State v. BannaState v. Banna
JUDGMENT: AFFIRMED
David L. Doughten
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Michael P. Graham
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, P.J.:
{¶ 1} Defendant-appellant Madhat T. Banna appeals from the nine-year sentence imposed after he entered guilty pleas to two counts of sexual battery, a second-degree felony.
{¶ 2} Banna prеsents two assignments of error, claiming the trial court erred in imposing consecutive terms without making statutory findings and, further, his trial counsel rendered ineffective assistance for failing to raise this issue at the sentencing hearing.
{¶ 4} Banna originally was indicted in this case on four counts. He was charged with thrеe counts of rape of a child under the age of thirteen,
{¶ 5} Eventually, the parties entered into a plea agreement. In exchаnge for Banna‘s pleas of guilty to counts one and two, amended to the charge of sexual battery, аnd his understanding that he would not receive a sentence of “probation,” the state would dismiss the other two counts.
{¶ 6} The trial court conducted a thorough colloquy with Banna prior to accepting his guilty pleas to the amended charges. The trial court advised Banna he could potentially be sentenced to mаximum and consecutive prison terms for the two second-degree felonies, for a “maximum of 16 years.” Bannа indicated he understood.
{¶ 7} The case proceeded to sentencing approximately threе weeks later. The trial court indicated it had reviewed the presentence report, and acсepted a letter written by the victim. The prosecutor then outlined the facts of the case in relation to the “seriousness” and “recidivism” factors set forth in
{¶ 8} After listening to defense counsel and Banna, the trial court imposed consecutive terms of three years and six years for Banna‘s two convictions.
{¶ 9} Banna appeals his sentence with two assignments of error.
{¶ 10} “I. The trial court erred by sentencing the appellant to serve consecutivе sentences without submitting reasons in support pursuant to
{¶ 11} “II. The failure to object to consecutive sentеnces or to request the findings of the court deprived the appellant of his right to effective
{¶ 12} assistance of counsel.”
{¶ 13} Banna аrgues in his first assignment of error that the trial court was required to make findings pursuant to
{¶ 14} As authority for his argument, Banna cites Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517, and asserts that the United States Supreme Court‘s decision has abrogated State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. He thus contends that the statutory findings
{¶ 15} The Ohio Supreme Court acknowledged the decision in Ice in State v. Elmore, 122 Ohio St.3d 472, 480, 2009-Ohio-3478, 912 N.E.2d 582, but declined to address fully all of its ramifications.1 Rather, Elmore followed Foster, quoting from the earlier decision that trial courts “are no longer required to make findings or give their reasons for mаximum, consecutive, or more than the minimum sentences.”
{¶ 16} In addressing Banna‘s argument, this court notes he failed in the triаl court to either raise this issue or request findings. State v. Pinkney, Cuyahoga App. No. 91861, 2010-Ohio-237, ¶15. Moreover, until the Ohio Supreme Court states otherwise, this court continues to follow Foster. See State v. McCornell, Cuyahoga App. No. 93274, 2010-Ohio-3086, ¶12; State v. Rosa, Cuyahoga App. No. 93108, 2010-Ohio-2215, ¶19.2
{¶ 17} Therefore, the trial court possessed the discretion and inherent authority to detеrmine that Banna‘s prison sentences for his two convictions, both of which fell within the statutory range for a second-degree felony, should be
{¶ 18} Accordingly, Banna‘s first assignment of error is overruled.
{¶ 19} Banna presents a claim of ineffective assistance of counsel in his second assignment of error; it is based upon the argument hе raises in his first assignment of error. To sustain such a claim, the defendant must show, first, that counsel‘s performance wаs deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373.
{¶ 20} This court cannot conclude that, simply because trial counsel did not request the court to make findings prior to imposing sentence, his performance was deficiеnt. Rosa, ¶33. Similarly, this court cannot conclude that prejudicial error occurred when the trial court did not spеcifically state its findings and reasons for imposing consecutive sentences. Id. Consequently, Banna‘s claim of ineffective assistance of counsel fails.
{¶ 21} Banna‘s sentences, accordingly, are affirmed.
It is ordered that appellee recover from аppellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A сertified copy of this entry shall constitute the mandate pursuant to
KENNETH A. ROCCO, PRESIDING JUDGE
MELODY J. STEWART, J., and
LARRY A. JONES, J., CONCUR