[Cite as State v. Seanunier, 2017-Ohio-852.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 2016-CA-13
:
v. : T.C. NO. 16-CR-81
:
JOSEPH C. SEAUNIER III : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the ___10th __ day of _____March_____, 2017.
...........
KEVIN TALEBI, Atty. Reg. No. 0069198, 200 N. Main Street, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee
JOHN A. FISCHER, Atty. Reg. No. 0068346, Greene Town Center, 70 Birch Alley, Suite
240, Beavercreek, Ohio 45440
Attorney for Defendant-Appellant
.............
FROELICH, J.
{¶ 1} Joseph C. Seaunier III pled guilty in the Champaign County Court of
Common Pleas to one count of illegal conveyance of drugs of abuse onto grounds of a
specified governmental facility, a third-degree felony, and possession of marijuana, a
minor misdemeanor. In exchange for the plea, the State agreed to dismiss four
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additional charges and to recommend a presentence investigation. After a presentence
investigation, the trial court sentenced Seaunier to a maximum sentence of 36 months for
illegal conveyance and, for both charges, suspended his driver’s license for six months.
{¶ 2} Seaunier’s appellate counsel has filed a brief pursuant to Anders v.
California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating that he found
no non-frivolous issues for appeal. Counsel raised two potential assignments of error,
namely that the trial court erred in imposing a maximum sentence and that trial counsel
rendered ineffective assistance. By entry, we informed Seaunier that his attorney had
filed an Anders brief on his behalf and granted him 60 days from that date to file a pro se
brief. To date, no pro se brief has been filed.
{¶ 3} We have conducted our independent review of the record pursuant to
Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), and we agree with
appellate counsel that there are no non-frivolous issues for review. Accordingly, the trial
court’s judgment will be affirmed.
I. Factual and Procedural History
{¶ 4} According to the record, in February 2016, Seaunier was arrested due to a
probation violation in a Union County case, and he was taken to the Tri-County Jail,
located in Champaign County. Seanuier conveyed drugs into the jail, including two types
of prescription medication. Two days later, corrections officers at the jail received
information that Seaunier might possess contraband, and the officers informed Seaunier
that they were going to do a strip search. In response, Seaunier threw a sock into a
laundry tub; the sock contained pills, marijuana, tobacco, and a lighter. (At sentencing,
Seanier agreed that he brought prescription medication into the jail, but claimed that he
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found the marijuana at the jail.) The record reflects that Seaunier was released from jail,
but the date of his release is not stated.
{¶ 5} On March 3, 2016, Seaunier was indicted on three counts of illegal
conveyance of drugs of abuse onto grounds of a specified governmental facility, a third-
degree felony; one count of possession of dangerous drugs, a fifth-degree felony; and
one count of possession of marijuana, a minor misdemeanor. The indictment was
served on Seaunier on March 4, and he was ordered to appear on March 16. Seaunier
appeared for his arraignment, the court appointed counsel for him, and Seaunier was
ordered to appear again the following day (March 17); Seaunier was released on a
personal recognizance bond. At his March 17 arraignment with counsel, Seaunier pled
not guilty.
{¶ 6} A scheduling conference was held on March 24. At that time, a pretrial
conference was scheduled for April 29, 2016, and a jury trial was set for May 24 and 25,
2016.
{¶ 7} On April 14, 2016, Seaunier was arrested for criminal activity in Union
County, and he again transported drugs into the Tri-County Jail, where he was taken.
According to the presentence investigation report, during a search of Seaunier at the jail,
a corrections officer found contraband sewn into Seaunier’s underwear. The contraband
consisted of tobacco, chew, rolling papers, a match striker, matches, a lighter, and three
suspected oxycodone pills (for which Seaunier had a prescription).
{¶ 8} On April 29, 2016, the date of the scheduled pretrial conference, the parties
informed the trial court that there was a new charge and that they had reached a plea
agreement. The State filed a bill of information, charging another count of illegal
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conveyance, based on Seaunier’s April 14 conduct. Seaunier waived, in writing, his right
to an indictment on that count, as well as his right to 24-hour service. Seaunier then
entered a plea of guilty to the new charge and to possession of marijuana, in exchange
for which the State agreed to dismiss the other four counts of the previous indictment.
The court accepted Seaunier’s guilty plea and ordered a presentence investigation.
{¶ 9} A sentencing hearing was held on June 13, 2016. After an extensive
discussion between the court and Seaunier about the offenses and his criminal history,
the trial court sentenced Seaunier to 36 months in prison for illegal conveyance, and it
suspended Seaunier’s driver’s license for six months for both charges. No additional
sentence was imposed for possession of marijuana.
{¶ 10} Seaunier appeals from his convictions.
II. Maximum Sentence
{¶ 11} Seaunier’s appellate counsel first raises whether the trial court erred in
sentencing Seaunier to the maximum sentence possible for the illegal conveyance
charge.
{¶ 12} “The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings or give its
reasons for imposing maximum or more than minimum sentences.” State v. King, 2013-
Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial
court must consider the statutory policies that apply to every felony offense, including
those set out in R.C. 2929.11 and R.C. 2929.12. State v. Leopard, 194 Ohio App.3d
500, 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio
St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.
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{¶ 13} R.C. 2929.11 requires trial courts to be guided by the overriding purposes
of felony sentencing. Those purposes 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 without imposing an unnecessary burden on state
or local government resources.” R.C. 2929.11(A). The court must “consider the need
for incapacitating the offender, deterring the offender and others from future crime,
rehabilitating the offender, and making restitution to the victim of the offense, the public,
or both.” Id. R.C. 2929.11(B) further provides that “[a] sentence imposed for a felony
shall be 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.”
{¶ 14} R.C. 2929.12(B) sets forth nine factors indicating that an offender’s conduct
is more serious than conduct normally constituting the offense; R.C. 2929.12(C) sets forth
four factors indicating that an offender’s conduct is less serious than conduct normally
constituting the offense. R.C. 2929.12(D) and (E) each lists five factors that trial courts
are to consider regarding the offender’s likelihood of committing future crimes. Finally,
R.C. 2929.12(F) requires the sentencing court to consider the offender’s military service
record.
{¶ 15} Seaunier acknowledged at sentencing that he had a “horrible past” and had
served “extensive prison time,” but he claimed that his crimes were the result of drug
addiction; he requested an opportunity to be sentenced to community control with a drug
treatment program. Seaunier claimed that he did not realize that he had the oxycodone
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(Percocet) pills in his underwear when he was arrested in April 2016. Seaunier also
discussed his poor health, and he stated that a judge in Union County indicated that he
would give Seaunier “drug court” on another pending matter.
{¶ 16} In discussing Seaunier’s criminal history, as reported in the presentence
investigation, the trial court noted that fifteen of Seanier’s past offenses did not involve
drugs, and there was no indication that addiction was the underlying cause. Seaunier
responded that one judge in a prior case had tried to send him to West Central, but he
was not accepted due to his need for seizure medication and a past robbery charge
(which Seaunier denied he had committed). Seaunier indicated that West Central would
not take him now because of his substantial health issues. The trial court also asked
Seaunier about a note in the presentence investigation report that Seaunier had
threatened to stab a facility officer in the face with a knife during the April 14, 2016
investigation; Seaunier stated that he had been intoxicated, and he expressed remorse
for that conduct.
{¶ 17} At the sentencing hearing, the trial court indicated that it had reviewed the
presentence investigation report, the statements of counsel, Seaunier’s statements, and
the court’s interaction with Seaunier. In imposing its sentence, the court orally explained
that Seaunier had “committed the multiple drug-related offenses separated in time in a
local correctional facility within seven months of being released from a state correctional
facility. And the Defendant has been previously convicted of the same offense. And
the Defendant threatened the rehabilitative environment and safety of the local
correctional facility by possessing tobacco, tobacco-related smoking products, and
matches and lighters.” The trial court’s detailed judgment entry reflects that the trial court
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considered the purposes and principles of sentencing (R.C. 2929.11) and the factors set
forth in R.C. 2929.12.
{¶ 18} The presentence investigation report shows nineteen adult convictions over
twenty years. The offenses included domestic violence (1995), carrying a concealed
weapon (1996), assault (2000), several counts of theft (2000, 2009, 2011, 2016), illegal
conveyance of drugs (2002), possession of crack cocaine (2007), aggravated menacing
(2010, 2011), and criminal damaging (2011, 2016). Seaunier had been sentenced to
prison on several occasions: two years in 1998; nine months and six months, respectively,
in two different 2000 cases; one year in 2002, two years in 2007; and four years in 2011.
Seaunier was on probation when he committed the offenses involved in this case, he had
previously committed illegal conveyance of drugs of abuse in 2002, and he committed the
newly-charged offense of illegal conveyance (April 2016 conduct) while on bond in this
case. The Ohio Risk Assessment System (ORAS) report indicated a very high risk of
recidivism.
{¶ 19} Upon review of the record, we agree with appellate counsel that an appeal
of Seaunier’s maximum sentence would be frivolous.
III. Ineffective Assistance of Counsel
{¶ 20} Seaunier’s appellate counsel next raises a potential claim that Seaunier’s
trial counsel rendered ineffective assistance. Appellate counsel states that Seaunier
may have had a defense to the illegal conveyance charge, because he had a prescription
for the medication and he willingly turned them over to corrections officers. Counsel
notes, however, that certain statements by Seaunier indicated that he did not willingly turn
over the drugs.
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{¶ 21} In general, we review alleged instances of ineffective assistance of trial
counsel under the two-pronged analysis set forth in Strickland v. Washington, 466 U.S.
668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio
in State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Pursuant to those cases,
trial counsel is entitled to a strong presumption that his or her conduct falls within the wide
range of reasonable assistance. Strickland, 466 U.S. at 688.
{¶ 22} To establish ineffective assistance of counsel, a defendant must
demonstrate both that trial counsel’s conduct fell below an objective standard of
reasonableness and that the errors were serious enough to create a reasonable
probability that, but for the errors, the outcome of the case would have been different.
See id.; Bradley at 142. Hindsight is not permitted to distort the assessment of what was
reasonable in light of counsel’s perspective at the time, and a debatable decision
concerning trial strategy cannot form the basis of a finding of ineffective assistance of
counsel. State v. Cook, 65 Ohio St.3d 516, 524-525, 605 N.E.2d 70 (1992); State v.
Fields, 2017-Ohio-400, __ N.E.3d __, ¶ 38 (2d Dist.).
{¶ 23} Seaunier acknowledged at sentencing that he usually tried to hide his
medication when he came into the jail and “they wouldn’t find it for days.” With respect
to the February incident (the counts which were dismissed), Seaunier told the trial court
that he had brought his seizure medications – Clonazepam and Quetiapine – into the jail.
Seaunier said:
I did bring them in. I’ve had numerous seizures at the Tri-County. And
they don’t like to transport people to the hospital. * * * I have grand [mal]
seizures. It’s the most weirdest, painfullest [sic] thing you can experience.
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And I have them a lot. And they don’t give me the medications at the Tri-
County Jail because a lot of people abuse them [sic] drugs. So they don’t
give them out. So I had just brought enough to make it to my – all I had
was ten days. I had it enough to make it ten days. That’s it.
{¶ 24} As to the April incident, Seaunier had his medication, along with other items,
sewn into his underwear. Seaunier claimed at sentencing that he had forgotten that the
pills were among the items in his underwear when he turned the underwear over to
corrections officers; the trial court did not believe Seaunier’s assertion.
{¶ 25} Based on the record, we find no arguably meritorious claim that Seaunier’s
counsel rendered ineffective assistance in counseling Seaunier to enter a plea to one
count of illegal conveyance and to possession of marijuana. As result of that plea, the
State dismissed three additional counts of illegal conveyance, all third-degree felonies,
and one count of possession of dangerous drugs, a fifth-degree felony. In addition,
Seaunier’s statements at sentencing reflected that Seaunier repeatedly smuggled his
prescription medication into the jail. We find no basis for Seaunier to claim that his
attorney’s plea recommendation fell below an objective standard of reasonableness.
V. Additional Anders Review
{¶ 26} We have reviewed the entire record, including the transcripts of the plea
and sentencing hearings and the presentence investigation report. Based on our
review, we agree with appellate counsel that no non-frivolous claims exist.
Accordingly, the trial court’s judgment will be affirmed.
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DONOVAN, J. and WELBAUM, J., concur.
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Copies mailed to:
Kevin Talebi
John A. Fischer
Joseph C. Seaunier, III
Hon. Nick A. Selvaggio