State v. Parks

2021 Ohio 3946

Opinion

[Cite as State v. Parks, 2021-Ohio-3946.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 28827 : v. : Trial Court Case Nos. 2018-CR-3046, : 2019-CR-2904, 2019-CR-3633 DELON RAVEIL PARKS : : (Criminal Appeal from Defendant-Appellant : Common Pleas Court) :

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OPINION

Rendered on the 5th day of November, 2021.

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

JEFFREY T. GRAMZA, Atty. Reg. No. 0053392, 101 Southmoor Circle NW, Kettering, Ohio 45429 Attorney for Defendant-Appellant

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WELBAUM, J. -2-

{¶ 1} Defendant-appellant, Delon Raveil Parks, appeals from a judgment of the

Montgomery County Court of Common Pleas, which imposed sentence after he violated

his community control sanctions in Montgomery C.P. Nos. 2018-CR-3046, 2019-CR-

2904, and 2019-CR-3633. In support of his appeal, Parks contends that his trial counsel

provided ineffective assistance by failing to move for the waiver of court costs at

sentencing. For the reasons outlined below, the judgments of the trial court will be

affirmed.

Facts and Course of Proceedings

{¶ 2} This appeal involves three cases from the Montgomery County Court of

Common Pleas: Case Nos. 2018-CR-3046, 2019-CR-2904, and 2019-CR-3633. In

Case No. 2018-CR-3046, Parks pled guilty to aggravated possession of drugs, a fifth-

degree felony. On July 31, 2019, Parks was sentenced to community control sanctions

for that offense. As part of Parks’ community control sanctions, the trial court ordered

Parks to comply with certain financial obligations, including the payment of court costs.

Approximately three months later, the trial court received a notice that Parks had violated

the conditions of his community control. On December 31, 2019, Parks admitted to the

violation, and the trial court reinstated Parks’ community control sanctions with the added

condition that Parks complete the MonDay Program.

{¶ 3} On the same day that Parks’ community control was reinstated, Parks pled

guilty to possession of cocaine, a fifth-degree felony, in Case No. 2019-CR-2904. Parks

also pled guilty to aggravated possession of drugs, a third-degree felony, in Case No. -3-

2019-CR-3633. On January 22, 2020, the trial court sentenced Parks to community

control sanctions for both of those cases. As part of Parks’ community control sanctions,

the trial court once again ordered Parks to comply with certain financial obligations,

including the payment of court costs. The aggravated possession offense in Case No.

2019-CR-3633 also included a mandatory fine; however, the trial court waived the fine on

grounds that Parks was indigent.

{¶ 4} On June 4, 2020, the trial court received notices that Parks had violated the

conditions of his community control in all three cases. On June 10, 2020, Parks admitted

to all of the alleged violations, and the trial court sentenced him to prison. For Case No.

2018-CR-3046 (aggravated possession of drugs – F5), the trial court imposed 12 months

in prison. For Case No. 2019-CR-2904 (possession of cocaine – F5), the trial court also

imposed 12 months in prison. For Case No. 2019-CR-3633 (aggravated possession of

drugs – F3), the trial court imposed 24 months in prison. The trial court ordered all three

sentences to be served concurrently for a total, aggregate term of 24 months in prison.

The trial court also ordered Parks to pay court costs. Parks then appealed.

{¶ 5} On appeal, Parks’ appellate counsel filed a brief under the authority of Anders

v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the absence

of any non-frivolous issues for appeal. We rejected Parks’ Anders brief and appointed

new appellate counsel due to the record on appeal being incomplete, as multiple

transcripts were not made part of the record. Parks’ newly appointed appellate counsel

thereafter supplemented the record with the missing transcripts and filed an appellate

brief asserting a single assignment of error for our review. -4-

Assignment of Error

{¶ 6} Under his sole assignment of error, Parks contends that his trial counsel

provided ineffective assistance by failing to move for the waiver of court costs at any of

the sentencing hearings held in Case Nos. 2018-CR-3046, 2019-CR-2904, and 2019-CR-

3633. Specifically, Parks argues that the trial court’s decision to waive his mandatory

fine at the January 22, 2020 sentencing hearing due to indigency demonstrates a

reasonable probability that the trial court would have also granted a motion to waive his

court costs. We disagree.

{¶ 7} “[W]hen 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, 141-142, 538 N.E.2d 373

(1989), which adopted the standard that had been announced in Strickland [v.

Washington, 446 U.S. 668, 194 S.Ct. 2052, 80 L.Ed.2d 674 (1984)], for determining

whether a defendant received ineffective assistance of counsel.” State v. Davis, 159

Ohio St.3d 31, 2020-Ohio-309, 146 N.E.3d 560, ¶ 1. Under that standard, “[i]n order to

prevail on an ineffective-assistance-of-counsel claim, a defendant must prove that

counsel’s performance was deficient and that the defendant was prejudiced by counsel’s

deficient performance.” Id. at ¶ 10, citing Bradley at 141-142 and Strickland at 687. The

failure to make a showing of either deficient performance or prejudice defeats a claim of

ineffective assistance of counsel. Strickland at 697.

{¶ 8} To establish deficient performance, a defendant must show that his trial

counsel’s performance fell below an objective standard of reasonable representation.

Strickland at 688; Bradley at 142. To establish prejudice, a defendant must show that -5-

there is “a reasonable probability that, but for counsel’s errors, the proceeding’s result

would have been different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892

N.E.2d 864, ¶ 204, citing Strickland at 687-688; Bradley at paragraph two of the syllabus.

More specifically, “when trial counsel fails to request that the trial court waive court costs

on behalf of a defendant who has previously been found to be indigent, 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 ¶ 16.

{¶ 9} “Under R.C. 2947.23, a trial court is required to impose court costs against

all convicted defendants, even those who are indigent.” State v. Tucker, 2d Dist.

Montgomery No. 27694, 2019-Ohio-652, ¶ 23, citing State v. White, 103 Ohio St.3d 580,

2004-Ohio-5989, 817 N.E.2d 393, ¶ 8. The trial court, however, has the discretion to

waive court costs if the defendant makes a motion to waive costs. State v. Swartz, 2d

Dist. Miami No. 2019-CA-17, 2020-Ohio-5037, ¶ 31, citing State v. Hawley, 2d Dist.

Montgomery No. 25897, 2014-Ohio-731, ¶ 13. There is no limit on when a defendant

can move for a waiver of court costs. State v. West, 2d Dist. Greene No. 2015-CA-72,

2017-Ohio-7521, ¶ 31. R.C. 2947.23(C) provides that the trial court “retains jurisdiction

to waive, suspend, or modify the payment of the costs of prosecution * * *, at the time of

sentencing or at any time thereafter.”

{¶ 10} The Supreme Court of Ohio in Davis, 159 Ohio St.3d 31, 2020-Ohio-309,

146 N.E.3d 560 explained that:

An appellate court’s reliance on the fact that a defendant may move -6-

for a waiver of costs at a later time under R.C. 2947.23(C) in its prejudice

analysis is improper. Whether the defendant may move for a waiver of

court costs at a later time has little or no bearing on whether the trial court

would have granted a motion to waive court costs at the time of sentencing.

The enactment of R.C. 2947.23(C) did not change how courts of appeals

should evaluate the prejudice prong of the ineffective-assistance-of-counsel

analysis. The analysis remains the same: a court must review the facts

and circumstances of each case objectively and determine whether

the defendant demonstrated a reasonable probability that had his

counsel moved to waive court costs, the trial court would have

granted that motion.

To evaluate whether a defendant has been prejudiced, as part of an

ineffective-assistance-of-counsel claim, a court does not assess whether

the defendant was simply harmed by counsel’s alleged deficient

performance. More specifically, the court does not analyze whether the

defendant has been required to pay court costs at a given moment * * *, or

even whether the defendant has the ability to have court costs waived in the

future. Furthermore, 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, contrary to the Eighth District’s holding in [State v. Gibson, 8th Dist.

Cuyahoga No. 104363, 2017-Ohio-102] and in [State v. Springer, 8th Dist.

Cuyahoga No. 104649, 2017-Ohio-8861]. See State v. Dean, 146 Ohio -7-

St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 233; State v. Smith, 12th Dist.

Warren No. CA2010-06-057, 2011-Ohio-1188, ¶ 63-64 (an indigent

defendant fails to show that there is a reasonable probability that the trial

court would have waived costs when the trial court made a finding that the

defendant had the ability to work and therefore had the ability to pay the

costs in the future), rev’d in part on other grounds, 131 Ohio St.3d 297,

2012-Ohio-781, 964 N.E.2d 423. The court of appeals, instead, must

look at all the circumstances that the defendant sets forth in

attempting to demonstrate prejudice and determine whether there is a

reasonable probability that the trial court would have granted a motion

to waive costs had one been made.

(Emphasis added.) Davis at ¶ 14-15. Accord Swartz, 2d Dist. Miami No. 2019-CA-17,

2020-Ohio-5037, at ¶ 32.

{¶ 11} As previously noted, Parks argues that the trial court’s decision to waive his

mandatory fine at the January 22, 2020 sentencing hearing due to indigency

demonstrates that there was a reasonable probability that the trial court would have also

granted a motion to waive his court costs at any one of his sentencing hearings in Case

Nos. 2018-CR-3046, 2019-CR-2904, and 2019-CR-3633. A similar argument was

rejected by the Fifth District Court of Appeals in State v. Ramsey, 5th Dist. Licking No.

17-CA-76, 2020-Ohio-3107. The appellant in Ramsey relied on the trial court’s finding

that he was indigent and appointed him defense counsel and waived the payment of a

mandatory fine to support his argument that there was a reasonable probability that the

trial court would have waived court costs if a motion had been made. Id. at ¶ 15. In -8-

rejecting that argument, the Fifth District relied on the Supreme Court of Ohio’s decision

in Davis holding that “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 ¶ 8 and ¶ 15, quoting Davis at ¶ 15.

{¶ 12} After reviewing the record, which included a presentence investigation

report (“PSI”), the Fifth District found that although the appellant in Ramsey was

unemployed, he would “sub-contract and work on cars” and thus “[had] the ability to earn

an income after his release from prison and pay his court costs.” Id. at ¶ 16. Because

the appellant in Ramsey did not present any further facts or circumstances to support a

finding that there was a reasonable probability that the trial court would have granted a

motion to waive court costs, the court in Ramsey concluded that the appellant failed to

establish prejudice and thus denied appellant’s ineffective assistance of counsel claim.

Id. at ¶ 15-19.

{¶ 13} We agree with the aforementioned analysis set forth in Ramsey.

Therefore, like Ramsey, we find that simply because the trial court in this case waived

Parks’ mandatory fine based on indigency does not by itself create a reasonable

probability that the trial court would have granted a motion to waive court costs had one

been made during one of Parks’ sentencing hearings. Parks has not provided any other

facts or circumstances indicating that the trial court would have granted a motion to waive

court costs. The PSI established that Parks was only 46 years old at the time of

sentencing and was not physically or mentally incapable of working or paying costs in the

future. Although the PSI indicated that Parks suffered from “waistline whiplash” due to

slipping on black ice, as well as from depression and suicidal ideations, Parks -9-

nevertheless reported being employed at Labor Works since 2019 and at Ohio Energy

since 2010. Parks also reported that he was previously employed by Rogers & Sons

Construction between 1992 and 2012, that he obtained his GED in 1992, and that he

attended community college in 2011 and 2012. Therefore, when considering Parks’

ability to work and earn income, it would be at best speculative to find that the trial court

would have granted a motion to waive court costs. See West, 2d Dist. Greene No. 2015-

CA-72, 2017-Ohio-7521, at ¶ 32.

{¶ 14} For the foregoing reasons, we find that Parks failed to establish any

prejudice arising from his trial counsel’s failure to move for a waiver of court costs at

sentencing. Because Parks failed to establish prejudice, his ineffective assistance of

counsel claim lacks merit.

{¶ 15} Parks’ sole assignment of error is overruled.

Conclusion

{¶ 16} Having overruled Parks’ assignment of error, the judgments of the trial court

are affirmed.

TUCKER, P.J. and HALL, J., concur.

Copies sent to:

Mathias H. Heck, Jr. Andrew T. French Jeffrey T. Gramza Delon Raveil Parks -10-

Hon. Dennis J. Adkins