[Cite as State v. Davis, 2020-Ohio-1353.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :       JUDGES:
                                             :       Hon. Patricia A. Delaney, P.J.
        Plaintiff - Appellee                 :       Hon. John W. Wise, J.
                                             :       Hon. Craig R. Baldwin, J.
-vs-                                         :
                                             :
BENJAMIN A. DAVIS                            :       Case No. 2017 CA 00055
                                             :
        Defendant - Appellant                :       OPINION



CHARACTER OF PROCEEDING:                             Appeal from the Licking County
                                                     Court of Common Pleas, Case No.
                                                     17-CR-00051


JUDGMENT:                                            Affirmed


DATE OF JUDGMENT:                                    April 6, 2020



APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

BILL HAYES                                           JAMES A. ANZELMO
Prosecuting Attorney                                 Anzelmo Law
                                                     446 Howland Drive
By: CLIFFORD J. MURPHY                               Gahanna, Ohio 43230
Assistant Prosecuting Attorney
20 North Second Street
4th Floor
Newark, Ohio 43055
Licking County, Case No. 2017 CA 00055                                                   2


Baldwin, J.

       {¶1}   The Supreme Court of Ohio has remanded this case so this court "may

conduct the ineffective-assistance-of-counsel analysis set forth in State v. Bradley, 42

Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989)."        State v. Davis, 2020-Ohio-309, ¶ 1

(Davis II).

                       STATEMENT OF FACTS AND THE CASE

       {¶2}   In State v. Davis, 5th Dist. Licking No. 17-CA-55, 2017-Ohio-9445, rev'd

and remanded, 2020-Ohio-309, (Davis I) Benjamin Davis claimed he received ineffective

assistance of counsel because his trial counsel did not request a waiver of court costs as

permitted by R.C. 2947.32. We found "no merit in Appellant's allegation that he received

ineffective assistance of counsel" because R.C. 2947.23(C) as amended granted

"appellant the ability to seek waiver of costs at any time, including after sentencing," and

therefore, appellant was not prejudiced by the failure of his counsel to request a waiver

at sentencing. Id. at 27. Davis filed a motion requesting that we certify a conflict with the

Eighth District Court of Appeals decision in State Of Ohio Plaintiff-Appellee v. Carlton B.

Springer Defendant-Appellant, Cuyahoga No. 104649, 2017-Ohio-8861 on that issue.

We granted the motion and the Supreme Court of Ohio accepted the case. That Court

issued a decision and answered the certified-conflict question

       neither in the affirmative nor in the negative. Instead, we conclude that when

       trial counsel fails to request that the trial court waive court costs on behalf

       of a defendant who has previously been found to be indigent, a

       determination of prejudice for purposes of an ineffective-assistance-of-

       counsel analysis depends upon whether the facts and circumstances
Licking County, Case No. 2017 CA 00055                                                                       3


         presented by the defendant establish that there is a reasonable probability

         that the trial court would have granted the request to waive costs had one

         been made.

Davis II, ¶ 16

         {¶3}     The matter was remanded to this court to conduct the ineffective-

assistance-of-counsel analysis set forth in Bradley, supra, in accordance with the opinion.

                                                   ANALYSIS

         {¶4}     Davis was convicted of Assault on a Peace Officer, R.C. 2903.13(A), (C)(5)

during a jury trial conducted May 17, 2017 and he was sentenced to fourteen months in

prison plus time remaining on post release control.1 At the sentencing hearing, neither

Davis nor his counsel sought a waiver of court costs. Davis filed an appeal and submitted

several assignments of error, only one of which is relevant to this case: “Davis received

ineffective assistance of counsel, in violation of the Sixth Amendment to the United States

Constitution and Section 10, Article I of the Ohio Constitution *** when trial counsel failed

to object to the trial court ordering Davis to pay court costs.”

         {¶5}     In Davis I appellant argued the rationale used by the Eighth District Court

of Appeals in State v. Springer, 8th Dist. Cuyahoga No. 104649, 2017-Ohio-8861 was

applicable. In Springer the trial court concluded counsel was ineffective for failing to ask

the trial court to waive court costs, the defendant previously having been found indigent.

We declined to adopt the rationale in Springer and concluded that Davis did not receive

ineffective assistance of counsel because defendants have the opportunity to request



1 For purposes of this proceeding, the facts underlying the charge against Davis are not relevant and therefore not
included.
Licking County, Case No. 2017 CA 00055                                              4


waiver of costs at any time and failure to do so at trial is no longer res judicata. (R.C.

2947.23(C)). The Supreme Court of Ohio found that both the Eighth District's and our

analysis of the alleged prejudicial impact of trial counsel's action was incomplete and that

a complete review of the record and application of the test described in Bradley, supra

was required. Davis II, at ¶1.

       {¶6}   We have reviewed the record in this matter and applied the analysis

required by Bradley, and we conclude that appellant has not demonstrated that he

satisfies either branch of the analysis required by that case.

       {¶7}   The Supreme Court of Ohio has directed that "when an indigent defendant

makes an ineffective-assistance-of-counsel claim based upon counsel's failure to request

a waiver of court costs, a reviewing court must apply the test in State v. Bradley, 42 Ohio

St.3d 136, 141-142, 538 N.E.2d 373 (1989)” and that:"[i]f a court analyzes the prejudice

prong, then it must consider the facts and circumstances of the case objectively to

determine whether the defendant established the necessary prejudice sufficient to

support that claim—i.e., but for counsel's deficient performance, there exists a reasonable

probability that the result of the proceeding would have been different." Davis II, at ¶1.

(Davis II)

       {¶8}   The court in Bradley, supra instructed that:

              When considering an allegation of ineffective assistance of counsel,

       a two-step process is usually employed. First, there must be a determination

       as to whether there has been a substantial violation of any of defense

       counsel's essential duties to his client. Next, and analytically separate from

       the question of whether the defendant's Sixth Amendment rights were
Licking County, Case No. 2017 CA 00055                                                 5


       violated, there must be a determination as to whether the defense was

       prejudiced by *** counsel's ineffectiveness.” Id, at p.141–142, (Citations

       omitted.)

       {¶9}   In Davis II, the Supreme Court of Ohio refined the analysis of alleged

prejudicial impact by noting that "[a]n appellate court's reliance on the fact that a

defendant may move for a waiver of costs at a later time under R.C. 2947.23(C) in its

prejudice analysis is improper" and that "a determination of indigency alone does not rise

to the level of creating a reasonable probability that the trial court would have waived

costs had defense counsel moved the court to do so." Davis II, supra, p.14-15. Instead,

a reviewing court must review all the circumstances that the defendant sets forth in

attempting to demonstrate prejudice and determine whether there is a reasonable

probability that the trial court would have granted a motion to waive costs had one been

made. Id.

       {¶10} A waiver of court costs is within the discretion of the trial court. Revised

Code Section 2947.23 requires the trial court to "include in the sentence the costs of

prosecution, including any costs under section 2947.231 of the Revised Code, and render

a judgment against the defendant for such costs." The trial court retains jurisdiction to

"waive, suspend, or modify the payment of the costs, at the time of sentencing or at any

time thereafter." R.C. 2947.23(C). The trial court's decision regarding whether to waive

costs is, therefore, "reviewed under an abuse-of-discretion standard. State v. Braden,

2019-Ohio-4204 (Ohio). While no motion to waive costs nor any decision regarding waiver

is reflected in the record, we find that the identification of the standard of review is needed

to complete our analysis.
Licking County, Case No. 2017 CA 00055                                             6


                                  ESSENTIAL DUTIES

      {¶11} We first review the record to determine whether trial counsel violated his

essential duties to Davis by failing to request a waiver of court costs under R.C. 2947.23.

Appellant does not address this part of the Bradley analysis in his brief, and instead

argues that a prior finding that a defendant was indigent demonstrates a reasonable

probability that the trial court would have waived costs had counsel made the request,

thus focusing on the second step of the analysis. Appellee likewise focuses on the second

step of the Bradley analysis. We find it imperative to consider the first step to render a

complete analysis as "both deficient performance and prejudice are required to justify

reversal based on ineffective assistance of counsel." State v. Dean, 146 Ohio St.3d 106,

2015-Ohio-4347, 54 N.E.3d 80, ¶ 259 (2015). (Citations omitted).

      {¶12} We are guided by the United States Supreme Court ruling in Strickland v.

Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 2065, 80 L.Ed.2d 674 (1984) describing

the deference to be used in such an analysis:

             A fair assessment of attorney performance requires that every effort

      be made to eliminate the distorting effects of hindsight, to reconstruct the

      circumstances of counsel's challenged conduct, and to evaluate the

      conduct from counsel's perspective at the time. Because of the difficulties

      inherent in making the evaluation, a court must indulge a strong

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

      reasonable professional assistance; that is, the defendant must overcome

      the presumption that, under the circumstances, the challenged action

      “might be considered sound trial strategy.” See Michel v. Louisiana, supra,
Licking County, Case No. 2017 CA 00055                                                  7


       350 U.S., at 101, 76 S.Ct., at 164. There are countless ways to provide

       effective assistance in any given case. Even the best criminal defense

       attorneys would not defend a particular client in the same way.

       {¶13} The flexibility available to trial counsel after the adoption of R.C. 2947.23(C)

places the decision regarding whether to request a waiver of costs into the category of

trial strategy as described in Strickland, supra. Prior to its adoption, a failure to request of

waiver of costs at sentencing resulted in a final judgment and a prohibition of any further

consideration of that issue. State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-905, 843

N.E.2d 164, ¶ 23. Res judicata no longer bars appellant from requesting a waiver at any

time after sentencing, so “[t]rial counsel may have decided as a matter of strategy not to

seek a waiver or modification of court costs until some later time” and “[s]trategic timing

may now play a role in trial counsel's decision.” State v. Farnese, 4th Dist. Washington

No. 15CA11, 2015-Ohio-3533, ¶ 16; State v. Purifoy, 2nd Dist. Montgomery No. 28042,

2019-Ohio-2942, ¶ 28. We find that the timing of a motion seeking waiver of payment is

a matter of trial strategy. State v. Southam, 6th Dist. Fulton No. F-18-004, 2018-Ohio-

5288, ¶ 67, quoting State v. Pultz, 6th Dist. Wood No. WD-14-083, 2016-Ohio-329, ¶ 61.

And a debatable trial strategy does not equal ineffective assistance of counsel. Southam,

supra at ¶ 68, quoting State v. Phillips, 74 Ohio St.3d 72, 85, 656 N.E.2d 643 (1995).

State v. Moore, 6th Dist. Erie No. E-19-009, 2019-Ohio-4609, ¶ 14. Accord State v. Boyd,

5th Dist. Richland No. 12CA23, 2013-Ohio-1333, ¶ 26. (“Trial strategy and even

debatable trial tactics do not establish ineffective assistance of counsel,” quoting State v.

Conway, 109 Ohio St.3d 412, 2006–Ohio–2815, ¶ 101) and State v. McCall, 5th Dist.
Licking County, Case No. 2017 CA 00055                                               8


Coshocton No. 2017CA0002, 2017-Ohio-7860, ¶ 43 (“Tactical or strategic trial decisions,

including timing of a motion, do not generally constitute ineffective assistance”)

       {¶14} We hold that trial counsel did not violate an essential duty to Davis by not

filing a motion to waive costs at the sentencing hearing and that, therefore, he did not

receive ineffective assistance of counsel in this case.

       {¶15} Even if we had concluded that trial counsel's failure to file a motion to waive

costs was a violation of his duty to Davis, our application of the second branch of the

Bradley analysis would lead us to the same conclusion because the record lacks evidence

of a reasonable probability of a different outcome.

                             REASONABLE PROBABILITY

       {¶16} Davis relies on the trial court's findings that he was indigent for appointment

of trial and appellant counsel to support his argument that there was a reasonable

probability that the trial court would have waived costs. That argument was rejected in

Davis II, supra.

       {¶17} The trial court did find appellant indigent and appoint counsel for the trial

and appellate components of this case. However, the holding of Davis, supra has made

it clear that "[a] determination of indigency alone does not rise to the level of creating a

reasonable probability that the trial court would have waived costs had defense counsel

moved the court to do so" and, instead we must determine "whether the facts and

circumstances presented by the defendant establish that there is a reasonable probability

that the trial court would have granted the request to waive costs had one been made.”

Id.at ¶ 15-16.
Licking County, Case No. 2017 CA 00055                                             9


      {¶18} Davis has not presented any further facts or circumstances to support a

finding that there was a reasonable probability that trial court would have granted the

request to waive costs. We have reviewed the record before us and found nothing that

would support the conclusion that there was a reasonable probability that the outcome

would have changed had a motion been filed. We considered, as part of this analysis,

whether the trial court’s denial of such a motion would have been an abuse of discretion

and find nothing within the facts and circumstances of this case that would lead us to find

that a failure to grant the motion would constitute such an abuse. For those reasons, we

are compelled to conclude that Davis has failed to demonstrate a reasonable probability

that the outcome would have changed and that, therefore, he did not suffer prejudice as

a result of counsel not filing a motion to waive costs. State v. Dean, 146 Ohio St.3d 106,

2015-Ohio-4347, 54 N.E.3d 80, ¶ 233.
Licking County, Case No. 2017 CA 00055                                             10


      {¶19} We have applied the analysis in Bradley as mandated by the remand order

of the Supreme Court of Ohio and determined that Davis did not receive ineffective

assistance of counsel. His counsel did not violate an essential duty and Davis suffered

no prejudicial affect as a result of the omission. The decision of the Licking County Court

of Common Pleas is affirmed.

By: Baldwin, J.

Delaney, P.J. and

John Wise, J. concur.
