STATE OF OHIO v. EDWIN CARRION
Nos. 103393 and 103394
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
May 12, 2016
[Cite as State v. Carrion, 2016-Ohio-2942.]
Celebrezze, J., Keough, P.J., and S. Gallagher, J.
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case Nos. CR-15-593574-B and CR-15-595550-A
Michael H. Murphy
20325 Center Ridge Road, Suite 512
Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Kerry A. Sowul
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant, Edwin Carrion (appellant), brings this appeal challenging the trial court’s sentences for drug possession and having weapons while under disability. Specifically, appellant argues that the trial court’s sentences were not commensurate with his offenses and that he was denied effective assistance of counsel. After a thorough review of the record and law, this court affirms.
I. Factual and Procedural History
{¶2} Appellant was arrested at his place of employment, Vape Zone in Cleveland, Ohio, for possessing heroin and K2, otherwise known as spice. In Cuyahoga C.P. No. CR-15-593574-B, appellant pled guilty to two counts of drug possession, fifth-degree felonies in violation of
{¶3} In a separate and unrelated incident, appellant’s firearm was stolen from a backpack in his car. The firearm was subsequently used in an aggravated burglary and recovered by the investigating officers. Officers found appellant’s fingerprints on the firearm. In Cuyahoga C.P. No. CR-15-595550-A, the Cuyahoga County Grand Jury returned a three-count indictment charging appellant with (1) aggravated burglary, in violation of
{¶4} The trial court ordered appellant to serve the sentences in CR-15-593574-B and CR-15-595550-A concurrently, for a total of 36 months of imprisonment. The trial court ordered 36 months of discretionary postrelease control pursuant to
{¶5} Appellant filed the instant appeal assigning two errors for review:
- The sentence handed down from the trial court was not commensurate with the crime committed.
- Appellant was not afforded effective assistance of counsel.
II. Law and Analysis
A. Trial Court’s Sentence
{¶6} In his first assignment of error, appellant argues that the trial court’s sentence was not commensurate with the offenses he committed. Appellant contends that the trial court’s sentence was more punitive than rehabilitative, and too onerous based on the facts in the record.
{¶7} When reviewing felony sentences, this court may increase, reduce, or modify a sentence, or it may vacate and remand the matter for resentencing, only if we clearly and convincingly find that either the record does not support the sentencing court’s statutory findings or the sentence is contrary to law.
{¶8} When sentencing a defendant, the court must consider the purposes and principles of felony sentencing set forth in
{¶9} The sentencing court must consider the seriousness and recidivism factors set forth in
{¶10}
{¶11} In the instant matter, appellant asks this court to find his sentence to be arbitrary, capricious, and disproportionate to his offenses. Appellant argues that the trial court’s imposition of the maximum sentences is clearly excessive in nature and contrary to the principles of fair play and substantial justice. We disagree.
{¶12} The trial court sentenced appellant within the statutory range.
{¶13} Appellant further contends that the trial court failed to state that it weighed the factors regarding his conduct and failed to state the necessary language regarding whether the sentence was necessary to protect the public and punish him.
{¶14} The trial court’s sentencing journal entry states, in relevant part, [t]he court considered all required factors of the law. The court finds that prison is consistent with the purpose of
{¶15} Aside from the trial court’s notation in the sentencing entry that it considered all required factors of law including, specifically,
{¶16} The state recommended that the trial court sentence appellant to prison based on his extensive criminal record and the fact that one of these cases involves a gun, and the other involves drugs[.] The trial court heard appellant’s and his counsel’s arguments in mitigation at the sentencing hearing. The trial court obtained a presentence investigation report for appellant and noted (1) his significant criminal history, (2) his probation violation in Cuyahoga C.P. No. CR-13-579131-A, and (3) the probation officer’s classification of appellant as very high risk. The trial court emphasized that the instant offenses are appellant’s 16th and 17th felonies.
{¶17} In CR-13-579131-A, appellant pled guilty to drug possession, a felony of the fifth degree in violation of
{¶18} In determining the appropriate sentence for appellant, the trial court stated:
As much as you’ve been attempting to do the right thing or go down the right path, to some degree, I think you should be — I guess I should acknowledge that as a good intent on your part and perhaps some good conduct.
But on the other side and how you’re doing it is just representative of the problem you’ve had since 1991. And you don’t leave me, in my mind, with too many options as to try to see if we can make something out of your life that’s different than the first — or the last 20 years or so.
You’re 42 years of age. The Probation Department considers you not only a high risk, but a very high risk, so it seems to me that my choices are pretty limited as to what I think is appropriate to be done in this situation.
Furthermore, the trial court stated:
You’ve got the ability to do better. You need to get some treatment through post-release control. And you know the path to a better life. You’ve just got to figure out how to get there.
{¶19} Accordingly, appellant’s argument that the trial court failed to consider the relevant statutory factors under
{¶20} In State v. Dodson, 8th Dist. Cuyahoga No. 100347, 2014-Ohio-2272, defendant-appellant argued that the trial court failed to make the second
{¶21} In the instant matter, the trial court was neither required to use talismanic words nor the precise language of
{¶22} Accordingly, appellant’s first assignment of error is overruled.
B. Ineffective Assistance of Counsel
{¶23} In his second assignment of error, appellant argues that trial counsel’s failure to offer mitigating evidence at sentencing constituted ineffective assistance. Specifically, appellant argues that trial counsel failed to address his substance abuse issue at sentencing.
{¶24} Reversal of a conviction for ineffective assistance of counsel requires a defendant to show that (1) counsel’s performance was deficient, and (2) the deficient
{¶25} To establish ineffective assistance of counsel, a defendant must show (1) deficient performance by counsel, i.e., performance falling below an objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for counsel’s errors, the proceeding’s result would have been different. Strickland at 687-688, 694; Bradley at paragraphs two and three of the syllabus.
{¶26} In evaluating a claim of ineffective assistance of counsel, a court must give great deference to counsel’s performance. Strickland at 689. A reviewing court will strongly presume that counsel rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment. State v. Pawlak, 8th Dist. Cuyahoga No. 99555, 2014-Ohio-2175, ¶ 69.
{¶27} In the instant matter, regarding the first Strickland prong, appellant argues counsel’s assistance was ineffective because he failed to request a substance abuse
{¶28} First, appellant explained his actions to the trial court. Appellant advised the trial court that he had been around drugs all [his] life. Appellant stated that on the day he was arrested for drug possession, he had bonded out of jail from a child support hold. Appellant stated that going to jail was a trigger for him:
That was a trigger for me, I guess. Going to jail, I spent all my money getting out, my rent money, my daughter’s karate money. It was just a trigger.
The first thing I wanted to do was get high, and that’s what I did.
Appellant further explained that he had been on the right path and was complying with the terms of his probation in CR-13-579131-A:
I did a year and a month clean with Judge Astrab. I paid all my fines, court costs, went to all programming, even went to AA/NA for the entire year and a half, four times a week. Did schooling.
I thought I was over [the drug use]. I thought I kicked the habit. I didn’t. One trigger just caused everything, a chain of events. It’s like the domino effect. Everything went downhill from there.
{¶29} Second, appellant’s counsel informed the trial court that appellant may need treatment for alcoholism. Appellant’s counsel stated that appellant had drug problems in the past and had relapsed. Furthermore, appellant’s counsel stated, [appellant], obviously, has, you know, was clean for a year before he picked up these new charges and, you know, he would be amenable to community control sanctions and, you know, maybe some drug treatment, along those lines.
{¶30} In support of his ineffective assistance of counsel claim, appellant emphasizes the following colloquy that took place at the change of plea hearing:
The Court: Is there a request for a referral for mental health issues or substance abuse issues?
Appellant’s counsel: No, your honor.
Appellant claims that his substance abuse problem was evident based on his extensive criminal history of drug-related charges. Furthermore, appellant argues that his counsel was aware of his substance abuse problem, and that he was unduly prejudiced by counsel’s failure to request a substance abuse referral. We disagree.
{¶31} Based on the statements of appellant and his counsel, the trial court was aware of appellant’s substance abuse issue. The trial court acknowledged that appellant’s drug use seems to be the problem here. Furthermore, because the trial court ordered a presentence investigation report (PSI), the trial court had access to all of the pertinent information regarding appellant’s history of drug-related charges. There is no indication as to what appellant’s counsel could have presented at sentencing regarding his substance abuse issue that the trial court was not already aware of.
{¶32} Regarding the second Strickland prong, appellant argues that counsel’s failure to request a substance abuse referral directly affecting the sentencing and ultimately resulted in [appellant] being sentenced to 36 months in prison, the maximum amount, on all charges.
{¶33} Assuming, arguendo, that counsel’s failure to request a substance abuse referral constituted deficient performance, appellant cannot demonstrate that he was
{¶34} We find no merit to appellant’s argument that he would not have received the maximum sentences for having weapons while under disability and drug possession if his counsel had requested a substance abuse referral. As previously stated, the trial court was aware of appellant’s substance abuse issue based on appellant’s and his counsel’s statements, and the PSI report illustrating appellant’s history of drug-related charges. Appellant cannot demonstrate that the trial court’s sentence would have been different if his counsel had raised his substance abuse issue or requested a substance abuse referral.
{¶35} At the sentencing hearing, the trial court acknowledged appellant’s recurring drug problem. However, based on appellant’s lengthy criminal history, the fact that he committed the having weapons while under disability and drug possession offenses while he was on probation in CR-13-579131-A, and the probation officer’s classification of appellant as very high risk, the trial court imposed the maximum sentences.
{¶36} Accordingly, appellant cannot meet his requirement of demonstrating prejudice under Strickland.
{¶37} Based on the foregoing analysis, we cannot say that appellant’s counsel rendered ineffective assistance. Appellant’s second assignment of error is overruled.
III. Conclusion
{¶39} Appellant’s counsel did not render ineffective assistance of counsel by failing to request a substance abuse referral. Based on appellant’s and his counsel’s statements during the sentencing hearing, the trial court was aware of appellant’s substance abuse issue. The trial court specifically acknowledged that appellant’s drug use seems to be the problem here. There is no indication as to what appellant’s counsel could have presented at sentencing regarding his substance abuse issue that the trial court was not already aware of. Finally, appellant cannot demonstrate a reasonable probability that the result would have been different if his counsel had requested a substance abuse referral. Accordingly, appellant’s second assignment of error is overruled.
{¶40} Judgment affirmed.
It is ordered that appellee 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 Rule 27 of the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
KATHLEEN ANN KEOUGH, P.J., and
SEAN C. GALLAGHER, J., CONCUR