State v. DixonState v. Dixon
Joseph C. Patituce and Madison E. Karn, Patituce & Associates, LLC, 16855 Foltz Industrial Parkway, Strongsville, OH 44149 (For Defendant-Appellant).
JOHN J. EKLUND, J.
{¶1} Appellant, Dante Dixon, appeals his sentence from the Portage County Court of Common Pleas. Appellant raises three assignments of error, arguing that the trial court erred in sentencing him to 38 to 42 years imprisonment, that the trial court erred in imposing consecutive sentences, and that trial counsel was ineffective by failing to object to the constitutionality of his indefinite sentence.
{¶2} After review of the record and the applicable caselaw, we find appellant‘s assignments of error to be without merit. Appellant cannot affirmatively demonstrate that
{¶3} Although not raised by appellant, the trial court‘s sentencing entry contains a clerical error, which states that appellant pled guilty to one count of “Carrying a Concealed Weapon’ a felony of the third degree, in violation of
{¶4} Thus, we affirm the judgment of the Portage County Court of Common pleas and remand for the trial court to issue a nunc pro tunc entry.
Substantive and Procedural History
{¶5} In January 2021, Kent police officers responded to a residential address in reference to a burglary in progress. A 14-year-old female called 911 stating that she was babysitting a two-year-old in the residence when a man forced entry into the home. The young woman hid herself and the two-year-old in a bathroom while the intruder forced entry. When officers arrived, Officers Kyle Auckland and Nicole Watkins approached the front door while Officer Leonard Kunka approached the back door. Officers observed signs of forced entry to both the front and back doors. Kunka entered the home and saw appellant in the residence. He identified himself and appellant tried to flee.
{¶6} When Kunka gave chase, appellant drew a handgun and fired three times. One bullet struck Kunka in the left thumb and another struck Auckland in his ballistic vest. The officers struggled with appellant, subdued him, and placed him under arrest without firing their weapons. Appellant was injured by his own gun fire and was struck in the abdomen.
{¶7} Kunka‘s injuries required surgery, the placement of pins in his hand, and extensive physical therapy and rehabilitation. Auckland was treated for chest injuries, fortunately, his ballistic vest minimized his injuries. The children were rescued uninjured.
{¶8} The Portage County Grand Jury indicted appellant on two counts of felonious assault, first-degree felonies in violation of
{¶9} Ultimately, appellant entered a plea of guilty to two counts of felonious assault, each with a seven-year firearm specification and a repeat violent offender specification; one count of aggravated burglary with a three-year firearm specification and a repeat violent offender specification, and one count of having weapons while under disability. The trial court accepted appellant‘s change of plea and immediately proceeded to sentencing. At the sentencing hearing, the trial court reviewed a presentence
{¶10} During sentencing, the court stated that it had read the victim impact statements, the sentencing briefs of both parties, and the pre-sentencing memorandum. The court heard arguments from defense counsel who argued that the events happened quickly, and that appellant did not intend the harm that he caused. Counsel expressed that appellant was remorseful for his actions and grateful that his actions did not cause greater harm. Counsel indicated that appellant has a history of mental health issues and that his formal education ended in the eighth grade, although he did later obtain his GED. Counsel requested that the sentences run concurrently and for the court to impose the minimum sentence allowed by law.
{¶11} Kunka related the events of appellant‘s arrest and explained that the physical and emotional toll they had on him and his family. He said his injuries caused him to miss three months of work and that his thumb now has arthritic pain that will become progressively worse. After his return to work, his wife and family have become more fearful. He requested that the court impose the maximum sentence.
{¶12} Auckland similarly requested the maximum sentence and said that the emotional toll on him and his family has been heavy. The Kent Police Chief also addressed the court and spoke to the emotional toll that appellant‘s actions had on the entire police department and their families.
{¶13} The prosecutor told the court that the minor victims had chosen not to appear for the sentencing, but he said that the children had exhibited post-traumatic behaviors such as immense fear, extreme vigilance, as well as dread and nightmares. He
{¶14} Appellant addressed the trial court, apologized for his conduct, and said that he wished the day had never occurred for the sake of the victims. He said that at the time of the offense he was under the influence of drugs and regretted his actions.
{¶15} The court said “I don‘t know what can – what can society – what can I do to change your direction in life except place you in prison for a long, long, long time? I give you some credit for taking responsibility finally after – I think it‘s 200 and some days in jail, manning up and taking responsibility, not putting that child through this jury trial, not putting these officers and their family through the jury trial. So I‘ll give you some credit there.”
{¶16} The court imposed mandatory consecutive seven-year terms for the two firearm specifications; eight years for each of the felonious assault counts to run consecutive with a four-year indefinite sentence on count one pursuant to the Reagan Tokes Law; eight years for the aggravated burglary count to run consecutive; and 30 months for the weapons under disability count to run concurrent with counts one, two, and three. In total, the court sentenced appellant to 38 to 42 years imprisonment with 287 days credit for time served. In imposing sentence, the court recited the
{¶17} The court next said that consecutive sentences were necessary in this case because appellant satisfied the
{¶18} The court‘s sentencing entry recited the
{¶19} In addition, the sentencing entry contains a clerical error, which states that appellant pled guilty to one count of “Carrying a Concealed Weapon’ a felony of the third degree, in violation of
{¶20} Appellant timely appealed asserting three assignments of error.
Assignments of Error and Analysis
R.C. 2929.12 Challenge:
{¶21} Appellant‘s first assignment of error states:
{¶22} “[1.] The trial court erred in sentencing Mr. Dixon to an aggregate term of thirty-eight (38) to forty-two (42) years imprisonment.”
{¶23} Appellant argues that his sentence of 38 to 42 years is inconsistent with the purposes of felony sentencing set forth in
{¶24} However, that statute only applies to challenges to sentences issued under
{¶25} This conclusion is consistent with the conclusions of the Ohio Supreme Court. In reviewing sentencing challenges relating to
[I]t is fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors in
R.C. 2929.11 and2929.12 under a standard that is equally deferential to the sentencing court. That is, an appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence.
Marcum, at ¶ 23.
{¶26} However, the Ohio Supreme Court concluded that the above language was dicta. State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.2d 649, ¶ 27. In Jones, the court held that
{¶27} Thus, under Jones, an appellate court reviewing alleged error under
{¶28} Although
{¶29} “The trial court possesses broad discretion to determine the most effective way to comply with the purposes and principles of sentencing within the statutory guidelines.” Id. at ¶ 29, citing State v. Phifer, 11th Dist. Trumbull No. 2020-T-0010, 2020-Ohio-4694, ¶ 52;
{¶30} Appellant rightly argues that the trial court did not mention
{¶31} Although the trial court did not expressly address the seriousness and recidivism factors set forth in
{¶32} Appellant also argues that the trial court only considered his taking responsibility for his actions while not considering other mitigating factors such as his remorse, suffering from mental health issues, a difficult childhood, substance abuse history, and lack of formal education.
{¶33} Here, appellant has not affirmatively shown that the trial court sentenced him without due consideration of the
{¶34} In the absence of an affirmative showing to the contrary, we find no error in the court‘s sentence as it relates to the consideration of these factors.
{¶35} Accordingly, appellant‘s first assignment of error is without merit.
Consecutive Sentences:
{¶36} Appellant‘s second assignment of error states:
{¶37} “[2.] The trial court erred in sentencing Mr. Dixon to serve consecutive sentences.”
{¶38} Appellant next challenges the trial court‘s imposition of consecutive sentences. There are two ways an appellant can challenge consecutive sentences on appeal. State v. Lewis, 11th Dist. Lake No. 2001-L-060, 2002-Ohio-3373, ¶ 6. First, the appellant may argue that the sentencing court failed to state the findings for consecutive sentences
{¶39} When ordering consecutive sentences for multiple offenses,
If multiple prison terms are imposed 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 offender 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 necessary to protect the public from future crime by the offender.
{¶40} The sentencing court is required to make the required statutory findings “both at the sentencing hearing and in the sentencing entry.” State v. Beasley, 153 Ohio St. 3d 497, 2018-Ohio-493, 108 N.E.3d 1028, at ¶ 253. When there is a discrepancy between the sentencing hearing and the sentencing entry, a nunc pro tunc order may be necessary to reflect what the sentencing court actually decided. Id. at ¶ 255, ¶ 261, citing State ex rel. Fogle v. Steiner, 74 Ohio St. 3d 158, 164, 656 N.E. 2d 1288 (1995); State v. Bonnell, 140 Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d 659, at ¶ 30. But a nunc pro
{¶41} “In order to impose consecutive terms of imprisonment, a trial court is required to make the findings mandated by
{¶42} “The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing * * * if it clearly and convincingly finds * * * that the sentence is otherwise contrary to law.”
{¶43} Here, appellant concedes that the trial court recited the statutory language of
{¶44} At the sentencing hearing and in the court‘s sentencing entry, the court made a finding that the “consecutive sentence was necessary to protect the public from future crime or to punish the defendant; that consecutive sentences are not disproportionate to the seriousness of the defendant‘s conduct and the danger the defendant poses to the public.” The court also found that appellant was under community control sanctions at the time of the offense. This plainly satisfied
{¶45} Appellant seeks to compel the trial court to do something not required by law when he states that consecutive sentences were improper because of the trial court “failing to incorporate the evidence to support the court‘s findings * * *.” This reverses the standard of review and would require the record to clearly and convincingly support the imposition of consecutive sentences.
{¶46} It is appellant who must clearly and convincingly demonstrate that the record does not support consecutive sentences. However, appellant‘s arguments against the imposition of consecutive sentences are conclusory and do not offer or point to evidence in the record to show that the court was wrong to impose consecutive sentences. Therefore, appellant has failed to clearly and convincingly demonstrate that the record does not support imposing consecutive sentences.
{¶47} Accordingly, appellant’ second assignment of error is without merit.
The Reagan Tokes Law and Ineffective Assistance of Counsel:
{¶48} Appellant‘s third assignment of error states:
{¶49} “[3.] Trial counsel was ineffective for failing to preserve the issue of unconstitutional sentencing under the Regan Tokes Law precluding Mr. Dixon from raising the issue on appeal.”
{¶50} Appellant‘s third assignment of error asserts that his trial counsel rendered ineffective assistance of counsel by failing to object to the constitutionality of
{¶51} In reviewing an ineffective assistance of counsel claim, the standard we apply is “‘whether counsel‘s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.‘” State v. Story, 11th Dist. Ashtabula No. 2006-A-0085, 2007-Ohio-4959, ¶ 49, quoting Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). An appellant must demonstrate (1) his counsel was deficient in some aspect of his representation, and (2) there is a reasonable probability, were it not for counsel‘s errors, the result of the proceedings would have been different. Strickland, at 669. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. A failure to “satisfy one prong of the Strickland test negates a court‘s need to consider the other.” State v. Madrigal, 87 Ohio St.3d 378, 389, 2000-Ohio-448, 721 N.E.2d 52, citing Strickland, at 697.
{¶52} An appellant “must be able to demonstrate that the attorney made errors so serious that he or she was not functioning as ‘counsel’ as guaranteed by the Sixth Amendment, and that he was prejudiced by the deficient performance.” Story, at ¶ 49, quoting State v. Batich, 11th Dist. Ashtabula No. 2006-A-0031, 2007-Ohio-2305, ¶ 42. Ohio courts presume that every properly licensed attorney is competent, and therefore a defendant bears the burden of proof. State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). “Counsel‘s performance will not be deemed ineffective unless and until counsel‘s performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel‘s performance.” State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989). “Debatable trial tactics generally do not constitute a deprivation of effective counsel.” State v. Phillips, 74 Ohio St.3d 72, 85, 656 N.E.2d 643 (1995). “Failure to do a futile act cannot be the basis for claims of ineffective assistance of counsel, nor could such a failure be prejudicial.” State v. Henderson, 8th Dist. Cuyahoga No. 88185, 2007–Ohio–2372, at ¶ 42.
{¶53} This Court has recently held that the Reagan Tokes Law is constitutional. See State v. Reffitt, supra, and State v. Joyce, supra. “Because we have found
{¶54} We find that appellant has not presented a meritorious ineffective assistance of counsel claim.
{¶55} Accordingly, appellant‘s third assignment of error is without merit.
Nunc Pro Tunc Sentencing Entry:
{¶56} Finally, although not raised by appellant, the trial court‘s sentencing entry contains a clerical error, which states that appellant pled guilty to one count of “‘Carrying a Concealed Weapon’ a felony of the third degree, in violation of
{¶57}
{¶58} Accordingly, the trial court is ordered to issue a nunc pro tunc entry to correctly identify that appellant pled guilty to one count of having weapons while under disability, a third-degree felony in violation of
{¶59} For the foregoing reasons, the judgment of the Portage County Court of Common Pleas is affirmed, and this matter is remanded for the issuance of a nunc pro tunc entry.
THOMAS R. WRIGHT, P.J.,
MARY JANE TRAPP, J.,
concur.