[Cite as State v. Thomas,
2021-Ohio-1746.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2020-CA-27
:
v. : Trial Court Case No. 2020-CRB-490
:
ROBERTA L. THOMAS : (Criminal Appeal from Municipal Court)
:
Defendant-Appellant :
:
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OPINION
Rendered on the 21st day of May, 2021.
...........
ROGER A. STEFFAN, Atty. Reg. No. 0086330 and MARK M. FEINSTEIN, Atty. Reg. no.
0065183, Champaign County Municipal Court Prosecutor’s Office, 205 South Main
Street, Urbana, Ohio 43078
Attorneys for Plaintiff-Appellee
JAMES A. ANZELMO, Atty. Reg. No. 0068229, 446 Howland Drive, Gahanna, Ohio
43230
Attorney for Defendant-Appellant
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TUCKER, P.J.
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{¶ 1} Roberta L. Thomas appeals from her conviction for persistent disorderly
conduct. We reject her argument on appeal that trial counsel’s failure to request a waiver
of court costs and to request that a discretionary fine not be imposed constituted
ineffective assistance of counsel. As such, her conviction will be affirmed.
Facts and Procedural History
{¶ 2} During the course of a contentious divorce, Thomas dumped trash and other
detritus onto her husband’s property. As a result, she was charged with criminal mischief
in violation of Saint Paris Village Ordinance (Village Ordinance) No. 131.04(A)(1), a third-
degree misdemeanor. Following negotiations, Thomas pleaded guilty to persistent
disorderly conduct in violation of Village Ordinance No. 132.04(A)(5), a fourth-degree
misdemeanor. The trial court sentenced Thomas to a 20-day jail term, which was
suspended subject to successful completion of a 12-month probation period. The trial
court also imposed a discretionary $200 fine and ordered that Thomas pay $199 in court
costs, resulting in a total financial obligation of $399. Thomas’s appointed trial counsel
did not request waiver of the court costs or that a fine not be imposed. The trial court did
allow a payment plan, which required Thomas to pay at least $20 per month toward the
financial obligation. This appeal followed.
Analysis
{¶ 3} Thomas’s sole assignment of error is as follows:
Roberta Thomas 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.
Thomas asserts that trial counsel provided ineffective assistance because she did not
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request that the trial court waive the fine and court costs.
{¶ 4} Though court costs and a fine are distinct financial obligations, consistent
with Thomas’s argument, we will consider them together. R.C. 2947.23(A)(1)(a) requires
a trial court to assess the costs of prosecution against all convicted defendants. But the
trial court is also permitted to waive such costs. R.C. 2947.23(C). On the other hand,
the $200 fine was discretionary and within the statutory limit ($250) for a fourth-degree
misdemeanor.
{¶ 5} In State v. Davis, 159 Ohio St.3d 31,
2020-Ohio-309,
146 N.E.3d 560, the
Ohio Supreme Court ruled 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), which adopted the standard … announced in [Strickland
v. Washington,
446 U.S. 668,
194 S.Ct. 2052,
80 L.Ed.2d 674 (1984)] … .” Id. at ¶ 1.
Under this standard, a defendant must establish that “counsel’s performance fell below
an objective standard of reasonableness and that there exists a reasonable probability
that, but for counsel’s error, the result of the proceeding would have been different.”
Davis at ¶ 10, citing Bradley, paragraphs two and three of the syllabus. A reasonable
probability is established when counsel’s error “undermine[s] confidence in the outcome.”
Id., quoting Strickland at 694.
{¶ 6} When reviewing an attorney’s failure to file an affidavit reflecting a
defendant’s indigency and then to request a waiver of a mandatory fine, we, in this
analogous circumstance, have concluded that a Bradley/Strickland ineffective assistance
of counsel analysis is required. State v. Fultz, 2d Dist. Champaign No. 2018-CA-22,
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2019-Ohio-2593, ¶ 37. For purposes of this appeal, we will analyze trial counsel’s failure
to request that a fine not be imposed under the ineffective assistance of counsel standard.
{¶ 7} The only indication in the record that Thomas was indigent was that she had
appointed counsel. But the record also reflected that Thomas, age 34, was employed
by the Graham Local School District as an aide and a bus driver and had been so
employed for five years. Counsel was informed at the sentencing hearing that Thomas’s
total financial obligation was to be $399, and that the trial court would allow payment over
time with a minimum obligation of $20 per month.
{¶ 8} The Eighth District Court of Appeals, in State v. Ledbetter, 8th Dist.
Cuyahoga No. 104077, 2017-Ohio-89, explained as follows why the analysis is different
when deciding whether to appoint counsel versus whether to waive court costs or not
impose a fine:
[Ledbetter] points to the finding that he was indigent for purposes of
appointment of counsel. However, that determination is qualitatively
different than a finding that a person does not have the present or future
ability to pay a fine or court costs. A finding of indigency for the purposes
of being provided with counsel is a narrow examination of the resources a
person has at the time to be able to hire an attorney. The considerations
for the indigency for representation do not examine a person’s future ability
to hire an attorney. The determination of indigency for purposes of the
payment of fines and costs are therefore different. Fines and costs
constitute a debt that continues into the future whereby a person can make
payments over time or work off the debt through community work service.
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Considerations of a future ability to do community work service or to make
payments are necessary and unique to the court’s inquiry for the payments
of fines and costs. This is why a finding of indigency for purposes of
appointment of counsel is not sufficient to warrant a waiver of costs and
fines at sentencing.
Id. at ¶ 18, citing State v. Simpson, 8th Dist. Cuyahoga No. 101088, 2014-Ohio-4580,
¶ 20.
{¶ 9} Given this difference and the record in this case, we cannot conclude that
trial counsel provided ineffective assistance by not requesting a waiver of court costs and
that a fine not be imposed. This conclusion is based upon Thomas’s employment, the
total obligation being $399, and the allowance of a $20 per month payment plan. Given
these circumstances, the record does not demonstrate that Thomas was indigent as it
related to her ability to pay the court costs and fine.
{¶ 10} Turning to the second part of the test and assuming deficient performance,
it also is not apparent to a reasonable probability that the trial court would have waived
the court costs and not imposed a fine, if requested, under the circumstances presented.1
In short, we conclude that Thomas has not established either prong of the ineffective
assistance of counsel test on this record. As such, Thomas’s sole assignment of error
is overruled.
1
The State’s brief states that “[i]n the seven plus years [the trial judge] has served …
he has never waived a defendant’s fine or court costs.” The accuracy of this statement
cannot be ascertained on this record, but, if accurate, a policy of never considering a
waiver of court costs or fines, irrespective of a defendant’s financial status, would be quite
troubling, indicative of a refusal to exercise discretion, and thus an abuse of discretion.
See State v. Carter, 124 Ohio App.3d 423,
706 N.E.2d 409 (2d Dist.1997).
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Conclusion
{¶ 11} The judgment of the Champaign County Municipal Court is affirmed.
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HALL, J. and EPLEY, J., concur.
Copies sent to:
Roger A. Steffan
Mark M. Feinstein
James A. Anzelmo
Hon. Gil S. Weithman
