State v. TatomState v. Tatom
Rendered on December 20, 2018
On brief: Ron O‘Brien, Prosecuting Attorney, and Barbara A. Farnbacher, for appellee.
On brief: James Anzelmo, for appellant.
APPEAL from the Franklin County Court of Common Pleas
DORRIAN, J.
{1} Defendant-appellant, Roshawn L. Tatom, appeals the October 4, 2017 judgment entry of the Franklin County Court of Common Pleas convicting him, pursuant to a guilty plea, and imposing sеntence. For the following reasons, we affirm.
I. Facts and Procedural History
{2} This matter arises out of an incident that occurred on February 13, 1996. On January 8, 2015, a Franklin County Grand Jury filed an indictment charging Tatom with two criminal counts: kidnapping, in violation of
{3} On July 24, 2017, the trial court held a hearing at which Tatom entered a plea of guilty to felonious assault, in violation of
{4} When A.D. regained consciousness, she found herself in a field. Her stockings were torn and her panties had been removed. A.D. had no recollection of having been sexually assaulted, but believed she had been. A.D. went to a nearby residence and called 911. A.D. was taken to a hospital where she underwent a sexual assault examination. The following day, February 14, 1996, a condom was recovered at the scene. When the condom was tested in 2014, the DNA recovered from the inside of the condom matched that of Tatom. Tatom stipulated to the factual basis of the plea with regard to A.D.‘s assault.
{5} On July 24, 2017, the trial court filed an entry, which was signed by Tatom and his attorney, reflecting Tatom‘s guilty plea. On September 21, 2017, the trial court held a sentencing hearing, at which the trial court imposed a six-year term of imprisonment. On October 4, 2017, the trial court filed a judgment entry reflecting Tatom‘s conviction and sentence.
II. Assignments of Error
{6} Tatom appeals and assigns the following three assignments of error for our review:
[I.] THE TRIAL COURT IMPROPERLY SENTENCED MR. TATOM UNDER CURRENT LAW INSTEAD OF THE AVAILABLE SENTENCES AT THE TIME OF HIS CRIME.
[II.] THE RETROACTIVE APPLICATION OF OHIO‘S STATUTE DEFINING “CHILD” CONSTITUTES AN IMPERMISSIBLE EX POST FACTO LAW.
[III.] APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.
III. First and Second Assignments of Error
{7} In his first assignment of error, Tatom argues the trial court improperly applied current sentencing law instead of the law in effect at the time of the offense. In his second assignment of error, Tatom asserts the retroactive application of the statutory definition of “child” violates the constitutional prohibition on ex post facto laws. As Tatom concedes, because he failed to raise these issues in the trial court, he has forfeited all but plain error. State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, ¶ 15-16. Pursuant to
A. Whether Trial Court Erred by Applying Current Sentencing Law
{8} We first consider Tatom‘s argument that the trial court erred by applying current sentencing law instead of the law in effect at the time the offense оccurred. Specifically, Tatom argues the sentencing laws at the time of the offense provided for a potentially lower penalty and, therefore, should have been applied.
{9} In cases of statutory interpretation, “our paramount concern is the legislative intent in enacting the statute.” State ex rel. Steele v. Morrissey, 103 Ohio St.3d 355, 2004-Ohio-4960, ¶ 21, citing State ex rel. United States Steel Corp. v. Zaleski, 98 Ohio St.3d 395, 2003-Ohio-1630, ¶ 12. “In determining this intent, we first reviеw the statutory language, reading words and phrases in context and construing them according to the rules of grammar and common usage.” Id., citing State ex rel. Rose v. Lorain Cty. Bd. of Elections, 90 Ohio St.3d 229, 231 (2000), and
{10}
{11} Under the sentencing scheme in effect at the time of the commission of the offense, felonious assault was classified as an aggravated felony of the second degree, which was punishable by a minimum prison term of 3, 4, 5, 6, 7, or 8 years, and a maximum prison term of 15 years.1 See former
{12} The General Assembly made the first major change with the enactment of 1996 Am.Sub.S.B. No. 2 (“S.B. 2“), which became effective on July 1, 1996. The purpose of S.B. 2 was to create “truth in sentencing,” by “eliminating indefinite sentences and replacing parole with postrelease control.” Thomas at ¶ 10. Next, the General Assembly enacted 2011 Am.Sub.H.B. Nо. 86 (“H.B. 86“), which became effective on September 30, 2011. The purpose of H.B. 86 was “to reduce the state‘s prison population and to save the associated costs of incarceration by diverting certain offenders from prison and by shortening the terms of other offenders sentenced to prison.” State v. Taylor, 138 Ohio St.3d 194, 2014-Ohio-460, ¶ 17, citing Ohio Legislative Servicе Commission, Fiscal Note & Local Impact Statement to H.B. 86 at 3 (Sept. 30, 2011).2 Under the sentencing scheme created by H.B. 86, felonious assault is classified as a felony of the second degree, which is punishable by a prison term of 2, 3, 4, 5, 6, 7, or 8 years.
{13} The Supreme Court of Ohio, in Thomas, recently addressed the impact of H.B. 86 on defendants who committed offensеs prior to its effective date. In that case, the offenses giving rise to the defendant‘s conviction occurred in 1993, but the defendant was not convicted until 2014, after the effective date of H.B. 86. Under the sentencing scheme at the time of the offense, the defendant was subject to potential prison sentences ranging from 5 to 25 yeаrs, to 10 to 25 years. However, under the sentencing scheme put in place
{14} The Supreme Court noted “the uncodified law of H.B. 86 specifies that its sentencing provisions apply to any unsentenced offender whose potential sentence would be reduced under H.B. 86, regardless of when the offense was committed.” Thomas at ¶ 16. Because the amendments to
{15} Tatom acknowledges that the Supreme Court in Thomas previously considered and rejected an argument similar to his own. Nevertheless, Tatom argues Thomas is inaрposite because “Ohio‘s new sentencing scheme does not actually reduce the penalty for his crime.” (Appellant‘s Brief at 5.) In support of this argument, Tatom points to the potential to petition for parole under the sentencing scheme in effect at the time of the offense. Tatom argues that “[e]ven pеssimistically assuming only a one-quarter reduction and ‘maximum-minimum’ sentence [he] would have been petitioning for parole in roughly four years under the old sentencing scheme.” (Appellant‘s Brief at 5.)
{16} In Thomas, the court compared the “ranges” of “potential sentences” when determining the defendant was entitled to receive the benefit of a reduced sentence under H.B. 86. Thomas at ¶ 15. The court did not specifically discuss the potential for parole pursuant to the sentencing scheme in effect at the time Thomas committed the offense. Nevertheless, Tatom‘s argument that he could have been released in less time by seeking parole under the prior sentencing schеme is not determinative of the issue at hand because it is merely speculative and does not address whether the range of potential sentences to which he was subject was less under current law than the law at the time of the offense. Here, the amendments to
{17} Accordingly, we overrule Tatom‘s first assignment of error.
B. Whether Application of Statute Violated Ex Post Facto Clause
{18} Next, we turn to Tatom‘s argument in his second assignment of error that it was plain error for the trial court to retain jurisdiction although Tatom was under 18 years of age at the time of the offense. Specifically, Tatom contends that statutory amendments to the definition of “child,” when retroactively applied to him, are ex post facto laws prohibited by Article I, Section 10, of the United States Constitution.
{19} The Ex Pоst Facto Clause of the United States Constitution “incorporated ‘a term of art with an established meaning at the time of the framing of the Constitution.’ ” California Dept. of Corr. v. Morales, 514 U.S. 499, 504 (1995), quoting Collins v. Youngblood, 497 U.S. 37, 41 (1990). ” ‘Although the Latin phrase “ex post facto” literally encompasses any law passed “after the fact,” it has long been recognized by [the United States Supreme Court] that the constitutionаl prohibition on ex post facto laws applies only to penal statutes which disadvantage the offender affected by them.’ ” State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, ¶ 21, quoting Collins at 41.
{20} Regarding ex post facto laws, the Supreme Court of the United States has stated:
It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime аn act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.
Beazell v. Ohio, 269 U.S. 167, 169-70 (1925). In other words, the Ex Post Facto Clause provides that “[l]egislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts.” Collins at 43.
{21} In Walls, the Supreme Court of Ohio examined 1997 amendments to
{22} In determining whether the amendments to the juvenile law applied in Walls‘s case constituted an ex post facto violation, the court stated that it was necessary to show that the amendments actually ” ‘produced a sufficiеnt risk of increasing the measure of punishment attached to’ ” the particular crime, and that a ” ‘speculative and attenuated’ possibility that the statutory change has increased the measure of punishment will not constitute an ex post facto violation.” Walls at ¶ 30, quoting Morales at 509. The court found that “[w]hile [the defendant] perhaps remained еligible for retention within the jurisdiction of the juvenile court under a technical reading of the old statutes, the practical reality is that [the defendant] had virtually no chance of being kept in the juvenile system.” Id. at ¶ 31. The court noted Walls‘s “mature age” and stated that the former bindover statute did not contemplate treatment of a 29-year-old adult within the juvenile justiсe system. Id. at ¶ 40-41. The court stated that “[a]ny bindover hearing under the [statute in effect at the time of the offense] would have been simply a procedural step in the process of transferring [the defendant] for prosecution as an adult.” Id. at ¶ 41. Therefore, because “application of the amended statutes did not increаse his available punishment in any manner other than a speculative and attenuated one,” the court concluded the “change in the measure of punishment is not enough to constitute an ex post facto violation.” Id.
{23} Tatom acknowledges the Supreme Court of Ohio in Walls previously considered and rejected an argument similar to his own. Nevertheless, Tatom argues that “removing the protections of Ohio‘s juvenile system[] constitutes a change in the law that increases the possible punishment and runs afoul of the Ex Post Facto Clause and asks this court to consider such a holding.” (Appellant‘s Brief at 7.) Tatom argues that although “bind-over was a risk” at the time of the offense, “it was not mandatory.” (Appellant‘s Brief at 7.)
{25} The date of the offense in this case was February 13, 1996. On January 8, 2015, when Tatom was 35 years old, the indictment was filed. Tatom‘s bindover may not have been mandatory, nevertheless, as in Walls, “application of the amended statutes did not increase [Tatom‘s] available punishment in any manner other than a speculative and attenuated one.” Walls at ¶ 41. Therefore, we cannot agree with Tatom that the trial court committed error, let alone plain error, by retaining jurisdiction.
{26} Accordingly, we overrule Tatom‘s second assignment of error.
IV. Third Assignment of Error
{27} In his third assignment of error, Tatom asserts his trial counsel was ineffective for failing to raise the arguments contained in the first and second assignments of error.
{28} A convicted defendant alleging ineffective assistance of counsel must demonstrate that: (1) counsel‘s performance was so deficient that he or she was not functioning as the counsel guaranteed under the Sixth Amendment to the Unitеd States Constitution, and (2) counsel‘s errors prejudiced defendant, depriving him or her of a trial whose result is reliable. Strickland v. Washington, 466 U.S. 668 (1984); State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus. “To show that a defendant has been prejudiced by counsel‘s deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel‘s errors, the result of the trial would have been different.” Bradley at paragraph three of the syllabus. “Judicial scrutiny of counsel‘s performance must be highly deferential [and] [b]ecause of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that
{29} Tatom fails to demonstrate error under the Strickland test. In our analysis of Tatom‘s first and second assignments of error, we found that under established precedent, we could not find the challenged conduct constituted plain error. Furthermore, given the established precedent in Thomas and Walls, there was not a reasonable probability that the result of the trial wоuld have been different but for counsel‘s failure to raise the issues. See State v. Brown, 98 Ohio St.3d 121, 2002-Ohio-7040, ¶ 20 (finding counsel‘s failure to raise argument did not provide reasonable probability of different outcome given the existence of well-established precedent to the contrary). Therefore, we conclude that Tatom has failed to demonstrate he was denied effective assistance of counsel.
{30} Accordingly, we overrule Tatom‘s third assignment of error.
V. Conclusion
{31} Having overruled Tatom‘s three assignments of error, we affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
TYACK and SADLER, JJ., concur.