[Cite as State v. Johnson, 2012-Ohio-3542.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO : JUDGES:
:
: Hon. Patricia A. Delaney, P.J.
Plaintiff-Appellee : Hon. John W. Wise, J.
: Hon. Julie A. Edwards, J.
-vs- :
: Case No. 11CA92
PATRICK A. JOHNSON :
:
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of
Common Pleas, Case No. 2011CR0417D
JUDGMENT: AFFIRMED
DATE OF JUDGMENT ENTRY: July 27, 2012
APPEARANCES:
For Appellant: For Appellee:
RYAN M. HOOVLER JAMES J. MAYER, JR.
13 Park Ave. West, Suite 300 RICHLAND COUNTY PROSECUTOR
Mansfield, OH 44902 JILL M. COCHRAN
38 South Park Street
Mansfield, OH 44902
[Cite as State v. Johnson, 2012-Ohio-3542.]
Delaney, J.
{¶1} Appellant Patrick A. Johnson appeals from the sentencing entry of the
Richland County Court of Common Pleas sentencing him to a prison term of four
years upon his conviction of one count of domestic violence, a felony of the third
degree. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} A statement of the facts underlying appellant's original conviction is
unnecessary to our disposition of this appeal.
{¶3} Appellant was originally charged by criminal complaint with one count of
domestic violence as a felony of the fourth degree pursuant to R.C. 2919.25.1
Appellant waived his preliminary hearing and the case was bound over to the Richland
County Grand Jury.
Appellant Enters a Plea of Guilty to a Bill of Information
{¶4} On July 25, 2011, appellee entered a Bill of Information charging
appellant with domestic violence as a felony of the third degree, noting appellant has
been convicted of or pleaded guilty to two or more domestic violence offenses or two
or more violations described in R.C. 2919.25(D)(3) involving persons who were family
or household members.
1
The affidavit underlying the complaint noted appellant has previously been convicted of
domestic violence.
Richland County, Case No. 11CA92 3
{¶5} On July 28, 2011, appellant waived indictment and entered a plea of
guilty upon the bill of information. Appellee noted at the plea hearing that the state
would recommend a community control sanction if the victim agreed to community
control on the record. The trial court acknowledged this offense is a third-degree
felony because appellant has two prior domestic violence convictions and one
conviction of violation of a protection order.
{¶6} The trial court further advised appellant of the maximum possible prison
term of 5 years and a $10,000 fine, and noted appellee’s recommendation of
community control was not binding upon the court. Specifically, the trial court stated
any violations of the no-contact order could result in the court refusing to follow
appellee’s recommendation. Appellant stated he understood.
{¶7} The victim stated on the record at the change of plea that she approved
of the community control sanction.
{¶8} Appellant entered a plea of guilty to the third-degree felony offense of
domestic violence, and the trial court set the matter for sentencing. The court also
requested a pre-sentence investigation (P.S.I.) in the meantime.
Appellant is Sentenced to a Prison Term of 4 Years
{¶9} Appellant returned for sentencing on September 12, 2011. The trial
court opened the hearing by noting the P.S.I. found appellant to be a high risk to re-
offend; further, “[t]he domestic violence index shows him at maximum risk for violence
and control, problem risk for alcohol.”
{¶10} More importantly, however, the trial court noted appellant was
noncompliant with the no-contact order: the trial court had nine pages of phone calls
Richland County, Case No. 11CA92 4
placed by appellant from jail to the victim, totaling 17 hours. The defense interjected
that appellant and the victim are married but separated and are trying to reconcile.
{¶11} The trial court found appellant violated the conditions and proceeded to
detail appellant’s history of violence, which includes convictions for domestic violence,
assault, and violation of protection order against multiple victims.
{¶12} The trial court then sentenced appellant to a prison term of four years
and renewed the no-contact order with the victim.
Appellant’s Motion to Withdraw Plea and Two Notices of Appeal
{¶13} On September 28, 2011, appellant filed a pro se motion to withdraw his
guilty plea, arguing he entered a guilty plea on the basis of receiving a community
control sanction. Appellee filed an objection in response.
{¶14} On October 6, 2011, appellant filed a pro se notice of appeal from the
trial court’s sentencing entry of September 12 (sic), 2011.2
{¶15} On November 3, 2011, the trial court overruled appellant’s motion to
withdraw plea.
{¶16} On November 14, 2011, appellate counsel filed a second notice of
appeal on appellant’s behalf, also from the trial court’s sentencing entry of September
13.
{¶17} Appellant then moved to supplement the record with appellant’s pro se
motion to withdraw his plea, appellee’s response, and the trial court’s entry overruling
the motion. We overruled appellant’s motion to supplement, noting the trial court may
have lacked jurisdiction to rule on the motion to withdraw plea because the notice of
appeal had already been filed and no party sought remand for the trial court to rule.
2
The trial court’s sentencing entry was filed on September 13, 2011.
Richland County, Case No. 11CA92 5
Further, the entry noted appellant did not appeal from the trial court’s entry overruling
the motion to withdraw plea, and therefore that entry is not relevant to the appeal.
{¶18} On March 19, 2011, appellant moved to remand the case to the trial
court to rule upon the motion to withdraw plea. We overruled the motion to remand.
{¶19} Appellant now appeals from the trial court’s sentencing entry of
September 13, 2011.
{¶20} Appellant raises two Assignments of Error:
{¶21} “I. DEFENDANT/APPELLANT WAS DENIED EFFECTIVE
ASSISTANCE OF TRIAL COUNSEL AND BUT FOR TRIAL COUNSEL’S DEFICIENT
PERFORMANCE DEFENDANT/APPELLANT WOULD HAVE REQUESTED AND
TIMELY FILED A CRIMINAL RULE 32.1 MOTION TO WITHDRAW HIS GUILTY
PLEA.”
{¶22} “II. THE TRIAL COURT ERRED IN DENYING
DEFENDANT/APPELLANT’S PRO SE CRIMINAL RULE 32.1 POST-SENTENCE
MOTION TO WITHDRAW HIS GUILTY PLEA.”
{¶23} This case comes to us on the accelerated calendar. App.R. 11.1
governs accelerated-calendar cases and states in pertinent part:
(E) Determination and judgment on appeal.
The appeal will be determined as provided by App.R. 11.1. It shall be
sufficient compliance with App.R. 12(A) for the statement of the reason
for the court’s decision as to each error to be in brief and conclusionary
form. The decision may be by judgment entry in which case it will not be
published in any form.
Richland County, Case No. 11CA92 6
{¶24} One of the most important purposes of the accelerated calendar is to
enable an appellate court to render a brief and conclusory decision more quickly than
in a case on the regular calendar where the briefs, facts, and legal issues are more
complicated. Crawford v. Eastland Shopping Mall Assn., 11 Ohio App.3d 158, 463
N.E.2d 655 (10th Dist.1983).
{¶25} This opinion is rendered with these precepts in mind.
I.
{¶1} Appellant claims in his first assignment of error he received ineffective
assistance of trial counsel, inferring trial counsel “knew of facts and circumstances
before the sentencing of [appellant] that the [appellant] had no knowledge of.” We
disagree.
{¶2} 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).
{¶3} “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.
Richland County, Case No. 11CA92 7
{¶4} 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. We need not examine counsel’s performance if
appellant fails to establish the second prong of prejudicial effect. State v. Bradley, 42
Ohio St.3d 136, 142, 538 N.E.2d 373 (1989).
{¶5} Appellant’s argument is based entirely upon speculation due to a
statement by defense counsel at sentencing. After asking the trial court to follow
appellee’s recommendation from the change-of-plea hearing, counsel continued, “I do
understand the biggest issue that has come up since then is that there have been
phone calls made from the jail.” On the basis of this statement alone, appellant infers
counsel was ineffective because he should have informed appellant of the
ramifications of the contact, discussed the matter with appellant, and given appellant
the opportunity to request a withdrawal of his plea.
{¶6} We decline to speculate on counsel’s conversations with and advice to
appellant. See, State v. Moody, 5th Dist. No. 07 CA 78, 2008-Ohio-3650, ¶ 34 (“Our
review on appeal is limited to those materials in the record that were before the trial
court.”) The record does establish appellant violated the express no-contact order of
the trial court, which was one of the trial court’s stated preconditions for accepting
appellee’s recommendation of community control.
{¶7} Nor is there any evidence of prejudice to appellant by any speculative
action or inaction of his trial counsel. Appellant was aware that if he violated the terms
Richland County, Case No. 11CA92 8
of the no contact order with the victim, the court may not follow the sentence
recommendation. Nor was the trial court required to grant a motion to withdraw the
plea if counsel had in fact failed to discuss the court’s knowledge of the phone calls
with appellant.
{¶8} Appellant’s first assignment of error is overruled.
II.
{¶9} In his second assignment of error, appellant challenges the trial court’s
decision overruling his motion to withdraw his guilty plea. As discussed supra in the
statement of facts, appellant did not appeal from the entry and it is not properly before
this Court.
{¶10} We therefore decline to address appellant’s second assignment of error.
{¶11} Appellant’s second assignment of error is overruled.
{¶12} Having overruled both of appellant’s assignments of error, the judgment
of the Richland County Court of Common Pleas is therefore affirmed.
By: Delaney, P.J.
Wise, J. and
Edwards, J. concur.
HON. PATRICIA A. DELANEY
HON. JOHN W. WISE
HON. JULIE A. EDWARDS
[Cite as State v. Johnson, 2012-Ohio-3542.]
IN THE COURT OF APPEALS FOR RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
:
Plaintiff-Appellee :
:
-vs- : JUDGMENT ENTRY
:
PATRICK A. JOHNSON :
:
: Case No. 11CA92
Defendant-Appellant :
For the reasons stated in our accompanying Opinion on file, the judgment of the
Richland County Court of Common Pleas is affirmed. Costs assessed to Appellant.
HON. PATRICIA A. DELANEY
HON. JOHN W. WISE
HON. JULIE A. EDWARDS