[Cite as State v. Dooley, 2020-Ohio-3947.]
WCOURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES: : : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : Hon. Earle E. Wise, Jr., J. -vs- : : Case No. CT2019-0054 : JASON F. DOOLEY : : : Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Muskingum County Court of Common Pleas, Case No. CR2019-0115
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: August 3, 2020
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
D. MICHAEL HADDOX JAMES A. ANZELMO MUSKINGUM COUNTY PROSECUTOR 446 Howland Dr. Gahanna, OH 43230 TAYLOR P. BENNINGTON 27 N. 5th St., P.O. Box 189 Zanesville, OH 43702-0189 Muskingum County, Case No. CT2019-0054 2
Delaney, J.
{¶1} Defendant-Appellant Jason F. Dooley appeals the May 14, 2019 sentencing
entry of the Muskingum County Court of Common Pleas. Plaintiff-Appellee is the State of
Ohio.
STATEMENT OF THE CASE1
{¶2} On February 13, 2019, the Muskingum County Grand Jury indicted
Defendant-Appellant Jason F. Dooley on one count of escape, a fifth-degree felony in
violation of R.C. 2921.34(A)(3). Dooley was arraigned on March 20, 2019 and entered a
plea of not guilty.
{¶3} Dooley withdrew his not guilty plea and entered a plea of guilty on May 13,
2019. A change of plea hearing was held on May 13, 2019. At the hearing, the State
presented the three-page plea form signed by Dooley and his counsel. The trial court
conducted its colloquy with Dooley. Relevant to this appeal, the trial court asked Dooley
the following:
THE COURT: Are you currently under the influence of any alcohol or drugs?
THE DEFENDANT: No, sir.
THE COURT: Have you used any substances within the last 24 hours?
THE COURT: Do you take any type of medication?
THE DEFENDANT: Just my psych meds.
THE COURT: And is that affecting your ability to understand what is going
on here today?
1A statement of the facts underlying Dooley’s conviction is not necessary for the disposition of this appeal. Muskingum County, Case No. CT2019-0054 3
(T. 7-8). The trial court completed the colloquy and accepted Dooley’s guilty plea.
{¶4} The trial court sentenced Dooley to a seven-month prison term via
sentencing entry filed May 14, 2019.
{¶5} It is from this sentencing entry Dooley now appeals.
ASSIGNMENTS OF ERROR
{¶6} Dooley raises two Assignments of Error:
{¶7} “I. THE TRIAL COURT DID NOT MAKE SUFFICIENT INQUIRY TO
DETERMINE WHETHER DOOLEY’S MEDICATION FOR A PSYCHIATRIC CONDITION
INTERFERED WITH HIS ABILITY TO MAKE A KNOWING, INTELLIGENT, AND
VOLUNTARY PLEA.
{¶8} “II. DOOLEY 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.”
ANALYSIS
I.
{¶9} Dooley argues in his first Assignment of Error that the trial court failed to
ensure that he entered his guilty pleas knowingly, intelligently, and voluntarily because
the court failed to adequately inquire into the effect Dooley’s psychiatric medication had
on his ability to understand the proceedings. We note that Dooley does not contend in his
appeal that he was on fact impaired during the colloquy and incapable of entering his
guilty plea knowingly, intelligently, and voluntarily. Muskingum County, Case No. CT2019-0054 4
Crim.R. 11
{¶10} “ ‘When a defendant enters a plea in a criminal case, the plea must be made
knowingly, intelligently, and voluntarily. Failure on any of those points renders
enforcement of the plea unconstitutional under both the United States Constitution and
the Ohio Constitution.’ ” State v. Hurt, 5th Dist. Muskingum No. CT2019-0053, 2020-Ohio-
2754, 2020 WL 2120071, ¶ 17 quoting State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-
5200, 897 N.E.2d 621, ¶ 7 quoting State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d
450 (1996). “An appellate court determining whether a guilty plea was entered knowingly,
intelligently, and voluntarily conducts a de novo review of the record to ensure that the
trial court complied with the constitutional and procedural safeguards.” State v. Moore,
4th Dist. Adams No. 13CA965, 2014-Ohio-3024, 2014 WL 3359226, ¶ 13.
{¶11} To ensure that pleas conform to these high standards, the trial judge must
engage the defendant in a colloquy before accepting his or her plea. See State v. Ballard,
66 Ohio St.2d 473, 423 N.E.2d 115 (1981), paragraph one of the syllabus; Crim.R. 11(C),
(D), and (E). It follows that, in conducting this colloquy, the trial judge must convey
accurate information to the defendant so that the defendant can understand the
consequences of his or her decision and enter a valid plea. State v. Clark, 119 Ohio St.3d
239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 26. If a defendant receives the proper
information, a reviewing court “can ordinarily assume that he understands that
information.” State v. Carter, 60 Ohio St.2d 34, 38, 396 N.E.2d 757 (1979).
{¶12} Before accepting a guilty plea in a felony case a trial court must address the
defendant personally and determine that “the defendant is making the plea voluntarily,
with understanding of the nature of the charges and of the maximum penalty involved, Muskingum County, Case No. CT2019-0054 5
and, if applicable, that the defendant is not eligible for probation or for the imposition of
community control sanctions at the sentencing hearing.” Crim.R. 11(C)(2)(a). The court
must also inform the defendant of both the constitutional and nonconstitutional rights he
is waiving and determine that he “understands the effect of the plea of guilty or no contest,
and that the court, upon acceptance of the plea, may proceed with judgment and
sentence.” Crim.R. 11(C)(2)(b). Finally, the court must determine that the defendant
understands that he “is waiving the rights to jury trial, to confront witnesses against him
or her, to have compulsory process for obtaining witnesses in the defendant's favor, and
to require the state to prove the defendant's guilt beyond a reasonable doubt at a trial at
which the defendant cannot be compelled to testify against himself or herself.” Crim.R.
11(C)(2)(c). Strict compliance with Crim.R. 11(C)(2)(c) is required because constitutional
rights are involved. “However, failure to [literally comply] will not necessarily invalidate a
plea.
{¶13} “The underlying purpose, from the defendant's perspective, of Crim.R.
11(C) is to convey to the defendant certain information so that he can make a voluntary
and intelligent decision whether to plead guilty.” Veney at ¶ 18 quoting State v. Ballard,
66 Ohio St.2d 473, 479–480, 423 N.E.2d 115 (1981). When a trial court complies with
Crim.R. 11(C)(2) in accepting a plea, there is a presumption that the defendant's plea was
knowingly, intelligently, and voluntarily made. State v. Montanez, 8th Dist. Cuyahoga No.
108093, 2020-Ohio-1023, 2020 WL 1310343, ¶ 8 citing State v. Alexander, 8th Dist.
Cuyahoga No. 103754, 2016-Ohio-5707, ¶ 11; State v. Murray, 12th Dist. Brown No.
CA2015-12-029, 2016-Ohio-4994, ¶ 20. Muskingum County, Case No. CT2019-0054 6
Medication
{¶14} When asked if he was taking any type of medication, Dooley advised the
trial court he was taking psychiatric medication. The trial court next asked:
THE COURT: And is that affecting your ability to understand what is going
(T. 7-8). Dooley contends it was error for the trial court to end the inquiry and not ask
follow up questions such as what medication he was taking and if the medications affected
his ability to understand the Crim.R. 11 colloquy.
{¶15} In State v. Montanez, 8th Dist. Cuyahoga No. 108093, 2020-Ohio-1023, the
defendant advised the trial court he was taking medication for anxiety and panic attacks
during the plea colloquy. Id. at ¶ 9. The trial court asked what medication the defendant
was taking and asked follow-up questions to determine if the medication affected his
ability to understand the Crim.R. 11 colloquy:
THE COURT: Okay. Does your medication at all impact on your ability to
think clearly, to hear clearly and understand what's going on at all?
THE DEFENDANT: When it first starts kicking in, I feel a pulsation in my
head, the whole front of my head.
THE COURT: How are you feeling right now? It's about 10:00 now, 10:05.
How are you feeling now?
THE DEFENDANT: Nervous.
THE COURT: Well that's natural. Are you otherwise thinking clearly,
understanding what we're talking about, everything like that? Muskingum County, Case No. CT2019-0054 7
THE DEFENDANT: 80 percent.
THE COURT: Okay. Is there something that I've said so far or that is
happening so far that you're not clear on?
THE DEFENDANT: No, not yet.
THE COURT: If that happens, would you make sure you let me know
because I will be — like I said, we will be going back and forth with these
questions, and I can only rely upon what your answers are. Okay?
THE DEFENDANT: Okay.
Id. at ¶ 9.
{¶16} The Eighth District Court of Appeals has held that where a trial court
complies with the dictates of Crim.R. 11(C), the resulting guilty plea is presumed valid
even though the defendant took medication that could impact the defendant's ability to
think clearly and rationally as long as the record supports that finding. State v. Montanez,
8th Dist. Cuyahoga No. 108093, 2020-Ohio-1023, 2020 WL 1310343, ¶ 10 citing State v.
Brown, 8th Dist. Cuyahoga No. 103835, 2016-Ohio-5415. In Montanez, the defendant
indicated he was satisfied with his legal counsel. The trial court explained the defendant’s
constitutional rights and the defendant indicated that he understood. The defendant also
indicated that he understood the maximum penalties, post-release control, and
mandatory sex-offender registration. Id. at ¶ 12. The Eighth District found the trial court
complied with Crim.R. 11, the defendant understood the proceedings, and he was
capable of entering his guilty pleas knowingly, intelligently, and voluntarily. Id.
{¶17} In State v. Back, 5th Dist. Ashland No. 2019-COA-028, 2020-Ohio-451, this
Court found the trial court complied with Crim.R. 11 after the defendant informed the court Muskingum County, Case No. CT2019-0054 8
that he was taking medication for depression and anxiety. The trial court asked if the
medications impaired the defendant’s ability to comprehend and understand things.
Unlike Montanez, the defendant in Back gave a definitive answer that the medications did
not affect his ability to comprehend and understand things. Id. at ¶ 22-23. When asked if
he was entering the plea voluntarily and under his own free will, the defendant indicated
that he was. In addition, defendant acknowledged that he signed a written waiver and
plea of guilty document. Id. at ¶ 29. We found no evidence in the record supporting the
defendant’s assertion that he was “mentally incapable of fully understanding the plea
discussion and discourse” due to prescription medication. Id. at ¶ 30.
{¶18} We find the facts of the present case can be differentiated from those in
Montanez. In Montanez, when asked if the medications impacted the defendant’s ability
to think clearly, the defendant did not say “no” – he said that when the medications kicked
in, he felt a pulsing in his head. The defendant’s answer prompted the trial court to
conduct a more in-depth inquiry to determine if the medications affected the defendant’s
capability to understand the proceedings.
{¶19} In the present case, the trial court asked if Dooley was taking any
medications. Dooley answered that he was taking psychiatric medications. The trial court
asked Dooley if the medications affected his ability to understand the change of plea
proceedings and Dooley answered, “No, sir.” Akin to the facts of State v. Back, when
Dooley answered that the medication did not affect his ability to understand the
proceedings, further inquiry by the trial court was not necessary.
{¶20} The totality of the plea colloquy demonstrated that Dooley understood the
proceedings. Dooley indicated he was satisfied with his legal counsel. The trial court Muskingum County, Case No. CT2019-0054 9
explained Dooley’s constitutional rights and Dooley indicated that he understood. Dooley
also indicated that he understood the maximum penalties and the termination of his post-
release control. Further, Dooley was able to deftly discuss his remaining post-release
control with the trial court:
THE COURT: How much time does he have on PRC?
THE DEFENDANT: They gave me three years parole for the felony five,
Your Honor.
MR. MCLENDON: How much time left?
THE DEFENDANT: I got December until now, about four months, so it’s two
years and eight months left.
(T. 13-14).
{¶21} On this record, we find the trial court complied with Crim.R. 11. We find no
reason to doubt that Dooley understood the proceedings and was capable of entering his
guilty plea knowingly, intelligently, and voluntarily.
{¶22} Dooley’s first Assignment of Error is overruled.
II.
{¶23} In his second Assignment of Error, Dooley contends he received ineffective
assistance of counsel because his trial counsel failed to request the trial court waive court
costs due to Dooley’s indigency.
{¶24} In State v. Davis, 159 Ohio St.3d 31, 2020-Ohio-309, 146 N.E.3d 560, the
Ohio Supreme Court directed 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- Muskingum County, Case No. CT2019-0054 10
142, 538 N.E.2d 373 (1989), which adopted the standard that had been announced in
Strickland [v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)], for
determining whether a defendant received ineffective assistance of counsel.” Id. at ¶ 1.
{¶25} Our standard of review for ineffective assistance claims is set forth in
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ohio
adopted this standard in the case of State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373
(1989). These cases require a two-pronged analysis in reviewing a claim for ineffective
assistance of counsel. First, we must determine whether counsel's assistance was
ineffective; i.e., whether counsel's performance fell below an objective standard of
reasonable representation and was violative of any of his or her essential duties to the
client. If we find ineffective assistance of counsel, we must then determine whether or not
the defense was actually prejudiced by counsel's ineffectiveness such that the reliability
of the outcome of the trial is suspect. This requires a showing there is a reasonable
probability that but for counsel's unprofessional error, the outcome of the trial would have
been different. Id.
{¶26} Trial counsel is entitled to a strong presumption all decisions fall within the
wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675,
693 N.E.2d 267 (1998). In addition, the United States Supreme Court and the Ohio
Supreme Court have held a reviewing court “need not determine whether counsel's
performance was deficient before examining the prejudice suffered by the defendant as
a result of the alleged deficiencies.” Bradley at 143, 538 N.E.2d 373, quoting Strickland
at 697, 104 S.Ct. 2052. Even debatable trial tactics and strategies do not constitute Muskingum County, Case No. CT2019-0054 11
ineffective assistance of counsel. State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189
(1980).
{¶27} R.C. 2947.23, which governs judgment for costs, provides, in pertinent part:
“In 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.” R.C. 2947.23(A)(1)(a). However, subsection (C) permits the
trial court to retain jurisdiction “to waive, suspend, or modify the payment of the costs of
prosecution * * * at the time of sentencing or at any time thereafter.” Therefore, a trial
court has discretion to waive the payment of court costs whether a defendant is indigent
or not. The trial court's decision regarding whether to waive costs is, therefore, “reviewed
under an abuse-of-discretion standard.” State v. Eblin, 5th Dist. Muskingum No. CT2019-
0036, 2020-Ohio-1216, 2020 WL 1531785, ¶ 13 citing State v. Braden, 158 Ohio St.3d
462, 2019-Ohio-4204, 145 N.E.3d 235.
Essential Duties
{¶28} We first review the record to determine whether trial counsel failed in his
essential duties to Dooley by failing to request a waiver of court costs under R.C. 2947.23.
State v. Eblin, 5th Dist. Muskingum No. CT2019-0036, 2020-Ohio-1216, 2020 WL
1531785, ¶ 14 citing Bradley, supra. We are guided by Strickland, supra to describe the
deference used in such an analysis:
A fair assessment of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel's challenged conduct, and to evaluate the
conduct from counsel's perspective at the time. Because of the difficulties Muskingum County, Case No. CT2019-0054 12
inherent in making the evaluation, a court 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.” See Michel v. Louisiana, supra,
350 U.S., at 101, 76 S.Ct., at 164. There are countless ways to provide
effective assistance in any given case. Even the best criminal defense
attorneys would not defend a particular client in the same way.
{¶29} In State v. Eblin, we conducted an analysis of whether counsel’s failure to
request a waiver of court costs fell below an objective standard of reasonable
representation and was violative of any of counsel’s essential duties to the client:
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. Muskingum County, Case No. CT2019-0054 13
Southam, 6th Dist. Fulton No. F-18-004, 2018-Ohio-5288, ¶ 67, quoting
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, 2020 WL
1531785, ¶¶ 16-17
{¶30} Accordingly, pursuant to State v. Eblin, we hold that trial counsel did not
violate an essential duty to Dooley by not filing a motion to waive costs at the sentencing
hearing.
Reasonable Probability
{¶31} Dooley relies on the trial court's findings that he was indigent for
appointment of trial and appellant counsel to support his argument that there was a
reasonable probability that the trial court would have waived costs.
{¶32} In State v. Davis, the Ohio Supreme Court stated that “a determination of
indigency alone does not rise to the level of creating a reasonable probability that the trial Muskingum County, Case No. CT2019-0054 14
court would have waived costs had defense counsel moved the court to do so” and,
instead we must determine “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. State v. Davis, 2020-Ohio-309
at ¶ 15-16.
{¶33} Dooley has not presented any facts or circumstances, other than his
indigency, to support a finding that there was a reasonable probability that trial court would
have granted the request to waive costs. We have reviewed the record before us and
found nothing that would support the conclusion that there was a reasonable probability
that the outcome would have changed had a motion been filed. We conclude that Dooley
has failed to demonstrate a reasonable probability that the outcome would have changed
and therefore, Dooley did not suffer prejudice as a result of counsel not filing a motion to
waive costs.
{¶34} Pursuant to Strickland, supra, we find Dooley did not to establish ineffective
assistance of counsel for trial counsel’s failure to move for a waiver of costs.
{¶35} Dooley’s second Assignment of Error is overruled. Muskingum County, Case No. CT2019-0054 15
CONCLUSION
{¶36} The judgment of the Muskingum County Court of Common Pleas is
affirmed.
By: Delaney, J.,
Gwin, P.J. and
Wise, Earle, J., concur.