STATE OF OHIO, Plaintiff-Appellee, v. ASHLEY DAY, Defendant-Appellant.
Case No. 19CA1085
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ADAMS COUNTY
RELEASED 11/14/2019
[Cite as State v. Day, 2019-Ohio-4816.]
Hess, J.
DECISION AND JUDGMENT ENTRY
Matthew F. Loesch, Portsmouth, Ohio, for appellant.
David Kelley, Adams County Prosecutor, and Kris D. Blanton, Adams County Assistant Prosecutor, West Union, Ohio, for appellee.
Hess, J.
{¶1} Ashley Day pleaded guilty to trafficking in marijuana, a fifth-degree felony. The trial court sentenced Day to 11 months in prison and an optional postrelease control of three years. The court also ordered Day to pay a $750 fine and court costs.
{¶2} In her first assignment of error, Day argues that her sentence is contrary to law because the trial court failed to properly apply the seriousness and recidivism factors in
{¶3} Day also contends the trial court failed to make the appropriate factual findings as to whether the marijuana transactions at issue constituted a sale or gift, rendering her sentence void. However, because she pleaded guilty, the trial court was not required to review or evaluate the state‘s evidence or consider possible defenses.
{¶4} In her third assignment of error, Day contends she was provided constitutionally ineffective assistance of counsel because her attorney conceded that the elements of the trafficking charge were met and failed to file for intervention in lieu of conviction. However, even if we assume that counsel was ineffective, Day has failed to show prejudice. To the extent Day is relying on evidence that is outside the record to support her claim, postconviction relief—not direct appeal—is the appropriate method to seek relief based on a claim of ineffective assistance. Thus, we overrule Day‘s third assignment of error and affirm the trial court‘s judgment.
I. PROCEDURAL BACKGROUND
{¶5} In July 2016, Day was indicted in the Adams County Common Pleas Court on one count of trafficking in marijuana in violation of
II. ASSIGNMENTS OF ERROR
{¶6} Day makes the following assignments of error:
- APPELLANT‘S SENTENCE IS CONTRARY TO LAW IN THAT THE TRIAL COURT FAILED TO PROPERLY APPLY THE FACTORS SERIOUSNESS AND RECIDIVISM MANDATED BY
O.R.C. 2929.12 .1 - APPELLANT‘S SENTENCE WAS VOID AS THE TRIAL COURT FAILED TO MAKE A FINDING THAT THE MARIJUANA TRANSACTION IN QUESTION WAS A SALE AS OPPOSED TO A GIFT.
APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
III. LAW AND ANALYSIS
{¶7} Day concedes that her sentence was in the statutorily prescribed range, but argues that the record does not support an 11-month prison sentence. She concedes that she was a young woman with ongoing issues with marijuana, but argues that she did not sell the marijuana, she only gave it away. She concedes she had numerous bond violations during the pendency of her case, but she argues that these bond violations alone do not warrant a near maximum sentence for a first time fifth degree marijuana trafficking charge.
A. Standard of Review
{¶8} When reviewing felony sentences, appellate courts must apply the standard of review set forth in
(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) ofsection 2929.14 , or division (I) ofsection 2929.20 of the Revised Code , whichever, if any, is relevant;(b) That the sentence is otherwise contrary to law.
{¶9} Although
{¶10} “Once the trial court considers
B. Day‘s Sentence is Supported by the Record and Is Not Contrary to Law
{¶11} ” ‘[A] sentence is generally not contrary to law if the trial court considered the
{¶12} At both the sentencing hearing and in its judgment entry, the trial court stated that it considered the
{¶13} Under
{¶15} The Supreme Court of Ohio summarized the applicability of
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 similar 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 tocommit future offenses. * * * [A]n offender‘s conduct is considered less serious when there are “substantial grounds to mitigate the offender‘s conduct, although the grounds are not enough to constitute a defense.” R.C. 2929.12(C)(4) .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.
State v. Long, 138 Ohio St.3d 478, 2014–Ohio–849, 8 N.E.3d 890, ¶¶ 17-18.
{¶16} Here the trial court stated that it considered both the principals and purposes of sentencing under
Two factors will drive the decision of this * * * court. Number one, Ms. Day, for whatever reason you‘ve chosen to be unmanageable. That you won‘t follow rules, not one. I asked you the question, tell me one that you‘ve followed, and you can‘t give me one. We have begged you to get your education, we‘ve begged you to show up for court, we let you out, we keep showing you leniency. And then the second thing is, is now, it‘s a new one on me, but I guess we tell people to wean themselves off of drugs when they‘re pregnant, instead of stopping.2 * * * My best option is prison, and so therefore the court finds that you are not amenable to available Community Control Sanctions.
{¶17} The trial court also reviewed the findings in the PSI report in making its sentencing decision. Initially, the PSI report was not included in the appellate record.
{¶18} Our sua sponte request for the PSI report is contrary to the procedure recently set forth in State v. Shankland, 4th Dist. Washington No. 18CA11, 18CA12, 2019-Ohio-404, ¶ 23, which imposed a duty upon the appellant to move to supplement the record with the report. Upon further consideration, we reject the procedure announced in Shankland. PSI reports are part of the appellate record and when they are missing from the record and necessary for our review, we will sua sponte acquire them from the clerk.
{¶19} Although Day disagrees with the trial court‘s analysis and its balancing of the seriousness and recidivism factors in
{¶20} Day has failed to meet her burden to establish that her prison sentence was clearly and convincingly not supported by the record. “Simply because the court did not balance the factors in the manner appellant desires does not mean that the court failed to consider them, or that clear and convincing evidence shows that the court‘s findings are not supported by the record.” State v. Butcher, 4th Dist. Athens No. 15CA33, 2017–Ohio–1544, ¶ 87. After reviewing the record, we find no clear and convincing evidence that the court erred in balancing the factors in
C. Whether the Marijuana Transaction was a Sale or Gift
{¶21} Day contends that her sentence is void because the record supports only a conviction for the minor misdemeanor gift violation under
{¶22} Here the indictment charged Day with a fifth-degree felony marijuana trafficking offense and she pleaded guilty. Day‘s guilty plea waived her right to contest the validity of the indictment. “The plea of guilty is a complete admission of the defendant‘s guilt.”
{¶23} The ultimate inquiry when reviewing a trial court‘s acceptance of a guilty plea is whether the defendant entered the plea in a knowing, intelligent, and voluntary manner. See State v. Veney, 120 Ohio St.3d 176, 2008–Ohio–5200, 897 N.E.2d 621, ¶ 7. A defendant enters a plea in a knowing, intelligent, and voluntary manner when the trial court fully advises the defendant of all the constitutional and procedural protections set forth in
{¶24} After Day entered her guilty plea, she explained that she gave the marijuana away but never received money in return. The state explained that “give or deliver” is included in the definition of sale under
{¶25} The trial court was only required to determine if Day‘s plea was made knowingly, intelligently, and voluntarily under
D. Ineffective Assistance of Counsel
{¶26} For her third assignment of error Day contends that trial counsel provided constitutionally ineffective assistance when she acknowledges that all of the elements of the crime of marijuana trafficking were met because Day contends she was only giving away marijuana, not selling it. Additionally, Day contends that her attorney failed to file a motion for intervention in lieu of conviction. See
{¶27} To prevail on a claim of ineffective assistance of counsel an appellant must establish that (1) counsel‘s performance was deficient, that is, it fell below an objective standard of reasonable representation, and (2) counsel‘s deficient performance resulted in prejudice, meaning that there is a reasonable probability that but for counsel‘s errors, the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio–4836, 873 N.E.2d 828, ¶ 62; State v. Sowards, 4th Dist. Gallia No. 06CA13, 2013–Ohio–3265, ¶ 11. In employing this standard we apply “a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance,” with the “benchmark” being “whether counsel‘s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having
{¶28} Day contends that her trial counsel was ineffective for stipulating during the change of plea hearing that all the elements of the crime of trafficking in marijuana were met because she was “gifting” marijuana. She argues that a gift of less than 20 grams of marijuana is a minor misdemeanor.
{¶29} To the extent Day is relying on evidence that is outside the record to support her claim, postconviction relief—not direct appeal—is the appropriate method to seek relief based on a claim of ineffective assistance. See State v. Williams, 4th Dist. Jackson No. 15CA3, 2016-Ohio-733, ¶ 37, citing State v. Hampton, 4th Dist. Lawrence No. 15CA1, 2015-Ohio-4171, ¶ 28 (petition for postconviction relief is the proper vehicle to raise a claim of ineffective assistance of counsel that relies upon evidence outside the record).
{¶31} The trial court found Day was completely “unmanageable” and had not followed a single rule or request the court made of her. The sentencing entry stated that “the absolute worst place” for Day is “near illegal substance with no restraints.” Day points to no evidence in the record of a reasonable probability that the trial court would have granted the motion.
{¶32} Because Day cannot show she was prejudiced by counsel‘s stipulation at the change of plea hearing or by counsel‘s failure to move for intervention in lieu of conviction, we overrule Day‘s third assignment of error.
III. CONCLUSION
{¶33} Day has not established by clear and convincing evidence that her sentence is either contrary to law or unsupported by the record. Because she pleaded guilty, she
{¶34} Therefore, we overrule Day‘s assignments of error and affirm the trial court‘s judgment.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Adams County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.
Abele, J.: Concurs in Judgment and Opinion.
Smith, P.J.: Concurs in Judgment Only.
For the Court
BY: ____________________________
Michael D. Hess, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.