State v. GolsonState v. Golson
Rendered on the 19th day of February, 2010.
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R. LYNN NOTHSTINE, Atty. Reg. No. 0061560, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
STEVEN A. GOLSON, #372-493, Lebanon Correctional Institution, P. O. Box 56, Lebanon, Ohio 45036
Defendant-Appellant
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DONOVAN, P.J.
{¶ 1} This matter is before the Court on the pro se Notice of Appeal of Steven Golson, filed September 5, 2008. On June 25, 2008, Golson was brought before the trial court for a re-sentencing hearing, pursuant to
{¶ 2} Golson asserts four assignments of errors. We will consider them together. They are as follows:
{¶ 3} “DEFENDANT-APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL AT THE RE-SENTENCING HEARING WHER[E] THE RESENTENCING PROCESS IS VIOLATIVE OF THE DUE PROCESS CLAUSE OF THE OHIO AND U.S. CONSTITUTION AND CANTRARY [sic] TO THE SEPARATION OF POWERS DOCTRINE.” And,
{¶ 4} “DEFENDANT-APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL AT THE JUNE 26, 2008 RESENTENCING HEARING WHERE COUNSEL FAILED TO OBJECT AND ARGUE THAT APPELLANT‘S MAXIMUM SENTENCE OF SIX [6] YEARS HAD EXPIRED IN 2006 AT THE LATEST,” And,
{¶ 5} “DEFENDANT-APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL AT THE RESENTENCING HEARING OF JUNE 26, 2008 WHERE HE FAILED TO OBJECT TO THE FACT THAT THE AGGRAVATED
{¶ 6} “DEFENDANT-APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL WHERE THE ATTORNEY FAILED TO OBJECT THAT THE RESENTENCING HEARING AND JUDGMENT VIOLATED APPELLANT‘S RIGHT NOT TO BE SUBJECTED TO RETROACTIVE JUDICIAL ENLARGEMENT OF THE SENTENCING STATUTES CONTRARY TO DUE PROCESS OF LAW AS CONSTITUTION EX POST FACTO LEGISLATION AS WELL AS THE DOUBLE JEOPARDY CLAUSE OF THE OHIO AND UNITED STATES CONSTITUTION.”
{¶ 7} Golson asserts in the above errors that defense counsel was ineffective at Golson‘s resentencing hearing in failing to object on several grounds. According to Golson, defense counsel was deficient in failing to object: (1) that the Ohio Supreme Court‘s decision in State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856 is unconstitutional; (2) that Golson‘s original sentence, imposed prior to Foster, expired after six years (the shortest prison term authorized by statute) and therefore he should not have been resentenced; (3) that his convictions for aggravated robbery and kidnaping resulted from deficient indictments that failed to include the requisite mens rea for the charged offenses; and (4) that Golson‘s sentence is unconstitutional because the State did not prove “sentencing enhancers,” and that a sentence in excess of six years was accordingly prohibited. Golson also asserts that his sentence violates the Double Jeopardy Clause. In a supplemetnal filing, Golson asserts that his convictions should have been merged as they are allied offenses of
{¶ 8} “We review the alleged instances of ineffective assistance of trial counsel under the two prong analysis set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, and adopted by the Supreme Court of Ohio in State v. Bradley (1989), 42 Ohio St.3d 136, * * * . Pursuant to those cases, trial counsel is entitled to a strong presumption that his or her conduct falls within the wide range of reasonable assistance. Strickland, 466 U.S. at 688. To reverse a conviction based on ineffective assistance of counsel, it must be demonstrated that trial counsel‘s conduct fell below an objective standard of reasonableness and that his errors were serious enough to create a reasonable probability that, but for the errors, the result of the trial would have been different. Id. Hindsight is not permitted to distort the assessment of what was reasonable in light of counsel‘s perspective at the time, and a debatable decision concerning trial strategy cannot form the basis of a finding of ineffective assistance of counsel.” (Internal citation omitted). State v. Mitchell, Montgomery App. No. 21957, 2008-Ohio-493, ¶ 31.
{¶ 9} We initially note, Golson has failed to provide us with a sentencing transcript. “Therefore, the record does not portray the errors he alleges. Under such circumstances, we must presume the regularity of the proceedings below” and affirm. (Citation omitted). State v. Jones, Montgomery App. No. 20862, 2006-Ohio-2640, ¶ 50; Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197; State v. Jones, Montgomery App. No. 20862, 2006-Ohio-2640.
{¶ 10} Further, as the State points out, Golson was resentenced, not pursuant to the mandates of Foster, but pursuant to
{¶ 11} Regarding Golson‘s Foster arguments, “we have held that Foster does not operate as an ex post facto law. (Citation omitted). We have also repeatedly held that we are without jurisdiction to declare that Foster‘s mandate operates as an unconstitutional ex post facto law. (Citation omitted). Accordingly, [Golson‘s] argument that the mandate of the supreme court in Foster violates the United States Constitution is not cognizable in this court. In addition, we have consistently held that Foster does not apply retroactively to those cases that were neither on direct appeal nor still pending in the trial court when Foster was decided. (Citation omitted). Because [Golson‘s] case was neither on direct appeal nor pending in the trial court when Foster was decided, Foster‘s holding is inapplicable to his case.” State v. Kemp, Clark App. No. 2206 CA 116, 2007-Ohio-5985, ¶ 6. Further, sentencing courts may impose greater than minimum and consecutive sentences without judicial factfinding after Foster, contrary to Golson‘s arguments. Foster, paragraph 7 of the
{¶ 12} Regarding Golson‘s supplemental filing, we agree with the State, again, that in the absence of a transcript, the record is inadequate to allow review of Golson‘s assigned errors regarding allied offenses of similar import.
{¶ 13} There being no merit to Golson‘s assigned errors, they are overruled, and the judgment of the trial court is affirmed.
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GRADY, J. and HARSHA, J., concur.
(Hon. William H. Harsha, Fourth District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
R. Lynn Nothstine
Steven A. Golson
Hon. Barbara P. Gorman