Case Number: 106220

Judge: TIM McCORMACK

Court: Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

Plaintiff's Attorney: Holly Welsh
Assistant County Prosecutor

Defendant's Attorney: Ruth R. Fischbein-Cohen

Description: On May 2, 2016, Hanford was charged in a multicount indictment: Count 1
— aggravated murder in violation of R.C. 2903.01(A); Count 2 — murder in violation of
R.C. 2903.02(A); Count 3 — murder in violation of R.C. 2903.02(B); Count 4 —
felonious assault in violation of R.C. 2903.11(A)(1); Count 5 — felonious assault in
violation of R.C. 2903.11(A)(2); Count 6 — carrying a concealed weapon in violation
of R.C. 2923.12(A)(2); and Count 7 — tampering with evidence in violation of R.C.
2921.12(A)(1). Each count contained a forfeiture of a weapon (a knife) specification.
The incident stems from the stabbing of Hanford’s neighbor, James Kilbane, nine times
during an argument Hanford was having with his girlfriend.
{¶3} On September 22, 2016, the court found, following a hearing, that Hanford
was not competent to stand trial but could be restored to competency if provided with a
course of treatment. The court ordered Hanford to Northcoast Behavioral Healthcare for
inpatient treatment for competency restoration. In February 2017, Hanford was referred
to the mental health and developmental disabilities court for eligibility screening, and his
case was transferred to the mental health docket. Forensic psychiatrist, Dr. Megan
Testa, opined that Hanford possessed the ability to understand the nature and objective of
the court proceedings and had the capacity to assist in his defense.
{¶4} On July 12, 2017, Hanford withdrew his previously entered not guilty plea.
He pleaded guilty to the murder charge in Count 2 and agreed to forfeit the weapon. In
exchange, the state agreed to nolle the remaining charges. After hearing from the
victim’s family and defense counsel, the trial court imposed a sentence of life in prison,
with the opportunity for parole after 15 years. The court waived any fine but ordered
Hanford to pay court costs by working community work service in prison.
{¶5} On September 6, 2017, Hanford filed a pro se motion for leave to file a
delayed appeal, which we granted. This court then appointed counsel to represent
Hanford on appeal.
{¶6} Hanford now raises four assignments of error for our review:
I. Michael Hanford was not given credit for time served.

II. It was error for trial counsel not to move the court to waive court costs.

III. Michael Hanford’s plea of guilty was not made knowingly, thereby rendering the plea as invalid and unconstitutional.

IV. Michael Hanford’s bail was excessive; cruel and unusual
punishment.
Jail-Time Credit
{¶7} In his first assignment of error, Hanford claims the trial court erred in
failing to give him credit for jail time served. The court’s sentencing entry states, “Jail
credit days to date to be calculated by the sheriff.” The state concedes the error and
states that Hanford is entitled to 444 days of jail-time credit.
{¶8} Under R.C. 2967.191, a defendant is entitled to jail-time credit for
confinement that is related to the offense for which he or she is being sentenced:
The department of rehabilitation and correction shall reduce the stated prison term of a prisoner * * * by the total number of days that the prisoner was confined for any reason arising out of the offense for which the prisoner was convicted and sentenced, including confinement in lieu of bail while awaiting trial * * * [and] confinement while awaiting transportation to the place where the prisoner is to serve the prisoner’s prison term. * * * The department of rehabilitation and correction also shall reduce the stated prison term of a 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.

Id.; State v. Fair, 136 Ohio App.3d 184, 2000-Ohio-1614, 736 N.E.2d 82 (3d Dist.).
{¶9} “Confinement” is construed as time in which one is not free to come and go
as he or she wishes. State v. Napier, 93 Ohio St.3d 646, 648, 758 N.E.2d 1127 (2001).
One is “confined” for purposes of the statute when he or she is confined for examination
to determine competency to stand trial or treatment at a facility such as Northcoast
Behavioral Healthcare System. State v. Lutz, 8th Dist. Cuyahoga No. 105595,
2017-Ohio-4077, ¶ 12.
{¶10} The trial court must determine and document how many days of jail-time
credit a defendant is owed. State v. Armstrong, 8th Dist. Cuyahoga No. 105943,
2017-Ohio-8070, ¶ 13, citing State v. Clemons, 8th Dist. Cuyahoga No. 92054,
2009-Ohio-2726, ¶ 6.
{¶11} Here, the record reflects that the trial court failed to determine Hanford’s
jail-time credit both at the sentencing hearing and in the sentence entry. In the state’s
brief on appeal, it calculated Hanford’s jail-time credit as follows: Cleveland city jail,
April 24, 2016 – April 26, 2016, for 2 days; Cuyahoga county jail, April 26, 2016 –
August 25, 2016, for 121 days; Northcoast Behavioral Healthcare, August 25, 2016 –
February 15, 2017, for 174 days; and Cuyahoga county jail, February 15, 2017 – July 12,
2017, for 147 days. Thus, the state concedes that Hanford is entitled to 444 days of
jail-time credit.
{¶12} Upon our review of the record, we find the trial court erred when it failed
to credit Hanford’s prison sentence with jail time, and we agree with the state’s
calculations. Hanford is entitled to jail-time credit of 444 days.
{¶13} Hanford’s first assignment of error is sustained.
Court Costs
{¶14} In his second assignment of error, Hanford claims that his trial counsel was
ineffective for failing to move the trial court to waive court costs. This argument has no
merit.
{¶15} In order to establish a claim of ineffective assistance of counsel, the
defendant must show that his trial counsel’s performance was deficient in some aspect of
his representation and that deficiency prejudiced his defense. Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d
136, 538 N.E.2d 373 (1989). To show prejudice as the claim of ineffective assistance
relates to the imposition of costs, the defendant must show that a reasonable probability
exists that the trial court would have waived payment of the costs if such motion had been
filed. State v. Graves, 8th Dist. Cuyahoga No. 103984, 2016-Ohio-7303, ¶ 13, citing
State v. Vanderhorst, 8th Dist. Cuyahoga No. 97242, 2012-Ohio-2762, ¶ 78. A
“reasonable probability” is “probability sufficient to undermine confidence in the
outcome” of the proceeding. Strickland at 694.
{¶16} R.C. 2947.23(A)(1) governs the imposition of court costs and provides that
“[i]n all criminal cases * * * the judge * * * shall include in the sentence the costs of
prosecution * * * and render a judgment against the defendant for such costs.” The
statute does not prohibit a court from assessing costs against an indigent defendant;
rather, “it requires a court to assess costs against all convicted defendants.” State v.
White, 103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 8; State v. Brown, 8th
Dist. Cuyahoga No. 103427, 2016-Ohio-1546, ¶ 12.
{¶17} The trial court, however, has the discretion to waive court costs if the
defendant makes a motion to waive costs. Brown at ¶ 13, citing State v. Walker, 8th
Dist. Cuyahoga No. 101213, 2014-Ohio-4841, ¶ 9. And pursuant to R.C. 2947.23(C), as
amended by Am.Sub.H.B. 247, effective March 22, 2013, the trial court “retains
jurisdiction to waive, suspend, or modify the payment of the costs of prosecution * * *, at
the time of sentencing or any time thereafter.” Therefore, under R.C. 2947.23(C), a
defendant may file a motion to waive costs at any time. State v. Williams, 8th Dist.
Cuyahoga No. 105590, 2018-Ohio-845, ¶ 39, citing State v. Beasley, Slip Opinion No.
2018-Ohio-493, ¶ 265. And because a defendant may move the court to waive costs at
any time, he or she cannot demonstrate prejudice from trial counsel’s failure to request a
waiver of court costs at sentencing. State v. Mihalis, 8th Dist. Cuyahoga No. 104308,
2016-Ohio-8056, ¶ 33.
{¶18} Here, the record reflects that trial counsel advised the court that Hanford is
indigent before the court imposed court costs, and counsel did not object when the court
thereafter imposed costs and ordered Hanford to utilize community work service in prison
to pay his costs. Even if counsel’s actions were considered deficient in this regard, in
light of the foregoing applicable law, Hanford cannot establish prejudice. His
ineffective assistance claim therefore fails.
{¶19} Hanford’s second assignment of error is overruled.
Guilty Plea
{¶20} In his third assignment of error, Hanford claims that his guilty plea was not
knowingly, voluntarily, and intelligently made. In support, he argues that the facts
demonstrate “the court did not touch the knowing or willing segment.”
{¶21} 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. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996).
To ensure that a defendant enters a plea knowingly, voluntarily, and intelligently, a trial
court must engage in an oral dialogue with the defendant in accordance with Crim.R.
11(C). Id. The underlying purpose of Crim.R. 11(C) is to convey certain information
to a defendant so that he or she can make a voluntary and intelligent decision regarding
whether to plead guilty. State v. Schmick, 8th Dist. Cuyahoga No. 95210,
2011-Ohio-2263, ¶ 5.
{¶22} Crim.R. 11(C)(2) requires that a trial court determine from a colloquy with
the defendant whether the defendant understands (1) the nature of the charge and
maximum penalty, (2) the effect of the guilty plea, and (3) the constitutional rights waived
by a guilty plea. State v. Brown, 8th Dist. Cuyahoga No. 104095, 2017-Ohio-184, ¶ 5,
citing State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621. Before
accepting the guilty plea, the court must address the defendant personally. Crim.R.
11(C)(2); State v. Evans, 8th Dist. Cuyahoga No. 100151, 2014-Ohio-3584, ¶ 9.
{¶23} The reviewing court conducts a de novo review to determine whether the
trial court accepted a plea in compliance with Crim.R. 11(C). State v. Cardwell, 8th
Dist. Cuyahoga No. 92796, 2009-Ohio-6827, ¶ 26. Where the issue concerns a
nonconstitutional requirement, such as whether the defendant understood the nature of the
charges or the maximum penalties for the offenses, we review for substantial compliance.
See State v. Jordan, 8th Dist. Cuyahoga No. 103813, 2016-Ohio-5709, ¶ 46, citing
Veney at ¶ 14-17. “Substantial compliance means that under the totality of the
circumstances the defendant subjectively understands the implications of his plea and the
rights he is waiving.” State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990);
State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977).
{¶24} After a thorough review of the record, we find that the court fully complied
with all aspects of Crim.R. 11 when taking Hanford’s guilty plea, and there is no
indication from the record of the plea proceedings that Hanford’s plea was anything but
knowingly, voluntarily, or intelligently made.
{¶25} Here, the record demonstrates that the state advised the court that Hanford
agreed to plead to an amended Count 2, murder, and in exchange, the state agreed to
dismiss all remaining charges. The state also advised the court that the amended count
is an unspecified felony and therefore carries a prison sentence of life with the possibility
of parole after 15 years and mandatory five years postrelease control.
{¶26} Thereafter, the court inquired of Hanford’s age and level of education, and
the following colloquy occurred:
Court: Are you currently under the influence of any drugs, alcohol, or medication?

Defendant: I take drugs from a doctor.

Court: Do they cause you any trouble understanding things?

Defendant: No. I understand better with them. They do help me.

Court: Okay. And do you understand what’s going on here today?

Defendant: Yeah. Yes.

Court: All right. Other than the plea offer, any kind of threat or promise made to you to get you to change your plea?

* * *

Defendant: Yeah, I understand my plea, you know, for the crime I’ve committed, so — but nobody threatened me or anything.

Court: Okay. Are you satisfied with the work performed by [defense counsel] for you? Defendant: Yeah.
{¶27} The court then advised Hanford of his constitutional rights and explained
that by entering the plea, Hanford was “waiving, you’re giving up those rights.”
Hanford answered, “okay” after each advisement. The court then explained the
sentence, stating that “[t]he sentence in this case is life imprisonment with the first
opportunity to seek parole after 15 years,” and he proceeded to explain postrelease
control. Hanford replied, “Yes, sir.”
{¶28} Defense counsel and the prosecutor agreed that the court complied with
Crim.R. 11. The court then found that Hanford understood the nature of the charge, the
effect of the plea, and the penalties that could be imposed and found Hanford’s plea to be
knowingly, intelligently, and voluntarily made. The court accepted Hanford’s plea and
found him guilty of murder.
{¶29} In light of the above, we find that the trial court complied with Crim.R. 11
in ensuring that Hanford’s plea was knowingly, intelligently, and voluntarily entered.
Hanford has failed to identify any part of the record that demonstrates any confusion,
coercion, or lack of understanding of the proceedings or his plea.
{¶30} Hanford’s third assignment of error is overruled.
Excessive Bail
{¶31} In his final assignment of error, Hanford argues that his $1 million bond was
in violation of the Eighth Amendment to the United States Constitution’s prohibition
against “excessive bail.” This argument has no merit.
{¶32} The amount of bail set in a criminal proceeding is within the sound
discretion of the trial court. State v. Bridges, 8th Dist. Cuyahoga Nos. 102930 and
103090, 2015-Ohio-5428, ¶ 31, citing State v. Cogar, 5th Dist. Holmes No. 05CA009,
2006-Ohio-5218, ¶ 37. After conviction, however, “any error concerning the issue of
pretrial bail is moot. * * * The proper procedure for seeking relief for excessive pretrial
bail is through habeas corpus proceedings.” State v. Towns, 8th Dist. Cuyahoga No.
88059, 2007-Ohio-529, ¶ 20. Hanford may therefore not raise this issue on direct appeal
of his conviction.
{¶33} Hanford’s final assignment of error is overruled.

Outcome: Judgment affirmed. The case is remanded to the trial court for the limited
purpose of issuing a nunc pro tunc journal entry to credit Hanford’s prison sentence with 444 days jail-time credit.

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