State v. Stevens

[Cite as State v. Stevens, 2023-Ohio-3510.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY

STATE OF OHIO :
:
Appellee : C.A. No. 2023-CA-20
:
v. : Trial Court Case No. 23-CR-012
:
EDWARD S. STEVENS : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:

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OPINION

Rendered on September 29, 2023

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JENNIFER E. MARIETTA, Attorney for Appellant

ANDREW P. PICKERING, Attorney for Appellee

.............

WELBAUM, P.J.

{¶ 1} Appellant, Edward S. Stevens, appeals from his conviction in the Clark

County Court of Common Pleas after he pled guilty to one count of aggravated

possession of drugs. In support of his appeal, Stevens claims that his trial counsel

provided ineffective assistance by failing to file an affidavit of indigency prior to his

sentencing. Stevens asserts that if his trial counsel had filed such an affidavit, the trial
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court would have found him indigent and would have waived the mandatory fine that was

associated with his offense. Stevens also argues that the 12-month prison sentence he

received for his offense is contrary to law because the record reflects that the trial court

did not carefully consider the purposes and principles of felony sentencing in R.C.

2929.11 and the seriousness and recidivism factors in R.C. 2929.12. Stevens asserts

that a meaningful consideration of those statutes should have resulted in the imposition

of community control sanctions as opposed to a prison term. For the reasons outlined

below, we disagree with all of Stevens’s claims and will affirm the judgment of the trial

court.

Facts and Course of Proceedings

{¶ 2} On January 9, 2023, a Clark County grand jury returned an indictment

charging Stevens with one second-degree-felony count of aggravated trafficking in drugs,

in violation of R.C. 2925.03(A)(2), and one second-degree-felony count of aggravated

possession of drugs, in violation of R.C. 2925.11(A). The charges arose after Stevens

and his wife overdosed on drugs while they were staying at a Comfort Suites hotel in

Springfield, Ohio. Both Stevens and his wife were revived after medics treated them with

multiple doses of Narcan. During the overdose incident, police officers discovered 83.6

grams of methamphetamine in their hotel room. The officers also discovered several

loaded syringes containing a white liquid substance, a spoon with white residue, a scale,

plastic baggies, and two small bags containing other substances.

{¶ 3} Stevens pled not guilty to the charges and filed a motion to suppress the
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evidence discovered in his hotel room. Before a hearing was held on the motion to

suppress, Stevens entered a plea agreement with the State whereby he agreed to plead

guilty to an amended count of aggravated possession of drugs as a third-degree felony.

In exchange for his guilty plea to the amended count, the State agreed to dismiss the

count for aggravated trafficking in drugs. The State also agreed to a presentence

investigation (“PSI”) being conducted before sentencing. The trial court accepted

Stevens’s guilty plea to aggravated possession of drugs and scheduled a sentencing

hearing for March 30, 2023.

{¶ 4} At the sentencing hearing, Stevens argued that the information in his PSI

report indicated that a prison sentence was not warranted and that community control

sanctions was an appropriate punishment for his offense. After speaking with Stevens

regarding his drug problem and his prior criminal history, and after considering the large

amount of methamphetamine that was discovered in Stevens’s hotel room and the

reduction of Stevens’s offense from a second to third-degree felony, the trial court

sentenced Stevens to 12 months in prison. Before imposing that prison term, the trial

court specifically stated that it had considered Stevens’s PSI, the oral statements made

at sentencing, the purposes and principles of felony sentencing in R.C. 2929.11, and the

seriousness and recidivism factors in R.C. 2929.12. Also, after noting that it had

considered Stevens’s present and future ability to pay financial sanctions, the trial court

ordered Stevens to pay court costs and a mandatory fine of $5,000.

{¶ 5} Stevens appeals from his conviction and raises two assignments of error that

challenge his prison sentence and mandatory fine.
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First Assignment of Error

{¶ 6} Under his first assignment of error, Stevens contends that his trial counsel

provided ineffective assistance by failing to file an affidavit of indigency prior to his

sentencing for the purpose of waiving the mandatory fine associated with his offense.

R.C. 2929.18(B)(1) provides that: “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

upon the offender.” Stevens asserts that if his trial counsel had filed such an affidavit,

the trial court would have found him indigent and would have waived his mandatory fine,

thus establishing his trial counsel’s ineffectiveness. We disagree.

{¶ 7} In order to establish ineffective assistance of counsel, a defendant must show

that his trial counsel’s performance was both deficient and prejudicial. Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley,

42 Ohio St.3d 136, 141-142, 538 N.E.2d 373 (1989). The failure to make a showing of

either deficient performance or prejudice defeats a claim of ineffective assistance of

counsel. Strickland at 697. To establish deficient performance, “a defendant must

show that his counsel’s representation fell below an objective standard of

reasonableness.” Id. at 688. To establish prejudice, a defendant must show that “there

is a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. “A reasonable probability is a
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probability sufficient to undermine confidence in the outcome.” Id.

{¶ 8} “A number of Ohio courts have recognized that failure to file an affidavit of

indigency, under the right circumstances, can constitute prejudicial error.” State v.

Cochran, 2d Dist. Clark No. 1997-CA-50, 1998 WL 288942, *3 (June 5, 199), citing State

v. Mendoza, 6th Dist. Lucas No. L-94-242, 1995 WL 413143, *3 (July 14, 1995), State v.

Joy, 4th Dist. Lawrence Nos. 92 CA 24, 92 CA 30, 1993 WL 491325, *3 (Nov. 24, 1993),

and State v. Creech, 4th Dist. Scioto No. 92 CA 2053, 1993 WL 235566, *6 (June 30,

1993). Accord State v. Redden, 2020-Ohio-878, 152 N.E.3d 919, ¶ 46 (5th Dist.).

Specifically, this court has explained that: “The failure to file an affidavit of indigency prior

to sentencing may constitute ineffective assistance of counsel if the record shows a

reasonable probability that the trial court would have found Defendant indigent and

relieved him of the obligation to pay the fine had the affidavit been filed.” (Citations

omitted.) State v. Sheffield, 2d Dist. Montgomery No. 20029, 2004-Ohio-3099, ¶ 13.

{¶ 9} Although it is undisputed that Stevens was deemed indigent for the purpose

of receiving appointed counsel, “a finding of indigency for purposes of retaining counsel

is a separate and distinct process from finding a defendant indigent for purposes of paying

an imposed mandatory fine.” (Citations omitted.) State v. Stearns, 8th Dist. Cuyahoga

No. 71851, 1997 WL 626024, *2 (Oct. 9, 1997). This is because “the payment of a

mandatory fine over a period of time is not equivalent to the immediate need for legal

representation at the initiation of criminal proceedings.” State v. Powell, 78 Ohio App.3d

784, 790, 605 N.E.2d 1337 (3d Dist.1992). Therefore “[a] finding that a defendant is

indigent for purposes of appointed counsel does not shield the defendant from paying
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court costs or a financial sanction.” State v. Felder, 2d Dist. Montgomery No. 21076,

2006-Ohio-2330, ¶ 64, citing State v. Ayers, 2d Dist. Greene No. 2004-CA-34, 2005-Ohio-

44, ¶ 23. Accord State v. Hodge, 2d Dist. Montgomery No. 23964, 2011-Ohio-633, ¶ 55.

{¶ 10} Also, to the extent that Stevens’s ineffective assistance claim is founded on

facts outside the record on appeal, the proper vehicle to raise such a claim is a petition

for post-conviction relief pursuant to R.C. 2953.21, not a direct appeal to this court. See

State v. Howard, 2d Dist. Montgomery No. 21678, 2007-Ohio-3582, ¶ 14, citing Cochran

at *6; Sheffield at ¶ 14. Nevertheless, when reviewing the evidence that is within the

confines of the appellate record, we find that Stevens’s ineffective assistance claim lacks

merit; the record does not establish a reasonable probability that the trial court would have

found Stevens indigent and waived the fine had the affidavit been filed. Specifically, the

information in Stevens’s PSI report regarding Stevens’s age, health, education,

employment, and criminal history prohibits us from concluding that the trial court would

have found him indigent.

{¶ 11} The PSI report indicated that Stevens was 56 years old at the time of

sentencing and that Stevens had admitted to regularly using methamphetamine over the

past 25 years while working as a trucker. The PSI report also indicated that Stevens

acquired a GED in 1984 and worked for M/A Transport at the time of his arrest. The

report further indicated that Stevens was on leave at the time of his sentencing due to a

work-related injury during which he fell from a trailer and lacerated his calf. Other than

his calf injury and a 2009 car accident that resulted in the removal of 2 discs from his

spine, Stevens reported being in good physical health. Stevens advised the PSI
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examiner that he was receiving physical therapy for his calf injury and had filed a workers’

compensation claim that M/A Transport was fighting. Stevens also reported making

$1,250 to $1,500 a week while working for M/A Transport. In addition, Stevens reported

having a valid driver’s license and being insured through State Farm. The PSI report

further established that, at the time of the offense in question, Stevens had enough

disposable income to purchase $500 worth of drugs.

{¶ 12} As for Stevens’s criminal history, the PSI report indicated that between 1984

and 2019, Stevens had had multiple felony and misdemeanor convictions out of

Pennsylvania and a single conviction for violating a uniform controlled substance act in

Arkansas. In 1984, Stevens was convicted of three felonies, i.e., criminal conspiracy,

burglary, and robbery, and one misdemeanor count of criminal mischief, for which he

served a total five years in prison. See Sentencing Hearing Tr. (Mar. 30, 2023), p. 8.

The PSI report also indicated that Stevens had been convicted of retail theft in 2005 and

2019, for which he paid fines and court costs. In addition, Stevens was convicted of

driving under the influence (“DUI”) in 2019, for which he paid a fine and court costs and

served time in prison.

{¶ 13} Upon review, we find that there was nothing in the record indicating that

Stevens’s criminal history would make him unemployable, especially since Stevens had

been working as a truck driver in the years since his felony convictions and DUI. There

was also nothing in the record indicating that Stevens’s work-related injury had resulted

in a permanent disability that would prevent him from becoming employed after he was

released from prison. Any evidence to that effect would be outside the record on appeal
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and must be raised in a petition for post-conviction relief.

{¶ 14} Based on the information contained in the PSI report, we cannot say that

there is a reasonable probability that the trial court would have found Stevens indigent for

the purpose of waiving the mandatory fine. The PSI report indicated that Stevens was

not elderly, had his GED, had been steadily employed as a truck driver for 25 years

despite his criminal history and drug addiction, and had been receiving between $1,250

to $1,500 a week while working. The PSI report also indicated that Stevens was in good

health overall with the exception of his work-related calf injury. Again, there was nothing

in the record indicating that Stevens’s calf injury resulted in a permanent disability that

would prevent him from working in the future. In addition, the record established that,

after reviewing the PSI report, the trial court determined that Stevens had the present and

future ability to pay financial sanctions, which suggests that the trial court would not have

found him indigent. We also note that the record established that Stevens was able to

post a $50,000 bond in order to obtain his release from jail.

{¶ 15} Because the record establishes that there was not a reasonable probability

that the trial court would have found Stevens indigent and waived the mandatory fine, we

find that Stevens cannot establish that he was prejudiced by his trial counsel’s failure to

file an affidavit of indigency prior to sentencing. Without a showing of prejudice,

Stevens’s ineffective assistance of counsel claim fails.

{¶ 16} Stevens’s first assignment of error is overruled.

Second Assignment of Error
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{¶ 17} Under his second assignment of error, Stevens contends that his 12-month

prison sentence is contrary to law because the record establishes that the trial court did

not carefully consider the purposes and principles of felony sentencing in R.C. 2929.11

and the seriousness and recidivism factors in R.C. 2929.12. Although Stevens concedes

that the trial court had authority to sentence him to prison, Stevens asserts that a

meaningful consideration of R.C. 2929.11 and R.C. 2929.12 should have resulted in the

trial court’s imposing community control sanctions as opposed to a prison term. In other

words, Stevens is essentially arguing that, under R.C. 2929.11 and R.C. 2929.12, his 12-

month prison sentence was excessive and unsupported by the record. For the following

reasons, Stevens’s claim lacks merit.

{¶ 18} When reviewing felony sentences, appellate courts must apply the standard

of review set forth in R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-

Ohio-1002, 59 N.E.3d 1231, ¶ 7. Under that statute, an appellate court may vacate or

modify a felony sentence on appeal only if it determines by clear and convincing evidence

that the record does not support the trial court’s findings under certain enumerated

statutes or that the sentence is otherwise contrary to law. Id. at ¶ 1, 9. “A sentence is

contrary to law when it does not fall within the statutory range for the offense or if the trial

court fails to consider the purposes and principles of felony sentencing set forth in R.C.

2929.11 and the sentencing factors set forth in R.C. 2929.12.” (Citation omitted.) State

v. Brown, 2017-Ohio-8416, 99 N.E.3d 1135, ¶ 74 (2d Dist.).

{¶ 19} The Supreme Court of Ohio has clarified that “R.C. 2953.08(G)(2)(b) * * *

does not provide a basis for an appellate court to modify or vacate a sentence based on
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its view that the sentence is not supported by the record under R.C. 2929.11 and

2929.12.” State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 39.

This is because “[n]othing in R.C. 2953.08(G)(2) permits an appellate court to

independently weigh the evidence in the record and substitute its judgment for that of the

trial court concerning the sentence that best reflects compliance with R.C. 2929.11 and

2929.12.” Id. at ¶ 42. Therefore, when reviewing felony sentences that are imposed

solely after considering the factors in R.C. 2929.11 and 2929.12, this court does not

analyze whether those sentences are unsupported by the record, but only whether they

are contrary to law. State v. Dorsey, 2d Dist. Montgomery No. 28747, 2021-Ohio-76,

¶ 18.

{¶ 20} As previously noted, “[a] sentence is contrary to law when it does not fall

within the statutory range for the offense or if the trial court fails to consider the purposes

and principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors

set forth in R.C. 2929.12.” (Citation omitted.) Brown at ¶ 74. In this case, we find that

Stevens’s 12-month prison sentence is within the authorized statutory range for third-

degree felonies. See R.C. 2929.14(A)(3)(b). We also find that the record establishes

that the trial court considered the purposes and principles of felony sentencing in R.C.

2929.11 and the seriousness and recidivism factors in R.C. 2929.12. See Sentencing

Hearing Tr. (Mar, 30, 2023), p. 10-12; Sentencing Entry (Apr. 2, 2023), p. 2-3.

Accordingly, Stevens’s prison sentence is not contrary to law, meaning that there is no

basis on which we can modify or vacate Stevens’s sentence.

{¶ 21} Stevens’s second assignment of error is overruled.
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Conclusion

{¶ 22} Having overruled both of Stevens’s assignments of error, the judgment of

the trial court is affirmed.

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LEWIS, J. and HUFFMAN, J., concur.