STATE OF OHIO, PLAINTIFF-APPELLEE, v. DONALD E. RUST, DEFENDANT-APPELLANT.
CASE NO. 9-12-49
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
May 28, 2013
[Cite as State v. Rust, 2013-Ohio-2151.]
PRESTON, P.J.
Trial Court No. 11-CR-395. Judgment Affirmed.
J.C. Ratliff for Appellant
Brent W. Yager and David J. Stamolis for Appellee
PRESTON, P.J.
{¶1} Defendant-appellant, Donald E. Rust, appeals the Marion County Court of Common Pleas’ sentence of 18 years imprisonment following his guilty plea to six third degree felonies. Rust argues that the trial court failed to provide adequate justification for imposing maximum, consecutive sentences, and that he was denied effective assistance of counsel. For the following reasons, we affirm.
{¶2} On August 4, 2011, the Marion County Grand Jury indicted Rust on Count One of aggravated burglary in violation of
{¶3} The trial court arraigned Rust on August 8, 2011. (Doc. No. 4). At that time, Rust pled not guilty to the charges. (Id.).
{¶5} Later in the day on April 9, 2012, the trial court held a plea hearing. (Apr. 9, 2012 Tr. at 1); (Doc. No. 86). At the hearing, also as part of the plea agreement, the State moved to amend the indictment to reduce Count One to burglary in violation of
{¶6} At the April 9, 2012 plea hearing, Rust withdrew his not-guilty plea and pled guilty to Counts One and Two, as amended, and Count Five, all felonies of the third degree. (Doc. Nos. 59, 86); (Apr. 9, 2012 Tr. at 19-20). Rust also waived his right to indictment and pled guilty to the bill of information, containing
{¶7} On July 16, 2012, the trial court held a sentencing hearing. (Doc. No. 86); (July 16, 2012 Tr. at 1). In addition to counsel and Rust, five people presented statements to the trial court, including four people on behalf of Rust. (July 16, 2012 Tr. at 1-32). Before sentencing, the trial court was informed of Rust’s criminal history, which included multiple rape offenses, a grand theft offense, and an escape offense. (Pre-Sentence Investigation Report (“PSI”)).
{¶8} The trial court accepted the State’s sentencing recommendation and sentenced Rust to the maximum prison term—36 months imprisonment on each of the six counts to which Rust pled guilty, to be served consecutively for a total of 18 years imprisonment. (July 16, 2012 Tr. at 29-30). The trial court filed its judgment entry of sentencing on July 19, 2012. (Doc. No. 86).
{¶9} On August 17, 2012, Rust filed a notice of appeal. (Doc. No. 88). Rust raises two assignments of error for our review.
Assignment of Error No. I
The trial court erred to the prejudice of defendant-appellant by imposing maximum consecutive sentences without adequate justification.
{¶11} A trial court’s sentence will not be disturbed on appeal absent a defendant’s showing by clear and convincing evidence that the sentence is unsupported by the record; the sentencing statutes’ procedure was not followed or there was not a sufficient basis for the imposition of a prison term; or that the sentence is contrary to law. State v. Ramos, 3d Dist. No. 4-06-24, 2007-Ohio-767, ¶ 23 (the clear and convincing evidence standard of review set forth under
{¶12} For each of the six third degree felonies to which Rust pled guilty, “the prison term shall be nine, twelve, eighteen, twenty-four, thirty, or thirty-six months.” State v. Snyder, 3d Dist. No. 13–11–37, 2012-Ohio-3069, ¶ 20, citing
{¶13}
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
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 , or2929.18 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.
(c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶14} Although
{¶15} Additionally, in sentencing an offender, a trial court must consider
to protect the public from future crimes by the offender and others and to punish the offender, and shall be commensurate with and not demeaning to the seriousness of the offender’s conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes committed by similar offenders. State v. Hites, 3d Dist. No. 6-11-07, 2012-Ohio-1892, ¶ 8.
{¶16} In sentencing Rust to consecutive terms, the trial court made the findings required by
The Court finds consecutive service is necessary to protect the public from future crime, and the sentences are not disproportionate to the seriousness of the Defendant’s conduct and to the danger the Defendant poses to the public. The Defendant’s history of criminal conduct demonstrates consecutive sentences are necessary to protect the public from future crime by the Defendant. (Doc. No. 86).
The trial court also stated these findings at the sentencing hearing. (July 16, 2012 Tr. at 30).
{¶17} In sentencing Rust to maximum, consecutive terms of imprisonment, the trial court considered
{¶18} Rust acknowledges that the trial court made the findings required by
{¶19} Rust’s sentence was not contrary to the purposes and principles set forth in
{¶21} Rust’s first assignment of error is, therefore, overruled.
Defendant-appellant was denied effective assistance of counsel as guaranteed by the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution.
{¶22} In his second assignment of error, Rust argues that he was denied effective assistance of counsel because his trial counsel failed to argue to the trial court the findings of the psychologist who examined him and to present to the trial court any evidence of sentences imposed in similar cases.
{¶23} A defendant asserting a claim of ineffective assistance of counsel must establish: (1) the counsel’s performance was deficient or unreasonable under the circumstances; and (2) the deficient performance prejudiced the defendant. State v. Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). To establish prejudice when ineffective assistance of counsel relates to a guilty plea, a defendant must show there is a reasonable probability that but for counsel’s deficient or unreasonable performance the defendant would not have pled guilty. State v. Xie, 62 Ohio St.3d 521, 524 (1992), citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366 (1985); Strickland, 466 U.S. at 687.
{¶24} In order to show counsel’s conduct was deficient or unreasonable, the defendant must overcome the presumption that counsel provided competent representation and must show that counsel’s actions were not trial strategies
{¶25} A review of the record shows that Rust’s trial counsel’s assistance was not ineffective. First, the record does not indicate that Rust’s trial counsel’s performance was deficient or unreasonable. Rust suggests that his trial counsel should have argued to the trial court the findings in the psychologist’s report, but the transcript of the sentencing hearing reveals that trial counsel did refer the trial court to that report: “And by reading Dr. Smaldon’s [sic] report, under psychological evaluation, Your Honor, I think it is clear for this analysis that is [sic] was the drinking that caused this incident over the background of Mr. Knots, excuse me, as [sic] Mr. Rust as he described.” (July 16, 2012 Tr. at 26).
{¶26} Rust further argues that his trial counsel should have had the psychologist present a statement at the sentencing hearing, but the decision whether to call a witness is “within the rubric of trial strategy and will not be
{¶27} Nor was it unreasonable or deficient not to offer to the trial court information concerning sentences imposed in similar cases because presentation of mitigation evidence at a sentencing hearing is a matter of trial strategy. Id. at ¶ 59. Rust has, therefore, failed to demonstrate that trial counsel’s performance was deficient or unreasonable.
{¶28} Rust has likewise failed to demonstrate that he was prejudiced by his trial counsel’s performance. Indeed, Rust does not argue that but for his trial counsel’s deficient or unreasonable performance, he would not have pled guilty. Xie, 62 Ohio St.3d at 524. As originally indicted, Rust faced a multi-decade total, maximum sentence. (Doc. No. 1). His trial counsel negotiated a plea agreement
{¶29} Rust’s second assignment of error is, therefore, overruled.
{¶30} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI and ROGERS, J.J., concur.
/jlr