State v. ShacklefordState v. Shackleford
O P I N I O N
Rendered on the 5th day of March, 2010.
Mathias H. Heck, Jr., Pros. Attorney; Kelly D. Madzey, Asst. Pros. Attorney, Atty. Reg. No.0079994, P.O. Box 972, Dayton, OH 45422 Attorneys for Plaintiff-Appellee
Phillip G. Shackleford, Inmate #392-483, Lebanon Corr. Inst., P.O. Box 56, Lebanon, OH 45036 Defendant-Appellant, Pro Se
GRADY, J.:
{¶ 1} Defendant, Phillip G. Shackleford, was convicted in 2000 of two counts of rape with accompanying firearm specifications, following a jury trial. The trial court sentenced Defendant to consecutive ten year prison terms on the two rape charges and one three year term on the merged firearm specifications, for a total sentence of twenty-three years. We affirmed Defendant’s
{¶ 2} On August 7, 2008, the trial court resentenced Defendant pursuant to
{¶ 3} Defendant timely appealed to this court from his re-sentencing.
FIRST ASSIGNMENT OF ERROR
{¶ 4} “DEFENDANT-APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL AT THE RE-SENTENCING HEARING WHERE THE RE-SENTENCING PROCESS IS VIOLATIVE OF THE DUE PROCESS CLAUSE OF THE OHIO AND U.S. CONSTITUTION CONTRARY TO THE SEPARATION OF POWERS DOCTRINE.”
SECOND ASSIGNMENT OF ERROR
{¶ 5} “DEFENDANT-APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL AT THE AUGUST 7, 2008 RE-SENTENCING HEARING WHERE COUNSEL FAILED TO ARGUE THAT APPELLANT’S MAXIMUM SENTENCE OF SIX (6) YEARS HAD EXPIRED IN 2005 AT THE LATEST.”
{¶ 6} “DEFENDANT-APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL WHERE THE ATTORNEY FAILED TO OBJECT THAT THE RE-SENTENCING HEARING VIOLATED APPELLANT’S RIGHT NOT TO BE SUBJECTED TO JUDICIAL ENLARGEMENT OF THE SENTENCING STATUTES CONTRARY TO DUE PROCESS OF LAW AS CONSTITUTING EX POST FACTO LEGISLATION AS WELL AS THE DOUBLE JEOPARDY CLAUSE OF THE OHIO AND U.S. CONSTITUTION.”
{¶ 7} Defendant argues that his counsel at the re-sentencing hearing performed deficiently in several respects, and as a result Defendant was deprived of his Sixth Amendment right to the effective assistance of counsel. Counsel’s performance will not be deemed ineffective unless and until counsel’s performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel’s performance. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. To show that a defendant has been prejudiced by counsel’s deficient performance, the defendant must affirmatively demonstrate to a reasonable probability that were it not for counsel’s errors, the result of the trial would have been different. Id.; State v. Bradley (1989), 42 Ohio St.3d 136.
{¶ 8} Defendant complains that his counsel at re-sentencing was ineffective for failing to object to the court’s reliance on
{¶ 9} Defendant also complains that his counsel was ineffective for failing to object that, due to Foster’s constitutional flaw, the court’s failure to make the
{¶ 10} Defendant also complains that his counsel was deficient for failing to object that because he had completed serving the minimum three year sentences that
{¶ 11} Defendant further argues that his counsel was deficient for failing to object that the court’s application of the holding in Foster violates the double jeopardy and ex post facto clauses of the United States and Ohio Constitutions.
{¶ 12} Defendant’s contentions regarding errors the trial court committed and to which his counsel failed to object at re-sentencing
{¶ 13} This court and others have held that Foster does not violate the constitutional requirements of due process, the ex post facto or double jeopardy clauses, or the separation of powers doctrine. State v. Smith, Montgomery App. No. 22334, 2008-Ohio-6630; State v. North, Clark App. No. 07CA0059, 2008-Ohio-6239; State v. Jordan, Greene App. No. 2006CA0106, 2007-Ohio-7163; State v. Benton, Lucas App. No. L-07-1305, 2008-Ohio-3850. Therefore, we could not find that Defendant’s counsel was ineffective for failing to object that those constitutional requirements were violated by the court’s application of Foster to Defendant’s resentencing.
{¶ 14}
{¶ 15} When a trial court fails to include the required post-release control notification in a sentence it imposes, the proper remedy is to resentence the defendant at a hearing, notifying him of his post release control requirements. State v. Simpkins, 117 Ohio St.3d 420, 2008-Ohio-1197; State v. Davis, Montgomery App. No. 22403, 2008-Ohio-6722;
{¶ 16} Defendant had not completed serving his twenty-three year sentence at the time of the 2008 re-sentencing hearing, and therefore it was not improper for the court to resentence him in order to advise him of the post release control requirements.
{¶ 17} Because Defendant has failed to produce a record that exemplifies his claimed errors, and has further failed to demonstrate any error on the part of the trial court in re-sentencing him in order to advise him about his post release control requirements, Defendant fails to demonstrate any deficient performance by counsel in not objecting to the resentencing, much less any resulting prejudice. Ineffective assistance of counsel has therefore not been demonstrated.
{¶ 18} Defendant’s first, second and fourth assignments of error are overruled.
THIRD ASSIGNMENT OF ERROR
{¶ 19} “DEFENDANT-APPELLANT WAS DEPRIVED OF THE EFFECTIVE ASSISTANCE OF COUNSEL AT THE RE-SENTENCING HEARING OF AUGUST 7, 2008, WHERE THE ATTORNEY FAILED TO OBJECT THAT THE FIREARM SPECIFICATIONS FAILED TO ALLEGE A MENS REA ELEMENT OF KNOWINGLY POSSESSING A DEADLY WEAPON/FIREARM.”
{¶ 20} Defendant argues that his counsel at the re-sentencing hearing performed deficiently because he failed to challenge
{¶ 21} Defendant’s third assignment of error is overruled.
The judgment of the trial court will be affirmed.
DONOVAN, P.J. And HARSHA, J., concur.
(Hon. William H. Harsha, Fourth District Court of Appeals, sitting by assignment of the Chief Justice of the Supreme Court of Ohio.)
Copies mailed to:
Kelly D. Madzey, Esq.
Phillip G. Shackleford
Hon. Dennis J. Langer