[Cite as State v. Willison, 2019-Ohio-220.]
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ATHENS COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : Case No. 18CA18
v. : DECISION AND MATTHEW WAYNE WILLISON, : JUDGMENT ENTRY
Defendant-Appellant. : RELEASED 01/17/2019
APPEARANCES:
James A. Anzelmo, Anzelmo Law, Gahanna, Ohio, for defendant-appellant.
Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. Saunders, Athens County Assistant Prosecuting Attorney, Athens, Ohio, for plaintiff-appellee.
Hoover, J. {¶1} Matthew Wayne Willison pleaded guilty to trafficking in heroin in the Athens
County Court of Common Pleas. After accepting the plea, the trial court found him guilty,
imposed a nine-month prison sentence, and ordered that he pay court costs. On appeal, Willison
contends that his guilty plea was not entered knowingly, intelligently, and voluntarily; and that
he received ineffective assistance of counsel.
{¶2} For the following reasons, we conclude that both of Willison’s assignments of
error are without merit, and affirm the judgment of the trial court.
I. Facts and Procedural History Athens App. No. 18CA18 2
{¶3} The State indicted Willison on a single count of trafficking in heroin in an amount
less than one gram in violation of R.C. 2925.03(A)(1), a felony of the fifth degree. He pleaded
not guilty.
{¶4} On June 13, 2018, a change-of-plea hearing was held. Counsel informed the court
that a negotiated plea agreement had been reached and summarized that agreement as follows:
[Prosecuting Attorney:] * * * It’s my understanding that the Defendant will plead
guilty to the indictment charging him with one count of trafficking in heroine
[sic]. Violation of 2925.03(A)(1), a felony of the fifth degree. The facts that gave
rise to this matter on or about April the 17th of this year, of last year, Defendant
sold half a gram of heroine [sic] to a confidential informant from his home in
Chauncey in Athens County, Ohio for $100.00. There would be a joint sentence
agreement that the Defendant serve six months in prison with no early release and
costs be payable $25.00 per month within twelve months of sentencing. DNA
collection and three years of optional post release control. The Defendant does not
fall under TCAP as it’s a drug trafficking offense which takes him out of TCAP.
He’s previously been to prison as well and so uh, a prison sentence would be
appropriate for this Defendant and that’s my understanding of the agreement.
***
[The Court:] Good. Mr. Francis.
[Defense Attorney:] Uh, yes your honor. We are going to change our plea from
not guilty to guilty of the original charge of F5 trafficking. Mr. Driscoll correctly
stated the agreement for the stated offense. The agreement is six months prison. Athens App. No. 18CA18 3
Sentence him today. Uh, give him credit for time previously served and obviously
he owes court costs and I believe that is everything. We are asking the Court to
sentence today and the defense will waive any PSI process. Thank you your
honor.
[The Court:] Mr. Willison you’ve heard what your attorney said. Is this what you
wish to do?
[Willison:] Yes sir.
{¶5} A “Plea of Guilty[,] Judgment Entry of Guilty” document was also filed on June
13, 2018. The document, signed by Willison, summarized the negotiated plea agreement as
follows:
I understand the nature of these charges and the possible defenses I might have. I
am satisfied with my attorney’s advice regarding any defenses I might have. I am
satisfied with my attorney’s advice, counsel and competence. I am not now under
the influence of drugs or alcohol. No threats have been made to me. No promises
have been made to me, except as part of this plea agreement, stated entirely as
follows: Defendant will plead guilty to the indictment and stipulate to the
facts in the indictment, bill of particulars, and sufficient facts for a finding of
guilt. As Defendant was indicted for Drug Trafficking, this takes the sentence
out of the requirements of TCAP; Defendant has previously been convicted
of a felony offense, and previously has served a prison term. AGREED and
JOINT sentencing recommendation of: Six Months prison; Court costs
payable at a rate of no less than $25/month within 12 months of sentencing; Athens App. No. 18CA18 4
DNA collection; and 3 years of optional post-release control. Defendant
agrees not to file for judicial release or accept any other kind of early release,
including but not limited to transitional control or intensive program prison.
The State’s agreement is contingent upon Defendant following his bond
conditions, being a law abiding citizen, complying with the PSI process and
any other negotiated terms. Sentence today.
(Emphasis sic.)
{¶6} Willison subsequently entered a plea of guilty to trafficking in heroin in violation
of R.C. 2925.03(A)(1), a felony of the fifth degree. The trial court then engaged in a Crim.R. 11
plea colloquy; and having been satisfied that Willison voluntarily, intelligently, and knowingly
entered his plea, the court found him guilty. The matter was set to proceed immediately to
sentencing; but prior to the commencement of sentencing, Willison requested that he be granted
a furlough to procure storage space for his personal belongings. The State opposed the furlough
request, noting that the negotiated plea agreement required that Willison be sentenced
immediately, and that Willison had shown up to court in the past under the influence of drugs. In
the alternative, the State proposed that should Willison be granted a furlough and return to court
for sentencing with a positive drug screening, or fail to return, the State would recommend a 12-
month prison sentence. Willison agreed to the State’s modification of the agreement; the trial
court granted the furlough; and the court ordered that he be given a drug screen before leaving so
that a baseline as to what drugs were already in his system could be established. The baseline
drug test revealed the presence of methamphetamine, marijuana, and benzodiazepine in his
system. Athens App. No. 18CA18 5
{¶7} On June 18, 2018, Willison appeared for his sentencing hearing, was given a new
drug test, and tested positive for methamphetamine. Willison claimed that he did not use drugs
while on furlough and that the positive screening must have been a residual result. The State
countered that because his baseline test included positive results for methamphetamine,
marijuana, and benzodiazepine, but his result on the day of re-testing only included a positive
result for methamphetamine, then he must have used methamphetamine while on furlough. As
such, the State recommended that Willison be sentenced to 12 months in prison, while defense
counsel requested that he only receive 6 months imprisonment.
{¶8} Ultimately, the trial court sentenced Willison to a total of nine months in prison.
The trial court also ordered Willison to pay court costs. His conviction and sentence were
journalized by way of entry dated June 18, 2018. Willison filed a timely notice of appeal.
II. Assignments of Error
{¶9} Willison assigns the following errors for our review:
First Assignment of Error:
Matthew Willison did not knowingly, intelligently and voluntarily enter his guilty plea to drug trafficking, in violation of his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution and Section 16, Article I of the Ohio Constitution. Second Assignment of Error:
Willison 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.
III. Law and Analysis
A. Validity of Guilty Plea Athens App. No. 18CA18 6
{¶10} In his first assignment of error, Willison contends that he was deprived of his
right to due process because he did not enter his plea knowingly, intelligently, and voluntarily. In
particular, Willison argues that his guilty plea was unknowing, unintelligent, and involuntary
because (1) he was under the influence of multiple drugs at the plea hearing; and (2) the trial
court accepted the State’s modified terms to the plea bargain, following his request for a
furlough, without conducting a new Crim.R. 11 colloquy or otherwise confirming that he
understood the nature of the modified plea agreement and the ramifications of the modified plea
agreement.
{¶11} “ ‘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. 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). In determining whether a guilty or no
contest plea was entered knowingly, intelligently, and voluntarily, an appellate court examines
the totality of the circumstances through a de novo review of the record to ensure that the trial
court complied with constitutional and procedural safeguards. State v. Cooper, 4th Dist. Athens
No. 11CA15, 2011-Ohio-6890, ¶ 35.
{¶12} “Crim.R. 11(C) governs the process that a trial court must use before accepting a
felony plea of guilty or no contest.” Veney at ¶ 8. 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, 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 Athens App. No. 18CA18 7
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 both inform and 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).
{¶13} Substantial compliance with Crim.R. 11(C)(2)(a) and (b) is sufficient for a valid
plea because they do not involve constitutional rights. Veney at ¶ 14. “ ‘Substantial compliance
means that, under the totality of the circumstances, appellant subjectively understood the
implications of his plea and the rights he waived.’ ” State v. McDaniel, 4th Dist. Vinton No.
09CA677, 2010–Ohio–5215, ¶ 13, quoting State v. Vinson, 10th Dist. Franklin No. 08AP–903,
2009–Ohio–3240, ¶ 6.
{¶14} But 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. 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). A guilty plea that is not entered into knowingly, intelligently, and
voluntarily is void. State v. Moore, 165 Ohio App.3d 538, 2006–Ohio–114, 847 N.E.2d 452, ¶ 22
(4th Dist.), citing McCarthy v. United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418
(1969). Athens App. No. 18CA18 8
{¶15} Willison first argues that he did not knowingly, intelligently, and voluntarily
make his guilty plea because he was under the influence of drugs when he entered it.
{¶16} Recently, in State v. Howland, 4th Dist. Highland No. 17CA3, 2018-Ohio-613,
this court was faced with a near identical argument. In Howland, the defendant pleaded guilty to
possession of methamphetamine. Id. at ¶ 3. The trial court conducted a Crim.R. 11 colloquy, and
being satisfied that the defendant had voluntarily entered the plea and waived his constitutional
rights, it accepted his plea and convicted him. Id. On appeal, the defendant argued that he did not
knowingly, intelligently, and voluntarily make his guilty plea because “he was under the
influence of methamphetamine and ‘ICE,’ as well as being sleep deprived, when he entered it.”
Id. at ¶ 9. We denied the appeal and affirmed the trial court’s judgment, concluding that the
record did not support defendant’s claim of impaired judgment where defendant denied being
under the influence of drugs or alcohol at the plea hearing and appeared coherent during the
Crim.R. 11 colloquy. Id. at ¶ 12; see also State v. Jacobson, 4th Dist. Adams No. 01CA730,
2003-Ohio-1201, ¶ 8 (holding similarly).
{¶17} Here, other than the positive drug screen, Willison cites to nothing in the record
that indicates he was under the influence of drugs to the point that he could not understand the
plea proceedings. Following the parties recitation of the plea agreement, the trial court asked
Willison “Is this what you wish to do?” and Willison responded “Yes sir.” The trial court asked
“Your not under the influence of any drug or alcohol as you sit here today are you?” and
Willison responded “No.” The record further shows that the trial court conducted a proper
Crim.R. 11 plea colloquy. Willison’s responses were clear and unequivocal; and he responded
each time that he understood the trial court’s statements and questions. Wilson even had the
wherewithal to ask the trial court for a furlough before the commencement of sentencing so he Athens App. No. 18CA18 9
could retrieve his personal belongings and place them in storage. Finally, the trial court noted at
the plea hearing that Willison “look[s] good today[,] * * * this is the best I’ve seen you look in a
long time[.]” Based upon this record, we conclude that Willison’s assertion that his plea was not
entered knowingly, intelligently, and voluntarily because he was under the influence of drugs, is
without merit.
{¶18} Next, Willison contends that his plea was not knowingly, intelligently, and
voluntarily made because following his request for the furlough the State modified the terms of
the plea agreement, and the trial court accepted the modification without conducting a new
Crim.R. 11 plea colloquy with him to ensure that he understood the nature of the modified plea
agreement and the ramifications of the modified plea agreement.
{¶19} Again, this court was recently faced with a similar argument in State v. Billiter,
2018-Ohio-733, 106 N.E.3d 785 (4th Dist.). In Billiter, the defendant pleaded guilty to four drug
trafficking counts pursuant to a negotiated plea agreement. Id. at ¶ 4. Under the terms of the
negotiated plea agreement the defendant was to receive an aggregate three-year prison term with
eligibility for judicial release at two years. Id. The trial court conducted a Crim.R. 11 colloquy,
accepted the defendant’s plea, and found him guilty. Id. at ¶ 18-21. However, the trial court did
not immediately sentence the defendant, but rather granted him a conditional release so he could
witness the birth of his child. Id. at 21. Approximately one month later, the defendant returned
for sentencing and tested positive for heroin and suboxone, in violation of his release. Id. at ¶ 6,
22. The trial court then announced that the parties “renegotiate[d]” the plea agreement, and that
the defendant would now receive four years and six months imprisonment, with eligibility for
judicial release at three years. Id. at ¶ 6. The trial court inquired of defense counsel, the
prosecutor, and the defendant as to whether this was their understanding of the renegotiated Athens App. No. 18CA18 10
agreement, and all answered affirmatively. Id. at ¶ 7, 23. The trial court did not, however,
conduct a new Crim.R. 11 plea colloquy. See id. generally. Ultimately, the defendant was
sentenced to 54 months in prison. Id. at ¶ 8.
{¶20} On appeal, the defendant argued that his plea was not knowingly, intelligently,
and voluntarily made. Id. at ¶ 12. We rejected the argument, at ¶ 24, concluding:
[W]e find that the trial court complied with Crim.R. 11(C) during the initial plea
colloquy in September 2015. Even though the sentence was increased from that of
the original plea bargain, both parties agreed to the increased sentence. After
examining the totality of the circumstances, we determine that the trial court
complied with the constitutional and procedural safeguards and that [defendant’s]
plea was entered knowingly, intelligently, and voluntarily.
{¶21} In the case sub judice, as in Billiter, the trial court complied with the Crim.R.
11(C) requirements during the initial plea colloquy. Immediately following the colloquy, and just
before sentencing was to commence, Willison requested a furlough to take care of personal
matters. This prompted the State to modify its sentencing recommendation as part of the
negotiated plea agreement, because the original agreement was made on the basis that Willison
would be sentenced immediately. The terms of the modified agreement - that the State would
recommend a 12 month sentence if Willison returned from furlough with a positive drug test, or
six months if he returned with a clean test - were discussed openly, on the record, with the court,
prosecutor, defense counsel, and Willison all participating in the discussion. The trial court asked
Willison if he understood the terms of the modified agreement, to which Willison responded in
the affirmative. Given these circumstances, and the precedent established in Billiter, we conclude Athens App. No. 18CA18 11
that the trial court complied with the proper constitutional and procedural safeguards and that
Willison’s plea was entered knowingly, intelligently, and voluntarily.
{¶22} Based on the forgoing, we overrule Willison’s first assignment of error.
B. Assistance of Counsel
{¶23} In his second assignment of error, Willison contends that because he is an
indigent defendant with appointed counsel, his counsel provided ineffective assistance by failing
to request at the sentencing hearing that the trial court waive court costs.
{¶24} Criminal defendants have a right to counsel, including a right to the effective
assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763
(1970), fn. 14. To establish constitutionally ineffective assistance of counsel, a criminal
defendant must show (1) that his counsel’s performance was deficient and (2) that the deficient
performance prejudiced the defense and deprived him of a fair trial. Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Accord State v. Issa, 93
Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v. Goff, 82 Ohio St.3d 123, 139, 694 N.E.2d 916
(1998). “In order to show deficient performance, the defendant must prove that counsel’s
performance fell below an objective level of reasonable representation. To show prejudice, the
defendant must show a reasonable probability that, but for counsel’s errors, the result of the
proceeding would have been different.” State v. Conway, 109 Ohio St.3d 412, 2006–Ohio–2815,
848 N.E.2d 810, ¶ 95. “Failure to establish either element is fatal to the claim.” State v.
Jones, 4th Dist. Scioto No. 06CA3116, 2008–Ohio–968, ¶ 14.
{¶25} In all criminal cases the judge must include in the sentence the costs of
prosecution and render a judgment against the defendant for such costs, even if the defendant is
indigent. R.C. 2947.23(A)(1)(a); State v. White, 103 Ohio St.3d 580, 2004–Ohio–5989, 817 Athens App. No. 18CA18 12
N.E.2d 393, ¶ 8. However, the trial court retains jurisdiction to waive, suspend, or modify the
payment of the costs “at the time of sentencing or at any time thereafter.” R.C. 2947.23(C). The
trial court may waive court costs—but is not required—if the defendant is indigent. State v.
Hawkins, 4th Dist. Gallia No. 13CA3, 2014–Ohio–1224, ¶ 18; State v. Walker, 8th Dist.
Cuyahoga No. 101213, 2014–Ohio–4841, ¶ 9 (the discretion to waive court costs includes the
discretion not to waive them). Accord State v. Farnese, 4th Dist. Washington No. 15CA11,
2015–Ohio–3533, ¶ 12.
{¶26} “R.C. 2947.23 formerly required a defendant to request a waiver of costs at the
time of sentencing.” State v. Moore, 4th Dist. Scioto No. 15CA3717, 2016–Ohio–8274, ¶ 40,
citing State v. Threatt, 108 Ohio St.3d 277, 2006–Ohio–905, 843 N.E.2d 164, paragraph two of
the syllabus; State v. Brown, 8th Dist. Cuyahoga No. 103427, 2016–Ohio–1546, ¶ 14; Farnese at
¶ 15. However, the statute has been amended so that a defendant no longer must request a waiver
of costs at the time of sentencing. Now, 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.’ ” Moore at ¶ 40, citing R.C. 2947.23(C). “Thus, ‘a defendant is no longer required to
move for a waiver of court costs at the sentencing hearing or waive it.’ ” Id., citing Farnese at ¶
15. “As a result, ineffective assistance of trial counsel claims based upon a failure to request a
waiver of costs at the time of sentencing have become difficult—if not impossible—to
establish.” Id., citing Farnese at ¶ 15.
{¶27} Here, as initial matter, we note that Willison agreed to pay court costs as part of
the negotiated plea agreement. Thus, we cannot say that his counsel acted deficiently by filing to
request a waiver of court costs at sentencing. Nevertheless, even if we were to assume,
arguendo, that trial counsel acted deficiently by failing to request a waiver of costs at sentencing, Athens App. No. 18CA18 13
Willison cannot demonstrate prejudice. Moore at ¶ 42 (“[E]ven if [the court] could state that trial
counsel performed deficiently by failing to request a waiver at sentencing, appellant cannot
demonstrate prejudice. Appellant has not lost the ability to seek a waiver of costs [under R.C.
2947.23(C)].”); State v. Savage, 4th Dist. Meigs No. 15CA2, 2015–Ohio–4205, ¶ 32 (defendant
not precluded from now seeking waiver of the payment of costs based on claimed indigency
since R.C. 2947.23(C) was amended); State v. Williams, 3d Dist. Auglaize No. 2–13–31, 2014–
Ohio–4425, ¶ 17 (determining that any error trial counsel made by failing to object to costs at
sentencing not prejudicial when appellant retained the ability to seek waiver under court’s
continuing jurisdiction granted in R.C. 2947.23(C)). Accordingly, Willison is unable to
demonstrate a claim of ineffective assistance of counsel, and we overrule his second assignment
of error.
IV. Conclusion
{¶28} Having overruled both of Willison’s assignments of error, we affirm the trial
court’s judgment.
JUDGMENT AFFIRMED. Athens App. No. 18CA18 14
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs.
The Court finds that reasonable grounds existed for this appeal.
It is ordered that a special mandate issue out of this Court directing the Athens County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, J. and McFarland, J.: Concur in Judgment and Opinion.
For the Court
By: ____________________________ Marie Hoover, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.