[Cite as State v. Tomlinson, 2013-Ohio-3520.]


STATE OF OHIO                    )                   IN THE COURT OF APPEALS
                                 )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

STATE OF OHIO                                        C.A. No.      25924

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
DARREN JEFFREY TOMLINSON                             COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 10 08 2231 (A)

                                 DECISION AND JOURNAL ENTRY

Dated: August 14, 2013



        BELFANCE, Presiding Judge.

        {¶1}    Defendant-Appellant Darren Tomlinson moved to reopen his appeal from his

convictions in the Summit County Court of Common Pleas. This Court granted his application

to reopen, and the matter is now before us. For the reasons set forth below, we vacate our prior

decision and reverse.

                                                I.

        {¶2}    On August 19, 2010, Mr. Tomlinson was indicted on two counts of possessing

cocaine, in violation of R.C. 2925.11(A)(C)(4), two counts of trafficking in cocaine, in violation

of R.C. 2925.03(A)(C)(4); three counts of having weapons while under disability, in violation of

R.C. 2923.13(A)(3) and possessing criminal tools, in violation of R.C. 2923.24. All of the

possession and trafficking in cocaine counts also contained attendant forfeiture specifications,

pursuant to R.C. 2941.1417.
                                                 2


       {¶3}    A joint trial for Mr. Tomlinson and his co-defendant, Ms. Symphone Smith,

commenced on March 21, 2011. Thereafter, a jury found Mr. Tomlinson guilty on all counts

with the exception of the two trafficking counts. The trial court sentenced Mr. Tomlinson to a

total of eleven years in prison.

       {¶4}    Mr. Tomlinson appealed and this Court affirmed his convictions. See State v.

Tomlinson, 9th Dist. Summit No. 25924, 2012-Ohio-1441. Subsequently, Mr. Tomlinson filed a

motion to reopen which we granted.

                                                II.

       {¶5}    In State v. Graves, 9th Dist. Lorain No. 08CA009397, 2011-Ohio-5997, this

Court explained our obligations in a reopened appeal:

       Under Rule 26(B)(9) of the Ohio Rules of Appellate Procedure, “[i]f th[is][C]ourt
       finds that the performance of appellate counsel was deficient and the applicant
       was prejudiced by that deficiency, [it] shall vacate its prior judgment and enter the
       appropriate judgment. If th[is][C]ourt does not so find, [it] shall issue an order
       confirming its prior judgment.” Deficient performance by a lawyer is a
       performance that falls below an objective standard of reasonable representation.
       State v. Hale, 119 Ohio St.3d 118, 2008–Ohio–3426, [] ¶ 204[, ]citing Strickland
       v. Washington, 466 U.S. 668, 687–[6]88 (1984)[]. A defendant is prejudiced by
       the deficiency if there is a reasonable probability that, but for his lawyer’s errors,
       the result of the proceeding would have been different. [Hale at ¶ 204, ]citing
       Strickland [at 694.] “A reasonable probability is a probability sufficient to
       undermine confidence in the outcome.” Strickland[ at] 694.

Graves at ¶ 9. Upon our review of the record, we have concluded that the performance of Mr.

Tomlinson’s appellate counsel was deficient. Consequently, we vacate our opinion in State v.

Tomlinson, 9th Dist. Summit No. 25924, 2012-Ohio-1441, and enter the following judgment.
                                                 3


                                                III.

                                  ASSIGNMENT OF ERROR I

        THE TRIAL COURT ERRED BY FAILING TO PROVIDE DUE PROCESS AS
        OUTLINED IN OHIO RULES OF CRIMINAL PROCEDURE RULE 43(A) BY
        IMPOSING AN ADDITIONAL SENTENCE OF COSTS IN ITS SENTENCING
        ENTRY, BUT NOT IN OPEN COURT.

                                 ASSIGNMENT OF ERROR III

        THE TRIAL COURT COMMITTED PLAIN ERROR BY NOT FOLLOWING
        O.R.C.[ ]2947.23 IN GIVING MANDATORY NOTIFICATIONS TO
        DEFENDANT OF BOTH THE POTENTIAL FOR AN ORDER OF
        COMMUNITY SERVICE AND SUBSEQUENT CREDIT TOWARDS THE
        JUDGMENT AWARDED FOR COSTS.

        {¶6}    Mr. Tomlinson essentially asserts in his first and third assignments of error that

the trial court failed to comply with R.C. 2947.23 in imposing costs by (1) failing to notify him

that he would be required to pay costs and, (2) not notifying him of the consequences of failing

to pay costs. We agree.

        {¶7}    At the time of Mr. Tomlinson’s sentencing hearing, R.C. 2947.23(A)(1) provided

in pertinent part that

        [i]n 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. At the time the judge or magistrate imposes sentence,
        the judge or magistrate shall notify the defendant of both of the following:

        (a) If the defendant fails to pay that judgment or fails to timely make payments
        towards that judgment under a payment schedule approved by the court, the court
        may order the defendant to perform community service in an amount of not more
        than forty hours per month until the judgment is paid or until the court is satisfied
        that the defendant is in compliance with the approved payment schedule.

        (b) If the court orders the defendant to perform the community service, the
        defendant will receive credit upon the judgment at the specified hourly credit rate
        per hour of community service performed, and each hour of community service
        performed will reduce the judgment by that amount.

Former R.C. 2947.23(A).
                                                4


       {¶8}    “This Court has concluded that ‘[t]he statute requires both that the trial court (1)

notify the defendant at the time of sentencing that costs will be assessed so that he has an

opportunity to seek a waiver, and (2) notify the defendant that his failure to pay the costs could

result in imposition of community service, but that he would receive credit toward the costs from

any community service imposed.’” State v. Boone, 9th Dist. Summit No. 26104, 2013-Ohio-

2664, ¶ 29, quoting State v. Williams, 9th Dist. Summit No. 26014, 2012-Ohio-5873, ¶ 23. In

the instant matter, the trial court failed to inform Mr. Tomlinson of the notifications required by

R.C. 2947.23(A)(1) at sentencing, yet, imposed costs in its sentencing entry. Therefore, we

“reverse the trial court’s imposition of court costs and remand for the proper imposition of court

costs in accordance with the requirements set forth in R.C. 2947.23(A)(1).” State v. Debruce,

9th Dist. Summit No. 25574, 2012-Ohio-454, ¶ 38. Mr. Tomlinson’s first and third assignments

of error are sustained.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT DENIED MR. TOMLINSON HIS RIGHTS UNDER
       O.R.C. []2929.19(B) AND TO DUE PROCESS UNDER THE OHIO AND
       UNITED STATES CONSTITUTION AND ABUSED ITS DISCRETION BY
       IMPOSING A FINE WITHOUT INQUIRING INTO HIS ABILITY TO PAY
       WITHOUT UNDUE HARDSHIP.

       {¶9}    Mr. Tomlinson asserts in his second assignment that the trial court erred in

imposing a mandatory financial sanction without determining Mr. Tomlinson’s ability to pay that

sanction. We agree.

       {¶10} At the time of Mr. Tomlinson’s sentencing hearing, R.C. 2929.19(B)(6) stated

that “[b]efore imposing a financial sanction under section 2929.18 of the Revised Code or a fine

under section 2929.32 of the Revised Code, the court shall consider the offender’s present and

future ability to pay the amount of the sanction or fine.” In the instant matter, the trial court
                                                  5


imposed a $2500 mandatory fine in its sentencing entry, but there is nothing in the record that

indicates that the trial court considered Mr. Tomlinson’s ability to pay the amount of the fine.

       {¶11} While the trial court’s journal entries prior to sentencing indicate that a “summary

pre-sentence investigation and report” was ordered, there is nothing which suggests one was

actually completed. A pre-sentence investigation report is not mentioned at the sentencing

hearing or in the judgment entry of conviction, and none is present in the record on appeal.

Moreover, the State has not asserted that a pre-sentence investigation report was completed but

not made part of the record on appeal. Further, while there is discussion at the sentencing

hearing that seems to indicate that Mr. Tomlinson was able to retain counsel for trial, Mr.

Tomlinson’s trial counsel also indicated that Mr. Tomlinson had no funds to retain counsel for

appeal. See Williams at ¶ 19, quoting State v. Andrews, 1st Dist. Hamilton No. C-110735, 2012-

Ohio-4664, ¶ 29 (noting in a parenthetical that “‘[a]n offender’s ability to pay a fine over a

period of time is not equivalent to the ability to pay legal counsel a retainer fee at the outset of

the criminal proceedings[]’”). There was no discussion about Mr. Tomlinson’s ability to pay the

mandatory fine, nor is there any financial information in the record before us that would have

allowed the trial court to make that determination. Thus, Mr. Tomlinson did not have an

opportunity to challenge his ability to pay the fine. Finally, the trial court did not expressly state

at the sentencing hearing or in the judgment entry of conviction that it considered Mr.

Tomlinson’s ability to pay the fine before ordering him to pay it.1




       1
         We note that, even if the trial court had stated at the sentencing hearing or in the
judgment entry that it had considered Mr. Tomlinson’s ability to pay, there is no financial
information in the record which would support such a statement.
                                                 6


       {¶12} In light of the foregoing, the record does not support the conclusion that the trial

court considered Mr. Tomlinson’s ability to pay the fine before imposing it as required by former

R.C. 2929.19(B)(6). Accordingly, Mr. Tomlinson’s second assignment of error is sustained.

                                                IV.

       {¶13} This Court sustains Mr. Tomlinson’s assignments of error and remands the matter

to the Summit County Court of Common Pleas for proceedings consistent with this opinion.

                                                                               Judgment reversed
                                                                             and cause remanded.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                      EVE V. BELFANCE
                                                      FOR THE COURT
                                                7


WHITMORE, J.
CONCURS.

CARR, J.
CONCURRING IN JUDGMENT ONLY.

       {¶14} Although I agree that this matter must be remanded for resentencing, I would not

vacate our prior decision in Mr. Tomlinson's direct appeal. Instead, I would confirm our prior

judgment, but remand the matter to the trial court for the proper imposition of court costs. State

v. DeBruce, 9th Dist. Summit No. 25574, 2012-Ohio-454 2012, ¶ 36-38.


APPEARANCES:

HEATHER R. JOHNSTON, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
