STATE OF OHIO, Plaintiff-Appellee, v. DEAN O. GRENOBLE, Defendant-Appellant.
CASE NO. CA2012-01-001
IN THE COURT OF APPEALS TWELFTH APPELLATE DISTRICT OF OHIO PREBLE COUNTY
12/17/2012
[Cite as State v. Grenoble, 2012-Ohio-5961.]
RINGLAND, J.
CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS Case No. 09-CR-10345
Flanagan, Lieberman, Hoffman & Swain, Richard Hempfling, 15 West Fourth Street, Suite 100, Dayton, Ohio 45402, for defendant-appellant
O P I N I O N
RINGLAND, J.
{¶ 1} Defendant-appellant, Dean Grenoble, appeals a decision of the Preble County Court of Common Pleas denying his motion to modify his sentence pursuant to House Bill 86.
{¶ 2} On July 9, 2010, appellant was found guilty of one count of possession of marijuana in violation of
{¶ 3} On May 16, 2011, this court affirmed appellant‘s conviction and sentence. State v. Grenoble, 12th Dist. No. CA2010-09-011, 2011-Ohio-2343. On May 18, 2011, the state moved to impose appellant‘s sentence. On October 7, 2011, following a hearing on the motion, the trial court issued an entry lifting the stay on appellant‘s sentence, and ordered him to begin serving the eight-year prison term. The court also credited appellant with 76 days served.
{¶ 4} Appellant subsequently moved to modify his sentence to reflect the amendments to Ohio‘s felony sentencing statutes enacted by House Bill 86 (H.B. 86), which he claimed were in effect when he was sentenced. The trial court overruled appellant‘s motion.
{¶ 5} Appellant timely appeals, raising two assignments of error for review.
{¶ 6} Assignment of Error No. 1:
{¶ 7} THE TRIAL COURT ERRED IN OVERRULING APPELLANT‘S MOTION TO MODIFY SENTENCE.
{¶ 8} In his first assignment of error, appellant claims that the trial court erred when it failed to apply H.B. 86 to his sentence. He asserts that H.B. 86 changed the penalties for many offenses, including violations of
{¶ 9} H.B. 86 became effective on September 30, 2011. The General Assembly expressly provided in Section 4 of H.B. 86 when the amendments were to be applicable: “The amendments * * * apply to a person who commits an offense specified or penalized under those sections on or after the effective date of this section and to a person to whom division (B) of section 1.58(B) of the Revised Code makes the amendments applicable.”
{¶ 10}
{¶ 11} At issue here is the phrase “if not already imposed.”
{¶ 12} The Supreme Court of Ohio has held that “[a] criminal sentence is final upon the issuance of a final order.” State v. Carlisle, 131 Ohio St.3d 127, 2011-Ohio-6553, ¶ 11, citing State v. Lester, 130 Ohio St.3d 303, 2011-Ohio-5204, syllabus. “A judgment of conviction is a final order subject to appeal * * * when the judgment entry sets forth (1) the
{¶ 13} Thus, because the trial court imposed appellant‘s sentence on August 30, 2010, over one year prior to the effective date of H.B. 86, the amended statutes did not apply, and the court did not err in denying appellant‘s motion to modify his sentence.
{¶ 14} Appellant‘s first assignment of error is overruled.
{¶ 15} Assignment of Error No. 2:
{¶ 16} APPELLANT RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL. [sic]
{¶ 17} Appellant now contends that in the event that we find that H.B. 86 applied to his
{¶ 18} In determining whether counsel‘s performance constitutes ineffective assistance, an appellate court must find that counsel‘s actions fell below an objective standard of reasonableness and that appellant was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052 (1984). In performing its review, an appellate court is not required to examine counsel‘s performance under the first prong of the Strickland test if an appellant fails to prove the second prong of prejudicial effect. State v. Clark, 12th Dist. No. CA2008-09-113, 2009-Ohio-2101, ¶ 18. In demonstrating prejudice, an appellant must show that there is a reasonable probability that, but for counsel‘s errors, the result of the trial would have been different. Id., citing Strickland at 694.
{¶ 19} As stated earlier, H.B. 86 did not apply to appellant, thus he cannot show that, but for trial counsel‘s failure to request sentencing under H.B. 86, his sentence would have been different. Strickland, 466 U.S. at 694;
{¶ 20} Appellant‘s second assignment of error is overruled.
{¶ 21} Judgment affirmed.
S. POWELL, P.J., and PIPER, J., concur.