State v. Scott , 2022 Ohio 2860 ( 2022 )

[Cite as State v. Scott, 2022-Ohio-2860.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff - Appellee : Hon. John W. Wise, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
GERALD G. SCOTT, : Case No. 21 CAA 09 0042
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County
Court of Common Pleas, Case No.
20 CR I 12 0770
JUDGMENT: Affirmed
DATE OF JUDGMENT: August 10, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MELISSA A. SCHIFFEL WILLIAM T. CRAMER
Delaware County Prosecuting Attorney 470 Olde Worthington Road, Suite 200
Westerville, Ohio 43082
By: JAQUELINE JAEL RAPIER
Delaware County Assistant Prosecutor
145 N. Union Street, 3rd Floor
Delaware, Ohio 43015
Delaware County, Case No. 21 CAA 09 0042 2
Baldwin, J.
{¶1} Appellant, Gerald G. Scott, appeals the imposition of a mandatory fine by
the Delaware County Court of Common Pleas, alleging that he received ineffective
assistance of counsel. The State of Ohio is Appellee.
STATEMENT OF THE CASE AND THE FACTS
{¶2} Appellant Gerald Scott was indicted for: (1) trafficking cocaine in amounts
equaling or exceeding twenty-seven grams, but less than one hundred grams, in violation
of R.C. 2925.03(A)(2)/(C)(4)(f), a first-degree felony; (2) possession of cocaine in
amounts equaling or exceeding twenty-seven grams, but less than one hundred grams,
in violation of R.C. 2925.11(A)/(C)(4)(e), a first-degree felony; (3) trafficking a Fentanyl-
related compound in amounts less than one gram in violation of R.C.
2925.03(A)(l)/(C)(9)(a), a fifth degree felony; and (4) possession of a Fentanyl-related
compound in amounts less than one gram in violation of R.C. 2925.11(A)/(C)(11)(a), a
fifth degree felony. The trafficking counts included forfeiture specifications for $445 in
cash under R.C. 2941.1417.
{¶3} The facts leading to this indictment are unnecessary for the resolution of
this appeal and are omitted.
{¶4} The state and Scott entered into a written plea agreement whereby Scott
entered a guilty plea to possession of cocaine and possession of a Fentanyl-related
compound and agreed to the forfeiture (Indictment, Counts Two and Four) in exchange
for an agreement that the trafficking counts be dismissed. The trial court completed a
plea colloquy in which Scott was informed of the mandatory minimum fine of $10,000.00.
Scott raised no objections or concerns at the mention of the fine during the sentencing
Delaware County, Case No. 21 CAA 09 0042 3
hearing. At the conclusion of the colloquy, the trial court sentenced Scott to an aggregate
term of six to nine years and imposed a fine of $10,000.00. Relevant to the appeal in this
case, the trial court found that “the Defendant has the ability to pay all or some of the
costs of any appointed-counsel fees in this case. If the Defendant was represented by a
public defender, the Defendant must pay $300 or the full amount of the public-defender
bill in this (whichever is less). This is a civil assessment and is not part of the Defendant’s
sentence.” (Judgment Entry on Guilty Plea and Sentencing, April 19, 2021, p. 6).
{¶5} Scott filed a pro se “delayed” notice of appeal on September 1, 2021, and
several related pleadings before this court granted leave to file a delayed appeal and
remanded the matter to the trial court to appoint counsel. Counsel was appointed and a
motion to supplement the record with the transcript was filed by Scott, then granted by
this court. Scott followed with his brief and one assignment of error:
{¶6} “I. APPELLANT WAS DEPRIVED OF HIS FEDERAL AND STATE
CONSTITUTIONAL RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL WHEN
APPOINTED COUNSEL FAILED TO FILE AN AFFIDAVIT OF INDIGENCY PRIOR TO
SENTENCING TO WAIVE THE MANDATORY FINE.”
STANDARD OF REVIEW
{¶7} A properly licensed attorney is presumed competent. State v. Hamblin, 37
Ohio St.3d 153, 524 N.E.2d 476 (1988). To prevail on a claim of ineffective assistance of
counsel, a defendant must demonstrate: (1) deficient performance by counsel, i.e., that
counsel's performance fell below an objective standard of reasonable representation, and
(2) that counsel's errors prejudiced the defendant, i.e., a reasonable probability that but
for counsel's errors, the result of the trial would have been different. Strickland v.
Delaware County, Case No. 21 CAA 09 0042 4
Washington, 466 U.S. 668, 687–688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State
v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the
syllabus. “Reasonable probability” is “probability sufficient to undermine confidence in the
outcome.” Strickland at 694, 104 S.Ct. 2052.
{¶8} Because appellant frames his argument as an ineffective assistance of
counsel challenge for failure to file an affidavit of indigency and seek waiver of the
mandatory fine, we consider whether counsel's failure to file an affidavit and request
waiver resulted in prejudice. As we noted in State v. Redden, 5th Dist., 152 N.E.3d 919,
2020-Ohio-878 at ¶ 46: “A number of Ohio courts have recognized that failure to file an
affidavit of indigency, under the right circumstances, can constitute prejudicial error. E.g.,
State v. Mendoza, 6th Dist. Lucas App. No. L-94-242, 1995 WL 413143, at 3 (July 14,
1995); State v. Joy, 4th Dist. Lawrence App. Nos. 92 CA 24, 92 CA 30, 1993 WL 491325,
at 3 (Nov. 24, 1993); State v. Creech, 4th Dist. Scioto App. No. 92 CA 2053, 1993 WL
235566 at 6 (June 29, 1993).”
{¶9} Also in Redden we noted if the record reflects a reasonable probability that
the trial court would have waived the fine had an affidavit been properly filed, a finding of
ineffective assistance of counsel may be appropriate. Redden at ¶ 47 quoting State v.
Sheffield, 2nd Dist. Montgomery App. No. 20029, 2004-Ohio-3099, 2004 WL 1351161, at
¶ 14. See State v. Davis, 159 Ohio St.3d 31, 2020-Ohio-309, 146 N.E.3d 560, ¶ 16.
{¶10} The filing of an affidavit of indigency is not necessarily conclusive evidence
of ineffective assistance, because the Supreme Court of Ohio has held that even if an
affidavit of indigency is timely and properly filed, a defendant “is not automatically entitled
to waiver of that fine.” State v. Gipson, 80 Ohio St.3d 626, 634, 1998-Ohio-659, 687
Delaware County, Case No. 21 CAA 09 0042 5
N.E.2d 750. There must be a showing that a defendant is unable to pay the fines, and
there is no affirmative duty on the trial court to make a finding that a defendant is able to
pay. Id., syllabus.
ANALYSIS
{¶11} In his sole assignment of error, Scott contends he was deprived of his
federal and state constitutional rights to the effective assistance of counsel when
appointed counsel failed to file an affidavit of indigency prior to sentencing request waiver
of the mandatory fine. In support of his position Scott notes that he was already serving
a prison term of thirty months for another drug conviction when he was indicted in this
case and that he had appointed counsel in the prior case. He also offers the fact that
counsel is appointed for him in this case. He notes that he filed a completed affidavit of
indigency with the second pro se motion. That motion and affidavit was not considered
by the trial court as the matter had previously been appealed and the trial court found it
lacked jurisdiction. Further, a review of the record discloses there are no affidavits of
indigency within the record despite the fact counsel was appointed, nor is there any
evidence regarding appointment of counsel in unrelated matters.
{¶12} We first note that this sentence is the result of a plea agreement between
the state and Scott which was approved by the court. During the colloquy the trial court
described in detail the potential penalties including the mandatory $10,000 fine. Scott
replied that he understood, that he had the opportunity to discuss the matter with his
attorney and that he was satisfied with his representation. He did not object to the
imposition of the fine and does not now claim that he was unaware that a fine would be
part of his sentence.
Delaware County, Case No. 21 CAA 09 0042 6
{¶13} Scott entered into a written plea agreement in which he offered to enter a
guilty plea in exchange for dismissal of one count of trafficking cocaine in amounts
equaling or exceeding twenty-seven grams, but less than one hundred grams, in violation
of R.C. 2925.03(A)(2)/(C)(4)(f), a first-degree felony and one count of trafficking in a
Fentanyl-related compound in violation of section 2925.03 (A)(1), a fifth degree felony
The plea agreement did not include a waiver of the fine.
{¶14} The fine to be imposed was mandatory, and Scott does not contend that his
counsel failed to inform him of the fine prior to executing the plea agreement, so we must
conclude that he was aware of the fine as well as the potential prison sentence and
agreed to be subject to the same in exchange for the dismissal of the more serious
charges. Now that he has received the benefit of his bargain he seeks to discredit the
attorney who arranged to have two very serious charges dismissed and improve his
position, without risking the loss of any benefit that he received from the plea deal. While
this factor is not controlling, we find that it plays a role in whether it is probable that the
trial court would have waived the fine had counsel filed the request and an affidavit of
indigency.
{¶15} Appellant relies upon our decision in State v. McElfresh, 5th Dist. No. 20-
COA-019, 2021-Ohio-480, 168 N.E.3d 71, where we noted that “* * * if the record reflects
a reasonable probability that the trial court would have waived the fine had an affidavit
been properly filed, a finding of ineffective assistance of counsel may be appropriate.”
{¶16} Id. at ¶ 8. In McElfresh we adopted the analysis the Supreme Court of Ohio
applied to failure to request that the trial court waive court costs. The Supreme Court of
Ohio held “* * *when trial counsel fails to request that the trial court waive court costs on
Delaware County, Case No. 21 CAA 09 0042 7
behalf of a defendant who has previously been found to be indigent, a determination of
prejudice for purposes of an ineffective-assistance-of-counsel analysis depends upon
whether the facts and circumstances presented by the defendant establish that there is a
reasonable probability that the trial court would have granted the request to waive costs
had one been made.” State v. Davis, 159 Ohio St.3d 31, 2020-Ohio-309, 146 N.E.3d 560,
¶ 16.
{¶17} At his initial appearance, McElfresh was questioned by the trial court
regarding his assets and income. At the conclusion of that conversation the court decided
that he qualified for court appointed counsel. Of particular significance with regard to the
imposition of the fine is the exchange that occurred during the sentencing hearing:
The Court: With regard to the financial sanctions, I am not going to assess
any fines in this matter –
[The State] Your Honor –
The Court: Yes.
[The State]: Unless I missed something –
The Court: That there is a mandatory fine with this one since it's a Felony
3?
[The State]: Yes, Your Honor.
The Court: All right then I will be assessing that mandatory fine at this time
because there is no affidavit of indigency regarding that, it's a $5000
mandatory minimum.
State v. McElfresh, 5th Dist. No. 20-COA-019, 2021-Ohio-480, 168 N.E.3d 71, ¶ 13.
Delaware County, Case No. 21 CAA 09 0042 8
{¶18} It is evident from this exchange that the trial court had no intent of imposing
a fine until the state brought to his attention that the fine was mandatory. Even then, the
mandatory fine was assessed expressly because there was no affidavit of indigency filed
with the court prior to sentencing. From these facts we determined that it was probable
the court would have waived the fine had trial counsel filed an affidavit of indigency and,
that therefore, McElfresh was prejudiced and had received ineffective assistance of
counsel.
{¶19} In State v. Warren, 5th Dist. Fairfield No. 18-CA-42, 2019-Ohio-2927, ¶ 85,
“[a]t the sentencing hearing, the trial court imposed $6,450.00 in fines, but suspended the
fines due to appellant's indigency and stated that it was going to give appellant time to
pay the fines.” Warren had filed an affidavit of indigency several months prior to his
sentencing which indicated that he was unemployed, homeless and had no income. The
presentence investigation report did not contain any information about his medical work
history but it did detail his extensive criminal history. Based upon those facts we found
that there was a reasonable probability that the trial court would have found defendant
indigent had trial counsel filed an affidavit prior to sentencing and that trial counsel was
ineffective for failing to move for waiver of the fines.
{¶20} Scott’s case is factually distinguishable from McElfresh and Warren. First,
we find no affidavit in the trial court’s record. We can conclude that there was, at some
time, a finding that Scott qualified for appointed counsel but we do not have any detail
from a signed affidavit of indigency from the trial court record.
{¶21} The parties in this case waived the completion of a presentence
investigation. The trial court carefully explained the purpose and expected content of a
Delaware County, Case No. 21 CAA 09 0042 9
presentence investigation report, but the parties agreed that none was necessary and
that they wished to proceed directly to sentencing without waiting for the completion of a
report. The record contains little information regarding Scott’s criminal history, and there
is not a presentence investigation that “indicates appellant was unemployed with no
assets prior to sentencing.” State v. Redden, 5th Dist. No. 19-COA-026, 2020-Ohio-878,
152 N.E.3d 919, ¶ 49.
{¶22} Further, the trial court issued a finding in this case related to his financial
status. The trial court ordered Scott to “pay the costs of the prosecution of this case for
which execution was awarded” and further that “that the Defendant has the ability to pay
all or some of the costs of any appointed-counsel fees in this case. If the Defendant was
represented by a public defender, the Defendant must pay $300 or the full amount of the
public-defender bill in this (whichever is less). This is a civil assessment and is not part of
the Defendant’s sentence.” (Judgment Entry on Guilty Plea and Sentencing, April 19,
2021, p. 4, 6).
{¶23} Scott relies upon the fact that the court appointed counsel to represent him
to establish his indigency and the ineffectiveness of his counsel for the failure to request
that the mandatory fine be waived. As we have noted above, a finding of indigency does
not automatically entitle Scott to a waiver of the mandatory fine. Instead, “the burden is
upon the offender to affirmatively demonstrate that he or she is indigent and is unable to
pay the mandatory fine.” (Emphasis added.) State v. Bowen, 5th Dist. Muskingum No.
CT2017-0103, 2018-Ohio-4220, ¶ 65. Scott has offered some evidence of his indigency,
but has not pointed to any evidence in the record that would support a conclusion that
there is a reasonable probability that the trial court would conclude that he was unable to
Delaware County, Case No. 21 CAA 09 0042 10
pay the fine. There are no comments from the trial court similar to McElfresh nor
suspension of fines due to indigency as noted in Warren. We find that the record supports
the conclusion that it is not probable that the fine would be waived.
{¶24} The record shows that the court was aware of the need to review Scott’s
ability to pay when it imposed costs and attorney fees in its sentencing entry. Further,
Scott bargained for the result that he received. He is not a victim of ineffective assistance,
but benefited from his counsel’s ability to negotiate an agreement that avoided a
significantly longer prison sentence. The presence of those factors and the absence of
any evidence to support a finding that the trial court would probably waive fines lead to
the conclusion that Scott’s counsel was not ineffective.
{¶25} Scott’s assignment of error is overruled and the decision of the Delaware
County Court of Common Pleas is affirmed.
By: Baldwin, J.
Hoffman, P.J. and
Wise, John, J. concur.