State v. Rayle

[Cite as State v. Rayle, 2025-Ohio-1912.]

IN THE COURT OF APPEALS OF OHIO

SEVENTH APPELLATE DISTRICT

COLUMBIANA COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

HAROLD H. RAYLE,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY

Case No. 24 CO 0034

Criminal Appeal from the

Court of Common Pleas of Columbiana County, Ohio

Case No. 23 CR 707

BEFORE:

Mark A. Hanni, Cheryl L. Waite, Carol Ann Robb, Judges.

JUDGMENT:

Affirmed.

Atty. Vito J. Abruzzino, Columbiana County Prosecutor, and Atty. Danielle Menning,

Assistant Prosecuting Attorney, for Plaintiff-Appellee and

Atty. Michael P. Dunham, for Defendant-Appellant.

Dated: May 22, 2025

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HANNI, J.

{¶1} Defendant-Appellant, Harold H. Rayle, appeals from a Columbiana County

Common Pleas Court judgment sentencing him to consecutive 12-month sentences on

20 counts of pandering obscenity involving a minor or impaired person, following his guilty

plea, for a total sentence of 20 years. Appellant argues he did not enter his guilty plea

knowingly, voluntarily, and intelligently; his consecutive sentences are contrary to law;

and his counsel was ineffective. The record reveals that Appellant entered his plea

knowingly, voluntarily, and intelligently. Moreover, Appellant’s consecutive sentences are

not contrary to law and his counsel was not ineffective.

{¶2} A complaint was initially filed in the Columbiana County Municipal Court

charging Appellant with numerous counts of pandering obscenity involving a minor or

impaired person, fourth-degree felonies in violation of R.C. 2907.321(A)(5). The matter

was transferred to the trial court where Appellant waived indictment and agreed to

proceed by way of information.

{¶3} Because the case involved a guilty plea, the facts here are scant. The

charges stem from the discovery of over 70 videos of child pornography found on

Appellant’s phone, which he had accumulated over a period of time. The most disturbing

of the videos, according to the prosecutor, depicted a toddler with a pacifier in their mouth

being raped with a sex toy.

{¶4} On April 5, 2024, Appellant entered a guilty plea to 20 counts of pandering

obscenity involving a minor or impaired person, all fourth-degree felonies. As part of the

plea agreement, Plaintiff-Appellee, the State of Ohio, would recommend a 20-year

sentence while Appellant would argue for a lesser sentence including community control.

The trial court held a plea hearing where it addressed Appellant and accepted his plea.

The court then ordered a presentence investigation and set the matter for sentencing.

{¶5} At the June 10, 2024 sentencing hearing, the trial court sentenced Appellant

to 12 months on each of the 20 counts to be served consecutively. It also classified

Appellant as a Tier II sex offender.

{¶6} This Court granted Appellant’s motion for a delayed appeal, which he filed

on October 17, 2024. Appellant now raises three assignments of error.

Case No. 24 CO 0034

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{¶7} Appellant’s first assignment of error states:

THE TRIAL COURT ERROR [sic] IN ACCEPTING MR. RAYLE’S PLEA IN

VIOLATION OF HIS RIGHT TO DUE PROCESS UNDER THE

CONSTITUTION AND LAWS OF THE UNITED STATES AND THE STATE

OF OHIO, IN VIOLATION OF CRIM.R. 11, OR NOT MADE [sic]

KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY?

{¶8} Appellant argues he did not enter his plea knowingly, voluntarily, and

intelligently. He claims we should vacate his plea because, before accepting his guilty

plea, the trial court never informed him that it could order him to serve his sentences

consecutively. He asserts that had he known the trial court could order him to serve his

sentences consecutively, he likely would not have pleaded guilty.

{¶9} When determining the validity of a plea, this court must consider all of the

relevant circumstances surrounding it. State v. Trubee, 2005-Ohio-552, ¶ 8 (3d Dist.),

citing Brady v. United States, 397 U.S. 742 (1970). Pursuant to Crim.R. 11(C)(2), the trial

court must follow a certain procedure for accepting guilty pleas in felony cases. Before

the court can accept a guilty plea to a felony charge, it must conduct a colloquy with the

defendant to determine that he understands the plea he is entering and the rights he is

voluntarily waiving. Crim.R. 11(C)(2). If the plea is not knowing, intelligent, and voluntary,

it has been obtained in violation of due process and is void. State v. Martinez, 2004-Ohio-

6806, ¶ 11 (7th Dist.), citing Boykin v. Alabama, 395 U.S. 238, 243 (1969).

{¶10} A trial court must strictly comply with Crim.R. 11(C)(2) pertaining to the

waiver of five federal constitutional rights. Martinez at ¶ 12. These rights are the right

against self-incrimination, the right to a jury trial, the right to confront one's accusers, the

right to compel witnesses to testify by compulsory process, and the right to proof of guilt

beyond a reasonable doubt. Crim.R. 11(C)(2)(c).

{¶11} A failure regarding the non-constitutional rights requires the defendant to

make a showing of prejudice in order to invalidate the plea, unless the trial court

completely failed to comply with the advisement. State v. Dangler, 2020-Ohio-2765,

¶ 14-16. To show prejudice, the defendant must demonstrate he would not have made

the plea but for the court's failure. Id. at ¶ 16, citing State v. Nero, 56 Ohio St.3d 106, 108

Case No. 24 CO 0034

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(1990). Prejudice must be demonstrated on the face of the record. Dangler at ¶ 24. The

non-constitutional rights contained in Crim.R. 11(C)(2)(a)(b) involve informing the

defendant of “the nature of the charges with an understanding of the law in relation to the

facts, the maximum penalty, and that after entering a guilty plea or a no contest plea, the

court may proceed to judgment and sentence.” Martinez, 2004-Ohio-6806, at ¶ 12 (7th

Dist.).

{¶12} Appellant does not assert the trial court failed to advise him of the

constitutional rights he was waiving by pleading guilty. And the record reflects that the

trial court did indeed advise Appellant of the right to a jury trial, the right to have the State

prove his guilt beyond a reasonable doubt, the right to confront witnesses against him,

the right to compulsory process to subpoena witnesses, and the right to remain silent and

not have it used against him. (Plea Tr. 17-18).

{¶13} And the only non-constitutional right Appellant asserts the trial court failed

to properly advise him on is the maximum penalty he faced. Appellant claims the trial

court was required to specifically tell him that it could order him to serve his sentences

consecutively.

{¶14} Prior to the court addressing Appellant, in setting out the terms of the plea

agreement, the prosecutor stated that the State would recommend a 20-year sentence at

Appellant’s sentencing hearing. (Plea Tr. 2-3). This recommendation was likewise set

out in the felony plea agreement signed by Appellant. As to the penalties he faced, the

trial court told Appellant at the plea hearing:

All right, we are going to go over what the possible penalties are; okay? So

you are pleading guilty to twenty counts, each being a felony of the fourth

degree. Those carry with it a minimum - - each count - - a minimum six-

month term of incarceration in a state correctional facility to a maximum

eighteen-month term of incarceration in a state correctional facility and a

fine of up to $5,000 dollars. Do you understand?

(Plea Tr. 13-14). Appellant stated that he understood the penalties. (Plea Tr. 14).

{¶15} These advisements complied with Crim.R. 11(C)(2)(a). The trial court was

only required to inform Appellant of the maximum penalty he faced on each count. It was

Case No. 24 CO 0034

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not required to inform him of the possible maximum sentence if it were to impose

consecutive sentences.

{¶16} The Sixth District examined this very issue at great length in State v.

Whitman, 2021-Ohio-4510 (6th Dist.):

Appellant's argument is not new. Indeed, the same argument was

raised and rejected by the Ohio Supreme Court over three decades ago in

State v. Johnson, 40 Ohio St.3d 130, 132, 532 N.E.2d 1295 (1988). There,

the court examined whether trial courts must notify defendants who plead

guilty to more than one offense of the potential for consecutive sentences

in order to comply with a prior version of Crim.R. 11(C)(2)(a), which required

trial courts to ensure defendants had an “understanding of the nature of the

charge and of the maximum penalty involved.” (Emphasis added.)

Construing this version of the rule, the court held: “Failure to inform

a defendant who pleads guilty to more than one offense that the court may

order him to serve any sentences imposed consecutively, rather than

concurrently, is not a violation of Crim.R. 11(C)(2), and does not render the

plea involuntary.” Id. at syllabus. In reaching its conclusion, the court

explained:

Although there has been no violation of the appellee's constitutional

rights here, we must determine whether there has been prejudicial error

committed by the trial court regarding the mandates of Crim.R. 11(C). We

begin our analysis by considering the text of the rule itself. A review of such

rule, as set forth above, indicates that it requires the trial court to explain

before it accepts “the plea,” “the nature of the charge and of the maximum

penalty involved.” (Emphasis added.) Crim.R. 11(C)(2)(a). Upon its face

the rule speaks in the singular. The term “the charge” indicates a single

and individual criminal charge. So, too, does “the plea” refer to “a plea”

which the court “shall not accept” until the dictates of the rule have been

observed. Consequently, the term “the maximum penalty” which is required

to be explained is also to be understood as referring to a single penalty. In

Case No. 24 CO 0034

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the context of “the plea” to “the charge,” the reasonable interpretation of the

text is that “the maximum penalty” is for the single crime for which “the plea”

is offered. It would seem to be beyond a reasonable interpretation to

suggest that the rule refers cumulatively to the total of all sentences

received for all charges which a criminal defendant may answer in a single

proceeding.

Id. at 133, 532 N.E.2d 1295.

Additionally, the court in Johnson referenced the discretion afforded

to the trial court in deciding whether to order Johnson to serve the

sentences for his crimes consecutively or concurrently. Id. at 133-134, 532

N.E.2d 1295. Noting that Crim.R. 11 applies “only to the entry and

acceptance of the plea” and “has no relevance to the exercise of the trial

court's sentencing discretion,” the court found that “it can hardly be said that

the rule imposes upon a trial judge a duty to explain what particular matters

he may, at a later date, determine are significant to the exercise of his

discretion.” Id. at 134, 532 N.E.2d 1295.

A review of case law since Johnson was decided and Crim.R.

11(C)(2)(a) was amended reveals Ohio appellate courts have almost

always held that a trial court need not warn a defendant of the potential for

consecutive sentences prior to accepting a guilty plea to multiple offenses.

The only time courts deviate from this rule is when the imposition of

consecutive sentences is mandatory, such as cases involving a charge of

failure to comply with the order of a peace officer, State v. Pitts, 159 Ohio

App.3d 852, 2005-Ohio-1389, 825 N.E.2d 695, ¶ 22 (6th Dist.), repeat

violent offender specifications, State v. Bragwell, 7th Dist. Mahoning No.

06-MA-140, 2008-Ohio-3406, 2008 WL 2633240, ¶ 57, and State v.

Whitaker, 2013-Ohio-4434, 999 N.E.2d 278, ¶ 27, and sentences imposed

for violation of postrelease control, State v. Bishop, 156 Ohio St.3d 156,

2018-Ohio-5132, 124 N.E.3d 766.

Case No. 24 CO 0034

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Of particular note among these “exception cases” is Bishop, which

was decided three decades after Johnson was released. In Bishop, the

Ohio Supreme Court addressed the following certified question: “Whether a

criminal defendant on [postrelease control] for a prior felony must be

advised, during his plea hearing in a new felony case, of the trial court's

ability under R.C. 2929.141 to terminate his existing [postrelease control]

and to impose a consecutive prison sentence for the [postrelease-control]

violation.” Bishop at ¶ 1.

The plurality in Bishop began its analysis by noting that Crim.R.

11(C)(2)(a) was amended since Johnson was decided. However, the court

did not articulate whether, or to what extent, the amendment of the rule

(from “charge” to “charges”) impacted its longstanding holding in Johnson.

Instead, the court distinguished Johnson based upon the fact that Bishop's

felony sentence and the 12-month sentence attributable to his postrelease

control violation were intertwined and were required to be served

consecutively under R.C. 2929.141(A)(1). Id. at ¶ 17. Because a prison

sentence imposed for a postrelease control violation must be served

consecutively to prison sentences for new felony offenses that gave rise to

the violation, the court found that the phrase “maximum penalty involved” in

Crim.R. 11(C)(2)(a) includes the postrelease control violation sentence. Id.

Consequently, the court found that defendants must be notified of the fact

that the sentences are required to be imposed consecutively at the time of

the plea hearing on the new felony offense in order to satisfy Crim.R.

11(C)(2)(a). Id. at ¶ 21.

Regarding the issue before us, namely whether Crim.R. 11(C)(2)(a)

requires notification of the potential for consecutive sentencing, Bishop is

noteworthy for two reasons. First, Bishop upholds the approach taken by

many intermediate appellate courts in Ohio (including this court) regarding

the differential treatment of cases based upon whether consecutive

sentencing is discretionary or statutorily required.

Case No. 24 CO 0034

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Second, Bishop is the only decision released by the Ohio Supreme

Court following the 1998 amendment to Crim.R. 11(C)(2)(a) in which the

court refers to the amendment of the rule and its impact on the holding in

Johnson. Unfortunately, the plurality in Bishop does little more than briefly

mention this issue, stating only that “Crim.R. 11(C)(2)(a) has been amended

since Johnson so that a single plea can now apply to multiple charges.” Id.

at ¶ 15.

More problematic than the Bishop plurality's lack of analysis as to the

import of the 1998 amendment to Crim.R. 11 is the fact that Ohio

intermediate courts of appeal generally fail to even mention the amendment

when citing Johnson in those decisions that have been released since the

amendment. Upon our extensive research, it appears that no court has

engaged in any meaningful analysis of the effect of the amendment to

Crim.R. 11(C)(2)(a) upon the holding in Johnson.

...

While the plurality in Bishop distinguished Johnson, it did not overrule

Johnson when it had an opportunity to do so. State v. Nave, 8th Dist.

Cuyahoga No. 107032, 2019-Ohio-1123, 2019 WL 1411123, ¶ 11. As an

intermediate court, we are not free to overrule a decision of the Ohio

Supreme Court. State v. Thrasher, 6th Dist. Wood No. WD-06-047, 2007-

Ohio-2838, 2007 WL 1652572, ¶ 7. Instead, we are bound to follow the

decision. Id.

Our continued application of the Ohio Supreme Court's holding in

Johnson is consistent with the practice of other Ohio appellate courts that

have distinguished Johnson and Bishop.

...

The decisions that have been released by courts of appeals after

Bishop agree with the Eighth District's statement that “[u]nder Ohio law,

Case No. 24 CO 0034

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there is no requirement for the trial court to advise of the possibility that each

individual sentence may be imposed consecutively, such that a plea can be

considered as involuntary in the absence of such an advisement.” State v.

Cobbledick, 8th Dist. Cuyahoga No. 108959, 2020-Ohio-4744, 2020 WL

5846074, ¶ 6; see also State v. Novoa, 7th Dist. Mahoning No. 19 MA 0073,

2021-Ohio-3585, 2021 WL 4592424, ¶ 22 (limiting Bishop to cases involving

defendants that plead guilty to new felonies while on postrelease control

and recognizing that “many appellate jurisdictions, including this Court,

have continued to follow Johnson”); State v. Willard, 2021-Ohio-2552, 175

N.E.3d 989 (11th Dist.) (“This court and others have recognized the court's

distinction in Bishop and have continued to apply Johnson.”).

In sum, the consensus among Ohio appellate districts on the issue

at hand seems to be the following: “When a consecutive sentence is

discretionary under R.C. 2929.14(C)(4), * * * the failure to inform a criminal

defendant that a prison term may be run consecutive to another is not a

violation of Crim.R. 11(C)(2)(a). The Ohio Supreme Court's decision in

Bishop did not disturb this holding in Johnson.” Nave at ¶ 12[.]

Id. at ¶ 19-31; (footnotes omitted).

{¶17} Based on the above, the trial court complied with Crim.R. 11(C)(2) when it

advised Appellant of the minimum and maximum sentence he faced on each count. Thus,

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

{¶18} Accordingly, Appellant’s first assignment of error is without merit and is

overruled.

{¶19} Appellant’s second assignment of error states:

WAS MR. RAYLE’S CONSECUTIVE SENTENCE OF IMPRISONMENT

CONTRARY TO LAW, NOT SUPPORTED BY THE RECORD, AN ABUSE

OF DISCRETION, CRUEL AND UNUSUAL PUNISHMENT, OR AN

EXCESSIVE FINE, WHEN THE OFFENSE CARRIED A PRESUMPTION

OF PROBATION AND CONCURRENT SENTENCING?

Case No. 24 CO 0034

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{¶20} Here, Appellant contends his sentence is contrary to law, is not supported

by the record, and resulted from an abuse of discretion. He makes numerous arguments

under this assignment of error.

{¶21} When reviewing a felony sentence, an appellate court must uphold the

sentence unless the evidence clearly and convincingly does not support the trial court's

findings under the applicable sentencing statutes or the sentence is otherwise contrary to

law. State v. Marcum, 2016-Ohio-1002, ¶ 1.

{¶22} Appellant first asserts his sentence is contrary to law because he was

entitled to a presumption of probation, which was not overcome. He asserts that pursuant

to R.C. 2929.16 and R.C. 2929.13, the trial court was required to separately address each

of the 20 counts he was convicted of and make a finding regarding whether probation

was warranted. Because the trial court did not do this here, Appellant argues the

presumption of probation was not overcome.

{¶23} But nothing in the statutes Appellant relies on requires the trial court to

separately address each of the 20 counts he was convicted of and make a finding

regarding whether probation was warranted as he asserts.

{¶24} R.C. 2929.16(A) provides in relevant part that “the court imposing a

sentence for a felony upon an offender who is not required to serve a mandatory prison

term may impose any community residential sanction or combination of community

residential sanctions under this section.” There is no mention whatsoever of a

presumption of community control sanctions or of any findings the sentencing court would

be required to make.

{¶25} R.C. 2929.13 provides in relevant part:

(B)(1)(a) Except as provided in division (B)(1)(b) of this section, if an

offender is convicted of or pleads guilty to a felony of the fourth or fifth

degree that is not an offense of violence or that is a qualifying assault

offense, the court shall sentence the offender to a community control

sanction or combination of community control sanctions if all of the following

apply:

Case No. 24 CO 0034

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(i) The offender previously has not been convicted of or pleaded

guilty to a felony offense.

(ii) The most serious charge against the offender at the time of

sentencing is a felony of the fourth or fifth degree.

(iii) The offender previously has not been convicted of or pleaded

guilty to a misdemeanor offense of violence that the offender committed

within two years prior to the offense for which sentence is being imposed.

(b) The court has discretion to impose a prison term upon an offender

who is convicted of or pleads guilty to a felony of the fourth or fifth degree

that is not an offense of violence or that is a qualifying assault offense if any

of the following apply:

.. .

(iv) The offense is a sex offense that is a fourth or fifth degree felony

violation of any provision of Chapter 2907. of the Revised Code.

(Emphasis added)

{¶26} Appellant was convicted of 20 separate sex offenses in violation of R.C.

2907.321(A)(5), all fourth-degree felonies. Thus, pursuant to R.C. 2929.13(B)(1)(b), it

was within the trial court’s discretion to sentence Appellant to a prison term for each of

the 20 offenses. The statute does not require the court to make any particular findings

first.

{¶27} Appellant next argues the presumption in favor of concurrent sentences was

not overcome. He contends that the trial court only mentioned one of the videos where

a child was actually harmed without making any determinations as to the other 19 videos.

Thus, he claims only the sentence for this one count should be consecutive and the others

should be concurrent.

{¶28} As to the issue of consecutive sentences, R.C. 2929.14(C)(4) requires a

trial court to make specific findings:

Case No. 24 CO 0034

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(4) If multiple prison terms are imposed on an offender for convictions

of multiple offenses, the court may require the offender to serve the prison

terms consecutively if the court finds that the consecutive service is

necessary to protect the public from future crime or to punish the offender

and that consecutive sentences are not disproportionate to the seriousness

of the offender's conduct and to the danger the offender poses to the public,

and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses

while the offender was awaiting trial or sentencing, was under a sanction

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised

Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of

one or more courses of conduct, and the harm caused by two or more of

the multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the courses

of conduct adequately reflects the seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime

by the offender.

{¶29} In this case, the trial court addressed these consecutive sentencing findings

at the sentencing hearing and included them in the judgment entry. Appellant does not

take issue with the statutory findings. Instead, he seems to take issue with court’s

reasons.

{¶30} The trial court found that Appellant did not take accountability for his actions.

(Sentencing Tr. 11). It told Appellant that by watching the videos he was harming children.

(Sentencing Tr. 11). It emphasized that there was a toddler being raped on one of the

videos and stated its disbelief that Appellant could possess that type of video.

(Sentencing Tr. 12). The court also pointed out that Appellant had 72 separate videos of

this type. (Sentencing Tr. 12). And it emphasized that the children in these videos are

Case No. 24 CO 0034

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tortured with this for rest of their lives. (Sentencing Tr. 13). The court reiterated that there

were toddlers in these videos who were robbed of their innocence. (Sentencing Tr. 13-

14). And the court noted that this was Appellant’s sixth criminal offense and his second

criminal offense involving minors. (Sentencing Tr. 14).

{¶31} Based on the above, the trial court gave numerous reasons for imposing

consecutive sentences despite Appellant’s contention to the contrary.

{¶32} Appellant further contends his consecutive sentences constitute cruel and

unusual punishment. However, Appellant simply relies on his argument above that the

trial court relied on the one video where the victim was harmed and did not make findings

as to the other videos.

{¶33} The Eighth Amendment to the United States Constitution as well as Section

9, Article I of the Ohio Constitution, prohibit cruel and unusual punishment.

{¶34} In examining a cruel and unusual punishment argument in regard to

consecutive sentences resulting in a 134-year sentence, the Ohio Supreme Court

observed:

In State v. Saxon, 109 Ohio St.3d 176, 2006-Ohio-1245, 846 N.E.2d

824, however, we held that “[a] sentence is the sanction or combination of

sanctions imposed for each separate, individual offense.” Id., paragraph

one of the syllabus. We stated, “Ohio's felony-sentencing scheme is clearly

designed to focus the judge's attention on one offense at a time,” and “[o]nly

after the judge has imposed a separate prison term for each offense may

the judge then consider in his discretion whether the offender should serve

those terms concurrently or consecutively.” Id. at ¶ 8-9.

State v. Hairston, 2008-Ohio-2338, ¶ 16. The Court pointed out that several federal courts

of appeals and other states’ supreme courts have concluded that the Eighth Amendment

proportionality review does not apply to cumulative sentences. Id. at ¶ 17. The Court

then concluded:

[T]hat for purposes of the Eighth Amendment and Section 9, Article

I of the Ohio Constitution, proportionality review should focus on individual

sentences rather than on the cumulative impact of multiple sentences

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imposed consecutively. Where none of the individual sentences imposed

on an offender are grossly disproportionate to their respective offenses, an

aggregate prison term resulting from consecutive imposition of those

sentences does not constitute cruel and unusual punishment.

Id. at ¶ 20. Thus, we may only review Appellant’s individual sentences here.

{¶35} The range of prison terms for a fourth-degree felony is six to 18 months.

R.C. 2929.14(A)(4). The trial court sentenced Appellant to 12 months on each individual

count. So each sentence was clearly within the range of appropriate sentences. Thus,

Appellant’s sentence does not constitute cruel and unusual punishment.

{¶36} Next, Appellant contends the trial court abused its discretion in sentencing

him to 12 months on each count.

{¶37} “An appellate court does not review a felony sentence under an abuse of

discretion standard.” State v. Currence, 2024-Ohio-1320, ¶ 19 (7th Dist.), citing Marcum,

2016-Ohio-1002, at ¶ 1. Thus, we will not consider whether the trial court abused its

discretion in sentencing Appellant to 12 months on each count.

{¶38} Finally, Appellant claims his fines and costs should have been waived due

to his indigency and lengthy prison sentence. He acknowledges that he did not raise this

issue to the trial court but alleges that it was plain error.

{¶39} We should first mention that the trial court did not impose a fine on

Appellant. It only ordered that he pay the court costs, which it stayed until Appellant is

released from prison. And Appellant can still file a motion to waive his costs. See R.C.

2947.23(C). Furthermore, Appellant was not indigent at the time he was sentenced.

Appellant did not file an affidavit of indigency with the trial court and he retained his own

trial counsel. He first filed an affidavit of indigency when he filed his notice of appeal with

this Court.

{¶40} Accordingly, Appellant’s second assignment of error is without merit and is

overruled.

{¶41} Appellant’s third assignment of error states:

WAS TRIAL COUNSEL INEFFECTIVE IN VIOLATION OF MR. RAYLE’S

RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE

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CONSTITUTION AND LAWS OF THE UNITED STATES AND STATE OF

OHIO BY NOT ADDRESSING THE ISSUE OF CONSECUTIVE

SENTENCING AT THE CHANGE OF PLEA HEARING, AND WHEN NOT

ASKING FOR WAIVER OF FINES AND COURT COSTS AT

SENTENCING?

{¶42} In his final assignment of error, Appellant argues his trial counsel was

ineffective.

{¶43} To prove an allegation of ineffective assistance of counsel, the appellant

must satisfy a two-prong test. First, appellant must establish that counsel's performance

has fallen below an objective standard of reasonable representation. Strickland v.

Washington, 466 U.S. 668, 687 (1984); State v. Bradley, 42 Ohio St.3d 136 (1989),

paragraph two of the syllabus. Second, the appellant must demonstrate that he was

prejudiced by counsel's performance. Id. To show that he has been prejudiced by

counsel's deficient performance, the appellant must prove that, but for counsel's errors,

the result of the trial would have been different. Bradley, at paragraph three of the

syllabus.

{¶44} Appellant bears the burden of proof on the issue of counsel's

ineffectiveness. State v. Calhoun, 86 Ohio St.3d 279, 289 (1999). In Ohio, a licensed

attorney is presumed competent. Id.

{¶45} First, Appellant claims his counsel was ineffective for failing to bring up the

possibility of consecutive sentences at the change of plea hearing.

{¶46} As discussed previously, the trial court properly informed Appellant of the

minimum and maximum penalty he faced on each count before it accepted his plea. And

Appellant knowingly pleaded guilty to 20 counts. Moreover, Appellant was aware that the

prosecutor would be recommending a 20-year sentence. The prosecutor stated at the

plea hearing that the State would be seeking a 20-year sentence. (Plea Tr. 2). Appellant

signed the plea form containing this advisement. And Appellant indicated at the plea

hearing that he signed the form and reviewed it with his counsel. (Plea Tr. 9-10).

Therefore, Appellant cannot demonstrate any prejudice here.

{¶47} Second, Appellant claims counsel was ineffective for failing to ask the court

to waive his fines and costs.

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{¶48} Pursuant to R.C. 2947.23(A)(1)(a), in all criminal cases, the court shall

include court costs in the sentence and render a judgment against the defendant for such

costs. The court retains jurisdiction to waive, suspend, or modify the payment of the court

costs at the time of sentencing or at any time thereafter. R.C. 2947.23(C).

{¶49} Thus, trial courts are required to impose court costs on criminal defendants.

But the court retains continuing jurisdiction to waive those costs even after sentencing.

{¶50} In this case, the trial court ordered Appellant to pay court costs. But it stayed

the collection of the court costs until Appellant is released from prison. Appellant's

counsel did not file a motion to waive those costs.

{¶51} Appellant was not indigent at the trial court level. He retained counsel. Trial

counsel was not court-appointed. Appellant first filed an affidavit of indigency in the Court

with his notice of appeal.

{¶52} Moreover, even if Appellant was indigent during the trial court proceedings,

counsel’s failure to file for a waiver of court costs would not be prejudicial error so as to

amount to ineffective assistance of counsel.

{¶53} In State v. Davis, 2020-Ohio-309, ¶ 1, the Ohio Supreme Court explained:

[A] court's finding of ineffective assistance of counsel depends on the

facts and circumstances in each case. See Strickland v. Washington, 466

U.S. 668, 688-689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We hold that

when an indigent defendant makes an ineffective-assistance-of-counsel

claim based upon counsel's failure to request a waiver of court costs, a

reviewing court must apply the test in State v. Bradley, 42 Ohio St.3d 136,

141-142, 538 N.E.2d 373 (1989), which adopted the standard that had been

announced in Strickland, for determining whether a defendant received

ineffective assistance of counsel. If a court analyzes the prejudice prong,

then it must consider the facts and circumstances of the case objectively to

determine whether the defendant established the necessary prejudice

sufficient to support that claim—i.e., but for counsel's deficient performance,

there exists a reasonable probability that the result of the proceeding would

have been different.

Case No. 24 CO 0034

– 17 –

{¶54} In this case, because the trial court has not yet required Appellant to pay

the court costs, he has not suffered any prejudice as is required to succeed on an

ineffective assistance of counsel claim. And because R.C. 2947.23(C) permits the trial

court to “waive, suspend, or modify the payment of the court costs” even after sentencing,

Appellant can still file a motion to waive those costs. Thus, Appellant's ineffective

assistance of counsel claim also fails on this basis.

{¶55} Accordingly, Appellant’s third assignment of error is without merit and is

overruled.

{¶56} For the reasons stated above, the trial court’s judgment is hereby affirmed.

Waite, J., concurs.

Robb, P.J., concurs.

Case No. 24 CO 0034

[Cite as State v. Rayle, 2025-Ohio-1912.]

For the reasons stated in the Opinion rendered herein, the assignments of error

are overruled and it is the final judgment and order of this Court that the judgment of the

Court of Common Pleas of Columbiana County, Ohio, is affirmed. Costs to be waived.

A certified copy of this opinion and judgment entry shall constitute the mandate in

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a

certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.