State v. Bolin , 2022 Ohio 3375 ( 2022 )

[Cite as State v. Bolin, 2022-Ohio-3375.]
Released: 9/13/22
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY
STATE OF OHIO, :
:
Plaintiff-Appellee, : Case No. 21CA14
:
v. :
: DECISION AND
MICHAEL BOLIN, : JUDGMENT ENTRY
:
Defendant-Appellant. :
_____________________________________________________________
APPEARANCES:
Timothy Young, Ohio Public Defender, and R. Jessica Manungo, Assistant State
Public Defender, Columbus, Ohio, for Appellant.
Lisa Eliason, Athens City Law Director, and Justin E. Townley, Athens City
Prosecutor, Athens, Ohio, for Appellee.
_____________________________________________________________
Smith, P.J.
{¶1} Appellant, Michael Bolin, appeals the judgment of the Athens
Municipal Court convicting him of one count of the sale of beer to an underage
person, a first-degree misdemeanor in violation of R.C. 4301.69(A). On appeal,
Bolin raises two assignments of error contending 1) that the trial court abused its
discretion when it denied his motion to waive jury costs and imposed all court
costs; and 2) that he received ineffective assistance of counsel when trial counsel
failed to move for waiver of all court costs at sentencing. For the reasons that
Athens App. No. 21CA14 2
follow, we find no merit to either of Bolin’s assignments of error. Accordingly,
the judgment of the trial court is affirmed.
FACTS
{¶2} Bolin was convicted by a jury on August 26, 2021, of one count of the
sale of beer to an underaged person, a first-degree misdemeanor in violation of
R.C. 4301.69(A). His conviction stemmed from an incident that occurred while
Bolin was working the register at the Atheneon Carry Out, which Bolin owned.
The record before us indicates that Bolin was indigent at the time of trial, having
lost his store as a result of the incident. He was also apparently unemployed and
only received $400.00 of Social Security Disability Income at the time of trial.
Further, he was involved in bankruptcy proceedings and anticipated future civil
repercussions as a result of the incident. Despite this and despite defense counsel’s
request for the imposition of the mandatory minimum fine and waiver of jury
costs, the trial court denied the request for waiver of the jury costs and instead
imposed not only jury costs, but all court costs. The trial court also imposed the
mandatory minimum fine of $500.00 and sentenced Bolin to a 30-day suspended
jail sentence. It is from this conviction and sentence that Bolin now brings his
timely appeal, setting forth two assignments of error for our review.
ASSIGNMENTS OF ERROR
I. THE TRIAL COURT ABUSED ITS DISCRETION
WHEN IT DENIED MR. BOLIN’S MOTION TO
Athens App. No. 21CA14 3
WAIVE JURY COSTS AND IMPOSED ALL COURT
COSTS.
II. MR. BOLIN RECEIVED INEFFECTIVE ASSISTANCE
OF COUNSEL IN VIOLATION OF THE SIXTH
AMENDMENT TO THE UNITED STATES
CONSTITUTION WHEN TRIAL COUNSEL FAILED
TO MOVE FOR WAIVER OF ALL COURT COSTS AT
SENTENCING.
ASSIGNMENT OF ERROR I
{¶3} In his first assignment of error, Bolin contends that the trial court
abused its discretion when it denied his motion to waive jury costs and instead
imposed all court costs. He argues that the trial court abused its discretion because
he was indigent and he had “significant ongoing financial challenges.” The State
responds by arguing that the court heard arguments from the defense and still
determined costs were appropriate. The State contends that the trial court’s
“actions were in line with R.C. 2947.23(A) and that it did not abuse it’s discretion
by refusing to waive the jury costs, nor in imposing all court costs.”
{¶4} R.C. 2947.23 governs “Judgment for costs and jury fees; community
service upon failure to pay” and provides in section (A)(1)(a) as follows:
In all criminal cases, including violations of ordinances, the
judge or magistrate shall include in the sentence the costs of
prosecution, including any costs of prosecution under section
2947.231 of the Revised Code, and render a judgment against the
defendant for such costs. (Emphasis added).
Athens App. No. 21CA14 4
{¶5} However, effective March 22, 2013, the General Assembly enacted
R.C. 2947.23(C), which states that a trial court “retains jurisdiction to waive,
suspend, or modify the payment of the costs of prosecution * * * at the time of
sentencing or at any time thereafter.” 2012 Sub.H.B. No. 247.
{¶6} Thus, although R.C. 2947.23 mandates trial courts to impose costs in
all criminal cases, it also gives trial courts discretion to waive, suspend, or modify
the payment of costs, either at sentencing or at any time thereafter. Therefore, a
court's decision concerning a waiver of costs is reviewed under an abuse of
discretion standard. State v. Braden, 158 Ohio St.3d 462, 2019-Ohio-4202, 145
N.E.3d 235, ¶ 21. To find an abuse of discretion, an appellate court must
determine the trial court's decision is unreasonable, arbitrary, or unconscionable.
See Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶7} In State v. Taylor, 161 N.E.3d 486, 2020-Ohio-3514, 163 N.E.3d 486,
the Supreme Court of Ohio recently addressed what trial courts must take into
consideration when confronted with a request for waiver of court costs, as well as
what constitutes an abuse of discretion in this particular area of the law. In Taylor,
the Court held that a trial court is not required to consider a defendant's ability to
pay when it rules on a motion to waive, suspend, or modify court costs. Id. at ¶ 1.
In reaching its decision, the Court observed as follows:
By statute, the imposition of court costs on all convicted
defendants is mandatory. R.C. 2947.23(A)(1)(a) reads: “In all
Athens App. No. 21CA14 5
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.”
(Emphasis added.) As we have explained, this strict statutory
language “requires a court to impose costs against all convicted
defendants,” indigent or not. (Emphasis sic). State v. White, 103
Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 8.
But R.C. 2947.23(C) gives a trial court continuing jurisdiction to
“waive, suspend, or modify the payment of the costs of
prosecution * * * at the time of sentencing or at any time
thereafter.” So, while the court must impose costs, it may also
waive, suspend, or modify them. “[W]aiver of costs is permitted
- but not required - if the defendant is indigent.” White at ¶ 14.
State v. Taylor, supra, at ¶ 6-8.
{¶8} The Taylor Court went on to explain as follows regarding whether trial
courts must consider a defendant’s ability to pay what constitutes an abuse of
discretion in ruling on a motion to waive court costs:
* * * It is a basic principle of our legal system that a trial court's
decision must not be arbitrary and cannot be based on
considerations wholly unrelated to the decision it is tasked with
making. A trial court could not, for instance, deny a motion to
waive costs based on the flip of a coin or the color of a
defendant's hair or because it is Tuesday. Neither could a court
adopt a standing order to reject all such motions, as that would
be opting out of any sort of rational assessment altogether.
Statutes often give broad discretion that are reasonable under the
circumstances. But to require that a specific criterion be applied
in every case, there must be statutory support. And there just
isn't any here. Thus, we hold that a trial court is not required to
consider the defendant's ability to pay in assessing a motion to
waive, suspend, or modify court costs under R.C. 2947.23(C),
though it is permitted to do so.
Athens App. No. 21CA14 6
Taylor at ¶ 16.
{¶9} Here, defense counsel requested that the trial court impose the
mandatory minimum fine of $500.00 and also asked the court to waive the jury
costs based upon Bolin’s “financial condition.” Defense counsel informed the
court on the record that the mandatory minimum fine would be “significant” for
Bolin because he had lost his store after the incident and he was “currently in
bankruptcy.” Defense counsel further stated that “there’s going to be civil
repercussions that [Bolin] is going to have to face as a result of this as well.” Bolin
further argues on appeal that his indigency was demonstrated in the record below
and that his affidavit of indigency indicated he was unemployed and only received
Social Security Disability Income in the amount of $400.00 per month. Bolin also
points out that his affidavit of indigency provided that his monthly expenses
totaled $345.00 a month, leaving him with only $55.00 of disposable income each
month.
{¶10} Although the trial court imposed the mandatory minimum fine, it
assessed court costs, including jury costs, against Bolin. In doing so, the trial court
noted as follows:
Court costs, including the costs of the jury, are assessed to the
Defendant. Now court costs are civil in nature, so if Mr. Bolin
has declared bankruptcy personally, that needs to be dealt with
in bankruptcy court. If he has not, or if it’s not dealt with in
bankruptcy court, the clerk’s office is glad to accept monthly
payments.
Athens App. No. 21CA14 7
{¶11} Thus, the record demonstrates that the trial court was aware of Bolin’s
financial condition and although it was not required to consider his ability to pay,
the trial court appears to have considered it by virtue of its statements regarding the
filing of bankruptcy and the option to make payments. “R.C. 2947.23(C) ‘give[s]
broad discretion to [trial] courts to make decisions that are reasonable under the
circumstances.’ ” State v. Phillips, 4th Dist. Scioto No. 20CA3905, 2022-Ohio-
478, ¶ 13, quoting Taylor, supra, at ¶ 7. Furthermore, as set forth above, the
Supreme Court of Ohio has recently reaffirmed that “ ‘[w]aiver of costs is
permitted—but not required—if the defendant is indigent.’ ” Taylor, supra, at ¶ 7,
quoting State v. White, supra, at ¶ 14.
{¶12} There is no indication from the record that the trial court’s decision
was based on anything arbitrary, as discussed in Taylor, and in light of the fact that
there are no specific factors that a trial court must consider, we cannot conclude
that the trial court’s imposition of court costs, including jury costs, was
unreasonable or constituted an abuse of discretion. See Taylor, supra, at ¶ 8 (“The
statutory language provides no explicit criteria that a court should use in deciding
whether to waive, suspend, or modify costs”). Accordingly, Bolin’s first
assignment of error lack merit and is overruled.
ASSIGNMENT OF ERROR II
Athens App. No. 21CA14 8
{¶13} In his second assignment of error, Bolin contends that he received
ineffective assistance of counsel in violation of the Sixth Amendment to the United
States Constitution when his trial counsel failed to move for waiver of all court
costs at sentencing. More specifically, Bolin argues that his trial counsel was
ineffective for failing to request waiver of court costs in light of his indigence. In
response, the State argues that the trial court was advised of Bolin’s indigency
status and therefore Bolin was not prejudiced by his counsel’s failure to move for
waiver of court costs. The State further argues that Bolin cannot demonstrate he
was prejudiced by counsel’s failure to request waiver of court costs because this
Court has held that even if we assume counsel was deficient in failing to make the
request, prejudice cannot be shown under such circumstances because defendants
can now move for waiver of court costs at any time, not just at sentencing.
{¶14} The Sixth Amendment to the United States Constitution, and Article
I, Section 10 of the Ohio Constitution, provide that defendants in all criminal
proceedings shall have the assistance of counsel for their defense. The United
States Supreme Court has generally interpreted this provision to mean that a
criminal defendant is entitled to the “reasonably effective assistance” of counsel.
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
To establish a claim of ineffective assistance of counsel, a defendant must show
that (1) counsel's performance was deficient, and (2) the deficient performance
Athens App. No. 21CA14 9
prejudiced the defense so as to deprive the defendant of a fair trial. Id. at 687. To
show deficient performance, a defendant must prove that counsel's performance
fell below an objective level of reasonable representation. See State v. Conway,
109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95. Moreover, courts
need not analyze both prongs of the Strickland test if a claim can be resolved under
only one prong. See State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52(2000); State v. Clark, 4th Dist. Pike No. 02CA684, 2003-Ohio-1707, ¶ 17; State v.
Blair, 4th Dist. Athens No. 18CA24, 2019-Ohio-2768, ¶ 58.
{¶15} When determining whether counsel's representation amounts to
deficient performance, “a court must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable professional assistance.”
Strickland at 689. Because a properly licensed attorney is presumed to execute his
duties in an ethical and competent manner, State v. Taylor, 4th Dist. Washington
No. 07CA11, 2008-Ohio-482, ¶ 10, a defendant bears the burden to show
ineffectiveness by demonstrating that counsel's errors were “so serious” that
counsel failed to function “as the ‘counsel’ guaranteed * * * by the Sixth
Amendment.” Strickland at 687.
{¶16} We initially note, with respect to the State’s argument that even
assuming counsel’s performance was deficient there can be no demonstration of
prejudice in light of the fact that Bolin can still move for suspension of court costs,
Athens App. No. 21CA14 10
that such argument has been rejected by the Supreme Court of Ohio. Although the
State relies upon this Court’s prior reasoning in State v. Farnese, 4th Dist.
Washington No. 15CA11, 2015-Ohio-3533, the Supreme Court of Ohio has since
clarified that such reasoning is misplaced. State v. Davis, supra, at ¶ 14 (An
appellate court’s reliance on the fact that a defendant may move for a waiver of
costs at a later time under R.C. 2947.23(C) is improper”). Thus, despite the fact
that this Court previously resorted to this line of reasoning, it is clear that such
reasoning is no longer appropriate.
{¶17} We nevertheless find that Bolin’s arguments on appeal fail. As
discussed under our analysis of Bolin’s first assignment of error, R.C. 2947.23
provides for costs to be included in a criminal sentence. In all criminal cases a
judge must include in the sentence the costs of prosecution and render a judgment
against the defendant for such costs, even if the defendant is indigent. R.C.
2947.23(A)(1)(a). However, a trial court retains jurisdiction to waive, suspend, or
modify the payment of the costs “at the time of sentencing or at any time
thereafter.” R.C. 2947.23(C).
{¶18} In his brief, Bolin concedes that a prior determination of indigency
alone “does not rise to the level of creating a reasonable probability that the trial
court would have waived all costs.” However, he claims that because the record
demonstrates his indigency and because he was not employed, had lost his store,
Athens App. No. 21CA14 11
was only receiving Social Security Disability Income of only $400.00 with only
$55.00 of disposable income each month, and was in bankruptcy proceedings, that
his trial counsel was ineffective for failing to request waiver of all court costs,
rather than just jury costs. Bolin points to the fact that the trial court imposed only
the mandatory minimum fine in response to defense counsel’s request and argues
that this indicates the trial court would have been amenable to a request for waiver
of all court costs. However, in making this argument, Bolin ignores the fact that
the trial court imposed jury costs despite defense counsel’s request for a waiver.
{¶19} Common sense dictates that if the trial court denied the request for
waiver of the jury costs, it would have also denied the request for waiver of all
court costs. “ ‘The statutes applicable to financial sanctions and fines require a
trial court to consider a defendant's present and future ability to pay while the
statute applicable to costs, R.C. 2947.23, does not.’ ” State v. Phillips, supra, at
¶ 12, quoting State v. Babyak, 12th Dist. Madison No. CA2019-08-025, 2020-
Ohio-325, ¶ 12-13. Thus, while trial courts must consider a defendant’s ability to
pay when imposing fines, as set forth above, there is no such requirement when
imposing court costs. Moreover, “counsel is not required to pursue a vain act.”
State v. Wilson, 4th Dist. Lawrence No. 16CA12, 2018-Ohio-2700, ¶ 57, citing
State v. Fouts, 4th Dist. Washington No. 15CA25, 2016-Ohio-1104, ¶ 75. Based
upon the record before us, we cannot conclude that trial counsel’s performance was
Athens App. No. 21CA14 12
either deficient or that it resulted in prejudice. Accordingly, we find no merit to
Bolin’s second assignment of error and it is overruled.
{¶20} Having found no merit to either of Bolin’s assignments of error, the
judgment of the trial court is affirmed.
JUDGMENT AFFIRMED.
Athens App. No. 21CA14 13
JUDGMENT ENTRY
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to
Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Athens Municipal Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR
THIS COURT, it is temporarily continued for a period not to exceed 60 days upon
the bail previously posted. The purpose of a continued stay is to allow Appellant
to file with the Supreme Court of Ohio an application for a stay during the
pendency of proceedings in that court. If a stay is continued by this entry, it will
terminate at the earlier of the expiration of the 60-day period, or the failure of the
Appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day
appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal
prior to expiration of 60 days, the stay will terminate as of the date of such
dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Hess, J. and Wilkin, J. concur in Judgment and Opinion.
For the Court,
_____________________________
Jason P. Smith
Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.