Case Information
*1
[Cite as
State v. Proctor
,
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT COUNTY OF SUMMIT )
STATE OF OHIO C.A. No.
Appellee
v. APPEAL FROM JUDGMENT ENTERED IN THE BRANDON S. PROCTOR COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO Appellant CASE No. CR 12 07 2169 DECISION AND JOURNAL ENTRY Dated: October 16, 2013
WHITMORE, Judge. Defendant-Appellant, Brandon Proctor, appeals from a judgment of the Summit
County Court of Common Pleas. This Court affirms.
I In August 2012, Proctor was indicted for one count of grand theft in violation of
R.C. 2913.02(A)(1), as a felony of the fourth degree. The indictment alleged that Proctor had knowingly obtained or exerted control over a motor vehicle without consent of the owner, and with the intent to deprive the owner of the car. Proctor was found guilty by a jury and sentenced to six months in prison, to be served consecutive to his sentence for another case. Proctor now appeals and raises two assignments of error for our review.
II
Assignment of Error Number One
TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN SENTENCING PROCTOR FOR THEFT AS A FOURTH DEGREE FELONY, INSTEAD OF A FIRST DEGREE MISDEMEANOR, BECAUSE THE JURY VERDICT DID NOT INCLUDE THE DEGREE OF THE OFFENSE, NOR ANY AGGRAVATING ELEMENTS AS REQUIRED UNDER R.C. 2945.75(A)(2) AND STATE V. PELFREY .
{¶3} In his first assignment of error, Proctor argues that the verdict form did not comply with R.C. 2945.75(A)(2), and therefore, is insufficient to support his fourth-degree felony conviction. Under the facts of this case, we disagree. Proctor did not object to the verdict form at trial, and therefore, he has forfeited
all but plain error.
State v. Eafford
,
deprive the owner of property * * *, shall knowingly obtain or exert control over [ ] the property * * * [w]ithout the consent of the owner * * *.” If the property stolen is a motor vehicle, the charge is “grand theft of a motor vehicle, a felony of the fourth degree.” R.C. 2913.02(B)(5). However, without proof of the value of the property stolen or that the property was of a type specifically enumerated in the statute, violation of R.C. 2913.02(A)(1) is a misdemeanor of the first degree. R.C. 2913.02(B)(2). *3 R.C. 2945.75(A)(2) provides that:
When the presence of one or more additional elements makes an offense one of more serious degree * * * [a] guilty verdict shall state either the degree of the offense of which the offender is found guilty, or that such additional element or elements are present. Otherwise, a guilty verdict constitutes a finding of guilty of the least degree of the offense charged.
Here, the verdict form included the following language:
We, the Jury, being duly impaneled and sworn, do find the Defendant, Brandon S. Proctor, Guilty of the offense of GRAND THEFT.
The verdict form did not include the degree of the offense, or specify that the theft was of a motor vehicle. Assuming arguendo that this was an obvious error, it does not rise to the level of plain error. See Payne , 114 Ohio St.3d at ¶ 15-16. The language of Proctor’s indictment clearly provided him notice that he was
being charged with grand theft of a motor vehicle, i.e., a 1995 Oldsmobile. The only testimony
of theft adduced at trial was related to the Oldsmobile. Further, the jury instructions given
specifically stated that “[b]efore you can find the Defendant guilty, you must find beyond a
reasonable doubt that on or about the 28th day of July, 2012, and in Summit County, the
Defendant, with purpose to deprive the owner * * * of property, knowingly obtained or exerted
control over the property without the consent of the owner, and said property was a motor
vehicle, to wit: a 1995 Oldsmobile.” The court went on to define a motor vehicle and to inform
the jury that the parties had stipulated that a 1995 Oldsmobile is a motor vehicle. “[J]uries are
presumed to follow the court’s instructions.”
Eafford
,
{¶8} Proctor’s first assignment of error is overruled.
Assignment of Error Number Two
PROCTOR WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL WHEN HIS TRIAL COUNSEL FAILED TO ARGUE THAT THE TRIAL COURT SHOULD HAVE SENTENCED PROCTOR ON HIS THEFT CONVICTION AS A FIRST DEGREE MISDEMEANOR.
{¶9} In his second assignment of error, Proctor argues that his counsel was ineffective for failing to object to the sentencing of his theft conviction as a fourth-degree felony.
{¶10}
To prove ineffective assistance of counsel, Proctor must establish that (1) his
counsel’s performance was deficient, and (2) that but for counsel’s deficient performance there is
a reasonable probability that the result of the trial would have been different.
Strickland v.
Washington
,
Therefore, Proctor cannot demonstrate that the result of his trial would have been different. Because Proctor cannot show prejudice, his claim of ineffective assistance of counsel must fail. Accordingly, Proctor’s second assignment of error is overruled.
III Proctor’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETH WHITMORE FOR THE COURT BELFANCE, P. J.
CONCURRING IN JUDGMENT ONLY.
Because I cannot conclude, given the facts of the instant matter, that the holding
of
State v. Pelfrey
, 112 Ohio St.3d 422,
CARR, J. DISSENTING.
I respectfully dissent in regard to the majority’s resolution of the first assignment
of error on the authority of
State v. Horne
, 9th Dist. Summit No. 25238,
APPEARANCES:
NEIL P. AGARWAL, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant Prosecuting Attorney, for Appellee.