State v. EstisState v. Estis
* * * * *
Paul A. Dobson, Wood County Prosecuting Attorney, and Aram Ohanian, Assistant Prosecuting Attorney, for appellee.
Richard A. Schmidt, for appellant.
* * * * *
PIETRYKOWSKI, J.
{¶ 1} Ricky Estis appeals the October 24, 2011 judgment of the Wood County Court of Common Pleas convicting him of the offense of improperly handling firearms in a motor vehicle, a violation of
{¶ 2} Appellant asserts three assignments of error on appeal:
- The court‘s sentence was unjust and unreasonable for conviction under the circumstances.
- Trial counsel provided ineffective assistance in violation of appellant‘s Sixth Amendment rights.
- It was plain error to sentence Appellant to eleven months in prison under the factual circumstances of this case.
{¶ 3} Under Assignment of Error No. 1, appellant argues that the trial court erred as to his sentence. He asserts that his sentence is contrary to law because the trial court failed to articulate factors under
{¶ 4} Both at the sentencing hearing and in its judgment, the trial court stated that appellant has an extensive history of criminal convictions including two prior felony convictions. The record discloses that appellant was sentenced to a two-year prison term
{¶ 5} The Ohio Supreme Court outlined the sentencing inquiry under
{¶ 6} Except in specified circumstances, the statute directs trial courts to determine whether any of the nine factors applied.
{¶ 7}
After considering the seriousness and recidivism factors set forth in
R.C. 2929.12 , if the court finds that a prison term is consistent with the principles and purposes of felony sentencing and that an offender is not amenable to community control, then the court shall impose a prison term upon the offender. Thus, although it does not preclude the imposition of community-control sanctions, a finding of any of the factors set forth inR.C. 2929.13(B)(1)(a) through(i) [nowR.C. 2929.13(B)(2)(a) through(i) ] weighs against the preference for community control and may justify incarceration. Id.
{¶ 8} In its judgment the trial court undertook the
After a review of the foregoing factors, the court finds that a prison term is consistent with the overriding principles and purposes of sentencing set forth in
R.C. 2929.11 ; and that the offender is not amendable to any available community control sanctions.
{¶ 9}
{¶ 10} A sentencing court is not required to use any specific language to demonstrate that it considered the applicable seriousness and recidivism factors under
{¶ 11} A trial court‘s application of the principles and purposes of felony sentencing under
{¶ 12} We find appellant‘s Assignment of Error No. 1 not well-taken.
{¶ 13} Under Assignment of Error No. 2, appellant asserts ineffective assistance of trial counsel. Appellant argues that trial counsel was deficient in his representation as
{¶ 14} To prevail on a claim of ineffective assistance of counsel, a defendant must prove two elements: “First, the defendant must show that counsel‘s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Proof of prejudice requires a showing “that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Id. at 694; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three of the syllabus.
{¶ 15} In the context of convictions based upon guilty pleas, the prejudice element generally requires a showing “that there is a reasonable probability that, but for counsel‘s errors * * * [the defendant] * * * would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); State v. Xie, 62 Ohio St.3d 521, 524, 584 N.E.2d 715 (1992).
{¶ 16}
{¶ 17} Evidence is lacking in this record upon which to determine the nature of trial counsel‘s advice concerning the decision to plead guilty. Evidence also is lacking on whether, but for the advice of counsel, appellant would not have pled guilty to the offense. To the extent appellant‘s arguments under Assignment of Error No. 2 claim ineffective assistance of counsel with respect to appellant‘s guilty plea, we conclude they are without merit because they require consideration of facts outside of the record in this appeal.
{¶ 18} The fact that appellant failed to appear at court proceedings 128 times in 58 criminal proceedings against him was also relevant at sentencing and is relevant on the issue of recidivism. See State v. Williams, 7th Dist. No. 11 MA 131, 2012-Ohio-6277, ¶ 69; State v. Endress, 12th Dist. No. 2007-03-079, 2008-Ohio-1666, ¶ 4; State v. Daniels, 1st Dist. Nos. C-010070 and C-010087, 2001 WL 1635599, *5.
{¶ 19} We find appellant‘s Assignment of Error No. 2 not well-taken.
{¶ 20} Appellant‘s legal argument under Assignment of Error No. 3 is unclear. Appellant asserts that “[i]t was plain error to sentence Appellant to eleven months in prison under the factual circumstance of this case.” Appellant then proceeds to challenge the sufficiency of the evidence to support a conviction, quoting his own statement at
{¶ 21} A valid guilty plea waives a defendant‘s right to challenge his conviction on the basis of insufficiency of the evidence. State v. Hill, 8th Dist. No. 90513, 2008-Ohio-4857, ¶ 6; State v. Siders, 78 Ohio App.3d 699, 701, 605 N.E.2d 1283 (11th Dist. 1992).
{¶ 22} The state argues that Assignment of Error No. 3 is unclear and even if it is intended to challenge the validity of appellant‘s guilty plea, appellant‘s argument is predicated on evidence outside the record and cannot be considered in this appeal. We agree. Appellant pled guilty of the offense and neither moved to withdraw his plea nor submitted evidence in the trial court to demonstrate lack of possession of the firearm. Because of appellant‘s plea and appellant‘s failure to challenge the validity of his plea in the trial court, the record does not contain evidence on the issue of whether appellant in fact possessed the firearm on which his conviction is based.
{¶ 23} “A reviewing court cannot add matter to the record before it, which was not part of the trial court‘s proceedings, and then decide the appeal on the basis of new matter.” State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978), paragraph one of the syllabus.
{¶ 24} We find appellant‘s Assignment of Error No. 3 not well-taken.
{¶ 25}
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, P.J. _______________________________
Stephen A. Yarbrough, J. JUDGE
CONCUR. _______________________________
JUDGE
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.sconet.state.oh.us/rod/newpdf/?source=6.