State v. Davis

• Decision Date: 04 February 2020
• Docket Number: No. 2018-0312,2018-0312
• Citation: 146 N.E.3d 560,159 Ohio St.3d 31,2020 Ohio 309
• Parties: The STATE of Ohio, Appellee, v. DAVIS, Appellant.
• Court: Ohio Supreme Court

159 Ohio St.3d 31

146 N.E.3d 560

2020 Ohio 309

The STATE of Ohio, Appellee,

v.DAVIS, Appellant.

No. 2018-0312

Supreme Court of Ohio.

Submitted March 5, 2019

Decided February 4, 2020

William Hayes, Licking County Prosecuting Attorney, and Clifford J. Murphy, Assistant Prosecuting Attorney, for appellee.

Anzelmo Law and James A. Anzelmo, Columbus; and Durst Law Firm and Alexander J. Durst, Cincinnati, for appellant.

Timothy Young, Ohio Public Defender, and Nikki Trautman Baszynski, Assistant Public Defender, urging reversal for amicus curiae, Office of the Ohio Public Defender.

Fischer, J. {¶ 1} In this certified-conflict case, we are asked to determine whether trial counsel's failure to file a motion to waive court costs at a defendant's sentencing hearing constitutes ineffective assistance of counsel when the defendant has previously been found indigent. We decline to answer the certified-conflict question in either the affirmative or the negative. Rather, a court's finding of ineffective assistance of counsel depends on the facts and circumstances in each case. See Strickland v. Washington , 466 U.S. 668, 688-689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We hold that when 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 , for determining whether a defendant received ineffective assistance of counsel. If a court analyzes the prejudice prong, then it must consider the facts and circumstances of the case objectively to determine whether the defendant established the necessary prejudice sufficient to support that claim—i.e., but for counsel's deficient performance, there exists a reasonable probability that the result of the proceeding would have been different.

I. Background

{¶ 2} A jury found appellant, Benjamin A. Davis, guilty of assaulting a peace officer, a violation of R.C. 2903.13(A) and (C)(5). At Davis's sentencing hearing, the trial court imposed a prison term among other penalties and assessed court costs against Davis. Despite Davis's indigent status, defense counsel did not request that the trial court waive Davis's court costs.

{¶ 3} Davis appealed the judgment. He asserted that his trial counsel was ineffective for failing to request that the trial court waive Davis's court costs. To support his argument, Davis relied on State v. Springer , 8th Dist. Cuyahoga No. 104649, 2017-Ohio-8861, 2017 WL 6055504, in which the Eighth District Court of Appeals reaffirmed its decision in State v. Gibson , 8th Dist. Cuyahoga No. 104363, 2017-Ohio-102, 2017 WL 123309, and stated that "a prior finding by the trial court that a defendant was indigent demonstrated a reasonable probability that the trial court would have waived costs had counsel made a timely motion," Springer at ¶ 46.

{¶ 4} The Fifth District, in analyzing Davis's ineffective-assistance-of-counsel claim, rejected the Eighth District's rationale in Springer . Recognizing that Gibson relied on State v. Clevenger , 114 Ohio St.3d 258, 2007-Ohio-4006, 871 N.E.2d 589, an opinion from this court that predated the enactment of R.C. 2947.23(C) —which allows a trial court to waive the costs of prosecution at any time after sentencing—the Fifth District determined that Davis was "not prejudiced by trial counsel's failure to request waiver of costs at sentencing because he [was] not foreclosed from filing a request at a later time." 2017-Ohio-9445, 2017 WL 11316622, ¶ 31. The Fifth District thus determined that "the basis for a finding of ineffective assistance of counsel for failure to request that waiver no longer exists." Id.

{¶ 5} Subsequently, the Fifth District certified a conflict between its judgment and the Eighth District's judgment in Springer . This court accepted the following conflict question for review: " ‘Is trial counsel's failure to file a motion to waive court costs at sentencing ineffective assistance of counsel when defendant has previously been found indigent?’ " 152 Ohio St.3d 1441, 2018-Ohio-1600, 96 N.E.3d 297, quoting the court of appeals' February 13, 2018 judgment entry.

II. Analysis

A. Davis's right to assert ineffective assistance of counsel

{¶ 6} As a preliminary issue, the second dissenting opinion raises a concern over whether Davis has a constitutional right to assert ineffective assistance of counsel based on defense counsel's failure to request a waiver of court costs. We recognize that this issue was not raised by either party. Without either party having preserved that argument and without briefing, we decline to hold in this case that a defendant has no right to assert an ineffective-assistance claim based on counsel's failure to request a waiver of court costs.

{¶ 7} We recognize that court costs are not punishment, State v. Threatt , 108 Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, ¶ 15, superseded by statute as stated in State v. Braden , 158 Ohio St.3d 462, 2019-Ohio-4204, 145 N.E.3d 235, and are thus not a part of a sentence, State v. White , 156 Ohio St.3d 536, 2019-Ohio-1215, 130 N.E.3d 247, ¶ 14. However, under R.C. 2947.23(A)(1)(a), the General Assembly has nevertheless ordered trial courts to include the costs in an offender's sentence and judgment. Because R.C. 2947.23 costs are imposed at sentencing and because sentencing is a critical stage in which a felony offender has a right to counsel, State v. Schleiger , 141 Ohio St.3d 67, 2014-Ohio-3970, 21 N.E.3d 1033, ¶ 15 ; see also Gardner v. Florida , 430 U.S. 349, 358, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), an ineffective-assistance-of-counsel claim regarding counsel's failure to request a waiver of costs may be raised on appeal, as they are a particular result of the sentencing process. To hold otherwise would permit the parsing of the right to effective counsel to particular instances rather than to critical stages of proceedings. We decline to adopt such a ruling without the benefit of argument and briefing.

{¶ 8} We acknowledge the second dissenting opinion's concern regarding the impact of this interpretation on R.C. 2947.23(C) motions that are made after sentencing. But the treatment of those motions need not be addressed in this opinion. The only issue currently before this court is determining the correct analysis for whether defense counsel may be found ineffective for failing to request a waiver of an indigent client's court costs.

{¶ 9} Therefore, we proceed to address the certified-conflict question.

B. Appellate courts must apply the test announced in Bradley

{¶ 10} In 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. Bradley , 42 Ohio St.3d at 141-142, 538 N.E.2d 373 ; Strickland , 466 U.S. at 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. 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. See Bradley at paragraphs two and three of the syllabus. " ‘A reasonable probability is a probability sufficient to undermine confidence in the outcome.’ " Id. at 142, 538 N.E.2d 373, quoting Strickland at 694, 104 S.Ct. 2052.

{¶ 11} The conflict cases address the same question but reach different results, specifically as to the prejudice prong of the ineffective-assistance-of-counsel test. In Springer , the Eighth District determined that " ‘it is nearly impossible to establish prejudice as a result of counsel's failure to move for a waiver of costs at sentencing’ because under R.C. 2947.23(C), as amended in 2013, trial courts now retain jurisdiction to waive, suspend or modify the payment of court costs at any time." 2017-Ohio-8861, 2017 WL 6055504 at ¶ 45, quoting State v. Mihalis , 8th Dist. Cuyahoga No. 104308, 2016-Ohio-8056, 2016 WL 7157963, ¶ 33. The court found, however, that a narrow exception applied for indigent defendants: "a prior finding by the trial court that a defendant was indigent demonstrated a reasonable probability that the trial court would have waived costs had counsel made a timely motion." Springer at ¶ 46. After determining that counsel's performance was deficient and that Springer was prejudiced by counsel's deficient performance, the court determined that Springer had received ineffective assistance of counsel. Id.

{¶ 12} The Fifth District, on the other hand, rejected the argument that defense counsel was ineffective for failing to request that the trial court waive Davis's court costs due to his demonstrated indigency, relying solely on the prejudice prong of the ineffective-assistance-of-counsel analysis. 2017-Ohio-9445, 2017 WL 11316622 at ¶ 31 ; see also State v. Madrigal , 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000) ("A defendant's failure to satisfy one prong of the Strickland test negates a court's need to consider the other"). The Fifth District determined that Davis was "not prejudiced by trial counsel's failure to request waiver of costs at sentencing because he [was] not foreclosed from filing a request at a later time." 2017-Ohio-9445, 2017 WL 11316622 at ¶ 31.

{¶ 13} R.C. 2947.23(A)(1)(a) requires a trial court to impose the costs of prosecution against all convicted criminal defendants. White , 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, at ¶ 14. While the imposition of those costs is mandatory, the court may waive the payment of all costs when the defendant is determined to be indigent. Id. ; see also R.C. 2743.70, 2949.091, and 2949.092. R.C. 2947.23(C) permits the 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...