State v. Patterson ( 2020 )


Menu:
  • [Cite as State v. Patterson, 
    2020-Ohio-4832
    .]
    COURT OF APPEALS OF OHIO
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    STATE OF OHIO,                                        :
    Plaintiff-Appellee,                  :
    No. 109167
    v.                                   :
    THOMAS C. PATTERSON,                                  :
    Defendant-Appellant.                 :
    JOURNAL ENTRY AND OPINION
    JUDGMENT: AFFIRMED IN PART, REVERSED IN
    PART, AND REMANDED
    RELEASED AND JOURNALIZED: October 8, 2020
    Criminal Appeal from the Cuyahoga County Court of Common Pleas
    Case No. CR-18-634869-A
    Appearances:
    Michael C. O’Malley, Cuyahoga County Prosecuting
    Attorney, and Timothy Troup, Assistant Prosecuting
    Attorney, for appellee.
    Jonathan N. Garver, for appellant.
    ANITA LASTER MAYS, P.J.:
    Defendant-appellant Thomas C. Patterson (“Patterson”) appeals his
    convictions and sentence imposed after a guilty plea to multiple charges. We affirm
    the trial court’s judgment.
    I.   Background and Facts
    On December 10, 2018, Patterson was indicted by the grand jury on
    ten counts:
    1.      R.C. 2925.03(A)(2), drug trafficking cocaine, a first-degree
    felony with mandatory term of incarceration;
    2.      R.C. 2925.11(A), drug possession of cocaine, a first-degree
    felony;
    3.      R.C. 2925.03(A)(2), drug trafficking marijuana, a fifth-degree
    felony;
    4.      R.C. 2925.11(A), drug possession of oxycodone, a fifth-degree
    felony;
    5.      R.C. 2923.23(A), possession of criminal tools, a fifth-degree
    felony;
    6.      R.C. 2903.21(A),      aggravated    menacing,    a   first-degree
    misdemeanor;
    7.      R.C. 4519.11(A)(1)(a), driving while under the influence, a first-
    degree misdemeanor;
    8.      R.C. 4519.11(A)(2)(a), driving while under the influence, a first-
    degree misdemeanor;
    9.      R.C. 2921.31(A), obstructing official business, a fifth-degree
    felony; and
    10.     R.C. 2921.33(A), resisting arrest, a second-degree misdemeanor.
    Patterson’s counsel withdrew the day before the February 27, 2019
    motion to suppress hearing and trial. New counsel was retained, and trial was
    rescheduled for April 29, 2019. On April 29, 2019, Patterson pleaded guilty as
    follows:
    Count(s) 1 is/are amended to reflect that the amount of drugs is
    amended to greater than 20 grams but less than 27 grams. Mandatory
    prison time of 2, 3, 4, 5, 6, 7, or 8 years. Mandatory (3) years post
    release control to apply. Defendant retracts former plea of not guilty
    and enters a plea of guilty to trafficking offense 2925.03(A)(2) [felony
    two] with forfeiture specification(s) (2941.1417) as amended in
    Count(s) 1 of the indictment. Defendant retracts former plea of not
    guilty and enters a plea of guilty to trafficking offense 2925.03 A(2)
    [felony five] with forfeiture specification(s) ([R.C.] 2941.1417) as
    charged in count(s) 3 of the indictment. Defendant retracts former plea
    of not guilty and enters a plea of guilty to aggravated menacing [R.C.]
    2903.21 a [misdemeanor one] as charged in Count(s) 6 of the
    indictment. Defendant retracts former plea of not guilty and enters a
    plea of guilty to driving while under the influence of alcohol or drugs
    ([physical control]) [R.C.] 4511.19 A(2)(A) [misdemeanor one] as
    charged in Count(s) 8 of the indictment. Defendant retracts former
    plea of not guilty and enters a plea of guilty to resisting arrest [R.C.]
    2921.33 a [misdemeanor two] m2 as charged in Count(s) 10 of the
    indictment.
    Journal entry No. 108458469 (Apr. 29, 2019). Counts 2, 4, 5, 7, 9 were nolled.
    Patterson was ordered to forfeit seven cell phones, a scale, a 2007 automobile, and
    a marijuana grinder.
    On May 23, 2019, Patterson was sentenced to: (1) eight years on
    amended Count 1 and 12 months on Count 3 to run concurrently, (2) time served on
    Counts 6 and 8, (3) a mandatory $7,500 fine, (4) a five-year driver’s license
    suspension that begins upon release, (5) three years of postrelease control, and (6)
    court costs. On November 10, 2019, this court granted Patterson’s motion for leave
    to file a delayed appeal and appointed defense counsel.
    II. Assignments of Error
    Patterson presents four assignments of error:
    I.    The eight-year prison term imposed by the trial court is
    excessive, unsupported by the record, and contrary to law.
    II.    The trial court abused its discretion by imposing a mandatory
    $7,500 fine on Patterson when the court had been informed of
    Patterson’s indigence and there was no evidence that Patterson
    would be able to pay the fine in the future. R.C. 2929.18(B)(1).
    III.   Patterson received ineffective assistance of counsel as a result of
    defense counsel’s failure to file a motion and affidavit of
    indigence in order to avoid the imposition of a fine. Sixth and
    Fourteenth Amendments, Constitution of the United States, and
    Article I, Section 10 of the Constitution of the state of Ohio.
    IV.    The trial court abused its discretion and violated the law by
    delaying the commencement of Patterson’s driver’s license
    suspension until after his release from prison.
    III. Analysis
    A. Sentence
    In his first assignment of error, Patterson argues that his sentence is
    excessive, is not supported by the record and is contrary to law. Patterson states
    that the trial court imposed the maximum sentence for a second-degree felony with
    minimal explanation, and argues that the record lacks evidence of aggravating facts
    that support the imposition of the maximum penalty.
    Appellate courts apply the standard of review prescribed in
    R.C. 2953.08(G)(2). State v. Marcum, 
    146 Ohio St.3d 516
    , 
    2016-Ohio-1002
    , 
    59 N.E.3d 1231
    , ¶ 1, 21-23.
    Pursuant to R.C. 2953.08(G)(2), 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 that the record does not support
    the sentencing court’s findings or that the sentence is “otherwise
    contrary to law.” A sentence is “contrary to law” if (1) the sentence falls
    outside the statutory range for the particular degree of offense or (2)
    the trial court fails to consider the purposes and principles of felony
    sentencing set forth in R.C. 2929.11 and the sentencing factors set forth
    in R.C. 2929.12. See, e.g., State v. Thomas, 8th Dist. Cuyahoga
    No. 107116, 
    2019-Ohio-790
    , ¶ 22; State v. Lariche, 8th Dist. Cuyahoga
    No. 106106, 
    2018-Ohio-3581
    , ¶ 14.
    State v. Wilkins, 8th Dist. Cuyahoga No. 107982, 
    2019-Ohio-4061
    , ¶ 20.
    R.C. 2929.11 addresses the purposes of felony sentencing.
    The overriding purposes of felony sentencing are to protect the public
    from future crime by the offender and others, to punish the offender,
    and to promote the effective rehabilitation of the offender using the
    minimum sanctions that the court determines accomplish those
    purposes without imposing an unnecessary burden on state or local
    government resources. To achieve those purposes, the sentencing
    court shall consider the need for incapacitating the offender, deterring
    the offender and others from future crime, rehabilitating the offender,
    and making restitution to the victim of the offense, the public, or both.
    R.C. 2929.11(A).
    R.C. 2929.12 addresses the statutory seriousness and recidivism
    factors that are used to guide a court’s sentencing discretion.
    Pursuant to R.C. 2929.12, the trial court has discretion to “determine
    the most effective way to comply with the purposes and principles of
    sentencing.” R.C. 2929.12(A). The court must consider applicable
    factors from divisions (B) and (C) relating to the “seriousness of the
    conduct,” and divisions (D) and (E) relating to recidivism. 
    Id.
     The
    statute also permits the trial court to consider “any other factors that
    are relevant to achieving those purposes and principles of sentencing.”
    
    Id.
    State v. McGowan, 8th Dist. Cuyahoga No. 105806, 
    2018-Ohio-2930
    , ¶ 12.
    A sentence is contrary to law if the sentence is more or less than the
    statutory range or if the trial court does not consider the purposes and principles of
    felony sentencing in R.C. 2929.11 and the sentencing factors in R.C. 2929.12.
    State v. Franklin, 8th Dist. Cuyahoga No. 107482, 
    2019-Ohio-3760
    , ¶ 41, citing
    State v. Pawlak, 8th Dist. Cuyahoga No. 103444, 
    2016-Ohio-5926
    , ¶ 58. However,
    in its consideration, the trial court is not mandated to make findings or give its
    reasoning for imposing more than the minimum sentence. 
    Id.
                    Therefore, a
    sentence is not contrary to law when it is within the statutory range and where the
    trial court considered R.C. 2929.11 and 2929.12. State v. Price, 8th Dist. Cuyahoga
    No. 104341, 
    2017-Ohio-533
    , ¶ 14.
    In   this   case,   Patterson   pleaded   to   a   trafficking   offense,
    R.C. 2925.03(A)(2), a second-degree felony, with forfeiture specification(s)
    (2941.1417), as amended. The range for a felony of the second degree is a mandatory
    minimum of two years up to eight years’ imprisonment. Patterson’s eight-year
    sentence falls within the statutory range for a felony of the second degree. “Trial
    courts have full discretion to impose a sentence within the statutory range.” State v.
    Mathis, 
    109 Ohio St.3d 54
    , 
    2006-Ohio-855
    , 
    846 N.E.2d 1
    , paragraph three of the
    syllabus.
    At the sentencing hearing, defense counsel advised the trial court that
    Patterson suffers from schizophrenia, bipolar disorder, substance abuse issues, and
    that he was remorseful. Bodycam evidence demonstrated that Patterson was
    verbally abusive and somewhat combative during the arrest and that he was
    particularly abusive to the female officer and stated that he would kill her.
    The arresting officer also addressed the trial court and testified that
    what should have been a simple traffic stop turned into a public spectacle that also
    placed the officers at risk. The officer continued:
    And I was honest in my report when I said he was the most hostile,
    volatile, and combative person I’ve ever dealt with. I’ve been an officer
    for seven years. And both on scene and carrying over to the jail where
    I was legitimately fearful. After we put him in his cell, he was slamming
    so hard I thought he was going to break the door down.
    (Tr. 62.) Patterson apologized to the officer. Patterson stated he was under the
    influence of PCP, cocaine, alcohol, and marijuana the night of his arrest. The state
    did not conduct chemical tests.
    The trial court pointed out Patterson’s history of convictions
    beginning in 1992 that included involuntary manslaughter and aggravated vehicular
    assault. Two years after release from incarceration Patterson was sentenced to one
    year for drug trafficking. Patterson admitted to a substantial history of substance
    abuse and that he did not seek counseling for the addiction. The sentencing entry
    reflects, “The court considered all required factors of the law. The court finds that
    prison is consistent with the purpose of R.C. 2929.11.” Journal entry No. 108858171,
    p. 1 (May 23, 2019).
    We find that the record clearly and convincingly supports the trial
    court’s findings, and the sentence is not contrary to law. Patterson’s first assignment
    of error is overruled.
    B. Ineffective Assistance of Counsel and Imposition of Fine
    We address the third assignment of error out of order. Patterson
    states here that defense counsel’s admitted failure to file a motion under
    R.C. 2929.18(B)(1) to avoid imposition of the mandatory fine constitutes ineffective
    assistance of counsel. We find that the assigned error has merit.
    To establish a claim for ineffective assistance of counsel, Patterson
    must show his trial counsel’s performance was deficient, and that the deficient
    performance prejudiced the defense so as to deprive Patterson of a fair trial.
    Strickland v. Washington, 
    466 U.S. 668
    , 687, 
    104 S.Ct. 2052
    , 
    80 L.Ed.2d 674
    (1984); State v. Bradley, 
    42 Ohio St.3d 136
    , 
    538 N.E.2d 373
     (1989). To establish
    prejudice, the defendant must demonstrate there is a “reasonable probability that,
    but for counsel’s unprofessional errors, the result of the proceeding would have been
    different.” Strickland at 694.
    “Ohio courts have consistently held that because trial courts have
    broad discretion when imposing financial sanctions upon a defendant, appellate
    courts review the imposition of financial sanctions for abuse of discretion.” State v.
    Cotto, 8th Dist. Cuyahoga No. 107159, 
    2019-Ohio-985
    , ¶ 7, citing State v.
    Theodorou, 8th Dist. Cuyahoga No. 105630, 
    2017-Ohio-9171
    , ¶ 23.
    R.C. 2925.03(D)(1) provides:
    If the violation of division (A) of this section 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 * * * of the Revised Code, the sentencing court 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.
    A trial court shall impose a mandatory fine on a defendant unless:
    (1) the defendant files an affidavit with the court before sentencing that alleges the
    defendant is indigent and unable to pay the fine; and (2) it is determined by the court
    that the defendant is unable to pay due to indigence. R.C. 2929.18(B)(1), Cotto, 8th
    Dist. Cuyahoga No. 107159, 
    2019-Ohio-985
    , at ¶ 9.
    In addition,
    [t]he court is not obligated to make any express findings, but rather is
    required only to “consider” a defendant’s ability to pay a financial
    sanction. State v. Hodge, 2d Dist. Montgomery No. 23964, 2011-Ohio-
    633, ¶ 55. Generally, a trial court complies with this requirement when
    it considers a presentence investigation report that contains
    information about the offender’s financial situation and his ability to
    pay the financial sanction. See State v. Lewis, 8th Dist. Cuyahoga
    No. 90413, 
    2008-Ohio-4101
    , ¶ 13; State v. Bulstrom, 
    2013-Ohio-3582
    ,
    
    997 N.E.2d 162
    , ¶ 15 (4th Dist.).
    State v. Simpson, 8th Dist. Cuyahoga No. 101088, 
    2014-Ohio-4580
    , ¶ 21.
    During the sentencing hearing, in response to the trial court’s inquiry,
    defense counsel advised that an affidavit of indigency had not been filed. Counsel
    then stated, “I’d ask the Court to find him indigent. I mean, he lost everything, with
    drugs.” (Tr. 71.) The trial court responded, “File a proper motion.” 
    Id.
     Counsel
    replied, “I will do so, Your Honor.” 
    Id.
    We find that our decision in State v. Hubbard, 8th Dist. Cuyahoga
    No. 99093, 
    2013-Ohio-1994
    , ¶ 5, is instructive here. Hubbard pleaded guilty to one
    count of drug possession under R.C. 2925.11(A). On appeal, Hubbard contended his
    appointed counsel was ineffective for failure to file an indigency affidavit and move
    to waive the mandatory $7,500 drug fine.
    “Where the record shows a ‘reasonable probability’ that the trial court
    would have found the defendant indigent and unable to pay the fine had an affidavit
    been filed,” the courts of Ohio “have held that the failure to file an affidavit of
    indigency for purposes of waiving a mandatory fine constitutes ineffective assistance
    of counsel.” Id. at ¶ 9, citing State v. Gilmer, 6th Dist. Ottawa No. OT-01-015, 2002-
    Ohio-2045, ¶ 5, citing State v. Huffman, 8th Dist. Cuyahoga No. 63938, 
    1995 Ohio App. LEXIS 233
    , *13 (Jan. 26, 1995), citing State v. Powell, 
    78 Ohio App.3d 784
    ,
    
    605 N.E.2d 1337
     (3d Dist.1992).
    Patterson, who was 42 years of age at the time of sentencing, has
    several convictions beginning in 1992 as a juvenile and has served more than one
    term of imprisonment. His prior convictions include aggravated vehicular assault,
    involuntary manslaughter, and drug trafficking.
    Patterson also has a long history of drug and alcohol abuse, and
    unemployment. As counsel stated, Patterson “is an addict. He [has] been dealing
    with drugs and alcohol for the majority of his life, Your Honor.” (Tr. 54.) Patterson
    was not eligible for mental health court but counsel advised that “upon his remand
    at the last hearing * * * [he] was diagnosed with bipolar and schizophrenia. He now
    takes his meds, Your Honor.” (Tr. 54-55.)
    Patterson was deemed to be indigent when trial counsel was
    appointed. Also, this court found Patterson to be indigent for purposes of the
    appointment of appellate counsel and to secure the transcript.           Though not
    determinative, these factors may also be considered by the trial court upon remand.
    “A determination that a criminal defendant is indigent for purposes of receiving
    appointed counsel is separate and distinct from a determination of being indigent
    for purposes of paying a mandatory fine.” State v. Cruz, 8th Dist. Cuyahoga
    No. 106098, 
    2018-Ohio-2052
    , ¶ 28.
    Based on the record and the total failure of defense counsel to file a
    proper motion as the trial court instructed, we find that there is a reasonable
    probability that the trial court would have found Patterson to be indigent and unable
    to pay the mandatory drug fine of $7,500. See Hubbard, 8th Dist. Cuyahoga
    No. 99093, 
    2013-Ohio-1994
    , at ¶ 10.
    Thus, the record demonstrates that Patterson was denied effective
    assistance of counsel by counsel’s failure to file an affidavit of indigency and that he
    was prejudiced by this failure. Strickland, 
    466 U.S. 668
    , 
    104 S.Ct. 2052
    , 
    80 L.Ed.2d 674
    . The portion of the sentence imposing the fine is void and is set aside. Hubbard
    at ¶ 14, citing State v. Moore, 
    135 Ohio St.3d 151
    , 
    2012-Ohio-5479
    , 
    985 N.E.2d 432
    .
    The third assigned error has merit. The matter will be remanded to
    the trial court for a hearing pursuant to R.C. 2929.18(E) and R.C. 2929.19(B)(5).
    Patterson’s resentencing must be limited to the determination of indigency and
    whether the mandatory fine should be imposed. 
    Id.
    C. Mandatory Fine Imposition
    Our determination of the third assigned error renders the second
    assigned error moot. App.R. 12(A).
    D.   License Suspension
    Patterson’s final challenge is to the trial court’s imposition of a
    driver’s license suspension effective upon his release from prison.        Patterson
    pleaded guilty to drug trafficking under R.C. 2925.03(A)(2), a second-degree felony,
    for an amount greater than 20 grams but less than 27 grams, and
    R.C. 2925.03(A)(2), a fifth-degree felony. During the plea, Patterson responded that
    he understood that the two drug counts include a “possible driver’s license
    suspension for a period of anywhere from six months to five years. That would apply
    to both drug counts.” (Tr. 43.) Patterson also confirmed his understanding that the
    second OVI charge in a ten-year period and failure to take a breathalyzer test under
    R.C. 4511.19(G)(1)(a)-(b)(iv) was also subject to a license suspension for one to
    seven years. Driving privileges for each count were available after 45 days.
    This court has previously recognized that the imposition of a license
    suspension for trafficking drugs under R.C. 2925.03(G) that takes effect after a term
    of incarceration is not contrary to law. State v. Yuravak, 8th Dist. Cuyahoga
    No. 89891, 
    2008-Ohio-2186
    , ¶ 10, citing State v. Budenz, 8th Dist. Cuyahoga
    No. 88483, 
    2007-Ohio-2375
    , and State v. Hiles, 5th Dist. Delaware No. 03 CA 24,
    
    2003-Ohio-6290
    .
    The fourth assignment of error is overruled.
    IV. Conclusion
    The trial court’s sentence regarding the mandatory drug fine is void,
    and we vacate and set aside that portion of the judgment. The case is remanded for
    resentencing solely as to the determination of indigency and whether the mandatory
    fine should be imposed. The remainder of the judgment is affirmed.
    It is ordered that each party bear their own costs herein taxed.
    The court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate issue out of this court directing the
    common pleas court to carry this judgment into execution.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27
    of the Rules of Appellate Procedure.
    ANITA LASTER MAYS, PRESIDING JUDGE
    FRANK D. CELEBREZZE, JR., J., and
    KATHLEEN ANN KEOUGH, J., CONCUR