State v. Clor , 2023 Ohio 1355 ( 2023 )

[Cite as State v. Clor, 2023-Ohio-1355.]
COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Craig R. Baldwin, J.
: Hon. Andrew J. King, J.
-vs- :
:
CHRISTINE NICOLE CLOR : Case No. 22-COA-023
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Court of Common
Pleas, Case No. 20-CRI-225
JUDGMENT: Affirmed
DATE OF JUDGMENT: April 26, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
NADINE HAUPTMAN BRIAN A. SMITH
110 Cottage Street 755 White Pond Drive
Third Floor Suite 403
Ashland, OH 44805 Akron, OH 44320
Ashland County, Case No. 22-COA-023 2
King, J.
{¶ 1} Defendant-Appellant, Christine Nicole Clor, appeals her June 30, 2022
sentence from the Court of Common Pleas of Ashland County, Ohio, ordering her to pay
court costs. Plaintiff-Appellee is the state of Ohio. We affirm the trial court.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On April 14, 2021, Clor pled guilty to one count of aggravated possession
of drugs in violation of R.C. 2925.11. By sentencing entry filed May 12, 2021, the trial
court sentenced her to ninety days of house arrest, twenty hours of community service,
and three years of community control.
{¶ 3} On May 10, 2022, community control violations were filed against Clor. On
May 27, 2022, she admitted to two of the violations. By sentencing entry filed June 30,
2022, the trial court ordered Clor to remain on three years of community control and serve
a residential sanction of up to six months at the Crosswaeh Community Based
Correctional Facility. The trial court also ordered Clor to serve ninety days in jail unless
and until she was admitted to Crosswaeh. The trial court ordered Clor to pay court costs.
{¶ 4} Clor filed an appeal with the following assignments of error:
I
{¶ 5} "THE TRIAL COURT'S FAILURE TO WAIVE APPELLANT'S COURT
COSTS WAS AN ABUSE TO DISCRETION."
II
{¶ 6} "THE FAILURE OF APPELLANT'S TRIAL COUNSEL TO SEEK A WAIVER
OF COURT COSTS CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL, IN
VIOLATION OF APPELLANT'S RIGHT TO COUNSEL UNDER THE SIXTH AND
Ashland County, Case No. 22-COA-023 3
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION."
I
{¶ 7} In her first assignment of error, Clor claims the trial court abused its
discretion in ordering her to pay court costs. We disagree.
{¶ 8} A decision to impose court costs is within a trial court's sound discretion.
State v. Braden, 158 Ohio St.3d 462, 2019-Ohio-4202, 145 N.E.3d 235, ¶ 21. In order to
find an abuse of discretion, we must determine the trial court's decision was
unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).
{¶ 9} R.C. 2947.23(A)(1)(a) states: "In all criminal cases, including violations of
ordinances, the judge or magistrate shall include in the sentence the costs of prosecution,
including any costs under section 2947.231 of the Revised Code, and render a judgment
against the defendant for such costs." Under subsection (C), a trial court "retains
jurisdiction to waive, suspend, or modify the payment of the costs of prosecution,
including any costs under section 2947.231 of the Revised Code, at the time of sentencing
or at any time thereafter." "The statutory language provides no explicit criteria that a court
should use in deciding whether to waive, suspend, or modify costs." State v. Taylor, 161
Ohio St.3d 319, 2020-Ohio-3514, 163 N.E.3d 486, ¶ 8. "[A] trial court is not required to
consider the defendant's ability to pay in assessing a motion to waive, suspend, or modify
court costs under R.C. 2947.23(C), though it is permitted to do so." Id. at ¶ 16.
{¶ 10} Clor argues court costs should not have been imposed because she is
indigent and her indigence was established during the May 27, 2022 community control
Ashland County, Case No. 22-COA-023 4
violation hearing. During the hearing, the trial court questioned Clor in determining her
qualifications for court appointed counsel. Clor testified she did not receive any public
assistance other than Medicaid. T. at 5. She earned "maybe $1,200 right now" per month
as income from her business selling "Amazon pallets." Id. However, she did not earn
any income thirty days prior to the hearing. Id. She did not have any money in her
business bank account, and she had $15 in her back pocket. T. at 6. She did not have
anything to sell to hire an attorney. T. at 7. The trial court determined Clor qualified for
court appointed counsel. Id. In addition to being indigent, Clor argues she was facing
incarceration.
{¶ 11} The evidence demonstrates Clor's business income was $14,400 per year,
albeit it could be uncertain. Clor had the ability to earn income. As for her pending
incarceration, she was sentenced to ninety days in jail unless and until she was admitted
to Crosswaeh, a residential facility for up to six months. The trial court stated beds were
available, "so it could probably be done in a week." June 30, 2022 T. at 7. Even
considering the full incarceration time, Clor will be able to be out and working within nine
months at the latest. We note at the time of May 27, 2022 community control violation
hearing, Clor was 36 years old. T. at 4.
{¶ 12} In addition, the trial court ordered the payment of court costs pursuant to a
payment plan. Id. at 11. The trial court then notified Clor if she failed to make the
payments, the trial court can order:
that you perform community service work for the purpose of working off the
Court costs, in which case for each hour of community work service
Ashland County, Case No. 22-COA-023 5
performed you would receive a credit at the Federal minimum wage rate in
effect at the time that you perform that work service. That credit would be
applied to the costs still outstanding and would reduce the costs by the
amount of that work service credit, and that court ordered community work
service to work off the court costs could remain in effect until the court costs
are paid or until you otherwise come into compliance with a payment plan
set up with your Supervising Officer.
{¶ 13} Clor will be placed on a payment plan and if she cannot make payments
from her business income, the trial court can order community service in exchange. There
is nothing in the record to indicate Clor cannot work. Clor has not established anything
unreasonable, arbitrary, or unconscionable about the trial court's decision to order the
payment of court costs.
{¶ 14} Upon review, we find the trial court did not abuse its discretion in ordering
Clor to pay court costs.
{¶ 15} Assignment of Error I is denied.
II
{¶ 16} In her second assignment of error, Clor claims her trial counsel was
ineffective for failing to seek a waiver of court costs. We disagree.
{¶ 17} "A properly licensed attorney in Ohio is presumed competent * * * [t]hus, the
burden of proving ineffectiveness is on the defendant." (Citations omitted.) State v.
Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985).
Ashland County, Case No. 22-COA-023 6
{¶ 18} The Supreme Court of Ohio has held when an indigent defendant makes
an ineffective assistance of counsel claim based upon trial counsel's failure to request a
waiver of court costs, a reviewing court must apply the test set forth in State v. Bradley,
42 Ohio St.3d 136, 538 N.E.2d 373 (1989), in determining whether the defendant received
ineffective assistance of counsel. State v. Davis, 159 Ohio St.3d 31, 2020-Ohio-309, 146
N.E.3d 560, ¶ 1. The Bradley test at paragraphs two and three of the syllabus is as
follows:
2. Counsel's performance will not be deemed ineffective unless and
until counsel's performance is proved to have fallen below an objective
standard of reasonable representation and, in addition, prejudice arises
from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2
O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)
3. To show that a defendant has been prejudiced by counsel's
deficient performance, the defendant must prove that there exists a
reasonable probability that, were it not for counsel's errors, the result of the
trial would have been different.
{¶ 19} "[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." Davis at paragraph two of the
Ashland County, Case No. 22-COA-023 7
syllabus. "[A] determination of indigency alone does not rise to the level of creating a
reasonable probability that the trial court would have waived costs had defense counsel
moved the court to do so." Id. at paragraph one of the syllabus.
Counsel's Performance
{¶ 20} In a previous case, this court analyzed whether trial counsel's failure to
request a waiver of court costs fell below an objective standard of reasonable
representation and violated any of counsel's essential duties to the defendant:
The adoption of R.C. 2947.23(C) now permits trial counsel flexibility
regarding a request for waiving costs. Prior to its adoption, a failure to
request of waiver of costs at sentencing resulted in a final judgment and a
prohibition of any further consideration of that issue. State v. Threatt, 108
Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, ¶ 23. Res judicata no
longer bars appellant from requesting a waiver at any time after sentencing.
"Trial counsel may have decided as a matter of strategy not to seek a waiver
or modification of court costs until some later time" and "[s]trategic timing
may now play a role in trial counsel's decision." State v. Farnese, 4th Dist.
Washington No. 15CA11, 2015-Ohio-3533, ¶ 16; State v. Purifoy, 2nd Dist.
Montgomery No. 28042, 2019-Ohio-2942, ¶ 28. We find that the timing of
a motion, seeking waiver of payment, is a matter of trial strategy. State v.
Southam, 6th Dist. Fulton No. F-18-004, 2018-Ohio-5288, ¶ 67, quoting
Ashland County, Case No. 22-COA-023 8
State v. Pultz, 6th Dist. Wood No. WD-14-083, 2016-Ohio-329, ¶ 61. And
a debatable trial strategy does not equal ineffective assistance of counsel.
Southam, supra at ¶ 68, quoting State v. Phillips, 74 Ohio St.3d 72, 85, 656
N.E.2d 643 (1995). State v. Moore, 6th Dist. Erie No. E-19-009, 2019-Ohio-
4609, ¶ 14. Accord State v. Boyd, 5th Dist. Richland No. 12CA23, 2013-
Ohio-1333, ¶ 26. ("Trial strategy and even debatable trial tactics do not
establish ineffective assistance of counsel," quoting State v. Conway, 109
Ohio St.3d 412, 2006-Ohio-2815, ¶ 101) and State v. McCall, 5th Dist.
Coshocton No. 2017CA0002, 2017-Ohio-7860, ¶ 43 ("Tactical or strategic
trial decisions, including timing of a motion, do not generally constitute
ineffective assistance").
State v. Eblin, 5th Dist. Muskingum No. CT2019-0036, 2020-Ohio-1216, ¶ 16. Accord
State v. Dooley, 5th Dist. Muskingum No. CT2019-0054, 2020-Ohio-3947, ¶ 29.
{¶ 21} Accordingly, pursuant to Eblin, we find trial counsel did not violate an
essential duty to Clor by not filing a motion to waive court costs at the sentencing hearing.
Prejudice
{¶ 22} In addition, we have reviewed the record and have not found any evidence
that would support the conclusion that there was a reasonable probability that the
outcome would have been different had a motion been filed. In Assignment of Error I, we
analyzed whether the trial court abused its discretion in ordering court costs and found
Ashland County, Case No. 22-COA-023 9
nothing within the facts and circumstances of this case to indicate that a failure to grant a
motion for waiver would have constituted an abuse.
{¶ 23} We conclude Clor has failed to demonstrate any prejudice.
{¶ 24} Upon review, we find Clor did not establish ineffective assistance of counsel
for trial counsel's failure to file a motion for a waiver of court costs.
{¶ 25} Assignment of Error II is denied.
{¶ 26} The judgment of the Court of Common Pleas of Ashland County, Ohio is
hereby affirmed.
By King, J.
Gwin, P.J. and
Baldwin, J. concur.
AJK/db