[Cite as State v. Wright,
2021-Ohio-3063.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
ERIE COUNTY
State of Ohio Court of Appeals No. E-20-013
Appellee Trial Court No. 2018-CR-538
v.
Anthony W. Wright DECISION AND JUDGMENT
Appellant Decided: September 3, 2021
…
Kevin J. Baxter, Erie County Prosecuting Attorney, and
Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee.
John M. Felter, for appellant.
…
OSOWIK, J.
I. Introduction
{¶ 1} Appellant, Anthony Wright, appeals the judgment of the Erie County Court
of Common Pleas, sentencing him to 51 months in prison after he pled guilty to one
count of aggravated assault with a firearm specification. Finding no error in the
proceedings below, we affirm.
A. Facts and Procedural Background
{¶ 2} On November 13, 2018, appellant was indicted on one count of attempted
murder in violation of R.C. 2923.02(A) and (D), a felony of the first degree, one count of
felonious assault in violation of R.C. 2903.11(A)(1) and (D)(1)(a), a felony of the second
degree, one count of felonious assault in violation of R.C. 2903.11(A)(2) and (D)(1)(a), a
felony of the second degree, and one count of tampering with evidence in violation of
R.C. 2921.12(A)(1) and (B), a felony of the third degree. Firearm specifications were
also attached to each of the foregoing counts pursuant to R.C. 2941.145(A). These
charges stemmed from a shooting that occurred in Sandusky, Ohio, on September 29,
2018.
{¶ 3} On November 27, 2018, appellant appeared before the trial court for
arraignment, at which time he entered a plea of not guilty to the aforementioned charges.
Thereafter, the matter proceeded through pretrial discovery and motion practice. On
June 26, 2019, a jury trial commenced. At the conclusion of the trial, the jury was unable
to reach a verdict. Therefore, the jury was discharged and the matter was continued for
further discovery.
{¶ 4} Following plea negotiations, appellant appeared before the trial court on
January 7, 2020. At the plea hearing held that day, appellant entered a plea of guilty to
2.
an amended charge of aggravated assault in violation of R.C. 2903.12(A)(1), a felony of
the fourth degree, with an attendant firearm specification. The trial court conducted a
Crim.R. 11 colloquy, accepted appellant’s guilty plea, and found appellant guilty of the
amended charge of aggravated assault. Pursuant to the plea agreement, the state
dismissed the remaining charges contained in the indictment. Thereafter, the trial court
continued the matter for a sentencing hearing at a later date. No presentence
investigation report was ordered or prepared.
{¶ 5} On January 9, 2020, appellant returned to the trial court for sentencing. At
the outset of the hearing, the trial court noted that the terms of the plea agreement
included a recommended prison sentence of 15 months for the aggravated assault charge,
plus a mandatory and consecutive sentence of 36 months for the firearm specification, for
a total prison sentence of 51 months. The trial court then heard a statement from the
victim, and the matter proceeded to mitigation. Four individuals spoke on behalf of
appellant, including his defense counsel, sister, stepdaughter, and friend. During
statements made in mitigation, appellant’s defense counsel explained, in pertinent part,
that appellant “had no prior record prior to this incident. He has served in the military, in
the Coast Guard, retired from there, and served our country honorably.”
{¶ 6} After appellant spoke on his own behalf, the trial court proceeded to impose
the 51-month sentence recommended by the state. The trial court also ordered appellant
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to pay court costs. Appellant’s defense counsel did not object to, or seek a waiver of,
such costs.
{¶ 7} Three months later, on April 17, 2020, appellant filed a pro se “motion to
pay off court costs and fines,” in which he sought to satisfy his court cost obligation by
performing community service. The state opposed appellant’s motion on the basis that it
was premature at this juncture and appellant had not demonstrated that he could not pay
the court costs. Ultimately, the trial court denied the motion on April 22, 2020.
{¶ 8} Four months later, on August 20, 2020, appellant filed a notice of appeal
along with a motion for delayed appeal. We granted appellant’s motion for delayed
appeal on September 29, 2020.
B. Assignments of Error
{¶ 9} On appeal, appellant assigns the following errors for our review:
1. Appellant was denied effective assistance of counsel at
sentencing due to counsel’s failure to move the court to waive court costs.
II. Analysis
{¶ 10} In appellant’s sole assignment of error, he argues that he was deprived of
the effective assistance of counsel at sentencing based upon counsel’s failure to seek a
waiver of court costs.
{¶ 11} To demonstrate ineffective assistance of counsel, appellant must first show
that trial counsel’s representation “fell below an objective standard of reasonableness.”
4.
Strickland v. Washington, 466 U.S. 668, 687-688,
104 S.Ct. 2052,
80 L.Ed.2d 674
(1984). Because “effective assistance” may involve different approaches or strategies,
our scrutiny of trial counsel’s performance “must be highly deferential” with a “strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.” State v. Bradley,
42 Ohio St.3d 136, 142,
538 N.E.2d 373 (1989), quoting
Strickland at 689. Should appellant demonstrate her trial counsel’s performance was
defective, appellant must also demonstrate that prejudice resulted. Bradley at paragraph
two of the syllabus.
{¶ 12} In this case, the trial court imposed generic “court costs,” both at
sentencing and in its sentencing entry. The court did not specify whether such costs
included any costs other than the costs of prosecution. Under similar circumstances, we
have held, “if a trial court wishes to impose the separate costs of confinement and
appointed counsel, it must explicitly do so.” State v. Middlebrooks, 6th Dist. Sandusky
No. S-18-032, 2019-Ohio-2149, ¶ 33 (finding that the trial court’s use of “court costs”
means only the costs of prosecution required by R.C. 2947.23). Because the trial court
did not specify what costs were included in “court costs,” we interpret the court’s order as
imposing only the costs of prosecution.
{¶ 13} Costs of prosecution are those costs that are “directly related to the court
proceedings and identified by a specific statutory authorization.” State v. Christy, 3d
Dist. Wyandot No. 16-04-04, 2004-Ohio-6963, ¶ 22. R.C. 2947.23(A)(1)(a) provides
5.
that, “[i]n all criminal cases, including violations of ordinances, the judge or magistrate
shall include in the sentence the costs of prosecution … and render a judgment against
the defendant for such costs.” The statute “requires a trial court to impose the costs of
prosecution against all convicted defendants.” State v. Davis, 159 Ohio St.3d 31, 2020-
Ohio-309,
146 N.E.3d 560, ¶ 13. However, the statute also “allows a trial court to waive
the costs of prosecution at any time after sentencing.” Id. at ¶ 4, citing R.C. 2947.23(C)
(“The court retains jurisdiction to waive, suspend, or modify the payment of the costs of
prosecution … at the time of sentencing or at any time thereafter.”).
{¶ 14} “[W]hen 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 [Bradley, supra,], which adopted the standard that had been
announced in [
Strickland, supra].” Id. at ¶ 1. In evaluating the prejudice prong of the
Strickland ineffective assistance standard, the court of appeals “must look at 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. at ¶ 15.
{¶ 15} Here, appellant argues that trial counsel’s failure to move for a waiver of
court costs at sentencing constituted ineffective assistance. While he articulates the
appropriate two-part framework for evaluating a claim of ineffective assistance of
counsel under Strickland, appellant’s argument is limited to the prejudice prong of the
6.
test. Appellant does not make the threshold showing that his trial counsel’s failure to
move for a waiver of court costs fell below an objective standard of reasonableness to
such an extent that the representation falls outside the “wide range of reasonable
professional assistance.” Bradley at 142.
{¶ 16} “Because defendants have ‘flexibility’ under R.C. 2947.23(C) as to when to
request a waiver, the decision not to request a waiver at sentencing and instead to
postpone it until later has been found to be a matter of trial strategy.” State v. Holt, 6th
Dist. Lucas No. L-19-1101, 2020-Ohio-6650, ¶ 8, citing State v. Eblin, 5th Dist.
Muskingum No. CT2019-0036,
2020-Ohio-1216, ¶ 16. “Trial strategy and even
debatable trial tactics do not establish ineffective assistance of counsel.” State v.
Conway,
109 Ohio St.3d 412,
2006-Ohio-2815,
848 N.E.2d 810, ¶ 101. Under the facts
of this case, we find that trial counsel did not violate an essential duty to appellant by not
filing a motion to waive costs at the sentencing hearing. As stated in our decision in
Holt, “[i]n the absence of any evidence of deficient performance by trial counsel, [the
appellant] cannot show ineffective assistance under the first branch of the Bradley test.”
Id. at ¶ 9.
{¶ 17} As to his prejudice argument, we find that appellant has not satisfied his
burden of demonstrating that there is a reasonable probability that the trial court would
have waived the court costs had trial counsel moved for such a waiver. In order to
establish prejudice, appellant points to the fact that he has previously been declared
7.
indigent for purposes of receiving appointed counsel. On this basis alone, appellant
declares that the trial court would have waived the costs of prosecution if asked to do so.
In support of appellant’s argument, he cites the Eighth District’s decision in State v.
Gibson, 8th Dist. Cuyahoga No. 104363, 2017-Ohio-102. There, the court held that trial
counsel was ineffective for failing to seek a waiver of costs where the defendant had
previously been declared indigent. Id. at ¶ 16. The court explained that the prior
indigency determination demonstrated a reasonable probability that the trial court would
have waived court costs had trial counsel made a timely motion. Id.
{¶ 18} Notably, the reasoning articulated by the court in Gibson, and relied upon
by appellant in this case, was expressly rejected by the Ohio Supreme Court in Davis.
There, the court explained 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, contrary to the Eighth District’s holding in
Gibson ….” Davis at ¶ 15. Thus, we find no merit to appellant’s prejudice argument,
which is based entirely upon his prior determination of indigency. Moreover, having
reviewed the record, we cannot definitively state that the trial court would have waived
court costs if asked to do so. While not well developed due to the lack of a presentence
investigation report, the record nonetheless reveals that appellant is a retired military
veteran who presumably receives some form of retirement remuneration. It is entirely
conceivable that the trial court would have denied a request to waive court costs based
8.
upon such income. Therefore, we do not find that appellant has demonstrated prejudice
in this case.
{¶ 19} Based upon appellant’s failure to articulate how his trial counsel’s
assistance fell below and objective standard of reasonableness or prejudiced him, we find
no merit to appellant’s assertion that he received ineffective assistance of trial counsel.
Accordingly, appellant’s sole assignment of error is not well-taken.
III. Conclusion
{¶ 20} In light of the foregoing, the judgment of the Erie County Court of
Common Pleas is affirmed. Costs of this appeal are assessed to appellant under App.R.
24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Thomas J. Osowik, J. ____________________________
JUDGE
Christine E. Mayle, J.
____________________________
Myron C. Duhart, 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.supremecourt.ohio.gov/ROD/docs/.
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