State v. Fain

Dinkelacker, Judge.

{¶ 1} An application to reopen an appeal must be granted if the applicant establishes “a ‘genuine issue’ as to whether he has a ‘colorable claim’ of ineffective assistance of counsel on appeal.”¹ The United States Supreme Court’s decision in Strickland v. Washington² provides the standard for determining whether the applicant was denied the effective assistance of appellate counsel.³ The applicant must prove that “his counsel [performed] deficiently] [in] failing to raise the issues he now presents and that there was a reasonable probability of success had [counsel] presented those claims on appeal.”⁴

{¶2} In his application to reopen these appeals, defendant-appellant Sheldon Fain contends that he was denied the effective assistance of counsel because his appellate counsel failed to assign as error the sufficiency of the evidence to support his convictions. Appellate counsel submitted Fain’s appeals consistent with the procedure set forth in Anders v. California.⁵ In affirming Fain’s convictions, we necessarily concluded that Fain had entered his guilty pleas knowingly, voluntarily, and intelligently. By his knowing, voluntary, and intelligent guilty pleas, Fain waived his proposed challenge to the sufficiency of the evidence to support his convictions.⁶ Therefore, appellate counsel was not ineffective in failing to assign this matter as error on appeal.

{¶ 3} Nor can appellate counsel be said to have been ineffective in failing to assign as error trial counsel’s effectiveness in “failing to investigate or to submit reversible errors which would have rendered a different outcome.” Fain does not specify what trial counsel’s investigation would have disclosed or what “reversible errors” his trial counsel neglected to “submit.” And the record does not otherwise demonstrate a reasonable probability of success had appellate counsel advanced this assignment of error on appeal.⁷

{¶ 4} Finally, Fain argues that appellate counsel was ineffective for failing to argue that his sentence was “contrary to law.” Fain was convicted of trafficking in cocaine and having a weapon under a disability and was given “agreed” sentences. As part of his sentences, Fain’s driver’s license was suspended for both offenses. But R.C. 2923.13 did not authorize the trial court to suspend Fain’s driver’s license as part of his sentence for having a weapon while under a disability.

{¶ 5} Since the trial court improperly imposed a three-year driver’s license suspension for that offense, that portion of the sentence was contrary to law. Accordingly, Fain’s motion to reopen his appeals has merit. And since the suspension was contrary to law,⁸ we vacate the driver’s license suspension imposed by the trial court for the weapons-under-disability conviction. This ruling does not affect the three-year suspension that the trial court properly imposed for Fain’s drug-trafficking conviction.

{¶ 6} And removal of the suspension is Fain’s only remedy — he is not entitled to a new sentencing hearing. A defendant is entitled to a new sentencing hearing if the sentence he received is void.⁹ A sentence is void when it does not contain a statutorily mandated term, like postrelease-control notification.¹⁰ But a driver’s license suspension is not a “statutorily mandated term” akin to postrelease control.

{¶ 7} The Ohio Supreme Court has recently emphasized the fact that there are limited circumstances under which a sentence will be considered void. In State v. Joseph, the court addressed the issue whether the failure to inform a defendant of mandatory court costs renders a sentence void in the way it would if there is an omission related to postrelease control.¹¹ It does not. The court noted that “[t]he civil nature of the imposition of court costs does not create the taint on the criminal sentence that the failure to inform a defendant of postrelease control does. Nor does the failure to inform a defendant orally of court costs affect another branch of government. It affects only the court and the defendant.”¹²

{¶ 8} In this case, the imposition of a duplicative driver’s license suspension did not create the same concerns about the sentence that a failure to inform the defendant of postrelease control would have. Nor does it affect another branch of the government. The Bureau of Motor Vehicles will still be suspending Fain’s license for three years as a result of the trafficking conviction.

{¶ 9} This conclusion is buttressed by the Ohio Supreme Court’s most recent case to address the issue. State v. Anthony involved one count of attempted felonious assault and one count of having a weapon while under a disability.¹³ Anthony was sentenced to seven years in prison and given a driver’s license suspension.¹⁴ The Supreme Court held that the suspension was not proper, because the use of a motor vehicle was not integral to the crime itself.¹⁵ The court concluded by stating that “R.C. 4507.16(A)(1)(b) was improperly invoked and that the court of appeals erred in upholding the revocation of Anthony’s driver’s license. Accordingly, we reverse the decision of the court of appeals and reinstate appellant’s driver’s license.”¹⁶

{¶ 10} In conclusion^ we grant Fain’s motion to reopen his appeal and modify his sentence for the weapon-under-a-disability conviction, striking the three-year driver’s license suspension. Having so modified the sentence, we affirm the judgment of the trial court.

Judgment affirmed as modified.

Hendon, J., concurs. Cunningham, P.J., concurs in part and dissents in part.

1 . State v. Spivey (1998), 84 Ohio St.3d 24, 25, 701 N.E.2d 696; App.R. 26(B)(5).

2 . Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.

3 . See State v. Reed (1996), 74 Ohio St.3d 534, 535, 660 N.E.2d 456.

4 . State v. Sheppard (2001), 91 Ohio St.3d 329, 330, 744 N.E.2d 770, citing State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph three of the syllabus.

5 . Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493.

6 . See State v. Wilson (1979), 58 Ohio St.2d 52, 12 O.O.3d 51, 388 N.E.2d 745, paragraph one of the syllabus.

7 . See Sheppard, 91 Ohio St.3d at 330, 744 N.E.2d 770, citing Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph three of the syllabus.

8 . See R.C. 2953.08(G)(2)(b).

9 . See State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250, 868 N.E.2d 961, at ¶ 10, citing State v. Jordan, 104 Ohio St.3d 21, 2004-Ohio-6085, 817 N.E.2d 864, at ¶ 23.

10 . Id.

11 . State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, 926 N.E.2d 278.

12 . Id. at ¶ 21, quoting State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, ¶ 15.

13 . State v. Anthony, 96 Ohio St.3d 173, 2002-Ohio-4008, 772 N.E.2d 1167.

14 . Id. at ¶ 2.

15 . Id. at ¶ 18.

16 . (Emphasis added.) Id. at V 19.