[Cite as State v. Gibson, 2015-Ohio-3613.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                    Court of Appeals No. L-14-1162

        Appellee                                 Trial Court No. CR0201202846

v.

Darnell Gibson                                   DECISION AND JUDGMENT

        Appellant                                Decided: August 31, 2015

                                             *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        Lawrence A. Gold, for appellant.

                                             *****

        PIETRYKOWSKI, J.

        {¶ 1} Defendant-appellant, Darnell Gibson, appeals the June 27, 2014 judgment of

the Lucas County Court of Common Pleas which, following pleas of guilty pursuant to

North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), sentenced

him to a total of 17 years in prison and ordered him to pay various costs.
       {¶ 2} On November 5, 2012, appellant was indicted on two counts of felonious

assault, R.C. 2903.11(A)(2), second degree felonies, with gun specifications. The counts

stemmed from the October 26, 2012 shooting of two individuals in Toledo, Lucas

County, Ohio. Appellant entered not guilty pleas to the charges. Following the denial of

his motion to suppress, appellant withdrew his not guilty pleas and entered Alford pleas

to the two felonious assault counts in the indictment. Pursuant to an agreement with the

state, appellant also entered a plea to the one-year gun specification in Count 1; the three-

year gun specification in Count 2 was dismissed.

       {¶ 3} On June 27, 2014, appellant was sentenced to consecutive sentences totaling

17 years and ordered to pay the costs of supervision, confinement, assigned counsel,

prosecution, and the costs assessed under R.C. 9.92(C), 2929.18 and 2951.021. This

appeal followed.

       {¶ 4} Appellant raises two assignments of error for our consideration:

               I. The trial court committed plain error to the prejudice of appellant

       at sentencing by imposing financial sanctions without proper notification

       and consideration of appellant’s ability to pay.

               II. Appellant received ineffective assistance of counsel in violation

       of his rights under the Sixth and Fourteenth Amendments to the United

       States Constitution and Article I, § 10 of the Constitution of the State of

       Ohio.




2.
       {¶ 5} In his first assignment of error, appellant argues that the trial court

erroneously imposed the costs of confinement and assigned counsel without first

determining his ability to pay.

       {¶ 6} R.C. 2947.23(A)(1) mandates that, “[i]n all criminal cases * * * the judge or

magistrate shall include in the sentence the costs of prosecution.” In addition, the

imposition of such costs is not conditioned on a defendant’s ability to pay. State v.

Baughman, 6th Dist. Lucas No. L-11-1045, 2012-Ohio-5327, ¶ 41. Likewise, a court is

not required to determine the defendant’s ability to pay prior to imposing the costs of

supervision while on a community control sanction. Id. at ¶ 42. A sentencing court may

waive these costs for an indigent defendant but, to preserve the issue, a motion for a

waiver of costs must be made at the time of sentencing. State v. Threatt, 108 Ohio St.3d

277, 2006-Ohio-905, 843 N.E.2d 164, paragraph two of syllabus. In the present case,

there is nothing in the record to suggest that appellant moved to waive costs at his

sentencing hearing.

       {¶ 7} Prior to the imposition of costs of assigned counsel and confinement, the

trial court must first find that the defendant has or will have the ability to pay. Baughman

at ¶ 43. As stated in Baughman, the court is not required to conduct a hearing on a

defendant’s ability to pay; rather, the record must contain some evidence that the court

considered the defendant’s financial ability to pay. Id., citing State v. Maloy, 6th Dist.

Lucas No. L-10-1350, 2011-Ohio-6919, ¶ 13.




3.
      {¶ 8} In the present case, the trial court’s sentencing judgment entry contains the

following language regarding costs:

             Defendant found to have, or reasonably may be expected to have, the

      means to pay all or part of the applicable costs of supervision, confinement,

      assigned counsel, and prosecution as authorized by law. Defendant ordered

      to reimburse the State of Ohio and Lucas County for such costs. This order

      of reimbursement is a judgment enforceable pursuant to law by the parties

      in whose favor it is entered. Defendant further ordered to pay the cost

      assessed pursuant to R.C. 9.92(C), 2929.18 and 2951.021. Notification

      pursuant to R.C. 2947.23 given.

      {¶ 9} At the June 23, 2014 sentencing hearing, the trial court further stated:

“Defendant is ordered to pay all cost of prosecution. You are further ordered to pay court

appointed counsel fees and, any fees permitted pursuant to Revised Code 2929.18(A)(4),

the Court, finding the Defendant has the ability to pay these amounts.”

      {¶ 10} Appellant argues that the trial court erred in imposing these sanctions

where he was sentenced to 17 years of incarceration and had mental health issues.

Arguing that the costs of confinement and appointed counsel were properly imposed, the

state cites multiple cases from this court where we concluded that the record supported

the defendant’s ability to pay. See State v. Flowers, 6th Dist. Lucas No. L-14-1141,

2015-Ohio-908 (defendant 32 at the time of sentencing, had his GED, and was employed




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up until arrest); State v. Winfield, 6th Dist. Lucas No. L-13-1251, 2014-Ohio-3968

(defendant was 32 years old, completed 11th grade, had a remodeling business, and had

$2,000 to $3,000 saved); State v. Donaldson, 6th Dist. Lucas No. L-11-1264, 2012-Ohio-

6064 (although 41 and a history of substance abuse, defendant had a job history).

       {¶ 11} In the present case, the record reveals that at the time of sentencing

appellant was 42 years old and had received his GED while incarcerated. Appellant was

married with no dependents and the record reveals no health or medical issues. However,

the record showed that appellant receives social security disability benefits likely due to

his mental health diagnoses. The record reveals no work history and a lengthy multi-state

criminal record.

       {¶ 12} Based on the foregoing and unlike the cases cites by the state, we find that

the record does not support the imposition of the costs of prosecution and appointed

counsel. See State v. Hart, 6th Dist. Lucas No. L-03-1073, 2004-Ohio-5511, ¶ 35

(though evidence in the record of social security benefits for a mental disability, the court

failed to question the defendant concerning the income). Accordingly, we find that

appellant’s first assignment of error is well-taken.

       {¶ 13} In his second assignment of error, appellant argues his trial counsel was

ineffective for failing to object to the imposition of financial sanctions. In order to

demonstrate ineffective assistance of counsel, appellant must satisfy the two-prong test

set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674




5.
(1984). Appellant must show counsel’s performance fell below an objective standard of

reasonableness, and a reasonable probability exists that, but for counsel’s error, the result

of the proceedings would have been different. Id. at 687-688.

       {¶ 14} Regarding the imposition of the mandatory costs, we note that those costs

have been held to apply even to indigent defendants. State v. White, 103 Ohio St.3d 580,

2004-Ohio-5989, 817 N.E.2d 393, ¶ 8. Nevertheless, a trial court, in its discretion, may

waive the mandatory costs. Id.; R.C. 9.92(C)(1). Appellant has failed to demonstrate

that a reasonable probability exists that, had he so moved, the trial court would have

waived payment of the costs. Thus, we cannot find that appellant was denied the effective

assistance of counsel for failing to object to the imposition of these mandatory costs. See

Maloy, 6th Dist. Lucas No. L-10-1350, 2011-Ohio-6919, at ¶ 12.

       {¶ 15} As to the imposition of discretionary costs, as set forth above, we

determined that the record does not support their imposition. However, appellant has not

shown that a reasonable probability exists that the court would not have imposed those

costs had counsel objected. Whether to impose such costs is in the court’s discretion.

Accordingly, appellant was not denied the effective assistance of counsel and his second

assignment of error is not well-taken.

       {¶ 16} On consideration whereof, we find that the judgment of the Lucas County

Court of Common Pleas is affirmed, in part, and reversed, in part. The matter is




6.
remanded to the trial court for the determination of appellant’s ability to pay the costs of

confinement and appointed counsel. Pursuant to App.R. 24, appellee is ordered to pay

the costs of this appeal.


                                                                 Judgment affirmed, in part,
                                                                      and reversed, in part.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Mark L. Pietrykowski, J.                        _______________________________
                                                            JUDGE
Thomas J. Osowik, J.
                                                _______________________________
Stephen A. Yarbrough, P.J.                                  JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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