STATE OF OHIO v. TYRONE FREEMAN
CASE NO. 14 MA 25
IN THE COURT OF APPEALS SEVENTH DISTRICT STATE OF OHIO, MAHONING COUNTY
December 26, 2014
2014-Ohio-5725
Hon. Gene Donofrio, Hon. Joseph J. Vukovich, Hon. Mary DeGenaro
Criminal Appeal from Court of Common Pleas of Mahoning County, Ohio Case No. 12CR1261B
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Paul Gains Prosecutor, Ralph M. Rivera Assistant Prosecutor, 21 West Boardman St., 6th Floor, Youngstown, Ohio 44503-1428 (No Brief Filed)
For Defendant-Appellant: Attorney John A. Ams, 134 Westchester Drive, Youngstown, Ohio 44515
{1} Defendant-appellant Tyrone Freeman appeals from his convictions and sentences entered in the Mahoning County Common Pleas Court following his guilty pleas to one count of engaging in a pattern of corrupt activity and four counts of aggravated robbery, two of which contained firearm specifications. Appointed appellate counsel has filed a no-merit brief presenting two potential assignments of error, and has requested to withdraw.
{2} Freeman, along with co-defendants, participated in a robbery of Family Dollar located in Boardman, Ohio, on September 22, 2012. Shortly after, on October 2, 2012, Freeman robbed Family Dollar of Youngstown. Subsequently, on October 19, 2012, Freeman participated in the robbery of a Subway in Youngstown. Then on November 10, 2012, Freeman participated again in the robbery of a Family Dollar in Boardman. Freeman, who was age twenty at the time, enlisted the help of juveniles to assist him in committing these crimes.
{3} On January 10, 2013, a Mahoning County grand jury indicted Freeman, along with three co-defendants, in connection with the robberies. The indictment contained nine counts, six of which included Freeman: count one, engaging in a pattern of corrupt activity in violation of
{4} Pursuant to a
{5} Freeman‘s sentencing hearing took place on February 5, 2014. The state recommended an 11-year prison term. (Sentencing Tr. 6.) The court sentenced
{6} Appointed appellate counsel filed a no-merit brief on June 23, 2014. On July 30, 2014, this court issued a judgment entry informing Freeman of counsel‘s no-merit brief and granting him thirty days to file his own written brief. Freeman has not filed an appellate brief on his own behalf.
{7} As indicated, Freeman‘s appointed appellate counsel has filed a no-merit brief pursuant to State v. Toney, 23 Ohio App.2d 203, 262 N.E.2d 419 (7th Dist.1970), and setting forth two potential assignments of error. In Toney, this court recognized an indigent defendant‘s constitutional right to court-appointed counsel for direct appeal of their conviction. Id., at paragraph one of the syllabus. After a conscientious examination of the record, counsel should present any assignments of error which could arguably support the appeal. Id., at paragraph two of the syllabus. If instead counsel determines that the defendant‘s appeal is frivolous and that there is no assignment of error which could be arguably supported on appeal, then counsel should inform the appellate court and the defendant of that by brief and ask to withdraw as counsel of record. Id., at paragraph three and four of the syllabus. The defendant is then given the opportunity to raise, pro se, any assignments of error he chooses. Id., at paragraph four of the syllabus. The appellate court then is duty bound to examine the record, counsel‘s brief, and any pro se arguments, and determine if the appeal is wholly frivolous. Id., paragraph five of the syllabus. If after determining that the appeal is wholly frivolous, then the appellate court should permit counsel to withdraw and affirm the judgment of conviction and sentence. State v. Toney, 23 Ohio App.2d 203, 262 N.E.2d 419 (7th Dist.1970).
Effectiveness of Trial Counsel
{9} Appellate counsel, in the Toney brief, raised the first potential assignment of error:
THE RECORD DOES NOT SHOW INEFFECTIVE ASSISTANCE OF COUNSEL.
{10} In order to prove ineffective assistance of counsel, an appellant must satisfy a two-prong test. First, the appellant must establish that counsel‘s performance was deficient, and second, the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. Even if counsel‘s performance is considered deficient, a conviction cannot be reversed absent a determination that appellant was prejudiced. State v. Dickinson, 7th Dist. No. 03 CO 52, 2004-Ohio-6373, ¶ 13, citing Bradley, 42 Ohio St.3d at 142, 538 N.E.2d 373. To show that he has been prejudiced by trial counsel‘s deficient performance, appellant must prove that there is a reasonable probability that but for counsel‘s serious error, the result of the trial would have been different. Id., citing State v. Baker, 7th Dist. No. 03 CO 24, 2003-Ohio-7008, ¶ 13; State v. Keith, 79 Ohio St.3d 514, 534, 684 N.E.2d 47 (1997).
{11} A court deciding an ineffective assistance claim does not need to “approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S.
{12} The appellant bears the burden of proof on the issue of counsel‘s effectiveness, and in Ohio, a licensed attorney is presumed competent. State v. Carter, 7th Dist. No. 2000-CO-32, 2001 WL 741571 (June 29, 2001) citing State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). Furthermore, “strategic or tactical decisions will not form a basis for a claim of ineffective assistance of counsel.” Dickinson at ¶ 11, citing State v. Clayton, 62 Ohio St.2d 45, 48-49, 402 N.E.2d 1189 (1980).
{13} In Dickinson, this court stated “[e]ffectiveness is, ‘not defined in terms of the best available practice, but rather should be viewed in terms of the choices made by counsel.‘” Id. at ¶ 12, quoting State v. Wilkins, 64 Ohio St.2d 382, 390, 415 N.E.2d 303 (1980). This court urged that the reasonableness of the attorney‘s decisions must be assessed at the time the decisions are made, and not at the time of assessment. Id., citing Wilkins, 64 Ohio St.2d at 390, 415 N.E.2d 303.
{14} In the present case, there is nothing to suggest that trial counsel‘s performance was deficient. At the plea hearing, the trial court asked Freeman if he was satisfied with his legal representation, which he said he was. (Plea Tr. 11.) Additionally, at the sentencing hearing, counsel spoke on behalf of Freeman, emphasizing his young age, difficult environment, and his success in earning his GED. (Sentencing Tr. 9, 11.) Moreover, Freeman faced a potential 61-year prison term, but received only an 11-year prison term, which was the recommendation by counsel and the state. (Sentencing Tr. 8-13.) Thus, the record does not reveal any deficiency in the trial counsel‘s performance.
{15} Accordingly, the first potential assignment of error issue is without merit.
Plea Colloquy
{16} The second potential assignment of error raised in appellant counsel‘s Toney brief states:
THE RECORD DOES NOT SHOW THAT APPELLANT‘S PLEA WAS INVOLUNTARY, UNKNOWING OR UNWILLING.
{17} Thus, this court must determine whether the plea was entered into voluntarily, knowingly and intelligently in accordance with
{18} The constitutional rights are: (1) a jury trial; (2) confrontation of witnesses against him; (3) the compulsory process for obtaining witnesses in his favor; (4) that the state must prove the defendant‘s guilt beyond a reasonable doubt at trial, and (5) that the defendant cannot be compelled to testify against himself. Id., citing
{19} The nonconstitutional rights are that: (1) the defendant must be informed of the nature of the charges; (2) the defendant must be informed of the maximum penalty involved, which includes an advisement on post-release control, if it is applicable; (3) the defendant must be informed, if applicable, that he is not eligible for probation or the imposition of community control sanctions, and (4) the defendant must be informed that after entering a guilty plea or a no contest plea, the court may proceed to judgment and sentence. Wright at ¶ 14, citing
{20} For the nonconstitutional rights, the trial court must substantially comply with
{21} In this case, the trial court strictly complied with
{22} Additionally, the trial court substantially complied with
{23} Additionally, the trial court asked Freeman whether he understood and signed the plea agreement of his own free will and he affirmed that he had. (Plea Tr. 10-11.) Also, the court questioned whether Freeman was under the influence of drugs or alcohol and he responded that he was not. (Plea Tr. 10).
{24} In sum, after reviewing the transcript, the plea colloquy complied with
{25} Accordingly, the second potential assignment of error is without merit.
Sentencing
{26} Our attention turns now to sentencing. The 11-year sentence imposed
{27} In this case, Freeman was convicted of engaging in a pattern of corrupt activity in violation of
{28} The prison term for a first-degree felony shall be 3, 4, 5, 6, 7, 8, 9, 10, or 11 years.
{29} While Freeman‘s individual sentences were authorized by law, whether the trial court‘s imposition of consecutive sentences was authorized by law may seem to be, at least at first glance, a different matter.
{30} Here, it is apparent that the trial court did not adequately make the required findings at the sentencing hearing and in the judgment entry of sentence. However,
[I]f a mandatory prison term is imposed upon an offender * * * for having a firearm on or about the offender‘s person or under the offender‘s control while committing a felony, * * * the offender shall serve any mandatory prison term imposed * * * consecutively to and prior to any prison term imposed for the underlying felony * * *; and consecutively to any other prison term or mandatory prison term previously or subsequently imposed upon the offender.
{31} Here, the only sentences that were ordered to be served consecutively were the sentences for the for the firearm specifications. Therefore, pursuant to
{32} The 11-year sentence the trial court imposed fell within the statutory range and, therefore, was authorized by law. Since Freeman‘s sentence was jointly
{33} In conclusion, for all the foregoing reasons, the potential assignments of error are without merit and an independent review of the case file reveals there are no appealable issues. The conviction and sentence is affirmed and appointed appellate counsel‘s motion to withdraw is granted.
Vukovich, J., concurs.
DeGenaro, P.J., concurs.