[Cite as State v. Jackson, 2013-Ohio-1390.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               HANCOCK COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 5-12-27

        v.

KAREEM T. JACKSON,                                        OPINION

        DEFENDANT-APPELLANT.




                Appeal from Hancock County Common Pleas Court
                           Trial Court No. 2012 CR 65

                                      Judgment Affirmed

                              Date of Decision: April 8, 2013




APPEARANCES:

        Nathan T. Oswald for Appellant

        Elizabeth H. Smith for Appellee
Case No. 5-12-27


PRESTON, P.J.

       {¶1} Defendant-appellant, Kareem T. Jackson, appeals the Hancock County

Court of Common Pleas’ sentence of 30 months imprisonment following his guilty

plea to one count of domestic violence. Jackson argues he was denied effective

assistance of counsel and that the trial court erred when it ordered him to pay

financial sanctions. For the following reasons, we affirm.

       {¶2} On March 6, 2012, a Hancock County Grand Jury indicted Jackson on

one count of domestic violence in violation of R.C. 2919.25(A), a felony of the

third degree. (Doc. No. 1).

       {¶3} On March 14, 2012, the trial court arraigned Jackson. (Doc. No. 5).

Jackson pled not guilty to the charge. (Id.). On June 11, 2012, Jackson changed

his plea and pled guilty to the indicted charge of domestic violence. (Doc. No.

23).

       {¶4} On August 2, 2012, the trial court held a sentencing hearing. (Doc.

No. 28).    The trial court ordered Jackson to serve a term of 30 months

imprisonment and pay the cost of the proceedings. (Doc. No. 28). On August 8,

2012, the trial court filed its sentencing judgment entry, where it also ordered

Jackson to pay any fees permitted pursuant to R.C. 2929.18(A)(4). (Id.).

       {¶5} On August 29, 2012, Jackson filed a notice of appeal. (Doc. No. 45).

Jackson now raises two assignments of error for our review.


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                            Assignment of Error No. I

       Mr. Jackson was denied effective assistance of counsel when his
       counsel argued that Mr. Jackson should be sent to prison when
       there was no presumption that a prison term would result from
       the conviction.

       {¶6} In his first assignment of error, Jackson argues he was denied effective

assistance of counsel because his counsel did not adequately advocate on his

behalf. Jackson contends that his counsel admitted that the trial court should

sentence Jackson to a prison term and failed to request that the trial court sentence

him to community control. Jackson argues his counsel’s actions meant it was

inevitable that the trial court would sentence him to prison, which undermined the

reliability of the sentencing hearing.

       {¶7} A defendant asserting a claim of ineffective assistance of counsel must

establish: (1) the counsel’s performance was deficient or unreasonable under the

circumstances; and (2) the deficient performance prejudiced the defendant. State

v. Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S.

668, 687, 104 S.Ct. 2052 (1984).

       {¶8} In order to show counsel’s conduct was deficient or unreasonable, the

defendant must overcome the presumption that counsel provided competent

representation and must show that counsel’s actions were not trial strategies

prompted by reasonable professional judgment.        Strickland, 466 U.S. at 687.

Counsel is entitled to a strong presumption that all decisions fall within the wide

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

675 (1998). Tactical or strategic trial decisions, even if unsuccessful, do not

generally constitute ineffective assistance. State v. Frazier, 61 Ohio St.3d 247,

255 (1991).    Rather, the errors complained of must amount to a substantial

violation of counsel’s essential duties to his client. See State v. Bradley, 42 Ohio

St. 3d 136, 141-142 (1989), citing State v. Lytle, 48 Ohio St.2d 391, 396 (1976)

       {¶9} Prejudice results when “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Bradley, 42 Ohio St.3d at 142, citing Strickland, 466 U.S. at 691. “A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” Bradley, 42 Ohio St.3d at 142; Strickland, 466 U.S. at 694.

       {¶10} At the sentencing hearing, Jackson’s counsel informed the trial court

that pursuant to the plea negotiations, “the State was going to make no

recommendation other than there would be a cap of 30 months.” (Aug. 2, 2012

Tr. at 6). Jackson’s counsel further stated:

       I’ve been very honest with [Jackson] in this case. The offense at

       issue, plus his prior record, his prior commitments to Ohio

       Department of Rehabilitation and Correction leads me to believe that

       the Court sentence in this case would result in a prison term. I was

       very honest with [Jackson] about that. He understands that as well.


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       That is what he is expecting. The issue is is [sic] what sentence the

       Judge would impose on him.

(Id. at 7). Jackson’s counsel then detailed mitigating factors for the trial court’s

consideration, including a dispute Jackson had with the victim during the months

preceding the offense regarding their child, his concern that the victim was

exposing their child to negative influences, that Jackson had consumed alcohol

before running into the victim at the bar which caused him to “snap,” and that

Jackson had remained clean while the case was pending. (Id. at 7-8). Jackson’s

counsel also stated:

       I was looking over his past incarcerations, Your Honor, there’s five

       prior incarcerations. Back in 2005 he received a 15 month sentence

       at the Ohio Department of Rehabilitation and Correction. That was

       the longest term that he had had imposed upon him. We’re asking

       the Court not to exceed the cap of 30 months that were part of the

       negotiations.   However, we would ask the Court to consider an

       incremental sentencing increase. We understand every time that

       you’re in front of the court that punishment should go up. There

       should be more incentive to remain law abiding. We would ask the

       Court if it would consider an 18 month sentence. That would be in

       the parameters that the Court could impose.       We’re respectfully


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        asking if the Court would consider an 18 month sentence. That

        would be three additional months from the time that he last served.

(Id. at 8).

        {¶11} The trial court admitted Jackson’s presentence investigation report

(“PSI”) as an exhibit. (Id. at 10). Jackson’s PSI indicated that he had numerous

prior convictions including two counts of receiving stolen property, one count of

theft, five counts of driving under suspension, four counts of domestic violence,

one count of aggravated assault, two counts of operating a motor vehicle under the

influence, one count of possession of cocaine, one count of assault, one count of

trafficking in cocaine, and one count of petty theft. (PSI). The PSI also reflects

that Jackson’s sentences had increased with each of his domestic violence

convictions. (Id.). For the first two offenses, the trial court had suspended his

sentence and required him to attend a domestic violence program, for his third

offense the court sentenced him to 12 months imprisonment, and for his fourth

offense the court sentenced him to 14 months imprisonment. (Id.).

        {¶12} Jackson’s arguments are totally groundless. Jackson’s counsel used

a reasonable strategy of presenting mitigating factors to persuade the trial court to

minimize Jackson’s sentence. We cannot find that Jackson’s representation was

deficient because his counsel failed to argue that the trial court should sentence

Jackson to community control when his counsel was well aware that such an


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argument would be unsuccessful in light of Jackson’s lengthy criminal record and

previous prison sentences for the same offense. We decline to require counsel to

present every possible argument to the trial court, especially those arguments

counsel knows the trial court will reject and that may only serve to undermine

counsel’s credibility before that court. Furthermore, we cannot find that Jackson

suffered any prejudice for his counsel’s alleged error. Jackson’s counsel requested

that the trial court impose a sentence of 18 months imprisonment. (Aug. 2, 2012

Tr. at 8). The trial court rejected that argument and imposed a sentence of 30

months imprisonment instead. (Id. at 13). We thus have no reason to believe that

the trial court would have entertained sentencing Jackson to community control

when the trial court found that 18 months imprisonment was insufficient for his

fifth domestic violence offense.

      {¶13} Jackson’s first assignment of error is, therefore, overruled.

                           Assignment of Error No. II

      The trial court erred when its final judgment entry containing a
      provision ordering Mr. Jackson to pay financial sanctions that
      the court did not impose at sentencing.

      {¶14} In his second assignment of error, Jackson argues the trial court erred

when it ordered him to pay fees pursuant to R.C. 2929.18(A)(4) in the sentencing

entry when the trial court had not imposed that financial sanction during the




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sentencing hearing. Jackson contends that this Court must find that portion of the

sentencing entry unlawful and reverse the case for resentencing.

       {¶15} During the sentencing hearing, the trial court stated that the “[c]ourt

accordingly orders that the Defendant serve a determinate term of 30 months with

the Ohio Department of Rehabilitation and Correction, and that he pay the cost of

these proceedings.” (Aug. 2, 2012 Tr. at 13). In its sentencing entry, the trial

court reiterated the sentence of 30 months imprisonment and further stated,

“Defendant is ordered to pay all costs of prosecution, and any fees permitted

pursuant to Revised Code, Section 2929.18(A)(4).” (Doc. No. 28) (emphasis

omitted).

       {¶16} R.C. 2929.18(A)(4) provides that for a felony offense, a court may

impose a financial sanction or combination of financial sanctions, including “[a]

state fine or costs as defined in section 2949.111 of the Revised Code.” R.C.

2949.111 defines “[s]tate fines or costs” as:

       any costs imposed or forfeited bail collected by the court under

       section 2743.70 of the Revised Code for deposit into the reparations

       fund or under section 2949.01 of the Revised Code for deposit into

       the indigent defense support fund established under section 120.08

       of the Revised Code and all fines, penalties, and forfeited bail




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       collected by the court and paid to a law library association under

       section 307.515 of the Revised Code.

       {¶17} The Eleventh and Twelfth District Courts of Appeals have each

addressed the issue of whether including fees pursuant to R.C. 2929.18(A)(4) in a

sentencing entry is sufficient, or if the trial court is required to specifically impose

those fees during the sentencing hearing. The Eleventh District has held that the

trial court is required to order any fees the defendant must pay pursuant to R.C.

2929.18(A)(4) during the sentencing hearing. State v. Clark, 11th Dist. No. 2006-

A-0004, 2007-Ohio-1780, ¶ 35, reversed on other grounds, 2008-Ohio-3748; State

v. Tucholski, 11th Dist. No. 2011-A-0069, 2012-Ohio-5591, ¶ 32. The Eleventh

District determined the statutory fees were an “additional sanction” that the trial

court must order during the sentencing hearing pursuant to Crim.R. 43(A), which

requires the defendant to be present during every stage of the criminal proceeding.

Clark at ¶ 35-36.

       {¶18} The Twelfth District disagreed with the Eleventh District’s holding

in Clark, and held that the “cost of prosecution” imposed during the sentencing

hearing included fees permitted pursuant to R.C. 2929.18(A)(4). State v. Hall,

12th Dist. No. CA2011-05-043, 2011-Ohio-5748, ¶ 16. The Court reviewed the

statutes referenced in R.C. 2949.111 and observed that while the language of R.C.

2929.18(A)(4) permits a trial court to order a felony offender to pay a state fine or


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cost pursuant to R.C. 2949.111, “both R.C. 2743.70(A)(1)(a) and R.C.

2949.091(A)(1)(a)(i) require the court to impose upon the offender an additional

thirty dollars ‘as cost in the case in addition to any other court costs that the court

is required to by law to impose upon the offender’ when the offender is convicted

of or pleads guilty to a felony.” Id. at ¶ 13, citing State v. Ricketts, 4th Dist. No.

07CA846, 2008-Ohio-1637, ¶ 4. The Court observed that R.C. 2743.70(A)(1)(b)

and R.C. 2949.091(A)(1)(b) did not permit the trial court to waive the fees unless

the court determined the offender was indigent. Id. at ¶ 14. The Twelfth District

thus determined that “‘the General Assembly’s intention in enacting these sections

was to provide for the imposition of a specific sum of money as costs in any case

in which a person is convicted or pleads guilty.’” Id., quoting Middleburg Heights

v. Quinones, 8th Dist. No. 88242, 2007-Ohio-3643, ¶ 92. The Court concluded

that “[t]he term ‘cost of prosecution,’ although not defined, is synonymous with

‘court costs’ as defined by R.C. 2949.111(A)(1), meaning ‘any assessment that the

court requires an offender to pay to defray the costs of operating the court.’” Id. at

¶ 16, citing State v. Boice, 4th Dist. No. 08CA24, 2009-Ohio-1755, ¶ 22. The

Twelfth District thus held that “[b]y ordering appellant to pay the ‘cost of

prosecution,’ this invariably included all mandatory court costs, including those

‘fees as permitted under R.C. 2929.18(A)(4).’” Id.




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       {¶19} Upon review, we agree with the Twelfth District’s holding in Hall.

R.C. 2743.70(A)(1)(a) and R.C. 2949.091(A)(1)(a)(i) require a trial court to

impose certain fees on a felony offender unless the trial court determines the

offender is indigent. Consequently, the fees are part of the cost of prosecution

unless the trial court waives the fees due to the defendant’s indigence. In the case

before this Court, as in Hall, the trial court ordered a financial sanction of “the

cost of these proceedings” during the sentencing hearing and did not find that

Jackson was indigent. (Aug. 2, 2012 Tr. at 13). The trial court thus complied with

Crim.R. 43(A) by imposing the sentence in the defendant’s presence. Therefore,

we cannot find that the imposition of “fees permitted pursuant to Revised Code,

Section 2929.18(A)(4), ” which were part of the cost of the proceeding, was an

unlawful additional sanction included in the sentencing entry as Jackson contends.

       {¶20} Jackson’s second assignment of error is, therefore, overruled.

       {¶21} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI and SHAW, J.J., concur.

/jlr




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