[Cite as State v. Ramsey, 2020-Ohio-3107.]


                                       COURT OF APPEALS
                                     LICKING 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-                                         :
                                             :
ROBERT J. RAMSEY                             :      Case No. 17-CA-76
                                             :
        Defendant-Appellant                  :      OPINION




CHARACTER OF PROCEEDING:                            On Remand from the Supreme Court
                                                    of Ohio, Case No. 2018-1225




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   May 21, 2020




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

DANIEL J. BENOIT                                    JAMES A. ANZELMO
20 South Second Street                              446 Howland Drive
Fourth Floor                                        Gahanna, OH 43230
Newark, OH43055
Licking County, Case No. 17-CA-76                                                       2


Wise, Earle, J.

       {¶ 1} On remand from the Supreme Court of Ohio. State v. Ramsey, --- N.E.3d

---, 2020-Ohio-708, rev'd and remanded on the authority of State v. Davis, --- N.E.3d ---,

2020-Ohio-309.

                         FACTS AND PROCEDURAL HISTORY

       {¶ 2} On March 30, 2017, the Licking County Grand Jury indicted appellant on

one count of aggravated possession of drugs in violation of R.C. 2925.11, one count of

illegal assembly or possession of chemicals for the manufacture of drugs in violation of

R.C. 2925.041, one count of having a weapon while under disability in violation of R.C.

2923.13, and one count of illegal manufacture of drugs in violation of R.C. 2925.04.

       {¶ 3} A bench trial was scheduled for July 26, 2017. On the morning of trial,

appellant pled guilty to the possession and disability counts. The remaining charges

proceeded to trial. The trial court found appellant guilty as charged.

       {¶ 4} Prior to sentencing, appellant filed a motion to dismiss his counsel,

claiming his counsel was ineffective. The trial court denied the motion. By judgment

entry filed September 11, 2017, the trial court sentenced appellant to an aggregate term

of five years in prison and ordered him to pay court costs and a $7,500.00 fine. The fine

was suspended due to appellant's indigence.

       {¶ 5} Appellant filed an appeal wherein he argued in part his trial counsel was

ineffective for failing to request a waiver of court costs. In our opinion filed June 18,

2018, State v. Ramsey, 5th Dist. Licking No. 17-CA-76, 2018-Ohio-2365, we disagreed,

finding the following at ¶ 45-46:
Licking County, Case No. 17-CA-76                                                       3


              In State v. Davis, 5th Dist. Licking No. 17-CA-55 (Dec. 20, 2017), ¶

      27, this court reviewed this exact issue and determined the following:



                     We find no merit in Appellant's allegation that he

              received ineffective assistance of counsel as a result of his

              attorney failing to request that the trial court waive court

              costs. Because R.C. 2947.23(C) grants appellant the ability

              to seek waiver of costs at any time, including after

              sentencing, Appellant has not been prejudiced by the failure

              of his counsel to request a waiver at sentencing.



              We note this court's decision in Davis has been accepted for review

      by the Supreme Court of Ohio upon certification of a conflict with the

      decision in State v. Springer, 8th Dist. Cuyahoga No. 104649, 2017-Ohio-

      8861.



      {¶ 6} In the Springer case, the Eighth District relied on its prior opinion in State

v. Gibson, 8th Dist. Cuyahoga No. 104363, 2017-Ohio-102, ¶ 16:



              Here, the trial court's prior finding that Gibson was indigent, and its

      subsequent finding in the journal entry of sentencing that Gibson was

      indigent and appointment of appellate counsel for him, demonstrate a

      reasonable probability that the trial court would have waived costs had
Licking County, Case No. 17-CA-76                                                       4


       counsel made a timely motion. Counsel's failure to seek a waiver of costs

       based on Gibson's indigency was deficient and prejudiced Gibson.



       {¶ 7} In State v. Davis, --- N.E.3d ---, 2020-Ohio-309, ¶ 1, the Supreme Court of

Ohio reviewed the Davis and Springer decisions on the following certified question:

"whether trial counsel's failure to file a motion to waive court costs at a defendant's

sentencing hearing constitutes ineffective assistance of counsel when the defendant

has previously been found indigent."        The Supreme Court declined to answer the

question "in either the affirmative or the negative," explaining the following (Id.):



              Rather, a court's finding of ineffective assistance of counsel

       depends on the facts and circumstances in each case. See Strickland v.

       Washington, 466 U.S. 668, 688-689, 104 S.Ct. 2052, 80 L.Ed.2d 674

       (1984). We hold 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, 141-142, 538 N.E.2d 373 (1989), which

       adopted the standard that had been announced in Strickland, for

       determining whether a defendant received ineffective assistance of

       counsel. If a court analyzes the prejudice prong, then it must consider the

       facts and circumstances of the case objectively to determine whether the

       defendant established the necessary prejudice sufficient to support that

       claim—i.e., but for counsel's deficient performance, there exists a
Licking County, Case No. 17-CA-76                                                     5


       reasonable probability that the result of the proceeding would have been

       different.



       {¶ 8} The Supreme Court of Ohio in Davis at ¶ 15 specifically stated "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."

       {¶ 9} The Supreme Court remanded the Ramsey case to this court on the issue

of court costs and we will review said issue pursuant to the directives in Davis.

                                        ANALYSIS

       {¶ 10} The standard this issue must be measured against is set out in Bradley,

supra, paragraphs two and three of the syllabus. Appellant must establish the following:



              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.
Licking County, Case No. 17-CA-76                                                     6




       {¶ 11} "A reasonable probability is a probability sufficient to undermine

confidence in the outcome." Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984).

       {¶ 12} As quoted by the Bradley court at 143, the Strickland court at 697 stated

the following:



                 "Although we have discussed the performance component of an

       ineffectiveness claim prior to the prejudice component, there is no reason

       for a court deciding an ineffective assistance claim to approach the inquiry

       in the same order or even to address both components of the inquiry if the

       defendant makes an insufficient showing on one. In particular, a 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. The object of an ineffectiveness claim is not to grade

       counsel's performance.     If it is easier to dispose of an ineffectiveness

       claim on the ground of lack of sufficient prejudice, which we expect will

       often be so, that course should be followed.         Courts should strive to

       ensure that ineffectiveness claims not become so burdensome to defense

       counsel that the entire criminal justice system suffers as a result."



       {¶ 13} R.C. 2947.23 governs judgment for costs. Subsection (A)(1)(a) states: "In

all criminal cases, including violations of ordinances, the judge or magistrate shall
Licking County, Case No. 17-CA-76                                                        7


include in the sentence the costs of prosecution * * * and render a judgment against the

defendant for such costs." 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.

       {¶ 14} During the sentencing hearing, defense counsel did not request a waiver

of the fine and/or court costs. Nevertheless, the trial court acknowledged the mandatory

$7,500.00 fine and imposed it, but suspended the fine because appellant did not have

the ability to pay it. T. at 15. The trial court assessed court costs and did not waive

them. Id. The trial court went on to ask appellant the following question: "Do you

understand that if you cannot afford to hire an attorney or pay the costs of the appeal

then I would appoint an attorney to represent you and have the costs of your appeal

including the preparation of a transcript paid for from the public funds?"       T. at 17.

Appellant answered in the affirmative and informed the trial court that he wished to

speak to an attorney about filing an appeal. Id. The trial court appointed appellant an

attorney and ordered the transcripts at state expense.           Judgment Entries filed

September 13, and December 11, 2017.

       {¶ 15} At the time of sentencing, the trial court was cognizant of appellant's

indigency status and specifically decided to waive the payment of the fine imposed, but

not the court costs. Appellant relies on the trial court's finding that he was indigent and

appointed him defense counsel and waived the payment of the fine to support his

argument that there was a reasonable probability that the trial court would have waived

costs if a motion had been made.        In support, appellant cites the decision in the
Licking County, Case No. 17-CA-76                                                        8


Springer case which was rejected in Davis as noted above in paragraph 8. Appellant

has not presented any further facts or circumstances to support a finding that there was

a reasonable probability that the trial court would have granted a motion to waive costs

had one been made.

       {¶ 16} The trial court had the benefit of appellant's presentence investigation

report that indicated although appellant was unemployed, he would "sub-contract and

work on cars." Appellant does have the ability to earn an income after his release from

prison and pay his court costs. We have objectively reviewed the record and find

appellant has not established prejudice to support his claim that but for his counsel's

failure to make a motion to waive costs, there exists a reasonable probability that the

motion would have been granted.

       {¶ 17} As this court did in State v. Eblin, 5th Dist. Muskingum No. CT2019-0036,

2020-Ohio-1216, ¶ 21, "[w]e considered, as part of this analysis, whether the trial court's

denial of such a motion would have been an abuse of discretion and find nothing within

the facts and circumstances of this case that would lead us to find that a failure to grant

the motion would constitute an abuse." Accord State v. Stevens, 5th Dist. Muskingum

Nos. CT2019-0059 & CT2019-0060.

       {¶ 18} Upon review, we do not find anything that would support the conclusion

that there was a reasonable probability that the outcome would have been different had

a motion been filed and therefore, we do not find any prejudice to appellant. We do not

find any ineffective assistance of counsel on the issue of court costs.

       {¶ 19} Assignment of Error III pertaining to court costs as remanded to this court

is denied.
Licking County, Case No. 17-CA-76                                              9


      {¶ 20} The judgment of the Court of Common Pleas of Licking County, Ohio is

hereby affirmed.

By Wise, Earle, J.

Gwin, P.J. and

Delaney, J. concur.




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[Cite as State v. Ramsey, 2020-Ohio-3107.]
