[Cite as State v. King, 2019-Ohio-1244.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 107282




                                           STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.

                                           DEONTE KING

                                                      DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED




                                     Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                          Case Nos. CR-17-620123-A and CR-17-623011-B

        BEFORE: Celebrezze, P.J., Sheehan, J., and Headen, J.

        RELEASED AND JOURNALIZED: April 4, 2019
ATTORNEYS FOR APPELLANT

Mark Stanton
Cuyahoga County Public Defender
BY: David Martin King
Assistant Public Defender
Courthouse Square, Suite 200
310 Lakeside Avenue
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Kevin E. Bringman
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




FRANK D. CELEBREZZE, JR., P.J.:

       {¶1} Defendant-appellant, Deonte King (“appellant”), brings this appeal challenging the

trial court’s imposition of a mandatory $7,500 fine. Specifically, appellant argues that he was

denied his constitutional right to the effective assistance of counsel because counsel failed to file

an affidavit of indigency.   After a thorough review of the record and law, this court affirms.

                               I.    Factual and Procedural History

       {¶2} Appellant was charged in two criminal cases for various drug-related offenses

committed in August 2017.           First, in Cuyahoga C.P. No. CR-17-620123-A, the Cuyahoga

County Grand Jury returned a ten-count indictment on September 21, 2017, charging appellant
with (1) drug trafficking, (2) drug possession, (3) drug trafficking, (4) drug possession, (5) drug

trafficking, (6) drug possession, (7) drug trafficking, (8) drug possession, (9) drug possession,

and (10) possessing criminal tools.    All ten counts contained forfeiture specifications.

       {¶3} Second, in Cuyahoga C.P. No. CR-17-623011-B, the Cuyahoga County Grand Jury

returned a seven-count indictment on December 18, 2017, charging appellant with (1) drug

trafficking, (2) drug possession, (3) drug trafficking, (4) drug possession, (5) drug trafficking, (6)

drug possession, and (7) permitting drug abuse. All seven counts contained one-year firearm

specifications and forfeiture specifications.

       {¶4} On April 9, 2018, appellant pled guilty in both criminal cases.                        In

CR-17-620123-A, appellant pled guilty to three counts of drug trafficking.                         In

CR-17-623011-B, appellant pled guilty to two counts of drug trafficking.             The trial court

ordered a presentence investigation report and set the matter for sentencing.

       {¶5} The trial court held a sentencing hearing on both criminal cases on May 9, 2018. In

CR-17-620123-A, the trial court sentenced appellant to a prison term of one year.                  In

CR-17-623011-B, the trial court sentenced appellant to a prison term of three years. The trial

court ordered appellant’s one- and three-year prison sentences to run concurrently with one

another, for an aggregate prison sentence in both cases of three years. Finally, the trial court

ordered appellant to pay the mandatory minimum fine of $7,500 for the drug trafficking offense

to which he pled guilty in CR-17-623011-B.      (Tr. 80.)

       {¶6} On June 8, 2018, appellant filed the instant appeal challenging the trial court’s

judgment. He assigns one error for our review:

       I.   [Appellant] was denied effective assistance of counsel in violation of the

       Sixth and Fourteenth Amendments to the United States Constitution and Article 1,
       Section 10 of the Ohio Constitution when his attorney failed to filed an indigency

       affidavit to waive the mandatory fine.

                                      II.   Law and Analysis

       {¶7} In his sole assignment of error, appellant argues that he was denied his constitutional

right to the effective assistance of counsel.

       {¶8} In order to prevail on a claim of ineffective assistance of counsel, a defendant must

demonstrate: (1) deficient performance by counsel, i.e., performance falling below an objective

standard of reasonable representation, and (2) counsel’s errors prejudiced the defendant, i.e., a

reasonable probability that but for counsel’s errors, the result of the proceeding would have been

different. Strickland v. 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.

       {¶9} In the instant matter, regarding the first Strickland prong, appellant argues that

counsel’s failure to file an affidavit of indigency to relieve him of the mandatory $7,500 fine

constituted deficient performance.

       {¶10} R.C. 2929.18 provides that a trial court at sentencing shall impose “a mandatory

fine upon an offender unless (1) the 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 (2) the court

determines that the offender is in fact an indigent person and is unable to pay the mandatory

fine.” State v. Gipson, 80 Ohio St.3d 626, 631, 687 N.E.2d 750 (1998).

       The trial court is required to impose a mandatory fine unless an affidavit of

       indigency is filed and the trial court determines that the defendant is indigent and

       unable to pay the mandatory fine.        State v. Powell, 78 Ohio App.3d 784, 605
       N.E.2d 1337 (3d Dist.1992); State v. Cravens, 42 Ohio App.3d 69, 536 N.E.2d

       686 (1st Dist.1988). Failure to file the affidavit constitutes ineffective assistance

       of counsel only if the record demonstrates that there exists a reasonable

       probability that the defendant would have been found indigent. Powell, supra.

State v. Ledbetter, 8th Dist. Cuyahoga No. 104077, 2017-Ohio-4291, ¶ 13.

       {¶11} In this case, it is undisputed that appellant’s trial counsel did not file an affidavit of

indigency before the sentencing hearing.     However, the record reflects that trial counsel did, in

fact, request that appellant be declared indigent with respect to the mandatory fine.      During the

sentencing hearing, the prosecutor asserted that the maximum fine for the drug trafficking

offense to which appellant pled guilty was $15,000, and the mandatory minimum fine was

$7,500. Thereafter, defense counsel requested that appellant be declared indigent because “he

has no funds, [and] hasn’t even paid [retained counsel].” (Tr. 79.)

       {¶12} Nevertheless, this court has held that counsel’s failure to file an affidavit of

indigency alleging that a defendant is unable to pay a mandatory fine only constitutes ineffective

assistance “when the record shows a reasonable probability that the trial court would have found

the defendant indigent and unable to pay the fine had the affidavit been filed.” State v. Cruz,

8th Dist. Cuyahoga No. 106098, 2018-Ohio-2052, ¶ 25, citing Ledbetter at ¶ 13, and State v.

Weaver, 8th Dist. Cuyahoga No. 67389, 1995 Ohio App. LEXIS 3302 (Aug. 10, 1995).

       {¶13} Appellant argues that had defense counsel filed an affidavit of indigency, “there is

a reasonable probability, indeed almost a certainty, that the trial court would have found [him]

indigent and thus waived the mandatory fine.”        Appellant’s brief at 4. After reviewing the

record, we disagree.
       {¶14} As noted above, during the sentencing hearing, defense counsel requested the trial

court to find appellant indigent and unable to pay the mandatory fine. The trial court considered

and denied defense counsel’s request. The trial court found that appellant was indigent at the

time of the May 9, 2018 sentencing hearing.    However, the trial court did not find that appellant

would be unable to pay the mandatory fine. The trial court explained,

       I’m going impose the minimum of $7,500 for the mandatory fine for the
       trafficking offense.

       I noted that [appellant is] indigent, but he’s also demonstrated a strong likelihood
       of being employed and employable. And I believe that upon his release from
       prison he will have the ability to pay off that fine and that his indigency status
       presently will not be a factor that is likely to appear in the future. So he has to
       pay that off.

(Tr. 80-81.)

       {¶15} In support of his argument that there is a reasonable probability that the trial court

would have waived the mandatory fine if counsel had filed an affidavit of indigency, appellant

directs this court to State v. Gilmer, 6th Dist. Ottawa No. OT-01-015, 2002 Ohio App. LEXIS

1971 (Apr. 26, 2002), State v. McDowell, 11th Dist. Portage No. 2001-P-0149, 2003-Ohio-5352,

and State v. Parsley, 10th Dist. Franklin No. 09AP-612, 2010-Ohio-1689. In all three cases, the

appellate court concluded that the defendant-appellant was denied the constitutional right to

effective assistance of counsel based on counsel’s failure to file an affidavit of indigency when

the defendant-appellant was facing a mandatory fine. In Gilmer, the Sixth District explained,

       there is enough information within the record of this case, including appellant’s

       age and spotty work history, the financial information contained within the

       presentence report, and the fact that appellant was represented by appointed

       counsel at the trial level, to warrant a remand. Indeed, we believe that it is
       reasonable to conclude that appellant, age forty-eight and cocaine dependent at the

       time of sentencing, facing nine years of incarceration and a $ 10,000 fine, could

       have proven himself indigent had he submitted a proper affidavit of indigency.

Gilmer at 6-7.

       {¶16} In McDowell, the Eleventh District explained,

       the presentencing investigation report provides evidence regarding appellant’s
       employment history and educational background. The report shows that
       appellant was unemployed at the time of his arrest and collecting $ 159.00 per
       week in unemployment. His most recent job as a welder and electrician paid $
       9.00 an hour. Appellant’s educational background was limited to a high school
       degree and a one hundred and twenty-hour security course.

       Based upon the above information, it is reasonable to conclude that appellant

       could have proven himself indigent had his counsel submitted an affidavit of

       indigency.

McDowell at ¶ 76-77.

       {¶17} In Parsley, the Tenth District explained,

       the presentence investigation report provides evidence of appellant’s employment
       history and background.         [McDowell at ¶ 76] (looking at presentence
       investigation report to determine whether or not trial counsel was ineffective for
       failing to file affidavit of indigency). The report shows that appellant had no
       source of income and no employment at the time of this offense. The report also
       indicated that he had no prior employment. Selling drugs was his only means of
       financial support. Appellant had only a high school education.

       In light of the presentence investigation report, there is a reasonable probability

       that the trial court would have found the defendant indigent, thereby relieving him

       of the obligation to pay a mandatory fine.

Parsley at ¶ 66-67.
        {¶18} In the instant matter, after reviewing the record, we find appellant’s reliance on

Gilmer, McDowell, and Parsley to be misplaced. First, as noted above, although appellant’s

counsel did not file an affidavit of indigency, counsel did, in fact, request that appellant be

declared indigent with respect to the mandatory fine. Second, unlike Gilmer, McDowell, and

Parsley, appellant did not have a spotty work history, nor was he unemployed at the time he

committed the offenses in August 2017. The record reflects that appellant had a history of both

full-time and temporary employment, which the trial court reviewed during the sentencing

hearing.

        {¶19} Appellant advised the trial court that he graduated from Max Hayes High School in

2011.      After graduating, appellant had full-time employment with Alcoa, an industrial

corporation, for approximately five years. (Tr. 63.) After he was laid off by Alcoa, appellant

was employed at Clark Reliance in Strongsville, Ohio, for approximately one year. (Tr. 64.)

Thereafter, appellant was employed through Great Lakes Carnival Exposition. (Tr. 62, 65.)

At the time of the sentencing hearing, appellant was employed by Presrite Corporation, working

in a plant. (Tr. 61, 65.)

        {¶20} Finally, unlike the limited educational background of the defendants in McDowell

and Parsley, appellant advised the trial court at sentencing that he is “enrolled in Tri-C”1 and has

completed 12 credit hours.      (Tr. 60.)   For all of these reasons, we find this case to be

distinguishable from Gilmer, McDowell, and Parsley.

        {¶21} Appellant also emphasizes that the trial court found him indigent during his

arraignment in CR-17-620123-A, and found him indigent for purposes of filing an appeal.

Appellant’s argument is misplaced and unsupported by the record.
       {¶22} As an initial matter, the record reflects that although the trial court found appellant

to be indigent and assigned the public defender’s office to represent appellant during his initial

appearance in CR-17-620123-A, appellant subsequently retained counsel to represent him in both

criminal cases. The trial court’s journal entry from appellant’s arraignment in CR-17-623011-B

provides, in relevant part, “[appellant] present with counsel. [Appellant] retained [M.G.] as

counsel.” The record reflects that the trial court found appellant to be indigent for purposes of

filing an appeal and appointed counsel to represent appellant during the May 9, 2018 sentencing

hearing.

       {¶23} Nevertheless, the fact that the trial court found appellant to be indigent and

appointed counsel to represent him does not necessarily establish that appellant is, or will be

unable to pay the mandatory fine.      Cruz, 8th Dist. Cuyahoga No. 106098, 2018-Ohio-2052, at ¶

28. “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.” Cruz at id., citing State v. Knox, 115 Ohio App.3d 313, 317, 685 N.E.2d 304

(8th Dist.1996), and State v. Williams, 105 Ohio App.3d 471, 483, 664 N.E.2d 576 (8th

Dist.1995).

       {¶24} Based on the foregoing analysis, we find that a reasonable probability does not

exist that the trial court would have waived the mandatory fine if appellant’s trial counsel had

filed an affidavit of indigency prior to the sentencing hearing.       Appellant’s counsel orally

moved the trial court to find appellant indigent for purposes of the mandatory fine, and the trial

court did, in fact, find that appellant was indigent at the time of sentencing.     The trial court



       1
           Cuyahoga County Community College.
concluded, however, that appellant would be able to pay the mandatory fine upon his release

from prison.

        {¶25} The trial court’s determination in this respect is supported by the evidence in the

record. Appellant had been employed on a regular basis after graduating from high school.

The record is devoid of any evidence of physical or mental disabilities that prevented, or would

prevent appellant upon his release from earning money to pay the fine. See Cruz at ¶ 30.

        {¶26} For all of the foregoing reasons, appellant’s ineffective assistance claim fails under

the second Strickland prong because he cannot demonstrate prejudice resulting from counsel’s

failure to file an affidavit of indigency.   The record fails to demonstrate a reasonable probability

that had counsel filed an affidavit of indigency, the trial court would have found appellant to be

indigent and unable to pay the mandatory fine.         In fact, the trial court expressly found that

appellant would be able to pay the fine upon his release, and thus, it is highly unlikely that the

trial court would have waived the mandatory fine if an affidavit of indigency was filed prior to

sentencing.

        {¶27} Appellant’s sole assignment of error is overruled.

        {¶28} Judgment affirmed.

        It is ordered that appellee recover from appellant 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. The defendant’s conviction having been affirmed,

any bail pending appeal is terminated.         Case remanded to the trial court for execution of

sentence.
       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

MICHELLE J. SHEEHAN, J., and
RAYMOND C. HEADEN, J., CONCUR
