[Cite as State v. Graves, 2015-Ohio-3696.]




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


State of Ohio                                     Court of Appeals No. L-14-1171

        Appellee                                  Trial Court No. CR0201302890

v.

Demetrias Graves                                  DECISION AND JUDGMENT

        Appellant                                 Decided: September 11, 2015

                                             *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        David F. Cooper, Assistant Prosecuting Attorney, for appellee.

        Lawrence A. Gold, for appellant.

                                             *****

        OSOWIK, J.

        {¶ 1} This is an appeal from a June 17, 2014 sentencing judgment of the Lucas

County Court of Common Pleas, following appellant’s plea pursuant to a plea agreement

to one count of murder, in violation of R.C. 2903.02(B), an unclassified felony. The

scope of this appeal is limited to the propriety of the imposition of costs and fines in the

course of sentencing appellant. For the reasons set forth below, this court affirms the

judgment of the trial court.
         {¶ 2} Appellant, Demetrias Graves, sets forth the following two assignments of

error:

                 I. The trial court committed plain error to the prejudice of appellant

         at sentencing by imposing court costs and financial sanctions without

         proper notification in consideration of Appellant’s ability to pay.

                 II. Appellant received ineffective assistance of counsel in violation

         of his rights under the Sixth and Fourteenth Amendments to the United

         States Constitution and Article I, §10 of the Constitution of the State of

         Ohio.

         {¶ 3} The following undisputed facts are relevant to this appeal.

         {¶ 4} On October 23, 2013, appellant and his girlfriend, Mariah Wells, traveled to

the home of appellant’s mother located in central Toledo. The pair traveled to Toledo

from their home in Newark, Ohio, after being contacted by appellant’s mother in

connection to the disappearance of appellant’s younger brother. Appellant was 27 years

of age, had been educated at Woodward High School through the 10th grade, and had

recently been employed at a car lot.

         {¶ 5} Upon their arrival, appellant’s mother, aunt, and three additional women

were present at the house. Subsequently, a heated argument between appellant, his

mother, his aunt, and the three women transpired related to the disappearance of

appellant’s brother. Appellant’s mother, girlfriend, and the three young women left the

home and went outside towards the street. Shortly thereafter, appellant came outside and




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began to fire a 9 mm weapon in the direction of the women. One of the women sustained

a wound in the vicinity of her right eye. Appellant’s girlfriend was struck in the upper

left back and was killed.

       {¶ 6} On November 4, 2013, appellant was indicted on one count of murder with a

firearm specification, in violation of R.C. 2903.02(B), an unclassified felony, three

counts of felonious assault with a firearm specification, in violation of R.C.

2903.11(A)(2), felonies of the second degree, and one count of improperly discharging a

firearm, in violation of R.C. 2923.161(A)(1), a felony of the second degree.

       {¶ 7} On November 12, 2013, appellant was arraigned and counsel was appointed.

On January 10, 2014, the trial court granted appellant’s motion for funds to be

appropriated for an investigator to be retained in the matter. On March 4, 2014,

appellant’s motion was granted to receive additional investigator funds. In the interim,

several pretrial hearings were scheduled and conducted.

       {¶ 8} On May 29, 2014, pursuant to a negotiated plea agreement, appellant pled no

contest to one count of murder, in violation of R.C. 2903.02(B), an unclassified felony.

In exchange, the remaining four pending felony charges were dismissed. A presentence

investigation report was ordered.

       {¶ 9} On June 17, 2014, appellant was sentenced to a term of incarceration of 15

years to life. Of relevance to this appeal, during the course of sentencing, costs and fines

were imposed against appellant. Notably, no objection was made in response to the

imposition of costs and fines. This appeal ensued.




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       {¶ 10} In the first assignment of error, appellant maintains that the trial court

imposition of costs and fines constituted plain error. In support, appellant maintains that

the trial court improperly failed to consider appellant’s ability to pay. We do not concur.

       {¶ 11} R.C. 2947.23(A)(1)(a), establishes, “In all criminal cases, including

violations of ordinances, the judge or magistrate shall include in the sentence the costs of

prosecution, including any costs under section 2947.231 of the revised code, and render a

judgment against the defendant for such costs.”

       {¶ 12} It is well-established, given the above-referenced statutory framework for

the imposition of costs at a criminal sentencing, that defendants are required to submit

any motions to the trial court seeking consideration of waiver regarding fines and costs at

the time of sentencing. If this is not done, the issue is thereby waived and is rendered

res judicata. State v. Winfield, 6th Dist. Lucas No. L-13-1251, 2014-Ohio-3968, ¶ 6.

       {¶ 13} The record in the instant case clearly reflects that appellant did not object to

the issue of financial sanctions at sentencing. Accordingly, appellant’s first assignment

of error fails pursuant to res judicata.

       {¶ 14} However, even assuming arguendo that res judicata does not bar the first

assignment of error, it nevertheless fails on the merits. We have carefully reviewed and

considered the record of evidence, paying particular attention to any facts relevant to the

underlying issue of appellant’s ability to pay.

       {¶ 15} We find that the record of evidence before the trial court clearly

encompassed sufficient evidence to enable the trial court to clearly and convincingly




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support the determination that appellant possessed the ability to pay. Notably, the record

reflects that appellant was 27 years of age, had attended Woodward High School through

the 10th grade, and had previously possessed employment with several different area

employers. Nothing in the record evidences inability to work on any basis.

       {¶ 16} Accordingly, given appellant’s age, educational level, literacy, and

employment history, we find that the record possessed sufficient evidence in support of

the disputed trial court finding. Wherefore, we find appellant’s first assignment of error

not well-taken.

       {¶ 17} In appellant’s second assignment of error, appellant concludes,

“[A]ppointed counsel was ineffective by failing to raise an objection to the trial court’s

imposition of financial sanctions, costs and fees.”

       {¶ 18} It is well-established that claims of ineffective assistance of counsel are

reviewed pursuant to the standard established in Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to prevail on an ineffective assistance of

counsel claim, it must be demonstrated that counsel’s performance was so deficient as to

not be reasonable and that but for the deficient performance, the outcome of the case

would have been different. State v. Chaney, 6th Dist. Lucas No. L-14-1161, 2015-Ohio-

3293, ¶ 17.

       {¶ 19} Appellant’s claim of ineffective assistance of counsel in the second

assignment of error is wholly prefaced upon the notion that the failure to object to the

financial sanctions at sentencing constituted plain error. Given our determination in




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response to the first assignment of error that such claims are barred by res judicata and

further fail on the merits as the record encompasses sufficient evidence demonstrating

appellant’s ability to pay, we likewise find appellant’s second assignment of error to be

not well- taken. It cannot be demonstrated that the outcome of this matter would have

been different but for counsel’s failure to raise an objection on an issue where sufficient

evidence existed in support of the trial court action.

       {¶ 20} Wherefore, we find that substantial justice has been done in this matter.

The judgment of the Lucas County Court of Common Pleas is hereby affirmed.

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.



Arlene Singer, J.                                _______________________________
                                                             JUDGE
Thomas J. Osowik, J.
                                                 _______________________________
Stephen A. Yarbrough, P.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.sconet.state.oh.us/rod/newpdf/?source=6.




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