STATE OF OHIO v. TERRANCE TIMMONS, JR.
Nos. 105940, 105941, and 105942
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
July 19, 2018
2018-Ohio-2837
BEFORE: S. Gallagher, J., E.T. Gallagher, P.J., and Stewart, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-16-611004-A, CR-16-611131-A, and CR-16-611383-A
Gregory Scott Robey
Robey & Robey
14402 Granger Road
Cleveland, Ohio 44137
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
By: Shannon M. Musson
Gregory J. Ochocki
Assistant Prosecuting Attorneys
Justice Center - 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{¶2} Appellant was indicted in the underlying cases for drug-related offenses occurring in August and October 2016. Appellant entered guilty pleas to some of the charges, with the remaining counts being nolled. He was sentenced to a total aggregate prison term on all three cases of 14.5 years.
{¶3} In Cuyahoga C.P. No. CR-16-611004-A, appellant pled guilty to the following charges as amended: Count 1, drug trafficking (
{¶5} In Cuyahoga C.P. No. CR-16-611383-A, appellant pled guilty to the following charges: Count 1, drug trafficking (
{¶6} Appellant timely filed this appeal. He raises two assignments of error for our review. Under his first assignment of error, appellant claims the trial court erred by failing to fully advise him of his constitutional and statutory rights prior to accepting his guilty plea and that his plea was not knowingly, intelligently, and voluntarily made.
{¶7} Appellant claims that the trial court failed to strictly comply with
{¶9} “When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily.” State v. Engle, 74 Ohio St.3d 525, 527, 1996-Ohio-179, 660 N.E.2d 450. The standard of review for determining whether a plea was knowing, intelligent, and voluntary within the meaning of
{¶10} The transcript herein reflects that the plea hearing was interrupted while the plea agreement was being placed on the record. Upon resuming with appellant‘s case, the remainder of the plea agreement was stated on the record and the plea hearing continued. There is no suggestion that the plea agreement was not properly stated on the record or that appellant did not understand the agreement. Defense counsel indicated that he had fully advised appellant of his available defenses, and counsel expressed satisfaction that the plea would be voluntarily entered.
{¶12} Appellant then informed the court about his family‘s history with selling drugs and that his father was pushing it off on him, and he expressed he was being told things that were causing confusion as to his sentence. The trial court informed appellant about the sentencing process and that the sentence would not be determined until the day of sentencing. The court thoroughly reviewed each count to which appellant would be pleading and the possible sentences that could be imposed. Appellant expressed that he understood. Appellant then pled guilty to each count and expressed that his plea had been voluntarily entered. The trial court accepted the guilty pleas and nolled the remaining counts.
{¶13} Our review of the record reflects that under the totality of the circumstances the defendant had a subjective understanding of the implications of his plea and the rights he was waiving. Further, appellant has not shown that the plea otherwise would not have been entered. We find that the trial court complied with
{¶14} Under his second assignment of error, appellant claims that the prison terms of 9 years imposed in Cuyahoga C.P. No. CR-16-611383-A and 5.5 years imposed in Cuyahoga C.P. No. CR-16-611004-A, as well as the aggregate prison term of 14.5 years imposed for all three cases is not supported by the record. Under his third assignment of error, appellant challenges the imposition of maximum, consecutive sentences in Cuyahoga C.P. Nos. CR-16-611383-A and CR-16-611004-A.
{¶16} Appellant argues that the trial court failed to properly consider a number of sentencing factors under the law. Appellant claims that the “more serious” factors under
{¶17} Additionally, appellant claims the trial court engaged in unfairly prejudicial and overbroad generalizations concerning the growing number of heroin overdose deaths, made statements calling appellant a “death dealer” and “boogeyman” who is going to “come and sell death,” and expressed the court‘s belief that “everyone who sells heroin or fentanyl should be
{¶18} The record reflects that prior to imposing sentence, the trial court reviewed the presentence investigation report and heard statements from defense counsel, the assistant prosecutor, and appellant. Appellant expressed that he felt he had been manipulated by his father and blamed his parents for his predicament. However, the court noted that appellant was 26 years old at the time of the offenses and could have said no. Appellant acknowledged that he had been to prison in the past for selling drugs. The trial court‘s discussion of the heroin epidemic and comments on the dangers of selling heroin reflected upon the seriousness of the offenses. Appellant acknowledged that heroin kills.
{¶19} The trial court rejected appellant‘s request for a minimum sentence, commenting to appellant that “each time you went to prison for selling drugs you came out and you went right back to selling drugs.” Appellant‘s history of drug offenses dated back to 2008. Appellant also indicated he was on postrelease control at the time of the offenses in this matter.
{¶20} The court engaged in a proper analysis for imposing consecutive sentences. Pursuant to
{¶22} Having reviewed the entire record and the presentence investigation report, we are unable to determine by clear and convincing evidence that the record does not support the trial court‘s findings or the sentence imposed. Appellant‘s second and third assignments of error are overruled.
{¶23} Under his fourth assignment of error, appellant claims he was denied effective assistance of counsel. In order to substantiate a claim of ineffective assistance of counsel, the appellant must show “(1) deficient performance by counsel, i.e., performance falling below an objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for counsel‘s errors, the proceeding‘s result would have been different.” State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 200, citing Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. The defendant has the burden of proving his counsel rendered ineffective assistance. Perez at ¶ 223.
{¶24} Appellant‘s claim is premised upon his argument that defense counsel failed to secure further inquiry from the court relating to the voluntariness of his plea and that, at sentencing, defense counsel failed to object or to correct the record with regard to the trial court‘s statements about heroin overdose deaths. Upon our review, we are unable to conclude that
{¶25} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed. The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s convictions having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
EILEEN T. GALLAGHER, P.J., and
MELODY J. STEWART, J., CONCUR