[Cite as State v. Willison, 2019-Ohio-220.]

IN THE COURT OF APPEALS OF OHIO 

FOURTH APPELLATE DISTRICT 

ATHENS COUNTY 

STATE OF OHIO, : 

 Plaintiff-Appellee, : Case No. 18CA18 

v. : 

 DECISION AND 

MATTHEW WAYNE WILLISON, : JUDGMENT ENTRY 

 Defendant-Appellant. : RELEASED 01/17/2019 

APPEARANCES: 

James A. Anzelmo, Anzelmo Law, Gahanna, Ohio, for defendant-appellant. 

Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. Saunders, Athens 

County Assistant Prosecuting Attorney, Athens, Ohio, for plaintiff-appellee. 

Hoover, J. 

{¶1} Matthew Wayne Willison pleaded guilty to trafficking in heroin in the Athens 

County Court of Common Pleas. After accepting the plea, the trial court found him guilty, 

imposed a nine-month prison sentence, and ordered that he pay court costs. On appeal, Willison 

contends that his guilty plea was not entered knowingly, intelligently, and voluntarily; and that 

he received ineffective assistance of counsel. 

{¶2} For the following reasons, we conclude that both of Willison’s assignments of 

error are without merit, and affirm the judgment of the trial court. 

I. Facts and Procedural History 
Athens App. No. 18CA18 2 

{¶3} The State indicted Willison on a single count of trafficking in heroin in an amount 

less than one gram in violation of R.C. 2925.03(A)(1), a felony of the fifth degree. He pleaded 

not guilty. 

{¶4} On June 13, 2018, a change-of-plea hearing was held. Counsel informed the court 

that a negotiated plea agreement had been reached and summarized that agreement as follows:

[Prosecuting Attorney:] * * * It’s my understanding that the Defendant will plead 

guilty to the indictment charging him with one count of trafficking in heroine 

[sic]. Violation of 2925.03(A)(1), a felony of the fifth degree. The facts that gave 

rise to this matter on or about April the 17th of this year, of last year, Defendant 

sold half a gram of heroine [sic] to a confidential informant from his home in 

Chauncey in Athens County, Ohio for $100.00. There would be a joint sentence 

agreement that the Defendant serve six months in prison with no early release and 

costs be payable $25.00 per month within twelve months of sentencing. DNA 

collection and three years of optional post release control. The Defendant does not 

fall under TCAP as it’s a drug trafficking offense which takes him out of TCAP. 

He’s previously been to prison as well and so uh, a prison sentence would be 

appropriate for this Defendant and that’s my understanding of the agreement. 

* * * 

[The Court:] Good. Mr. Francis. 

[Defense Attorney:] Uh, yes your honor. We are going to change our plea from 

not guilty to guilty of the original charge of F5 trafficking. Mr. Driscoll correctly 

stated the agreement for the stated offense. The agreement is six months prison. 
Athens App. No. 18CA18 3 

Sentence him today. Uh, give him credit for time previously served and obviously 

he owes court costs and I believe that is everything. We are asking the Court to 

sentence today and the defense will waive any PSI process. Thank you your 

honor. 

[The Court:] Mr. Willison you’ve heard what your attorney said. Is this what you 

wish to do? 

[Willison:] Yes sir. 

{¶5} A “Plea of Guilty[,] Judgment Entry of Guilty” document was also filed on June 

13, 2018. The document, signed by Willison, summarized the negotiated plea agreement as 

follows: 

I understand the nature of these charges and the possible defenses I might have. I 

am satisfied with my attorney’s advice regarding any defenses I might have. I am 

satisfied with my attorney’s advice, counsel and competence. I am not now under 

the influence of drugs or alcohol. No threats have been made to me. No promises 

have been made to me, except as part of this plea agreement, stated entirely as 

follows: Defendant will plead guilty to the indictment and stipulate to the 

facts in the indictment, bill of particulars, and sufficient facts for a finding of 

guilt. As Defendant was indicted for Drug Trafficking, this takes the sentence 

out of the requirements of TCAP; Defendant has previously been convicted 

of a felony offense, and previously has served a prison term. AGREED and 

JOINT sentencing recommendation of: Six Months prison; Court costs 

payable at a rate of no less than $25/month within 12 months of sentencing; 
Athens App. No. 18CA18 4 

DNA collection; and 3 years of optional post-release control. Defendant 

agrees not to file for judicial release or accept any other kind of early release, 

including but not limited to transitional control or intensive program prison. 

The State’s agreement is contingent upon Defendant following his bond 

conditions, being a law abiding citizen, complying with the PSI process and 

any other negotiated terms. Sentence today. 

(Emphasis sic.) 

{¶6} Willison subsequently entered a plea of guilty to trafficking in heroin in violation 

of R.C. 2925.03(A)(1), a felony of the fifth degree. The trial court then engaged in a Crim.R. 11 

plea colloquy; and having been satisfied that Willison voluntarily, intelligently, and knowingly 

entered his plea, the court found him guilty. The matter was set to proceed immediately to 

sentencing; but prior to the commencement of sentencing, Willison requested that he be granted 

a furlough to procure storage space for his personal belongings. The State opposed the furlough 

request, noting that the negotiated plea agreement required that Willison be sentenced 

immediately, and that Willison had shown up to court in the past under the influence of drugs. In 

the alternative, the State proposed that should Willison be granted a furlough and return to court 

for sentencing with a positive drug screening, or fail to return, the State would recommend a 12-

month prison sentence. Willison agreed to the State’s modification of the agreement; the trial 

court granted the furlough; and the court ordered that he be given a drug screen before leaving so 

that a baseline as to what drugs were already in his system could be established. The baseline 

drug test revealed the presence of methamphetamine, marijuana, and benzodiazepine in his 

system.
Athens App. No. 18CA18 5 

{¶7} On June 18, 2018, Willison appeared for his sentencing hearing, was given a new 

drug test, and tested positive for methamphetamine. Willison claimed that he did not use drugs 

while on furlough and that the positive screening must have been a residual result. The State 

countered that because his baseline test included positive results for methamphetamine, 

marijuana, and benzodiazepine, but his result on the day of re-testing only included a positive 

result for methamphetamine, then he must have used methamphetamine while on furlough. As 

such, the State recommended that Willison be sentenced to 12 months in prison, while defense 

counsel requested that he only receive 6 months imprisonment. 

{¶8} Ultimately, the trial court sentenced Willison to a total of nine months in prison. 

The trial court also ordered Willison to pay court costs. His conviction and sentence were 

journalized by way of entry dated June 18, 2018. Willison filed a timely notice of appeal. 

II. Assignments of Error 

{¶9} Willison assigns the following errors for our review: 

First Assignment of Error: 

Matthew Willison did not knowingly, intelligently and voluntarily enter his guilty 

plea to drug trafficking, in violation of his due process rights under the Fifth and 

Fourteenth Amendments to the United States Constitution and Section 16, Article 

I of the Ohio Constitution. 

Second Assignment of Error: 

Willison received ineffective assistance of counsel, in violation of the Sixth 

Amendment to the United States Constitution and Section 10, Article I of the 

Ohio Constitution. 

III. Law and Analysis 

A. Validity of Guilty Plea 
Athens App. No. 18CA18 6 

{¶10} In his first assignment of error, Willison contends that he was deprived of his 

right to due process because he did not enter his plea knowingly, intelligently, and voluntarily. In 

particular, Willison argues that his guilty plea was unknowing, unintelligent, and involuntary 

because (1) he was under the influence of multiple drugs at the plea hearing; and (2) the trial 

court accepted the State’s modified terms to the plea bargain, following his request for a 

furlough, without conducting a new Crim.R. 11 colloquy or otherwise confirming that he 

understood the nature of the modified plea agreement and the ramifications of the modified plea 

agreement.

{¶11} “ ‘When a defendant enters a plea in a criminal case, the plea must be made 

knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of 

the plea unconstitutional under both the United States Constitution and the Ohio Constitution.’ 

” State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 7, quoting State v. 

Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996). In determining whether a guilty or no 

contest plea was entered knowingly, intelligently, and voluntarily, an appellate court examines 

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. Cooper, 4th Dist. Athens 

No. 11CA15, 2011-Ohio-6890, ¶ 35.

{¶12} “Crim.R. 11(C) governs the process that a trial court must use before accepting a 

felony plea of guilty or no contest.” Veney at ¶ 8. Before accepting a guilty plea in a felony case, 

a trial court must address the defendant personally and determine 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.” Crim.R. 11(C)(2)(a). The court must 
Athens App. No. 18CA18 7 

also inform the defendant of both the constitutional and nonconstitutional rights he is waiving 

and determine that he “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.” Crim.R. 

11(C)(2)(b). Finally, the court must both inform and determine that the defendant understands 

that he “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.” Crim.R. 11(C)(2)(c). 

{¶13} Substantial compliance with Crim.R. 11(C)(2)(a) and (b) is sufficient for a valid 

plea because they do not involve constitutional rights. Veney at ¶ 14. “ ‘Substantial compliance 

means that, under the totality of the circumstances, appellant subjectively understood the 

implications of his plea and the rights he waived.’ ” State v. McDaniel, 4th Dist. Vinton No. 

09CA677, 2010–Ohio–5215, ¶ 13, quoting State v. Vinson, 10th Dist. Franklin No. 08AP–903, 

2009–Ohio–3240, ¶ 6.

{¶14} But strict compliance with Crim.R. 11(C)(2)(c) is required because constitutional 

rights are involved. “ ‘However, failure to [literally comply] will not necessarily invalidate a 

plea. The underlying purpose, from the defendant’s perspective, of Crim.R. 11(C) is to convey to 

the defendant certain information so that he can make a voluntary and intelligent decision 

whether to plead guilty.’ ” Veney at ¶ 18, quoting State v. Ballard, 66 Ohio St.2d 473, 479–480, 

423 N.E.2d 115 (1981). A guilty plea that is not entered into knowingly, intelligently, and 

voluntarily is void. State v. 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, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 

(1969).
Athens App. No. 18CA18 8 

{¶15} Willison first argues that he did not knowingly, intelligently, and voluntarily 

make his guilty plea because he was under the influence of drugs when he entered it. 

{¶16} Recently, in State v. Howland, 4th Dist. Highland No. 17CA3, 2018-Ohio-613, 

this court was faced with a near identical argument. In Howland, the defendant pleaded guilty to 

possession of methamphetamine. Id. at ¶ 3. The trial court conducted a Crim.R. 11 colloquy, and 

being satisfied that the defendant had voluntarily entered the plea and waived his constitutional 

rights, it accepted his plea and convicted him. Id. On appeal, the defendant argued that he did not 

knowingly, intelligently, and voluntarily make his guilty plea because “he was under the 

influence of methamphetamine and ‘ICE,’ as well as being sleep deprived, when he entered it.” 

Id. at ¶ 9. We denied the appeal and affirmed the trial court’s judgment, concluding that the 

record did not support defendant’s claim of impaired judgment where defendant denied being 

under the influence of drugs or alcohol at the plea hearing and appeared coherent during the 

Crim.R. 11 colloquy. Id. at ¶ 12; see also State v. Jacobson, 4th Dist. Adams No. 01CA730, 

2003-Ohio-1201, ¶ 8 (holding similarly). 

{¶17} Here, other than the positive drug screen, Willison cites to nothing in the record 

that indicates he was under the influence of drugs to the point that he could not understand the 

plea proceedings. Following the parties recitation of the plea agreement, the trial court asked 

Willison “Is this what you wish to do?” and Willison responded “Yes sir.” The trial court asked 

“Your not under the influence of any drug or alcohol as you sit here today are you?” and 

Willison responded “No.” The record further shows that the trial court conducted a proper 

Crim.R. 11 plea colloquy. Willison’s responses were clear and unequivocal; and he responded 

each time that he understood the trial court’s statements and questions. Wilson even had the 

wherewithal to ask the trial court for a furlough before the commencement of sentencing so he 
Athens App. No. 18CA18 9 

could retrieve his personal belongings and place them in storage. Finally, the trial court noted at 

the plea hearing that Willison “look[s] good today[,] * * * this is the best I’ve seen you look in a 

long time[.]” Based upon this record, we conclude that Willison’s assertion that his plea was not 

entered knowingly, intelligently, and voluntarily because he was under the influence of drugs, is 

without merit. 

{¶18} Next, Willison contends that his plea was not knowingly, intelligently, and 

voluntarily made because following his request for the furlough the State modified the terms of 

the plea agreement, and the trial court accepted the modification without conducting a new 

Crim.R. 11 plea colloquy with him to ensure that he understood the nature of the modified plea 

agreement and the ramifications of the modified plea agreement. 

{¶19} Again, this court was recently faced with a similar argument in State v. Billiter, 

2018-Ohio-733, 106 N.E.3d 785 (4th Dist.). In Billiter, the defendant pleaded guilty to four drug 

trafficking counts pursuant to a negotiated plea agreement. Id. at ¶ 4. Under the terms of the 

negotiated plea agreement the defendant was to receive an aggregate three-year prison term with 

eligibility for judicial release at two years. Id. The trial court conducted a Crim.R. 11 colloquy, 

accepted the defendant’s plea, and found him guilty. Id. at ¶ 18-21. However, the trial court did 

not immediately sentence the defendant, but rather granted him a conditional release so he could 

witness the birth of his child. Id. at 21. Approximately one month later, the defendant returned 

for sentencing and tested positive for heroin and suboxone, in violation of his release. Id. at ¶ 6, 

22. The trial court then announced that the parties “renegotiate[d]” the plea agreement, and that 

the defendant would now receive four years and six months imprisonment, with eligibility for 

judicial release at three years. Id. at ¶ 6. The trial court inquired of defense counsel, the 

prosecutor, and the defendant as to whether this was their understanding of the renegotiated 
Athens App. No. 18CA18 10 

agreement, and all answered affirmatively. Id. at ¶ 7, 23. The trial court did not, however, 

conduct a new Crim.R. 11 plea colloquy. See id. generally. Ultimately, the defendant was 

sentenced to 54 months in prison. Id. at ¶ 8. 

{¶20} On appeal, the defendant argued that his plea was not knowingly, intelligently, 

and voluntarily made. Id. at ¶ 12. We rejected the argument, at ¶ 24, concluding: 

[W]e find that the trial court complied with Crim.R. 11(C) during the initial plea 

colloquy in September 2015. Even though the sentence was increased from that of 

the original plea bargain, both parties agreed to the increased sentence. After 

examining the totality of the circumstances, we determine that the trial court 

complied with the constitutional and procedural safeguards and that [defendant’s] 

plea was entered knowingly, intelligently, and voluntarily. 

{¶21} In the case sub judice, as in Billiter, the trial court complied with the Crim.R. 

11(C) requirements during the initial plea colloquy. Immediately following the colloquy, and just 

before sentencing was to commence, Willison requested a furlough to take care of personal 

matters. This prompted the State to modify its sentencing recommendation as part of the 

negotiated plea agreement, because the original agreement was made on the basis that Willison 

would be sentenced immediately. The terms of the modified agreement - that the State would 

recommend a 12 month sentence if Willison returned from furlough with a positive drug test, or 

six months if he returned with a clean test - were discussed openly, on the record, with the court, 

prosecutor, defense counsel, and Willison all participating in the discussion. The trial court asked 

Willison if he understood the terms of the modified agreement, to which Willison responded in 

the affirmative. Given these circumstances, and the precedent established in Billiter, we conclude 
Athens App. No. 18CA18 11 

that the trial court complied with the proper constitutional and procedural safeguards and that 

Willison’s plea was entered knowingly, intelligently, and voluntarily. 

{¶22} Based on the forgoing, we overrule Willison’s first assignment of error. 

B. Assistance of Counsel

{¶23} In his second assignment of error, Willison contends that because he is an 

indigent defendant with appointed counsel, his counsel provided ineffective assistance by failing 

to request at the sentencing hearing that the trial court waive court costs. 

{¶24} Criminal defendants have a right to counsel, including a right to the effective 

assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 

(1970), fn. 14. To establish constitutionally ineffective assistance of counsel, a criminal 

defendant must show (1) that his counsel’s performance was deficient and (2) that the deficient 

performance prejudiced the defense and deprived him of a fair trial. Strickland v. 

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Accord State v. Issa, 93 

Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v. Goff, 82 Ohio St.3d 123, 139, 694 N.E.2d 916 

(1998). “In order to show deficient performance, the defendant must prove that counsel’s 

performance fell below an objective level of reasonable representation. To show prejudice, the 

defendant must show a reasonable probability that, but for counsel’s errors, the result of the 

proceeding would have been different.” State v. Conway, 109 Ohio St.3d 412, 2006–Ohio–2815, 

848 N.E.2d 810, ¶ 95. “Failure to establish either element is fatal to the claim.” State v. 

Jones, 4th Dist. Scioto No. 06CA3116, 2008–Ohio–968, ¶ 14.

{¶25} In all criminal cases the judge must include in the sentence the costs of 

prosecution and render a judgment against the defendant for such costs, even if the defendant is 

indigent. R.C. 2947.23(A)(1)(a); State v. White, 103 Ohio St.3d 580, 2004–Ohio–5989, 817 
Athens App. No. 18CA18 12 

N.E.2d 393, ¶ 8. However, the trial court retains jurisdiction to waive, suspend, or modify the 

payment of the costs “at the time of sentencing or at any time thereafter.” R.C. 2947.23(C). The 

trial court may waive court costs—but is not required—if the defendant is indigent. State v. 

Hawkins, 4th Dist. Gallia No. 13CA3, 2014–Ohio–1224, ¶ 18; State v. Walker, 8th Dist. 

Cuyahoga No. 101213, 2014–Ohio–4841, ¶ 9 (the discretion to waive court costs includes the 

discretion not to waive them). Accord State v. Farnese, 4th Dist. Washington No. 15CA11, 

2015–Ohio–3533, ¶ 12.

{¶26} “R.C. 2947.23 formerly required a defendant to request a waiver of costs at the 

time of sentencing.” State v. Moore, 4th Dist. Scioto No. 15CA3717, 2016–Ohio–8274, ¶ 40, 

citing State v. Threatt, 108 Ohio St.3d 277, 2006–Ohio–905, 843 N.E.2d 164, paragraph two of 

the syllabus; State v. Brown, 8th Dist. Cuyahoga No. 103427, 2016–Ohio–1546, ¶ 14; Farnese at 

¶ 15. However, the statute has been amended so that a defendant no longer must request a waiver 

of costs at the time of sentencing. Now, 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.’ ” Moore at ¶ 40, citing R.C. 2947.23(C). “Thus, ‘a defendant is no longer required to 

move for a waiver of court costs at the sentencing hearing or waive it.’ ” Id., citing Farnese at ¶ 

15. “As a result, ineffective assistance of trial counsel claims based upon a failure to request a 

waiver of costs at the time of sentencing have become difficult—if not impossible—to 

establish.” Id., citing Farnese at ¶ 15.

{¶27} Here, as initial matter, we note that Willison agreed to pay court costs as part of 

the negotiated plea agreement. Thus, we cannot say that his counsel acted deficiently by filing to 

request a waiver of court costs at sentencing. Nevertheless, even if we were to assume, 

arguendo, that trial counsel acted deficiently by failing to request a waiver of costs at sentencing, 
Athens App. No. 18CA18 13 

Willison cannot demonstrate prejudice. Moore at ¶ 42 (“[E]ven if [the court] could state that trial 

counsel performed deficiently by failing to request a waiver at sentencing, appellant cannot 

demonstrate prejudice. 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 now seeking waiver of the payment of costs based on claimed indigency 

since R.C. 2947.23(C) was amended); State v. Williams, 3d Dist. Auglaize No. 2–13–31, 2014–

Ohio–4425, ¶ 17 (determining that any error trial counsel made by failing to object to costs at 

sentencing not prejudicial when appellant retained the ability to seek waiver under court’s 

continuing jurisdiction granted in R.C. 2947.23(C)). Accordingly, Willison is unable to 

demonstrate a claim of ineffective assistance of counsel, and we overrule his second assignment 

of error.

IV. Conclusion 

{¶28} Having overruled both of Willison’s assignments of error, we affirm the trial 

court’s judgment. 

JUDGMENT AFFIRMED.

 
Athens App. No. 18CA18 14 

JUDGMENT ENTRY 

 

 It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs. 

 The Court finds that reasonable grounds existed for this appeal. 

 It is ordered that a special mandate issue out of this Court directing the Athens 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 sixty 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 sixty day period, or the failure of 

the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five 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 sixty 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 McFarland, J.: Concur in Judgment and Opinion. 

 

 

 For the Court 

 By: ____________________________ 

 Marie Hoover, 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.