State v. DavisState v. Davis
{¶ 1} Appellant, Terrance Davis, appeals the August 25, 2016 judgment of the Lucas County Court of Common Pleas, where he was convicted of aggravated robbery in violation of
{¶ 2} On November 20, 2015, appellant was indicted for aggravated robbery in violation of
{¶ 3} On August 3, 2016, appellant entered a plea to the aggravated robbery pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Appellee dismissed the felonious assault charge in exchange for the plea.
{¶ 4} In open court, appellee discussed the factual basis on which it would have relied to prove the case against appellant.
{¶ 5} Appellee stated that, based on video surveillance, a 77-year old victim was grocery shopping at Gordon Foods in Toledo, Ohio. Upon exiting the store, the victim placed her purse on the driver‘s seat of her vehicle and unloaded groceries. A car then pulled into the lot and parked next to her. As she finished unloading groceries, she locked her car and walked her cart back to the store. While she was away, the driver of the car next to her attempted to open the side door of her car in an attempt to take the victim‘s purse.
{¶ 6} Appellant was the suspect-driver. He waited for the victim to come back to her car. When she returned and opened her car door, appellant hit and pushed her, which caused her to fall straight back onto the concrete. He then took her purse and drove away. The victim was transported to the hospital where she received several staples to
{¶ 7} After appellee concluded with those facts, the court addressed appellant and proceeded with its Crim.R. 11 colloquy. The court accepted the plea, and found appellant guilty of aggravated robbery. The matter was set for sentencing on August 24, 2016.
{¶ 8} At sentencing, appellee, appellant‘s trial counsel, appellant, and the victim all made statements. The court sentenced appellant to 10 years in prison, and imposed a postrelease control period of 5 years. The sentence was journalized on August 25, 2018, and it is from this judgment appellant now appeals.
Anders Brief
{¶ 9} On October 20, 2017, appellant‘s counsel filed a request to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel asserted that, after thoroughly reviewing the transcript of the proceedings in the trial court and the applicable case law, no meritorious assignments of error could be presented. Counsel did, however, submit the following four potential assignments of error:
- The trial court erred when it sentenced appellant without providing access to a presentence report.
- The trial court erred when it denied the appellant his due process rights to a fair and impartial presentence report.
The appellant was denied effective assistance of counsel. - The trial court erred when it sentenced appellant without providing the proper notification of appellate rights.
{¶ 10} The state also filed an Anders brief, concurring with the conclusion of appellant‘s counsel that there was no arguable basis for a valid assignment of error and urging this court to permit counsel to withdraw. Appellant filed a pro se brief, citing the following assignments of error:
- Defendant-appellant was deprived of his liberty without due process of law when the state persecuted (sic) and proffered unproven and inaccurate statements of facts in the plea and sentencing hearing to elicit trial court to impose maximum sentence.
- Defendant-appellant was deprived of his liberty without due process of law when the trial court imposed maximum sentence based on unproven and inaccurate facts proffered by the state and without complying with Ohio‘s current sentencing requirements.
{¶ 11} The procedure to be followed by appointed counsel who desires to withdraw for want of a meritorious, appealable issue is set forth in Anders, as well as State v. Duncan, 57 Ohio App.2d 93, 385 N.E.2d 323 (8th Dist.1978). See also 6th Dist.Loc.App.R. 10(G).
{¶ 13} On June 29, 2018, we released State v. Wenner, 6th Dist. Sandusky No. S-18-4, 2018-Ohio-2590, in which this court pronounced that it will no longer accept Anders briefs in criminal appeals. Nevertheless, because this case was filed pre-Wenner, we will proceed with the process and role customarily undertaken pursuant to Anders.
{¶ 14} We find appellant‘s counsel has satisfied the requirements of Anders, setting forth four potential assignments of error. Appellant has also put forth two assignments of error. Consequently we will address the potential assignments of error put forth by counsel and appellant, and then follow with our examination of the entire record.
{¶ 15} Counsel first argues appellant may have been denied the opportunity to read and respond to the presentence investigation report (PSI).
{¶ 16}
The trial court may hear testimony in mitigation of a sentence at the term of conviction or plea or at the next term. The prosecuting attorney may offer testimony on behalf of the state to give the court a true understanding of the case. The court shall determine whether sentence should immediately be imposed. The court on its own motion may direct the department of probation of the county in which the defendant resides, or its own regular probation officer, to make any inquiries and presentence investigation reports that the court requires concerning the defendant.
{¶ 17} Additionally,
(1) If a presentence investigation report is prepared pursuant to this section,
section 2947.06 of the Revised Code , orCriminal Rule 32.2 , the court, at a reasonable time before imposing sentence, shall permit the defendant or the defendant‘s counsel to read the report, except that the court shall not permit the defendant or the defendant‘s counsel to read any of the following:(a) Any recommendation as to sentence;
(b) Any diagnostic opinions that, if disclosed, the court believes might seriously disrupt a program of rehabilitation for the defendant; (c) Any sources of information obtained upon a promise of confidentiality;
(d) Any other information that, if disclosed, the court believes might result in physical harm or some other type of harm to the defendant or to any other person.
(2) Prior to sentencing, the court shall permit the defendant and the defendant‘s counsel to comment on the presentence investigation report and, in its discretion, may permit the defendant and the defendant‘s counsel to introduce testimony or other information that relates to any alleged factual inaccuracy contained in the report.
{¶ 18} Here, we find the record reflects that the court ordered a PSI pursuant to
[COUNSEL]: Briefly, Your Honor. I read the pre-sentence report. It appears to be accurate. Terrance has some remorse for what he did. When he told me that when he wanted—when he thought about doing this he grabbed her purse and she fell to the ground and that‘s what caused her damages.
THE COURT: All right. Mr. Davis, what would you like to say prior to sentencing?
[APPELLANT]: I‘m very sorry. I could not say I‘m sorry enough to the victim and her family for— for all the pain I caused. And I am going through a lot. And I‘m sick. I was on heroin, and I just apologize. I‘m sorry. I hope— I apologize to the Court.
{¶ 20} Based on the forgoing in-court statements, we cannot say appellant was deprived of any right afforded under
Potential Assignment of Error No. 2
{¶ 21} Counsel argues that appellant‘s due process right to a fair and impartial PSI report may have been compromised because the author of the PSI was appellant‘s past probation officer. Counsel admits he was “unable to find any case law to support” this legal assertion.
{¶ 23} Accordingly, we find no indication in the record that appellant argued, in open court, that any factual inaccuracy existed within the PSI. Counsel is apparently attempting to argue there was some inherent bias connected with appellant‘s past probation officer authoring his PSI. We, as is appellant, are unable to find any case law to support this argument. Furthermore,
{¶ 24} Additionally, in this instance we are convinced that despite any inaccuracy in the PSI, the trial court would have sentenced appellant in the same manner in which he was. This is because based on our review of the sentencing transcript the trial court supported its 10-year incarceration sanction with a finding that an attack on a 77-year old “defenseless person” is such a deplorable act that it warrants being classified as “the worst form of the offense[.]” As a result of that classification, the court stated that the
{¶ 25} Accordingly, the second potential assigned error is without merit.
Potential Assignment of Error No. 3
{¶ 26} Counsel argues that appellant may have received ineffective assistance from his trial counsel because trial counsel unduly pressured appellant to enter into a plea, and incorrectly promised appellant certain sentencing results.
{¶ 27} The standard for determining whether trial counsel was ineffective requires appellant to show: (1) trial counsel made errors so egregious that counsel was not functioning as guaranteed under the Sixth Amendment, and (2) that the deficient performance prejudiced appellant‘s defense. State v. Moctezuma, 6th Dist. Lucas No. L-04-1347, 2005-Ohio-5569, ¶ 23, overruled on other grounds under State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470; Strickland v. Washington, 466 U.S. 668, 686-687, 80 L.Ed.2d 674, 104 S.Ct. 2052 (1984). “In essence, appellant must show that his trial, due to his attorney‘s ineffectiveness, was so demonstrably unfair that there is a reasonable probability that the result would have been different absent his attorney‘s deficient performance.” Moctezuma, citing Strickland at 693.
{¶ 28} Additionally, “a court must be ‘highly deferential’ and ‘indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance” in reviewing a claim of ineffective assistance of counsel. Moctemzuma at ¶ 23, quoting Strickland at 689. “A properly licensed attorney in Ohio is presumed to execute his duties in an ethical and competent manner.” Id., citing State v. Hamblin, 37 Ohio St.3d 153, 155-56, 524 N.E.2d 476 (1988). “Debatable strategic and tactical decisions may not form the basis of a claim for ineffective assistance of counsel.” Id., citing State v. Phillips, 74 Ohio St.3d 72, 85, 656 N.E.2d 643 (1995). “Even if the wisdom of an approach is debatable, ‘debatable trial tactics’ do not constitute ineffective assistance of counsel.” Id. “Finally, reviewing courts must not use hindsight to second-guess trial strategy, and must bear in mind that different trial counsel will often defend the same case in different manners.” Id.
{¶ 29} Here, counsel specifically asserts that appellant was pressured into taking the plea based on trial counsel‘s unsupported prediction that the court would not only deny appellant‘s pro se motion to merge the aggravated robbery and felonious assault, but also that if appellant was found guilty that the court would sentence appellant to a maximum sentence on both counts and run the sentences consecutively. Counsel further states that appellant‘s trial counsel promised a sentence in the range of five to seven years if appellant were to accept the plea, but appellant was actually sentenced to 10 years’ incarceration.
{¶ 30} First, our review of the transcripts of proceedings and the plea agreement reveals that the court confirmed appellant was not threatened or promised anything with regard to his entering of the plea. The trial court also asked appellant, in open court and
{¶ 31} Secondly, as we noted in Moctezuma, “[t]he decision to accept a plea agreement is undeniably strategic.” Id. at ¶ 24. In Moctezuma, the appellant argued that his trial counsel was ineffective for permitting him to enter into a plea agreement. Id. We disagreed, holding that “we cannot second-guess trial counsel‘s decision to permit appellant to accept the plea that was offered.” Id.
{¶ 32} Consistent with Moctezuma, and even assuming appellant was incorrectly led by counsel‘s advice and that allowing appellant to enter into the plea was strategically debatable, we cannot say those actions amount to ineffective assistance. There is no argument appellant was improperly addressed by the trial court under Crim.R. 11, and we find no issue with regard to the plea otherwise.
{¶ 33} Accordingly, the third potential assigned error is meritless.
Potential Assignment of Error No. 4
{¶ 34} Counsel lastly argues that the trial court may have failed to provide appellant with proper notice of his appellate rights. However, we find appellant was
{¶ 35} More specifically, at the August 24, 2016 sentencing hearing the trial court stated the following when addressing appellant: “Defendant is reminded his limited right to appeal the plea, and his limited right to appeal the sentencing as provided in [R.C.] 2953.08.” Further, the corresponding journal entry states “Defendant given notice of appellate rights under
{¶ 36} Even assuming appellant was not properly notified under Crim.R. 32(B), we yet find this error would be non-prejudicial or moot in this case. See, e.g., State v. Houston, 6th Dist. Erie No. E-03-059, 2004-Ohio-6462, ¶ 8. This is because appellant was allowed a delayed appeal. We therefore hold that appellant was not prejudiced by the alleged error. Moreover, we note that the issue is moot where appellant was afforded the right to appeal despite not being properly notified. Id.
{¶ 37} In sum, we find all the potential assignments of error put forth by counsel are not well-taken. We will now proceed with the pro se assigned errors put forth by appellant.
{¶ 38} Appellant first asserts that his due process rights were violated because appellee “presented and proffered unproven and inaccurate statements of facts in the plea and sentencing hearing to elicit trial court to impose maximum sentence.”
{¶ 39} We note appellant did not object, challenge or seek to withdraw his plea prior to being sentenced. Therefore, appellant must rely on the plain error analysis to now challenge his sentence or plea. See, e.g., State v. Toyloy, 10th Dist. Franklin No. 14AP-463, 2015-Ohio-1618, ¶ 19.
{¶ 40} Under Crim.R. 52(B), “[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” To affect a substantial right, the error must be outcome-determinative. See State v. Amos, 140 Ohio St.3d 238, 2014-Ohio-3160, 17 N.E.3d 528, ¶ 21-23.
{¶ 41} A similar argument to what appellant is asserting here was raised in State v. Ellis, 6th Dist. Lucas No. L-15-1296, 2016-Ohio-8086. In Ellis, we held that, despite a claim of innocence, a plea pursuant to Alford was properly accepted under Crim.R. 11 as an admission of guilt. Id. at ¶ 26. For support we pointed to State v. Post, 32 Ohio St.3d 380, 513 N.E.2d 754, where the Supreme Court of Ohio states as follows:
Appellant relies principally on dicta in North Carolina v. Alford * * * wherein the court cautioned that guilty pleas coupled with claims of innocence should not be accepted unless there is a factual basis for the plea.
[N]onetheless, the court in Alford found no constitutional bar to accepting a guilty plea in the face of an assertion of innocence provided a defendant voluntarily, knowingly and understandingly consents to sentencing on a charge. Id. at 37-38, 56 O.O. 2d at 91. Further, no constitutional error was found in accepting a guilty plea which contained a protestation of innocence, if the defendant intelligently concludes that his interests require entry of a guilty plea and if the record before the court contains strong evidence of guilt. Id.
{¶ 42} In this case, we find appellant‘s written plea demonstrates that appellant was never claiming to be guilty of the crime as stated. The plea states as follows: “By this plea of guilty, I DO NOT admit committing the offense, but I enter this plea only to avoid the risk of conviction on a more serious offense if I went to trial on the original charge and the possibility of a higher penalty as a result.” Based on this language and the general intent of appellant as indicated by his Alford plea and his subscribing by way of signature, we cannot say there was error committed by the trial court in accepting the plea.
{¶ 43} Accordingly, and based on the authority of Post as recognized in Ellis, we cannot find merit in this first pro se assigned error.
{¶ 44} Although similarly worded to his first potential assigned error, appellant secondly asserts that his due process rights were violated when “the trial court imposed maximum sentence based on unproven and inaccurate facts proffered by the State and without complying with Ohio‘s current sentencing requirements.”
{¶ 45} We review felony sentences under a two-prong approach.
(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant; or
(b) That the sentence is otherwise contrary to law.
See State v. Behrendt, 6th Dist. Lucas No. L-15-1135, 2016-Ohio-969, ¶ 6; see also State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23.
{¶ 46} A sentence is not contrary to law where the trial court considers the purposes and principles of sentencing under
{¶ 48} Here, appellant was sentenced to a prison term of 10 years for his aggravated robbery conviction. This term is within the permissible range. See
{¶ 49}
{¶ 50} In carrying out its obligations to impose a sentence consistent with the purposes and principles of sentencing, the trial court must weigh the factors indicating that the offender‘s conduct is more serious than conduct normally constituting the offense under
{¶ 51} We further note that a sentencing court is not required to use any specific language or make specific findings to demonstrate that it considered the applicable sentencing criteria. See State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000); State v. Thebeau, 6th Dist. Ottawa No. OT-14-017, 2014-Ohio-5598, ¶ 16.
{¶ 52} Here, the trial court stated in open court that it considered
{¶ 53} Therefore, in light of the statements at the hearing, as well as the language contained in the sentencing entry, we conclude that the trial court complied with its obligations under
{¶ 54} Lastly, we find the sentence imposed was supported in the record.
{¶ 56} Here, and as noted above, the record reveals appellant admitted through his own and his counsel‘s statements that he was remorseful for committing the theft and inflicting serious physical harm on the victim. He confirmed that his acts were due to his addiction to heroin. The trial court responded to appellant and his statements, stating that based on the court‘s interpretation and observations, appellant appeared to understand and agree that he committed the “worse form of the offense,” and hence that the maximum term was appropriate. Based on our review of the entire record, we cannot say the trial court erred in its discretionary determinations.
{¶ 57} Factoring in the above statements, findings, and expressed considerations, we hold the record supports the imposed sentence and that the imposed sentence is not contrary to law. Accordingly, we find no merit in this second pro se assigned error.
Our Examination
{¶ 58} Last is our examination of the record to determine whether this appeal is indeed meritless. Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493. Review of the record does not reveal any errors by the trial court which would justify a reversal of the judgment. We thus find this appeal to be meritless, and counsel‘s request to withdraw is found well-taken and is granted.
{¶ 59} The judgment of the Lucas County Court of Common Pleas is hereby affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. The clerk is ordered to serve all parties with notice of this decision.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. JUDGE
Thomas J. Osowik, J. JUDGE
Christine E. Mayle, P.J. JUDGE
CONCUR.
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.