State v. PriceState v. Price
Criminal Appeal from the Trumbull County Court of Common Pleas, Case No. 2012 CR 612.
Judgment: Affirmed.
Dennis Watkins, Trumbull County Prosecutor, and LuWayne Annos, Assistant Prosecutor, Administration Building, Fourth Floor, 160 High Street, N.W., Warren, OH 44481-1092 (For Plaintiff-Appellee).
Antonio Maurice Price, pro se, PID: #A643-347, Lake Erie Correctional Institution, P.O. Box 8000, 501 Thompson Road, Conneaut, OH 44030 (Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} This appeal is from the Trumbull County Court of Common Pleas. Appellant Antonio Maurice Price was indicted on one count of aggravated robbery, a first degree felony in violation of
{¶2} Within this appeal, Price‘s appellate counsel filed a motion to withdraw and a brief pursuant to Anders v. California, 386 U.S. 738 (1967) indicating that he believed there were not any meritorious issues to argue on appeal. In Anders, the United States Supreme Court held that if appellate counsel, after a conscientious examination of the case, finds an appeal to be wholly frivolous, he or she should advise the court and request permission to withdraw. Id. at 744. This request to withdraw must be accompanied by a brief citing anything in the record that could arguably support an appeal. Id. Further, counsel must furnish his client with a copy of the brief and request to withdraw and give the client an opportunity to raise any additional items. Id. Once these requirements have been met, the appellate court must review the entire record to determine whether the appeal is wholly frivolous. Id. If the court finds the appeal is wholly frivolous, the court may grant counsel‘s motion to withdraw and proceed to a decision on the merits. Id. If, however, the court concludes the appeal is not frivolous, it must appoint new counsel for the client. Id.; see also Penson v. Ohio, 488 U.S. 75, 83 (1988).
{¶3} Price‘s appellate counsel raised a possible issue of whether Price‘s trial counsel was ineffective for allowing Price to enter into a plea deal where Price pled guilty to the indicted charges, as opposed to pleading guilty to a lesser-included offense, and that Price agreed to serve the maximums on each of his counts. Ultimately, Price‘s appellate counsel concluded, based upon the limited record, any information there were no errors in entering the plea or any indication that had counsel acted differently the outcome would have differed.
{¶4} In evaluating ineffective assistance of counsel claims, Ohio appellate courts apply the two-part test enunciated by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). First, it must be determined that counsel‘s performance fell below an objective standard of reasonableness. State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus. Trial counsel‘s decisions on strategy and trial tactics are granted wide latitude in professional judgment, and therefore debatable trial tactics and strategies do not constitute ineffective assistance of counsel. State v. Gau, 11th Dist. Ashtabula No. 2005-A-0082, 2006-Ohio-6531, ¶35, citing Strickland at 689; State v. Phillips, 74 Ohio St.3d 72, 85 (1995), citing State v. Clayton, 62 Ohio St.2d 45, 49 (1980). Second, it must be shown that prejudice resulted. Bradley, 42 Ohio St.3d 136. To demonstrate prejudice, a defendant must establish there is a reasonable probability that, but for counsel‘s errors, the result of the proceedings would have been different. Id. at paragraph three of the syllabus. See also State v. Woodard, 11th Dist. Ashtabula No. 2009-A-0047, 2010-Ohio-2949, ¶11.
{¶5} The record does not support a claim for ineffective assistance of counsel for failure to request a lighter sentence for Price. As to the alleged deficiency of trial counsel, there is no evidence indicating one way or the other whether Price‘s trial counsel requested a lighter sentence or not. A silent record on this matter does not mean no efforts were made as it is possible that Price‘s trial counsel did try to get a plea deal, but the prosecution refused to offer anything less. If anything, Price‘s plea deal could be the result of leniency. Price‘s agreed sentence resulted in him serving time for aggravated robbery and the remaining second degree felonies concurrently with one another and to the aggravated robbery. Had Price gone to trial and been found guilty, he might have faced a higher sentence if the evidence convinced the trial court to sentence him consecutively on any of the counts Price was sentenced to concurrently.
{¶6} Even if trial counsel had not requested a lighter sentence and such failure constituted deficient performance, the record does not indicate Price was prejudiced. The prosecution was under no obligation to agree to giving Price a better deal or a lower sentence and there is no way of knowing what Price‘s sentence would have been had he gone to trial. Therefore, this argument has no merit.
{¶7} Price also submitted a pro se briefing raising two issues for review. As his first assignment of error, Price asserts:
{¶8} “The trial court abused its discretion when it violated appellant‘s right to due process and equal protection of the law under the VI and XIV amendments to the United States Constitution and under Article I Sections 10 and16 of the Ohio Constitution.”
{¶9} Within this assignment, Price claims that: (1) the trial court did not make the requisite findings pursuant to
{¶10} In reviewing felony sentences, this court no longer uses the standard of review in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912 and instead uses
{¶11} “The court hearing an appeal under division (A), (B), or (C) of this section shall review the record, including the findings underlying the sentence or modification given by the sentencing court.
{¶12} “The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court‘s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
{¶13} “(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section
{¶14} “(b) That the sentence is otherwise contrary to law.”
{¶15} Furthermore, because the trial court sentenced Price in accordance with the jointly recommended sentence, our review is further limited by
{¶16} For a sentence to be authorized by law, it is not enough that the sentence fell within the statutory range; rather, the trial court must have complied with “all mandatory sentencing provisions.” State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶20. As to what constitutes a mandatory sentencing provision, the Ohio Supreme Court held that requirements concerning post-release control (former
{¶17} In regard to Price‘s first argument that the trial court did not make the requisite findings pursuant to
{¶18} Price further argues that the trial court did not consider various mitigating circumstances in accordance with
{¶19} Price also argues that although the trial court considered
{¶20} Finally, Price‘s argument that his sentence violates the Equal Protection Clause because a co-defendant received a lighter sentence is without merit. State v. Beaver, 11th Dist. Trumbull No. 2011-T-0037, 2012-Ohio-871, ¶74.
{¶21} The first assignment is without merit.
{¶22} As his second assignment, Price asserts:
{¶23} “Appellant Antonio Price received ineffective assistance of trial counsel under the VI and XIV Amendments to the United States Constitution and under Article I Section 10 and 16 of the Ohio Constitution when counsel failed to investigate the facts surrounding the case; withheld evidence; waived the PSI; and negotiated a plea agreement without first discussing it with the appellant.”
{¶24} Within this assignment, Price argues that (1) his trial counsel should have tried to get a lighter sentence for him, (2) his trial counsel should have not waived the
{¶25} As to the first argument, Price argues that his trial counsel “[w]ith all of her years of special training” as a criminal defense attorney, she should have “handled this matter in a more professional manner with her client‘s best interest at heart [and] should have requested the court for a lighter sentence * * *.” Assuming, without deciding, that trial counsel‘s alleged actions were deficient, there is no indication that requesting a lighter sentence would have resulted in a lighter sentence as the requests may have been denied by the prosecutor or trial court. Therefore, Price has not demonstrated the necessary prejudice under Strickland.
{¶26} As to the second argument concerning the waiving of the PSI, Price undermines his claim of deficient performance by disclosing that his attorney wanted to waive the PSI in order to hide gun specifications from the trial court that if disclosed would have resulted in a higher prison sentence. Accordingly, Price admits there was a strategic reason to waive the PSI making this argument meritless.
{¶27} As to the third argument, concerning whether trial counsel properly investigated defenses to some of the charges, Price has waived these arguments by pleading guilty. As the U.S. and Ohio Supreme Courts have explained “‘a guilty plea
{¶28} As to the fourth argument regarding Price‘s trial counsel allegedly withholding evidence from him, Price does not elaborate on what evidence his trial counsel allegedly withheld. Therefore, we do not evaluate this argument pursuant to
{¶29} As to the fifth and sixth arguments, Price argues his trial counsel was racially biased against him and that his trial counsel coerced him into the plea. Specifically Price argues that his trial counsel told him that “you [Price] have no chance in the court being a black man and if you want to go to trial, I‘m done with it.” According to Price, this alleged statement meant that his trial counsel would withdraw from the case if Price exercised his right to a jury trial. Furthermore, Price argues that his counsel misinformed him about the length of time he would serve in prison. Price claims that he was sentenced to 12 years but that his trial counsel told him that he will only “do” 7 years. Although these allegations are concerning and, if true, might demonstrate ineffective assistance of counsel, none of these allegations were part of the record. Thus, we cannot evaluate this claim on direct appeal. Id. For Price to argue his plea was not made knowingly, intelligently or voluntarily on these facts, he needs to raise those arguments in a petition for post-conviction relief.
{¶30} Because trial counsel was not deficient, considering Price‘s remaining arguments on the prejudice prong of Strickland is moot.
{¶31} The second assignment of error is without merit.
{¶32} Upon our own review, we find there are no non-frivolous issues an attorney could raise on appeal.
{¶33} The judgment of the Trumbull County Court of Common Pleas is affirmed.
DIANE V. GRENDELL, J.,
CYNTHIA WESTCOTT RICE, J.,
concur.