State v. Parker

[Cite as State v. Parker, 2018-Ohio-296.]
STATE OF OHIO, CUYAHOGA COUNTY

IN THE COURT OF APPEALS

EIGHTH DISTRICT

STATE OF OHIO, ) CASE NO. CA 17 105437
)
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
DEANDRE R. PARKER, )
)
DEFENDANT-APPELLANT. )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Cuyahoga County,
Ohio
Case Nos. CR-609300
CR-609840
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Michael C. O’Malley
Cuyahoga County Prosecutor
Atty. Andrew T. Gatti
Assistant Prosecuting Attorney
1200 Ontario Street - 9th Floor
Cleveland, Ohio 44113

For Defendant-Appellant: Atty. J. Phillip Calabrese
Porter Wright Morris & Arthur LLP
950 Main Avenue, Suite 500
Cleveland, Ohio 44113
JUDGES:

Hon. Carol Ann Robb
Hon. Gene Donofrio
Hon. Mary DeGenaro
Seventh District Court Of Appeals
Sitting By Assignment
Dated: January 25, 2018
 -2-

ROBB, P.J., sitting by assignment.

{¶1} Defendant-Appellant Deandre Parker appeals from his conviction
entered in Cuyahoga County Common Pleas Court for burglary and attempted
burglary. The issues presented in this appeal are whether the imposition of a
consecutive sentence is contrary to law, whether the plea was invalid, and if
Appellant received ineffective assistance of trial counsel. For the reasons expressed
below, all three arguments lack merit. The convictions are affirmed.
Statement of the Case
{¶2} Over a two day period in July 2015 two houses in the Rocky River area
were burglarized. The victims of the crimes were the Sheehan family and the Dunn
family. Less than $1,000 in cash and/or property was taken from each home. A pair
of Dr. Dre Beats headphones and cash were taken from the Sheehan residence;
cash was taken from the Dunn residence.
{¶3} In August 2015, there was an attempt to burglarize a home in the
Lakewood area. That home was owned by Neil Sidorak and there was video
surveillance of the burglary attempt.
{¶4} Appellant was detained shortly after the attempted burglary wearing the
same outfit seen on the tape and in his possession were the Dr. Dre Beats
headphones. The serial number on the headphones matched the ones taken from
the Sheehan residence.
{¶5} In his interview with the police, Appellant confessed to both Rocky River
burglaries. Thereafter, Appellant was indicted for two counts of burglary, violations of
R.C. 2911.12(A)(1), second-degree felonies; two counts of petty theft, violations of
R.C. 2913.02, first-degree misdemeanors; and one count of attempted burglary, a
violation of R.C. 2911.12(A)(1) and R.C. 2923.02, a third-degree felony. 9/12/16 and
9/21/16 indictments.
{¶6} The cases proceeded through discovery. A visiting judge was
appointed to preside over the matter because one of the victims of the Rocky River
 -3-

burglary was Cuyahoga County Common Pleas Court Judge Brendan Sheehan.
11/1/16 J.E.
{¶7} At a November pretrial hearing, Appellant orally requested a
competency evaluation. 11/7/16 J.E. The request was granted. 11/7/16 J.E. A
second pretrial hearing was set for December 2, 2016. At that hearing, after
receiving the psychological evaluation, the parties stipulated Appellant was
competent to stand trial. 12/5/16 J.E. Appellant also requested a continuance to
review discovery.
{¶8} The next pretrial hearing was held on December 16, 2016. Appellant
entered a guilty plea to the indicted offenses. A PSI was ordered and sentencing
was scheduled.
{¶9} At sentencing, the state set forth the facts surrounding the crimes and
stated the victims’ sense of security were violated. Tr. 22-23. The state did not
recommend a sentence; rather it stated it was “fine” with any sentence the trial court
imposed. Tr. 23.
{¶10} Appellant and his mother also spoke at sentencing. His mother
explained Appellant has ADHD, he lives with her, has had behavioral problems since
kindergarten, and had an Individualized Education Plan during his school years to
address his educational needs. Tr. 25. She stated Appellant is a follower, is easily
manipulated, and “makes really, really stupid decisions.” Tr. 26-27. Appellant’s
counsel asked for a sentence on the lower end of the sentencing range. Tr. 30.
{¶11} The trial court sentenced Appellant to a ten year aggregate sentence.
He received five years for each burglary offense and those sentences were ordered
to run consecutively. For the attempted burglary offense he received three years to
run concurrently to the ten years ordered for the burglary offenses. Six month
sentences for each petty theft conviction were ordered to be served concurrently to
the other sentences. In ordering this sentence, the trial court made consecutive
sentence findings and referred to Appellant’s criminal record.
{¶12} Appellant timely appealed his conviction.
 -4-

First Assignment of Error
“The imposition of consecutive sentences is contrary to Ohio law and violates
defendant’s substantive and procedural rights under Ohio law and the State and
Federal Constitutions.”
{¶13} An appellate court’s review of felony sentences is governed by R.C.
2953.08. State v. Hayes, 8th Dist. No. 104818, 2017-Ohio-7716, ¶ 45. Accordingly,
this court “may increase, reduce, modify a sentence, or vacate and remand for
resentencing if the court clearly and convincingly finds that the record does not
support the sentencing court's statutory findings under R.C. 2929.14(C)(4) or the
sentence is contrary to law.” State v. Durrette, 8th Dist. No. 104050, 2017-Ohio-
7314, ¶ 38 citing State v. Wenmoth, 8th Dist. No. 103520, 2016–Ohio–5135, ¶ 12. “A
sentence is contrary to law if (1) the sentence falls outside the statutory range for the
particular degree of offense, or (2) the trial court failed to consider the purposes and
principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors in
R.C. 2929.12.” Hayes, 2017-Ohio-7716 at ¶ 45. Clear and convincing evidence “is
that measure or degree of proof which is more than a mere ‘preponderance of the
evidence,’ but not to the extent of such certainty as is required ‘beyond a reasonable
doubt’ in criminal cases, and which will produce in the mind of the trier of facts a firm
belief or conviction as to the facts sought to be established.” State v. Marcum, 146
Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22, quoting Cross v. Ledford,
161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
{¶14} In arguing the imposition of consecutive sentences are contrary to law,
Appellant does not argue the trial court failed to make the R.C. 2929.14(C)(4)
statutorily mandated consecutive sentence findings at the sentencing hearing and to
state those findings in the judgment entry. Rather, Appellant contends the trial court
improperly focused on the fact that one of the victims of the burglary was a judge and
his family. Appellant also asserts there was nothing “so great or unusual” about the
burglaries to justify the trial court’s finding that the “harm caused * * * was so great or
unusual that no single prison term * * * adequately reflects the seriousness of the
offender’s conduct.” These were “garden variety” burglaries and as such, there is
 -5-

nothing in the record indicating the harm caused was so great or unusual. Lastly, he
asserts the sentence is disproportionate to the seriousness of the offenses and not
consistent with other similar offenses.
{¶15} Despite Appellant’s insistence, the record does not support the position
that the trial court imposed consecutive sentences because the victim of one of the
burglaries was a judge. The record indicates all victims’ impact statements were
taken into equal consideration and no extra consideration was placed on the fact that
one of the victims was a judge.
{¶16} During the sentencing hearing, the state referenced how the crimes
occurred and indicated all victims lost a sense of security because of the crimes:

MR. GATTI [the state]: * * * So the common theme between all victims
is that these occurred while the victims were home, asleep in their
beds. They were – in Mr. Sidorak’s case, he says due to the amount of
issues this person has been brought up on, I fear every night, and
they’re asking for the maximum penalty that you can impose. And that
was Mr. Sidorak.

Mr. and Mrs. Sheehan, their financials you have before you. There’s
some cash, about $226. Some Beats wireless headphones; that was
about $400.

They have a similar victim impact statement. In reading it, they just – I’ll
read one printed part. The break-in and burglary has stolen our entire
family’s sense of security and trust that we feel safe in our home.

And Mrs. Sheehan goes on to explain how their daughters, their
teenage daughters and their son don’t feel safe. Their son actually
feels at fault because he’s the one that forgot to lock the patio door. He
sleeps with pocketknives by his bed as a result of the break-in.

I talked to Mr. Sheehan and Michelle. They wanted to be here. They
waffled back and forth on whether they should appear. They ultimately
 -6-

decided not to appear. And they told me that whatever you – whatever
sentence you impose, they will respect that, Judge.

And finally, the Dunns, they also have – they estimate about $180 in
cash was taken from their residence. No other costs as a result of the
incident incurred.

Again, they say their sense of security has been violated. And they
trust in your disposition of the case, your Honor.

Tr. 21.
{¶17} The trial court relied heavily on those statements in determining the
appropriate sentence:

I am particularly going to focus here on the victim impact statements as
stated by the prosecutor. All of these victims have been permanently
damaged in terms of their sense of security. They’ll never, ever feel
secure or safe in their home again. We have one family where the child
has a knife he takes to bed because he’s afraid somebody is going to
come in again and burglarize his house while they’re there and they’re
asleep. What you did to them has lifelong ramifications.

Tr. 34-35.
{¶18} Admittedly, the child referenced in this statement is the judge’s child.
However, the focus is not on the fact that he is the judge’s son, but on the fact of how
this crime has impacted him. That is not an improper consideration.
{¶19} Consequently, the argument that consecutive sentences were based
solely on the fact that one victim was a judge is meritless.
{¶20} Next, Appellant claims the trial court’s finding that the offenses were
committed as part of a course of conduct and “the harm caused by these multiple
offenses to these multiple victims is so great or unusual that no single prison term will
adequately reflect the seriousness of the defendant’s conduct” finding is not
 -7-

supported by the record. He contends the only thing that makes these crimes so
great or unusual is a judge was a victim of one of the burglaries.
{¶21} As already explained above, the trial court did not rely on the victim’s
status of being a judge as a basis for imposing consecutive sentences. That said,
Appellant still argues these are “garden variety” burglaries and the course of
conduct/so great or unusual finding is contrary to law.
{¶22} Although the record in this case probably supports the course of
conduct/so great or unusual finding, we do not have to make such determination.
R.C. 2929.14(C)(4) requires a sentencing court to find: “(1) consecutive sentences
are necessary to protect the public from future crime or to punish the offender, (2)
that consecutive sentences are not disproportionate to the seriousness of the
defendant's conduct and to the danger he poses to the public, and (3) one of the
findings described in subsections (a), (b) or (c). Subsections (a), (b), and (c) provide:

(a) The offender committed one or more of 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) At least two of the multiple offenses were committed as part of one or
more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the
courses 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.

R.C. 2929.14(C)(4)(a)–(c).
 -8-

{¶23} The course of conduct/harm caused was so great or unusual that no
single prison term will adequately reflect the seriousness of the defendant’s conduct,
is the R.C. 2929.14(C)(4)(b) finding. The trial court made this finding at the
sentencing hearing. Tr. 36. However, in the judgment entry, the trial court did not
make this finding. Rather, it made the R.C. 2929.14(C)(4)(c) finding. 1/20/17 J.E. It
stated:

The court imposes prison terms consecutively finding that
consecutive service is necessary to protect the public from future crime
or to punish defendant; that the consecutive sentences are not
disproportionate to the seriousness of defendant’s conduct and to the
danger defendant poses to the public; and that, defendant’s history of
criminal conduct demonstrates that consecutive sentences are
necessary to protect the public from future crime by defendant.

1/20/17 J.E.
{¶24} The R.C. 2929.14(C)(4)(c) finding was also made at the sentencing
hearing. Tr. 33-34. The trial court reviewed Appellant’s criminal history and indicated
over the past five years there is an escalating pattern of theft offenses. Tr. 33. The
trial court then proceeded to list the crimes from the past five years, which started
with possession of criminal tools and disorderly conduct, and moved on to receiving
stolen property and misuse of credit cards. Tr. 33-34. Included in that criminal
history were multiple drug abuse, marijuana, convictions. Tr. 34. Accordingly, the
record undisputedly supports a R.C. 2929.14(C)(4)(c) finding.
{¶25} Therefore, whether or not the record supports a R.C. 2929.14(C)(4)(b)
finding is immaterial. Not including the (C)(4)(b) finding, the trial court made three
R.C. 2929.14(C)(4) required consecutive sentence findings at the sentencing hearing
and in the judgment entry.
{¶26} Lastly, Appellant argues the consecutive sentence is not proportionate
to the seriousness of the offense and is not consistent to similar offenses.
“’Proportionality’ relates solely to the punishment in the context of the offender's
 -9-

conduct (does the punishment fit the crime).” State v. Brewster, 8th Dist. No.
103789, 2016-Ohio-3070, ¶ 10. “Consistency,” for purposes of R.C. 2929.11(B),
relates to the sentences in the context of sentences given to other offenders. Id.
{¶27} The trial court found the escalating nature of Appellant’s criminal
behavior and the effect of the burglaries on the victims warranted non-maximum
consecutive sentences.
As Appellant noted, this court has stated:

There is no grid under Ohio law under which identical sentences must
be imposed for various classification of offenders. “The task of the
appellate court is to examine the available data not to determine if the
trial court has imposed a sentence that is in lockstep with others, but
whether the sentence is so unusual as to be outside the mainstream of
local judicial practice. Although the offense may be similar,
distinguishing factors may justify dissimilar treatment.”

State v. Dawson, 8th Dist. 86417, 2006-Ohio-1083, ¶ 31.
{¶28} The record in this case indicates the sentence was not disproportionate
considering the effect on the victims. Furthermore, Appellant’s escalating criminal
behavior indicates there was not dissimilar treatment.
{¶29} For the above stated reasons, this assignment of error lacks merit.
Second Assignment of Error
“The trial court erred by accepting a guilty plea unsupported by consideration;
therefore, defendant’s plea is invalid and was not entered knowingly, intelligently, and
voluntarily.”
{¶30} Appellant argues his plea was not entered into knowingly, intelligently,
and voluntarily. He does not contend the trial court failed to advise him of
constitutional and nonconstitutional rights pursuant to Crim.R. 11(C) prior to
accepting the guilty plea. Rather, he argues the guilty plea was not supported by
consideration. The principles of contract law govern plea agreements and therefore,
since the state did not offer him anything in exchange for his guilty plea, he contends
 -10-

the contract lacked consideration. As such, the plea was invalid and not entered into
knowingly, intelligently, and voluntarily.
{¶31} His argument is meritless for three reasons.
{¶32} First, his argument appears to be based on the assumption that there
was a plea agreement in this case. Crim.R. 11(F) states, “When, in felony cases, a
negotiated plea of guilty or no contest to one or more offenses charged or to one or
more other or lesser offenses is offered, the underlying agreement upon which the
plea is based shall be stated on the record in open court.” The record is devoid of
any support for the assumption there was a plea agreement. There was no written
plea agreement filed. Orally there is no mention of a plea agreement; the words
“plea agreement” were not used during the hearing and there was no implicit
indication at the hearings indicating there was a plea agreement. Without an
agreement, the basic assumption underlying his argument fails. Since there was no
agreement, we do not need to determine if consideration is required for a plea
agreement and if there was consideration in this case.
{¶33} Second, Ohio law does not appear to prohibit an offender from pleading
guilty to the indicted offenses without making an agreement with the state. Crim.R.
11(F) does not preclude an offender from entering a plea without an agreement; it
only requires agreements to be stated on the record. Furthermore, case law does
not indicate an offender cannot plead guilty to the indicted offenses without first
entering an agreement with the state. Recently, in reviewing a plea colloquy to
determine if a guilty plea was entered into knowingly, intelligently, and voluntarily, the
Fifth Appellate District specifically noted that the offender pled guilty to the indicted
offense, the state did not offer anything in consideration for the guilty plea, and the
trial court noted as such at the change of plea hearing. State v. Shay, 5th Dist. No.
17-COA-014, 2017-Ohio-7819, ¶ 2, 13. The appellate court reviewed the plea
colloquy and found that it complied with Crim.R. 11 and thus, the plea was entered
into knowingly, intelligently, and voluntarily. The appellate court’s holding was not an
explicit holding on consideration and whether a plea is knowingly, intelligent, and
voluntary. The implicit effect of the ruling is that consideration is not needed. Or in
 -11-

other words, pleas are permitted to be entered without an agreement between the
state and offender. An offender may make a strategic decision to plead guilty to the
indicted offense to show remorse and take responsibility for his/her actions.
{¶34} Third, even if there was a plea agreement and if consideration was
required, the record suggests there was consideration. The state did not lessen any
of the charges, but it did stand silent on what sentence should be imposed. It stated
it was “fine” with any sentence the trial court chose to impose. Tr. 23. Two of the
victims, the Sheehans and Dunns deferred to the court on sentencing. Tr. 23. The
other victim, Mr. Sidorak, asked for imposition of the maximum. Tr. 22. Given Mr.
Sidorak’s statement and Appellant’s record, the state could have asked for the
maximum, but it did not. Therefore, there was some consideration.
{¶35} For the above stated reasons, this assignment of error is meritless.
Third Assignment of Error
“This Court should set aside Defendant’s guilty plea and sentence due to the
ineffective assistance of his trial counsel.”
{¶36} In order to establish ineffective assistance of counsel, Appellant must
demonstrate counsel's performance was deficient, and he was prejudiced by the
deficient performance. Strickland v. Washington, 466 U.S. 668, 687–688, 104 S.Ct.
2052 (1984). Performance is only considered constitutionally deficient when it falls
below an objective standard of reasonableness. Id. at 688; State v. Singleton, 8th
Dist. No. 98301, 2013-Ohio-1440, ¶ 67. Reviewing courts “must indulge a strong
presumption that counsel's conduct was within the wide range of reasonable
professional assistance.” Strickland; Singleton. Prejudice is established when the
defendant demonstrates “a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.”
Strickland at 694.
{¶37} Appellant’s first argument is trial counsel was ineffective for failing to
negotiate a plea agreement. Appellant contends counsel should have attempted to
have the charges lessen, some of the charges dismissed, or the parties agree to a
 -12-

jointly recommended sentence. He argues counsel determined, without reviewing
the discovery he received, Appellant should enter a plea to the indicted charges.
{¶38} The state argues Appellant and trial counsel decided on a strategy of
showing genuine remorse in an effort to receive a minimum sentence. This was a
trial strategy and did not constitute ineffective assistance of counsel.
{¶39} Regarding the review of the discovery materials, Appellant’s allegations
are not completely accurate. At the December 2, 2016 pretrial hearing defense
counsel received discovery. When he was asked by the trial court about that
discovery, he responded:

Yes, Your Honor. We’ve had open conversation with the
Prosecutor’s Office. I believe I have in my possession all of the
discovery that they have. I’ve not had an opportunity to review it. Well,
I have had an opportunity to review all the written documentation, but I
received a number of videotapes. I am prepared to go through those –
I have a portable video machine. I will have a contact visit with the
client and will go through those. His mother’s in the courtroom today. I
told him I would share that with her also.

I believe at the final pretrial we will have a better perspective of
this case and I think it should settle.

Tr. 5-6.
{¶40} Counsel’s statement that the case should settle appears to be a
misstatement when considered in context. It appears counsel meant after reviewing
the discovery he would have a better perspective of whether to settle. Thus, the
discovery argument does not support the position that counsel failed to negotiate a
plea.
{¶41} That said, there is still the issue of whether counsel should have
negotiated a plea agreement given the facts of this case. It has recently been
explained:
 -13-

Ohio courts have recognized that “‘[a]n attorney, who advises his
client to plead guilty as charged when the client receives no benefit at
all in exchange therefore, could possibly be deemed to have failed in
his duty to competently represent his client.’“ However, “the benefit a
defendant receives as a result of pleading guilty is not necessarily
reflected by the penalty ultimately imposed on him.” Instead, courts
should consider “the totality of the circumstances surrounding the plea
in determining whether the appellant received any benefit in exchange
for the plea.”

(Internal citations omitted). State v. Brown, 8th Dist. No. 104095, 2017-Ohio-184, ¶
13.
{¶42} Considering the totality of the circumstances, including Appellant
admitting to the commission of the crimes and having the stolen property found in his
possession, it appears counsel was competent in his representation. The guilty plea
could qualify as strategy. Typically trial tactics and strategies do not constitute a
denial of effective assistance of counsel. State v. Clayton, 62 Ohio St.2d 45, 402
N.E.2d 1189 (1980); State v. Gooden, 8th Dist. No. 88174, 2007-Ohio-2371. It was a
viable trial strategy to plead to the indictment, take responsibility for his actions, and
show remorse. Even if he had pled to a lesser offense, the trial court was still
permitted to consider the underlying offenses in determining the sentence to impose.
State v. Blevins, 8th Dist. No. 105023, 2017-Ohio-4444, ¶ 36. Accordingly, pleading
to the original indictment, rather than a negotiated lesser offense may display to the
trial court that the offender is taking more responsibility for the crime and is more
remorseful.
{¶43} Furthermore, even if the parties agreed to a plea agreement to lesser
charges or a jointly agreed sentence, the trial court was not bound to accept or follow
that agreement. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d
923, ¶ 28 (“[T]rial courts may reject plea agreements and that they are not bound by
a jointly recommended sentence.”). Nothing in the record suggests the trial court
would have accepted the plea or sentenced Appellant to any agreed upon sentence.
 -14-

{¶44} Therefore, for those reasons counsel was not ineffective for failing to
negotiate a plea agreement or agreed sentence.
{¶45} Appellant next argues counsel was ineffective for failing to test the
prosecutor’s case. Given the facts of this case, this argument lacks merit. A home
video surveillance shows Appellant attempting to break into one house. Then when
he was questioned, property stolen in another burglary was found on his person.
When asked about it, Appellant admitted to that burglary and one other burglary.
{¶46} Given the evidence, there were not many viable means to “test” this
case. “‘Attorneys need not pursue every conceivable avenue; they are entitled to be
selective.’” State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶
222. We note defense counsel did pursue two different avenues in defending
Appellant.
{¶47} First, defense counsel requested and received a psychological
evaluation of Appellant to determine if he was competent to stand trial. Given
statements by counsel and Appellant’s mother this was a viable avenue to pursue.
Tr. 23-25. The result of the evaluation, however, was Appellant was competent to
stand trial.
{¶48} Second, counsel requested a sentence on the lower end of the
sentencing range. In asking for such, defense counsel referred to the psychological
evaluation which indicated Appellant suffered from depression and antisocial
personality disorder. Tr. 29. Counsel also indicated no one was physically hurt from
the crimes, the property damage was minimal, and this was Appellant’s first felony
conviction. Tr. 30.
{¶49} Therefore, counsel did strategically pursue the most arguably effective
avenues. Given the evidence, this court is reluctant to conclude defense counsel
should have made additional efforts to “test” the prosecutor’s case. In evaluating a
claim of ineffective assistance of counsel, we must be mindful that there are
countless ways for an attorney to provide effective assistance in a given case.
Strickland, 466 U.S. 668 at 689.
 -15-

{¶50} Moreover, the record in this case does not indicate counsel was
deficient. Counsel met with his client six or seven times before the December 2,
2016 pretrial hearing. Tr. 7. The court noted at that hearing Appellant said a lot of
good things about his attorney when his competency to stand trial was evaluated. Tr.
7-8. At the change of plea hearing Appellant stated he was satisfied with his legal
representation. Tr. 15-16. At sentencing, counsel argued for a sentence on the
lower end of the sentencing range; those arguments were based on Appellant’s
mental health and his lack of a felony record. Tr. 29-30. Thus, given the
presumption that counsel was competent, we hold counsel’s performance did not
amount to ineffective assistance of counsel.
{¶51} Appellant asks this court to hold that the claims raised in this appeal are
preserved to use with other proof outside the record for a petition for post-conviction
relief. Such a request is premature. If there is proof outside the record supporting
Appellant’s position that counsel was ineffective, then those issues should be raised
in a postconviction petition.
{¶52} This assignment of error lacks merit.
Conclusion
{¶53} All three assignments of error are meritless. Appellant’s conviction is
affirmed.

Donofrio, J., concurs.

DeGenaro, J., concurs.

Seventh District Court of Appeals
Sitting by Assignment

APPROVED:

_____________________________
CAROL ANN ROBB, JUDGE
SEVENTH DISTRICT COURT OF APPEALS
SITTING BY ASSIGNMENT