State v. Graham

[Cite as State v. Graham, 2014-Ohio-1891.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO, :

Plaintiff-Appellee, : CASE NO. CA2013-07-066

: OPINION
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:

ANTHONY L. GRAHAM, :

Defendant-Appellant. :

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 07 CR 24552

David P. Fornshell, Warren County Prosecuting Attorney, Michael Greer, 500 Justice Drive,
Lebanon, Ohio 45036, for plaintiff-appellee

Neal W. Duiker, 130 East Mulberry Street, Lebanon, Ohio 45036, for defendant-appellant

HENDRICKSON, J.

{¶ 1} Defendant-appellant, Anthony Graham, appeals the decision of the Warren

County Court of Common Pleas denying his motion to modify or reduce his prison sentence.

For the reasons detailed below, we affirm the decision of the trial court.

{¶ 2} On October 9, 2007, appellant and his accomplice, Winston Thomas, were

stopped by law enforcement personnel for committing a lane violation while traveling

northbound on I-71 in Turtlecreek Township. Thereafter, a canine unit was dispatched to the
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scene, and alerted officers to the presence of marijuana in the vehicle. An inspection of the

vehicle yielded multiple bundles of marijuana covered in tape and cellophane and hidden in

various locations in the vehicle.

{¶ 3} On October 15, 2007, appellant and Thomas were indicted as co-defendants

for possession of marijuana in violation of R.C. 2925.11(A) and trafficking of marijuana in

violation of R.C. 2925.03(A)(2). Prior to trial, appellant's co-defendant, Thomas, absconded

from custody and remained missing for several years.

{¶ 4} In the meantime, on July 11, 2008, appellant was tried and convicted on both

counts for possession of marijuana and trafficking in marijuana, both second-degree felonies.

The jury also made an additional finding that appellant was trafficking in marijuana in an

amount that equaled or exceeded 20 thousand grams. The trial court then merged the two

counts and the state elected to proceed on the trafficking charge. Based on the sentencing

legislation in effect at the time, the trial court was required to sentence appellant to a

mandatory maximum eight-year prison term. Accordingly, appellant was sentenced to an

eight-year prison term and $7,500 fine, as well as a five-year driver's license suspension.

This court affirmed appellant's convictions on direct appeal in State v. Graham, 12th Dist.

Warren No. CA2008-07-095, 2009-Ohio-2814.

{¶ 5} Following appellant's conviction and sentence, appellant's co-defendant,

Thomas, was apprehended on federal drug charges and sentenced to 37 months in federal

prison in the Mashannon Valley Correctional Center located in Pennsylvania. On June 7,

2010, Ohio filed a detainer against Thomas and on April 18, 2012, Thomas was transported

back to Warren County to face the drug charges pertinent to this appeal. Following a jury

trial, Thomas was convicted of the same offenses as appellant, i.e., possession of marijuana

and trafficking in marijuana. As in appellant's case, the jury also returned a finding that

Thomas was trafficking in an amount that equaled or exceeded 20 thousand grams. The trial

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court then merged the two counts and the state proceeded elected to proceed with the

trafficking-in-marijuana conviction for sentencing. However, because of recent sentencing

amendments in House Bill 86 (H.B. 86), the trial court had discretion to impose a mandatory

prison term of five, six, seven, or eight years. The trial court sentenced Thomas to a six-year

prison term. This court affirmed Thomas' direct appeal in State v. Thomas, 12th Dist. Warren

No. CA2012-10-096, 2013-Ohio-3411.

{¶ 6} On May 2, 2013 appellant filed a "motion for disparity of sentence pursuant to

Crim.R. 47 and Crim.R. 57(A)(1)(2)," which the court construed as a "motion to modify or

reduce sentence." On June 11, 2013, the trial court denied appellant's motion. Appellant

now appeals the decision of the trial court raising two assignments of error for review

{¶ 7} Assignment of Error No. 1:

{¶ 8} THE APPELLATE COURT SHOULD EXERCISE ITS RIGHT UNDER O.R.C.

§2953.08(G)(2) TO REDUCE OR OTHERWISE MODIFY APPELLANT'S SENTENCE AS A

DISPARITY IN APPELLANT'S SENTENCE COMPARED TO HIS CO-DEFENDANT'S

SENTENCE.

{¶ 9} In his first assignment of error, appellant argues this court should modify his

prison sentence because of the disparity between the eight-year mandatory maximum prison

term he received and the six-year prison term Thomas received. Appellant's complaint

centers on the fact that, at the time of appellant's conviction and sentence, the penalty for

trafficking marijuana in excess of 20 thousand grams was a mandatory maximum eight-year

prison term. However, because Thomas absconded and was not subsequently convicted

and sentenced until after the passage of H.B. 86, the trial court was not required to sentence

Thomas to an eight-year mandatory maximum prison term. Rather, Thomas received a

shorter, six-year prison term. Therefore, appellant maintains that his sentence should be

modified to more closely reflect the prison term imposed on Thomas. We find no merit to this

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argument.

{¶ 10} We review felony sentences pursuant to the standard of review set forth in R.C.

2953.08(G)(2) to determine whether the imposition of those sentences is clearly and

convincingly contrary to law. State v. Stamper, 12th Dist. Butler No. CA2012-08-166, 2013-

Ohio-5669, ¶ 9. A sentence is not clearly and convincingly contrary to law where the record

supports the trial court's findings under R.C. 2929.14(C)(4) and where the trial court

considers the purposes and principles of R.C. 2929.11, as well as the factors listed in R.C.

2929.12, properly applies postrelease control, and sentences appellant within the permissible

statutory range. Id.

{¶ 11} In the present case, appellant was convicted on two counts for possession of

marijuana in violation of R.C. 2925.11(A) and trafficking in marijuana in violation of R.C.

2925.03(A)(2), both second-degree felonies. The trial court then merged the two counts

together and the state elected to proceed on the trafficking charge. Pursuant to the version

of R.C. 2929.14 in effect at the time of appellant's sentencing, a second-degree felony was

punishable by a prison term of two, three, four, five, six, seven, or eight years. Furthermore,

because the jury made an additional finding that appellant was trafficking marijuana in an

amount that equaled or exceeded 20 thousand grams, the trial court was also required to

sentence appellant pursuant to former R.C. 2925.11(C)(3)(f), which provided:

Except as otherwise provided in this division, if the amount of the
drug involved equals or exceeds twenty thousand grams,
trafficking in marihuana is a felony of the second degree, and the
court shall impose as a mandatory prison term the maximum
prison term prescribed for a felony of the second degree.

Accordingly, the trial court's imposition of an eight-year prison term fell within the permissible

statutory range. Moreover, because of the clear language contained in R.C.

2925.11(C)(3)(f), the trial court was required to sentence appellant to an eight-year prison

term.

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{¶ 12} The record also reflects the trial court considered all relevant seriousness and

recidivism factors set forth in R.C. 2929.11 and R.C. 2929.12. In the judgment entry of

sentencing, the trial court expressly noted:

The Court inquired if the Defendant had anything to say in
mitigation regarding the sentence. The Court has considered the
record, oral statements, any victim impact statement and
presentence report prepared, as well as the principles and
purposes of sentencing under R.C. §2929.11, and has balanced
the seriousness and recidivism factors under R.C. §2929.12.

The Court further finds the Defendant is not amenable to an
available community control sanction and that prison is
consistent with the purposes and principles of R.C. §2929.11.

{¶ 13} On appeal, appellant focuses on the fact that his prison term is longer than the

prison term imposed on Thomas to support his motion to modify or reduce sentence.

Appellant complains he received a longer prison term than Thomas in spite of the fact that

Thomas absconded from custody and evaded authorities after the charges were brought in

Warren County. Therefore, appellant argues an inequality and disparity exists between his

sentence and Thomas' sentence. As such, appellant argues that his sentence should be

modified to be equal to or less than the sentence imposed on Thomas.

{¶ 14} Appellant correctly notes that "a sentence imposed for a felony shall be * * *

consistent with sentences imposed for similar crimes committed by similar offenders." R.C.

2929.11(B). However, as this court has previously acknowledged, consistency in sentencing

does not mean uniformity. State v. Micomonaco, 12th Dist. Butler No. CA2011-07-139,

2012-Ohio-5239, ¶ 49; State v. Hall, 10th Dist. Franklin No. 10AP-302, 2009-Ohio-5712, ¶

10. "A consistent sentence is not derived from a case-by-case comparison, but from the trial

court's proper application of the statutory sentencing guidelines." Micomonaco at ¶ 49. "In

other words, a defendant claiming inconsistent sentencing must demonstrate that the trial

court failed to properly consider the statutory sentencing factors and guidelines found in R.C.

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2929.11 and 2929.12." State v. Lang, 12th Dist. No. CA2011-03-007, 2011-Ohio-5742, ¶ 25.

{¶ 15} Based on our review of the evidence, we find no error in the trial court's denial

of appellant's motion to modify or reduce his prison sentence. Although, appellant's co-

defendant, Thomas, received a shorter prison term than appellant, that fact alone does not

require a finding that the trial court erred in its sentencing decision. See State v. Lee, 12th

Dist. Butler No. CA2012-09-182, 2013-Ohio-3404, ¶ 13 (a sentence is not contrary to law

because the trial court failed to impose a sentence that is the same as another offender who

committed similar conduct); State v. Isreal, 12th Dist. Butler No. CA2010-07-170, 2011-Ohio-

1474, ¶ 73. In this case, the record reflects the trial court properly considered all relevant

sentencing factors including, the purposes and principles of R.C. 2929.11, as well as the

factors listed in R.C. 2929.12 and the trial court's sentence was clearly within the permissible

statutory range for the offense. Because appellant was sentenced prior to the enactment of

H.B. 86, the trial court was required to impose a mandatory maximum eight-year prison term.

As such, appellant's sentence is not contrary to law and the trial court did not err in denying

appellant's motion to modify or reduce his prison sentence. Therefore, appellant's first

assignment of error is overruled.

{¶ 16} Assignment of Error No. 2:

{¶ 17} APPELLANT WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO A FAIR

TRIAL DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL.

{¶ 18} In his second assignment of error, appellant alleges he was denied effective

assistance of counsel. For the first time on appeal, appellant essentially argues his trial

counsel was ineffective for failing to seek a new trial after Thomas had been captured, in

order for appellant to be retried jointly with Thomas. Appellant's argument is without merit.

{¶ 19} "To establish a claim of ineffective assistance of counsel, a defendant must

show that his or her counsel's actions were outside the wide range of professionally

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competent assistance, and that prejudice resulted by reason of counsel's actions." State v.

Ullman, 12th Dist. Warren No. CA2002-10-110, 2003-Ohio-4003, ¶ 43, citing Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). Accordingly, counsel's performance

will not be deemed ineffective unless (1) his counsel's performance was deficient in that it fell

below an objective standard of reasonableness, and (2) he was prejudiced by that deficient

performance in that there is a reasonable probability that, but for his counsel's deficient

performance, the outcome of his trial would have been different. State v. Russell, 12th Dist.

Butler No. CA2012-08-156, 2013-Ohio-3079, ¶ 49, citing Strickland at 687.

{¶ 20} We note appellant failed to raise the issue of ineffective assistance of counsel

in his motion to modify or reduce sentence. In his motion, appellant quoted numerous cases

involving the joinder of cases and stated the "intention[ ] of quoting the above case law in this

action, is to show some of the many circumstances and different situations, that co-

defendants have had their cases merged together and tried together." Appellant further

explained the "ending [sic] result of co-defendants having their cases merged together,

usually ends in those co-defendants receiving the same punishment." At no point did

appellant complain his counsel was ineffective for failing to seek a new trial following

Thomas' arrest. "It is well-settled that issues not raised in the trial court may not be raised for

the first time on appeal." State v. Abney, 12th Dist. Warren No. CA2004-02-018, 2005-Ohio-

146, ¶ 17, citing State v. Awan, 22 Ohio St.3d 120, 122 (1986); State v. Guzman-Martinez,

12th Dist. Warren No. CA2010-06-059, 2011-Ohio-1310, ¶ 9. Therefore, because appellant

did not specifically raise this issue with the trial court, this matter is waived and we need not

consider it for the first time on appeal.

{¶ 21} However, even if appellant's argument were properly raised, we would still

reach the same conclusion. It is well-established,"'[a]ttorneys need not pursue every

conceivable avenue; they are entitled to be selective.'" State v. Were, 118 Ohio St.3d 448,

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2008-Ohio-2762, ¶ 222, quoting State v. Murphy, 91 Ohio St.3d 516, 542 (2001).

Furthermore, "[c]ounsel is not deficient for failing to raise a meritless issue." State v.

Massey, 10th Dist. Franklin No. 12AP-649, 2013-Ohio-1521, ¶ 13.

{¶ 22} Based on our review of the record and the argument raised in appellant's brief,

we fail to see any merit to appellant's assignment of error. As we have previously stated,

"the petitioner bears the burden to submit evidentiary materials demonstrating the lack of

competent counsel and that the defense was prejudiced by counsel's ineffectiveness." State

v. Hackney, 12th Dist. Clermont No. CA96-08-071, 1997 WL 10916, *1 (Jan. 13, 1997).

While appellant complains his counsel was ineffective for failing to request a retrial following

Thomas' transfer to Warren County, appellant fails to present any evidence that: (1) his

counsel was notified when Thomas was placed in custody and returned to Warren County, or

(2) appellant notified counsel of his interest in seeking a new trial upon Thomas' return to

Warren County. Indeed, appellant does not even indicate whether his trial counsel, appellate

counsel, or some other counsel of record was ineffective for the alleged failure to request a

retrial, nor has appellant presented any evidence that he was still represented by counsel at

the time he alleges his counsel should have filed the motion for retrial.

{¶ 23} Furthermore, the record in this case reflects that appellant failed to raise the

issue of ineffective assistance of counsel until more than five years after his conviction and
1
more than four years after the completion of his direct appeal. Finally, while appellant

1 We also note that if appellant had raised this issue properly, his motion would be considered a motion for
postconviction relief. See State v. Reynolds, 79 Ohio St.3d 158 (1997), syllabus; State v. Rose, 12th Dist. Butler
No. CA2012-03-050, 2012-Ohio-5957, ¶ 14. Pursuant to R.C. 2953.21(A)(2), a motion for postconviction relief
"shall be filed no later than one hundred eighty days after the date on which the trial transcript is filed in the court
of appeals in the direct appeal of the judgment of conviction," unless appellant meets the requirements for a
delayed petition under R.C. 2953.23. In the present case, appellant was convicted of possession of marijuana
and trafficking marijuana on July 11, 2008, sentenced on July 14, 2008, and the record was completed on
November 5, 2008. However, appellant did not file his "motion for disparity of sentence pursuant to Crim.R. 47
and Crim.R. 57(A)(1)(2)," until May 2, 2013. Thus, appellant's motion was clearly filed beyond the 180-day time
limitation set forth in R.C. 2953.21. Furthermore, appellant has made no attempt to argue, much less establish,
that any exception for a delayed petition under R.C. 2953.23 applied in the present case. State v. Banks, 10th
Dist. Franklin No. 12AP-96, 2012-Ohio-3770, ¶ 10; State v. Czaplicki, 2d Dist. Montgomery No. 16589,1998 WL

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argues that Thomas' presence in a retrial would exculpate him of any wrongdoing, appellant

fails to offer any more than conclusory, self-serving allegations in support of his theory.

Hackney at *1 ("[a]lthough appellant's affidavit makes several self-serving claims, he provides

no evidence in support of his claims of ineffective assistance of counsel"). Therefore, we fail

to see how appellant's counsel was deficient or that appellant was in any way prejudiced by

his counsel's actions. Accordingly, appellant's second assignment of error is overruled.

{¶ 24} Judgment affirmed.

RINGLAND, P.J., and S. POWELL, J., concur.

272034 (May 29, 1998) ("the 'facts' contemplated by this provision are the historical facts of the case, which
occurred up to and including the time of conviction").

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