[Cite as State v. Murnahan, 2018-Ohio-4762.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                    CHAMPAIGN COUNTY

 STATE OF OHIO                                       :
                                                     :
         Plaintiff-Appellee                          :   Appellate Case No. 2018-CA-6
                                                     :
 v.                                                  :   Trial Court Case No. 2017-CR-233
                                                     :
 DONALD RAY MURNAHAN, JR.                            :   (Criminal Appeal from
                                                     :    Common Pleas Court)
         Defendant-Appellant                         :
                                                     :

                                                ...........

                                               OPINION

                         Rendered on the 30th day of November, 2018.

                                                ...........

JANE A. NAPIER, Atty. Reg. No. 0061426, Champaign County Prosecutor’s Office,
Appellate Division, 200 N. Main Street, Urbana, Ohio 43078
      Attorney for Plaintiff-Appellee

WILLIAM O. CASS, Atty. Reg. No. 0034517, 135 W. Dorothy Lane, Suite 117, Dayton,
Ohio 45429
      Attorney for Defendant-Appellant

                                               .............

HALL, J.

        {¶ 1} Donald Ray Murnahan, Jr. appeals from his convictions for possession of

marijuana, possession of criminal tools, and attempted tampering with evidence.

Murnahan contends that the trial court erred by sentencing him to three years in prison.
                                                                                              -2-


He also contends that his trial counsel was ineffective for failing to file an affidavit of

indigency or to request that the trial court waive the mandatory fine imposed for the

marijuana-possession offense. We conclude that Murnahan has not established that the

prison sentence was unsupported by the record and has not established a claim for

ineffective assistance of counsel. His convictions are affirmed.

                              I. Facts and Procedural History

       {¶ 2} In February 2018, Murnahan pleaded guilty to possession of marijuana,

a third-degree felony (Count Two); possession of criminal tools, a third-degree felony

(Count Three); and attempted tampering with evidence, a fourth-degree felony (Amended

Count Four).1 Murnahan also pleaded guilty to a specification for forfeiture of property

attached to Count Two. The trial court sentenced Murnahan to a total of 3 years in prison

and imposed a mandatory fine of $5,000.

       {¶ 3} Murnahan appeals.

                                          II. Analysis

       {¶ 4} Murnahan presents two assignments of error for our review. The first

challenges his prison sentence, and the second claims that his trial counsel was

ineffective for failing to file an affidavit of indigency or to request waiver of the fine.

                                   A. The prison sentence

       {¶ 5} The first assignment of error alleges:

       THE TRIAL COURT ERRED WHEN IT SENTENCED THE APPELLANT

       TO 3 YEARS.


1 Count One (trafficking marijuana) and several firearm and forfeiture specifications
were dismissed. Count Four was amended to include the lesser included offense of
attempted tampering with evidence.
                                                                                           -3-


       {¶ 6} A “trial court has full discretion to impose any sentence within the authorized

statutory range.” State v. King, 2013-Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.), citing

State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragraph seven of

the syllabus. “[A]n appellate court may vacate or modify any sentence that is not clearly

and convincingly contrary to law only if the appellate court finds by clear and convincing

evidence that the record does not support the sentence.” State v. Marcum, 146 Ohio St.3d

516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23; see also R.C. 2953.08(G)(2). A sentence “is

not contrary to law [if it falls] within the statutory range [and the trial court] expressly

state[s] that it * * * considered the purposes and principles of sentencing [under] R.C.

2929.11 [and] 2929.12.” (Citation omitted.) State v. Rodeffer, 2013-Ohio-5759, 5 N.E.3d

1069, ¶ 32 (2d Dist.). “ ‘Clear and convincing evidence is that measure or degree of proof

which is more than a mere “preponderance of the evidence,” but not to the extent of such

certainty as is required “beyond a reasonable doubt” in criminal cases, and which will

produce in the mind of the trier of fact[ ] a firm belief or conviction as to the facts sought

to be established.’ ” Marcum at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469, 120

N.E.2d 118 (1954), paragraph three of the syllabus.

       {¶ 7} R.C. 2929.11 establishes the purposes and principles of felony sentencing.

It states that a “court that sentences an offender for a felony shall be guided” by the

“overriding purposes” of punishing the offender and “protect[ing] the public from future

crime by the offender and others,” while “using the minimum sanctions that [it] determines

[likely to] accomplish [these] purposes without imposing an unnecessary burden on state

or local government resources.” R.C. 2929.11(A). To that end, the “court shall consider

the need for incapacitating the offender, deterring the offender and others from future
                                                                                              -4-

crime, rehabilitating the offender, and making restitution.” Id. In addition, a felony

sentence “shall be reasonably calculated to achieve the two overriding purposes of felony

sentencing[,] * * * commensurate with and not demeaning to the seriousness of the

offender’s conduct and its impact upon [any] victim[s], and consistent with sentences

imposed for similar crimes committed by similar offenders.” R.C. 2929.11(B).

       {¶ 8} R.C. 2929.12 gives the court “discretion to determine the most effective way

to comply with the purposes and principles of sentencing set forth in section 2929.11 of

the Revised Code.” R.C. 2929.12(A). In exercising that discretion, the court must

consider, among other things, “the factors set forth in divisions (B) and (C) of this section

relating to the seriousness of the conduct, the factors provided in divisions (D) and (E) of

this section relating to the likelihood of the offender’s recidivism, and * * * any other factors

that are relevant to achieving those purposes and principles of sentencing.” Id.

       {¶ 9} Here, the transcript of the sentencing hearing and the judgment entry show

that the trial court considered the purposes and principles of sentencing in R.C. 2929.11

and the seriousness and recidivism factors in R.C. 2929.12.

       {¶ 10} With respect to the seriousness factors, the trial court concluded that the

factors indicating that Murnahan’s conduct was more serious outweighed the factors

indicating that his conduct was less serious. The court found that Murnahan committed

the offense for hire or as part of organized criminal activity with his co-defendant. See

R.C. 2929.12(B)(7). Together, they possessed 27 pounds of marijuana, which had a

street value of $27,000. The court found that Murnahan stole $700 from his co-defendant,

causing the co-defendant to shoot at him in a hotel parking lot where other vehicles were

present. Murnahan called police for help, but not before disposing of a bag containing two
                                                                                           -5-


vacuumed-sealed bags of marijuana, a Pringle’s can of marijuana, a loaded pistol, Ziploc

sandwich baggies, and a black digital scale. The disposal of evidence led the trial court

to conclude that Murnahan intended to deceive law enforcement about the nature of his

dispute with his co-defendant. With respect to the less-serious factors, the trial court found

that, in committing the offense, Murnahan acted under strong provocation, did not cause

or expect to cause physical harm to any persons or property, and that no one suffered

physical harm from the attempted shooting. See R.C. 2929.12(C)(2) and (3).

       {¶ 11} As to the recidivism factors, the trial court concluded that the factors

indicating that Murnahan’s recidivism was more likely outweighed the factors indicating

that it was less likely. The court found that Murnahan previously was adjudicated a

delinquent child and had a history of criminal convictions. See R.C. 2929.12(D)(2).

Although his criminal record consisted mostly of misdemeanors and theft offenses, as the

State pointed out at the sentencing hearing, Murnahan had been involved with the court

system almost every year since 2007. The court found that he had not been rehabilitated

to a satisfactory degree and had not responded favorably to sanctions previously

imposed. See R.C. 2929.12(D)(3). The court also found that Murnahan showed no

genuine remorse for the offense. See R.C. 2929.12(D)(4). Finally, the court found that he

stole from his co-defendant, an offense that was consistent with his criminal history of

theft-related offenses. As for the recidivism-is-less-likely factors, the trial court found

only that Murnahan was compliant with pretrial services and tested negative for controlled

substances. The court noted that the Ohio Risk Assessment System (ORAS) assigned

Murnahan an overall risk level of 15, or moderate.

       {¶ 12} The trial court also concluded that it was required to impose a prison term
                                                                                        -6-


on Murnahan for the possession offense. For possession of between 5,000 and 20,000

grams of marijuana, “there is a presumption that a prison term shall be imposed for the

offense.” R.C. 2925.11(C)(3)(e). “[I]t is presumed that a prison term is necessary in order

to comply with the purposes and principles of sentencing under section 2929.11 of the

Revised Code.” R.C. 2929.13(D)(1). But this presumption can be rebutted, and a

community-control sanction may be imposed instead, if the sentencing court makes two

findings. R.C. 2929.13(D)(2). One, the court must find that a community-control sanction

“would adequately punish the offender and protect the public from future crime, because

the applicable factors under section 2929.12 of the Revised Code indicating a lesser

likelihood of recidivism outweigh the applicable factors under that section indicating a

greater likelihood of recidivism.” R.C. 2929.13(D)(2)(a). Two, the court must find that a

community-control sanction “would not demean the seriousness of the offense, because

one or more factors under section 2929.12 of the Revised Code that indicate that the

offender’s conduct was less serious than conduct normally constituting the offense are

applicable, and they outweigh the applicable factors under that section that indicate that

the offender’s conduct was more serious than conduct normally constituting the offense.”

R.C. 2929.13(D)(2)(b).

      {¶ 13} The trial court found that, in this case, the presumption in favor of a prison

term was not rebutted. The court found that a community-control sanction would not

adequately punish Murnahan and protect the public from future crime because the

applicable factors indicating a lesser likelihood of recidivism did not outweigh the

applicable factors indicating a greater likelihood of recidivism. The court also found that

a community-control sanction would demean the seriousness of the offense because one
                                                                                         -7-


or more of the factors indicating that Murnahan’s conduct was less serious than the

conduct normally constituting the offense were either not applicable or did not outweigh

the applicable more-serious-conduct factors.

       {¶ 14} Murnahan argues that “the clear and convincing evidence in the record does

not support the Court’s findings under the relevant statutes and the Appellant’s sentence

is contrary to law.” Appellant’s Brief, 7. The only sentencing statutes that Murnahan

explicitly cites are R.C. 2929.13 and R.C. 2929.14. See id. at 9 (saying that “the record

does not support the Court’s sentence under the statutory factors set forth in division (B)

or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14.”). But his

argument focuses on the seriousness and recidivism factors in R.C. 2929.12. Murnahan

says that “[t]he Court erred when it found that the statutory factors establishing the

Appellant’s conduct as more serious outweighed the statutory factors that his conduct

was less serious. It also erred when it concluded that the Appellant was more likely than

less likely to commit future offenses.” Id.

       {¶ 15} The focus of Murnahan’s argument is his claim at the sentencing hearing

that there were extenuating circumstances for his having the marijuana. Murnahan told

the trial court that his co-defendant, his ex-girlfriend, was the one selling the marijuana.

They had a falling out when he learned that she was communicating with another man.

Murnahan said that he tried to hurt her by taking the marijuana that she was selling and

her paraphernalia (the baggies and digital scale), and that he did not know that the

marijuana weighed 27 pounds. Murnahan said that he also took her money, and when he

tried to return it, she shot at him. He admitted that he called the police and then dumped

the contraband in the woods so that the police would not find it on him.
                                                                                           -8-


       {¶ 16} “Clearly,” says Murnahan, his “involvement in the marijuana possession

offense was the result of his unfortunate relationship with his drug trafficking ex-girlfriend

and not something that was likely to reoccur in the future.” (Appellant’s Brief, 9). Murnahan

asserts that there was no evidence that he colluded with his ex-girlfriend to sell marijuana

and that there was no mention of the length of their criminal activity. Indeed, Murnahan

told the court that they had just met. Murnahan also says that the court had no reason to

believe that there had been extensive planning or that more than two people were

involved. Murnahan further takes issue with the court’s conclusion that he intended to

deceive law enforcement officers because he disposed of the contraband in the woods.

According to Murnahan, his explanation makes perfect sense: he did not want to get

caught with marijuana that was not his. Murnahan also points out that his criminal record

consists only of misdemeanor and theft-related offenses. In addition, Murnahan cites the

court’s finding that he had no history of drug use or drug-related convictions and that all

of his drug tests while on bond were negative.

       {¶ 17} The trial court listened to Murnahan’s story and asked him numerous

questions, but it is clear from the sentencing-hearing transcript that, in the end, the court

simply did not believe him.

       {¶ 18} Given the record before us, we cannot conclude that Murnahan’s three-year

prison sentence is either contrary to law or that there is clear and convincing evidence

that the record does not support the sentence. Murnahan admits that a three-year prison

term is within the statutory range, and the trial court “expressly state[ed] that it had

considered the purposes and principles of sentencing set forth in R.C. 2929.11, as well

as the factors in R.C. 2929.12.” Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069, at ¶ 32 (2d
                                                                                           -9-


Dist.).

          {¶ 19} The first assignment of error is overruled.

                            B. Ineffective assistance of counsel

          {¶ 20} Murnahan alleges in his second assignment of error that his trial counsel

was ineffective:

          APPELLANT’S COUNSEL WAS INEFFECTIVE WHEN HE FAILED TO

          FILE AN AFFIDAVIT OF INDIGENCY OR REQUEST THE MANDATORY

          FINE BE WAIVED.

          {¶ 21} The possession of marijuana offense to which Murnahan pleaded guilty

carried a mandatory fine. R.C. 2929.18(B)(1) (stating that “[f]or a first, second, or third

degree felony violation of any provision of Chapter 2925. * * * of the Revised Code, the

sentencing court shall impose upon the offender a mandatory fine”); see also R.C.

2925.11(E)(1)(a) (saying that the court must impose the mandatory fine specified for the

offense under R.C. 2929.18(B)(1)). But “the court shall not impose the mandatory fine

upon [an] offender” “[i]f [the] offender alleges in an affidavit filed with the court prior to

sentencing that the offender is indigent and unable to pay the mandatory fine and if the

court determines the offender is an indigent person and is unable to pay the mandatory

fine.” R.C. 2929.18(B)(1); see also R.C. 2925.11(E)(1)(a) (saying that the court must

impose the mandatory fine “unless, as specified in that division [R.C. 2929.18(B)(1)], the

court determines that the offender is indigent”).

          {¶ 22} Murnahan contends that his trial counsel was ineffective because counsel

did not file an affidavit of indigency asking the trial court to waive the mandatory fine. To

establish a claim of ineffective assistance of counsel, a defendant must demonstrate both
                                                                                         -10-


that trial counsel’s conduct fell below an objective standard of reasonableness and that

the errors were serious enough to create a reasonable probability that, but for the errors,

the result of the trial or proceeding would have been different. See Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42

Ohio St.3d 136, 538 N.E.2d 373 (1989). We have said that “[t]he failure to file an affidavit

of indigency prior to sentencing may constitute ineffective assistance of counsel if the

record shows a reasonable probability that the trial court would have found Defendant

indigent and relieved him of the obligation to pay the fine had the affidavit been filed.”

State v. Sheffield, 2d Dist. Montgomery No. 20029, 2004-Ohio-3099, ¶ 13.

       {¶ 23} There is insufficient evidence here to show a reasonable probability that,

had trial counsel filed an affidavit of indigency prior to sentencing, the trial court would

have found Murnahan indigent and unable to pay the fine. The trial court considered

Murnahan’s ability to pay. The court reviewed the information contained in the pre-

sentence investigation (PSI) report about Murnahan’s age (just shy of 27), health (no

physical or mental health problems or history), and education (high school, no apparent

problems). The court also looked at his employment history. At the sentencing hearing,

counsel told the court that Murnahan had “a good employment history.” (Sentencing Tr.

4). Counsel continued: “He is currently working for Dole. As the report indicates, he works

40 hours a week. Also works for Furniture Express, at his discretion, occasional hours for

deliveries.” (Id. at 5-6). Counsel further told the court that Murnahan was just about to

start a new and better job for a construction company. (Id. at 6). The PSI report supported

counsel’s statements. Lastly, the court considered that, while in prison, Murnahan could

earn money in inmate work programs. Based on all the information presented, the court
                                                                                            -11-

found that Murnahan was “employable and in good health.” (Id. at 23).

       {¶ 24} There is little evidence in the record that Murnahan was indigent. The PSI

report states that Murnahan said that he was struggling to make ends meet and that he

was supported by his family and his girlfriend. But the report also gave his monthly income

as $600 and listed only $465 in monthly expenses. Furthermore, there was no evidence

to suggest that, when he is released from prison in three years, Murnahan will not be able

to secure gainful employment and pay the fine over time. Compare State v. Lewis, 2d

Dist. Greene No. 2011-CA-75, 2012-Ohio-4858, ¶ 17 (finding no ineffective assistance of

counsel for not filing an affidavit of indigency in part because there was no evidence

showing a reasonable probability that the defendant would be “unable to pay a fine, over

time, after being released from prison”); State v. Dixon, 2d Dist. Montgomery No. 23671,

2010-Ohio-4919, ¶ 15 (finding no ineffective assistance of counsel for not filing an affidavit

of indigency in part because there was no evidence “demonstrating Defendant’s inability

to secure future employment”). Although Murnahan was appointed counsel on the basis

of indigence, “ ‘[a] finding that a defendant is indigent for purposes of appointed counsel

does not shield the defendant from paying court costs or a financial sanction.’ ” State v.

Hodge, 2d Dist. Montgomery No. 23964, 2011-Ohio-633, ¶ 55, quoting State v. Felder,

2d Dist. Montgomery No. 21076, 2006-Ohio-2330, ¶ 64. Our reasoning in Lewis applies

here too:

       The fact that [the defendant] was indigent at the time of trial for purposes of

       hiring counsel says little about his future employability or ability to pay a fine

       after being released from prison. Although [the defendant]’s indigency for

       purposes of obtaining counsel perhaps was not irrelevant to the fine issue,
                                                                                         -12-


       in this case it also was not enough to establish a reasonable probability that

       his fine would have been waived if counsel had filed an affidavit. As set forth

       above, the trial court was aware of [the defendant]’s inability to hire an

       attorney when it found that he had the ability to pay a fine. It would be

       illogical, then, to hold that [the defendant]’s indigency for purposes of

       obtaining counsel was enough to create a reasonable probability that the

       trial court would have waived the fine if properly asked through an affidavit.

Lewis at ¶ 22. See also State v. Edwards, 2d Dist. Clark No. 2012-CA-49, 2013-Ohio-

1922, ¶ 28 (quoting the same).

       {¶ 25} On this record, we cannot conclude that a reasonable probability exists that,

had trial counsel filed an affidavit of indigency before sentencing, the trial court would

have found Murnahan indigent and waived the mandatory fine. Therefore Murnahan has

failed to establish his claim for ineffective assistance of counsel.

       {¶ 26} The second assignment of error is overruled.

                                      III. Conclusion

       {¶ 27} We have overruled both assignments of error presented. The trial court’s

judgment is therefore affirmed.

                                      .............



WELBAUM, P.J. and DONOVAN, J, concur.


Copies sent to:

Jane A. Napier
William O. Cass
Hon. Nick A. Selvaggio
-13-
