[Cite as State v. Price,

.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 100981

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

TERRELL A. PRICE

DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-13-577236-A

BEFORE: Keough, J., Boyle, P.J., and Blackmon, J.

RELEASED AND JOURNALIZED: February 5, 2015 ATTORNEY FOR APPELLANT

Thomas A. Rein Leader Building, Suite 940 526 Superior Avenue Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

Timothy J. McGinty Cuyahoga County Prosecutor By: Edward R. Fadel Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 KATHLEEN ANN KEOUGH, J.:

{¶1} Defendant-appellant, Terrell A. Price, appeals his convictions. For the reasons that

follow, we affirm, but remand the case to the trial court for the limited purpose of addressing

court costs.

{¶2} In September 2013, Price was charged with two counts of drug trafficking in

violation of R.C. 2925.03(A)(2), two counts of drug possession in violation of R.C. 2925.11(A),

and one count of possessing criminal tools, to wit: a scale, money, and an iPad, in violation of

R.C. 2923.24(A). Each count sought forfeiture of money, a scale, and an iPad.

{¶3} After indictment, Price was represented by retained counsel until counsel requested

to withdraw. The trial court granted counsel’s request on the day that trial was scheduled.

After a finding of indigency, the court appointed an attorney from the public defender’s officer to

represent Price. The case was continued for trial until January 6, 2014. However, on the day of

trial, newly retained counsel appeared on Price’s behalf. After the trial court denied Price’s

request for substitution of counsel, Price indicated he wanted to represent himself at trial. The

trial court engaged in a lengthy discussion with Price about this decision. As a result of this

discussion, Price proceeded to trial with his appointed attorney.

{¶4} After trial commenced and during cross-examination of the state’s first witness,

Price again indicated that he wanted to represent himself. The trial court again engaged in a

lengthy discussion with Price. This time, the court granted Price’s request, but appointed the

public defender as Price’s legal advisor. The trial continued and the jury heard the following

evidence.

{¶5} Lead investigator, Detective John Guzik, testified that Price became the subject of a

drug trafficking investigation in March 2013. As part of that investigation he established a team that conducted surveillance of Price’s residence at the Jamestown Village Apartments in North

Olmsted. During this surveillance, Price was seen driving various vehicles that were all rental

cars, which, according to Detective Guzik, is an indicator of drug trafficking. Detective Guzik

testified that as a result of their investigation, they obtained a search warrant to search Price’s

residence.

{¶6} On July 15, 2013, Detective Guzik, along with Special Agent Brad Schultz and

Detective Amelio Leanza, observed Price drive into the parking lot at his apartment building.

They approached Price and presented him with the search warrant to search his apartment. After

advising Price of his Miranda rights, the officers searched his vehicle and discovered a roll of

money in the center console next to a pack of cigarettes. Inside the exterior plastic of the

cigarette pack was a bag of suspected cocaine. Price was placed under arrest.

{¶7} According to Detective Guzik, Price appeared dejected and stated that his “life was

over.” Detective Guzik testified that Price was very cooperative with the officers, including

giving the officers the key to his apartment so that the officers could execute the search warrant.

During the search, Agent Schultz located in the top kitchen cabinet a box of sandwich bags, a bag

of suspected cocaine, and a scale with suspected cocaine residue on their surface. Agent Schultz

stated that based on his training and experience, the amount of cocaine discovered in the kitchen

was an amount that indicates it was for sale or distribution. Furthermore, because the cocaine

was still in a hard solid state, it was indicative that the amount was directly from a supplier.

{¶8} Field tests confirmed that the contents inside the bags and the residue on the scale

was cocaine. The parties stipulated that 3.54 grams of cocaine was recovered from Price’s

vehicle, and 36.01 grams of cocaine was recovered from the kitchen cabinet. {¶9} Also discovered at the residence were personal documents and mail belonging to

Price. The mail consisted of electric bills addressed to Price at the North Olmsted address, but

also court and personal documents addressed to Price at a Lakewood address. The officers also

observed in the closet clothing that Price was seen wearing during the five-month surveillance

period.

{¶10} The following day after Price was arrested, Detectives Guzik and Leanza

interviewed Price. The jury heard that during this interview Price admitted that the seized drugs,

money, and scale discovered in his vehicle and apartment belonged to him. Detective Guzik

testified that Price admitted to purchasing 42 grams of cocaine on July 14, 2013, the day before

his arrest. According to Detective Leanza, Price also admitted to selling cocaine. Detective

Leanza admitted that this interview was not audio or video recorded and was not memorialized in

writing.

{¶11} After Price indicated that he would assist the officers with a controlled buy, Price

was released from jail and escorted back to his apartment in North Olmsted to change his clothes.

Detective Guzik testified that they then left on Price’s motorcycle to make a purchase.

{¶12} Detective Guzik further testified that he was aware that Price was not the lease

holder of the North Olmsted apartment; however, he stated that there was nothing inside the

apartment to indicate that any person other than Price lived there, including an individual named

Carl Wiley. Additionally, he testified that during their surveillance of the apartment building, no

other male was ever seen entering or exiting the apartment.

{¶13} Following the close of the state’s case, Price exercised his right not to testify. The

jury found Price guilty of all counts and found that only the scale and money were subject to forfeiture. Price was sentenced to a total of 11 years in prison with a mandatory term of five

years of postrelease control.

{¶14} Price appeals, raising eight assignments of error.

I. Right to Counsel

{¶15} In his first assignment of error, Price contends that the trial court denied him his

Sixth Amendment right to counsel by refusing to allow Price’s retained counsel to enter an

appearance and “forcing [him] to go to trial court counsel whose services [he] had repeatedly

tried to terminate and that [he] ultimately had to represent himself.”

{¶16} The right to counsel of one’s choice is an essential element of the Sixth

Amendment right to have the assistance of counsel for one’s defense. State v. Keenan, 8th Dist.

Cuyahoga No. 89554,

. The right is not absolute, however, and courts have

“wide latitude in balancing the right to counsel of choice against the needs of fairness and against

the demands of its calendar.” United States v. Gonzalez-Lopez,

,

,

(2006). Thus, “[w]hile the right to select and be represented by one’s

preferred attorney is comprehended by the Sixth Amendment, the essential aim of the

Amendment is to guarantee an effective advocate * * * rather than to ensure that a defendant will

inexorably be represented by the lawyer whom he prefers.”

Furthermore, the Sixth

Amendment does not guarantee “rapport” or a “meaningful relationship” between client and

counsel. State v. Henness,

,

(1997), citing Morris v.

Slappy,

,

,

(1983).

{¶17} Thus, “[a] defendant has only a presumptive right to employ his own chosen

counsel.” State v. Keenan,

,

(1998). Factors to consider

in deciding whether a trial court erred in denying a defendant’s motion to substitute counsel include “the timeliness of the motion; the adequacy of the court’s inquiry into the defendant’s

complaint; and whether the conflict between the attorney and client was so great that it resulted

in a total lack of communication preventing an adequate defense.” United States v. Jennings,

(6th Cir. 1996). In addition, courts should “balance * * * the accused’s right to

counsel of his choice and the public’s interest in the prompt and efficient administration of

justice.”

{¶18} Further, when the timing of a request for new counsel is an issue, a trial court may

make a determination as to whether the appellant’s request for new counsel was made in bad

faith. State v. Graves, 9th Dist. Lorain No. 98CA007029,

(Dec.

15, 1999). A motion for new counsel made on the day of trial “intimates such motion is made in

bad faith for the purposes of delay.” State v. Haberek,

,

(8th Dist. 1988). Therefore, decisions relating to the substitution of counsel are within the sound

discretion of the trial court. Wheat v. United States,

,

,

(1988).

{¶19} After indictment, Price was represented by retained counsel who engaged in

discovery and pretrial negotiations; trial was scheduled for November 2013. However, on the

day of trial, the court granted counsel’s request to withdraw, appointed an attorney from the

public defender’s office, and continued the trial date.

{¶20} Newly appointed counsel again requested discovery, engaged in pretrial

negotiations, requested the state to disclose the identity of the confidential informant, and further

moved the trial court to compel the state to provide video recordings and other pertinent

information obtained during the five-month investigation. Additionally, counsel also requested, at the direction of Price, independent testing on the drugs recovered. Trial was scheduled for

January 2014.

{¶21} Again, on the day of trial, newly retained counsel appeared on Price’s behalf. The

attorney explained to the court that he was approached the night before to represent Price in this

case, and if allowed to represent him, he would need a continuance of the trial. After engaging

in a lengthy discussion with Price, appointed counsel, newly retained counsel, and the state, the

trial court concluded that this request was just a delay tactic by Price, and thus, denied Price’s

request for substitution of counsel.

{¶22} After a thorough review of the record, we find the trial court’s denial of

substitution of counsel was not unreasonable because the record supports that Price’s day-of-trial

request was made for the purposes of delay. Price made unsupported claims that appointed

counsel had refused to communicate with him and the motions that Price indicated that his

counsel refused to file were legally futile or were contrary to his defense.

{¶23} Accordingly, we find no abuse of discretion in the trial court’s refusal to substitute

retained counsel for his court-appointed counsel. Price’s first assignment of error is overruled.

II. Psychological Evaluation

{¶24} Immediately after the trial court denied his request for substitution of counsel,

Price moved, pro se, for a psychological evaluation; the written motion was subsequently filed

two days later. He orally stated to the court that the basis for the request was because he wanted

“to stand trial myself.” He further indicated that if the trial court was not going to allow his

retained counsel to represent him, he wanted to represent himself. The trial court denied his

request for a psychological evaluation finding that his was another attempt to delay his trial. {¶25} In his second assignment of error, Price contends that his rights were violated when

he was convicted although he was denied by the trial court to have a psychological evaluation.

{¶26} When the defendant’s competence to stand trial is raised, the trial court is required

to hold a hearing under R.C. 2945.37(B). R.C. 2945.37(G) provides:

A defendant is presumed to be competent to stand trial. If, after a hearing, the court finds by a preponderance of the evidence that, because of the defendant’s present mental condition, the defendant is incapable of understanding the nature and objective of the proceedings against the defendant or of assisting in the defendant’s defense, the court shall find the defendant incompetent to stand trial and shall enter an order authorized by section 2945.38 of the Revised Code.

{¶27} While the trial court was required to hold a hearing regarding Price’s competency

to stand trial, it had the discretion to order a mental evaluation based upon the evidence

submitted. R.C. 2945.371(A).

{¶28} In this case, Price filed a written request for a psychological evaluation “to see if

he’s competent to stand trial.” His request did not identify or specify any mental condition that

would prevent him from being capable of understanding the nature and objective of the

proceedings against him or of assisting in his own defense. Moreover, at the time that Price

orally argued his motion, he made no argument that he did not understand the nature of the

charges against him, the trial process, possible punishment, or that he was incapable of assisting

in his defense. Rather, he kept repeating that he needed more “stuff” for his case and that he did

not have “everything” for trial.

{¶29} As the trial court recognized when it denied Price’s request, Price’s competency to

stand trial was never questioned throughout the entire case, and the record supports that Price

was very competent during all the stages of the proceedings, including his recitation of the law in

addressing pretrial issues. Only after the court indicated it was denying the request because Price failed to demonstrate he did not understand the nature of the proceedings, did Price state

that he had “issues on [his] brain” that he never resolved, including the death of loved ones. The

court stated these issues could be used for mitigation if he was convicted. A thorough review of

the record supports the trial court’s decision that Price’s request for a psychological evaluation

was clearly another attempt to delay trial.

{¶30} Accordingly, we find that the trial court did not abuse its discretion in denying

Price’s pro se request for a psychological evaluation. The assignment of error is overruled.

III. Sufficiency of the Evidence

{¶31} Price raises as his third assignment of error that the trial court erred in denying his

motion for acquittal as to the charges when the State failed to present sufficient evidence to

sustain a conviction. Specifically, he contends that no evidence was presented that he actually

resided at the North Olmsted address. We disagree.

{¶32} The test for sufficiency requires a determination of whether the prosecution met its

burden of production at trial. State v. Bowden, 8th Dist. Cuyahoga No. 92266,

,

¶ 12. An appellate court’s function when reviewing the sufficiency of the evidence to support a

criminal conviction is to examine the evidence admitted at trial to determine whether such

evidence, if believed, would convince the average mind of the defendant’s guilt beyond a

reasonable doubt. The relevant inquiry is whether, after viewing the evidence in a light most

favorable to the prosecution, any rational trier of fact could have found the essential elements of

the crime proven beyond a reasonable doubt. State v. Thompkins,

,

(1997).

{¶33} In this case, Price was convicted of drug trafficking, drug possession, and

possession of criminal tools. Notwithstanding that the officers testified that Price admitted that the drugs, money, and scale discovered in his car and apartment belonged to him, the jury heard

additional evidence establishing that Price resided at the North Olmsted apartment.

{¶34} Detective Leanza, Special Agent Schultz, and Detective Guzik all testified that they

conducted surveillance of the North Olmsted address and observed Price entering and exiting the

apartment building over the course of five months. Additionally, on the day that Price was

arrested, the officers gained access to the apartment with the key found on Price’s key chain that

was in his possession. Furthermore, during the search of the apartment, the officers discovered

mail addressed to Price containing the North Olmsted address. Finally, the officers observed

clothing in the apartment that Price was seen wearing during the course of their investigation.

{¶35} Accordingly, viewing the evidence in the light most favorable to the prosecution,

sufficient evidence was presented to support that Price resided at the North Olmsted apartment.

His assignment of error is overruled.

IV. Manifest Weight of the Evidence

{¶36} In his fourth assignment of error, Price contends that his convictions are against the

manifest weight of the evidence because the evidence does not prove that he knowingly

committed the crimes.

{¶37} “‘A manifest weight challenge, on the other hand, questions whether the

prosecution met its burden of persuasion.’” State v. Ponce, 8th Dist. Cuyahoga No. 91329,

, ¶ 17, quoting State v. Thomas,

,

(1982).

The manifest-weight-of-the-evidence standard of review requires us to review the entire record,

weigh the evidence and all reasonable inferences, consider the credibility of witnesses, and

determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost its way and

created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. State v. Otten,

,

(9th Dist. 1986), paragraph

one of the syllabus. The discretionary power to grant a new trial should be exercised only in

exceptional cases where the evidence weighs heavily against the conviction. Thompkins,

,

.

{¶38} In this case, the evidence was overwhelming considering that Price admitted that

the drugs were his, he was in possession of cocaine at the time of arrest, and the investigation

revealed that he resided at the North Olmsted apartment where a large quantity of cocaine and

criminal tools were discovered.

{¶39} Although Price maintained that “Carl Wiley” was the actual lease holder of the

apartment, and that Price did not reside there but merely visited and helped a friend with the bills,

the jury was free to “believe or disbelieve any witness or accept part of what a witness says and

reject the rest.” State v. Antill,

, 67,

(1964). Moreover, the fact

that Price provided the factfinder with an alternative version of the events does not automatically

lead to the conclusion that this conviction was against the manifest weight of the evidence. See,

e.g., State v. Whitsett, 8th Dist. Cuyahoga No. 101182,

.

{¶40} Accordingly, we cannot say that the jury lost its way in finding Price guilty, and we

find that this is not the “exceptional case in which the evidence weighs heavily against the

convictions” where a new trial should be ordered. Thompkins,

,

.

{¶41} Price’s assignment of error is overruled.

V. Right to Remain Silent

{¶42} In his fifth assignment of error, Price contends that he was denied a fair trial due to

the trial court commenting on his failure to testify and giving the jury a specific instruction to that effect. Our reading of the transcript reveals that the trial court’s comments did not allow the

jury to consider Price’s right to remain silent as evidence of guilt. Rather, the court’s additional

instructions were presented to remind the jury that they could only consider the evidence

presented and not Price’s unsworn factual representations made during his closing argument.

{¶43} Throughout the entire trial Price repeatedly interjected his own testimony to rebut

the answers given during his cross-examination of the state’s witnesses. Furthermore, the record

shows after Price indicated that he was not going to testify, the court instructed Price that his

closing arguments should only address the evidence that was presented.

{¶44} After the jury received its general instructions, but before closing arguments, the

trial court instructed the jury that “[c]losing arguments are not evidence. They are designed to

assist you. It’s an opportunity for the parties to stand before you and state what they believe the

evidence proved or did not prove in this case.” (Tr. 623.)

{¶45} During his closing argument, Price repeatedly made references to situations and

facts that were not in evidence. The trial court at one point interjected during Price’s closing that

he could only comment on facts in evidence, and he could not comment on facts not in evidence.

When Price ignored this instruction, the trial court was compelled to intervene and give a more

in-depth instruction that the jury could only consider the evidence and testimony they heard

during the trial. We find that the trial court’s instruction was carefully crafted to protect Price’s

constitutional right to remain silent, while reminding the jury of the state’s burden of proof, and

to afford both parties a fair trial.

{¶46} Additionally, it must be noted that during the state’s rebuttal argument, it did not

comment on Price not testifying, but only commented that some of the statements Price made during closing argument were not evidence. The state’s rebuttal reminded the jury to only

consider the evidence and testimony that was presented by the witnesses.

{¶47} In State v. Glasure, 7th Dist. Carroll No. 724,

(May

23, 2000), the Seventh District considered a similar circumstance. Throughout the presentation

of the state’s case, the defendant continually attempted to interject his own testimony. The court

found that the record was clear that when it came time for the defendant to make a closing

argument, he intended on testifying without the attendant responsibilities of taking an oath or

subjecting himself to cross-examination. The court held that allowing the defendant to testify in

this instance would have been beyond what is allowed in closing argument. Therefore, the court

determined that the trial court did not abuse its discretion when it cut short the defendant’s

attempt to make a closing argument.

{¶48} Much like in Glasure, Price’s closing, as a whole, was a roundabout way of

testifying without being subject to cross-examination. While the trial court did instruct the jury

prior to closing arguments that closing arguments are not evidence, the trial court’s decision to

give a further instruction about closing arguments was not an abuse of discretion, where the

record shows that Price repeatedly mischaracterized the evidence and discussed facts not in

evidence.

{¶49} Accordingly, Price’s fifth assignment of error is overruled.

VI. Consecutive Sentences

{¶50} In his sixth assignment of error, Price contends that the trial court erred by ordering

him to serve a consecutive sentence without making the appropriate findings required by R.C.

2929.14 and H.B. 86. {¶51} In this case, the trial court sentenced Price to 11 years on Count 1, one-year on

Count 3, and one-year on Count 5. All sentences were ordered to run concurrent. The trial

court did not order consecutive sentences in this case.

{¶52} We take judicial notice that Price was found to be in violation of his probation in

case number CR-10-540882 and was ordered to serve three-years in prison. In that case, the

court ordered the sentence to be served “consecutive to CR-13-577236,” which is the case this

court is considering on appeal. Price did not appeal his sentence in CR-10-540882, which

includes the imposition of the consecutive sentence, therefore, we do not have jurisdiction to

consider this assignment of error. The only journal entry appealed from was that of case

CR-577236, which did not contain consecutive sentences.

{¶53} Accordingly, the assignment of error is overruled for lack of jurisdiction.

VII. Court Costs

{¶54} In his seventh assignment of error, Price challenges the trial court’s journal entry

ordering him to pay court costs because court costs were not ordered or addressed in open court

at the time of sentencing. Price contends this error renders his entire sentence void. Based on

State v. Joseph,

,

,

, the state concedes this

error, but argues that the error does not render Price’s entire sentence void, but only mandates a

limited remand for the purpose of allowing Price to request the trial court for a waiver of

payment of costs. We agree with the state. See

(when court costs are

imposed in the journal entry but not in open court at the time of sentencing, the appropriate

remedy is to remand the matter to the trial court for the limited purpose of allowing the defendant

to move the court for a waiver of the payment of court costs).

{¶55} Accordingly, Price’s assignment of error is sustained. VIII. Mandatory Fine — Constitutional Challenge

{¶56} In his eighth assignment of error, Price contends that the mandatory fine imposed

at the sentencing hearing infringes upon his rights under the Eighth and Fourteenth Amendments

to the United States Constitution, R.C. 2929.18, 2929.19(B)(5), and 2947.14.

{¶57} The crux of Price’s constitutional challenge actually appears to be that the trial

court should have considered his ability to pay the fine before imposing the fine at sentencing,

considering that the court declared him indigent on two occasions.

{¶58} Pursuant to R.C. 2929.18(A), a trial court imposing a sentence upon a felony

offender may sentence the offender to any financial sanction or combination of financial

sanctions the relevant statute authorizes.

{¶59} R.C. 2929.18(B)(1) provides that, for certain felony violations, “the sentencing

court shall impose upon the offender a mandatory fine” of a specified amount.

If an offender alleges in an affidavit filed with the court prior to sentencing that the offender is indigent and unable to pay the mandatory fine 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 mandatory fine upon the offender.”

{¶60} In this case, the mandatory fine was no less than one-half the fine amount for a

felony in the first degree, which is $20,000. R.C. 2929.18(A)(3)(a); (B)(1). Therefore, the

mandatory fine was no less than $10,000, which the court imposed.

{¶61} According to the Ohio Supreme Court, the statutes providing for mandatory fines

“clearly require imposition of a mandatory fine unless (1) the offender’s affidavit is filed prior to

sentencing, and (2) the trial court finds that the offender is an indigent person and is unable to

pay the mandatory fines.” State v. Gipson,

,

,

. The trial court need not, however, make an “affirmative finding that an offender is able to

pay a mandatory fine.”

. Instead, “the burden is upon the offender to affirmatively

demonstrate that he or she is indigent and is unable to pay the mandatory fine.”

{¶62} Before imposing a financial sanction under R.C. 2929.18, the trial court must

consider “the offender’s present and future ability to pay the amount of the sanction or fine.”

R.C. 2929.19(B)(6). Neither statute nor case law prescribes express factors a court must

consider or findings a court must make when determining the offender’s present and future

ability to pay. State v. Loving,

,

,

(10th Dist.). Rather, the record need only reflect that the court considered the offender’s present

and future ability to pay before it imposed a financial sanction on the offender.

{¶63} The record reflects that Price did not file an affidavit of indigency prior to

sentencing. Moreover, the fact that Price was found indigent for purposes of court-appointed

counsel, and the trial court expressly found him indigent at sentencing, does not preclude the trial

court from imposing the fine upon defendant. See Gipson (determining a defendant’s indigency

at time of sentencing does not preclude a trial court from imposing a fine upon the defendant);

State v. Banks, 6th Dist. Lucas No. WD-06-094,

(determining that an

offender’s indigency for purposes of appointed counsel is separate and distinct from a

determination of being indigent for purposes of paying a fine).

{¶64} A review of the record here demonstrates the $ 10,000 fine imposed was not

contrary to law or an abuse of the trial court’s discretion. The fine was not greater than R.C.

2929.18(A)(3)(a) allows for a first-degree felony. Price did not file an affidavit of indigency

prior to sentencing, and we can discern from the record that the court imposed the fine after

considering defendant’s present and future ability to pay the fine. Prior to imposing this fine, the trial court again inquired about the $5,000 retainer that was paid to retained counsel that

appeared on the first day of trial.

{¶65} Price’s eighth assignment of error is overruled.

{¶66} Affirmed in part, reversed in part. Case remanded to the trial court for the limited

purpose of allowing Price to request the trial court for a waiver of payment of court costs.

It is ordered that appellee recover from appellant costs herein taxed. The court finds

there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution. The defendant’s convictions having been affirmed,

any bail pending appeal is terminated. Case remanded to the trial court for further proceedings

consistent with this opinion.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

KATHLEEN ANN KEOUGH, JUDGE

MARY J. BOYLE, P.J., and PATRICIA ANN BLACKMON, J., CONCUR