[Cite as State v. Coffman, 2011-Ohio-4284.]




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

STATE OF OHIO                                    :
                                                 :    Appellate Case No. 2010-CA-20
        Plaintiff-Appellee                       :
                                                 :    Trial Court Case Nos. 2010-CR-33
v.                                               :    Trial Court Casse No. 2010-CR-77
                                                 :
BRADLEY J. COFFMAN                               :
                                                 :    (Criminal Appeal from
        Defendant-Appellant               :      (Common Pleas Court)
                                                 :

                                              ...........

                                              OPINION

                             Rendered on the 26th day of August, 2011.

                                               .........

NICK A. SELVAGGIO, by SCOTT SCHOCKLING, Atty. Reg. #0062949, Champaign
County Prosecutor’s Office, Courthouse, 200 North Main Street, Urbana, Ohio 43078
      Attorneys for Plaintiff-Appellee

DANIEL R. ALLNUTT, Atty. Reg. #0085452, Post Office Box 234, Alpha, Ohio 45301
     Attorney for Defendant-Appellant

                                               .........

HALL, J.

        {¶ 1} This matter is before the Court on a Notice of Appeal filed by Bradley J.

Coffman on July 14, 2010. Coffman was convicted, after pleas of guilty, of one count of theft,

a felony of the fifth degree, and 31 counts of forgery, each felonies of the fifth degree, in case

# 2010 CR33, and 10 counts of forgery, each felonies of the fifth degree, in case # 2010
                                                                                           2


CR77. One count from each case was dismissed. Coffman was sentenced to an aggregate term

of seven years in prison, being a combination of seven consecutive one-year sentences for

each of the seven identified victims, and the remainder of the sentences of one year were

ordered to be served concurrently. He was ordered to pay restitution of $1,912.99. He also was

ordered to pay a $200.00 fine for each offense, but the court merged the fines to a single

amount of $200.00. The defendant also was ordered to pay court costs. The trial court

specifically found that the “defendant is employable and in good health. The defendant is able

to pay costs, fine and restitution upon release from confinement.” Journal Entry of Judgment

filed June 22, 2010, pg. 13.

       {¶ 2} Counsel for Coffman filed a brief pursuant to Anders v. California (1967), 386

U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, on January 11, 2011. We notified Coffman of his

counsel's Anders brief and advised that he could file a pro se brief assigning any errors for

review. Coffman filed his own brief on March 14, 2011. The case is now before us for our

independent review of the record. Penson v. Ohio (1988), 488 U.S. 75, 109 S.Ct. 346, 102

L.Ed.2d 300.

       {¶ 3} Counsel for Coffman asserts two potential assignments of error as follows:



       {¶ 4} A. “THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION

WHEN IT SENTENCED THE APPELLANT TO THE MAXIMUM PERIOD OF

IMPRISONMENT FOR EVERY COUNT, AND ORDERED THAT HE SERVE SEVEN OF

THOSE COUNTS CONSECUTIVELY.”

       {¶ 5} B. “THE APPELLANT’S SENTENCE OF SEVEN YEARS CONSTITUTES
                                                                                                3


CRUEL AND UNUSUAL PUNISHMENT, A VIOLATION OF APPELLANT’S RIGHTS

UNDER THE EIGHTH AMENDMENT OF THE UNITED STATES CONSTITUTION.”



       {¶ 6} In State v. Barker, Montgomery App. No. 22779, 2009–Ohio–3511, ¶ 36, this

court stated:

       {¶ 7} “‘The trial court has full discretion to impose any sentence within the

authorized statutory range, and the court is not required to make any findings or give its

reasons for imposing maximum, consecutive, or more than minimum sentences. State v.

Foster, 109 Ohio St.3d 1, 2006–Ohio–856, at paragraph 7 of the syllabus. Nevertheless, in

exercising its discretion the trial court must consider the statutory policies that apply to every

felony offense, including those set out in R.C. 2929.11 and 2929.12. State v. Mathis, 109 Ohio

St.3d 54, 2006–Ohio–855, 846 N.E.2d 1, at ¶ 37.’”

       {¶ 8} Once an appellate court determines that a sentence is not contrary to law, the

decision of the trial court will only be found to be error if it constitutes an abuse of discretion.

State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912. Here, there is nothing in this record to

demonstrate that in imposing its sentence the trial court failed to consider either the purposes

and principles of felony sentencing, R.C. 2929.11, or the seriousness and recidivism factors,

R.C. 2929.12. We have reviewed the transcript of the sentencing hearing. The court

considered the oral statements of counsel and of the defendant. The court considered the

defendant’s record, which consisted of two prior cases in felony court. On the first, the

defendant was placed on community control but was revoked and ordered to spend time in

MonDay, a community-based correctional facility. The second case involved some 27 counts
                                                                                            4


of forgery, similar to the offenses in these cases. The defendant was originally sentenced to

the West Central Community Correction facility, followed by community control supervision.

 He violated and was ordered to complete Nova House, which was unsuccessful. He was

then sent to prison, but the court allowed him to be in the Intensive Program Prison early

release, which was to a half-way house in Columbus, Ohio.            In the present cases, the

defendant was released on bond after the initial indictment. The defendant admitted that at

least four of the ten counts in the second indictment were committed while he was out on

bond on the first case. Given these facts, we would not be able to say that the trial court

abused its discretion and, therefore, we do not consider the first potential assignment of error

as having arguable merit.

       {¶ 9} With regard to the second potential assignment of error, “[a]s a general rule, a

sentence that falls within the terms of a valid statute cannot amount to a cruel and unusual

punishment.” McDougle v. Maxwell (1964), 1 Ohio St.2d 68, 69 (citations omitted). This

concept was reiterated by the Ohio Supreme Court in the applicability of current sentencing

statutes in the more recent case of State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338,

where the court held in the syllabus: “Where none of the individual sentences imposed on an

offender are grossly disproportionate to their respective offenses, an aggregate prison term

resulting from consecutive imposition of those sentences does not constitute cruel and unusual

punishment.” Accordingly, we cannot say that Maxwell’s aggregate sentence constitutes

cruel and unusual punishment. The second potential assignment of error does not have

arguable merit.

       {¶ 10} The defendant’s pro se brief raises the following assignment of error:
                                                                                              5


         {¶ 11} “DEFENSE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF

COUNSEL WHEN, BEFORE SENTENCING HE FAILED TO PREPARE AND FILE AN

AFFIDAVIT INDICATING THAT HE WAS INDIGENT AND UNABLE TO PAY A

FINE.”

         {¶ 12} For this court to find ineffective assistance of trial counsel, the 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.

Prejudice requires a determination that 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 (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v.

Bradley (1989), 42 Ohio St.3d 136.

         {¶ 13} The defendant refers us to State v. Sheffield, Montgomery App. No. 20029,

2004-Ohio-3099, where this court indicated that the failure to file an affidavit of indigency

may constitute ineffective assistance of counsel if the record shows a reasonable probability

that the trial court would have found the defendant indigent and waived the mandatory fine.

In that case, the mandatory fine was $10,000.00. Nevertheless, the Sheffield court was unable

to find a reasonable probability that the trial court would have found the defendant indigent.

Here, the aggregate fine is only $200.00. All that is required is that the trial court must

“consider the offender's ability to pay.” R.C. 2929.19(B)(6). This the court did when it

concluded that the defendant was employable and in good health. On this record, we are

unable to conclude that the filing of an affidavit of indigency probably would have led the trial

court to waive, or not impose, the fine. Therefore, the defendant’s assignment of error does
                                                                                          6


not have arguable merit.

       {¶ 14} In addition to reviewing the possible issues for appeal raised by defendant’s

appellate counsel, and the issue raised by the appellant, we have conducted an independent

review of the trial court's proceedings and have found no error having arguable merit.

Accordingly, defendant's appeal is without merit, and the judgment of the trial court will be

affirmed.

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



FROELICH and CELEBREZZE, JJ., concur.

(Hon. Frank D. Celebrezze, Jr., Eighth District Court of Appeals, sitting by assignment of
the Chief Justice of the Supreme Court of Ohio.)


Copies mailed to:

Nick A. Selvaggio
Scott Schockling
Daniel Allnutt
Bradley J. Coffman
Hon. Roger B. Wilson
