[Cite as State v. Rowe, 197 Ohio App.3d 10, 2011-Ohio-6614.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

PIKE COUNTY 

THE STATE OF OHIO, : 

 : 

 Appellee, : Case No. 10CA816 

 : 

 v. : Released: November 29, 2011 

 : 

ROWE, : DECISION AND JUDGMENT 

 : ENTRY

 Appellant. : 

_____________________________________________________________ 

APPEARANCES:

Robert Junk, Pike County Prosecuting Attorney, for appellee. 

Timothy Young, Ohio Public Defender, and Peter Galyardt, Assistant 

Public Defender, for appellant. 

_____________________________________________________________ 

 

MCFARLAND, Judge. 

{¶ 1} Appellant, Bennie Rowe, appeals the sentence imposed by the 

Pike County Court of Common Pleas after a jury found him guilty of one 

count of aggravated vehicular homicide, a second-degree felony in violation 

of R.C. 2903.06(A)(1)(a). On appeal, appellant contends that he was 

deprived of his right to due process when his trial attorney provided 

ineffective assistance of counsel. Specifically, appellant contends that he 

received ineffective assistance of counsel at his sentencing when his counsel 
Pike App. No. 10CA816 2

failed to move the trial court to waive the payment of court costs based upon 

his indigency and that that deficiency prejudiced him. 

{¶ 2} In light of our determination that trial counsel’s performance 

was both deficient and prejudicial with respect to the failure to move the trial 

court to waive the payment of court costs, we sustain appellant’s sole 

assignment of error. Accordingly, we remand this matter to the trial court 

for resentencing as to court costs, at which time counsel may then make a 

proper motion for waiver of those costs based upon appellant’s indigency. 

FACTS 

{¶ 3} An indictment was filed on March 23, 2009, charging appellant 

with one count of aggravated vehicular homicide, a second-degree felony in 

violation of R.C. 2903.06(A)(1)(a). After determining appellant to be 

indigent, the trial court appointed counsel to represent appellant on June 25, 

2009. On November 10, 2010, a jury convicted appellant of the charged 

offense, and a sentencing hearing was held on November 23, 2010. The trial 

court sentenced appellant to a five-year prison term, a lifetime driver’s 

license suspension, a mandatory three-year period of postrelease control, and 

court costs. The trial court did not impose a fine upon appellant based upon 

“the Court’s assessment of [Appellant’s] ability to pay a fine.” It is from the 

trial court’s December 8, 2010, judgment entry of sentence that appellant 
Pike App. No. 10CA816 3

now brings his timely appeal, setting forth a single assignment of error for 

our review. 

Assignment of Error 

“I. Bennie Rowe was deprived of his right to due process when his trial 

attorney provided ineffective assistance of counsel.” 

LEGAL ANALYSIS 

{¶ 4} In his first assignment of error, appellant contends that he was 

deprived of his right to due process when his trial attorney provided 

ineffective assistance of counsel. Specifically, appellant questions whether 

trial counsel is ineffective when he or she fails to move the trial court to 

waive the imposition of court costs and the mandatory minimum fine on 

behalf of an indigent defendant. 

{¶ 5} To prevail on a claim of ineffective assistance of counsel, an 

appellant must show that (1) his counsel's performance was deficient and (2) 

the deficient performance prejudiced his defense so as to deprive him of a 

fair trial. State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 

N.E.2d 1038, at ¶ 205, citing Strickland v. Washington (1984), 466 U.S. 668, 

687, 104 S.Ct. 2052. To establish deficient performance, an appellant must 

show that trial counsel's performance fell below an objective level of 

reasonable representation. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio2815, 848 N.E.2d 810, at ¶ 95. To establish prejudice, an appellant must 
Pike App. No. 10CA816 4

show that a reasonable probability exists that but for the alleged errors, the 

result of the proceeding would have been different. Id. The appellant has the 

burden of proof on the issue of counsel's ineffectiveness because a properly 

licensed attorney is presumed competent. State v. Gondor, 112 Ohio St.3d 

377, 2006-Ohio-6679, 860 N.E.2d 77, at ¶ 62. 

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

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

the costs of prosecution and render a judgment against the defendant for 

such costs.” Court costs may, however, be waived at the discretion of the 

court if the court first determines that the defendant is indigent. See R.C. 

2949.092; State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 

393, fn. 1. The court may grant a waiver of court costs only if the defendant 

makes a motion at the time of sentencing. State v. Clevenger, 114 Ohio St.3d 

258, 2007-Ohio-4006, 871 N.E.2d 589, at ¶ 5, citing State v. Threatt, 108 

Ohio St.3d 277, 843 N.E.2d 164, 2006-Ohio-905, paragraph two of the 

syllabus. If the defendant fails to make a motion to waive court costs at the 

time of sentencing, “the issue is waived and [the matter of] costs [is] res 

judicata.” Id. 

{¶ 7} In State v. Blade, Cuyahoga App. Nos. 88703, 88704, and 

88705, 2007-Ohio-5323, the trial court held that trial counsel “had an 
Pike App. No. 10CA816 5

essential duty to seek a waiver of court costs at the time of sentencing.” Id. 

at ¶ 12, citing In re Carter, Jackson App. Nos. 04CA15 and 04CA16, 2004-

Ohio-7285, 2004 WL 3090250 (finding ineffective assistance of counsel and 

remanding for resentencing as to court costs where trial counsel failed to 

move the court for waiver of court costs for indigent defendant). In Blade, 

the record indicated that the court “had previously waived the imposition of 

court costs against Blade” and that there was “nothing in the record of the 

resentencing to show a change in Blade's circumstances from the earlier 

waiver of costs.” Blade at ¶ 12. Thus, based upon those facts, Blade held 

that the prior waiver of court costs showed a reasonable probability that it 

would have again waived costs had counsel made a timely motion. Id. at ¶ 

13. Thus, the trial court sustained Blade’s argument and vacated the trial 

court’s assessment of court costs. Id. In In re Carter at ¶ 44, this court 

determined that trial counsel’s failure to move the trial court for waiver of 

court costs was both deficient and prejudicial, and therefore, the appellant’s 

assignment of error was sustained. 

{¶ 8} More recently, in State v. Smith, Warren App. No. CA2010–06–

057, 2011-Ohio-1188, 2011 WL 882182, however, the Twelfth District 

Court of Appeals rejected an identical argument. In reaching its conclusion, 

the court reasoned, based upon the facts before it, that Smith had “failed to 
Pike App. No. 10CA816 6

show that there is a reasonable probability that the trial court would have 

waived those costs even if his counsel had asked the court to do so, since the 

trial court found that while Smith was currently unable to pay the court costs 

and the cost of his court-appointed counsel, he was young and healthy 

enough to work and thus would be able to pay those costs in the future.” Id. 

at ¶ 64, citing State v. Hayden, Cuyahoga App. No. 90474, 2008-Ohio-6279, 

2008 WL 5084716, ¶ 18-19. Thus, the facts in Smith differed from the facts 

in Blade with regard to the appellant’s ability to pay and the probability that 

the trial court would have waived court costs if a motion to do so had been 

made. 

{¶ 9} We conclude that the facts sub judice are more similar to facts in 

Blade than to those in Smith. First, appellant was determined to be indigent 

and was appointed counsel for trial, and there is nothing in the record to 

indicate that appellant’s circumstances had changed at the time of 

sentencing. Further, as argued by appellant, the trial court did not impose a 

fine at sentencing, based upon its “assessment of [appellant’s] ability to pay 

a fine.” Additionally, at the sentencing hearing, appellant’s trial counsel 

represented to the trial court that appellant was without funds to pursue an 

appeal. In light of the foregoing, there was a good probability that if moved 

to do so, the trial court would have waived the payment of the court costs. 
Pike App. No. 10CA816 7

Further, based upon these facts, we find trial counsel’s performance both 

deficient and prejudicial. Consequently, we sustain appellant’s sole 

assignment of error and remand this matter to the trial court for resentencing 

as to court costs. In re Carter, 2004-Ohio-7285, 2004 WL 3090250, at ¶ 44. 

 Judgment reversed 

and cause remanded. 

HARSHA, P.J., and ABELE, J., concur. 

__________________