Case Information
*1
[Cite as
State v. Patterson
,
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. Patricia A. Delaney, P. J.
Plaintiff-Appellee Hon. Sheila G. Farmer, J.
Hon. John W. Wise, J.
-vs-
Case No. CT2012-0029 DARIAN R. PATTERSON
Defendant-Appellant O P I N I O N CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. CR2011-0103 JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 30, 2012 APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant RON WELCH DAVID A. SAMS ASSISTANT PROSECUTOR Box 40
27 North Fifth Street West Jefferson, Ohio 43162 Zanesville, Ohio 43701
Muskingum County, Case No. CT2012-0029
Wise, J. Defendant-appellant Darian R. Patterson appeals his sentence and
conviction on two counts of drug trafficking and one count of having weapons while under disability following a guilty plea in the Muskingum County Court of Common Pleas. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE CASE AND FACTS
{¶3} On or about November 20, 2012, a Confidential Informant (C.I.), working for the Zanesville Police Department, went to 725 Bates Street in Zanesville, Ohio, in a vehicle with two Zanesville Police Department detectives. The C.I. was greeted at the door of the residence by Gary A. Workman. The C.I. asked Gary if he could get an "80" and Gary said "yeah". Gary yelled out "need a[n] 80". The C.I. stated that he dealt with Appellant Darian Patterson in the living room by the couch. Gary Workman was present in the kitchen mopping the floor. The C.I. got the Crack from Appellant and handed $80.00 to Appellant. The C.I. stated there was an all black in color semi-auto pistol on the coffee table within reach of Appellant during the deal,and Appellant cut the Crack with a razor off a large chunk that was on a dinner plate. The C.I. gave the off-white hard substance to one of the detectives upon return to the vehicle. The C.I. and two detectives returned to ZPD headquarters where the substance was weighed (.6 grams+/-) and tested positive for Cocaine substance. On or about November 20, 2010, a C.I. working for the Zanesville Police
Department went to 725 Bates Street, in a vehicle with two Zanesville Police Department detectives, for a second buy of Crack. Leitsa Lang answered the door and *3 let the C.I. inside. The C.I. asked for $100 worth of Crack Cocaine and handed $100 to Lang who then gave the money to Appellant. The C.I. saw the same plate from the first buy now on the kitchen table in front of Appellant. Appellant cut up the Crack Cocaine on the plate with a razor blade and gave it to Lang who put the Crack in a baggie, tied it off, cut off the top part of the baggie, and gave it to the C.I.. The C.l. returned to the vehicle and gave the hard off-white substance to one of the detectives. A field test was positive for Cocaine Substance. The detectives advised the Special Response Team to secure the
residence for Search Warrant Execution. The C.I. and detectives returned to the Zanesville Police Department headquarters. Thereafter, one of the detectives returned to 725 Bates Street to conduct a search of the residence. A search of 725 Bates Street produced: discovery of Appellant Darian
Patterson possessing $786.00,which $100.00 of second buy money was recovered; a loaded Davis handgun; off-white substance on a scale; green leafy substance; off-white substance with razor blade on a plate on the floor of the living room; off-white substance in a baggie under the ottoman in the living room; and a loaded Bersa 9mm handgun in the kitchen. Search of the bedroom where Charles Workman Ill resides produced 2 portable scales, a loaded Hi-point 40 caliber handgun, and a loaded Hi-Point 9mm handgun. Appellant was indicted upon the following: two Counts of Trafficking in
Drugs (Crack Cocaine)(Forfeiture Specification), both felonies of the fifth degree; one count of Possession of Drugs (Crack Cocaine)(Forfeiture Specification), a felony of the fourth degree; two counts of Having a Weapon While Under Disability, both felonies of *4 the third degree; and one count of Possession of Drugs (Crack Cocaine)(Forfeiture Specification), a felony of the third degree.
{¶8} On January 25, 2012, Appellant was arraigned and pled not guilty. {¶9} On April 4, 2012, Appellant entered a negotiated plea of "guilty" to one count of Trafficking in Drugs (Crack Cocaine)(Forfeiture Specification), a felony of the fifth degree; one Count of Trafficking in Drugs (Crack Cocaine)(Forfeiture Specification), a felony of the fifth degree; and one count of having a weapon under disability, a felony of the third degree. In exchange for this plea, the State agreed to recommend a sentence of two years in prison. In addition, the State agreed to nolle Counts Five, Eight, and Eleven at the time of sentencing. On May 7, 2012, the parties returned to Court for sentencing. The trial
court ordered that the Defendant/Appellant serve a prison term of forty-seven (47) months as follows: Count One - eleven (11) months in prison; Count Three- eleven (11) months in prison to run concurrent to Count One; Count Seven- thirty-six (36) months in prison to run consecutive to the aggregate total of Counts One and Three. Appellant now appeals, assigning the following errors for review:
ASSIGNMENTS OF ERROR “I. THE INDICTMENT CHARGING DEFENDANT-APPELLANT WITH
HAVING A WEAPON UNDER DISABILITY IS STRUCTURALLY INSUFFICIENT CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS. “II. THE DEFENDANT-APPELLANT'S CONVICTION IS VOID AS CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS.
{¶14} “III. THE DEFENDANT-APPELLANT'S PLEA WAS UNKNOWING, UNINTELLIGENT AND INVOLUNTARY CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS.
{¶15} “IV. THE DEFENDANT-APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL CONTRARY TO THE STATE AND FEDERAL CONSTITUTIONS. “V. THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS BY
A SENTENCE CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS.”
I. In his First Assignment of Error, appellant argues that the indictment was
structurally insufficient and contrary to law. We disagree. As to the having weapons while under disability charges, Appellant
argues that the indictment in this case failed to allege the actual dates of Appellant’s prior convictions and was therefore insufficient. Appellant entered a guilty plea in this case. “ ‘[A] guilty plea represents a
break in the chain of events which has preceded it in the criminal process.’ ” S tate v.
Spates,
{¶20} Because Appellant entered a guilty plea in this matter, such plea to the indictment waived any defect.
{¶21} Further, upon review of the indictment in this matter, we find that such contained the case numbers, courts of conviction, nature of the offense and month and year of the prior convictions. As such, we do not find the indictment to me insufficient as to said charges. Appellant’s First Assignment of Error is overruled.
II., III. In his Second and Third Assignments of Error, appellant argues that his
conviction is void and contrary to law, and that his plea was not made knowingly, intelligently or voluntarily. We disagree. Crim.R. 11 governs pleas. Subsection (C)(2) states the following: “(2) In felony cases the court may refuse to accept a plea of guilty or a
plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following:
{¶26} “(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
{¶27} “(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence. “(c) Informing the defendant and determining that the defendant
understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant's favor, and to require the state to prove the defendant's guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself Appellant herein argues that during the plea hearing, the prosecuting
attorney admitted that the alleged firearm in this matter was inoperable, and that Appellant’s conviction for having a weapon while under disability was therefore based on insufficient evidence. As stated above, a guilty plea waives all appealable errors except for a
challenge as to whether the defendant made a knowing, intelligent and voluntary
acceptance of the plea. State v. Spates (1992),
IV. In his Fourth Assignment of Error, Appellant claims that he was denied
the effective assistance of counsel. We disagree. A claim of ineffective assistance of counsel requires a two-prong
analysis. The first inquiry is whether counsel's performance fell below an objective
standard of reasonable representation involving a substantial violation of any of defense
counsel's essential duties to Appellant. The second prong is whether Appellant was
prejudiced by counsel's ineffectiveness. Strickland v. Washington (1984),
prejudiced by counsel's ineffectiveness. “Prejudice from defective representation
sufficient to justify reversal of a conviction exists only where the result of the trial was
unreliable or the proceeding fundamentally unfair because of the performance of trial
*9
counsel.” State v. Carter (1995), 72 Ohio St.3d 545, 558, 651 N.E.2d 965, citing
Lockhart v. Fretwell (1993),
{¶36}
The United States Supreme Court and the Ohio Supreme Court have
held a reviewing court “need not determine whether counsel's performance was
deficient before examining the prejudice suffered by the defendant as a result of the
alleged deficiencies.” Bradley at 143,
{¶37} Appellant argues that his counsel was ineffective for allowing Appellant to plea to the charges in the indictment for the reasons set forth in the above assignments of error. Having found no merit in Appellant's First, Second, and Third Assignments of Error, we find Appellant is unable to satisfy either prong of Strickland.
{¶38} Appellant’s Fourth Assignment of Error is overruled
V. In his Fifth Assignment of Error, Appellant claims that his sentence was
contrary to law and therefore violated his right to due process. We disagree. Specifically, Appellant argues that the trial court erred in imposing consecutive sentences in this matter. “It is well-established that a sentence that is agreed upon as part of a
negotiated plea, and that does not exceed the statutory maximum sentence applicable to the crime, is not subject to appellate review pursuant to R.C. § 2953.08(D).” State v. Yeager, Carroll App.No. 03CA786, 2004–Ohio–3640, ¶ 21 (additional citations omitted). However, in the case sub judice, the record indicates that the trial court sentenced Appellant to more than that which was recommended by the State. In these *10 circumstances, we find Appellant has not waived his right to challenge his sentence upon direct appeal. 2011 Am.Sub.H.B. No. 86, which became effective on September 30,
2011, revived the language provided in former R.C. 2929.14(E) and moved it to R.C. 2929.14(C)(4). The revisions to the felony sentencing statutes under 2011 Am.Sub.H.B. No. 86 now require a trial court to make specific findings when imposing consecutive sentences. R.C. 2929.14(C)(4) provides, in relevant part: “(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, or 2929.18 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. *11 “(c) The offender's history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime by the offender. (Emphasis added). In Section 11, the legislature explained that in amending former R.C.
2929.14(E)(4), it intended “to simultaneously repeal and revive the amended language
in those divisions that was invalidated and severed by the Ohio Supreme Court's
decision in State v. Foster (2006), 109 Ohio St.3d 1.” The General Assembly further
explained that the amended language in those divisions “is subject to reenactment
under the United States Supreme Court's decision in Oregon v. Ice (2009), 555 U.S.
160, and the Ohio Supreme Court's decision in State v. Hodge (2010), ––– Ohio St.3d –
–––, Slip Opinion No. 2010–Ohio–6320.” Thus, it is the legislature's intent that courts
interpret the language in R.C. 2929.14(C)(4) in the same manner as the courts did prior
to State v. Foster,
the same as those required by former R.C. 2929.19(B)(2), which provided that the trial
court “shall impose a sentence and shall make a finding that gives its reasons for
selecting the sentence * * * (c) If it imposes consecutive sentences .” (Emphasis added.)
See State v. Comer,
when imposing consecutive sentences provided it is “clear from the record that the trial
court engaged in the appropriate analysis.” State v. Murrin, 8th Dist. No. 83714, 2004–
Ohio–3962, ¶ 12. Accord , State v. Jones , 1st Dist. No. C-110603,
court, along with the trial court’s colloquy with Appellant, revealed that Appellant had been sentenced to prison on two prior offenses. Appellant had a conviction in Mahoning County for robbery with a firearm specification which resulted in a three year prison term. Less than a year after his release, Appellant was convicted of two counts of improperly discharging a firearm (into a habitation) and having a weapon while under disability which resulted in a six year prison sentence. Less than one year later, Appellant was convicted of trafficking in marijuana in Summit County. Less than eight *13 months later, Appellant committed the offenses that are the subject of this appeal. (Plea T. at 7-9). Additionally, the trial court noted that Appellant had committed a robbery
offense with a firearm when he was fourteen years old. (Plea T. at 9). Such findings, when coupled with the trial court’s acknowledgement that
it has read and considered the PSI, are sufficient to satisfy the factual findings
requirement under R.C. 2929.19(C)(4). Cf. State v. Jones, supra , 2012–Ohio–2075 ¶ 23
(where the trial court stated during the sentencing hearing that it was ordering the prison
terms to be served consecutively because the defendant had an extensive criminal
history and the victims had been seriously injured, these statements were sufficient to
show that the trial court's imposition of consecutive sentences was appropriate and
complied with R.C. 2929.14(C)(4)); State v. Johnson, 8th Dist. No. 97579, 2012–Ohio–
2508 ¶ 12 (when the court made findings related to Appellant's specific conduct in the
case and his repeated engagement in criminal activity, it properly found that the
sentence was not disproportionate to his conduct and threat he posed to society).
Although the trial court in the present matter may not have used the exact
wording of the statute in reaching these findings, courts have found that, in making
findings regarding consecutive sentencing, “a verbatim recitation of the statutory
language is not required by the trial court.” State v. Green, 11th Dist. No. 2003–A–0089,
2005–Ohio–3268 ¶ 26, citing State v. Grissom, 11th Dist. No. 2001–L–107, 2002–Ohio–
5154 ¶ 21. State v. Frasca, supra ,
necessary to protect the public and to punish Appellant, and that they were not *14 disproportionate to the seriousness of his conduct and the danger he posed to the public. In addition, Appellant’s history of criminal conduct demonstrated that consecutive sentences were necessary to protect the public from future crime. Based on the above facts and the record herein, we find no error in the
indictment in this matter and further find that the trial court did not abuse its discretion in sentencing Appellant to 47 months in prison. Appellant’s Fifth Assignment of Error is overruled. For the foregoing reasons, the judgment of the Court of Common Pleas,
Muskingum County, Ohio, is affirmed.
By: Wise, J.
Delaney, P. J., and
Farmer, J., concur.
___________________________________ ___________________________________ ___________________________________ JUDGES JWW/d 1115
Muskingum County, Case No. CT2012-0029
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
DARIAN R. PATTERSON :
:
Defendant-Appellant : Case No. CT2012-0029 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of the Court of Common Pleas of Muskingum County, Ohio, is affirmed.
Costs assessed to Appellant.
___________________________________ ___________________________________ ___________________________________ JUDGES