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Ohio Supreme Court: Ineffective Assistance of Counsel Analysis Applies to Failure to Seek Waiver of Court Costs

by David M. Reutter

The Supreme Court of Ohio held that when trial counsel fails to request a waiver of costs on behalf of a defendant who has previously been found indigent, the reviewing court must make a prejudice determination under the ineffective assistance of counsel analysis.

The Court’s decision came in a certified-conflict case in which the Court was asked to determine whether trial counsel’s failure to file a motion to waive costs at a defendant’s sentencing hearing constitutes ineffective assistance of counsel when the defendant has previously been found indigent. This question arose after the Fifth and Eighth District Court of Appeals reached differing conclusions on the matter.

The Eighth District in State v. Gibson, 2017 Ohio App. LEXIS 107 (2017), found that “a prior finding by the trial court that a defendant was indigent demonstrated a reasonable probability that the trial court would have waived costs had counsel made a timely motion.” In the case before the court, the Fifth District rejected that rationale. It found that opinion predated a 2013 amendment to R.C. 2947.23(C), which allows a trial court to waive costs of prosecution at any time after sentencing. As the appellant, Benjamin A. Davis, could seek waiver of those costs at a later time, the Fifth District held an ineffective assistance of counsel claim for failing to seek a waiver of costs at sentencing “no longer exists.”

The Ohio Supreme Court concluded that both courts got it wrong. “Whether the defendant may move for a waiver of costs at a later time has little to no bearing on whether the trial court would have granted a motion to waive costs at the time of sentencing,” the Court wrote. “Furthermore, a determination of indigency alone does not rise to the level of creation of a reasonable probability that the trial court would have waived costs had defense counsel moved the court to do so.”

In reviewing a claim such as that at bar, the Court held that the trial court must assess the matter under the standard set forth in State v. Bradley, 538 N.E. 2d 373 (Ohio 1989), which adopted the ineffective assistance of counsel test announced by the U.S. Supreme Court in Strickland v. Washington, 104 S. Ct. 2052 (1984). The prejudice outcome in cases such as Davis’ 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.”

The Court declined to answer the certified question in either the affirmative or the negative, explaining that “a court’s finding of ineffective assistance of counsel depends on the facts and circumstances in each case.”

Accordingly, the Court reversed the Fifth District’s judgment and remanded for it to conduct the ineffective assistance of counsel analysis set forth in Bradley. See: State v. Davis, 2020 Ohio LEXIS 231 (2019). 

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State v. Davis



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