[Cite as State v. Parks, 2021-Ohio-3946.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28827
:
v. : Trial Court Case Nos. 2018-CR-3046,
: 2019-CR-2904, 2019-CR-3633
DELON RAVEIL PARKS :
: (Criminal Appeal from
Defendant-Appellant : Common Pleas Court)
:
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OPINION
Rendered on the 5th day of November, 2021.
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MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
JEFFREY T. GRAMZA, Atty. Reg. No. 0053392, 101 Southmoor Circle NW, Kettering,
Ohio 45429
Attorney for Defendant-Appellant
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WELBAUM, J.
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{¶ 1} Defendant-appellant, Delon Raveil Parks, appeals from a judgment of the
Montgomery County Court of Common Pleas, which imposed sentence after he violated
his community control sanctions in Montgomery C.P. Nos. 2018-CR-3046, 2019-CR-
2904, and 2019-CR-3633. In support of his appeal, Parks contends that his trial counsel
provided ineffective assistance by failing to move for the waiver of court costs at
sentencing. For the reasons outlined below, the judgments of the trial court will be
affirmed.
Facts and Course of Proceedings
{¶ 2} This appeal involves three cases from the Montgomery County Court of
Common Pleas: Case Nos. 2018-CR-3046, 2019-CR-2904, and 2019-CR-3633. In
Case No. 2018-CR-3046, Parks pled guilty to aggravated possession of drugs, a fifth-
degree felony. On July 31, 2019, Parks was sentenced to community control sanctions
for that offense. As part of Parks’ community control sanctions, the trial court ordered
Parks to comply with certain financial obligations, including the payment of court costs.
Approximately three months later, the trial court received a notice that Parks had violated
the conditions of his community control. On December 31, 2019, Parks admitted to the
violation, and the trial court reinstated Parks’ community control sanctions with the added
condition that Parks complete the MonDay Program.
{¶ 3} On the same day that Parks’ community control was reinstated, Parks pled
guilty to possession of cocaine, a fifth-degree felony, in Case No. 2019-CR-2904. Parks
also pled guilty to aggravated possession of drugs, a third-degree felony, in Case No.
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2019-CR-3633. On January 22, 2020, the trial court sentenced Parks to community
control sanctions for both of those cases. As part of Parks’ community control sanctions,
the trial court once again ordered Parks to comply with certain financial obligations,
including the payment of court costs. The aggravated possession offense in Case No.
2019-CR-3633 also included a mandatory fine; however, the trial court waived the fine on
grounds that Parks was indigent.
{¶ 4} On June 4, 2020, the trial court received notices that Parks had violated the
conditions of his community control in all three cases. On June 10, 2020, Parks admitted
to all of the alleged violations, and the trial court sentenced him to prison. For Case No.
2018-CR-3046 (aggravated possession of drugs – F5), the trial court imposed 12 months
in prison. For Case No. 2019-CR-2904 (possession of cocaine – F5), the trial court also
imposed 12 months in prison. For Case No. 2019-CR-3633 (aggravated possession of
drugs – F3), the trial court imposed 24 months in prison. The trial court ordered all three
sentences to be served concurrently for a total, aggregate term of 24 months in prison.
The trial court also ordered Parks to pay court costs. Parks then appealed.
{¶ 5} On appeal, Parks’ appellate counsel filed a brief under the authority of Anders
v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the absence
of any non-frivolous issues for appeal. We rejected Parks’ Anders brief and appointed
new appellate counsel due to the record on appeal being incomplete, as multiple
transcripts were not made part of the record. Parks’ newly appointed appellate counsel
thereafter supplemented the record with the missing transcripts and filed an appellate
brief asserting a single assignment of error for our review.
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Assignment of Error
{¶ 6} Under his sole assignment of error, Parks contends that his trial counsel
provided ineffective assistance by failing to move for the waiver of court costs at any of
the sentencing hearings held in Case Nos. 2018-CR-3046, 2019-CR-2904, and 2019-CR-
3633. Specifically, Parks argues that the trial court’s decision to waive his mandatory
fine at the January 22, 2020 sentencing hearing due to indigency demonstrates a
reasonable probability that the trial court would have also granted a motion to waive his
court costs. We disagree.
{¶ 7} “[W]hen an indigent defendant makes an ineffective-assistance-of-counsel
claim based upon counsel’s failure to request a waiver of court costs, a reviewing court
must apply the test in State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d 373
(1989), which adopted the standard that had been announced in Strickland [v.
Washington, 446 U.S. 668, 194 S.Ct. 2052, 80 L.Ed.2d 674 (1984)], for determining
whether a defendant received ineffective assistance of counsel.” State v. Davis, 159
Ohio St.3d 31, 2020-Ohio-309, 146 N.E.3d 560, ¶ 1. Under that standard, “[i]n order to
prevail on an ineffective-assistance-of-counsel claim, a defendant must prove that
counsel’s performance was deficient and that the defendant was prejudiced by counsel’s
deficient performance.” Id. at ¶ 10, citing Bradley at 141-142 and Strickland at 687. The
failure to make a showing of either deficient performance or prejudice defeats a claim of
ineffective assistance of counsel. Strickland at 697.
{¶ 8} To establish deficient performance, a defendant must show that his trial
counsel’s performance fell below an objective standard of reasonable representation.
Strickland at 688; Bradley at 142. To establish prejudice, a defendant must show that
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there is “a reasonable probability that, but for counsel’s errors, the proceeding’s result
would have been different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892
N.E.2d 864, ¶ 204, citing Strickland at 687-688; Bradley at paragraph two of the syllabus.
More specifically, “when trial counsel fails to request that the trial court waive court costs
on behalf of a defendant who has previously been found to be indigent, a determination
of prejudice for purposes of an ineffective-assistance-of-counsel analysis depends upon
whether the facts and circumstances presented by the defendant establish that there is a
reasonable probability that the trial court would have granted the request to waive costs
had one been made.” Davis at ¶ 16.
{¶ 9} “Under R.C. 2947.23, a trial court is required to impose court costs against
all convicted defendants, even those who are indigent.” State v. Tucker, 2d Dist.
Montgomery No. 27694, 2019-Ohio-652, ¶ 23, citing State v. White, 103 Ohio St.3d 580,
2004-Ohio-5989, 817 N.E.2d 393, ¶ 8. The trial court, however, has the discretion to
waive court costs if the defendant makes a motion to waive costs. State v. Swartz, 2d
Dist. Miami No. 2019-CA-17, 2020-Ohio-5037, ¶ 31, citing State v. Hawley, 2d Dist.
Montgomery No. 25897, 2014-Ohio-731, ¶ 13. There is no limit on when a defendant
can move for a waiver of court costs. State v. West, 2d Dist. Greene No. 2015-CA-72,
2017-Ohio-7521, ¶ 31. R.C. 2947.23(C) provides that the trial court “retains jurisdiction
to waive, suspend, or modify the payment of the costs of prosecution * * *, at the time of
sentencing or at any time thereafter.”
{¶ 10} The Supreme Court of Ohio in Davis, 159 Ohio St.3d 31, 2020-Ohio-309,
146 N.E.3d 560 explained that:
An appellate court’s reliance on the fact that a defendant may move
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for a waiver of costs at a later time under R.C. 2947.23(C) in its prejudice
analysis is improper. Whether the defendant may move for a waiver of
court costs at a later time has little or no bearing on whether the trial court
would have granted a motion to waive court costs at the time of sentencing.
The enactment of R.C. 2947.23(C) did not change how courts of appeals
should evaluate the prejudice prong of the ineffective-assistance-of-counsel
analysis. The analysis remains the same: a court must review the facts
and circumstances of each case objectively and determine whether
the defendant demonstrated a reasonable probability that had his
counsel moved to waive court costs, the trial court would have
granted that motion.
To evaluate whether a defendant has been prejudiced, as part of an
ineffective-assistance-of-counsel claim, a court does not assess whether
the defendant was simply harmed by counsel’s alleged deficient
performance. More specifically, the court does not analyze whether the
defendant has been required to pay court costs at a given moment * * *, or
even whether the defendant has the ability to have court costs waived in the
future. Furthermore, a determination of indigency alone does not rise
to the level of creating a reasonable probability that the trial court
would have waived costs had defense counsel moved the court to do
so, contrary to the Eighth District’s holding in [State v. Gibson, 8th Dist.
Cuyahoga No. 104363, 2017-Ohio-102] and in [State v. Springer, 8th Dist.
Cuyahoga No. 104649, 2017-Ohio-8861]. See State v. Dean, 146 Ohio
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St.3d 106, 2015-Ohio-4347, 54 N.E.3d 80, ¶ 233; State v. Smith, 12th Dist.
Warren No. CA2010-06-057, 2011-Ohio-1188, ¶ 63-64 (an indigent
defendant fails to show that there is a reasonable probability that the trial
court would have waived costs when the trial court made a finding that the
defendant had the ability to work and therefore had the ability to pay the
costs in the future), rev’d in part on other grounds, 131 Ohio St.3d 297,
2012-Ohio-781, 964 N.E.2d 423. The court of appeals, instead, must
look at all the circumstances that the defendant sets forth in
attempting to demonstrate prejudice and determine whether there is a
reasonable probability that the trial court would have granted a motion
to waive costs had one been made.
(Emphasis added.) Davis at ¶ 14-15. Accord Swartz, 2d Dist. Miami No. 2019-CA-17,
2020-Ohio-5037, at ¶ 32.
{¶ 11} As previously noted, Parks argues that the trial court’s decision to waive his
mandatory fine at the January 22, 2020 sentencing hearing due to indigency
demonstrates that there was a reasonable probability that the trial court would have also
granted a motion to waive his court costs at any one of his sentencing hearings in Case
Nos. 2018-CR-3046, 2019-CR-2904, and 2019-CR-3633. A similar argument was
rejected by the Fifth District Court of Appeals in State v. Ramsey, 5th Dist. Licking No.
17-CA-76, 2020-Ohio-3107. The appellant in Ramsey relied on the trial court’s finding
that he was indigent and appointed him defense counsel and waived the payment of a
mandatory fine to support his argument that there was a reasonable probability that the
trial court would have waived court costs if a motion had been made. Id. at ¶ 15. In
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rejecting that argument, the Fifth District relied on the Supreme Court of Ohio’s decision
in Davis holding that “a determination of indigency alone does not rise to the level of
creating a reasonable probability that the trial court would have waived costs had defense
counsel moved the court to do so.” Id. at ¶ 8 and ¶ 15, quoting Davis at ¶ 15.
{¶ 12} After reviewing the record, which included a presentence investigation
report (“PSI”), the Fifth District found that although the appellant in Ramsey was
unemployed, he would “sub-contract and work on cars” and thus “[had] the ability to earn
an income after his release from prison and pay his court costs.” Id. at ¶ 16. Because
the appellant in Ramsey did not present any further facts or circumstances to support a
finding that there was a reasonable probability that the trial court would have granted a
motion to waive court costs, the court in Ramsey concluded that the appellant failed to
establish prejudice and thus denied appellant’s ineffective assistance of counsel claim.
Id. at ¶ 15-19.
{¶ 13} We agree with the aforementioned analysis set forth in Ramsey.
Therefore, like Ramsey, we find that simply because the trial court in this case waived
Parks’ mandatory fine based on indigency does not by itself create a reasonable
probability that the trial court would have granted a motion to waive court costs had one
been made during one of Parks’ sentencing hearings. Parks has not provided any other
facts or circumstances indicating that the trial court would have granted a motion to waive
court costs. The PSI established that Parks was only 46 years old at the time of
sentencing and was not physically or mentally incapable of working or paying costs in the
future. Although the PSI indicated that Parks suffered from “waistline whiplash” due to
slipping on black ice, as well as from depression and suicidal ideations, Parks
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nevertheless reported being employed at Labor Works since 2019 and at Ohio Energy
since 2010. Parks also reported that he was previously employed by Rogers & Sons
Construction between 1992 and 2012, that he obtained his GED in 1992, and that he
attended community college in 2011 and 2012. Therefore, when considering Parks’
ability to work and earn income, it would be at best speculative to find that the trial court
would have granted a motion to waive court costs. See West, 2d Dist. Greene No. 2015-
CA-72, 2017-Ohio-7521, at ¶ 32.
{¶ 14} For the foregoing reasons, we find that Parks failed to establish any
prejudice arising from his trial counsel’s failure to move for a waiver of court costs at
sentencing. Because Parks failed to establish prejudice, his ineffective assistance of
counsel claim lacks merit.
{¶ 15} Parks’ sole assignment of error is overruled.
Conclusion
{¶ 16} Having overruled Parks’ assignment of error, the judgments of the trial court
are affirmed.
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TUCKER, P.J. and HALL, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Jeffrey T. Gramza
Delon Raveil Parks
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Hon. Dennis J. Adkins