STATE OF OHIO v. JERMONE CARRINGTON
No. 100918
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
October 16, 2014
[Cite as State v. Carrington, 2014-Ohio-4575.]
McCormack, J., Keough, P.J., and E.T. Gallagher, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-13-576768-A
JUDGMENT: AFFIRMED AND REMANDED
RELEASED AND JOURNALIZED: October 16, 2014
Allison S. Breneman
1220 West 6th Street
Suite 303
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Brett Hammond
Assistant County Prosecutor
9th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
{¶1} Defendant-appellant, Jermone J. Carrington, appeals the trial court‘s judgment that accepted his guilty plea to two counts of felonious assault with firearm specifications and sentenced Carrington to an aggregate prison term of 19 years. For the reasons that follow, we affirm.
Procedural History
{¶2} Carrington was charged under an eight-count indictment that included two counts of attempted murder, four counts of felonious assault, one charge of domestic violence, and one charge of having weapons while under disability. Counts 1 through 6 included one- and three-year firearm specifications and Count 7 (domestic violence) included a furthermore clause that Carrington had previously been convicted of or pleaded guilty to three offеnses of domestic violence.
{¶4} The sentenсing hearing was held on November 25, 2013. The trial court heard statements from Carrington, defense counsel, the state, and the victims. The court also considered the presentence investigation report (“PSI“). The court then sentenced Carrington to eight years incarceration on each felonious assault and three years on the firearm specification, merging the two specifications. The sentence was ordered to be served consecutively, for an aggregate 19 years.
Assignments of Error
- Appellant was denied effective assistance of counsel in violation of Amendments VI and XIV, [of the] United States Constitution, and Article I, Section 10, [of the] Ohio Constitution.
- The trial court erred by imposing consecutive sentences.
Ineffective Assistance of Counsel
{¶6} In order to establish a claim of ineffective assistance of counsel, Carrington must show that his trial counsel‘s performance was deficient in some aspect of his representation and that deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), cert. denied, 497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 768 (1990). Under Strickland, our scrutiny of an attorney‘s representation must be highly deferential, аnd we must indulge “a strong presumption that counsel‘s conduct falls within the range of reasonable professional assistance.” Id. at 688. In Ohio, every properly licensed attorney is presumed to be competent and, therefore, a defendant claiming ineffective assistance of counsel bears the burden of proof. State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985).
{¶7} In proving ineffective assistance in the context of a guilty plea, Carrington must demonstrate that there is a reasonable probability that, but for counsel‘s errors, he would not have pleaded guilty and he would have insisted on going to trial. State v. Wright, 8th Dist. Cuyahoga No. 98345, 2013-Ohio-936, ¶ 12. As this court has previously recognized:
[W]hen a defendant enters a guilty plea as part of a plea bargain, he waives all appealable errors that may have occurred at trial, unless such errors are shown to have precluded the defendant from entering a knowing and voluntary plea. State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991). “A failure by counsel tо provide advice [which impairs the knowing and voluntary nature of the plea] may form the basis of a claim of ineffective assistance of counsel, but absent such a claim it cannot serve as the predicate for setting aside a valid plea.” United States v. Broce, 488 U.S. 563, 574, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). Accordingly, a guilty plea waives the right to claim that the accused was prejudiced by constitutionally ineffective counsel, except to the extent the defects complained of caused the plea to be less than knowing and voluntary. State v. Barnett, 73 Ohio App.3d 244, 248, 596 N.E.2d 1101 (2d Dist.1991).
State v. Milczewski, 8th Dist. Cuyahoga No. 97138, 2012-Ohio-1743, ¶ 5 (finding that even if counsel was deficient for failing to request a competency evaluation, defendant did not show that but for the error, he would not have pleaded guilty).
{¶8}
{¶10} Here, Carrington claims that his depression prevented him from acting in a voluntary manner during his plea and his counsel‘s failure to request a mental health evaluation resulted in ineffective assistance. He also claims that his failure to receive discovery information рrevented him from making an intelligent decision. We find that the record in this case does not support Carrington‘s claim.
{¶11} At the plea hearing, the trial court fully complied with
{¶13} The court also ensured that Carrington had not been promised anything in exchange for his plea, his plea was voluntary, and he was satisfied with his counsel‘s representation. With respect to representation, the court specifically inquired whether Carrington had enough time with his attorney and whether he was satisfied with the reрresentation, to which Carrington replied in the affirmative to both questions.
{¶15} Thereafter, the trial court advised Carrington of his constitutional rights, including the right to representation, a jury trial, the state proving its case beyond a reasonable doubt, confrontation, compulsory process, and the right to remain silent. Finally, the court advised Carrington that a plea of guilty would constitute a complete admission of the truth of the charges and that by pleading guilty, he waived the rights as explained to him. Carrington answered that he understood the court‘s advisement. The court then found that Carrington made a knowing, intelligent, and voluntary decision to plead. And the record as reflected above supports the trial court‘s finding.
{¶17} Likewise, Carrington has failed to provide evidence in the record that counsel did not provide all discovery information when requested, such as witnеss statements, or how the alleged lack of information resulted in his plea being less than knowing and voluntary. He has therefore failed to show how his alleged failure to receive the discovery information has prejudiced him.
{¶18} Based upon the above, we find that Carrington failed to demonstrate that counsel‘s failure to obtain a mental health evaluation, as well as counsel‘s alleged failure to provide Carrington with certain discovery information, caused his plea to be less than knowingly, voluntarily, and intelligently made. Carrington has therefore not shown that counsel was deficient and that but for this deficiency, he would not have pleaded guilty.
{¶19} Carrington‘s first assignment of error is overruled.
{¶20} In his second assignment of error, Carrington claims that the trial court erred by imposing consecutive sentences. Specifically, he argues that the imposition of consecutive sentences was contrary to the felony sentencing guidelines because the court did not give consideration to each relevant sentencing factor; rather, it merely listed each factor.
{¶21}
{¶23} In State v. Long, 138 Ohio St.3d 478, 2014-Ohio-849, 8 N.E.3d 890, ¶ 17-18, the Supreme Court of Ohio explained these two statutes as follows:
In Ohio, two statutory sections serve as a general guide for every sentencing. First,
R.C. 2929.11(A) provides that the overriding purposes of felony sentencing “are to protect the public from future crime by the offender and others and to punish the offender.” To achieve these purposes, the trial court “shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution.” Id. The sentence must be “commensurate with and not demeaning to the seriousness of the offender‘s conduct and its impact upon the victim, and consistent with sentences imposed for similаr crimes committed by similar offenders.”R.C. 2929.11(B) . * * *
Second,
R.C. 2929.12 specifically provides that in exercising its discretion, a trial court must consider certain factors that make the offense more or less serious and that indicate whether the offender is more or less likely to commit future offenses. * * *R.C. 2929.12(C) and(E) also permit a trial court to consider “any other relevant factors” to determine that an offense is less serious or that an offender is less likely to recidivate. * * *
{¶24} This court has held that a trial court “fulfills its duty under the statutes by indicating that it has considered the relevant sentencing factors.” Smith at ¶ 14, citing State v. Saunders, 8th Dist. Cuyahoga No. 98379, 2013-Ohio-490, ¶ 4. The trial court “need not go through each factor on the record — it is sufficient that the court acknowledges that it has complied with its statutory duty to consider the factors without further elaboration.” Id., citing State v. Pickens, 8th Dist. Cuyahoga No. 89658, 2008-Ohio-1407, ¶ 6. In fact, consideration of the appropriate factors set forth in
{¶26} To the extent Carrington argues that the trial court did not consider the sentencing purposes stated in
{¶28} To the extent Carrington argues that the trial court did not make the requisite consecutive sentence findings under
{¶29} Under
{¶30}
If multiple prison terms are imposеd on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the оffender poses to the public, and if the court also finds any of the following:
(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 more 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 neсessary to protect the public from future crime by the offender.
{¶31} The presumption in Ohio is that sentencing is to run concurrent, unless the trial court makes the
{¶33} At the sentencing hearing in this case, the court heard statements from Carrington and defense counsel, and it considered the PSI. The court noted that Carrington has been convicted ten times, beginning as a juvenile, stating, “Even as a juvenile he was beating people up * * * He ain‘t nevеr missed a beat * * * [H]e always has something going. He doesn‘t miss years, * * * he has regular contact with us.” In reiterating the facts of this case, the court noted that Carrington “shot the wife, the girlfriend, and then * * * he chased the son down the street shooting at him. And shot him. He chased him down in the ground.”
{¶35} Thereafter, the trial court made separate and distinct findings under
The court does find that consecutive sentences are necessary to protect the public from future crimes. And in support of that, the court does find thаt this is your tenth violation for either domestic violence or felonious assault.
That consecutive sentences are necessary to punish the offender. The court does find that although you have been punished previously for acts of violence against other human beings, that it has not deterred you from committing further acts.
That consecutive sentences are not disproportionate to the seriousness of yоur conduct. And that consecutive sentences are not disproportionate to the danger that you pose to the public. The court finds that you pose [a] danger because you continue to engage in the same conduct where you cause harm to other human beings.
The court further finds that your history of criminal conduct demonstrates that consecutive sentences are necessary to proteсt the public from future crimes by you.
{¶37} In light of the above, we find that the trial court satisfied the requiremеnts of
{¶38} However, the trial court must incorporate the findings to impose consecutive sentences into its sentencing entry. Bonnell, Slip Opinion No. 2014-Ohio-3177, at ¶ 29. The failure to include the findings is a “clerical mistake” and does not render the sentence contrary to law. Id. at ¶ 30, citing State v. Qualls, 131 Ohio St.3d 499, 2012-Ohio-1111, 967 N.E.2d 718, ¶ 15. The omission may therefore be corrеcted through a nunc pro tunc entry “to reflect what actually occurred in open court.” Id.
{¶39} The trial court‘s sentencing entry in this case does not include the consecutive sentence findings. Therefore, in accordance with Bonnell, we remand to the trial court for the limited purpose of incorporating the consecutive sentence findings made at sentencing into the court‘s entry.
{¶40} Judgment affirmed, and case remanded.
It is ordered that appelleе recover of 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
TIM McCORMACK, JUDGE
KATHLEEN ANN KEOUGH, P.J., and
EILEEN T. GALLAGHER, J., CONCUR