2007 Ohio 559 | Ohio Ct. App. | 2007
Lead Opinion
{¶ 2} Appellee is State of Ohio.
{¶ 4} Appellant hired Attorney Jeff Jakmides to represent him.
{¶ 5} Appellant entered pleas of not guilty and the matter proceeded to disposition before the Hon. John G. Haas of the Stark County Common Pleas Court.
{¶ 6} Prior to the trial in this matter, Appellant changed his former pleas of "not guilty" to pleas of "guilty" as charged.
{¶ 7} On September 29, 2004, Appellant returned to the trial court for sentencing. For purposes of sentencing, the trial court merged the felonious assault counts with the attempted murder counts and sentenced Appellant to serve four (4) years on the first count of attempted murder and three (3) years on the second count of attempted murder to run consecutively for a seven (7) year aggregate prison terms.
{¶ 8} The October 6, 2004, Judgment Entry of the trial court reflects that the sentence of seven years is authorized by law and jointly approved by the defendant and the prosecution.
{¶ 9} Appellant did not file a notice of appeal within the 30 day statutory time limit prescribed by App. R. 4(A).
{¶ 10} On June 28, 2005, Appellant moved the trial court to vacate his sentence.
{¶ 11} The trial court overruled the motion.
{¶ 12} On September 13, 2005, Appellant filed a "joint" motion with brother and co-defendant, Adam Carrico, for leave to appeal.
{¶ 13} On October 4, 2005, that motion was denied by this Court. The Ohio Supreme Court also denied his leave to appeal.
{¶ 14} On December 16, 2005, Appellant filed this second delayed appeal.
{¶ 15} This Court granted his motion to file a delayed appeal, citingState v. Foster,
{¶ 16} Appellant now appeals, assigning the following errors for review:
{¶ 18} "II. WHETHER THE TRIAL COURT FAILURE TO SENTENCE ILLEGALLY UNDER THE BLAKELY V. WASHINGTON AND STATE V. FOSTER.
{¶ 19} "III. WHETHER THE TRIAL COURT FORCING APPELLANT TO PAY RESTITUTION WITHOUT JUDICIAL PROCESS AMOUNT TO BILL ATTAINDER.
{¶ 20} "IV. WHETHER THE TRIAL COURT COUNSEL WAS INEFFECTIVE FOR FAILING TO DETECTIVE INDICTMENT AND OBJECTING TO THIS DEFECTIVE INDICTMENT."
{¶ 22} Specifically, Appellant argues that his trial counsel failed to object to a defective indictment and also failed file an appeal of his conviction and sentence.
{¶ 23} The standard of reviewing claims ineffective assistance of counsel is set forth in Strickland v. Washington (1984),
{¶ 24} In his fourth assignment, Appellant argues that the indictment in this matter was defective because it named both he and his brother and that the offenses charged "could not have been committed by two people at the same time with [the] same knife." (Appellant's brief at 8).
{¶ 25} In addition to failing to find that the indictment was deficient based on the foregoing argument, this Court finds that Appellant waived his right to object to any defects in the indictment when he entered a guilty plea to the charges in this case, State v.Barton,
{¶ 26} It should also be noted that Appellant has failed to file a transcript of the sentencing hearing in this matter. An appellant is required to provide a transcript for appellate review. Knapp v. EdwardsLaboratories (1980),
{¶ 27} Upon review, we find that Appellant has presented no evidence to support his contention that his trial counsel promised to file an appeal for him and then failed to do so. Thus, the trial transcript is also necessary for a thorough review of the appellant's contentions. As appellant has failed to provide this court with a transcript, we must presume regularity of the proceedings below.
{¶ 28} Upon review of the record, we do not find that counsel's performance fell below an objective standard of reasonable representation and violative of any of his essential duties he owed to appellant. Therefore, it is not necessary that we address the second prong of the test set forth in Strickland and Bradley.
{¶ 29} Appellant's first and fourth assignments of error are overruled.
{¶ 31} In the case at bar, the sentence imposed by the sentencing judge was recommended jointly by Appellant and the State. The Supreme Court of Ohio has held that "[o]nce a defendant stipulates that a particular sentence is justified, the sentencing judge need not independently justify the sentence." State v. Porterfield,
{¶ 32} "The General Assembly intended a jointly agreed-upon sentence to be protected from review precisely because the parties agreed that the sentence is appropriate." Porterfield, supra, at ¶ 25. The theory behind the refusal to review agreed-upon sentences is still valid, even after State v. Foster,
{¶ 33} In sum, because appellant's sentence was authorized by law and jointly recommended by him and the State, it is not subject to appellate review pursuant to R.C.
{¶ 34} Accordingly, appellant's second assignment of error is overruled.
{¶ 36} Appellant argues that the trial court's order of restitution amounts to a "bill of attainder".
{¶ 37} Upon review of the record, this Court fails to find an order of restitution in the case sub judice, finding only that Appellant was ordered to pay court costs.
{¶ 38} "[C]osts are taxed against certain litigants for the purpose of lightening the burden on taxpayers financing the court system."Strattman v. Studt (1969),
{¶ 39} Appellant's third assignment of error is overruled.
{¶ 40} This cause is affirmed.
By: Boggins, J., Wise, J. concurs Hoffman, P.J. concurs separately.
Concurrence Opinion
{¶ 41} I concur in the majority's analysis and disposition of appellant's second and third assignments of error.
{¶ 42} I concur in judgment only with the majority's disposition of appellant's first and fourth assignments of error.
