[Cite as State v. Hubbard, 2013-Ohio-1994.]


                  Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 99093



                                      STATE OF OHIO
                                              PLAINTIFF-APPELLEE

                                               vs.

                                 MYLAN J. HUBBARD
                                              DEFENDANT-APPELLANT




                           JUDGMENT:
              SENTENCE AFFIRMED IN PART, REVERSED IN
                      PART, AND REMANDED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CR-555914

        BEFORE:          McCormack, J., Keough, P.J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: May 16, 2013
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender

By: Cullen Sweeney
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Erin Stone
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:

       {¶1} This case came to be heard upon the accelerated calendar pursuant to

App.R. 11.1 and Loc.R. 11.1.        Defendant-appellant, Mylan Hubbard (“Hubbard”),

appeals the trial court’s sentence, in part, claiming he was denied effective assistance of

counsel when his attorney failed to file an indigency affidavit for the purpose of waiving

the mandatory fine imposed. For the reasons that follow, we reverse the trial court’s

sentence on the limited issue of the mandatory fine.

                                   Procedural History

       {¶2} Hubbard was indicted on one count of drug trafficking in violation of R.C.

2925.03(A)(1) and one count of drug possession in violation of R.C. 2925.11(A), both

felonies of the second degree. At his arraignment, Hubbard was found to be indigent and

he received appointed counsel.

       {¶3} Thereafter, Hubbard entered into a plea agreement whereby he pleaded

guilty to the drug possession charge, and the trafficking charge was dismissed. During

the plea hearing, the court explained that there was a mandatory drug fine of $7,500, but

it would “consider indigency” if defense counsel “files the proper paperwork at the time

of sentencing.” The trial court then referred the case for a presentence investigation

report. No affidavit of indigency was filed prior to sentencing.

       {¶4} On August 13, 2012, the trial court held a sentencing hearing, during which

time the court imposed a four-year prison term to be served concurrently with two other
pending cases. The trial court also imposed three years of mandatory postrelease control,

suspended his driver’s license for five years, and waived court costs. Finally, the court

imposed a mandatory drug fine of $7,500. There is no evidence on the record that

defense counsel filed an affidavit of indigency or the “proper paperwork” referenced by

the trial court at the plea hearing.

                                       Assignment of Error

       Mylan Hubbard was denied effective assistance of counsel in violation of
       the sixth and fourteenth amendments to the United States Constitution and
       Article I, Section 10 of the Ohio Constitution when his attorney failed to
       file an indigency affidavit to waive the mandatory fine.

                                        Law and Analysis

                              Ineffective Assistance of Counsel

       {¶5} Hubbard contends that trial counsel rendered ineffective assistance of

counsel when he failed to file an indigency affidavit for the purpose of waiving the

mandatory drug fine of $7,500. He claims that if counsel had filed the affidavit, there is

a reasonable probability that the trial court would have found Hubbard indigent and

waived the mandatory fine. Hubbard argues that his sentence, therefore, must be vacated

in its entirety and the case be remanded for a new sentence hearing.

       {¶6} As the state concedes, and this court finds, to the extent that Hubbard’s

defense counsel failed to file an affidavit of indigency when faced with the imposition of

a mandatory drug fine, Hubbard was denied effective assistance of counsel. In order to

prevail on the ineffective assistance of counsel claim, a defendant must demonstrate that

counsel was deficient in some aspect of his representation and this deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). A defendant, therefore, must show that counsel made errors “so

serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the

Sixth Amendment.”          Id. at 687.   Additionally, the defendant must demonstrate that

counsel’s errors “were so serious as to deprive the defendant of a fair trial, a trial whose

result is reliable.” Id.

       {¶7} R.C. 2925.11(A) provides that “no person shall knowingly obtain, possess, or

use a controlled substance or a controlled substance analog.” This offense, to which

Hubbard pleaded guilty, carries a mandatory fine:

       In addition to any prison term * * * and in addition to any other sanction
       that is imposed for the offense under this section, the court that sentences an
       offender who is convicted of or pleads guilty to a violation of division (A)
       of this section shall do * * * the following * * *:

       (1)(a) If the violation is a felony of the first, second, or third degree, the
       court shall impose upon the offender the mandatory fine specified for the
       offense under division (B)(1) of section 2929.18 of the Revised Code
       unless, as specified in that division, the court determines that the offender is
       indigent.

R.C. 2925.11(E)(1)(a).

       {¶8} R.C. 2929.18(B)(1) prescribes the manner in which the court shall proceed

in waiving the mandatory fine for an indigent offender:

       * * * 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, in order for an offender to avoid the imposition of a fine at the time of

sentencing, two things must occur: (1) the defendant must submit an affidavit of

indigency to the court prior to sentencing; and (2) the court must make a determination

that the offender is, in fact, indigent. Id.; State v. Gilmer, 6th Dist. No. OT-01-015,

2002-Ohio-2045, ¶ 5.

      {¶9} Ohio courts have held that the failure to file an affidavit of indigency for

purposes of waiving a mandatory fine constitutes ineffective assistance of counsel where

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. Gilmer at ¶ 5;

State v. Huffman, 8th Dist. No. 63938, 1995 Ohio App. LEXIS 233, *13 (Jan. 26, 1995),

citing State v. Powell, 78 Ohio App.3d 784, 605 N.E.2d 1337 (3d Dist.1992); State v.

Parsley, 10th Dist. No. 09AP-612, 2010-Ohio-1689.

      {¶10} In this case, there is a reasonable probability that the trial court would have

found Hubbard to be indigent and unable to pay the mandatory drug fine of $7,500. The

record reveals the following: Hubbard has an extensive criminal history, beginning as a

juvenile through the present time; he has been in and out of jail throughout the years; he

has failed to financially support his children; and the presentence investigation report

does not indicate evidence of employment. Moreover, at his arraignment, the court, in

fact, found Hubbard to be indigent and it appointed counsel.
       {¶11} At the plea hearing, the trial court stated that it would consider indigency for

purposes of waiving the fine, if counsel files the “proper paperwork.”           During his

sentencing, the trial court waived court costs.        The court, however, imposed the

mandatory fine, as it was statutorily required to do. There was no evidence before the

trial court that the affidavit was filed. It is likely that had defense counsel filed an

affidavit of indigency on Hubbard’s behalf, the trial court would have waived the fine.

       {¶12} Accordingly, to the extent Hubbard’s trial counsel failed to file an affidavit

of indigency when Hubbard was faced with the imposition of the mandatory drug fine of

$7,500, we find that Hubbard was denied effective assistance of counsel.

                                        Sentencing

       {¶13} Hubbard contends that his entire sentence should be vacated in its entirety

and the case be remanded for a new sentencing hearing. We disagree.

       {¶14} In certifying a conflict among the districts, the Ohio Supreme Court recently

considered whether a trial court’s failure to impose the statutorily mandated fine required

by R.C. 2925.11(E)(1)(a) and 2929.18(B)(1), when no affidavit of indigency has been

filed with the court prior to the trial court’s journal entry of sentencing, renders void the

part of the sentence waiving the fine.          State v. Moore, 135 Ohio St.3d 151,

2012-Ohio-5479, ___ N.E.2d ___. The Supreme Court affirmed this court in finding that

the resentencing of the offender must be limited to the imposition of the mandatory fine.

Id.
       {¶15} Relying on the principles of the illegal-sentence doctrine, the Supreme Court

has determined that when a judge fails to impose statutorily mandated postrelease control

as part of a defendant’s sentence, only that part of the sentence pertaining to postrelease

control is void:

       “A motion to correct an illegal sentence ‘presupposes a valid conviction and

       may not, therefore, be used to challenge alleged errors in proceedings that

       occur prior to the imposition of sentence.’” Edwards v. State (1996), 112

       Nev. 704, 708, 918 P.2d 321, quoting Allen v. United States (D.C.1985),

       495 A.2d 1145, 1149. It is, however, an appropriate vehicle for raising the

       claim that a sentence is facially illegal at any time. Id. The scope of relief

       based on a rule * * * is likewise constrained to the narrow function of

       correcting only the illegal sentence. Id. at ¶ 25.

Moore at ¶ 15, quoting State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d

332, ¶ 25-26.

       {¶16} The court further applied this analysis to a trial court’s failure to properly

impose a mandatory driver’s license suspension.         In determining that a mandatory

driver’s license suspension was analogous to postrelease control, the court concluded that

because a suspension is a statutorily mandated term, the sentence is void, in part, when

the trial court does not include that term in sentencing. State v. Harris, 132 Ohio St.3d

318, 2012-Ohio-1908, 972 N.E.2d 509, ¶ 16, citing Fischer. Resentencing, therefore, is

limited to the imposition of the mandatory driver’s license suspension. Id. at ¶ 18.
       {¶17} Likewise, the Supreme Court in Moore extended this analysis to the trial

court’s failure to impose the statutorily mandated drug fine.         It determined that the

reasoning applied in Fischer and Harris applies to a trial court’s failure to impose the

mandatory fine required by R.C. 2925.11(E)(1)(a) and 2929.18(B)(1). Moore, 135 Ohio

St.3d 151, 2012-Ohio-5479, ___ N.E.2d ___, ¶ 16. The court, therefore, held that when

an affidavit of indigency is not filed with the court prior to the filing of the trial court’s

entry of sentencing, that part of the sentencing pertaining to the mandatory fine is void,

and resentencing is limited to the imposition of the fine. Id. at ¶ 17.

       {¶18} Similarly, in this case, we find that only that portion of the sentence

pertaining to the mandatory drug fine is void. The ineffective assistance of counsel

claim pertains only to the failure to file an affidavit of indigency for purposes of waiving

the mandatory fine. There is no argument or evidence that this claim impacted any other

aspect of Hubbard’s sentence.        Because we determined that Hubbard was denied

effective assistance of counsel when trial counsel failed to file an affidavit of indigency in

facing the imposition of the mandatory drug fine of $7,500, we find that only that part of

the sentence imposing the fine is void and must be set aside.

       {¶19} Accordingly, Hubbard’s assignment of error is sustained. We remand for

resentencing, in part, consistent with R.C. 2925.11(E)(1)(a) and 2929.18(B)(1) and this

opinion.

       It is ordered that appellant and appellee share the 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.

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

the Rules of Appellate Procedure.


______________________________________________
TIM McCORMACK, JUDGE

KATHLEEN ANN KEOUGH, P.J., and
EILEEN T. GALLAGHER, J., CONCUR
