STATE OF OHIO, Plаintiff-Appellee, vs. BRANDON S. WALTERS, Defendant-Appellant.
Case Nos. 13CA33, 13CA36
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT WASHINGTON COUNTY
Released: 10/31/14
[Cite as State v. Walters, 2014-Ohio-4966.]
McFarland, J.
DECISION AND JUDGMENT ENTRY
Jay S. Willis, Willis Legal Services, LLC, Portsmouth, Ohio, for Appellant.
James E. Schneider, Washington County Prosecuting Attorney, and Amy Graham, Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for Appellee.
McFarland, J.
{¶1} Brandon Walters appeals his convictions in the Washington County Court of Common Pleas after he entered pleas of guilty to two separate, unrelated charges as part of an agreed plea arrangement. Walters pled to burglary, a felony of the third degree in violation of
FACTS
{¶2} The Washington County Grand Jury indicted Brandon Walters (Appellant) on November 1, 2012, on a two-count indictment for burglary, count one, a felony of the third degree, and safecracking, count two, a felony of the fourth degree. This indictment arose from an incident alleged to have occurred оn or about April 27, 2012. The victim in the case was Appellant‘s mother. Appellant was arraigned on both charges on December 28, 2012, and entered not guilty pleas to both counts. The case number assigned to the indictment was 12-CR-309. Appellant was represented by counsel on behalf of the Public Defender‘s Office in Washington County.
{¶3} On May 31, 2013, Appellant was again indicted by the Washington County Grand Jury on a two-count indictment for illegal manufacture of drugs, a felony of the first degree, and illegal assembly of chemicals, a felony of the second degree. This second indictment arose from two separate incidents alleged to have occurred on or about October 23, 2012 for the first felony, and on April 19, 2013, for the second felony.
{¶4} On June 7, 2013, Appellant entered pleas of guilty to count one, the burglary count, a violation of
{¶5} At the sentencing hearing, the court‘s recording equipment malfunctioned and the beginning of the hearing was not recorded. The transcript of the hearing begins in mid-sentence as Appellant‘s attorney, Eric Fowler, concluded statements on behalf of Appellant. The “Journal Entry: Sentencing Hearing” filed August 22, 2013 in case number 12CR309, and filed separately on the same date in case number 13CR146, reveal Appellant was ordered to a definite term of imprisonment of two years on the burglary
{¶6} Appellant has timely appealed his convictions. The cases have been consolidated. An Agreed Apр.R. 9(C) Statement was filed by the trial court detailing as much of the missing portion of the sentencing as possible. Where relevant, additional facts are contained in the body of this opinion.2
ASSIGNMENTS OF ERROR
I. THE TRIAL COURT FAILED TO FOLLOW CRIMINAL RULE 32(A)(4), AND IMPOSITION OF CONSECUTIVE SENTENCES IN THESE CASES VIOLATED ORC 2929.14, AND IS NOT SUPPORTED BY THE RECORD.
II. THE PERFORMANCE OF TRIAL COUNSEL WAS DEFICIENT AND DEPRIVED APPELLANT OF THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.
ASSIGNMENT OF ERROR ONE
A. STANDARD OF REVIEW
B. LEGAL ANALYSIS
1. Statutory “seriousness” factors.
{¶8} Under Appellant‘s first assignment of error, he claims the trial court‘s findings that the burglary charge was a sеrious offense do not comply with
“(B) The sentencing court shall consider all of the following that apply regarding the offender, the offense, or the victim, and any other relevant factors, as indicating that the offender‘s conduct is more serious than conduct normally constituting the offense:
(2) The victim of the offense suffered serious physical, psychological, or economic harm as a result of the offense.
(6) The offender‘s relationship with the victim facilitated the offense.”
“Okay. Let the record reflect that the Court is holding this sentencing pursuant to the dictates of 2929.19, that Mr. Walters has been afforded all of his rights, pursuant to Criminal Rule 32. The Court has considered the record, the oral statements made in open court this date, the pre-sentence investigation report, the principles and purposes of sentencing set forth in 2929.11, and the seriousness and recidivism factors set forth in 2929.12.
* * *
“Seriousness factors, there was economic harm to the victim and it was his mother, so the relationship with the victim facilitated the offense of burglary. Less serious, none of those factors are present.”
{¶10} The sentencing entry reads as follows:
“[B] The Court FINDS the following factors are present which make this crime more serious than the norm:
(1) The Defendant caused economic harm to the victim;
(2) The Defendant‘s relationship to the victim facilitated the offense, the mother was the victim in the Burglary.
[C] The Court FINDS that there are no factors present which make this crime less serious than the norm.
{¶11} Here, two seriousness factors were present. One factor is the “relationship to the victim,” which in this case, was mother and son. Another factor is the “economic harm.” The Appellant deprived his mother of $1,800.00. Appellant makes much of the fact that no restitution was requested. However, that is often the case when family members are victims
{¶12} Also, the trial court is entitled to consider “any other relevant factor * * * indicating that the offender‘s conduct is more serious than conduct normally constituting the offense.” State v. Forney, 2nd Dist. Champaign No. 2012-CA-37, 2013-Ohio-3034, ¶13;
2. The presentence investigation.
{¶13} Appellant also argues the trial court‘s sentence contradicts the recommendations in the presentence investigation report. He points out the presentence investigation report found no factors present making either of
2. Consecutive sentences.
{¶14}
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender. Bever, supra, at ¶16;
R.C. 2929.14(C)(4) .
{¶16} While the sеntencing court is required to make these findings,
{¶17} In State v. Baker, 4th Dist. Athens No. 13CA18, 2014-Ohio-1967, Baker asserted the trial court clearly and convincingly violated
{¶18} The transcript here reveals as follows:
“On the count, 12 CR309, burglary, this Court will impose a sentence of two years on that. On the 123CR145 (sic), illegal assembly of chemicals, a second degree felony, the Court will impose a sentence of three years. They will run consecutive, so in the aggregate, it will be five years. * * *”
The trial court specifically stated:
“Consecutive sentences are necessary to protect the public from future crime and are not disproportionate to the seriousness of Mr. Walters’ conduct.
They are a part of separate courses of conduct and his criminal history demonstrates that consecutive sentences are necessary to protect the public from future crime.”
{¶19} Here the trial court stated “consecutive sentences are necessary to protect the public from future crime,” as required pursuant to
{¶20} The required findings for consecutive sentences pursuant to
“The Court further FINDS:
(1) Imposition of consecutive sentences is necessary to protect the public from future crime or to punish the offender.
(2) Imposition of consecutive sentences is not disproportionate to the seriousness of the offenders conduct and to the danger the offender poses to the public.
(3) Harm so great or unusual that a single term does not adequately reflect seriousness of the conduct.
(4) Offender‘s criminal history shows that consecutive terms are needed to protect the public.”
{¶21} The language in jоurnal entry, case number 13CR146 is identical. In both the transcript of the sentencing hearing and the journal entries, the trial court made the required findings, but was not required to give reasons explaining the findings. See Bever, supra, at ¶16. We find no merit to Appellant‘s argument. As such, we find the trial court‘s imposition of consecutive sentences is not clearly and convincingly contrary to law. Based on the above, Appellant‘s first assignment of error is overruled.
ASSIGNMENT OF ERROR TWO
{¶22} Criminal defendants have a right to counsel, including a right to the effective assistance from counsel. McMann v. Richardson, 397 U.S. 759, 770, 90 S.Ct. 1441 (1970); State v. Stout, 4th Dist. No. 07CA5, 2008-Ohio-1366, ¶21. To establish constitutionally ineffective assistance of counsel, a defendant must show (1) that his cоunsel‘s performance was deficient and (2) that the deficient performance prejudiced the defense and deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984); State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v. Goff, 82 Ohio St.3d 123, 139, 694 N.E.2d 916 (1998). “In order to show deficient performance, the defendant must prove that counsel‘s performance fell below an objective level of reasonable representation. To show prejudice, the defendant must show a reasonable probability that, but for counsel‘s error, the result of the proceeding would have been different.” State v. Conway, 109 Ohio St.3d 412, 2006 Ohio-2815, 848 N.E.2d 810, ¶95 (citations omitted). “Failure to establish either element is fatal to the claim.” State v. Jones, 4th Dist. No. 06CA3116, 2008-Ohio-968, ¶14. Therefore, if one element is dispоsitive, a court need not analyze both. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000) (stating that a defendant‘s failure to satisfy one of the elements “negates a court‘s need to consider the other“).
{¶24} To establish prejudice, a defendant must demonstrate that a reasonable probability exists that but for counsel‘s errors, the result of the trial would have been different. State v. White, 82 Ohio St.3d 15, 23, 693 N.E.2d 772 (1998); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), at paragraph three of the syllabus. Furthermore, courts may not
B. LEGAL ANALYSIS
{¶25} In the second assignment of error, Appellant contends he was rendered ineffective assistance of counsel because he was counseled to accept a plea bargain with no agreed sentence and gave up his right to a fair trial. Specifically, Appellant points out that his counsel filed only these pleadings on his behalf in case number 13-CR-146:
- Motion to Preserve Evidence, June 4, 2013
- Request for Discovery, June 6, 2013
- Request to Prosecutor for Evidence Notice and Bill of Particulars, June 6, 2013
{¶27} In response, Appellee points out Appellant fails to mention that counsel was appointed to represent him in case number 12-CR-309 several months before, prior to the second indictment.3 The pleading docket in case number 12-CR-309 demonstrates that the following pleadings were filed on behalf of Appellant in this case:
- Motion to Preserve Evidence, November 5, 2012
- Request to Prosecutor for Evidence, Notice and Bill of
Particulars, November 7, 2012 - Request for Discovery, November 7, 2012
- Motion to Preserve Evidence, January 3, 2013
- Request for Discovery, January 3, 2013
{¶28} The record also reflects a rеsponse to the Request for Discovery was filed on January 9, 2013.
{¶29} Our review of the transcript reveals this detailed exchange regarding Appellant‘s plea took place between Appellant and the trial court:
THE COURT: Now, it‘s my understanding, Mr. Walters, that it is your present intention to plead guilty to Count 1, burglary, in the 309 case, which is a third degree felony as I‘ve described, and Count 2, the second degree felony, illegal assembly of chemicals or possession of chemicals for the manufacture of drugs, a second degree felony, in the 146 case. Is that correct sir?
THE DEFENDANT: Yes, Your Honor.
THE COURT: Okay. Do you understand you‘re not required to plead guilty and yоu can make the State of Ohio prove its case, even if you believe you have no defense to this charge? Do you understand that?
THE DEFENDANT: Yes, Your Honor.
* * *
THE COURT: Like I‘ve told you in the past, I want you to have a full understanding of this. If you have a question or don‘t understand something, interrupt me, get my attention, and I‘ll do my best to explain things. You‘re never going to be criticized for asking questions. And at any time, if you want to talk to Attorney Fowler, just say, I want to talk to my lawyer. If you want to talk privately,
THE DEFENDANT: Yeah.
{¶30} The trial court went on to explain the maximum sentences, the maximum fines, and the loss of driving privileges, pursuant to the sentencing statute. The trial court also explained what the State of Ohio needed to prove in order to convict Appellant. He also questioned Appellant‘s trial counsel as to whether or not he had informed Appellant of the elements of the offenses which he was charged, the defenses possibly available to him, and his state and federal constitutional rights. Counsel gave an affirmative response. The trial court then apprised Appellant of his state and federal constitutional rights. Regarding Appellant‘s triаl counsel, the court questioned:
THE COURT: Okay. Do you personally acknowledge that he‘s informed you and advised you on the matters I asked him about?
THE DEFENDANT: Yes.
THE COURT: Has he answered all you questions?
THE DEFENDANT: Yes, Your, Honor.
THE COURT: Are you satisfied with his services and his advice?
THE DEFENDANT: Yes.
THE DEFENDANT: Yes.
Specifically, the trial court stated:
THE COURT: Okay. Once again, 12CR309 Count 1 is burglary, a third degree felony in violation of 2911.12(A)(3). 13CR146, Count 2, is illegal assembly of chemicals or possession of chemicals for the manufacture of drugs, second degree felony in violation of 2925.041(A) & (C). The maximum stat- - statutory penalty is $25,000 in fines, 11 years in prison, followеd by five years of no driving. Even if it‘s not mandatory, I can make these sentences consecutive. * * * You understand everything I‘ve said?
THE DEFENDANT: Yeah. * * *
THE COURT: Yeah, Now, I‘m not saying I‘ll give you the minimum. I‘m not saying I‘ll give you the maximum. And I‘m not saying I‘ll run them consecutive or I won‘t, but you‘re not eligible for community control. * * *If you plead guilty, will your plea be voluntary, of your own free will and accord?
THE DEFENDANT: I‘m sorry. What was that?
THE COURT: If you plead guilty, will your plea be voluntary, of your own free will and accord?
THE DEFENDANT: Yes.
THE COURT: Okay. Is there a plea agreement, Attorney Rings?
MR. RINGS: Judge, the Defendant will plead guilty * * *Count 1 in 309 and Count 2 in 13CR146. The State will dismiss the other remaining charges in these two indictments.
THE COURT: Okay. Is that the plea agreement, Attorney Fowler?
THE COURT: I and I alone will decide your sentence. I will consider all the factors contained in Chapter 2929 of the Revised Code. I‘ll have a pre-sentence investigation. But you could end up getting the maximum sentence. Do you understand that?
THE DEFENDANT: Yes, Your Honor. * * *
{¶31} The trial court next advised Appellant of his rights to trial to confront witnesses against him, to remain silent, and to subpoena witnesses on his behalf. He asked Appellant if he needed to talk to his counsel and he asked if Appellant understood the rights he was giving up. He then asked Appellant that he would be giving up his right to be presumed innocent until proven guilty beyond a reasonable doubt. He also apprised Appellant he had a right to a prеliminary hearing and Appellant declined the hearing. The trial court asked Appellant if he wanted a jury trial or court trial in either of the cases and Appellant declined. Appellant entered his pleas of guilty and the prosecutor read the stipulated factual bases. The trial court gave Appellant a chance to back out of the guilty plea, to which Appellant replied “Yeah, I‘ll stick with the guilty pleas.” The trial court again asked Appellant if he understood the proceedings and Appellant responded affirmatively.
{¶32} In State v. Hayes, 10th Dist. Franklin No. 08AP-233, 2009-Ohio-1100, the appellant raised an ineffective assistance claim for her counsel‘s alleged failure to negotiate an agreed or recommended sentence
{¶33} In State v. Scott, 12th Dist. Madison No. CA2010-06-012, 2010-Ohio-5056, the appellate court held defense counsel who secured a favorable plea agreement did not provide ineffective assistance even if defendant received the maximum рenalties for the crimes to which he pled
{¶34} We feel this case is similar to State v. Miller, 4th Dist. Pickaway No. 13CA5, 2014-Ohio-1803. There, Miller pled guilty to breaking and entering and theft charges. On appeal, he argued the trial court erred in sentencing him to the maximum on each count and in sentencing him to consecutive sentences. This court noted the parties apparently reached a plea agreement whereby appellant would plead guilty to the aforementioned counts in exchange for the dismissal of four other counts. Our opinion set for the colloquy occurring between the court and counsel wherein the prosecutor set forth his understanding of the plea agreement as follows:
“Thank you, your honor my understanding is that Mr. Miller is going to be pleading guilty to counts five and six * * * both of these are f-5‘s.[Defеnse counsel] indicates Mr. Miller wants to go forward with sentencing today, recommend twelve months consecutive on each sentence, dismiss the balance of those charges. (Emphasis added.)”
“[I]f not explicitly part of the plea agreement, appellant at least implicitly signaled his willingness to accept that punishment in exchange for the dismissal of the four remaining counts. Appellant cannot be heard not to complain about a sentence that he willingly accepted.”
{¶36} The same is true in the case sub judice. The two indictments against Appellant were resolved pursuant to a plea arrangement. While Appellant had two counts pending, another two-count indictment was filed against him. He was facing substantial terms of imprisonment had he proceeded to trial on the four charges. The plea agreement allowed Appellant to plead to two counts in return for the dismissal of two counts. This was a benefit to the Appellant.
{¶37} Furthermore, the transcript reveals the trial court discussed at
{¶38} We do not find counsel‘s performance to be deficient because Appellant now complains he had no evidence to review and gave up his trial rights. We must not speculate that prejudice exists simply because Appellant now speculates that he could have negotiated a different sentence. We do not know what his motivation was for entering pleas only four days after counsel became involved in the seсond indictment. However, the record reveals Appellant‘s rights were clearly explained to him and he was well aware of the possibility of receiving maximum and consecutive sentences. We do not find Appellant was rendered ineffective assistance of counsel. As such, we overrule the second assignment of error and affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to Appellant.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington 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 BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice оf the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Abele, P.J. and Hoover, J.: Concur in Judgment and Opinion.
For the Court,
BY: ___________________________________
Matthew W. McFarland, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.