State v. BrazinaState v. Brazina
For Plaintiff-Appellee: Atty. Paul J. Gains, Mahoning County Prosecutor; Atty. Ralph M. Rivera, Assistant Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Rhys B. Cartwright-Jones, 42 N. Phelps St., Youngstown, Ohio 44503
{¶1} Defendant-Appellant appeals his conviction entered in Mahoning County Common Pleas Court for telecommunications harаssment, impersonating a peace officer, and disrupting public services. Three issues are raised in this appeal. The first is whether there was sufficient evidence Appellant impersonated a peace officer. The second is whether trial counsel was ineffective for failing to stipulate to the prior telecommunication harassment convictions. The third is whether the trial court made the requisite consecutive sentence findings at the sentencing hearing. For the reasons discussed below, the verdicts are affirmed. However, the sentence is reversed and the matter remanded for a limited sentencing hearing because the trial court did not make the required consecutive sentence findings at the sentencing hearing.
Statement of the Facts and Case
{¶2} In January 2014, Appellant pled guilty to seven counts of telecommunication harassment. State‘s Exhibit 9 and 10. In March 2014, he was sentenced to community control for those convictions and released from the jail. State‘s Exhibit 10. During the pendency of that case, Appellant was being held in the Mahoning County Jail. Deputy Alicia Hawkins was one of the deputies supervising Appellant. During his stay in the Mahoning County Jail, Deputy Hawkins had to reprimand Appellant because she caught him masturbating. According to Appellant, he felt Deputy Hawkins treated him unfairly.
{¶3} On April 8, 2014, while working at the jail, Deputy Hawkins received a telephone call on the jail‘s telephone line. The phone call was from a “Brian Myers” claiming to be a Struthers police officer and/or detective. Tr. 131-132. This person told Deputy Hawkins somebody called and complained about her, and he was investigating the complaint. Tr. 132. He asked to meet her on her lunch break. She explained she was not permitted to leave on her lunch break, but told him she would meet him at another time. Tr. 131-132. He indicated he would call back later to set a
{¶4} “Brian Myers” called the jail again on April 22, 2014 and spoke to Deputy Hawkins. Tr. 135. During this telephone call they set a date and time to meet. Tr. 135. A meeting was arranged for the next day at the Plasma Center across from the jail. Tr. 136. Deputy Hawkins notified her supervisors of the сall and wrote a report on the incident. Tr. 136. The Mahoning Valley Law Enforcement Task Force was notified and they provided surveillance for the meeting. Tr. 137, 165. “Brian Myers” did not show for the meeting. Tr. 137, 165.
{¶5} On May 14, 2014 Deputy Hawkins received another telephone call while working at the jail. This call was from “Kevin Bryant.” Tr. 139. “Kevin Bryant” alleged to be from Trumbull County Administration or Trumbull County Sheriff‘s Office. Tr. 139-140. He told Deputy Hawkins he was getting people together from other jails to talk about jail оperations. Tr. 139. He told her he would call back the next day to give her the details of the meeting. Tr. 140. Deputy Hawkins recognized his voice as the same person claiming to be “Brian Myers.” Tr. 139. She immediately advised her supervisors of the telephone call and wrote a report. Tr. 140.
{¶6} The Task Force was called and Deputy Hawkins was given a recording device to record the next phone call she received from this individual. Tr. 141.
{¶7} “Kevin Bryant” called the next day and Deputy Hawkins recorded the conversation. Tr. 142; State‘s Exhibit 11. He told her the meeting was going to take place the following morning at the old Alberini‘s in Niles and she was to wear dress clothes and heels. Tr. 142; State‘s Exhibit 11.
{¶8} The Task Force accompanied Deputy Hawkins to the meeting. Tr. 146. No one appeared for the meeting.
{¶9} Deputy Hawkins and the officers working on the case went back to the jail. Detective Anthony Murphy remembered anоther telecommunication harassment case, showed Deputy Hawkins a picture of Appellant, and asked if she knew him. Tr. 147. Deputy Hawkins stated she knew him and relayed the incident at the jail when
{¶10} Detective Murphy and Sergeant Larry McLaughlin called Appellant‘s probation officer and went to Appellant‘s house. Appellant agreed to cooperate and gave a statement. In his statement, Appellant explained he used a computer to make the phone calls and he did these things to “mess” with Deputy Hawkins because of how she treated him when he was in jail. State‘s Exhibit 12. During the conversation, Appellant admits to calling Deputy Hawkins only twice. However, in discussing the incidents he referenced the call about the Struthers investigation and asking her to meet him at the Plasma Center. State‘s Exhibit 12. He also talked about acting like he was somebody from Warren/Trumbull County Sheriff‘s Department and arranging a meeting at the old Alberini‘s in Niles. State‘s Exhibit 12.
{¶11} As a result, Appellant was indicted for four counts of telecommunication harassment in violation of
{¶12} Appellant pled not guilty, filed a motion to suppress his confession and Deputy Hawkins’ voice identification, and filed a motion in limine to prevent the state from referencing his prior telephone hаrassment convictions and similar unproven conduct. 9/3/14 Motion to Suppress; 5/18/15 Motion to Suppress Voice Identification; 9/14/15 Motion in Limine. The motions were overruled. 5/19/15 J.E.; 8/21/15 J.E.
{¶13} The case proceeded to a jury trial. Appellant was found guilty on four counts of telephone harassment, four counts of impersonating a peace officer, and one count of disrupting public services. 9/18/15 Verdict forms; 9/28/15 J.E.
{¶14} Sentencing occurred on October 1, 2015. Appellant received an aggregate sentence of 144 months (12 years). 11/9/15 J.E. Appellant received 12
{¶15} Appellant timely appealed the conviction. 10/26/15 NOA.
First Assignment of Error
“Insufficient evidence supported Counts 7 and 8, Impersonating a Peace Officer.”
{¶16} Counts 7 and 8 of the indictment allege Appellant violatеd
{¶17} Sufficiency of the evidence is a question of law dealing with the legal adequacy of the evidence. State v. Thompkins, 78 Ohio St.3d 380, 386, 678 N.E.2d 541 (1997). It is the legal standard applied to determine whether the case may go to the jury or whether the evidence is legally sufficient as a matter of law to support the verdict. State v. Smith, 80 Ohio St.3d 89, 113, 684 N.E.2d 668 (1997). In viewing a sufficiency of the evidence argument, the evidence and all rational inferences are evaluated in the light most favorable to the prosecution. State v. Goff, 82 Ohio St.3d 123, 138, 694 N.E.2d 916 (1998).
{¶18}
{¶19} In describing the phone calls occurring on May 14 and May 15, 2014, Deputy Hawkins stated the caller “said he was Kevin Bryant from Trumbull County Administration and he was getting people together from other jails to talk about how we run - how our operations run at the jail.” Tr. 139. She also testified he said he was from Trumbull County Sheriff‘s Office. Tr. 140. In describing the last phone call, she stated he pretended he was a Trumbull County offiсer; “This is the phone call where he acts as a Trumbull County officer and he wants me to meet him, set up a time and place to meet.” Tr. 144-145.
{¶20} Although Deputy Hawkins states “Kevin Bryant” indicated he was from Trumbull County Administration, she also testified he acted as if he was a “Trumbull County officer.” Peace officer is defined in
{¶21} This assignment of error is meritless.
Second Assignment of Error
“Trial counsel was ineffective for failing to curtail admission of Brazina‘s prior criminal conduct.”
{¶22} Appellant contends counsel was ineffective for two reasons. First, he asserts counsel should have stipulated to his prior convictions because a stipulation would have prevented the jury from hearing testimony that Appellant had previously committed this crime. The second alleged ineffective performance was allowing the jury to hear about him masturbating while he was in the county jail.
{¶23} We review a claim of ineffective assistance of counsel under a two-part test, which requires the defendant to demonstrate: (1) trial counsel‘s performance fell
{¶24} In еvaluating the alleged deficiency in performance, our review is highly deferential to counsel‘s decisions as there is a strong presumption counsel‘s conduct falls within the wide range of reasonable professional assistance. Bradley, 42 Ohio St.3d at 142-143, citing Strickland, 466 U.S. at 689. We are to refrain from second-guessing the strategic decisions of trial counsel. State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995). There are “countless ways to provide effective assistance in any given case.” Bradley, 42 Ohio St.3d at 142, citing Strickland, 466 U.S. at 689. Debatable trial strategy vеry rarely constitutes ineffective assistance of counsel. See State v. Thompson, 33 Ohio St.3d 1, 10, 514 N.E.2d 407 (1987).
{¶25} To show prejudice, a defendant must prove his lawyer‘s errors were so serious that there is a reasonable probability the result of the proceedings would have been different. Carter, 72 Ohio St.3d at 558.
{¶26} As to whether trial counsel was ineffective for failing to stipulate to the prior convictions for telecommunications harassment, the Ohio Supreme Court has recently addressed a similаr argument in the context of prior felony drug convictions. State v. Spaulding, __ Ohio St.3d __, 2016-Ohio-8126, __ N.E.3d __, ¶ 153. The Court found no merit with the Spaulding‘s argument that trial court was ineffective for not offering to stipulate to the prior convictions:
Spaulding next argues that his trial counsel were constitutionally ineffective for not objecting to the journal entries or offering to stipulate to his prior convictions. But even assuming that counsel should have objected to the judgment entries or offered to stipulаte to the convictions, Spaulding has not established a “reasonable probability that, but for counsel‘s unprofessional errors, the result of the
proceeding would have been different,” Strickland, 466 U.S. at 694, 104 S.Ct. 2052, 80 L.Ed.2d 674. If Spaulding had stipulated to his prior offenses, the jury still would have learned that he had at least prior felony drug convictions and prior domestic-violence convictions. See R.C. 2923.13(A) (to convict, the state had to prove that Spaulding had been previously convicted of a felony drug offense);R.C. 2919.25 (tо convict Spaulding of third-degree-felony domestic violence, the state had to prove that he had been convicted of two or more prior domestic-violence offenses). And other witnesses testified about the incidents underlying the domestic-violence convictions.
{¶27} That reasoning is equally applicable here. Appellant cannot establish a reasonable probability that, but for counsel‘s unprofessional errors, thе result of the proceeding would have been different. Even if Appellant had stipulated to the prior convictions, the jury would still have learned about the prior telecommunication harassment offenses because the prior convictions were an element of the fifth-degree felony telecommunication harassment charges.
{¶28} Furthermore, because the prior convictions were an element of the offenses, the dеcision to not stipulate to the prior convictions and to acknowledge the convictions in the defense‘s opening statement also appears to be trial strategy. We will not second guess trial strategy. Carter, 72 Ohio St.3d at 558.
{¶29} As to the introduction of the masturbation incident, Appellant cannot demonstrate a reasonable probability that had it not been introduced, the result of the proceedings would have been different. The masturbation incident wаs introduced to establish how Deputy Hawkins and Appellant knew each other. The masturbation incident probably was not needed to show Appellant and the victim‘s familiarity with each other; familiarity could have been demonstrated by indicating Deputy Hawkins supervised Appellant while he was in the county jail awaiting resolution of his other telecommunication harassment charges. Her oversight of him was why she was targeted. Regardless, even if the masturbation incident was not discussed, the result
{¶30} This assignment of error is meritless.
Third Assignment of Error
“The trial court erred in imposing consecutive sentences, totaling 12 years, without making adequate findings under
{¶31} Appellate courts review felony sentences under the standard set forth in
{¶32} When a trial court imposes consecutive sentences it must make the required
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16 ,2929.17 , or2929.18 of the Revised Code, or was under post-release control for a prior offense.(b) At least two of the multiple offenses were committed as part of one or morе courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶33} In ordering consecutive sentences, the trial court made the following statements:
The Court has considered the record, the oral statements made, and the principles and purposes of sentencing under
Ohio Revised Code 2929.11 , and has balanced the seriousness and recidivism factors underOhio Revised Code 2929.12 . Defendant waived his right to presentence investigation. However, the Court will order a postsentence investigation.Court finds defendаnt was convicted by jury of four counts of telecommunications harassment, all four being violations of
Ohio Revise Code 2917.21(B)(C)(1)(2) , felonies of the fifth degree; to four counts of impersonating a peace officer, violation ofOhio Revised Code 2921.51(E)(G) , felonies of the third degree; and to one count of disrupting public services, violation ofOhio Revised Code 2904.04(B)(C) , felony of the fourth degree.
The Court further finds defendant committed these acts while on probation to another Common Pleas Court. Court finds this was part of a course of сonduct and that the defendant‘s criminal conduct demonstrates consecutive sentences are necessary.
8/9/16 Tr. 11-12.
{¶34} Appellant contends these statements do not encompass all the required findings. This court agrees.
{¶35} The trial court made a (C)(4)(a) finding; it found Appellant committed the offenses while on community control for another offense.
{¶36} However, the trial court did not clearly make any of the other required findings. It is acknowledged “magic” or “talismanic” words are not needed to impose consecutive sentences. State v. Jackson, 7th Dist. No. 14 MA 99, 2015-Ohio-1365, ¶ 10, citing State v. Bellard, 7th Dist. No. 12 MA 97, 2013-Ohio-2956, ¶ 17. “A word-for-word recitation of the language of the statute is not required, and as long as the reviewing court can discern that the trial court engaged in the correct analysis and can determine that the record contains evidence to support the findings, consecutive sentences should be upheld.” Bonnell, 2014-Ohio-3177 at ¶ 29. It is difficult to discern from the record that the trial court engaged in the correct analysis.
{¶37} The trial court did state these crimes were part of a course of conduct and consecutive sentences were necessary. This complied with a (C)(4)(b) finding that “the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriоusness of the offender‘s conduct.” The statements may be a finding that “consecutive sentences are necessary to protect the public from future crime or to punish the offender.” However, those two statements alone are not sufficient to qualify as a protect the public finding. Furthermore, the trial court made no finding which could qualify as a
{¶38} Consequently, the record does not demonstrate compliance with
{¶39} Appellant‘s second argument under this assignment of error is the sentence is an abuse of discretion. Aрpellant asserts 12 years for “prank phone calls” is beyond what is necessary to carry out the purposes and principles of felony sentencing. He asserts no one was injured, there was no destruction of property, and there was no calculated expense.
{¶40} This argument is meritless. We do not review a sentence for an abuse of discretion.
{¶41} In conclusion, this assignment of error has merit in part. The trial court failed to make the necessary consecutive sentence findings at the sentencing
Conclusion
{¶42} The first and second assignments of error lack merit. The third assignment of error has merit. The verdict is affirmed, the sentence is reversed, and the matter is remanded for a limited sentencing hearing regarding consecutive sentences.
Donofrio, J., concurs,
DeGenaro, J., concurs.