State v. Clor

2023 Ohio 1355

• Court: Ohio Court of Appeals
• Decided: April 26, 2023
• Docket: 22-COA-023
• Status: Published

Opinion

[Cite as State v. Clor, 2023-Ohio-1355.]

COURT OF APPEALS ASHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : Hon. Andrew J. King, J. -vs- : : CHRISTINE NICOLE CLOR : Case No. 22-COA-023 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 20-CRI-225

JUDGMENT: Affirmed

DATE OF JUDGMENT: April 26, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

NADINE HAUPTMAN BRIAN A. SMITH 110 Cottage Street 755 White Pond Drive Third Floor Suite 403 Ashland, OH 44805 Akron, OH 44320 Ashland County, Case No. 22-COA-023 2

King, J.

{¶ 1} Defendant-Appellant, Christine Nicole Clor, appeals her June 30, 2022

sentence from the Court of Common Pleas of Ashland County, Ohio, ordering her to pay

court costs. Plaintiff-Appellee is the state of Ohio. We affirm the trial court.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On April 14, 2021, Clor pled guilty to one count of aggravated possession

of drugs in violation of R.C. 2925.11. By sentencing entry filed May 12, 2021, the trial

court sentenced her to ninety days of house arrest, twenty hours of community service,

and three years of community control.

{¶ 3} On May 10, 2022, community control violations were filed against Clor. On

May 27, 2022, she admitted to two of the violations. By sentencing entry filed June 30,

2022, the trial court ordered Clor to remain on three years of community control and serve

a residential sanction of up to six months at the Crosswaeh Community Based

Correctional Facility. The trial court also ordered Clor to serve ninety days in jail unless

and until she was admitted to Crosswaeh. The trial court ordered Clor to pay court costs.

{¶ 4} Clor filed an appeal with the following assignments of error:

I

{¶ 5} "THE TRIAL COURT'S FAILURE TO WAIVE APPELLANT'S COURT

COSTS WAS AN ABUSE TO DISCRETION."

II

{¶ 6} "THE FAILURE OF APPELLANT'S TRIAL COUNSEL TO SEEK A WAIVER

OF COURT COSTS CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL, IN

VIOLATION OF APPELLANT'S RIGHT TO COUNSEL UNDER THE SIXTH AND Ashland County, Case No. 22-COA-023 3

FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION."

{¶ 7} In her first assignment of error, Clor claims the trial court abused its

discretion in ordering her to pay court costs. We disagree.

{¶ 8} A decision to impose court costs is within a trial court's sound discretion.

State v. Braden, 158 Ohio St.3d 462, 2019-Ohio-4202, 145 N.E.3d 235, ¶ 21. In order to

find an abuse of discretion, we must determine the trial court's decision was

unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.

Blakemore v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

{¶ 9} R.C. 2947.23(A)(1)(a) states: "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." Under subsection (C), a trial court "retains

jurisdiction to waive, suspend, or modify the payment of the costs of prosecution,

including any costs under section 2947.231 of the Revised Code, at the time of sentencing

or at any time thereafter." "The statutory language provides no explicit criteria that a court

should use in deciding whether to waive, suspend, or modify costs." State v. Taylor, 161

Ohio St.3d 319, 2020-Ohio-3514, 163 N.E.3d 486, ¶ 8. "[A] trial court is not required to

consider the defendant's ability to pay in assessing a motion to waive, suspend, or modify

court costs under R.C. 2947.23(C), though it is permitted to do so." Id. at ¶ 16.

{¶ 10} Clor argues court costs should not have been imposed because she is

indigent and her indigence was established during the May 27, 2022 community control Ashland County, Case No. 22-COA-023 4

violation hearing. During the hearing, the trial court questioned Clor in determining her

qualifications for court appointed counsel. Clor testified she did not receive any public

assistance other than Medicaid. T. at 5. She earned "maybe $1,200 right now" per month

as income from her business selling "Amazon pallets." Id. However, she did not earn

any income thirty days prior to the hearing. Id. She did not have any money in her

business bank account, and she had $15 in her back pocket. T. at 6. She did not have

anything to sell to hire an attorney. T. at 7. The trial court determined Clor qualified for

court appointed counsel. Id. In addition to being indigent, Clor argues she was facing

incarceration.

{¶ 11} The evidence demonstrates Clor's business income was $14,400 per year,

albeit it could be uncertain. Clor had the ability to earn income. As for her pending

incarceration, she was sentenced to ninety days in jail unless and until she was admitted

to Crosswaeh, a residential facility for up to six months. The trial court stated beds were

available, "so it could probably be done in a week." June 30, 2022 T. at 7. Even

considering the full incarceration time, Clor will be able to be out and working within nine

months at the latest. We note at the time of May 27, 2022 community control violation

hearing, Clor was 36 years old. T. at 4.

{¶ 12} In addition, the trial court ordered the payment of court costs pursuant to a

payment plan. Id. at 11. The trial court then notified Clor if she failed to make the

payments, the trial court can order:

that you perform community service work for the purpose of working off the

Court costs, in which case for each hour of community work service Ashland County, Case No. 22-COA-023 5

performed you would receive a credit at the Federal minimum wage rate in

effect at the time that you perform that work service. That credit would be

applied to the costs still outstanding and would reduce the costs by the

amount of that work service credit, and that court ordered community work

service to work off the court costs could remain in effect until the court costs

are paid or until you otherwise come into compliance with a payment plan

set up with your Supervising Officer.

{¶ 13} Clor will be placed on a payment plan and if she cannot make payments

from her business income, the trial court can order community service in exchange. There

is nothing in the record to indicate Clor cannot work. Clor has not established anything

unreasonable, arbitrary, or unconscionable about the trial court's decision to order the

payment of court costs.

{¶ 14} Upon review, we find the trial court did not abuse its discretion in ordering

Clor to pay court costs.

{¶ 15} Assignment of Error I is denied.

{¶ 16} In her second assignment of error, Clor claims her trial counsel was

ineffective for failing to seek a waiver of court costs. We disagree.

{¶ 17} "A properly licensed attorney in Ohio is presumed competent * * * [t]hus, the

burden of proving ineffectiveness is on the defendant." (Citations omitted.) State v.

Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). Ashland County, Case No. 22-COA-023 6

{¶ 18} The Supreme Court of Ohio has held when an indigent defendant makes

an ineffective assistance of counsel claim based upon trial counsel's failure to request a

waiver of court costs, a reviewing court must apply the test set forth in State v. Bradley,

42 Ohio St.3d 136, 538 N.E.2d 373 (1989), in determining whether the defendant received

ineffective assistance of counsel. State v. Davis, 159 Ohio St.3d 31, 2020-Ohio-309, 146

N.E.3d 560, ¶ 1. The Bradley test at paragraphs two and three of the syllabus is as

follows:

2. Counsel's performance will not be deemed ineffective unless and

until counsel's performance is proved to have fallen below an objective

standard of reasonable representation and, in addition, prejudice arises

from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2

O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)

3. To show that a defendant has been prejudiced by counsel's

deficient performance, the defendant must prove that there exists a

reasonable probability that, were it not for counsel's errors, the result of the

trial would have been different.

{¶ 19} "[A] determination of prejudice for purposes of an ineffective-assistance-of-

counsel analysis depends upon whether the facts and circumstances presented by the

defendant establish that there is a reasonable probability that the trial court would have

granted the request to waive costs had one been made." Davis at paragraph two of the Ashland County, Case No. 22-COA-023 7

syllabus. "[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." Id. at paragraph one of the syllabus.

Counsel's Performance

{¶ 20} In a previous case, this court analyzed whether trial counsel's failure to

request a waiver of court costs fell below an objective standard of reasonable

representation and violated any of counsel's essential duties to the defendant:

The adoption of R.C. 2947.23(C) now permits trial counsel flexibility

regarding a request for waiving costs. Prior to its adoption, a failure to

request of waiver of costs at sentencing resulted in a final judgment and a

prohibition of any further consideration of that issue. State v. Threatt, 108

Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, ¶ 23. Res judicata no

longer bars appellant from requesting a waiver at any time after sentencing.

"Trial counsel may have decided as a matter of strategy not to seek a waiver

or modification of court costs until some later time" and "[s]trategic timing

may now play a role in trial counsel's decision." State v. Farnese, 4th Dist.

Washington No. 15CA11, 2015-Ohio-3533, ¶ 16; State v. Purifoy, 2nd Dist.

Montgomery No. 28042, 2019-Ohio-2942, ¶ 28. We find that the timing of

a motion, seeking waiver of payment, is a matter of trial strategy. State v.

Southam, 6th Dist. Fulton No. F-18-004, 2018-Ohio-5288, ¶ 67, quoting Ashland County, Case No. 22-COA-023 8

State v. Pultz, 6th Dist. Wood No. WD-14-083, 2016-Ohio-329, ¶ 61. And

a debatable trial strategy does not equal ineffective assistance of counsel.

Southam, supra at ¶ 68, quoting State v. Phillips, 74 Ohio St.3d 72, 85, 656

N.E.2d 643 (1995). State v. Moore, 6th Dist. Erie No. E-19-009, 2019-Ohio-

4609, ¶ 14. Accord State v. Boyd, 5th Dist. Richland No. 12CA23, 2013-

Ohio-1333, ¶ 26. ("Trial strategy and even debatable trial tactics do not

establish ineffective assistance of counsel," quoting State v. Conway, 109

Ohio St.3d 412, 2006-Ohio-2815, ¶ 101) and State v. McCall, 5th Dist.

Coshocton No. 2017CA0002, 2017-Ohio-7860, ¶ 43 ("Tactical or strategic

trial decisions, including timing of a motion, do not generally constitute

ineffective assistance").

State v. Eblin, 5th Dist. Muskingum No. CT2019-0036, 2020-Ohio-1216, ¶ 16. Accord

State v. Dooley, 5th Dist. Muskingum No. CT2019-0054, 2020-Ohio-3947, ¶ 29.

{¶ 21} Accordingly, pursuant to Eblin, we find trial counsel did not violate an

essential duty to Clor by not filing a motion to waive court costs at the sentencing hearing.

Prejudice

{¶ 22} In addition, we have reviewed the record and have not found any evidence

that would support the conclusion that there was a reasonable probability that the

outcome would have been different had a motion been filed. In Assignment of Error I, we

analyzed whether the trial court abused its discretion in ordering court costs and found Ashland County, Case No. 22-COA-023 9

nothing within the facts and circumstances of this case to indicate that a failure to grant a

motion for waiver would have constituted an abuse.

{¶ 23} We conclude Clor has failed to demonstrate any prejudice.

{¶ 24} Upon review, we find Clor did not establish ineffective assistance of counsel

for trial counsel's failure to file a motion for a waiver of court costs.

{¶ 25} Assignment of Error II is denied.

{¶ 26} The judgment of the Court of Common Pleas of Ashland County, Ohio is

hereby affirmed.

By King, J.

Gwin, P.J. and

Baldwin, J. concur.

AJK/db