[Cite as State v. Hinkle, 2011-Ohio-4970.]


                                        COURT OF APPEALS
                                       KNOX COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT

THE STATE OF OHIO                                  JUDGES:
                                                   Hon. W. Scott Gwin, P.J.
        Plaintiff-Appellee                         Hon. William B. Hoffman, J.
                                                   Hon. Julie A. Edwards, J.
-vs-
                                                   Case No. 10-CA-22
BRADLEY J. HINKLE

        Defendant-Appellant                        OPINION




CHARACTER OF PROCEEDING:                       Appeal from the Knox County Common
                                               Pleas Court, Case No. 10CR070118


JUDGMENT:                                       Affirmed in part; Vacated in part; and
                                                Remanded



DATE OF JUDGMENT ENTRY:                         September 26, 2011


APPEARANCES:


For Plaintiff-Appellee                         For Defendant-Appellant


JOHN C. THATCHER                               BRUCE J. MALEK
Knox County Prosecuting Attorney               Knox County Public Defender
CHARLES T. MCCONVILLE                          MARK A. ZANGHI
Assistant Prosecuting Attorney                 Assistant Public Defender
117 East High Street, Suite 234                One Public Square
Mount Vernon, Ohio 43050                       Mount Vernon, Ohio 43050
Knox County, Case No. 10-CA-22                                                          2

Hoffman, J.


      {¶1}    Appellant, Bradley J. Hinkle, was indicted on one count of Aggravated

Trafficking in Drugs in violation of R.C. 2925.03(A)(1), a felony of the third degree, two

counts of Illegal Assembly or Possession of Chemicals for the Maufacture of Drugs in

violation of R.C. 2925.041(A), which are a felonies of the second degree, and one count

of Intimidation of Victim or Witness in a Criminal Case in violation of R.C. 2921.04(B),

also a felony of the third degree. Appellant entered guilty pleas to counts one, three,

and four. The State dismissed count two. Appellant was sentenced to a prison term of

four years on count one with a mandatory fine of $5,000.00; a prison term of six years

on count three with a mandatory fine of $7,500.00; and a prison term of four years on

count 4. All three prison terms were ordered to be served concurrently to one another

for a total prison term of six years. At the time of sentencing, counsel for Appellant

inquired as to whether the mandatory fines could be waived. The trial court instructed

Appellant to file an appropriate motion.       The judgment entry of conviction and

sentencing was filed on November 4, 2010. Appellant’s Motion to Suspend Mandatory

Fine was filed on November 9, 2010. The trial court did not expressly rule on the

Motion to Suspend Mandatory Fine prior to Appellant’s filing his Notice of Appeal on

December 2, 2010.

      {¶2}    Counsel for Appellant has filed a Motion to Withdraw and a brief pursuant

to Anders v. California (1967), 386 U.S. 738, rehearing den. (1967), 388 U.S. 924,

indicating the within appeal was wholly frivolous and setting forth two proposed

assignments of error.    Appellant did not file a pro se brief alleging any additional

assignments of error.
Knox County, Case No. 10-CA-22                                                             3


       {¶3}   Counsel for Appellant raises the following potential assignments of error:

                                                 I.

       {¶4}   “THE APPELLANT’S GUILTY PLEAS TO COUNTS ONE, THREE AND

FOUR OF THE INDICTMENT WERE NOT OFFERED KNOWINGLY, VOLUNTARILY

AND INTELLIGENTLY.”

                                                 II.

       {¶5}   “THE TRIAL COURT ERRED BY IMPOSING MANDATORY FINES

WHEN THE APPELLANT FILED A MOTION TO WAIVE MANDATORY FINES AND AN

AFFIDAVIT OF INDIGENCY.”

       {¶6}   In Anders, the United States Supreme Court held if, after a conscientious

examination of the record, a defendant’s counsel concludes the case is wholly frivolous,

then he should so advise the court and request permission to withdraw. Id. at 744.

Counsel must accompany his request with a brief identifying anything in the record that

could arguably support his client’s appeal. Id. Counsel also must: (1) furnish his client

with a copy of the brief and request to withdraw; and, (2) allow his client sufficient time

to raise any matters that the client chooses. Id. Once the defendant’s counsel satisfies

these requirements, the appellate court must fully examine the proceedings below to

determine if any arguably meritorious issues exist. If the appellate court also determines

that the appeal is wholly frivolous, it may grant counsel’s request to withdraw and

dismiss the appeal without violating constitutional requirements, or may proceed to a

decision on the merits if state law so requires. Id.
Knox County, Case No. 10-CA-22                                                            4


        {¶7}   Our review of the record reveals Appellant was denied effective

assistance of trial counsel, therefore, we will proceed to a decision on the merits of the

proposed assignments of error as well as the error identified by this Court.

                                                 I.

        {¶8}   In his first assignment of error, Appellant argues his plea of guilty should

not have been accepted because it was not knowingly, intelligently, and voluntarily

made.

        {¶9}   A determination of whether a plea is knowing, intelligent, and voluntary is

based upon a review of the record. State v. Spates (1992), 64 Ohio St.3d 269, 272. If a

criminal defendant claims his plea was not knowingly, voluntarily, and intelligently made,

the reviewing court must review the totality of the circumstances in order to determine

whether or not the defendant's claim has merit. State v. Nero (1990), 56 Ohio St.3d 106,

108.

        {¶10} To ensure a plea is made knowingly and intelligently, a trial court must

engage in oral dialogue with the defendant in accordance with Crim.R. 11(C)(2). Engle,

74 Ohio St.3d at 527.

        {¶11} At the time Appellant entered his guilty pleas, the trial court orally engaged

in a dialogue with Appellant which establishes Appellant was aware of the nature of the

charges and the maximum penalties involved. He further acknowledged an awareness

of all of the rights he was waiving by entering guilty pleas. Additionally, he read a plea

of guilty form and discussed the form with his attorney. We find there is no affirmative

demonstration the plea was not entered in a knowing, intelligent, and voluntary manner.

        {¶12} Appellant’s first assignment of error is overruled.
Knox County, Case No. 10-CA-22                                                             5


                                                  II.

       {¶13} We will address Appellant’s second assignment of error together with the

error identified by this Court as ineffective assistance of trial counsel.

       {¶14} To establish ineffective assistance of counsel, an appellant must show (1)

deficient performance by counsel, i.e., performance falling below an objective standard

of reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but

for counsel's errors, the proceeding's result would have been different. Strickland v.

Washington (1984), 466 U.S. 668, 687–688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674; State

v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus.

       {¶15} R.C. § 2929.18 provides,

       {¶16} “(B)(1) For a first, second, or third degree felony violation of any provision

of Chapter 2925., 3719., or 4729. of the Revised Code, the sentencing court shall

impose upon the offender a mandatory fine of at least one-half of, but not more than,

the maximum statutory fine amount authorized for the level of the offense pursuant to

division (A)(3) of this section. 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.”

       {¶17} Trial counsel in this case did not file a motion or affidavit of indigency prior

to sentencing as required by R.C. 2929.18(B)(1). We have reviewed the affidavit filed

after the trial court issued its judgment of conviction and sentencing. Based upon our

review of the affidavit, we find that there is a reasonable probability that but for
Knox County, Case No. 10-CA-22                                                                6


counsel’s error in failing to file a timely affidavit of indigency demonstrating an inability to

pay the proceedings would have been different as to the imposition of the mandatory

fines only. We are not making the finding as suggested by counsel’s second proposed

assignment of error the trial court erred in imposing the mandatory fines. We simply

find counsel failed to timely file the affidavit and motion prior to sentencing. Accordingly,

we vacate the Appellant’s sentence as to the imposition of the mandatory fines and

remand this case to the Court of Common Pleas for resentencing based upon the

Appellant’s affidavit and motion as well as the State’s reply.          All other portions of

Appellant’s convictions and sentences are affirmed. Counsel’s motion to withdraw is

granted.

By: Hoffman, J.

Gwin, P.J. and

Edwards, J. concur

                                                s/ William B. Hoffman _________________
                                                HON. WILLIAM B. HOFFMAN


                                                s/ W. Scott Gwin _____________________
                                                HON. W. SCOTT GWIN


                                                s/ Julie A. Edwards ___________________
                                                HON. JULIE A. EDWARDS
Knox County, Case No. 10-CA-22                                                          7


              IN THE COURT OF APPEALS FOR KNOX COUNTY, OHIO
                         FIFTH APPELLATE DISTRICT


THE STATE OF OHIO                          :
                                           :
       Plaintiff-Appellee                  :
                                           :
-vs-                                       :         JUDGMENT ENTRY
                                           :
BRADLEY J. HINKLE                          :
                                           :
       Defendant-Appellant                 :         Case No. 10-CA-22


       For the reasons stated in our accompanying Opinion, the convictions and

sentences entered by the Knox County Court of Common Pleas are affirmed in part;

vacated in part and the matter is remanded for further proceedings in accordance with

our Opinion and the law. Costs waived.




                                           s/ William B. Hoffman _________________
                                           HON. WILLIAM B. HOFFMAN


                                           s/ W. Scott Gwin _____________________
                                           HON. W. SCOTT GWIN


                                           s/ Julie A. Edwards___________________
                                           HON. JULIE A. EDWARDS
