State v. AbneyState v. Abney
{¶ 1} Defendant Louis Abney (appellant) appeals from the trial court‘s accepting his plea of guilty to voluntary manslaughter with a firearm specification and his agreed upon sentence of 13 years imprisonment. After reviewing the facts of the case and pertinent law, we affirm.
I.
{¶ 2} On March 6, 2003, appellant, along with co-defendant Naeem Miller, was indicted for one count of aggravated murder in violation of
II.
{¶ 3} In his first аssignment of error, appellant argues that “the defendant/appellant was denied effective assistance of counsel pursuant to the 6th and 14th Amendments to the United States Constitution.” Specifically, appellant argues that defense counsel failed to investigate evidence that another individual was responsible for the victim‘s death. As support for his argument, appellant points to a Cleveland Plain Dealer article and the F.B.I‘s Most Wanted List, both stating that Naeem Miller was wanted on homicide charges relating to the death of Kenneth Ware. Appellant fails to point out that both he and Miller were being charged as co-defendants for the shooting.
{¶ 4} In order tо substantiate a claim of ineffective assistance of counsel, an appellant must demonstrate that 1) the performance of defense counsel was seriously flawed and deficient, and 2) the result of appellant‘s trial or legal proceeding would have been different had defense counsel provided proper representation. Strickland v. Washington (1984), 466 U.S. 668; State v. Brooks (1986), 25 Ohio St.3d 144. In State v. Bradley, the Ohio Supreme Court truncated this standard, holding that reviewing courts need not examine counsel‘s performance if appellant fails to prove the second prong of prejudicial effect. State v. Bradley (1989), 42 Ohio St.3d 136. “The object of an ineffectiveness claim is not to grade counsel‘s performance.” Id. at 142.
{¶ 5} In the instant case, appellant argues that had defense counsel investigated Miller‘s guilt, appellant would have gone to trial claiming his innocence rather than pleading guilty. Hоwever, appellant‘s guilt and Miller‘s guilt are not mutually exclusive. Appellant and Miller, as co-defendants, could both be found guilty of the same offense. See, e.g.,
{¶ 6} Accordingly, appellant was not denied effеctive assistance of counsel, and his first assignment of error is overruled.
III.
{¶ 7} Appellant‘s second and third assignments of error will be discussed together, and they read as follows:
“Thе trial court‘s imposition of maximum sentences is contrary to law when the appellant had not previously served a prison term and the trial court did not make findings that the maximum sentence was necessary because the appellant either committed the worst forms of the offenses or posed the greatest likelihood of committing future crimes in violation of
“The trial court erred when it sentenced appellant to a term of incarceration greater than the minimum without making the required findings on the rеcord that the minimum term would demean the seriousness of the offense or not adequately protect the public.”
{¶ 8} Specifically, appellant argues that the court did not comply with
{¶ 9} The pertinent parts of
“(B) [T]he court shall impose the shortest prison term authorized for the offense * * *, unless * * * 1) The offender was serving a prison term at the time of the offense, or the offender previously had served a prison term, [or] 2) The court finds on the record that the shortest prison term will demean the seriousness of the offender‘s conduct or will not adequately protect the public from future crime by the offender or others.
“(C) [T]he court * * * may impose the longest рrison term authorized for the offense * * * only upon offenders who committed the worst forms of the offense, upon offenders who pose the greatest likelihood of сommitting future crimes, upon certain major drug offenders * * *, and upon certain repeat violent offenders * * *.”
{¶ 10} Pursuant to
“Where a defendant specifically agrees to accept the maximum sentence, he has essentially conceded that the wrongful conduct at issue satisfies the statutory requirements for imposing the longest prison term, which negates the `catеgory finding’ requirement of
{¶ 11} In the instant case, the state indicated in the plea hearing that “we are agreeing to a maximum sentence, that being а sentence of ten years, plus an additional three years for the firearm specification * * *.” In response, defense counsel stated: “That, in fact, is a correct statement of the plea agreement.” In addition, when asked if he understood that the court would impose the maximum sentence of ten years plus three years, appellant responded on the record that he did.
{¶ 12} In following both
IV.
{¶ 13} In appellant‘s fourth and final assignment of error, he argues that “the trial сourt committed prejudicial error and plain error when it sentenced defendant on his guilty pleas before the trial court without an executed written trial waiver, thus, violating
{¶ 14}
{¶ 15} Given that appellant pled guilty to voluntary manslaughter,
Judgment affirmed.
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 thе Cuyahoga County Court of 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.
Rocco, J., and Kilbane, J.