STATE OF OHIO v. ROBERT S. WILLIAMS
Case No. 15CA3
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT JACKSON COUNTY
RELEASED: 2/24/2016
[Cite as State v. Williams, 2016-Ohio-733.]
Plaintiff-Appellee, :
v. : DECISION AND
JUDGMENT ENTRY
ROBERT S. WILLIAMS, :
Defendant-Appellant. : RELEASED: 2/24/2016
APPEARANCES:
John K. Clark, Jr., Jackson, Ohio, for appellant.
Justin Lovett, Jackson County Prosecuting Attorney, and Randy H. Dupree, Jackson County Assistant Prosecuting Attorney, Jackson, Ohio, for appellee.
Harsha, J.
{¶1} A jury convicted Robert S. Williams of misdemeanor assault in violation of a Wellston city ordinance. The Jackson County Municipal Court sentenced Williams to 180 days in jail, suspended 177 days of the jail term, placed him on reporting probation for five years, and fined him $1,000 plus court costs, with the fine to be paid within 12 months.
{¶2} Williams initially asserts that the trial court erred because it failed to consider the sentencing factors in
{¶3} Williams also claims that his trial attorney provided ineffective assistance of counsel by 1) failing to object to the prosecutor’s repeated leading of state witnesses, 2) twice erroneously objecting on the basis of hearsay to statements made by him to witnesses, and 3) not requesting a continuance to prepare for sentencing. However, the failure to object to leading questions does not constitute ineffective assistance and his remaining contentions do not establish a reasonable probability that the outcome of his trial would have been different.
{¶4} Therefore, we reject Williams’s contentions and affirm his conviction and sentence.
I. FACTS
{¶5} A complaint in the form of an affidavit charged Williams with one count of misdemeanor assault in violation оf Section 135.04(A)(1) of the Codified Ordinances of the City of Wellston. Williams entered a plea of not guilty to the charge and retained private counsel. The case proceeded to a jury trial, which produced the following evidence.
{¶6} Williams’s wife, April, committed suicide. According to Williams, April’s family, including her children, Samantha and Tony, blamed him for her death. Her funeral service was August 23, 2014. Wellston Police Officer Todd Shong testified that on that date, he responded to а call that Williams disrupted the service at the funeral home. When Officer Shong arrived, he observed Williams outside the funeral home in
{¶7} Tony Clark, who is Williams’s stepson, testified that as he got out of the vehicle and headed towards the grave site carrying his infant son, Willliams told him that he could not spend time with his dead wife because of her family; Tony told him to “shut the f*** up.” Williams then got out of the car and moved towards Tony, telling his stepson to hit him. Samantha Clark, Williams’s stepdaughter, testified that she then got between them to try to keep her baby nephew from being hurt, and that Williams called her a “mouthy b****” and punched her in the mouth. According to Samantha, Williams then grabbed her by her throat, strangled her, bit her hand, and caused bruises to her arms and legs. Several members of Samantha’s family сonfirmed that Williams had assaulted her that day.
{¶8} Officer Shong testified that he was present, but did not witness the beginning of the incident. When he heard yelling and screaming, he ran towards the area and broke up the fight. According to Officer Shong, Williams did not comply with his request to get back in his car and instead demanded his badge when he refused Williams’s request to do something about the incident. Officer Shong told those involved to fill out statements about the incident and leave them for his review. Williams stated that he did not want to be in the same building as the officer. Officer Shong investigated the matter and concluded that Williams was the aggressor and should face charges for assaulting his stepdaughter, Samantha.
{¶9} Williams testified that the incident started when Tony said he was going to kill him, which prompted him to get out of the car and tell Tony “let’s end this.”
{¶10} At the conclusion of the trial, the jury returned a verdict finding Williams guilty of assault. The trial court then stated that it was prepared to proceed with sentencing, but that it would grant a continuance if “either counsel wants to have time to prepare for a more formal sentencing hearing.” The prosecutor indicated that he cоuld prepare quickly for sentencing, and Williams’s trial counsel specified that “we would like to just go ahead and just get this over with today if at all possible” because it “has been a long trying time.” The trial court then gave the prosecutor some time to prepare any victim impact statement he wanted to present.
{¶11} When the trial court readjourned, it shared with counsel an NCIC report and an ORAS scoring assessment for his presentence investigation repоrt.1 The trial court “noted a complete lack of criminal history from the official records.”
{¶12} Williams’s trial counsel requested probation or community control as an appropriate sanction based on the fact that Williams had moved from the area and other than visiting his parents, there was no reason for him to be in the area, and that he was 42 years old and unlikely to reoffend. Williams’s counsel further noted that Williams works at a company in Lancaster and had been working over 48 hours per week.
{¶13} Conversely, the state, upon conferring with the victim of Williams’s assault, his stepdaughter, requestеd that the trial court impose the maximum sentence. The victim had indicated that she had ongoing medical issues from the assault, that she feared for her and her family’s safety, and that she had changed her life because of the crime. The state noted that if the maximum jail time would not be imposed, the victim requested some amount of jail time and probation with a “no contact” condition and a “large fine.”
{¶14} The trial court imposed a 180-day jail sentence, but suspended 177 days and placed him on probation for five years, including a condition that he have no contact with Samantha Clark or any member of her family. The trial court also imposed a fine of $1,000 and court costs, but gave Williams 12 months to pay it based on the following exchange at sentencing between the court, Williams, and his trial counsel:
THE COURT: Alright upon the finding of guilty by verdict of a jury the Court will impose its sentence. A fine of $1,000.00 and court costs. Are you able to pay that todаy or do you need some time sir?
MR. WILLIAMS: I will need some time.
THE COURT: Alright what I would like to do is set you up on the Court[’]s normally standard 12 month payment plan. Uh what we would generally do is try to plan to get that done in 12 months. Depending on circumstances uh may reassess that at the end of 12 months. However a guy working 48 hours a week might be able depending on his bills and so on might be able to address that very forcefully uh for a period at least. Uh so I will leave up to him and probation to work out.
{¶15} This appeal ensued.
II. ASSIGNMENTS OF ERROR
{¶16} Williams assigns the following errors for our review:
I. THE TRIAL COURT ERRED IN ITS SENTENCING WHEN IT FAILED TO CONSIDER THE SENTENCING FACTORS IN ORC 2929.22.
II. THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION, AS WELL AS HIS RIGHTS UNDER SECTION 10 ARTICLE I OF THE OHIO CONSTITUTION AND THEREBY DENIED HIS RIGHT TO A FAIR TRIAL.
III. LAW AND ANALYSIS
A. R.C. 2929.22 Sentencing Factors
1. Standard of Review
{¶17} In his first assignment of error Williams asserts thаt the trial court erred in failing to consider the sentencing factors in
2. Analysis
{¶18} In general, trial courts are vested with broad discretion when imposing sentences in misdemeanor cases. State v. Babu, 4th Dist. Athens No. 07CA36, 2008-Ohio-5298, ¶ 36; Cleveland v. Peoples, 8th Dist. Cuyahoga No. 100955, 2015-Ohio-674, ¶ 14 (“trial court has broad discretion in ordering an appropriate sentence for a misdemeanor offense”).
{¶19} Nevertheless, the trial court lacks the discretion to disregard the statutory factors in
{¶20}
(a) The nature and circumstances of the offense or offenses;
(b) Whether the circumstances regarding the offender and the offense or offenses indicate that the offender has a history of persistent criminal activity and that the offender‘s character and condition reveal a substantial risk that the offender will commit another offense;
(c) Whether the circumstances regarding the offender and the offense or offenses indicate that the offender‘s history, character, and condition reveal a substantial risk that the offender will be a danger to others and that the offender‘s conduct has been characterized by a pattern of repetitive, compulsive, or aggressive behavior with heedless indifference to the consequences;
(d) Whether the victim‘s youth, age, disability, or other factor made the victim рarticularly vulnerable to the offense or made the impact of the offense more serious;
(f) Whether the offender has an emotional, mental, or physical condition that is traceable to the offender‘s service in the armed forces of the United States and that was a contributing factor in the offender‘s commissiоn of the offense or offenses;
(g) The offender‘s military service record.
{¶21} In addition,
{¶22} The trial court did not expressly cite these factors at sentеncing or in its sentencing entry other than noting Williams’s absence of a criminal history during the sentencing hearing. Williams argues that the silent record thus establishes that the trial court abused its discretion by not considering the pertinent factors in
{¶23} We do not agree. “Although it is preferable that the trial court affirmatively state on the record that it has considered the criteria set forth in
{¶24} The trial court’s sentence, including the 180-day jail term and the $1,000 fine, was authorized by statute. See
{¶25} There is nothing in the transcript of the sentencing hearing or the sentencing entry that affirmatively shows that the trial court did not consider the appropriate factors in
{¶27} Finally, insofar as Williams claims that the trial court violаted
{¶28} In Polick at 432, we held that these former provisions of
Contrary to the presumption afforded the trial court on a silent record under
{¶29} “These sections have been removed from the current version of the statute, and thus do not apply to appellant’s conviction.” State v. Wiley, 11th Dist. Portage No. 2013-P-0067, 2014-Ohio-5766, ¶ 32. Williams does not direct us to any other statute imposing a similar requirement, and “[t]here is no requirement in
{¶30} In fact, under
{¶31} The trial court did not abuse its considerable discretion in sentencing Williams on his misdemeanor assault conviction. We overrule Williams’s first assignment of error.
1. Standard of Review
{¶32} In his second assignment of error Williams contends that he received ineffective assistance of counsel from his trial attorney. To prevail on a claim of ineffective assistance of counsel, a criminal defendant must establish (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 result of the proceeding would have been different. State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113; Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Gavin, 4th Dist. Scioto No. 13CA3592, 2015-Ohio-2996, ¶ 42. The defendant has the burden оf proof because in Ohio, a properly licensed attorney is presumed competent. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62. Failure to satisfy either part of the test is fatal to the claim. Strickland at 697; State v. Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989).
2. Analysis
{¶33} Williams claims that his trial attorney provided ineffective assistance of counsel by: (1) failing to object to the prosecutor’s repeated leading of state witnesses; (2) twice erroneously objecting on the basis of hearsay to testimony about statements he made to witnesses; and (3) not requesting a continuance to prepare for sentencing.
{¶35} Williams next contends that his trial counsеl was ineffective because he twice objected on the basis of hearsay when those objections were manifestly meritless because the testimony concerned party admissions excepted from the hearsay rule. But even assuming this constituted deficient performance on the part of Williams’s trial counsel, he cannot establish ineffective assistance by his trial counsel’s raising two meritless objections because he has not established рrejudice, i.e., a reasonable probability that, but for his trial counsel’s errors, the result of the proceeding would have been different. See State v. Neal, 4th Dist. Hocking No. 15CA1, 2016-Ohio-64, ¶ 40,
{¶36} In his final contention Williams claims that his trial counsel was ineffective for failing to request a continuance of the sentencing hearing. In his reply brief, he suggests that the statement by trial counsel at the sentencing hearing that he had just learned that Williams was undergoing counseling established that a continuance was necessary to prepare for sentencing. Williams states that trial counsel was ineffective because he had no information “as to the name of the counsel (sic), what the Defendant was being treated for, or what the prognosis was.” (Reply Brief, p. 5)
{¶37} Williams is mistaken. His trial counsel advised the trial court that Williams was being treated for his panic attacks and issues related to the death of his wife. (Tr. 618) As the state aptly observes, the record fails to show whether additional investigation or preparation would have developed anything that would have been beneficial to Williams. In effect Williams is basing his claim of ineffective assistance on speculation that evidence outside the record would establish a reasonable probability that if trial counsel had sоught a continuance and submitted undetermined additional evidence, the trial court would have imposed a more lenient sentence. This direct appeal is not the proper vehicle to raise an ineffective-assistance claim premised on evidence outside the record. See State v. Hampton, 4th Dist. Lawrence No. 15CA1, 2015-Ohio-4171, ¶ 28 (petition for postconviction relief is the proper vehicle to raise a
{¶38} Because Williams has not established a viable claim of ineffective assistance of his trial counsel, we overrule his second assignment of error.
IV. CONCLUSION
{¶39} The trial court did not abuse its discretion in imposing its sentence for Williams’s assault conviction. Nor did his trial counsel provide ineffective assistance of counsel. Having overruled Williams’s assignments of error, we affirm the judgment of the trial cоurt.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Jackson County Municipal 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 of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismissеs 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, J. & Hoover, J.: Concur in Judgment and Opinion.
For the Court
BY: ________________________
William H. Harsha, 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.