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State v. Diaz8/31/2001
undetermined amount of restitution be vacated because 1) these orders were not orally conveyed at the sentencing hearing, and 2) the court made no finding as to appellant's ability to pay such fines.
We have disposed of the issue of restitution in the first assignment of error. With respect to the attorney fees issue, we conclude that the imposition of the attorney fee reimbursement order as part of appellant's sentence is erroneous. This is so because the court failed to consider or make a specific finding about appellant's ability to pay the fees. State v. Watkins (1994), 96 Ohio App.3d 195, 198. Accordingly, appellant's third assignment of error is well-taken. His second assignment of error is moot.
III.
Appellant, in his final assignment of error, addresses the issue of ineffective assistance of counsel. In order to demonstrate that an appellant was denied his right of effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution and Section 10, Article I of the Ohio Constitution, he must prove that counsel's performance was deficient and that he was thereby prejudiced. Strickland v. Washington (1984), 466 U.S. 668, 687; State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus.
An appellate counsel's failure to file an appellate brief is performance below an objective standard of reasonable-ness and, given our determination of appellant's first and third assignments of error, was prejudicial to him. However, our decision to reopen appellant's direct appeal, appoint new counsel, and remedy the erroneous orders, cured any prejudice in this case. Accordingly, appellant's fourth assignment of error is moot.
Upon consideration whereof, the sentencing judgment of the Fulton County Court of Common Pleas is reversed in part. This matter is remanded to said court for further consideration consistent with this decision. Costs to appellee.
JUDGMENT AFFIRMED IN PART AND REVERSED IN PART.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98.
James R. Sherck, J. JUDGE, Richard W. Knepper, J. JUDGE, Mark L. Pietrykowski, P.J. JUDGE CONCUR.
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