[Cite as State v. Munoz , 2021-Ohio-3435.]

COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. Craig R. Baldwin, P.J. Plaintiff - Appellee : Hon. W. Scott Gwin, J. : Hon. Earle E. Wise, J. -vs- : : RICHARD MUNOZ, : Case No. 2021 CA 00001 : Defendant - Appellant : O P I N I O N

CHARACTER OF PROCEEDING: A ppeal from the Licking County Court of Common Pleas, Case No. 2020 CR 286

JUDGMENT: Affirmed in part, Reversed and Remanded in part

DATE OF JUDGMENT: September 28, 2021

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant

WILLIAM C. HAYES JAMES A. ANZELMO Licking County Prosecutor 446 Howland Dr. Gahanna, Ohio 43230 By: PAULA SAWYERS Assistant Prosecuting Attorney 20 S. Second Street, 4 th Floor Newark, Ohio 43055Licking County, Case No. 2021 CA 00001 2

Baldwin, J. {¶1} Defendant-appellant Richard Munoz appeals his sentence from the Licking County Court of Common Pleas. Plaintiff-appellee is the State o f Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On June 25, 2020, the Licking County Grand Jury indicted appell ant on one count of aggravated possession of controlled substances (oxycod one) in violation of R.C. 2925.11(A)(C)(1)(c), a felony of the second degree, and one cou nt of aggravated trafficking in drugs (oxycodone) in violation of R.C. 2925.03(A )(2)(C)(1)(d), also a felony of the second degree. The indictment also contained two firearm forfeiture specifications and a U.S. currency forfeiture specification. At his arraignmen t on June 30, 2020, appellant entered a plea of not guilty to the charges. {¶3} Pursuant to an Entry filed on December 8, 2020, at the request of the State, the indictment was amended to aggravated possession of controll ed substances (oxycodone) in violation of R.C. 2925.11(A)(C)(1)(a), a felony of the fifth degree, and one count of aggravated trafficking in drugs (oxycodone) in violati on of R.C. 2925.03(A)(2)(C)(1)(a), a felony of the fourth degree. On Decem ber 8, 2020, appellant entered a plea of guilty to the amended charges. As memorialize d in a Judgment Entry filed on December 8, 2020, the trial court found that the two c ounts merged for purposes of sentencing and sentenced appellant to 18 months in prison. T he trial court also ordered the forfeiture of two firearms and $3,553.96 in U.S. currency t o the Central Ohio Drug Enforcement Task Force. Appellant was also fined $5,000.00 and his driving privileges were suspended for three years upon his release from prison. Ap pellant was not given

credit for time served.Licking County, Case No. 2021 CA 00001 3

{¶4} Appellant now appeals, raising the following assignments of err or on appeal: {¶5} “I. THE TRIAL COURT ERRED BY ORDERING MUNOZ TO PAY A FINE.” {¶6} “II. THE TRIAL COURT ERRED WHEN IT SENTENCED MUNOZ, IN

VIOLATION OF HIS DUE PROCESS R IGHTS UNDER THE FIFTH AND FOURTEE NTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION SIXTEE N,

ARTICLE ONE OF THE OHIO CONSTITUTION.” {¶7} “III. MUNOZ RECEIVED INEFFECTI VE ASSISTANCE OF COUNSEL, IN

VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUT ION AND SECTION 10, ARTICLE I T HE OHIO CONSTITUTION.”

I

{¶8} Appellant, in his first assignment of error, argues that the tr ial court erred in ordering him to pay a $5,000.00 fine. Appellant argues that the trial court did not take into account his indigent status or his inability to pay the fines n ow, or in the future, due to his

incarceration. {¶9} R.C. 2929.18(B)(1) establishes a procedure for avoiding imposit ion of mandatory fines applicable to certain felony drug offenses. Tha t section provides: {¶10} If an offender alleges in an affidavit filed with the court pri or to sentencing that the offender is indigent and unable to pay the mandatory f ine and if the court determines the offender is an indigent person and is unable to pay the mandatory fine described in this division, the court shall not impose the mand atory fine upon the offender. {¶11} Under Ohio law, a trial court must impose a mandatory fine unle ss (1) the offender files an affidavit of indigency prior to sentencing, a nd (2) “the trial court finds thatLicking County, Case No. 2021 CA 00001 4

the offender is an indigent person and is unable to pay the man datory fines.” State v. Gipson, 80 Ohio St.3d 626, 634, 687 N.E.2d 750 (1998). {¶12} However, in this case the fine was not mandatory because the tr afficking charge was amended to a felony of the fourth degree. R.C. 2929. 18(B)(1) only applies to first, second, or third-degree felonies. Moreover, appellant di d not file an affidavit with the trial court prior to sentencing. Therefore, the trial court was not required to consider whether appellant was unable to pay the mandatory fine. Further more, at the sentencing hearing, appellant’s counsel objected to the fine “given the De fendant’s been incarcerated since June,” and was indigent.” Transcript of December 8, 2020 hearing at 20. However, the trial court, in declining to waive the fine, noted that he did not think that appellant was indigent since appellant did not have court appointed counsel. We find, therefore, that the trial court did not err in orderin g appellant to pay a fine. {¶13} Appellant’s first assignment of error is, therefore, overruled.

II {¶14} Appellant, in his second assignment of error, contends that the trial court erred when, in its Judgment Entry, it ordered the forfeiture of currency and firearms. Appellant specifically maintains that while the trial court ord ered the forfeitures in its December 8, 2020 Judgment Entry, it did not address the forfeit ures at the actual sentencing hearing. {¶15} Crim.R. 43(A) provides the defendant shall be present at every stage of the trial, including at the imposition of sentence. Since a forfeit er hearing is essentially a part of the sentencing stage of the defendant’s trial, Crim.R. 43(A) requires the defendant’s presence at an oral hearing before a valid forfeiture judgment could be rendered. SeeLicking County, Case No. 2021 CA 00001 5

State v. Sutherlin , 111 Ohio App.3d 287, 293-294, 676 N.E.2d 127 (1 st Dist. 1996). “Because the defendant's presence is required when the court im poses sentence, the trial court errs when its judgment entry of sentence differs fr om the sentence announced at the sentencing hearing in the defendant's presence. State v. Kase , 187 Ohio App.3d 590, 2010-Ohio-2688, 932 N.E.2d 990 (7th Dist. Belmont), ¶30. {¶16} A difference between the sentence pronounced from the bench and the judgment of sentencing at times requires a remand for resentenc ing. See, e.g, Kase,

supra (remanded for resentencing where court imposed a life sentence from the bench but life without possibility parole in entry. In other words, “ imposition of a sentence in a sentencing judgment entry different than the sentence announced by the court at the time of sentencing violates a defendant's right to be present a t sentencing and requires a remand for resentencing[.]” State v. Williams, 6th Dist. No. L–11–1084, 2013–Ohio– 726, 987 N.E.2d 322, ¶ 49. {¶17} In the case sub judice, the trial court noted that appellant ha d pleaded guilty to the forfeiture and found appellant guilty. Appellant’s coun sel stated to the trial court before sentencing that “there is no dispute regarding the three (forfeiture) specifications.” Transcript of December 8, 2020 hearing at 17. However, while th e trial court, in its December 8, 2020 Judgment Entry, ordered the forfeiture of the U.S. currency and the two firearms, the trial court never ordered forfeiture of the s ame on the record. Accordingly, a remand for resentencing is required. {¶18} Appellant’s second assignment of error is, therefore, sustained

. IIILicking County, Case No. 2021 CA 00001 6

{¶19} Appellant, in his third assignment of error, asserts that he re ceived

ineffective assistance of trial counsel. {¶20} Our standard of review for ineffective assistance claims is set forth

in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ohio adopted this standard in the case of State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). These cases require a two-pronged analysis in reviewing a claim for ineffective assistance of counsel. First, we must determine whether counsel's assistance was ineffective; i.e. , whether counsel's performance fell below an objective standard of reasonable representation and was violative of any of his or her essential

duties to the client. If we find ineffective assistance of coun sel, we must then determine whether or not the defense was actually prejudiced by counsel's ineffectiveness such that the reliability of the outcome of the trial is suspect. Th is requires a showing that there is a reasonable probability that but for counsel's unprofession al error, the outcome of the

trial would have been different. Id. However, trial counsel is entitled to a strong presumption that all decisions fall within the wide range of re asonable professional

assistance. State v. Sallie , 81 Ohio St.3d 673, 675, 1998-Ohio- 343, 693 N.E.2d 267. {¶21} Appellant specifically argues that his trial counsel was ineffe ctive in waiving jail time credit. At the sentencing hearing in this case, appel lant’s counsel informed the trial court that there was an agreement that appellant “should receive no jail time credit towards any sentence imposed in this case.” Transcript of Decem ber 8, 2020 hearing at 16. When the trial court asked why there was no jail time credi t and voiced concerns that he was not sure if jail time credit could be waived, appellant’ s counsel stated, in relevantLicking County, Case No. 2021 CA 00001 7

part, as follows: “[W]e did research this issue and you can wai ve it.... because it’s local jail and not prison time, it can be waived.” Transcript of Dece mber 8, 2020 hearing at 17. {¶22} “Criminal defendants have a right to jail-time credit.” State v. Thompson , 8th Dist. Cuyahoga No. 102326, 2015-Ohio-3882, ¶ 21. R.C. 2967.191( A) states as follows: The department of rehabilitation and correction shall reduce th e prison term of a prisoner, as described in division (B) of this section, by the total number of days that the prisoner was confined for any rea son arising out of the offense for which the prisoner was convicted and sen tenced, including confinement in lieu of bail while awaiting trial, con finement for examination to determine the prisoner's competence to stand tri al or sanity, confinement while awaiting transportation to the place where th e prisoner is to serve the prisoner's prison term, as determined by the sente ncing court under division (B)(2)(g)(i)1 of section 2929.19 of the Revised Code, and confinement in a juvenile facility. The department of rehabilit ation and correction also shall reduce the stated prison term of a prison er or, if the prisoner is serving a term for w hich there is parole eligibilit y, the minimum and maximum term or the parole eligibility date of the prisoner by the total number of days, if any, that the prisoner previously served in the custody of the department of rehabilitation and correction arising out of the offense for which the prisoner was convicted and sentenced. {¶23} However, an agreement as to jail time credit can be part of a n egotiated plea. See, for example, State v. Speakman , 10th Dist. App. Nos. 08AP-456, 08AP-457, 08AP-458, 2009-Ohio-1184. Moreover, we find that appellant was not prejudiced evenLicking County, Case No. 2021 CA 00001 8

assuming, arguendo, that trial counsel should not have waived j ail time credit. As noted by appellee, appellant benefited from this plea negotiation. Ap pellant originally was indicted on two felonies of the second degree and on both count s, appellant faced a mandatory minimum term of two (2) years with a maximum term of eight (8) years. In exchange for the State agreeing to amend the indictment to felo nies of the fourth and fifth degree, appellant agreed that he would receive no credit for ti me served and that there would be a joint recommendation for the maximum sentence on ame nded count two. Appellant was then sentenced to 18 months in prison. Appellant cannot show that he was prejudiced in any way by the plea agreement. {¶24} Appellant’s third assignment of error is, therefore, overruled. {¶25} Accordingly, the judgment of the Licking County Court of Common Pleas is affirmed in part and reversed and remanded in part for proceedi ngs consistent with this Opinion.

By: Baldwin, P.J. Gwin, J. and Wise, Earle, J. concur.