STATE OF OHIO, PLAINTIFF-APPELLEE vs. SEAN QUIGLEY, DEFENDANT-APPELLANT
No. 96299
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
October 27, 2011
[Cite as State v. Quigley, 2011-Ohio-5500.]
BEFORE: E. Gallagher, J., Kilbane, A.J., and Rocco, J.
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-536912, CR-536920, CR-539841, CR-542618, and CR-542638
David H. Brown
David H. Brown, LLC
1956 West 25th Street
Suite 302
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: John P. Colan
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶ 1} Sean Quigley appeals his sentence received in the Cuyahoga County Common Pleas Court. Quigley argues the trial court erred in imposing a term of incarceration that was not proportionate to the conduct he committed and that his trial counsel rendered ineffective assistance in allegedly conceding that Quigley would be sentenced to prison. Finding no merit to this appeal, we overrule Quigley‘s appeal.
{¶ 2} Cuyahoga County grand juries indicted Quigley in several criminal cases in 2010. As part of a plea agreement with the State, Quigley pleaded guilty to breaking and entering (CR-536912), attempted theft and theft (CR-536920) and burglary
{¶ 3} Quigley appeals from this order of sentencing, raising the two assignments of error contained in the appendix to this opinion.
{¶ 4} In his first assignment of error, Quigley argues that his ten year prison sentence was not commensurate with the crimes he committed. We disagree.
{¶ 5} We review felony sentences using the framework announced in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. In its plurality opinion, the Kalish court declared that in applying State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, to the existing statutes, appellate courts “must apply a two-step approach.” Kalish at ¶4.
{¶ 6} Appellate courts must first “examine the sentencing court‘s compliance with all applicable rules and statutes in imposing the sentence to determine whether the sentence is clearly and convincingly contrary to law.” Id. at 26, 896 N.E.2d 124. See,
{¶ 7} In the first step of our analysis, we review whether Quigley‘s sentence is contrary to law as required by
{¶ 8}
“[A] court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing [:] * * * to protect the public from future crime by the offender and others and to punish the offender. To achieve those purposes, the sentencing court shall consider the need for incapacitating the offender, deterring the offender and others from future crime, rehabilitating the offender, and making restitution to the victim of the offense, the public, or both.”
{¶ 9}
{¶ 10}
{¶ 11} In the instant case, Quigley concedes that the sentences for all five of his cases fall within the statutory range. Further, Quigley does not argue that the court failed to consider
{¶ 12} We next consider whether the trial court abused its discretion. Kalish, supra at ¶4 and ¶19. An “abuse of discretion” is more than an error of law or judgment; it implies that the court‘s attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140.
{¶ 13} We find nothing in the record to suggest that the trial court‘s decision was unreasonable, arbitrary, or unconscionable. A review of the record indicates that the trial court also expressly stated that it had considered all factors of the law and found that
{¶ 14} Accordingly, we overrule Quigley‘s first assignment of error.
{¶ 15} In his second assignment of error, Quigley argues his trial counsel rendered ineffective assistance. In particular, Quigley finds fault with his trial counsel‘s alleged concession that Quigley would receive a prison sentence. We find no merit to Quigley‘s argument.
{¶ 16} To prevail on a claim of ineffective assistance of counsel upon entry of a guilty plea, a defendant must meet the test set forth in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. See State v. Xie (1992), 62 Ohio St.3d 521, 524, 584 N.E.2d 715; State v. Cobb, Cuyahoga App. No. 76950, 2001-Ohio-4132. The defendant must first show that counsel‘s performance was deficient. Strickland. The defendant must also show that there is a reasonable probability that, but for counsel‘s errors, he would not have pleaded guilty * * *.” Strickland, quoting Hill v. Lockhart (1985), 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203.
{¶ 17} The defendant bears the burden of proving ineffectiveness of counsel. State v. McNeill (1998), 83 Ohio St.3d 438, 451, 700 N.E.2d 596; Cobb. The defendant cannot meet his burden by making bare allegations that find no support in the record. State v. Leek (July 29, 1999), Cuyahoga App. No. 74338, citing State v. Stewart (Nov. 19, 1998), Cuyahoga App. No. 73255; Cobb.
{¶ 18} Here, Quigley failed to satisfy either prong of the Strickland test as applied
{¶ 19} The record before this Court is utterly devoid of any indication that Quigley‘s trial counsel was deficient in any way. In fact, Quigley himself relayed to the court during its multiple
{¶ 20} Additionally, we note that Quigley also failed to satisfy the second prong of the Strickland test. The record here does not establish a reasonable probability that, but for the action or inaction of trial counsel, the outcome of the plea proceeding would have been different. Considering the multiple count indictments on the five separate cases facing Quigley as presented, counsel‘s negotiations resulted in the issuance of a nolle prosequi of several charges and the reduction in the severity in two cases. The record before us does not show a reasonable probability of a different outcome in the absence of this representation. Accordingly, we overrule Quigley‘s second assignment
{¶ 21} The judgment of the trial court is affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
MARY EILEEN KILBANE, A.J., and
KENNETH A. ROCCO, J., CONCUR
Appendix
Assignments of Error:
“I. Mr. Quigley‘s sentence is manifestly disproportionate making it void as
“II. Mr. Quigley‘s trial attorney provided ineffective assistance by conceding that Mr. Quigley would be sentenced to prison and then failing to attempt to mitigate adequately.”