STATE OF OHIO, PLAINTIFF-APPELLEE vs. DEAN A. JONES, DEFENDANT-APPELLANT
No. 104189
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
September 8, 2016
[Cite as State v. Jones, 2016-Ohio-5712.]
Blackmon, J., Stewart, P.J., and Boyle, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-15-598870-A
JUDGMENT: AFFIRMED
Gregory Scott Robey
Robey & Robey
14402 Granger Road
Cleveland, Ohio 44137
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Jonathan M. McDonald
Assistant County Prosecutor
9th Floor Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Dean A. Jones (Jones) appeals his guilty plea and prison sentence in this attempted felonious assault case and assigns the following errors for our review:
I. The trial court violated appellant‘s 6th Amendment right to counsel of his choice when it failed to inquire whether appellant consented to stand-in counsel.
II. The trial court failed to strictly comply with Criminal Rule 11, when it failed to fully advise appellant of the waiver of his constitutional right of compulsory process and his constitutional right against self incrimination.
III. The trial court erred by imposing a prison term instead of a community control sanction; and by imposing the maximum prison term that is not supported by the record.
IV. Appellant was denied the effective assistance of counsel at the sentencing hearing, when counsel failed to object to the incomplete recitation of constitutional rights, and the improper characterizations of appellant by the trial court.
{¶2} Having reviewed the record and pertinent law, we affirm. The apposite facts follow.
{¶3} On September 28, 2015, Jones retained John B. Frendon as counsel and pled not guilty to a four-count indictment based on allegations of felonious assault. On December 6, 2015, attorney Frendon filed a motion to withdraw as counsel, stating that Jones terminated attorney Frendon‘s services and hired attorney Joseph Patituce to take over the case. On December 8, 2015, attorney Patituce filed a notice of appearance and substitution of counsel. On December 9, 2015, attorney Catherine Meehan, who works with attorney Patituce at Patituce & Associates, L.L.C., filed a notice of appearance as co-counsel. On December 10, 2015, the court denied attorney Frendon‘s motion to
{¶4} On January 6, 2016, Jones pled guilty to one count of attempted felonious assault in violation of
Right to Choice of Counsel
{¶5} Although a criminal defendant has a constitutional right to his choice of counsel, that right is not unqualified. State v. Keenan, 81 Ohio St.3d 133, 137, 689 N.E.2d 929 (1998). Instead, the right to choose one‘s own counsel is circumscribed in several important respects. Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988). A defendant does not have the right to be represented by (1) an attorney he cannot afford; (2) an attorney who is not willing to represent the defendant; (3) an attorney with a conflict of interest; or (4) an advocate (other than himself) who is not a member of the bar. State v. Howard, 5th Dist. Stark No. 2012CA00061, 2013-Ohio-2884, 39, citing Wheat at 159.
{¶6} Under this assigned error, Jones argues that he did not consent to the presence of stand-in counsel and that stand-in counsel failed to file a notice of appearance. Stand-in counsel refers to last minute or substitute counsel appointed by the court when a party‘s current counsel is unavailable for court proceedings. See, e.g., In re J.S., 8th Dist. Cuyahoga No. 94410, 2010-Ohio-6162, ¶ 4. First, we note
Crim.R. 11 Guilty Plea
{¶7} In determining whether the trial court has satisfied its duties under
{¶8} Pursuant to
{¶9} At the plea hearing, the court advised Jones as follows:
You have the following rights which you [will] be giving up by entering into this plea agreement. * * * You have the right to use this court‘s
subpoena power to subpoena into court your own witnesses and have them testify on your behalf. You do not have to take the [witness] stand to testify at the trial. If you choose not to testify, the state cannot use your silence against you.
{¶10} In the instant case, Jones argues that the court failed to fully advise him of his constitutional right to compulsory process and his constitutional right against self incrimination. (Emphasis sic.) Specifically, Jones argues that the trial court failed to advise him of his right to have the subpoena enforced should witnesses fail to appear * * * and the right that the State could not comment on his exercise of the right to silence [and the] right to have the jury advised that any failure to testify may not be used against him. (Emphasis sic.)
{¶11} In State v. Wilson, 8th Dist. Cuyahoga No. 82770, 2004-Ohio-499, ¶ 16, this court held that the trial court must inform a defendant that it has the power to force, compel, subpoena, or otherwise cause a witness to appear and testify on the defendant‘s behalf. Furthermore, this court has held that the use of the word ‘subpoena’ adequately informs the defendant of his right to compulsory process. State v. Parks, 8th Dist. Cuyahoga No. 86312, 2006-Ohio-1352, ¶ 17.
{¶12} Turning to Jones‘s privilege against self-incrimination, we find that the court properly advised him that he did not have to testify against himself. In State v. Wangul, 8th Dist. Cuyahoga No. 84698, 2005-Ohio-1175, ¶ 12, this court found no authority requiring a court to inform a defendant at a plea hearing that his failure to testify could be used against him. See also State v. Eckles, 173 Ohio App.3d 606, 2007-Ohio-6220, 897 N.E.2d 829, ¶ 39 (7th Dist.) (
{¶13} Accordingly, we find that the court properly complied with
Felony Sentencing
{¶14}
{¶15} A sentence is not clearly and convincingly contrary to law where the trial court considers the purposes and principles of sentencing under
{¶16} Pursuant to
{¶17} Furthermore, in imposing a felony sentence, the court shall consider the factors set forth in [
{¶18} In the case at hand, Jones argues that the court erred by imposing the maximum sentence of three years in prison, rather than imposing community control sanctions. First, we note that Jones‘s sentence is within the statutory range for a third-degree felony, and Jones does not argue that his sentence is otherwise contrary to law. Rather, Jones argues that the record does not support the court‘s findings.
{¶19} In imposing this sentence, the court noted that the incident underlying this case was captured on a cell phone video, which memorialized the following: Jones brought a pole to his drug dealer‘s (the victim) house and said, You ready to die tonight? An altercation occurred, but the victim disarmed Jones and struck [Jones] numerous times in the head and upper body. Jones got in his car and drove into the victim‘s parked car, then drove off narrowly missing the victim, who jumped into the bushes and was not injured.
{¶21} On appeal, Jones argues that none of the ‘more serious’ factors under
{¶22} As to the less serious factors,
{¶24} Upon review, we cannot say that the record does not clearly and convincingly support the trial court‘s findings. The court considered the purposes and principles of felony sentencing and the seriousness and recidivism factors. Accordingly, Jones‘s third assigned error is overruled.
Ineffective Assistance of Counsel
{¶25} To succeed on a claim of ineffective assistance of counsel, a defendant must establish that his or her attorney‘s performance was deficient and that the defendant was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). However, a court need not determine whether counsel‘s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel‘s performance. Id. at 697. See also State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 3743 (1989).
{¶27} As to the alleged improper characterizations, the court stated the following at Jones‘s sentencing hearing:
That video doesn‘t show the pole being swung. That video doesn‘t show the alleged victim retreating or instructing the person with the phone to put the phone camera down and actually use it as a phone to call the police. These people are animals. Behaving like base humans. It‘s disgusting what I just saw. Thank you. Okay. Ms. Meehan, what would you like me to know about your frontal lobe deficient client?
{¶28} Specifically, Jones argues that his counsel was inefficient for failing to object to the court‘s calling him an animal, a base human, and a frontal lobe deficient client. Jones further argues that had his counsel objected to the court‘s use of these terms, it is highly likely that [he] would not have received the maximum possible prison term. Jones does not cite any legal authority to support his argument.
{¶29} In Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed. 474 (1994), the United States Supreme Court held the following:
opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings * * * do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or
disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.
{¶30} Upon review, the trial judge‘s remarks were based on viewing the video of the altercation between Jones and the victim, and Jones‘s reaction to the incident. There is no evidence that these remarks were the result of extrajudicial animosity. Jones failed to show that his counsel‘s performance was deficient or that he was prejudiced by the failure to object. Accordingly, Jones‘s fourth and final assigned error is overruled.
{¶31} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to the Cuyahoga County Court of Common Pleas to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
PATRICIA ANN BLACKMON, JUDGE
MELODY J. STEWART, P.J., and
MARY J. BOYLE, J., CONCUR