[Cite as State v. Ducker, 2013-Ohio-3657.]
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. 2012CA00192
:
JAMES N. DUCKER :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Stark County Court of
Common Pleas, Case No. 2011CR1684
JUDGMENT: AFFIRMED IN PART, REVERSED IN
PART, AND REMANDED
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.2012CA00192 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. 2012CA00193.
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 felony of the third
degree].2 Because appellant committed this offense while on bond in the original case,
1
Stark County Court of Common Pleas case no. 2011CR1684.
2
Stark County Court of Common Pleas case no. 2012CR0684.
Stark County, Case No.2012CA00192 3
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 sentences in the
underlying case, Stark County Court of Common Pleas case no. 2011CR1684.
Stark County, Case No.2012CA00192 4
{¶9} Appellant raises three assignments of error:
ASSIGNMENTS OF ERROR
{¶10} “I. THE TRIAL COURT ERRED AND IMPOSED A SENTENCE
CONTRARY TO LAW BY FAILING TO ENGAGE IN THE REQUISITE ANALYSIS SET
FORTH IN R.C. 2929.14(C)(4) FOR IMPOSITION OF CONSECUTIVE SENTENCES.”
{¶11} “II. THE TRIAL COURT ERRED BY EMPLOYING THE SENTENCING
PACKAGE DOCTRINE.”
{¶12} “III. 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
I.
{¶13} In his first assignment of error, appellant argues the trial court failed to
make requisite statutory findings in imposing consecutive sentences. We agree.
{¶14} We have consistently held the record must clearly demonstrate
consecutive sentences are appropriate and are supported by the record. 2011
Am.Sub.H.B. No. 86, which became effective on September 30, 2011, revived the
language provided in former R.C. 2929.14(E) and moved it to R.C. 2929.14(C)(4). The
revisions now require a trial court to make specific findings when imposing consecutive
sentences. R.C. 2929.14(C)(4) provides in relevant part:
(4) If multiple prison terms are imposed on an offender for
convictions of multiple offenses the court may require the offender
Stark County, Case No.2012CA00192 5
to serve the prison terms consecutively if the court finds that the
consecutive service is necessary to protect the public from future
crime or to punish the offender and that consecutive sentences are
not disproportionate to the seriousness of the offender's conduct
and to the danger the offender poses to the public, and if the court
also finds any of the following:
(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.
{¶15} In Section 11, the legislature explained that in amending former R.C.
2929.14(E)(4), it intended “to simultaneously repeal and revive the amended language
in those divisions that was invalidated and severed by the Ohio Supreme Court's
Stark County, Case No.2012CA00192 6
decision in State v. Foster, 109 Ohio St.3d 1 (2006).” The General Assembly further
explained that the amended language in those divisions “is subject to reenactment
under the United States Supreme Court's decision in Oregon v. Ice, 555 U.S. 160, [129
S.Ct. 711, 172 L.Ed.2d 517] (2009), and the Ohio Supreme Court's decision in State v.
Hodge, [128 Ohio St.3d 1, 2010-Ohio-6320, 941 N.E.2d 768]..” Thus, it is the
legislature's intent that courts interpret the language in R.C. 2929 .14(C)(4) in the same
manner as the courts did prior to State v. Foster, 109 Ohio St.3d 1, 2006–Ohio–856,
845 N.E.2d 470. State v. Boyd, 5th Dist. Richland No. 12CA23, 2013-Ohio-1333, ¶ 36.
{¶16} Appellant concedes his sentences are within the statutory range but
argues the trial court failed to make the findings required by R.C. 2929.14(C)(4);
appellee acknowledges the trial court noted appellant committed the tampering offense
while on bond on the underlying offenses but the record is otherwise silent as to findings
supporting the sentence. We have consistently stated that the record must clearly
demonstrate that consecutive sentences are not only appropriate, but are also clearly
supported by the record. See, State v. Fauntleroy, 5th Dist. Muskingum No. CT2012–
0001, 2012–Ohio–4955; State v. Bonnell, 5th Dist. Delaware No. 12CAA3022, 2012–
Ohio–5150. Our review on appeal of any subsequent resentencing will be directed at
looking at the entire trial court record to determine if that record supports the trial court's
findings that the R.C. 2929.14(C) factors were met. State v. Takos, 5th Dist. Richland
No. 2012CA0078, 2013-Ohio-565, ¶ 28, citing State v. Alexander, 1st Dist. Hamilton
Nos. C–110828, C–110829, 2012–Ohio–3349, ¶ 18; State v. Frasca, 11th Dist.
Trumbull No. 2011–T–0108, 2012–Ohio–3746, ¶ 57.
Stark County, Case No.2012CA00192 7
{¶17} We find that findings supporting consecutive sentences were not made on
the record at the sentencing hearing. The trial court noted appellant committed the
latter offense while the original case was pending, but imposed the consecutive terms in
a summary fashion, as appellee concedes.
{¶18} Appellant’s first assignment of error is therefore sustained and this matter
is remanded to the trial court for resentencing.
II.
{¶19} In his second assignment of error, appellant argues the trial court erred in
failing to impose an individualized sentence for each count in case number 2011-CR-
1684 prior to imposing a sentence in case number 2012-CR-684. This assignment of
error is moot in light of our decision sustaining appellant’s first assignment of error.
{¶20} Appellant’s second assignment of error is therefore overruled.
III.
{¶21} In his third assignment of error, appellant argues he received ineffective
assistance of trial counsel at the sentencing hearing. We disagree.
{¶22} 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).
Stark County, Case No.2012CA00192 8
{¶23} “There are countless ways to provide effective assistance in any given
case. Even the best criminal defense attorneys would not defend a 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.
{¶24} 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.
{¶25} 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 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 of sentencing would have been different and
therefore find appellant did not receive ineffective assistance of trial counsel.
{¶26} Appellant’s third assignment of error is overruled.
Stark County, Case No.2012CA00192 9
CONCLUSION
{¶27} Appellant’s first assignment of error is sustained and his second and third
assignments of error are overruled. This matter is therefore reversed in part, affirmed in
part, and remanded to the Stark County Court of Common Pleas for resentencing in
accordance with this opinion.
By: Delaney, J. and
Gwin, P.J.
Hoffman, J., concur.
HON. PATRICIA A. DELANEY
HON. W. SCOTT GWIN
HON. WILLIAM B. HOFFMAN