[Cite as State v. Hale, 2014-Ohio-4981.]


                                        COURT OF APPEALS
                                       PERRY COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

                                                       JUDGES:
STATE OF OHIO                                  :       Hon. W. Scott Gwin, P.J.
                                               :       Hon. Sheila G. Farmer, J.
                         Plaintiff-Appellee    :       Hon. John W. Wise, J.
                                               :
-vs-                                           :
                                               :       Case No. 14-CA-00010
RUSSELL HALE                                   :
                                               :
                     Defendant-Appellant       :       OPINION




CHARACTER OF PROCEEDING:                           Criminal appeal from the Perry County
                                                   Court of Common Pleas, Case No. 13-CR-
                                                   0053


JUDGMENT:                                          Affirmed in part, reversed in part and
                                                   remanded



DATE OF JUDGMENT ENTRY:                            November 6, 2014



APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

DAVID ROWLAND                                      MICHAEL DALSANTO
Assistant Prosecuting Attorney                     3 South Park Place, Ste. 220
111 N. High Street                                 Newark, OH 43055
Box 269
New Lexington, OH 43764
[Cite as State v. Hale, 2014-Ohio-4981.]


Gwin, P.J.

        {¶1}     Appellant Russell Hale [“Hale”] appeals his convictions and sentences

after a negotiated guilty plea in the Perry County Court of Common Pleas for two counts

of Aggravated Trafficking in Drugs, both felonies of the fourth degree, one count

Aggravated Trafficking in Drugs, a felony of the third degree, and one count of Engaging

in a Pattern of Corrupt Activity, a felony of the first degree.

                                           Facts and Procedural History

        {¶2}     Hale was originally indicted by the Perry County Grand Jury with five

counts of Aggravated Trafficking in Drugs, felonies of the fourth degree, one count of

Aggravated Trafficking in Drugs, a felony of the third degree, two counts of Deception to

Obtain a Dangerous Drug, felonies of the second degree, one count of Engaging in a

Pattern of Corrupt Activity, a felony of the first degree, as well as a forfeiture

specification.

        {¶3}     Pursuant to a negotiated plea, on February 5, 2014 Hale entered a guilty

plea to two counts of Aggravated Trafficking in Drugs, felonies of the fourth degree, one

count Aggravated Trafficking in Drugs, a felony of the third degree and one count of

Engaging in a Pattern of Corrupt Activity, a felony of the first degree. In consideration for

his guilty plea, the state dismissed the remaining counts of the indictment. The Court

ordered a presentence investigation and deferred sentencing.

        {¶4}     On February 20, 2014, Hale’s attorney presented information that Hale

should not have to pay any mandatory fines because he is indigent. The Court

specifically asked counsel if he had filed a motion to waive the mandatory fines, which

trial counsel responded that he had not. The Court then proceeded to sentencing. On
Perry County, Case No. 14-CA-00010                                                   3


the two counts of Aggravated Trafficking in Drugs, the Court sentenced Hale on each

count to nine months in a State Penal Institution, a $1,000 fine, as well as a six (6)

month driver's license suspension. On one count of Aggravated Trafficking in Drugs, the

Court sentenced Hale to nine months in a State Penal Institution, imposed a $5,000

fine, as well as a six-month driver's license suspension. Finally, with respect to one

count of Engaging in a Pattern of Corrupt Activity, the Court sentenced Hale to six (6)

years in a State Penal Institution.

                                       Assignments of Error

       {¶5}   Hale raises four assignments of error,

       {¶6}   “I. TRIAL COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF

COUNSEL BY FAILING TO SUBMIT A FINANCIAL AFFIDAVIT AND/OR FILE A

MOTION TO WAIVE MANDATORY FINES.

       {¶7}   “II. THE TRIAL COURT ERRED BY FINDING WITHOUT A HEARING

THAT APPELLANT COULD REASONABLY PAY THE MANDATORY FINE UNDER

R.C. 2929.18 AND BY NEVER CONSIDERING APPELLANT'S PRESENT AND

FUTURE ABILITY TO PAY THE AMOUNT OF THE FINE.

       {¶8}   “III. THE TRIAL COURT ERRED BY FAILING TO COMPLY WITH CRIM.

R. 11(F) BECAUSE AN ESSENTIAL ELEMENT OF THE PLEA AGREEMENT WAS

NOT    DISCUSSED        ON     THE     RECORD;     TO   WIT,        THE   PROSECUTOR'S

RECOMMENDED PRISON TERM.

       {¶9}   “IV.   APPELLANT        DID   NOT   ENTER       HIS    PLEA   KNOWINGLY,

VOLUNTARILY, AND INTELLIGENTLY BECAUSE THE COURT NEVER EXPLAINED
Perry County, Case No. 14-CA-00010                                                     4


THE REQUIREMENTS NECESSARY FOR A GUILTY FINDING UNDER R.C.

2923.32.”

                                               I.

      {¶10} In his first assignment of error, Hale argues that he was deprived of the

effective assistance of counsel when, before he was sentenced, his trial counsel failed

to file an affidavit of indigency alleging that Hale was unable to pay the mandatory fine

in R.C. 2929.18 applicable to his felony drug offense.

      {¶11} In order to demonstrate ineffective assistance of trial counsel, Defendant

must demonstrate that counsel's performance was deficient and fell below an objective

standard of reasonable representation, and that Defendant was prejudiced by counsel's

performance; that is there is a reasonable probability that but for counsel's

unprofessional errors, the result of Defendant's trial or proceeding would have been

different. 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).

      {¶12} R.C. 2929.18(B)(1) establishes a procedure for avoiding imposition of

mandatory fines applicable to certain felony drug offenses. That section provides:

             If an 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 described in this division, the court shall

      not impose the mandatory fine upon the offender.

      {¶13} If the affidavit of indigency is not filed, the court “shall impose upon the

offender a mandatory fine.” (Emphasis added.) State v. Moore, 135 Ohio St.3d 151,
Perry County, Case No. 14-CA-00010                                                         5


2012-Ohio-151, 985 N.E.2d 432, ¶13. The timeliness of an affidavit pursuant to R.C.

2929.19(B)(1) is critical: “the fact that the affidavit was not properly filed prior to

sentencing is, standing alone, a sufficient reason to find that the trial court committed no

error by imposing the statutory fine.” Gipson, 80 Ohio St.3d at 633, 687 N.E.2d 750.

       {¶14} Although Hale’s fine was mandatory under R.C. 2929.18, the trial court

still was obligated by R.C. 2929.19(B)(5) to consider his “present and future ability to

pay.” State v. Kelly, 145 Ohio App.3d 277, 282, 762 N.E.2d 479(12th Dist. 2001); State

v. Johnson, 12th Dist. CA2011-11-212, 2014-Ohio-3776, ¶12; ¶17; State v. Williams,

11th Dist. Lake No. 2012-L-111, 1014-Ohio-65, ¶19; State v. Pilgrim, 184 Ohio App.3d

675,2009-Ohio-5357, 922 N.E.2d 248, ¶¶76-77(10th Dist.); State v. Oritz, 6th Dist.

Sandusky No. S-13-011, 2014-Ohio-1301, ¶17; State v. Lewis, 2nd Dist. 2011-CA-75,

2012-Ohio-4858, ¶9,

       {¶15} As this Court explained in State v. Perry, 5th Dist. Stark No. 2004-CA-

00066, 2005-Ohio-85:

              “[T]here are no express factors that must be taken into

       consideration or findings regarding the offender’s ability to pay that must

       be made on the record.” State v. Martin, 140 Ohio App.3d 326, 338, 2000-

       Ohio-1942; 747 N.E.2d 318(4th Dist.). Although a court may hold a

       hearing under R.C. 2929.18(E) “to determine whether the offender is able

       to pay the [financial] sanction or is likely in the future to be able to pay it,”

       a court is not required to do so. State v. Stevens, 12th Dist. Clinton No.

       CA98-01-001, 1998 WL 640889(Sept. 21, 1998) (“although the trial court

       must consider the offender’s ability to pay, it need not hold a separate
Perry County, Case No. 14-CA-00010                                                       6


      hearing on that issue”). “All that R.C. 2929.19(B)(6) requires is that the

      trial court consider the offender’s present and future ability to pay.” State

      v. Dunaway, 12th Dist. Butler No. CA2001-12-280, 2003-Ohio-1062;

      Martin, 140 Ohio App.3d at 33, 746 N.E.2d 642” Id. at *4-5, 746 N.E.2d

      642. See also State v. Thompson, 5th Dist. No. 06-CA-62, 2008-Ohio-435,

      at ¶19.

      {¶16} While it would be preferable for the trial court to expressly state on the

record that it has considered a defendant’s present and future ability to pay a fine, it is

not required. State v. Parker, 2nd Dist. Champaign No. 03CA0017, 2004-Ohio-1313, ¶

42, citing State v. Slater, 4th Dist. Scioto No. 01 CA2806, 2002-Ohio-5343. “The court’s

consideration of that issue may be inferred from the record under appropriate

circumstances.” Id.

      {¶17} Ordinarily, “[i]nformation regarding [the] Defendant’s financial status is

typically outside the record on merit appeal. Then, the more appropriate vehicle for

pursuing that issue is post-conviction relief proceedings filed pursuant to R.C. 2953.21.”

State v. Sheffield, 2nd Dist. Montgomery No. 20029, 2004–Ohio–3099, ¶14.

      {¶18} In the case at bar counsel for Hale did state before sentencing that Hale

was unable to pay any mandatory fine. (Change of Plea T. February 5, 2014 at 3-4).

Hale was born March 5, 1957, making him 57 years old at the time of sentencing.

(Affidavit of Indigency filed Sept. 13, 2013). Hale was given an aggregate prison

sentence of six years. Counsel further noted,

             Additionally, Your Honor, I have a health summary that I can briefly

      go through of Russell's conditions obviously you can see he has an
Perry County, Case No. 14-CA-00010                                                     7


       oxygen tank here, he has hypertension, COPD, IBS, he's got coronary

       artery disease, obstructive sleep apnea. He had a stroke in February of

       2013, he has leg pains, there is additional ones, that are... seizures—he

       has as well, Your Honor, he's on a whole host of medications as we know

       that this would be a certainly a hindrance on any State Institution.

(Change of Plea T. February 5, 2014 at 2). The affidavit submitted in support of

appointment of counsel indicates that Hale’s source of income is Social Security

Disability. Nowhere on the record does the trial court consider Hale’s “present and

future ability to pay” pursuant to R.C. 2929.19(B)(5).

       {¶19} The 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. Ward, 197 Ohio App.3d

384, 2010-Ohio-1794, 932 N.E.2d 374(2nd Dist.), ¶34, citing State v. Howard, 2nd Dist.

Montgomery No. 21678, 2007-Ohio-3582, ¶15 and State v. Sheffield, 2nd Dist.

Montgomery No. 20029, 2004–Ohio–3099, ¶13. Accord, State v. Johnson, 12th Dist.

CA2011-11-212, 2014-Ohio-3776, ¶11; State v. Williams, 11th Dist. Lake No. 2012-L-

111, 1014-Ohio-65, ¶26.

       {¶20} On this record, we find that a reasonable probability exists that the trial

court would have found Hale indigent and unable to pay the mandatory fine for his

felony drug offense had defense counsel filed an affidavit of indigency prior to

sentencing. See Ward at ¶35 (based on defendant’s and her counsel’s numerous

assertions at the sentencing hearing regarding defendant’s employment prospects,
Perry County, Case No. 14-CA-00010                                                         8


financial assets, health, and financial obligations, there was a reasonable probability

that the trial court would have found defendant indigent if her trial counsel had filed an

affidavit of indigency prior to sentencing). Accordingly, Hale’s first assignment of error is

sustained.

       {¶21} Having sustained Hale’s first assignments of error, the portion of the trial

court’s judgment imposing a mandatory fine will be reversed, and this matter will be

remanded to the trial court for a hearing pursuant to R.C. 2929.18(E) and R.C.

2929.19(B)(5) in order to determine whether Hodge is indigent and whether Hale has

the ability to pay the mandatory fine imposed by statute.

                                                  II.

       {¶22} In his second assignment of error, Hale contends the trial court failed to

consider his ability to pay the mandatory fine.

       {¶23} In light of our disposition of Hale’s first assignment of error, we find Hale’s

second assignment of error to be premature.

                                                  III.

       {¶24} In his third assignment of error, Hale argues that the trial court failed to

comply with Crim. R. 11(F) because it omitted an essential element of the plea

agreement from discussion on the record. Specifically, Hale contends that the trial court

did not discuss the prosecutor’s recommended sentence.

       {¶25} Crim. R. 11(F) states, "When, in felony cases, a negotiated plea of guilty

or no contest to one or more offenses charged or to one or more other or lesser

offenses is offered, the underlying agreement upon which the plea is based shall be

stated on the record in open court.”
Perry County, Case No. 14-CA-00010                                                       9


       {¶26} In the case at bar, the written plea agreement was filed with the trial court.

Hale’s argument that the prosecutor’s recommended sentence was an essential part of

the plea agreement is disingenuous in several respects.

       {¶27} First, at the change of plea hearing held February 5, 2014, Hale

specifically rejected the prosecutor’s sentencing recommendation. (Id. at 2). Second, at

that sentencing hearing held February 20, 2014, Hale through his attorney strenuously

argued that the trial court should not follow the state’s sentencing recommendation. (Id.

at 1-4). Clearly, Hale was aware of the state’s recommendation.

       {¶28} In the face of Hale’s rejection of the state’s sentencing recommendation,

Hale has failed to articulate to this Court how he has been prejudiced by any failure of

the trial court to state specifically that recommendation in open court.

       {¶29} Hale’s third assignment of error is overruled.

                                                IV.

       {¶30} In his fourth assignment of error, Hale contends that at no time did the trial

court explain to him that the elements of the offense in a manner detailed enough to

make the plea voluntary, knowing and intelligent. Hale argues where a defendant

pleads guilty to a crime without having been informed of the crime's elements, the

voluntary, knowing and intelligent standard for a plea is not met and the plea is invalid

citing Bradshaw v. Stumpf, 545 U.S. 175, 125 S. Ct 2398, 162 L. Ed. 2d 143(2005).

However, In Stumpf, the United States Supreme Court actually held,

              While the court taking a defendant’s plea is responsible for

       ensuring “a record adequate for any review that may be later sought,”

       Boykin v. Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709, 23 L.Ed.2d 274
Perry County, Case No. 14-CA-00010                                                     10

       (1969) (footnote omitted), we have never held that the judge must himself

       explain the elements of each charge to the defendant on the record.

       Rather, the constitutional prerequisites of a valid plea may be satisfied

       where the record accurately reflects that the nature of the charge and the

       elements of the crime were explained to the defendant by his own,

       competent counsel. (Emphasis added).

545 U.S. at 183, 125 S.Ct. 2398, 162 L.Ed.2d 143. Where competent counsel assures

the court that the defendant has been informed of the nature and elements of the crime,

we may rely on this assurance to find that the defendant has been properly informed. Id.

Indeed, even absent a clear showing on the record, we presume that counsel did in fact

explain the nature of the offense to the defendant. Id.

       {¶31} In the case at bar, Hale informed the trial court that he had discussed the

matter with his attorney and he was satisfied with his attorney’s advice and

representation. (T. Change of Plea, Feb. 5, 2014 at 2). Hale further assured the trial

court that he reviewed the written plea agreement with his attorney, that Hale had read

the written plea agreement and that Hale understood the written plea agreement. (Id. at

4). The written plea agreement contains Hale’s assurance to the trial court that he

“understand[s] the nature of the charges and the possible defenses I might have. I am

satisfied with my attorney’s advice and competence. I am not under the influence of

drugs or alcohol.” The written plea agreement contains the elements of each offense.

       {¶32} Finally, the specific elements of the crimes of aggravated trafficking in

drugs and engaging in a pattern of corrupt activity were specifically addressed by the

trial court with Hale in open court. (Id. at 5-7).
Perry County, Case No. 14-CA-00010                                                     11


       {¶33} Accordingly, the record in the case at bar accurately reflects that the

nature of the charge and the elements of the crime were explained to Hale by his own,

competent counsel, the written plea agreement and in open court by the trial judge.

       {¶34} Hale’s fourth assignment of error is overruled.

                                          Conclusion

       {¶35} Hale’s second, third and fourth assignments of error are overruled.

       {¶36} Having sustained Hale’s first assignments of error, the portion of the trial

court’s judgment imposing a mandatory fine will be reversed, and this matter will be

remanded to the trial court for a hearing pursuant to R.C. 2929.18(E) and R.C.

2929.19(B)(5) in order to determine whether Hodge is indigent and whether Hale has

the ability to pay the mandatory fine imposed by statute. In all other respects, the trial

court’s judgment will be affirmed.

By Gwin, P.J.,

Farmer, J., and

Wise, J., concur
