STATE OF OHIO, Plaintiff-Appellee, vs. BREON KELLY, Defendant-Appellant.
Case No. 14CA3637
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY
Released: 12/30/14
[Cite as State v. Kelly, 2014-Ohio-5840.]
McFarland, J.
DECISION AND JUDGMENT ENTRY
Breon Kelly, Chillicothe, Ohio, Appellant, Pro Se.
Mark E. Kuhn, Scioto County Prosecuting Attorney, and Jay Willis, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for Appellee.
McFarland, J.
{¶1} Appellant Breon Kelly filed a notice of appeal from the judgment entry of conviction, “Findings of Fact and Conclusions of Law,” filed June 10, 2014 in the Scioto County Court of Common Pleas. Appellee filed a motion to dismiss the appeal due to a lack of jurisdiction. This matter now comes before us following our decision filed August 18, 2014, in which we found Appellant‘s appeal involved an entry denying post-conviction relief and as such, we have jurisdiction to consider it. For the reasons which follow, we affirm the June 10, 2014 judgment of the trial court and overrule Appellant‘s assignments of error.
{¶2} We set forth the facts as previously noted in State v. Kelley, 4th Dist. Scioto No. 13CA3562, 2014-Ohio-1020, in which we dismissed Appellant‘s appeal for lack of a final appealable order.1 On September 21, 2011, the Scioto County Grand Jury returned an indictment charging Appellant with six felony counts, including trafficking in crack cocaine, two counts of possession of drugs, trafficking in drugs/crack cocaine, trafficking in drugs, and possession of criminal tools. The indictment also contained a forfeiture specification. Appellant subsequently entered into a plea agreement whereby he pled guilty to count one, trafficking in crack cocaine, a first degree felony in violation of
{¶3} Appellant next filed a “Petition to Vacate or Set Aside Judgment of Conviction or Sentence” on April 25, 2013. The State filed a motion contra
{¶4} On June 10, 2014, the trial court journalized Findings of Fact and Conclusions of Law and denied Appellant‘s petition for post-conviction relief. On June 25, 2014, Appellant filed the notice of appeal herein denying his post-conviction relief petition filed pursuant to
“I. WHETHER THE TRIAL COURT ABUSED IT‘S (SIC) DISCRETION AND VIOLATED APPELLANT‘S RIGHT TO DUE PROCESS UNDER THE OHIO‘S (SIC) AND THE UNITED STATES CONSTITUTION; AND OHIO‘S REVISED CODE, SECTIONS 2925.03; 2929.11; 2929.12; 2929.14; 2929.51, WHEN IT SENTENCED THE APPELLANT TO FOUR YEARS IN PRISON.3
II. APPELLANT‘S SENTENCE FOR DRUG TRAFFICKING IS UNSUPPORTED BY EITHER SUFFICIENT EVIDENCE OR THE WEIGHT OF THE EVIDENCE.
III. THE TRIAL COURT‘S SENTENCE(S) ARE CONTRARY TO OHIO REVISED CODE, SECTION 2925.03; 2929.14; 2929.19; 2923.24; 2925.11.
IV. APPELLANT HAS BEEN DENIED EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AS GUARANTED (SIC) BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10, OF THE OHIO CONSTITUTION.”
LEGAL ANALYSIS
{¶5} In filing a
“State collateral review itself is not a constitutional right. State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999), citing State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67, 76 (1994), citing Murray v. Giarratano, 492 U.S. 1, 109 S.Ct. 2765 (1989). Further, a post-conviction proceeding is not an appeal of a criminal conviction but, rather, a collateral civil attack on the judgment. See Steffen, at 410, 639 N.E.2d at 76, citing State v. Crowder, 60 Ohio St.3d 151, 573 N.E.2d 652 (1991). Therefore, a petitioner receives no more rights than those granted by the statute.”
{¶6} A trial court‘s decision granting or denying a post-conviction petition filed pursuant to
{¶8} Appellant first argues the trial court abused its discretion when it sentenced him to four years in prison. Appellant vaguely references
{¶9} The crux of Appellant‘s argument is that the State failed to establish that: (1) Appellant engaged in any drug transaction or (2) Appellant purchased the quantity of cocaine required by the statute with which he was charged.4 Appellant contends the Ohio Bureau of Criminal Identification and Investigation (Ohio BCI&I) laboratory report dated September 12, 2011, which expressed the actual amount of cocaine found, was kept from Appellant‘s knowledge and understanding
{¶10} Appellee responds that Appellant failed to mention his concerns during the plea hearing or sentencing hearing and has failed to request hearing transcripts to support his claims. Appellee also argues that Appellant has neglected to mention that he and his co-defendants sold most of the drugs prior to arrest and that statements included in the police report and provided as part of discovery indicate Appellant admitted this to officers at the time. The record before us reveals as follows:
December 14, 2011- Defendant filed for discovery and bill of particulars.
December 16, 2011- State of Ohio filed a response to discovery and requested reciprocal discovery.
December 19, 2011- Defendant filed a waiver of time.
January 18, 2012- Defendant‘s attorney, Sterling Gill, filed to withdraw. Defense attorney Sean Boyle filed a notice of appearance.
April 16, 2012- Court issued a bench warrant for Defendant‘s failure to appear.
May 3, 2012- State of Ohio filed two supplemental discoveries including one to provide lab reports, as well as the analyst‘s information and one to provide the criminal records of the Appellant and his co-defendants.
May 4, 2012- State of Ohio filed supplemental discovery to include additional criminal records.
July 10, 2012- State of Ohio filed supplemental discovery to include additional witnesses, diagrams and photos.
July 26, 2012- State of Ohio filed supplemental discovery to include co-defendants as witnesses.
September 25, 2012- Defendant entered pleas to two counts.
{¶11} The record indicates the September 12, 2011 lab report was provided as part of the State‘s initial response to discovery on December 16, 2011. The Portsmouth Police Department report with co-defendants’ statements was provided on the State‘s supplemental disclosure of May 3, 2012. Appellant did not enter a plea until September 25, 2012. Appellant‘s arguments that there was no evidence he participated in selling or offering to sell drugs, and that he was never made aware of the lab report are not credible.
{¶12} We further observe Appellant opted not to provide a transcript of the sentencing proceeding.
“The Court finds that Defendant entered a plea of guilty to one count of Trafficking in Drugs and one count of Escape (in case number 12CR057) in exchange for a total five (5) year prison term, four (4) years on the above captioned case and one (1) year on case number 12CR057. The court finds these were agreed sentences and Defendant did not file an appeal.”
In denying Appellant‘s petition, the trial court went on to say:
“1. Defendant takes exception to the sentence imposed despite the fact they were agreed sentences. Consecutive sentencing was part of the plea agreement, and Defendant cannot now claim he was improperly sentenced to consecutive sentences after entering a plea arrangement with a knowing, intelligent, and voluntary waiver of his rights.”
{¶13} The trial court‘s entry explicitly states Appellant‘s sentence is an “agreed sentence.” Because Appellant failed to provide the transcript of sentencing, we presume the regularity of the proceedings.
{¶14} A defendant‘s right to appeal a sentence is based on specific grounds stated in
“A sentence imposed upon a defendant is not subject to review under this section if the sentence is authorized by law, has been recommended jointly by the defendant and the prosecution in the case, and is imposed by a sentencing judge.” State v. Underwood, 124 Ohio St.3d 365, 922 N.E.2d 923, ¶ 15.
{¶15} A sentence that is “contrary to law” is appealable by a defendant; however, an agreed-upon sentence may not be if: (1) both the defendant and the state agree to the sentence, (2) the trial court imposes the agreed sentence, and (3) the sentence is authorized by law.
{¶16} Assuming the regularity of these proceedings, we have no reason to believe all three conditions were not met in Appellant‘s case. Appellant‘s agreed sentence is not reviewable on appeal. State v. Kemp, 2nd Dist. Clark No. 2014CA32, 2014-Ohio-4607, ¶ 16. We find the trial court did not abuse its discretion when it denied Appellant‘s post-conviction motion due to the nature of the agreed sentence. As such, we overrule Appellant‘s assignments of error with regard to his sentence.
{¶17} Appellant also argues his sentence is unsupported by sufficient evidence or the weight of the evidence. However, we find his arguments as to
“[T]he issues raised in the postconviction petition were sufficiency and manifest weight of the evidence, being found guilty of a lesser included offense, maximum and consecutive sentences, and ineffective assistance of counsel claims. All of these issues could have been raised in the direct appeal. State v. Damron, 4th Dist. No. 10CA3158, 2010-ohio-6459, 21 (manifest weight argument raised in petition for postconviction relief was barred by res judicata because it could have been raised in the direct appeal); State v. Bradley, 8th Dist. No. 88163, 2007-Ohio-2642, ¶ 10 (argument that evidence supporting conviction is insufficient could have been raised in direct appeal and therefore is barred by res judicata when raised in petition for postconviction relief); State v. Tillman, 6th Dist. No. H-02-049, 2003-Ohio-4216, ¶ 11-12 (maximum sentence issue is barred by res judicata for purposes of post-conviction relief because it could have been
raised in direct appeal); In re T.L., 8th Dist. No. 100328, 2014-Ohio-1840, ¶ 16 (ineffective assistance of counsel claim that does not rely on evidence outside of the record should be filed on direct appeal or else it is barred under the doctrine of res judicata)...”
{¶18} As to the second assignment of error, we find the trial court did not abuse its discretion in overruling Appellant‘s post-conviction motion. As such, we overrule the second assignment of error.
{¶19} Finally, in his last assignment of error, Appellant argues ineffective assistance of counsel. He alleges his counsel never mentioned or explained the nature of the charge to him, and the sufficiency of the evidence in that the “discrepancy” in the weight of the substance was never revealed to him by his counsel. In Appellant‘s affidavit attached to his post-conviction motion for relief, he indicates he was “intimidated by counsel with facing (13) years in prison should the case go to a jury trial and Affiant lost.” The only evidence of this assertion comes from Appellant‘s own self-serving affidavit. “[T]his evidence by itself is insufficient to mandate a hearing or to justify granting [a] petition for postconviction relief.” State v. Davis, 12th Dist. Butler No. CA2012-12-258, 2013-Ohio-3878, ¶ 27, quoting State v. Isbell, 12th Dist. Butler No. CA2003-06-152, 2004-Ohio-2300, ¶ 14, citing State v. Kapper, 5 Ohio St.3d 36, 38 (1983) (internal citations omitted.) Without more, we find the trial court did not abuse its discretion in denying Appellant‘s post-conviction motion based on the ineffective assistance claim.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Scioto County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court,
BY:
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.