[Cite as State v. Rowe, 197 Ohio App.3d 10, 2011-Ohio-6614.]




                      IN THE COURT OF APPEALS OF OHIO
                         FOURTH APPELLATE DISTRICT
                                PIKE COUNTY

THE STATE OF OHIO,             :
                               :
     Appellee,                 : Case No. 10CA816
                               :
     v.                        : Released: November 29, 2011
                               :
ROWE,                          : DECISION AND JUDGMENT
                               : ENTRY
    Appellant.                 :
_____________________________________________________________
                       APPEARANCES:

        Robert Junk, Pike County Prosecuting Attorney, for appellee.

      Timothy Young, Ohio Public Defender, and Peter Galyardt, Assistant
Public Defender, for appellant.
_____________________________________________________________

        MCFARLAND, Judge.

        {¶ 1} Appellant, Bennie Rowe, appeals the sentence imposed by the

Pike County Court of Common Pleas after a jury found him guilty of one

count of aggravated vehicular homicide, a second-degree felony in violation

of R.C. 2903.06(A)(1)(a). On appeal, appellant contends that he was

deprived of his right to due process when his trial attorney provided

ineffective assistance of counsel. Specifically, appellant contends that he

received ineffective assistance of counsel at his sentencing when his counsel
Pike App. No. 10CA816                                                            2


failed to move the trial court to waive the payment of court costs based upon

his indigency and that that deficiency prejudiced him.

      {¶ 2} In light of our determination that trial counsel’s performance

was both deficient and prejudicial with respect to the failure to move the trial

court to waive the payment of court costs, we sustain appellant’s sole

assignment of error. Accordingly, we remand this matter to the trial court

for resentencing as to court costs, at which time counsel may then make a

proper motion for waiver of those costs based upon appellant’s indigency.

                                   FACTS

      {¶ 3} An indictment was filed on March 23, 2009, charging appellant

with one count of aggravated vehicular homicide, a second-degree felony in

violation of R.C. 2903.06(A)(1)(a). After determining appellant to be

indigent, the trial court appointed counsel to represent appellant on June 25,

2009. On November 10, 2010, a jury convicted appellant of the charged

offense, and a sentencing hearing was held on November 23, 2010. The trial

court sentenced appellant to a five-year prison term, a lifetime driver’s

license suspension, a mandatory three-year period of postrelease control, and

court costs. The trial court did not impose a fine upon appellant based upon

“the Court’s assessment of [Appellant’s] ability to pay a fine.” It is from the

trial court’s December 8, 2010, judgment entry of sentence that appellant
Pike App. No. 10CA816                                                          3


now brings his timely appeal, setting forth a single assignment of error for

our review.

                             Assignment of Error

“I.   Bennie Rowe was deprived of his right to due process when his trial
      attorney provided ineffective assistance of counsel.”

                             LEGAL ANALYSIS

      {¶ 4} In his first assignment of error, appellant contends that he was

deprived of his right to due process when his trial attorney provided

ineffective assistance of counsel. Specifically, appellant questions whether

trial counsel is ineffective when he or she fails to move the trial court to

waive the imposition of court costs and the mandatory minimum fine on

behalf of an indigent defendant.

      {¶ 5} To prevail on a claim of ineffective assistance of counsel, an

appellant must show that (1) his counsel's performance was deficient and (2)

the deficient performance prejudiced his defense so as to deprive him of a

fair trial. State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854

N.E.2d 1038, at ¶ 205, citing Strickland v. Washington (1984), 466 U.S. 668,

687, 104 S.Ct. 2052. To establish deficient performance, an appellant must

show that trial counsel's performance fell below an objective level of

reasonable representation. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-

2815, 848 N.E.2d 810, at ¶ 95. To establish prejudice, an appellant must
Pike App. No. 10CA816                                                            4


show that a reasonable probability exists that but for the alleged errors, the

result of the proceeding would have been different. Id. The appellant has the

burden of proof on the issue of counsel's ineffectiveness because a properly

licensed attorney is presumed competent. State v. Gondor, 112 Ohio St.3d

377, 2006-Ohio-6679, 860 N.E.2d 77, at ¶ 62.

      {¶ 6} R.C. 2947.23(A)(1) states: “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.” Court costs may, however, be waived at the discretion of the

court if the court first determines that the defendant is indigent. See R.C.

2949.092; State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d

393, fn. 1. The court may grant a waiver of court costs only if the defendant

makes a motion at the time of sentencing. State v. Clevenger, 114 Ohio St.3d

258, 2007-Ohio-4006, 871 N.E.2d 589, at ¶ 5, citing State v. Threatt, 108

Ohio St.3d 277, 843 N.E.2d 164, 2006-Ohio-905, paragraph two of the

syllabus. If the defendant fails to make a motion to waive court costs at the

time of sentencing, “the issue is waived and [the matter of] costs [is] res

judicata.” Id.

      {¶ 7} In State v. Blade, Cuyahoga App. Nos. 88703, 88704, and

88705, 2007-Ohio-5323, the trial court held that trial counsel “had an
Pike App. No. 10CA816                                                            5


essential duty to seek a waiver of court costs at the time of sentencing.” Id.

at ¶ 12, citing In re Carter, Jackson App. Nos. 04CA15 and 04CA16, 2004-

Ohio-7285, 2004 WL 3090250 (finding ineffective assistance of counsel and

remanding for resentencing as to court costs where trial counsel failed to

move the court for waiver of court costs for indigent defendant). In Blade,

the record indicated that the court “had previously waived the imposition of

court costs against Blade” and that there was “nothing in the record of the

resentencing to show a change in Blade's circumstances from the earlier

waiver of costs.” Blade at ¶ 12. Thus, based upon those facts, Blade held

that the prior waiver of court costs showed a reasonable probability that it

would have again waived costs had counsel made a timely motion. Id. at ¶

13. Thus, the trial court sustained Blade’s argument and vacated the trial

court’s assessment of court costs. Id. In In re Carter at ¶ 44, this court

determined that trial counsel’s failure to move the trial court for waiver of

court costs was both deficient and prejudicial, and therefore, the appellant’s

assignment of error was sustained.

      {¶ 8} More recently, in State v. Smith, Warren App. No. CA2010–06–

057, 2011-Ohio-1188, 2011 WL 882182, however, the Twelfth District

Court of Appeals rejected an identical argument. In reaching its conclusion,

the court reasoned, based upon the facts before it, that Smith had “failed to
Pike App. No. 10CA816                                                             6


show that there is a reasonable probability that the trial court would have

waived those costs even if his counsel had asked the court to do so, since the

trial court found that while Smith was currently unable to pay the court costs

and the cost of his court-appointed counsel, he was young and healthy

enough to work and thus would be able to pay those costs in the future.” Id.

at ¶ 64, citing State v. Hayden, Cuyahoga App. No. 90474, 2008-Ohio-6279,

2008 WL 5084716, ¶ 18-19. Thus, the facts in Smith differed from the facts

in Blade with regard to the appellant’s ability to pay and the probability that

the trial court would have waived court costs if a motion to do so had been

made.

        {¶ 9} We conclude that the facts sub judice are more similar to facts in

Blade than to those in Smith. First, appellant was determined to be indigent

and was appointed counsel for trial, and there is nothing in the record to

indicate that appellant’s circumstances had changed at the time of

sentencing. Further, as argued by appellant, the trial court did not impose a

fine at sentencing, based upon its “assessment of [appellant’s] ability to pay

a fine.” Additionally, at the sentencing hearing, appellant’s trial counsel

represented to the trial court that appellant was without funds to pursue an

appeal. In light of the foregoing, there was a good probability that if moved

to do so, the trial court would have waived the payment of the court costs.
Pike App. No. 10CA816                                                        7


Further, based upon these facts, we find trial counsel’s performance both

deficient and prejudicial. Consequently, we sustain appellant’s sole

assignment of error and remand this matter to the trial court for resentencing

as to court costs. In re Carter, 2004-Ohio-7285, 2004 WL 3090250, at ¶ 44.

                                                           Judgment reversed
                                                         and cause remanded.



      HARSHA, P.J., and ABELE, J., concur.


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