[Cite as State v. Hurtado, 2017-Ohio-1465.]




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

 STATE OF OHIO                                      :
                                                    :
         Plaintiff-Appellee                         :   C.A. CASE NO. 26892
                                                    :
 v.                                                 :   T.C. NO. 14-CR-4010/1
                                                    :
 JOSE F. HURTADO, JR.                               :   (Criminal Appeal from
                                                    :    Common Pleas Court)
         Defendant-Appellant                        :
                                                    :

                                               ...........

                                              OPINION

                 Rendered on the ___21st __ day of _____April_____, 2017.

                                               ...........

HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

TARA C. DANCING, Atty. Reg. No. 0077277, P. O. Box 288, Fairborn, Ohio 45324
     Attorney for Defendant-Appellant

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

DONOVAN, J.

        {¶ 1} Defendant-appellant Jose F. Hurtado, Jr., appeals his conviction and

sentence for one count of possession of marihuana (20,000 grams but less than 40,000

grams), in violation of R.C. §2925.11(A), a felony of the second degree. Hurtado filed a

timely notice of appeal with this Court on November 2, 2015.
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       {¶ 2} On February 23, 2015, Hurtado was indicted for one count of possession of

marihuana (more than 40,000 grams), in violation of R.C. §2925.11(A), a felony of the

second degree. At his arraignment on March 10, 2015, Hurtado stood mute, and the trial

court entered a plea of not guilty on his behalf.

       {¶ 3} On March 19, 2015, Hurtado filed a motion to suppress all of the evidence

discovered by police during the warrantless search of his vehicle wherein approximately

one hundred pounds was seized. A hearing was held before the trial court on said

motion over the following dates: April 24, 2015, May 28, 2015, and June 16, 2015. At

the close of the suppression hearing, the trial court took the matter under advisement and

scheduled a trial date for October 5, 2015. On September 22, 2015, the trial court issued

a written decision overruling Hurtado’s motion to suppress.

       {¶ 4} Before the case proceeded to trial on October 5, 2015, Hurtado informed the

trial court that he wished to enter into a plea agreement.       At the plea hearing on

September 29, 2015, pursuant to that agreement, Hurtado plead guilty to one count of

the lesser included offense of possession of marihuana (20,000 grams but less than

40,000 grams), a felony of the second degree, in violation of R.C. §2925.11(A). On

October 27, 2015, the trial court sentenced Hurtado to five years in prison, the mandatory

sentence under R.C. §2929.13(F)(5), plus three years of supervised Post-Release

Control. Further, the trial court determined Hurtado was not an indigent person for the

purpose of paying the statutory mandatory fine, and imposed a fine of $7,500.00.

       {¶ 5} Hurtado’s trial counsel filed a notice of appeal on November 2, 2015.

Appellate counsel for Hurtado was appointed on November 11, 2015, and said counsel

filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493
                                                                                         -3-


(1967), stating that after thorough examination of the record and law, counsel found no

meritorious issues upon which to base an appeal. By magistrate’s order of March 4,

2016, we informed Hurtado that his appellate counsel had filed an Anders brief, and

granted him 60 days from that date to file a pro se brief assigning any errors for review

by this Court. Hurtado did not file a pro se brief.

       {¶ 6} Upon our own independent review, we set aside counsel’s Anders brief and

appointed new appellate counsel to act as Hurtado’s advocate on appeal. State v.

Hurtado, 2d Dist. Montgomery No. 26892, Decision and Entry (July 15, 2016) (hereinafter

referred to “Hurtado I”). We stated the following therein:

              Hurtado’s appellate counsel, in his Anders brief, set forth three

       potential assignments of error: (1) whether the trial court erred in overruling

       the motion to suppress; (2) whether the trial court erred by failing to comply

       with Crim. R. 11 in accepting Hurtado’s Guilty Plea; and (3) whether the trial

       court erred by imposing a fine of $7,500 as part of Hurtado’s sentence. We

       have conducted our independent review of the record pursuant to Penson

       v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). We conclude

       there is no arguably meritorious issue to present on appeal regarding the

       trial court’s overruling of the motion to suppress. A guilty plea waives all

       appealable errors that may have occurred during the trial, unless such

       errors precluded Defendant from knowingly and voluntarily entering their

       plea of guilty. State v. Kelley (1991), 57 Ohio St.3d 127; State v.

       Montgomery, 2d Dist. Montgomery No. 21508, 2007-Ohio-439. Further,

       we conclude that the record reveals no arguably meritorious issues
                                                                                        -4-

       regarding the trial court’s compliance with Crim.R. 11 in accepting Hurtado’s

       guilty plea. The court conduct[ed] a thorough Crim.R. 11 colloquy.

       (emphasis added).

              We conclude, however, that the record reveals at least two non-

       frivolous issues for appeal. Specifically, we note that the trial court failed

       to conduct a hearing to determine Hurtado’s reasonable ability to pay the

       mandatory fine. See State v. Ward, 187 Ohio App.3d 384, 2010-Ohio-1794,

       932 N.E.2d 374 (2d Dist.). Secondly, we acknowledge that Hurtado’s trial

       counsel failed to request such a hearing. However, we note that the record

       establishes Hurtado lived below the poverty level, earning $500.00 or less

       per month with a child support obligation of $280.00 per month. Therefore,

       an arguable assignment of error can be made of ineffective assistance of

       counsel.

Id. at ¶¶ 3, 4. In addition to the non-frivolous issues we identified in our decision

and entry, we encouraged newly appointed appellate counsel to review the entire

record and raise any issues that counsel believed to have arguable merit. Id. at ¶

5.

       {¶ 7} We appointed new appellate counsel to represent Hurtado who filed a merit

brief on October 11, 2016. The State filed its responsive brief on December 29, 2016.

The instant appeal is now properly before this Court.

       {¶ 8} Hurtado’s first assignment of error is as follows:

       {¶ 9} “TRIAL COUNSEL WAS INEFFECTIVE BY PERMITTING HIS CLIENT TO

PLEAD GUILTY AND WAIVE APPEALING SUPPRESSION ISSUES OF AN ILLEGAL
                                                                                          -5-


SEARCH OF A CAR DURING A TRAFFIC STOP AND AN INSUFFICIENT SEARCH

WARRANT.”

       {¶ 10} A claim of ineffective assistance of trial counsel requires both a showing

that trial counsel's representation fell below an objective standard of reasonableness, and

that the defendant was prejudiced as a result. Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A reviewing court “must indulge in a strong

presumption that counsel's conduct falls within the wide range of reasonable professional

assistance.” Id. at 689. The prejudice prong requires a finding that there is a reasonable

probability that, but for counsel's unprofessional errors, the result of the proceeding would

have been different, with a reasonable probability being “a probability sufficient to

undermine confidence in the outcome.” Id. at 694; see also State v. Bradley, 42 Ohio

St.3d 136, 538 N.E.2d 373 (1989).

       {¶ 11} A guilty plea waives the right to allege ineffective assistance of counsel,

except to the extent that the errors caused the plea to be less than knowing and

voluntary. State v. Spates, 64 Ohio St.3d 269, 595 N.E.2d 351 (1992); see State v.

Huddleson, 2d Dist. Montgomery No. 20653, 2005–Ohio–4029, ¶ 9. The reviewing court

must therefore determine whether the trial court substantially complied with Crim.R. 11 in

accepting the plea. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). If

the rule was complied with, the plea was knowing, voluntary, and intelligent. Id.

       {¶ 12} As we previously stated in Hurtado I, we found that no arguably meritorious

issues existed regarding the trial court’s compliance with Crim.R. 11 in accepting

Hurtado’s guilty plea. The record clearly establishes that prior to entering his plea,

Hurtado was advised of the charge, the possible sentence, and the constitutional and
                                                                                       -6-


non-constitutional rights he was waiving by pleading guilty.        The trial court also

specifically informed Hurtado that by pleading guilty, he was waiving his right to appeal

any of the court's rulings with respect to his pre-trial motions, including his motion to

suppress.    At no point did Hurtado express any confusion regarding any of the

information provided by the trial court in its Crim.R. 11 colloquy.     Rather, Hurtado

affirmatively stated that he understood the rights he was waiving, including his right to

appeal the trial court's pre-trial rulings.   Furthermore, as noted by the State, the

agreement negotiated by the parties benefitted Hurtado by allowing him to plead guilty to

the lesser included offense of possession of marihuana (20,000 grams but less than

40,000 grams), a felony of the second degree, in violation of R.C. §2925.11(A).

Accordingly, Hurtado no longer faced a mandatory maximum sentence of eight years.

Thus, we conclude that Hurtado's assignment alleging that he received ineffective

assistance is without merit.

       {¶ 13} Hurtado’s first assignment of error is overruled.

       {¶ 14} Hurtado’s second and final assignment of error is as follows:

       {¶ 15} “THE TRIAL COURT ERRED IN IMPOSING A MAXIMUM FINE ON AN

INDIGENT DEFENDANT.”

       {¶ 16} In his final assignment, Hurtado contends that the trial court erred when it

found that he was not indigent and ordered him to pay a mandatory fine in the amount of

$7,500.00. We note that Hurtado filed two separate “Financial Disclosure/Affidavit of

Indigency” forms. The first affidavit was filed by Hurtado on March 11, 2015, and stated

he had no income or expenses. On October 2, 2015, Hurtado filed a second affidavit

shortly before he was sentenced. In the second affidavit, Hurtado reported that he
                                                                                             -7-


earned $500.00 per month from employment as a chef. Hurtado further reported that his

expenses included $400.00 per month in child support and an additional $50.00 per

month for transportation to and from work. Therefore, based upon the second affidavit,

Hurtado’s adjusted total income was reported to be $50.00 per month prior to his

incarceration. Hurtado also argues that his prior felony conviction and incarceration

coupled with his conviction and sentence in the instant case “would weigh against finding

steady lawful employment.” Thus, Hurtado argues that he “will not be able to pay the

$7,500[.00] fine in any reasonable time following his release from prison.” Hurtado did

not object to the imposition of the mandatory fine at the time of sentencing, nor did he file

a motion to waive the fine with the trial court.

       {¶ 17} R.C. 2929.18(B)(1) provides:

              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 * * *.            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.

       {¶ 18} “For purposes of the statute, being ‘indigent’ and being ‘unable to pay’ are

not the same. Indigency concerns a defendant's current financial situation, whereas an

inability to pay encompasses his future financial situation as well.” State v. Plemons, 2d

Dist. Montgomery Nos. 26434, 26435, 26436 & 26437, 2015-Ohio-2879, ¶ 7.                     The
                                                                                          -8-


defendant bears the burden of proving that he or she is indigent and unable to pay the

mandatory fine. Id. at ¶ 8.

       {¶ 19} “[A] hearing is not required on a defendant's ability to pay a mandatory fine,

and a trial court need not make specific findings on the issue. A trial court need only

consider the issue, which it frequently can do by reviewing a pre-sentence investigation

report that contains enough pertinent information.” (Citation omitted). Id. We review

the trial court's decision for an abuse of discretion. Id.

       {¶ 20} In Plemons, we emphasized that the fine was mandatory unless the

defendant alleged in a presentence affidavit that he was indigent and was unable to pay

the mandatory fine. Id. at ¶ 9.        As with Hurtado in the instant case, Plemons had

completed a financial disclosure/affidavit of indigency form utilized for determining

whether the defendant was entitled to appointment of counsel. The form did not mention

Plemons's ability to pay the mandatory fine. We found the affidavit in Plemons to be

insufficient, stating the following:

               Merely alleging indigency and an inability to afford private counsel

       does not establish an inability to pay a fine. Indeed, “[a] finding of indigence

       for purposes of appointed counsel does not shield the defendant from

       paying a fine.” “ ‘This is because the ability to pay a fine over a period of

       time is not equivalent to the ability to pay legal counsel a retainer fee at the

       onset of criminal proceedings.’ ” Plemons' failure to file a pre-sentence

       affidavit alleging that he is indigent and is unable to pay the mandatory fine

       is, alone, a sufficient reason to affirm the trial court's decision. Absent such

       an affidavit, R.C. 2929.18(B)(1) made the fine mandatory.
                                                                                        -9-

(Citations omitted.) Plemons at ¶ 9.

       {¶ 21} Hurtado's second presentence affidavit filed shortly before he was

sentenced addressed his current indigence, but failed to indicate that he was unable to

pay the mandatory fine. Based on this deficiency alone, we could affirm the trial court's

imposition of a fine. Id.; see also State v. Donley, 2d Dist. Montgomery No. 26654, 26655,

26656, 2017-Ohio-562.

       {¶ 22} Additionally, at Hurtado’s sentencing hearing, the trial court made the

following findings:

                 Trial Court: *** I note that you [Hurtado], in your pre-sentence

       investigation [PSI], indicate not only that you are employed, that you are

       employable, that you have no physical or mental health issues that would

       prevent you from being employed and paying the mandatory fine in the

       future.

                 I am going to find, for purposes of the mandatory fine that you can

       pay the mandatory fine in the future, that you are employable. I’m going to

       order the mandatory fine of $7,500.00. In addition, sir, after considering

       the purposes and principles of sentencing and the seriousness and

       recidivism factors, I’m going to sentence you to five years at the Correction

       Reception Center.

       ***

                 Defense Counsel: Yeah, Your Honor, two points.        I did file the

       affidavit [of indigency] as suggested the last time we were here. It was filed

       with the clerk’s office so it should be of record.
                                                                                         -10-


               Trial Court: It is.

               Defense Counsel: Okay.

               Trial Court: But the Court has the right to make the independent

       assessment of whether he’s indigent for purposes of the fine.

       {¶ 23} Upon review, we see no abuse of discretion in the trial court's imposition of

the fine. At the time of his PSI, Hurtado was thirty-eight years old, and we find that the

trial court acted within its discretion in reasoning, based in part on Hurtado’s undisputed

good physical and mental health, that he could obtain employment and make payments

toward his fine upon his release from prison at age forty-three. At the time that he

committed the instant offense, Hurtado had been employed as a chef at Blue Plate

Catering in Chicago, Illinois since 2007, working approximately forty to fifty hours a week.

Furthermore, Hurtado reported that he has been employed in the catering/restaurant

business since 1995.         Hurtado also reported that he resided alone in Chicago.

“Obviously, neither this court nor the trial court can predict the future.” Plemons at ¶ 10.

On the record before us, however, we cannot say the trial court abused its discretion in

declining to find that Hurtado, an able-bodied, relatively young man who was previously

employed when he was arrested and charged in the instant case, would be unable to pay

his mandatory fine in the future.

       {¶ 24} Hurtado’s second assignment of error is overruled.

       {¶ 25} Both of his assignments of error having been overruled, the judgment of the

trial court is affirmed.



                                         .............
                                       -11-


HALL, P.J. and FROELICH, J., concur.

Copies mailed to:

Heather N. Jans
Tara C. Dancing
Hon. Mary Katherine Huffman
