[Cite as State v. Rister, 2023-Ohio-1284.]

IN THE COURT OF APPEALS OF OHIO

FOURTH APPELLATE DISTRICT 

LAWRENCE COUNTY 

STATE OF OHIO, : Case No. 21CA17 

: 

Plaintiff-Appellee, :

: DECISION AND JUDGMENT 

 v. : ENTRY 

: 

ELVIS RISTER, :

: RELEASED: 04/18/2023

Defendant-Appellant. :

APPEARANCES:

Max Hersch, Assistant State Public Defender, Office of the Ohio Public Defender, 

Columbus, Ohio for Appellant.

Brigham M. Anderson, Lawrence County Prosecuting Attorney, and Andrea M. 

Kratzenberg, Assistant Lawrence County Prosecuting Attorney, Ironton, Ohio for 

Appellee.

 

Wilkin, J.

{¶1} Elvis Rister (“Rister”) appeals the Lawrence County Court of 

Common Pleas judgment entry that sentenced him for felonious assault, and 

ordered him to pay court costs. Rister asserts two assignments of error: (1) “The 

trial court committed plain error when it sentenced Mr. Rister to an indefinite 

sentence under the unconstitutional Reagan Tokes Law” and (2) “Trial counsel 

for Mr. Rister rendered ineffective assistance by failing to request a waiver of 

court costs.”

{¶2} In response, the state maintains: (1) that the Reagan Tokes Act is not 

unconstitutional and (2) Mr. Rister’s trial counsel was not ineffective by failing to 

request the trial court waive court costs. 
Lawrence App. No. 21CA17 2

{¶3} Having reviewed the parties’ arguments, the record, and the 

applicable law, we overrule both of Rister’s assignments of error, and affirm the 

trial court’s judgment. 

BACKGROUND

{¶4} On February 24, 2021, the state indicted Rister on a felonious assault 

charge in violation of R.C. 2903.11(A)(1), a second-degree felony. The case was 

tried to a jury, which found Rister guilty. 

{¶5} On October 18, 2021, the trial court held a sentencing hearing. The 

court indicated that it considered the “purposes and principals of sentencing in 

Revised Code 2929.11, the seriousness and recidivism factors in 2929.12, and 

following the guidance of R.C. 2929.13,” the court sentenced Rister to an 

indefinite prison term of 8 to 12 years, post-release control, and ordered him to 

pay court costs. It is this judgment that Rister appeals. 

ASSIGNMENT OF ERRORS

I. THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT 

SENTENCED MR. RISTER TO AN INDEFINITE SENTENCE 

UNDER THE UNCONSTITUTIONAL REAGAN TOKES LAW. THE 

FOURTEENTH AMENDMENT TO THE U.S. CONSTITUTION, 

THE SIXTH AMENDMENT TO THE U.S. CONSTITUTION; 

ARTICLE I, SECTION 5 OF THE OHIO CONSTITUTION; CRIM.R. 

52(B); STATE EX REL. BRAY V. RUSSEL, 89 OHIO ST.3D 132, 

2000-OHIO-116, 2000-OHIO-117, 2000-OHIO-119, 729 N.E.2D 

359; SWARTHOUT V. COOKE, 562 U.S. 216, 131 S.CT. 859, 178 

L.ED.2D 732 (2011); APPRENDI V. NEW JERSEY, 530 U.S. 466, 

120 S.CT. 2348, 147 L.ED.2D 435 (2000); OCT. 6, 2021 

SENTENCING TR. AT 5-7

II. TRIAL COUNSEL FOR MR. RISTER RENDERED INEFFECTIVE 

ASSISTANCE OF COUNSEL BY FAILING TO REQUEST A 

WAIVER OF COURT COSTS. R.C. 2947.23(C); STATE V. DAVIS, 

159 OHIO ST.3D 31, 2020-OHIO-309, 146 N.E.3D 560; 
Lawrence App. No. 21CA17 3

STRICKLAND V. WASHINGTON, 466 U.S. 668, 104 S.CT. 2052, 

80 L.ED.2D 674 (1984).

FIRST ASSIGNMENT OF ERROR

{¶6} Rister claims that the trial court committed plain error in sentencing 

him to an indefinite prison sentence under the Reagan Tokes Act (“RTA”). In 

support, he maintains that the RTA is unconstitutional because it violates the 

separation of powers doctrine, a defendant’s right to a jury trial, and a 

defendant’s due process. 

{¶7} Rister claims that the RTA violates the separation of powers doctrine 

because it permits the executive branch of the government, the Ohio Department 

of Rehabilitation and Corrections (“ODRC”), to unilaterally extend an inmate’s 

prison term, which is a function for the judicial branch of government.

{¶8} Rister also asserts that the RTA violates a defendant’s constitutional

right to a trial by jury because it allows the ODRC to impose a sentence beyond 

the minimum stated term or presumptive earned early release date, a role that is 

reserved for fact finders. 

{¶9} Finally, Rister maintains that the RTA violates an inmate’s right to 

due process. Rister claims that the RTA infringes upon an inmate’s protected

liberty interest “[b]y vesting the authority to extend one’s sentence in the 

executive branch and failing to guarantee a fair hearing[.]” Rister asserts that the 

ODRC, the very entity that keeps an individual in prison, cannot also make the 

decision to restrict their freedom. 
Lawrence App. No. 21CA17 4

{¶10} In response, the state first maintains that the RTA does not violate 

the separation of powers doctrine because it does not permit the ODRC to 

lengthen an inmate’s sentence. 

{¶11} The state further argues that the RTA does not violate a defendant’s 

right to a jury trial. The state maintains that under the RTA an inmate will be 

released on a presumptive early release date or on the expiration of their 

minimum prison term if certain factors apply. Alternatively, if the presumption is 

rebutted and the inmate remains imprisoned beyond those dates, then they are 

never kept beyond their maximum sentence. 

{¶12} Finally, the state claims that the RTA does not violate due process. 

It asserts that the hearings conducted by the ODRC are akin to parole/probation 

revocation or post-release control violation hearings, which do not require judicial 

involvement. 

LAW AND ANALYSIS

{¶13} To give some context, we first provide a brief overview of the RTA:

The Reagan Tokes Law encompasses four newly enacted 

statutes and amendments to 50 existing statutes. R.C. 2901.011. 

Relevant here, the Reagan Tokes Law requires that a court 

imposing a prison term under R.C. 2929.14(A)(1)(a) or (2)(a) for a 

first or second degree felony committed on or after March 22, 

2019, impose a minimum prison term under that provision and a 

maximum prison term determined under R.C. 2929.144(B). R.C. 

2929.144(A) and (C). There is a presumption that the offender 

“shall be released from service of the sentence on the expiration 

of the offender's minimum prison term or on the offender's 

presumptive earned early release date, whichever is earlier.” R.C. 

2967.271(B). A presumptive earned early release date is a date 

determined under procedures described in R.C. 2967.271(F) 

which allow the sentencing court to reduce the minimum prison 

term under certain circumstances. R.C. 2967.271(A)(2).
Lawrence App. No. 21CA17 5

R.C. 2967.271(C) states that the Ohio Department of 

Rehabilitation and Correction (“ODRC”) may rebut the 

presumption in R.C. 2967.271(B) if it

determines, at a hearing, that one or more of the following applies:

(1) Regardless of the security level in which the offender is 

classified at the time of the hearing, both of the following apply:

(a) During the offender's incarceration, the offender committed 

institutional rule infractions that involved compromising the 

security of a state correctional institution, compromising the safety 

of the staff of a state correctional institution or its inmates, or 

physical harm or the threat of physical harm to the staff of a state 

correctional institution or its inmates, or committed a violation of 

law that was not prosecuted, and the infractions or violations 

demonstrate that the offender has not been rehabilitated.

(b) The offender's behavior while incarcerated, including, but not 

limited to the infractions and violations specified in division 

(C)(1)(a) of this section, demonstrate that the offender continues 

to pose a threat to society.

(2) Regardless of the security level in which the offender is 

classified at the time of the hearing, the offender has been placed 

by the department in extended restrictive housing at any time 

within the year preceding the date of the hearing.

(3) At the time of the hearing, the offender is classified by the 

department as a security level three, four, or five, or at a higher 

security level.

If ODRC rebuts the presumption, it “may maintain the offender's 

incarceration” after the expiration of the minimum prison term or 

presumptive earned early release date for a reasonable period of 

time, determined and specified by ODRC, which “shall not exceed 

the offender's maximum prison term.” R.C. 2967.271(D)(1).

State v. Bontrager, 2022-Ohio-1367, 188 N.E.3d 607, ¶ 35-36 (4th Dist.).

{¶14} This court undertakes a de novo review of a constitutional challenge 

to a statute, and, in this case, it would have been necessary to employ a plain 

error analysis because Rister did not challenge the constitutionality of the RTA 

until he filed this appeal. See State v. Drennen, 4th Dist. Gallia No. 21CA10, 

2022-Ohio-3413, ¶ 16-17. However, our disposition of Rister’s first assignment 

of error is resolved by applying our prior decisions that have upheld the 

constitutionality of the RTA where appellants unsuccessfully alleged the RTA 
Lawrence App. No. 21CA17 6

suffers from the same constitutional defects, i.e., it violates the separation of 

powers doctrine, the right to a trial by jury, and the right to due process. See 

State v. Holsinger, 4th Dist. Lawrence No. 21CA20, 2022-Ohio-4092, ¶ 39-40, 

45--54; Drennen, at ¶ 22-25. See also State v. Chapman, 4th Dist. Ross No. 

21CA3742, 2022-Ohio-2853, ¶ 77 (“[T[he Reagan Tokes Law does not violate 

the constitutional right to a jury trial.”); State v. Alexander, 4th Dist. Adams No. 

21CA1144, 2022-Ohio-1812, ¶ 57 (The RTA does not violate the separation of 

powers doctrine.). 

{¶15} The arguments that Rister makes in his first assignment of error 

regarding how the RTA violates the separation of powers doctrine, right to a trial 

by jury, and due process do not differ in any material way from the arguments 

that we rejected in the aforementioned cases. Therefore, we overrule Rister’s 

first assignment of error that the RTA is unconstitutional on the authority of 

Holsinger, Drennen, Chapman, and Alexander.

SECOND ASSIGNMENT OF ERROR 

{¶16} In his second assignment of error, Rister contends that his counsel 

was ineffective for failing to request the trial court waive its imposition of court 

costs at his sentencing hearing. Rister claims that he is indigent. “[E]ven so, [he 

states] his counsel did not request a waiver of court costs during his sentencing; 

nor was there any discussion surrounding Mr. Rister’s ability to pay costs.” 

Rister argues that there was insufficient information to determine whether his 

costs would have been waived had his counsel so requested. Therefore, Rister 

maintains that we should remand the case for the trial court to reconsider 
Lawrence App. No. 21CA17 7

whether he has the ability to pay his costs consistent with our decision in State v. 

Bowling, 4th Dist. Jackson No. 19CA2, 2020-Ohio-813. 

{¶17} The state argues that Rister’s counsel was not ineffective by failing 

to move the court to waive costs. The state claims that even though Rister was 

determined to be indigent at the time of his arraignment, he was able to post a 

$25,000 cash or surety bond through a bondsman, which continued throughout 

the pendency of his case. The state maintains that Rister’s posting of this bond 

indicates that the trial court would not have waived Rister’s costs even if his 

counsel had made such a request because the bond showed that he would be 

able to pay the costs. Additionally, the state argued that Rister had 12 years of 

school and he would have the present or future ability to pay his court costs upon 

his release from prison because of his age. 

{¶18} In response, Rister argues that “the record does not reflect whether 

[he] personally paid the bondsman or whether he received help from family or 

friends.” “Nor does the record reflect what portion of the $25,000 he paid before 

the bondsman covered the rest.” He further maintains that the record is devoid 

of “his work history, previous sources of income or savings when arrested.” 

LAW

1. Court Costs

{¶19} R.C. 2947.23(A)(1)(a) states: “In all criminal cases, including 

violations of ordinances, the judge or magistrate shall include in the sentence the 

costs of prosecution, including any costs under section 2947.231 of the Revised 

Code, and render a judgment against the defendant for such costs.” Thus, the 
Lawrence App. No. 21CA17 8

imposition of court costs on all convicted defendants is mandatory, whether 

“indigent or not.” State v. Taylor, 161 Ohio St. 3d 319, 2020-Ohio-3514, 163 

N.E.3d 486, ¶ 6. However, “R.C. 2947.23(C) gives a trial court continuing 

jurisdiction to ‘waive, suspend, or modify the payment of the costs of prosecution 

* * * at the time of sentencing or at any time thereafter.’ So, while the court must 

impose costs, it may also waive, suspend, or modify them.” Id. at ¶ 7, quoting 

R.C. 2947.23(C). 

2. Ineffective Assistance of Counsel

{¶20} In Ohio, every properly licensed attorney is presumed to be competent 

so the defendant bears the burden of proving counsel’s ineffectiveness. State v.

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

To prevail on a claim of ineffective assistance of counsel, a 

criminal defendant must establish (1) deficient performance by 

counsel, i.e., performance falling below an objective standard of 

reasonable representation, and (2) prejudice, i.e., a reasonable 

probability that, but for counsel's errors, the result of the 

proceeding would have been different.

State v. Cremeans, 4th Dist. Ross No. 21CA3744, 2022-Ohio-4832, ¶ 20, citing 

State v. Wilson, 4th Dist. Lawrence No. 18CA15, 2019-Ohio-2754, ¶ 25.

“Failure to satisfy either part of the test is fatal to the claim.” State v. Trout, 4th 

Dist. Scioto No. 19CA3866, 2020-Ohio-3940, ¶ 31, citing Wilson at ¶ 25. 

{¶21} In assessing an ineffective assistance of counsel claim, “ ‘we must 

indulge in “a strong presumption that counsel's conduct falls within the wide 

range of reasonable professional assistance; that is, the defendant must 

overcome the presumption that, under the circumstances, the challenged action 

‘might be considered sound trial strategy.” ’ ” Cremeans at ¶ 20, quoting 
Lawrence App. No. 21CA17 9

Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 

(1984), quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 

(1955). A “strategy, even if debatable, does not establish deficient performance 

or serve as the basis for an ineffective-assistance-of-counsel claim.” State v.

Watts, 12th Dist. Warren No. CA2021-04-042, 2021-Ohio-4548, ¶ 10, citing State

v. Holt, 6th Dist. Lucas No. L-19-1101, 2020-Ohio-6650, ¶ 8-9; State v. Cepec, 

149 Ohio St. 3d 438, 2016-Ohio-8076, 75 N.E.3d 1185, ¶ 111. 

{¶22} “Prior to [the] adoption [of R.C. 2947.23(C)], a failure to request of 

(Emphasis sic.) waiver of costs at sentencing resulted in a final judgment and a 

prohibition of any further consideration of that issue.” State v. Eblin, 5th Dist. 

Muskingum No. CT2019-0036, 2020-Ohio-1216, ¶ 16, citing State v. Threatt, 108 

Ohio St.3d 277, 2006-Ohio-905, 843 N.E.2d 164, ¶ 23. But now R.C. 2947.23(C) 

states that a “trial court ‘retains jurisdiction’ to waive court costs ‘at the time of 

sentencing or at any time thereafter.’ To that end, the statute specifically 

provides an exception to res judicata when a defendant did not request waiver at 

sentencing or challenge his court costs on direct appeal.” State v. Braden, 158 

Ohio St. 3d 462, 2019-Ohio-4204, 145 N.E.3d 235, ¶ 23. “Thus, the timing of a 

motion to seek waiver of costs is a matter of trial strategy.” State v. Phillips, 4th 

Dist. Scioto No. 20CA3905, 2022-Ohio-478, ¶ 15, fn. 2; State v. Farnese, 4th 

Dist. Washington No. 15CA11, 2015-Ohio-3533, ¶ 15-16; State v. Purifoy, 2d 

Dist. Montgomery No. 28042, 2019-Ohio-2942, ¶ 28; Eblin at ¶ 16; State v. Pultz, 

6th Dist. Wood No. WD-14-083, 2016-Ohio-329, ¶ 61; State v. Mihalis, 8th Dist. 

Cuyahoga No. 104308, 2016-Ohio-8056, ¶ 33. 
Lawrence App. No. 21CA17 10

{¶23} More recently, the Supreme Court of Ohio addressed a conflict-oflaw question between the Fifth and Eighth District Courts of Appeals, which 

asked “whether trial counsel's failure to file a motion to waive court costs at a 

defendant's sentencing hearing constitutes ineffective assistance of counsel 

when the defendant has previously been found indigent.” State v. Davis, 159 

Ohio St. 3d 31, 2020-Ohio-309, 146 N.E.3d 560, ¶ 1. The court did not alter the 

basic two-part-ineffective-assistance-of-counsel test, we set out supra, which 

originated in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 

2d 674 (1984). Id. at ¶ 10. However, it imparted instruction regarding the 

second prong of the test, i.e., whether counsel’s conduct in failing to request a 

court to waive costs prejudiced the defendant. Specifically, the Court stated: 

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[.] * * 

* 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.” 

Id. (Internal citations omitted.)

{¶24} In State v. Smith, we found, “[f]or example, if a court finds that a 

defendant has the ability to work and pay court costs in the future, the court may 

decide to not waive court costs.” (Emphasis added.) 4th Dist. Pickaway No. 
Lawrence App. No. 21CA17 11

19CA33, 2021-Ohio-2866, ¶ 80. Also relevant to the determination of whether a 

court might waive costs is whether “the record contains no indication that 

appellant ‘would be unemployable upon his release, such as a health or medical 

condition that would preclude him from future employment.’ ” State v. Malone, 

4th Dist. Lawrence No. 21CA9, 2022-Ohio-1409, quoting State v. Freeman, 1st 

Dist. Hamilton No. C-180090, 2018-Ohio-4973, ¶ 13.

ANALYSIS

1. Counsel’s Performance 

{¶25} As we established above, there are numerous appellate districts, 

including ours, that recognize a counsel’s decision not to seek waiver of costs at 

sentencing as strategic because it may be more advantageous to seek a waiver 

at a different time. However, we find the case of Holt, 6th Dist. Lucas No. L-19-

1101, 2020-Ohio-6650, particularly instructive on the issue of strategy and 

waiving costs in our case. In Holt, the appellant “was convicted of attempted 

felonious assault and vandalism, sentenced to serve 24 months in prison, and 

ordered to pay all costs * * *. On appeal, Holt argue[d] that his trial counsel was 

ineffective for failing to request that the trial court waive his court costs.” Id. at ¶

1.

{¶26} In evaluating appellant’s ineffective assistance of counsel claim, the 

court of appeals found that “the decision not to request a waiver at sentencing 

and instead to postpone it until later has been found to be a matter of trial 

strategy.” Id. at ¶ 8. The court continued:

Given that Holt's claim of deficient performance is based 

entirely upon counsel's failure to seek a waiver at sentencing, we 
Lawrence App. No. 21CA17 12

cannot find that Holt has overcome the presumption that trial 

counsel's inaction was anything other than trial strategy. Indeed, 

a review of the sentencing transcript reveals that counsel's priority 

was persuading the court that Holt “would make an excellent 

candidate” for probation. To that end, counsel stressed that, 

before this case, Holt had “never been a problem to society,” and 

since committing the offenses, he had “not had any contact with * 

* * the legal system.” Trial counsel also stressed that, while Holt 

suffered from past alcohol abuse and psychological problems, he 

had quit drinking and was “taking care of” his emotional health.

Id. at ¶ 8. 

{¶27} In sum, as a matter of trial strategy, counsel may decline to seek a 

waiver of costs at sentencing upon a belief that raising it at a later time would be 

more advantageous, or because counsel focuses priority on another issue such 

as mitigating punishment, or both. 

{¶28} Similar to Holt, counsel herein did not seek a waiver of Rister’s 

costs at sentencing, but instead focused on mitigating his sentence:

In the realm of things, this is not one of worst forms of felonious 

assault that we’ve ever seen. It basically amounted to a broken 

wrist. Those happen. This Court remembers from jury selection, 

a lot of us had broke wrists at times. Uh, we’d ask the Court to 

sentence this case on the minimum side on the two * * * two to 

three side, and uh, take into consideration the factors that we’ve 

talked about with Mr. Rister. 

{¶29} Therefore, we find that Rister’s counsel did not violate an “essential 

duty” by declining to seek a waiver of court costs at sentencing because he may 

have decided to prioritize sentence mitigation. Holt at ¶ 8-9. Alternatively, or in 

addition, his counsel may have concluded that seeking a waiver of Rister’s costs 

at a time other than sentencing was a better strategy. Phillips, 4th Dist. Scioto 

No. 20CA3905, 2022-Ohio-478, ¶ 15, fn. 2 (A decision to not seek waiver of 

costs at sentencing may be a strategy). Therefore, we find that counsel’s 
Lawrence App. No. 21CA17 13

representation of Rister was not deficient, but could have been a strategic 

decision. 

2. Prejudice

{¶30} Even accepting that trial counsel’s failure to file a motion to waive 

court costs amounted to deficient performance, Rister still could not prevail on his 

ineffective assistance claim because he failed to establish prejudice. 

{¶31} Even though Rister had previously been determined to be indigent, 

we know from Davis that alone is not enough to support an ineffective assistance 

of counsel claim. Rister claims there is not enough information in the record for 

this court to determine whether it would have granted a request to waive costs; 

thus, we should remand costs for reevaluation pursuant to Bowling, 4th Dist. 

Jackson No. 19CA2, 2020-Ohio-813. 

{¶32} In Bowling, the appellant pleaded guilty to unlawful sexual conduct 

with a minor in violation of R.C. 2907.04(A) and the trial court sentenced him to 

60 months in prison with 5 years of post-release control. Id. at ¶ 1. In his second 

assignment of error on appeal he asserted that trial counsel's failure to request a 

waiver of court costs constituted ineffective assistance of counsel. Id. at ¶ 11. 

We reasoned:

In the case sub judice it is difficult for this court to fully and 

objectively review all pertinent facts and evidence to determine 

whether appellant has demonstrated that a reasonable probability 

exists that, had his trial counsel moved the trial court to waive 

court costs, the trial court would have granted the motion. Davis, 

supra. We recognize, however, that the record on this particular 

issue is somewhat sparse and should be further developed in 

order to facilitate the full examination of all relevant facts and 

evidence. 
Lawrence App. No. 21CA17 14

Id. at ¶ 18. 

Therefore, “we sustain appellant's second assignment of error and remand this 

matter so that the parties and the trial court may consider anew the imposition of 

court costs issue in light of Davis and all pertinent facts and evidence.” Id. at ¶ 

19. Because the record herein is sufficient to evaluate the prejudice prong of the 

test, we find Bowling distinguishable. 

{¶33} While the record may not be replete with evidence regarding

whether Rister could pay costs, it does show that he was 45 on March 24, 2021

and that he attended school through the 12th grade, which indicates that even if 

he served the maximum sentence he would be released at a still-employable age 

of 57 with a high school education. Smith, 4th Dist. Pickaway No. 19CA33, 

2021-Ohio-2866, ¶ 80. Further, Rister presented no evidence that he was in ill 

health or otherwise was unemployable. Malone, 4th Dist. Lawrence No. 21CA9, 

2022-Ohio-1409, ¶ 24. 

{¶34} Finally, Rister posted a $25,000 bond. He does not deny financing 

all or part of the bond, but instead asserts that the “record does not reflect 

whether Mr. Rister paid the bondsman or whether he received help from family 

and friends.” It is Rister who has the burden of proof in an ineffective assistance 

of counsel claim. Davis, 159 Ohio St.3d 31, 2020-Ohio—309, 146 N.E.2d 309 at 

¶ 24. Yet, Rister does not actually deny paying all or part of that bond, let alone 

submit any evidence to support his contention that family or friends paid that 

bond. 
Lawrence App. No. 21CA17 15

{¶35} Therefore, we find Rister has failed to demonstrate a “reasonable 

probability” that he was prejudiced, i.e., had his counsel moved the trial court to 

waive costs, it would have granted the motion. 

{¶36} Even though failing to satisfy either prong would mean that Rister’s 

counsel was not ineffective, we find he failed to show both prongs, i.e., his

counsel’s representation was not deficient and he was not prejudiced by his 

counsel’s actions. Accordingly, we overrule Rister’s second assignment of error. 

CONCLUSION

{¶37} Having overruled both of Rister’s assignments of error, we affirm the 

trial court’s judgment. 

JUDGMENT AFFIRMED.
Lawrence App. No. 21CA17 16

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall 

pay the costs.

The Court finds there were reasonable grounds for this appeal.

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

Lawrence County Court of Common Pleas 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 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 the mandate pursuant to Rule 

27 of the Rules of Appellate Procedure. 

Abele, J. and Hess, J.: Concur in Judgment and Opinion.

 For the Court,

BY: ________________________

 Kristy Wilkin, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final 

judgment entry and the time period for further appeal commences from the 

date of filing with the clerk.