[Cite as State v. Johnson, 2017-Ohio-9228.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 2017-CA-30
:
v. : T.C. NO. 2016-CR-503
:
BRIAN JOHNSON : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 22nd day of December, 2017.
...........
ANDREW P. PICKERING, Atty. Reg. No. 0068770, 50 E. Columbia Street, 4th Floor,
Springfield, Ohio 45501
Attorney for Plaintiff-Appellee
ENRIQUE RIVERA-CEREZO, Atty. Reg. No. 0085053, 61 N. Dixie Drive, Suite B,
Vandalia, Ohio 45377
Attorney for Defendant-Appellant
.............
DONOVAN, J.
{¶ 1} This matter is before the Court on the March 23, 2017 Notice of Appeal of
Brian Johnson. Johnson appeals from his February 21 Judgment Entry of Conviction,
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following a guilty plea, on one count of aggravated possession of drugs, in violation of
R.C. 2925.11(A), a felony of the fifth degree. Johnson received a sentence of six months
after his pre-sentence investigation revealed that Johnson possessed and used
methamphetamine after he entered his guilty plea but prior to disposition, in violation of
the conditions of his bond. We hereby affirm the judgment of the trial court.
{¶ 2} Johnson was indicted on October 17, 2016. He pled not guilty and bond was
set on his own recognizance on October 21, 2016. The conditions of his bond required
him to “comply with all criminal provisions of the Ohio Revised Code,” and “submit to
random drug screenings.” On January 30, 2017, Johnson withdrew his plea of not guilty
and entered his guilty plea. His pre-sentence investigation report, which is part of our
record, provides that Johnson “failed a drug test at the Clark County Municipal Court
Probation Department on February 6, 2017.”
{¶ 3} At disposition, the court indicated as follows:
THE COURT: Specific conditions of the defendant’s bond is that he
comply with all criminal provisions of the Ohio Revised Code and that he
submit to random drug screens. Implicit in that condition is that he refrain
from the use of illegal drugs.
The defendant indicated that he used methamphetamine on
February 6th, which is after he pled guilty to possession of drugs in this case
and prior to his interview for the pre-sentence investigation. The Court
does find that he violated the condition of his bond.
{¶ 4} Johnson’s Judgment Entry of Conviction provides in part:
Upon review of the pre-sentence investigation report, the Court
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found that it has the discretion, pursuant to Ohio Revised Code Section
2929.13(B)(1)(b)(iii), to impose a prison term upon the defendant because
he violated conditions of his bond by failing to comply with a criminal
provision of the Ohio Revised Code and using a controlled substance, to-
wit: Possessing and using methamphetamine after he entered his guilty
plea but prior to disposition.
The Court considered the record, oral statements of counsel, the
defendant’s statement, and the principles and purposes of sentencing
under Ohio Revised Code Section 2929.11, and then balanced the
seriousness and recidivism factors under Ohio Revised Code Section
2929.12.
{¶ 5} Johnson asserts two assignments of error herein. His first assigned error
is as follows:
THE TRIAL COURT VIOLATED M[R]. JOHNSON’S SUBSTANTVIE
DUE PROCESS RIGHTS UNDER THE FOURTEENTH AMENDMENT TO
THE CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO
CONSTITUTION WHEN IT IMPOSED MORE THAN THE MINIMUM
SENTENCE.
A. The Trial Court improperly sentenced the Defendant to prison,
for conviction on a charge which under R.C. 2929.13(B)(1) would be
mandated community control.
B. The trial court improperly sentenced the Defendant to Prison
without taking into consideration the factors under R.C. 2929.11 and R.C.
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2929.12.
{¶ 6} Johnson asserts that his sentence should be modified. According to
Johnson, the “PSI report does indicate that the Defendant was not charged, much less
convicted of any criminal violations. * * * However, as mentioned previously, the
Defendant did concede that he used illegal drugs during his bond.” Johnson asserts that
since his bond was not revoked immediately, prior to sentencing, we “can easily conclude
that this is not a true bond revocation.” Johnson asserts that “an implicit order for the
Defendant not to use drugs without adequate tools and/or supervision could lead to
potential deaths.”
{¶ 7} Finally, Johnson asserts that the “Trial Court never mentioned on disposition
R.C. 2929.11 and 2929.12. It merely mentioned ‘I have received a report prepared by
the probation department. I’ve reviewed the report.’ ”
{¶ 8} The State responds that since “the entirety of the sentence has been served,
Defendant cannot be given any relief with respect to his sentence. Thus, this assignment
of error is moot.” The State further asserts that the trial court did properly consider R.C.
2929.11 and R.C. 2929.12.
{¶ 9} It is well settled that “[a] defendant's sentence is not contrary to law when
the trial court expressly states in its sentencing entry that it had considered the principles
and purposes of sentencing in R.C. 2929.11 and the seriousness and recidivism factors
in R.C. 2929.12, but neglected to mention those statutes at the sentencing hearing. * * *.”
State v. Cochran, 2d Dist. Clark No. 2016-CA-33, 2017-Ohio-217, ¶ 10.
{¶ 10} As this Court has previously noted:
“ ‘Any appeal of a sentence already served is moot.’ ” Columbus v.
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Duff, 10th Dist. Franklin No. 04AP–901, 2005–Ohio–2299, ¶
12, quoting State v. Wright, 8th Dist. Cuyahoga No. 83781, 2004–Ohio–
4077, ¶ 18. It is true that “an appeal challenging a felony conviction is
not moot even if the entire sentence has been satisfied before the matter is
heard on appeal.” State v. Golston, 71 Ohio St.3d 224, 643 N.E.2d 109
(1994), at the syllabus. But this rule “does not apply if appellant is appealing
solely on the issue of the length of his sentence and not on the underlying
conviction.” State v. Beamon, 11th Dist. Lake No. 2000–L–160, 2001 WL
1602656, * 1 (Dec. 14, 2001); e.g., Duff at ¶ 12 (quoting Beamon for the
same proposition).
State v. Bogan, 2d Dist. Champaign No. 2012-CA-34, 2013-Ohio-1920, ¶ 5.
{¶ 11} Johnson’s judgment entry of conviction provides that the court considered
the factors set forth in R.C. 2929.11 and R.C. 2929.12, and Johnson’s argument to the
contrary lacks merit and is overruled. Most importantly, Johnson pled guilty and is only
appealing the imposition of his six-month sentence and not his underlying conviction. He
was sentenced on February 21, 2017, over nine months ago. Since Johnson’s sentence
has been served, his argument to modify his sentence is moot.
{¶ 12} Johnson’s second assignment of error is as follows:
THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF
COUNSEL WHEN COUNSEL FAILED TO FILE AN ILC1 MOTION.
{¶ 13} Johnson asserts as follows:
This Court should conclude that Counsel was ineffective when she
1
Intervention in lieu of conviction
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failed to file an ILC motion for a defendant that appears at face value to
have met all the criteria for ILC. This Court can arrive at the conclusion
based on the Defendant’s PSI report that there was a probability that the
Defendant was statutorily eligible for ILC. This Court should conclude that
this fact pattern is somewhat similar for a Defense Counsel to fail to file a
Motion to Suppress when on face value there is a major suppressibility [sic]
issue.
{¶ 14} As this Court has previously noted:
We evaluate ineffective-assistance-of-counsel arguments in light of
the two-pronged analysis set forth in Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under that analysis, to reverse
a conviction based on ineffective assistance of counsel, a defendant must
demonstrate that counsel's performance was deficient and fell below an
objective standard of reasonable representation, and that the defendant
was prejudiced by counsel's performance. Id. at 668, 104 S.Ct. 2052; State
v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). To succeed on such
a claim, there must be a reasonable probability that, but for counsel's
unprofessional errors, the result of the defendant's trial would have been
different. Id.
A plea of guilty is a complete admission of guilt. E.g., State v.
Faulkner, 2d Dist. Champaign No. 2013-CA-43, 2015-Ohio-2059, ¶ 9.
Consequently, a guilty plea waives all appealable errors, including claims
of ineffective assistance of counsel, except to the extent that the errors
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precluded the defendant from knowingly, intelligently,
and voluntarily entering his or her guilty plea. E.g., State v. Frazier, 2016-
Ohio-727, 60 N.E.3d 633, ¶ 81 (2d Dist.). * * *
State v. Riddle, 2d Dist. Miami No. 2016-CA-6, 2017-Ohio-1199, ¶ 25-26.
{¶ 15} “Only if there is a reasonable probability that, but for counsel’s errors, the
defendant would not have pleaded guilty but would have insisted on going to trial will the
judgment be reversed. * * *.” State v. Huddleson, 2d Dist. Montgomery No. 20653, 2005-
Ohio-4029, ¶ 9.
{¶ 16} As this Court previously noted:
In State v. Jones, 6th Dist. Wood No. WD-12-053, 2013-Ohio-3562,
the Sixth District Court of Appeals held that in order to establish that
appellant’s trial counsel was ineffective for failing to file a pre-plea request
for ILC, the record must show that: “(1) the trial court would have accepted
appellant’s petition for [ILC] and subsequently found that appellant met all
of the criteria set forth in R.C. 2951.041, and (2) the state would have
agreed to appellant’s guilty plea on those terms.” Id. at ¶ 22.
State v. Dohme, 2d Dist. Clark No. 2016-CA-42, 2017-Ohio-561, ¶ 14.
{¶ 17} As the State asserts, Johnson does not assert that his plea was not knowing
and voluntary, but rather only that he would have been a good candidate for ILC. Nor
does he assert that he would have insisted on going to trial as opposed to pleading guilty
had defense counsel sought ILC. The record reflects that at his plea hearing, Johnson
indicated to the court that he wished to plead guilty, and that he entered his guilty plea
voluntarily. Finally, even if Johnson claimed that the failure to file a motion for ILC
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rendered his plea less than knowing and voluntary, it is merely speculative to conclude
that the trial court would have granted the motion and that the State would have accepted
his plea on those terms. Accordingly, we find that ineffective assistance of counsel is
not demonstrated, and Johnson’s second assignment of error is overruled.
{¶ 18} The judgment of the trial court is affirmed.
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WELBAUM, J. and TUCKER, J., concur.
Copies mailed to:
Andrew P. Pickering
Enrique Rivera-Cerezo
Hon. Douglas M. Rastatter