STATE OF OHIO, PLAINTIFF-APPELLEE, VS. JOSHUA ALAN COLOGIE, DEFENDANT-APPELLANT.
CASE NO. 17 BE 0009
STATE OF OHIO, BELMONT COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
December 22, 2017
[Cite as State v. Cologie, 2017-Ohio-9217.]
Hon. Carol Ann Robb, Hon. Gene Donofrio, Hon. Mary DeGenaro
CHARACTER OF PROCEEDINGS: Criminаl Appeal from the Court Of Common Pleas of Belmont County, Ohio Case No. 16 CR 299. JUDGMENT: Affirmed. APPEARANCES: For Plaintiff-Appellee: No Brief Filed. For Defendant-Appellant: Atty. John D. Falgiani, Jr., P.O. Box 8533, Warren, OH 44484.
{¶1} Defendant-Appellant Joshua Cologie appeals from his convictions entered in Belmont County Common Pleas Court for two counts of gross sexual imposition. Appellant‘s counsel filed an Anders brief and requested leave to withdraw. A review of the case file and brief reveals thеre is no merit with this appeal. Accordingly, appointed counsel‘s motion to withdraw is granted, and the convictions are affirmed.
Statement of the Case
{¶2} Appellant was indicted on December 7, 2016 for three counts of gross sexual imposition in violation of
{¶3} A plea agreement was reached by the state and Appellant. The state agreed to dismiss count three of the indictment and Appellant agreed to plead guilty to counts one and two of the indictment. 1/20/17 J.E. After the plea colloquy, the trial court accepted the guilty plea and dismissed count three of the indictment. 1/20/17 J.E.; 1/19/17 Plea Tr. 12.
{¶4} Sentencing occurred on February 6, 2017. Appellant received an aggregate sentence of 120 months; he received 60 months for each gross sexual imposition conviction and those sentences were ordered to be served consecutively. 2/7/17 J.E. In addition to the prison term, Appellant was sentenced to 5 years of post-release control and he was advised of the consequences for violating post-release control. 2/7/17 J.E. Appellant was designated a Tier II sex offender and informed of his reporting requirements. 2/7/17 J.E.
{¶5} Appellant timely appealed his convictions. After rеviewing the record, appointed counsel filed an Anders brief and moved to withdraw as counsel.
ANALYSIS
{¶6} When appellate counsel seeks to withdraw and discloses there are no meritorious arguments for appeal, the filing is known as an Anders brief or a no-merit brief. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396 (1967). In this district, it is
{¶7} In Toney, this court set forth the procedure to be used when counsel of record determines that an indigent‘s appeal is frivolous:
- Where court-appointed counsel, with long and extensive experience in criminal practice, concludes that the indigent‘s appeal is frivolous and that there is no assignment of error which could be arguably supported on appeal, he should so advise the appointing court by brief and request that he be permitted to withdraw as counsel of record.
- Court-appointed counsel‘s conclusions and motion to withdraw as counsel of record should be transmitted forthwith to the indigent, and the indigent should be granted time to raise any points that he choоses, pro se.
- It is the duty of the Court of Appeals to fully examine the proceedings in the trial court, the brief of appointed counsel, the arguments pro se of the indigent, and then determine whether or not the appeal is wholly frivolous.
***
- Where the Court of Appeals determines that an indigent‘s appeal is wholly frivolous, the motion of court-appointed counsel to withdraw as counsel of record should be allowed, and the judgment of the trial court should be affirmed.
Id. at syllabus.
{¶8} The Anders brief was filed by appellate counsel on June 2, 2017. In that brief, appellate counsel identified three potential issues for appeal and determined there were no reasonable, arguable issues. Appellant was notified of appellate counsel‘s Anders brief and was granted 30 days to file his own written brief.
Plea
{¶9}
{¶10} The constitutional rights are: 1) a jury trial; 2) confrontation of witnesses against him; 3) the compulsory process for obtaining witnesses in his favor; 4) the state must prove the defendant‘s guilt beyond a reasonable doubt at trial; and 5) the defendant cannot be compelled to testify against himself.
{¶11} The nonconstitutional rights the defendant must be informed of are: 1) the nature of the charges; 2) the maximum penalty involved, which includes, if applicable, an advisement on post-release control; 3) if applicable, that the defendant is not eligible for probation оr the imposition of community control sanctions; and 4) after entering a guilty plea or a no contest plea, the court may proceed directly to judgment and sentencing.
{¶12} The record indicates the trial court‘s advisement on the constitutional rights strictly complied with
{¶13} As to the nonconstitutional rights, the trial court‘s advisement substantially complied with
{¶14} Consequently, for the above reasons, there are no appealable issues concerning the plea. The record confirms that the plea was intelligently, voluntarily, and knowingly entered.
Sentencing
{¶16} Review of felony sentences is governed by
{¶17} A sentence is clearly and convincingly contrary to law if the sentence falls outside the statutory range for the particular degree of offense, the trial court failed to consider the purposes and principles of felony sentencing set forth in
{¶18} A violation of
{¶19} The trial court‘s imposition of five years of post-release control also complied with the statutory mandates.
{¶20} Appellant‘s classification as a Tier II sex offender also cоmplied with the statutes.
{¶21} In rendering the 60 month sentence for each conviction, the trial court cоnsidered the purposes and principles in
The Court, in sentencing, may, in its discretion to determine the most effective way to comply with the principles and purposes of sentencing
set forth in Revised Code §2929.12(B), (C), (D), and (E) and any other factors relevant to achieving those purposes and principles. In light of that guidance, the Court finds that the factors contained in
Ohio Revised Code §2929.12(B) and(D) and in§2929.13(B)(2) which indicate more serious conduct and more likelihood of recidivism include thе following:
- As an adult, Defendant has convictions for OVI (3), No Operator‘s License (M-1: 1), Failure to Control (4) and safety belt nonuse;
- Defendant‘s victim suffered physical and psychological harm which was exacerbated by her young age;
- Defendant held a position of trust as the caregiver of the child;
- Defendant‘s relationship with the victim facilitated the offense;
- Defendant was a custodian and the victim was a household member;
- Defendant shows a pаttern of drug and alcohol abuse and blames this misconduct upon that abuse;
- Defendant shows little genuine remorse and blames his nine (9) year old victim for initiating the sexual contact and excuses the sexually abusive conduct by claiming the child enjoyed what he was doing; and
- Defendant already received consideration when Count III was dismissed.
In accordance with
Ohio Revised Code §2929.12(C) and(E) , which suggest that his conduct is less serious and that recidivism is less likely, the Court can find no factors in Defendant‘s favor.The Court further finds in accordance with
Ohio Revised Code § 2929.11(A) , that the overriding purposes of felony sentencing are to protect the public from future crime by the offender and others to punish the offender, using the minimum sanctions that the Court determines accomplishes these purposes, without imposing an unnecessary burden on State and local government resources. In this case, the message must be clear that adults may not engage in sexual behavior with children.
2/7/17 J.E.
Very similar statements were made at the sentencing hearing:
The Court in sentencing has discretion to determine the most effective way to comply with the principles and purposes of sentencing, considering, however, the seriousness and recidivism factors that are relevant to achieving those purposes and principles.
The factors that indicate more serious conduct, more likelihood of recidivism, the Court finds are as follows: As an adult, you do have convictions for OVI, three of those; no operator‘s license; failure to control, there‘s four of those; and there‘s a seatbelt offense. No felonies, as Mr. Ryncarz [defense counsel] has pointed out. The victim suffered physical and psychological harm, which is exacerbated by her young age. You held a possession [sic] of trust as the caregiver of that child. Your relationship with the child facilitated the offense. You were a custodian. The victim wаs a household member. There‘s a pattern of drug and alcohol abuse. You blame that for your misconduct. Again, you have done that today.
Other than today, I haven‘t seen a showing of any real genuine remorse, and the two factors that primarily stand out to me, Mr. Cologie, are the following: You accused the child of initiating contact and you said it was okay in your mind, because she enjoyed it. You‘ve already received consideration whеn Count III was dismissed.
The factors that indicate less serious conduct, less likelihood of recidivism, there simply aren‘t any. Again, the purposes of felony sentencing are to protect the public from future crime by you and others, and to punish you using the minimum sanctions that accomplish those purposes without imposing an unnecessary burden on state or local government resources. In this case, the message has to be clear that adults may not engage in sexual behavior with children.
2/6/17 Sentencing Tr. 8-9.
{¶22} The record in this case, including the PSI, indicates the trial court‘s statements regarding Appellant‘s record, remorse, and relationship with the child are accurate. Accordingly, the record confirms the trial court did consider the factors and the principles and purposes of sentencing, and the sentence imposed was not clearly and convincingly contrary to law.
{¶23} Our review moves to the trial cоurt‘s imposition of consecutive sentences. 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, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple оffenses 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 consecutivе sentences are necessary to protect the public from future crime by the offender.
At the sentencing hearing, the trial court stated:
The Court is also going to find in this matter that prison terms are necessary and that they must be consecutive so as to protect the public and to punish you. Consecutive terms are not disproportionate with your conduct. The harm that you caused is so great or unusual that a single term does not adequately reflect the seriousness of your conduсt. Consecutive terms are necessary to protect the public from you. You engaged in sexually molesting this child over a period of 15 months. That‘s the hell that she lived.
2/6/17 Sentencing Tr. 9-10.
{¶24} These statements constitute a
{¶25} The trial court was also required to state the findings in the sentencing judgment entry. In the entry the court stated:
The Court finds that consecutive prison terms are necessary in this action so as to protect the public and to punish this Defendant. The Court further finds that consecutive terms are not disproportionate with Defendant‘s conduct. The harm in Defendant‘s conduct was so great or unusual that a single term does not adequately reflect the seriousness of his conduct, and Defendant‘s criminal history shows that consecutive terms are needed to protect the public from him. Defendant engaged in this sexual molestation over a period of fifteen (15) months.
2/7/17 J.E.
{¶26} This statement is very similar to the statements made at the sentencing hearing. Thus, for the same reasons espoused above, the statement demonstrates compliance with
Ineffective Assistance of Counsel
{¶28} We review а claim of ineffective assistance of counsel under a two-part test, which requires the defendant to demonstrate: (1) trial counsel‘s performance fell below an objective standard of reasonable representation; and (2) prejudice arose from the deficient performance. State v. Bradley, 42 Ohio St.3d 136, 141-143, 538 N.E.2d 373 (1989), citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Both prongs must be established; if the performance was not deficient, then there is no need to review for prejudice and vice vеrsa. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000).
{¶29} A voluntary guilty plea waives an ineffective assistance of counsel claim except to the extent that counsel‘s performance causes the waiver of Defendant‘s trial rights and the entry of his plea to be less than knowing and voluntary. State v. Fatula, 7th Dist. No. 07 BE 24, 2008-Ohio-1544, ¶ 9. Where a defendant has entered a guilty plea, the defendant can prevail on an ineffective assistance of counsel claim only by demonstrating that there is a reasonable probability that, but for counsel‘s deficient performance, he would not have pled guilty to the offenses at issue and would have insisted on going to trial. State v. Wilson, 7th Dist. No. 15 BE 0074, 2016-Ohio-8548, ¶ 16, citing State v. Williams, 8th Dist. No. 100459, 2014–Ohio-3415, ¶ 11.
{¶30} The record in this case does not support a claim there is a reasonable probability Appellant would not have pled guilty absent counsel‘s deficient performance. In fact, nothing in the record even suggests deficient performance.
{¶31} Furthermore, as discussed above, the plea colloquy complied with
{¶32} Given all the above, including the admitted facts and the plea agreement, there is nothing to suggest counsel‘s performance was deficient or that Appellant was prejudiced in any way. There are no appealable issues regarding a claim for ineffective assistance of counsel.
Conclusion
{¶33} For all the above stated reasons, counsel‘s motion to withdraw is granted, and the convictions are affirmed.
Donofrio, J., concurs.
DeGenaro, J., concurs.