State v. MorganState v. Morgan
Trial Court Nos. 23-CR-0052 and 23-CR-0006
Judgments Affirmed
Date of Decision: February 20, 2024
APPEARANCES:
Alison Boggs for Appellant
Raymond Kelly Hamilton for Appellee
WILLAMOWSKI, P.J.
{1} Defendant-appellant Karen S. Morgan (“Morgan“) appeals the judgments of the Union County Court of Common Pleas, alleging that the trial court erred in the process of imposing a sentence in these cases and that she was denied her right to the effective assistance of counsel. For the reasons set forth below, the judgments of the trial court are affirmed.
Facts and Procedural History
{2} Morgan appeals two cases. In Case No. 23-CR-06, Morgan was indicted on one count of criminal trespass in violation of
{3} In Case No. 23-CR-52, Morgan was indicted on one count of trafficking in cocaine in violation of
{4} Morgan filed her notices of appeal on July 13, 2023 and July 19, 2023. On appeal, she raises the following two assignments of error:
First Assignment of Error
The trial court erred when it imposed a greater than minimum sentence in the trafficking in cocaine case after finding the factors in support of a minimum sentence in the burglary case, then ordering the trafficking sentence to be served consecutive to the sentence in the burglary case.
Second Assignment of Error
Appellant was deprived [of] effective assistance of counsel.
First Assignment of Error
{5} Morgan asserts that the trial court erred (1) by not imposing the minimum prison term in Case No. 23-CR-52 and (2) by ordering her sentence in Case No. 23-CR-52 to be served consecutively to her sentence in Case No. 23-CR-06.
Standard of Review
{6}
Legal Standard
{7} “Trial courts have full discretion to impose any sentence within the statutory range.” State v. Stansberry, 3d Dist. Union No. 14-22-25, 2023-Ohio-3212, 25, quoting State v. Smith, 3d Dist. Seneca No. 13-15-17, 2015-Ohio-4225, 9. But in the process of fashioning a sentence, trial courts are still required to consider the principles and purposes of felony sentencing in
{8} However,
{9} Further, prison terms for multiple offenses are generally served concurrently. State v. Schmidt, 3d Dist. Seneca No. 13-23-01, 2023-Ohio-3845, 32, citing
(4) If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
2929.16 ,2929.17 , or2929.18 of the Revised Code, or was under post-release control for a prior offense.(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
Legal Analysis
{10} In her first argument, Morgan asserts that the trial court should have imposed the minimum prison term in Case No. 23-CR-52. Specifically, she argues that her criminal history supports the imposition of a shorter sentence for the drug trafficking offenses she committed. Morgan also notes that the trial court imposed the minimum prison sentence in Case No. 23-CR-06. However, the record establishes that the trial court expressly considered
{11} In her second argument, Morgan asserts that the prison terms from these two cases should not have been imposed consecutively.1 During sentencing,
Second Assignment of Error
{12} Morgan asserts that her conviction for burglary should be reversed because defense counsel‘s representation was ineffective.
Legal Standard
{13} Ohio law presumes that a licensed attorney‘s representation was competent. State v. Bruce, 2023-Ohio-3298, 224 N.E.3d 715, ¶ 13 (3d Dist.). “In order to prove an ineffective assistance of counsel claim, the appellant must carry the burden of establishing (1) that his or her counsel‘s performance was deficient
{14} To establish deficient performance, the appellant must demonstrate that trial “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.” State v. Howton, 3d Dist. Allen No. 1-16-35, 2017-Ohio-4349, ¶ 35, quoting Strickland at 687. To establish prejudice, “the defendant must show a reasonable probability that, but for counsel‘s errors, the result of the proceeding would have been different.” State v. Bibbs, 2016-Ohio-8396, 78 N.E.3d 343, ¶ 13 (3d Dist.).
Legal Analysis
{15} Case No. 23-CR-06 arose from a situation in which Morgan took $566.00 worth of goods out of a Walmart without tendering payment. While investigating this incident, law enforcement discovered that Morgan had previously received a conviction for stealing from a Walmart in Marion County, Ohio. As the result of this earlier case, she was ordered not to enter Walmart stores. This prior order resulted in Morgan being charged with burglary for the incident that gave rise to Case No. 23-CR-06.
{16} On appeal, Morgan argues that defense counsel‘s performance was deficient “because a certified copy of the [Marion County judgment] entry was never entered into evidence to prove that the language in the entry was clear and
{17} This Court has held that, “where proof outside the record is required to support a claim of ineffective assistance of trial counsel, the claim is ‘purely speculative and * * * “it is not appropriate for consideration on direct appeal.““’ State v. Nichols, 3d Dist. Shelby No. 17-22-08, 2023-Ohio-4364, 21, quoting State v. Anders, 3d Dist. Hancock No. 5-16-27, 2017-Ohio-2589, ¶ 66, quoting State v. Zupancic, 9th Dist. Wayne No. 12CA0065, 2013-Ohio-3072, 4. This assignment of error rests on the wording of a document that is not in the record. Her brief reveals the speculative nature of her argument when she asserts that the outcome of this proceeding may have been different “if the language [in the order] was vague and not pointed.” (Emphasis added.) (Appellant‘s Brief, 11).
{18} In conclusion, Morgan‘s speculative argument cannot establish the prejudice prong of the Strickland test. Thus, she has failed to carry the burden of establishing an ineffective assistance of counsel claim in this appeal. Accordingly, the second assignment of error is overruled.
Conclusion
{19} Having found no error prejudicial to the appellant in the particulars assigned and argued, the judgments of the Union County Court of Common Pleas are affirmed.
Judgments Affirmed
ZIMMERMAN and MILLER, J.J., concur.
/hls