STATE OF OHIO, PLAINTIFF-APPELLEE, v. JEFFAWN ERIC-MONTEL SANDERS, DEFENDANT-APPELLANT.
CASE NO. 2-19-13
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT AUGLAIZE COUNTY
June 29, 2020
[Cite as State v. Sanders, 2020-Ohio-3506.]
SHAW, P.J.
Appeal from Auglaize County Common Pleas Court, Trial Court No. 2019 CR 0176, Judgment Affirmed
Kimberlyn Seccuro for Appellant
Edwin A. Pierce and Joshua A. Muhlenkamp for Appellee
{1} Defendant-appellant, Jeffawn Sanders (“Sanders“), brings this appeal from the October 17, 2019 judgment of the Auglaize County Common Pleas Court sentencing him to five years in prison after Sanders entered a plea of guilty to, and was convicted of, Gross Sexual Imposition in violation of
Background
{2} Sanders was born HIV positive. On July 9, 2019, Sanders was staying in a friend‘s living room on the couch. Sanders’ friend had a twеlve year old daughter and the daughter was sleeping on the living room floor because the living room had a fan and it was cooler than in her bedroom. In the early morning hours of July 9, 2019, Sanders, who had been asleep, awakened from a sexual dream and saw the victim on the floor. He positioned himself behind her, pulled her shorts and underwear to thе side, and rubbed his erect penis against the victim‘s vagina.1 Sanders maintained that he still had his underwear on, and that if there was any penetration it was only slight, with his penis still inside of his shorts. The victim stated that penetration was not made.
{4} On July 18, 2019, Sanders was indicted for Rape of a person less than thirteen years of age in violation of
{5} On August 22, 2019, Sanders filed a suppression motion seeking to prevent the State from using the statements he had made to the рolice. Sanders contended that he was interrogated “while he was undergoing treatment in a medical trauma room at the hospital for injuries sustained as the result of having been brutally beaten by hammer and scissors earlier that morning by friends and family of the alleged victim[.]” (Doc. No. 29). Sanders argued that at the time he was questioned by police he was not able to fully understand the significance of his rights.
{7} A change-of-plea hearing was held that same day. Sanders was advised of his rights pursuant to
{8} On October 16, 2019, the matter proceeded to sentencing and Sanders was ordered to serve sixty months in prison. A judgment entry memorializing his sentence was filed the next day. It is from this judgment that Sanders appeals, asserting the following assignments of error for our review.
Assignment of Error No. 1
Mr. Sanders’ sentence is both unsupported by competent, credible evidence in the record and contrary to law.
Assignment of Error No. 2
Jeffawn Sanders was denied effective assistance of counsel when defense counsel‘s performance was objectively unreasonable at the sentencing proceeding, which prеjudiced Sanders in violation of his rights as guaranteed by the
{9} In his first assignment of error, Sanders argues that his maximum prison term was not supported by competent, credible evidence and that it was contrary to law.
Standard of Review
{10} Under
Analysis
{11} “‘The trial court has full discretion to impose any sentence within the authorized statutory range, and the court is not required to make any findings or give its reasons for imposing maximum or more than [a] minimum sentence[].‘” State v. Castle, 2d Dist. Clark No. 2016-CA-16, 2016-Ohio-4974, ¶ 26, quoting State v. King, 2d Dist. Clark No. 2012-CA-25, 2013-Ohio-2021, ¶ 45; State v. Freeman, 3d Dist. Union No. 14-18-16, 2019-Ohio-669, ¶ 11. Nevertheless, when exercising its
{12}
{13} In the case sub judice, Sanders was convicted of Gross Sexual Imposition in violation of
{15} Despite the trial court‘s clear compliance with stаtutory authority, Sanders contends that a maximum sentence was not warranted in this matter. He first argues that the PSI report included “unprofessional opinions” from the person creating the report. Sanders cites no legal authority supporting his claim that this renders his sentence contrary to law. Regardless, the investigator‘s opinions are cleаrly delineated as separate “Investigator‘s Comment[s]” after various subsections of the report.
{16} For example, under the subsection “Education” Sanders decries the investigator‘s comment that Sanders was capable of completing his PSI questionnaire but he left many areas blank despite possessing an understanding of the questions being asked. Sanders now contends that since he dropped out of high
{17} Sanders also takes issue with the investigator stating that Sanders was minimizing his conduct when he told the investigator that he was “set up.” The investigator also opined that Sanders’ statements that he thought he would have a trial even though he‘d already pled guilty was a way of coping with the consequences of his actions. Sanders argues that these statements were speculative, particularly given that the investigator was not a therapist. Again, these “comments” were just part of the thoughts/impressions of the investigator, clearly labeled as such, after Sanders gave his “version” of events for the investigator in the PSI. There is no legal or factual authority indicating that the statements of the investigator would somehow render the trial court‘s sentence contrary to law. Thus this argument is not well-taken.
{18} Next, Sanders argues that the trial court did not weigh all the appropriate statutory factors in imposing the maximum sentence in this case. However, as we have emphasized in prior opiniоns, where “the trial court explicitly stated that it had considered the [requisite statutory] factors * * * it was not required
{19} Nevertheless, the trial court‘s sentence was supported by the record and Sanders is unable to demonstrate that it was clearly and cоnvincingly contrary to law. Sanders had a criminal history, his victim was a girl under the age of thirteen who had a clear awareness of what Sanders was attempting to do, and Sanders used his relationship and presence in the house to facilitate the offense. Sanders is also fortunate that the act was stopped before he could cоmplete it or transmit HIV. Therefore his arguments regarding the trial court‘s consideration of statutory factors is not well-taken.
{20} Sanders next contends that his sentence was more severe than other similarly situated offenders, citing numerous appellate cases from this Court in support. Importantly, however, Sanders failed to make this argument at the triаl
{21} Notwithstanding his waiver, it is Sanders’ burden to produce evidence that indicates that his sentence is disproportionate to sentences given to other offenders with similar records who have committed these offenses. Id. at ¶ 40. To that end, all of the cases cited by Sanders are either factually or legally distinguishable. See State v. Lucas, 3d Dist. Auglaize No. 2-03-08, 2003-Ohio-4625 (initially sentencing offender to community control where defendant had sexual contact with nine-year old but later invoking a maximum prison term after community control was violated); State v. Yoder, 3d Dist. Union No. 14-18-03, 2018-Ohio-3321 (containing a violation of
{22} Lastly, Sanders argued that he was not required to be sentenced to a “mandatory” maximum term of incarceration. He seems to contend that the trial court imposed a “mandatory” prison term, but there is no indication of that in the record. The imposition of a maximum prison term is not the same as the imposition of a mandatory prison term. Therefore his argument is not well-taken, and his first assignment of error is overruled.
Second Assignment of Error
{23} In his second assignment of error, Sanders argues that he received ineffective assistance of counsel at the sentencing hearing. He contends that his counsel should have objected when the State made a recommendation at sentencing of a sixty-month prison term, that defense counsel failed to explain some of the contents of the PSI, and that defense counsel failed to emphasize important mitigating factors. He also argues that cumulative errors here prejudiced him.
Standard of Review
{24} “To establish a claim for ineffective assistance of counsel, a defendant must show that counsel‘s performance was deficient and that counsel‘s deficient
Analysis
{25} Sanders initially claims that his counsel was ineffective for failing to object whеn the State recommended a maximum, sixty month prison term at the sentencing hearing. Sanders argues that the State had actually specifically agreed not to recommend a sixty month prison term as part of the plea agreement and that the State was therefore breaching the plea agreement by making such a recommendatiоn.
{26} To support his claim, Sanders points to the written plea agreement wherein the State initially checked a line indicating that it would recommend a prison term and then wrote in a recommendation of sixty months of incarceration. However, the markings on the plea agreement and the sixty month recommendation
{27} Sanders would now have us read the written plea agreement in such a way that when the sixty month recommendation was crossed out on the plea form, the State was indicating it specifically would nоt recommend sixty months. In other words, the State could recommend any other prison term, or no prison term at all, but sixty months specifically was off the table. This reading is directly contrary to the dialogue at the plea hearing, and a plain reading of the written plea agreement would suggest that crossing out these issues rendered them as though nothing hаd been written there at all.
{28} Next, Sanders argues that his counsel was ineffective for a number of reasons such as for failing to file a sentencing memorandum, failing to explain some issues mentioned in the pre-sentence investigation, and failing to emphasize mitigating circumstances. Some of those mitigating circumstances defense counsel allegedly failed to emphasize include: Sanders’ being born with HIV, his mother
{29} Despite Sanders’ arguments, all of these issues, or at least the vast mаjority of them, were covered in the PSI that was presented to the trial court. Sanders seems to suggest that since defense counsel did not re-emphasize some issues defense counsel was ineffective. We see no factual or legal basis that would support a reversal on that basis, particularly given that defense counsel arguеd at sentencing over a number of pages in the transcript regarding mitigation, ultimately requesting a sentence of community control or a prison term in the lower end of the applicable statutory range.2
{30} In fact, defense counsel referenced numerous mitigating factors, broadly referring to Sanders’ health, his family background, and his HIV. Defense сounsel also referenced Sanders’ dialysis treatment, his significant pain, and his hypertension. Defense counsel argued that the victim‘s family had moved to Georgia, that Sanders had no connection with the family any longer and that he did not intend to contact them.
{31} Sanders seems to want a second chance to reargue to the trial court, but we find no error with the original sentencing hearing. There is certainly no
{32} Finally, as to Sanders’ cumulative error argument, we have not found any errors let alone cumulative errors, therefore the dоctrine is not applicable here. State v. Carpenter, 3d Dist. Seneca No. 13-18-16, 2019-Ohio-58, ¶ 104, citing State v. Bertuzzi, 3d Dist. Marion No. 9-13-12, 2014-Ohio-5093, ¶ 110. For all of these reasons, Sanders’ second assignment of error is overruled.
Conclusion
{33} For the foregoing reasons Sanders’ assignments of error are overruled and the judgment of the Auglaize County Common Pleas Court is affirmed.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr