State v. SowardsState v. Sowards
{¶ 1} This matter comes on for consideration of a re-opened appeal. William S. Sowards, defendant below and appellant herein, assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“THE TRIAL COURT FINDING AND SENTENCE VIOLATED
O.R.C. §2945.75 AND STATE OF OHIO V. PELFREY.”
SECOND ASSIGNMENT OF ERROR:
“THE APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL AND HIS CONSTITUTIONAL RIGHT TO A JURY TRIAL.”
{¶ 2} A jury found appellant guilty of drug possession in violation of
{¶ 3} On November 12, 2008, appellant filed a motion to vacate his sentence on grounds of
{¶ 4} We jointly consider the two assignments of error becаuse they both relate to the same issue. Appellant argues that his conviction and sentence violates
{¶ 5} Turning now to the facts in the case sub judice, the October 27, 2006 verdict form stated that the jury found appellant guilty of possession of drugs. However, the fоrm neither specified the degree of the offense nor any additional elements. Thus, the form appears to violate
{¶ 6} The appellee, however, cites a more recent Ohio Supreme Court decision wherein the Court appears to make an exception to Pelfrey under certain circumstances. See State v. Eafford, 132 Ohio St.3d 159, 2012-Ohio-2224, 970 N.E.2d 891. The facts in Eafford reveal that the Cuyahoga County Grand Jury returned indictments on three different charges – one for the possession of cocaine in violаtion of
{¶ 7} Subsequently, the Ohio Supreme Court reversed the Eighth District‘s judgment, in part, because the verdict form mаde reference to the count of the indictment that specified “cocaine” as the drug in question. Id. at ¶¶17-19.1 The State argues that we should apply Eafford here and, likewise, affirm the sentence. We agree.
{¶ 8} In the case at bar, the October 27, 2006 verdiсt form explicitly states that the jury found appellant “Guilty of Possession of Drugs in a manner and form as he stands charged in the Indictment.” (Emphasis added.)2 Although the body of the form does not specify whiсh count of the indictment, that information is set out in the title of the verdict which states “COUNT ONE POSSESSION OF DRUGS[.]” We also hasten to add that count one of the indictment speсifies that appellant was charged with the possession or use of Marijuana “in an amount exceeding twenty thousand grams” and that the charge wаs “[a] felony of the second degree.”
{¶ 9} Appellant does not address Eafford in his brief. He does not contend that any deficiency occurred in the evidence regarding the amount of marijuana nor does he claim that the jury instructions were deficient.3 We therefore conclude that the Court‘s reasoning in Eafford applies here.
{¶ 10}
{¶ 11} As we noted in Sowards IIA, the standard of review emрloyed when considering ineffective assistance of counsel claims is whether an appellant can establish counsel‘s defective performance, as well as some resulting prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); also see State v. Goodwin, 84 Ohio St.3d 331, 334, 703 N.E.2d 1251 (1999); State v. Goff, 82 Ohio St.3d 123, 129, 694 N.E.2d 916 (1998). An appellant must show a reasonable probability exists that, but for trial counsel‘s errors, thе result of the action would have been different. Strickland, supra at 687-688. In light of Eafford, which applies just as retrospectively as Pelfrey, we are not persuaded the outcome of the case sub judice would have been differеnt.
{¶ 12} For these reasons, we hereby overrule appellant‘s first and second assignments of error and affirm the trial court‘s judgment.4
JUDGMENT AFFIRMED.
It is ordered that the judgment bе affirmed and that appellee recover of appellant the costs herein taxed.
The Court finds there were reasonable grounds fоr this appeal.
It is ordered that a special mandate issue out of this Court directing the Gallia County Common Pleas Court to carry this judgment into execution.
If a stay of execution of sentence and release upon bail has been previously granted, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty day pеriod.
The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the еxpiration of said sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
McFarland, P.J. & Harsha, J.: Concur in Judgment & Opinion
For the Court
BY:
Peter B. Abele, Judge