State v. JohnsonState v. Johnson
SAMUEL ADAM USMANI, Atty. Reg. No. 0097223, Assistant Prosecuting Attorney, Champaign County Prosecutor‘s Office, 200 North Main Street, Urbana, Ohio 43078 Attorney for Plaintiff-Appellee
PAUL E. WAGNER, Atty. Reg. No. 0067647, 507 South Broadway, Greenville, Ohio 45331 Attorney for Defendant-Appellant
Facts and Course of Proceedings
{¶ 2} On January 5, 2018, the Champaign County Grand Jury returned an indictment charging Johnson with one count of breaking and entering, one count of theft, one count of grand theft of a motor vehicle, two counts of possessing criminal tools, two counts of vandalism, and one count of robbery. The charges stemmed from allegations that Johnson attempted to steal a vehicle from Fischer Auto Sales in Champaign County, Ohio, and caused damage to several vehicles on the sales lot while fleeing from the business owner, who had caught Johnson during the theft act. It was also alleged that Johnson threatened to use immediate force against the business owner while Johnson was fleeing, which caused the business owner to arm himself with a firearm. Johnson was found and apprehended by law enforcement officers shortly after the incident.
{¶ 3} Following his indictment, Johnson pled not guilty to all the charges. The matter was then scheduled for a jury trial to take place on April 3, 2018. Prior to trial, Johnson posted bond and was released from prison on January 17, 2018. After being
{¶ 4} On November 14, 2018, Johnson was arrested in Madison County. Following Johnson‘s arrest, the trial court held a status conference during which Johnson admitted to violating his bond. The trial court thereafter found Johnson guilty of the bond violation and advised Johnson that the violation would be considered at sentencing in the event he was convicted of any of the indicted offenses. The matter was then scheduled for a jury trial to take place on January 22, 2019.
{¶ 5} On January 7, 2019, Johnson filed a pro se motion requesting the appointment of new trial counsel on grounds that his current counsel was not acting in his best interests. Specifically, Johnson claimed that his trial counsel never told him about a certain plea offer that was allegedly proposed by the State. Johnson also claimed that his trial counsel refused to bring his drug, alcohol, and mental health problems to the trial court‘s attention.
{¶ 6} On January 9, 2019, the trial court held a hearing on Johnson‘s motion to appoint new counsel. Following the hearing, the trial court denied Johnson‘s motion on the grounds that Johnson had failed to establish a breakdown in the attorney-client relationship that jeopardized his right to effective assistance of counsel. In so holding, the trial court found that Johnson‘s counsel had communicated all of the plea offers proposed by the State and that Johnson had rejected those offers. The trial court also found that Johnson‘s counsel had appropriately evaluated the question of Johnson‘s mental health and his competency to stand trial, and found no reason to question counsel‘s decision not to raise that issue for trial. The trial court instead found that
{¶ 7} On January 22, 2019, Johnson withdrew his earlier plea of not guilty and advised the trial court that he had entered into a plea agreement with the State. Pursuant to the plea agreement, Johnson agreed to plead guilty to the single count of robbery in exchange for the State dismissing the remaining seven counts against him. As part of the plea agreement, Johnson agreed to pay $5,000 in restitution to Fischer Auto Sales and to stipulate that he was on post-release control at the time he committed the offense. Johnson also agreed to stipulate that the post-release control violation subjected him to a 717-day sentencing enhancement. In exchange for his guilty plea, the State agreed to recommend the preparation of a presentence investigation (“PSI“) report and to review the report.
{¶ 8} Following a Crim.R. 11 plea colloquy, Johnson pled guilty to the single, third-degree-felony count of robbery set forth in the indictment. The trial court thereafter accepted Johnson‘s guilty plea and declined the preparation of a PSI report. The trial court then took a 1.5-hour recess, during which the trial court contacted the Adult Parole Authority and acquired three prior PSI reports that were prepared for Johnson in Franklin C.P. Nos. 2007-CR-874 and 2007-CR-6873, Union C.P. No. 2015-CR-177, and Marion C.P. No. 2016-CR-234. The trial court also had the State provide it with the police narrative from the robbery and a printout of Johnson‘s criminal history.
{¶ 9} After the trial court obtained the aforementioned documentation, the proceedings resumed for Johnson‘s sentencing. During sentencing, the trial court indicated that it had considered the PSI reports, the police narrative, and the printout of
{¶ 10} Johnson now appeals from his conviction and sentence, raising two assignments of error for review.
First Assignment of Error
{¶ 11} Under his first assignment of error, Johnson challenges the 36-month prison sentence imposed by the trial court. In challenging his sentence, Johnson claims that the trial court did not properly consider the sentencing factors in
{¶ 12} When reviewing felony sentences, this court must apply the standard of review contained in
{¶ 13} “A sentence is contrary to law when it does not fall within the statutory range for the offense or if the trial court fails to consider the purposes and principles of felony sentencing set forth in
{¶ 14} In this case, the trial court expressly stated at Johnson‘s sentencing hearing and in the corresponding sentencing entry that it had considered and applied the purposes and principles of sentencing as set forth in
{¶ 15} For instance, under section (B) of
{¶ 16} Under section (C) of
{¶ 17} Under section (D) of
{¶ 18} Under section (E) of
{¶ 20} Although not specifically discussed as a less-serious factor under
{¶ 21} Based on the record, we find that the trial court properly considered the sentencing factors under
{¶ 22} Where a sentence is not contrary to law, we may modify or vacate it only if we find by clear and convincing evidence that the record does not support the sentence. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, at ¶ 23. Upon review, we cannot say that Johnson‘s felony sentence is clearly and convincingly unsupported by the record.
{¶ 23} The most recent PSI report considered by the trial court reflects that between 2003 and 2016, Johnson was convicted and sentenced for felony offenses in six different counties on 13 different occasions. Specifically, Johnson was convicted for multiple counts of receiving stolen property, burglary, theft, and breaking and entering. Johnson was also convicted for carrying a concealed weapon, arson, attempted theft, and possession of cocaine. The PSI reports further indicated that Johnson has a lengthy juvenile record. Between 1997 and 2000, Johnson was adjudicated a juvenile delinquent for criminal damaging, burglary, aggravated menacing, arson, petty theft, and grand theft of an automobile. The PSI reports also confirm that Johnson committed the robbery offense in question while on community control and post-release control supervision in
{¶ 24} With regard to the incident in question, the police narrative indicates that Johnson smashed the window of the vehicle he was attempting to steal and then jumped from the vehicle while it was moving in an attempt to flee from the business owner. After Johnson jumped from the moving vehicle, the vehicle began to spin and damaged two other vehicles on the Fischer Auto Sales lot, which resulted in $5,000 worth of property damage. During the incident, Johnson also threatened force against the business owner, which caused the business owner to retrieve a firearm. Then, after his arrest and indictment, Johnson violated his bond by failing to appear for trial, and did not return to court until he was arrested under the trial court‘s warrant seven months later.
{¶ 25} Based on Johnson‘s actions during and after the robbery offense, and considering Johnson‘s extensive criminal history, we do not clearly and convincingly find that the record does not support Johnson‘s 36-month prison sentence. Therefore, Johnson‘s first assignment of error is overruled.
Second Assignment of Error
{¶ 26} Under his second assignment of error, Johnson contends that the trial court erred in denying his motion to appoint new trial counsel. We again disagree.
{¶ 27} ” ‘An indigent defendant has no right to have a particular attorney represent him and therefore must demonstrate “good cause” to warrant substitution of counsel.’ ” State v. Cowans, 87 Ohio St.3d 68, 72, 717 N.E.2d 298 (1999), quoting United States v. Iles, 906 F.2d 1122, 1130 (6th Cir.1990). Accord State v. Murphy, 91 Ohio St.3d 516, 523, 747 N.E.2d 765 (2001). “[I]n order to demonstrate the good cause necessary to
{¶ 28} “Disagreement between the attorney and client over trial tactics and strategy does not warrant a substitution of counsel.” (Citation omitted.) State v. Furlow, 2d Dist. Clark No. 03CA0058, 2004-Ohio-5279, ¶ 12. “Furthermore, ‘mere hostility, tension and personal conflicts between attorney and client do not constitute a total breakdown in communication if those problems do not interfere with the preparation and presentation of a defense.’ ” State v. Monahan, 2d Dist. Darke No. 2018-CA-2, 2018-Ohio-4633, ¶ 58, quoting Furlow at ¶ 12. (Other citation omitted.)
{¶ 29} “The decision whether or not to remove court appointed counsel and allow substitution of new counsel is addressed to the sound discretion of the trial court, and its decision will not be reversed on appeal absent an abuse of discretion.” Furlow at ¶ 13, citing Murphy at 523. “A trial court abuses its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.” (Citation omitted.) State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34. “It is to be expected that most instances of abuse of discretion will result in decisions that are simply unreasonable, rather than decisions that are unconscionable or arbitrary.” AAAA Ents., Inc. v. River Place Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). “A decision is unreasonable if there is no sound reasoning process that would support that decision.” Id.
{¶ 31} Given that no transcript of the motion hearing was filed in this appeal, we must presume the validity of the trial court‘s findings. Knapp v. Edwards Laboratories, 61 Ohio St.2d 197, 199, 400 N.E.2d 384 (1980). (“When portions of the transcript necessary for resolution of assigned errors are omitted from the record, the reviewing court has nothing to pass upon and thus, as to the assigned errors, the court has no choice but to presume the validity of the lower court‘s proceedings, and affirm.“). Moreover, counsel‘s decision not to raise Johnson‘s mental health, drug, and alcohol problems before the trial court amounts to a disagreement in trial strategy, which does not warrant appointing new counsel. See Furlow, 2d Dist. Clark No. 03CA0058, 2004-Ohio-5279, at ¶ 12. For these reasons, we do not find that the trial court‘s decision denying Johnson‘s motion to appoint new trial counsel was an abuse of discretion. Therefore, Johnson‘s second assignment of error is overruled.
{¶ 32} Having overruled both assignments of error raised by Johnson, the judgment of the trial court is affirmed.
DONOVAN, J. and TUCKER, J., concur.
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Samuel Adam Usmani
Paul E. Wagner
Hon. Nick A. Selvaggio