STATE OF OHIO v. DIONTE ENGLISH
Appellate Case No. 26337
Trial Court Case No. 2014-CR-1291
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
May 1, 2015
[Cite as State v. English, 2015-Ohio-1665.]
WELBAUM, J.
(Criminal Appeal from Common Pleas Court)
Rendered on the 1st day of May, 2015.
MATHIAS H. HECK, JR., by KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
LORI R. CICERO, Atty. Reg. No. 0079508, 500 East Fifth Street, Dayton, Ohio 45402 Attorney for Defendant-Appellant
Facts and Course of Proceedings
{¶ 2} On April 14, 2014, English was indicted by the Montgomery County Grand Jury for one count of aggravated robbеry in violation of
{¶ 3} Following his indictment, on April 17, 2014, English filed a pro se motion for change of venue. In the motion, English argued that he would be unable to receive a fair trial and impartial jury due to an April 10, 2014 article in the Dayton Daily News reporting on the incident, the victim‘s injuries, and how English allegеdly admitted to police that he had attacked the woman while high on drugs. English was appointed trial counsel the same day this motion was filed.
{¶ 4} After the appointment of counsel, on April 22, 2014, English filed a pro se
{¶ 5} A hearing on the motion to suppress wаs held on May 14, 2014. At the suppression hearing, English withdrew his motion to suppress and the trial court thereafter explained that it would not consider his pro se motions due to the fact that English had been appointed counsel. However, the trial court advised English‘s counsel to perform reseаrch on the issue of whether the grand jury was properly selected and whether its racial composition was in accord with constitutional standards. The trial court indicated that if counsel found merit to English‘s concerns, counsel could then file a new motion for the court‘s review. English indicаted that he understood.
{¶ 6} The trial court scheduled a jury trial to commence on July 7, 2014. English then appeared in court on June 27, 2014, to plead guilty, but instead asked the judge for more time to talk it over with his attorney and family. The judge granted English‘s request. Thereafter, on July 7, 2014, English entered a guilty plea to both аggravated robbery and felonious assault. The parties then reconvened for sentencing on July 23, 2014. At that time, the trial court merged English‘s aggravated robbery and felonious assault offenses and sentenced English to eight years in prison for aggravated robbery. In addition, the trial court ordered English tо pay $3,359.04 in restitution.
{¶ 7} English now appeals from his conviction and sentence, raising two assignments of error for our review.
{¶ 8} English‘s First Assignment of Error is as follows:
APPELLANT‘S CONVICTION SHOULD BE REVERSED BECAUSE HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS RIGHTS UNDER THE SIXTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
{¶ 9} Under his First Assignment of Error, English contends that his trial counsel was ineffective in failing to file a motion to change venue due to the Dayton Daily News article, and a motion to set аside the indictment due to the alleged exclusion of certain races from the grand jury.
{¶ 10} In order to prevail on a claim of ineffective assistance of counsel, a criminal defendant must show both deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), paragraph two of the syllabus; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of thе syllabus. Therefore, a defendant must demonstrate that counsel‘s representation fell below an objective standard of reasonableness and that counsel‘s errors were serious enough to create a reasonable probability that, but for the errors, the outcomе of the proceeding would have been different. Id. In conducting this analysis, “we will not second-guess trial strategy decisions, and ‘a court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.’ ” State v. Mason, 82 Ohio St.3d 144, 157-158, 694 N.E.2d 932 (1998), quoting Strickland at 689. (Other citation omitted.)
{¶ 12} In the present case, English pled guilty to aggravated robbery and felonious assault and has not raised any arguments suggesting that his trial counsel‘s actions rendered his plea less than knowing, intelligent, and voluntary. It is well-established that “[i]n оrder for a plea to be given knowingly and voluntarily, the trial court must follow the mandates of
{¶ 13} English‘s ineffective assistance claim also fails under the Strickland test because he has not demonstrated that his counsel rendered deficient performance that prejudiced him. With regards to a motion to change venue, we note that “[t]rial counsel‘s failure to request a change of venue is not tantamount to ineffective assistance of
{¶ 14} In this case, English has failed to establish that his trial counsel‘s decision not to file a motion to change venue was anything other than sound trial strategy. In addition, English has not argued or presented any evidence indicating that the trial court would have granted a motion to change venue based on the Dayton Daily News article. As a result, English has not satisfied either prong of the Strickland test.
{¶ 15} As for trial counsel‘s failure to file a motion to set aside the indictment, the trial court specifically instructed counsel to research English‘s concern about certain races allegedly being excluded from the Montgomery County Grand Jury and to file such a motion if there was any merit to the claim. The trial court speсifically stated that:
COURT: So—now—[defense counsel], as I understand it is going to do some research on that issue, is going to do some investigation regarding how it‘s—how grand juries are conducted or selected here in Montgomery County Ohio, and simply because you have that concern, that doеsn‘t mean that [defense counsel] will come to the conclusion that there is a
legitimate basis for filing such a motion. * * * [Defense counsel] understands your concern, he‘s sensitive to your concern, he will review and investigate your concern. That doesn‘t mean at the end of the day he‘s going to conclude that there‘s merit to your concern, and that there is a need then to file a motion. If he does, great, we‘ll hear it and cite it. But simply because you have this idea, doesn‘t mean any validity [sic]. Do you understand that? ENGLISH: Understood.
Transcript (May 14, 2014), p. 5-6.
{¶ 16} English has failed to demonstrate that his counsel‘s failure to file a motion to set aside the indictment on the above referenced claim was due to anything other than counsel finding that the claim lacked merit. As previously noted, we indulge in a strong presumption that counsel rendered effective assistance in choosing not to file the mоtion. Furthermore, English failed to demonstrate any resulting prejudice from counsel‘s failure to file a motion to set aside the indictment, as English did not argue or present any evidence indicating that such a motion had a reasonable probability of success. See State v. Johns, 10th Dist. Franklin No. 11AP-203, 2011-Ohio-6823, ¶ 25 (finding that “[w]hen a claim оf ineffective assistance of counsel is based on counsel‘s failure to file a motion or make an objection, the appellant must show that the motion had a reasonable probability of success“).
{¶ 17} For the foregoing reasons, English‘s First Assignment of Error is overruled.
{¶ 18} English‘s Second Assignment of Error is as follows:
APPELLANT SHOULD BE REMANDED TO THE TRIAL COURT FOR SENTENCING AS THE SENTENCE HE RECEIVED IS CONTRARY TO LAW, AND IN VIOLATION OF HIS RIGHTS UNDER THE EIGHTH AMENDMENT TO THE UNITED STATES CONSTITUTION.
{¶ 19} Under his Second Assignment of Error, English contends that his eight-year prison sentence is contrary to law because he had no prior felony record or history of violence. English also contends that his sentence was grossly disproportionate, excessive, and amounts to cruel and unusual punishment in violation of his Eighth Amendment rights.
{¶ 20} This court now applies
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. The appellate court‘s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(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.
{¶ 21} The trial court in this case did not make, and was not required to make, any of the findings under the statutory provisions listed in division (a) of
{¶ 22} In making this determination, we emphasize that “[t]he court is not required to make specific findings or to use the exact wording of the statute[s].” (Citation omitted.) State v. Wilson, 2d Dist. Montgomery No. 24978, 2012-Ohio-4756, ¶ 8. “Furthermore, even if there is no specific mention of those statutes in the record, ‘it is presumed that the trial court gave proper consideration to those statutes.’ ” State v. Cave, 2d Dist. Clark No. 09-CA-6, 2010-Ohio-1237, ¶ 10, quoting Kalish at fn. 4.
{¶ 23} In this case, English‘s eight-year prison sentence falls within the prescribed statutory-sentencing range for aggravated robbery, a felony of the first degree. See
{¶ 24} In reaching a sentencing decision, the trial court considered the fact that English‘s only prior offense was a misdemeanor offense of resisting arrest. The trial court also noted that English‘s reсord was not indicative of his conduct in this case. However, the court weighed this fact against the severity of the offense against the victim, who English severely beat in front of the victim‘s three-year-old granddaughter. The trial court read a letter written by the victim at the sentencing hearing in which the victim stated that she had to have facial surgery as a result of the attack and now has metal plates in her face. The victim indicated that one side of her face is numb due to nerve damage and that she has painful headaches, trouble walking, and is always hurting. In her victim impact statеment, the victim indicated that the nerve damage to her face is irreparable, and that she will need more surgeries in the future. In addition to her physical trauma, the record reveals that the attack has left the victim emotionally distraught as well. In her letter to the court, the victim statеd that her life is miserable, she is scared to leave her house, cries all the time, and has nightmares.
{¶ 25} Because the trial court indicated that it had considered all the required statutory factors—being the principles and purposes of sentencing under
{¶ 27} With respect to English‘s Eighth Amendment challenge, we note that “Eighth Amendment violations are rare, and instances of cruel and unusual punishment are limited to those punishments, which, under the circumstances, would be considered shocking to any reasonable person.” (Citations omitted.) State v. Harding, 2d Dist. Montgomery No. 20801, 2006-Ohio-481, ¶ 77. “[W]e are bound to give substantial deference to the General Assembly, which has established a specific range of punishment for every offense[.]” (Citation omitted.) State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, ¶ 24. Therefore, ” ‘as a general rule, a sentence that falls within the terms of a valid statute cannot amount tо a cruel and unusual punishment.’ ” Id. at ¶ 21, quoting McDougle v. Maxwell, 1 Ohio St.2d 68, 69, 203 N.E.2d 334 (1964). (Other citations omitted.) Accordingly, given that English‘s eight-year prison term falls within the specific range of punishment for his offenses, we do not find that it constitutes cruel and unusual punishment under the Eighth Amendment.
{¶ 28} English‘s Second Assignment of Error is overruled.
{¶ 29} Having overruled both assignments of error raised by English, the judgment of the trial court is affirmed.
FROELICH, P.J. and HALL, J., concur.
Copies mailed to:
Mathias H. Heck, Jr.
Kirsten A. Brandt
Lori R. Cicero
Hon. Michael Tucker