State v. HeverlyState v. Heverly
CHARACTER OF PROCEEDINGS: Criminаl Appeal from Common Pleas Court, Case No. 07CR140.
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Attorney Robert Herron Prosecuting Attorney Attorney Timothy McNicol Assistant Prosecuting Attorney 105 South Market Street Lisbon, Ohio 44432
For Defendant-Appellant: Attorney Douglas King 91 West Taggart Street P.O. Box 85 East Palestine, Ohio 44413
JUDGES: Hon. Joseph J. Vukovich Hon. Gene Donofrio Hon. Mary DeGenaro
¶{1} Defendant-appellant James Heverly appeals from his conviction and sentence in thе Columbiana County Common Pleas Court of rape, a violation of
STATEMENT OF CASE
¶{2} On April 26, 2007, Heverly was indicted for rape of a child under thirteen years of age, a violation of
¶{3} Heverly was arraigned and pled not guilty to the charge. 05/29/07 J.E. After discovery and waiving his right to a speedy trial, Heverly and the state reached a plea agreement whereby the age specification would be dismissed and the state would recommend a six year sentence. According to the agreement, Heverly pled guilty to rape, a violation of
¶{4} At sentencing, the state recommended a six year prison term. 03/26/08 Sentencing Tr. 5. Heverly asked the court to consider a five year sentence versus the
¶{5} Heverly filed a delayed appeal, which this court allowed. 03/09/09 J.E.
PROPOSED ASSIGNMENT OF ERROR
¶{6} “DEFENDANT/APPELLANT WAS DENIED SUBSTANTIVE DUE PROCESS DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL.”
¶{7} Heverly asserted to appellate counsel that at the trial level he was denied effective assistance of counsel and, thus, wished to raise this argument to the appellate court. In the brief, appellate counsel indicated that he reviewed this argument for the appeal, but believes it lacks merit. Thus, appellate counsel submits this assignment of error under the authority of Anders v. California (1967), 386 U.S. 738.
¶{8} On September 3, 2009, this court issued a judgment entry granting Heverly fourteen days to supplement the proposed assignment of error. Heverly filed a supplemental brief on October 6, 2009. Both counsel and Heverly‘s briefs on the issue of ineffectiveness will be reviewed; we will independently review whethеr trial counsel was ineffective and address Heverly‘s pro se arguments.
¶{9} The proposed assignment of error and Heverly‘s supplemental brief claim that trial counsel was ineffective. Since Heverly entered a guilty plea, our standard of review for reviewing any alleged errors that occurred prior to the acceptance of the plea is not the traditional two-prong Strickland test. Instead, we will only vacate the guilty plea if trial counsel‘s ineffectiveness affected the knowing and voluntary character of the plea. State v. Doak, 7th Dist. Nos. 03CO15 and 03CO31, 2004-Ohio-1548, ¶55, quoting State v. Madeline (Mar. 22, 2002), 11th Dist. No. 2000-T-0156. Using that standard, we now examine trial counsel‘s actions prior to the guilty plea.
¶{10} Permitting a defendant to enter a guilty plea after speedy trial time had expired would amount to ineffective assistance of counsel, and thus, could affect the
¶{11} Furthermore, defense counsel moved to suppress evidence that the state intended to introduce at trial. 09/07/07 hearing. The court granted that request. 09/12/07 J.E. Thus, there is no potential argument that counsel failed to move to suppress evidence or that that failure affected the knowing and voluntary nature of the plea.
¶{12} Lastly as to any pre-plea errors, Heverly, pro se, argues that certain allegations in the medical examination report went uninvestigated as well as unquestioned by counsel. The record before this court does not contain the medical examination report. Thus, this alleged error is outside the record and, as such, is not reviewable on direct appeal. State v. Perry (1967), 10 Ohio St. 2d 175. That said, the arguments Heverly is making pertain to the results of the mеdical exam and certain factual allegations contained within the report. Heverly claimed to tell his counsel that the factual allegations were incorrect. These were arguments that could have been raised at trial by offering testimony from his family that he allegedly showed that the report was factually inaccurate. Heverly knew of these alleged inaccuracies at the time of the plea. One can only speculate how his legal counsel got appellant to abandon those purported inaccuracies and adversely impacted the knowing and voluntary nature of his guilty plea. Such speculation is not a basis to find ineffectiveness of legal counsel. Therefore, this argument lacks merit.
¶{13} Having reviewed pre-plea actions of counsel, we now turn to the plea hearing.
¶{15} 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 applicаble, 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.
¶{16} For the nonconstitutional rights, the trial cоurt must substantially comply with
¶{18} As to the nonconstitutional rights, Heverly was advised of the charge in the indictment, rape with an age specification, and was advised of the charge which he was pleading to, rape without the age specification. 10/15/07 Plea Tr. 9, 12-13. He was informed that a prison term was mandatory and that he was not eligible for a community control sanction. 10/15/07 Plea Tr. 10. The trial court cоrrectly advised him of the maximum penalty involved for the indicted offense, which was a life sentence, and the maximum penalty involved for the rape offense without the age specification, ten years and a twenty-five thousand dollar fine. 10/15/07 Plea Tr. 9. See, also,
¶{19} Additionally, in regards to the penalty for rape, Heverly was told that at the time of sentencing the trial court would classify him and inform him of his duty to register. 10/15/07 Plea Tr. 10. This advisement was sufficient for the plea hearing and the lack of a more specific advisement did not render the plea unknowingly, unintelligently and involuntarily entered. Our sister courts have explained:
¶{20} “[T]hat a trial court need not inform a sex offender of the registration and notification requirements of
¶{21} We adopt the above reasoning as our own. Thus, the trial court‘s advisement as to sexual offender classifiсation and registration amounted to substantial compliance.
¶{22} The only possible problem with the nonconstitutional advisement was that at the October 15, 2007 plea hearing, the trial court did not inform Heverly that after accepting the plea it was permitted to proceed directly to sentencing. However, the trial court did not proceed directly to sentencing, but rather ordered a PSI and set sentencing for January 14, 2008, almost three months later. Therefore, this court cannot find prejudice. Therefore, there is no means for vacating the plea. State v. O‘Neal (Sept. 29, 1999), 9th Dist. No. 19255.
¶{23} Thus, given the above, we conclude that the trial court substantially complied with
¶{24} Having found no merit with any argument that trial counsel was ineffective at any stage prior to the acceptance of the guilty plea, our attention now turns to the actions of counsel after the acceptance of the guilty plea.1
¶{26} After entering the guilty plea, but prior to sentencing, counsel filed a motion to withdraw the guilty plea. 03/03/08 Motion. The motion was based on the trial court‘s advisement regarding the sexual offender classification and registration. That motion was withdrawn prior to sentencing. 03/26/08 Sentencing Tr. 3.
¶{27} As is shown above, the motion to withdraw did not have any merit. Thus, counsel withdrawing the motion did not prejudice Heverly and, as such, did not amount to ineffective assistance of counsel.
¶{28} At sentencing, counsel argued for a lesser sentence. 03/26/08 Sentencing Tr. 5. Consequently, his actions cannot be in any way characterized as deficient in regards to the length of prison sentence Heverly received.
¶{29} Heverly argues “that the court agreed to dismiss the age specification and then placing the Defendant as a Tier III, Sexual Predator.” It appears that he is arguing that he could not have beеn placed as a Tier III Sex Offender when the age specification was dismissed. As stated above, Heverly was charged with
¶{30} In conclusion, counsel‘s representation of Heverly prior to the guilty plea did not affect the knowing and voluntary nature of the plea, and thereby, was not ineffective. Also, counsel‘s representation after the plea was entered was not ineffective. The рroposed assignment of error and Heverly‘s supplemental assignment of error are without merit.
FIRST AND SECOND ASSIGNMENTS OF ERROR
¶{31} “THE DEFENDANT/APPELLANT‘S SENTENCE WAS NOT PROPORTIONAL RELATIVE TO THE DEFENDANT‘S CONDUCT LEADING TO THE CHARGE AND THEREFORE THE SENTENCE IS CONTRARY TO LAW.”
¶{32} “DEFENDANT/APPELLANT‘S SENTENCE IS CONTRARY TO LAW AS IT DOES NOT SERVE THE OVERRIDING PURPOSES AND PRINCIPLES OF SENTENCING AS EXPRESSED IN ORC 2929.11.”
¶{33} The disposition of the first assignment of error encompasses analysis that disposes of the second assignment of error. Thus, they are addressed simultaneously.
¶{34} We review felony sentences using both the clearly and convincingly contrary to law and abuse of discretion standards of review. State v. Gratz, 7th Dist. No. 08MA101, 2009-Ohio-695, ¶8; State v. Gray, 7th Dist. No. 07MA156, 2008-Ohio-6591, ¶17. A sentence is clearly and convincingly contrary to lаw when the sentencing court does not comply with all applicable rules and statutes in imposing the sentence. Gratz, 7th Dist. No. 08MA101, 2009-Ohio-695, at ¶8, citing State v. Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912, ¶13-14. An abuse of discretion can be found if the sentencing court unreasonably or arbitrarily weighs the factors in
¶{35} Heverly argues that although the Ohio Supreme Court in State v. Foster, 109 Ohio St. 3d 1, 2006-Ohio-856, determined that
¶{36}
¶{37} As Heverly concedes, Foster determined that
¶{38} Consequently, the above clearly indicates that the trial court was not required to engage in the proportionality analysis espoused in
¶{39} As to Heverly‘s mention of a proportionality review, he may have intended to cite both
¶{40} In neither the sentencing transcript or in the sentencing judgment entry did the trial court state that it considered
¶{41} Here, Heverly has failed to make an affirmative showing that the sentencing court failed to consider the proper factors in issuing a six year sentence. Moreover, considering the limited facts in the record, we cannot find that a six year sentence for rape (digital penetration) of a child under thirteen is inconsistent with the faсtors in
¶{42} Furthermore, the trial court ordered a PSI for sentencing. The PSI shows that Heverly had previously been charged with criminal conduct and had also been found guilty of sоme of the charges. Those convictions and offenses that did not result in convictions demonstrate that recidivism is more likely. The court was authorized to consider both the convictions and the charged offenses that did not
¶{43} However, we note that prior to sentencing, Heverly did state that he was sorry. 03/26/08 Tr. 6. That is a factor indicating recidivism is less likely.
¶{44} The sentencing range for commission of this first degree felony is three to ten years.
¶{45} Consequently, for all the above reasons, we find that Heverly did not overcome the rebuttal presumption, the sentence is consistent with ¶{46} “THE TRIAL COURT‘S IMPOSITION OF A SIX (6) YEAR SENTENCE IN THE PRESENT CASE IS CONTRARY TO LAW AND/OR VIOLATES THE MANDATES OF ORC 2929.13(A).” ¶{47} Heverly argues that the sentence violates ¶{48} ¶{49} “‘Just what constitutes a “burden” on state resources is undefined by the statute, but the plain language suggests that the costs, both economic and societal, should not outweigh the benefit that the people of the state derive from an offender‘s incarceration. * * * The court must also consider the benefit to society in assuring that an offender will not be free to reoffend. Many people sleep better at night knowing that certain offenders are incarcerated. They would no doubt consider a lengthy ¶{50} Hence, considering Heverly‘s prior convictions and charges, the cost of incarceration does not outweigh the benefit to society. During his incarceration, he is unable to harm society by committing sex offenses. ¶{51} For the foregoing reasons, the judgment of the trial court is hereby affirmed. Donofrio, J., concurs. DeGenaro, J., concurs.THIRD ASSIGNMENT OF ERROR
CONCLUSION