State v. Davis

[Cite as State v. Davis, 2018-Ohio-2984.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY

State of Ohio Court of Appeals No. L-16-1313

Appellee Trial Court No. CR0201502966

v.

Terrance Davis DECISION AND JUDGMENT

Appellant Decided: July 27, 2018

*****

Julia R. Bates, Lucas County Prosecuting Attorney,
Lauren Carpenter and Claudia A. Ford, Assistant
Prosecuting Attorneys, for appellee.

Brad F. Hubbell, for appellant.

*****

SINGER, J.

{¶ 1} Appellant, Terrance Davis, appeals the August 25, 2016 judgment of the

Lucas County Court of Common Pleas, where he was convicted of aggravated robbery in

violation of R.C. 2911.01(A)(3), a felony of the first degree. Finding no error, we affirm.
 Background

{¶ 2} On November 20, 2015, appellant was indicted for aggravated robbery in

violation of R.C. 2911.01(A)(3), a felony of the first degree, and for felonious assault in

violation of R.C. 2903.11(A)(1) and (D), a felony of the second degree.

{¶ 3} On August 3, 2016, appellant entered a plea to the aggravated robbery

pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970).

Appellee dismissed the felonious assault charge in exchange for the plea.

{¶ 4} In open court, appellee discussed the factual basis on which it would have

relied to prove the case against appellant.

{¶ 5} Appellee stated that, based on video surveillance, a 77-year old victim was

grocery shopping at Gordon Foods in Toledo, Ohio. Upon exiting the store, the victim

placed her purse on the driver’s seat of her vehicle and unloaded groceries. A car then

pulled into the lot and parked next to her. As she finished unloading groceries, she

locked her car and walked her cart back to the store. While she was away, the driver of

the car next to her attempted to open the side door of her car in an attempt to take the

victim’s purse.

{¶ 6} Appellant was the suspect-driver. He waited for the victim to come back to

her car. When she returned and opened her car door, appellant hit and pushed her, which

caused her to fall straight back onto the concrete. He then took her purse and drove

away. The victim was transported to the hospital where she received several staples to

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the back of her head. She also was required to stay overnight in the hospital for

observation due to her loss of consciousness.

{¶ 7} After appellee concluded with those facts, the court addressed appellant and

proceeded with its Crim.R. 11 colloquy. The court accepted the plea, and found appellant

guilty of aggravated robbery. The matter was set for sentencing on August 24, 2016.

{¶ 8} At sentencing, appellee, appellant’s trial counsel, appellant, and the victim

all made statements. The court sentenced appellant to 10 years in prison, and imposed a

postrelease control period of 5 years. The sentence was journalized on August 25, 2018,

and it is from this judgment appellant now appeals.

Anders Brief

{¶ 9} On October 20, 2017, appellant’s counsel filed a request to withdraw

pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

Counsel asserted that, after thoroughly reviewing the transcript of the proceedings in the

trial court and the applicable case law, no meritorious assignments of error could be

presented. Counsel did, however, submit the following four potential assignments of

error:

1. The trial court erred when it sentenced appellant without

providing access to a presentence report.

2. The trial court erred when it denied the appellant his due process

rights to a fair and impartial presentence report.

3.
 3. The appellant was denied effective assistance of counsel.

4. The trial court erred when it sentenced appellant without

providing the proper notification of appellate rights.

{¶ 10} The state also filed an Anders brief, concurring with the conclusion of

appellant’s counsel that there was no arguable basis for a valid assignment of error and

urging this court to permit counsel to withdraw. Appellant filed a pro se brief, citing the

following assignments of error:

1. Defendant-appellant was deprived of his liberty without due

process of law when the state persecuted (sic) and proffered unproven and

inaccurate statements of facts in the plea and sentencing hearing to elicit

trial court to impose maximum sentence.

2. Defendant-appellant was deprived of his liberty without due

process of law when the trial court imposed maximum sentence based on

unproven and inaccurate facts proffered by the state and without complying

with Ohio’s current sentencing requirements.

{¶ 11} The procedure to be followed by appointed counsel who desires to

withdraw for want of a meritorious, appealable issue is set forth in Anders, as well as

State v. Duncan, 57 Ohio App.2d 93, 385 N.E.2d 323 (8th Dist.1978). See also 6th

Dist.Loc.App.R. 10(G).

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 {¶ 12} In Anders, the U.S. Supreme Court found if counsel, after a conscientious

examination of the case, determines it to be wholly frivolous, counsel should so advise

the court and request permission to withdraw. Anders at 744. This request must be

accompanied by a brief identifying anything in the record that could arguably support the

appeal. Id. In addition, counsel must furnish the client with a copy of the brief and

request to withdraw and allow the client sufficient time to raise any matters the client so

chooses. Id. Once the requirements are fulfilled, the appellate court must conduct a full

examination of the proceedings and decide if the appeal is indeed frivolous. Id. If the

appellate court determines the argument is frivolous, it may grant counsel’s request to

withdraw and dismiss the appeal or it may proceed to a decision on the merits. Id.

{¶ 13} On June 29, 2018, we released State v. Wenner, 6th Dist. Sandusky No. S-

18-4, 2018-Ohio-2590, in which this court pronounced that it will no longer accept

Anders briefs in criminal appeals. Nevertheless, because this case was filed pre-Wenner,

we will proceed with the process and role customarily undertaken pursuant to Anders.

{¶ 14} We find appellant’s counsel has satisfied the requirements of Anders,

setting forth four potential assignments of error. Appellant has also put forth two

assignments of error. Consequently we will address the potential assignments of error

put forth by counsel and appellant, and then follow with our examination of the entire

record.

5.
 Potential Assignment of Error No. 1

{¶ 15} Counsel first argues appellant may have been denied the opportunity to

read and respond to the presentence investigation report (PSI).

{¶ 16} R.C. 2947.06(A)(1) provides:

The trial court may hear testimony in mitigation of a sentence at the

term of conviction or plea or at the next term. The prosecuting attorney

may offer testimony on behalf of the state to give the court a true

understanding of the case. The court shall determine whether sentence

should immediately be imposed. The court on its own motion may direct

the department of probation of the county in which the defendant resides, or

its own regular probation officer, to make any inquiries and presentence

investigation reports that the court requires concerning the defendant.

{¶ 17} Additionally, R.C. 2951.03(B)(1) and (2) state:

(1) If a presentence investigation report is prepared pursuant to this

section, section 2947.06 of the Revised Code, or Criminal Rule 32.2, the

court, at a reasonable time before imposing sentence, shall permit the

defendant or the defendant’s counsel to read the report, except that the court

shall not permit the defendant or the defendant’s counsel to read any of the

following:

(a) Any recommendation as to sentence;

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 (b) Any diagnostic opinions that, if disclosed, the court believes

might seriously disrupt a program of rehabilitation for the defendant;

(c) Any sources of information obtained upon a promise of

confidentiality;

(d) Any other information that, if disclosed, the court believes might

result in physical harm or some other type of harm to the defendant or to

any other person.

(2) Prior to sentencing, the court shall permit the defendant and the

defendant’s counsel to comment on the presentence investigation report

and, in its discretion, may permit the defendant and the defendant’s counsel

to introduce testimony or other information that relates to any alleged

factual inaccuracy contained in the report.

{¶ 18} Here, we find the record reflects that the court ordered a PSI pursuant to

R.C. 2947.06. The matter was set for sentencing, where the court asked trial counsel if

he would like to “speak in mitigation,” to which he replied as follows:

[COUNSEL]: Briefly, Your Honor. I read the pre-sentence report.

It appears to be accurate. Terrance has some remorse for what he did.

When he told me that when he wanted—when he thought about doing this

he grabbed her purse and she fell to the ground and that’s what caused her

damages.

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 {¶ 19} The court also addressed appellant and provided him an opportunity to

speak in mitigation, as follows:

THE COURT: All right. Mr. Davis, what would you like to say

prior to sentencing?

[APPELLANT]: I’m very sorry. I could not say I’m sorry enough

to the victim and her family for— for all the pain I caused. And I am going

through a lot. And I’m sick. I was on heroin, and I just apologize. I’m

sorry. I hope— I apologize to the Court.

{¶ 20} Based on the forgoing in-court statements, we cannot say appellant was

deprived of any right afforded under R.C. 2951.03(B)(1) and (2). To the contrary, we

find appellant and trial counsel were both given the opportunity to mitigate and address

the PSI, and neither one did so. A close examination of trial counsel’s open court

concession regarding the accuracy of the PSI, standing alone, belies the argument that

neither trial counsel nor appellant was given the opportunity to review the PSI.

Accordingly, we cannot find merit in the first potential assignment of error.

Potential Assignment of Error No. 2

{¶ 21} Counsel argues that appellant’s due process right to a fair and impartial PSI

report may have been compromised because the author of the PSI was appellant’s past

probation officer. Counsel admits he was “unable to find any case law to support” this

legal assertion.

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 {¶ 22} Neither does appellant point to anything in the record that would indicate

any bias of the probation officer. We also note R.C. 2951.03(B)(5) provides that “if the

defendant alleges any factual inaccuracy in the [PSI], the court shall either: (a) [m]ake a

finding as to the allegation; [or] (b) [m]ake a determination that no finding is necessary

with respect to the allegation because the factual matter will not be taken into account in

the sentencing of the defendant.” State v. Hofmann, 6th Dist. Erie No. E-03-057, 2004-

Ohio-6655, ¶ 16-19.

{¶ 23} Accordingly, we find no indication in the record that appellant argued, in

open court, that any factual inaccuracy existed within the PSI. Counsel is apparently

attempting to argue there was some inherent bias connected with appellant’s past

probation officer authoring his PSI. We, as is appellant, are unable to find any case law

to support this argument. Furthermore, R.C. 2951.03(B)(5)(b) provides a process where

the court could ignore any inaccuracies in a PSI in the event there is a proper and credible

protestation.

{¶ 24} Additionally, in this instance we are convinced that despite any inaccuracy

in the PSI, the trial court would have sentenced appellant in the same manner in which he

was. This is because based on our review of the sentencing transcript the trial court

supported its 10-year incarceration sanction with a finding that an attack on a 77-year old

“defenseless person” is such a deplorable act that it warrants being classified as “the

worst form of the offense[.]” As a result of that classification, the court stated that the

9.
“maximum sentence” was appropriate; although the court did not actually impose the

maximum sentence.

{¶ 25} Accordingly, the second potential assigned error is without merit.

Potential Assignment of Error No. 3

{¶ 26} Counsel argues that appellant may have received ineffective assistance

from his trial counsel because trial counsel unduly pressured appellant to enter into a

plea, and incorrectly promised appellant certain sentencing results.

{¶ 27} The standard for determining whether trial counsel was ineffective requires

appellant to show: (1) trial counsel made errors so egregious that counsel was not

functioning as guaranteed under the Sixth Amendment, and (2) that the deficient

performance prejudiced appellant’s defense. State v. Moctezuma, 6th Dist. Lucas No. L-

04-1347, 2005-Ohio-5569, ¶ 23, overruled on other grounds under State v. Foster, 109

Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470; Strickland v. Washington, 466 U.S. 668,

686-687, 80 L.Ed.2d 674, 104 S.Ct. 2052 (1984). “In essence, appellant must show that

his trial, due to his attorney’s ineffectiveness, was so demonstrably unfair that there is a

reasonable probability that the result would have been different absent his attorney’s

deficient performance.” Moctezuma, citing Strickland at 693.

{¶ 28} Additionally, “a court must be ‘highly deferential’ and ‘indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance” in reviewing a claim of ineffective assistance of counsel. Moctemzuma at ¶

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23, quoting Strickland at 689. “A properly licensed attorney in Ohio is presumed to

execute his duties in an ethical and competent manner.” Id., citing State v. Hamblin, 37

Ohio St.3d 153, 155-56, 524 N.E.2d 476 (1988). “Debatable strategic and tactical

decisions may not form the basis of a claim for ineffective assistance of counsel.” Id.,

citing State v. Phillips, 74 Ohio St.3d 72, 85, 656 N.E.2d 643 (1995). “Even if the

wisdom of an approach is debatable, ‘debatable trial tactics’ do not constitute ineffective

assistance of counsel.” Id. “Finally, reviewing courts must not use hindsight to second-

guess trial strategy, and must bear in mind that different trial counsel will often defend

the same case in different manners.” Id.

{¶ 29} Here, counsel specifically asserts that appellant was pressured into taking

the plea based on trial counsel’s unsupported prediction that the court would not only

deny appellant’s pro se motion to merge the aggravated robbery and felonious assault, but

also that if appellant was found guilty that the court would sentence appellant to a

maximum sentence on both counts and run the sentences consecutively. Counsel further

states that appellant’s trial counsel promised a sentence in the range of five to seven years

if appellant were to accept the plea, but appellant was actually sentenced to 10 years’

incarceration.

{¶ 30} First, our review of the transcripts of proceedings and the plea agreement

reveals that the court confirmed appellant was not threatened or promised anything with

regard to his entering of the plea. The trial court also asked appellant, in open court and

11.
in writing, whether appellant was satisfied with his trial counsel, to which he replied in

the affirmative. We find no evidence counsel was otherwise deficient in providing

appellant with the necessary information, guidance, and competence. Thus we cannot

say that appellant was erroneously, unduly or improperly influenced to enter into his plea

agreement.

{¶ 31} Secondly, as we noted in Moctezuma, “[t]he decision to accept a plea

agreement is undeniably strategic.” Id. at ¶ 24. In Moctezuma, the appellant argued that

his trial counsel was ineffective for permitting him to enter into a plea agreement. Id.

We disagreed, holding that “we cannot second-guess trial counsel’s decision to permit

appellant to accept the plea that was offered.” Id.

{¶ 32} Consistent with Moctezuma, and even assuming appellant was incorrectly

led by counsel’s advice and that allowing appellant to enter into the plea was strategically

debatable, we cannot say those actions amount to ineffective assistance. There is no

argument appellant was improperly addressed by the trial court under Crim.R. 11, and we

find no issue with regard to the plea otherwise.

{¶ 33} Accordingly, the third potential assigned error is meritless.

Potential Assignment of Error No. 4

{¶ 34} Counsel lastly argues that the trial court may have failed to provide

appellant with proper notice of his appellate rights. However, we find appellant was

12.
notified regarding his right to appeal, both in open court and according to his sentencing

entry.

{¶ 35} More specifically, at the August 24, 2016 sentencing hearing the trial court

stated the following when addressing appellant: “Defendant is reminded his limited right

to appeal the plea, and his limited right to appeal the sentencing as provided in [R.C.]

2953.08.” Further, the corresponding journal entry states “Defendant given notice of

appellate rights under R.C. 2953.08.” Consequently, we find evidence in the record to

support that appellant was notified of his right to appeal.

{¶ 36} Even assuming appellant was not properly notified under Crim.R. 32(B),

we yet find this error would be non-prejudicial or moot in this case. See, e.g., State v.

Houston, 6th Dist. Erie No. E-03-059, 2004-Ohio-6462, ¶ 8. This is because appellant

was allowed a delayed appeal. We therefore hold that appellant was not prejudiced by

the alleged error. Moreover, we note that the issue is moot where appellant was afforded

the right to appeal despite not being properly notified. Id.

{¶ 37} In sum, we find all the potential assignments of error put forth by counsel

are not well-taken. We will now proceed with the pro se assigned errors put forth by

appellant.

13.
 Pro Se Assignment of Error No. 1

{¶ 38} Appellant first asserts that his due process rights were violated because

appellee “presented and proffered unproven and inaccurate statements of facts in the plea

and sentencing hearing to elicit trial court to impose maximum sentence.”

{¶ 39} We note appellant did not object, challenge or seek to withdraw his plea

prior to being sentenced. Therefore, appellant must rely on the plain error analysis to

now challenge his sentence or plea. See, e.g., State v. Toyloy, 10th Dist. Franklin No.

14AP-463, 2015-Ohio-1618, ¶ 19.

{¶ 40} Under Crim.R. 52(B), “[p]lain errors or defects affecting substantial rights

may be noticed although they were not brought to the attention of the court.” To affect a

substantial right, the error must be outcome-determinative. See State v. Amos, 140 Ohio

St.3d 238, 2014-Ohio-3160, 17 N.E.3d 528, ¶ 21-23.

{¶ 41} A similar argument to what appellant is asserting here was raised in State v.

Ellis, 6th Dist. Lucas No. L-15-1296, 2016-Ohio-8086. In Ellis, we held that, despite a

claim of innocence, a plea pursuant to Alford was properly accepted under Crim.R. 11 as

an admission of guilt. Id. at ¶ 26. For support we pointed to State v. Post, 32 Ohio St.3d

380, 513 N.E.2d 754, where the Supreme Court of Ohio states as follows:

Appellant relies principally on dicta in North Carolina v. Alford * *

* wherein the court cautioned that guilty pleas coupled with claims of

innocence should not be accepted unless there is a factual basis for the plea.

14.
 [N]onetheless, the court in Alford found no constitutional bar to accepting a

guilty plea in the face of an assertion of innocence provided a defendant

voluntarily, knowingly and understandingly consents to sentencing on a

charge. Id. at 37-38, 56 O.O. 2d at 91. Further, no constitutional error was

found in accepting a guilty plea which contained a protestation of

innocence, if the defendant intelligently concludes that his interests require

entry of a guilty plea and if the record before the court contains strong

evidence of guilt. Id.

{¶ 42} In this case, we find appellant’s written plea demonstrates that appellant

was never claiming to be guilty of the crime as stated. The plea states as follows: “By

this plea of guilty, I DO NOT admit committing the offense, but I enter this plea only to

avoid the risk of conviction on a more serious offense if I went to trial on the original

charge and the possibility of a higher penalty as a result.” Based on this language and the

general intent of appellant as indicated by his Alford plea and his subscribing by way of

signature, we cannot say there was error committed by the trial court in accepting the

plea.

{¶ 43} Accordingly, and based on the authority of Post as recognized in Ellis, we

cannot find merit in this first pro se assigned error.

15.
 Pro Se Assignment of Error No. 2

{¶ 44} Although similarly worded to his first potential assigned error, appellant

secondly asserts that his due process rights were violated when “the trial court imposed

maximum sentence based on unproven and inaccurate facts proffered by the State and

without complying with Ohio’s current sentencing requirements.”

{¶ 45} We review felony sentences under a two-prong approach. R.C.

2953.08(G)(2) provides that an appellate court may increase, reduce, modify, or vacate

and remand a disputed sentence if it clearly and convincingly finds either of the

following:

(a) That the record does not support the sentencing court’s

findings under division (B) or (D) of section 2929.13, division

(B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section

2929.20 of the Revised Code, whichever, if any, is relevant; or

(b) That the sentence is otherwise contrary to law.

See State v. Behrendt, 6th Dist. Lucas No. L-15-1135, 2016-Ohio-969, ¶ 6; see also State

v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 23.

{¶ 46} A sentence is not contrary to law where the trial court considers the

purposes and principles of sentencing under R.C. 2929.11 along with the seriousness and

recidivism factors under R.C. 2929.12, and imposes a sentence within the statutory range.

See, e.g., State v. Craig, 6th Dist. Wood No. WD-14-061, 2015-Ohio-1479, ¶ 9.

16.
 {¶ 47} Pursuant to R.C. 2929.14(A)(1), the statutory sentencing range for a first-

degree felony is between 3 and 11 years.

{¶ 48} Here, appellant was sentenced to a prison term of 10 years for his

aggravated robbery conviction. This term is within the permissible range. See R.C.

2929.14(A)(1).

{¶ 49} R.C. 2929.11(A) provides, in relevant part: “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 * * *.” In order to comply with R.C. 2929.11, a trial court

must impose a sentence that is “reasonably calculated to achieve the two overriding

purposes of felony sentencing * * * commensurate with and not demeaning to the

seriousness of the offender’s conduct and its impact upon the victim, and consistent with

sentences imposed for similar crimes committed by similar offenders.” See R.C.

2929.11(B).

{¶ 50} In carrying out its obligations to impose a sentence consistent with the

purposes and principles of sentencing, the trial court must weigh the factors indicating

that the offender’s conduct is more serious than conduct normally constituting the offense

under R.C. 2929.12(B) against those factors indicating that the offender’s conduct is less

serious than conduct normally constituting the offense under R.C. 2929.12(C). Further,

the court must weigh the factors contained in R.C. 2929.12(D) indicating the likelihood

17.
that the offender will commit future crimes against the factors contained in R.C.

2929.12(E) indicating that the offender is not likely to commit future crimes.

{¶ 51} We further note that a sentencing court is not required to use any specific

language or make specific findings to demonstrate that it considered the applicable

sentencing criteria. See State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000);

State v. Thebeau, 6th Dist. Ottawa No. OT-14-017, 2014-Ohio-5598, ¶ 16.

{¶ 52} Here, the trial court stated in open court that it considered R.C. 2929.11 and

2929.12, as follows: “[t]he court has considered the record, oral statement, victim impact

statement, and presentence investigation as prepared as well as the principles and

purposes of sentencing under 2929.11. Court has also balanced the seriousness and

recidivism factors under 2929.12.” Further, the sentencing entry states: “[t]he Court has

considered the record, oral statements, any victim impact statement and presentence

report prepared, as well as the principles and purposes of sentencing under R.C. 2929.11,

and has balanced the seriousness, recidivism and other relevant factors under R.C.

2929.12.”

{¶ 53} Therefore, in light of the statements at the hearing, as well as the language

contained in the sentencing entry, we conclude that the trial court complied with its

obligations under R.C. 2929.11 and 2929.12.

{¶ 54} Lastly, we find the sentence imposed was supported in the record.

18.
 {¶ 55} R.C. 2911.01(A)(3) provides that “[n]o person, in attempting or committing

a theft offense * * * or in fleeing immediately after the attempt or offense, shall * * *

[i]nflict, or attempt to inflict, serious physical harm on another.”

{¶ 56} Here, and as noted above, the record reveals appellant admitted through his

own and his counsel’s statements that he was remorseful for committing the theft and

inflicting serious physical harm on the victim. He confirmed that his acts were due to his

addiction to heroin. The trial court responded to appellant and his statements, stating that

based on the court’s interpretation and observations, appellant appeared to understand

and agree that he committed the “worse form of the offense,” and hence that the

maximum term was appropriate. Based on our review of the entire record, we cannot say

the trial court erred in its discretionary determinations.

{¶ 57} Factoring in the above statements, findings, and expressed considerations,

we hold the record supports the imposed sentence and that the imposed sentence is not

contrary to law. Accordingly, we find no merit in this second pro se assigned error.

Our Examination

{¶ 58} Last is our examination of the record to determine whether this appeal is

indeed meritless. Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493. Review of the

record does not reveal any errors by the trial court which would justify a reversal of the

judgment. We thus find this appeal to be meritless, and counsel’s request to withdraw is

found well-taken and is granted.

19.
 Conclusion

{¶ 59} The judgment of the Lucas County Court of Common Pleas is hereby

affirmed. Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24. The

clerk is ordered to serve all parties with notice of this decision.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.

Arlene Singer, J. ____________________________
JUDGE
Thomas J. Osowik, J.
____________________________
Christine E. Mayle, P.J. JUDGE
CONCUR.
____________________________
JUDGE

This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.supremecourt.ohio.gov/ROD/docs/.

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