State v. Davis

[Cite as State v. Davis, 2017-Ohio-8222.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 104574

STATE OF OHIO
PLAINTIFF-APPELLEE

vs.

MICHAEL MARBUERY DAVIS
DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-14-582057-B, CR-14-586437-A, CR-14-586870-A
CR-14-587857-B, CR-14-590819-B, and CR-15-596537-A

BEFORE: Kilbane, J., Keough, A.J., and McCormack, J.

RELEASED AND JOURNALIZED: October 19, 2017
ATTORNEY FOR APPELLANT

Thomas A. Rein
820 West Superior Avenue - Suite 800
Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
Frank Romeo Zeleznikar
Marc Bullard
Assistant County Prosecutors
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

{¶1} Defendant-appellant, Michael Marbuery Davis (“Marbuery Davis”), appeals

the trial court’s denial of his motion to withdraw his guilty plea and his sentence for drug

trafficking, possessing criminal tools, drug possession, attempted drug possession, and

endangering children. For the reasons set forth below, we affirm.

{¶2} Between February 2014 and June 2015, Marbuery Davis was indicted in six

cases for various drug trafficking related offenses. These cases proceeded before the

same judge in the common pleas court. In April 2016, a pretrial was held and the state’s

plea offer to Marbuery Davis in each of the six cases were placed on the record. The

state set forth the terms of each offer and the trial court advised Marbuery Davis that,

based upon the plea offer, he would be facing a prison term anywhere from a minimum of

3 years to a maximum of 39 years. The trial court explained to Marbuery Davis that it

does not discuss with the state or the defense its views on a defendant’s sentence prior to

sentencing. The matter was then continued so that Marbuery Davis could be evaluated

by the court psychiatric clinic.

{¶3} In May 2016, Marbuery Davis entered guilty pleas to numerous felony

counts spanning the six cases. Before accepting Marbuery Davis’s plea, the trial court

explained on the record that the court psychiatrist had evaluated Marbuery Davis and

determined that he was capable of understanding the nature of the proceedings against

him. The trial court questioned Marbuery Davis:
 THE COURT: Are you satisfied with the representation that you have
received from [your attorney]?

[DEFENDANT]: Yes.

{¶4} The trial court engaged in the Crim.R. 11 plea colloquy with Marbuery

Davis. This exchange included, in relevant part:

THE COURT: All right. Now, two more questions, then we can take
your plea. Have any threats been made to you to
change your plea?

[DEFENDANT]: No, your Honor.

THE COURT: Have there been any promises made to you to get you
to change your plea?

[DEFENDANT]: No, your Honor.

{¶5} The trial court accepted Marbuery Davis’s guilty pleas to eight counts of drug

trafficking, four counts of possessing criminals tools, one count of endangering children,

one count of attempted drug possession, and one count of drug possession.1

{¶6} The trial court proceeded directly to sentencing. Prior to imposing a

sentence, the trial court gave Marbuery Davis the opportunity to present any mitigating

information on his own behalf. Marbuery Davis reiterated his guilt, stating:

Well, your Honor, I would like to say I’m guilty as charged * * * I’m ready
and willing to accept my consequences.

{¶7} The trial court sentenced Marbuery Davis to an aggregate prison term of 22

years and imposed mandatory fines on the applicable trafficking counts under R.C.

1 One of the eight drug trafficking counts to which Marbuery Davis pleaded
guilty included a one-year firearm specification.
2929.18(B)(1), as well as court costs. Immediately upon hearing this sentence, Marbuery

Davis requested his court-appointed attorney to move to withdraw the guilty pleas. The

trial court gave Marbuery Davis the opportunity to address his request to withdraw his

plea. Marbuery Davis told the trial court that his attorney had promised him that if he

pleaded guilty he would receive only a three-year sentence. The state and Marbuery

Davis’s defense attorney reiterated to the trial court that there had been no agreed

sentence and Marbuery Davis’s defense attorney advised the trial court that he had not

made any promises to Marbuery Davis. When further questioned by the trial court,

Marbuery Davis alleged that he wasn’t provided any discovery and denied that he was

guilty of all the crimes to which he had just pleaded guilty. The trial court denied

Marbuery Davis’s motion to withdraw the guilty pleas, noting that he had answered

negatively when questioned if any threats or promises had been made to him to induce his

plea and had not mentioned any of these allegations prior to being sentenced.

{¶8} The trial court then continued with sentencing. The trial court denied

defense counsel’s motion to waive fines and court costs, stating that no affidavit of

indigence had been filed prior to sentencing. The trial court appointed appellate counsel

and concluded the hearing.

{¶9} On May 20, 2016, Marbuery Davis filed a pro se motion to withdraw his

guilty plea, renewing his allegation that his attorney had promised he would receive a

three-year sentence and further alleging that counsel had not allowed him to see discovery
that had been designated “counsel only.” The trial court filed its sentencing entry on

May 23, 2016. It is from this sentencing entry that Marbuery Davis appeals.

{¶10} On May 27, 2016, the trial court set a hearing on Marbuery Davis’s pro se

motion to withdraw his guilty plea and assigned him new counsel for purposes of that

hearing. The hearing was held on June 22, 2016. Because of scheduling and the need

to obtain evidence, the court continued the hearing to August 3, 2016, and ultimately

concluded the hearing on October 5, 2016. Over the course of these hearings, the court

heard testimony from Marbuery Davis, his girlfriend, Michelle Westover (“Westover”),

and his former defense attorney. Westover often contacted Marbuery Davis’s attorney by

phone and text message and acted as an intermediary between Marbuery Davis and his

attorney. For purposes of his former attorney’s testimony, Marbuery Davis waived

attorney-client privilege.

{¶11} At the hearing, Marbuery Davis and Westover testified that the attorney had

told them Marbuery Davis would get three years in an “off the record” deal with the state.

Westover testified that, although she was not certain, she recalled her text messages with

the attorney containing a promise of a three-year sentence. She explained that she could

no longer recover these text messages because the phone on which she received them had

broken, causing its memory to be erased.

{¶12} The attorney testified that not long after being appointed to represent

Marbuery Davis, he had presented to both his client and Westover what he understood to

be a plea offer from the state that included a term of incarceration for all six cases “as low
as three years.” He further testified that this offer “didn’t sit quite right with [him],” so

he requested the offer be put on the record so that “everybody [would be] on the same

page.” The attorney testified that he made no promises that Marbuery Davis would

receive a three-year sentence to either Marbuery Davis or Westover. He testified that he

explained to both Marbuery Davis and Westover that sentencing was within the court’s

discretion, and he did not know how the court would ultimately sentence Marbuery Davis.

Upon the trial court’s request, the attorney produced his text messages with Westover.

These text messages were consistent with his testimony that he never made any promise

of a three-year sentence to Westover.

{¶13} The attorney also denied that he had kept discovery from Marbuery Davis.

He explained that, based upon his understanding of the “counsel only” designation, he

could not provide the discovery to his client, but rather had to describe the contents of the

discovery to him. Marbuery Davis acknowledged that his attorney did discuss the state’s

discovery with him.

{¶14} On February 7, 2017, the trial court, construing Marbuery Davis’s motion to

withdraw as a petition for postconviction relief, filed a “[n]otice * * * pursuant to [App.R.

6(A)]” with this court advising that it had determined that grounds existed to hold a

hearing to determine if the court should grant Marbuery Davis’s motion to withdraw his

guilty plea. The trial court further advised that it became aware of the present appeal

only after reviewing the docket in preparing its journal entry and opinion for Marbuery

Davis’s motion to withdraw his guilty plea. In this notice, the trial court explained that it
would not file its ruling on the motion to withdraw until it received a response from this

court.

{¶15} On March 15, 2017, we remanded this matter to the trial court pursuant to

App.R. 6(A), which states:

Whenever a trial court and an appellate court are exercising concurrent
jurisdiction to review a judgment of conviction, and the trial court files a
written determination that grounds exist for granting a petition for
post-conviction relief, the trial court shall notify the parties and the
appellate court of that determination. On such notification, or pursuant to a
party’s motion in the court of appeals, the appellate court may remand the
case to the trial court.

{¶16} Following our remand, the trial court denied Marbuery Davis’s motion to

withdraw his guilty pleas. In May 2017, Marbuery Davis moved to supplement the

record to include the trial court’s denial of his pro se motion to withdraw his guilty pleas.

We granted Marbuery Davis’s motion to supplement the record and ordered that he

amend his appeal. We also granted the state’s request to reopen briefing on these issues.

{¶17} Marbuery Davis raises the following assignment of error in both his initial

and supplemental briefs:

Assignment of Error One

The trial court erred in not allowing [Marbuery Davis] to withdraw his
guilty plea.

{¶18} Marbuery Davis raises the following assignments of error in his initial brief:

Assignment of Error Two

The trial court erred by ordering [Marbuery Davis] to serve a consecutive
 sentence without making the appropriate findings required by R.C. 2929.14
and H.B. 86.

Assignment of Error Three

[Marbuery Davis’s] sentence is contrary to law because the trial court failed
to comply with the purposes and principles of sentencing as set forth in
R.C. 2929.11 and R.C. 2929.12.

Assignment of Error Four

The trial court erred by ordering [Marbuery Davis] to pay costs when it did
not properly comply with the statute.

Assignment of Error Five

The court costs imposed at the sentencing hearing infringe upon [Marbuery
Davis’s] rights under the Eighth and Fourteenth Amendments to the United
States Constitution, R.C. 2929.18, [R.C. 2925.19(B)(5)], R.C. 2947.14, and
related sections of the Ohio Constitution.

Assignment of Error Six

[Marbuery Davis] was denied effective assistance of counsel as guaranteed

by Section 10, Article 1, of the Ohio Constitution and the Sixth and

Fourteenth Amendments [to the United States Constitution].

Motion to Withdraw Guilty Plea

{¶19} In the first assignment of error in his initial brief, Marbuery Davis argues

that the trial court erred in denying his oral motion to withdraw his guilty plea at

sentencing. In his supplemental brief, Marbuery Davis again raises this assignment of

error as it relates to the trial court’s denial of his subsequent pro se motion to withdraw

his guilty plea. For ease of analysis, we will consider these assignments of error

together.
 {¶20} Ohio Crim.R. 32.1 provides:

A motion to withdraw a plea of guilty or no contest may be made only
before sentence is imposed; but to correct manifest injustice the court after
sentence may set aside the judgment of conviction and permit the defendant
to withdraw his or her plea.

{¶21} We review a trial court’s ruling on a motion to withdraw a guilty plea for

abuse of discretion. State v. Xie, 62 Ohio St.3d 521, 526, 584 N.E.2d 715 (1992). “‘The

term ‘abuse of discretion’ connotes more than an error of law or judgment; it implies that

the court’s attitude is unreasonable, arbitrary or unconscionable.’” Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), quoting State v. Adams, 62

Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). A Crim.R. 32.1 motion “is addressed to

the sound discretion of the trial court, and the good faith, credibility and weight of the

movant’s assertions in support of the motion are matters to be resolved by that court.”

State v. Smith, 49 Ohio St.2d 261, 263, 361 N.E.2d 1324 (1977), paragraph two of the

syllabus.

{¶22} A presentence motion to withdraw a guilty plea should be freely and

liberally granted. Xie at 527. Crim.R. 32.1 provides that a “manifest injustice” standard

is used to evaluate a postsentence motion to withdraw a guilty plea. Id. at 526. A

“manifest injustice” has been defined as a “clear or openly unjust act.” State v. Sneed,

8th Dist. Cuyahoga No. 80902, 2002-Ohio-6502, ¶ 13, citing State ex rel. Schneider v.

Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83 (1998).

{¶23} Marbuery Davis argues that because the trial court had not yet informed him

of postrelease control when he first moved to withdraw his guilty plea “it cannot be
argued by the [state] that [his oral motion to withdraw his guilty plea] was made after the

sentencing,” and that we should apply the more lenient standard of a presentence motion

to withdraw a guilty plea. However, Ohio courts have held that a motion made after a

defendant has learned of the imminent sentence is considered to be made postsentence.

State v. McComb, 2d Dist. Montgomery No. 22570, 2009-Ohio-295, ¶ 7; see also State v.

Leonhart, 4th Dist. Washington No. 13CA38, 2014-Ohio-5601, ¶ 25 (collecting cases).

The distinction in Crim.R. 32.1 between motions made pre- and postsentence

“rests upon the practical considerations important to the proper
administration of justice. Before sentencing, the inconvenience to court
and prosecution resulting from a change of plea is ordinarily slight as
compared with the public interest in protecting the right of the accused to
trial by jury. But if a plea of guilty could be retracted with ease after
sentence, the accused might be encouraged to plead guilty to test the weight
of potential punishment, and withdraw the plea if the sentence were
unexpectedly severe.”

Id., quoting Kadwell v. U.S., 315 F.2d 667, 670 (9th Cir.1963).

{¶24} Therefore, we review the trial court’s denial of both of Marbuery Davis’s

motions to withdraw his guilty plea under a “manifest injustice” standard. We find that

at both junctures, the trial court made full inquiry into Marbuery Davis’s allegations and,

after ultimately conducting a hearing on the motion, found that his allegations were not

credible and not supported by the evidence.

{¶25} This court has found that a valid reason supporting the withdrawal of a

guilty plea may be that the defendant was coerced into pleading guilty by the state, the

court, or defense counsel. State v. Thomas, 8th Dist. Cuyahoga No. 85294,

2005-Ohio-4145, ¶ 5. However, to make such a claim, an appellant must submit
supporting material containing evidence that the guilty plea was induced by false

promises. Id., citing State v. Kapper, 5 Ohio St.3d 36, 448 N.E.2d 823 (1983).

{¶26} Marbuery Davis alleged that his defense counsel promised him that he

would receive a three-year prison sentence if he pled guilty. He further alleged that

defense counsel refused to share discovery with him. Defense counsel denied these

allegations. Marbuery Davis did not supply any evidence that his guilty plea was

induced by false promises apart from his own testimony and the testimony of his

girlfriend, Westover. In its judgment entry, the trial court found that Marbuery Davis

failed to present credible evidence that his former attorney promised or guaranteed that

the court would impose any particular sentence. The court further found that in light of

Marbuery Davis’s plea and his separate acknowledgment of his guilt prior to sentence, his

complaints about his attorney’s performance prior to the plea hearing did not amount to a

“manifest injustice.” We agree that the record does not support Marbuery Davis’s

allegations underlying his motion to withdraw his guilty plea.

{¶27} Therefore, we cannot find that the trial court abused its discretion in denying

Marbuery Davis’s motions to withdraw his guilty plea. Accordingly, the first and

supplemental assignments of error are overruled.

Effective Assistance of Counsel

{¶28} In the sixth assignment of error, Marbuery Davis argues that he was denied

effective assistance of counsel due to his attorney’s “substandard performance.”

{¶29} Reversal of a conviction for ineffective assistance of counsel requires a
defendant to show both that (1) counsel’s performance was deficient, and (2) the deficient

performance prejudiced the defense. State v. Smith, 89 Ohio St.3d 323, 327,

2000-Ohio-166, 731 N.E.2d 645, citing Strickland v. Washington, 466 U.S. 668, 687, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984). To prove that counsel’s performance was deficient,

a defendant must show that defense counsel’s performance fell below an objective

standard of reasonable representation. State v. Bradley, 42 Ohio St.3d 136, 142, 538

N.E.2d 373 (1989). Moreover, the defendant must show that there exists a reasonable

probability that, were it not for counsel’s errors, the results of the proceeding would have

been different. State v. White, 82 Ohio St.3d 16, 23, 1998-Ohio-363, 693 N.E.2d 772.

{¶30} In evaluating a claim of ineffective assistance of counsel, a court must give

great deference to counsel’s performance. Strickland at 689. “A reviewing court will

strongly presume that counsel rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.” State v. Pawlak, 8th

Dist. Cuyahoga No. 99555, 2014-Ohio-2175, ¶ 69, citing Bradley at 141.

{¶31} Marbuery Davis asserts that his attorney’s performance was deficient

because he induced Marbuery Davis’s guilty plea by promising him that he would receive

a three-year prison sentence and refused to share “counsel only” discovery outlining the

state’s case against him. However, as we discuss above, the evidence Marbuery Davis

presented at the hearing on his motion to withdraw his guilty plea does not support these

allegations.
 {¶32} Marbuery Davis also asserts that his attorney’s performance was deficient

because his attorney failed to file an affidavit of indigence in support of his motion to

waive mandatory fines, and failed to request a presentence investigation report (“PSI”).

{¶33} A trial court is required to impose all mandatory fines specified for a

particular crime unless the court determines that the defendant is indigent. State v.

Roberts, 2016-Ohio-7400, 72 N.E.3d 1126, ¶ 30 (8th Dist.), citing State v. Miller, 8th

Dist. Cuyahoga No. 86505, 2006-Ohio-4752, ¶ 8. For the court to find a defendant

indigent, an affidavit of indigence must be filed in accordance with R.C. 2929.18(B)(1),

which provides:

If an offender alleges in an affidavit filed with the court prior to

sentencing that the offender is indigent and unable to pay the mandatory

fine and if the court determines the offender is an indigent person and is

unable to pay the mandatory fine described in this division the court shall

not impose the mandatory fine imposed upon the offender.

(Emphasis added.)

{¶34} Marbuery Davis does not demonstrate how the outcome of sentencing would

have been different had his attorney filed an affidavit of indigence on his behalf prior to

sentencing. We note that even if his attorney had filed an affidavit of indigence,

Marbuery Davis would not have been automatically entitled to waiver of the mandatory

fine. Roberts at  36, citing State v. Gipson, 80 Ohio St.3d 626, 634, 687 N.E.2d 759

(1998).
 {¶35} The record demonstrates that the trial court considered Marbuery Davis’s

present and future ability to pay the mandatory fines as required under R.C. 2929.19 and

that an affidavit of indigence likely would not have changed the trial court’s finding that

Marbuery Davis had a present and future ability to pay the mandatory fines. At

sentencing, the trial court agreed with the state’s contention that Marbuery Davis had

unreported income, as evidenced by the forfeiture of over $17,000 as part of his plea.

The court also explained that the record indicated that Marbuery Davis at one point had a

trucking business with his father and that it found that Marbuery Davis “has the ability to

earn income in the future.” Therefore, we find the record fails to show a reasonable

probability that the trial court would have found Marbuery Davis unable to pay the

mandatory fine had counsel filed an affidavit of indigence prior to sentencing. State v.

Marshall, 8th Dist. Cuyahoga No. 66409, 1995 Ohio App. LEXIS 3205, 7-8 (Aug. 3,

1995).

{¶36} Marbuery Davis’s claim that his attorney’s failure to request an updated PSI

amounted to ineffective assistance is likewise unpersuasive. Defense counsel did request

an updated PSI prior to sentencing. Marbuery Davis faced three years mandatory time

based upon his plea. Under Crim.R. 32.2, a PSI is only required before the trial court

imposes community control sanctions or grants probation. The record demonstrates that

Marbuery Davis’s attorney withdrew his request for an updated PSI after the court

questioned whether that was unnecessary in light of the mandatory time.
 {¶37} Therefore, Marbuery Davis has failed to demonstrate that his counsel’s

performance was deficient or that he was prejudiced by counsel’s failure to request a PSI

or file an affidavit of indigence prior to sentencing. Accordingly, the sixth assignment of

error is overruled.

Sentence

{¶38} Marbuery Davis’s second and third assignments of error challenge his prison

sentence. R.C. 2953.08 governs appeals of right and the grounds from which a

defendant may appeal his or her felony sentence. Our standard of review is found in

R.C. 2953.08(G), which states in relevant part:

The appellate court may increase, reduce, or otherwise modify a sentence *
* * or may vacate the sentence and remand the matter to the sentencing
court for resentencing * * * if it clearly and convincingly finds either of the
following:

(a) That the record does not support the sentencing court’s findings under *
* * [R.C. 2929.14(C)(4)] * * *;

(b) That the sentence is otherwise contrary to law.

{¶39} In the second assignment of error, Marbuery Davis argues the trial court did

not make the appropriate findings under R.C. 2929.14(C) to support the imposition of

consecutive sentences.

{¶40} Under Ohio law, prison terms are to be served concurrently, subject to

certain exceptions. R.C. 2929.14(A). A trial court may, in its discretion, order that a

defendant consecutively serve multiple prison terms for convictions of multiple offenses,

provided the court make certain statutory findings under R.C. 2929.14(C)(4).
Specifically, the trial court must find that (1) “consecutive service is necessary to protect

the public from future crime or to punish the offender,” (2) “consecutive sentences are not

disproportionate to the seriousness of the offender’s conduct and to the danger the

offender poses to the public,” and (3) one of three statutory factors set forth in R.C.

2929.14(C)(4)(a)-(c) applies. Id.

{¶41} As to the manner in which the trial court must make these findings, the Ohio

Supreme Court has held:

In order to impose consecutive terms of imprisonment, a trial court is
required to make the findings mandated by R.C. 2929.14(C)(4) at the
sentencing hearing and incorporate its findings into its sentencing entry, but
it has no obligation to state reasons to support its findings. Nor is the court
required to give a talismanic recantation of the words of the statute.

State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 37.

{¶42} Here, the trial court made the first two findings by stating at the sentencing

hearing:

I think that consecutive sentences are necessary to protect the public from
future crime, to punish [Marbuery Davis] and that the consecutive sentences
are not disproportionate to the seriousness of [Marbuery Davis’s] conduct
and to the danger that he poses to the public.

{¶43} The trial court went on to find that each of the three factors found in R.C.

2929.14(C)(4)(a)-(c) were applicable to Marbuery Davis, explaining:

And if the court finds any of the following, and in this situation, [Marbuery
Davis’s] history of criminal conduct demonstrates that consecutive
sentences are necessary to protect the public from harm and future crime by
him. And he has committed these offenses while on probation to me,
which is another factor. And the third factor is that at least two of these
multiple offenses were part of an overall course of conduct and that the
harm caused by two or more of the multiple offenses was so great or
 unusual that a single term is not appropriate given the course of conduct
such that it adequately reflects the seriousness of [Marbuery Davis’s]
conduct.

{¶44} The trial court incorporated these findings into the sentencing journal entry.

{¶45} Therefore, the trial court made all required consecutive sentence findings

under R.C. 2929.14(C)(4) both on the record and in its sentencing entry as required by

Bonnell. Accordingly, Marbuery Davis’s second assignment of error is overruled.

{¶46} In the third assignment of error, Marbuery Davis asserts his “sentence is

erroneous because the trial court did not make specific findings in accordance with R.C.

2929.11 or R.C. 2929.12.”

{¶47} A defendant may appeal a sentence that is contrary to law.

R.C. 2953.08(A)(4). A sentence is not clearly and convincingly contrary to law where

the trial court considers the purposes and principles of felony sentencing under R.C.

2929.11 as well as the seriousness and recidivism factors listed in R.C. 2929.12, properly

applies postrelease control, and sentences a defendant within the permissible statutory

range. State v. A.H., 8th Dist. Cuyahoga No. 98622, 2013-Ohio-2525, ¶ 10, citing State v.

Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 18.

{¶48} Under R.C. 2929.11(A), the two overriding purposes of felony sentencing

are “to protect the public from future crime by the offender and others,” and “to punish

the offender using the minimum sanctions that the court determines accomplish those

purposes * * *.” Under R.C. 2929.12(A), trial courts must consider a nonexhaustive list

of factors, including the seriousness of the defendant’s conduct, the likelihood of
recidivism, and “any other factors that are relevant to achieving those purposes and

principles of sentencing.”

{¶49} A trial court is not required to make specific findings of its consideration of

these factors. State v. Jones, 8th Dist. Cuyahoga No. 99759, 2014-Ohio-29, ¶ 13. “R.C.

2929.11 and 2929.12 are not fact-finding statutes, and consideration of the appropriate

factors can be presumed unless the defendant affirmatively shows to the contrary.” Id.,

citing State v. Stevens, 1st Dist. Hamilton No. C-130278, 2013-Ohio-5218, ¶ 12.

{¶50} Here, the trial court specifically indicated that it had considered the statutory

requirements prior to imposing Marbuery Davis’s sentence and sentenced him within the

applicable statutory ranges. Moreover, Marbuery Davis has not affirmatively shown that

the trial court did not take R.C. 2929.11 and 2929.12 into consideration.

{¶51} Therefore, Marbuery Davis has not demonstrated that the trial court failed to

consider R.C. 2929.11 and 2929.12 into consideration, rendering his sentence contrary to

law. Accordingly, the third assignment of error is overruled.

Court Costs

{¶52} Marbuery Davis’s fourth and fifth assignments of error relate to the

imposition of court costs as part of his sentence. In the fourth assignment of error,

Marbuery Davis argues the trial court erred in imposing court costs without first notifying

him that he may be ordered to perform community service if he fails to pay court costs.

Relying on this court’s decision in State v. Huber, 8th Dist. Cuyahoga No. 98206,
2012-Ohio-6139, Marbuery Davis asserts that the notification under R.C. 2947.23(A)(1)

is mandatory and requires a remand for limited resentencing.

{¶53} Our decision in Huber, however, has since been superseded by legislative

amendments to R.C. 2947.43. State v. Brock, 8th Dist. Cuyahoga No. 104334,

2017-Ohio-97, ¶ 13. The statute no longer requires such a notification when a trial court

imposes a prison term. Id., citing State v. Brown, 12th Dist. Butler No. CA2013-03-043,

2014-Ohio-1317, ¶ 30, fn. 3, quoting R.C. 2947.23(A)(1)(a) (“The current statute * * *

provides that notification of possible court-ordered community service need only be given

‘[i]f the judge or magistrate imposes a community control sanction or other nonresidential

sanction.’”).

{¶54} Therefore, because Marbuery Davis was sentenced to a term of

imprisonment, the notification of possible court-ordered community service is

inapplicable to his sentence. Accordingly, the fourth assignment of error is overruled.

{¶55} In the fifth assignment of error, Marbuery Davis contends that trial court

abused its discretion in ordering him to pay court costs without considering his ability to

pay. The imposition of court costs is governed by R.C. 2947.23. R.C. 2947.23(A)(1)(a)

states, in relevant part:

In all criminal cases * * * the judge or magistrate shall include in the
sentence the costs of prosecution, * * * and render a judgment against the
defendant for such costs.

{¶56} “Thus, a sentencing court must include the costs of prosecution in the

sentence and render a judgment against the defendant for costs, even if the defendant is
indigent.” State v. Dawson, 8th Dist. Cuyahoga No. 104509, 2017-Ohio-965, ¶ 41, citing

State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 8 (“R.C. 2947.23

requires a judge to assess costs against all convicted criminal defendants, and waiver of

costs is permitted — but not required — if the defendant is indigent.”). “‘[A]

defendant’s financial status is irrelevant to the imposition of court costs.’” Id., quoting

State v. Clevenger, 114 Ohio St.3d 258, 2007-Ohio-4006, 871 N.E.2d 589, ¶ 3.

{¶57} In support of his argument that the trial court should have considered his

ability to pay in imposing court costs, Marbuery Davis cites R.C. 2929.19(B), which

requires trial courts to consider an offender’s future and present ability to pay when

imposing a financial sanction. Court costs are not financial sanctions and, therefore,

R.C. 2929.19 has no application to the imposition of court costs. Dawson at ¶ 42.

{¶58} Therefore, the trial court did not err in imposing court costs. Accordingly,

the fifth assignment of error is overruled.

{¶59} Judgment affirmed.

It is ordered that appellee recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.
 A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

MARY EILEEN KILBANE, JUDGE

KATHLEEN ANN KEOUGH, A.J., and
TIM McCORMACK, J., CONCUR