State v. Jones

[Cite as State v. Jones, 2016-Ohio-688.]

Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION
No. 102260

STATE OF OHIO
PLAINTIFF-APPELLEE

vs.

LISA JONES

DEFENDANT-APPELLANT

JUDGMENT:
AFFIRMED

Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-12-568908-A and CR-12-568910-A

BEFORE: Celebrezze, J., Jones, A.J., and S. Gallagher, J.

RELEASED AND JOURNALIZED: February 25, 2016
ATTORNEY FOR APPELLANT

Carmen P. Naso
Milton A. Kramer Law Clinic
Case Western Reserve University
11075 East Blvd.
Cleveland, Ohio 44106

FOR APPELLANT

Zeb Khan
Matthew Martin
Legal Interns
Milton A. Kramer Law Clinic
Case Western Reserve University
11075 East Blvd.
Cleveland, Ohio 44106

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Daniel T. Van
Frank Romeo Zeleznikar
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

{¶1} Defendant-appellant Lisa Jones (“Jones”) brings this appeal challenging the

trial court’s sentences for arson, aggravated arson, and menacing by stalking.

Specifically, Jones argues that she was denied effective assistance of counsel at her

resentencing hearing. After a thorough review of the record and law, this court affirms.

I. Factual and Procedural History

{¶2} The instant criminal proceedings arose after Jones harassed and threatened

her ex-boyfriend and set fire to his house. The fire that Jones set also burned four houses

surrounding her ex-boyfriend’s house.

{¶3} In CR-12-568908-A, Jones pled guilty to one count of aggravated arson, in

violation of R.C. 2909.02(A)(2), and four counts of arson, in violation of R.C.

2909.03(A)(1). In CR-12-568910-A, Jones pled guilty to one count of menacing by

stalking, in violation of R.C. 2903.211(A)(1).

{¶4} On February 20, 2013, the trial court sentenced Jones to an eight-year

prison term for aggravated arson, 18 months for each of the four arson counts, and 18

months for menacing by stalking. The trial court ordered Jones to serve all of the counts

consecutively, for a total of 15 and one-half years in prison at the Ohio Reformatory for

Women.

{¶5} In State v. Jones, 8th Dist. Cuyahoga No. 99703, 2014-Ohio-382, Jones

challenged the trial court’s sentence, arguing (1) the trial court did not make the R.C.

2929.14(C)(4) findings before imposing consecutive sentences, and (2) the trial court’s
statements at the sentencing hearing conflict with the court’s sentencing entries regarding

its opposition to her being placed in any form of early release or transitional control. Id.

at  1. This court held that the trial court complied with R.C. 2929.14(C)(4) and made

the findings necessary to impose consecutive sentences. Id. at  23. However, this

court held that the trial court erred by not stating any reasons for opposing Jones’s

participation in intensive programs as required by R.C. 2929.19(D), as there was no

indication that Jones had been rendered ineligible for intensive program prisons under

R.C. 5120.032. Id. at  28. Accordingly, this court remanded the matter to the trial

court for resentencing.

{¶6} In State v. Jones, 8th Dist. Cuyahoga No. 99703, 2014-Ohio-1634, upon

reconsideration, this court vacated its decision in State v. Jones, 2014-Ohio-382, and held

that the imposition of consecutive sentences was contrary to law:

The sentencing transcript shows that the court did not make the third
finding under R.C. 2929.14(C)(4)(a)-(). The court said nothing about
whether Jones committed her offenses while awaiting trial; that the harm
caused by her multiple offenses was so great or unusual that no single
prison term could adequately reflect the seriousness of her conduct; or that
her history of criminal conduct showed that consecutive sentences were
necessary to protect the public from future crime by Jones. Although the
court noted in its first finding that consecutive sentences were necessary to
protect the public and to punish Jones, the “necessary to protect the public
from future crime” finding under section (C)(4)() must be made relative to
the defendant's criminal history. We therefore find that the court failed to
comply with R.C. 2929.14(C)(4) so the imposition of consecutive sentences
was contrary to law.

Id. at  25.
 {¶7} Furthermore, this court restated that the trial court erred by not stating any

reasons for opposing Jones’s participation in intensive programs as required by R.C.

2929.19(D). Id. at  29. On remand, this court instructed the trial court “to reconcile any

ambiguity between its statements and the journal entry, and for the court to make the

required finding that gives reasons for disapproving Jones’s participation in any early

release or transitional control programs if the court so opposes.” Id.

{¶8} On October 28, 2014, the trial court held a resentencing hearing. Jones’s

defense counsel attempted to call her minister to address the court. The trial court denied

defense counsel’s request, ruling “[t]his is a resentencing on a technical issue that

requires me to make findings. Since victims are not invited to participate today, I’m not

taking any outside comments.” Jones informed the trial court that she participated in the

anger management, anger resolution, total forgiveness, healthy relationships, and dog

programs in prison. Jones informed the trial court that she has five tickets for

disobeying an order and that she has gone to “the hole” twice for disobeying orders. The

trial court incorporated all of the prior proceedings — including both the change of plea

hearings and sentencing hearings — from CR-568901 and CR-568910.

{¶9} The trial court resentenced Jones to a prison term of eight years for

aggravated arson and 18 months for each of the four arson counts. The trial court chose

to “give [Jones] the benefit of the doubt” and ran the aggravated arson and arson counts

concurrent to each other. Furthermore, the trial court reduced Jones’s sentence for

menacing by stalking from 18 months to 15 months and ordered the sentence consecutive
to the aggravated arson and arson counts, for a total of eight years and 15 months at the

Ohio Reformatory for Women. The trial court ordered up to three years of postrelease

control on all counts. Jones’s defense counsel objected to the trial court’s postrelease

control order, arguing that it violated the separation of powers “act” under both the

United States Constitution and the Constitution of the State of Ohio. The trial court

credited Jones with time served.

{¶10} Regarding its R.C. 2929.14(C)(4) findings, the trial court stated:

The Court further finds consecutive sentences are necessary as multiple
offenses between the two cases were committed as part of one or more
courses of conduct, and the harm caused by these offenses was so great or
unusual that no single prison term will adequately reflect the seriousness of
your conduct.

Again, the Court had incorporated its prior remarks and findings regarding
Jones’s sentence.

{¶11} Furthermore, the trial court neither made a recommendation nor any findings

regarding Jones’s placement in transitional control. The trial court stated that it only

opposes transitional control in “the most unusual cases.” The trial court left the issue of

Jones’s placement in transitional control or intensive prison program (“IPP”) to the

warden.

{¶12} Jones filed the instant appeal assigning one error for review:

I. Jones was denied due process of law under the 6th and 14th Amendments
to the United States Constitution and Ohio Constitution I Section 10 when
her counsel failed in his duty to investigate and provide necessary and
relevant mitigation, resulting in ineffective assistance of counsel at her
resentencing.

II. Law and Analysis
 {¶13} In her sole assignment of error, Jones argues that she was denied effective

assistance of counsel during the proceedings below. Jones specifically argues that her

trial counsel was ineffective in failing to investigate and introduce mitigation evidence at

the trial court’s resentencing hearing. For the reasons that follow, we disagree.

{¶14} Reversal of a conviction for ineffective assistance of counsel requires a

defendant to show that (1) counsel’s performance was deficient, and (2) the deficient

performance prejudiced the defense. State v. Smith, 89 Ohio St.3d 323, 327, 731 N.E.2d

645 (2000), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80

L.Ed.2d 674 (1984). Defense counsel’s performance must fall below an objective

standard of reasonableness to be deficient in terms of ineffective assistance of counsel.

See State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989). Moreover, the

defendant must show that there exists a reasonable probability that, were it not for

counsel’s errors, the results of the proceeding would have been different. State v. White,

82 Ohio St.3d 16, 23, 693 N.E.2d 772 (1998).

{¶15} To establish ineffective assistance of counsel, a defendant must show (1)

deficient performance by counsel, i.e., performance falling below an objective standard of

reasonable representation, and (2) prejudice, i.e., a reasonable probability that but for

counsel’s errors, the proceeding’s result would have been different. Strickland at

687-688, 694; Bradley at paragraphs two and three of the syllabus.

{¶16} In evaluating a claim of ineffective assistance of counsel, a court must give

great deference to counsel’s performance. Strickland at 689. “A reviewing court will
strongly presume that counsel rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.” State v. Pawlak, 8th

Dist. Cuyahoga No. 99555, 2014-Ohio-2175, ¶ 69.

{¶17} In the instant matter, Jones’s counsel was appointed on October 15, 2014, to

represent her at the trial court’s October 28, 2014 resentencing hearing. At resentencing,

counsel informed the trial court that he was unable to access some of the information in

the case: “although I have tried to access the information in the case that had previously

been before this Court, I have not been able to do so because of the [sic] not authorized at

that particular juncture.” Counsel did not specify what information he was unable to

access.

{¶18} Jones argues that defense counsel (1) failed to investigate and rebut the

victims’ testimony and information that the trial court relied on during the resentencing

hearing, (2) failed to file a motion to transfer the matter to the mental health court for

resentencing, and (3) failed to access her mental health information and seek to mitigate

her sentence based on a change in her mental health status.

{¶19} Jones has the burden of demonstrating that her counsel rendered ineffective

assistance by failing to conduct an adequate investigation. State v. Hunter, 131 Ohio

St.3d 67, 82, 960 N.E.2d 955 (2011), citing Strickland at 687.

{¶20} After reviewing the record, we cannot say that the performance of Jones’s

counsel was deficient because there is no indication as to what counsel could have
presented at resentencing regarding the victims’ statements and Jones’s mental health that

the trial court was not already aware of.

A. Victims’ Statements

{¶21} First, Jones argues that counsel’s assistance was ineffective because he

failed to investigate and rebut information that the prosecution and victims provided to

the trial court at the original sentencing hearing.

{¶22} During her original sentencing hearing, the prosecutor informed the trial

court that the fire set by Jones affected five different residences. The prosecutor

presented photographs depicting the extent of the damage to the residences.

Furthermore, the prosecutor introduced insurance documents detailing the victims’ total

losses and deductible payments. The prosecutor emphasized that Jones set these fires

very early in the morning and that there were people inside most of the houses that were

damaged. Two of Jones’s ex-boyfriend’s daughters detailed the impact that Jones’s

actions had on their family. However, Jones disputed the number of victims, number of

houses damaged, and the extent of the damage caused by the fire, alleging that the victims

provided false information to the trial court.

{¶23} The first daughter (“daughter 1”) stated that the family owns six houses on

the street where the incident took place. Daughter 1 stated that three of the houses were

damaged by the fire set by Jones, and that there were people in two or three of the houses.

Daughter 1 stated that the other three houses were across the street. Daughter 1
explained that Jones has repeatedly affected her family in a “very negative way” and that

the fire was “devastating”:

My childhood home, with all its fine memories unexpectedly being burned
to ashes; and my own rental property that I spend the last several years
working hard to achieve the American dream of home ownership being
completely ruined and fire damaged beyond a livable condition.

However, Jones disagreed with daughter 1’s statement, alleging that “the memories are

there in their mind. There was nothing in that house. [The house] was a tool shed.”

Finally, Jones insinuated that daughter 1 provided false information to the trial court

because she disliked her:

[she] did not like me from jump street. And by me being on alcohol, an
alcoholic, honestly, I wasn’t on my medication, you know, it gave her the
ammunition against me.

{¶24} The second daughter (“daughter 2”) stated that Jones’s ex-boyfriend was

staying with her aunt on the morning of the fire. However, Jones disagreed, alleging that

the ex-boyfriend “has a police statement stating he was not with his aunt” and that “he

was living with his new girlfriend that he had dumped me for.” Daughter 2 stated that

several calls were made to the police about Jones’s conduct. However, Jones disagreed:

And then they called the police numerous of times. When you call the
police, there’s a record of it. She ca — [the ex-boyfriend’s daughter]
called the police one time that me and [the ex-boyfriend] was having a
disagreement, as relationships do, and she came across the street and
escalated the argument.

Daughter 2 further stated that her dad, Jones’s ex-boyfriend, is the type of person who

would open his door and let the “neighborhood winos” stay at his house when it was cold

outside. However, Jones disagreed:
 He did not open his door to the winos. My daughters are here, and they
can testify that I was living there with [her ex-boyfriend], with his mother,
in the house next door.

{¶25} Jones argues that the trial court accepted the prosecutor’s documentation

and the victims’ statements as true, even though the evidence was neither credible nor

admissible. Furthermore, Jones argues that defense counsel’s failure to object to or

explain any of the circumstances or inaccuracies in the victims’ statements constitutes

ineffective assistance of counsel under Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct.

2527, 156 L.E.2d 471 (2003). In Wiggins, the United States Supreme Court recognized

that an attorney’s failure to reasonably investigate the defendant’s background and

present mitigating evidence to the jury at sentencing can constitute ineffective assistance

of counsel. Id. at 521-522; see State v. Dean, Slip Opinion No. 2015-Ohio-4347, ¶ 284.

{¶26} In the instant matter, there was no showing that defense counsel did not

review or investigate the prosecution’s exhibits and the victims’ statements from the

original sentencing hearing. Furthermore, there is no indication that Jones’s allegations

have mitigating value. Nothing in the record indicates what evidence could have been

presented regarding the victims’ statements to the trial court at Jones’s sentencing

hearing. Establishing that the victims provided false information to the trial court would

require proof outside the record, such as title or tax records demonstrating the probable

testimony. Such a claim is not appropriately considered on a direct appeal. See State v.

Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶ 217; see also State v.

Madrigal, 87 Ohio St.3d 378, 391, 721 N.E.2d 52 (2000).
 {¶27} Accordingly, we reject this ineffectiveness claim.

B. Mental Health

{¶28} Jones further argues that defense counsel’s performance was deficient,

because counsel failed to file a motion to transfer the matter to the mental health court for

resentencing, and failed to discuss her mental health. Furthermore, Jones contends that

had her defense counsel accessed and introduced evidence regarding the change in her

mental health status at resentencing, she would not have received the maximum sentence

for aggravated arson.

{¶29} In Porter v. McCollum, 558 U.S. 30, 130 S.Ct. 447, 175 L.Ed.2d 398

(2009), the United States Supreme Court held that counsel’s failure to uncover and

present any evidence of the defendant’s mental health or mental impairment, family

background, or military service at capital sentencing was ineffective assistance of

counsel. Id. at 40. The court noted that counsel “did not even take the first step of

interviewing witnesses or requesting records.” Id. at 39. Furthermore, the court held

that the defendant was prejudiced by counsel’s deficient performance:

This is not a case in which the new evidence “would barely have altered the
sentencing profile presented to the sentencing judge.” Strickland, supra, at
700, 104 S. Ct. 2052, 80 L. Ed. 674. The judge and jury at Porter’s
original sentencing heard almost nothing that would humanize Porter or
allow them to accurately gauge his moral culpability. They learned about
Porter’s turbulent relationship with Williams, his crimes, and almost
nothing else. Had Porter’s counsel been effective, the judge and jury
would have learned of the “kind of troubled history we have declared
relevant to assessing a defendant’s moral culpability.” Wiggins, supra, at
535, 123 S. Ct. 2527, 156 L. Ed. 2d 471.

Id. at 41.
 {¶30} In Wiggins, the United States Supreme Court held that counsel “fell short of

*** professional standards” for not expanding their investigation beyond the presentence

investigation report and one set of records they obtained, particularly “in light of what

counsel actually discovered” in the records. Id. at 524-525. The court explained its

holding in light of the Strickland performance standards:

Strickland does not require counsel to investigate every conceivable line of
mitigating evidence no matter how unlikely the effort would be to assist the
defendant at sentencing. Nor does Strickland require defense counsel to
present mitigating evidence at sentencing in every case. Both conclusions
would interfere with the “constitutionally protected independence of
counsel” at the heart of Strickland. 466 U.S. at 689, 80 L.Ed.2d 674, 104
S.Ct. 2052. We base our conclusion on the much more limited principle
that “strategic choices made after less than complete investigation are
reasonable” only to the extent that “reasonable professional judgments
support the limitations on investigation.” Id. at 690-691, 80 L.Ed.2d 674,
104 S.Ct. 2052. A decision not to investigate thus “must be directly
assessed for reasonableness in all the circumstances.” Id. at 691, 80 L.Ed.2d
674, 104 S.Ct. 2052.

Id. at 533. The court emphasized that the mitigating evidence regarding defendant’s

“excruciating” life history, which counsel failed to discover and present, was powerful.

Id. at 537. Instead of hearing this evidence, the only mitigating factor that the jury heard

was that the defendant had no prior convictions. Id.

{¶31} In Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389

(2000), the United States Supreme Court held that defendant’s constitutional right to

effective assistance of counsel was violated when counsel “failed to conduct an

investigation that would have uncovered extensive records graphically describing

[defendant’s] nightmarish childhood.” Id. at 395. Counsel incorrectly thought that the
records were inaccessible under state law. Id. Furthermore, counsel failed to introduce

evidence that the defendant was “borderline mentally retarded” and did not advance

beyond the sixth grade. Id. at 396.

{¶32} In the instant matter, we initially note that the scope of the resentencing

hearing was limited to determining (1) whether consecutive sentences were necessary

under R.C. 2929.14(C)(4), and (2) whether the trial court opposed Jones’s participation in

any early release or transitional control programs under R.C. 2929.19(D).

{¶33} The trial court incorporated all of the prior proceedings — including the

information regarding Jones’s mental health and the mental health evaluations — into the

record at the resentencing hearing. Thus, unlike Porter, Wiggins, and Williams, the trial

court was aware of Jones’s mental health issues — both at the time of the original

sentencing hearing and at resentencing.

{¶34} Jones submitted to mental health evaluations, including both a sanity and a

competency evaluation, after her arraignment. The sanity evaluation concluded that

Jones suffered from bipolar disorder at the time of her offense, but that her mental disease

“did not prevent her from knowing the wrongfulness of the alleged behavior.”

Furthermore, the competency evaluation concluded that Jones was competent to stand

trial and found that, although Jones was not presenting with symptoms of psychosis at the

time of the evaluation, she was a candidate for transfer to the mental health docket.

{¶35} During the original sentencing hearing, Jones’s counsel informed the trial

court that Jones had been placed on medication while in jail and that her condition had
been stabilized. Counsel further stated that the person he initially met with in jail was a

“different person” than the person standing in court. Counsel informed the trial court

that Jones’s family has a history of drug and alcohol abuse. Counsel stated that the

evaluations indicate that Jones has been stabilized and has made progress on the

medication that she is taking. Finally, counsel stated that Jones is a “prime candidate”

for the mental health court.

{¶36} At the original sentencing hearing, the trial court was not convinced that

Jones would benefit from having her case transferred to the mental health docket, stating

that Jones’s mental health disorder is not an excuse for her behavior, and that it does not

sympathize with people who make a conscious choice to disregard a doctor’s

recommendation and not take medication as prescribed. Furthermore, the trial court

noted that Jones made a “conscious choice to not follow the doctor’s direction, to drink,

to not take your medication.”

{¶37} We further note that on direct appeal, this court held that Jones’s counsel’s

failure to file a motion to transfer the case to the mental health court at the original

sentencing was not ineffective assistance of counsel:

We have no basis for concluding that defense counsel’s failure to file a
motion to transfer the case to the mental health docket was the direct cause
of the court’s refusal to order the transfer. The psychiatric report was
prepared after arraignment, so at all events a transfer request based on the
contents of that report would have been discretionary with the court. The
report showed that Jones’s mental health stabilized considerably once she
began taking her medication. Defense counsel noted the same thing based
on his own interaction with Jones. To the court, this appeared to mean that
Jones could have avoided criminal involvement had she been compliant
with her medication, but that Jones made a “conscious choice” to not take
 her medication and instead consume alcohol. Given the court’s statements,
we cannot say that it would have been predisposed to order transfer to the
mental health docket had a formal motion for transfer been filed, so there is
no showing that but for defense counsel’s failure to file a motion, Jones’s
case would have been transferred to the mental health docket.

Jones, 2014-Ohio-1634, at ¶ 9.

{¶38} At resentencing, defense counsel was presumably referring to Jones’s

medical records when he informed the trial court that he could not access information in

the case. However, counsel did advise the trial court that Jones’s mental health was

improving with her new medication:

That is the learning process in which [Jones is] getting better. This new
medication is helping her. Obviously the articulation that she comes here
today, and conciliation, not coming into this courtroom raising hell, being a
hell raiser, things of that nature.

But she comes in a conciliatory manner, saying, I have asked for and
received the benefit of good treatment. It was a blessing in disguise, so to
speak, that going to Marysville has given me this new release on life. It
has given me perspectives.

{¶39} In addition to counsel’s statements, Jones also discussed her mental health

while speaking on her own behalf at resentencing. Jones claimed that she was not in a

“state of right mind” during her change of plea hearing. Jones stated that she was

grateful for the time she spent in prison because it allowed her to “get back into [her]

mental therapy.” Jones further stated that she was not taking the proper medication,

either at the time she committed the offense or at the time of her change of plea hearing.

Jones stated that her new medication has helped reduce her depression and nightmares
and helps with her bipolar disorder. Jones stated that she has received good medical

attention and care in prison, and that she is stable.

{¶40} After reviewing the record, we cannot say that defense counsel rendered

ineffective assistance of counsel by failing to file a motion to transfer the case to the

mental health court and failing to show a change in Jones’s mental health status. Based

on the trial court’s incorporation of the prior proceedings, the trial court had access to all

of the pertinent information regarding Jones’s mental health, the sanity and competency

evaluations, her medication, and the progress that she has made during her time in prison.

Furthermore, based on Jones’s statements at resentencing, the trial court was aware of

the alleged change in her mental health status and the progress she has made on her new

medication.

{¶41} Jones argues that counsel — both at the original sentencing and resentencing

hearings — showed a “lack of effort” similar to that of counsel in Porter, 558 U.S. 30,

130 S.Ct. 447, 175 L.Ed.2d 398. Specifically, Jones argues that her counsel (1) failed to

specify her mental issues at the time she committed the offenses and (2) failed to show

how those conditions changed since she committed the offenses. This argument is

entirely unsupported by the record. At her original sentencing hearing, Jones’s counsel

advised the trial court that she is stabilized, a “different person” from the time of her

arrest, and making progress on her new medication. Furthermore, at resentencing,

Jones’s counsel advised the trial court that she “is getting better” and that the new

medication is helping her.
 {¶42} Accordingly, we reject this ineffectiveness claim.

C. Prejudice

{¶43} Assuming, arguendo, that the failure of Jones’s counsel to rebut the victims’

statements and discuss her mental health was deficient, Jones cannot demonstrate that she

was prejudice by defense counsel’s alleged errors, i.e., a reasonable probability that but

for counsel’s errors, the proceeding’s result would have been different. Strickland, 466

U.S. at 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674; Bradley, 42 Ohio St.3d at

paragraphs two and three of the syllabus, 538 N.E.2d 373.

{¶44} At the original sentencing hearing, the trial court sentenced Jones to an

eight-year prison term for aggravated arson, 18 months for each of the four arson counts,

and 18 months for menacing by stalking. The trial court ordered Jones to serve all of the

counts consecutively, for a total of 15 and one-half years in prison. However, on

remand, the trial court reduced Jones’s sentence by (1) running the aggravated arson and

arson counts concurrent to each other, and (2) reducing Jones’s sentence for menacing by

stalking from 18 months to 15 months. Jones’s original sentence was reduced from a

total of 15 and one-half years to 9 years, 3 months.

{¶45} We find no merit to Jones’s argument that she would not have received the

maximum sentence for aggravated arson if defense counsel had introduced evidence

regarding the change in her mental health status at resentencing. First, the trial court had

access to all of the relevant information regarding Jones’s mental health at the time of

resentencing. Second, Jones cannot demonstrate that the trial court’s sentence for
aggravated arson would have been different if defense counsel had raised the issue of her

mental health.

{¶46} At the original sentencing hearing, the trial court noted that there was a

“four-month series of events” between the menacing by stalking offense and the arson,

and that Jones “had a lot of time to plan.” Furthermore, the trial court emphasized that

Jones’s arson was “quite extensive” and affected numerous properties. The trial court

felt that there was more than enough evidence to justify the imposition of maximum

consecutive sentences. The trial court stated that Jones’s conduct constituted “the worse

forms of the offense as charged here in both cases.” The trial court further explained:

The pattern of your motive and your consistent stalking of this family
resulted in extreme financial loss and psychological damage. It resulted in
financial loss to an entire neighborhood and placed safety forces in jeopardy
as they responded to an emergency situation.

{¶47} Given the trial court’s rationale for its original sentence, which it

incorporated at resentencing, we cannot say that it would have reduced Jones’s sentence

for aggravated arson if defense counsel raised the issue of her mental health.

Accordingly, Jones cannot meet her requirement of demonstrating prejudice under

Strickland.

{¶48} Based on the foregoing analysis, we cannot say that Jones’s defense counsel

rendered ineffective assistance. Jones’s sole assignment of error is overruled.

III. Conclusion

{¶49} On remand from State v. Jones, 8th Dist. Cuyahoga No. 99703,

2014-Ohio-1634, the trial court held a resentencing hearing to determine: (1) whether
consecutive sentences were necessary under R.C. 2929.14(C)(4), and (2) whether the trial

court opposed Jones’s participation in any early release or transitional control programs

under R.C. 2929.19(D).

{¶50} Jones’s counsel did not render ineffective assistance of counsel by failing to

investigate and rebut the victims’ statements to the trial court at her original sentencing

hearing. Nothing in the record indicates what evidence could have been presented

regarding the victims’ statements to the trial court at Jones’s sentencing hearing.

Furthermore, establishing Jones’s claim that the victims provided false information to the

trial court would require proof outside the record, which is not appropriately considered

on a direct appeal.

{¶51} Jones’s counsel did not render ineffective assistance of counsel by failing to

discuss her mental health. By incorporating the prior proceedings at resentencing, the

trial court had access to all of the pertinent information regarding Jones’s mental health,

her sanity and competency evaluations, her medication, and the progress that she has

made during her time in prison. Furthermore, both counsel and Jones informed the trial

court that she was making progress on her new medication.

{¶52} Finally, Jones cannot demonstrate a reasonable probability that but for

counsel’s failure to rebut the victims’ statements and discuss her mental health at

resentencing, the result would have been different.

{¶53} Accordingly, Jones’s sole assignment of error is overruled, and the trial

court’s judgment is affirmed.
 It is ordered that appellee recover of appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.

_________________________________________
FRANK D. CELEBREZZE, JR., JUDGE

LARRY A. JONES, SR., A.J., CONCURS;
SEAN C. GALLAGHER, J., CONCURS IN JUDGMENT ONLY