STATE OF OHIO, PLAINTIFF-APPELLEE vs. CHARLES D. BARNETT, DEFENDANT-APPELLANT
No. 99419
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
October 17, 2013
[Cite as State v. Barnett, 2013-Ohio-4595.]
BEFORE: Boyle, P.J., S. Gallagher, J., and E.T. Gallagher, J.
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-563550; RELEASED AND JOURNALIZED: October 17, 2013
Richard Agopian
The Hilliard Building
1415 West 9th Street, 2nd Floor
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
Brian R. Radigan
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Charles Barnett, appeals his 17-year sentence for attempted rape, aggravated burglary, and felonious assault. He raises two assignments of error for our review:
- Imposition of consecutive sentences was contrary to law.
- Mr. Barnett failed to receive effective assistance of counsel during the sentencing phase.
{¶2} We find no merit to his appeal and affirm the trial court.
Procedural History
{¶3} In June 2012, Barnett was indicted on six counts, including one count of rape, aggravated burglary, aggravated robbery, and felonious assault, and two counts of kidnapping. All counts carried several specifications, including sexually violent predator, notice of prior conviction, repeat violent offender, and sexual motivation.
{¶4} In November 2012, Barnett withdrew his former plea of not guilty and pleaded guilty to an amended indictment of attempted rape in violation of
{¶5} The trial court sentenced Barnett to an aggregate of 17 years in prison: seven years for attempted rape, five years for aggravated burglary, and five years for felonious assault, all to run consecutive to one another. The trial court further notified
Consecutive Sentences
{¶6} In his first assignment of error, Barnett argues that the trial court‘s imposition of consecutive sentences was contrary to law. Barnett argues that the trial court failed to make the necessary findings under
{¶7}
{¶8}
{¶9} In each step of this analysis, the statutory language directs that the trial court must “find” the relevant sentencing factors before imposing consecutive sentences.
{¶10} In imposing consecutive sentences, however, a trial court is no longer required to state their reasons for imposing consecutive sentences on the record. Id. at ¶
{¶11} At Barnett‘s sentencing hearing, the state indicated for the record that the victim was a 61-year-old blind woman who lives by herself. The state showed photos to the court that were taken in the common areas inside the victim‘s apartment building, but not actually inside the victim‘s apartment. The photos showed that Barnett rode the elevator with the victim in her apartment building, followed her off of the elevator, hid behind a wall and waited for her to open her apartment door, and then pushed her into her apartment when she opened the door. The photos then showed Barnett “after he committed the acts” against the victim, and when he was “arrested on the scene.” The state indicated that the photos were how police identified Barnett as the perpetrator.
{¶12} The state also told the trial court that the offenses that Barnett pleaded guilty to were not allied offenses of similar import. The state explained that there were three separate acts: (1) attempted penetration on the victim with an unknown object, (2) going into the victim‘s apartment, and (3) attempting to strangle the victim.
{¶13} The victim informed the court that as she was entering her apartment, Barnett jumped her from behind and put her in a “choke hold.” Barnett forced her into her apartment and pushed her “straight back to the bedroom.” He forced her onto her bed and kept asking her, “where is your money,” and “where is your jewelry?” The
{¶14} Defense counsel indicated that she read the presentence investigation report. She stated, “the only — the mitigating factors here are the fact that my client has had a history of mental health issues, schizophrenia, bipolar as well as depression.” Defense counsel informed the court that on the day of this incident, Barnett was not taking his medication, which was a contributing factor. Defense counsel further stated that Barnett had a history of substance abuse; he smokes crack, uses marijuana, and consumes alcohol daily. Since Barnett has been incarcerated and not using drugs or alcohol, he has “accepted full responsibility for the matters” and articulated that he is remorseful for what he did. Defense counsel further explained that Barnett did not have family members who could offer him support. Defense counsel requested the court to run Barnett‘s sentences concurrently.
{¶16} Barnett apologized to the victim for what he did. He stated that he was not just saying that because he was in court; he said he was “truly sorry for the actions I committed under the influence of drugs and alcohol.” Barnett stated that he needed treatment for drugs and alcohol; substance abuse had ruined his life. Barnett said that he was not trying to make excuses, but said that he was an addict.
{¶17} The trial court indicated that it read the presentence investigation report and Barnett‘s sanity evaluation. The trial court stated that it considered the overriding purposes and principles of sentencing. It also found, under
{¶19} Reviewing the facts, the court found that “this is one of the worst offenses it has seen perpetrated on an innocent victim.” It further explained:
This is a victim that the offender did not know. They had no relationship at the time prior to — or prior to the incident.
The photographs are clear that the defendant must have ridden the elevator with the victim up to her apartment. He exited the elevator with the victim.
The photographs in the building are clear that he stood and waited for her to open the door to the apartment and then they are clear that he did follow her into the apartment at that time.
Then in addition to what is stated in the presentence report, which oftentimes reflects what is put into the police report, [the victim] did come in here and give a very detailed description of what happened.
{¶20} The court then stated that although the law presumes that concurrent sentences be imposed, it had the discretion to impose consecutive sentences “if necessary, to protect and/or punish and that is not disproportionate.” The court made the following findings:
I find that the defendant is an individual who has been addicted to drugs and/or alcohol for the larger part, if not the entire part, of his adult life.
I find that although he does have a mental illness, he is in the status that he refuses to be med compliant.
All of those things led to the incident that occurred at this — in this case.
And that I find that he had in some fashion, premeditated what he was going to do to the victim; that he did wait for her to go into the apartment, and he followed her into the apartment.
I find that the harm in this case is so great, that a single sentence would not be appropriate. It would not adequately reflect the seriousness of the conduct based on my prior comments.
I do find that his history of criminal convictions, being released from prison and picking up cases as soon as he‘s released, both felonies and misdemeanors, show that consecutive terms are needed to protect the public.
{¶21} After reviewing the transcript in its entirety, we conclude that the trial court held a lengthy hearing, after which it made thoughtful and extensive findings. It discussed the seriousness of Barnett‘s crimes and the need to protect the public and punish Barnett. The trial court further considered the emotional and physical harm to the victim, as well as the fact that the victim was 61 years old and blind. The court also discussed Barnett‘s extensive criminal history and the fact that he had not responded well to sanctions in the past, evidenced by the fact that he continued to commit new crimes soon after he was released from prison. Thus, we find that the trial court fully engaged in the required analysis and fulfilled the statutory requirements of
{¶23} Again, as this court has repeatedly held, “the statutory language in
{¶24} Accordingly, Barnett‘s first assignment of error is overruled.
Effective Assistance of Counsel
{¶25} In his second assignment of error, Barnett argues that he failed to receive effective assistance of counsel during his sentencing hearing. Barnett maintains that his counsel failed to “educate the court on the complexities of consecutive sentencing” and failed to “advocate” for him.
{¶26} For a defendant to succeed on an ineffective assistance of counsel claim, he or she must establish a two-prong test: (1) that counsel‘s performance was deficient; and
{¶27} After review of the sentencing hearing, we find defense counsel‘s performance to be effective. The trial court had a clear grasp of the sentencing parameters, including the law on consecutive sentences. Thus, there was no need to educate the court. Further, defense counsel reviewed the presentence investigation report with the court, informing the court of the fact that Barnett was mentally ill and addicted to substance abuses. Indeed, Barnett does not point to any specific mitigating factor that his defense counsel failed to highlight to the court, nor do we find any in the record.
{¶28} Barnett implies that the fact that his defense counsel did not know that his brother was in the courtroom somehow establishes that she was ineffective. We disagree. If Barnett had known that his brother was in the courtroom, he should have informed his attorney. Regardless, even if Barnett‘s counsel should have known that his brother was there, there was no harm. Barnett‘s brother informed the trial court that he was there, and Barnett‘s brother was able to speak on Barnett‘s behalf at the sentencing hearing.
{¶29} Accordingly, Barnett‘s second assignment of error is overruled.
{¶30} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY J. BOYLE, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., CONCURS;
SEAN C. GALLAGHER, J., CONCURS IN JUDGMENT ONLY WITH SEPARATE OPINION
SEAN C. GALLAGHER, J., CONCURRING IN JUDGMENT ONLY:
{¶31} I concur with the majority‘s disposition of the second assigned error. I am compelled to concur in judgment only with the majority‘s decision as it relates to Barnett‘s first assignment of error. There is a growing disconnect between this court‘s two distinct approaches, derived from State v. Goins, 8th Dist. Cuyahoga No. 98256, 2013-Ohio-263, and State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, in reviewing whether the trial court made the requisite findings pursuant to
{¶33} In this case, the majority relies on Goins in reviewing the facts of the case to determine whether the trial court‘s findings are supported by the record. While the majority opinion on this issue is well written and well reasoned, I believe the majority‘s review is beyond the scope of Barnett‘s first assignment of error, in which he claims the trial court erred in imposing consecutive sentences by failing to make the
{¶34} Appellate courts are limited to reviewing the imposition of consecutive sentences to determine whether the sentence is “otherwise contrary to law” or whether the record clearly and convincingly supports the sentencing court‘s findings under
[c]onsecutive sentences can be imposed if the court finds that (1) a consecutive sentence is necessary to protect the public from future crime or to punish the offender and (2) that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public[,]
{¶35} In Goins, upon which the majority relies to the exclusion of Venes, the defendant was not appealing the lack of findings to satisfy
{¶36} This court‘s decision in Venes resolved any ambiguity from Goins and determined that a trial court‘s findings must be separate and distinct from any factual recitation by the trial court at sentencing when reviewing whether the sentence is contrary to law because of the failure to make the statutorily required findings. Venes at ¶ 14, 17.3 In Venes, in part relying on Goins, this court held that the trial court satisfied its statutory requirement before imposing consecutive sentences through announcing the court‘s separate and distinct findings. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶ 11; Goins, 8th Dist. Cuyahoga No. 98256, 2013-Ohio-263, ¶ 10. Unlike in Goins, this court in Venes limited its focus to the existence of findings, in light of the assigned error addressing whether the sentence was contrary to law, and not the reasons in support of those findings — as would be the standard of review to determine whether the facts support the record. See Venes at ¶ 12, 16; Goins at ¶ 18.
{¶37} The Goins approach is simply inapplicable to reviewing the single issue of whether the trial court made the requisite findings prior to the imposition of consecutive
{¶38} More recently, however, this court in Wilson, 8th Dist. Cuyahoga No. 99331, 2013-Ohio-3915, held that a reviewing court may “detect” findings in the trial court‘s “discussion of relevant facts at the sentencing hearing * * *.”4 Wilson at ¶ 7. In Wilson, the only issue was whether the trial court‘s imposition of consecutive sentences was contrary to law, based on an alleged failure to make the required findings. Id. at ¶ 4. In Wilson, the appellant did not include a claim requiring the appellate court to determine whether the facts clearly and convincingly supported the trial court‘s findings. Reconcilable with this court‘s Venes decision, this court in Wilson affirmed the consecutive sentences in light of the fact that the trial court made the three express findings:
I am able to impose consecutive sentences, if necessary, [(1)]to protect the public or punish the offender and [(2)] not disproportionate—and I need to make the following findings: * * * I find that the harm was so great or unusual that a single term does not adequately reflect [the] seriousness of the conduct. * * * And [(3)] I do find that your criminal history shows the consecutive terms are needed to protect the public.
Id. at ¶ 11. Thus, any potential conflict between this court‘s Wilson and Venes decisions stems from the recitation of the legal standards.
{¶39} Inasmuch as I acknowledge two differing standards of review emerging, that of Wilson offering leeway to our review and Venes requiring a more bright-line approach, in the current case, the trial court satisfied its obligations to make findings under the more stringent Venes standard. Thus, this court need not delve into the minutia of any potential conflicts for the purposes of resolving Barnett‘s first assignment of error. At this point, the emerging diametric standards of review are purely academic.
{¶40} At the sentencing hearing in this case, the trial court made the required separate and distinct findings:
[(1)] I find that the harm in this case is so great, that a single sentence would not be appropriate. It would not adequately reflect the seriousness of the conduct based on my prior comments. [(2)] I do find that his history of criminal convictions, being released from prison and picking up
cases as soon as [Barnett is] released, both felonies and misdemeanors, [(3)] show that consecutive terms are needed to protect the public.
Tr. 47:7-16. In short, the trial court made the necessary separate and distinct findings, satisfying its obligation under
{¶41} Accordingly, I would affirm the judgment of the trial court premised, however, on a different standard than employed by the majority. I would have confined the review, based on this court‘s Venes decision, to whether the court made the required separate and distinct findings. Because the majority perpetuates a standard of review allowing the appellate court to glean a recitation of facts as findings, contrary to this court‘s Venes decision, I must concur in judgment only.