Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2011 CR 0331.
Victor V. Vigluicci, Portage County Prosecutor, and Pamela J. Holder, Assistant Prosecutor, (For Plaintiff-Appellee).
Brian A. Smith, (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 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 attorneys 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, 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 ...