State v. Bohn

2012 Ohio 2096

• Court: Ohio Court of Appeals
• Decided: May 11, 2012
• Docket: 2011-CA-48
• Status: Published

Opinion

[Cite as State v. Bohn, 2012-Ohio-2096.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY

STATE OF OHIO : : Appellate Case No. 2011-CA-48 Plaintiff-Appellee : : Trial Court Case No. 2011-CR-43 v. : : JACLYN BOHN : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : :

...........

OPINION

Rendered on the 11th day of May, 2012.

STEPHEN K. HALLER, Atty. Reg. #0009172, by ELIZABETH A. ELLIS, Atty. Reg. #0074332, Greene County Prosecutor’s Office, Civil Division, 61 Greene Street, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee

THOMAS M. ADAM, Atty. Reg. #0081321, 424 Patterson Road, Dayton, Ohio 45419 Attorney for Defendant-Appellant

.............

HALL, J.

{¶ 1} Jaclyn Bohn appeals from her conviction and sentence following a negotiated

guilty plea to one count of money laundering and one count of conspiracy to commit money 2

laundering.

{¶ 2} Bohn advances three assignments of error on appeal. First, she contends her

prosecution on the money laundering charge was barred by the applicable statute of limitation.

Second, she claims her attorney provided constitutionally ineffective assistance by failing to

raise the statute-of-limitation issue and allowing her to plead guilty to money laundering.

Third, she asserts that the trial court abused its discretion in imposing an aggregate one-year

prison sentence.

{¶ 3} The record reflects that the State indicted Bohn on nine counts for her role in a

drug-trafficking operation. The first count charged engaging in a pattern of corrupt activity, a

first-degree felony. The second count charged conspiracy to commit engaging in a pattern of

corrupt activity, a second-degree felony. The third through seventh counts charged money

laundering, third-degree felonies. The eighth count charged cocaine possession, a fifth-degree

felony. The ninth count charged obstructing official business, a second-degree misdemeanor.

The indictment also contained forfeiture specifications.

{¶ 4} Bohn pled guilty to count five (money laundering) and an amended count

seven (conspiracy to commit money laundering). She also agreed to the forfeiture

specifications. In exchange for the guilty pleas, the State dismissed all other charges and

agreed to recommend community control. During the plea hearing, Bohn acknowledged that

her attorney had “talked about potential defenses and the nature of the charges[.]” The trial

court accepted Bohn’s pleas. It later imposed concurrent, one-year prison sentences.

{¶ 5} In her first assignment of error, Bohn contends the State violated the

applicable statute of limitation by prosecuting her more than six years after the occurrence of 3

the money-laundering offense in count five. She addresses the issue as plain error because she

failed to raise it below.

{¶ 6} Count five of the indictment accused Bohn of engaging in money laundering

on March 3, 2003. Her indictment was filed on January 21, 2001. Under R.C.

2901.13(A)(1)(a), prosecution for a felony generally must be commenced within six years of

the offense. Although Bohn was indicted more than six years after the offense charged in

count five, we have previously held that failure to assert a statute-of-limitation defense in the

trial court waives it. State v. Jackson, 2d Dist. Greene Nos. 2008 CA 30, 2008 CA 31,

2009-Ohio-1773, ¶ 5.

{¶ 7} While the issue remains reviewable under the plain-error doctrine, we find no

plain error here. Establishing plain error requires a showing of prejudice. State v. Rhines, 2d

Dist. Montgomery No. 24203, 2011-Ohio-3615, ¶ 26. Bohn was not prejudiced by her failure

to raise a statute-of-limitation argument below. Even if she had prevailed on a claim that count

five was time barred, the indictment contained other identical charges that were not time

barred. Count four charged her with money laundering on March 6, 2009. Count six charged

her with money laundering on June 28, 2007. Neither of these charges was barred by the

six-year statute of limitation. Therefore, if Bohn had objected to being prosecuted on count

five, the State could have negotiated that her guilty plea be to count four or count six instead.

The defendant has failed to demonstrate how it made any difference which particular

money-laundering charge was part of the plea agreement. Just as important is that the failure

to contemporaneously raise the statute-of-limitation issue prevents the State from raising,

and the trial court from evaluating, possible extensions of the statute of limitation by R.C. 4

2901.13(D) (a continuing course of conduct) or R.C. 2901.13(F) (corpus delecti

undiscovered). Accordingly, the defendant has failed to demonstrate prejudice, which requires

that we overrule the first assignment of error.

{¶ 8} In her second assignment of error, Bohn raises an

ineffective-assistance-of-counsel argument based on her attorney’s failure to address the

statute-of-limitation issue below.

{¶ 9} To establish ineffective assistance, Bohn must show that her attorney’s

performance was deficient and that it prejudiced her. Strickland v. Washington, 466 U.S. 668,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). She does not make either showing. Bohn

acknowledged during her plea hearing that her attorney had discussed potential defenses with

her. The statute of limitation is a potential defense in a criminal case. Jackson, supra. Absent

evidence that her attorney failed to discuss the statute of limitation with her, we will presume

regularity and, thus, cannot find deficient performance on this record.

{¶ 10} In any event, Bohn was not prejudiced even assuming her attorney did

overlook a statute-of-limitation issue. As explained above, the parties could have substituted

the money-laundering charge in count four or count six and proceeded with the same plea

agreement. There may have been statutory reasons to extend the limitation period. To

demonstrate prejudice, Bohn must show that she likely would not have pled guilty and instead

would have gone to trial if she had known about the potential statute-of-limitation issue. State

v. King, 2d Dist. Montgomery No. 23325, 2010-Ohio-2839, ¶ 11. Given the ease with which

another money-laundering charge could have been substituted for count five, the potential for

extension of the limitation period, and the substantial benefit Bohn obtained from the plea 5

deal, including the dismissal of serious felonies and the State’s recommendation of

community control, she has failed to demonstrate a reasonable likelihood that she would have

gone to trial if count five had been declared time barred. Therefore, we are unpersuaded that

she was prejudiced even if her attorney did fail to recognize the statute-of-limitation issue.

The second assignment of error is overruled.

{¶ 11} In her third assignment of error, Bohn claims the trial court abused its

discretion in sentencing her to one year in prison. Specifically, she argues that

the“seriousness” and “recidivism” factors in R.C. 2929.12 do not demonstrate the need for a

prison sentence. She also contends the trial court improperly considered the conduct of her

husband and a co-defendant, as well as the fact that she was charged with nine counts.

{¶ 12} We see no abuse of discretion in Bohn’s sentence. Community control is not

required even if most of the statutory seriousness and recidivism factors weigh in a

defendant’s favor. State v. Garza, 2d Dist. Clark No. 2011-CA-20, 2012-Ohio-200, ¶ 7. The

trial court’s only obligation was to consider the factors. Id. As for the trial court’s reference to

Bohn’s husband and a co-defendant, it noted only that her money laundering was an integral

part of a larger drug-trafficking operation. The trial court was entitled to take this fact into

account. The trial court also was entitled to consider the benefit Bohn obtained from her plea

bargain, including the dismissal of other serious charges, when imposing her sentence. State v.

Bowser, 186 Ohio App.3d 162, 2010-Ohio-951, 926 N.E.2d 714, ¶ 16 (2d Dist.).

Accordingly, her third assignment of error is overruled.

{¶ 13} The judgment of the Greene County Common Pleas Court is affirmed.

............. 6

FAIN and FROELICH, JJ., concur.

Copies mailed to:

Stephen K. Haller Elizabeth A. Ellis Thomas M. Adam Hon. Stephen Wolaver