State v. Simpson

[Cite as State v. Simpson, 2016-Ohio-7746.]

IN THE COURT OF APPEALS

ELEVENTH APPELLATE DISTRICT

LAKE COUNTY, OHIO

STATE OF OHIO, : OPINION

Plaintiff-Appellee, :
CASE NO. 2016-L-014
- vs - :

CODY R. SIMPSON, :

Defendant-Appellant. :

Criminal Appeal from the Lake County Court of Common Pleas.
Case No. 15 CR 000588.

Judgment: Affirmed.

Charles E. Coulson, Lake County Prosecutor, and Teri R. Daniel, Assistant Prosecutor,
Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, OH
44077 (For Plaintiff-Appellee).

George G. Keith, 135 Portage Trail, P.O. Box 374, Cuyahoga Falls, OH 44223 (For
Defendant-Appellant).

TIMOTHY P. CANNON, J.

{¶1} Appellant, Cody R. Simpson, appeals from the January 7, 2016 judgment

of sentence entered by the Lake County Court of Common Pleas. At issue on appeal is

whether appellant entered his guilty plea voluntarily; whether his trial counsel rendered

ineffective assistance at sentencing; and whether the trial court imposed an excessive

prison sentence. For the reasons that follow, we affirm the judgment of the trial court.
 {¶2} On August 31, 2015, appellant was charged by way of an eleven-count

indictment: two counts of Criminal Damaging or Endangering, second-degree

misdemeanors, in violation of R.C. 2909.06(A)(1); one count of Breaking and Entering,

a fifth-degree felony, in violation of R.C. 2911.13(A); four counts of Burglary, second-

degree felonies, in violation of R.C. 2911.12(A)(2); one count of Burglary, a third-degree

felony, in violation of R.C. 2911.12(A)(3); one count of Safecracking, a fourth-degree

felony, in violation of R.C. 2911.31(A); one count of Theft of Drugs, a fourth-degree

felony, in violation of R.C. 2913.02(A)(1); and one count of Possessing Criminal Tools, a

fifth-degree felony, in violation of R.C. 2923.24(A).

{¶3} Appellant ultimately entered into a plea agreement with appellee, the state

of Ohio, and pled guilty to two counts of Criminal Damaging or Endangering (Counts 1

and 2); one count of Breaking and Entering (Count 3); three counts of Burglary in the

second degree (Counts 4, 5, and 10); and one count of Burglary in the third degree

(Count 8). The state moved to dismiss the remaining counts of the indictment.

{¶4} At the plea hearing, the prosecution stated the evidence would show that

around 2:30 a.m. on July 9, 2015, in the city of Mentor, appellant struck and ran over six

mailboxes on Green Valley Drive and Wayside Drive with his Ford F-150 truck. He then

drove to Kathleen Drive, where he ran over six more mailboxes with his truck. Appellant

then broke into the City of Mentor Morton Pool concession stand, which was

unoccupied at the time, and stole $30 worth of candy. Appellant left the area in his

truck and drove to Hollycroft Lane. He broke into the home of James and Michelle

Bernot through a garage window and stole a roll of quarters from a vehicle in the

garage. Appellant entered the residence and fled when he was confronted by Mr.

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Bernot. Appellant then broke into the home of Brian Bradley, who was asleep, and took

$100 from a wallet and some items from the house. Mr. Bradley also discovered a

bedroom safe had been removed to the garage, where he found someone had

unsuccessfully attempted to make entry with garden tools. Next, appellant broke into

Andrew Charielle’s home, which was not occupied that night. Appellant stole some

money and a bottle of medicine prescribed to Mr. Charielle’s autistic son. Finally,

appellant broke into the home of Angela Saporito, who was home at the time, and rifled

through her purse, dressers, and kitchen cabinets. An eight-year-old child was also

present at one of the homes during the break-in. Following an investigation, appellant

was apprehended by the Mentor Police Department six days later while being

discharged from Laurelwood Hospital, where he was receiving mental health treatment.

{¶5} At the plea hearing, appellant admitted running over the mailboxes and

breaking into the homes and the concession stand. Appellant stated he did not

remember all of the details of what he stole but admitted the items were in his truck the

next morning. After a lengthy colloquy, the trial court accepted appellant’s plea of guilty

to seven counts of the indictment and dismissed the remaining four counts as

recommended by the state.

{¶6} At the sentencing hearing, the trial court heard from appellant and his

mother, father, step-father, and sister, all of whom detailed appellant’s struggle with

severe depression, anxiety, and substance abuse. The court reviewed the presentence

investigation report, victim impact statements, and a psychological evaluation that

indicated appellant has been diagnosed with anxiety and depression. Appellant’s

counsel requested community control sanctions or a prison term of four or five years

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due to his mental health issues; the state recommended a prison term of seventeen and

one-half years.

{¶7} The trial court sentenced appellant to a total of sixteen and one-half years

in prison: six months on Count 3, five years on Count 4, five years on Count 5, twelve

months on Count 8; and five years on Count 10 to be served consecutively; and ninety

days in jail on both Count 1 and Count 2 to be served concurrent to each other and to

the stated prison term. Appellant was also ordered to pay restitution to the victims and

to forfeit his Ford F-150, cell phone, and multi-tool used during the commission of the

instant offenses.

{¶8} Appellant timely appeals his sentence and raises four assignments of

error for our review. His first assignment of error states:

{¶9} “Given the totality of the circumstances, the trial court erred in accepting

appellant’s plea of guilty, which was not knowing, voluntary and intelligently given. [sic.]”

{¶10} Appellant asserts the trial court erred in accepting his guilty plea because

it was not entered knowingly, voluntarily, and intelligently. Appellant argues the trial

court did not make an adequate inquiry into his mental state after he informed the trial

court that he has been diagnosed with multiple mental illnesses and had taken three

different medications within the preceding 24 hours to treat those mental illnesses.

Appellant did not raise this challenge in the trial court or file a motion to withdraw his

guilty plea, thus he has forfeited all but plain error review.

{¶11} “Crim.R. 52(B) affords appellate courts discretion to correct ‘[p]lain errors

or defects affecting substantial rights’ notwithstanding the accused’s failure to meet his

obligation to bring those errors to the attention of the trial court.” State v. Rogers, 143

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Ohio St.3d 385, 2015-Ohio-2459, ¶22. To constitute plain error, an error must be an

obvious deviation from a legal rule that affected the outcome of the trial or prejudiced

the defendant. State v. Barnes, 94 Ohio St.3d 21, 27 (2002) (citations omitted). “The

test for prejudice in the context of a guilty or no contest plea is ‘whether the plea would

have otherwise been made.’” State v. Dundics, 11th Dist. Trumbull No. 2015-T-0047,

2016-Ohio-1368, ¶19, quoting State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415,

¶12.

{¶12} Crim.R. 11(C)(2) provides that a trial court “shall not accept a plea of guilty

* * * without first addressing the defendant personally and * * * (a) Determining that the

defendant is making the plea voluntarily, with understanding of the nature of the

charges and of the maximum penalty involved[.]” “Additional inquiry is necessary into a

defendant’s mental state once a defendant seeking to enter a guilty plea has stated that

he is under the influence of drugs or medication.” State v. Mink, 101 Ohio St.3d 350,

2004-Ohio-1580, ¶66 (citations omitted).

{¶13} The transcript of appellant’s plea hearing is 41 pages in length; the trial

court’s direct colloquy with appellant comprises approximately 35 of those pages. The

following exchange took place with regard to appellant’s mental state:

THE COURT: Now prior to coming to court today have you
consumed any drugs or alcohol or taken any prescription
medications in the last 48 hours?

THE DEFENDANT: Prescription medications.

THE COURT: What have you taken?

THE DEFENDANT: Zoloft, Lamictal.

THE COURT: Lamictal?

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 THE DEFENDANT: Lamictal, Neurontin, and Seroquel.

THE COURT: And when did you, when is the last time you took any
medications?

THE DEFENDANT: I took all of them but the Seroquel about 15
hours ago and I took the Seroquel last night at about 8:00 p.m.

THE COURT: Have you ever been diagnosed or treated for any
mental illness?

THE DEFENDANT: Yes.

THE COURT: And what mental illnesses have you been diagnosed
with?

THE DEFENDANT: Just have paranoid delusions, anxiety,
depression, ADHD.

THE COURT: Now has, have those conditions and/or the taking of
this medication today and yesterday, does that affect the way
you’re thinking?

THE DEFENDANT: No.

THE COURT: Are you able to understand everything and process
everything that we talked about so far?

THE DEFENDANT: Yes.

THE COURT: All right. Do you have any confusion at all about
what we’re doing here?

THE DEFENDANT: No.

{¶14} We conclude this colloquy between the trial court and appellant was

sufficient to support the trial court’s decision that appellant knew and appreciated the

nature of the proceedings and the consequences associated with his plea. As a result,

the trial court properly determined the guilty plea was entered voluntarily. Moreover, the

trial court spoke at length with appellant throughout the hearing and was able to

observe his demeanor and reactions throughout the proceeding. See State v.

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Gallagher, 5th Dist. Morrow No. CA941, 2003-Ohio-3581, ¶54-55; State v. Rogers, 8th

Dist. Cuyahoga Nos. 97093 & 97094, 2012-Ohio-2496, ¶20, citing Mink, supra.

Appellant has not shown that the trial court’s acceptance of his guilty plea was plain

error.

{¶15} Appellant’s first assignment of error is without merit.

{¶16} We next jointly consider appellant’s second and fourth assignments of

error:

[2.] The trial court abused its discretion by failing to consider the
substantial grounds to mitigate the appellant’s conduct, as required
by R.C. 2929.12(C).

[4.] The trial court committed abused its discretion [sic] by imposing
an unreasonably excessive sentence.

{¶17} Appellant argues the trial court abused its discretion by failing to consider

potential mitigating factors before it imposed an unreasonably excessive sentence in

violation of the Eighth Amendment prohibition against cruel and unusual punishment.

{¶18} This court utilizes R.C. 2953.08(G) as the standard of review in all felony

sentencing appeals. State v. Hettmansperger, 11th Dist. Ashtabula No. 2014-A-0006,

2014-Ohio-4306, ¶14. Therefore, we must determine whether appellant’s sentence is

contrary to law, not whether the trial court abused its discretion. State v. Marcum, Sup.

Ct. Nos. 2014-1825 & 2014-2122, 2016-Ohio-1002, ¶10, citing R.C. 2953.08(G)(2). For

the following reasons, we conclude that appellant’s sentence is not contrary to law.

{¶19} A court imposing a felony sentence is required to consider the seriousness

and recidivism factors found in R.C. 2929.12 in order to ensure the sentence complies

with the overriding principles of felony sentencing as stated in R.C. 2929.11. The trial

court, however, “is not required to ‘use specific language or make specific findings on

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the record in order to evince the requisite consideration of the applicable seriousness

and recidivism factors (of R.C. 2929.12).’” State v. Webb, 11th Dist. Lake No. 2003-L-

078, 2004-Ohio-4198, ¶10, quoting State v. Arnett, 88 Ohio St.3d 208, 215 (2000); see

also State v. McGinnis, 11th Dist. Lake No. 2015-L-096, 2016-Ohio-1362, ¶8. Further,

the “trial court is not required to give any particular weight or emphasis to a given set of

circumstances” when considering the statutory factors. State v. Delmanzo, 11th Dist.

Lake No. 2007-L-218, 2008-Ohio-5856, ¶23.

{¶20} R.C. 2929.12(C) provides that “[t]he sentencing court shall consider all of

the following that apply regarding the offender, the offense, or the victim, and any other

relevant factors, as indicating that the offender’s conduct is less serious than conduct

normally constituting the offense:

(1) The victim induced or facilitated the offense.

(2) In committing the offense, the offender acted under strong
provocation.

(3) In committing the offense, the offender did not cause or expect
to cause physical harm to any person or property.

(4) There are substantial grounds to mitigate the offender’s
conduct, although the grounds are not enough to constitute a
defense.

{¶21} Appellant contends the trial court did not adequately consider R.C.

2929.12(C)(4) as it pertains to his mental health issues, his various medications, the

trouble he was having in his personal life, and his self-medicating behavior (i.e., drugs

and alcohol) to “escape” from his illnesses.

{¶22} Contrary to appellant’s position, the record demonstrates the trial court

fully considered the seriousness and recidivism factors in R.C. 2929.12. It found the

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following factors rendered the offenses more serious: (1) there were multiple victims

and households; (2) the young age of one of the victims; (3) the serious economic and

psychological harm caused to the victims; and (4) appellant committed the offenses

while on probation. The trial court also stated that appellant’s criminal history increased

the risk of recidivism.

{¶23} The trial court found appellant was genuinely remorseful, but that none of

the mitigating factors applied to justify a lesser penalty. Specifically, the trial court did

not find a direct connection between appellant’s mental illness diagnoses, his

treatments, and the instant offenses. To the contrary, it was evident to the trial court

from appellant’s own statements that he did not check himself into Laurelwood the

following day as an act of remorse; rather, prior to committing these crimes, appellant

had decided he needed professional help but not until he further indulged in drugs and

alcohol.

THE COURT: And the night that these crimes occurred as I
understand it from reviewing the presentence report you were going
to go back to Laurelwood the next day?

THE DEFENDANT: Yeah.

THE COURT: And so why did you take the Kratom and go out
drinking the night before?

THE DEFENDANT: I guess sort of like a last little thing before I
went there again before I stayed for a week. It was a very bad
decision.

***

THE COURT: * * * I’m also aware that you knew by virtue of the
fact that you were taking these three medications for a period of
time on a daily basis that, that you knew that the ingestion of
Kratom wasn’t going to be a positive in interacting with your
medication. Certainly the ingestion of alcohol was not going to be a

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 positive mix with your medications. And certainly that you intended
to go to Laurelwood on July 10th. You were well aware that taking
the Kratom and having four drinks the night before wasn’t going to
be a good combination but you did it any way, right?

THE DEFENDANT: Yes.

***

THE COURT: * * * So I’ve considered everything I think there is to
consider in this case, Mr. Simpson, and as I said a couple of times
what seems to be lacking is the direct connection between your
mental illness diagnoses, treatments and then these offenses
because if I’m to take everything as true from what you told me
then what’s missing here is where all this other activity was up till
July 9th and why you did it on July 9th.

{¶24} Finally, in its judgment entry of sentence, the trial court stated that it

considered “the principles and purposes of sentencing under R.C. 2929.11, and has

balanced the seriousness and recidivism factors under R.C. 2929.12.” “This suggests

the trial court did, in fact, consider the requisite statutory factors.” State v. Goodnight,

11th Dist. Lake No. 2008-L-029, 2009-Ohio-2951, ¶17, citing State v. Kearns, 11th Dist.

Lake No. 2007-L-047, 2007-Ohio-7117, ¶10.

{¶25} Appellant’s second assignment of error is without merit.

{¶26} The Eighth Amendment to the United States Constitution provides:

“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and

unusual punishments inflicted.” The Amendment is applied to the states through the

Due Process Clause of the Fourteenth Amendment. See Robinson v. California, 370

U.S. 660, 666 (1962), citing Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947).

{¶27} “As a general rule, a sentence that falls within the terms of a valid statute

cannot amount to a cruel and unusual punishment.” McDougle v. Maxwell, 1 Ohio St.2d

68, 69 (1964) (citations omitted). Instances of cruel and unusual punishment are limited

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to those that would, under the circumstances, shock any reasonable person and shock

the sense of justice of the community. State v. Weitbrecht, 86 Ohio St.3d 368, 370

(1999) (citations omitted). In evaluating whether a punishment is cruel and unusual, the

U.S. Supreme Court instructs that “a criminal sentence must be proportionate to the

crime for which the defendant has been convicted.” Solem v. Helm, 463 U.S. 277, 290

(1983).

‘First, we look to the gravity of the offense and the harshness of the
penalty. * * * Second, it may be helpful to compare the sentences
imposed on other criminals in the same jurisdiction. If more serious
crimes are subject to the same penalty, or to less serious penalties,
that is some indication that the punishment at issue may be
excessive. * * * Third, courts may find it useful to compare the
sentences imposed for commission of the same crime in other
jurisdictions.’

Weitbrecht, supra, at 371, quoting Solem, supra, at 290-291.

{¶28} We also note that “the goal of felony sentencing pursuant to R.C.

2929.11(B) is to achieve ‘consistency’ not ‘uniformity.’” State v. Palicka, 8th Dist.

Cuyahoga No. 93766, 2010-Ohio-3726, citing State v. Klepatzki, 8th Dist. Cuyahoga

No. 81676, 2003-Ohio-1529, ¶32. “[A] consistent sentence is not derived from a case-

by-case comparison[.]” State v. Swiderski, 11th Dist. Lake No. 2004-L-112, 2005-Ohio-

6705, ¶58 (emphasis added). To the contrary, it is well established that consistency in

sentencing is accomplished by the trial court’s application of the statutory sentencing

guidelines to each individual case. See, e.g., State v. Latimer, 11th Dist. Portage No.

2011-P-0089, 2012-Ohio-3745, ¶20, citing Swiderski, supra, at ¶58. Thus, in order to

show a sentence is inconsistent with sentences imposed on other offenders, a

defendant must show the trial court failed to properly consider the statutory purposes

and factors of felony sentencing. Id.

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 {¶29} Here, each imposed prison term is within the statutory range and the total

term is far less than the maximum sentence appellant could have received, to wit: a

total of twenty-eight years imprisonment and a fine of $57,500. We have already held

that the trial court properly considered the R.C. 2929.12 factors. The trial court also

stated it considered the R.C. 2929.11 purposes and principles of felony sentencing in

finding it necessary to incarcerate appellant, and that appellant is not amenable to an

available community control sanction. Finally, the trial court made the following findings

in support of its decision to impose consecutive sentences:

Pursuant to R.C. 2929.14(C)(4) and R.C. 2929.19(B)(2)(b), the
Court finds for the reasons stated on the record that consecutive
sentences are necessary to protect the public from future crime or
to punish the Defendant and are not disproportionate to the
Defendant’s conduct and the danger the Defendant poses to the
public, and that the Defendant committed one or more of the
multiple offenses while under a sanction pursuant to R.C. 2929.16,
2929.17, or 2929.18; that 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 committed by the
Defendant 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 Defendant’s
conduct and the Defendant’s history of criminal conduct
demonstrates that consecutive sentences are necessary to protect
the public from future crime by the Defendant.

{¶30} Appellant does not have an extensive criminal history and has only spent

approximately 90 days in jail for previous offenses. Nevertheless, in light of the

seriousness of the instant offenses, we do not find appellant’s current prison sentence

of sixteen and one-half years is “shocking” to a reasonable person or to the

community’s sense of justice, disproportionate to the crimes, or inconsistent with other

offenders sentenced under the same statutory guidelines. We also note that, as stated

in his written plea of guilty, appellant does appear to be eligible for judicial release.

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 {¶31} Appellant’s fourth assignment of error is without merit.

{¶32} Appellant’s third assignment of error states:

{¶33} “Appellant’s trial counsel’s failure to introduce evidence of the effects of

appellant’s medications and mental illness during sentencing constituted ineffective

assistance of counsel.”

{¶34} Under his third assignment of error, appellant contends he received

ineffective assistance of counsel at his sentencing hearing.

{¶35} There is a general presumption that trial counsel’s conduct is within the

broad range of professional assistance. State v. Bradley, 42 Ohio St.3d 136, 142

(1989). In order to prevail on a claim of ineffective assistance of counsel, an appellant

must overcome that presumption by demonstrating that trial counsel’s performance fell

“below an objective standard of reasonable representation and, in addition, prejudice

arises from counsel’s performance.” Id. at paragraph two of the syllabus (adopting the

test set forth in Strickland v. Washington, 466 U.S. 668 (1984)). In order to show

prejudice, an appellant must demonstrate a reasonable probability that, but for

counsel’s error, the result of the proceeding would have been different. Id. at paragraph

three of the syllabus. If a claim can be disposed of by showing a lack of sufficient

prejudice, there is no need to consider the first prong, i.e., whether trial counsel’s

performance was deficient. Id. at 143, citing Strickland, supra, at 695-696.

{¶36} Appellant asserts his trial counsel was ineffective because he did not

introduce evidence of appellant’s mental illnesses and the effects of his prescription

medication at the sentencing hearing. Prior to imposing sentence, the trial court

considered, inter alia, statements on the issue made by appellant, his defense counsel,

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and four family members; a letter from appellant detailing his history of depression; a

presentence report that includes details of appellant’s mental health issues, drug use,

and prescription medication; and a psychological evaluation conducted by the court

psychologist—all of which indicate appellant had prior diagnoses of depression and

anxiety disorders. The trial court recognized, however, that the court psychologist did

not believe appellant was completely forthright about his mental health issues during the

psychological evaluation. Nevertheless, the trial court did not discount the fact that

appellant obviously suffers from severe depression for which he takes medication;

rather, the court determined there was no “direct connection” between those mental

health issues and the instant offenses.

{¶37} In light of these facts and the analysis under the second and fourth

assignments of error, appellant has not demonstrated a reasonable probability that the

imposition of sentence would have been different if trial counsel had introduced

cumulative evidence of appellant’s mental health and the effect of his medications. As

we do not find prejudice, there is no reason to consider whether trial counsel’s

performance fell below an objective standard of reasonable representation. We note,

parenthetically, that even if we found prejudice, the issue raised regarding trial counsel’s

performance could only sufficiently be addressed in a proceeding for postconviction

relief. This is primarily due to the fact that there is nothing in the record to establish

what effect the medication had or did not have on any aspect of the case. While

appellate counsel speculates that the effect of the medications had some significant

impact, it is also possible that trial counsel pursued this information and determined the

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medications had no significant impact. This court cannot speculate as to what trial

counsel’s preparation and investigation may or may not have concluded.

{¶38} Appellant’s third assignment of error is without merit.

{¶39} For the foregoing reasons, the judgment of the Lake County Court of

Common Pleas is affirmed.

CYNTHIA WESTCOTT RICE, P.J.,

DIANE V. GRENDELL, J.,

concur.

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