[Cite as State v. Graves, 2015-Ohio-3696.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals No. L-14-1171
Appellee Trial Court No. CR0201302890
v.
Demetrias Graves DECISION AND JUDGMENT
Appellant Decided: September 11, 2015
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and David F. Cooper, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
OSOWIK, J.
{¶ 1} This is an appeal from a June 17, 2014 sentencing judgment of the Lucas
County Court of Common Pleas, following appellant’s plea pursuant to a plea agreement
to one count of murder, in violation of R.C. 2903.02(B), an unclassified felony. The
scope of this appeal is limited to the propriety of the imposition of costs and fines in the
course of sentencing appellant. For the reasons set forth below, this court affirms the
judgment of the trial court. {¶ 2} Appellant, Demetrias Graves, sets forth the following two assignments of
error:
I. The trial court committed plain error to the prejudice of appellant
at sentencing by imposing court costs and financial sanctions without
proper notification in consideration of Appellant’s ability to pay.
II. Appellant received ineffective assistance of counsel in violation
of his rights under the Sixth and Fourteenth Amendments to the United
States Constitution and Article I, §10 of the Constitution of the State of
Ohio.
{¶ 3} The following undisputed facts are relevant to this appeal.
{¶ 4} On October 23, 2013, appellant and his girlfriend, Mariah Wells, traveled to
the home of appellant’s mother located in central Toledo. The pair traveled to Toledo
from their home in Newark, Ohio, after being contacted by appellant’s mother in
connection to the disappearance of appellant’s younger brother. Appellant was 27 years
of age, had been educated at Woodward High School through the 10th grade, and had
recently been employed at a car lot.
{¶ 5} Upon their arrival, appellant’s mother, aunt, and three additional women
were present at the house. Subsequently, a heated argument between appellant, his
mother, his aunt, and the three women transpired related to the disappearance of
appellant’s brother. Appellant’s mother, girlfriend, and the three young women left the
home and went outside towards the street. Shortly thereafter, appellant came outside and
2. began to fire a 9 mm weapon in the direction of the women. One of the women sustained
a wound in the vicinity of her right eye. Appellant’s girlfriend was struck in the upper
left back and was killed.
{¶ 6} On November 4, 2013, appellant was indicted on one count of murder with a
firearm specification, in violation of R.C. 2903.02(B), an unclassified felony, three
counts of felonious assault with a firearm specification, in violation of R.C.
2903.11(A)(2), felonies of the second degree, and one count of improperly discharging a
firearm, in violation of R.C. 2923.161(A)(1), a felony of the second degree.
{¶ 7} On November 12, 2013, appellant was arraigned and counsel was appointed.
On January 10, 2014, the trial court granted appellant’s motion for funds to be
appropriated for an investigator to be retained in the matter. On March 4, 2014,
appellant’s motion was granted to receive additional investigator funds. In the interim,
several pretrial hearings were scheduled and conducted.
{¶ 8} On May 29, 2014, pursuant to a negotiated plea agreement, appellant pled no
contest to one count of murder, in violation of R.C. 2903.02(B), an unclassified felony.
In exchange, the remaining four pending felony charges were dismissed. A presentence
investigation report was ordered.
{¶ 9} On June 17, 2014, appellant was sentenced to a term of incarceration of 15
years to life. Of relevance to this appeal, during the course of sentencing, costs and fines
were imposed against appellant. Notably, no objection was made in response to the
imposition of costs and fines. This appeal ensued.
3. {¶ 10} In the first assignment of error, appellant maintains that the trial court
imposition of costs and fines constituted plain error. In support, appellant maintains that
the trial court improperly failed to consider appellant’s ability to pay. We do not concur.
{¶ 11} R.C. 2947.23(A)(1)(a), establishes, “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.”
{¶ 12} It is well-established, given the above-referenced statutory framework for
the imposition of costs at a criminal sentencing, that defendants are required to submit
any motions to the trial court seeking consideration of waiver regarding fines and costs at
the time of sentencing. If this is not done, the issue is thereby waived and is rendered
res judicata. State v. Winfield, 6th Dist. Lucas No. L-13-1251, 2014-Ohio-3968, ¶ 6.
{¶ 13} The record in the instant case clearly reflects that appellant did not object to
the issue of financial sanctions at sentencing. Accordingly, appellant’s first assignment
of error fails pursuant to res judicata.
{¶ 14} However, even assuming arguendo that res judicata does not bar the first
assignment of error, it nevertheless fails on the merits. We have carefully reviewed and
considered the record of evidence, paying particular attention to any facts relevant to the
underlying issue of appellant’s ability to pay.
{¶ 15} We find that the record of evidence before the trial court clearly
encompassed sufficient evidence to enable the trial court to clearly and convincingly
4. support the determination that appellant possessed the ability to pay. Notably, the record
reflects that appellant was 27 years of age, had attended Woodward High School through
the 10th grade, and had previously possessed employment with several different area
employers. Nothing in the record evidences inability to work on any basis.
{¶ 16} Accordingly, given appellant’s age, educational level, literacy, and
employment history, we find that the record possessed sufficient evidence in support of
the disputed trial court finding. Wherefore, we find appellant’s first assignment of error
not well-taken.
{¶ 17} In appellant’s second assignment of error, appellant concludes,
“[A]ppointed counsel was ineffective by failing to raise an objection to the trial court’s
imposition of financial sanctions, costs and fees.”
{¶ 18} It is well-established that claims of ineffective assistance of counsel are
reviewed pursuant to the standard established in Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to prevail on an ineffective assistance of
counsel claim, it must be demonstrated that counsel’s performance was so deficient as to
not be reasonable and that but for the deficient performance, the outcome of the case
would have been different. State v. Chaney, 6th Dist. Lucas No. L-14-1161, 2015-Ohio-
3293, ¶ 17.
{¶ 19} Appellant’s claim of ineffective assistance of counsel in the second
assignment of error is wholly prefaced upon the notion that the failure to object to the
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[Cite as State v. Graves, 2015-Ohio-3696.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals No. L-14-1171
Appellee Trial Court No. CR0201302890
v.
Demetrias Graves DECISION AND JUDGMENT
Appellant Decided: September 11, 2015
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and David F. Cooper, Assistant Prosecuting Attorney, for appellee.
Lawrence A. Gold, for appellant.
OSOWIK, J.
{¶ 1} This is an appeal from a June 17, 2014 sentencing judgment of the Lucas
County Court of Common Pleas, following appellant’s plea pursuant to a plea agreement
to one count of murder, in violation of R.C. 2903.02(B), an unclassified felony. The
scope of this appeal is limited to the propriety of the imposition of costs and fines in the
course of sentencing appellant. For the reasons set forth below, this court affirms the
judgment of the trial court. {¶ 2} Appellant, Demetrias Graves, sets forth the following two assignments of
error:
I. The trial court committed plain error to the prejudice of appellant
at sentencing by imposing court costs and financial sanctions without
proper notification in consideration of Appellant’s ability to pay.
II. Appellant received ineffective assistance of counsel in violation
of his rights under the Sixth and Fourteenth Amendments to the United
States Constitution and Article I, §10 of the Constitution of the State of
Ohio.
{¶ 3} The following undisputed facts are relevant to this appeal.
{¶ 4} On October 23, 2013, appellant and his girlfriend, Mariah Wells, traveled to
the home of appellant’s mother located in central Toledo. The pair traveled to Toledo
from their home in Newark, Ohio, after being contacted by appellant’s mother in
connection to the disappearance of appellant’s younger brother. Appellant was 27 years
of age, had been educated at Woodward High School through the 10th grade, and had
recently been employed at a car lot.
{¶ 5} Upon their arrival, appellant’s mother, aunt, and three additional women
were present at the house. Subsequently, a heated argument between appellant, his
mother, his aunt, and the three women transpired related to the disappearance of
appellant’s brother. Appellant’s mother, girlfriend, and the three young women left the
home and went outside towards the street. Shortly thereafter, appellant came outside and
2. began to fire a 9 mm weapon in the direction of the women. One of the women sustained
a wound in the vicinity of her right eye. Appellant’s girlfriend was struck in the upper
left back and was killed.
{¶ 6} On November 4, 2013, appellant was indicted on one count of murder with a
firearm specification, in violation of R.C. 2903.02(B), an unclassified felony, three
counts of felonious assault with a firearm specification, in violation of R.C.
2903.11(A)(2), felonies of the second degree, and one count of improperly discharging a
firearm, in violation of R.C. 2923.161(A)(1), a felony of the second degree.
{¶ 7} On November 12, 2013, appellant was arraigned and counsel was appointed.
On January 10, 2014, the trial court granted appellant’s motion for funds to be
appropriated for an investigator to be retained in the matter. On March 4, 2014,
appellant’s motion was granted to receive additional investigator funds. In the interim,
several pretrial hearings were scheduled and conducted.
{¶ 8} On May 29, 2014, pursuant to a negotiated plea agreement, appellant pled no
contest to one count of murder, in violation of R.C. 2903.02(B), an unclassified felony.
In exchange, the remaining four pending felony charges were dismissed. A presentence
investigation report was ordered.
{¶ 9} On June 17, 2014, appellant was sentenced to a term of incarceration of 15
years to life. Of relevance to this appeal, during the course of sentencing, costs and fines
were imposed against appellant. Notably, no objection was made in response to the
imposition of costs and fines. This appeal ensued.
3. {¶ 10} In the first assignment of error, appellant maintains that the trial court
imposition of costs and fines constituted plain error. In support, appellant maintains that
the trial court improperly failed to consider appellant’s ability to pay. We do not concur.
{¶ 11} R.C. 2947.23(A)(1)(a), establishes, “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.”
{¶ 12} It is well-established, given the above-referenced statutory framework for
the imposition of costs at a criminal sentencing, that defendants are required to submit
any motions to the trial court seeking consideration of waiver regarding fines and costs at
the time of sentencing. If this is not done, the issue is thereby waived and is rendered
res judicata. State v. Winfield, 6th Dist. Lucas No. L-13-1251, 2014-Ohio-3968, ¶ 6.
{¶ 13} The record in the instant case clearly reflects that appellant did not object to
the issue of financial sanctions at sentencing. Accordingly, appellant’s first assignment
of error fails pursuant to res judicata.
{¶ 14} However, even assuming arguendo that res judicata does not bar the first
assignment of error, it nevertheless fails on the merits. We have carefully reviewed and
considered the record of evidence, paying particular attention to any facts relevant to the
underlying issue of appellant’s ability to pay.
{¶ 15} We find that the record of evidence before the trial court clearly
encompassed sufficient evidence to enable the trial court to clearly and convincingly
4. support the determination that appellant possessed the ability to pay. Notably, the record
reflects that appellant was 27 years of age, had attended Woodward High School through
the 10th grade, and had previously possessed employment with several different area
employers. Nothing in the record evidences inability to work on any basis.
{¶ 16} Accordingly, given appellant’s age, educational level, literacy, and
employment history, we find that the record possessed sufficient evidence in support of
the disputed trial court finding. Wherefore, we find appellant’s first assignment of error
not well-taken.
{¶ 17} In appellant’s second assignment of error, appellant concludes,
“[A]ppointed counsel was ineffective by failing to raise an objection to the trial court’s
imposition of financial sanctions, costs and fees.”
{¶ 18} It is well-established that claims of ineffective assistance of counsel are
reviewed pursuant to the standard established in Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to prevail on an ineffective assistance of
counsel claim, it must be demonstrated that counsel’s performance was so deficient as to
not be reasonable and that but for the deficient performance, the outcome of the case
would have been different. State v. Chaney, 6th Dist. Lucas No. L-14-1161, 2015-Ohio-
3293, ¶ 17.
{¶ 19} Appellant’s claim of ineffective assistance of counsel in the second
assignment of error is wholly prefaced upon the notion that the failure to object to the
financial sanctions at sentencing constituted plain error. Given our determination in
5. response to the first assignment of error that such claims are barred by res judicata and
further fail on the merits as the record encompasses sufficient evidence demonstrating
appellant’s ability to pay, we likewise find appellant’s second assignment of error to be
not well- taken. It cannot be demonstrated that the outcome of this matter would have
been different but for counsel’s failure to raise an objection on an issue where sufficient
evidence existed in support of the trial court action.
{¶ 20} Wherefore, we find that substantial justice has been done in this matter.
The judgment of the Lucas County Court of Common Pleas is hereby affirmed.
Appellant is ordered to pay the costs of this appeal pursuant to 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.
Arlene Singer, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ Stephen A. Yarbrough, P.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.sconet.state.oh.us/rod/newpdf/?source=6.
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