]: Your Honor, I would like to speak. Mr. Williams and I
did speak prior to this. In the event he was to be found guilty, I would ask the
Court to -- I would have asked the Court to allow him to be left out of jail and that
he would be sentenced at a later date.
THE COURT: All right. Thank you. Mr. Williams, is there anything you want to
say to the Court?
[WILLIAMS]: I said it already. You don’t want to hear it.
THE COURT: Is there anything additional you want to say?
[WILLIAMS]: There is nothing I can say. Everything I said has been denied.
The court then began to explain the rationale it employed in reaching its sentencing decision.
Williams interrupted the court and interjected his belief that he had accepted benefits because he
“thought [he] was disabled” and “wasn’t able to take care of [himself].” After the court orally
8
imposed its sentence, Williams also interjected that he felt it was unfair that he also had a case in
federal court.
{¶15} The trial court personally addressed Williams and asked multiple times whether
he had anything to say. Both the Ohio Supreme Court and this Court have recognized that a trial
court complies with a defendant’s right of allocution when it personally addresses the defendant
and asks whether he has anything to say. State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, ¶
192-193; State v. Vickers, 9th Dist. No. 01CA007928, 2002-Ohio-3628, ¶ 34. Williams was
given repeated opportunities to personally address the court. Moreover, even after he indicated
that he had nothing to say, he was able to interject several statements while the trial court
explained its sentencing rationale and after the court orally pronounced his sentence. The fact
that the interjections did not occur before the court began to pronounce its sentence is inapposite.
“[A]lthough the court set forth the terms of [Williams’] sentence in open court, it did not
journalize [his] sentence until much later.” State v. Brown, 9th Dist. No. 25287, 2011-Ohio-
1041, ¶46, citing Maynard at ¶ 45 (“[Defendant’s] sentence was not finalized until the trial court
filed its sentencing entry and, up until that time, anything it said about what that sentence would
be was tentative.”). The record reflects that Williams was afforded his right of allocution. His
third assignment of error is overruled.
ASSIGNMENT OF ERROR IV
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
ORDERING WILLIAMS TO PAY RESTITUTION WITHOUT CONSIDERING
WILLIAMS’ PRESENT AND FUTURE ABILITY TO PAY AS REQUIRED
UNDER R.C. 2929.19(B)(5).
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ASSIGNMENT OF ERROR V
WILLIAMS WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL
FAILED TO OBJECT TO THE IMPOSITION OF RESTITUTION WITHOUT
CONSIDERING WILLIAMS’ PRESENT AND FUTURE ABILITY TO PAY.
{¶16} In his fourth assignment of error, Williams argues that the trial court committed
plain error when it ordered him to pay restitution without first considering his present and future
ability to pay it. In his fifth assignment of error, Williams argues that he was denied the effective
assistance of counsel because his counsel failed to object to the court’s error in imposing
restitution without first considering his ability to pay it.
{¶17} “Before imposing a financial sanction under [R.C. 2929.18] or a fine under [R.C.
2929.32], the court shall consider the offender’s present and future ability to pay the amount of
the sanction or fine.” R.C. 2929.19(B)(5).1 “[T]here 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.” State v. Martin, 140 Ohio App.3d 326, 327 (4th Dist.2000). Even so, the record must
reflect that the court actually considered the defendant’s ability to pay. Id. Accord State v.
Lewis, 2d Dist. No. 2011-CA-75, 2012-Ohio-4858, ¶ 9; State v. McQuillen, 5th Dist. No.
12CA014, 2012-Ohio-4953, ¶ 11; State v. Dahms, 6th Dist. No. S-11-028, 2012-Ohio-3181, ¶
16. A trial court commits plain error by ordering a defendant to pay restitution without first
considering his ability to pay. State v. Andrews, 1st Dist. No. C-110735, 2012-Ohio-4664, ¶ 32.
{¶18} During the sentencing hearing, the trial court only inquired as to whether
Williams would be able to afford an attorney on appeal. The court noted that Williams appeared
1
Subsection (B)(5) of R.C. 2929.19 is identical to Former R.C. 2929.19(B)(6).
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to have a home, although there was testimony that it was encumbered by a substantial mortgage.
Williams informed the court that he only had $10 in his checking account. The court then
concluded that appellate counsel would be appointed, but that Williams would be required to
reimburse the county for his attorney fees if further investigation disclosed his ability to pay his
attorney fees. No pre-sentence investigation was completed, and the trial court never set forth in
its sentencing entry that it had considered Williams’ present and future ability to pay before
imposing restitution.
{¶19} The record in this case does not support the conclusion that the court considered
Williams’ ability to pay restitution before ordering him to pay it. A defendant’s ability to pay for
appellate counsel is not synonymous with his ability to pay a retainer fee for counsel. Id. at ¶ 29
(“An offender’s ability to pay a fine over a period of time is not equivalent to the ability to pay
legal counsel a retainer fee at the outset of the criminal proceedings.”). No discussion took place
on the record about Williams’ ability to pay restitution, and no further financial information
could have been obtained from a pre-sentence investigation report, as none was completed.
Further, the trial court did not expressly state at the hearing or in its sentencing entry that it had
considered Williams’ ability to pay before it ordered restitution. “Because the record is
completely silent on the matter, the trial court committed plain error in ordering [Williams] to
pay * * * restitution.” Id. at ¶ 32.
{¶20} Although Williams is deceased, several state courts have held that an order to
pay restitution survives the death of the defendant. See, e.g., People v. Daly, Colo.App. No.
10CA0580, 2011 WL 2308587 (June 9, 2011); People v. Peters, 449 Mich. 515, 537 N.W.2d
160 (1995); Matter of Estate of Vigliotto, 178 Ariz. 67, 870 P.2d 1163 (1993); State v.
Christensen, 866 P.2d 533 (Utah 1993). Moreover, numerous Ohio courts have recognized that,
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upon the substitution of a deceased party pursuant to App.R. 29(A), the case must proceed as if
the death had not occurred. See, e.g., State v. Meade, 12th Dist. No. CA2009-07-024, 2010-
Ohio-2435 (remand for hearing on decedent’s sex offender classification); State v. Sims, 127
Ohio App.3d 603 (2d Dist.1998) (remand for hearing and determination of suppression-based
issues); State v. Williams, 75 Ohio App.3d 102 (10th Dist.1991) (remand for hearing and
determination of suppression-based issues). As such, Williams’ fourth assignment of error is
sustained and the court’s order of restitution is reversed in light of that determination. The
matter, however, will be remanded to the trial court for further proceedings.
{¶21} Williams also argues that he received ineffective assistance of counsel because his
counsel did not object when the trial court imposed restitution without first considering his
ability to pay it. Based on our resolution of Williams’ fourth assignment of error, his ineffective
assistance argument is moot and we decline to address his fifth assignment of error. App.R.
12(A)(1)(c).
ASSIGNMENT OF ERROR VI
THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
ASSESSING COURT COSTS AGAINST WILLIAMS WHEN IT DID NOT
IMPOSE THOSE COSTS IN OPEN COURT AND WITHOUT COMPLYING
WITH R.C. 2947.23(A).
{¶22} In his sixth assignment of error, Williams argues that the trial court erred by
assessing court costs against him without first complying with the notification requirements of
R.C. 2947.23(A). We agree.
{¶23} R.C. 2947.23(A) provides in relevant part:
(A)(1) 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
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sentence, the judge or magistrate shall notify the defendant of both of the
following:
(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 compliance with the approved payment schedule.
(b) If the court orders the defendant to perform the community service, the
defendant will receive credit upon the judgment at the specified hourly credit rate
per hour of community service performed, and each hour of community service
performed will reduce the judgment by that amount.
The statute requires both that the trial court (1) notify the defendant at the time of sentencing that
costs will be assessed so that he has an opportunity to seek a waiver, and (2) notify the defendant
that his failure to pay the costs could result in imposition of community service, but that he
would receive credit toward the costs from any community service imposed. State v. Ross, 9th
Dist. No. 25778, 2012-Ohio-1389, ¶ 28; State v. Stallworth, 9th Dist. No. 25461, 2011-Ohio-
4492, ¶ 32. See also State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, ¶ 20-24.
{¶24} The record reflects that the trial court did not discuss costs at the sentencing
hearing. Williams was not informed of any of the statutory notifications mandated by R.C.
2947.23(A). Nevertheless, the court imposed costs upon him in its sentencing entry. The court
erred by doing so. See Ross at ¶ 28; Stallworth at ¶ 32. Accordingly, Williams’ argument has
merit.
{¶25} As previously noted, this case must proceed as if Williams’ death had not
occurred. Even after the defendant in a criminal case dies, “the matter of costs remains.”
McGettrick, 31 Ohio St.3d at 141, fn. 4, quoting State v. Jones, 220 Kan. 136, 137, 551 P.2d 801(1976). As such, Williams’ sixth assignment of error is sustained, and the matter will be
remanded to the trial court for further proceedings.
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ASSIGNMENT OF ERROR VII
THE CUMULATIVE EFFECT OF THE TRIAL COURT’S ERROR DENIED
WILLIAMS A FAIR TRIAL.
{¶26} In his seventh assignment of error, Williams argues that cumulative errors in the
proceedings deprived him of his constitutional right to a fair trial. We disagree.
{¶27} Cumulative error exists only where the errors during trial actually “deprive[d] a
defendant of the constitutional right to a fair trial.” State v. DeMarco, 31 Ohio St.3d 191 (1987),
paragraph two of the syllabus. “[T]here can be no such thing as an error-free, perfect trial, and *
* * the Constitution does not guarantee such a trial.” State v. Hill, 75 Ohio St.3d 195, 212
(1996), quoting United States v. Hasting, 461 U.S. 499, 508-509 (1983). Moreover, “errors
cannot become prejudicial by sheer weight of numbers.” Hill, 75 Ohio St.3d at 212.
{¶28} After reviewing the record, we cannot say that Williams’ trial was plagued with
numerous errors or that his constitutional right to a fair trial was violated. Therefore, his seventh
assignment of error is overruled.
III.
{¶29} Williams’ first, second, third, and seventh assignments of error are overruled, and
his fifth assignment of error is moot. Williams’ fourth and sixth assignments of error are
sustained. The judgment of the Summit County Court of Common Pleas is affirmed in part,
reversed in part, and the cause is remanded for further proceedings consistent with the foregoing
opinion.
Judgment affirmed in part,
reversed in part,
and cause remanded.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed equally to both parties.
DONNA J. CARR
FOR THE COURT
WHITMORE, P. J.
CONCURS.
BELFANCE, J.
CONCURRING.
{¶30} I concur with most of the majority opinion. However, I do not join in the dicta in
¶ 20 and ¶ 25. Because Mr. Williams passed away after the trial court had ordered restitution, it
had not considered the effect his death had on its ability to impose the restitution, and the trial
court should consider this issue in the first instance.
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APPEARANCES:
NEIL P. AGARWAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.