[Cite as State v. Watts, 2021-Ohio-4548.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2021-04-042
: OPINION - vs - 12/27/2021 :
CHRISTOPHER WATTS, :
Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 20CR37192
David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A. Brandt, Assistant Prosecuting Attorney, for appellee.
Anzelmo Law, and James A. Anzelmo, for appellant.
HENDRICKSON, J.
{¶1} Appellant, Christopher Watts, appeals the sentence he received in the Warren
County Court of Common Pleas after pleading guilty to aggravated possession of drugs.
For the reasons that follow, we affirm appellant's sentence.
{¶2} On February 11, 2021, appellant pled guilty to one count of aggravated
possession of drugs in violation of R.C. 2925.11(A), a felony of the fourth degree. The trial Warren CA2021-04-042
court ordered that a presentence investigative report (PSI) be prepared. Subsequently, on
April 7, 2021, the trial court sentenced appellant to three years of community control.
Appellant was ordered to complete a community based correctional facility program, follow
all aftercare recommendations, complete an inpatient drug treatment program, and
reimburse $150 to the Springboro Police Department. The trial court declined to impose a
fine on appellant but ordered him to pay the costs of prosecution, finding that appellant was
"reasonably expected in the future to have the means to pay" the costs. Appellant's
appointed counsel did not object to, or seek a waiver of, such costs.
{¶3} Appellant appealed, raising the following as his sole assignment of error:
{¶4} [APPELLANT] 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.
{¶5} Appellant argues his trial counsel was ineffective for not requesting that the
trial court waive court costs at the sentencing hearing. He contends there was a reasonable
probability the trial court would have waived court costs if counsel had made such a request
and, in support of his argument, notes that he is indigent, received appointed counsel, is
behind on his child support, and the trial court declined to impose a fine.
{¶6} "R.C. 2947.23(A)(1)(a) requires a trial court to impose the costs of prosecution
against all convicted criminal defendants." State v. Davis, 159 Ohio St.3d 31, 2020-Ohio-
309, ¶ 13, citing State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, ¶ 14. While the
statute requires a judge to assess costs against all convicted criminal defendants, "waiver
of costs is permitted – but not required – if the defendant is indigent." White at ¶ 14. R.C.
2947.23(C) permits a trial court "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 any time thereafter."
-2- Warren CA2021-04-042
{¶7} Recently, the Ohio Supreme Court clarified the test that should apply when
an indigent defendant makes an ineffective-assistance-of-counsel claim based on counsel's
failure to request a waiver of court costs, stating that "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, 104 S.Ct.
2052 (1984)], for determining whether a defendant received ineffective assistance of
counsel." Davis, 2020-Ohio-309 at ¶ 1. Under that standard, "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. "Thus, the defendant must
demonstrate that counsel's performance fell below an objective standard of reasonableness
and that there exists a reasonable probability that, but for counsel's error, the result of the
proceeding would have been different." Id., citing Bradley at paragraphs two and three of
the syllabus. Where trial counsel has failed to request that the trial court waive court costs
on behalf of a defendant who has previously been found 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." Id. at ¶ 16.
{¶8} In his appellate brief, appellant does not address the deficiency prong of his
ineffective-assistance-of-counsel claim. Instead, appellant focuses solely on the prejudice
prong of the analysis. However, "both deficient performance and prejudice are required to
justify reversal based on ineffective assistance of counsel." State v. Dean, 146 Ohio St.3d
106, 2015-Ohio-4347, ¶ 259, citing Strickland, 466 U.S. at 687. The failure to satisfy either
the deficiency prong or the prejudice prong of the test is fatal to a claim of ineffective
-3- Warren CA2021-04-042
assistance of counsel. State v. Madrigal, 87 Ohio St.3d 378, 389 (2000).
{¶9} It appears appellant would have this court presume deficient performance for
counsel's decision not to seek a waiver of court costs. We decline to do so. As a number
of our sister courts have noted, "'[t]rial 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. Elbin, 5th Dist. Muskingum
No. CT2019-0036, 2020-Ohio-1216, ¶ 16, quoting State v. Farnese, 4th Dist. Washington
No. 15CA11, 2015-Ohio-3533, ¶ 16 and State v. Purifoy, 2d Dist. Montgomery No. 28042,
2019-Ohio-2942, ¶ 28. See also State v. Miller, 6th Dist. Wood No. WD-20-047, 2021-Ohio-
3381, ¶ 18 (noting that trial counsel's decision not to request a waiver of court costs at
sentencing and instead postpone it until later is a matter of trial strategy); State v. Mihalis,
8th Dist. Cuyahoga No. 104308, 2016-Ohio-8056, ¶ 33 (noting strategic timing plays a role
in counsel's decision not to move for waiver of court costs at sentencing hearing); State v.
West, 2d Dist. Greene No. 2015-CA-72, 2017-Ohio-7521, ¶ 31 (noting trial counsel may
have decided as a matter of strategy not to seek waiver of court costs until a later date,
when the court had time to reflect upon its sanctions or the vividness of the impact of the
defendant's conduct had faded). We agree with our sister courts. "The timing of a motion
seeking waiver of payment [of court costs] is a matter of trial strategy." Elbin at ¶ 16, citing
State v. Southam, 6th Dist. Fulton No. F-18-004, 2018-Ohio-5288, ¶ 67. And "trial strategy,
even debatable trial strategy, is not a basis for finding ineffective assistance of counsel."
State v. Gillespie, 12th Dist. Warren No. CA2021-01-004, 2021-Ohio-3650, ¶ 70.
{¶10} Here, appellant's trial counsel was focused on persuading the trial court that
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[Cite as State v. Watts, 2021-Ohio-4548.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2021-04-042
: OPINION - vs - 12/27/2021 :
CHRISTOPHER WATTS, :
Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case No. 20CR37192
David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A. Brandt, Assistant Prosecuting Attorney, for appellee.
Anzelmo Law, and James A. Anzelmo, for appellant.
HENDRICKSON, J.
{¶1} Appellant, Christopher Watts, appeals the sentence he received in the Warren
County Court of Common Pleas after pleading guilty to aggravated possession of drugs.
For the reasons that follow, we affirm appellant's sentence.
{¶2} On February 11, 2021, appellant pled guilty to one count of aggravated
possession of drugs in violation of R.C. 2925.11(A), a felony of the fourth degree. The trial Warren CA2021-04-042
court ordered that a presentence investigative report (PSI) be prepared. Subsequently, on
April 7, 2021, the trial court sentenced appellant to three years of community control.
Appellant was ordered to complete a community based correctional facility program, follow
all aftercare recommendations, complete an inpatient drug treatment program, and
reimburse $150 to the Springboro Police Department. The trial court declined to impose a
fine on appellant but ordered him to pay the costs of prosecution, finding that appellant was
"reasonably expected in the future to have the means to pay" the costs. Appellant's
appointed counsel did not object to, or seek a waiver of, such costs.
{¶3} Appellant appealed, raising the following as his sole assignment of error:
{¶4} [APPELLANT] 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.
{¶5} Appellant argues his trial counsel was ineffective for not requesting that the
trial court waive court costs at the sentencing hearing. He contends there was a reasonable
probability the trial court would have waived court costs if counsel had made such a request
and, in support of his argument, notes that he is indigent, received appointed counsel, is
behind on his child support, and the trial court declined to impose a fine.
{¶6} "R.C. 2947.23(A)(1)(a) requires a trial court to impose the costs of prosecution
against all convicted criminal defendants." State v. Davis, 159 Ohio St.3d 31, 2020-Ohio-
309, ¶ 13, citing State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, ¶ 14. While the
statute requires a judge to assess costs against all convicted criminal defendants, "waiver
of costs is permitted – but not required – if the defendant is indigent." White at ¶ 14. R.C.
2947.23(C) permits a trial court "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 any time thereafter."
-2- Warren CA2021-04-042
{¶7} Recently, the Ohio Supreme Court clarified the test that should apply when
an indigent defendant makes an ineffective-assistance-of-counsel claim based on counsel's
failure to request a waiver of court costs, stating that "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, 104 S.Ct.
2052 (1984)], for determining whether a defendant received ineffective assistance of
counsel." Davis, 2020-Ohio-309 at ¶ 1. Under that standard, "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. "Thus, the defendant must
demonstrate that counsel's performance fell below an objective standard of reasonableness
and that there exists a reasonable probability that, but for counsel's error, the result of the
proceeding would have been different." Id., citing Bradley at paragraphs two and three of
the syllabus. Where trial counsel has failed to request that the trial court waive court costs
on behalf of a defendant who has previously been found 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." Id. at ¶ 16.
{¶8} In his appellate brief, appellant does not address the deficiency prong of his
ineffective-assistance-of-counsel claim. Instead, appellant focuses solely on the prejudice
prong of the analysis. However, "both deficient performance and prejudice are required to
justify reversal based on ineffective assistance of counsel." State v. Dean, 146 Ohio St.3d
106, 2015-Ohio-4347, ¶ 259, citing Strickland, 466 U.S. at 687. The failure to satisfy either
the deficiency prong or the prejudice prong of the test is fatal to a claim of ineffective
-3- Warren CA2021-04-042
assistance of counsel. State v. Madrigal, 87 Ohio St.3d 378, 389 (2000).
{¶9} It appears appellant would have this court presume deficient performance for
counsel's decision not to seek a waiver of court costs. We decline to do so. As a number
of our sister courts have noted, "'[t]rial 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. Elbin, 5th Dist. Muskingum
No. CT2019-0036, 2020-Ohio-1216, ¶ 16, quoting State v. Farnese, 4th Dist. Washington
No. 15CA11, 2015-Ohio-3533, ¶ 16 and State v. Purifoy, 2d Dist. Montgomery No. 28042,
2019-Ohio-2942, ¶ 28. See also State v. Miller, 6th Dist. Wood No. WD-20-047, 2021-Ohio-
3381, ¶ 18 (noting that trial counsel's decision not to request a waiver of court costs at
sentencing and instead postpone it until later is a matter of trial strategy); State v. Mihalis,
8th Dist. Cuyahoga No. 104308, 2016-Ohio-8056, ¶ 33 (noting strategic timing plays a role
in counsel's decision not to move for waiver of court costs at sentencing hearing); State v.
West, 2d Dist. Greene No. 2015-CA-72, 2017-Ohio-7521, ¶ 31 (noting trial counsel may
have decided as a matter of strategy not to seek waiver of court costs until a later date,
when the court had time to reflect upon its sanctions or the vividness of the impact of the
defendant's conduct had faded). We agree with our sister courts. "The timing of a motion
seeking waiver of payment [of court costs] is a matter of trial strategy." Elbin at ¶ 16, citing
State v. Southam, 6th Dist. Fulton No. F-18-004, 2018-Ohio-5288, ¶ 67. And "trial strategy,
even debatable trial strategy, is not a basis for finding ineffective assistance of counsel."
State v. Gillespie, 12th Dist. Warren No. CA2021-01-004, 2021-Ohio-3650, ¶ 70.
{¶10} Here, appellant's trial counsel was focused on persuading the trial court that
appellant was a good candidate for a community control sanction, rather than a prison term.
Trial counsel emphasized appellant's desire to work, make payments on his child support,
and obtain drug treatment. Counsel argued, in relevant part, "[appellant's] expressed to me
-4- Warren CA2021-04-042
his greatest desire is to keep any drug issues under control, stop them with intensive
outpatient, but stay employed and not get behind on child support, which will just add to the
stress that may drive him back to using. * * * [H]e'd like the chance to succeed or fail on
Community Control." Based on counsel's statements at sentencing, counsel may have
determined that appellant's interests would be best served by convincing the court to
impose a less severe sentence, rather than prioritizing a waiver of court costs. This
strategy, even if debatable, does not establish deficient performance or serve as the basis
for an ineffective-assistance-of-counsel claim. See State v. Holt, 6th Dist. Lucas No. L-19-
1101, 2020-Ohio-6650, ¶ 8-9 (finding counsel was not deficient for not asking for a waiver
of court costs where counsel focused on convincing the court to impose a less severe
sentence rather than prioritizing a waiver of court costs). Appellant has therefore failed to
demonstrate trial counsel provided deficient performance by not filing a motion to waive
court costs.
{¶11} Furthermore, even if we had concluded that trial counsel's failure to file a
motion to waive court costs amounted to deficient performance, appellant could still not
prevail on his ineffective-assistance-of-counsel claim as he has failed to demonstrate
prejudice. Though appellant was indigent and received appointed counsel, was significantly
behind in his child support obligations at the time of sentencing, and benefited from the trial
court's waiver of a fine, the record in the present case lacks evidence demonstrating a
reasonable probability that the trial court would have granted a request to waive court costs
had one been made.
{¶12} As the Ohio Supreme Court noted in Davis, "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." Davis, 2020-Ohio-309
at ¶ 15, citing Dean, 2015-Ohio-4347 at ¶ 233 and State v. Smith, 12th Dist. Warren No.
-5- Warren CA2021-04-042
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 I the future), rev'd in part on other grounds, 131 Ohio St.3d 297, 2012-Ohio-781.
Moreover, the waiver of a 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 [a defendant's] sentencing hearing." State v. Parks, 2d Dist. Montgomery
No. 28827, 2021-Ohio-3946, ¶ 13.
{¶13} The record in the present case, which included the PSI, letters appellant sent
to the trial court before sentencing, and statements defense counsel and appellant made to
the court at the sentencing hearing, support the trial court's express finding that appellant
was "reasonably expected in the future to have the means to pay" court costs. The PSI
established that appellant was only 46 years old at the time of sentencing and he was in
good health. Appellant had graduated from the Warren County Career Center with a
plumbing certificate and he had been employed as a maintenance worker since 2017.
Appellant indicated he had a desire to work and the hotel he had been working at was
holding his job for him. Therefore, given the evidence of appellant's ability to work and earn
an income, there is not a reasonable probability that the trial court would have waived court
costs had defense counsel sought such a waiver at the sentencing hearing. Appellant
cannot demonstrate prejudice. See Parks at ¶ 13 (finding it would be "at best speculative
to find the trial court would have granted a motion to waive court costs" where the record
demonstrated the defendant had the ability to work and earn an income); State v. Ramsey,
5th Dist. Licking No. 17-CA-76, 2020-Ohio-3107, ¶ 15-19 (finding a defendant could not
demonstrate that his trial counsel caused prejudice by not moving to waive court costs
where the record demonstrated the defendant had an ability to earn an income after his
-6- Warren CA2021-04-042
release from prison).
{¶14} Accordingly, for the reasons expressed above, we find appellant has failed to
satisfy both the deficiency prong and the prejudice prong of his ineffective-assistance-of-
counsel claim. Appellant's claim of ineffective assistance of counsel is without merit and
his sole assignment of error is overruled.
{¶15} Judgment affirmed.
PIPER, P.J., and S. POWELL, J., concur.
-7-