Ohio Cases July 19, 2023: State v. Ford

Case Description

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Appeal from the Court of Common Pleas, Case No. 21-CRI-023

For Plaintiff-Appellee CHRISTOPHER R. TUNNELL NADINE HAUPTMAN

For Defendant-Appellant BRIAN A. SMITH

Hon. Patricia A. Delaney, P.J. Hon. Craig R. Baldwin, J. Hon. Andrew J. King, J. Judge

OPINION

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King, J.

{¶ 1} Defendant-Appellant Bobbi Jo Ford appeals the August 31, 2022 judgment of the Ashland County Court of Common Pleas, which revoked her community control on technical violations and sentenced her to 90 days incarceration. Plaintiff-Appellee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶ 2} On February 11, 2023, the Ashland County Grand Jury returned an indictment charging Ford with one count of aggravated possession of drugs, a felony of the fifth degree. Ford sought treatment in lieu of conviction, however the trial court found she was not an appropriate candidate. Ford therefore pled guilty to the charge. On January 13, 2022 she was sentenced to 180 days in the Ashland County Jail and placed on community control for three years.

{¶ 3} Ford was released from jail on April 11, 2022. On April 22, 2022, probation officer Russell Daubenspeck filed community control violations alleging Ford failed to report to the probation office following her release from jail, changed her address without first obtaining permission to do so, and failed to report to or contact her probation officer. A hearing was held on August 30, 2022 at the conclusion of which the trial court found Ford had violated the conditions of her community control. Ford was sentenced to 90 days in prison. The trial court further terminated Ford's community control.

{¶ 4} Ford filed an appeal and the matter is now before this court for consideration. She raises three assignments of error as follow:

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I

{¶ 5} "THE TRIAL COURT ABUSED ITS DISCRETION IN FINDING APPELLANT TO HAVE VIOLATED TERMS AND CONDITIONS OF APPELLANT'S COMMUNITY CONTROL."

II

{¶ 6} "THE TRIAL COURT'S FAILURE TO WAIVE APPELLANT'S COURT COSTS WAS AN ABUSE OF DISCRETION."

III

{¶ 7} "THE FAILURE OF APPELLANT'S TRIAL COUNSEL TO SEEK A WAIVER OF COURT COSTS CONSTITUTED INEFFECTIVE ASSISTANCE OF COUNSEL, IN VIOLATION OF APPELLANT'S RIGHT TO COUNSEL UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION. "

I

{¶ 8} In her first assignment of error, Ford argues the trial court abused its discretion in finding she violated the terms and conditions of her community control. The state argues the first assignment of error is moot because Ford has already served her sentence. We agree with the state.

{¶ 9} "Mootness is a jurisdictional question because the Court 'is not empowered to decide moot questions or abstract propositions.'" United States v. Alaska S.S. Co ., 253 U.S. 113, 116, 40 S.Ct. 448, 449, 64 L.Ed. 808 (1920), quoting California v. San Pablo & Tulare R. Co. , 149 U.S. 308, 314, 13 S.Ct. 876, 878, 37 L.Ed. 747 (1893). Because mootness is a jurisdictional question, the question of mootness is one that must

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be addressed even if the parties do not raise it. North Carolina v. Rice , 404 U.S. at 246, 92 S.Ct. 92, 30 L.Ed.2d 244.

{¶ 10} Ohio courts have long exercised judicial restraint in cases that are not actual controversies. Fortner v. Thomas , 22 Ohio St.2d 13, 14, 257 N.E.2d 371, 372(1970). No actual controversy exists where a case has been rendered moot by an outside event. "It is not the duty of the court to answer moot questions, and when, pending proceedings in error in this court, an event occurs without the fault of either party, which renders it impossible for the court to grant any relief, it will dismiss the petition in error." Miner v. Witt , 82 Ohio St. 237, 92 N.E. 21(1910), syllabus; Tschantz v. Ferguson , 57 Ohio St.3d 131, 133, 566 N.E.2d 655(1991).

{¶ 11} In State v. Golston , 71 Ohio St.3d 224, 227, 643 N.E.2d 109 (1994), the Supreme Court of Ohio held:

Given the numerous adverse collateral consequences imposed upon convicted felons, it is clear to us that a person convicted of a felony has a substantial stake in the judgment of conviction which survives the satisfaction of the judgment imposed upon him or her. Therefore, an appeal challenging a felony conviction is not moot even if the entire sentence has been satisfied before the matter is heard on appeal. The collateral legal consequences associated with a felony conviction are severe and obvious. Thus, a convicted felon, who has completed his or her sentence during the pendency of an appeal from the felony conviction, need not present evidence that he or she

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will suffer some collateral legal disability or loss of civil rights in order to maintain the appeal.

{¶ 12} Emphasis added.

{¶ 13} "A collateral disability is an adverse legal consequence of a conviction or judgment that survives despite the court's sentence having been satisfied or served." Solon v. Bollin-Booth , 8th Dist. Cuyahoga No. 97099, 2012-Ohio-815, ¶ 11, citing In re S.J.K ., 114 Ohio St.3d 23, 2007-Ohio-2621, 867 N.E.2d 408, ¶ 10.

{¶ 14} Thus, pursuant to the holding in Golston , an appeal which challenges the actual felony conviction itself is not moot even if the entire sentence has been satisfied before the matter is heard on appeal. But Ford does not challenge her felony conviction. She pled guilty to and was convicted of aggravated possession of drugs on January 13, 2022. Instead, Ford challenges the revocation of her community control.

{¶ 15} Ford nonetheless states her argument is not moot because there is a collateral consequence associated with the trial court's finding that she violated her community control. Specifically, Ford argues that because the trial court sentenced her to prison rather than jail, she is now subject to a possible prison sentence if she is charged and convicted of certain fourth- or fifth-degree felonies in the future pursuant to R.C. 2929.13(B)(1)(b)(ix). That portion of the statute states a trial court has discretion to impose a prison sentence for certain fourth- or fifth-degree felonies "if the offender at the time of the offense was serving, or the offender previously had served a prison term." As this court has previously recognized, however, R.C. 2929.13(B)(1) only applies when "the offender previously has not been convicted of or pleaded guilty to a felony offense." State v. Mayle , 5th Dist. Muskingum No. CT2016-0014, 2016-Ohio-7499, ¶ 14. The statue

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requires the trial court to impose community control sanctions only when all of the following apply:

(i) The offender previously has not been convicted of or pleaded guilty to a felony offense.

(ii) The most serious charge against the offender at the time of sentencing is a felony of the fourth or fifth degree.

(iii) The offender previously has not been convicted of or pleaded guilty to a misdemeanor offense of violence that the offender committed within two years prior to the offense for which sentence is being imposed.

{¶ 16} Ford's presentence investigation is contained in the record. We have reviewed the presentence investigation and find Ford has previously pleaded guilty to felony offenses on two prior occasions. That being true, Ford was not eligible for mandatory community control sanctions when she entered her guilty plea in this matter. Her collateral consequences argument therefore also fails. Additionally, Ford did not request a stay of sentence pending this appeal and instead voluntarily served her sentence.

{¶ 17} For all of the forgoing reasons, the questions presented in the first assignment of error are moot as there is no relief which could be granted at this point. State v. Brock , 5th Dist. Licking No. 18-CA-10, 2018-Ohio-3404, ¶¶ 19-26; State v. Sharifi , 5th Dist. Delaware No. 18 CAA 08 0064, 2019-Ohio-1837 ¶¶ 22-23; State v. Verdream ,

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7th Dist. Mahoning No. 2003-Ohio-7284 ¶ 13, State v. Blivens , 11th Dist Lake No. 98-L-189, 1999 WL 960955 Sept. 30 1999, *3.

II

{¶ 18} In he second assignment of error, Ford argues the trial court abused its discretion when it imposed court costs. We disagree.

{¶ 19} A decision to impose court costs is within a trial court's sound discretion. State v. Braden , 158 Ohio St.3d 462, 2019-Ohio-4202, 145 N.E.3d 235, ¶ 21. We will not disturb the imposition of court costs absent a showing of abuse of discretion. An abuse of discretion means an attitude that is unreasonable, arbitrary or unconscionable. Huffman v. Hair Surgeon, Inc ., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985). Most instances of abuse of discretion will result in decisions that are simply unreasonable, rather than decisions that are unconscionable or arbitrary. AAAA Ent., Inc. v. River Place Community Urban Redev. Corp ., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). An unreasonable decision is one backed by no sound reasoning process which would support that decision. Id . "It is not enough that the reviewing court, were it deciding the issue de novo, would not have found that reasoning process to be persuasive, perhaps in view of countervailing reasoning processes that would support a contrary result." Id .

{¶ 20} R.C. 2947.23(A)(1)(a) states: "In all criminal cases, including violations of ordinances, the judge or magistrate shall include in the sentence the costs of prosecution, including any costs under section 2947.231 of the Revised Code, and render a judgment against the defendant for such costs." Under subsection (C), a trial court "retains jurisdiction 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 at any time thereafter." "The statutory language provides no explicit criteria that a court

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should use in deciding whether to waive, suspend, or modify costs." State v. Taylor , 161 Ohio St.3d 319, 2020-Ohio-3514, 163 N.E.3d 486, ¶ 8. "[A] trial court is not required to consider the defendant's ability to pay in assessing a motion to waive, suspend, or modify court costs under R.C. 2947.23(C), though it is permitted to do so." Id . at ¶ 16.

{¶ 21} Ford argues the trial court's imposition of court costs was an abuse of discretion because she is indigent and her indigency was a matter of record. However, it was also a matter of record that the trial court had found Ford has "the future ability to be employed and to pay financial sanctions * * *." Transcript of sentencing January 5, 2022 14-15. The trial court also noted if Ford was unable to pay the court costs she could be placed on a payment plan or perform community service in exchange for paying court costs. Id . 15-16.

{¶ 22} We find the trial court did not abuse its discretion in imposing court costs. The second assignment of error is overruled.

III

{¶ 23} In her final assignment of error, Ford claims her trial counsel rendered ineffective assistance by failing to seek a waiver of court costs. We disagree.

{¶ 24} The Supreme Court of Ohio has recently held when an indigent defendant makes an ineffective assistance of counsel claim based upon trial counsel's failure to request a waiver of court costs, a reviewing court must apply the test set forth in State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), in determining whether the defendant received ineffective assistance of counsel. State v. Davis , 159 Ohio St.3d 31, 2020-Ohio-309, 146 N.E.3d 560, ¶ 1.

{¶ 25} The Bradley test states "[c]ounsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an

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objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)" Bradley supra at paragraph two of the syllabus.

{¶ 26} In Davis , supra, the Supreme Court of Ohio found" 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, supra, ¶ 16.

{¶ 27} As noted in the second assignment of error, the trial court had previously determined Ford had a future ability to pay financial sanctions and if not, she could perform community service in exchange for payment of costs. We therefore find Ford has failed to demonstrate counsel's performance fell below an objective standard of reasonable representation or that she has been prejudiced by counsel's failure to request waiver of court costs.

{¶ 28} The final assignment of error is overruled.

{¶ 29} The judgment of the Ashland County Court of Common Pleas is affirmed.

King, J., Delaney, P.J. and Baldwin, J. concur.