State v. RobinsonState v. Robinson
James C. Robinson, pro se, PID: 574-665, Lake Erie Correctional Institution, P.O. Box 8000, Conneaut, OH 44030-8000 (Defendant-Appellant).
O P I N I O N
CYNTHIA WESTCOTT RICE, J.
{¶1} Appellant, James C. Robinson, appeals his conviction and sentence in the Lake County Court of Cоmmon Pleas of complicity to trafficking in cocaine, a felony of the fourth degree. Appellant argues that he was denied the effective assistance of counsel and that the trial court abused its discretion in sentencing him. For the reasons that follow, we affirm in part, reverse in part, and remand this case to the trial court for further proceedings.
{¶3} On March 3, 2003, appellant was indicted in a three-count indictment in which he was charged with trafficking in cocaine in an amount less than one gram in the vicinity of a school, а felony of the fourth degree, in violation of
{¶4} On May 5, 2005, appellant pled guilty to Count 2, complicity to trafficking in cocaine, and the remaining counts were dismissed. The court referred the matter to the probation department for a pre-sentence investigation report, and sentencing was scheduled for June 2, 2005. However, appellant failed to appear for his sentencing. The trial court revoked his bond and ordered that a warrant be issued for his arrest. Subsequently, appellant failed to appear for a bond forfeiture hearing and his bond was forfeitеd. Appellant remained a fugitive for more than four years.
{¶5} After appellant was arrested on the bench warrant, the court held a sentencing hearing on November 12, 2009. Appellant‘s counsel asked that the court
{¶6} The trial court noted that the Cuyahoga County Common Pleas Court has an outstanding warrant for appellant due to his failure to appear in court for possession of drugs in 2002 and another outstanding warrant for theft in 2003. The Lyndhurst Municipal Court has an outstanding warrant for appellant for his failure to appear on theft charges in 2002. The Bedford Municipal Court has an outstanding warrant for appellant for his failure to appear on falsification сharges in 2003. The Lakewood Municipal Court has an outstanding warrant for appellant for falsification and possession of marijuana in 2005.
{¶7} The court also noted that appellant had previously been convicted of carrying a concealed weapon and attempted possession of drugs in the Cuyahoga County Common Pleas Court in August 1999. He was also convicted of theft and burglary in that court in a separate case in December 1999. Also, in 2001, he was convicted of theft in the Lyndhurst Municiрal Court.
{¶8} The trial court sentenced appellant to 17 months in prison and suspended his driver‘s license for five years. Appellant appeals his conviction and sentence, asserting seven assignments of error. For his first assigned error, he alleges:
{¶9} “Because Defendant-Appellant failed to cooperate with Lake County Narcotics Agency as confidential informant, it is prosecutorial misconduct for State of Ohio to subsequently indict Defendant-Appellant.”
{¶11} “*** The case came to our office, looks like July 12th of 2002. But according to the Lake County Narcotics notes[,] they had given the Defendant an opportunity to work with them for a positive recommendation. So I think that‘s probably what delayed it coming over for awhile. But they said that nothing ever happened from the opportunity they gave him to work off the case. I think that was the initial delay in getting it over ***.”
{¶12} Appellant argues that he was indicted in retaliаtion for his refusal to become an informant. However, the referenced transcript does not support this argument. The prosecutor merely explained his understanding of the reason for the apparent delay in the referral of the case to his office for prosecution. An appellate court in determining the existence of error is limited to a review of the record. State v. Sheldon (Dec. 31, 1986), 11th Dist. No. 3695, 1986 Ohio App. LEXIS 9608, *2; Schick v. Cincinnati (1927), 116 Ohio St. 16, paragraph three of the syllabus. On appeal it is the appellant‘s responsibility to support his argument by evidence in the record that supports his assigned errors. Columbus v. Hodge (1987), 37 Ohio App.3d 68. Because appellant presented no evidence in support of his retaliation argument, it is not well taken.
{¶14} For his second assignment of error, appellant contends:
{¶15} “Defendant-Appellant was denied effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Section 10 of the Ohio Constitution where counsel (1) permits Defendant-Appellant to enter guilty plea to complicity to trafficking cocaine without full understanding of the nature of the charge; (2) fails to file an Affidavit of Indigency with respect to Defendant-Appellant‘s ability to pay costs and fines; and (3) failed to file a motion to dismissed [sic] the indictment with respect to both pre-indictment and post-indictment delays.”
{¶16} Appellant argues his trial counsel was ineffective for three reasons. First, he argues his counsel was ineffective because she allowed him to plead guilty without explаining to him the nature of the charge. He argues that, due to his attorney‘s deficient performance, his guilty plea was not voluntarily entered and should be vacated. Second, appellant argues his trial counsel was ineffective because she failed to request a waiver of court costs for him. Third, he argues his counsel was deficient because she failed to file a motion to dismiss the indictment for lack of speedy trial. With respect to the third alleged failing, appellant does not argue that it affected the voluntary nature of his guilty plea.
{¶17} A properly licensed attorney is presumed to have rendered effective assistance to a defendant. State v. Smith (1985), 17 Ohio St.3d 98, 100. In the context of a guilty plea, the standard of review for ineffective assistance of counsel is whether: (1) counsel‘s performance was deficient; and (2) the defendant was prejudiced by the deficient performance in that there is a reasonable probability that, but for counsel‘s
{¶18} “The mere fact that, if not for the alleged ineffective assistance of counsel, the defendant would not have entered a guilty plea is not sufficient to establish the requisite connection between the guilty plea and the ineffective assistance.” (Emphasis sic.) Id., citing State v. Sopjack (Dec. 15, 1995), 11th Dist. No. 93-G-1826, 1995 Ohio App. LEXIS 5572, *11, citing State v. Haynes (Mar. 3, 1995), 11th Dist. No. 93-T-4911, 1995 Ohio App. LEXIS 780, *4-*5. “Rather, ineffective assistance of trial counsel is found to have affected the validity of a guilty plеa when it precluded a defendant from entering his plea knowingly and voluntarily.” Madeline, supra.
{¶19} A guilty plea represents a break in the chain of events that preceded it in the criminal process. Thus, a defendant who admits his guilt waives the right to challenge the propriety of any action taken by the court or counsel prior to that point in the proceedings unless it affected the knowing and voluntary nature of the plea. Id. at *10-*11; Haynes, supra, at *3-*4. This waiver applies to a claim of ineffective assistance of counsel, unless the alleged conduct of counsel caused the plea not to be knowing and voluntary. Madeline, supra, at *11.
{¶20} Generally, a guilty plea is deemed voluntary if the record demonstrates the trial court advised the defendant (1) of the nature of the charge and the maximum penalty involved, (2) of the effect of entering a guilty plea, and (3) that the defendant will waive his constitutional rights by entering the plea. Id., citing Sopjack, supra, at *27-*28.
{¶22} For the foregoing reasons, the transcript of the guilty plea hearing shows that appellant‘s guilty plea was made knowingly, intelligently, and voluntarily.
{¶23} A claim that a guilty plea was inducеd by ineffective assistance of counsel must be supported by evidence where the record of the guilty plea shows it was voluntarily made. State v. Malesky (Aug. 27, 1992), 8th Dist. No. 61290, 1992 Ohio App. LEXIS 4378, *5; see, also, State v. Kapper (1983), 5 Ohio St.3d 36. In Malesky, supra, the court held:
{¶24} “A naked allegation by a defendant of a guilty plea inducement, is insufficient to support a claim of ineffective assistance of counsel, and would not be upheld on appeal unless it is supported by affidavits or other supporting materials, substantial enough to rebut the record which shows that his plea was voluntary.”
{¶25} In Kapper, the Supreme Court adopted the following rationale:
{¶27} First, with respect to appellant‘s claim that his counsel failed to explain to him the nature of the charge, appellant argues that the state had originally recommended that he plead guilty to Count 1. He argues that Count 1 carried with it a presumption of community control sanctions, while a plea under Count 2 gave rise to a presumption of prison time. He argues that if his counsel had explained this difference to him, there is a reasonable probability he would not have pled guilty to Count 2. However, a reading of the count in the indictment to which the defendant is pleading guilty is adequate to advise him of the nature of the charge. State v. Gore (Feb. 17, 1981), 10th Dist Nos. 80AP-348, 80AP-349, 80AP-350, 1981 Ohio App. LEXIS 10164, *5, *7-*8. Therefore, appellant‘s trial counsel was not obligated to compare and contrast the offense to which appellant was pleading guilty to the other offenses charged in the indictment for him tо understand the nature of the charge.
{¶28} Moreover, based on our review of the record, there are no affidavits or other supporting materials in the record showing: (1) that trial counsel failed to correctly advise appellant concerning the nature of the charge; (2) that appellant did not fully understand the nature of the charge; or (3) that his attorney induced him to enter his
{¶29} Second, with respect to appellant‘s claim that his counsel failed to file a motion to waive costs, based on our disposition of appellant‘s seventh assignment of error, appellant cannot claim prejudice as a result of his counsel‘s failure to file such motion since appellant will be permitted to make such request on remand.
{¶30} Third, with respect to appellant‘s argument that his counsel was ineffective because she failed to file a motion to dismiss for lack of a speedy trial, this argument fails for several reasons. First, appellant does not reference any evidence in the record in support of a speedy trial violation. His reference to the prosecutor‘s comments to the trial court regarding the possible reasons for the alleged pre-indictment delay (that officers gave appellant an opportunity to act as an informant) and alleged post-indictment delay (that a bench warrant had to be issued on the indictment) is unavailing since these comments do not support a speedy trial violation. Trial counsel is not required to file groundless motions. State v. Bittner (Dec. 11, 1985), 9th Dist. No. 3906, 1985 Ohio App. LEXIS 9613, *6. Appellant‘s trial counsel was therefore not ineffective for failing to file a motion to dismiss. Further, there is no evidence that, but for such alleged deficiency, appellant would not have pled guilty. For this additional reason, his argument lacks merit. Sheldon, supra; Schick, supra. In addition, because appellant does not argue that this deficiency affected the voluntary nature of his plea, this argument is barred by appellant‘s guilty plea. Madeline, supra.
{¶31} For the foregoing reasons, we cannot conclude that counsel‘s performance fell below an objective standard of reasonableness or that appellant was prejudiced by any failings of his trial counsel.
{¶33} Appellant alleges for his third assigned error:
{¶34} “Defendant-Appellant‘s guilty plea was enter [sic] under extreme duress and trial court erred in accepting plea where there was sufficient indication that his plea was not entered knowingly, intelligently and voluntarily.”
{¶35} The state argues this assignment of error is not ripe because appellant‘s motion to withdraw his guilty plea is still pending in the trial court. In his reply brief, appellant agrees and therefore withdraws this assigned error. A claim is not ripe if it depends on “‘future events that may not occur as anticipated, or may not occur at all.‘” Texas v. United States (1998), 523 U.S. 296, 299. (Citations omitted.) Accordingly, we hold that the issue raised by this assignment of error is not ripe for our review.
{¶36} Appellant‘s fourth and fifth assignments of error are interrelated and shall therefore be considered together. They allege:
{¶37} “[4.] Trial court erred by (1) imposing prison rather than community control; (2) not sentencing Defendant-Appellant to the minimum prison sentence; (3) not making statutory findings on record; and (4) imposing a sentence that puts an unnecessary burden on state government resources.
{¶38} “[5.] Trial court abuse [sic] its discretion when it impose [sic] a prison sentence of 17 months prison sеntence and a five year driver‘s license suspension.”
{¶39} Appellant argues the trial court erred by sentencing him to prison, by imposing more than the minimum sentence, by not making findings of fact pursuant to
{¶41} The court in Foster also held that
{¶42} The court in Foster held that
{¶43} In State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, the Supreme Court of Ohio established a two-step analysis for an appellate court reviewing a felony sentence. In the first step, we consider whether the trial court “adhered to all applicable rules and statutes in imposing the sentence.” Id. at 25. “As a purely legal question, this is subject to review only to determine whether it is clearly and convincingly contrary to law, the standard found in
{¶44} Next, if the first step is satisfied, we consider whether the trial court abused its discretion in selecting the defendant‘s sentence. Id. at 27. This court has stated that the term “abuse of discretion” is one of art, connoting judgment exercised by a court that does not comport with reason or the record. State v. DelManzo, 11th Dist. No. 2009-L-167, 2010-Ohio-3555, at ¶23, citing State v. Ferranto (1925), 112 Ohio St. 667, 676-678.
{¶45} Addressing the first step of the Kalish test, appellant pled guilty to complicity to trafficking in cocaine, a felony of the fourth degree. He was therefore subject to a prison term for this offense of six, seven, eight, nine, ten, 11, 12, 13, 14, 15, 16, 17, or 18 months.
{¶46} Further, the trial court stated on the record during appellant‘s sentencing hearing that it considered the overriding purposes of felony sentencing pursuant to
{¶47} Because the sentence imposed was within the statutory range of sentences for appellant‘s crime and the court considered the purposes and factors of felony sentencing, appellant‘s sentence complied with all applicable statutes and therefore was not clearly and convincingly contrary to law. His sentence therefore complied with the first step of the Kalish test.
{¶48} We next address the second step of the Kalish test, which is to determine whether the trial court abused its discretion in selecting appellant‘s sentence. He presents two arguments in support of his abuse-of-discretion argument. First, he argues the trial court‘s sentence will put an unnecessary burden on state governmental resources. However, appellant‘s argument is not supported by Foster, supra, or other pertinent authority. Moreover, appellant fails to reference the record in support of his argument that his sentence will put an unnecessary burden on governmental resources, in violation of
{¶50} Appellant‘s fоurth and fifth assignments of error are overruled.
{¶51} For his sixth assigned error, appellant alleges:
{¶52} “Trial court lacked the statutory authority to impose a driver‘s license suspension when the Ohio General Assembly has not made into law such a sanction, for which Defendant plead guilty to [sic].”
{¶53} Appellant argues the trial court erred in suspending his driver‘s license for five years because, he claims, the version of
{¶55} Appellant‘s sixth assignment of error is overruled.
{¶56} For his seventh assigned error, appellant contends:
{¶57} “The trial court erred by failing to inform Defendant-Appellant at the sentencing hearing that it would be imposing fines and costs, and thereby violated his constitutional right to due process оf law as guaranteed by the Ohio and United States Constitutions.”
{¶58} Appellant argues that, pursuant to State v. Joseph, 125 Ohio St.3d 76, 2010-Ohio-954, the trial court erred in assessing costs against him in the court‘s judgment entry without imposing costs at the sentencing hearing and giving him an opportunity to move for a waiver of costs. In Joseph, the court held that while the failure of the court to orally notify the defendant that it was imposing court costs on him does not void his sentence, it was prejudicial error. Id. at 80. The court therefore affirmed the conviction, but remanded the case to the trial court for the limited purpose of allowing Joseph to move the court for a waiver of the payment of court costs. Id.
{¶59} The state agrees that the trial court erred in ordering appellant to pay costs in its judgment entry without informing him that it would be doing so at the sentencing hearing. The state therefore indicates that the case should be remanded to the trial court for the limited purpose of allowing appellant to move the court for the waiver of costs. Pursuant to Joseph, we hold that while the trial court‘s fаilure to orally notify appellant that it was imposing court costs on him did not void his sentence, it was
{¶60} Appellant‘s seventh assignment of error is sustained.
{¶61} For the reasons stated in this opinion, it is the judgment and order of this court that the judgment of the Lake County Court of Common Pleas is affirmed in part and reversed in part; and this case is remanded for further proceedings consistent with this opinion.
TIMOTHY P. CANNON, P.J.,
MARY JANE TRAPP, J.,
concur.