[Cite as State v. Shepard, 2011-Ohio-2525.]




          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                     No. 95433




                                    STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                    GARY SHEPARD
                                                    DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED



                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                           Case No. CR-531451

      BEFORE:     S. Gallagher, J., Cooney, P.J., and Keough, J.

    RELEASED AND JOURNALIZED: May 26, 2011
ATTORNEY FOR APPELLANT

Timothy R. Sterkel
1414 South Green Road
Suite 310
Cleveland, OH 44121


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY:    Tiffany Hill
      T. Allan Regas
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113




SEAN C. GALLAGHER, J.:
       {¶ 1} Appellant Gary Shepard (“Shepard”) appeals his conviction in Cuyahoga

County Common Pleas Court Case No. CR-531451 of one count of drug trafficking with a

forfeiture specification.   For the following reasons, we affirm.

       {¶ 2} On December 15, 2009, Shepard was indicted on eight counts centered on drug

possession and trafficking.     Each count included forfeiture and schoolyard specifications.

Shepard entered a plea deal with the state that amended Count 1 of the indictment by

removing the schoolyard specification, resulting in a charge of drug trafficking with a

forfeiture specification, a felony of the second degree. The state agreed to nolle the remaining

seven counts.       Count 1 as amended carried a mandatory sentence of two years of

incarceration, as opposed to a mandatory three-year sentence before the amendment.          The

trial court did not specifically acknowledge the amendment on the record during the plea

colloquy, but took the plea under the terms as outlined above.        Thus,    Shepard pleaded

guilty to drug trafficking with a forfeiture specification and was sentenced to a two-year term

of incarceration.   He forfeited $6,111 and a cell phone.

       {¶ 3} Shepard raises three assignments of error, which we will address in turn.

Shepard’s first assignment of error is as follows: “The trial court committed reversible error

when it accepted appellant’s guilty plea to count one of the indictment.”     More specifically,

Shepard claims the trial court erred by not accepting the proposed amendment to the

indictment on the record and then accepting his plea to “count one of the indictment.”     Such
error meant that he did not enter the plea knowingly, intelligently, or voluntarily.   His first

assignment of error is not well taken for the following reasons.

       {¶ 4} We review de novo the trial court’s acceptance of a plea.         State v. Sample,

Cuyahoga App. No. 81357, 2003-Ohio-2756. “When a defendant enters a plea in a criminal

case, the plea must be made knowingly, intelligently, and voluntarily.       Failure on any of

those points renders enforcement of the plea unconstitutional under both the United States

Constitution and the Ohio Constitution.”         State v. Engle, 74 Ohio St.3d 525, 527,

1996-Ohio-179, 660 N.E.2d 450.      Under Crim.R. 11(C)(2), before accepting a guilty plea in

a felony case, a trial court must determine whether the defendant is making the plea

voluntarily and with an understanding of the nature of the charges.

       {¶ 5} The standard of review for determining whether a plea was knowing, intelligent,

and voluntary within the meaning of Crim.R. 11 for non-constitutional issues is substantial

compliance. State v. Nero (1990), 56 Ohio St.3d 106, 108, 564 N.E.2d 479, citing State v.

Stewart (1977), 51 Ohio St.2d 86, 92-93, 364 N.E.2d 1163.             “A plea is in substantial

compliance with Crim.R. 11 when it can be inferred from the totality of the circumstances that

the defendant understands the charges against him.”        State v. Walker (Sept. 29, 1994),

Cuyahoga App. No. 65794, citing State v. Rainey (1982), 3 Ohio App.3d 441, 446 N.E.2d

188, at paragraph one of the syllabus. “Substantial compliance means that under the totality

of circumstances the defendant subjectively understands the implications of his plea and the
rights he is waiving.”   Stewart, 51 Ohio St.2d at 93.    Furthermore, a defendant must show a

prejudicial effect, or, in other words, whether the plea would have otherwise been made.     Id.

        {¶ 6} In the current case, Shepard agreed to plead to an amended Count 1.             The

amendment deleted the schoolyard specification and left the remaining drug trafficking charge

with the forfeiture specification as indicted.      This lowered the charge to a felony of the

second degree from a felony of the first degree.     During the plea colloquy, the trial court did

not specifically or formally “accept” the amendment.        Nevertheless, in reciting the charge

being plead to, the court correctly eliminated the schoolyard specification and stated the

charge was a felony of the second degree.        Moreover, the June 21, 2010 sentencing entry

correctly reflected the amendment of Count 1. Although the court failed to formally accept the

amendment during the colloquy, the court recited everyone’s understanding of the amendment.

 The trial court substantially complied with the Crim.R. 11 and due process requirements.

Furthermore, not only did Shepard understand the implications, he received the benefit of the

deal.   He received two years of mandatory time rather than the three years he would have

received under the original indictment, and the state also nolled the other seven counts.

Shepard’s first assignment of error is overruled.

        {¶ 7} Shepard’s second assignment of error is as follows:               “The trial court

committed error when it imposed a fine against appellant.”       Shepard argues that because he

was found indigent at his arraignment and his trial counsel orally moved to suspend the fine at
sentencing, the trial court erred by imposing a fine.   Shepard’s second assignment of error is

not well taken for the following reason.

       {¶ 8} R.C. 2929.18(B)(1) provides in pertinent part:        “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.”    Therefore, if an affidavit of indigency is filed prior to sentencing,

the trial court must make a determination whether the defendant is indigent and unable to pay

the fine.   The term “prior to sentencing” means “the affidavit must be delivered to the clerk

of court for purposes of filing and must be indorsed by the clerk of court, i.e., time-stamped,

prior to the filing of the journal entry reflecting the trial court’s sentencing decision.”   State

v. Gipson (1998), 80 Ohio St.3d 626, 1998-Ohio-659, 687 N.E.2d 750, paragraph one of the

syllabus.

       {¶ 9} The statute does not wholesale prohibit the court from imposing a fine.

Rather it requires the defendant to establish the inability to pay the fine once the affidavit of

indigency is filed.   Id.   The required filing of an affidavit of indigency for purposes of

avoiding a mandatory fine is, in effect, a jurisdictional issue.    According to the statute, the

trial court must impose a mandatory fine unless the affidavit is timely filed.       Id.; see R.C.

2929.18(B)(1).
        {¶ 10} In the current case, Shepard filed an affidavit of indigency attached to a motion

for reconsideration on June 18, 2010, three days prior to the sentencing entry being

journalized.     Neither party addressed this in their briefs.   Shepard’s only argument on appeal

is that since he is indigent, the court erred by automatically imposing the fine.        The Ohio

Supreme Court explained in Gipson that “an offender who files an affidavit alleging that he or

she is indigent and is unable to pay a mandatory fine is not automatically entitled to a waiver

of that fine.”    Gipson, 80 Ohio St.3d at 634.     Shepard held a full-time job with one company

for the three years preceding his indictment.       As in Gipson, the trial court did not abuse its

discretion when it imposed the mandatory fine and was free to believe Shepard could repay it

after his release from prison because of his prior work history.      Shepard’s second assignment

of error is overruled.

        {¶ 11} Shepard’s third assignment of error is as follows:       “Appellant was denied his

right to effective assistance of trial counsel guaranteed by the Sixth Amendment to the United

States Constitution and Article 10, Section I of the Ohio Constitution.”        Shepard claims his

trial counsel was ineffective by allowing Shepard to plead to Count 1 as indicted instead of as

amended and by failing to file the affidavit of indigency pursuant to R.C. 2929.18(B)(1).

Each point will be discussed in turn.     His third assignment of error is not well taken.

        {¶ 12} In order to substantiate a claim of ineffective assistance of

counsel, the appellant must show that (1) counsel’s performance was deficient

and (2) the deficient performance prejudiced the defendant so as to deprive
him of a fair trial. State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911

N.E.2d 242,¶ 98, citing Strickland v. Washington (1984), 466 U.S. 668, 687,

104 S.Ct. 2052, 80 L.Ed.2d 674.       Judicial scrutiny of defense counsel’s

performance must be highly deferential. Strickland, 104 S.Ct. at 2065. In

Ohio, there is a presumption that a properly licensed attorney is competent.

State v. Calhoun, 86 Ohio St.3d 279, 1999-Ohio-102, 714 N.E.2d 905. The

defendant has the burden of proving his counsel rendered ineffective

assistance. State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d

104, ¶ 223.

      {¶ 13} In the current case, Shepard first argues that his trial counsel

rendered ineffective assistance by allowing Shepard to plead to Count 1 as

indicted rather than as amended. Even if we assume that Shepard’s trial

counsel was deficient for failing to perfect the record, Shepard suffered no

prejudice from this minor oversight. He received the benefit of the deal he

brokered with the state, and the sentencing entry correctly reflected that he

pleaded to Count 1 as amended. The schoolyard specification was deleted,

and both the entry and the transcript from the plea colloquy properly reflect

he pleaded to a felony of the second degree.

      {¶ 14} Shepard next argues that the trial counsel’s failure to file the

affidavit of indigency prior to the sentencing hearing deprived him of the

right to seek suspension of the fine based on his inability to pay. The failure
to file an affidavit alleging a defendant’s indigency and inability to pay a

mandatory fine constitutes ineffective assistance of counsel only when the

record shows a reasonable probability that the trial court would have found

the defendant indigent and unable to pay the fine had the affidavit been filed.

 State v. Huffman (Jan. 26, 1995), Cuyahoga App. No. 63938.

       {¶ 15} The Ohio Supreme Court stated that timely filing means “the affidavit must be

delivered to the clerk of court for purposes of filing and must be indorsed by the clerk of

court, i.e., time-stamped, prior to the filing of the journal entry reflecting the trial court’s

sentencing decision.”    Gipson, 80 Ohio St.3d at paragraph one of the syllabus.      Although

not addressed by either party, on June 18, 2010, Shepard filed a motion to reconsider the

mandatory fine that included the affidavit of indigency.     The trial court’s sentencing entry

was not journalized until June 21, 2010.    Shepard’s trial counsel therefore complied with the

mandate of R.C. 2929.18(B)(1), and the third assignment of error is overruled.

       Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.        The defendant’s conviction having been

affirmed, any bail pending appeal is terminated.        Case remanded to the trial court for

execution of sentence.
       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




SEAN C. GALLAGHER, JUDGE

COLLEEN CONWAY COONEY, P.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
