State v. Character

2011 Ohio 3972

• Court: Ohio Court of Appeals
• Decided: August 11, 2011
• Docket: 93765
• Status: Published

Opinion

[Cite as State v. Character, 2011-Ohio-3972.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 93765

STATE OF OHIO PLAINTIFF-APPELLEE

vs.

DEA L. CHARACTER DEFENDANT-APPELLANT

JUDGMENT: APPLICATION DENIED

Cuyahoga County Common Pleas Court Case No. CR-516633-A Application for Reopening Motion No. 439732

RELEASE DATE: August 11, 2011 FOR APPELLANT

Dea L. Character, pro se Inmate No. 075852 NEPRC (Unit J) 2675 East 30th Street Cleveland, Ohio 44115

ATTORNEYS FOR APPELLEE

William D. Mason Cuyahoga County Prosecutor BY: T. Allan Regas Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113

FRANK D. CELEBREZZE, JR., J.:

{¶ 1} On December 1, 2010, the applicant, Dea Character, pursuant to App.R.

26(B), applied to reopen this court’s judgment in State of Ohio v. Dea Character,

Cuyahoga App. No. 93765, 2010-Ohio-4128, in which this court affirmed her convictions

and sentences for one count of engaging in a pattern of corrupt activity, five counts of

theft by deception, and five counts of money laundering.1 Character now argues that her

1 Initially, Character faced a 56-count indictment, including multiple counts of engaging a pattern of corrupt activity, theft by deception, money laundering, securing records by deception, falsification, telecommunications fraud, forgery, and receiving stolen property. She and her lawyers arranged a plea agreement under which she would plead guilty to the above-listed counts and pay $318,000 in restitution. The trial court sentenced her to an aggregate sentence of four years by running all the sentences concurrently. All of these counts arose out of a scheme of mortgage fraud involving multiple properties. appellate counsel was ineffective for not arguing the following: (1) the trial court denied

her constitutional rights to a fair trial, due process, and equal protection by allowing the

state knowingly to introduce misleading or false testimony, statements or information and

to withhold exculpatory evidence that misled the court; (2) ineffective assistance of trial

counsel for not detecting defects in the indictments; (3) the trial court abused its

discretion and showed bias by sentencing Character on a higher level of felony than the

evidence and record supported and contrary to the sentencing guidelines; (4) the trial

court erred when it failed to notify Character of a mandatory term of postrelease control at

the change of plea hearing or at the sentencing, and thus, rendered the plea involuntary;

(5) the trial court erred by failing to notify her of her right to appeal; and (6) the trial court

erred in imposing restitution without a required hearing. On January 3, 2011, the state of

Ohio filed its brief in opposition. For the following reasons, this court denies the

application to reopen.

{¶ 2} In order to establish a claim of ineffective assistance of appellate counsel,

the applicant must demonstrate that counsel’s performance was deficient and that the

deficient performance prejudiced the defense. Strickland v. Washington (1984), 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley (1989), 42 Ohio St.3d 136,

538 N.E.2d 373, cert. denied (1990), 497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 768;

and State v. Reed, 74 Ohio St.3d 534, 1996-Ohio-21, 660 N.E.2d 456.

{¶ 3} In Strickland, the United States Supreme Court ruled that judicial scrutiny

of an attorney’s work must be highly deferential. The Court noted that it is all too tempting for a defendant to second guess his lawyer after conviction and that it would be

all too easy for a court, examining an unsuccessful defense in hindsight, to conclude that

a particular act or omission was deficient. Therefore, “a court must indulge a strong

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

assistance; that is, the defendant must overcome the presumption that, under the

circumstances, the challenged action ‘might be considered sound trial strategy.’”

Strickland, 104 S.Ct. at 2065.

{¶ 4} Specifically, in regard to claims of ineffective assistance of appellate

counsel, the United States Supreme Court has upheld the appellate advocate’s prerogative

to decide strategy and tactics by selecting what he thinks are the most promising

arguments out of all possible contentions. The Court noted: “Experienced advocates

since time beyond memory have emphasized the importance of winnowing out weaker

arguments on appeal and focusing on one central issue if possible, or at most on a few key

issues.” Jones v. Barnes (1983), 463 U.S. 745, 103 S.Ct. 3308, 3313, 77 L.Ed.2d 987.

Indeed, including weaker arguments might lessen the impact of the stronger ones.

Accordingly, the Court ruled that judges should not second guess reasonable professional

judgments and impose on appellate counsel the duty to raise every “colorable” issue.

Such rules would disserve the goal of vigorous and effective advocacy. The Ohio

Supreme Court reaffirmed these principles in State v. Allen, 77 Ohio St.3d 172,

1996-Ohio-366, 672 N.E.2d 638. {¶ 5} Moreover, even if a petitioner establishes that an error by his lawyer was

professionally unreasonable under all the circumstances of the case, the petitioner must

further establish prejudice: but for the unreasonable error there is a reasonable probability

that the results of the proceeding would have been different. A reasonable probability is

a probability sufficient to undermine confidence in the outcome. A court need not

determine whether counsel’s performance was deficient before examining prejudice

suffered by the defendant as a result of alleged deficiencies.

{¶ 6} Character’s first claim, that the trial court denied her constitutional rights by

allowing the state to introduce misleading or false testimony, material, or information or

to withhold exculpatory evidence, is not well taken. First, Character does not specify

what testimony, information, statements, or exculpatory evidence are at issue, much less

where in the record it could be found. Without that information, this court cannot

examine, much less determine, whether appellate counsel should have argued

admissibility, discovery error, or other issue, and whether there was prejudice.

Moreover, this argument appears to be a variant on what appellate counsel did argue, that

trial counsel was ineffective for failing to prepare and introduce exculpatory evidence.

This court rejected the argument because Character “pointed to no specific evidence to

show that she would have been acquitted, received a more favorable plea deal, or received

a lesser sentence had counsel had more time to prepare.” Character, 2010-Ohio-4128,

¶28. Finally, Character pleaded guilty to the counts, and admitted that she was in fact

guilty. (Tr. Pg. 19.) {¶ 7} Character’s second claim is that trial counsel was ineffective for not arguing

that the indictments did not charge the correct degree of crimes and had other defects.

Again, this argument is not persuasive because Character does not specify the defects in

the indictments. Without that information, this court cannot evaluate the merits of the

argument. Furthermore, a review of the indictments and the corresponding statutes

indicate that the indictments follow the statutes and charge the proper degree of the

offense. Finally, “[a]n unqualified plea of guilty * * * bars further consideration of all

but the most fundamental premises for the conviction. * * *.” Montpelier v. Greeno

(1986), 25 Ohio St.3d 170, 171, 495 N.E.2d 581.

{¶ 8} Character next argues that the trial court erred and abused its discretion and

showed bias by sentencing her based on a higher level of felony than the evidence and

record supported, by not following the statutory sentencing guidelines, and by basing the

testimony on improper and prejudicial evidence. However, the parties all agreed on the

degree of the charges, and the sentences imposed fell within the statutory range for those

offenses. Thus, the sentences came within the principles announced in State v. Foster,

109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470. A review of the record establishes

that the trial court carefully considered multiple factors, including the harm done to the

victims and Character’s abuse of her role of trust as an attorney, in imposing the sentence.

Thus, it is understandable why appellate counsel, in the exercise of professional

judgment, did not argue the four-year aggregate sentence. {¶ 9} Character’s next argument that her guilty plea and sentence were void

because the trial court did not explain mandatory postrelease control during the change of

plea hearing and the sentencing is baseless. The trial court explained postrelease control

during those hearings. Specifically, as to the mandatory nature of postrelease control, the

trial court stated: “On the felony one it has to be for five years. There can be no

reduction.” (Tr. Pg. 14.) During the sentencing hearing, the trial court explained

postrelease control while one of the victims made a statement. (Tr. Pgs. 44-46.)

Although the trial court did not repeat the terms of postrelease control to Character during

the morning sentencing hearing on July 14, 2009, the trial court did explain it again to her

during an afternoon session on the same day.

{¶ 10} Character also tries to argue that her plea and sentence are void because the

trial court did not explain her right to an appeal. However, Character timely filed her

notice of appeal. Thus, there is no prejudice, and this claim is ill-founded. State v.

Inman, Ross App. No. 10CA3176, 2011-Ohio-3438.

{¶ 11} Finally, Character argues that the trial court erred by imposing restitution

without a required hearing. However, restitution of $318,000 was part of the plea

agreement, and she stipulated to the amount. In State v. Hody, Cuyahoga App. No.

94328, 2010-Ohio-6020, this court ruled: “the state and defense entered into a

stipulation as to the amount of restitution. The parties’ stipulation to the amount of

restitution served as sufficient basis to support the trial court’s order and precludes

defendant from complaining about it now on appeal.” ¶25. State v. Sancho, Cuyahoga App. No. 91903, 2009-Ohio-5478; State v. Speweike, Wood App. No. L-10-1198,

2011-Ohio-493; State v. Wickline, Logan App. No. 8-10-20, 2011-Ohio-3004; and State

v. Rosebrook, Logan App. No. 8-05-07, 2006-Ohio-734. Furthermore, R.C.

2929.18(A)(1) provides that no hearing is necessary unless the offender, victim, or

survivor disputes the amount. A review of the record shows that no one disputed the

amount. Therefore, Character’s argument on restitution is not persuasive.

{¶ 12} Accordingly, this court denies the application to reopen.

FRANK D. CELEBREZZE, JR., JUDGE

KENNETH A. ROCCO, P.J., and JAMES J. SWEENEY, J., CONCUR