Lead Opinion
{¶ 2} On March 13, 2008, appellee, the statе of Ohio, filed a bill of information against appellant, alleging one count of grand theft, a felony of the fourth degree, in *2
violation of R.C.
{¶ 3} A plea hearing was held on March 18, 2008.
{¶ 4} Appellant filed a waiver of indictment, a waiver of trial by jury, and a written plea of guilty to the charges contained in the bill of information. The state amended count twelve, cruelty to animals, by deleting the following language: "did knowingly torture, unnecessarily or cruelly beat, neеdlessly mutilate or kill." The trial court accepted appellant's guilty plea and the amendment to count twelve. The matter was referred to the Adult Probation Department and sentencing was deferred to a later date.
{¶ 5} A sentencing hearing was held on March 26, 2008.
{¶ 6} Pursuant to its March 28, 2008 judgment entry, the trial court sentenced appellant on the grand theft and forgery counts to six months in jail, with credit for 32 days, to run concurrent to one another. With regard to the ten counts of cruelty to animals, the trial court sentenced appellant to 90 days in jail, to run concurrent to one another and conсurrent to the grand theft and forgery sentence. Appellant was placed under the general control of the Adult Probation Department for a period of five years or until the court has been notified that she has satisfied all conditions of community control. The trial court sрecified that appellant shall not own or board any horses while on probation and shall serve 100 hours of community service. The trial court notified *3 appellant that if she violates the terms of community control, she will serve a specific term of 17 months for the felony four and 11 months for the felony five, concurrent.
{¶ 7} A hearing was held on April 7, 2008 regarding horse ownership.
{¶ 8} A restitution hearing took place on June 2, 2008.
{¶ 9} Pursuant to its June 3, 2008 judgment entry, the trial court ordered appellant to make restitution to the APL in the stipulated amount of $24,363.74, to be considered a term of her probation, as well as transfer and relinquish оwnership of the horses to the APL. It is from that judgment that appellant filed a timely notice of appeal and asserts the following assignments of error for our review:2
{¶ 10} "[1.] The trial court had no jurisdiction to enter its order dated June 3, 2008.
{¶ 11} "[2.] It was plain error for [the] court to order restitution to thе Portage County Animal Protective League.
{¶ 12} "[3.] The defendant did not receive proper counsel, and defendant's counsel was ineffective in that he did not rightfully raise the issue that the Portage County Animal Protective League was not entitled to restitution, as a matter of law and in fаiling to raise the court's lack of jurisdiction."
{¶ 13} In her first assignment of error, appellant argues that the trial court had no jurisdiction to enter its order dated June 3, 2008.
{¶ 14} In her second assignment of error, appellant contends that it was plain *4 error for the court to order restitution to the APL.
{¶ 15} Because appellant's first and second аssignments of error are interrelated, we will address them in a consolidated fashion.
{¶ 16} This court reviews an order of restitution for abuse of discretion. State v. Berman, 8th Dist. No. 79542,
{¶ 17} R.C.
{¶ 18} R.C.
{¶ 19} Pursuant to Crim. R. 52(B), in order to prevail on a plain error analysis, the defendant bears the burden of demonstrating that the outcome clearly would have been different but for the error. State v.Long (1978),
{¶ 20} In the case at bar, at the March 26, 2008 sentencing hearing, the trial court stated appellant's sentence and indicated that restitution would be determined. Appellant did not file her appeal based on that entry, as it was not a final appealable order. Due to аppellant's husband's claims to the horses, a hearing was held on April 7, 2008 regarding horse ownership. A restitution hearing took place on June 2, 2008.
{¶ 21} The plain language of R.C.
{¶ 22} Further, even assuming arguendo that the trial court did not have jurisdiction to enter its June 3, 2008 judgment entry ordering restitution to be paid tо the APL, again, appellant stipulated $24,363.74 was the amount of restitution due and owing to the APL. We note that parties are bound as to all matters of fact and law agreed to in a stipulation. State v. Folk (1991),
{¶ 23} Appellant's first and second assignments of error are without merit.
{¶ 24} In her third assignment of error, appellant alleges that her counsel was ineffective in that he did not rightfully rаise the issue that the APL was not entitled to restitution, and failed to raise the court's lack of jurisdiction. She maintains that her counsel was ineffective by failing to object to the award of restitution.
{¶ 25} Strickland v. Washington (1984),
{¶ 26} "A convicted defendant's claim that counsel's assistance was so defective as tо 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 thаt the conviction * * * resulted from a breakdown in the adversary process that renders the result unreliable."
{¶ 27} "* * * 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),
{¶ 28} 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),
{¶ 29} A criminal defense attorney owes a duty of care to his client. A "duty" is defined as "[a] legal obligation that is owed or due to another and thаt needs to be satisfied; an obligation for which somebody else has a corresponding right." Black's Law Dictionary (8 Ed. 2004) 543.
{¶ 30} Under Strickland as interpreted by Ohio courts, attorneys are presumed competent, reviewing courts must refrain from second-guessing strategic, tactical decisions and strongly assumе that counsel's performance falls within a wide range of reasonable legal assistance.State v. Carter (1995),
{¶ 31} Upon demonstrating counsel's deficient performance, the defendant then has the burden to establish рrejudice 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 *8 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. Id.
{¶ 32} "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,
{¶ 33} In the instant matter, the record reflects that appellant's counsel negotiated a favorable plea agreement for appellant, despite her gross neglect and maltreatment of multiple horses and a prior сonviction for animal cruelty. In addition, as previously addressed in the foregoing assignments of error, appellant stipulated to $24,363.74 as the amount of restitution due and owing to the APL.
{¶ 34} Pursuant to Strickland, supra, appellant fails to show that her counsel's performance was deficient and that the deficient performance prejudiced the defense. Even assuming arguendo that appellant's counsel's performance was deficient, appellant cannot show that the deficient performance prejudiced the defense. Thus, she cannot show that but for hеr counsel's unprofessional errors, the result of the proceeding would have been different.
{¶ 35} Appellant's third assignment of error is without merit. *9
{¶ 36} For the foregoing reasons, appellant's assignments of error are not well-taken. The judgment of the Portage County Court of Common Pleas is affirmed. It is ordered that appellant is аssessed costs herein taxed. The court finds there were reasonable grounds for this appeal.
CYNTHIA WESTCOTT RICE, J., concurs.
DIANE V. GRENDELL, J., dissents with a Dissenting Opinion.
Notes
Dissenting Opinion
{¶ 37} I respectfully dissent and would reverse the trial court's June 3, 2008 Judgment Entry/Order, ordering Silbaugh to pay restitution to the Animal Protective League in the stipulated amount of $24,363.74. This Judgment was entered after Silbaugh's sentence had become final. Thus, the trial court was without jurisdiction to make the order.
It is well-established that "trial courts lack authority to reconsider their own valid final judgments in criminal cases." State ex rel. Whitev. Junkin,
Pursuant to Crim. R. 32(C), "[a] judgment of conviction shall set forth the plea, the verdict or findings, and the sentence." This Rule further provides that "[a] judgment is effective," i.e. final, "only when entered on the journal by thе clerk." Id.; State v. Purnell,
In the present case, the trial court advised Silbaugh at sentencing that she was "going to pay restitution," but the court had not "determined the amount yet." The court's March 28, 2008 Order and Journal Entry imposing sentence, however, is silent concerning restitution. In a similar situation, the Second District concluded that the cоurt's written entry was final, despite oral pronouncements to the contrary. State v. Sanner, 2nd Dist. No. 2007 CA 13,
The State tacitly concedes the trial court's error, but argues the judgment should be affirmed because the parties had stipulated to the amount of restitution or, alternatively, under the doctrine of invited error. Neither position is tenable. "The parties cannot confer by consent or acquiescence subject-matter jurisdiction on a court where it is otherwise lacking." Purnell,
For foregoing reasons, the trial court's June 3, 2008 Judgment Entry/Order should be vacated. *1