2004 Ohio 7074 | Ohio Ct. App. | 2004
{¶ 2} The state's cross-appeal is well-taken in part, for the trial court was not limited in the exercise of its discretion byState v. Williams (Nov. 30, 2000), 6th Dist. Nos. L-00-1027, L-00-1028, in sentencing Lathan.
{¶ 4} Lathan's appellate counsel filed an Anders brief, stating that there were no arguable issues on appeal along with a motion to withdraw as counsel. In Anders v. California (1967), 386 U.S.738, the Supreme Court of the United States established five criteria to be met before appellate counsel may be allowed to withdraw: (1) a showing that appellate counsel thoroughly reviewed the transcript and record in the case before determining the appeal to be frivolous; (2) a showing that a motion to withdraw has been filed by appellate counsel; (3) the existence of a brief filed by appellate counsel raising any potential assignments of error that can be argued on appeal; (4) a showing that appellate counsel provided appellant with a copy of the brief which was filed; and (5) a showing that appellate counsel provided an adequate opportunity for appellant to file a pro se brief raising any additional assignments of error appellant believes the appellate court should address. Id., at 744. All criteria have been met in this case.
{¶ 5} Appellate counsel argues two potential assignment of error: that the state committed prosecutorial misconduct during the examination of Maurice Purley; and that Lathan did not receive effective assistance of counsel because his attorney should not have allowed James Purley to testify.
{¶ 7} Lathan contends that Maurice Purley, an accomplice, lied about why he was fired from his job at TGI Friday's. He also argues that the prosecutor did not tell the jury of unrelated drug charges that were allegedly not being filed against Purley until after Purley's testimony. Neither allegation finds any support in the record. Lathan's counsel cross-examined Purley at length concerning his plea agreement and his firing from TGI Friday's. The state itself elicited the terms of Purley's robbery plea, his previous drug trafficking conviction, and his employment during direct examination. An in-depth review of the record uncovers no prosecutorial misconduct. As there was no improper action by the prosecutor, Lathan's substantial rights were not prejudiced, and he was not denied a fair trial.
{¶ 8} Lathan alleges potential prosecutorial misconduct by relying on matters not contained in the record. Since, he has presented nothing under App.R. 9 to require reversal of his conviction, his remedy would have been to have filed a motion for postconviction relief. State v. Watts (Sept. 27, 1985), 6th Dist. No. Cr 84-5026. See also, State v. Elson (Apr. 30, 1999), 6th Dist. No. L-98-1156. The potential assignment of error concerning prosecutorial misconduct is without merit.
{¶ 10} In discussing the issue of attorney competence, the Ohio Supreme Court observed: "It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citations omitted] * * * Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.' [Citations omitted]" State v. Frazier (1991),
{¶ 11} This presumption means that a great amount of deference must be given to counsel's trial strategy. State v.Carter (1995),
{¶ 12} An attorney properly licensed in Ohio is presumed to execute his or her duties in an ethical and competent manner.State v. Hamblin (1988),
{¶ 13} In this case, Lathan's counsel was far from ineffective since he was able to convince the jury to acquit on both gun specifications. The record also reflects that Lathan's counsel actively tried to obtain a full acquittal by thoroughly cross-examining the state's witnesses, making a number of timely objections, and minimizing Lathan's own unhelpful testimony. Lathan argues that the calling of James Purley as a defense witness resulted in ineffective assistance of counsel. Yet this was his own decision.
{¶ 14} Lathan's counsel specified on the record that he advised Lathan not to call James Purley as a witness. Even if counsel himself had decided to call Purley, it is a matter of trial strategy how to select a witness and does not normally constitute ineffective assistance of counsel. Toledo v. Prude, 6th Dist. No. L-02-1250, 2003-Ohio-3226. After reviewing the record, we find that Lathan's potential assignment of error is without merit.
{¶ 16} "R.C.
{¶ 17} "Because Lathan's sentences are not consistent with sentences imposed for similar crimes committed by similar offenders, they are contrary to law, not supported by the record, and should be remanded for resentencing. R.C.
{¶ 18} The state's two cross-assignments of error are closely related, are based upon State v. Williams (Nov. 30, 2000), 6th Dist. Nos. L-00-1027, L-00-1028, and are stated in the alternative. The first assignment of error contends that co-defendants do not need to receive uniform sentences in the name of consistency. The second assignment of error states that Lathan's sentences were contrary to law, being inconsistent with other sentences for aggravated robbery and kidnapping. Both cross-assignments of error will be discussed together.
{¶ 20} On appeal, Williams, who had never been to prison before, argued that his sentences were contrary to law. In contending that his prison time was inconsistent with other sentences meted out for aggravated vehicular homicide convictions, he presented several comparison cases with prison sentences fewer than six years. We accepted Williams's arguments, reversed both sentences, and remanded for resentencing.1 Williams was then sentenced to two concurrent three year prison terms, later upheld on appeal. State v. Williams, 6th Dist. No. L-01-1403, 2002-Ohio-2690, at ¶¶ 4, 17.
{¶ 21} Since Williams, when the consistency of a sentence is an appellate issue, we have found ourselves comparing and contrasting a list of cases supplied by the appellant that theoretically bear some comparison to the case being appealed.2 Nevertheless, we now find on closer review of sentencing statutes, that the Williams comparison simply is not mandated.
{¶ 22} In Williams, we held, in part, that "we clearly and convincingly find that appellant's sentence is not supported by the record and is contrary to law as it fails to achieve one ofthe two overriding purposes of felony sentencing, that is,consistency with sentences imposed in similar crimes committed bysimilar offenders." State v. Williams (Nov. 30, 2000), 6th Dist. Nos. L-00-1027, L-00-1028. [Emphasis added]. This statement is erroneous, for R.C.
{¶ 23} The Williams case has been used to suggest that to attain consistency, courts must examine other similar cases to determine a correct sentence. In contrast, other courts have determined that "consistency" does not mean "uniformity."4 They have recognized that the statutory scheme established by Senate Bill 2 rejected a grid system, and that except for certain express guidance, the trial court retains its discretion on how to fulfill the duties of sentencing.5
{¶ 24} Courts that have rejected the Williams approach have found that inconsistency is not shown merely by supplying a list of cases where other defendants in other cases were given prison sentences that differed from the appellant's.6 Even co-defendants with a similar or identical history of recidivism may properly be sentenced to different terms of imprisonment.7
{¶ 25} Each case is necessarily, by its nature, different from every other case — just as every person is, by nature, not the same.8 R.C.
{¶ 26} The important determination is whether the sentencing judge has articulated the reasons to select a sentence within the statutory range. A sentence is contrary to law within the meaning of R.C.
{¶ 27} When a sentence is objected to and alleged to be inconsistent with other sentences, what is truly being contested is whether the sentence is supported by the record. Therefore, an appellate court's task is to review the sentence to see if by clear and convincing evidence the appellant has shown the sentence was not supported by the record or was contrary to law.11
{¶ 28} We no longer will require case comparisons when the issue of "consistency" is raised. To the extent that it conflicts with this decision, State v. Williams (Nov. 30, 2000), 6th Dist. Nos. L-00-1027, L-00-1028, is overruled.12
{¶ 30} R.C.
{¶ 31} Unless a mandatory prison term is required, a court that imposes a felony sentence "has discretion to determine the most effective way to comply with the purposes and principles of sentencing set forth in section
{¶ 32} Lathan was convicted of aggravated robbery and kidnapping, both felonies of the first degree where prison terms may be three, four, five, six, seven, eight, nine, or ten years. R.C.
{¶ 33} As noted, Lathan was sentenced to consecutive sentences. Under R.C.
{¶ 34} In short, the trial court must find both factors under R.C.
{¶ 35} Even though the trial court relied on State v.Williams, in part, to justify the two concurrent six year sentences for Lathan, it fully complied with the requirements of the revised code in sentencing him. Lathan's prison terms are within the range of sentences that is allowed for an offender who is convicted of first-degree felonies. Therefore, although Statev. Williams is overruled, we do not find that the trial court improperly sentenced Lathan or that this case must be remanded for resentencing. The trial court's judgment is, therefore, affirmed.
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, amended 1/1/98.
Lanzinger, J. concur.
Handwork, P.J. concurs, writes separately.
Knepper, J. concurs with concurrence.
{¶ 37} I concur with the decision of the majority recognizing that the Williams decision, with which I originally agreed was, at best, ill conceived. It is important to recognize that each case is unique, and that a trial judge, following the sentencing statutes must be granted discretion to deal with the case before him or her without being bound by what others may have done in similar but perhaps vastly different circumstances.
