STATE OF OHIO, v. JOSEPH LEWIS
CASE NO. 12 MA 107
STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT
March 8, 2013
2013-Ohio-892
Hon. Joseph J. Vukovich, Hon. Gene Donofrio, Hon. Cheryl L. Waite
CHARACTER OF PROCEEDINGS: Criminal Appeal from Common Pleas Court, Case No. 12CR203. JUDGMENT: Affirmed in part; Reversed and Remanded in part.
For Plaintiff-Appellee: Attorney Paul Gains, Prosecuting Attorney; Attorney Ralph Rivera, Assistant Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503
For Defendant-Appellant: Attorney Julie Walko, 6600 Summit Drive, Canfield, Ohio 44406
{¶1} Defendant-appellant Joseph Lewis appeals from his conviction and sentence entered in the Mahoning County Common Pleas Court for domestic violence. Appointed counsel filed a no merit brief and requested leave to withdraw. Although there are no appealable issues regarding the plea and counsel’s performance, there is one appealable issue regarding sentencing. While Lewis’ 16-month sentence for the domestic violence conviction is not contrary to law and does not constitute an abuse of discretion, the portion of Lewis’ sentence that indicates that he is subject to a three year term of postrelease control is incorrect. Pursuant to
Statement of Case
{¶2} On March 22, 2012, Lewis was indicted for domestic violence in violation of
{¶3} At sentencing, after reviewing the PSI, the trial court chose to not follow the state‘s recommendation. Rather, it imposed a 16-month sentence. Lewis appeals from the conviction and sentence. Appointed counsel has filed a no merit brief asking to withdraw because there are allegedly no appealable issues.
Analysis
{¶4} When appellate counsel seeks to withdraw and discloses that there are no meritorious arguments for appeal, the filing is known as a no merit brief or an Anders brief. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). In this district it has also been called a Toney brief. State v. Toney, 23 Ohio App.2d 203, 262 N.E.2d 419 (7th Dist.1970).
{¶5} In Toney, this court set forth the procedure to be used when counsel of record determines that an indigent‘s appeal is frivolous:
Where court-appointed counsel, with long and extensive experience in criminal practice, concludes that the indigent‘s appeal is frivolous and that there is no assignment of error which could be arguably supported on appeal, he should so advise the appointing court by brief and request that he be permitted to withdraw as counsel of record.
Court-appointed counsel‘s conclusions and motion to withdraw as counsel of record should be transmitted forthwith to the indigent, and the indigent should be granted time to raise any points that he chooses, pro se.
It is the duty of the Court of Appeals to fully examine the proceedings in the trial court, the brief of appointed counsel, the arguments pro se of the indigent, and then determine whether or not the appeal is wholly frivolous.
* * *
Where the Court of Appeals determines that an indigent‘s appeal is wholly frivolous, the motion of court-appointed counsel to withdraw as counsel of record should be allowed, and the judgment of the trial court should be affirmed.
Id. at syllabus.
{¶6} The no merit brief was filed by counsel on August 20, 2012. Approximately one week later, this court informed Lewis of counsel‘s no merit brief and granted him 30 days to file his own written brief; thus his brief was due on September 27, 2012. 08/28/12 J.E. Lewis has not filed a pro se brief. The no merit brief review identifies three potential issues for appeal: 1) whether the plea was entered into knowingly, intelligently, or voluntarily; 2) whether the sentence was an abuse of discretion and/or clearly and convincingly contrary to law; and 3) whether trial counsel’s representation amounted to ineffective assistance of counsel. In reviewing these possible appellate arguments, counsel concludes that they have no merit and the appeal is frivolous.
{¶7} The potential issues identified by counsel are the only issues that could possibly be raised in this appeal. Thus, we will review each issue in turn.
Plea
{¶8}
{¶9} Additionally, the defendant must also be advised of four nonconstitutional rights: 1) the nature of the charges; 2) the maximum penalty involved, which includes, if applicable, an advisement on postrelease control; 3) if applicable, that the defendant is not eligible for probation or the imposition of community control sanctions; and 4) that after entering a guilty plea or a no contest plea, the court may proceed directly to judgment and sentencing.
{¶10} The trial court‘s advisement on the constitutional rights strictly complied with
{¶11} As to the
{¶12} The trial court did not advise Lewis on his eligibility for probation or a community control sanction. However, it was not required to.
{¶13} Considering all the above, we find that the trial court‘s advisement as to the nonconstitutional rights substantially complied with
Sentencing
{¶14} We review felony sentences using both the clearly and convincingly contrary to law and abuse of discretion standards of review. State v. Gratz, 7th Dist. No. 08MA101, 2009-Ohio-695, ¶ 8; State v. Gray, 7th Dist. No. 07MA156, 2008-Ohio-6591, ¶ 17. We first determine whether the sentencing court complied with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law. Gratz at ¶ 8, citing State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, ¶ 13-14. Then, if it is not clearly and convincingly contrary to law, we must determine whether the sentencing court abused its discretion in applying the factors in
{¶15} Lewis pled guilty to domestic violence, a fourth-degree felony; the trial court sentenced him to a 16-month term of incarceration. 05/31/11 Tr. 7; 06/05/12 J.E. This sentence is within the sentencing range of 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, and 18 months that is permitted by
The Court considered the record, presentence investigation report, oral statements and the principles and purposes of sentencing under Ohio Revised Code § 2929.11, and balances the seriousness and recidivism factors under Ohio Revised Code § 2929.12. The Court finds that Defendant is not eligible for a community control sanction.
06/05/11 J.E.
{¶16} In considering the record, presentence investigation report and the factors listed in
{¶17} Consequently, considering all the above, the 16-month sentence is not contrary to law or an abuse of discretion.
{¶18} That said, there are two incorrect statements that occurred in sentencing. The first concerns the postrelease control sentence issued.
Any sentence to a prison term for a felony of the third, fourth, or fifth degree that is not subject to division (B)(1) or (3) of this section shall include a requirement that the offender be subject to a period of post-release control of up to three years after the offender‘s release from imprisonment, if the parole board, in accordance with division (D) of this section, determines that a period of post-release control is necessary for that offender.
{¶19} Lewis was convicted of a fourth-degree felony and therefore, he is not subject to (B)(1) or (3) since those divisions apply to first, second, and third-degree felonies. Thus, by statute, the parole board has the discretion to subject Lewis to a period of postrelease control that could be up to three years. In the sentencing judgment entry, the trial court informed Lewis that “he is subject to three (3) years of postrelease control“. 06/05/12 J.E.
{¶20} The Ninth Appellate District in 2009 found that a sentence was void because the trial court incorrectly stated that the postrelease control for the fourth-degree felony domestic violence was mandatory. State v. Bedford, 184 Ohio App.3d 588, 2009-Ohio-3972, 921 N.E.2d 1085, ¶ 5-8 (9th Dist.). Recently the Fifth Appellate District has held that when a trial court directly imposes discretionary postrelease control upon an offender it errs, because in imposing the discretionary period, the court is overriding the parole board‘s statutory discretion under
{¶21} The Ohio Supreme Court has indicated that when a “judge fails to impose statutorily mandated postrelease control as part of a defendant‘s sentence, that part of the sentence is void and must be set aside.” State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, 942 N.E.2d 332, ¶ 26. Thus, since the sentence as to postrelease control is incorrect that part of the sentence is void and the sentence must be corrected upon remand. See Fischer at ¶ 29-30.
{¶22} Consequently, considering the above there is an appealable issue regarding the sentence.
{¶23} The second incorrect statement is the trial court’s statement in its sentencing judgment entry that Lewis is “not eligible for a community control sanction.” 06/05/12 J.E. As referenced above, given the crime he committed he was eligible to receive a community control sanction. However, when considering the record and recommendations of the probation department in the presentence investigation report, he was not amenable to receiving a community control sanction. Although the trial court’s statement that Lewis is not eligible for a community control sanction does not necessarily affect the sentence, and does not constitute reversible error, since we are already remanding the matter for resentencing on the postrelease control issue, the trial court should correct the misstatement.
{¶24} In conclusion, for the reasons expressed above, the postrelease control sentence must be reversed and the matter remanded to the trial court for resentencing on that issue.
Counsel‘s Performance
{¶25} The next potential issue is trial counsel’s performance. To prove an allegation of ineffective assistance of counsel, the two-prong Strickland test must be met. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). First, it must be established that counsel‘s performance fell below an objective standard of reasonable representation. Id. at 687; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. Second, it must be shown that
{¶26} Lewis had two different attorneys, one for the plea hearing and a different one for the sentencing hearing. Lewis indicated that he was satisfied with both of his counsels’ representation. 05/31/12 Tr. 4. Nothing in the record indicates that the attorneys were deficient in their performance and/or that prejudice resulted from a deficient performance. Admittedly, counsel did not mention Lewis’ prior record at the change of plea hearing. However, that was not deficient performance and/or resulted in prejudice. There is no requirement that counsel must mention a defendant’s record at the change of plea hearing. Furthermore, in order to be entitled to a community control sanction a PSI had to be performed.
{¶27} Furthermore, the fact that the trial court opted to not follow the plea agreement does not show a deficient performance on the part of counsel. Lewis was more than adequately advised that the trial court was not bound by the plea agreement and could sentence him to any sentence within the applicable sentencing range. 04/10/12 Tr. 6. Therefore, there are no appealable issues regarding counsel’s performance.
Conclusion
{¶28} For the foregoing reasons, the judgment of the trial court is affirmed in part, and reversed and remanded in part. There are no appealable issues concerning Lewis’ conviction or the imposition of the 16-month prison term.
Donofrio, J., concurs.
Waite, J., concurs.