State v. MitchellState v. Mitchell
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Kеvin J. Baxter, Erie County Prosecuting Attorney, and Mary Ann Barylski, Assistant Prosecuting Attorney, for appellee.
Timothy Young, Ohio Public Defender, and Stephen P. Hardwick, Assistant Public Defender, for appellant.
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PER CURIAM.
{¶ 1} Befоre the court is the application of defendant-appellant, Chad Mitchell, to reopen the direct appeal of his conviction, filed August 1, 2012. On August 28, 2012, the state filed its opposition to his application. After Mitchell filed a reply brief, the state moved to strike it as noncompliant with
1) Background
{¶ 2} Following a jury trial, Mitchell was convicted of complicity for various felony offеnses, with firearm specifications, and received a 21 year aggregate prison term. He appealed and we reversed and remanded for resentencing on a merger issue. State v. Mitchell, 6th Dist. No. E-09-064, 2011-Ohio-973. Thereafter, the Erie County Court of Common Pleas resentenced him to an aggregate prison term of 20 years. Mitchell appealed again and we affirmed that sentence. State v. Mitchell, 6th Dist. No. E-11-039, 2012-Ohio-1992.
{¶ 3} In apрlying to reopen the latter direct appeal, Mitchell proposes three new assigned errors, claiming that his previous appellate counsel‘s failure to raise them establishes ineffectiveness. These are:
Assignment of Error No. 1: The trial court erred by using the sentencing package doctrine to increase Mr. Mitchell‘s sentences for felonious assault.
Assignmеnt of Error No. 2: Res judicata barred the trial court from increasing Mr. Mitchell‘s sentence for his felonious assault convictions.
Assignment of Error No. 3: The trial court‘s increased sentence for felonious assault is presumptively vindictive because the presumption of vindictiveness applies when, after a successful appeal, a trial court increases a sentenсe for three counts of a multiple-count case, even if the total prison term the entire sentencing package has decreased.
App.R. 26(B)
{¶ 4} In pertinent part,
3) Standard of Review and Presumption of Competency
{¶ 5} To justify reopening an appeal, the applicant “bears the burden of establishing that there was a ‘genuine issue’ as to whether he has a ‘colorable claim’ of ineffective assistance of counsel on appeal.” State v. Spivey, 84 Ohio St.3d 24, 25, 701 N.E.2d 696 (1998); see also State v. Smith, 95 Ohio St.3d 127, 2002-Ohio-1753, 766 N.E.2d 588, ¶ 7. “The two-pronged analysis found in Strickland v. Washington (1984), 466 U.S. 668 * * * is the appropriate standard to assess whether [appellant] has raised a ‘genuine issue’ as to the ineffectiveness of appellate counsel.” Id. at ¶ 6.
{¶ 6} In order to prevail under this standard, Mitchell must demonstrate not only that the performance of his appellate counsel was deficient, but also that he was prejudiced by that deficiency. Strickland at 687; State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 107;
{¶ 7} Ohio law presumes the competence of a properly licensed attorney at both the trial and appellate level. State v. Lott, 51 Ohio St.2d 160, 555 N.E.2d 293 (1990); State v. Hamblin, 37 Ohio St.3d 153, 524 N.E.2d 476 (1988). In light of this presumption, Mitchell must spеcifically show how “[appellate] counsel was deficient for failing to raise the issues he now presents, and that there was a reasonable probability of success had [cоunsel] presented those claims on appeal.” State v. Mack, 101 Ohio St.3d 397, 2004-Ohio-1526, 805 N.E.2d 1108, ¶ 5, citing State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three of the syllabus.
4) Analysis
{¶ 8} Mitchell‘s third proposed assignment will be addressed first. It is essentially the same argument he raised in the earlier appeal regarding the “presumption of vindictiveness” under North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072 (1969),
{¶ 9} Mitchell‘s arguments under his first and second proposed assignments also do not rebut the presumption that рrevious appellate counsel was effective. Mitchell first asserts that the trial court employed the “sentencing package doctrine” in resentencing him to less time cumulatively than he received in his first sentence, pointing to a one year increase on each of the felony charges, even though the merger we ordered resulted in the shorter net aggrеgate sentence. For this argument, Mitchell cites State v. Saxon, 109 Ohio St.3d 176, 179-180, 846 N.E.2d 824, 2006-Ohio-1245. In Saxon, the Ohio Supreme
[A] judge sentencing a defendant pursuant to Ohio law must consider each offense individually and impose a separate sentence for each offense. See
R.C. 2929.11 through2929.19 . Only after the judge has imposed a separate prison term for each offense may the judge then consider in his discretion whether the offender should serve those terms concurrently or consecutively. * * * Under the Ohio sentencing stаtutes, the judge lacks the authority to consider the offenses as a group and to impose only an omnibus sentence for the group of offenses. (Emphasis added; citations omitted.)
{¶ 10} As the stаte notes in response, what Mitchell labels a “sentencing package” is not what occurred here. The record indicates that the sentencing judge “imposed a separatе prison term for each offense,” and the fact that he made some statements during his soliloquy referring to the aggregate number does not make the cumulative outcome a “sentenсing package.” Accordingly, Saxon‘s bar has no applicability to this resentencing. Mitchell next claims that “res judicata” barred the one-year increases here. The state responds that after a reversal and remand for resentencing, Pearce and its progeny fully anticipate that a greater or less sentence could result. Pearce, 395 U.S. at 723. We agree and find the res judicata contention inapposite.
{¶ 11} Finally, Mitchell claims that prior counsel was ineffective for failing to move this court to certify our decision as being in conflict with State v. Bradley, 2d Dist. No. 06CA31, 2008-Ohio-720, and State v. Johnson, 174 Ohio App.3d 130, 2007-Ohio-6512 (1st Dist.2007). Bradley involved a remand after which the defendant was indicted on fourteen new counts, which then led to negotiated pleas to four offenses for which he received harsher sentences than were originally imposed. However, in resentencing the defendant on a substantially lesser number of chargеs, the trial court in Bradley failed to provide an on-the-record explanation sufficient to rebut Pearce‘s “presumption of vindictiveness.” That case is factually distinct from this one.
{¶ 12} Johnson actually supports the state‘s position. On remand after a partial reversal, the trial court in Johnson imposed an aggregate sentence of 19 years, which reflected an increase from three years to six years for a robbery conviction. The cumulative prison time, however, remained the same as his first sentence. Id. at ¶ 3-5. The First District rejected Johnson‘s Pearce claim that this increase was vindictive. Noting that the sentencing judge had madе individualized sentencing choices, the court stated: “These considerations, coupled with the inescapable fact that Johnson‘s total sentence did not increase, are suffiсient to establish that the sentence was not motivated by vindictiveness toward Johnson for exercising his rights.” (Emphasis added.) Id. at ¶ 15.
5) Conclusion
{¶ 13} Mitchell has not met the standard of
{¶ 14} It is so ordered.
Application denied.
Mark L. Pietrykowski, J.
JUDGE
Thomas J. Osowik, J.
JUDGE
Stephen A. Yarbrough, J. CONCUR.
JUDGE
This decision is subject to further editing by the Supreme Court of Ohio‘s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court‘s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.