[Cite as State v. Greer,
2016-Ohio-8283.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27998
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
GEORGE GREER COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 2012 01 0008
DECISION AND JOURNAL ENTRY
Dated: December 21, 2016
WHITMORE, Presiding Judge.
{¶1} Appellant, George Greer, appeals his sentence from the Summit County Court of
Common Pleas. This Court affirms.
I.
{¶2} Mr. Greer pleaded guilty to possession of marijuana and failure to control after
driving his vehicle into a telephone pole. A jury also found him guilty of two counts of
operating under the influence of drugs or alcohol (“OVI”) with prior conviction specifications
and one count of driving under suspension. Following merger, the trial court sentenced Mr.
Greer to five years on one of the OVI counts and five years on one of the prior-conviction
specifications for a total of ten years imprisonment. It also ordered him to pay $1,350 in fines.
This Court affirmed his convictions on appeal. State v. Greer, 9th Dist. Summit No. 26470,
2013-Ohio-4267. Subsequently, the Ohio Supreme Court held in State v. South,
144 Ohio St.3d
295,
2015-Ohio-3930, that the maximum sentence that can be imposed for an OVI offense, that
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is a felony of the third degree, is 36 months. The trial court then scheduled Mr. Greer for
resentencing. Following a hearing, the trial court resentenced Mr. Greer to 36 months for the
OVI offense and five years on the specification, for a total of eight years imprisonment. Mr.
Greer has appealed, assigning three errors.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED WHEN IT FAILED TO COMPLY WITH R.C. §
2901.04 AND SENTENCED [MR.] GREER TO THE MAXIMUM PRISON
TERM OF THREE YEARS FOR OPERATING UNDER THE INFLUENCE OF
ALCOHOL OR DRUGS AND A MANDATORY FIVE YEAR PRISON
SENTENCE ON THE PRIOR CONVICTION SPECIFICATION FOR A TOTAL
OF EIGHT YEARS IN PRISON.
{¶3} Mr. Greer argues that the trial court was not permitted to sentence him to five
years on the prior-conviction specification because R.C. 2929.14(A)(3) indicates that the
maximum sentence that can be imposed for an OVI offense that is a felony of the third degree is
36 months. According to Mr. Greer, to the extent that R.C. 2941.1413 conflicts with R.C.
2929.14(A)(3), R.C. 2929.14 takes precedent because it was amended more recently and because
such conflicts must be construed liberally in favor of an accused. See R.C. 2901.04(A).
{¶4} In reviewing a felony sentence, “[t]he appellate court’s standard for review is not
whether the sentencing court abused its discretion.” R.C. 2953.08(G)(2). “[A]n appellate court
may vacate or modify a felony sentence on appeal only if it determines by clear and convincing
evidence” that: (1) “the record does not support the trial court’s findings under relevant
statutes,” or (2) “the sentence is otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d
516,
2016-Ohio-1002, ¶ 1. Clear and convincing evidence is that “which will produce in the
mind of the trier of facts a firm belief or conviction as to the facts sought to be established.”
Cross v. Ledford,
161 Ohio St. 469 (1954), paragraph three of the syllabus.
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{¶5} Mr. Greer’s argument is based on a misunderstanding about the relationship of the
sentencing statutes. The starting point for both Mr. Greer’s sentence on the specification and his
sentence for the underlying felony OVI offense is R.C. 2929.13. See R.C. 4511.19(G)(1)(e).
R.C. 2929.13(A) provides that, “[e]xcept as provided in division (E), (F), or (G) of this section *
…, a court that imposes a sentence upon an offender for a felony may impose any sanction or
combination of sanctions on the offender that are provided in sections 2929.14 to 2929.18 of the
Revised Code.” Division (G), which is one of the exceptions mentioned in R.C. 2929.13(A),
indicates that, “[i]f the offender is being sentenced for a third degree felony OVI offense, …
the court shall impose upon the offender a mandatory prison term of one, two, three, four, or five
years if the offender also is convicted of or also pleads guilty to a specification of the type
described in section 2941.1413 of the Revised Code.” R.C. 2919.13(G)(2); see also R.C.
2929.14(B)(4).
{¶6} In addition to the mandatory prison term required by R.C. 2929.13(G)(2) for the
specification, R.C. 2929.13(A) allows the sentencing court to impose a sanction under R.C.
2929.14. R.C. 2929.14(A)(3)(b) provides that the sentencing court may impose a prison
sentence of “nine, twelve, eighteen, twenty-four, thirty, or thirty-six months” for the underlying
felony OVI offense. South, 144 Ohio St.3d 295,
2015-Ohio-3930, at ¶ 18. Accordingly, because
R.C. 2929.13(A) allows a sentencing court to apply both R.C. 2941.1413 and R.C. 2929.14, there
is no conflict between those sections. The Revised Code authorizes separate sanctions for a
prior-conviction specification and the underlying OVI offense. Id. at ¶ 1.
{¶7} Mr. Greer also argues that the trial court’s imposition of the maximum sentence
cannot be supported by the record, noting that he did not injure anyone during his offense except
himself. Mr. Greer notes that the eight-year total sentence he received is similar to the sentence
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someone would receive for a violent crime such as manslaughter or rape. According to Mr.
Greer, a total sentence of four years would have accomplished the purposes of felony sentencing
reflected in R.C. 2929.11 without unnecessarily burdening the State.
{¶8} The Supreme Court of Ohio has held that “[t]rial courts have full discretion to
impose a prison sentence within the statutory range and are no longer required to make findings
or give their reasons for imposing maximum … sentences.” State v. Foster, 109 Ohio St.3d 1,
2006-Ohio-856, paragraph seven of the syllabus. Even if “the trial court does not put on the
record its consideration of [Sections] 2929.11 and 2929.12 [of the Ohio Revised Code], it is
presumed that the trial court gave proper consideration to those statutes.” (Alterations sic.) State
v. Steidl, 9th Dist. Medina No. 10CA0025-M,
2011-Ohio-2320, ¶ 13, quoting State v. Kalish,
120 Ohio St.3d 23,
2008-Ohio-4912, ¶ 18 fn. 4. “Unless the record shows that the court failed to
consider the factors, or that the sentence is ‘strikingly inconsistent’ with the factors, the court is
presumed to have considered the statutory factors if the sentence is within the statutory range.”
State v. Fernandez, 9th Dist. Medina No. 13CA0054-M,
2014-Ohio-3651, ¶ 8, quoting State v.
Boysel, 2d Dist. Clark No. 2013-CA-78,
2014-Ohio-1272, ¶ 13.
{¶9} At the resentencing hearing, the trial court noted the extensive number of
convictions Mr. Greer has had for driving under the influence, which a probation officer
indicated in Mr. Greer’s presentence report is 20. The court found Mr. Greer’s professions of
remorse and rehabilitation to be insincere, noting that he had told the court when entering his
guilty plea that it was “only a DUI.” The court also noted that the place Mr. Greer had driven the
night of the offense was within walking distance of his home, but that he had exhibited “a total
disregard of the law, [and] of the safety of everyone” in choosing to drive instead of walk. Upon
review, it determined that Mr. Greer had deserved the maximum sentence at the time of the
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original sentencing and that he still deserved the maximum sentence. In its sentencing entry, the
court wrote that “not to sentence [Mr. Greer] to a maximum period of incarceration would not
adequately protect society from future crimes by [him] and would demean the seriousness of the
offense[.]”
{¶10} Upon review of the record, we conclude that the trial court was within its
authority when it imposed the maximum sentence on Mr. Greer. We also conclude that the
court’s findings are supported by the record. We, therefore, conclude that it did not err when it
imposed an eight-year prison sentence on Mr. Greer as the sentence is “neither unwarranted nor
clearly and convincingly contrary to law.” State v. Braun, 9th Dist. Medina No. 15CA0084-M,
2016-Ohio-5189, ¶ 9. Mr. Greer’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT IMPOSED
MANDATORY FINES UPON [MR.] GREER, WHO THE TRIAL COURT
KNEW WAS INDIGENT AT THE TIME OF SENTENCING.
{¶11} Mr. Greer next argues that the trial court incorrectly imposed a mandatory fine on
him under R.C. 2929.18 because he was indigent at the time of sentencing. R.C. 2929.18(B)(1)
provides that, for certain offenses, “the sentencing court shall impose upon the offender a
mandatory fine ….” If the offender, however, “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 …, the
court shall not impose the mandatory fine[.]” Id. Mr. Greer argues that the trial court should not
have imposed a mandatory fine on him because he submitted an affidavit of indigency in January
2012 and again in June 2015, only a few months before the resentencing hearing. He argues that
the trial court’s failure to properly follow the sentencing statutes constitutes plain error.
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{¶12} The Ohio Supreme Court has explained that R.C. 2929.18(B)(1):
clearly requires that a sentencing court shall impose a mandatory fine upon an
offender unless (1) the 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
(2) the court determines that the offender is in fact an indigent person and is
unable to pay the mandatory fine.
State v. Gipson, 80 Ohio St.3d 626, 631 (1998). The affidavit of indigency that Mr. Greer
submitted in January 2012 indicated that he was financially unable to retain private counsel
without substantial hardship to him or his family. The affidavit of indigency that is in the record
from June 2015 is attached to a motion that Mr. Greer submitted in one of his prior appeals in
this action, a copy of which he filed in the trial court. According to that motion, Mr. Greer could
not pay the deposit or any other costs associated with filing an appeal. In his attached affidavit,
Mr. Greer averred that he could not “afford to pay for any legal services, fees, or costs in the
[previous appeal].”
{¶13} At no time prior to the issuance of the resentencing entry did Mr. Greer submit an
affidavit indicating that he could not pay the mandatory fine that the trial court was required to
impose. He, therefore, failed to satisfy his burden under R.C. 2929.18(B)(1). State v. Moore,
9th Dist. Summit Nos. 22146, 22216, 2005-Ohio-3304, ¶ 32. Because “the required filing …
is, in effect, a jurisdictional issue[,] … the trial court could not have avoided imposing the
statutory fine[.]”
Gipson at 633. We, therefore, conclude that Mr. Greer has not established
error, let alone plain error. Mr. Greer’s second assignment of error is overruled.
ASSIGNMENT OF ERROR III
[MR. GREER] RECEIVED INEFFECTIVE ASSISTANCE FROM HIS TRIAL
COUNSEL.
{¶14} Mr. Greer also argues that his trial counsel was ineffective because he did not
object to the trial court’s failure to follow R.C. 2929.18(B)(1) during the resentencing hearing.
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According to Mr. Greer, even though the trial court’s failure to follow the statute should
constitute plain error, his counsel could have prevented the fine from being imposed at the
resentencing hearing.
{¶15} To prevail on a claim of ineffective assistance of counsel, Mr. Greer must
establish (1) that his counsel’s performance was deficient to the extent that “counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) that but
for his counsel’s deficient performance the result of the trial would have been different.
Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). A deficient performance is one that
falls below an objective standard of reasonable representation. State v. Bradley,
42 Ohio St.3d
136 (1989), paragraph two of the syllabus. This Court, however, “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.’”
Strickland at 689, quoting
Michel v. Louisiana,
350 U.S. 91, 101 (1955). In addition, to establish prejudice, Mr. Greer must
show that there exists a reasonable probability that, were it not for counsel’s errors, the result of
the trial would have been different.
Strickland at 694.
{¶16} This Court has determined that, because Mr. Greer did not submit an affidavit
indicating that he was unable to pay the mandatory fine, the trial court was required to impose it
under R.C. 2929.18(B)(1). Mr. Greer’s counsel, therefore, did not perform deficiently or cause
any prejudice to Mr. Greer when he did not object to the imposition of the mandatory fine at the
resentencing hearing. Mr. Greer’s third assignment of error is overruled.
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III.
{¶17} Mr. Greer’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
HENSAL, J.
SCHAFER, J.
CONCUR.
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APPEARANCES:
JAMES W. ARMSTRONG, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
