State v. Bible

2025 Ohio 2106

• Court: Ohio Court of Appeals
• Decided: June 16, 2025
• Docket: 8-24-45
• Status: Published

Opinion

[Cite as State v. Bible, 2025-Ohio-2106.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT LOGAN COUNTY

STATE OF OHIO, CASE NO. 8-24-45 PLAINTIFF-APPELLEE,

v.

MARK E. BIBLE, OPINION AND JUDGMENT ENTRY DEFENDANT-APPELLANT.

Appeal from Logan County Common Pleas Court General Division Trial Court No. CR 23 09 0232

Judgment Reversed and Cause Remanded

Date of Decision: June 16, 2025

APPEARANCES:

Christopher Bazeley for Appellant

Nathan Yohey for Appellee Case No. 8-24-45

WALDICK, P.J.

{¶1} Defendant-appellant, Mark Bible (“Bible”), appeals the October 8,

2024 judgment of sentence entered against him in the Logan County Court of

Common Pleas, following his pleas of guilty to multiple felony drug offenses. For

the reasons that follow, we reverse the sentence imposed by the trial court.

{¶2} This case originated on November 14, 2023, when a Logan County

grand jury returned a five-count indictment against Bible, charging him as

follows: Count 1 – Aggravated Trafficking in Drugs, a third-degree felony in

violation of R.C. 2925.03(A)(1) and (C)(1)(c); Count 2 – Aggravated Trafficking in

Drugs, a third-degree felony in violation of R.C. 2925.03(A)(1) and (C)(1)(c); Count

3 – Aggravated Trafficking in Drugs, a third-degree felony in violation of R.C.

2925.03(A)(1) and (C)(1)(c); Count 4 – Aggravated Trafficking in Drugs, a third-

degree felony in violation of R.C. 2925.03(A)(1) and (C)(1)(c); and Count 5 –

Aggravated Possession of Drugs, a second-degree felony in violation of R.C.

2925.11(A) and (C)(1)(c).

{¶3} On November 17, 2023, an arraignment was held and Bible entered a

plea of not guilty to all counts in the indictment.

{¶4} On August 13, 2024, a superseding indictment was filed. That

indictment contained the same five charges set forth in the original indictment, but

added a sixth count in which Bible was charged with Complicity to Aggravated

-2- Case No. 8-24-45

Possession of Drugs, a second-degree felony in violation of R.C. 2923.03(A)(2) and

R.C. 2925.11(A) and (C)(1)(c). Count 6 of the superseding indictment also

contained an automobile forfeiture specification pursuant to R.C. 2941.1417(A).

{¶5} On August 14, 2024, an arraignment was held on the superseding

indictment and Bible entered a plea of not guilty to the superseding indictment.

{¶6} On September 6, 2024, a change of plea hearing was held. At that time,

Bible pled guilty to the six crimes charged in the superseding indictment and, in

exchange, the prosecution dismissed the forfeiture specification contained in Count

6. The parties also agreed to jointly recommend an indefinite sentence of a

minimum term of four years in prison, up to a potential maximum term of six years,

to be imposed on one of the second-degree felonies, with the sentences on all other

counts to run concurrently with the recommended indefinite sentence. After

engaging in the required Crim.R. 11(C) colloquy with Bible, and further advising

him that the court was not bound by the agreed-upon sentencing recommendation,

the trial court accepted the guilty pleas and ordered a presentence investigation.

During that change of plea hearing, the trial court also instructed defense counsel

that, should the defense intend to seek a waiver of the applicable mandatory fines at

sentencing, any affidavit of indigency in support of such a request should be

provided to the court prior to the sentencing hearing.

-3- Case No. 8-24-45

{¶7} On October 8, 2024, a sentencing hearing was held and Bible was

sentenced as follows: Count 1 – 36 months in prison; Count 2 – 36 months in prison;

Count 3 – 36 months in prison; Count 4 – 36 months in prison; Count 5 – an

indefinite mandatory prison term of 6 to 9 years; and Count 6 – 6 years in

prison. The trial court ordered that the sentences imposed on Counts 1, 2, 3, 4, and

6 be served concurrently with the sentence imposed on Count 5. As no motion had

been made by defense counsel to waive the applicable mandatory fines on the basis

that Bible was indigent, the trial court also ordered that Bible pay a mandatory fine

of $5,000.00 on each of Counts 1, 2, 3, and 4, and that he pay a mandatory fine of

$7,500.00 on each of Counts 5 and 6, for a total of $35,000.00 in mandatory fines.

{¶8} At the close of the sentencing hearing, after the trial court had imposed

sentence on all six counts, including the mandatory fines, defense counsel raised the

issue of mandatory fines for the first time, stating:

The other – the other point, Your Honor, (indiscernible) some money (indiscernible) forms. Unfortunately he was still at the jail and so if the Court would allow me to go (indiscernible) once again today and complete that motion and get it to you at the close of this hearing?

(10/8/24 Tr., 11). In response to that, the trial court informed defense counsel that

the court did not know if waiver of the fines could be requested after the sentencing

hearing, but the court encouraged counsel to research it, file a motion, and provide

the court with legal authority indicating the court could change the order. (10/8/24

-4- Case No. 8-24-45

Tr., 12). However, once again, no affidavit of indigency or related motion to waive

the mandatory fines was ever filed by Bible’s attorney.

{¶9} On October 10, 2024, Bible filed the instant appeal, in which he raises

two assignments of error for our review.

First Assignment of Error

Bible’s right to effective counsel was violated by his defense attorney’s failure to make a timely motion to waive mandatory fines.

Second Assignment of Error

The trial court erred by failing to provide defense counsel with the opportunity to allocute as required by Crim.R. 32.

{¶10} In the first assignment of error, Bible argues that he was denied the

effective assistance of counsel at sentencing. Specifically, Bible asserts that his

counsel was ineffective in failing to file an affidavit of indigency on Bible’s behalf

relating to the mandatory drug fines that were imposed.

{¶11} “[I]n Ohio, a properly licensed attorney is presumed competent.” State

v. Gondor, 2006-Ohio-6679, ¶ 62. To prevail on an ineffective assistance of

counsel claim, a defendant must establish that: (1) counsel’s performance was

deficient, and (2) the deficient performance prejudiced the defense. Strickland v.

Washington, 466 U.S. 668, 687 (1984). Counsel’s performance is deficient if it falls

below an objective standard of reasonable representation. State v. Bradley, 42 Ohio

-5- Case No. 8-24-45

St.3d 136, paragraph two of the syllabus (1989). Prejudice exists if there is “a

reasonable probability that, but for counsel’s errors, the outcome of the proceeding

would have been different.” State v. Sowell, 2016-Ohio-8025, ¶ 138.

As to mandatory drug fines, R.C. 2929.18(B)(1) provides, in pertinent part:

For a first, second, or third degree felony violation of any provision of Chapter 2925 * * * of the Revised Code, the sentencing court shall impose upon the offender a mandatory fine of at least one-half of, but not more than, the maximum statutory fine amount authorized for the level of the offense pursuant to division (A)(3) of this section. If an 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 if the court determines the offender is an indigent person and is unable to pay the mandatory fine described in this division, the court shall not impose the mandatory fine upon the offender.

{¶12} “The failure to file an affidavit of indigency prior to sentencing may

constitute ineffective assistance of counsel if the record shows a reasonable

probability that the trial court would have found the defendant indigent and relieved

the defendant of the obligation to pay the fine had the affidavit been filed.” State v.

Elrod, 2016-Ohio 987, ¶ 8 (3d Dist.), citing State v. Harrison, 2015-Ohio-1419, ¶

92 (3d Dist.). In analyzing this issue, an appellate court should consider “‘factors

such as age, criminal record, employment history, ability to post bond, ability to

retain counsel for trial, and the untimely affidavit of indigency.’” Elrod, at ¶ 8,

quoting State v. Howard, 2007-Ohio-3582, ¶ 16 (2d Dist.).

{¶13} In the instant appeal, Bible argues that trial counsel’s failure to file an

affidavit of indigency amounts to deficient performance on counsel’s part and,

-6- Case No. 8-24-45

further, that there was a reasonable probability that Bradley would have been found

indigent had counsel filed the appropriate paperwork and sought waiver of the

mandatory fines. Following our own review of the record in its entirety, we find

that Bible’s ineffective assistance of counsel claim has merit.

{¶14} The record reflects that Bible was 52 years of age at the time of

sentencing, and is a high school graduate who can read and write the English

language.

{¶15} On September 11, 2023, a financial affidavit was filed in Bellefontaine

Municipal Court, relating to Bible having initially been charged in that court on a

felony complaint involving one of the crimes at issue in this case. In that affidavit,

Bible averred that his gross monthly employment income at Bellray Inc. was

$5500.00 at that time and that his monthly expenses for necessities and repayment

of debt amounted to $3700.00. Furthermore, no assets were reported.

{¶16} Following the original indictment being returned in this case on

November 14, 2023, Bible was arraigned on November 17, 2023, and was found by

the trial court to be indigent at that time for purposes of appointing counsel. An

updated financial affidavit had been filed on that same date, reflecting that Bible

had no income and no assets.

{¶17} On April 24, 2024, a notice of substitution of counsel was filed, and

Bible’s original court-appointed attorney was replaced at that time by retained

-7- Case No. 8-24-45

counsel. However, the record does not reflect who retained counsel on Bible’s

behalf, what counsel’s fee may have been, or whether counsel was ever paid.

{¶18} The record does reflect that Bible twice made bail after having his

bond revoked during the pendency of this case. However, the paperwork filed on

those occasions reflects that the bond was a surety bond and, further, that a person

other than Bible signed the bond as the guarantor.

{¶19} As noted above, Bible entered his negotiated pleas of guilty on

September 6, 2024, at which time the trial court ordered a presentence investigation.

The presentence investigation was completed as ordered and is a part of the record

before this Court on appeal. The presentence investigation reflects that, prior to

being incarcerated while sentencing was pending in this case, Bible lived with his

mother in a home located in Bellefontaine. Bible reported that he was in good

physical health. Bible reported that, prior to being incarcerated, he had usually

maintained employment in construction-type jobs, and is a member of the Laborer’s

Union #1410 in Dayton, Ohio.

{¶20} On October 10, 2024, Bible’s notice of appeal was filed, which

contained a request for appointed counsel and waiver of costs in the appeal, due to

Bible being indigent. A financial affidavit was also filed at that time, reflecting that

Bible had no income and no assets.

-8- Case No. 8-24-45

{¶21} On October 14, 2024, the trial court filed a judgment entry appointing

counsel for purposes of appeal. October 21, 2024, the trial court filed an entry

finding Bible to be indigent for purposes of waiving the $220.00 cost of having

transcripts prepared for this appeal.

{¶22} The fact that trial counsel belatedly sought leave to file a financial

affidavit on Bible’s behalf also indicates to this Court that counsel believed there to

have been some merit to a defense request that the mandatory fines be waived.

{¶23} In sum, considering the totality of Bible’s circumstances and financial

situation at the time of sentencing, particularly his lack of employment and assets,

and further taking into account the impact that a minimum of six years’ mandatory

incarceration will have on Bible’s future ability to pay thousands of dollars in

mandatory fines, we find there to be a reasonable probability that Bible would have

been found indigent at sentencing had counsel filed an affidavit of indigency.

{¶24} We therefore sustain Bible’s first assignment of error.

{¶25} In the second assignment of error, Bible asserts that the trial court

erred at the sentencing hearing when Bible’s counsel was not provided with an

adequate opportunity to speak on Bible’s behalf, as required by Crim.R. 32.

-9- Case No. 8-24-45

{¶26} However, our resolution of the first assignment of error renders the

second assignment of error moot and we decline to address it. See App.R.

12(A)(1)(c).

Conclusion

{¶27} Having found error prejudicial to the defendant-appellant in the first

assignment of error raised herein, we reverse the October 8, 2024 judgment of the

Logan County Court of Common Pleas, and remand the matter for resentencing.

Judgment Reversed, and Cause Remanded.

ZIMMERMAN and WILLAMOWSKI, J.J., concur.

-10- Case No. 8-24-45

JUDGMENT ENTRY

For the reasons stated in the opinion of this Court, the first assignment of

error is sustained and it is the judgment and order of this Court that the judgment of

the trial court is reversed with costs assessed to Appellee for which judgment is

hereby rendered. The cause is hereby remanded to the trial court for further

proceedings and for execution of the judgment for costs.

It is further ordered that the Clerk of this Court certify a copy of this Court’s

judgment entry and opinion to the trial court as the mandate prescribed by App.R.

27; and serve a copy of this Court’s judgment entry and opinion on each party to the

proceedings and note the date of service in the docket. See App.R. 30.

Juergen A. Waldick, Judge

John R. Willamowski, Judge

William R. Zimmerman, Judge

DATED: /jlm

-11-