State v. Holbrook

2021 Ohio 4362

• Court: Ohio Court of Appeals
• Decided: December 13, 2021
• Docket: 1-21-32
• Status: Published

Opinion

[Cite as State v. Holbrook, 2021-Ohio-4362.]

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

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 1-21-32

v.

TERRY P. HOLBROOK, OPINION

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court Trial Court No. CR2019 0293

Judgment Reversed and Cause Remanded

Date of Decision: December 13, 2021

APPEARANCES:

Chima R. Ekeh for Appellant

Jana E. Emerick for Appellee Case No. 1-21-32

SHAW, J.

{¶1} Defendant-appellant, Terry P. Holbrook (“Holbrook”), brings this

appeal from the June 29, 2021, judgment of the Allen County Common Pleas Court

sentencing Holbrook to an aggregate eight-year prison term after Holbrook pled

guilty to six drug trafficking-related offenses. On appeal, Holbrook argues that he

received ineffective assistance of counsel to the limited extent that his attorney

failed to file an affidavit of indigency to avoid the imposition of mandatory fines.

Background

{¶2} On July 11, 2019, Holbrook was indicted for Trafficking in Cocaine in

violation of R.C. 2925.03(A)(1), a fifth degree felony (Count 1); Aggravated

Trafficking in Drugs in violation of R.C. 2925.03(A)(1), a third degree felony

(Count 2); Trafficking in Cocaine in violation of R.C. 2925.03(A)(1), a fifth degree

felony (Count 3); Aggravated Trafficking in Drugs in violation of R.C.

2925.03(A)(1), a third degree felony (Count 4); Trafficking in Cocaine in violation

of R.C. 2925.03(A)(1), a fourth degree felony (Count 5); and Aggravated

Trafficking in Drugs in violation of R.C. 2925.03(A)(1), a third degree felony

(Count 6).1 According to the bill of particulars, the charges stemmed from Holbrook

selling cocaine and/or methamphetamine on various dates from July 30, 2018, to

August 14, 2018.

1 Counts 5 and 6 carried a money forfeiture specification in the amount of $125 pursuant to R.C. 2941.1417.

-2- Case No. 1-21-32

{¶3} Holbrook initially entered pleas of not guilty to the charges; however,

on the day before his jury trial was scheduled to begin, Holbrook agreed to plead

guilty to the charges in the indictment. A Criminal Rule 11 hearing was held

wherein his guilty pleas were determined to be knowing, intelligent, and voluntary.

At the request of the parties, the matter proceeded directly to sentencing.

{¶4} During the sentencing hearing, defense counsel raised the issue of the

mandatory fines in this matter.

[DEFENSE COUNSEL]: Yes, your Honor. Thank you. I guess, first, I would like to address the mandatory fine. Now, typically in a case like this I would file a Motion to waive the mandatory fine. Obviously, this all got scheduled pretty quickly and we asked to go directly to sentencing. I didn’t have any time to prepare a Motion. But, my client has completed a financial disclosure form. I wasn’t sure if we could address that issue.

THE COURT: Yea. I can – I can go there because I do it on a regular basis and, again, because I know this was kind of thrown in at the last minute, we have an actual affidavit form that can be used specifically for an Affidavit of Indigency with respect to the mandatory drug fines. I don’t think the case law would allow using a regular Affidavit of Indigency for purposes of getting court-appointed counsel to apply. It needs to be specific. I have a form. Shelly would have that form. You could get that. It’s just a matter of filling it out real quickly. Mr. Holbrook could sign that Affidavit. If that gets – I don’t know if things will get file stamped today before four-thirty anyways, but if you file that with the Court I’ll deem that submitted in a timely manner. Okay?

[DEFENSE COUNSEL]: Thank you. Thank you, Your Honor.

(Tr. at 29-30).

-3- Case No. 1-21-32

{¶5} Following statements by defense counsel and by Holbrook, the trial

court pronounced Holbrook’s sentence. Holbrook was ordered to serve an

aggregate eight-year prison term.2 After specifically stating the prison terms, the

trial court continued, “There is [sic] mandatory fines on Counts Two, Four, and Six

of five thousand dollars. I’ll impose the minimum mandatory, but I’ll allow that to

be waived if you file an affidavit. I’m not going to impose any fines, discretionary

fines, on the other counts.” (Emphasis added.) (Tr. at 41).

{¶6} At the conclusion of the sentencing hearing, once the trial court had

finished pronouncing Holbrook’s sentence, more dialogue took place related to the

imposition of mandatory fines.

[PROSECUTOR]: Just a formality. Did you give [defense counsel] till four-thirty today to file her affidavit? Because it’s after four-thirty.

THE COURT: Yea. We can’t get it filed. I can’t get this filed.

[PROSECUTOR]: No, I don’t object to any extension.

THE COURT: If she can fill it out and get it signed today it will be filed in the morning.

[PROSECUTOR]: Yea. I just wanted to let you know I don’t object to any extension.

2 The breakdown of Holbrook’s prison term is as follows: six months in prison on Count 1; thirty months in prison on Count 2; six months in prison on Count 3; thirty months in prison on Count 4; twelve months in prison on Count 5; and thirty months in prison on Count 6. Counts 1 and 2 were ordered to be served concurrently with each other, and Counts 5 and 6 were ordered to be served concurrently with each other. With these exceptions, the prison terms were ordered to be served consecutively, for an aggregate ninety-six month prison term, or eight years. These prison terms were further ordered to be served consecutively to Holbrook’s current, unrelated prison term from a case in Hardin County.

-4- Case No. 1-21-32

THE COURT: Yea. I knew that when I said that because I figured we would go past four-thirty. But, if you want to pick up an affidavit and get that to me before tomorrow morning at eight o’clock when I file this I’ll consider it to be filed prior to sentencing. Sometime tomorrow morning.

[COURT REPORTER]: Sometime.

THE COURT: The Court Reporter is saying it will be hard to get this all done by eight o’clock tomorrow morning because she’ll get in at eight o’clock. All right. Then, the defendant will be remanded and we’ll stand adjourned.

(Tr. at 42-43).

{¶7} The sentencing hearing concluded and no Affidavit of Indigency

specifically with respect to the drug fines was ever filed.

{¶8} On July 29, 2021, a judgment entry memorializing Holbrook’s sentence

was filed. In addition to the prison terms, the written entry imposed $5,000

mandatory fines on Counts 2, 4, and 6; however, the written entry contained some

contradictory language related to the mandatory fines. Regarding the fines, the

entry first stated:

Upon the record before the Court and any evidence presented, and having considered the defendant’s present and future ability to pay, the Court finds that the defendant is able to pay a fine, and imposes a fine as listed.

* * * [fines for Counts 2, 4, 6 listed] * * *

(Doc. No. 114). However, the very next paragraph in the entry states:

Upon the record before the Court and any evidence presented, and having considered the defendant’s present and future ability

-5- Case No. 1-21-32

to pay, the Court finds that the defendant is indigent or otherwise is unable to pay and ORDERS that payment of the mandatory fine on COUNTS TWO, FOUR, and SIX in this case are not [sic] waived.

(Emphasis added.) (Id.) Thus the trial court made findings that Holbrook was both

able to pay his mandatory fines, and unable to pay his mandatory fines. Regardless

of making both findings, the trial court ordered Holbrook to pay the mandatory

fines. Holbrook now appeals the trial court’s judgment, asserting the following

assignment of error for our review.

Assignment of Error Appellant was denied the effective assistance of counsel when his trial counsel failed to file an affidavit of indigency pursuant to R.C. 2929.18(B)(1) to avoid the imposition of mandatory fines following his conviction.

{¶9} In his assignment of error, Holbrook argues that he received ineffective

assistance of trial counsel to the limited extent that trial counsel failed to file an

affidavit to waive the mandatory fines despite being prompted to do so by the trial

court. The State actually concedes that Holbrook’s assignment of error has merit,

stating, based on the facts in the record, “there is a reasonable probability that the

trial court would have found defendant indigent and waive the imposition of the

mandatory drug fines had defendant’s trial counsel actually filed the affidavit of

indigency.” (Appe.’s Br. at 7).

-6- Case No. 1-21-32

Standard of Review

{¶10} A defendant asserting a claim of ineffective assistance of counsel must

establish: (1) the counsel’s performance was deficient or unreasonable under the

circumstances; and (2) the deficient performance prejudiced the defendant. State v.

Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668,

687, 104 S.Ct. 2052 (1984). In the event of deficient or unreasonable performance,

prejudice results when “ ‘there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.’ ”

State v. Bradley, 42 Ohio St.3d 136, 142 (1989), quoting Strickland at 694; see also,

State v. Davis, 159 Ohio St.3d 31, 2020-Ohio-309, ¶ 10.

Analysis

{¶11} Revised Code 2929.18(B)(1) governs the imposition of mandatory

fines for certain drug-related offenses. It also contains a mechanism to avoid

imposition of those same mandatory fines. The statute reads as follows:

(B)(1) For a first, second, or third degree felony violation of any provision of Chapter 2925., 3719., or 4729. 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.

-7- Case No. 1-21-32

R.C. 2929.18(B)(1).

{¶12} We have previously held that “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, 3d Dist. Allen No. 1-15-49, 2016-Ohio-

987, ¶ 8 citing State v. Harrison, 3d Dist. Logan No. 8–14–16, 2015–Ohio–1419, ¶

92; See also, Davis, supra.

{¶13} Here, both Holbrook and the State agree that if an affidavit had been

filed in this matter, there was a reasonable probability that the trial court would have

found him indigent. The record supports the argument of the parties because

Holbrook had been found indigent multiple times in this case and he was

incarcerated during the pendency of this case for a crime he committed in Hardin

County. His affidavits of indigence showed no income and no assets.

{¶14} Furthermore, the trial court seemed acutely aware of Holbrook’s

indigency issues, attempting to prompt trial counsel to timely file an affidavit

compliant with R.C. 2929.18(B)(1) prior to the imposition of the final judgment

entry. However, trial counsel did not do so.

{¶15} We have previously held, in circumstances such as these, that a

reasonable probability exists that the trial court would have found a defendant

-8- Case No. 1-21-32

indigent and relieved the defendant of the obligation to pay mandatory fines if a

proper affidavit had been filed pursuant to R.C. 2929.18(B)(1). State v. Elrod, 3d

Dist. Allen No. 1-15-49, 2016-Ohio-987, ¶ 11. Given the facts of this case, the

State’s concession, and our own legal precedent, we are compelled to sustain

Holbrook’s assignment of error, but his sentence is reversed solely for the purpose

of permitting Holbrook to file an affidavit of indigency and resentence Holbrook

with regard to the fines once the affidavit is considered by the trial court.

Conclusion

{¶16} For the foregoing reasons, Holbrook’s assignment of error is sustained

and the judgment of the trial court is reversed and remanded for further proceedings

consistent with this opinion.

ZIMMERMAN and MILLER, J.J., concur.

/jlr

-9-