State v. Bailey

[Cite as State v. Bailey, 2014-Ohio-5129.]

COURT OF APPEALS
ASHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES:
:
: Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
: Case No. 14-COA-008
:
BOBBY A. BAILEY :
:
:
Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Ashland County Court
of Common Pleas, Case No. 13-CRI-
113

JUDGMENT: AFFIRMED

DATE OF JUDGMENT ENTRY: November 17, 2014

APPEARANCES:

For Plaintiff-Appellee: For Defendant-Appellant:

CHRISTOPHER R. TUNNELL ERIN N. POPLAR
ASHLAND CO. PROSECUTOR DANIEL D. MASON
PAUL T. LANGE POPLAR & MASON, LLC
110 Cottage St., 3rd Floor 103 Milan Ave., Suite 6
Ashland, OH 44805 Amherst, OH 44001
Ashland County, Case No. 14-COA-008 2

Delaney, J.

{¶1} Defendant-appellant Bobby A. Bailey appeals from the February 26, 2014

Judgment Entry--Sentencing of the Ashland County Court of Common Pleas. Appellee

is the state of Ohio.

FACTS AND PROCEDURAL HISTORY

{¶2} A statement of the facts underlying appellant’s criminal convictions is not

relevant to our resolution of this appeal. This case arose when appellant, sometimes in

league with others, stole a number of items from at least three victims to facilitate his

heroin habit. On several occasions he entered into homes or a garage to steal the

items or assisted others in doing so.

{¶3} Appellant was charged by indictment with nine criminal offenses as

follows: Count I, complicity to burglary [R.C. 2923.03(A)(2)/R.C. 2911.12(A)(2), a felony

of the second degree]; Count II, complicity to theft from an elderly person [R.C.

2923.03(A)(2)/R.C. 2913.02(A)(1), a felony of the fifth degree]; Count III, complicity to

theft [R.C. 2923.03(A)(2)/R.C. 2913.02(A)(1), a felony of the fifth degree]; Count IV,

complicity to burglary [R.C. 2923.03(A)(2)/R.C. 2911.12(A)(3), a felony of the third

degree]; Count V, complicity to petty theft [R.C. 2923.03(A)(2)/R.C. 2913.02(A)(1), a

misdemeanor of the first degree]; Count VI, possession criminal tools [R.C. 2923.24(A),

a felony of the fifth degree]; Count VII, tampering with evidence [R.C. 2921.12(A)(1), a

felony of the third degree]; Count VIII, breaking and entering [R.C. 2911.13(A), a felony

of the fifth degree]; and Count IX, petty theft [R.C. 2913.02(A)(1), a misdemeanor of the

first degree].
Ashland County, Case No. 14-COA-008 3

{¶4} Appellant and appellee entered into a negotiated plea agreement. On

December 10, 2013, appellant appeared before the trial court, withdrew his pleas of not

guilty, and entered pleas of guilty to Count I, complicity to burglary, a felony of the third

degree (amended by appellee from a second-degree felony); Count II, complicity to theft

from an elderly person; Count IV, complicity to burglary; Count V, complicity to petty

theft; Count VII, tampering with evidence; and Count VIII, breaking and entering. The

trial court advised appellant of the possible range of sentences for each offense.

Appellee dismissed Counts III, VI, and IX.

The P.S.I.

{¶5} Appellant submitted to a presentence investigation (P.S.I.) which is in the

record on appeal. Appellant self-reported a history of substance abuse including, e.g.,

crack cocaine through 2009. He stated he was under the influence of heroin during the

offenses in the instant case and admitted to using as much as two to two-and-a-half

grams per week. He has been in treatment previously for heroin addiction which was

unsuccessful. Appellant also sought suboxone therapy which was unsuccessful. Upon

his arrest on the charges sub judice, Appellant acknowledged hiding a syringe near one

of his truck tires.

{¶6} The P.S.I. notes the following seriousness factors pursuant to R.C.

2929.12(B): the injury to the victim was worsened by the physical or mental condition or

age of the victim because one of the victims was an elderly adult; and, the offender’s

relationship with the victim facilitated the offense because at least one of the victims

was a cousin of appellant’s girlfriend.

{¶7} None of the “less serious” factors pursuant to R.C. 2929.12(C) are noted.
Ashland County, Case No. 14-COA-008 4

{¶8} The P.S.I. notes the following factors indicating recidivism is likely

pursuant to R.C. 2929.12(D): the offender’s history of criminal convictions including

receiving stolen property, open container, and unauthorized use of property; and

appellant’s demonstrated pattern of drug use related to the offenses, including his

refusal to acknowledge substance abuse issues and to seek and comply with treatment.

{¶9} One factor indicates recidivism is unlikely pursuant to R.C. 2929.12(E):

appellant was not adjudicated a delinquent child and has no known juvenile record.

Sentencing

{¶10} On February 21, 2014, appellant appeared before the trial court for

sentencing. The court imposed an aggregate prison term of 48 months, which is the

total of three twelve-month consecutive terms and two six-month consecutive terms. An

additional 90-day term is ordered to be served concurrently. The trial court stated the

following regarding consecutive sentences:

* * * *.

THE COURT: * * * *.

Based on your criminal history and your self-reporting of

ongoing criminal activity and the Court’s belief that you pose a poor

risk of rehabilitation * * *, I am finding that consecutive service of

these sentencings are necessary to protect the public from future

crime, and I am further finding that consecutive sentencings of

these (inaudible) and the time that the Court is imposing on each

specific count are not disproportionate to the seriousness of your

conduct and the danger you pose to the public, and I am further
Ashland County, Case No. 14-COA-008 5

finding that your history of criminal conduct convicted or self-

reported demonstrates that consecutive Sentencings are necessary

to protect the public from future crime.

* * * *.

T. (Sent.) 22.

{¶11} Appellant now appeals from the February 26, 2014 Judgment Entry--

Sentencing.

{¶12} Appellant raises four assignments of error:

ASSIGNMENTS OF ERROR

{¶13} “I. THE TRIAL COURT ERRED WHEN IT IMPOSED CONSECUTIVE

SENTENCES SUCH THAT THE AGGREGATE SENTENCE EXCEEDED THE

MAXIMUM PRISON TERM ALLOWED BY OHIO REVISED CODE 2929.14(A) FOR

THE MOST SERIOUS OFFENSE OF WHICH THE APPELLANT WAS CONVICTED,

36 MONTHS.”

{¶14} “II. THE COURT ERRED IN ORDERING A PRISON SENTENCE

RATHER THAN COMMUNITY CONTROL AND CONSECUTIVE RATHER THAN

CONCURRENT PRISON SENTENCES FOR A FIRST-TIME FELONY EXPRESSLY

BASED UPON IMPROPER STATEMENTS BY THE PROSECUTING ATTORNEY.”

{¶15} “III. IN THE ALTERNATIVE, APPELLANT WAS DENIED EFFECTIVE

ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH

AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I,

SECTION 10 OF THE OHIO CONSTITUTION BECAUSE HIS COUNSEL DID NOT
Ashland County, Case No. 14-COA-008 6

OBJECT TO THE PROSECUTING ATTORNEY’S IMPROPER REMARKS AT

SENTENCING.”

{¶16} “IV. THE COURT ERRED IN ORDERING CONSECUTIVE PRISON

SENTENCES AS THE IMPOSITION OF SUCH SENTENCES PLACES AN

UNNECESSARY BURDEN ON STATE RESOURCES.”

ANALYSIS

I., II., IV.

{¶17} Appellant’s first, second, and fourth assignments of error are related and

will be considered together. Appellant argues the trial court erred in imposing

consecutive sentences. We disagree.

The Standard of Review

{¶18} In State v. Kalish, 120 Ohio St.3d 23, 896 N.E.2d 124, 2008–Ohio–4912,

the Ohio Supreme Court established a two-step procedure for reviewing a felony

sentence. 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 the first step is

satisfied, the second step requires the trial court's decision be reviewed under an

abuse-of-discretion standard. Id.

{¶19} We acknowledge this district still relies upon Kalish’s two-step standard of

review.1 We recognize this approach has been followed by some districts2 and rejected

1
See, e.g., State v. Nugent, 5th Dist. Guernsey No. 13 CA 40, 2014-Ohio-3848; State v.
Salim, 5th Dist. Delaware No. 14 CAA 01 0005, 2014-Ohio-3602; State v. Shuster, 5th
Dist. Morgan Nos. 13AP0001, 13AP0002, 2014-Ohio-3486, State v. Picard, 5th Dist.
Richland No. 13-CA-95, 2014-Ohio-2924.
Ashland County, Case No. 14-COA-008 7

by others.3 Kalish is a plurality opinion and thus of “questionable precedential value.”

State v. Venes, 2013–Ohio–1891, 992 N.E.2d 453, ¶ 9 (8th Dist.), citing Kraly v.

Vannewkirk, 69 Ohio St.3d 627, 633, 635 N.E.2d 323 (1994). Nevertheless, its two-step

analysis has provided appellate courts with a meaningful framework for evaluating

felony sentences, permitting us to honor the sentencing discretion of trial courts while

ensuring those sentences comply with applicable statutes. The appellate courts which

now reject the Kalish two-step standard of review find only R.C. 2953.08(G)(2) is

applicable and the abuse-of-discretion standard of review is no longer allowed.

{¶20} R.C. 2953.08(G)(2) provides two grounds for an appellate court to

overturn the imposition of consecutive sentences: (1) the sentence is “otherwise

contrary to law”; or (2) the appellate court, upon its review, clearly and convincingly

finds that “the record does not support the sentencing court’s findings” under R.C.

2929.14(C)(4).

{¶21} The presumption in Ohio is that sentencing is to run concurrent, unless the

trial court makes the required findings for imposing consecutive sentence set forth in

R.C. 2929.14(C)(4). See, R.C. 2929.41(A).

{¶22} O.R.C. 2929.14(C) states:

(4) If multiple prison terms are imposed on an offender for

convictions of multiple offenses, the court may require the offender

2
See, e.g., State v. Hill, 7th Dist. Mahoning No. 13 MA 1, 2014-Ohio-919, infra; State v.
Nguyen, 4th Dist. Athens No. 12 CA 14, 2013-Ohio-3170; State v. Clayton, 9th Dist.
Summit No. 26910, 2014-Ohio-2165.
3
See, e.g., State v. White, 1st Dist. Hamilton No. C-130114, 2013-Ohio-4225, 997
N.E.2d 629; State v. Rodefer, 2nd Dist. Montgomery Nos. 25574, 25575, 25576, 2013-
Ohio-5759, 5 N.E.2d 1069; State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-
1891, 992 N.E.2d 453.
Ashland County, Case No. 14-COA-008 8

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 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) The harm caused by the multiple offenses was so great or

unusual that no single prison terms for any of the offenses

committed as part of a single course 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.

{¶23} 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 to the felony sentencing statutes now require a trial court

to make specific findings when imposing consecutive sentences.

{¶24} The Ohio Supreme Court recently addressed the requirements for

imposing consecutive sentences in a comprehensive fashion, finding a trial court must
Ashland County, Case No. 14-COA-008 9

make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing and

incorporate its findings into its sentencing entry; the trial court has no obligation to state

reasons to support its findings. State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177,

16 N.E.3d 659, syllabus. The Court further explained “a word-for-word recitation of the

language of the statute is not required, and as long as the reviewing court can discern

that the trial court engaged in the correct analysis and can determine that the record

contains evidence to support the findings, consecutive sentences should be upheld.” Id.

at ¶ 29.

The Record Supports Consecutive Sentences

{¶25} Appellant argues his consecutive sentences are contrary to law because

the total aggregate sentence exceeds the maximum term allowable for appellant’s most

serious offense. A trial court has discretion to impose any sentence within the statutory

range. State v. Mathis, 109 Ohio St.3d 54, 2006–Ohio–855, 846 N.E.2d 1. The

sentence imposed here is within the range permitted by law for the second and fifth

degree-felonies upon which Appellant was convicted and in fact, are in the low end of

the range.

{¶26} Appellant further argues the trial court based the sentence upon

improper statements by the prosecutor, including amendment of the count representing

the offense against the elderly victim. Appellant also takes issue with the emphasis the

trial court placed on his drug abuse and voluntary admissions contained within the

P.S.I., but such information is solidly relevant to the sentencing analysis. Evidence of

other crimes, including crimes that never result in criminal charges being pursued, or

criminal charges that are dismissed as a result of a plea bargain, may be considered at
Ashland County, Case No. 14-COA-008 10

sentencing. State v. Starkey, 7th Dist. Mahoning No. 06 MA 110, 2007-Ohio-6702, ¶ 17,

citing State v. Cooey, 46 Ohio St.3d 20, 35, 544 N.E.2d 895 (1989). Furthermore, what

the defendant is originally charged with and whether the charge is reduced in exchange

for a plea is relevant to the court in determining the appropriate sentence. State v. Hill, 7

th Dist. Mahoning No. 13 MA 1, 2014-Ohio-919, ¶ 35. Our review of a felony sentence

includes: (1) the P.S.I.; (2) the trial court record; and (3) any oral or written statements

made to or by the court at the sentencing hearing. R.C. 2953.08(F). Allegations against

an offender which never resulted in criminal charges may be contained within a P.S.I.

Cooey, 46 Ohio St.3d at 35. This information is part of a defendant's social history and

worthy of consideration by the courts during the sentencing phase. Id.

{¶27} Appellant also argues his consecutive sentences place an unnecessary

burden on state resources. R.C. 2929.11(A) provides:

A court that sentences an offender for a felony shall be guided by

the overriding purposes of felony sentencing. The overriding

purposes of felony sentencing are to protect the public from future

crime by the offender and others and to punish the offender using

the minimum sanctions that the court determines accomplish those

purposes without imposing an unnecessary burden on state or local

government resources. To achieve those purposes, the sentencing

court shall consider the need for incapacitating the offender,

deterring the offender and others from future crime, rehabilitating

the offender, and making restitution to the victim of the offense, the

public, or both.
Ashland County, Case No. 14-COA-008 11

{¶28} As we noted in State v. Ferenbaugh, 5th Dist. Ashland No. 03COA038,

2004–Ohio–977 at ¶ 7, “[t]he very language of the cited statute grants trial courts

discretion to impose sentences. Nowhere within the statute is there any guideline for

what an ‘unnecessary burden’ is.” Moreover, in State v. Shull, 5th Dist. Ashland

No.2008–COA036, 2009–Ohio–3105, we reviewed a similar claim and found that,

although burdens on state resources may be a relevant sentencing criteria, state law

does not require trial courts to elevate resource conservation above seriousness and

recidivism factors. Shull, at ¶ 22, citing State v. Ober, 2nd Dist. No. 97CA0019, 1997

WL 624811 (October 10, 1997).

{¶29} Appellant victimized multiple people, including an elderly woman and his

girlfriend’s cousin, stealing from them to fuel what was estimated to be a $300-per-week

heroin habit. Appellant is demonstrably unwilling to treat this habit in a meaningful way.

Nothing in the record indicates appellant would not be willing to victimize others to feed

this habit in the future. Appellant has not demonstrated that a prison term in the instant

case is an unnecessary burden on state and local resources.

{¶30} In this case, the trial court noted factors it considered at sentencing, and

specifically stated that it considered the purposes and principles of sentencing under

R.C. 2929.11, as well as the sentencing factors in R.C. 2929.12. The transcript of the

sentencing hearing and judgment entry clearly indicate that the trial court engaged in

the appropriate analysis and made the required findings under R.C. 2929.14(C)(4).

Rather than establishing error, the record supports the trial court’s findings for imposing

consecutive sentences. Appellant’s first, second, and fourth assignments of error are

therefore overruled.
Ashland County, Case No. 14-COA-008 12

III.

{¶31} In his third assignment of error, appellant argues he received ineffective

assistance of counsel because counsel failed to object to the allegedly improper

statements of the prosecutor at sentencing. We disagree.

{¶32} 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). “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.

{¶33} 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.

{¶34} The objectionable statements at sentencing identified by appellant include

that appellant already received his “break,” so to speak, because appellee amended the

second-degree felony to a third-degree felony. Appellant cites no authority supporting
Ashland County, Case No. 14-COA-008 13

his argument this is an improper statement; as discussed supra, the trial court may

consider reduced charges in sentencing. Appellant also points to the prosecutor’s

generalization that appellant committed other uncharged crimes but this information was

contained within the P.S.I. which the trial court was required to consider. Finally, the

prosecutor characterized the elderly victim as a nice person and lifelong community

resident; again, appellant offers no authority supporting his conclusion this statement

was improper and this information, too, could be gained from the P.S.I. which indicates

appellant took advantage of the victim’s kindness to him.

{¶35} We find, in short, appellant has failed to demonstrate any error by defense

trial counsel in failing to object to any of the above statements, much less that the

outcome of the proceeding have been different but for counsel’s failure to object.

{¶36} Appellant’s third assignment of error is overruled.
Ashland County, Case No. 14-COA-008 14

CONCLUSION

{¶37} Appellant’s four assignments of error are overruled and the judgment of

the Ashland County Court of Common Pleas is affirmed.

By: Delaney, J. and

Gwin, P.J.

Baldwin, J., concur.