State v. Windon

[Cite as State v. Windon, 2021-Ohio-617.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
SANDUSKY COUNTY
State of Ohio Court of Appeals No. S-20-012
Appellee Trial Court No. 19 CR 306
v.
Jonathan W. Windon DECISION AND JUDGMENT
Appellant Decided: March 5, 2021
*****
Beth A. Tischler, Sandusky County Prosecuting Attorney, and
Alexis M. Hotz, Assistant Prosecuting Attorney, for appellee.
James H. Ellis III, for appellant.
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PIETRYKOWSKI, J.
{¶ 1} Appellant, Jonathan Windon, appeals the judgment of the Sandusky County
Court of Common Pleas, convicting him following a plea of guilty to one count of
aggravated possession of drugs, and sentencing him to serve 36 months in prison and
ordering him to pay a $5,000 fine. For the reasons that follow, we reverse.
I. Facts and Procedural Background
{¶ 2} On May 3, 2019, the Sandusky County Grand Jury returned a two-count
indictment charging appellant with one count of aggravated trafficking in drugs in
violation of R.C. 2925.03(A)(2) and (C)(1)(c), a felony of the third degree, and one count
of aggravated possession of drugs in violation of R.C. 2925.11(A) and (C)(1)(b), a felony
of the third degree.
{¶ 3} On August 27, 2019, appellant withdrew his initial plea of not guilty, and
entered a plea of guilty to the count of aggravated possession of drugs. In exchange, the
state agreed to dismiss the count of aggravated trafficking in drugs.1 Following a detailed
Crim.R. 11 plea colloquy, the trial court accepted appellant’s plea, found him guilty, and
continued the matter for the preparation of a presentence investigation report.
{¶ 4} Appellant failed to appear for the presentence investigation report.
Appellant also failed to appear for the initial sentencing hearing.
{¶ 5} Ultimately, a sentencing hearing was held on February 3, 2020. At the
sentencing hearing, the trial court heard statements from the state, appellant’s counsel,
and appellant. The court then described its consideration of the principles and purposes
of sentencing under R.C. 2929.11, and the seriousness and recidivism factors under R.C.
2929.12. Relevant here, as part of its consideration of the factors under R.C. 2929.12(D),
the trial court noted that the offense was committed while appellant was on bail or under
1
The state also agreed to dismiss the single count of possession of drugs separately
charged in case No. 19 CR 403.
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a community control sanction. Based upon its considerations, the trial court ordered
appellant to serve a 36-month prison sentence.
{¶ 6} Immediately after stating that it was imposing the 36-month prison sentence,
the trial court stated,
The Court is not going to impose a fine due to your indigency. You will be
required to pay the cost of – court costs of this case and your court
appointed attorney’s fees. With respect to the attorney’s fees, the Court’s
going to make the finding that you do have the ability or will have the
ability to pay on those given your employment history as outlined in the
P.S.I., and there’s really no reason why you can’t be employed once
released from prison.
At this point, the state interjected, and reminded the court of the mandatory nature of the
fine. The court responded, “Okay. Yeah, the Court is duty-bound to impose a – a
mandatory minimum fine of $5,000 * * * and you will be required to pay that.”
II. Assignments of Error
{¶ 7} Appellant has timely appealed his judgment of conviction, and now asserts
two assignments of error for our review:
1. Appellant was denied effective assistance of counsel in violation
of his Sixth Amendment rights.
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2. The court misapplied Revised Code 2929.12(D) by finding that
appellant had committed the offense while on community control, when he
was not.
III. Analysis
{¶ 8} In his first assignment of error, appellant argues that his trial counsel was
ineffective. To prevail on a claim of ineffective assistance of counsel, appellant must
satisfy the two-prong test developed in Strickland v. Washington, 466 U.S. 668, 687, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). That is, appellant must demonstrate that counsel’s
performance fell below an objective standard of reasonableness, and a reasonable
probability exists that, but for counsel’s error, the result of the proceedings would have
been different. Id. at 687-688, 694.
{¶ 9} Appellant specifies that trial counsel was ineffective for failing to file an
affidavit of indigency prior to sentencing for purposes of avoiding the mandatory fine
required by R.C. 2925.11(E)(1)(a) and 2929.18(B)(1).
{¶ 10} R.C. 2925.11(E)(1)(a) states that “[i]f the violation is a felony of the first,
second, or third degree, the court shall impose upon the offender the mandatory fine
specified for the offense under division (B)(1) of section 2929.18 of the Revised Code
unless, as specified in that division, the court determines that the offender is indigent.”
R.C. 2929.18(B)(1) provides,
For a first, second, or third degree felony violation of any provision
of Chapter 2925., 3719., or 4729. of the Revised Code, the sentencing court
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shall impose upon the offender a mandatory fine of at least one-half of, but
not more than, the maximum statutory fine amount authorized for the level
of the offense pursuant to division (A)(3) of this section. If an offender
alleges in an affidavit filed with the court prior to sentencing that the
offender is indigent and unable to pay the mandatory fine and if the court
determines the offender is an indigent person and is unable to pay the
mandatory fine described in this division, the court shall not impose the
mandatory fine upon the offender. (Emphasis added.)
Here, appellant was convicted of aggravated possession of drugs in violation of R.C.
2925.11(A) and (C)(1)(b), a felony of the third degree. Under R.C. 2929.18(A)(3), that
offense is subject to a fine of “not more than ten thousand dollars.” Thus, pursuant to
R.C. 2925.11(E)(1)(a) and 2929.18(B)(1), the court was required to impose a mandatory
fine of at least one-half of that amount, i.e., $5,000, unless the court determined that
appellant was indigent.
{¶ 11} “Courts in Ohio have held that the failure to file an affidavit alleging a
defendant’s indigency and inability to pay a mandatory fine only constitutes ineffective
assistance of counsel when the record shows a reasonable probability that the trial court
would have found the defendant indigent and unable to pay the fine had the affidavit been
filed.” State v. Gilmer, 6th Dist. Ottawa No. OT-01-015, 2002 WL 737060, *2 (Apr. 26,
2002); State v. Banks, 6th Dist. Wood Nos. WD-06-094, WD-06-095, 2007-Ohio-5311,
¶ 16 (“[T]he failure to file an affidavit of indigency prior to sentencing may constitute
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ineffective assistance of counsel in a case where the record establishes a reasonable
probability that the defendant would be found indigent thereby avoiding the obligation to
pay a mandatory fine.”); State v. Beard, 6th Dist. Sandusky No. S-19-018, 2020-Ohio-
3393, ¶ 7 (“Failure to file the R.C. 2929.18(B)(1) affidavit of indigency constitutes
ineffective assistance of counsel * * * if there is sufficient evidence in the record
demonstrating that the trial court would have found the offender was indigent and unable
to pay the fine.”).
{¶ 12} In this case, appellant argues that a reasonable probability exists that had
trial counsel filed the affidavit, appellant would have been found indigent. In support,
appellant cites the trial court’s original intention not to impose the mandatory fine—“The
Court is not going to impose a fine due to your indigency”—as contrasted with the
court’s determination that appellant would be able to pay his attorney’s fees. It was only
after the state interjected that the trial court reversed course and imposed the mandatory
fine, albeit without any further discussion on appellant’s indigency.
{¶ 13} Furthermore, appellant argues that the record supports a determination that
he is indigent. The sentencing hearing and presentence investigation report describe an
individual that has a serious and persistent drug problem. Although appellant did not
appear for his presentence investigation interviews, the report included information from
a prior presentence investigation report completed in 2013. As to his education, appellant
did not graduate from high school and has not obtained his G.E.D., and appellant
indicated at the plea hearing that he dropped out of school in the ninth grade. As to his
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employment history, the presentence investigation report indicates that appellant was
employed between 2000 and 2012 as a carpenter, but there is no indication in the record
of any lawful employment since that time. Finally, there is nothing in the record that
would demonstrate that appellant has any assets with which he could pay the fine.
{¶ 14} The state, on the other hand, argues that there is no evidence that would
show a reasonable probability that the trial court would have found appellant indigent had
an affidavit of indigency been filed. In so arguing, the state relies on the trial court’s
comment that “the Court’s going to make the finding that you do have the ability or will
have the ability to pay on those given your employment history as outlined in the P.S.I.,
and there’s really no reason why you can’t be employed once released from prison.” We
note, however, that this statement was made regarding appellant’s ability to pay his
attorney’s fees, and was made after the court expressly declined to impose the mandatory
fine because of appellant’s indigency. The state also relies on the fact that there is no
evidence in the record that appellant has any disabling physical condition that would
prevent him from working in the future.
{¶ 15} Both parties rely on several cases from this court addressing the issue of
whether trial counsel was ineffective for failing to file an affidavit of indigency.
{¶ 16} In Gilmer, 6th Dist. Ottawa No. OT-01-015, 2002 WL 737060 (Apr. 26,
2002), we held that trial counsel was ineffective for failing to submit an affidavit of
indigency. We reasoned that it was “reasonable to conclude that [Gilmer], age forty-
eight and cocaine dependent at the time of sentencing, facing nine years of incarceration
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and a $10,000 fine, could have proven himself indigent had he submitted a proper
affidavit of indigency.” Id. at *2.
{¶ 17} Contrasting Gilmer, in State v. Johnson, 6th Dist. Lucas No. L-03-1046,
2004-Ohio-2458, ¶ 47, we held that the defendant failed to demonstrate a reasonable
probability that the trial court would have found him indigent. In that case, there was
simply no information in the record about the defendant’s financial status except for his
statement at arraignment that he did not have the funds available to hire an attorney. Id.{¶ 18} Like Johnson, in Banks, 6th Dist. Wood Nos. WD-06-094, WD-06-095,
2007-Ohio-5311, at ¶ 17, we found that there was a lack of evidence to show an inability
to pay the mandatory fines. In that case, the only information in the record was that the
trial court had found the defendant to be “mentally sound” and “middle-age.” Id. There
was no evidence of any disabling physical condition that would prevent the defendant
from working. In addition, the defendant had earlier sought a continuance to retain
private legal counsel, stating that her family had recently come up with the money to hire
an attorney. Id. Thus, we held that the record did not establish a reasonable probability
that the defendant would have been found indigent at sentencing. Id. at ¶ 18.
{¶ 19} Finally, in Beard, 6th Dist. Sandusky No. S-19-018, 2020-Ohio-3393, at
¶ 9, we held that there was no evidence in the record that would indicate that the trial
court would have found the defendant indigent and unable to pay the mandatory fines.
There, the defendant was gainfully employed at the time of his arrest, was 35 years old,
had completed five years of college and was set to graduate after completing another
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29 hours, and was described as “bright,” “hard working,” “fair and honest,” and
“intelligent.” Id. at ¶ 8.
{¶ 20} Applying that precedent here, we find this case to be most analogous to
Gilmer. Unlike Johnson and Banks, the record contained at least some information
regarding appellant’s education and employment history. Furthermore, like Gilmer, and
unlike Beard, appellant did not appear to be exceedingly employable. Appellant was
41 years old at the time of sentencing, had extensive drug dependency issues, did not
have even a high school education or equivalent, and his last recorded employment was
seven years ago. Most compellingly, though—and what distinguishes this case from the
others—is that the trial court already indicated its willingness to waive the fine on
account of appellant’s indigency. It was only after the state interjected that the trial court,
for unspecified reasons, reversed its position and imposed the fine.
{¶ 21} We acknowledge that appellant’s education, employment history, and
financial status is incomplete based upon his failure to be interviewed for the presentence
investigation report. However, appellant is not required to prove to this court that he is
indigent, he is only required to demonstrate that a reasonable probability exists that he
would have been found indigent had trial counsel filed the affidavit of indigency prior to
sentencing. Based on the record before us, we find that appellant has satisfied that
burden. Therefore, we hold that trial counsel’s performance fell below an objective
standard of reasonableness, and had the affidavit been filed, a reasonable probability
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exists that the trial court would have found appellant indigent, and would not have
imposed the $5,000 fine.
{¶ 22} Accordingly, appellant’s first assignment of error is well-taken.
{¶ 23} In his second assignment of error, appellant argues that the trial court made
an erroneous finding under R.C. 2929.12(D)(1) that appellant committed the offense
while on bail or community control. Appellant contends that his probation was
terminated on March 18, 2019, when he was released from prison, and that the instant
offense did not occur until March 24, 2019. Although the validity of those assertions are
not clear from the record, the state does not challenge them. Instead, the state argues that
the trial court’s finding under R.C. 2929.12(D)(1) was but one of the factors the trial
court considered in imposing a 36-month prison sentence, and that the remaining factors
still support such a sentence.
{¶ 24} We review criminal sentences under the standard set forth in R.C.
2953.08(G)(2). State v. Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425,
¶ 16. R.C. 2953.08(G)(2) allows us to “increase, reduce, or otherwise modify a
sentence,” or “vacate the sentence and remand the matter to the sentencing court for
resentencing” if we clearly and convincingly find either “(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,” or “(b) That the sentence is otherwise
contrary to law.”
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{¶ 25} In support of his argument, appellant relies on State v. Marcum, 146 Ohio
St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23, in which the Ohio Supreme Court
stated,
[I]t is fully consistent for appellate courts to review those sentences
that are imposed solely after consideration of the factors in R.C. 2929.11
and 2929.12 under a standard that is equally deferential to the sentencing
court. That is, an appellate court may vacate or modify any sentence that is
not clearly and convincingly contrary to law only if the appellate court
finds by clear and convincing evidence that the record does not support the
sentence.
However, recently, the Ohio Supreme Court in State v. Jones, Slip Opinion No. 2020-
Ohio-6729, ¶ 42, relegated that language in Marcum to dicta, and clarified that “[n]othing
in R.C. 2953.08(G)(2) permits an appellate court to independently weigh the evidence in
the record 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.”
{¶ 26} The Ohio Supreme Court reasoned in Jones that “R.C. 2953.08(G)(2)(a)
permits an appellate court to modify or vacate a sentence if it clearly and convincingly
finds that ‘the record does not support the sentencing court’s findings under’ certain
specified statutory provisions. But R.C. 2929.11 and 2929.12 are not among the statutory
provisions listed in R.C. 2953.08(G)(2)(a).” Id. at ¶ 28.
11.
{¶ 27} Further, the court determined that “an appellate court’s conclusion that the
record does not support a sentence under R.C. 2929.11 or 2929.12 is not the equivalent of
a conclusion that the sentence is ‘otherwise contrary to law’ as that term is used in R.C.
2953.08(G)(2)(b).” Id. at ¶ 34. In reaching this determination, the Supreme Court of
Ohio examined the history of R.C. 2953.08(G), noting that prior versions of the statute
provided for appellate court intervention where “[T]he record does not support the
sentence,” but that provision was eliminated in the current version. Id. at ¶ 35-36. The
court also noted that both the prior and current versions included a provision for where
“[T]he sentence is otherwise contrary to law.” Id. The court reasoned that a review of
the trial court’s factual findings under R.C. 2929.11 and 2929.12 would have fallen under
the prior provision where “[T]he record does not support the sentence,” and because that
provision was eliminated while the provision for where “[T]he sentence is otherwise
contrary to law” remained the same, the court concluded, “R.C. 2953.08(G)(2)(b)
therefore does not provide a basis for an appellate court to modify or vacate a sentence
based on its view that the sentence is not supported by the record under R.C. 2929.11 and
2929.12.” Id. at ¶ 39.
{¶ 28} Therefore, pursuant to Jones, R.C. 2953.08(G)(2) does not permit us to
review the trial court’s factual findings under R.C. 2929.12.
{¶ 29} Accordingly, appellant’s second assignment of error is not well-taken.
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IV. Conclusion
{¶ 30} For the foregoing reasons, we find that substantial justice has not been done
the party complaining, and the judgment of the Sandusky County Court of Common
Pleas is reversed as to the sentence and imposition of the mandatory fine. The matter is
remanded to the trial court for resentencing, and to give appellant an opportunity to file
an affidavit of indigency prior to sentencing. Appellee, the state of Ohio, is ordered to
pay the costs of this appeal pursuant to App.R. 24.
Judgment reversed
and remanded.
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
Thomas J. Osowik, J.
_______________________________
Myron C. Duhart, 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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