State v. Griffin , 2021 Ohio 3137 ( 2021 )

[Cite as State v. Griffin, 2021-Ohio-3137.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-20-081
Appellee Trial Court No. 2019CR0428
v.
James Griffin DECISION AND JUDGMENT
Appellant Decided: September 10, 2021
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Assistant Prosecuting Attorney, for appellee.
Autumn D. Adams, for appellant.
*****
MAYLE, J.
{¶ 1} Defendant-appellant, James Griffin, appeals the October 26, 2020 judgment
of the Wood County Court of Common Pleas, convicting him of abduction, felonious
assault, obstructing official business, and attempted rape, and sentencing him to an
aggregate term of 17 years in prison, five years’ post-release control, the costs of
prosecution, and the cost of obtaining a presentence evaluation. For the following
reasons, we affirm the trial court judgment.
I. Background
{¶ 2} James Griffin was charged in a 12-count indictment with the following
crimes: (1) two counts of rape, violations of R.C. 2907.02(A)(2) and (B), first-degree
felonies (Counts 1 and 11); (2) three counts of felonious assault, violations of R.C.
2903.11(A)(1) and (D)(1)(a), second-degree felonies (Counts 2, 7, and 12); (3) two
counts of abduction, violations of R.C. 2905.02(A)(2) and (C), third-degree felonies
(Counts 3 and 8); (4) two counts of disrupting public services, violations of R.C.
2909.01(A)(1) and (C), fourth-degree felonies (Counts 4 and 9); (5) two counts of
criminal damaging or endangering, violations of R.C. 2909.06(A)(1) and (B), second-
degree misdemeanors (Counts 5 and 6); and (6) obstructing official business, a violation
of R.C. 2921.31(A) and (B), a second-degree misdemeanor (Count 10). Counts 1 to 6
arose from the November 29, 2017 attack of Victim No. 1; Counts 7 to 10 arose from the
January 20, 2019 attack of Victim No. 2; Counts 11 and 12 arose from the March 2, 2019
attack of Victim No. 3.
{¶ 3} On September 11, 2020, Griffin entered a plea of guilty to Count 3,
abduction; Count 7, felonious assault; Count 10, obstructing official business; and
amended Count 11, attempted rape, a violation of R.C. 2923.02 and 2907.02(A)(2) and
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(B), a second-degree felony. The trial court made a finding of guilty, dismissed the
remaining counts, ordered a presentence investigation, and continued the matter for
sentencing.
{¶ 4} Sentencing took place on October 23, 2020. Griffin was classified a Tier III
sexual offender. The court imposed a term of imprisonment of 36 months on Count 3,
seven years on Count 7, 90 days on Count 10, and seven years on Count 11. It ordered
Griffin to serve the sentences imposed on Counts 3, 7, and 11 consecutively to one
another; it ordered him to serve the sentence imposed on Count 10 concurrently with the
sentences imposed on Counts 3, 7, and 11. The court imposed a mandatory term of five
years’ postrelease control. It also ordered Griffin to pay the costs of prosecution and
“assessed as costs” fees from Court Diagnostic and Treatment Center for a presentence
evaluation; those fees totaled $1,021.
{¶ 5} Griffin appealed. He assigns the following errors for our review:
Assignment of Error No. 1:
Trial Counsel rendered ineffective assistance of counsel by allowing
Appellant to enter a plea following five (5) hours of negotiations at the
Courthouse.
Assignment of Error No. 2:
The Trial Court committed plain error by allowing, and then relying
upon, non-indicted, alleged behavior in justifying its extremely lengthy
prison sentence, and Appellant received ineffective assistance of counsel
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because Trial Counsel failed to object to the victim’s impact statement
detailing non-indicted, alleged behavior and failed to object when the Trial
Court used those inadmissible statements to justify the extremely long
prison sentence.
Assignment of Error No. 3:
The Trial Court failed to follow the principles and purposes of
sentencing.
Assignment of Error No. 4:
The Trial Court abused its discretion by assigning Appellant the cost
of the presentence evaluation from Court Diagnostics and Treatment Center
and “all costs of prosecution” without first inquiring as to his ability to pay.
II. Law and Analysis
{¶ 6} Griffin argues in his first assignment of error that trial counsel was
ineffective for allowing him to enter a plea after five hours of negotiations at the
courthouse. He argues in his second assignment of error that the trial court erred by
relying on unindicted conduct described in the victim impact statements as support in
fashioning Griffin’s prison sentence, and trial counsel was ineffective for failing to
object. In his third assignment of error, Griffin argues that the trial court failed to follow
the purposes and principles of sentencing in imposing Griffin’s sentence. And in his
fourth assignment of error, he argues that the trial court erred in imposing the costs of
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prosecution and the cost of obtaining a presentence evaluation without first considering
whether Griffin is able to pay.
{¶ 7} We address each of these assignments in turn.
A. Ineffective Assistance of Counsel
{¶ 8} In his first assignment of error, Griffin argues that trial counsel rendered
ineffective assistance by allowing him to enter a plea after participating in five hours of
plea negotiations. He claims that he arrived at the courthouse prepared only for a pretrial,
but was “rushed into a plea, after several hours of sitting at the Courthouse while the
lawyers talked around him.” Griffin maintains that it is clear from the record that he did
not have a “thorough understanding of what was to occur during the plea hearing,” as
evidenced by the questions he asked the trial court and the fact that he and his attorney
engaged in off-the-record discussions during the plea colloquy. He requests that his
conviction be vacated and the matter remanded to the trial court for further proceedings.
{¶ 9} The state responds that Griffin stated during the plea colloquy that he
understood the strictures of the guilty plea and was satisfied with counsel’s
representation. It explains that plea negotiations lasted over a year, Griffin ultimately
entered a plea to only four of 12 counts including no first-degree felonies, and his plea
substantially reduced the length of his potential prison sentence.
{¶ 10} In order to prevail on a claim of ineffective assistance of counsel, an
appellant must show that counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial court cannot be relied on as having produced a just
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result. State v. Shuttlesworth, 104 Ohio App.3d 281, 287, 661 N.E.2d 817 (7th
Dist.1995). To establish ineffective assistance of counsel, an appellant must show “(1)
deficient performance of 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.” State v. Hale, 119
Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204, citing Strickland v.
Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” State v. Sanders, 94 Ohio St.3d 150, 151, 761 N.E.2d 18 (2002).
{¶ 11} “Because a no-contest or guilty plea involves a waiver of constitutional
rights, a defendant’s decision to enter a plea must be knowing, intelligent, and
voluntary.” (Citations omitted.) State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765,
164 N.E.3d 286, ¶ 10. “[T]he issue of whether a defendant’s plea has been entered
knowingly and voluntarily is a threshold inquiry into the constitutional viability of
counsel’s assistance in a defendant’s guilty plea.” State v. Kiss, 6th Dist. Lucas No. L-
08-1379, 2010-Ohio-940, ¶ 10.
{¶ 12} Crim.R. 11(C) sets forth the procedure that a trial court must follow before
accepting a plea of guilty to a felony charge. State v. Brinkman, Slip Opinion No. 2021-
Ohio-2473, ¶ 11. It requires the court to explain—and ensure that the defendant
understands—the nature of the charges, the maximum penalties involved, the effect of his
plea, and the constitutional rights he is waiving by entering a plea. Crim.R. 11(C).
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{¶ 13} Griffin does not argue that the trial court failed to make any of the required
advisements under Crim.R. 11(C). Indeed, all these things were explained to Griffin at
the plea hearing, and he acknowledged his understanding. Rather, he complains that he
entered his plea after prolonged negotiations, was rushed into a plea, and still had
questions even after the lengthy negotiations.
{¶ 14} The fact that questions arise during a plea colloquy does not mean that the
defendant was not adequately counseled before entering his plea. See State v. Sacco, 5th
Dist. Stark No. 2007CA0096, 2008-Ohio-637, ¶ 20 (finding that plea was rendered
knowingly and voluntarily even though appellant asked several questions and consulted
with his attorney off the record multiple times). And here, Griffin had very few
questions, they were answered by the trial court or by counsel, and Griffin expressed his
understanding of the advisements after his questions were answered. Griffin also
responded affirmatively when the court asked him if he was satisfied with the advice and
counsel of his attorney. In fact, at a December 20, 2019 hearing, Griffin told the court:
“[Defense counsel] is amazing, I recommend him to everybody. He’s very good at
explaining things very thoroughly * * *.”
{¶ 15} As for the length of the plea negotiations, Griffin argues, on one hand, that
he was “rushed” into a plea, yet complains, on the other hand, about the length of the
five-hour plea negotiations. First, five hours of negotiations does not strike this court as
being an excessive amount of time; it’s less than an average workday. Additionally, the
record demonstrates that negotiations actually spanned several months (starting as early
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as November 2019), and the plea agreement was finally reached the Friday before trial.
Nowhere in the record did Griffin voice that he needed additional time to consider his
options or that he had been worn down by the length of negotiations. We conclude,
therefore, that trial counsel was not ineffective in allowing Griffin to enter a guilty plea.
See State v. Aponte, 10th Dist. Franklin No. 99AP-695, 2000 WL 256195, *3 (Mar. 9,
2000) (“Given the extensive negotiations leading to appellant’s pleas, his attorney’s
statements of lengthy conversations with his client, and appellant’s failure to claim he did
not understand the charges, appellant has failed to show his counsel was ineffective or
that he was prejudiced.”).
We find Griffin’s first assignment of error not well-taken.
B. Reliance on Unindicted Conduct
{¶ 16} In his second assignment of error, Griffin argues that the trial court
improperly relied on unindicted bad acts in fashioning his prison sentence, and his
attorney was ineffective in failing to object to the victim impact statements that detailed
that conduct. Griffin argues that this was plain error requiring reversal of his conviction.
{¶ 17} The state denies that the length of Griffin’s sentence was the result of the
trial court’s consideration of unindicted conduct. In any event, it points out, this court
has recognized that a sentencing court may consider dismissed charges in sentencing an
offender unless the plea agreement provides otherwise.
{¶ 18} After listening to the victim impact statements, listening to Griffin’s
statement, and reviewing Griffin’s PSI, the trial court was struck by Griffin’s conduct in
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attempting to strangle two of his victims, the fact that Griffin’s offenses were facilitated
by his relationships with the victims, the physical and psychological harm to the victims,
Griffin’s lack of empathy, and Griffin’s focus on the harm that he had inflicted on himself
by committing the offenses. But the court also commented that “November of 2017
wasn’t the first time [Griffin] had a situation where [he] had strangled somebody. [He]
had another situation at another place that was never charged.”
{¶ 19} In State v. Lanning, 6th Dist. Ottawa No. OT-19-024, 2020-Ohio-2863, ¶
17, we acknowledged that “uncharged crimes and charges dismissed pursuant to plea
agreements may be considered at sentencing.” See State v. Skaggs, 4th Dist. Gallia No.
16CA19, 2017-Ohio-7368, ¶ 15 (additional citations omitted) (uncharged crimes are part
of the defendant’s social history and may be considered); State v. France, 5th Dist.
Richland No. 15CA19, 2015-Ohio-4930, ¶ 20 (“Ohio Courts have continually
held uncharged crimes and dismissed charges pursuant to plea agreements may be
considered by courts as factors during sentencing”). So long as they are not the sole basis
for the sentence, a court may consider a defendant’s unindicted acts. State v. Goodluck,
6th Dist. Lucas No. L-16-1027, 2017-Ohio-778, ¶ 11.
{¶ 20} Here, the trial court did not impose its sentence based solely on Griffin’s
unindicted conduct. The prior attempted strangulation was but one of many factors that
the trial court considered in fashioning Griffin’s sentence. The trial court did not err,
therefore, in taking into account uncharged conduct, and trial counsel was not ineffective
for failing to object.
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{¶ 21} Accordingly, we find Griffin’s second assignment of error not well-taken.
C. Principles and Purposes of Sentencing
{¶ 22} In his third assignment of error, Griffin argues that the trial court failed to
consider all the mitigating factors when it imposed his prison sentence. Specifically, he
insists that his expressions of remorse warranted a more lenient sentence.
{¶ 23} The state responds that the trial court considered the principles and
purposes of sentencing and explained the rationale for the sentence it imposed. It
emphasizes that an appellate court is not authorized to independently weigh the evidence
and substitute its judgment for that of the trial court concerning the sentence that best
reflects compliance with R.C. 2929.11 and 2929.12.
{¶ 24} We review a challenge to a felony sentence under R.C.
2953.08(G)(2). R.C. 2953.08(G)(2) provides that an appellate court may increase,
reduce, or otherwise modify a sentence or may vacate the sentence and remand the matter
to the sentencing court for resentencing if it clearly and convincingly finds either of the
following:
(a) That the record does not support the sentencing court’s findings
under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of
section 2929.14, or division (I) of section 2929.20 of the Revised Code,
whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
10.
{¶ 25} Griffin does not complain that his sentence violated R.C. 2953.08(G)(2)(a).
This leaves R.C. 2953.08(G)(2)(b) as the only basis for challenging his sentence. In State
v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 15, we recognized that a
sentence is not clearly and convincingly contrary to law for purposes of R.C.
2953.08(G)(2)(b) where the trial court has considered the purposes and principles of
sentencing in R.C. 2929.11 and the seriousness and recidivism factors listed in R.C.
2929.12, properly applied postrelease control, and sentenced the defendant within the
statutorily-permissible range.
{¶ 26} Importantly, however, the Ohio Supreme Court has made clear that
“neither R.C. 2929.11 nor 2929.12 requires a trial court to make any specific factual
findings on the record.” State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169
N.E.3d 649, ¶ 20. In fact, the trial court’s consideration of the factors set forth in R.C.
2929.11 and 2929.12 is presumed even on a silent record. State v. Clinton, 153 Ohio
St.3d 422, 2017-Ohio-9423, 108 N.E.3d 1; State v. Cyrus, 63 Ohio St.3d 164, 166, 586
N.E.2d 94, 95 (1992). An appellate court may not independently weigh the evidence and
substitute its judgment for that of the trial court regarding the appropriate sentence under
R.C. 2929.11 and 2929.12, nor may it modify or vacate a sentence under R.C.
2953.08(G)(2)(b) based on the lack of support in the record for the trial court’s findings
under those statutes. Jones at ¶ 39, 41-42.
{¶ 27} Here, the judgment entry and the transcript of the sentencing hearing make
clear that the court considered the purposes and principles of sentencing listed in
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R.C. 2929.11 and the seriousness and recidivism factors listed in R.C. 2929.12, properly
applied postrelease control, and imposed a prison sentence within the statutorily-
permissible range. The sentence is not clearly and convincingly contrary to law.
{¶ 28} We find Griffin’s third assignment of error not well-taken.
D. Costs
{¶ 29} The trial court informed Griffin at the sentencing hearing that it was
holding him responsible for “costs.” The judgment entry more particularly specifies that
the trial court was imposing (1) the “costs of prosecution,” and (2) “fees from Court
Diagnostic and Treatment Center for a presentence evaluation in the amount of One
Thousand Twenty One Dollars and 00/100 ($1,021.00),” which “shall be assessed as
costs to this case.” In his fourth assignment of error, Griffin argues that the trial court
erred in ordering him to pay these costs. He maintains that what constitutes “costs of
prosecution” is vague, there was no inquiry into his ability to pay, and the cost incurred in
obtaining a presentence investigation report is not a “cost of prosecution.”
{¶ 30} The state responds that R.C. 2947.23 requires the trial court to impose the
costs of prosecution and does not require it to consider the defendant’s ability to pay. It
maintains that although “court costs” and the “costs of prosecution” arise out of the same
statute—R.C. 2947.23—the fees for obtaining the presentence investigation report are a
“court cost,” not a “cost of prosecution.” It insists that like costs of prosecution, court
costs may be imposed without regard to the defendant’s ability to pay.
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{¶ 31} Our standard of review on this issue is whether the imposition of costs was
contrary to law. R.C. 2953.08(A)(4) and (G)(2)(b); State v. Farless, 6th Dist. Lucas Nos.
L-15-1060 and L-15-1061, 2016-Ohio-1571, ¶ 4, citing State v. Collins, 12th Dist.
Warren No. CA2014-11-135, 2015-Ohio-3710, 41 N.E.3d 899, ¶ 30 (“An appellate court
may not modify a financial sanction unless it finds by clear and convincing evidence that
it is not supported by the record or is contrary to law.”).
{¶ 32} It is well-established that under R.C. 2947.23(A)(1)(a), the trial court shall
render a judgment for the costs of prosecution, and the court need not consider whether
the defendant has the ability to pay such costs. State v. Rohda, 6th Dist. Fulton No. F-06-
007, 2006-Ohio-6291, ¶ 13. We, therefore, find no error in the imposition of the costs of
prosecution.1
{¶ 33} As for the “presentence investigation report,” the evaluation referred to by
the court in the October 26, 2020 judgment is not the PSI that was prepared by the
probation department following Griffin’s plea. Rather, it is a July 1, 2019 evaluation
ordered by the court on May 22, 2019, under R.C. 2951.03 and prepared by a clinical
psychologist.
{¶ 34} Under R.C. 2947.06(B), “[t]he court may appoint not more than two
psychologists or psychiatrists to make any reports concerning the defendant that the court
1
Griffin professes to be confused over whether “costs of prosecution” include “costs of
confinement and/or supervision and/or assigned counsel.” These costs are treated
separately from “costs of prosecution” under the Revised Code. See R.C. 2929.18(A)(5)
and 2941.51. Nothing in either the trial court judgment or the transcript of the sentencing
hearing suggests that these costs were imposed.
13.
requires for the purpose of determining the disposition of the case,” and “[e]ach
psychologist or psychiatrist shall receive a fee to be fixed by the court and taxed in the
costs of the case.” (Emphasis added.)
{¶ 35} We recognized in State v. Lincoln, 6th Dist. Lucas No. L-15-1080, 2016-
Ohio-1274, ¶ 11, that “[c]osts of prosecution mean court costs in a criminal case * * *.”
A court may tax as costs expenses that are “‘directly related to the court proceedings and
are identified by a specific statutory authorization.’” State v. Nicholas, 2020-Ohio-3478,
155 N.E.3d 304, ¶ 170 (2d Dist.), appeal allowed, 161 Ohio St.3d 1439, 2021-Ohio-375,
162 N.E.3d 822, quoting State v. Christy, 3d Dist. Wyandot No. 16-04-04, 2004-Ohio-
6963, ¶ 22. Examples of expenses expressly identified by a specific statutory
authorization include “‘fees of officers and court personnel [R.C. 2303.28], including
clerks of court [R.C. 2303.20]; jury fees [R.C. 2947.23]; witness fees [R.C. 2335.05];
interpreters fees [R.C. 2335.09]; and fees of psychologists and psychiatrists [R.C.
2947.06]; etc.’” (Emphasis added.) Id.{¶ 36} Here, the expense at issue is expressly authorized by R.C. 2947.06(B) and
is required to be taxed as costs in the case. Because court costs may be taxed without
first determining that the offender is able to pay, the trial court did not err in imposing the
costs of obtaining the July 1, 2019 evaluation.
{¶ 37} We find Griffin’s fourth assignment of error not well-taken.
14.
III. Conclusion
{¶ 38} Trial counsel was not ineffective in allowing Griffin to enter a plea after
five hours of negotiations. Negotiations spanned several months, the agreement was
finally reached the Friday before trial, and Griffin entered a plea to only four counts of a
12-count indictment—none of which were first-degree felonies—significantly reducing
the potential prison term to which he was exposed. We find Griffin’s first assignment of
error not well-taken.
{¶ 39} The trial court did not err in taking into account at sentencing Griffin’s
unindicted conduct. A court may consider a defendant’s unindicted acts when they are
not the sole basis for the sentence. Here, unindicted conduct was but one of many factors
considered by the trial court in fashioning Griffin’s sentence. We find Griffin’s second
assignment of error not well-taken.
{¶ 40} The judgment entry and the transcript of the sentencing hearing make clear
that the court considered the purposes and principles of sentencing listed in
R.C. 2929.11 and the seriousness and recidivism factors listed in R.C. 2929.12, properly
applied postrelease control, and imposed a prison sentence within the statutorily-
permissible range. We will not independently weigh the evidence and substitute our
judgment for that of the trial court regarding the appropriate sentence under
R.C. 2929.11 and 2929.12. We find Griffin’s third assignment of error not well-taken.
{¶ 41} The trial court did not err in imposing the costs of prosecution, including
the costs incurred in obtaining the July 1, 2019 evaluation from Court Diagnostic and
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Treatment Center. That expense is expressly authorized by R.C. 2947.06(B) and is
required to be taxed as costs in the case. We find Griffin’s fourth assignment of error not
well-taken.
{¶ 42} We affirm the October 26, 2020 judgment of the Wood County Court of
Common Pleas. Griffin is ordered to pay the costs of this appeal under App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Gene A. Zmuda, P.J. JUDGE
CONCUR.
____________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.
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