State v. Cox

[Cite as State v. Cox, 2020-Ohio-5030.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
GREENE COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2020-CA-14
:
v. : Trial Court Case No. 2010-CR-365
:
MICAH A. COX : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 23rd day of October, 2020.
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MARCY A. VONDERWELL, Atty. Reg. No. 0078311, Assistant Prosecuting Attorney,
Greene County Prosecutor’s Office, Appellate Division, 61 Greene Street, Suite 200,
Xenia, Ohio 45385
Attorney for Plaintiff-Appellee
APRIL F. CAMPBELL, Atty. Reg. No. 0089541, 46½ North Sandusky Street, Delaware,
Ohio 43015
Attorney for Defendant-Appellant
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HALL, J.
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{¶ 1} Micah A. Cox appeals from the trial court’s February 14, 2020 “entry”
following a limited resentencing solely to address the imposition of a mandatory fine.
{¶ 2} Cox’s appointed appellate counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1369, 18 L.Ed.2d 493 (1967), asserting the absence of
non-frivolous issues for review. Counsel did identify two potential issues but concluded
that they lack arguable merit. Cox has filed his own appellate brief in which he raises five
assignments of error.
{¶ 3} The record reflects that Cox was found guilty of multiple drug-trafficking and
drug-possession charges in 2011. After merging allied offenses, the trial court imposed
an aggregate 16-year prison term. This court affirmed on direct appeal, overruling 13
assignments of error. See State v. Cox, 2d Dist. Greene No. 2011-CA-19, 2012-Ohio-
2100. Thereafter, in June 2019, Cox filed motion for a final appealable order. He argued
among other things that his 2011 judgment entry was void because it failed to impose a
mandatory fine and because it imposed discretionary rather than mandatory post-release
control on one count. The trial court resolved the motion in a July 3, 2019 entry. It noted
that the original March 7, 2011 judgment entry had not imposed a fine despite the fact
that no affidavit of indigence had been filed. Absent an affidavit, the trial court concluded
that a mandatory fine was missing from the judgment. The trial court determined that the
judgment entry was “void” to the extent that it failed to impose the fine1. The trial court
1 In State v. Moore, 135 Ohio St.3d 151, 2012-Ohio-5479, 985 N.E.2d 432, syllabus, the
Ohio Supreme Court had held that failure to impose a mandatory fine rendered that part
of the judgment void, as Cox here contends, and therefore the judgment would be subject
to subsequent attack despite not having been raised on direct appeal. Moore was recently
called into question in State v. Harper, Ohio Slip Opinion No. 2020-Ohio-2913, __ N.E.3d
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held that the remainder of the judgment entry was not void and that res judicata applied
to all other portions of it. The trial court set the matter for resentencing for the limited
purpose of addressing the mandatory fine. The trial court observed, however, that Cox
had filed an affidavit of indigence in November 2018 in connection with post-conviction
matters. Finally, the trial court rejected Cox’s argument about post-release control being
mandatory on one count. It found that post-release control was discretionary rather than
mandatory and, therefore, that the March 7, 2011 judgment entry was not erroneous.
{¶ 4} The trial court held the limited resentencing hearing on February 7, 2020. At
the outset of the hearing, the trial court made a finding that Cox had been advised of the
resentencing, that arrangements had been made for him to participate through video
conferencing, and that he knowingly had refused to participate. In light of Cox’s decision
not to participate, the trial court proceeded in his absence. (Feb. 7, 2020 Tr. at 3.) Defense
counsel then moved for waiver of the mandatory fine based on the November 2018
affidavit of indigence. In light of Cox’s affidavit and continued incarceration, the trial court
waived the fine. (Id. at 4.) The trial court filed a February 14, 2020 entry memorializing its
ruling and imposing no fine. This appeal followed.
{¶ 5} In the Anders filing, appointed appellate counsel first suggests that the trial
__, in which the Supreme Court of Ohio “realigned” its void/voidable jurisprudence,
specifically relating to post-release control, “with the traditional understanding of void and
voidable sentences.” Id. at ¶ 43. In our opinion, the Harper jurisprudence realignment
applies to the failure to impose a mandatory fine, and that part of Cox’s judgment was not
void. Because he did not raise the mandatory fine error in his direct appeal, he cannot
raise it now. That would render moot all his arguments about appointment of counsel,
ineffectiveness, a video hearing, and the form of the court’s judgment, as discussed
below, because if that part of his judgment was not void, he was not entitled to have the
mandatory fine issue revisited. Because Harper was not raised in the briefs, we
alternatively have decided this matter on the issues raised in briefing.
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court erred in waiving the fine. Counsel correctly concludes that this argument is frivolous
for two reasons. First, waiver of the fine worked to Cox’s advantage, so no reason exists
to challenge the decision. Second, the trial court had authority to waive the fine based on
Cox’s affidavit of indigence and continued incarceration. Appointed appellate counsel
next suggests that the trial court erred in rejecting Cox’s argument about post-release
control being mandatory rather than discretionary. Once again, however, counsel
concludes that such an argument is frivolous because the decision benefitted Cox and
because it was correct. Upon review, we agree that Cox benefitted from receiving
discretionary rather than mandatory post-release control. The trial court also correctly
found that post-release control was discretionary on the conviction at issue, which
involved third-degree felony trafficking in cocaine. The trial court recognized that the
version of R.C. 2967.28(B) in effect at the time of Cox’s conviction provided for mandatory
post-release control “for a felony of the third degree that is not a felony sex offense and
in the commission of which the offender caused or threatened physical harm[.]” Because
Cox did not cause or threaten physical harm, the trial court correctly concluded that post-
release control was not mandatory under R.C. 2967.28(B). As a result, we agree that
counsel’s second proposed argument is frivolous.
{¶ 6} In his pro se brief, Cox admits being informed of the scheduled “video
resentencing.” He contends he told prison staff “that if he were to appear on video for
resentencing, he would be waiving his Constitutional Right to be present at a critical stage
of the proceedings * * *.” (Appellant’s Pro Se Brief at 5.) He further contends that he was
not directed to report to the telecommunications room at prison to confer with counsel or
participate in the hearing. Cox claims he only later learned through family members that
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counsel had been appointed, that counsel had moved to have the fine waived, and that
the trial court had waived the fine in his absence. None of Cox’s assertions about what
occurred in prison are part of the record before us. With regard to the issues before us,
we are limited to the hearing transcript and the trial court’s February 14, 2020 entry
waiving a fine. In both the transcript and the entry, the trial court stated that it had been
advised of Cox’s refusal to participate in the hearing. The trial court’s February 14, 2020
entry states: “An audio/video connection was established with ODRC. ODRC reported
that the Defendant refused to report to the telecommunications room for purpose of
meeting with his attorney or participating in the hearing or both.” Cox cites nothing in the
record to refute this finding. In the absence of evidence to the contrary, we will presume
regularity in the trial court’s proceedings and accept that Cox refused to meet with his
attorney or participate in the hearing electronically.
{¶ 7} In his first assignment of error, Cox alleges ineffective assistance of counsel
in connection with the resentencing. He first argues that he did not desire and did not
request to be represented by counsel. He asserts that he had strategic reasons for
wanting a fine to be imposed and that counsel derailed his plans. In particular, he argues
that adding a fine to his sentence would have required de novo resentencing. He also
claims adding a fine to his sentence would have enabled him to file another federal
habeas petition without it being considered “successive.”2 He further asserts that counsel
2 Cox apparently believes imposition of a mandatory fine would constitute a new
judgement which would allow him to raise any aspect of that judgment in a new federal
habeas corpus petition. Cox relies on the case In re Stansell, 828 F.3d 412, 416 (6th Cir.
2016) which supports the notion for full consideration of any issue in a successive petition
when there is a new judgment. But in this case Cox is clearly wrong. The new judgment
idea only applies to a change in parts of the sentence that involve custody or potential
custody, like the post release control in Stansell's case. The subsequent petition idea
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provided ineffective assistance by failing to consult with him before seeking waiver of the
fine.
{¶ 8} On the record before us, we find no prejudicially deficient representation by
counsel. As a threshold matter, the trial court was required to appoint counsel for
resentencing in the absence of a waiver. The Ohio Supreme Court has recognized that a
resentencing to impose post-release control is a “critical stage” of the criminal proceeding
to which a right to counsel applies. This is so because post-release control is part of a
defendant’s sentence. State v. Schleiger, 141 Ohio St.3d 67, 2014-Ohio-3970, 21 N.E.3d
1033, ¶15-16. Based on Schleiger, a resentencing to address a mandatory fine is no
different, as a fine also is part of a criminal sentence, although we note a fine does not
involve incarceration. State v. Moore, 135 Ohio St.3d 151, 2012-Ohio-5479, 985 N.E.2d
432, ¶ 12. Cox now insists that he did not want counsel to represent him for resentencing,
but the record does not reflect a waiver of counsel for that purpose. As set forth above,
Cox refused to participate in the proceeding. Absent a waiver of counsel by Cox, we see
no non-frivolous issue as to whether defense counsel’s act of participating in the
resentencing constituted ineffective assistance.
{¶ 9} Cox also alleges ineffective assistance based on defense counsel
interfering with his personal reasons for wanting a fine to be imposed. This argument is
unpersuasive for at least two reasons. First, the record does not reflect that defense
counsel knew of Cox’s personal reasons for wanting a fine to be imposed, and the trial
court found that Cox had refused to communicate with his attorney electronically before
does not apply to changes in a fine or restitution, including the addition of a mandatory
fine. Financial changes do not involve custody, which is the predicate for habeas relief.
See e.g., Osbourne v. Secy., Florida Dept. of Corr., 968 F.3d 1261, 1266, (11th Cir. 2020).
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the resentencing hearing. Under these circumstances, defense counsel did not provide
deficient representation by failing to advocate for the imposition of a fine. Second, the trial
court was required to waive Cox’s fine regardless of his personal wishes. Prior to the
resentencing hearing, Cox filed an affidavit of indigence. Where an offender files an
affidavit of indigence and the trial court makes a finding of indigence, a trial court “shall
not impose the mandatory fine on an offender.” R.C. 2929.18(B)(1). Based on Cox’s
November 26, 2018 affidavit, the trial court made a finding of indigence at the
resentencing hearing. Therefore, it was required to waive the fine. Cox’s first assignment
of error does not have arguable merit.
{¶ 10} In his second assignment of error, Cox contends he was denied his right to
be physically present for resentencing. Cox argues that if he had been present in court,
he would have fired his attorney and would have argued that the trial court was required
to impose a fine.
{¶ 11} We agree that Cox had a right to be physically present for resentencing.
Crim.R. 43(A)(1). We note that a trial court may allow a defendant to participate by video
provided a waiver has been obtained and other conditions are met. A defendant must
make such a waiver in writing or otherwise on the record. Crim.R. 43(A)(3). Here neither
Cox nor his attorney affirmatively waived his right to be physically present for
resentencing. As set forth above, the record reflects only that Cox refused to participate
in the video proceeding. Defense counsel proceeded to act on Cox’s behalf without
raising the issue of his absence from the courtroom. The trial court then made a finding
of indigence based on Cox’s prior affidavit and waived the fine, as R.C. 2929.18(B)(1)
obligated it to do.
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{¶ 12} Under these circumstances, we conclude that the trial court erred in
proceeding without an affirmative waiver of Cox’s right to be physically present. We note,
however, that a defendant’s absence in violation of Crim.R. 43(A) is subject to harmless-
error analysis. State v. Brown, 2d Dist. Montgomery No. 26320, 2015-Ohio-3912, ¶ 10
(observing that “a defendant’s absence in violation of Crim.R. 43(A) can constitute
harmless error where he suffered no prejudice, even though such absence was
improper”).
{¶ 13} On the record before us, we find harmless error in Cox’s lack of physical
presence for resentencing, and we see no non-frivolous argument to the contrary. The
only issue before the trial court concerned the imposition of a fine. Based on Cox’s own
affidavit, the trial court found him indigent and waived the fine, as it was required by
statute to do (and as it had done at the time of his original 2011 sentencing). We see no
evidence to suggest that the outcome would have been different if Cox had been
physically present. Although Cox claims he would have dismissed counsel and made
various arguments to the trial court, these actions would not have affected the trial court’s
obligation to waive the fine upon a finding of indigence and, in any event, Cox could have
presented his arguments through the video proceeding if he had not refused to
participate. His alleged predicament stemmed from his failure to participate at all, not his
lack of physical presence. For these reasons, his second assignment of error does not
have arguable merit.
{¶ 14} In his third assignment of error, Cox contends the trial court erred in waiving
the mandatory fine based on an “insufficient affidavit.” More specifically, Cox claims his
November 26, 2018 affidavit established his indigence for purposes of paying “court
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costs” and costs for “representation” but not a fine. According to Cox, the trial court erred
in relying on an affidavit establishing that he was indigent for purposes of “court costs” to
support a finding that he was indigent for purposes of a fine.
{¶ 15} Upon review, we conclude that Cox’s assertion is wholly frivolous. Cox
actually filed two affidavits of indigence prior to the resentencing hearing. The first
affidavit, which he filed on November 26, 2018, accompanied his “Motion to Vacate Void
Judgment,” which is the underlying basis for the present appeal. In that affidavit, he
asserted that he earned $18 per month in prison and that he had no money to pay for
representation or “costs in this matter.” He also asserted that he had no assets “to satisfy
the costs of maintaining this action.” Thereafter, on April 2, 2019, Cox filed the same
affidavit in connection with a motion to obtain a free transcript.3
{¶ 16} For purposes of the mandatory fine at issue, R.C. 2929.18(B)(1) provides:
“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 * * * the court shall
not impose the mandatory fine upon the offender.”
{¶ 17} Here Cox filed two affidavits prior to resentencing alleging that he was
indigent and unable to pay “costs” or “the costs of maintaining this action,” including the
cost of a transcript. Although the affidavits did not specifically allege that Cox’s indigence
rendered him unable to pay a fine, the trial court reasonably relied on his inability to pay
3 Parenthetically, we note that Cox also filed a March 9, 2020 affidavit of indigence in
connection with the current appeal. Therein, he claimed that he had no assets or financial
support and could not “afford to pay for any legal services, fees or costs in the above-
styled case.”
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“costs” to infer that he was equally indigent for purposes of a fine, which likely would be
a more onerous financial obligation than paying for a transcript or a filing fee. In short,
based on Cox’s sworn claim that he was unable to pay any “costs,” the trial court did not
err in finding him unable to pay a substantial mandatory fine.
{¶ 18} In opposition to our conclusion, Cox cites State v. Harris, 6th Dist. Fulton
No. F-04-005, 2005-Ohio-1779, rev’d in part on other grounds, In re Ohio Criminal
Sentencing Statutes Cases, 109 Ohio St.3d 313, 2006-Ohio-2109, 847 N.E.2d 1174. In
Harris, the Sixth District held that the defendant could not rely on an affidavit of indigence
for purposes of receiving appointed counsel to demonstrate indigence for purposes of
avoiding a mandatory fine. The reason was that the two expenses were not analogous.
As the Sixth District explained: “The difference exists between a defendant's ability to
raise an initial retainer in order to obtain counsel as opposed to the period of time given
to gradually pay the imposed mandatory fine.” Id. at ¶ 32. That difference does not exist
in Cox’s case. We agree that a defendant’s inability to retain counsel does not establish
his inability to pay a fine over time. Here, however, Cox swore that he lacked the ability
to pay any costs associated with the proceedings below. Unlike the situation in Harris,
here Cox’s affidavits established that he could not pay costs and therefore could not pay
a fine, which would involve a more substantial obligation. The third assignment of error
does not have arguable merit.
{¶ 19} In his fourth assignment of error, Cox contends the trial court erred in
depriving him of his right of allocution by resentencing him in his absence. As set forth
above, however, Cox refused to participate in the proceedings, thereby effectively
depriving himself of his right of allocution. Regardless, a violation of a defendant’s right
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of allocution is subject to harmless-error analysis. State v. McBride, 2d Dist. Montgomery
No. 18016, 2001 WL 62543, *4 (January 26, 2001), citing State v. Campbell, 90 Ohio
St.3d 320, 326, 738 N.E.2d 1138 (2000). An error is harmless if, beyond a reasonable
doubt, it did not prejudice the complaining party.
{¶ 20} Here we find beyond a reasonable doubt that Cox’s lack of allocution did
not prejudice him. The sole issue before the trial court concerned whether to impose a
fine. Cox prevailed on that issue. Even if we accept his unorthodox suggestion that he
wanted to be fined, his two recent affidavits of indigence seeking a waiver of all “costs”
on the basis that he had no money or assets effectively compelled the trial court to waive
the fine. Indeed, Cox admits in his brief that a trial court “has no discretion in deciding
whether to impose the fine.” (Appellant’s Pro Se Brief at 12.) For these reasons, we see
no non-frivolous argument that Cox was prejudiced by his lack of allocution at
resentencing. The fourth assignment of error does not have arguable merit.
{¶ 21} In his fifth assignment of error, Cox contends the trial court erred when it
failed to include his “entire sentence” in one judgment entry.
{¶ 22} Cox notes that his original March 7, 2011 judgment entry omitted a required
part of his criminal sentence, namely the imposition of a mandatory fine in the absence
of an affidavit of indigence. In its July 3, 2019 entry, the trial court recognized this defect
and agreed with Cox that the original judgment entry was void insofar as it failed to impose
a fine, which was a statutorily mandated term. As set forth above, the trial court
subsequently held a resentencing hearing limited to the issue of the fine. During the
hearing, defense counsel noted that an affidavit of indigence had been filed on November
26, 2018 and requested waiver of the fine on that basis. (Feb. 7, 2020 Tr. at 3-4.) The
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trial court agreed to waive the fine. On February 14, 2020, the trial court filed an “entry”
memorializing what had occurred at the resentencing hearing. The entry stated:
The Court set this matter for [a] resentencing hearing limited solely
to imposition of the mandatory fine pursuant to R.C. 2925.03(D)(1). On
February 7, 2020 the matter came before the Court. An audio/video
connection was established with ODRC. ODRC reported that the Defendant
refused to report to the telecommunication room for purpose of meeting with
his attorney or participating in the hearing or both.
The Court conducted the hearing. Counsel moved the Court to waive
the mandatory fines.
Upon motion by the Defendant and for good cause shown, the Court
waives the mandatory fine in the above captioned case. The Defendant’s
fine is set at $0.00.
IT IS SO ORDERED.
{¶ 23} On appeal, Cox argues that the foregoing entry is not a proper “judgment
entry” upon resentencing because it does not recite the things contained in the original
March 7, 2011 judgment entry, particularly his “entire sentence.” Because the trial court’s
February 14, 2020 entry only addresses the fine issue, Cox argues that is necessary to
consult the March 7, 2011 judgment entry to determine the rest of his sentence. Cox
asserts that having his sentence contained in two entries violates the one-document rule
discussed in State v. Baker, 119 Ohio St. 3d 197, 2008-Ohio-3330, 893 N.E.2d 163, and
State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, 958 N.E.2d 142. In essence,
the one-document rule requires the fact of conviction and the sentence to be contained
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within one document.
{¶ 24} We note that when a limited resentencing occurs for the proper imposition
of post-release control, R.C. 2929.191 authorizes a trial court to issue a nunc pro tunc
“correction to the judgment of conviction.” In such a case, “an entirely new sentencing
entry” may not be required. See, e.g., State v. Williams, 9th Dist. Summit No. 27101,
2014-Ohio-1608, ¶ 12. In the present case, however, the resentencing did not involve
post-release control, and the trial court did not purport to make a nunc pro tunc correction
to the 2011 judgment entry. But unlike other cases involving the one-document rule, the
trial court’s February 14, 2020 entry also did not “correct the judgment of conviction” or
change Cox’s original sentence at all. The March 7, 2011 judgment entry imposed a fine
“in the sum of $0.” The trial court’s February 14, 2020 entry simply adhered to that prior
judgment based on a recently filed affidavit of indigence and at the request of Cox’s
counsel. Therefore, Cox’s fine remained set at “$0.00” just as it originally was in 2011.
Under the peculiar circumstances of this case, we see no need or reason to remand the
matter for the trial court to file an entirely new sentencing entry that would be identical to
its existing March 7, 2011 entry. Doing so would serve absolutely no purpose. The fifth
assignment of error does not have arguable merit.
{¶ 25} Finally, pursuant to Anders, we have examined the record ourselves for
potential appellate issues. We particularly considered the possibility that the trial court
may have erred in waiving Cox’s fine at resentencing based on an affidavit of indigence
that did not exist at the time of his original sentencing. But even if we assume, purely
arguendo, that acting on a new affidavit would be error, we see no non-frivolous appellate
issue for at least two reasons. First, Cox benefitted from the trial court’s consideration of
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the affidavit insofar the otherwise mandatory fine was waived. Second, defense counsel
relied on the affidavit at resentencing and asked the trial court to waive the fine. Therefore,
any error in the trial court relying on the affidavit of indigence would have been invited
error and without arguable merit. In the end, we conclude Cox’s machinations are no
more than a frivolous attempt to manipulate the legal process and do not have arguable
merit.
{¶ 26} Based on the reasoning set forth above, we affirm the judgment of the
Greene County Common Pleas Court.
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TUCKER, P.J. and FROELICH, J., concur.
Copies sent to:
Marcy A. Vonderwell
April F. Campbell
Micah A. Cox
Hon. Stephen Wolaver