State v. HominskyState v. Hominsky
BEFORE: McMonagle, J., Cooney, A.J., and Blackmon, J.
RELEASED: August 13, 2009
ATTORNEY FOR APPELLANT
William L. Dawson
13938 Cedar Road, Suite 366
Cleveland, OH 44118
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Mahmoud Awadallah
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
N.B. This entry is an announcement of the court’s decision. See
{¶ 1} Defendant-appellant, Anthony Hominsky, Jr., pled guilty to one count of tampering with evidence, a third-degree felony, and one count each of obstruction of justice and falsification, both first-degree misdemeanors. The trial court sentenced him to five years incarceration. He appeals, asserting that he did not receive effective assistance of counsel and that the trial court’s sentence was “statutorily improper.” We affirm.
I. Background
{¶ 2} On October 26, 2007, Hominsky and his girlfriend, Samantha Rauch, left a party at approximately 10:30 p.m. Rauch drove, while Hominsky slept. As she was driving, Rauch struck and killed a man who was riding his bike on the side of the road. She did not stop to help the victim and did not report the accident to the police. She drove a little further down the road, then stopped, woke Hominsky, and told him what had happened. Hominsky drove the car the rest of the way home and, in order to cover up the damage to Rauch’s car caused by the accident, smashed the windows of the car and ripped out the radio to make it appear as though the car had been stolen or vandalized. He then called the police and falsely reported that someone had broken into the vehicle. It is disputed whether Hominsky or Rauch then called a junkyard; however, the car was eventually
{¶ 3} After receiving an anonymous tip, the police focused their investigation of the hit-and-run on Rauch and Hominsky. Because they could not find the car, the prosecution offered Rauch a plea agreement. Rauch subsequently confessed and pled guilty to a misdemeanor charge of vehicular homicide; she was sentenced to six months in jail. Rauch implicated Hominsky, who was charged with tampering with evidence, obstruction of justice, and falsification. He subsequently pled to the indictment as charged.
II. Law and Analysis
A. Ineffective Assistance of Counsel
{¶ 4} In his first assignment of error, Hominsky argues that he was denied his constitutional right to effective assistance of counsel because his lawyer did not negotiate a plea to lesser charges, advise him of the possible sentences if he pled guilty, and was not responsive to his “need for clarification.”
{¶ 5} To establish ineffective assistance of counsel, a defendant must demonstrate that counsel’s performance fell below an objective standard of reasonable representation and that he was prejudiced by that performance. State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus,
{¶ 6} A plea of guilty waives the right to claim that the accused was prejudiced by constitutionally ineffective counsel, except to the extent the defects complained of caused the plea to be less than knowing and voluntary. State v. Thomas, 8th Dist. No. 85294, 2005-Ohio-4145, ¶12-13. See, also, State v. Barnett (1991), 73 Ohio App.3d 244, 248.
{¶ 7} “Where a defendant enters a plea of guilty upon counsel’s advice, the voluntariness of the plea depends on whether the advice was within the range of competence demanded of attorneys in criminal cases. The two-part standard adopted in Strickland for evaluating claims of ineffective assistance of counsel * * * applies to guilty plea challenges based on ineffective assistance of counsel. In order to satisfy the second, or ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Hill v. Lockhart (1985), 474 U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed 2d 203.
{¶ 8} Hominsky makes no claim that he would not have pled guilty but for counsel’s alleged errors and, in fact, the record demonstrates otherwise.
{¶ 9} The record also reflects that prior to taking the plea, the trial judge informed Hominsky of the possible penalties he would face by pleading guilty and Hominsky stated that he understood the penalties.
{¶ 10} With respect to counsel’s alleged failure to respond to his “need for clarification,” Hominsky does not explain on appeal what he needed clarified or how counsel allegedly failed to respond to this need. The record, however, reflects that Hominsky did not ask any questions of his counsel or the judge at the plea hearing, and that prior to entering his plea, Hominsky told the judge that he was satisfied with his counsel’s representation and that he understood “everything.”
{¶ 11} In Bradley, 42 Ohio St.3d at 143, the Ohio Supreme Court noted that reviewing courts need not examine counsel’s performance if the
B. Sentencing
{¶ 12} Hominsky next complains that his sentence was “statutorily improper.” He contends that the trial court abused its discretion in sentencing him to five years incarceration because the record does not support the sentence. He further contends that the trial court did not consider
{¶ 13} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, the Ohio Supreme Court articulated a two-step approach for our review of felony sentences. The Court stated:
{¶ 14} “In applying [State v.] Foster [109 Ohio St.3d 1, 2006-Ohio-856] to the existing statutes, appellate courts must apply a two-step approach. First, they must examine the sentencing court’s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. If this first prong is
{¶ 15} In determining whether the trial court imposed its sentence in accordance with law, we are mindful that the trial court has wide discretion to sentence an offender within the allowable statutory range permitted for a particular offense. Foster at ¶100. Here, the trial court sentenced Hominsky to five years in prison for tampering with evidence, and six months incarceration each for obstruction of justice and falsification. These sentences are within the statutory range permissible for the offenses.
{¶ 16} Although Foster no longer requires the trial court to make findings or give reasons for imposing its sentence, it must still consider
{¶ 17} The record in this case demonstrates that the trial court considered
{¶ 18} Having determined that the sentence imposed is not contrary to law, we next consider whether the trial court abused its discretion in sentencing Hominsky to five years incarceration. An abuse of discretion is “more than an error of law or judgment; it implies that the court’s attitude [was] unreasonable, arbitrary or unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219.
{¶ 19} The record from the sentencing hearing reflects that in an attempt to mitigate his sentence, Hominsky apologized for his acts and asked for forgiveness. His mother testified that he was remorseful and indicated that he had a difficult childhood. However, the victim’s sister and brother offered testimony that Rauch and Hominsky left the victim on the side of the road to die. With respect to recidivism, the prosecutor stated that Hominsky had been arrested and charged with public intoxication only several days
{¶ 20} Finally, Hominsky argues that his sentence is not consistent with sentences for similar crimes by similar offenders. This court has consistently held, however, that to support a contention that a sentence is disproportionate to sentences imposed upon other offenders, “a defendant must raise this issue before the trial court and present some evidence, however, minimal, in order to provide a starting point for analysis and to preserve the issue for appeal.” State v. Edwards, 8th Dist. No. 89191, 2007-Ohio-6068. As Hominsky did not raise the proportionality issue in the trial court, he has not preserved the issue for appeal.
{¶ 21} His second assignment of error is therefore overruled.
Affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
CHRISTINE T. McMONAGLE, JUDGE
COLLEEN CONWAY COONEY, A.J., and
PATRICIA A. BLACKMON, J., CONCUR