STATE OF OHIO, Plaintiff-Appellee, v. CARL BREWER, Defendant-Appellant.
Case No. 14CA1
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT MEIGS COUNTY
RELEASED: 4/24/14
[Cite as State v. Brewer, 2014-Ohio-1903.]
Harsha, J.
DECISION AND JUDGMENT ENTRY
Michael R. Huff, Athens, Ohio, for appellant.
Colleen S. Williams, Meigs County Prosecuting Attorney, and Amanda Bizub-Franzmann, Meigs County Assistant Prosecuting Attorney, Pomeroy, Ohio, for appellee.
Harsha, J.
{¶1} Carl Brewer pleaded guilty to one count of burglary and appeals his sentence, which included a seven-year prison term and an order to pay restitution of $1,000 to the victim.
{¶2} First, Brewer argues that his trial counsel was ineffective because the attorney failed to review his presentence investigation report (“PSI“) before the sentencing hearing and failed to request a continuance of the hearing to review the report. However, counsel indicated he did not review the PSI because it was incomplete due to Brewer‘s failure to cooperate with the investigation. Moreover, given Brewer‘s admitted noncompliance with the trial court‘s orders, including his criminal conduct while released on bond pending sentencing, Brewer cannot establish a reasonable probability that, but for counsel‘s purported errors, the result of the proceeding would have been different.
{¶4} Brewer finally contends that the trial court erred when it sentenced him to pay restitution of $1,000 to the victim without first inquiring of his ability to pay as required by
{¶5} Therefore, we overrule Brewer‘s assignments of error and affirm the judgment of the trial court.
I. FACTS
{¶6} Michael Duhl, who had installed cameras inside his home, telephoned police that Brewer was burglarizing his house. The police interrupted the burglary and arrested Brewer when he attempted to run away. Brewer later confessed to breaking into Duhl‘s house and stealing items from it. A subsequent search of Brewer‘s car uncovered a tool case stolen from Duhl‘s house in an earlier burglary.
{¶7} Less than two months later, a Meigs County grand jury indicted Brewer on two counts of burglary in violation of
{¶8} Shortly thereafter, the trial court held a bond hearing, and it released Brewer on his own recognizance upon his posting of $110 in fees. The court ordered Brewer to remain at his mother‘s residence except to travel with prior approval to church and doctor appointments. The trial court later held that Brewer need not post the $110 in fees because he had previously posted the $500 for the initial bond.
{¶9} About a month later, the state filed a motion to revoke Brewer‘s bond on the basis that he had committed another burglary while he was out on bond. The trial court revoked the bond and ordered Brewer‘s arrest and detention until he could appear before it. At a pretrial hearing, the state commented that Brewer had been released on his own recognizance for various crimes on five separate occasions and that he had “been in court a number of times on bond revocations,” including “a new breaking and entering,” which verified that he was not complying with the conditions of his release. The trial court emphasized to Brewer that he had to follow court orders, and it set a new bond.
{¶10} Brewer then entered into an agreement to plead guilty to the second count of burglary in return for the dismissal of the first count. The parties agreed that the state would recommend a prison term not to exceed four years and Brewer would argue that he be sentenced to community control. At the change of plea hearing, Brewer testified
{¶11} The trial court found Brewer guilty upon the parties’ stipulation of fact and ordered a presentence investigation. The trial court further ordered that Brewer submit to an evaluation and assessment by TASC, Health Recovery Services, and SEPTA. The trial court released him on his own recognizance upon payment of $110 on the conditions that he stay home, he not have contact with either the victim of the crime or another neighbor who spoke at the hearing, he remain at home except when he went to church, and he remain law abiding.
{¶12} A couple months later, the trial court held a sentencing hearing. The state noted that Brewer had not completed the ordered evaluations and had been stopped by the State Highway Patrol for marijuana possession while out on bond pending sentencing.2 In accordance with the parties’ plea agreement, the state recommended that Brewer receive a four-year prison term. The burglary victim requested restitution of $1,000 to replace a broken door, and in his victim impact statement, requested a six-month prison term. Brewer‘s trial counsel, attorney Baer, argued that Brewer should be
{¶13} At that point in the proceedings, the trial court asked attorney Baer if he had seen Brewer‘s PSI:
THE COURT: Did you not get a chance to see the PSI?
ATTORNEY BAER: No. I understood it was incomplete.
THE COURT: It‘s dreadful.
ATTORNEY BAER: Uh...
THE COURT: Totally not compliant. He ignored all the instructions of my staff. Failed to go to SEPTA. Failed to participate in MonDay. Didn‘t do anything we requested. Today is the day. I am sure you remember the litany I told him. He had to get all of that done
ATTORNEY BAER: Yes.
THE COURT: And it‘s certainly no reflection on you, Mr. Baer. I don‘t want you to argue things that are not possible for me at this point.
ATTORNEY BAER: That‘s alright. Alright.
{¶14} The trial court noted that a probation officer had given Brewer a packet for the PSI that he was supposed to complete and return, but he did not. Brewer claimed that he didn‘t understand it. Brewer also failed to set an appointment with Health Recovery Services for a drug-dependence evaluation until the date of sentencing. Brewer claimed that he completed a TB test and answered questions at SEPTA, but he did not disagree with the court‘s statement that SEPTA found that he was not an acceptable candidate. Brewer agreed that his multiple misdemeanor convictions related
{¶15} At the conclusion of the hearing, the trial court decided to sentence Brewer to a prison term longer than that recommended by the state because of his failure to follow orders, including his continued violation of the law while he was out on bond:
THE COURT: Alright. I‘m giving him seven years in prison. I‘m going to remand him to the custody of the Meigs County Sheriff. You can apply for judicial release after 60 months. I‘m not following the recommendation of the State. I don‘t think it‘s severe enough based on the fact you don‘t do anything anybody says, Mr. Brewer. You continue to violate the law while you‘re on bond. Remanded to custody.
{¶16} The trial court also ordered Brewer to pay court costs and the $1,000 in restitution requested by the victim. The trial court issued a sentencing entry reflecting its decision.
{¶17} We dismissed Brewer‘s initial appeal because there was no journal entry resolving the first count of burglary charged in the indictment. State v. Brewer, 4th Dist. Meigs No. 12CA9, 2013-Ohio-5118. Subsequently, the trial court issued a new sentencing entry that sentenced Brewer to seven years in prison on his conviction for the second count of burglary, dismissed the first count of burglary, and ordered that Brewer pay $1,000 in restitution to the victim. This appeal from the amended sentencing entry ensued.
II. ASSIGNMENTS OF ERROR
- The appellant was denied the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the Constitution of the United States and Art. I, section 10 of the Ohio Constitution.
- The trial court abused its discretion when it sentenced appellant to serve a near maximum sentence (7 years out of a possible maximum 8 year sentence).
- The trial court erred as a matter of law and abused its discretion when it sentenced appellant to pay restitution of $1,000 to the victim without first inquiring of the appellant‘s ability to pay as required by ORC 2929.19(B)[5].
III. LAW AND ANALYSIS
A. Ineffective Assistance of Counsel
{¶19} In his first assignment of error Brewer claims that he was denied the effective assistance of counsel. More specifically, Brewer contends that his trial counsel was ineffective because he did not review the PSI, did not request a continuance to confer with Brewer and have Brewer complete the PSI, and failed to address the trial court‘s concerns.
{¶20} Criminal defendants have the constitutional right to counsel, which includes the right to the effective assistance of counsel. Evitts v. Lucey, 469 U.S. 387, 392, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985) (“we have held that the trial-level right to counsel, created by the Sixth Amendment and applied to the States through the Fourteenth Amendment, * * * comprehends the right to effective assistance of counsel“);
{¶21} To prevail on a claim of ineffective assistance of counsel, a criminal defendant must establish (1) deficient performance by counsel, i.e., performance falling below an objective standard of reasonable representation, and (2) prejudice, i.e., a
{¶22} Brewer cannot establish a reasonable probability that but for counsel‘s alleged errors, the result of the proceeding would have been different. The transcript of the sentencing hearing indicates that the trial court rejected the state‘s recommendation of a four-year prison term and imposed a harsher sentence because Brewer exhibited a pattern of not complying with orders, including violating the law while released on bond. Ironically, Brewer argues that he completed a SEPTA evaluation and had a TB test, “thus partially complying” with the trial court‘s orders. (Emphasis added.) By contending that he only partially complied with the orders, Brewer essentially concedes that he did not fully comply with them. And Brewer further admits, as he did at the sentencing hearing, that one of the trial court orders he violated required him to abide by the law when he was released on bond pending sentencing; he violated the order because he was pulled over for a marijuana charge.
{¶23} There is no credible evidence in the record to suggest that if Brewer‘s trial counsel had reviewed the PSI before sentencing, requested a recess during sentencing,
{¶24} Under these circumstances, Brewer cannot establish prejudice from his counsel‘s allegedly deficient performance during sentencing. Therefore, his ineffective assistance assignment of error fails. See, e.g., State v. Ramos, 11th Dist. Geauga No. 2007-G-2794, 2008-Ohio-3738, ¶ 29, 33 (claim of ineffective assistance of counsel based in part on trial counsel‘s failure to review presentence investigative report rejected); State v. Barnes, 8th Dist. Cuyahoga No. 94025, 2010-Ohio-4674, ¶ 46 (trial counsel‘s failure to read presentence investigation report or request additional time to do so before sentencing did not constitute ineffective assistance because the record did not establish prejudicial error). We overrule Brewer‘s first assignment of error.
{¶25} In his second assignment of error, Brewer asserts that the trial court abused its discretion when it sentenced him to serve a near maximum prison sentence of seven years.
{¶26} Initially, we must determine the correct standard of review in felony sentencing cases. “Prior to Foster, [109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470], there was no doubt regarding the appropriate standard for reviewing felony sentences. Under the applicable statute, appellate courts were to ‘review the record, including the findings underlying the sentence or modification given by the sentencing court. * * * The appellate court‘s standard for review [was] not whether the sentencing court abused its discretion.
{¶27} In Foster, the Supreme Court of Ohio declared certain provisions of the felony sentencing statutes unconstitutional and excised them because they required judges to make certain factual findings before imposing maximum, non-minimum, or consecutive sentences. The Supreme Court held that insofar as
{¶28} Following Foster, appellate districts applied different standards of review in felony sentencing cases. Kalish at ¶ 3. In Kalish, the Supreme Court of Ohio attempted to resolve the conflicting standard, and a three-judge plurality held that based on the court‘s previous opinion in Foster, “appellate courts must apply a two-step approach when reviewing felony sentences. First, they must examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is satisfied, the trial court‘s decision in imposing the term of imprisonment is reviewed under the abuse-of-discretion standard.” Id. at ¶ 26. A fourth judge concurred in judgment only and advocated a differing standard based on which statutes were being challenged. Id. at ¶ 27-42 (Willamowski, J., concurring). The remaining three judges joined the author of the court‘s decision in Foster in an opinion that stated Foster did not modify the standard for appellate review of felony sentences set forth in
{¶29} In the wake of Kalish, most appellate courts, including this one, followed the two-step standard of review specified by the plurality, even though it had not garnered the support of a majority of the Supreme Court. See, e.g., State v. Tolle, 4th Dist. Adams No. 13CA964, 2013-Ohio-5568, ¶ 22.
{¶30} Following Kalish, however, the United States Supreme Court held contrary to Foster, that it is constitutionally permissible for states to require judges rather than
{¶31} In light of these quickly changing circumstances, many appellate courts have abandoned the standard of review set forth in the Kalish plurality and returned to the standard set forth in the statute. Recently, in State v. Bever, 4th Dist. Washington No. 13CA21, 2014-Ohio-600, ¶ 13, the lead opinion espoused the view that we should adopt the holdings of those other appellate districts that have addressed the issue and hold that the abuse-of-discretion part of the Kalish test no longer controls. In that case, the author of this opinion concurred in judgment because the appeal was manifestly governed by the standard of review in
{¶32} Here, however, Brewer does not assert that the trial court‘s seven-year sentence is contrary to law. Nor does he suggest that his appeal is based on any of the grounds specified in
{¶33} Upon consideration, we join the growing number of appellate districts that have abandoned the Kalish plurality‘s second-step abuse-of-discretion standard of review; when the General Assembly reenacted
{¶34} To be sure, as Judge Froelich pointed out in his concurring opinion in State v. Rodeffer, 2d Dist. Montgomery Nos. 25574 et seq., 2013-Ohio-5759, ¶ 45 (Froelich, J., concurring), it can be asserted that when an appeal is not made under
{¶35} Nevertheless, as Judge Hall pointed out in his concurring opinion in Rodeffer, this strict interpretation of
{¶36} In addition, we must acknowledge that Kalish was merely a plurality opinion. Its standard of review was never made a part of the court‘s syllabus. See Ayers at ¶ 8, noting that the Tenth District Court of Appeals has historically not applied the abuse-of-discretion prong of the Kalish test. Moreover, the basis for the Kalish plurality holding was extinguished when the legislature reenacted
{¶37}
{¶38} Applying this standard of review, as Brewer concedes we must, his seven-year sentence for burglary is not clearly and convincingly contrary to law. Although the plurality opinion in Kalish no longer controls our standard of review of felony sentences, “it may still be utilized in the course of determining whether a sentence is clearly and convincingly contrary to law.” Tammerine, 2014-Ohio-425, at ¶ 15. Consequently, a sentence is generally not contrary to law if the trial court considered the
{¶39} In its amended sentencing entry the trial court specified that it considered the principles and purposes of sentencing under
{¶40} Brewer‘s argument under his second assignment of error is restricted to contending that the trial court abused its discretion in imposing a seven-year sentence because the reasons it cited for departing from the state‘s recommended four-year prison term were unreasonable, arbitrary, and capricious. But as previously discussed, this second part of the Kalish test is no longer applicable.
{¶41} Moreover, even assuming the second step of the Kalish test remains viable, Brewer‘s argument would still fail. The trial court‘s reliance on Brewer‘s failure to follow court orders and instructions, including engaging in criminal conduct while out on bond pending sentencing, justified the imposition of a near-maximum sentence. In addition, the PSI recommended that Brewer be given the maximum term based upon
{¶42} Because Brewer‘s challenge to his felony sentence is meritless, we overrule his second assignment of error.
C. Restitution
{¶43} In his third assignment of error, Brewer argues that the trial court erred and abused its discretion when it ordered him to pay restitution of $1,000 to the victim without first inquiring of Brewer‘s ability to pay as required by
{¶44}
{¶45} We review the totality of the record to determine whether this statutory requirement has been satisfied, so that even if the trial court‘s sentencing entry does not specify that the court considered the defendant‘s ability to pay, the record may indicate that the court did so. State v. Bulstrom, 2013-Ohio-3582, 997 N.E.2d 162, ¶ 15 (4th Dist.).
{¶46} Here, the trial court‘s amended sentencing entry specified that the court “determined that the Defendant has the present and/or future ability to pay restitution.” In that entry, the trial court further noted that it considered the record of the case. The
IV. CONCLUSION
{¶47} Having overruled Brewer‘s assignments of error, we affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Meigs County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
McFarland, J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court
BY: ____________________
William H. Harsha, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.