STATE OF OHIO v. JOSEPH SCATES, JR.
Appellate Case No. 2013-CA-36
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY
February 7, 2014
[Cite as State v. Scates, 2014-Ohio-418.]
Trial Court Case No. 12-CR-153B; (Criminal Appeal from Clark County Common Pleas Court)
GREGORY K. LIND, Atty. Reg. #0055227, One South Limestone Street, Ground Floor - Suite D, Springfield, Ohio 45502 Attorney for Defendant-Appellant
OPINION
HALL, J.,
{¶ 1} Joseph Scates appeals from his conviction and sentence following a guilty plea to one count of trafficking in heroin, a second-degree felony.
{¶ 2} Scates advances two assignments of error on appeal. First, he alleges ineffective
{¶ 3} The record reflects that Scates entered his guilty plea to the above charge in exchange for the dismissal of another charge and a specification. He also agreed to the forfeiture of certain property, and the State agreed to stand silent at sentencing. During the plea hearing, the prosecutor read the following facts into the record:
On February 23, 2012, approximately 6:30 in the morning, the Springfield Police Division executed a search warrant at 315 West Pleasant Street in the City of Springfield/Clark County, Ohio, the Defendant Joseph Scates, along with a codefendant, Dawn Bradley, were in the master bedroom. The police made entry. The police also located in the master bedroom 12.79 grams of heroin that was contained in two separate baggies in the dresser in the bedroom. Also in the house in the bedroom was a scale with residue on it, a large amount of currency which was listed in the indictment. There also were no drug abuse instruments or any other drug paraphernalia indicative of drug abuse in the home indicating the heroin was used for sale.
(Sept. 28, 2012 Tr. at 4-5).
{¶ 4} Following a
{¶ 5} In his first assignment of error, Scates claims his attorney provided ineffective assistance by not moving to suppress the heroin. In support, he argues:
In this case, trial [c]ounsel failed to file a motion to suppress. Although the record does not contain information regarding the reasons why to suppress the evidence, police records indicate that there was a reason to file a motion to suppress. The search of the residence was unconstitutional. [Scates] was prejudiced by the error and would not have pled guilty and would have insisted on going to trial. Trial counsel failed to provide effective assistance by allowing the appellant to plead to the charge of trafficking in drugs.
(Appellant‘s brief at 4).
{¶ 6} This court has recognized that “[a] plea of guilty waives any claim that the accused was prejudiced by ineffective assistance of trial counsel, except to the extent that the ineffectiveness alleged may have caused the guilty plea to be less than knowing, intelligent, and voluntary.” State v. Stivender, 2d Dist. Montgomery No. 23973, 2011-Ohio-247, ¶ 15. Here Scates argues that his guilty plea was not made knowingly, intelligently, and voluntarily because his attorney rendered ineffective assistance by not filing a suppression motion. Although we find this proposition questionable, Scates’ ineffective-assistance claim fails even if it was not waived.
{¶ 7} To prevail, Scates must show that his attorney‘s performance was deficient and that the deficient performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Prejudice exists where “there is a reasonable probability that, but for counsel‘s deficient performance, the outcome would have been different.” Id. at 694. In
{¶ 8} Scates candidly admits that “the record does not contain information regarding the reasons why to suppress the evidence[.]” (Appellant‘s brief at 4). The record reveals only that police executed a search warrant at his residence and found heroin inside. (Sept. 28, 2012 Tr. at 4-5). Without any record evidence establishing grounds to suppress the heroin, Scates cannot demonstrate a reasonable probability the trial court would have sustained a suppression motion. A “bare assertion that counsel failed to seek suppression is insufficient because the failure to file a suppression motion is not per se ineffective assistance.” State v. Slaughter, 2d Dist. Montgomery No. 25270, 2013-Ohio-1824, ¶ 19. Accordingly, the first assignment of error is overruled.
{¶ 9} In his second assignment of error, Scates contends the trial court erred in sentencing him to more than a statutory minimum prison term. In support, he challenges the trial court‘s assessment of the statutory “seriousness” factors found in
{¶ 10} Upon review, we find no error in the trial court‘s sentencing decision. As a threshold matter, we note that Scates raises his argument under State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. Pursuant to Kalish, a felony sentence is reviewed using a
{¶ 11} After Scates filed his appellate brief, we decided State v. Rodeffer, 2d Dist. Montgomery Nos. 25574, 25575 and 25576, 2013-Ohio-5759. In Rodeffer, this court held that Kalish‘s two-step approach no longer applies to appellate review of felony sentences. Instead, we adopted the standard of review found in
{¶ 12} Upon review, we find no basis for altering Scates’ sentence or remanding for resentencing under
{¶ 13} Finally, we recognize that Scates briefed his appeal under Kalish without the benefit of our recent opinion in Rodeffer. Even if we were to apply Kalish, we would find no abuse of discretion in the trial court‘s imposition of a six-year prison sentence. In support of its decision, the trial court found that Scates was engaged in a large-scale drug trafficking operation strictly for profit. It quoted a text message in which Scates opined that he “was put on this earth to sell drugs and make money.” (Id. at 5). The trial court referenced the fact that “this activity was going on and these drugs were kept in the vicinity of children.” (Id. at 5). The trial court also noted the potential physical effect Scates’ drug trafficking had on drug users. It cited his extensive criminal record, which included delinquency adjudications and criminal convictions for offenses including theft, assault, disorderly conduct, attempted drug possession, drug possession, drug abuse, gambling, and attempted possession of criminal tools. (Id. at 6). The trial court observed that Scates previously had been placed on community control and did not respond favorably. (Id. at 7). It also found no genuine remorse. (Id.). Having reviewed the record, we cannot say the trial court abused its discretion in electing to impose a six-year prison term. Accordingly, the second assignment of error is overruled.
{¶ 14} The judgment of the Montgomery County Common Pleas Court is affirmed.
WELBAUM, J., concurs.
{¶ 15} I agree with the ultimate resolution and affirmance of this case. However, I reiterate my disagreement with the analysis as set forth in Rodeffer.
Copies mailed to:
Lisa M. Fannin
Gregory K. Lind
Hon. Richard J. O‘Neill