STATE OF OHIO, Plaintiff-Appellee, - vs - ANTHONY D. SCHMIDT, Defendant-Appellant.
CASE NO. 2012-P-0034
IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT PORTAGE COUNTY, OHIO
May 26, 2015
2015-Ohio-2450
COLLEEN MARY O‘TOOLE, J.
[Cite as State v. Schmidt, 2015-Ohio-2450.]
Criminal Appeal from the Portage County Court of Common Pleas, Case No. 2010 CR 0792.
Judgment: Affirmed.
Victor V. Vigluicci, Portage County Prosecutor, and Kristina Drnjevich, Assistant Prosecutor, 241 South Chestnut Street, Ravenna, OH 44266 (For Plaintiff-Appellee).
Anna Markovich, 18975 Villaview Road, Suite 3, Cleveland, OH 44119 (For Defendant-Appellant).
COLLEEN MARY O‘TOOLE, J.
{¶1} Anthony D. Schmidt appeals from the judgment of the Portage County Court of Common Pleas, sentencing him to imprisonment for one count of robbery. For the following reasons we affirm.
{¶2} On December 2, 2010, Mr. Schmidt was charged with a four count indictment for two counts of robbery in violation of
{¶3} On April 20, 2012, Schmidt filed a pro se motion for leave to file a delayed. We dismissed this case when no action was taken on the appeal. On June 19, 2014, Schmidt filed an application to reopen this case stating that his assigned counsel failed to pursue this appeal. We granted the application on September 4, 2014.
{¶4} Mr. Schmidt has filed four assignments of error in this case.
{¶5} “Appellant‘s guilty plea was not knowing, intelligent, and voluntary and was in violation of
{¶6} “The trial court‘s sentence imposed on Appellant is not supported by the record and is contrary to law.
{¶7} “The trial court denied Appellant due process to fair and impartial sentencing, when the trial court relied upon its own personal knowledge, not otherwise supported by evidence, about Appellant and his family and about Appellant‘s conduct following the commission of the robbery.
{¶8} “Appellant was denied his constitutional right to effective assitance (sic) of counsel pursuant the Sixth and Fourteenth Amendments of the United States Constitution and Article I, Section 10 of the Ohio Constitution.”
{¶9} In support of his first assignment of error, Schmidt states that:
{¶11} “Was Appellant‘s guilty plea was not knowing, intelligent and voluntary, and in violation of
{¶12}
{¶13} “In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following:
{¶14} “(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
{¶15} “(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
{¶16} “(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant‘s favor, and to require the state to prove the defendant‘s guilt beyond a
{¶17} The matters set forth in
{¶18} When determining whether the trial court has met its obligations under
{¶19} While a court must strictly comply with
{¶20} When non-constitutional issues are implicated, a guilty plea is valid if the court substantially complied with
{¶21} Although the trial court failed to advise Schmidt of the correct maximum potential fine, Schmidt nonetheless has failed to demonstrate any prejudice arising from this error. Nothing in the record suggests, and Schmidt does not even argue, that he would not have entered his plea had he known the maximum potential fine was higher than the $5,000.00 figure indicated on his plea form. Nor has Schmidt suffered any actual prejudice, since the fine imposed was less than the actual maximum potential fine and well within the limits of the maximum fine as stated by the trial court. State v. Bailey, 11th Dist. Geauga No. 2006-G-2734, 2007-Ohio-6160, ¶16.
{¶22} Appellate courts have reversed guilty pleas when the trial court understated the maximum penalty at the plea hearing and then imposed an actual sentence greater than the understated penalty. State v. Carney, 7th Dist. Belmont No. 06 BE 18, 2007-Ohio-3180, ¶22-30; State v. Puckett, 4th Dist. No. 03CA2920, 2005-Ohio-1640, ¶6-14. Such is not the case in this matter. The trial court informed Schmidt that he faced a maximum fine of $10,000.00 but imposed only a fine of $200.00. As such, Schmidt suffered no prejudice.
{¶23} The second issue of Schmidt‘s first assignment of error involves his claim that the trial court failed to fully inform him about his privilege not to be compelled to testify against himself at trial. Schmidt claims that in addition to informing him that he was not required to testify against himself at trial, the trial court was required to also tell him that neither the prosecutor nor the trial court could comment on his failure to testify.
{¶25} By stating that the best method is to recite the rule verbatim, the Court upheld the practice of informing a defendant that they cannot be compelled to testify against themselves at trial. As such, there is no requirement of further explanation as the current rule does not require that a defendant be advised that no one can comment on their refusal to testify. Rather, the rule states that the defendant cannot be compelled to testify against themselves at trial. Therefore, in advising a defendant that they cannot be compelled to testify against themselves, the trial court is not required to further explain that no one can comment on a defendant‘s failure to testify where the defendant answers that he understands his right against self-incrimination. State v. Giovanni, 7th Dist. Mahoning No. 08 MA 150, 2009-Ohio-3333, ¶16; State v. Burdette, 11th Dist. Ashtabula No. 2009-A-0021, 2009-Ohio-5633, ¶59.
{¶26} In the present case, Schmidt was asked by the trial court if he understood that he was not required to testify against himself, and he answered in the affirmative.
{¶28} In his second assignment of error Schmidt alleges that the sentence imposed by the trial court is not supported by the record and is disproportionate and inconsistent. Schmidt argues that the trial court failed to properly consider the principles and purposes of sentencing under
{¶29} This court recently stated in State v. Arkenburg, 11th Dist. Lake No. 2013-L-087, 2014-Ohio-1361, ¶6-8:
{¶30} “‘Subsequent to State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, * * *, appellate courts have applied a two step approach in reviewing felony sentences. First, courts “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. If this first prong is satisfied, the trial court‘s decision in imposing the term of imprisonment is reviewed under the abuse-of-discretion standard.” State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, ¶26, * * * (* * *).
{¶31} “‘A court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing, which are “to protect the public from future crime by the offender and others and to punish the offender using the minimum sanctions that the court determines accomplish those purposes without imposing an unnecessary burden on state or local government resources.”
{¶32} “‘There is no “mandate” for the sentencing court to engage in any factual finding under these statutes. Rather, “(t)he court is merely to ‘consider’ the statutory factors.” Foster at ¶42. This standard continues to be applicable after the recent enactment of H.B. 86, which did not amend
{¶33} Schmidt plead guilty to one count of robbery in violation of
{¶34} Schmidt‘s main complaint regarding his sentence is his allegation that the trial court improperly considered facts and evidence not in the record when considering his likelihood of recidivism and whether or not he demonstrated remorse. Schmidt points to the trial court‘s statement that he (Schmidt) had taken advantage of his family and that they did not deserve this. Schmidt also notes that the trial court stated that he
{¶35} At the sentencing hearing the trial court heard from the prosecutor, from Schmidt and from Schmidt‘s grandfather. The prosecutor outlined for the trial court that Schmidt involved a young woman in his crime who was being sentenced to three years in prison; that Schmidt planned to rob the bank a second time; that Schmidt bragged about the bank robbery; and that (after the robbery) Schmidt was looking to purchase a firearm. Schmidt did not deny any of these facts at sentencing.
{¶36} The record does not reveal that the trial court‘s statements regarding Schmidt‘s family were used to determine the likelihood of recidivism and whether or not he (Schmidt) demonstrated remorse. At no point did the trial court make any statement that would lead us to conclude that it connected its observation about Schmidt‘s treatment of his family to his likelihood of recidivism or whether he showed remorse. It seems that the trial court was merely expressing its disappointment with Schmidt.
{¶37} Additionally, Schmidt claims that the sentence imposed by the trial court is disproportionate and inconsistent. This court stated in State v. Adams, 11th Dist. No. 2003-L-110, 2005-Ohio-1107, ¶57, (overruled on other grounds (2005):
{¶38} “* * * [A]lthough ‘a trial court is required to engage in the analysis set forth by
{¶39} This court has held that consistency of sentencing is not demonstrated by a trial court‘s comparison of the existing matter before the court to prior sentences for similar offenders and similar offenses. State v. Spellman, 160 Ohio App.3d 718, 2005-Ohio-2065, ¶12. Specifically, in State v. Swiderksi, 11th Dist. Lake No. 20014-L-112, 2005-Ohio-6705, ¶57-58, we stated:
{¶40} “We agree with the rationale of the Lyons court, insofar as the trial court must adhere to the statutory mandate to ensure consistency in sentencing. However, we note, as that court did, that the trial court is required to make its sentencing decisions in compliance with the statute, but need not specifically comb the case law in search of similar offenders who have committed similar offenses in order to ascertain the proper sentence to be imposed.
{¶41} “In short, a consistent sentence is not derived from a case-by-case comparison; rather, it is the trial court‘s proper application of the statutory sentencing guidelines that ensures consistency * * *.”
{¶42} Notwithstanding the fact that the trial court is not required to comb the case law in search of similar offenders who have committed similar offenses, Schmidt offers no evidence that his sentence was inconsistent with other similar offenders.
{¶43} The record from the sentencing hearing shows that the trial court gave consideration to the relevant statutory considerations. The record establishes the court considered the statements by Schmidt, his counsel, his grandfather and the prosecutor
{¶44} Schmidt‘s second assignment of error is without merit.
{¶45} In his third assignment of error Schmidt alleges that the trial court relied on its own personal knowledge, rather than the record before it, when sentencing defendant. In support of this argument Schmidt cites to State v. Denoon, 8 Ohio App.2d 70 (10th
{¶47} In Denoon the appellant filed a motion for post conviction relief alleging that he was not represented by counsel, was not advised that he had the right to have counsel, and had been sentenced to prison without entering a guilty plea or being tried. Id. at 71. The trial court judge hearing appellant‘s post conviction motion was the same judge that had sentenced Denoon and the judge used his own recollection of the events to deny Denoon‘s motion. The Tenth District Court of Appeals held that the judge‘s recollection, unless properly presented, cannot be used as a basis for rejecting Dennon’s evidence. Id.
{¶48} As stated above, the record in this matter indicates that the trial court‘s comments were an expression of its disappointment with Schmidt. This is not a case, as in Denoon, where the court ignored the record and relied upon its own personal
{¶49} Schmidt‘s third assignment of error is without merit.
{¶50} In his fourth assignment of error, Schmidt argues his trial counsel was ineffective because: (1) he failed to object to the trial court‘s consideration of personal knowledge at the pleas and sentencing; (2) he failed to object to the trial court‘s misrepresentation of facts listed in the PSI; and (3) failed to present any arguments regarding consistency and proportionality of the sentence for the trial court to consider.
{¶51} Regarding an ineffective assistance of counsel claim, this court stated in State v. Henry, 11th Dist. Lake No. 2007-L-142, 2009-Ohio-1138, ¶50-59:
{¶52} “Preliminarily, we note that Strickland v. Washington (1984), 466 U.S. 668, 687, * * * states:
{¶53} “‘(a) convicted defendant‘s claim that counsel‘s assistance was so defective as to require reversal of a conviction (* * *) has two components. First, the defendant must show that counsel‘s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel‘s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the
{¶54} “‘(* * *) When a convicted defendant complains of the ineffectiveness of counsel‘s assistance, the defendant must show that counsel‘s representation fell below an objective standard of reasonableness.’ Id. at 687-688. State v. Bradley (1989), 42 Ohio St.3d 136, 142, * * *, quoting Strickland, supra, at 694, states: ‘(t)o warrant reversal, “(t)he defendant must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.‘”
{¶55} “Very few criminal cases are reversed on the basis of an ineffective assistance of counsel claim due to the fact that there is no clear standard on what dictates ‘trial strategy.’ The present standard as set forth in Strickland sets a broad standard for lawyer competency. Under Strickland and its interpretation by Ohio courts, the mere possession of a law license, regardless of experience or criminal defense training, and the most tenuous and reckless of trial strategies, renders counsel effective.
{¶56} ” * * * In order to prevail on a claim of ineffective assistance of counsel, the defendant has the burden to establish two things: (1) that counsel‘s performance was deficient, and (2) that counsel‘s deficiency prejudiced the defense. State v. Reynolds (1998), 80 Ohio St.3d 670, 674, * * *, citing Strickland, supra, at 687. The defendant must produce evidence that counsel acted unreasonably by substantially violating essential duties owed to the client. State v. Sallie (1998), 81 Ohio St.3d 673, 674, * * *.
{¶58} “Under Strickland as interpreted by Ohio courts, attorneys are presumed competent, reviewing courts must refrain from second-guessing strategic, tactical decisions and strongly presume that counsel‘s performance falls within a wide range of reasonable legal assistance. State v. Carter (1995), 72 Ohio St.3d 545, 558, * * *. See, also, State v. Burley (Aug. 11, 1998), 7th Dist. No. 93-CA-204, 1998 Ohio App. LEXIS 3895, at *9 (a defendant is not guaranteed the right to the best or most brilliant counsel).
{¶59} “Upon demonstrating counsel‘s deficient performance, the defendant then has the burden to establish prejudice to the defense as a result of counsel‘s deficiency. Reynolds, supra, at 674. The reviewing court looks at the totality of the evidence and decides if there exists a reasonable probability that, were it not for serious errors made, the outcome of the trial would have been different. Strickland, supra, at 695-696. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the proceeding. Id.
{¶60} “An attorney has a duty to zealously represent a criminal defendant. ‘Criminal defense is an art, not a science. Criminal defense attorneys adopt different approaches to their craft, based partly upon the demands of the particular case, and partly upon their own personal characteristics. Ordinarily, defense counsel‘s particular style of defense is not a basis for a claim of ineffective assistance of counsel.’ State v. Benton (Jan. 20, 1993), 2d Dist. No. 91 CA 71, 1993 Ohio App. LEXIS 172, at *7. Ohio
{¶61} As we have noted, there is no evidence in the record to support Schmidt‘s claim that his sentence was the result of the trial court‘s personal knowledge of him and his family. Additionally, Schmidt presents no evidence to contradict the information from the PSI indicating that he sought to purchase a firearm after the robbery. The PSI clearly states that the Portage County Sheriff‘s Office arranged a meeting between Schmidt and another individual for the purpose of Schmidt purchasing a 9-mm handgun and bullets. Schmidt was arrested when he arrived at this meeting.
{¶62} The trial court‘s comment that Schmidt intended to use the gun to “go out in a blaze of glory” appears to be mere hyperbole. It does not appear that this comment affected the sentence imposed. Otherwise the trial court would likely have sentenced Schmidt to the maximum sentence of eight years (rather than seven) and would likely also have imposed a fine far greater than a mere $200.00.
{¶63} The record in this case reveals that the trial court properly considered the relevant factors in determining the proper sentence. As we noted above, Schmidt offers no evidence that the sentence in this case was inconsistent or disproportionate to other offenders with similar records who have committed similar crimes. If Schmidt cannot now offer evidence of similar cases where defendants have received lesser sentences, it cannot be said that his trial counsel was ineffective when he likewise failed to offer such similar cases for the trial court‘s consideration during the plea and sentencing.
{¶64} Schmidt‘s fourth assignment of error is without merit.
TIMOTHY P. CANNON, P.J.,
DIANE V. GRENDELL, J.,
concur.