State v. LaneState v. Lane
{¶1} Defendant-appellant, Earnest Lane (hereinafter “Lane”), appeals the Allen County Court of Common Pleas’ December 28, 2010 judgment entry of re-sentencing. For the reasons that follow, we affirm.
{¶2} This appeal stems from the events that took place on March 29, 2000, when allegedly Lane and nine other individuals planned an armed robbery and firebombing of a house on Leland Avenue in Lima, Ohio, for the purpose of stealing a large amount of cocaine. As a result of the firebombing, five persons living in the Leland Avenue residence died, including four children.
{¶3} Lane, and the nine other co-defendants, were indicted on April 19, 2000. Lane was indicted as follows: one count of complicity to aggravated arson in violation of
{¶4} On August 4, 2000, Lane entered a negotiated plea of guilty to the charges of complicity to aggravated arson and complicity to aggravated robbery,
{¶5} On November 16, 2000, Lane filed a motion to withdraw his guilty plea on the basis that his attorney had misinformed him as to how many years in prison Lane would have to serve. On December 29, 2000, Lane’s attorney, Doute, filed a motion to withdraw as Lane’s counsel, and a hearing on that matter was held on January 11, 2001. Subsequently, the trial court granted Doute’s motion to withdraw, and appointed Lane another attorney, Gregory Donohue.
{¶6} On February 22, 2001, a hearing was held on Lane’s motion to withdraw his guilty plea, and, following the presentation of evidence, the trial court overruled the motion. Subsequently, on March 27, 2001, a sentencing hearing was held in the case. Lane was sentenced to nine (9) years imprisonment on the aggravated arson conviction, ten (10) years imprisonment on the aggravated robbery conviction, and nine (9) years imprisonment on each of the involuntary manslaughter convictions. The first nine (9) year term was ordered to be served concurrently with the other five nine (9) year terms, but consecutive to the ten (10) year term, for a total of nineteen (19) years imprisonment.
{¶8} Then, eight years later, on December 2, 2009, Lane filed a motion seeking a new sentencing hearing on the basis that the trial court had failed to properly advise him of post-release control at the original sentencing. On December 23, 2009, a second sentencing hearing was held, after which time the trial court ordered Lane to serve the same sentence to which Lane had originally been sentenced, and the trial court provided to Lane the correct information pertaining to post-release control.
{¶9} Lane now appeals and raises seven assignments of error for our review. For ease of our discussion, we elect to address Lane’s first and second assignments of error together.
ASSIGNMENT OF ERROR NO. I
THE TRIAL COURT VIOLATED CRIMINAL RULE 11 IN ACCEPTING THIS PLEA.
ASSIGNMENT OF ERROR NO. II
THE PLEA BY MR. LANE WAS NOT KNOWING, VOLUNTARY, AND INTELLIGENT BECAUSE THE TRIAL COURT DECLINED TO ADVISE MR. LANE THAT THE
SENTENCE WOULD INCLUDE MANDATORY POST-RELEASE CONTROL AND OTHERWISE ERRED IN THE ADVICE.
{¶10} In his first assignment of error, Lane argues that his guilty plea was invalid and that it should be set aside. Specifically, Lane argues that his plea was not knowing, voluntary, and intelligent because the trial court failed to inform him that his post-release control was mandatory and that he would be subject to additional sanctions for felony violations while on post-release control. With respect to his second assignment of error, Lane alleges the same particular error but claims that it raises an issue of constitutional law.
{¶11} First, Lane argues that the trial court should not have accepted his plea because he did not actually enter the guilty plea himself; rather, his defense counsel tendered the plea on his behalf. However, despite Lane’s assertions, this Court has stated that “
{¶12} Next, Lane argues that by failing to inform him at the change of plea hearing that his sentence would include a mandatory period of post-release control, and by failing to inform him that if he committed a felony while on post-release control he could be sent back to prison, the trial court failed to inform him of the potential penalties involved. In support of his argument that his plea was not knowing, voluntary, and intelligent because the trial court failed to clearly state that his post-release control was mandatory Lane points to the Ohio Supreme Court’s decision in State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224.
{¶13}
{¶14} In State v. Sarkozy, the Ohio Supreme Court held that “[i]f the trial court fails during the plea colloquy to advise a defendant that the sentence will include a mandatory term of postrelease control, the court fails to comply with
{¶15} First of all, we disagree with Lane’s assertions that the trial court was required to inform him at the change of plea hearing of the possibility that it could impose a prison term for committing a new felony while on mandatory post-release control. Because this is a matter within the trial court’s discretion there is only the potential for the imposition of that penalty. As such, a trial court is not
{¶16} Second, the trial court did advise Lane that he would be subject to post-release control once he was released from any prison term that it might impose; moreover, the trial court explained that Lane could go back to prison for up to one-half of his sentence if he violated post-release control. (State’s Ex. AA, Aug. 4, 2000 Tr. at 7). While the trial court incorrectly informed Lane that he
{¶17} Furthermore, even though Lane relies on the Supreme Court’s ruling in Sarkozy, we find Sarkozy distinguishable from the facts of this case. In Sarkozy, the Ohio Supreme Court disagreed with the court of appeals’ finding that there had been substantial compliance because essentially there had been no compliance with
ASSIGNMENT OF ERROR NO. III
THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING THE DEFENSE MOTION TO WITHDRAW HIS PLEA.
{¶19} In his third assignment of error, Lane argues that the trial court erred in overruling his motion to withdraw his guilty plea.
{¶20} “When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily.” State v. Engle (1996), 74 Ohio St.3d 525, 527, 660 N.E.2d 450; State v. Horch, 154 Ohio App.3d 537, 2003-Ohio-5135, 797 N.E.2d 1051, ¶3 (citations omitted); State v. Bush, 3d Dist. No. 14-2000-44, 2002-Ohio-6146, ¶10 (citations omitted). Furthermore,
{¶21} In considering a presentence motion to withdraw a guilty plea, the trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for allowing the defendant to withdraw his plea. Id. Some of the factors that are weighed in considering the trial court’s decision on a presentence motion to withdraw a plea are as follows: (1) whether the state will be prejudiced by withdrawal; (2) the representation afforded to the defendant by counsel; (3) the extent of the
{¶22} Ultimately, it is within the sound discretion of the trial court to determine what circumstances justify granting a presentence motion to withdraw a guilty plea. Id., at paragraph two of the syllabus. As a result, appellate review of
{¶23} In particular, Lane argues that under Sarkozy when a trial court fails during the plea colloquy to advise a defendant that the sentence will include a mandatory term of postrelease control, a defendant has a right to withdraw his guilty plea, and this motion to withdraw a guilty plea must be considered as a presentenced motion under
{¶24} Lane entered into his plea on August 4, 2000, and on November 16, 2000 Lane filed a motion to withdraw his guilty plea. Although the trial court
{¶25} Despite this liberality, the trial court still denied Lane’s motion to withdraw his guilty plea. After the presentation of evidence, reviewing the change of plea hearing of August 4, 2000, and the applicable statutes and law, the trial court methodically went through and considered each of the nine factors. (Feb. 22, 2001 Tr. at 26). Specifically, the trial court stated that with respect to any prejudice to the State, the State had nolled other pending charges as part of the negotiated plea agreement, and Lane had provided a sworn statement to the State indicating his involvement. (Id. at 26-27). Moreover, the trial court reviewed the
{¶26} Based upon the record before this Court, we find that the trial court granted a full hearing and gave a great deal of consideration to Lane’s motion. Given the evidence and the trial court’s extensive analysis, we cannot find that the
{¶27} Lane’s third assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. IV
THE SENTENCE IMPOSED IN THIS CASE WAS IMPOSED BY APPLICATION OF LAW THAT IS AND WAS UNCONSTITUTIONAL, IN VIOLATION OF MANY RIGHTS UNDER THE UNITED STATES CONSTITUTION.
{¶28} In his fourth assignment of error, Lane argues that his sentence was “imposed by application of law that is and was unconstitutional, in violation of many rights under the United States Constitution.” In particular, Lane cites to State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, and claims that when he had been sentenced originally, the effect of the Foster ruling had been inapplicable, but now because his original sentence was void, when he was resentenced on December 23, 2009, Foster’s ruling should have been applied.
{¶29} In State v. Foster, the Ohio Supreme Court declared unconstitutional those portions of the felony sentencing statutes that required judicial fact-finding before the trial court could impose a prison sentence. 2006-Ohio-856, at ¶100. Subsequently, the Supreme Court excised those provisions that related to judicial fact-finding from the sentencing statutes, specifically including
{¶30} However, a trial court must still consider the overall purposes of sentencing as set forth in
{¶31} In this assignment of error, Lane summarily argues that Foster was applicable at his re-sentencing hearing, however, despite Lane’s citation to Foster, Lane does not separately argue the particular claimed error nor does he provide any reasons in support of his contentions.
[t]he Court finds in this particular instance that in making its sentencing in effect reiterating what it had previously sentenced you to. At least Foster indicates that the same findings can be made advisory and the Court has reviewed those and makes those same findings, advisory, * * * At the time of the original sentencing before Foster there was various findings that had been made and the Court would incorporate those for advisory. But in addition, even if today’s law applies in that regard as well, the consecutive sentences imposed herein are as a result of the Court’s discretion as well, pursuant to State v. Johnson, 116 Ohio State 541 and the finding that – further that the defendant was involved in committing one of the worst form of offenses in which 5 people died.
{¶33} Lane’s fourth assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. V
THE INDICTMENT AGAINST MR. LANE WAS FATALLY DEFECTIVE, AS A RESULT OF WHICH MR. LANE WAS DENIED DUE PROCESS OF LAW AS A STRUCTURAL ERROR OCCURRED, AS WELL AS PLAIN ERROR, AS TO ALL SEVEN (7) COUNTS IN THE INDICTMENT.
{¶34} In his fifth assignment of error, Lane argues that the indictment issued on April 19, 2000, was flawed in that it failed to appropriately set forth the requisite mental culpability in each count contained therein. In support of his position, Lane relies on the proposition of law stated by the Ohio Supreme Court in State v. Colon, 119 Ohio St.3d 204, 2008-Ohio-3749, 893 N.E.2d 169. In Colon, the Court held that “when an indictment fails to charge a mens rea element of a crime and the defendant fails to raise that defect in the trial court, the defendant has not waived the defect in the indictment.” Id. at ¶45.1
{¶35} However, the defendant in Colon did not plead guilty like Lane did herein, and this Court has previously stated that a guilty plea waives the right to
{¶36} Accordingly, Lane has waived any alleged defect in his indictment by pleading guilty to the substantive offenses of aggravated robbery, aggravated arson, and involuntary manslaughter.
{¶37} Lane’s fifth assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. VI
MR. LANE WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL FOR FAILURE TO EXAMINE PRIOR COUNSEL AS WITNESSES [SIC] TO THE MOTION TO WITHDRAW PLEA.
{¶39} As stated above, Lane was originally represented by attorney Jerome Doute, who had represented Lane up through Lane’s change of plea hearing. Subsequently, on November 16, 2000, Lane filed a motion to withdraw his guilty plea on the basis that his attorney had misinformed him as to how many years in prison he would have to serve. Soon after, on December 29, 2000, attorney Jerome Doute filed a motion to withdraw as counsel, on the basis that privileged conversations with Lane had resulted in Lane placing counsel in a position that further action would result in a violation of the disciplinary rules. On January 11, 2001, following a hearing on the matter, the trial court granted Doute’s motion, and then appointed attorney Gregory Donohue to represent Lane. On February 22, 2001, a hearing was held on Lane’s motion to withdraw, and after the presentation of evidence, the trial court overruled Lane’s motion.
{¶41} A defendant asserting a claim of ineffective assistance of counsel must establish: (1) the counsel’s performance was deficient or unreasonable under the circumstances; and (2) the deficient performance prejudiced the defendant. State v. Kole (2001), 92 Ohio St.3d 303, 306, 750 N.E.2d 148, citing Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. In order to show counsel’s conduct was deficient or unreasonable, the defendant must overcome the presumption that counsel provided competent representation and must show that counsel’s actions were not trial strategies prompted by reasonable professional judgment. Strickland, 466 U.S. at 687. Counsel is entitled to a strong presumption that all decisions fall within the wide range of reasonable professional assistance. State v. Sallie (1998), 81 Ohio St.3d 673, 675, 693 N.E.2d 267. Tactical or strategic trial decisions, even if unsuccessful, do not generally constitute ineffective assistance. State v. Carter (1995), 72 Ohio St.3d 545, 558, 651 N.E.2d 965. Rather, the errors complained of must amount to a substantial violation of counsel’s essential duties to his client. See State v. Bradley (1989), 42 Ohio St.3d 136, 141-42, 538 N.E.2d 373, quoting State v. Lytle (1976), 48 Ohio St.2d 391, 396, 358 N.E.2d 623. Prejudice results when “there is a reasonable
{¶42} Here, Lane claims that if his second attorney had called his first attorney as a witness, it would have supported his claim that his first attorney had given him bad advice. As a result, Lane now claims that he was prejudiced because he would not have pled if he would have known that he could get more than seven years in prison. However, “[t]he decision [of] whether to call a witness is a trial tactic that generally will not sustain a claim of ineffective assistance.” State v. Payton (1997), 124 Ohio App.3d 552, 559, 706 N.E.2d 842. Despite Lane’s speculations that his first attorney believed that he would only get seven years in prison, Lane has failed to point to any evidence to support his claim. Even if it were true, though, any alleged errors concerning the possible sentence made by his first attorney would not have been prejudicial to Lane as he was given the correct information, both verbally and in writing, before he signed the plea agreement and changed his plea. Furthermore, we note that his second attorney presented evidence at the hearing and argued in favor of Lane’s position. Thus,
{¶43} Lane’s sixth assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. VII
THE CONVICTIONS FOR COUNT 1 AND/OR COUNT 11 SHOULD HAVE MERGED WITH THE CONVICTION(S) FOR COUNT(S) III THROUGH VII.
{¶44} In his last assignment of error, Lane argues that the aggravated arson conviction or the aggravated robbery conviction should have been merged into the involuntary manslaughter convictions, on the basis that the crimes are allied offenses of similar import.
{¶45} First of all, Lane once again summarily argues that one of the convictions should have merged with the involuntary manslaughter conviction because they were allied offenses, and does not separately argue the particular claimed error nor does he provide any reasons in support his contentions.
{¶46} Lane’s seventh assignment of error is, therefore, overruled.
{¶47} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J. concurs.
ROGERS, J., concurs, concurs in Judgment Only on Assignment No. 7.
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