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FILED
WOOD COUNTY, OHIO
DOV MAY 31 PH 3:43
IN THE SIXTH DISTRICT COURT OF APPEAgASY a.
i;
NER, CLERK
WOOD COUNTY, OHIO
STATE OF OHIO * COURT OF APPEALS NOS.
2017WD0003, 2017WD0004
PLAINTIFF-APPELLEE, *
TRIAL COURT NOS.
vs. * — 2014CR0084, 2016CRO0170
TODDY RAY POUPARD, *
DEFENDANT-APPELLANT. *
BRIEF OF DEFENDANT-APPELLANT
This Cause Is On Appeal From The
Common Pleas Court of Wood County
BY: LAWRENCE A. GOLD #0078779
3852 Fairwood Drive
Sylvania, Ohio 43560
Phone/fax: (419) 843-5719
PAUL DOBSON #0064126
Wood County Prosecutor
DAVID T. HAROLD #0072338
Assistant Wood County Prosecutor
One Courthouse Square
Bowling Green, Ohio 43402
Phone: (419) 354-9250
Fax: (419) 353-2904
ON BEHALF OF PLAINTIFF-APPELLEETABLE OF CONTENTS
Page
TABLE OF AUTHORITIES. ..............ccccccceceeeescceeeeeeeeseeeeeesssuaeeeseeneaee ii-iii
ASSIGNMENTS OF ERROR........:::ccccessseeessessseeeeeseeeesnsaseessnnienseseeeess iv
ISSUES PRESENTED..........0.2.:0ccscecseeeceeeece neta eeeseaseeeeeeeeeanesegeeeneneses iv
STATEMENT OF THE CASE. ........20::c:cceceeesenseceeeesessssseaeeeeeeseesesnsense 1
STATEMENT OF THE FACTS. ......:::::ccccesessesrseeeeeesesesssssseeeeeseseesnneene 4
ARGUMENT:
FIRST ASSIGNMENT OF ERROR..... 7
THE TRIAL COURT ERRED TO THE PREJUDICE OF
APPELLANT IN DENYING HIS CRIM.R.29 MOTION.
SECOND ASSIGNMENT OF ERROR.........:.ceccceeeeeeeeeeeeeeseeennee 9
THE COURT’S VERDICT WAS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL.
THIRD ASSIGNMENT OF ERROR...........c:cc0seeeeeeeeeeeeeeeaeeaeenees 12
THE TRIAL COURT COMMITTED ERROR TO THE PREJUDICE
OF APPELLANT BY IMPOSING THE COSTS OF PROSECUTION
WITHOUT CONSIDERATION OF APPELLANT’S PRESENT OR
FUTURE ABILITY TO PAY.
FOURTH ASSIGNMENT OF ERROR. 16
APPELLANT RECEIVED INEFFECTIVE ASSISTANCE _ OF
COUNSEL IN VIOLATION OF HIS RIGHTS UNDER THE SIXTH
AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND ARTICLE I, §10 OF THE CONSTITUTION
OF THE STATE OF OHIO.
CONCLUSION... 18
CERTIFICATION .........:ccc:sseceeeeeeseeeeeeeeeeeeeeenaeseeseeaaeneceenaaeeeeeeenaess 19
APPENDIX. ...........ccccceccccesseeceeeeneseceeaaeeeeeeesaeereseeaseeescesaaeeeeeeeenee
Judgment Entry on Sentencing................ccceceeeeeeeeseeeeeeeseeseneeees Appendix ATABLE OF AUTHORITIES
CASES
State v. Thompkins, 78 Ohio St.3d 380.......... 0.0 cs eeeeeecee ence ence eeneneeneneene
State v. Jenks, (1991) 61 Ohio St.3d 259... seeeseseeneeeesesseesnees
State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126............0. eee
State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-9538.
State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202..
State v. O’Neal (2000), 87 Ohio St.3d 402.
State v. Robb (2000), 88 Ohio St.3d 59.............ce cee ececeee cece eee ccetsenenseeene
State v. Berry, 2007-Ohio-94, No. L-05-1048.............::0sseseeseeeeeeeeeeeee
State v. White, 103 Ohio St.3d 580, 2004-Ohi0-5989.............ccesceceeeeeee
State v. Dupuis, 6th Dist. Lucas No. L-12-1035, 2013-Ohio-2128............
State v. Threatt, 108 Ohio St.3d 277.
State v. Phillips, 6th Dist. Fulton No. F-05-032, 2006-Ohio-4135..
State v. Knight, 6th Dist. Sandusky No. S-05-007, 2006-Ohio-4807..
State v. Jennings, 2015-Ohio-134, L-13-1178............. cc seeeeeeceeeeseeeeeeeee
State v. Jobe, 6" Dist. No. L-07-1413, 2009-Ohi0-4066...........::cceeeeeee
State v. Holmes, 6th Dist. No. L-01-1459, 2002-Ohio-6185................005
State v. Johnson, 6th Dist. No. L-04-1221, 2006-Ohio-1406.............::0665
State v. Fisher, 12th No. CA98-09-190, 2002-Ohi0-2069.............cseeeeeeeee
State v. Maloy, 2011-Ohio-6919
State v. Brinkman, 6th Dist. No. WD-05-58, 2006-Ohio-3868.
State v. Lamonds, 6th Dist. L-03-1100, 2005-Ohio-1219.
State v. Fuller, 6th Dist. No. L-02-1387, 2004-Ohi0-2675...........::0scc00e
McMann v. Richardson, (1970), 397 U.S. 759......:cc:ccccccceesessnteeeeeeeenes
State v. Lytle, (1976), 48 Ohio St. 2d 391........... cece cee ce eeeeeeeeeeeeccetencere
Strickland v. Washington, (1984), 466 U.S. 668...
State v. Bradley, (1989), 42 Ohio St. 3d 136..
State v. Reynolds, (1998), 80 Ohio St.3d 670, 674 687 N.E.2d 1358
ii
16, 17
16, 17STATUTORY AUTHORITY/RULES
Ohio Revised Code § 2947.23...
Ohio Revised Code § 2941.51
Ohio Revised Code § 2929.18...
Ohio Revised Code § 2913.42............ccccccccssssseesstssseessssesseesseesnessnesseesane
Ohio Revised Code § 2912.01...........ccccceeecnsssssessssesessesesesseseenenessenesteesenee
Ohio Revised Code § 2921.13........:...ccccccseessesessssesseeseessesestesseesnessseeseeseee
Ohio Revised Code § 2931.21.......ccccccccccceecesesseessesssessnseseesssesneensesseenseeeee
Ohio Revised Code § 1.51.0... cece csecs ee ece ae esssserensseenssesesecsneseaseesseseeesares
Ohio Criminal Rule 29.............cccccceeeceeeee ence sesssesesseesesseeseenssssensenseneenss
iiiASSIGNMENTS OF ERROR
I
The trial court erred to the prejudice of Appellant in denying his Crim.R.29 motion.
I
The court’s verdict was against the manifest weight of the evidence presented at trial.
Ill
The trial court committed error to the prejudice of Appellant by imposing the costs of
prosecution without consideration of Appellant’s present or future ability to pay.
IV
Appellant received ineffective assistance of counsel in violation of his rights under the
Sixth and Fourteenth Amendments to the United States Constitution and Article I,
Section 10 of the Constitution of the State of Ohio.
FAFA AIAG OGG III CIO AICI ICA TRA I OR FIR TOE
ISSUES PRESENTED
I
Whether or not the trial court erred to the prejudice of Appellant in denying his
Crim.R.29 motion.
ll
Whether or not the court’s verdict was against the manifest weight of the evidence
presented at trial.
I
Whether or not the trial court committed error to the prejudice of Appellant by imposing
the costs of prosecution without consideration of Appellant’s present or future ability to
pay.
IV
Appellant received ineffective assistance of counsel in violation of his rights under the
Sixth and Fourteenth Amendments to the United States Constitution and Article I,
Section 10 of the Constitution of the State of Ohio.Statement of the Case
2014CR0084
On March 27, 2014, Appellant’s case was bound over from Perrysburg Municipal Court
to the Wood County Common Pleas Court.
On April 3, 2014, the prosecutor issued a request for a summons on the indictment. On
April 14, 2014, Appellant’s counsel filed a motion for permission to appear Pro Hac Vice, and
for a continuance, which was granted on April 16, 2014.
On May 14, 2014, a notice of hearing was set for May 20, 2014. On May 20, 2014,
Appellant was present in court with counsel and entered a plea of not guilty to two counts of
Tampering with Records, in violation of R.C. 2913.42(A)(1)(B)(4), both counts being felonies of
the third degree. Bond was set at Appellant’s own recognizance and a pretrial hearing was
scheduled for July 15, 2014. A waiver of extradition was also signed by Appellant.
On July 13, 2014, the matter was continued for a further pretrial conference on August 5,
2014. Bond was continued.
On August 6, 2014, a motion to dismiss was filed on behalf of Appellant. On August 8,
2014, the State of Ohio filed a response in opposition to Appellant’s motion to dismiss. On
August 12, 2014, a notice of hearing was set for September 9, 2014. On August 14, 2014,
Appellant’s counsel replied to the State of Ohio’s Response in Opposition to Dismiss.
On August 19, 2014, it was ordered that Appellant’s August 4, 2016 motion for a
continuance would be granted. Further, a pretrial conference was rescheduled for September 9,
2014 and speedy trial time, from August 4, 2014, to September 9, 2014, would be charged to
Appellant.
On September 15, 2014, it was ordered that the Appellant’s waiver of the Statutory TimeLimitation to the conclusion of the case was accepted. The court also denied Appellant’s motion
to dismiss, filed on August 6, 2014.
After a series of pretrial conferences and trial date continuations, on January 21, 2016
counsel filed a motion with withdraw as counsel for the Appellant. This motion was granted on
January 22, 2016, and the previous trial date of March 3, 2016 was vacated.
On February 1, 2016, a Notice of Hearing and Order was filed for a hearing set on March
22, 2016. On March 24, 2016, it was ordered that the Clerk should issue a nationwide warrant for
the arrest of the Appellant.
On April 22, 2016, the Sheriff successfully served the warrant. On April 26, 2016, a
Notice of Hearing and Order was set for a bond hearing on May 3, 2016. On May 3, 2016,
Appellant was present in court and bond was set at Appellant’s own recognizance. The next
hearing date was set for June 21, 2016.
After another series of pretrial conferences and continuations, the case was brought to
trial by the court on November 9, 2016. Appellant was found guilty of 2 counts of Tampering
with Records, in violation of R.C. 2913.42(A)(1)(B)(4), each being a felony of the third degree.
Appellant was referred to the Adult Probation Department for preparation of a presentence
investigation report and a sentencing hearing was scheduled for December 27, 2016. Bond was
continued.
On December 27, 2016, the trial court ordered Appellant to serve a term of 24 months in
the Ohio Department of Rehabilitation and Corrections (ODRC) on each count of Tampering
with Records. The court ordered both 24 month terms to be served concurrent with each other
and concurrent with the sentence imposed in case number 2016CR0170. Bond was released.
On December 30, 2016, at the request of Appellant, counsel was appointed for thepurpose of processing an appeal.
On January 26, 2017, counsel filed a Notice of Appeal along with other necessary
documents.
On March 7, 2017, the record was filed.
2016CRO170
On April 7, 2016, the prosecutor issued a request for a warrant on the indictment of
Appellant on one count of Failure to Appear as Required by Recognizance, in violation of R.C.
2937.99(A)(B), a felony of the fourth degree. The warrant was served on April 22, 2016.
On May 3, 2016, the Appellant was present in court. At this time counsel was appointed
and a not guilty pea was entered to the indicted charge. Bond was set at Appellant’s own
recognizance and a pretrial conference was scheduled for June 21, 2016.
After a series of pretrial conferences the matter was before the court for a bench trial on
November 9, 2016. At this time the state moved to amend the indictment to read “did recklessly
fail to appear.” After testimony was taken and exhibits introduced, the trial court found Appellant
guilty of one count of Failure to Appeal, in violation of R.C. 2937.99(A)(B), a felony of the
fourth degree. Appellant was referred to the Adult Probation Department for preparation of a
presentence investigation report and the matter was scheduled for a sentencing hearing on
December 27, 2016. Bond was continued.
On December 27, 2016, Appellant was sentenced to serve a term of 12 months in the
ODRC on one count of Failure to Appear as Required by Recognizance. The court ordered the 12
month term to be served concurrent with the 24 month sentence imposed in case number
20114CRO0048. Bond was released.
On December 30, 2016, at the request of Appellant, counsel was appointed for purposesof appeal only.
On January 26, 2017, counsel filed a Notice of Appeal along with other necessary
documents.
On March 7, 2017, the record was filed.
Statement of Facts
2014CRO0084
The facts are brought forward from Appellant’s trial to the court and indictment.
On January 30, 2014 Appellant was stopped by an Ohio State Highway Patrol trooper for
following too close. Transcript of Court Trial Proceeding (TP), November 9, 2016, p. 23-25.
Appellant exited the vehicle and could not produce a drivers license. TP, p.26. Appellant
consented to a pat down which produced 4 pills bottles, one of which had the name Toddy
Poupard on it, who Appellant stated was his son. TP, p.27, 28.
When questioned by the trooper in his patrol car, Appellant stated that his name was
Timothy Robert Poupard and gave a date of birth of 9-21-69. TP, p.28. Appellant was given a
sobriety test at the scene and then transport back to the Walbridge post for additional tests and
investigation. ZP, p.29. Appellant was found to be impaired and a search conducted incident to
arrest revealed a large amount of currency and prepaid credit cards in the name of Toddy
Poupard. 7P, p.30. Appellant indicated he was holding on to the cards for his brother, Toddy,
whom Appellant had previously referred to as his son. TP, p.31.
Appellant was given a Bureau of Motor Vehicles form, BMV-22, to sign that lists the
consequences of refusing a sobriety test. The form was filled in by the trooper with information
he had received from dispatch. The form was then signed by Appellant although the signature is
illegible as either Timothy or Toddy Poupard. TP, p.31-33, 39-41, 44; State Exhibit 2.Appellant referred to himself as Timothy throughout the time his was with the trooper
until additional troopers that were called in to investigate the large amount of currency learned
his true identity. TP, p.33-36.
Appellant was interviewed and illegibly signed a Ohio State Highway Patrol Form
waiving his constitutional Miranda rights, HP-70G. Appellant printed the name Tim Poupard on
the document and told the trooper he was Timothy Poupard. 7P, p.53, 61, 62; State Exhibit 5.
After the interview was conducted, the troopers investigating the case began discussing
the possible charges that could be filed and it was learned that Appellant had made a statement
that he was, in fact, Todd, not Tim, Poupard. 7P, p.68, 77.
Appellant was charged with two counts of Tampering with Records, in violation of R.C.
2913.42(A)(1)(B)(4), both counts being felonies of the third degree.
2016CRO0170
Appellant was given an own recognizance bond in case number 2014CR0084. TP, p.85,
86; State’s Exhibit 7. The trial court received a notification from Appellant’s attorney that he was
incarcerated in Michigan. The document was filed on April 21, 2015 and stated that on April 20,
2015 Appellant had received a one year sentence in the Wayne County, Michigan jail although
there was no release date indicated. TP, p.87, 88, 93; State Exhibit 9.
A Notice of Hearing, filed on February 1, 2016, was mailed to the address Appellant had
provided the Clerk scheduling a pretrial conference on March 22, 2016. The document was not
returned as undeliverable. TP, p.87-89; State Exhibit 10. Neither Appellant, or his attorney,
appeared on March 22, 2016 resulting in the court ordering a warrant to be issued by the Clerk.
TP, p.90, 91; State Exhibit 11.
The court’s criminal bailiff was unaware of whether Appellant was released from custodyor not when the March 22, 2016 hearing was scheduled or whether he actually received
notification. TP, p.94, 95, 102, 103.
Based on a failure to appear in court on his own recognizance bond on March 22, 2016,
Appellant was charged with one count of Failure to Appear as Required by Recognizance, in
violation of R.C. 2937.99(A)(B), a felony of the fourth degree.FIRST ASSIGNMENT OF ERROR,
THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN DENYING
HIS CRIM.R.29 MOTION.
A Crim.R.29 motion challenges the sufficiency of the evidence presented by the
State of Ohio at Appellant’s trial. See State v. Thompkins, 78 Ohio St.3d 380, 386. This
Court, therefore, must determine, after a review of the evidence introduced by the State in
a “light most favorable to the prosecution, whether any rational trier of fact would have
found the essential elements of the crime proven beyond reasonable doubt.” State v.
Jenks, (1991) 61 Ohio St.3d 259, 273; also see State v. Yarbrough, 95 Ohio St.3d 227,
2002-Ohio-2126.
Appellant argues that the State of Ohio did not introduce sufficient evidence that
he had tampered with a government record.
Appellant was charged with two counts of Tampering with Records, in violation
of R.C. 2913.42(A)(1)(B)(4). The statute states, in applicable part:
§ 2913.42. Tampering with records
(A) No person, knowing the person has no privilege to do so, and with
purpose to defraud or knowing that the person is facilitating a fraud, shall
do any of the following:
(1) Falsify, destroy, remove, conceal, alter, deface, or mutilate any writing,
computer software, data, or record;
(B) (1) Whoever violates this section is guilty of tampering with records.
(4) If the writing, data, computer software, or record is kept by or belongs
to a local, state, or federal governmental entity, a felony of the third
degree.
The basis of the charges involved Appellant signing two documents while in the
custody of the State Highway Patrol. The first document was the BMV-22 form which
explained to Appellant the penalties for refusing sobriety tests. TP, p. 31-33; State Exhibit2. The second document signed by Appellant was a waiver of his constitutional rights
with regard to Miranda protections, form HP-70G. 7P, p. 52,53; State Exhibit _5.
Appellant’s signature on both documents, based on testimony adduced during cross-
examination, was illegible. TP, p. 41,42, 62, 64.
Appellant maintains that R.C. 2912.01, Theft and Fraud General Definitions, does
not provide a legal definition of what a government record is in relation to R.C.2913.42.
Further, the waiver of Miranda rights does not require a written form. TP, p. 65-67.
Lastly, because Appellant’s signature was illegible, the State of Ohio did not prove
Appellant’s purpose in signing the documents, was to commit a fraud.
On this basis, the trial court erred in denying Appellant’s Crim.R.29 motion.SECOND ASSIGNMENT OF ERROR
THE COURT’S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE
EVIDENCE PRESENTED AT TRIAL.
Appellant now challenges the credibility of the evidence presented against him at
trial, arguing that the State of Ohio did not meet it’s burden of persuasion in proving
Appellant was guilty of Tampering with Records and Failure to Appear as Required by
Recognizance. See State v. Thompkins, 78 Ohio St.3d 380, 387; State v. Bowden, 8th
Dist. Cuyahoga No. 92266, 2009-Ohio-9538; Also see State v. Wilson, 113 Ohio St.3d
382, 2007-Ohio-2202 regarding the weight of evidence standard as applied to inducing
belief.
Appellant references and incorporates his First Assignment of Error in arguing
that the trial court erred in not considering the lesser included offense of Falsification,
R.C. 2921.13, or the offense Obstructing Official Business, under R.C. 2921.31, before
convicting Appellant of Tampering with Records.
R.C. 2921.13 states in part:
Falsification - in theft offense - to purchase firearm
(A) No person shall knowingly make a false statement, or knowingly
swear or affirm the truth of a false statement previously made, when any of
the following applies:
(1) The statement is made in any official proceeding.
(2) The statement is made with purpose to incriminate another.
(3) The statement is made with purpose to mislead a public official in
performing the public official's official function.
R.C. 2931.21, states:
Obstructing official business
(A) No person, without privilege to do so and with purpose to prevent,
obstruct, or delay the performance by a public official of any authorized
9act within the public official's official capacity, shall do any act that
hampers or impedes a public official in the performance of the public
official's lawful duties.
(B) Whoever violates this section is guilty of obstructing official business.
Except as otherwise provided in this division, obstructing official business
is a misdemeanor of the second degree. If a violation of this section creates
a risk of physical harm to any person, obstructing official business is a
felony of the fifth degree.
Appellant acknowledges that the trial court need only consider a lesser included
offense where the evidence presented at trial would reasonably support an acquittal on the
charged offense and a conviction on the lesser included offense. State v. O’Neal (2000),
87 Ohio St.3d 402, 412; State v. Robb (2000), 88 Ohio St.3d 59, 74. Appellant maintains,
however, because of the questionability of whether the documents signed by Appellant
were, in fact, government records, the trial court should have been guided by the directive
to apply a more specific statute to the conduct that formed the basis of the charged
offense. See R.C. 1.51, which states:
§ 1.51. Special or local provision prevails as exception to general
provision
If a general provision conflicts with a special or local provision, they shall
be construed, if possible, so that effect is given to both. If the conflict
between the provisions is irreconcilable, the special or local provision
prevails as an exception to the general provision, unless the general
provision is the later adoption and the manifest intent is that the general
provision prevail.
Appellant asserts that Tampering with Records, under R.C. 2913.42, is a general
statute and that Falsification, under R.C. 2921.13 or Obstructing official business, under
R.C. 2931.21 is the more specific statute given the facts of the immediate case.
Because the trial court did not consider the application of the more specific
statutes to the evidence presented in this case, the trial court’s verdict was against the
manifest weight of the evidence introduced at trial.
10Appellant further argues, with regard to the failure to appear on a recognizance
bond, that there was no evidence Appellant was ever served with notice to appear. Based
on the testimony at trial, the Clerk’s notice to appear on March 22, 2016 was sent to
Appellant on February 1, 2016. TP, p. 102, 103. The court had previously been provided
with a notice of incarceration from Appellant’s attorney, filed on April 21, 2015,
indicating he was serving a one year Michigan sentence that began April 20, 2015. ZP, p.
87, 93; State Exhibit 9.
Appellant argues that the trial court relied on a February 1, 2016 notation in the
docket by the criminal bailiff that Appellant’s release date was September 2015. TP, p.
112, 117, 118. This notation was hearsay and insufficient to form the basis that Appellant
received notification to appear on March 22, 2016.
Accordingly, Appellant’s conviction on two counts Tampering with Records and
one count of Failure to Appear as Required by Recognizance was against the manifest
weight of the evidence introduced at trial..
11THIRD ASSIGNMENT OF ERROR
THE TRIAL COURT COMMITTED ERROR TO THE PREJUDICE OF APPELLANT
BY IMPOSING THE COSTS OF PROSECUTION WITHOUT CONSIDERATION OF
APPELLANT’S PRESENT OR FUTURE ABILITY TO PAY.
At Appellant’s sentencing hearing, held on December 27, 2016, aside from an
aggregate prison sentence of 24 months, the trial court ordered Appellant to pay the costs
of prosecution.
As the trial court stated on the record:
The Court will impose costs and advise the defendant you have a right to
appeal....
Transcript of Sentencing Proceeding, December 27, 2016 p. 6.
With regard to court costs, Appellant’s journal entries, attached as Appendix A,
both state:
The Defendant shall pay the outstanding costs of this prosecution.
Judgment is granted for all costs due and owing Wood County and
execution is awarded. The Clerk is authorized to attach the Defendant’s
assets for payment. Payments shall be applied to said court costs before
any imposed other costs or restitution.
Appellant maintains that the trial court did not consider Appellant’s ability to pay
prior to imposing costs. State v. Berry, 2007-Ohio-94, No. L-05-1048 at paragraph 55.
Costs of Prosecution and Attorney Fees
Under R.C. 2947.23, costs are assessed against every convicted defendant in every
case. State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989; State v. Dupuis, 6th Dist.
Lucas No. L-12-1035, 2013-Ohio-2128; State v. Threatt, 108 Ohio St.3d 277 at paragraph
15.
R.C. 2947.23 Costs and jury fees - community service to pay judgment, states in
12part:
(A)(1) In all criminal cases, including violations of ordinances, the judge
or magistrate shall include in the sentence the costs of prosecution,
including any costs under section 2947.231 of the Revised Code, and
render a judgment against the defendant for such costs....
Additionally, R.C. 2941.51(D), Counsel for indigents, authorizes the payment of
attorney fees, stating:
The fees and expenses approved by the court under this section shall not
be taxed as part of the costs and shall be paid by the county. However, if
the person represented has, or reasonably may be expected to have, the
means to meet some part of the cost of the services rendered to the person,
the person shall pay the county in an amount that the person reasonably
can be expected to pay...
No hearing is required under the statute prior to the court ordering the imposition
of attorney fees, however, “there must be a finding on the record that the offender has the
ability to pay.” State v. Phillips, 6th Dist. Fulton No. F-05-032, 2006-Ohio-4135, ¥ 20;
State _v. Knight, 6th Dist. Sandusky No. S-05-007, 2006-Ohio-4807; State v. Jennings,
2015-Ohio-134, L-13-1178 at paragraph 45; State v. Jobe, 6" Dist. No. L-07-1413, 2009-
Ohio-4066 at paragraph 80; State v. Holmes, 6th Dist. No. L-01-1459, 2002-Ohio-6185;
State v. Johnson, 6th Dist. No. L-04-1221, 2006-Ohio-1406; State v. Fisher, 12th No.
CA98-09-190, 2002-Ohio-2069.
Appellant states that the trial court made no finding on the record regarding
Appellant’s ability to pay the costs of appointed counsel.
Costs of Confinement
Under R.C. 2929.18(A)(5) the trial court can require the Defendant to pay the
costs of confinement. The statute details in part:
§ 2929.18. Financial sanctions - felony
13(A) Except as otherwise provided in this division and in addition to
imposing court costs pursuant to section 2947.23 of the Revised Code, the
court imposing a sentence upon an offender for a felony may sentence the
offender to any financial sanction or combination of financial sanctions
authorized under this section....Financial sanctions that may be imposed
pursuant to this section include, but are not limited to, the following:
(5) (a) Reimbursement by the offender of any or all of the costs of
sanctions incurred by the government, including the following:
Gi) All or part of the costs of confinement under a sanction imposed
pursuant to section 2929.14, 2929.142, or 2929.16 of the Revised Code,
provided that the amount of reimbursement ordered under this division
shall not exceed the total amount of reimbursement the offender is able to
pay as determined at a hearing and shall not exceed the actual cost of the
confinement;
(b) If the offender is sentenced to a sanction of confinement pursuant to
section 2929.14 or 2929.16 of the Revised Code that is to be served in a
facility operated by a board of county commissioners, a legislative
authority of a municipal corporation, or another local governmental entity,
if, pursuant to section 307.93, 341.14, 341.19, 341.23, 753.02, 753.04,
753.16, 2301.56, or 2947.19 of the Revised Code and section 2929.37 of
the Revised Code, the board, legislative authority, or other local
governmental entity requires prisoners to reimburse the county, municipal
corporation, or other entity for its expenses incurred by reason of the
prisoner's confinement, and if the court does not impose a financial
sanction under division (A)(5)(a)(ii) of this section, confinement costs may
be assessed pursuant to section 2929.37 of the Revised Code. In addition,
the offender may be required to pay the fees specified in section 2929.38
of the Revised Code in accordance with that section.
The record is unclear whether the trial court intended to include the costs of
confinement as part of the “costs in this case. As previously argued in this Assignment
of Error, the record does not indicate that the trial court considered Appellant’s ability to
pay the costs of confinement prior to imposing it‘s order. State v. Maloy, 2011-Ohio-6919
at paragraph 13; State v. Brinkman, 6th Dist. No. WD-05-58, 2006-Ohio-3868 paragraphs
16-17; State v. Lamonds, 6th Dist. L-03-1100, 2005-Ohio-1219 paragraph 42; State v.
14Fuller, 6th Dist. No. L-02-1387, 2004-Ohio-2675.
On this basis, the trial court committed error by neglecting to inquire into
Appellant’s present or future ability to pay the costs associated with his case.
15FOURTH ASSIGNMENT OF ERROR
APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL _IN
VIOLATION OF HIS RIGHTS UNDER THE SIXTH AND FOURTEENTH
AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, §10
OF THE CONSTITUTION OF THE STATE OF OHIO.
The Sixth Amendment of the United States Constitution states: “[I]n all criminal
prosecutions, the accused shall enjoy the right ...to have the Assistance of Counsel for his
defense.” Article I, §10 of the Constitution of the State of Ohio also states that “In any
trial, in any court, the party accused shall be allowed to appear and defend in person with
counsel;...” The United States Supreme Court has held the right to counsel to mean the
right to effective assistance of counsel. McMann v. Richardson, (1970), 397 U.S. 759,
7711.
A claim of ineffective assistance of counsel, requires the reviewing Court to
determine “whether there has been a substantial violation of any of defense counsel's
essential duties to his client.” State v. Lytle, (1976), 48 Ohio St. 2d 391, 396-397. The
Court must also decide “whether the defense was prejudiced by counsel's
ineffectiveness.” Jd. See Strickland v. Washington, (1984), 466 U.S. 668 for the standard
for a claim of ineffective assistance of counsel.
Appellant must therefore present counsel’s improper acts or deficiencies and
argue how counsel‘s actions, or inactions, “have fallen below an objective standard of
reasonable representation and....prejudice arises from counsel’s performance.” State v.
Bradley, (1989), 42 Ohio St. 3d 136. State v. Reynolds, (1998), 80 Ohio St.3d 670, 674
687 N.E.2d 1358, 1365.
Appellant must also “prove that there exists a reasonable probability that, were it
16not for counsel’s errors, the result of the trial would have been different. A reasonable
probability is a probability sufficient to undermine confidence in the outcome.” Bradley
at 142; Strickland at 694.
In the immediate case, and perhaps best served by a Post Conviction Relief
Petition under R.C. 2953.21, Appellant argues that counsel was ineffective for failing to
properly investigate his case and develop a defense.
Although difficult to discern, with regard to the Failure to Appear as Required by
Recognizance, counsel’s theories of the case are that Appellant never received
notification to appear on March 22, 2016 and/or was in custody in Michigan at the time of
the hearing. 7P, p.99.
A third theory, that Appellant was hospitalized at the time of the hearing, was not
offered by the defense but drew the ire of the State regarding a possible ethical violation
based on counsel‘s out of court statement to the prosecutor. TP, p. 119. This issue
presented a difficult moment for both parties, but counsel’s admission to having lost a
medical document furnished by Appellant, that may have been significant to Appellant’s
defense, is troubling. 7P, p. 119-121. The trial court’s decision to take this under
advisement diffused the courtroom tension between the State and defense counsel and the
issue was not revisited or referenced in the trial court’s decision.
In sum, to advance any theory of the case counsel needed to investigate the
matters at hand and present some evidence of a absence of notice, incarceration or
hospitalization but failed to do so in any manner. In this regard, Appellant received
ineffective assistance of counsel.
17CONCLUSION
Appellant respectfully requests this Court to carefully review the presented
Assignments of Error and to recognize that the trial court erred in denying Appellant‘s
Crim.R.29 motion, that the trial court’s verdict was against the manifest weight of the
evidence, that the trial court erred in failing to consider Appellant‘s present or future
ability to pay the costs associated with his case and that Appellant received ineffective
assistance of counsel in violation of his constitutional rights.
Appellant prays that his appeal is well taken and that the Court order whatever
relief it may find appropriate and commensurate with the ends of justice.
Re lly submitted,
Lawrene§ A. Gali?
Attorney ppellant
18Certification
This is to certify that a copy of the foregoing BRIEF OF DEFENDANT-
APPELLANT was personally delivered to the offices of Paul Dobson and David T.
Harold, Wood County Prosecutor and Assistant Prosecutor respectively, at the Office of
the Wood County Prosecutor, Wood County Courthouse, Bowling Green, Ohio on this
31st day of May, 2017.
Lawrence A. Gold
Attorney for fant
19APPELLANT’S
APPENDIX
An CLERK
oO oan ane COURT
AIGDEC 29 PM 2 39
CINDY A.HOFNER
IN THE COURT OF COMMON PLEAS OF WOOD COUNTY, OHIO
State of Ohio, * Case No. 2016CR0170
PLAINTIFF, * JUDGE ROBERT C. POLLEX
vs. * JUDGMENT ENTRY ON
SENTENCING
Toddy Ray Poupard, . PRISON SENTENCE
IMPOSED
DEFENDANT. *
This case came before the Court on the 27" day of December, 2016 for hearing
on sentencing, the Court having previously found the Defendant, Toddy Ray Poupard,
guilty by trial to the Court of Count 1, the offense of Failure to Appear as Required by
Recognizance, a violation of Ohio Revised Code Sections 2937.99(A), 2937.99(B), a
felony of the fourth degree, and the Court having received a previously ordered
presentence investigation report.
Present were Assistant Prosecuting Attorney Thomas Matuszak on behalf of the
State of Ohio, a representative of the Wood County Adult Probation Department, and
the Defendant, Toddy Ray Poupard, with J. Scott Hicks Esq., counsel of record for the
Defendant.
Counsel for the Defendant spoke to the Court on behalf of his client. The
Defendant declined the opportunity to personally address the Court.
Upon inquiry by the Court the prosecutor offered no specific recommendation.
In determining a sentence the record, all oral statements, the victim impact
statement if one was received, the purposes and principles of sentencing set forth in
JOURNALIZED
DEC 29 206Ohio Revised Code Section 2929.11 and the factors in Ohio Revised Code Section
2929.12 were taken into consideration prior to imposing sentence. The trial court found
that a prison term was consistent with the purposes and principles under Ohio Revised
Code Section 2929.11.
IMPOSITION OF SENTENCE
For Count 1, the offense of Failure to Appear as Required by Recognizance,
a violation of Ohio Revised Code Sections 2937.99(A), 2937.99(B), a felony of the
fourth degree, the Court hereby imposes a prison sentence of twelve months in
the Ohio Department of Rehabilitation and Corrections. Said sentence shall be
served concurrently with the sentences imposed in case number 2014CR0084.
CREDITS AND COSTS
The Defendant is to be given credit for jail time as specified in Ohio Revised
Code Section 2967.191. The Court has been advised that the Defendant has
previously served 12 days in the Wood County Justice Center in this case as of
sentencing on December 27, 2016. Therefore the Defendant is hereby granted 12 days
of jail time credit in this case as of sentencing on December 27, 2016.
The Defendant shall submit to DNA testing as required by Ohio Revised Code
Section 2901.07.
The Defendant shall pay the outstanding costs of this prosecution. Judgment is
granted for all court costs due and owing Wood County and execution awarded. The
Clerk is authorized to attach the Defendant's assets for payment. Payments shall be
applied to said court costs before any imposed other costs or restitution.
POST RELEASE CONTROL
The Court advised the offender that he will be subject to post release control for
a period of three years for each count as well as the consequences for violating the
conditions of post release control imposed by the Parole Board pursuant to R.C.
2967.28, that if the offender violates a post release control sanction, the Adult Parole
Authority, or the Parole Board may impose a more restrictive sanction, may increase the
duration of the post release control or may impose a prison term, which may not exceed
nine (9) months. The maximum cumulative prison term imposed for violations during
post release control may not exceed one-half of the stated prison term. Further, if the
violation of the sanction is a felony, the offender may be prosecuted for the felony and,
JOURNALIZED
DEC 29 206in addition, the Court may impose a prison term for the violation. The offender is
ordered to serve as part of this sentence any term of post release contro! imposed by
the Parole Board and any prison term for violation of the post release control conditions.
RIGHT TO APPEAL
The Defendant was advised by the Court that he has 30 days to appeal the
sentence in this case.
Defendant is remanded to the custody of the Wood County Sheriff, in whose
custody he shall remain, to await transportation to the Ohid) Department of
Rehabilitation and Corrections.
Bond released.
cc: Prosecutor - Thomas Matuszak
Defense Counsel — J. Scott Hicks
Wood County Adult Probation Department
Wood County Sheriff
JOURNALIZED
DEC 29 206FILED
WOOD COUNTY CLES
SOMMON PLEA Scout
2016 DEC 29 py 2:39
CINDY A. HOFNER
IN THE COURT OF COMMON PLEAS OF WOOD COUNTY, OHIO
State of Ohio, * Case No. 2014CR0084
PLAINTIFF, ‘ JUDGE ROBERT C. POLLEX
vs. * JUDGMENT ENTRY ON
SENTENCING
Toddy Ray Poupard, * PRISON SENTENCE
IMPOSED
DEFENDANT. *
This case came before the Court on the 27" day of December, 2016 for hearing
on sentencing, the Court having previously found the Defendant, Toddy Ray Poupard,
guilty by trial to the Court of Count 1, the offense of Tampering with Records, a violation
of Ohio Revised Code Sections 2913.42(A)(1), 2913.42(B)(4), a felony of the third
degree, and the Court having previously found the Defendant, Toddy Ray Poupard,
guilty by trial to the Court of Count 2, the offense of Tampering with Records, a violation
of Ohio Revised Code Sections 2913.42(A)(1), 2913.42(B)(4), a felony of the third
degree, and the Court having received a previously ordered presentence investigation
report.
Present were Assistant Prosecuting Attorney Thomas Matuszak on behalf of the
State of Ohio, a representative of the Wood County Adult Probation Department, and
the Defendant, Toddy Ray Poupard, with J. Scott Hicks Esq., counsel of record for the
Defendant.
Counsel for the Defendant spoke to the Court on behalf of his client. The
Defendant declined the opportunity to personally address the Court.
Upon inquiry by the Court the prosecutor offered no specific recommendation.
In determining a sentence the record, all oral statements, the victim impact
statement if one was received, the purposes and principles of sentencing set forth in
JOURNALIZED
DEC 29 206Ohio Revised Code Section 2929.11 and the factors in Ohio Revised Code Section
2929.12 were taken into consideration prior to imposing sentence. The trial court found
that a prison term was consistent with the purposes and principles under Ohio Revised
Code Section 2929.11.
IMPOSITION OF SENTENCE
For Count 1, the offense of Tampering with Records, a violation of Ohio
Revised Code Sections 2913.42(A)(1), 2913.42(B)(4), a felony of the third degree,
the Court hereby imposes a prison sentence of twenty-four months in the Ohio
Department of Rehabilitation and Corrections. Further, for Count 2, the offense of
Tampering with Records, a violation of Ohio Revised Code Sections
2913.42(A)(1), 2913.42(B)(4), a felony of the third degree, the Court hereby
imposes a prison sentence of twenty-four months in the Ohio Department of
Rehabllitation and Corrections. Said sentences shall be served concurrently with
each other and concurrently with the sentence imposed in case number
2016CR0170.
CREDITS AND COSTS
The Defendant is to be given credit for jail time as specified in Ohio Revised
Code Section 2967.191. The Court has been advised that the Defendant has
previously served 13 days in the Wood County Justice Center in this case as of
sentencing on December 27, 2016. Therefore the Defendant is hereby granted 13 days
of jail time credit in this case as of sentencing on December 27, 2016.
The Defendant shall submit to DNA testing as required by Ohio Revised Code
Section 2901.07.
The Defendant shall pay the outstanding costs of this prosecution. Judgment is
granted for all court costs due and owing Wood County and execution awarded. The
Clerk is authorized to attach the Defendant's assets for payment. Payments shall be
applied to said court costs before any imposed other costs or restitution.
POST RELEASE CONTROL
The Court advised the offender that he will be subject to post release control for
a period of three years for each count as well as the consequences for violating the
conditions of post release control imposed by the Parole Board pursuant to R.C.
2967.28, that if the offender violates a post release control sanction, the Adult Parole
Authority, or the Parole Board may impose a more restrictive sanction, may increase the
JOURNALIZEL
DEC 29 2016duration of the post release control or may impose a prison term, which may not exceed
nine (9) months. The maximum cumulative prison term imposed for violations during
post release control may not exceed one-haif of the stated prison term. Further, if the
violation of the sanction is a felony, the offender may be prosecuted for the felony and,
in addition, the Court may impose a prison term for the violation. The offender is
ordered to serve as part of this sentence any term of post release control imposed by
the Parole Board and any prison term for violation of the post release control conditions.
RIGHT TO APPEAL
The Defendant was advised by the Court that he has 30 days to appeal the
sentence in this case.
Defendant is remanded to the custody of the Wood County Sheriff, in whose
custody he shall remain, to await transportation to the Ohio Department of
Rehabilitation and Corrections.
Bond released.
cc: Prosecutor - Thomas Matuszak
Defense Counsel — J. Scott Hicks
Wood County Adult Probation Department
Wood County Sheriff
JOURNALIZEL
DEC 29 206
Preview
FILED WOOD COUNTY, OHIO DOV MAY 31 PH 3:43 IN THE SIXTH DISTRICT COURT OF APPEAgASY a. i; NER, CLERK WOOD COUNTY, OHIO STATE OF OHIO * COURT OF APPEALS NOS. 2017WD0003, 2017WD0004 PLAINTIFF-APPELLEE, * TRIAL COURT NOS. vs. * — 2014CR0084, 2016CRO0170 TODDY RAY POUPARD, * DEFENDANT-APPELLANT. * BRIEF OF DEFENDANT-APPELLANT This Cause Is On Appeal From The Common Pleas Court of Wood County BY: LAWRENCE A. GOLD #0078779 3852 Fairwood Drive Sylvania, Ohio 43560 Phone/fax: (419) 843-5719 PAUL DOBSON #0064126 Wood County Prosecutor DAVID T. HAROLD #0072338 Assistant Wood County Prosecutor One Courthouse Square Bowling Green, Ohio 43402 Phone: (419) 354-9250 Fax: (419) 353-2904 ON BEHALF OF PLAINTIFF-APPELLEETABLE OF CONTENTS Page TABLE OF AUTHORITIES. ..............ccccccceceeeescceeeeeeeeseeeeeesssuaeeeseeneaee ii-iii ASSIGNMENTS OF ERROR........:::ccccessseeessessseeeeeseeeesnsaseessnnienseseeeess iv ISSUES PRESENTED..........0.2.:0ccscecseeeceeeece neta eeeseaseeeeeeeeeanesegeeeneneses iv STATEMENT OF THE CASE. ........20::c:cceceeesenseceeeesessssseaeeeeeeseesesnsense 1 STATEMENT OF THE FACTS. ......:::::ccccesessesrseeeeeesesesssssseeeeeseseesnneene 4 ARGUMENT: FIRST ASSIGNMENT OF ERROR..... 7 THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN DENYING HIS CRIM.R.29 MOTION. SECOND ASSIGNMENT OF ERROR.........:.ceccceeeeeeeeeeeeeeseeennee 9 THE COURT’S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL. THIRD ASSIGNMENT OF ERROR...........c:cc0seeeeeeeeeeeeeeeaeeaeenees 12 THE TRIAL COURT COMMITTED ERROR TO THE PREJUDICE OF APPELLANT BY IMPOSING THE COSTS OF PROSECUTION WITHOUT CONSIDERATION OF APPELLANT’S PRESENT OR FUTURE ABILITY TO PAY. FOURTH ASSIGNMENT OF ERROR. 16 APPELLANT RECEIVED INEFFECTIVE ASSISTANCE _ OF COUNSEL IN VIOLATION OF HIS RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, §10 OF THE CONSTITUTION OF THE STATE OF OHIO. CONCLUSION... 18 CERTIFICATION .........:ccc:sseceeeeeeseeeeeeeeeeeeeeenaeseeseeaaeneceenaaeeeeeeenaess 19 APPENDIX. ...........ccccceccccesseeceeeeneseceeaaeeeeeeesaeereseeaseeescesaaeeeeeeeenee Judgment Entry on Sentencing................ccceceeeeeeeeseeeeeeeseeseneeees Appendix ATABLE OF AUTHORITIES CASES State v. Thompkins, 78 Ohio St.3d 380.......... 0.0 cs eeeeeecee ence ence eeneneeneneene State v. Jenks, (1991) 61 Ohio St.3d 259... seeeseseeneeeesesseesnees State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126............0. eee State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-9538. State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202.. State v. O’Neal (2000), 87 Ohio St.3d 402. State v. Robb (2000), 88 Ohio St.3d 59.............ce cee ececeee cece eee ccetsenenseeene State v. Berry, 2007-Ohio-94, No. L-05-1048.............::0sseseeseeeeeeeeeeeee State v. White, 103 Ohio St.3d 580, 2004-Ohi0-5989.............ccesceceeeeeee State v. Dupuis, 6th Dist. Lucas No. L-12-1035, 2013-Ohio-2128............ State v. Threatt, 108 Ohio St.3d 277. State v. Phillips, 6th Dist. Fulton No. F-05-032, 2006-Ohio-4135.. State v. Knight, 6th Dist. Sandusky No. S-05-007, 2006-Ohio-4807.. State v. Jennings, 2015-Ohio-134, L-13-1178............. cc seeeeeeceeeeseeeeeeeee State v. Jobe, 6" Dist. No. L-07-1413, 2009-Ohi0-4066...........::cceeeeeee State v. Holmes, 6th Dist. No. L-01-1459, 2002-Ohio-6185................005 State v. Johnson, 6th Dist. No. L-04-1221, 2006-Ohio-1406.............::0665 State v. Fisher, 12th No. CA98-09-190, 2002-Ohi0-2069.............cseeeeeeeee State v. Maloy, 2011-Ohio-6919 State v. Brinkman, 6th Dist. No. WD-05-58, 2006-Ohio-3868. State v. Lamonds, 6th Dist. L-03-1100, 2005-Ohio-1219. State v. Fuller, 6th Dist. No. L-02-1387, 2004-Ohi0-2675...........::0scc00e McMann v. Richardson, (1970), 397 U.S. 759......:cc:ccccccceesessnteeeeeeeenes State v. Lytle, (1976), 48 Ohio St. 2d 391........... cece cee ce eeeeeeeeeeeeccetencere Strickland v. Washington, (1984), 466 U.S. 668... State v. Bradley, (1989), 42 Ohio St. 3d 136.. State v. Reynolds, (1998), 80 Ohio St.3d 670, 674 687 N.E.2d 1358 ii 16, 17 16, 17STATUTORY AUTHORITY/RULES Ohio Revised Code § 2947.23... Ohio Revised Code § 2941.51 Ohio Revised Code § 2929.18... Ohio Revised Code § 2913.42............ccccccccssssseesstssseessssesseesseesnessnesseesane Ohio Revised Code § 2912.01...........ccccceeecnsssssessssesessesesesseseenenessenesteesenee Ohio Revised Code § 2921.13........:...ccccccseessesessssesseeseessesestesseesnessseeseeseee Ohio Revised Code § 2931.21.......ccccccccccceecesesseessesssessnseseesssesneensesseenseeeee Ohio Revised Code § 1.51.0... cece csecs ee ece ae esssserensseenssesesecsneseaseesseseeesares Ohio Criminal Rule 29.............cccccceeeceeeee ence sesssesesseesesseeseenssssensenseneenss iiiASSIGNMENTS OF ERROR I The trial court erred to the prejudice of Appellant in denying his Crim.R.29 motion. I The court’s verdict was against the manifest weight of the evidence presented at trial. Ill The trial court committed error to the prejudice of Appellant by imposing the costs of prosecution without consideration of Appellant’s present or future ability to pay. IV Appellant received ineffective assistance of counsel in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Constitution of the State of Ohio. FAFA AIAG OGG III CIO AICI ICA TRA I OR FIR TOE ISSUES PRESENTED I Whether or not the trial court erred to the prejudice of Appellant in denying his Crim.R.29 motion. ll Whether or not the court’s verdict was against the manifest weight of the evidence presented at trial. I Whether or not the trial court committed error to the prejudice of Appellant by imposing the costs of prosecution without consideration of Appellant’s present or future ability to pay. IV Appellant received ineffective assistance of counsel in violation of his rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Constitution of the State of Ohio.Statement of the Case 2014CR0084 On March 27, 2014, Appellant’s case was bound over from Perrysburg Municipal Court to the Wood County Common Pleas Court. On April 3, 2014, the prosecutor issued a request for a summons on the indictment. On April 14, 2014, Appellant’s counsel filed a motion for permission to appear Pro Hac Vice, and for a continuance, which was granted on April 16, 2014. On May 14, 2014, a notice of hearing was set for May 20, 2014. On May 20, 2014, Appellant was present in court with counsel and entered a plea of not guilty to two counts of Tampering with Records, in violation of R.C. 2913.42(A)(1)(B)(4), both counts being felonies of the third degree. Bond was set at Appellant’s own recognizance and a pretrial hearing was scheduled for July 15, 2014. A waiver of extradition was also signed by Appellant. On July 13, 2014, the matter was continued for a further pretrial conference on August 5, 2014. Bond was continued. On August 6, 2014, a motion to dismiss was filed on behalf of Appellant. On August 8, 2014, the State of Ohio filed a response in opposition to Appellant’s motion to dismiss. On August 12, 2014, a notice of hearing was set for September 9, 2014. On August 14, 2014, Appellant’s counsel replied to the State of Ohio’s Response in Opposition to Dismiss. On August 19, 2014, it was ordered that Appellant’s August 4, 2016 motion for a continuance would be granted. Further, a pretrial conference was rescheduled for September 9, 2014 and speedy trial time, from August 4, 2014, to September 9, 2014, would be charged to Appellant. On September 15, 2014, it was ordered that the Appellant’s waiver of the Statutory TimeLimitation to the conclusion of the case was accepted. The court also denied Appellant’s motion to dismiss, filed on August 6, 2014. After a series of pretrial conferences and trial date continuations, on January 21, 2016 counsel filed a motion with withdraw as counsel for the Appellant. This motion was granted on January 22, 2016, and the previous trial date of March 3, 2016 was vacated. On February 1, 2016, a Notice of Hearing and Order was filed for a hearing set on March 22, 2016. On March 24, 2016, it was ordered that the Clerk should issue a nationwide warrant for the arrest of the Appellant. On April 22, 2016, the Sheriff successfully served the warrant. On April 26, 2016, a Notice of Hearing and Order was set for a bond hearing on May 3, 2016. On May 3, 2016, Appellant was present in court and bond was set at Appellant’s own recognizance. The next hearing date was set for June 21, 2016. After another series of pretrial conferences and continuations, the case was brought to trial by the court on November 9, 2016. Appellant was found guilty of 2 counts of Tampering with Records, in violation of R.C. 2913.42(A)(1)(B)(4), each being a felony of the third degree. Appellant was referred to the Adult Probation Department for preparation of a presentence investigation report and a sentencing hearing was scheduled for December 27, 2016. Bond was continued. On December 27, 2016, the trial court ordered Appellant to serve a term of 24 months in the Ohio Department of Rehabilitation and Corrections (ODRC) on each count of Tampering with Records. The court ordered both 24 month terms to be served concurrent with each other and concurrent with the sentence imposed in case number 2016CR0170. Bond was released. On December 30, 2016, at the request of Appellant, counsel was appointed for thepurpose of processing an appeal. On January 26, 2017, counsel filed a Notice of Appeal along with other necessary documents. On March 7, 2017, the record was filed. 2016CRO170 On April 7, 2016, the prosecutor issued a request for a warrant on the indictment of Appellant on one count of Failure to Appear as Required by Recognizance, in violation of R.C. 2937.99(A)(B), a felony of the fourth degree. The warrant was served on April 22, 2016. On May 3, 2016, the Appellant was present in court. At this time counsel was appointed and a not guilty pea was entered to the indicted charge. Bond was set at Appellant’s own recognizance and a pretrial conference was scheduled for June 21, 2016. After a series of pretrial conferences the matter was before the court for a bench trial on November 9, 2016. At this time the state moved to amend the indictment to read “did recklessly fail to appear.” After testimony was taken and exhibits introduced, the trial court found Appellant guilty of one count of Failure to Appeal, in violation of R.C. 2937.99(A)(B), a felony of the fourth degree. Appellant was referred to the Adult Probation Department for preparation of a presentence investigation report and the matter was scheduled for a sentencing hearing on December 27, 2016. Bond was continued. On December 27, 2016, Appellant was sentenced to serve a term of 12 months in the ODRC on one count of Failure to Appear as Required by Recognizance. The court ordered the 12 month term to be served concurrent with the 24 month sentence imposed in case number 20114CRO0048. Bond was released. On December 30, 2016, at the request of Appellant, counsel was appointed for purposesof appeal only. On January 26, 2017, counsel filed a Notice of Appeal along with other necessary documents. On March 7, 2017, the record was filed. Statement of Facts 2014CRO0084 The facts are brought forward from Appellant’s trial to the court and indictment. On January 30, 2014 Appellant was stopped by an Ohio State Highway Patrol trooper for following too close. Transcript of Court Trial Proceeding (TP), November 9, 2016, p. 23-25. Appellant exited the vehicle and could not produce a drivers license. TP, p.26. Appellant consented to a pat down which produced 4 pills bottles, one of which had the name Toddy Poupard on it, who Appellant stated was his son. TP, p.27, 28. When questioned by the trooper in his patrol car, Appellant stated that his name was Timothy Robert Poupard and gave a date of birth of 9-21-69. TP, p.28. Appellant was given a sobriety test at the scene and then transport back to the Walbridge post for additional tests and investigation. ZP, p.29. Appellant was found to be impaired and a search conducted incident to arrest revealed a large amount of currency and prepaid credit cards in the name of Toddy Poupard. 7P, p.30. Appellant indicated he was holding on to the cards for his brother, Toddy, whom Appellant had previously referred to as his son. TP, p.31. Appellant was given a Bureau of Motor Vehicles form, BMV-22, to sign that lists the consequences of refusing a sobriety test. The form was filled in by the trooper with information he had received from dispatch. The form was then signed by Appellant although the signature is illegible as either Timothy or Toddy Poupard. TP, p.31-33, 39-41, 44; State Exhibit 2.Appellant referred to himself as Timothy throughout the time his was with the trooper until additional troopers that were called in to investigate the large amount of currency learned his true identity. TP, p.33-36. Appellant was interviewed and illegibly signed a Ohio State Highway Patrol Form waiving his constitutional Miranda rights, HP-70G. Appellant printed the name Tim Poupard on the document and told the trooper he was Timothy Poupard. 7P, p.53, 61, 62; State Exhibit 5. After the interview was conducted, the troopers investigating the case began discussing the possible charges that could be filed and it was learned that Appellant had made a statement that he was, in fact, Todd, not Tim, Poupard. 7P, p.68, 77. Appellant was charged with two counts of Tampering with Records, in violation of R.C. 2913.42(A)(1)(B)(4), both counts being felonies of the third degree. 2016CRO0170 Appellant was given an own recognizance bond in case number 2014CR0084. TP, p.85, 86; State’s Exhibit 7. The trial court received a notification from Appellant’s attorney that he was incarcerated in Michigan. The document was filed on April 21, 2015 and stated that on April 20, 2015 Appellant had received a one year sentence in the Wayne County, Michigan jail although there was no release date indicated. TP, p.87, 88, 93; State Exhibit 9. A Notice of Hearing, filed on February 1, 2016, was mailed to the address Appellant had provided the Clerk scheduling a pretrial conference on March 22, 2016. The document was not returned as undeliverable. TP, p.87-89; State Exhibit 10. Neither Appellant, or his attorney, appeared on March 22, 2016 resulting in the court ordering a warrant to be issued by the Clerk. TP, p.90, 91; State Exhibit 11. The court’s criminal bailiff was unaware of whether Appellant was released from custodyor not when the March 22, 2016 hearing was scheduled or whether he actually received notification. TP, p.94, 95, 102, 103. Based on a failure to appear in court on his own recognizance bond on March 22, 2016, Appellant was charged with one count of Failure to Appear as Required by Recognizance, in violation of R.C. 2937.99(A)(B), a felony of the fourth degree.FIRST ASSIGNMENT OF ERROR, THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT IN DENYING HIS CRIM.R.29 MOTION. A Crim.R.29 motion challenges the sufficiency of the evidence presented by the State of Ohio at Appellant’s trial. See State v. Thompkins, 78 Ohio St.3d 380, 386. This Court, therefore, must determine, after a review of the evidence introduced by the State in a “light most favorable to the prosecution, whether any rational trier of fact would have found the essential elements of the crime proven beyond reasonable doubt.” State v. Jenks, (1991) 61 Ohio St.3d 259, 273; also see State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126. Appellant argues that the State of Ohio did not introduce sufficient evidence that he had tampered with a government record. Appellant was charged with two counts of Tampering with Records, in violation of R.C. 2913.42(A)(1)(B)(4). The statute states, in applicable part: § 2913.42. Tampering with records (A) No person, knowing the person has no privilege to do so, and with purpose to defraud or knowing that the person is facilitating a fraud, shall do any of the following: (1) Falsify, destroy, remove, conceal, alter, deface, or mutilate any writing, computer software, data, or record; (B) (1) Whoever violates this section is guilty of tampering with records. (4) If the writing, data, computer software, or record is kept by or belongs to a local, state, or federal governmental entity, a felony of the third degree. The basis of the charges involved Appellant signing two documents while in the custody of the State Highway Patrol. The first document was the BMV-22 form which explained to Appellant the penalties for refusing sobriety tests. TP, p. 31-33; State Exhibit2. The second document signed by Appellant was a waiver of his constitutional rights with regard to Miranda protections, form HP-70G. 7P, p. 52,53; State Exhibit _5. Appellant’s signature on both documents, based on testimony adduced during cross- examination, was illegible. TP, p. 41,42, 62, 64. Appellant maintains that R.C. 2912.01, Theft and Fraud General Definitions, does not provide a legal definition of what a government record is in relation to R.C.2913.42. Further, the waiver of Miranda rights does not require a written form. TP, p. 65-67. Lastly, because Appellant’s signature was illegible, the State of Ohio did not prove Appellant’s purpose in signing the documents, was to commit a fraud. On this basis, the trial court erred in denying Appellant’s Crim.R.29 motion.SECOND ASSIGNMENT OF ERROR THE COURT’S VERDICT WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE PRESENTED AT TRIAL. Appellant now challenges the credibility of the evidence presented against him at trial, arguing that the State of Ohio did not meet it’s burden of persuasion in proving Appellant was guilty of Tampering with Records and Failure to Appear as Required by Recognizance. See State v. Thompkins, 78 Ohio St.3d 380, 387; State v. Bowden, 8th Dist. Cuyahoga No. 92266, 2009-Ohio-9538; Also see State v. Wilson, 113 Ohio St.3d 382, 2007-Ohio-2202 regarding the weight of evidence standard as applied to inducing belief. Appellant references and incorporates his First Assignment of Error in arguing that the trial court erred in not considering the lesser included offense of Falsification, R.C. 2921.13, or the offense Obstructing Official Business, under R.C. 2921.31, before convicting Appellant of Tampering with Records. R.C. 2921.13 states in part: Falsification - in theft offense - to purchase firearm (A) No person shall knowingly make a false statement, or knowingly swear or affirm the truth of a false statement previously made, when any of the following applies: (1) The statement is made in any official proceeding. (2) The statement is made with purpose to incriminate another. (3) The statement is made with purpose to mislead a public official in performing the public official's official function. R.C. 2931.21, states: Obstructing official business (A) No person, without privilege to do so and with purpose to prevent, obstruct, or delay the performance by a public official of any authorized 9act within the public official's official capacity, shall do any act that hampers or impedes a public official in the performance of the public official's lawful duties. (B) Whoever violates this section is guilty of obstructing official business. Except as otherwise provided in this division, obstructing official business is a misdemeanor of the second degree. If a violation of this section creates a risk of physical harm to any person, obstructing official business is a felony of the fifth degree. Appellant acknowledges that the trial court need only consider a lesser included offense where the evidence presented at trial would reasonably support an acquittal on the charged offense and a conviction on the lesser included offense. State v. O’Neal (2000), 87 Ohio St.3d 402, 412; State v. Robb (2000), 88 Ohio St.3d 59, 74. Appellant maintains, however, because of the questionability of whether the documents signed by Appellant were, in fact, government records, the trial court should have been guided by the directive to apply a more specific statute to the conduct that formed the basis of the charged offense. See R.C. 1.51, which states: § 1.51. Special or local provision prevails as exception to general provision If a general provision conflicts with a special or local provision, they shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail. Appellant asserts that Tampering with Records, under R.C. 2913.42, is a general statute and that Falsification, under R.C. 2921.13 or Obstructing official business, under R.C. 2931.21 is the more specific statute given the facts of the immediate case. Because the trial court did not consider the application of the more specific statutes to the evidence presented in this case, the trial court’s verdict was against the manifest weight of the evidence introduced at trial. 10Appellant further argues, with regard to the failure to appear on a recognizance bond, that there was no evidence Appellant was ever served with notice to appear. Based on the testimony at trial, the Clerk’s notice to appear on March 22, 2016 was sent to Appellant on February 1, 2016. TP, p. 102, 103. The court had previously been provided with a notice of incarceration from Appellant’s attorney, filed on April 21, 2015, indicating he was serving a one year Michigan sentence that began April 20, 2015. ZP, p. 87, 93; State Exhibit 9. Appellant argues that the trial court relied on a February 1, 2016 notation in the docket by the criminal bailiff that Appellant’s release date was September 2015. TP, p. 112, 117, 118. This notation was hearsay and insufficient to form the basis that Appellant received notification to appear on March 22, 2016. Accordingly, Appellant’s conviction on two counts Tampering with Records and one count of Failure to Appear as Required by Recognizance was against the manifest weight of the evidence introduced at trial.. 11THIRD ASSIGNMENT OF ERROR THE TRIAL COURT COMMITTED ERROR TO THE PREJUDICE OF APPELLANT BY IMPOSING THE COSTS OF PROSECUTION WITHOUT CONSIDERATION OF APPELLANT’S PRESENT OR FUTURE ABILITY TO PAY. At Appellant’s sentencing hearing, held on December 27, 2016, aside from an aggregate prison sentence of 24 months, the trial court ordered Appellant to pay the costs of prosecution. As the trial court stated on the record: The Court will impose costs and advise the defendant you have a right to appeal.... Transcript of Sentencing Proceeding, December 27, 2016 p. 6. With regard to court costs, Appellant’s journal entries, attached as Appendix A, both state: The Defendant shall pay the outstanding costs of this prosecution. Judgment is granted for all costs due and owing Wood County and execution is awarded. The Clerk is authorized to attach the Defendant’s assets for payment. Payments shall be applied to said court costs before any imposed other costs or restitution. Appellant maintains that the trial court did not consider Appellant’s ability to pay prior to imposing costs. State v. Berry, 2007-Ohio-94, No. L-05-1048 at paragraph 55. Costs of Prosecution and Attorney Fees Under R.C. 2947.23, costs are assessed against every convicted defendant in every case. State v. White, 103 Ohio St.3d 580, 2004-Ohio-5989; State v. Dupuis, 6th Dist. Lucas No. L-12-1035, 2013-Ohio-2128; State v. Threatt, 108 Ohio St.3d 277 at paragraph 15. R.C. 2947.23 Costs and jury fees - community service to pay judgment, states in 12part: (A)(1) In all criminal cases, including violations of ordinances, the judge or magistrate shall include in the sentence the costs of prosecution, including any costs under section 2947.231 of the Revised Code, and render a judgment against the defendant for such costs.... Additionally, R.C. 2941.51(D), Counsel for indigents, authorizes the payment of attorney fees, stating: The fees and expenses approved by the court under this section shall not be taxed as part of the costs and shall be paid by the county. However, if the person represented has, or reasonably may be expected to have, the means to meet some part of the cost of the services rendered to the person, the person shall pay the county in an amount that the person reasonably can be expected to pay... No hearing is required under the statute prior to the court ordering the imposition of attorney fees, however, “there must be a finding on the record that the offender has the ability to pay.” State v. Phillips, 6th Dist. Fulton No. F-05-032, 2006-Ohio-4135, ¥ 20; State _v. Knight, 6th Dist. Sandusky No. S-05-007, 2006-Ohio-4807; State v. Jennings, 2015-Ohio-134, L-13-1178 at paragraph 45; State v. Jobe, 6" Dist. No. L-07-1413, 2009- Ohio-4066 at paragraph 80; State v. Holmes, 6th Dist. No. L-01-1459, 2002-Ohio-6185; State v. Johnson, 6th Dist. No. L-04-1221, 2006-Ohio-1406; State v. Fisher, 12th No. CA98-09-190, 2002-Ohio-2069. Appellant states that the trial court made no finding on the record regarding Appellant’s ability to pay the costs of appointed counsel. Costs of Confinement Under R.C. 2929.18(A)(5) the trial court can require the Defendant to pay the costs of confinement. The statute details in part: § 2929.18. Financial sanctions - felony 13(A) Except as otherwise provided in this division and in addition to imposing court costs pursuant to section 2947.23 of the Revised Code, the court imposing a sentence upon an offender for a felony may sentence the offender to any financial sanction or combination of financial sanctions authorized under this section....Financial sanctions that may be imposed pursuant to this section include, but are not limited to, the following: (5) (a) Reimbursement by the offender of any or all of the costs of sanctions incurred by the government, including the following: Gi) All or part of the costs of confinement under a sanction imposed pursuant to section 2929.14, 2929.142, or 2929.16 of the Revised Code, provided that the amount of reimbursement ordered under this division shall not exceed the total amount of reimbursement the offender is able to pay as determined at a hearing and shall not exceed the actual cost of the confinement; (b) If the offender is sentenced to a sanction of confinement pursuant to section 2929.14 or 2929.16 of the Revised Code that is to be served in a facility operated by a board of county commissioners, a legislative authority of a municipal corporation, or another local governmental entity, if, pursuant to section 307.93, 341.14, 341.19, 341.23, 753.02, 753.04, 753.16, 2301.56, or 2947.19 of the Revised Code and section 2929.37 of the Revised Code, the board, legislative authority, or other local governmental entity requires prisoners to reimburse the county, municipal corporation, or other entity for its expenses incurred by reason of the prisoner's confinement, and if the court does not impose a financial sanction under division (A)(5)(a)(ii) of this section, confinement costs may be assessed pursuant to section 2929.37 of the Revised Code. In addition, the offender may be required to pay the fees specified in section 2929.38 of the Revised Code in accordance with that section. The record is unclear whether the trial court intended to include the costs of confinement as part of the “costs in this case. As previously argued in this Assignment of Error, the record does not indicate that the trial court considered Appellant’s ability to pay the costs of confinement prior to imposing it‘s order. State v. Maloy, 2011-Ohio-6919 at paragraph 13; State v. Brinkman, 6th Dist. No. WD-05-58, 2006-Ohio-3868 paragraphs 16-17; State v. Lamonds, 6th Dist. L-03-1100, 2005-Ohio-1219 paragraph 42; State v. 14Fuller, 6th Dist. No. L-02-1387, 2004-Ohio-2675. On this basis, the trial court committed error by neglecting to inquire into Appellant’s present or future ability to pay the costs associated with his case. 15FOURTH ASSIGNMENT OF ERROR APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL _IN VIOLATION OF HIS RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, §10 OF THE CONSTITUTION OF THE STATE OF OHIO. The Sixth Amendment of the United States Constitution states: “[I]n all criminal prosecutions, the accused shall enjoy the right ...to have the Assistance of Counsel for his defense.” Article I, §10 of the Constitution of the State of Ohio also states that “In any trial, in any court, the party accused shall be allowed to appear and defend in person with counsel;...” The United States Supreme Court has held the right to counsel to mean the right to effective assistance of counsel. McMann v. Richardson, (1970), 397 U.S. 759, 7711. A claim of ineffective assistance of counsel, requires the reviewing Court to determine “whether there has been a substantial violation of any of defense counsel's essential duties to his client.” State v. Lytle, (1976), 48 Ohio St. 2d 391, 396-397. The Court must also decide “whether the defense was prejudiced by counsel's ineffectiveness.” Jd. See Strickland v. Washington, (1984), 466 U.S. 668 for the standard for a claim of ineffective assistance of counsel. Appellant must therefore present counsel’s improper acts or deficiencies and argue how counsel‘s actions, or inactions, “have fallen below an objective standard of reasonable representation and....prejudice arises from counsel’s performance.” State v. Bradley, (1989), 42 Ohio St. 3d 136. State v. Reynolds, (1998), 80 Ohio St.3d 670, 674 687 N.E.2d 1358, 1365. Appellant must also “prove that there exists a reasonable probability that, were it 16not for counsel’s errors, the result of the trial would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Bradley at 142; Strickland at 694. In the immediate case, and perhaps best served by a Post Conviction Relief Petition under R.C. 2953.21, Appellant argues that counsel was ineffective for failing to properly investigate his case and develop a defense. Although difficult to discern, with regard to the Failure to Appear as Required by Recognizance, counsel’s theories of the case are that Appellant never received notification to appear on March 22, 2016 and/or was in custody in Michigan at the time of the hearing. 7P, p.99. A third theory, that Appellant was hospitalized at the time of the hearing, was not offered by the defense but drew the ire of the State regarding a possible ethical violation based on counsel‘s out of court statement to the prosecutor. TP, p. 119. This issue presented a difficult moment for both parties, but counsel’s admission to having lost a medical document furnished by Appellant, that may have been significant to Appellant’s defense, is troubling. 7P, p. 119-121. The trial court’s decision to take this under advisement diffused the courtroom tension between the State and defense counsel and the issue was not revisited or referenced in the trial court’s decision. In sum, to advance any theory of the case counsel needed to investigate the matters at hand and present some evidence of a absence of notice, incarceration or hospitalization but failed to do so in any manner. In this regard, Appellant received ineffective assistance of counsel. 17CONCLUSION Appellant respectfully requests this Court to carefully review the presented Assignments of Error and to recognize that the trial court erred in denying Appellant‘s Crim.R.29 motion, that the trial court’s verdict was against the manifest weight of the evidence, that the trial court erred in failing to consider Appellant‘s present or future ability to pay the costs associated with his case and that Appellant received ineffective assistance of counsel in violation of his constitutional rights. Appellant prays that his appeal is well taken and that the Court order whatever relief it may find appropriate and commensurate with the ends of justice. Re lly submitted, Lawrene§ A. Gali? Attorney ppellant 18Certification This is to certify that a copy of the foregoing BRIEF OF DEFENDANT- APPELLANT was personally delivered to the offices of Paul Dobson and David T. Harold, Wood County Prosecutor and Assistant Prosecutor respectively, at the Office of the Wood County Prosecutor, Wood County Courthouse, Bowling Green, Ohio on this 31st day of May, 2017. Lawrence A. Gold Attorney for fant 19APPELLANT’S APPENDIX An CLERK oO oan ane COURT AIGDEC 29 PM 2 39 CINDY A.HOFNER IN THE COURT OF COMMON PLEAS OF WOOD COUNTY, OHIO State of Ohio, * Case No. 2016CR0170 PLAINTIFF, * JUDGE ROBERT C. POLLEX vs. * JUDGMENT ENTRY ON SENTENCING Toddy Ray Poupard, . PRISON SENTENCE IMPOSED DEFENDANT. * This case came before the Court on the 27" day of December, 2016 for hearing on sentencing, the Court having previously found the Defendant, Toddy Ray Poupard, guilty by trial to the Court of Count 1, the offense of Failure to Appear as Required by Recognizance, a violation of Ohio Revised Code Sections 2937.99(A), 2937.99(B), a felony of the fourth degree, and the Court having received a previously ordered presentence investigation report. Present were Assistant Prosecuting Attorney Thomas Matuszak on behalf of the State of Ohio, a representative of the Wood County Adult Probation Department, and the Defendant, Toddy Ray Poupard, with J. Scott Hicks Esq., counsel of record for the Defendant. Counsel for the Defendant spoke to the Court on behalf of his client. The Defendant declined the opportunity to personally address the Court. Upon inquiry by the Court the prosecutor offered no specific recommendation. In determining a sentence the record, all oral statements, the victim impact statement if one was received, the purposes and principles of sentencing set forth in JOURNALIZED DEC 29 206Ohio Revised Code Section 2929.11 and the factors in Ohio Revised Code Section 2929.12 were taken into consideration prior to imposing sentence. The trial court found that a prison term was consistent with the purposes and principles under Ohio Revised Code Section 2929.11. IMPOSITION OF SENTENCE For Count 1, the offense of Failure to Appear as Required by Recognizance, a violation of Ohio Revised Code Sections 2937.99(A), 2937.99(B), a felony of the fourth degree, the Court hereby imposes a prison sentence of twelve months in the Ohio Department of Rehabilitation and Corrections. Said sentence shall be served concurrently with the sentences imposed in case number 2014CR0084. CREDITS AND COSTS The Defendant is to be given credit for jail time as specified in Ohio Revised Code Section 2967.191. The Court has been advised that the Defendant has previously served 12 days in the Wood County Justice Center in this case as of sentencing on December 27, 2016. Therefore the Defendant is hereby granted 12 days of jail time credit in this case as of sentencing on December 27, 2016. The Defendant shall submit to DNA testing as required by Ohio Revised Code Section 2901.07. The Defendant shall pay the outstanding costs of this prosecution. Judgment is granted for all court costs due and owing Wood County and execution awarded. The Clerk is authorized to attach the Defendant's assets for payment. Payments shall be applied to said court costs before any imposed other costs or restitution. POST RELEASE CONTROL The Court advised the offender that he will be subject to post release control for a period of three years for each count as well as the consequences for violating the conditions of post release control imposed by the Parole Board pursuant to R.C. 2967.28, that if the offender violates a post release control sanction, the Adult Parole Authority, or the Parole Board may impose a more restrictive sanction, may increase the duration of the post release control or may impose a prison term, which may not exceed nine (9) months. The maximum cumulative prison term imposed for violations during post release control may not exceed one-half of the stated prison term. Further, if the violation of the sanction is a felony, the offender may be prosecuted for the felony and, JOURNALIZED DEC 29 206in addition, the Court may impose a prison term for the violation. The offender is ordered to serve as part of this sentence any term of post release contro! imposed by the Parole Board and any prison term for violation of the post release control conditions. RIGHT TO APPEAL The Defendant was advised by the Court that he has 30 days to appeal the sentence in this case. Defendant is remanded to the custody of the Wood County Sheriff, in whose custody he shall remain, to await transportation to the Ohid) Department of Rehabilitation and Corrections. Bond released. cc: Prosecutor - Thomas Matuszak Defense Counsel — J. Scott Hicks Wood County Adult Probation Department Wood County Sheriff JOURNALIZED DEC 29 206FILED WOOD COUNTY CLES SOMMON PLEA Scout 2016 DEC 29 py 2:39 CINDY A. HOFNER IN THE COURT OF COMMON PLEAS OF WOOD COUNTY, OHIO State of Ohio, * Case No. 2014CR0084 PLAINTIFF, ‘ JUDGE ROBERT C. POLLEX vs. * JUDGMENT ENTRY ON SENTENCING Toddy Ray Poupard, * PRISON SENTENCE IMPOSED DEFENDANT. * This case came before the Court on the 27" day of December, 2016 for hearing on sentencing, the Court having previously found the Defendant, Toddy Ray Poupard, guilty by trial to the Court of Count 1, the offense of Tampering with Records, a violation of Ohio Revised Code Sections 2913.42(A)(1), 2913.42(B)(4), a felony of the third degree, and the Court having previously found the Defendant, Toddy Ray Poupard, guilty by trial to the Court of Count 2, the offense of Tampering with Records, a violation of Ohio Revised Code Sections 2913.42(A)(1), 2913.42(B)(4), a felony of the third degree, and the Court having received a previously ordered presentence investigation report. Present were Assistant Prosecuting Attorney Thomas Matuszak on behalf of the State of Ohio, a representative of the Wood County Adult Probation Department, and the Defendant, Toddy Ray Poupard, with J. Scott Hicks Esq., counsel of record for the Defendant. Counsel for the Defendant spoke to the Court on behalf of his client. The Defendant declined the opportunity to personally address the Court. Upon inquiry by the Court the prosecutor offered no specific recommendation. In determining a sentence the record, all oral statements, the victim impact statement if one was received, the purposes and principles of sentencing set forth in JOURNALIZED DEC 29 206Ohio Revised Code Section 2929.11 and the factors in Ohio Revised Code Section 2929.12 were taken into consideration prior to imposing sentence. The trial court found that a prison term was consistent with the purposes and principles under Ohio Revised Code Section 2929.11. IMPOSITION OF SENTENCE For Count 1, the offense of Tampering with Records, a violation of Ohio Revised Code Sections 2913.42(A)(1), 2913.42(B)(4), a felony of the third degree, the Court hereby imposes a prison sentence of twenty-four months in the Ohio Department of Rehabilitation and Corrections. Further, for Count 2, the offense of Tampering with Records, a violation of Ohio Revised Code Sections 2913.42(A)(1), 2913.42(B)(4), a felony of the third degree, the Court hereby imposes a prison sentence of twenty-four months in the Ohio Department of Rehabllitation and Corrections. Said sentences shall be served concurrently with each other and concurrently with the sentence imposed in case number 2016CR0170. CREDITS AND COSTS The Defendant is to be given credit for jail time as specified in Ohio Revised Code Section 2967.191. The Court has been advised that the Defendant has previously served 13 days in the Wood County Justice Center in this case as of sentencing on December 27, 2016. Therefore the Defendant is hereby granted 13 days of jail time credit in this case as of sentencing on December 27, 2016. The Defendant shall submit to DNA testing as required by Ohio Revised Code Section 2901.07. The Defendant shall pay the outstanding costs of this prosecution. Judgment is granted for all court costs due and owing Wood County and execution awarded. The Clerk is authorized to attach the Defendant's assets for payment. Payments shall be applied to said court costs before any imposed other costs or restitution. POST RELEASE CONTROL The Court advised the offender that he will be subject to post release control for a period of three years for each count as well as the consequences for violating the conditions of post release control imposed by the Parole Board pursuant to R.C. 2967.28, that if the offender violates a post release control sanction, the Adult Parole Authority, or the Parole Board may impose a more restrictive sanction, may increase the JOURNALIZEL DEC 29 2016duration of the post release control or may impose a prison term, which may not exceed nine (9) months. The maximum cumulative prison term imposed for violations during post release control may not exceed one-haif of the stated prison term. Further, if the violation of the sanction is a felony, the offender may be prosecuted for the felony and, in addition, the Court may impose a prison term for the violation. The offender is ordered to serve as part of this sentence any term of post release control imposed by the Parole Board and any prison term for violation of the post release control conditions. RIGHT TO APPEAL The Defendant was advised by the Court that he has 30 days to appeal the sentence in this case. Defendant is remanded to the custody of the Wood County Sheriff, in whose custody he shall remain, to await transportation to the Ohio Department of Rehabilitation and Corrections. Bond released. cc: Prosecutor - Thomas Matuszak Defense Counsel — J. Scott Hicks Wood County Adult Probation Department Wood County Sheriff JOURNALIZEL DEC 29 206