State v. MaguireState v. Maguire
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 Douglas King, 91 West Taggart Street, P.O. Box 85, East Palestine, Ohio 44413
¶{1} Defendant-appellant Kevin Maguire appeals from his sentence rendered in the Mahoning County Common Pleas Court for his conviction of driving under the influence of alcohol, a violation of
STATEMENT OF THE CASE
¶{2} Maguire was indicted for one count of driving while under the influence of alcohol, a violation of
¶{3} After multiple continuances, sentencing occurred. The state abided by its agreement and recommended the minimum mandatory six month sentence. (09/05/08 Sentencing Tr. 2). The trial court did not follow the recommendation аnd instead sentenced Maguire to the maximum penalty of five years imprisonment and suspended his driver‘s license for life. (09/11/08 J.E.; 09/05/08 Sentencing Tr. 4-5). Maguire filed a timely notice of appeal from that sentence.
FIRST AND SECOND ASSIGNMENTS OF ERROR
¶{4} “THE TRIAL COURT ERRED IN IMPOSING THE MAXIMUM SENTENCE ON DEFENDANT/APPELLANT.”
¶{6} The first and second assignments of error are addressed simultaneously due to the commonality of the issues. Maguire contends that the sentence was clearly and convincingly contrary to law and that the trial court abused its discretion in issuing a maximum sentence for the conviction. He asserts that the record is not susceptible to review because no reasons were provided for the imposition of the maximum sentence. He states that although State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, disposed of the requirement that prior to sentencing an offender to the maximum sentence the trial court was required to find that the offender committed the worst form of the offense, the court should still engage in that “worst form оf the offense analysis and at the least state its reasons” for imposing a maximum sentence. He also argues that the trial court‘s references to
¶{7} We have recently explained that following the Ohio Supreme Court‘s decision in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, we review fеlony 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, 2009-Ohio-695, at ¶8, citing Kalish, 2008-Ohio-4912, at ¶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
¶{9} “THE COURT: Okay I‘ve heard the recommendation of the state, the defense, considered the degree of the felony, the purposes and principles of sentencing under
¶{10} Furthermore, in the sentencing entry, the trial court stated that it considered the “principles and purposes of sentencing under
¶{11} The above shows that the trial court did consider
¶{12} Maguire‘s contention that the reference to
¶{13} Moreover, in discussing
¶{14} In conclusion, considering the references to
THIRD ASSIGNMENT OF ERROR
¶{15} “DEFENDANT/APPELLANT WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT HIS SENTENCING HEARING.”
¶{16} To prove an allegation of ineffective assistance of counsel, Maguire must satisfy the two-prоng Strickland test. Strickland v. Washington (1984), 466 U.S. 668. First, he must establish that counsel‘s performance fell below an objective standard of
¶{17} This court has consistently stated that by entеring a guilty plea, the defendant waives the right to claim that he was prejudiced by constitutionally ineffective assistance of counsel, except to the extent the defendants complained of cause the plea to be less than knowing and voluntary. State v. Kelly, 7th Dist. No. 08CO23, 2009-Ohio-1509, ¶11; State v. McQueen, 7th Dist. No. 08MA24, 2008-Ohio-6589, ¶18; State v. Doak, 7th Dist. Nos. 03CO15 and 03CO31, 2004-Ohio-1548, ¶55. We have found as such becаuse “a defendant who admits his guilt waives the right to challenge the propriety of any action taken by the court or counsel prior to that point in the proceedings unless it affected the knowing and voluntary nature of the plea.” McQueen, 7th Dist. No. 08MA24, 2008-Ohio-6589, at ¶19, citing State v. Madeline, 11th Dist. No. 2000-T-0156, 2002-Ohio-1332. (Emphasis Added).
¶{18} Recently we have extended the above rule of law and held that a guilty plea also waives any claim of ineffective assistance counsel at the sentencing phase unless it affects the knowing and voluntary nature of the plea. State v. Sayers, 7th Dist. No. 07MA234, 2008-Ohio-6633, ¶22-24. That holding is incorrect and is hereby overruled. The Ohio Supreme Court has stated that “a defendant who enters a voluntary plea of guilty while represеnted by competent counsel waives all nonjurisdictional defects in prior stages of the proceedings.” Ross v. Common Pleas Court of Auglaize County (1972), 30 Ohio St.2d 323, 324. (Emphasis added). See, also, State v. Spates (1992), 64 Ohio St.3d 269, 271-272, quoting Tollett v. Henderson (1973), 411 U.S. 258, 267 (stating, “We thus reaffirm the principle recognized in the Brady trilogy: a guilty plea represents a break in the chain of events
¶{19} Accordingly, even though Maguire pled guilty to the charge, he can still raise an argument that counsel was ineffective at the sentencing stage. As such, we now address his argument that counsel was ineffective at the sentencing hearing because counsel failed to make any argument regarding what sentence the trial court should impose on Maguire. (09/05/08 Sentencing Tr. 2-3).
¶{20} We find no merit with his argument. Counsel‘s failure to speak at the sentencing hearing did not amount to deficient performance. Possibly the decisiоn for counsel to not speak at the sentencing hearing was strategy. Tactical or strategic trial decisions, even if unsuccessful, do not generally constitute ineffective assistance. State v. Carter (1995), 72 Ohio St.3d 545, 558. Regardless, Maguire spoke on his own behalf at sentencing. He expressed his remorse and stated that he was glad no one was injured while he was driving under the influence. (09/05/08 Sentencing Tr. 3). Thus, the trial court did have information from Maguire before sentencing him.
¶{21} Yet, even if counsel‘s failure to make an argument at the sentencing hearing amounts to deficient performance, Maguire cannot show prejudice. While the state did recommend the minimum mandatory sentence, the trial court was not bound to follow that recommendation; it was free to sentence Maguire to the minimum, the maximum or anywhere in between. State v. Martinez, 7th Dist. No. 03MA196, 2004-Ohio-6806, ¶8. There is nothing in the record to remotely suggest that had counsel made an argument at the sentencing hearing that the trial court would have followed the recommendation. In fact, it appears from the record that the trial court still would have sentenced Maguire to the same sentence regardless of what counsel said. The trial court specifically referеnced Maguire‘s PSI. In that PSI, not counting the instant offense, from 1993 until 2007 there are 12 alcohol-related convictions (six are for driving under the influence of alcohol (DUI), three are for probation violations
FOURTH ASSIGNMENT OF ERROR
¶{22} “THE TRIAL COURT‘S IMPOSITION OF THE MAXIMUM SENTENCE IN THE PRESENT IS CONTRARY TO LAW AND/OR VIOLATES THE MANDATES OF ORC 2929.13(A).”
¶{23} Maguire argues that the sentence violates
¶{24}
¶{25} “‘Just what constitutes a “burden” on state resources is undefined by the statute, but the plain language suggests that the costs, both economic and societal, should not outweigh the benefit that the people of the state derive from an offender‘s incarceration. Some have argued that in cases where the multiple life tails might be involved, incarceration of aged offenders who require the kind of nursing care needed by elderly people might place a burden on the state‘s resources. Of course this is true, but it is only one type of cost associаted with incarceration. The court must also consider the benefit to society in assuring that an offender will not be free to reoffend. Many people sleep better at night knowing that certain offenders are incarcerated.
¶{26} Hence, considering Maguire‘s prior record, especially the driving under the influence convictions and other alcohol-related convictions, it cannot be said that the cost of incarceration outweighs the benefit to society of this offender being incarcerated to the maximum penalty. During his incarceration, he is unable to harm society with his inability to control the use of alcohol. Thus, we do not find that
CONCLUSION
¶{27} For the foregoing reasons, the judgment of the trial court is hereby affirmed.
Waite, J., concurs.
DeGenaro, J., concurs.