[Cite as State v. Dooley, 2020-Ohio-3947.]


                                       WCOURT OF APPEALS
                                    MUSKINGUM COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  :   JUDGES:
                                                :
                                                :   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                      :   Hon. Patricia A. Delaney, J.
                                                :   Hon. Earle E. Wise, Jr., J.
 -vs-                                           :
                                                :   Case No. CT2019-0054
                                                :
 JASON F. DOOLEY                                :
                                                :
                                                :
        Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Muskingum County
                                                    Court of Common Pleas, Case No.
                                                    CR2019-0115



JUDGMENT:                                           AFFIRMED




DATE OF JUDGMENT ENTRY:                             August 3, 2020




APPEARANCES:

 For Plaintiff-Appellee:                            For Defendant-Appellant:

 D. MICHAEL HADDOX                                  JAMES A. ANZELMO
 MUSKINGUM COUNTY PROSECUTOR                        446 Howland Dr.
                                                    Gahanna, OH 43230
 TAYLOR P. BENNINGTON
 27 N. 5th St., P.O. Box 189
 Zanesville, OH 43702-0189
Muskingum County, Case No. CT2019-0054                                                                  2


Delaney, J.

        {¶1} Defendant-Appellant Jason F. Dooley appeals the May 14, 2019 sentencing

entry of the Muskingum County Court of Common Pleas. Plaintiff-Appellee is the State of

Ohio.

                                   STATEMENT OF THE CASE1

        {¶2} On February 13, 2019, the Muskingum County Grand Jury indicted

Defendant-Appellant Jason F. Dooley on one count of escape, a fifth-degree felony in

violation of R.C. 2921.34(A)(3). Dooley was arraigned on March 20, 2019 and entered a

plea of not guilty.

        {¶3} Dooley withdrew his not guilty plea and entered a plea of guilty on May 13,

2019. A change of plea hearing was held on May 13, 2019. At the hearing, the State

presented the three-page plea form signed by Dooley and his counsel. The trial court

conducted its colloquy with Dooley. Relevant to this appeal, the trial court asked Dooley

the following:

        THE COURT: Are you currently under the influence of any alcohol or drugs?

        THE DEFENDANT: No, sir.

        THE COURT: Have you used any substances within the last 24 hours?

        THE DEFENDANT: No, sir.

        THE COURT: Do you take any type of medication?

        THE DEFENDANT: Just my psych meds.

        THE COURT: And is that affecting your ability to understand what is going

        on here today?


1A statement of the facts underlying Dooley’s conviction is not necessary for the disposition of this
appeal.
Muskingum County, Case No. CT2019-0054                                                  3


       THE DEFENDANT: No, sir.

(T. 7-8). The trial court completed the colloquy and accepted Dooley’s guilty plea.

       {¶4} The trial court sentenced Dooley to a seven-month prison term via

sentencing entry filed May 14, 2019.

       {¶5} It is from this sentencing entry Dooley now appeals.

                                ASSIGNMENTS OF ERROR

       {¶6} Dooley raises two Assignments of Error:

       {¶7} “I. THE TRIAL COURT DID NOT MAKE SUFFICIENT INQUIRY TO

DETERMINE WHETHER DOOLEY’S MEDICATION FOR A PSYCHIATRIC CONDITION

INTERFERED WITH HIS ABILITY TO MAKE A KNOWING, INTELLIGENT, AND

VOLUNTARY PLEA.

       {¶8} “II. DOOLEY RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, IN

VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION

AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.”

                                         ANALYSIS

                                               I.

       {¶9} Dooley argues in his first Assignment of Error that the trial court failed to

ensure that he entered his guilty pleas knowingly, intelligently, and voluntarily because

the court failed to adequately inquire into the effect Dooley’s psychiatric medication had

on his ability to understand the proceedings. We note that Dooley does not contend in his

appeal that he was on fact impaired during the colloquy and incapable of entering his

guilty plea knowingly, intelligently, and voluntarily.
Muskingum County, Case No. CT2019-0054                                                   4


                                       Crim.R. 11

       {¶10} “ ‘When a defendant enters a plea in a criminal case, the plea must be made

knowingly, intelligently, and voluntarily. Failure on any of those points renders

enforcement of the plea unconstitutional under both the United States Constitution and

the Ohio Constitution.’ ” State v. Hurt, 5th Dist. Muskingum No. CT2019-0053, 2020-Ohio-

2754, 2020 WL 2120071, ¶ 17 quoting State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-

5200, 897 N.E.2d 621, ¶ 7 quoting State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d

450 (1996). “An appellate court determining whether a guilty plea was entered knowingly,

intelligently, and voluntarily conducts a de novo review of the record to ensure that the

trial court complied with the constitutional and procedural safeguards.” State v. Moore,

4th Dist. Adams No. 13CA965, 2014-Ohio-3024, 2014 WL 3359226, ¶ 13.

       {¶11} To ensure that pleas conform to these high standards, the trial judge must

engage the defendant in a colloquy before accepting his or her plea. See State v. Ballard,

66 Ohio St.2d 473, 423 N.E.2d 115 (1981), paragraph one of the syllabus; Crim.R. 11(C),

(D), and (E). It follows that, in conducting this colloquy, the trial judge must convey

accurate information to the defendant so that the defendant can understand the

consequences of his or her decision and enter a valid plea. State v. Clark, 119 Ohio St.3d

239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 26. If a defendant receives the proper

information, a reviewing court “can ordinarily assume that he understands that

information.” State v. Carter, 60 Ohio St.2d 34, 38, 396 N.E.2d 757 (1979).

       {¶12} Before accepting a guilty plea in a felony case a trial court must address the

defendant personally and determine that “the defendant is making the plea voluntarily,

with understanding of the nature of the charges and of the maximum penalty involved,
Muskingum County, Case No. CT2019-0054                                                      5


and, if applicable, that the defendant is not eligible for probation or for the imposition of

community control sanctions at the sentencing hearing.” Crim.R. 11(C)(2)(a). The court

must also inform the defendant of both the constitutional and nonconstitutional rights he

is waiving and determine that he “understands the effect of the plea of guilty or no contest,

and that the court, upon acceptance of the plea, may proceed with judgment and

sentence.” Crim.R. 11(C)(2)(b). Finally, the court must determine that the defendant

understands that he “is waiving the rights to jury trial, to confront witnesses against him

or her, to have compulsory process for obtaining witnesses in the defendant's favor, and

to require the state to prove the defendant's guilt beyond a reasonable doubt at a trial at

which the defendant cannot be compelled to testify against himself or herself.” Crim.R.

11(C)(2)(c). Strict compliance with Crim.R. 11(C)(2)(c) is required because constitutional

rights are involved. “However, failure to [literally comply] will not necessarily invalidate a

plea.

        {¶13} “The underlying purpose, from the defendant's perspective, of Crim.R.

11(C) is to convey to the defendant certain information so that he can make a voluntary

and intelligent decision whether to plead guilty.” Veney at ¶ 18 quoting State v. Ballard,

66 Ohio St.2d 473, 479–480, 423 N.E.2d 115 (1981). When a trial court complies with

Crim.R. 11(C)(2) in accepting a plea, there is a presumption that the defendant's plea was

knowingly, intelligently, and voluntarily made. State v. Montanez, 8th Dist. Cuyahoga No.

108093, 2020-Ohio-1023, 2020 WL 1310343, ¶ 8 citing State v. Alexander, 8th Dist.

Cuyahoga No. 103754, 2016-Ohio-5707, ¶ 11; State v. Murray, 12th Dist. Brown No.

CA2015-12-029, 2016-Ohio-4994, ¶ 20.
Muskingum County, Case No. CT2019-0054                                                 6


                                       Medication

       {¶14} When asked if he was taking any type of medication, Dooley advised the

trial court he was taking psychiatric medication. The trial court next asked:

       THE COURT: And is that affecting your ability to understand what is going

       on here today?

       THE DEFENDANT: No, sir.

(T. 7-8). Dooley contends it was error for the trial court to end the inquiry and not ask

follow up questions such as what medication he was taking and if the medications affected

his ability to understand the Crim.R. 11 colloquy.

       {¶15} In State v. Montanez, 8th Dist. Cuyahoga No. 108093, 2020-Ohio-1023, the

defendant advised the trial court he was taking medication for anxiety and panic attacks

during the plea colloquy. Id. at ¶ 9. The trial court asked what medication the defendant

was taking and asked follow-up questions to determine if the medication affected his

ability to understand the Crim.R. 11 colloquy:

       THE COURT: Okay. Does your medication at all impact on your ability to

       think clearly, to hear clearly and understand what's going on at all?

       THE DEFENDANT: When it first starts kicking in, I feel a pulsation in my

       head, the whole front of my head.

       THE COURT: How are you feeling right now? It's about 10:00 now, 10:05.

       How are you feeling now?

       THE DEFENDANT: Nervous.

       THE COURT: Well that's natural. Are you otherwise thinking clearly,

       understanding what we're talking about, everything like that?
Muskingum County, Case No. CT2019-0054                                                    7


        THE DEFENDANT: 80 percent.

        THE COURT: Okay. Is there something that I've said so far or that is

        happening so far that you're not clear on?

        THE DEFENDANT: No, not yet.

        THE COURT: If that happens, would you make sure you let me know

        because I will be — like I said, we will be going back and forth with these

        questions, and I can only rely upon what your answers are. Okay?

        THE DEFENDANT: Okay.

Id. at ¶ 9.

        {¶16} The Eighth District Court of Appeals has held that where a trial court

complies with the dictates of Crim.R. 11(C), the resulting guilty plea is presumed valid

even though the defendant took medication that could impact the defendant's ability to

think clearly and rationally as long as the record supports that finding. State v. Montanez,

8th Dist. Cuyahoga No. 108093, 2020-Ohio-1023, 2020 WL 1310343, ¶ 10 citing State v.

Brown, 8th Dist. Cuyahoga No. 103835, 2016-Ohio-5415. In Montanez, the defendant

indicated he was satisfied with his legal counsel. The trial court explained the defendant’s

constitutional rights and the defendant indicated that he understood. The defendant also

indicated that he understood the maximum penalties, post-release control, and

mandatory sex-offender registration. Id. at ¶ 12. The Eighth District found the trial court

complied with Crim.R. 11, the defendant understood the proceedings, and he was

capable of entering his guilty pleas knowingly, intelligently, and voluntarily. Id.

        {¶17} In State v. Back, 5th Dist. Ashland No. 2019-COA-028, 2020-Ohio-451, this

Court found the trial court complied with Crim.R. 11 after the defendant informed the court
Muskingum County, Case No. CT2019-0054                                                   8


that he was taking medication for depression and anxiety. The trial court asked if the

medications impaired the defendant’s ability to comprehend and understand things.

Unlike Montanez, the defendant in Back gave a definitive answer that the medications did

not affect his ability to comprehend and understand things. Id. at ¶ 22-23. When asked if

he was entering the plea voluntarily and under his own free will, the defendant indicated

that he was. In addition, defendant acknowledged that he signed a written waiver and

plea of guilty document. Id. at ¶ 29. We found no evidence in the record supporting the

defendant’s assertion that he was “mentally incapable of fully understanding the plea

discussion and discourse” due to prescription medication. Id. at ¶ 30.

       {¶18} We find the facts of the present case can be differentiated from those in

Montanez. In Montanez, when asked if the medications impacted the defendant’s ability

to think clearly, the defendant did not say “no” – he said that when the medications kicked

in, he felt a pulsing in his head. The defendant’s answer prompted the trial court to

conduct a more in-depth inquiry to determine if the medications affected the defendant’s

capability to understand the proceedings.

       {¶19} In the present case, the trial court asked if Dooley was taking any

medications. Dooley answered that he was taking psychiatric medications. The trial court

asked Dooley if the medications affected his ability to understand the change of plea

proceedings and Dooley answered, “No, sir.” Akin to the facts of State v. Back, when

Dooley answered that the medication did not affect his ability to understand the

proceedings, further inquiry by the trial court was not necessary.

       {¶20} The totality of the plea colloquy demonstrated that Dooley understood the

proceedings. Dooley indicated he was satisfied with his legal counsel. The trial court
Muskingum County, Case No. CT2019-0054                                                     9


explained Dooley’s constitutional rights and Dooley indicated that he understood. Dooley

also indicated that he understood the maximum penalties and the termination of his post-

release control. Further, Dooley was able to deftly discuss his remaining post-release

control with the trial court:

       THE COURT: How much time does he have on PRC?

       THE DEFENDANT: They gave me three years parole for the felony five,

       Your Honor.

       MR. MCLENDON: How much time left?

       THE DEFENDANT: I got December until now, about four months, so it’s two

       years and eight months left.

(T. 13-14).

       {¶21} On this record, we find the trial court complied with Crim.R. 11. We find no

reason to doubt that Dooley understood the proceedings and was capable of entering his

guilty plea knowingly, intelligently, and voluntarily.

       {¶22} Dooley’s first Assignment of Error is overruled.

                                              II.

       {¶23} In his second Assignment of Error, Dooley contends he received ineffective

assistance of counsel because his trial counsel failed to request the trial court waive court

costs due to Dooley’s indigency.

       {¶24} In State v. Davis, 159 Ohio St.3d 31, 2020-Ohio-309, 146 N.E.3d 560, the

Ohio Supreme Court directed that “when 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 must apply the test in State v. Bradley, 42 Ohio St.3d 136, 141-
Muskingum County, Case No. CT2019-0054                                                   10


142, 538 N.E.2d 373 (1989), which adopted the standard that had been announced in

Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)], for

determining whether a defendant received ineffective assistance of counsel.” Id. at ¶ 1.

       {¶25} Our standard of review for ineffective assistance claims is set forth in

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ohio

adopted this standard in the case of State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373

(1989). These cases require a two-pronged analysis in reviewing a claim for ineffective

assistance of counsel. First, we must determine whether counsel's assistance was

ineffective; i.e., whether counsel's performance fell below an objective standard of

reasonable representation and was violative of any of his or her essential duties to the

client. If we find ineffective assistance of counsel, we must then determine whether or not

the defense was actually prejudiced by counsel's ineffectiveness such that the reliability

of the outcome of the trial is suspect. This requires a showing there is a reasonable

probability that but for counsel's unprofessional error, the outcome of the trial would have

been different. Id.

       {¶26} Trial counsel is entitled to a strong presumption all decisions fall within the

wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675,

693 N.E.2d 267 (1998). In addition, the United States Supreme Court and the Ohio

Supreme Court have held a reviewing court “need not determine whether counsel's

performance was deficient before examining the prejudice suffered by the defendant as

a result of the alleged deficiencies.” Bradley at 143, 538 N.E.2d 373, quoting Strickland

at 697, 104 S.Ct. 2052. Even debatable trial tactics and strategies do not constitute
Muskingum County, Case No. CT2019-0054                                                   11


ineffective assistance of counsel. State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189

(1980).

       {¶27} R.C. 2947.23, which governs judgment for costs, provides, in pertinent part:

“In 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.” R.C. 2947.23(A)(1)(a). However, subsection (C) permits the

trial court to retain jurisdiction “to waive, suspend, or modify the payment of the costs of

prosecution * * * at the time of sentencing or at any time thereafter.” Therefore, a trial

court has discretion to waive the payment of court costs whether a defendant is indigent

or not. The trial court's decision regarding whether to waive costs is, therefore, “reviewed

under an abuse-of-discretion standard.” State v. Eblin, 5th Dist. Muskingum No. CT2019-

0036, 2020-Ohio-1216, 2020 WL 1531785, ¶ 13 citing State v. Braden, 158 Ohio St.3d

462, 2019-Ohio-4204, 145 N.E.3d 235.

                                    Essential Duties

       {¶28} We first review the record to determine whether trial counsel failed in his

essential duties to Dooley by failing to request a waiver of court costs under R.C. 2947.23.

State v. Eblin, 5th Dist. Muskingum No. CT2019-0036, 2020-Ohio-1216, 2020 WL

1531785, ¶ 14 citing Bradley, supra. We are guided by Strickland, supra to describe the

deference used in such an analysis:

       A fair assessment of attorney performance requires that every effort be

       made to eliminate the distorting effects of hindsight, to reconstruct the

       circumstances of counsel's challenged conduct, and to evaluate the

       conduct from counsel's perspective at the time. Because of the difficulties
Muskingum County, Case No. CT2019-0054                                                 12


       inherent in making the evaluation, a court must indulge a strong

       presumption that counsel's conduct falls within the wide range of

       reasonable professional assistance; that is, the defendant must overcome

       the presumption that, under the circumstances, the challenged action

       “might be considered sound trial strategy.” See Michel v. Louisiana, supra,

       350 U.S., at 101, 76 S.Ct., at 164. There are countless ways to provide

       effective assistance in any given case. Even the best criminal defense

       attorneys would not defend a particular client in the same way.

       {¶29} In State v. Eblin, we conducted an analysis of whether counsel’s failure to

request a waiver of court costs fell below an objective standard of reasonable

representation and was violative of any of counsel’s essential duties to the client:

       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.
Muskingum County, Case No. CT2019-0054                                                     13


       Southam, 6th Dist. Fulton No. F-18-004, 2018-Ohio-5288, ¶ 67, quoting

       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, 2020 WL

1531785, ¶¶ 16-17

       {¶30} Accordingly, pursuant to State v. Eblin, we hold that trial counsel did not

violate an essential duty to Dooley by not filing a motion to waive costs at the sentencing

hearing.

                                   Reasonable Probability

       {¶31} Dooley relies on the trial court's findings that he was indigent for

appointment of trial and appellant counsel to support his argument that there was a

reasonable probability that the trial court would have waived costs.

       {¶32} In State v. Davis, the Ohio Supreme Court stated that “a determination of

indigency alone does not rise to the level of creating a reasonable probability that the trial
Muskingum County, Case No. CT2019-0054                                                     14


court would have waived costs had defense counsel moved the court to do so” and,

instead we must determine “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, 2020-Ohio-309

at ¶ 15-16.

       {¶33} Dooley has not presented any facts or circumstances, other than his

indigency, to support a finding that there was a reasonable probability that trial court would

have granted the request to waive costs. We have reviewed the record before us and

found nothing that would support the conclusion that there was a reasonable probability

that the outcome would have changed had a motion been filed. We conclude that Dooley

has failed to demonstrate a reasonable probability that the outcome would have changed

and therefore, Dooley did not suffer prejudice as a result of counsel not filing a motion to

waive costs.

       {¶34} Pursuant to Strickland, supra, we find Dooley did not to establish ineffective

assistance of counsel for trial counsel’s failure to move for a waiver of costs.

       {¶35} Dooley’s second Assignment of Error is overruled.
Muskingum County, Case No. CT2019-0054                                 15


                               CONCLUSION

       {¶36} The judgment of the Muskingum County Court of Common Pleas is

affirmed.

By: Delaney, J.,

Gwin, P.J. and

Wise, Earle, J., concur.
