COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71851 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION MICHAEL STEARNS : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 9, 1997 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-340570. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor 8th Floor, Justice Center 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Cornelius J. O'Sullivan, Esq. 323 Lakeside Avenue, West Lakeside Place, Suite 410 Cleveland, OH 44113 2 SWEENEY, JAMES D., C.J.: Defendant-appellant Michael Stearns, a.k.a. Melvin West (date of birth February 9, 1970), appeals from his jury trial conviction of one count of Aggravated Trafficking in Cocaine, in an amount less than minimum bulk amount, in violation of R.C. 2925.031 with a prior offense specification (concerning a 1991 conviction for drug trafficking in violation of R.C. 2925.03) and a school premises specification. For the reasons adduced below, we affirm. A review of the record on appeal indicates that the State offered the testimony of one witness during its case-in-chief, namely, Cleveland Police Vice Department Detective Jeffrey Hustak. (R. 158-212.) This witness stated that the offense at issue occurred on April 6, 1996, at approximately 12:30 a.m. in the vicinity of Detroit Avenue between West 110th and West 117th Streets. At that time, the witness was driving an unmarked car accompanied by his partner, Detective Guido, while surveilling the area for narcotics activity. While driving on Detroit Road, the witness stopped the car in response to being waved down by Mr. Anthony Cockrell at West 111th Street2. Detective Guido exited the car at West 116th Street and the witness drove around the block once, stopping the car in the vicinity of West 111th Street. The witness then observed the defendant and Mr. Cockrell on the 1It was stipulated by the parties prior to the State beginning its case-in-chief that the offense occurred within 1000 feet of a school. 2At the time of being waved down, the defendant was standing next to Mr. Cockrell. (R. 188.) 3 opposite side of the street. The defendant, according to the witness, handed something to Mr. Cockrell. Mr. Cockrell then ran across the street to where the witness was parked. Mr. Cockrell approached the officer's car and said, Open the door. Let me in. Once inside the car, Mr. Cockrell sold the witness a rock of crack cocaine in exchange for a twenty dollar bill ($20) in marked currency. Mr. Cockrell then exited the car and walked back to the defendant, where he observed Mr. Cockrell hand the money to the defendant. The witness then drove around the block a second time before pulling up to the defendant and proceeded to effect an arrest. As the witness pointed his service weapon at the defendant, the witness observed the defendant drop the twenty dollars to the ground. This currency was recovered and was found to be the marked currency previously provided by the witness to Mr. Cockrell. Subsequent scientific analysis indicated that the substance purchased by the officer tested positive for cocaine in the amount of .15 grams. See State Exhibit 2A (police lab report). The defense put on no evidence during its case-in-chief. Subsequent to instructions to the jury, a guilty verdict was returned3. Ultimately, the defendant was sentenced to a term of 5 to 15 years imprisonment with credit for time served, a statutorily mandated fine of $7,500, plus court costs. This appeal presents the following assignment of error: 3When asked by the trial court following the charge to the jury, neither of the parties had any objections, deletions or additions to the instructions given by the court. (R. 257.) 4 APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL Appellant argues two propositions under this lone assignment. First, that defense counsel was allegedly ineffective when he failed to offer a jury instruction concerning defendant's prior conviction, to wit, the jury was not told that they could not consider the prior conviction as evidence of guilt or to prove the bad character of the defendant. See appellant's brief at 4. Second, that defense counsel was allegedly ineffective when he failed to submit an affidavit of indigency prior to sentencing, thereby allowing the trial court to impose the statutorily mandated fine of $7,500. See appellant's brief at 5-6. The standard of review relative to an appeal premised on alleged ineffective assistance of trial counsel was recently stated in State v. Brooks (1996), 75 Ohio St.3d 148, 157, 661 N.E.2d 1030: Reversal of a conviction on the basis of ineffective assistance of counsel requires that the defendant show that counsel's performance was deficient and that the deficient performance prejudiced the defense, that is, deprived the defendant of a fair trial. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373. As to the first proposition raised by the appellant, it is noted that when given the opportunity to do so, defense counsel failed to present any objections to the instructions given by the trial court thereby waiving, for appellate purposes, any error in the instructions. See Civ.R. 30(A). Despite this notation, appellant contends, without support or authority, that the court 5 should have given the instruction now sought, and that he was prejudiced by the court not having instructed the jury as he now desires. In short, there is no affirmative demonstration that but for the failure to give the instruction, the appellant would not have been convicted based upon the evidence in the record. See State v. Mitchell (September 7, 1995), Cuyahoga App. No. 56575, unreported, at 12-14. The allegation of prejudice is pure speculation. Accordingly, the first proposition is without merit. As to the second proposition, R.C. 2925.11(E)(5) precludes the imposition of mandatory fines to defendants who (1) file a separate affidavit of indigency prior to sentencing, see State v. Pendleton (1995), 104 Ohio App.3d 785, 788, and State v. Reitz (1991), 74 Ohio App.3d 33, and (2) are then found by the trial court to be indigent. It is true that the appellant was represented at trial by the Public Defender's Office and, at the close of the sentencing hearing, was declared indigent by the trial court for purposes of pursuing his appeal. (R. 286.) However, a finding of indigency for purposes of retaining counsel is a separate and distinct process from finding a defendant indigent for purposes of paying an imposed mandatory fine. State v. Williams (Cuyahoga, 1995), 105 Ohio App.3d 471, 482-483; State v. Lefever (1992), 91 Ohio App.3d 301, 308. The distinction was elucidated in State v. Powell (1992), 78 Ohio App.3d 784, 789-790: The basis for requiring a determination that the defendant is unable to pay a mandatory fine when the trial court previously found the defendant to be indigent for 6 purposes of receiving appointed counsel is simple. Many criminal defendants, even those who have steady income, are not able to raise sufficient funds to pay the retainer fee required by private counsel before counsel will make an appearance. This difference is even more evident in cases where the defendant has to utilize his financial resources to raise sufficient bond money in order to be released from jail. In contrast, the payment of a mandatory fine over a period of time is not equivalent to the immediate need for legal representation at the initiation of criminal proceedings. Also see State v. Knox (October 10, 1996), Cuyahoga App. No. 69450, unreported, at 4-6. In the case sub judice, defendant did not file a separate affidavit of indigency prior to the time of sentencing. This failure, which alone is sufficient reason to impose the fine, does not rise to the level of ineffective assistance of counsel unless the record shows a reasonable probability that the trial court would have found the defendant indigent and unable to pay the fine had the affidavit been filed. State v. Williams, supra at 482; State v. Huffman (January 26, 1995), Cuyahoga App. No. 63938, unreported, at 11. The record demonstrates that the trial court spoke with the defendant at the close of the sentencing hearing concerning the defendant's financial resources. The defendant divulged the following: (1) that he lives with his wife and children and has been steadily employed for the past six months through a temporary agency (R. 277); (2) he obtained a G.E.D. high school certificate while previously incarcerated on another conviction (R. 279); (3) despite his employment and marital status, his wife receives $1,000 7 each month in SSI benefits from the Social Security Administration for two of the couples' children who allegedly have a blood disease (R. 279); (4) despite his employment and marital status, his wife participates in the Department of Agriculture's WIC program, receiving food stamps (R. 280); (5) despite his employment and marital status, his wife receives a check from County Welfare for a third child belonging to the couple (R. 281). Based on the above stream of financial resources to the defendant's family, the record is insufficient to demonstrate a reasonable probability that the defendant would have been found indigent for purposes of paying the mandatory fine had the affidavit of indigency been timely filed. See State v. Huffman, supra (unemployment, five-year sentence of actual incarceration, seizure of car, and absence of any assets insufficient to demonstrate that defendant would have been found indigent and unable to pay a mandatory fine). Accordingly, ineffective assistance of counsel has not been demonstrated. Assignment overruled. Judgment affirmed. 8 It is ordered that appellee recover of appellant its 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 to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. NAHRA, J. and O'DONNELL, J., CONCUR. ______________________________ JAMES D. SWEENEY CHIEF JUSTICE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .