State v. Williams

[Cite as State v. Williams, 2012-Ohio-5873.]

STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )

STATE OF OHIO C.A. No. 26014

Appellee

v. APPEAL FROM JUDGMENT
ENTERED IN THE
EDWARD WILLIAMS COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 09 10 3223 (B)

DECISION AND JOURNAL ENTRY

Dated: December 12, 2012

CARR, Judge,

{¶1} Defendant-Appellant, Edward Williams, appeals from his convictions in the

Summit County Court of Common Pleas. This Court affirms in part and reverses in part.

I.

{¶2} Williams was indicted on two counts of grand theft and two counts of tampering

with records after he received benefits from the Ohio Department of Job and Family Services

and the United States Social Security Administration. The State alleged that Williams was not

entitled to the benefits he had received due to his having misrepresented certain information on

his applications and supplements to his applications for benefits. Williams pleaded not guilty to

the charges and requested a jury trial. Because a related case in which Williams was involved

had been highly publicized, the court requested a large pool of prospective jurors.

{¶3} On the morning of trial, sixty prospective jurors reported to the courtroom of the

judge presiding over the trial. Noting that the entire courtroom would likely be needed to
 2

accommodate the jury pool, the judge asked a lone spectator in the courtroom to step out before

the prospective jurors entered. Subsequently, the trial commenced, and the jury found Williams

guilty on all four counts. The trial court sentenced him to one year in prison. The court further

ordered Williams to pay restitution in the amount of $36,023.87 to the Ohio Department of Job

and Family Services and $64,900 to the United States Social Security Administration. Williams

appealed from the trial court’s judgment.

{¶4} Williams died in prison before this Court could hear his appeal. Williams’

appointed attorney then moved to dismiss the appeal, dismiss the trial court proceedings, and

vacate Williams’ convictions as a result of his passing. The State opposed the motion and asked

this Court to substitute Williams’ appointed counsel in place of Williams for purposes of hearing

the appeal. See State v. McGettrick, 31 Ohio St.3d 138 (1987). This Court granted the State’s

motion by way of journal entry. State v. Williams, 9th Dist. No. 26014 (June 18, 2012). As

such, the appeal will proceed as if Williams’ death had not occurred.

{¶5} Williams’ appeal is now before this Court and raises seven assignments of error

for our review. For ease of analysis, we combine several of the assignments of error.

II.

ASSIGNMENT OF ERROR I

THE TRIAL COURT COMMITTED PLAIN, REVERSIBLE, AND
STRUCTURAL ERROR WHEN IT PARTIALLY CLOSED THE
COURTROOM DURING VOIR DIRE IN VIOLATION OF WILLIAMS’
FEDERAL AND STATE CONSTITUTIONAL RIGHTS TO A PUBLIC TRIAL
AS GUARANTEED BY THE FIRST, SIXTH AND FOURTEENTH
AMENDMENTS TO THE CONSTITUTION AND ARTICLE I, §10 OF THE
OHIO CONSTITUTION, AND PRESLEY V. GEORGIA, 130 S.CT. 721, 175
L.ED.2D 675 (2010).
 3

ASSIGNMENT OF ERROR II

WILLIAMS WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL
FAILED TO OBJECT THAT THE TRIAL COURT’S PARTIAL CLOSING OF
THE COURTROOM DURING VOIR DIRE VIOLATED WILLIAMS’ RIGHT
TO A PUBLIC TRIAL AS GUARANTEED BY THE FIRST, SIXTH AND
FOURTEENTH AMENDMENTS TO THE CONSTITUTION AND ARTICLE I,
§10 OF THE OHIO CONSTITUTION, AND PRESLEY V. GEORGIA, 130 S.CT.
721, 175 L.ED.2D 675 (2010).

{¶6} In his first assignment of error, Williams argues that the trial court committed

either structural or plain error by partially closing the courtroom during voir dire. In his second

assignment of error, Williams argues that he received ineffective assistance of counsel because

his counsel failed to object to the partial closure of the courtroom. As set forth below, we reject

both propositions.

{¶7} The Sixth Amendment to the U.S. Constitution and Article I, Section 10 of the

Ohio Constitution guarantee an accused the right to a public trial. State v. Lane, 60 Ohio St.2d

112, 119 (1979). The “Sixth Amendment right to a public trial extends to the voir dire of

prospective jurors.” Presley v. Georgia, 558 U.S. ___, 130 S.Ct. 721, 724 (2010). Moreover,

“the right * * * cannot be waived by the defendant’s silence.” State v. Bethel, 110 Ohio St.3d

416, 2006-Ohio-4853, ¶ 81. Absent proof in the record that the defendant somehow consented to

the closing of the trial, an appellate court must consider a defendant’s claim that the court

violated his public trial right. See id. at ¶ 81-82. Compare State v. Drummond, 111 Ohio St.3d

14, 2006-Ohio-5084, ¶ 54-59 (error as to February 5th courtroom closure waived when counsel

had objected to February 4th courtroom closure, but not the February 5th closure); State v.

Bayless, 48 Ohio St.2d 73, 110-111 (1976), vacated on other grounds, 438 U.S. 911 (1978)

(defense agreed to closure that “was primarily for the benefit of the defense”). “The violation of

the right to a public trial is considered structural error and not subject to harmless-error analysis.”
 4

Drummond at ¶ 50. “Before discussing structural error, however, an appellate court must first

find that a constitutional error has occurred.” State v. Dovala, 9th Dist. No. 05CA008767, 2007-

Ohio-4914, ¶ 10.

{¶8} Williams contends that the trial court committed structural error by excluding his

daughter from the courtroom during voir dire. The only evidence Williams points to in support

of his argument is a ruling that the court made on the record directly before the prospective

jurors were to be brought into the courtroom. The court stated:

The only thing is, I see [Williams’] daughter in the back. The problem is I think
every seat is going to be taken by jurors. So, Miss Bolar-Williams, I would ask
that you step out and have a seat. There [are] some round tables out there. Quite
frankly, I don’t think there [are] going to be any additional seats during the jury
selection process, but why don’t you go out and have a seat, and then we will see.

Williams did not object to the trial court’s ruling, and no further discussions about the ruling

took place on the record. According to Williams, “[a]t no time thereafter during the voir dire

selection of the jury did [the judge] ever permit [his] daughter back into the courtroom to observe

the selection of the jury.” That fact, however, is not in evidence. It is entirely unclear from the

record whether spectators were actually excluded from the courtroom once the prospective jurors

arrived. The judge’s ruling was only that she thought there might not be enough seats once the

jurors arrived, but when the jurors got there “[they] w[ould] see.” The record is devoid of any

additional evidence.

{¶9} The cases that Williams cites in support of his position all involve definitive

courtroom closures. That is, no question existed in the record in those cases that courtroom

closures actually occurred. See, e.g., Presley, 558 U.S. ___, 130 S.Ct. 721 (court ordered

courtroom closed for voir dire and specified that spectators could return at the start of trial);

Waller v. Georgia, 467 U.S. 39 (1984) (court ordered closure over objection that seven-day
 5

suppression hearing be closed to the public); Lane, 60 Ohio St.2d 112 (trial occurred in

“improvised courtroom” in maximum security penitentiary). Moreover, in the case upon which

Williams primarily relies, Presley v. Georgia, the defendant moved for a new trial so that the

court could take additional evidence on the closure issue. There, the trial court had closed the

courtroom for voir dire on the basis that each row would be occupied by potential jurors and it

would be inappropriate to allow spectators to “intermingle” with members of the jury pool.

Presley at 722. In moving for a new trial, the defendant went so far as to present evidence as to

the size of the courtroom and the number of seats that would have been available once the

potential jurors entered. Id. No such evidence exists in this case. Unlike the cases upon which

Williams relies, the record here is inconclusive with regard to whether spectators were or were

not allowed in the courtroom once the potential jurors arrived.

{¶10} The trial court here essentially issued a preliminary ruling, as its ruling hinged

upon whether there would, in fact, be room for spectators in the courtroom once the potential

jurors arrived. It is entirely plausible that after the potential jurors arrived, spectators were able

to enter the courtroom. The evidence in the record is simply inconclusive. Although Williams

need not have objected to the court’s ruling to raise the issue on appeal, see Bethel, 110 Ohio

St.3d 416, 2006-Ohio-4853, at ¶ 81-82, there is not enough evidence in the record from which

one can conclusively deduce that a closure actually occurred. See State v. Conway, 108 Ohio

St.3d 214, 2006-Ohio-791, ¶ 101-102 (defendant failed to establish courtroom closure or that any

spectators were actually excluded). Williams’ argument essentially asks this Court to engage in

speculation. See State v. Patel, 9th Dist. No. 24024, 2008-Ohio-4692, ¶ 43 (“[T]his Court will

not rely upon pure speculation in determining whether an error occurred.”). We are unwilling to

conclude that the trial court’s preliminary ruling, without more, definitively resulted in a
 6

courtroom closure. Williams has not shown that a constitutional error actually occurred. As

such, this Court need not engage in a structural error analysis. See Dovala, 2007-Ohio-4914, at ¶

10-13. Williams’ first assignment of error is overruled.

{¶11} Williams also argues that he received ineffective assistance of counsel because his

trial counsel failed to object to the closure of the courtroom. In order to demonstrate ineffective

assistance of counsel, a defendant most show (1) deficiency in the performance of counsel “so

serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment,” and (2) that the errors made by counsel were “so serious as to deprive the

defendant of a fair trial[.]” Strickland v. Washington, 466 U.S. 668, 687 (1984). A defendant

must demonstrate prejudice by showing that, but for counsel’s errors, there is a reasonable

probability that the outcome of the trial would have been different. Id. at 694. As previously

noted, a defendant need not object to preserve a claim of structural error on appeal when a trial

court erroneously orders the proceedings closed. See Bethel at ¶ 81-82. But see Drummond, 111

Ohio St.3d 14, 2006-Ohio-5084, at ¶ 54-59 (error can be waived if circumstances support a

waiver). The problem here is that the record does not contain sufficient evidence to show that a

courtroom closure actually occurred. Williams fails to explain how his counsel’s objection to the

trial court’s preliminary ruling would have remedied that problem. See App.R. 16(A)(7).

Accordingly, he has not shown that he was prejudiced by his trial counsel’s failure to object to

the trial court’s preliminary ruling. Williams’ second assignment of error is overruled.

ASSIGNMENT OF ERROR III

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
FAILING TO PROVIDE WILLIAMS WITH HIS RIGHT TO ALLOCUTION
PRIOR TO THE IMPOSITION OF HIS PRISON SENTENCE IN VIOLATION
OF R.C. 2929.19(A) AND CRIM.R. 32(A).
 7

{¶12} In his third assignment of error, Williams argues that the trial court denied him his

right of allocution before it imposed his sentence. We disagree.

{¶13} Pursuant to Crim.R. 32(A)(1), a trial court shall “[a]fford counsel an opportunity

to speak on behalf of the defendant and address the defendant personally and ask if he or she

wishes to make a statement in his or her own behalf or present any information in mitigation of

punishment.” See also R.C. 2929.19(A) (court shall hold sentencing hearing at which it asks the

offender whether he “has anything to say as to why sentence should not be imposed upon

[him]”). The rule “requires a trial court to afford a defendant an opportunity to speak before the

court imposes sentence.” State v. Maynard, 9th Dist. No. 07CA0116-M, 2009-Ohio-282, ¶ 38.

{¶14} Before the court orally pronounced Williams’ sentence in open court, the court

spoke to Williams and his attorney. The following exchange took place:

THE COURT: * * * Is there anything either the defendant or his counsel * * *
would like to say?

[DEFENSE COUNSEL]: Your Honor, I would like to speak. Mr. Williams and I
did speak prior to this. In the event he was to be found guilty, I would ask the
Court to -- I would have asked the Court to allow him to be left out of jail and that
he would be sentenced at a later date.

THE COURT: All right. Thank you. Mr. Williams, is there anything you want to
say to the Court?

[WILLIAMS]: I said it already. You don’t want to hear it.

THE COURT: Is there anything additional you want to say?

[WILLIAMS]: There is nothing I can say. Everything I said has been denied.

The court then began to explain the rationale it employed in reaching its sentencing decision.

Williams interrupted the court and interjected his belief that he had accepted benefits because he

“thought [he] was disabled” and “wasn’t able to take care of [himself].” After the court orally
 8

imposed its sentence, Williams also interjected that he felt it was unfair that he also had a case in

federal court.

{¶15} The trial court personally addressed Williams and asked multiple times whether

he had anything to say. Both the Ohio Supreme Court and this Court have recognized that a trial

court complies with a defendant’s right of allocution when it personally addresses the defendant

and asks whether he has anything to say. State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, ¶

192-193; State v. Vickers, 9th Dist. No. 01CA007928, 2002-Ohio-3628, ¶ 34. Williams was

given repeated opportunities to personally address the court. Moreover, even after he indicated

that he had nothing to say, he was able to interject several statements while the trial court

explained its sentencing rationale and after the court orally pronounced his sentence. The fact

that the interjections did not occur before the court began to pronounce its sentence is inapposite.

“[A]lthough the court set forth the terms of [Williams’] sentence in open court, it did not

journalize [his] sentence until much later.” State v. Brown, 9th Dist. No. 25287, 2011-Ohio-

1041, ¶46, citing Maynard at ¶ 45 (“[Defendant’s] sentence was not finalized until the trial court

filed its sentencing entry and, up until that time, anything it said about what that sentence would

be was tentative.”). The record reflects that Williams was afforded his right of allocution. His

third assignment of error is overruled.

ASSIGNMENT OF ERROR IV

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
ORDERING WILLIAMS TO PAY RESTITUTION WITHOUT CONSIDERING
WILLIAMS’ PRESENT AND FUTURE ABILITY TO PAY AS REQUIRED
UNDER R.C. 2929.19(B)(5).
 9

ASSIGNMENT OF ERROR V

WILLIAMS WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE
ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL
FAILED TO OBJECT TO THE IMPOSITION OF RESTITUTION WITHOUT
CONSIDERING WILLIAMS’ PRESENT AND FUTURE ABILITY TO PAY.

{¶16} In his fourth assignment of error, Williams argues that the trial court committed

plain error when it ordered him to pay restitution without first considering his present and future

ability to pay it. In his fifth assignment of error, Williams argues that he was denied the effective

assistance of counsel because his counsel failed to object to the court’s error in imposing

restitution without first considering his ability to pay it.

{¶17} “Before imposing a financial sanction under [R.C. 2929.18] or a fine under [R.C.

2929.32], the court shall consider the offender’s present and future ability to pay the amount of

the sanction or fine.” R.C. 2929.19(B)(5).1 “[T]here are no express factors that must be taken

into consideration or findings regarding the offender’s ability to pay that must be made on the

record.” State v. Martin, 140 Ohio App.3d 326, 327 (4th Dist.2000). Even so, the record must

reflect that the court actually considered the defendant’s ability to pay. Id. Accord State v.

Lewis, 2d Dist. No. 2011-CA-75, 2012-Ohio-4858, ¶ 9; State v. McQuillen, 5th Dist. No.

12CA014, 2012-Ohio-4953, ¶ 11; State v. Dahms, 6th Dist. No. S-11-028, 2012-Ohio-3181, ¶

16. A trial court commits plain error by ordering a defendant to pay restitution without first

considering his ability to pay. State v. Andrews, 1st Dist. No. C-110735, 2012-Ohio-4664, ¶ 32.

{¶18} During the sentencing hearing, the trial court only inquired as to whether

Williams would be able to afford an attorney on appeal. The court noted that Williams appeared

1
Subsection (B)(5) of R.C. 2929.19 is identical to Former R.C. 2929.19(B)(6).
 10

to have a home, although there was testimony that it was encumbered by a substantial mortgage.

Williams informed the court that he only had $10 in his checking account. The court then

concluded that appellate counsel would be appointed, but that Williams would be required to

reimburse the county for his attorney fees if further investigation disclosed his ability to pay his

attorney fees. No pre-sentence investigation was completed, and the trial court never set forth in

its sentencing entry that it had considered Williams’ present and future ability to pay before

imposing restitution.

{¶19} The record in this case does not support the conclusion that the court considered

Williams’ ability to pay restitution before ordering him to pay it. A defendant’s ability to pay for

appellate counsel is not synonymous with his ability to pay a retainer fee for counsel. Id. at ¶ 29

(“An offender’s ability to pay a fine over a period of time is not equivalent to the ability to pay

legal counsel a retainer fee at the outset of the criminal proceedings.”). No discussion took place

on the record about Williams’ ability to pay restitution, and no further financial information

could have been obtained from a pre-sentence investigation report, as none was completed.

Further, the trial court did not expressly state at the hearing or in its sentencing entry that it had

considered Williams’ ability to pay before it ordered restitution. “Because the record is

completely silent on the matter, the trial court committed plain error in ordering [Williams] to

pay * * * restitution.” Id. at ¶ 32.

{¶20} Although Williams is deceased, several state courts have held that an order to

pay restitution survives the death of the defendant. See, e.g., People v. Daly, Colo.App. No.

10CA0580, 2011 WL 2308587 (June 9, 2011); People v. Peters, 449 Mich. 515, 537 N.W.2d

160 (1995); Matter of Estate of Vigliotto, 178 Ariz. 67, 870 P.2d 1163 (1993); State v.

Christensen, 866 P.2d 533 (Utah 1993). Moreover, numerous Ohio courts have recognized that,
 11

upon the substitution of a deceased party pursuant to App.R. 29(A), the case must proceed as if

the death had not occurred. See, e.g., State v. Meade, 12th Dist. No. CA2009-07-024, 2010-

Ohio-2435 (remand for hearing on decedent’s sex offender classification); State v. Sims, 127

Ohio App.3d 603 (2d Dist.1998) (remand for hearing and determination of suppression-based

issues); State v. Williams, 75 Ohio App.3d 102 (10th Dist.1991) (remand for hearing and

determination of suppression-based issues). As such, Williams’ fourth assignment of error is

sustained and the court’s order of restitution is reversed in light of that determination. The

matter, however, will be remanded to the trial court for further proceedings.

{¶21} Williams also argues that he received ineffective assistance of counsel because his

counsel did not object when the trial court imposed restitution without first considering his

ability to pay it. Based on our resolution of Williams’ fourth assignment of error, his ineffective

assistance argument is moot and we decline to address his fifth assignment of error. App.R.

12(A)(1)(c).

ASSIGNMENT OF ERROR VI

THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
ASSESSING COURT COSTS AGAINST WILLIAMS WHEN IT DID NOT
IMPOSE THOSE COSTS IN OPEN COURT AND WITHOUT COMPLYING
WITH R.C. 2947.23(A).

{¶22} In his sixth assignment of error, Williams argues that the trial court erred by

assessing court costs against him without first complying with the notification requirements of

R.C. 2947.23(A). We agree.

{¶23} R.C. 2947.23(A) provides in relevant part:

(A)(1) 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. At the time the judge or magistrate imposes
 12

sentence, the judge or magistrate shall notify the defendant of both of the
following:

(a) If the defendant fails to pay that judgment or fails to timely make payments
towards that judgment under a payment schedule approved by the court, the court
may order the defendant to perform community service in an amount of not more
than forty hours per month until the judgment is paid or until the court is satisfied
that the defendant is in compliance with the approved payment schedule.

(b) If the court orders the defendant to perform the community service, the
defendant will receive credit upon the judgment at the specified hourly credit rate
per hour of community service performed, and each hour of community service
performed will reduce the judgment by that amount.

The statute requires both that the trial court (1) notify the defendant at the time of sentencing that

costs will be assessed so that he has an opportunity to seek a waiver, and (2) notify the defendant

that his failure to pay the costs could result in imposition of community service, but that he

would receive credit toward the costs from any community service imposed. State v. Ross, 9th

Dist. No. 25778, 2012-Ohio-1389, ¶ 28; State v. Stallworth, 9th Dist. No. 25461, 2011-Ohio-

4492, ¶ 32. See also State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, ¶ 20-24.

{¶24} The record reflects that the trial court did not discuss costs at the sentencing

hearing. Williams was not informed of any of the statutory notifications mandated by R.C.

2947.23(A). Nevertheless, the court imposed costs upon him in its sentencing entry. The court

erred by doing so. See Ross at ¶ 28; Stallworth at ¶ 32. Accordingly, Williams’ argument has

merit.

{¶25} As previously noted, this case must proceed as if Williams’ death had not

occurred. Even after the defendant in a criminal case dies, “the matter of costs remains.”

McGettrick, 31 Ohio St.3d at 141, fn. 4, quoting State v. Jones, 220 Kan. 136, 137, 551 P.2d 801

(1976). As such, Williams’ sixth assignment of error is sustained, and the matter will be

remanded to the trial court for further proceedings.
 13

ASSIGNMENT OF ERROR VII

THE CUMULATIVE EFFECT OF THE TRIAL COURT’S ERROR DENIED
WILLIAMS A FAIR TRIAL.

{¶26} In his seventh assignment of error, Williams argues that cumulative errors in the

proceedings deprived him of his constitutional right to a fair trial. We disagree.

{¶27} Cumulative error exists only where the errors during trial actually “deprive[d] a

defendant of the constitutional right to a fair trial.” State v. DeMarco, 31 Ohio St.3d 191 (1987),

paragraph two of the syllabus. “[T]here can be no such thing as an error-free, perfect trial, and *

* * the Constitution does not guarantee such a trial.” State v. Hill, 75 Ohio St.3d 195, 212

(1996), quoting United States v. Hasting, 461 U.S. 499, 508-509 (1983). Moreover, “errors

cannot become prejudicial by sheer weight of numbers.” Hill, 75 Ohio St.3d at 212.

{¶28} After reviewing the record, we cannot say that Williams’ trial was plagued with

numerous errors or that his constitutional right to a fair trial was violated. Therefore, his seventh

assignment of error is overruled.

III.

{¶29} Williams’ first, second, third, and seventh assignments of error are overruled, and

his fifth assignment of error is moot. Williams’ fourth and sixth assignments of error are

sustained. The judgment of the Summit County Court of Common Pleas is affirmed in part,

reversed in part, and the cause is remanded for further proceedings consistent with the foregoing

opinion.

Judgment affirmed in part,
reversed in part,
and cause remanded.
 14

There were reasonable grounds for this appeal.

We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

Costs taxed equally to both parties.

DONNA J. CARR
FOR THE COURT

WHITMORE, P. J.
CONCURS.

BELFANCE, J.
CONCURRING.

{¶30} I concur with most of the majority opinion. However, I do not join in the dicta in

¶ 20 and ¶ 25. Because Mr. Williams passed away after the trial court had ordered restitution, it

had not considered the effect his death had on its ability to impose the restitution, and the trial

court should consider this issue in the first instance.
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APPEARANCES:

NEIL P. AGARWAL, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.