[Cite as State v. Dye, 2013-Ohio-4285.]


                                    IN THE COURT OF APPEALS

                                ELEVENTH APPELLATE DISTRICT

                                      PORTAGE COUNTY, OHIO


STATE OF OHIO,                                  :       OPINION

                 Plaintiff-Appellee,            :
                                                        CASE NO. 2011-P-0097
        - vs -                                  :

ROBERT A. DYE,                                  :

                 Defendant-Appellant.           :


Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2011 CR
0331.

Judgment: Modified and affirmed as modified.


Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant
Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).

Brian A. Smith, 503 West Park Avenue, Barberton, OH             44203 (For Defendant-
Appellant).



CYNTHIA WESTCOTT RICE, J.

        {¶1}     Appellant, Robert A. Dye, appeals from the judgment on sentence entered

by the Portage County Court of Common Pleas. This court originally affirmed the trial

court’s judgment denying appellant’s presentence motion to withdraw his guilty plea and

sentence in State v. Dye, 11th Dist. Portage Co. No. 2011-P-0097, 2012-Ohio-4464.

Appellant filed an application to reopen his appeal based upon ineffective assistance of

appellate counsel.        In February 2013, this court granted that motion and appointed
appellate counsel. The sole issue before this court is whether the trial court provided

appellant the proper costs advisement pursuant to R.C. 2947.23.           For the reasons

discussed below, we modify the judgment of the trial court, and affirm the judgment as

modified.

       {¶2}   The Portage County Grand Jury issued a two-count indictment charging

appellant with aggravated burglary, in violation of R.C. 2911.01(A)(1), a felony of the

first degree, and kidnapping, in violation of R.C. 2905.01(A)(2) and (3), also a felony of

the first degree.     The charges arose from crimes allegedly committed against

appellant’s former girlfriend.

       {¶3}   After entering a plea of not guilty, a trial date was set. On the day the jury

trial was scheduled to commence, appellant changed his plea to and entered a plea of

guilty to one count of burglary, a felony of the second degree. After conducting a plea

colloquy, the trial court accepted appellant’s plea, nolled the remaining charges in the

indictment, and ordered a presentence investigation report.          Prior to sentencing,

however, appellant changed defense counsel and moved to withdraw his plea of guilty.

The trial court denied appellant’s motion. After a sentencing hearing, the trial court

ordered appellant to serve six years in prison.       That judgment was journalized on

October 27, 2011.

       {¶4}   Appellant appealed and, in Dye, supra, this court held the trial court did

not act unjust, unfair, or unreasonable in denying his presentence motion to withdraw

his guilty plea. Id. at ¶27. This court further affirmed the trial court’s imposition of

sentence. Id. at ¶36. Appellant filed an application to reopen his appeal pursuant to

App.R. 26(B). In granting the application, this court observed: “[t]he record appears to




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establish a colorable claim for ineffective assistance of appellate counsel regarding

whether the trial court met its notification obligations under R.C. 2947.23(A)(1).”

       {¶5}   In light of this conclusion, appellant now assigns the following error on

reopening:

       {¶6}   “The failure of appellant’s counsel to raise the issue of whether the trial

court erred in imposing court costs on the appellant, without notifying him of the

possibility of community service in lieu of paying court costs, constituted ineffective

assistance of counsel.”

       {¶7}   The test set forth in Strickland v. Washington, 466 U.S. 668 (1984), is the

proper standard to apply to assess whether a defendant has raised a genuine issue as

to the ineffectiveness of appellate counsel. State v. Davie, 96 Ohio St.3d 133, 2002-

Ohio-3753. Appellant must prove his appellate counsel was deficient for failing to raise

the issues he now presents and that there was a reasonable probability of success had

the claims been presented on direct appeal. Id. A heavy measure of deference to an

attorney’s judgment is applied in assessing the legal effectiveness of counsel, and there

is a strong presumption that the attorney’s conduct fell within the wide range of

reasonable professional assistance. State v. Sanders, 94 Ohio St.3d 150, 151.

       {¶8}   Under his assignment of error, appellant asserts the trial court failed to

comply with the requirements of R.C 2947.23(A)(1)(a) when it imposed costs. R.C.

2947.23 has been amended since appellant’s sentencing, but at the time of sentencing,

it provided, in relevant part:

       {¶9}   In all criminal cases, including violations of ordinances, the judge or

              magistrate shall include in the sentence the costs of prosecution,




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              including any costs under section 2947.231 of the Revised Code,

              and render a judgment against the defendant for such costs. At the

              time the judge or magistrate imposes sentence, the judge or

              magistrate shall notify the defendant of both of the following:

       {¶10} (a) If the defendant fails to pay that judgment or fails to timely make

              payments towards that judgment under a payment schedule

              approved by the court, the court may order the defendant to

              perform community service in an amount of not more than forty

              hours per month until the judgment is paid or until the court is

              satisfied that the defendant is in full compliance with the approved

              payment schedule.

       {¶11} In relevant part, the 2012 amendment, effective March 22, 2013,

substituted, in the second sentence of the language of section (A)(1)(a), “If” for “At the

time,” and substituted “a community control sanction or other nonresidential sanction”

for “sentence,” and also inserted the phrase “when imposing the sanction” to that

sentence.

       {¶12} Because appellant’s sentence was entered before the effective date of the

amendment, former R.C. 2947.23 applies. Recently, in State v. Fomby, 11th Dist. Lake

No. 2012-L-073, 2013-Ohio-2821, this court, applying a plain error analysis, determined

a criminal defendant suffered no adverse effect from a trial court’s failure to orally notify

him of the potential for future imposition of community service under the pre-

amendment statute.      In that case, however, the defendant received actual, written

notice of the possibility in the court’s judgment. Given this point, this court observed:




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       {¶13} R.C. 2947.23(A) does not mandate the imposition of community

              service for lack of payment, but merely grants the trial court the

              ability to futuristically order community service in the event that the

              costs are not paid. The requirement is essentially an “if-maybe”

              notice. As a result, the oral notification only informs the defendant

              of a possible condition that may be later imposed. To this extent,

              the lack of proper oral notification does not have immediate effect.

              [And], given that the state can collect court costs through the

              garnishment of an inmate’s prison account * * *, appellant’s court

              costs * * * are likely to be paid before he is released and the

              ‘community service’ provision is triggered. Fomby, supra, ¶66.

       {¶14} Given these points, this court held, “no miscarriage of justice occurred that

would warrant a finding of plain error” in the court’s failure to orally notify the defendant

pursuant to former R.C. 2947.23.

       {¶15} In this case, the trial court imposed costs, but neither orally, at the

sentencing hearing, nor in writing, via the judgment entry, provided appellant with the

proper statutory advisement regarding costs.        In this respect, the instant matter is

distinguishable from the circumstances in Fomby.

       {¶16} Nevertheless, the concurring opinion in Fomby noted an alternative

approach utilized by the Second Appellate District under similar circumstances to the

case at bar. Namely, acknowledging the error and, to the extent the state does not

object, modifying the judgment to remove any possibility that the defendant could be

required to perform community service in the future in lieu of costs. See State v. Veal,




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2d Dist. Montgomery No. 25253, 2013-Ohio-1577, ¶20; State v. Haney, 2d Dist.

Montgomery No. 25344, 2013-Ohio-1924, ¶21; State v. Parson, 2d Dist. Montgomery

No. 25123, 2013-Ohio-1069, ¶16; State v. Henderson, 2d Dist. Montgomery No. 24701,

2012-Ohio-3283; c.f. State v. Jeffery, 2d Dist. Montgomery No. 24916, 2013-Ohio-504

(pre-amendment R.C. 2914.23 notification issue reversed and remanded for advisement

because the state did not agree to the modification).

       {¶17} In this case, the imposition of court costs without the proper notification

was error.    Appellant, however, could receive a complete remedy by removing the

possibility that he can ever be required to perform community service instead of paying

court costs. As the Second District stated in Henderson, supra, “if the performance of

community service is not a possibility, then [appellant] is not prejudiced by the trial

court’s having failed to inform him of that possibility.” Id. at ¶12.

       {¶18} Here, at oral argument, the state approved of the foregoing remedy

adopted by Second District. Thus, we sustain appellant’s assignment of error. The trial

court’s judgment is accordingly modified by eliminating the possibility that appellant be

subject to community service in lieu of court costs.          As modified, the trial court’s

judgment is hereby affirmed.

       {¶19} For the reasons discussed in this opinion, the judgment of the Portage

County Court of Common Pleas is modified and affirmed as modified.



TIMOTHY P. CANNON, P.J., concurs,

COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

                                ______________________




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COLLEEN MARY O’TOOLE, J., dissents with a Dissenting Opinion.

       {¶20} I respectfully dissent.

       {¶21} The majority finds it prudent to modify and affirm as modified appellant’s

sentence. Although I also find error in the original sentence, I believe the better practice

is to remand this case to the trial court to correct its error, as trial courts are in the best

position to resentence offenders. See State v. McKenna, 11th Dist. Trumbull No. 2009-

T-0034, 2009-Ohio-6154, ¶87 (modifying and affirming as modified the appellant’s

sentence) (O’Toole, J., dissenting with a Dissenting Opinion, indicating the matter

should be remanded for resentencing); State v. Elsass, 3d Dist. Auglaize Nos. 2-05-15

and 2-05-16, 2006-Ohio-350, ¶1, 16; State v. Sellers, 173 Ohio App.3d 60, 2007-Ohio-

4681, ¶54 (8th Dist.) (Gallagher, J., concurring with a Concurring Opinion, indicating

that trial courts are in the best position to correct sentencing errors).

       {¶22} Thus, because I have serious concerns about appellate courts’ practice of

resentencing offenders following appeals where error is found, I respectfully dissent

from the majority’s position.




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