State v. HoustonState v. Houston
Keith O‘Korn, for appellant.
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YARBROUGH, J.
{¶ 1} This is an appeal from the judgment of the Sandusky County Court of Common Pleas imposing a 23-year sentence on appellant Jimmy Houston. For the reasons that follow, we affirm.
{¶ 3} On April 26, 2010, appellant pleaded guilty to two counts of attempted murder in violation of
{¶ 4} A sentencing hearing was held on May 11, 2010. After considering the presentence investigation report and the statements from the victims and from appellant, the trial court sentenced appellant to a term of 23 years. The sentence consisted of ten years on each of the two attempted murder convictions, to be served consecutively, a term of ten years each on the kidnapping and aggravated burglary convictions, to be served concurrently to each other and to the attempted murder convictions, a mandatory
{¶ 5} Appellant has timely appealed the May 12, 2010 judgment entry, and now raises the following three assignments of error:
- “APPELLANT‘S SENTENCE WAS CONTRARY TO LAW AND CONSTITUTED AN ABUSE OF DISCRETION.”
- “IN CONTRAVENTION OF RECENT U.S. SUPREME COURT PRECEDENT, OREGON V. ICE, THE 6TH AMENDMENT TO THE U.S. CONSTITUTION, AND THE RE-ENACTED OHIO SENTENCING CODE, THE TRIAL COURT ERRED BY IMPOSING CONSECUTIVE SENTENCES WITHOUT MAKING THE REQUIRED STATUTORY FINDINGS PURSUANT TO R.C. §§ 2929.14(E)(4), 2929.41(A).”
- “TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE 6TH AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, SECTIONS 10, 16 OF THE OHIO CONSTITUTION.”
{¶ 6} As to appellant‘s first assignment of error, we start with the general rule that “appellate courts must apply a two-step approach when reviewing felony sentences.
{¶ 7} Appellant presents four arguments in support of his first assignment of error. First, appellant argues that the sentence is contrary to law because it violates the conservation of resources principle under
{¶ 8} Here, appellant, who was born in 1976, contends that any danger to society he represents would be abated long before the time of his release, and thus any future benefit from his incarceration would be outweighed by the cost to the state. However, the state clearly has a significant interest in incarcerating anyone who plans a home invasion that results in the severe beating of two elderly citizens. Thus, we cannot find that appellant‘s sentence was clearly and convincingly contrary to
{¶ 9} Second, appellant argues that the sentence is neither proportional nor consistent under
{¶ 10} We initially note that “[t]he issue of disproportionate sentencing must first be raised in the trial court and supported by sufficient evidence to preserve the error for appeal.” State v. Elkins, 6th Dist. No. S-08-014, 2009-Ohio-2602, ¶ 16. Here, appellant has failed to raise this issue below. Thus, we will not address appellant‘s argument to the extent that he bases it on the contention that his sentence was disproportionate to that of his co-defendants. However, we will address appellant‘s argument to the extent that it is based on his contention that the trial court failed to comply with
{¶ 11} Appellant argues that the trial court failed to comply with
{¶ 12} Moreover, the transcript of the sentencing hearing demonstrates that the trial court did properly consider the statutory sentencing factors and guidelines found in
{¶ 13} “The Court has heard the statements from [the victims], has reviewed the Presentence Investigation, which includes the defendant‘s criminal history, social history, education. And the Court needs to, you know, take all these things into consideration in crafting a penalty. The Court‘s first and foremost job is to protect the public, or attempt to protect the public from future crime and impose the appropriate punishment upon conviction.
{¶ 14} “We can not demean the seriousness of the crime, nor its impact upon the victims. Need to also take into consideration the resources of the State, maintain some consistency in the sentences. Need to take into consideration the seriousness and recidivism factors under
{¶ 15} “* * *
{¶ 16} “Need to take into consideration Mr. Houston‘s history of criminal convictions. * * *
{¶ 17} “* * *
{¶ 18} “So are there any factors which would make it less likely that you might commit future crimes? Well, I haven‘t found them. * * * And I note no factors which would make this offense less serious for sentencing purposes.”
{¶ 19} Based on the foregoing, we cannot conclude that the trial court clearly and convincingly failed to consider
{¶ 20} Further, after reviewing the record, we hold that the trial court did not abuse its discretion in sentencing appellant to 23 years. In explaining why appellant received a different sentence as compared to his co-defendants, the trial court explained that the additional year was due to appellant‘s leadership role in the crime. The trial court stated: “You were the master of the ship, so you take a little more responsibility.” Considering this, we cannot conclude that the trial court‘s sentencing decision was unreasonable, arbitrary, or unconscionable. Therefore, appellant‘s second argument is without merit.
{¶ 21} Third, appellant argues that the May 12, 2010 judgment entry was ambiguous in that it did not specify that the two-year term for the grand theft conviction ran consecutive to the terms imposed for the attempted murder convictions. The original sentencing entry stated “Defendant is further sentenced to a TWO (2) year term in prison on count Ten, for an aggregate sentence of TWENTY-THREE (23) years prison [sic] * * *.” Appellant contends that this is ambiguous and cites to the general proposition that “[i]f sentencing is ambiguous as to whether a sentence should be served concurrently or consecutively, the ambiguity must be resolved in favor of the defendant and the sentences must be served concurrently.” State v. Carr, 167 Ohio App.3d 223, 2006-Ohio-3073, ¶ 4. However, despite not including the word “consecutive,” we do not think that the sentence is ambiguous because to reach the aggregate term of 23 years, the two-year term for grand theft necessarily must be served consecutively.
{¶ 22} In addition, appellant argues that the trial court‘s nunc pro tunc entry clarifying that the grand theft term was to be served consecutively failed to comply with Crim.R. 32(C) and State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330. This court has already addressed this matter in appellant‘s “Motion to Determine Appellate Jurisdiction.” In our December 14, 2010 decision on that motion, we held that the trial court‘s nunc pro tunc entry “did not alter the sentence imposed in any manner.” Thus, we found that “appellant has a judgment which complies with Crim.R. 32(C).” Consequently, appellant‘s third argument is without merit.
{¶ 23} Fourth, appellant argues that the term for the firearm specification must be served consecutively to the underlying offense. In this case, appellant contends that “[s]ince the prison term for the [aggravated] burglary expires ten years before the term for the second attempted murder count expires, the firearm specification would naturally also expire if the trial court had run the firearm specification truly ‘consecutive’ to the [aggravated] burglary count, the base offense.” Appellant‘s argument, while creative, is not consistent with
{¶ 24} Accordingly, because the trial court‘s sentence is neither contrary to law nor an abuse of discretion, appellant‘s first assignment of error is not well-taken.
{¶ 25} For his second assignment of error, appellant argues that the trial court erred by imposing consecutive sentences without making the required statutory findings pursuant to
{¶ 26} Finally, in support of his third assignment of error, appellant argues that his trial counsel was ineffective for failing to file a motion to waive court costs, and for failing to “enter objections or make arguments at sentencing so as to preserve the all [sic] contentions set forth in the first and second assignments of error above.” To demonstrate ineffective assistance of counsel, appellant must satisfy the two-prong test developed in Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. That is, appellant must show counsel‘s performance fell below an objective standard of reasonableness, and a reasonable probability exists that but for counsel‘s error, the result of the proceedings would have been different. Strickland, supra, at 687-688. Here, appellant has failed to demonstrate that the result of the proceedings would have been different had the purported errors not occurred.
{¶ 27} As to appellant‘s first grounds for claiming ineffective assistance, it is true that “an indigent defendant must move a trial court to waive payment of costs at the time of sentencing. If the defendant makes such a motion, then the issue is preserved for appeal and will be reviewed under an abuse-of-discretion standard. Otherwise, the issue is waived and costs are res judicata.” State v. Threatt, 108 Ohio St.3d 277, 2006-Ohio-0905, ¶ 23. Appellant argues that his trial counsel‘s failure to move to waive costs
{¶ 28} As to appellant‘s second grounds for claiming ineffective assistance, we note that the only argument described above which appellant was prevented from raising on appeal was that his sentence was disproportionate to the sentences received by his co-defendants. As with his preceding claim of ineffective assistance, appellant has not demonstrated a reasonable probability exists that, but for the error, the outcome would have been different. As appellant identifies in his brief, this court has held that “[c]onsistent sentencing occurs when a trial court properly considers the statutory sentencing factors and guidelines found in
{¶ 29} Accordingly, appellant has failed to satisfy the second prong of Strickland with respect to either of his claims for ineffective assistance of counsel, and his third assignment of error is not well-taken.
{¶ 30} For the foregoing reasons, the judgment of the Sandusky County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
JUDGMENT AFFIRMED.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4.
Peter M. Handwork, J. _______________________________
JUDGE
Thomas J. Osowik, P.J.
_______________________________
Stephen A. Yarbrough, J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.