[Cite as State v. Moore, 2019-Ohio-4609.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                       ERIE COUNTY


State of Ohio                                    Court of Appeals No. E-19-009

        Appellee                                 Trial Court No. 2017 CR 0445

v.

Chad Moore                                       DECISION AND JUDGMENT

        Appellant                                Decided: November 8, 2019

                                            *****

        Kevin J. Baxter, Erie County Prosecuting Attorney, and
        Anthony A. Battista III, Assistant Prosecuting Attorney,
        for appellee.

        Brian A. Smith, for appellant.

                                            *****

        ZMUDA, J.

        {¶ 1} This matter is before the court on appeal from the judgment of the Erie

County Court of Common Pleas, General Division, sentencing appellant Chad Moore to a

12-month prison term and ordering him to pay costs. Finding no error, we affirm.
                         I. Facts and Procedural Background

       {¶ 2} On February 13, 2017, plainclothes officers approached appellant after he

parked his vehicle in an apartment building’s lot in Sandusky, Ohio. The officers had

been looking for appellant, hoping he could assist them in another investigation, either

with information or as a confidential informant. They parked their unmarked vehicle in

an adjacent parking spot and approached appellant as he opened his car door. As the

officers identified themselves, they immediately noticed a plastic bag of suspected crack

cocaine and a metal crack pipe in plain view between the driver’s seat and the doorframe.

       {¶ 3} The officers collected the contraband, and appellant took a seat in their

vehicle. The officers then spoke with appellant while driving around, returning him to

his own vehicle afterwards. Appellant later ceased cooperating with officers, and police

chose not to use him as a confidential informant. The officers then submitted the

contraband taken from appellant’s vehicle for testing.

       {¶ 4} On October 12, 2017, based on the contraband collected on February 13,

2017, appellant was indicted and charged in Erie County Court of Common Pleas case

No. 2017 CR 0445 with possession of cocaine, in violation of R.C. 2925.11(A) and

(C)(4)(a), a felony of the fifth degree. Appellant was taken into custody and served with

the indictment on October 20, 2017, then released on bond.

       {¶ 5} On October 26, 2017, appellant appeared for arraignment and proceeded

pro se, challenging the trial court’s jurisdiction under admiralty law and common law.

The trial court entered a not guilty plea on appellant’s behalf over his objection, provided




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appellant with information regarding securing a public defender, and continued the matter

for further proceedings. Appellant was subsequently indicted on additional charges. On

March 15, 2018, he was indicted on additional charges in Erie County Court of Common

Pleas case No. 2018 CR 0163, for aggravated trafficking in drugs, with a forfeiture

specification for $285, and aggravated possession of drugs, and on June 13, 2018, in Erie

County Court of Common Pleas case No. 2018 CR 0303 for possession of cocaine.

Throughout the proceedings, appellant vacillated between having a public defender and

representing himself, with three separate public defenders entering an appearance on

appellant’s behalf.1

       {¶ 6} After appellant failed to appear for a scheduled court date early in the

proceedings, the trial court ordered his bond revoked. Appellant was taken into custody,

where he remained throughout the remainder of the case. Appellant’s first public

defender, attorney Carroll, filed a motion seeking suppression of the evidence seized

from his vehicle and suppression of statements made by appellant to police, and a request

for a psychiatric evaluation.

       {¶ 7} On September 6, 2018, the trial court held a hearing on appellant’s motion to

suppress, with appellant’s second public defender, attorney Ballou, providing


1
 Appellant filed numerous pro se motions, chronicling his ongoing dissatisfaction with
his public defenders and the criminal justice system. In one such motion, filed October 3,
2018, appellant sought dismissal of the charges against him “pursuant [to the] 14th, 13th
amendment; civil rights,” seeking damages in the amount of $43 million, and citing, as
cause, the officers’ failure to activate their body cameras during their encounter with him
on February 13, 2017.




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representation. The trial court granted counsel additional time for counsel to submit

supplemental briefs. On September 10, 2018, appellant appeared at a pretrial hearing and

asked to proceed pro se, stating he was dissatisfied with Ballou. The trial court

thoroughly explained appellant’s rights, and in informing appellant of his rights, the trial

court noted that Ballou raised strong argument on appellant’s behalf related to the

statements ordered suppressed. At appellant’s request, the trial court continued the

matter for a new public defender to enter an appearance. The trial court subsequently

denied the motion to suppress as to the seizure of evidence, but granted the motion as to

statements made by appellant to the officers.

       {¶ 8} In November 2018, a third public defender, attorney Felter, entered an

appearance, followed a month later by a motion seeking leave to withdraw, informing the

trial court that appellant “had discharged him and demanded that he be permitted to

represent himself[.]” Appellant indicated, however, that he was proceeding pro se under

duress. The trial court, therefore, ordered Felter to remain until a new public defender

entered an appearance to represent appellant. No new attorney entered an appearance.

       {¶ 9} On February 5, 2019, appellant entered into a plea, negotiated on his behalf

by Felter. In exchange for appellant pleading guilty to the sole charge in case No.

2017 CR 0445, possession of cocaine in violation of R.C. 2925.11(A) and (C)(4)(a), a

felony of the fifth degree, the state agreed to dismiss the charges in case No.

2018 CR 0163 and case No. 2018 CR 0303. The state, furthermore, stipulated to 377

days of jail-time credit based on time appellant spent in custody, prior to his plea. The




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trial court proceeded directly to sentencing, and imposed a 12-month sentence, noted as

“time served.” The trial court did not suspend appellant’s license or impose a fine, but

did impose “court costs,” with no mention at the sentencing hearing or in the judgment

entry regarding the costs of supervision, confinement, or appointment of counsel.

         {¶ 10} Appellant addressed the trial court at sentencing and inquired as to the

amount of court costs owed, but did not otherwise object to imposition of those costs.

The trial court directed appellant to inquire with the Erie County Clerk of Courts, and on

February 7, 2019, the clerk sent appellant an itemized bill for court costs in the amount of

$788. Appellant did not pay this bill.

         {¶ 11} Appellant now appeals the trial court’s imposition of costs, arguing as

error:

                The failure of Appellant’s trial counsel to make a motion for the

         waiver of court costs based upon Appellant’s indigent status constituted

         ineffective assistance of counsel.

                     II. Ineffective Assistance and Imposition of Costs

         {¶ 12} In his sole assignment of error, appellant argues that his trial counsel was

ineffective because he did not request waiver of costs at sentencing. To demonstrate

ineffective assistance of appointed counsel, appellant must first show that trial counsel’s

representation “fell below an objective standard of reasonableness.” Strickland v.

Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because

“effective assistance” may involve different approaches or strategies, our scrutiny of trial




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counsel’s performance “must be highly deferential” with a “strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance.”

State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989), quoting Strickland at

689. Should appellant demonstrate his trial counsel’s performance was defective,

appellant must also demonstrate that prejudice resulted. Bradley at paragraph two of the

syllabus.

       {¶ 13} Appellant argues that, because the trial court determined he was indigent,

his trial counsel was defective in failing to move for a waiver of court costs at sentencing.

Regardless of any request by appellant, the law required the trial court to impose the costs

of prosecution, and render a judgment for those costs, even if appellant was indigent. See

R.C. 2947.23(A)(1)(a). Other costs, such as the costs of appointed counsel, are

discretionary, with imposition premised on a finding of a present or future ability to pay.

See R.C. 2941.51(D). The record of proceedings indicates the trial court never

considered appellant’s present or future ability to pay discretionary costs, and did not

impose these costs.

       {¶ 14} Based on the record, the trial court imposed only the costs of prosecution.

While these costs are mandatory, R.C. 2947.23(C) grants a trial court continuing

jurisdiction to waive payment of costs at any time. Thus, the timing of a motion, seeking

waiver of payment, is a matter of trial strategy. State v. 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. A debatable trial strategy does not equal ineffective assistance of




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counsel. Southam at ¶ 68, quoting State v. Phillips, 74 Ohio St.3d 72, 85, 656 N.E.2d

643 (1995).

         {¶ 15} Even assuming appellant could demonstrate deficient performance by trial

counsel, based on a failure to request waiver at sentencing, he demonstrates no resulting

prejudice. Under R.C. 2947.23(C), the trial court retains authority to “waive, suspend, or

modify the payment of the costs of prosecution” at any time after sentencing, regardless

of whether appellant requested waiver at the time of sentencing. R.C. 2947.23(C); see

State v. Braden, Slip Opinion No. 2019-Ohio-4204, ¶ 23 (“the statute specifically

provides an exception to res judicata when a defendant did not request waiver at

sentencing”).2 Therefore, despite appellant’s claim of ineffective assistance of counsel

arising from a failure to seek waiver of costs, appellant is not prejudiced from seeking

waiver of costs in the future, and the trial court has continuing authority to consider such

a request, so long as costs remain unpaid. Braden at ¶ 30. Trial counsel’s failure to seek

waiver at sentencing, therefore, did not constitute deficient performance that resulted in

any prejudice to appellant, and we find appellant’s sole assignment of error not well-

taken.


2
 We note that appellee cites to State v. Braden, Slip Opinion No. 2018-Ohio-5079, ¶ 16
(Braden I) and State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164,
¶ 23. In Threatt, the Ohio Supreme Court held that a defendant must move for waiver of
payment of costs at the time of sentencing, or the issue is “waived and costs are res
judicata.” Since the time the parties submitted their briefs, the Supreme Court decided
State v. Braden, Slip Opinion No. 2019-Ohio-4204 (Braden II), on October 16, 2019. In
Braden II, the Supreme Court vacated the ruling in Braden I and found Threatt
superseded by the provisions of R.C. 2947.23(C).




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                                     III. Conclusion

       {¶ 16} For the forgoing reasons, we affirm the judgment of the Erie County Court

of Common Pleas. Appellant is ordered to pay the costs of this appeal pursuant to

App.R. 24.


                                                                       Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                       _______________________________
                                                           JUDGE
Christine E. Mayle, P.J.
                                               _______________________________
Gene A. Zmuda, J.                                          JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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