State v. Brooks

[Cite as State v. Brooks, 2024-Ohio-420.]

IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
ATHENS COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. 22CA17

v. :

RAYMOND E. BROOKS, : DECISION AND JUDGMENT ENTRY

Defendant-Appellant. :

_________________________________________________________________

APPEARANCES:

Christopher Pagan, Middletown, Ohio, for appellant1.

Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry
M. Saunders, Athens County Assistant Prosecuting Attorney, Athens,
Ohio, for appellee.
__________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:2-1-24
ABELE, J.

{¶1} This is an appeal from an Athens County Common Pleas

Court judgment of conviction and sentence. Raymond Brooks,

defendant below and appellant herein, assigns five errors for

review:

FIRST ASSIGNMENT OF ERROR:

“BROOKS’ PLEA TO F2 AGGRAVATED ARSON WAS
UNCONSTITUTIONAL BECAUSE IT WAS NOT KNOWING,

1
Different counsel represented appellant during the trial
court proceedings.
 2
ATHENS, 22CA17

INTELLIGENT, NOR VOLUNTARY.”

SECOND ASSIGNMENT OF ERROR:

“TRIAL COUNSEL WAS INEFFECTIVE FOR FAILING TO
ENFORCE THE STATE’S PLEA AGREEMENT TO A 10-YEAR
REGISTRATION REQUIREMENT.”

THIRD ASSIGNMENT OF ERROR:

“THE STATE BREACHED THE PLEA AGREEMENT’S TERM
FOR A 10-YEAR REGISTRATION REQUIREMENT.”

FOURTH ASSIGNMENT OF ERROR:

“THE PROSECUTOR’S FAILURE TO PROVIDE A BILL OF
INFORMATION [SIC.] WAS PREJUDICIAL BECAUSE IT
DEPRIVED BROOKS FROM UNDERSTANDING THE NATURE
OF THE VANDALISM OFFENSE.”2

FIFTH ASSIGNMENT OF ERROR:

“THE TRIAL COURT ERRED BY IMPOSING COSTS.”

{¶2} Appellant broke into his ex-girlfriend’s home, stole a

dog crate, opened faucets, flooded her home, vandalized her new

boyfriend’s truck and belongings, and later hired another man to

set fire to her home.

{¶3} In May 2021, an Athens County Grand Jury returned an

indictment that charged appellant with (1) one count of aggravated

arson in violation of R.C. 2909.02(A)(2), a second-degree felony,

2
Here it is obvious that appellant intended to include a
“bill of particulars,” but due to scrivener’s error referred to a
“bill of information.”
 3
ATHENS, 22CA17

(2) one count of burglary in violation of R.C. 2911.12(A)(3), a

third-degree felony, and (3) one count of vandalism in violation of

R.C. 2909.05(B)(1)(b), a fifth-degree felony. Appellant pleaded

not guilty to all charges.

{¶4} Appellant filed a request for a bill of particulars on

August 18, 2021. After counsel withdrew and the trial court

appointed new counsel, new counsel filed a request for a bill of

particulars.

{¶5} At the August 9, 2022 change of plea hearing, appellee

noted that appellant would change his plea to “guilty to the

indictment,” that the state and appellant did not reach a joint

sentencing recommendation, and appellee sought a prison term. The

state further noted that appellant will be required to register

with the arson registry “annually for ten years.” The trial court

explained appellant’s maximum prison sentence, fines, restitution,

Reagan Tokes Act requirements, and postrelease control obligations.

In addition, the court informed appellant that he would be

“required to register annually [for the arson registry] for up to

ten years.” Appellant pleaded guilty to the indictment.

{¶6} At sentencing, appellee stated that appellant broke into

ex-girlfriend Sunshine Mayles’ apartment, stole a dog crate, turned

on the faucets, flooded her home, damaged Mayles’ new boyfriend
 4
ATHENS, 22CA17

Joseph Byers’ work truck, and, about a week later, hired another

man to set fire to Mayles’ home, drove him there and left. The

person who set the fire pleaded guilty and agreed to testify

against appellant. Appellee also pointed out that appellant has a

2001 arson conviction. The state requested 6 to 9 years in prison

and restitution of $12,602 to Sunshine Mayles, $3,841.70 to Joseph

Byers, and $1,200 to Joseph Bishop (home owner).

{¶7} Joseph Byers, victim in the vandalism count, stated that

appellant vandalized his 1998 GMC 3500 1-ton flatbed truck,

including the tires, window, door glasses, windshield, ignition

switch, and toolbox lock. Byers uses the truck for his “trader

business,” where he offers “handyman services[,] * * * hauling

stuff for people and helping clean out houses.” Byers has “been

out of work because of [the vandalism to his truck]” and lost

customers because he does not have the estimated $2,300 for

repairs. In addition to the vehicle, the flood and fire damaged

his Apple Macbook Pro with vehicle diagnostic software valued at

$1,400. In addition to the damage, appellant followed and

threatened him. With other damages, the state sought $3,841.70 for

Byers. Sunshine Mayles also sustained damages to property from the

fire and flood that totaled $12,602. She also testified that

appellant continued to threaten her after the crimes and while
 5
ATHENS, 22CA17

released on bond.

{¶8} The trial court sentenced appellant to (1) serve a 12-

month prison term on Count 3, vandalism, (2) serve a 36-month

prison term on Count 2, burglary, to be served concurrently with

Count 3, (3) serve an indefinite term of 8-12 years on Count 1

aggravated arson to be served concurrently to Counts 2 and 3 for a

term of 8-12 years, (4) serve an 18-month to 3-year postrelease-

control term, (5) pay $3,841.70 in restitution to Joseph Byers, (6)

pay $12,602 in restitution to Sunshine Mayles, (7) pay $1,200 in

restitution to Joseph Bishop, and (8) register with the R.C.

2904.14 arson offender registry annually for life. This appeal

followed.

I.

{¶9} In his first assignment of error, appellant asserts that

he did not enter a knowing, intelligent, and voluntary plea to the

aggravated arson charge. Specifically, appellant contends that he

“was made to believe that his F2 Aggravated Arson offense carried a

10-year registration requirement,” but the trial court sentenced

him to register with the Arson Offender Registry for life.

{¶10} “Crim.R. 11 governs the process of entering a plea.”

State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d

1224, ¶ 8. “A defendant enters a plea in a knowing, intelligent,
 6
ATHENS, 22CA17

and voluntary manner when the trial court fully advises the

defendant of all the constitutional and procedural protections set

forth in Crim.R. 11(C) that a guilty plea waives.” State v. Day,

2019-Ohio-4816, 149 N.E.3d 112, ¶ 23 (4th Dist.), citing State v.

Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25;

State v. Weber, 4th Dist. Hocking No. 20CA6, 2021-Ohio-1804, ¶ 7.

To achieve that goal, “the trial court should engage in a dialogue

with the defendant as described in Crim.R. 11(C).” State v. Ruby,

4th Dist. Adams No. 3CA780, 2004-Ohio-3708, ¶ 8, citing Crim.R.

11(C)(2)(a). During that colloquy, the court may not accept a plea

in a felony case under Crim.R. 11(C)(2) without doing all of the

following:

(a) Determining that the defendant is making the plea
voluntarily, with understanding of the nature of the
charges and of the maximum penalty involved, and if
applicable, that the defendant is not eligible for
probation or for the imposition of community control
sanctions at the sentencing hearing.

(b) Informing the defendant of and determining that the
defendant understands the effect of the plea of guilty or
no contest, and that the court, upon acceptance of the
plea, may proceed with judgment and sentence.

(c) Informing the defendant and determining that the
defendant understands that by the plea the defendant is
waiving the rights to jury trial, to confront witnesses
against him or her, to have compulsory process for
obtaining witnesses in the defendant's favor, and to
require the state to prove the defendant's guilt beyond a
reasonable doubt at a trial at which the defendant cannot
be compelled to testify against himself or herself.
 7
ATHENS, 22CA17

{¶11} A trial court must substantially comply with Crim.R.

11(C)(2)(a) and (b) when it reviews a defendant’s non-

constitutional rights (maximum penalty involved, understanding

effect of plea, etc.). State v. Veney, 120 Ohio St.3d 176, 2008-

Ohio-5200, 897 N.E.2d 621, ¶ 18. “‘[S]ubstantial compliance’ means

that ‘under the totality of the circumstances the defendant

subjectively understands the implications of his plea and the

rights he is waiving.’” State v. Morrison, 4th Dist. Adams No.

07CA854, 2008-Ohio-4913, ¶ 9, quoting State v. Puckett, 4th Dist.

Scioto No. 3CA2920, 2005-Ohio-1640, ¶ 10, citing State v. Stewart,

51 Ohio St.2d 86, 364 N.E.2d 1163 (1977); State v. Carter, 60 Ohio

St.2d 34, 396 N.E.2d 757 (1979). When a trial court reviews a

defendant’s constitutional rights (right to a jury trial, right to

call witnesses, etc.), it must strictly comply with Crim.R.

11(C)(2)(c). See Veney at ¶ 18. However, “strict compliance” does

not mean literal compliance. State v. Adams, 4th Dist. Washington

No. 15CA44, 2016-Ohio-2757, ¶ 11, citing State v. Kerns, 4th Dist.

Highland No. 15CA6, 2016-Ohio-63, ¶ 30-33. Thus, a court need not

engage in a “word-for-word recitation of the criminal rule, so long

as the trial court actually explains the rights to the defendant.”

Id. at ¶ 12, citing Veney at ¶ 27.
 8
ATHENS, 22CA17

{¶12} “The ultimate inquiry when reviewing a trial court's

acceptance of a guilty plea is whether the defendant entered the

plea in a knowing, intelligent, and voluntary manner.” Day, supra,

at ¶ 23, citing Veney, supra, 120 Ohio St.3d 176 at ¶ 7. “In

determining whether a guilty or no contest plea is knowing,

intelligent, and voluntary, an appellate court must examine the

totality of the circumstances through a de novo review of the

record to ensure that the trial court complied with constitutional

and procedural safeguards.” State v. Meade, 4th Dist. Scioto No.

17CA3816, 2018-Ohio-3544, ¶ 6, citing State v. Billiter, 2018-Ohio-

733, 106 N.E.3d 785, ¶ 15 (4th Dist.), citing State v. Cooper, 4th

Dist. Athens No. 11CA15, 2011-Ohio-6890, ¶ 35.

{¶13} In general, when an erroneous understanding of the

applicable law induces a defendant’s plea, the plea is not knowing

or intelligent. See State v. Felts, 4th Dist. Ross No. 13CA3407,

2014-Ohio-2378, ¶ 21 (guilty plea based on misinformation

concerning an in limine ruling being appealable), citing State v.

Bryant, 4th Dist. Meigs No. 11CA19, 2012-Ohio-3189, ¶ 14-16 (guilty

plea based on misinformation concerning defendant’s eligibility for

judicial release). “A guilty plea that is not entered knowingly,

intelligently, and voluntarily is void.” State v. Collins, 4th

Dist. Lawrence No. 18CA11, 2019-Ohio-3428, ¶ 7, citing State v.
 9
ATHENS, 22CA17

Moore, 165 Ohio App.3d 538, 2006-Ohio-114, 847 N.E.2d 452, ¶ 22

(4th Dist.), citing McCarthy v. United States, 394 U.S. 459, 89

S.Ct. 1166, 22 L.Ed.2d 418 (1969).

{¶14} In the case sub judice, during the change of plea hearing

the prosecutor stated that appellant would be required to register

with the arson offender registry “* * * annually for ten years.”

The trial court also stated that appellant “would be required to

register annually for up to ten years.” Appellant contends that,

although the statute permitted the trial court to impose a lifetime

registration term, the prosecutor and trial court’s erroneous

statements “informed his decision” to plead guilty. Thus,

appellant did not enter his plea knowingly, intelligently, and

voluntarily if based on the mistaken impression that his arson

registry registration requirement would be ten years, when the

trial court subsequently imposed a lifetime registration.

{¶15} An arson offender must register annually, in person, with

the sheriff of the county in which he or she resides. R.C.

2909.15. This is a lifetime requirement, unless modified by the

trial court. R.C. 2909.15(D)(2). Further, registration is

mandatory for all arson offenders; an arson offender is any person

convicted of arson or aggravated arson, or any person convicted of

an attempt, conspiracy, or complicity in committing these crimes.
 10
ATHENS, 22CA17

R.C. 2909.14(A), R.C. 2909.13(B)(1), and R.C. 2909.13(A).

Moreover, pursuant to R.C. 2909.14(A)(2), a trial court is not

required to notify the offender of the arson offender registry

requirements at sentencing if the court sentences the offender to a

term of confinement: “If an arson offender is sentenced on or after

the effective date of this section for an arson-related offense and

the judge does not sentence the arson offender to a prison term * *

* the judge shall provide the notice to the arson offender at the

time of the arson offender’s sentencing.” Consequently, in the

case at bar the statute does not require the trial court to notify

appellant about the arson registry requirements at sentencing, much

less at the plea hearing.

{¶16} The Second District Court of Appeals recently affirmed a

conviction when the trial court failed to mention the arson

registration notification during the plea hearing. In State v.

Perdue, 2022-Ohio-722 , 185 N.E.3d 683,(2d Dist.), the court

observed that, whether a consequence of a guilty plea is part of a

defendant’s maximum sentence turns on whether the consequence is

part of the defendant’s punishment or, instead, is a remedial,

collateral consequence of the plea. Id. at ¶ 15. The Perdue court

pointed to other appellate districts that have concluded that the

arson registration requirements are a remedial, collateral
 11
ATHENS, 22CA17

consequence, and a trial court’s failure at the plea hearing to

advise a defendant of the arson registration requirements does not

violate Crim.R. 11(C)(a) or affect the knowing, intelligent, and

voluntary nature of a defendant’s plea. Id., citing State v.

Rogers, 8th Dist. Cuyahoga Nos. 105335, 2017-Ohio-9161, ¶ 25

(because they are collateral consequences and not punishment,

Crim.R. 11 does not require a trial court to inform a defendant of

registration and notification requirements), State v. Magby, 7th

Dist. Mahoning No. 17MA6, 2019-Ohio-877, ¶ 33 (because appellant

sentenced to term of incarceration, trial court substantially

complied with non-constitutional advisements of Crim.R. 11(C) when

did not fully notify appellant of lifetime arson registration

requirement). Thus, with remedial registrations a trial court is

not required to inform defendants of registration and notification

requirements pursuant to Crim.R. 11. Magby at ¶ 30.

{¶17} In addition, other appellate districts that have

considered the issue in the context of retroactive application have

concluded that the arson registration scheme is remedial. See

State v. Caldwell, 2014-Ohio-3566, 18 N.E.3d 467,¶ 21, ¶ 35 (1st

Dist.), State v. Jones, 6th Dist. Lucas No. L-16-1014, 2017-Ohio-

413, ¶ 25; State v. Reed, 2014-Ohio-5463, 25 N.E.3d 480, ¶ 85 (11th

Dist.); State v. Galloway, 2015-Ohio-4949, 50 N.E.3d 1001, ¶ 36
 12
ATHENS, 22CA17

(5th Dist.)

{¶18} Therefore, although guilty pleas that involve some degree

of misinformation may be invalid, see Felts, supra, and Bryant,

supra, we conclude in the case sub judice that if the trial court

is not required to notify appellant of arson offender registry

requirements, the court’s misstatement did not affect the validity

of appellant’s plea. Moreover, a lifetime arson registry

registration requirement appears to pale in comparison to

appellant’s willingness to plead guilty to an indictment that

includes an 8-to 12-year prison sentence.

{¶19} Accordingly, based upon the foregoing reasons, we

overrule appellant’s first assignment of error.

II.

{¶20} In his second assignment of error, appellant asserts that

trial counsel provided ineffective assistance of counsel. In

particular, he argues that trial counsel failed to enforce what he

calls “the state’s plea agreement” to a 10-year registration

requirement.

{¶21} The Sixth Amendment to the United States Constitution,

and Article I, Section 10 of the Ohio Constitution, provide that

defendants in all criminal proceedings shall have the assistance
 13
ATHENS, 22CA17

of counsel for their defense. The United States Supreme Court

has generally interpreted this provision to mean a criminal

defendant is entitled to the “reasonably effective assistance”

of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984); accord Hinton v. Alabama, 571 U.S.

263, 272, 134 S.Ct. 1081, 188 L.Ed.2d 1 (2014) (Sixth

Amendment right to counsel means “that defendants are entitled

to be represented by an attorney who meets at least a minimal

standard of competence”).

{¶22} To establish constitutionally ineffective assistance

of counsel, a defendant must show that (1) his counsel’s

performance is deficient and (2) the deficient performance

prejudiced the defense and deprived the defendant of a fair

trial. E.g., Strickland, 466 U.S. at 687; State v. Myers, 154

Ohio St.3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 183; State v.

Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶

85. “Failure to establish either element is fatal to the

claim.” State v. Jones, 4th Dist. Scioto No. 06CA3116, 2008-

Ohio-968, ¶ 14. Therefore, if one element is dispositive, a

court need not analyze both. State v. Madrigal, 87 Ohio St.3d

378, 389, 721 N.E.2d 52 (2000) (a defendant’s failure to satisfy

one of the ineffective-assistance-of-counsel elements “negates a
 14
ATHENS, 22CA17

court’s need to consider the other”).

{¶23} Moreover, when considering whether trial counsel’s

representation amounts to deficient performance, “a court must

indulge a strong presumption that counsel’s conduct falls within

the wide range of reasonable professional assistance.” Strickland,

466 U.S. at 689. Thus, “the defendant must overcome the

presumption that, under the circumstances, the challenged action

might be considered sound trial strategy.” Id. Additionally, “[a]

properly licensed attorney is presumed to execute his duties in an

ethical and competent manner.” State v. Taylor, 4th Dist.

Washington No. 07CA11, 2008-Ohio-482, ¶ 10, citing State v. Smith,

17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). Therefore, a

defendant bears the burden to show ineffectiveness by demonstrating

that counsel’s errors were “so serious” that counsel failed to

function “as the ‘counsel’ guaranteed * * * by the Sixth

Amendment.” Strickland, 466 U.S. at 687; e.g., State v. Gondor,

112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62; State v.

Hamblin, 37 Ohio St.3d 153, 524 N.E.2d 476 (1988).

{¶24} To establish prejudice, a defendant must demonstrate

that a reasonable probability exists that “‘but for counsel’s

errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to
[Cite as State v. Brooks, 2024-Ohio-420.]

undermine the outcome.’” Hinton, 571 U.S. at 275, quoting

Strickland, 466 U.S. at 694; e.g., State v. Short, 129 Ohio

St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113; State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph

three of the syllabus; accord State v. Spaulding, 151 Ohio St.3d

378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 91 (prejudice component

requires a “but for” analysis). “‘[T]he question is whether

there is a reasonable probability that, absent the errors, the

factfinder would have had a reasonable doubt respecting guilt.’”

Hinton, 571 U.S. at 275, quoting Strickland, 466 U.S. at 695.

Furthermore, courts ordinarily may not simply presume the existence

of prejudice but, instead, must require a defendant to

affirmatively establish prejudice. State v. Clark, 4th Dist.

Pike No. 02CA684, 2003-Ohio-1707, ¶ 22; State v. Tucker, 4th

Dist. Ross No. 01CA2592, 2002 WL 507529 (Apr. 2, 2002); see

generally Roe v. Flores-Ortega, 528 U.S. 470, 483, 120 S.Ct. 1029,

145 L.Ed.2d 985 (2000) (prejudice may be presumed in limited

contexts, none of which are relevant here).

{¶25} In the case sub judice, we first point out that the

parties did not submit to the court a joint sentencing

recommendation. Second, we conclude that even if we assume,

arguendo, that a plea agreement limited the arson registration

requirement to 10 years, we do not believe appellant has been
[Cite as State v. Brooks, 2024-Ohio-420.]

prejudiced. As appellee points out, a trial court is not required

to notify an arson offender of his registration requirements if the

offender is sentenced to a term of confinement. State v. Magby,

supra, at ¶ 32. R.C. 2909.14(A)(2), Notice of arson offender’s

duty to register, provides:

(A) Each arson offender shall be provided notice of the
arson offender's duty to register personally with the
sheriff of the county in which the arson offender resides
or that sheriff's designee. The following persons shall
provide the notice at the following times:

* * *

(2) If an arson offender is sentenced on or after the
effective date of this section for an arson-related offense
and the judge does not sentence the arson offender to a
prison term, term of imprisonment, or other term of
confinement in a jail, workhouse, state correctional
institution, or other institution for that offense, the
judge shall provide the notice to the arson offender at
the time of the arson offender's sentencing. (Emphasis
added).

Moreover, the record submitted in the case sub judice indicates

that the change of plea document, that appellant signed, does not

mention arson registration requirements. Further, the transcript

from the change of plea hearing reveals that, concerning the Notice

of Duty to Register as an Arson Offender, defense counsel stated,

“We’ll complete this at Sentencing at the conclusion of the case.”

{¶26} Accordingly, based upon the foregoing reasons and because

appellant did not establish prejudice, we overrule appellant’s
[Cite as State v. Brooks, 2024-Ohio-420.]

second assignment of error.

III.

{¶27} In his third assignment of error, appellant asserts that

the state breached the plea agreement’s term for a ten-year

registration requirement. However, our resolution of assignments

one and two renders appellant’s third assignment of error moot.

IV.

{¶28} In his fourth assignment of error, appellant asserts that

the prosecutor’s failure to provide “a bill of information [sic.]”

prejudiced him because it deprived him of understanding the nature

of the vandalism offense. In particular, appellant argues that the

subsection of the vandalism statute listed in the indictment, R.C.

2929.05(B)(1)(b), criminalizes damaging property “necessary” for

the victim’s business, trade, or occupation. Thus, appellant

contends, the state must prove the damaged truck was necessary for

the victim’s business or trade and the state’s failure to provide a

bill of particulars prejudiced him.

{¶29} Our review of the record reveals that appellant filed a

request for a bill of particulars each time the trial court

appointed a new attorney, but the state failed to furnish appellant
[Cite as State v. Brooks, 2024-Ohio-420.]

with a bill of particulars notwithstanding those requests.

Crim.R. 7(E) provides:

When the defendant makes a written request within twenty-
one days after arraignment but not later than seven days
before trial, or upon court order, the prosecuting attorney
shall furnish the defendant with a bill of particulars
setting up specifically the nature of the offense charge
and of the conduct of the defendant alleged to constitute
the offense. A bill of particulars may be amended at any
time subject to such conditions as justice requires.

(Emphasis added.) See also State v. Haynes, __Ohio St.3d
__, 2022-Ohio-4473, __ N.E.3d. __, ¶ 19 and ¶ 22.

Thus, appellee should have provided appellant with a bill of

particulars. However, because appellant failed to raise this issue

in the trial court, he has waived all but plain error. See State

v. Cooper, 3d Dist. Marion No. 9-22-69, 2023-Ohio-2100, ¶ 13

(defendant waived all but plain error when failed to raise in trial

court concerns about lack of bill of particulars, much less raise

his constitutional argument).

{¶30} To establish plain error under Crim.R. 52(B), the party

claiming error must establish: (1) that an error, i.e., a deviation

from a legal rule, occurred; (2) that the error was an “obvious”

defect in the trial proceedings; and (3) that this obvious error

affected substantial rights, i.e., the error must have affected the

outcome of the trial. State v. Morgan, 153 Ohio St.3d 196, 2017-

Ohio-7565, 103 N.E.3d 784, ¶ 36. Consequently, the appellant must
[Cite as State v. Brooks, 2024-Ohio-420.]

demonstrate a reasonable probability exists that, but for the trial

court's error, the outcome of the proceeding would have been

otherwise. State v. West, 168 Ohio St.3d 605, 2022-Ohio-1556, 200

N.E.3d 1048, ¶ 35-36. Under the plain error standard, “the

defendant bears the burden of ‘showing that but for a plain or

obvious error, the outcome of the proceeding would have been

otherwise, and reversal must be necessary to correct a manifest

miscarriage of justice.’ ” West at ¶ 22, quoting State v.

Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, ¶

16. Appellant bears the burden to establish prejudice. See State

v. Davis, 3d Dist. Seneca No. 13-16-30, 2017-Ohio-2916, ¶ 23. An

appellate court has discretion to notice plain error and therefore

is not required to correct it. Id.; State v. Dixon, 2022-Ohio-

4454, 203 N.E.3d 770, ¶ 41 (4th Dist.).

{¶31} Here, appellant did not raise any plain error argument.

State v. Schneider, 4th Dist. Athens No. 19CA1, 2021-Ohio-653, ¶ 47

(appellant did not suggest plain error and not appellate court's

duty to construct argument), citing State v. Steers, 4th Dist.

Washington No. 11CA33, 2013-Ohio-3266, ¶ 20. Accord State v.

Brown, 9th Dist. Lorain Nos. 20CA011646, 2021-Ohio-2161, ¶ 15

(declining to construct plain-error argument on appellant's

behalf); State v. Oghojafor, 2023-Ohio-44, 205 N.E.3d 687, ¶ 104

(12th Dist.)(declining to construct plain-error argument on
[Cite as State v. Brooks, 2024-Ohio-420.]

appellant's behalf). Furthermore, it is apparent that appellee

provided many details that surrounded the commission of the

offenses so that it is extremely doubtful that appellant did not

have a complete understanding of the allegations and of his

involvement.

{¶32} Thus, based upon the foregoing reasons, we overrule

appellant’s fourth assignment of error.

V.

{¶33} In his fifth assignment of error, appellant asserts that

the trial court erred when it imposed costs. In particular,

appellant argues that his indigency affidavit showed no employment

income, and, although he received disability, he parented two

dependent children. Therefore, appellant contends, insufficient

evidence existed to conclude that he could pay the confinement and

assigned-counsel costs. Further, appellant argues that the trial

court only announced prosecution costs at the sentencing hearing,

but later included supervision, confinement, and assigned-counsel

costs in the sentencing judgment entry.

{¶34} Appellee, however, argues that because the joint plea

agreement included the requirement that appellant pay costs, the
[Cite as State v. Brooks, 2024-Ohio-420.]

trial court does not need to determine whether appellant has the

ability to pay.

Here, the plea agreement states:

Plead to the indictment and argue sentencing. Joint
recommendation for a presentence investigation. State to
request the following restitution figures: Joseph Bishop:
$1,200, Sunshine Mayles: $13,990, Joseph Byers, $3841.70.
Mandatory post release control from 18 months to 3 years.
Court costs to be paid at a time provided by the Court.

Consequently, appellant arguably agreed to pay all court costs as

part of the negotiated plea agreement. Additionally, appellant has

not lost the ability to seek a waiver of costs [under R.C.

2947.23(C)].) State v. Savage, 4th Dist. Meigs No. 15CA2, 2015–

Ohio–4205, ¶ 32 (defendant not precluded from seeking waiver of

costs based on claimed indigency since R.C. 2947.23(C) amendment);

State v. Williams, 3d Dist. Auglaize No. 2–13–31, 2014–Ohio–4425, ¶

17 (any error trial counsel made by failing to object to costs at

sentencing not prejudicial when appellant retained ability to seek

waiver under court's continuing jurisdiction granted in R.C.

2947.23(C)); State v. Willison, 4th Dist. Athens No. 18CA18, 2019-

Ohio-220, ¶ 27. However, it does appear that the trial court’s

imposition of “costs” may have included components beyond those

that the parties contemplated at the time of their agreement.

{¶35} In State v. Taylor, 163 Ohio St.3d 508, 2020-Ohio-6786,

171 N.E.3d 290, the Supreme Court of Ohio held that, although a
[Cite as State v. Brooks, 2024-Ohio-420.]

trial court may assess court appointed counsel fees without making

an ability-to-pay finding, those fees should not be included as

part of a sentence for a criminal conviction and, instead, should

be listed separately as a civil matter and in a separate entry. It

appears that Taylor may be applicable in the case at bar and the

trial court and the parties should have an opportunity to re-visit

this issue.

{¶36} Thus, based upon the foregoing reasons, we sustain

appellant’s final assignment of error. Accordingly, we hereby

affirm the trial court’s judgment in part, reverse the judgment in

part, and remand the matter for further consideration of the

imposition of court costs.

JUDGMENT AFFIRMED IN PART,
REVERSED IN PART AND REMANDED
FOR FURTHER PROCEEDINGS
CONSISTENT WITH THIS OPINION.
ATHENS, 22CA17 23

JUDGMENT ENTRY

It is ordered that the judgment be affirmed in part, reversed
in part, and remanded for further proceedings. Appellant shall
recover of appellee the 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 Athens County Common Pleas Court to carry this
judgment into execution.

If a stay of execution of sentence and release upon bail has
been previously granted by the trial court or this court, it is
temporarily continued for a period not to exceed 60 days upon the
bail previously posted. The purpose of a continued stay is to
allow appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of the proceedings in
that court. If a stay is continued by this entry, it will
terminate at the earlier of the expiration of the 60-day period, or
the failure of the appellant to file a notice of appeal with the
Supreme Court of Ohio in the 45-day appeal period pursuant to Rule
II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal
prior to expiration of 60 days, the stay will terminate as of the
date of such dismissal.

A certified copy of this entry shall constitute that mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.

Smith, P.J. & Hess, J.: Concur in Judgment & Opinion

For the Court

BY:_____________________________
Peter B. Abele, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
ATHENS, 22CA17 24

commences from the date of filing with the clerk.