State v. Lee

[Cite as State v. Lee, 2026-Ohio-4444.] IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY STATE OF OHIO, CASE NO. 2026-P-0041 Plaintiff-Appellee, Criminal Appeal from the - vs - Court of Common Pleas AL SALUM LEE, Trial Court No. 2025 CR 00082 Defendant-Appellant. OPINION AND JUDGMENT ENTRY Decided: November 9, 2026 Judgment: Affirmed Connie J. Lewandowski, Portage County Prosecutor, and Yelizaveta Y. Mikhaylov, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff- Appellee). Wesley C. Buchanan, 50 South Main Street, Suite 625, Akron, OH 44308 (For Defendant-Appellant). ROBERT J. PATTON, J. {¶1} Defendant-appellant, Al Salum Lee (“Lee”), appeals the judgment of the Portage County Court of Common Pleas sentencing him to three years of community control sanctions and a $5,000 fine following his guilty plea to one count of possession of marijuana, a third-degree felony, in violation of R.C. 2925.11(C).1 {¶2} On appeal, Lee argues that the trial court erred in accepting his guilty plea under Crim.R. 11 in two ways as (1) the trial court failed to inform Lee that if he chose to 1. After filing this appeal, Lee stipulated to having violated the terms of his community control. Accordingly, the trial court revoked Lee’s community control and sentenced him to 12 months in prison. have a jury trial, the verdict would have to be unanimous, and (2) the trial court failed to inform him that he could have chosen to have a bench trial. Lee further raises an ineffective assistance of counsel claim contending that his counsel’s failure to file an affidavit of indigency prior to sentencing prejudiced him as the trial court proceeded to impose the mandatory $5,000 fine. {¶3} Upon review, we conclude that the trial court strictly complied with the constitutional advisements under Crim.R. 11 and substantially complied with the non- constitutional advisements. Therefore, there was no error in accepting Lee’s guilty plea. With respect to Lee’s ineffective assistance of counsel claim, Lee cannot demonstrate prejudice. Considering the statements made at the sentencing hearing and the information contained in the presentence investigation (“PSI”), there is no reasonable probability that the trial court would have found Lee indigent had counsel filed an affidavit of indigency. {¶4} Accordingly, the judgment of the Portage County Court of Common Pleas is affirmed. Substantive and Procedural Facts {¶5} A Portage County Grand Jury indicted Lee on two counts: one count of trafficking in marijuana, a third-degree felony, in violation of R.C. 2925.03(C) (“Count 1”), and one count of possession of marijuana, a third-degree felony, in violation of R.C. 2925.11(C) (“Count 2”). Lee pleaded not guilty to the charges. {¶6} Following discovery and pre-trial hearings, Lee accepted a plea offer from the State where Lee would enter a written plea of guilty to Count 2 in exchange for the PAGE 2 OF 9 Case No. 2026-P-0041 State’s dismissal of Count 1. After conducting a plea colloquy pursuant to Crim.R. 11, the trial court accepted Lee’s written plea of guilty and ordered a PSI. {¶7} At the sentencing hearing, the trial court noted that there is a statutory presumption that a prison term would be imposed. However, after considering the information contained in the PSI and the arguments of counsel, the trial court found the presumption had been overcome and opted to sentence Lee to community control sanctions for a three-year period. The trial court also imposed a mandatory fine of $5,000. The Appeal {¶8} Lee timely appeals and raises two assignments error for review: [1.] [Lee’s] plea was not knowingly, intelligently, or voluntarily made. [2.] [Lee] received ineffective assistance of counsel when entering his plea. Crim.R. 11 Colloquy {¶9} In his first assignment of error, Lee argues that the trial court failed to comply with Crim.R. 11(C) in accepting his guilty plea. Lee avers that his “constitutional rights” were not advised. Specifically, Lee complains the trial court failed to advise the fact that, had he chosen to have a jury trial, the verdict would have to be unanimous. Second, Lee asserts that the trial court did not inform him that he could have opted for a bench trial.2 As neither of these advisements are required under Crim.R. 11, we disagree. {¶10} “‘When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and 2. A defendant’s right to a bench trial is not a constitutional right and is instead conferred by statute. R.C. 2945.05. PAGE 3 OF 9 Case No. 2026-P-0041 the Ohio Constitution.’” State v. Veney, 2008-Ohio-5200, ¶ 7, quoting State v. Engle, 1996-Ohio-179, ¶ 7. “Crim.R. 11 was adopted in 1973, giving detailed instruction to trial courts on the procedure to follow when accepting pleas.” Veney at ¶ 7. Crim.R. 11 “‘ensures an adequate record on review by requiring the trial court to personally inform the defendant of his rights and the consequences of his plea and determine if the plea is understandingly and voluntarily made.’” State v. Dangler, 2020-Ohio-2765, ¶ 11, quoting State v. Stone, 43 Ohio St.2d 163, 168 (1975). “This court reviews de novo whether the trial court accepted a plea in compliance with Crim.R. 11.” State v. Willard, 2021-Ohio- 2552, ¶ 51 (11th Dist.), citing State v. Dundics, 2016-Ohio-1368, ¶ 10 (11th Dist.). {¶11} Crim.R. 11(C)(2) provides: In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally either in-person or by remote contemporaneous video in conformity with Crim.R. 43(A) and doing all of the following: (a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing. (b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence. (c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant’s favor, and to require the state to prove the defendant’s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself. PAGE 4 OF 9 Case No. 2026-P-0041  {¶12} “The mere fact a person is pleading guilty does not require the trial court to list every conceivable constitutional right he may be waiving.” State v. Cruz-Ramos, 2019- Ohio-779, ¶ 15 (7th Dist.). A trial court “‘is not obligated to inform the defendant of anything beyond what is required by Crim.R. 11 before accepting a guilty plea . . . .’” State v. McMahon, 2015-Ohio-2878, ¶ 17 (2d Dist.), quoting State v. Mavroudis, 2003-Ohio- 3289, ¶ 25 (7th Dist.). Accordingly, when accepting a plea, there is no requirement for a trial court to advise the defendant of the unanimity requirement for jury verdicts. State v. Ketterer, 2006-Ohio-5283, ¶ 68; see also State v. Fitzpatrick, 2004-Ohio-3167, ¶ 54. {¶13} Moreover, this court has repeatedly stated that, as the right to a bench trial is not enumerated in Crim.R. 11, there is no such requirement for a trial court to advise a defendant of this option. State v. Mallard, 2024-Ohio-297, ¶ 64-65 (11th Dist.), citing State v. Mallory, 2021-Ohio-1542, ¶ 32 (11th Dist.); State v. Kittelson, 2016-Ohio-8430, ¶ 30 (11th Dist.); accord State v. Lewis, 2019-Ohio-1994, ¶ 13 (8th Dist.) (“For over 30 years, this court has also consistently rejected the claim that the trial court is required to inform defendants of the option of a bench trial in order for a guilty plea to be valid”). {¶14} Ordinarily, when a defendant challenges his plea to a felony, a reviewing court engages in a three-prong inquiry: “(1) has the trial court complied with the relevant provision of [Crim.R. 11(C)(2)]? (2) if the court has not complied fully with the rule, is the purported failure of a type that excuses a defendant from the burden of demonstrating prejudice? and (3) if a showing of prejudice is required, has the defendant met that burden?” Dangler, 2020-Ohio-2765, at ¶ 17. In this case, the trial court complied with Crim.R. 11. Neither the unanimity requirement nor the statutory right to a bench trial were required advisements. PAGE 5 OF 9 Case No. 2026-P-0041  {¶15} Lee’s first assignment of error is without merit. Ineffective Assistance of Counsel {¶16} In his second assignment of error, Lee alleges he was denied effective assistance of counsel as his trial counsel failed to file an affidavit of indigency prior to the sentencing hearing. According to Lee, since he qualified for appointed counsel, the trial court had already acknowledged Lee’s indigency and would have found him unable to pay the mandatory fine. Therefore, Lee maintains that had his counsel filed an affidavit of indigency, the trial court would have waived the $5,000 fine. We disagree. {¶17} “To obtain a reversal of a conviction on the basis of ineffective assistance of counsel, the defendant must prove (1) that counsel’s performance fell below an objective standard of reasonableness, and (2) that counsel’s deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding.” State v. Madrigal, 2000-Ohio-448, ¶ 49, citing Strickland v. Washington, 466 U.S. 668, 687-688 (1984). “The failure to file an affidavit attesting to a defendant’s indigency establishes ineffective assistance of counsel when the record shows a reasonable probability that the trial court would have found the defendant indigent.” State v. Murray, 2023-Ohio-3762, ¶ 17 (11th Dist.), citing State v. McDowell, 2003-Ohio-5352, ¶ 75 (11th Dist.). {¶18} “We review the imposition of costs and financial sanctions under R.C. 2953.08(A)(4) and (G)(2)(b).” Id. at ¶ 18, citing State v. Fulton, 2019-Ohio-2509, ¶ 39 (11th Dist.). “An appellate court may not modify a financial sanction imposed unless it finds by clear and convincing evidence that the sanction is not supported by the record or is contrary to law.” Id. PAGE 6 OF 9 Case No. 2026-P-0041  {¶19} “For a first, second, or third degree felony violation of any provision of Chapter 2925 . . . of the Revised Code, the sentencing court shall impose upon the offender a mandatory fine of at least one-half of, but not more than, the maximum statutory fine amount authorized for the level of the offense . . . .” R.C. 2929.18(B)(1). As Lee was convicted of a third-degree felony violation, the trial court was required to impose a fine between $5,000 and $10,000. R.C. 2929.18(A)(3)(c) and (B)(1). The trial court’s imposition of a $5,000 fine therefore represents the statutory minimum. Accordingly, Lee’s sentence is not contrary to law. {¶20} The fact that Lee qualified for appointed trial and appellate counsel does not further his argument. Future ability to pay and current indigency are distinct inquiries. “[T]he ability to pay a fine over a period of time is not equivalent to the ability to pay legal counsel a retainer fee at the onset of criminal proceedings.” State v. Davenport, 2017- Ohio-688, ¶ 35 (2d Dist.), quoting State v. Lewis, 2012-Ohio-4858, ¶ 16 (2d Dist.), quoting State v. Kelly, 145 Ohio App.3d 277, 284 (12th Dist. 2001). When a trial court considers a defendant’s indigency, it must consider both the offender’s present and future ability to pay the fine. R.C. 2929.19(B)(5). {¶21} “‘[A] trial court has wide latitude to determine whether an offender is, in fact, indigent, including how likely the possibility of the offender obtaining employment in future. Therefore, the trial court may have found [the appellant] indigent at the present and, therefore, unable to obtain counsel in order to file a timely appeal and yet found him not indigent regarding his ability to pay a mandatory fine in the future.’” State v. Watson, 2026-Ohio-3682, ¶ 32 (11th Dist.), quoting State v. Grissom, 2002-Ohio-5154, ¶ 35 (11th Dist.), citing State v. Gipson, 1998-Ohio-659, ¶ 21. PAGE 7 OF 9 Case No. 2026-P-0041  {¶22} Here, aside from asserting that the trial court found him indigent for the purpose of appointing counsel, Lee fails to cite any considerations on the record tending to show future indigency. Our review of the record reveals that Lee maintains a significant future earning capacity. Lee’s counsel advised the court at sentencing that Lee is employed as a business owner, is a published author of children’s literature, is a song writer, and is actively involved in creating a documentary film regarding Olympic athletes that may appear on Netflix. Further, counsel stated that Lee is involved in mentoring students at a boxing gym. Lee was only 47 years old at the time of the PSI, holds a high school diploma, and denied having any physical or mental disabilities. {¶23} Given these factors, we cannot conclude that there is any reasonable probability that the trial court would have found Lee unable to pay the mandatory fine. Lee’s sentence is therefore supported by the record. {¶24} Lee’s second assignment of error is without merit. Conclusion {¶25} For the reasons set forth above, the judgment of the Portage County Court of Common Pleas is affirmed. MATT LYNCH, P.J., SCOTT LYNCH, J., concur. PAGE 8 OF 9 Case No. 2026-P-0041  JUDGMENT ENTRY For the reasons stated in the opinion of this court, appellant’s assignments of error are without merit. It is the judgment and order of this court that the judgment of the Portage County Court of Common Pleas is affirmed. Costs to be taxed against appellant. JUDGE ROBERT J. PATTON PRESIDING JUDGE MATT LYNCH, concurs JUDGE SCOTT LYNCH, concurs THIS DOCUMENT CONSTITUTES A FINAL JUDGMENT ENTRY A certified copy of this opinion and judgment entry shall constitute the mandate pursuant to Rule 27 of the Ohio Rules of Appellate Procedure. PAGE 9 OF 9 Case No. 2026-P-0041