[Cite as State v. Ducker, 2013-Ohio-3658.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. William B. Hoffman, J.
: Hon. Patricia A. Delaney, J.
-vs- :
: Case No. 2012CA00193
:
JAMES N. DUCKER :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County
Court of Common Pleas, Case
No. 2012CR0684
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: August 12, 2013
APPEARANCES:
For Plaintiff-Appellee: For Defendant-Appellant:
JOHN D. FERRERO, JR. KRISTINA SUPLER
STARK CO. PROSECUTOR Friedman & Frey, LLC
RONALD MARK CALDWELL 1304 West 6th St.
110 Central Plaza S., Ste. 510 Cleveland, OH 44113
Canton, OH 44702-1413
Stark County, Case No.2012CA00193 2
Delaney, J.
{¶1} Appellant James N. Ducker appeals from the June 22 and June 28,
2012 judgment entries of conviction and sentence in the Stark County Court of
Common Pleas. Appellee is the state of Ohio. This case is related to State v.
Ducker, 5th Dist. Stark No. 2012CA00192.
FACTS AND PROCEDURAL HISTORY
{¶2} A statement of the facts underlying appellant’s criminal convictions
is not necessary to our resolution of this appeal.
{¶3} On November 15, 2011, appellant was charged by indictment with
one count of illegal use of a minor in a nudity-oriented material or performance
[R.C. 2907.323(A)(1), a felony of the second degree)]; one count of unlawful
sexual conduct with a minor [R.C. 2907.04(A), a felony of the third degree]; and
one count of disseminating material harmful to juveniles [R.C. 2907.31(A)(1), a
felony of the fifth degree].1 Appellant entered pleas of not guilty and a trial was
scheduled for April 2012. In the meantime, appellant was free on a personal
recognizance bond.
{¶4} During pretrial proceedings, appellant’s original defense trial
counsel moved to withdraw and appellant retained new counsel. The trial date
was continued to May 2012.
{¶5} While the original case was pending, appellant was charged by
indictment with one count of tampering with evidence [R.C. 2921.12(A)(2), a
1
Stark County Court of Common Pleas case no. 2011CR1684.
Stark County, Case No.2012CA00193 3
felony of the third degree].2 Because appellant committed this offense while on
bond in the original case, the trial court revoked appellant’s bond on May 14,
2012 and appellant remained incarcerated during pretrial proceedings.
{¶6} Also during the May 14, 2012 pretrial, defense trial counsel moved
for a competency examination and appellant was ultimately found competent to
stand trial.
{¶7} On June 20, 2012, a change-of-plea hearing was held in both
cases; the trial court addressed the original charges and the tampering with
evidence charge simultaneously. Appellant entered pleas of guilty as charged
and was sentenced two days later to an aggregate prison term of eight years;
appellant was also designated a Tier II sexual offender. The trial court noted
appellant’s sentence as follows: four years upon the count of count of illegal use
of a minor in a nudity-oriented material or performance (Count I); 24 months
upon the count of unlawful sexual conduct with a minor (Count II); 12 months
upon the count of disseminating material harmful to juveniles (Count III); and 24
months on the count of tampering with evidence. Counts 1 and 2 are to be
served consecutively, and consecutive to the term of 24 months on the separate
tampering offense. Count III is to be served concurrently.
{¶8} We permitted appellant to file a delayed appeal from the judgment
entry of sentence and conviction but denied his motion to consolidate both
appeals. This opinion, therefore, addresses only appellant’s appeal from the
2
Stark County Court of Common Pleas case no. 2012CR0684.
Stark County, Case No.2012CA00193 4
sentence in the latter case, Stark County Court of Common Pleas case no.
2012CR0684.
{¶9} Appellant raises two assignments of error:
ASSIGNMENTS OF ERROR
{¶10} “I. THE TRIAL COURT ERRED AND IMPOSED A SENTENCE
CONTRARY TO LAW AND IN VIOLATION OF THE APPELLANT’S DUE
PROCESS RIGHTS BY FAILING TO CONSIDER ADEQUATELY ALL THE
STATUTORY FACTORS.”
{¶11} “II. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE
OF COUNSEL IN VIOLATION OF HIS RIGHT TO COUNSEL UNDER THE 6TH
AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND
ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.”
ANALYSIS
{¶12} In his first assignment of error, appellant argues the trial court erred
in sentencing him to a term of 24 months without making the statutory findings
delineated in R.C. 2929.11 and R.C. 2929.12. We disagree.
{¶13} Appellant did not object to the imposition of a 24-month sentence,
admittedly was sentenced within the range of terms for the offense charged, and
cannot now demonstrate plain error. See, State v. Dewitt, 5th Dist. Licking No.
12-CA-35, 2012-Ohio-5162. In State v. Little, Fifth Dist. Muskingum No.
CT2011–0057, 2012–Ohio–2895, we held:
As set forth above, Appellant entered a plea to sexual
battery, in violation of R.C. 2907.03(A)(1). H.B. 86 did not
Stark County, Case No.2012CA00193 5
amend or change the statute for which Appellant was
convicted. Further, H.B. 86, Section 4 does not specifically
include sexual battery as one of the offenses for which the
legislation is to be applied retroactively. Accordingly, we find
Appellant's argument the trial court was required to comply
with the requirements of H.B. 86 in issuing Appellant's
sentence herein is not well taken.
The Supreme Court of Ohio in State v. Kalish, 120 Ohio
St.3d 23, 2008–Ohio–4912 set forth a two step process for
examining felony sentences. The first step is to ‘examine the
sentencing court's compliance with all applicable rules and
statutes in imposing the sentence to determine whether the
sentence is clearly and convincingly contrary to law.’ Kalish
at ¶ 4. If this first step ‘is satisfied,’ the second step requires
the trial court's decision be ‘reviewed under an abuse-of-
discretion standard.’ Id. The relevant sentencing law at the
time of sentencing herein was controlled by the Ohio
Supreme Court's decision in State v. Foster, i.e. ‘ * * * trial
courts have full discretion to impose a prison sentence within
the statutory range and are no longer required to make
findings or give their reasons for imposing maximum,
consecutive, or more than the minimum sentences.’ 109
Stark County, Case No.2012CA00193 6
Ohio St.3d 1, 30, 2006–Ohio–856 at ¶ 100, 845 N.E .2d 470,
498.
Upon review of Appellant's sentence, the same is within the
parameters for the offense and does not amount to an abuse
of discretion. We find the record fails to demonstrate the trial
court failed to give careful and substantial deliberation to the
relevant statutory considerations.
{¶14} As in Little, supra, tampering with evidence, R.C. 2921.12(A)(2), the
charge for which appellant was sentenced, was not enumerated within H.B. 86;
therefore, pursuant to Kalish, supra, we find the trial court properly considered
the principles and factors necessary in imposing the sentence herein. The
sentence was within the statutory range for the offense.
{¶15} Nor does appellant’s sentence constitute an abuse of discretion.
Appellate courts can find an “abuse of discretion” where the record establishes
that a trial judge refused or failed to consider statutory sentencing factors.
Cincinnati v. Clardy, 57 Ohio App.2d 153, 385 N.E.2d 1342 (1st Dist.1978). An
abuse of discretion has also been found where a sentence is greatly excessive
under traditional concepts of justice or is manifestly disproportionate to the crime
or the defendant. Woosley v. United States, 478 F.2d 139, 147(8th Cir.1973).
The imposition by a trial judge of a sentence on a mechanical, predetermined or
policy basis is subject to review. Id., 478 F.2d at 143–145. Where the severity of
the sentence shocks the judicial conscience or greatly exceeds penalties usually
exacted for similar offenses or defendants, and the record fails to justify and the
Stark County, Case No.2012CA00193 7
trial court fails to explain the imposition of the sentence, the appellate court's can
reverse the sentence. Id., 478 F.2d at 147.
{¶16} In this case, appellant’s 24-month sentence is not so severe that it
“shocks the judicial conscience or greatly exceeds penalties usually exacted for
similar offenses or defendants,” and while we noted in the related companion
case that the trial court did not make the required findings to impose consecutive
sentences, in this case the record justifies the sentence imposed because
appellant committed the offense while on bond. We therefore decline to reverse
the sentence.
{¶17} Appellant’s first assignment of error is overruled.
II.
{¶18} In his second assignment of error, appellant argues he received
ineffective assistance of counsel. We disagree.
{¶19} To succeed on a claim of ineffectiveness, a defendant must satisfy
a two-prong test. Initially, a defendant must show that trial counsel acted
incompetently. See, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052
(1984). In assessing such claims, “a court must indulge a strong presumption
that counsel's conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound trial strategy.’”
Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158 (1955).
{¶20} “There are countless ways to provide effective assistance in any
given case. Even the best criminal defense attorneys would not defend a
Stark County, Case No.2012CA00193 8
particular client in the same way.” Strickland, 466 U.S. at 689. The question is
whether counsel acted “outside the wide range of professionally competent
assistance.” Id. at 690.
{¶21} Even if a defendant shows that counsel was incompetent, the
defendant must then satisfy the second prong of the Strickland test. Under this
“actual prejudice” prong, the defendant must show that “there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S. at 694.
{¶22} Appellant asserts defense trial counsel should have requested a
presentence investigation, should have filed a sentencing memorandum, and
should have presented evidence to mitigate the sentence. Appellant cites to trial
counsel’s alleged “failure to create a thorough record” but fails to establish how
the outcome of the sentencing hearing would have been different but for
counsel’s alleged deficiencies. We are unwilling to speculate the outcome would
have been different and therefore find appellant did not receive ineffective
assistance of counsel.
{¶23} Appellant’s second assignment of error is overruled.
Stark County, Case No.2012CA00193 9
CONCLUSION
{¶24} Appellant’s two assignments of error are overruled and the
judgment of the Stark County Court of Common Pleas is affirmed.
By: Delaney, J. and
Gwin, P.J. concur,
Hoffman, J., concurs in
part and dissents in part.
yh
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN
Stark County, Case No.2012CA00193 10
Hoffman, J., concurring in part and dissenting in part
{¶25} I concur in the majority’s analysis and disposition of Appellant’s
second assignment of error.
{¶26} I also concur in the majority’s analysis and disposition of
Appellant’s first assignment of error as it pertains to the trial court’s imposition of
24 months in prison. I dissent only as to the trial court’s imposition of that
sentence consecutively to the charges in Case No. 2011CR1684 in the absence
of the requisite findings; thereby comporting with our decision in State v. Ducker,
Stark County App. No. 2012CA00192.
________________________________
HON. WILLIAM B. HOFFMAN
State v. Ducker
Combined Opinion