State v. Holt , 2020 Ohio 6650 ( 2020 )

[Cite as State v. Holt, 2020-Ohio-6650.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals No. L-19-1101
Appellee Trial Court No. CR0201802204
v.
Matthew Holt DECISION AND JUDGMENT
Appellant Decided: December 11, 2020
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Lauren Carpenter, Assistant Prosecuting Attorney, for appellee.
Emil G. Gravelle III, for appellant.
*****
MAYLE, J.
Introduction
{¶ 1} The defendant-appellant, Matthew Holt, was convicted of attempted
felonious assault and vandalism, sentenced to serve 24 months in prison, and ordered to
pay all costs by the Lucas County Court of Common Pleas. On appeal, Holt argues that
his trial counsel was ineffective for failing to request that the trial court waive his court
costs. For the reasons set forth below, we affirm the trial court’s judgment.
Facts and Procedural History
{¶ 2} On June 4, 2018, Holt went on a crime spree that began when he rammed his
truck into a vehicle being driven by a teenaged driver, whom Holt did not know. The
driver fled in his car, but Holt pursued him and hit the vehicle a second time before the
driver was able to get away. A short time later, Holt did the same thing to a stationary
vehicle, parked in the driveway of the home owned by his sister and brother-in-law. The
force of the impact caused his brother-in-law’s vehicle to collide into the home’s garage
door, causing damage to both vehicle and garage. The police responded to the incident
and found the brother-in-law “holding down” Holt. Holt had reportedly threatened him
and “smelled strongly of intoxicants.”
{¶ 3} Holt was indicted on five criminal counts: felonious assault, breaking and
entering, vandalism, aggravated menacing, and criminal damaging or endangering.
Following an indigency hearing, Holt was appointed counsel.
{¶ 4} At a change-of-plea hearing, Holt pled guilty to an amended charge of
attempted felonious assault, in violation of R.C. 2923.02 and 2903.11(A)(2) and (D), a
felony of the third degree (Count 1) and vandalism, in violation of R.C. 2909.05(A) and
(E), a felony of the fifth degree (Count 3). The state dismissed Counts 2, 4, and 5. The
trial court sentenced Holt to serve 24 months as to Count 1 and 11 months as to Count 3,
with the sentences to be served concurrently. The court ordered Holt to pay all costs,
including the costs of prosecution under R.C. 2947.23 and to pay restitution to both
vehicle owners. Holt appealed and asserts a single assignment of error for our review:
2.
1. The acts and omissions of trial counsel deprived Appellant of his
right to effective assistance of counsel in violation of his rights under the
Fifth, Sixth, and Fourteenth Amendments to the United States Constitution
and Article I, Section 10 and Section 16 of the Ohio Constitution.
Law and Analysis
{¶ 5} Holt alleges that his trial attorney rendered ineffective assistance of counsel
because he failed to move for the waiver of his court costs (which were limited to the
costs of prosecution) at sentencing.
{¶ 6} Costs of prosecution are those costs that are “directly related to the court
proceedings and identified by a specific statutory authorization.” State v. Christy, 3d
Dist. Wyandot No. 16-04-04, 2004-Ohio-6963, ¶ 22. R.C. 2947.23(A)(1)(a) provides
that, “[i]n all criminal cases, including violations of ordinances, the judge or magistrate
shall include in the sentence the costs of prosecution * * * and render a judgment against
the defendant for such costs.” The statute “requires a trial court to impose the costs of
prosecution against all convicted defendants.” State v. Davis, 159 Ohio St. 3d 31, 2020-
Ohio-309, 146 N.E.3d 560, ¶ 13. However, the statute also “allows a trial court to waive
the costs of prosecution at any time after sentencing.” Id. at ¶ 4, citing R.C. 2947.23(C)
(“The court retains jurisdiction to waive, suspend, or modify the payment of the costs of
prosecution * * * at the time of sentencing or at any time thereafter.”).
{¶ 7} “[W]hen an indigent defendant makes an ineffective-assistance-of-counsel
claim based upon counsel’s failure to request a waiver of court costs, a reviewing court
3.
must apply the test in State v. Bradley, 42 Ohio St. 3d 136, 141-142, 538 N.E.2d 373
(1989), which adopted the standard that had been announced in [Strickland v.
Washington, 446 U.S. 668, 194 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)].” Davis at ¶ 1. To
prevail on such a claim, “a defendant must prove that counsel’s performance was
deficient and that the defendant was prejudiced by counsel’s deficient performance.”
Davis at ¶ 10, citing Bradley at 141-142 and Strickland at 687. “Thus, the defendant
must demonstrate that counsel’s performance fell below an objective standard of
reasonableness and that there exists a reasonable probability that, but for counsel’s error,
the result of the proceeding would have been different.” Id. A reasonable probability is a
“probability sufficient to undermine confidence in the outcome.’” Id.
{¶ 8} Holt argues that trial counsel’s performance was deficient because he failed
in his “duty” to move for a waiver of court costs at sentencing. We disagree. Because
defendants have “flexibility” under R.C. 2947.23(C) as to when to request a waiver, the
decision not to request a waiver at sentencing and instead to postpone it until later has
been found to be a matter of trial strategy. State v. Eblin, 5th Dist. Muskingum No.
CT2019-0036, 2020-Ohio-1216, ¶ 16, citing State v. Pultz, 6th Dist. Wood No.
WD-14-083, 2016-Ohio-329, ¶ 61 (“[T]he decision of when to file the motion to waive
the payment of costs can be a matter of trial strategy.”); see also State v. Moore, 6th Dist.
Erie No. E-19-009, 2019-Ohio-4609, ¶ 14 (“[T]he timing of a motion, seeking waiver of
payment, is a matter of trial strategy.”); State v. Davis, 5th Dist. Licking No.
2017CA00055, 2020-Ohio-1353, ¶ 13-14 (Finding, on remand, that “trial counsel did not
4.
violate an essential duty to [the defendant] by not filing a motion to waive costs at the
sentencing hearing.”).
{¶ 9} Given that Holt’s claim of deficient performance is based entirely upon
counsel’s failure to seek a waiver at sentencing, we cannot find that Holt has overcome
the presumption that trial counsel’s inaction was anything other than trial strategy.
Indeed, a review of the sentencing transcript reveals that counsel’s priority was
persuading the court that Holt “would make an excellent candidate” for probation. To
that end, counsel stressed that, before this case, Holt had “never been a problem to
society,” and since committing the offenses, he had “not had any contact with * * * the
legal system.” Trial counsel also stressed that, while Holt suffered from past alcohol
abuse and psychological problems, he had quit drinking and was “taking care of” his
emotional health. In other words, trial counsel may have determined that Holt’s interests
would be best served by convincing the court to impose a less severe sentence, rather
than prioritizing a waiver of court costs. “Trial strategy and even debatable trial tactics
do not establish ineffective assistance of counsel.” State v. Conway, 109 Ohio St. 3d 412,
2006-Ohio-2815, 848 N.E.2d 810, ¶ 101. Under the facts of this case, we find that trial
counsel did not violate an essential duty to Holt by not filing a motion to waive costs at
the sentencing hearing. In the absence of any evidence of deficient performance by trial
counsel, Holt cannot show ineffective assistance under the first branch of the Bradley
test.
5.
{¶ 10} Moreover, we also find that Holt has failed to establish prejudice. In State
v. Davis, the Ohio Supreme Court recently addressed the prejudice branch of an
ineffective assistance claim that, like here, was predicated on trial counsel’s failure to
move for a waiver of court costs at sentencing. It found that the prejudice “analysis
remains the same” as in other ineffective assistance claims. Id. at ¶ 14. That is, “a court
must review the facts and circumstances of each case objectively and determine whether
the defendant demonstrated a reasonable probability that had his counsel moved to waive
court costs, the trial court would have granted the motion.” Id. at ¶ 14. The court in
Davis specifically found that an appellate court errs when it “rel[ies] on the fact that a
defendant may move for a waiver of costs at a later time under R.C. 2947.23(C) in its
prejudice analysis” because whether or not a defendant may do so “has little or no
bearing on whether the trial court would have granted the motion to waive court costs at
the time of sentencing.” Id. at ¶ 14.
{¶ 11} We have reviewed the “facts and circumstances” cited by Holt to support
his argument that there was a reasonable probability that the trial would have waived
court costs, had a motion been made. For example, Holt cites his mental health issues
and alcoholism as “other factors” that would have made the granting of a motion more
probable, but he then states, incorrectly, that “none of these issues were brought up by
[his] trial counsel.” As discussed in the preceding section, counsel did raise these issues,
albeit in the context of his sentence, not costs.
6.
{¶ 12} Holt also argues—without any specific details—that his “education” and
“current employment status” demonstrate that his costs should have been waived. But,
the trial court specifically found that Holt was “employable” based upon its review of the
presentence investigation report—which indicated that Holt had no significant criminal
record, had attended high school through the twelfth grade, and had some vocational
training. Based on this record, we cannot say that Holt’s education and employment
status would have made a motion more likely than not to have been granted.
{¶ 13} Finally, Holt argues that his costs should have been waived because he was
found to be indigent for purposes of being appointed trial counsel. But, “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.”
Davis at ¶ 15, citing State v. Dean, 146 Ohio St. 3d 106, 2015-Ohio-4347, 54 N.E.3d 80,
¶ 233; State v. Smith, 12th Dist. Warren No. CA2010-06-057, 2011-Ohio-1188, ¶ 63-64,
rev’d in part on other grounds, 131 Ohio St. 3d 297, 2012-Ohio-781, 964 N.E.2d 423 (An
indigent defendant fails to show that there is a reasonable probability that the trial court
would have waived costs when the trial court made a finding that the defendant had the
ability to work and therefore had the ability to pay the costs in the future).
{¶ 14} For all these reasons, we conclude that Holt has failed to establish that
there is a reasonable probability that the trial court would have waived the imposition of
court costs if Holt’s trial counsel had asked the trial court to waive those costs at
7.
sentencing. We therefore conclude that Holt did not suffer prejudice as a result of
counsel not filing a motion to wave costs. Dean at ¶ 233.
Conclusion
{¶ 15} We have reviewed the record in this matter and applied the analysis
required by Bradley, supra, and we conclude that Holt has not demonstrated that he
received ineffective assistance of counsel under either branch of the analysis required by
that case. Therefore, we find that Holt failed to establish ineffective assistance of counsel
for trial counsel’s failure to move for a waiver of costs. Accordingly, his assignment of
error is not well-taken.
{¶ 16} The April 25, 2019 judgment of the Lucas County Court of Common Pleas
is affirmed. Pursuant to App.R. 24, the costs of this appeal are charged to Holt.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Thomas J. Osowik, J.
_______________________________
Christine E. Mayle, 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/.
8.