State v. Compton

2018 Ohio 2868

• Court: Ohio Court of Appeals
• Decided: July 19, 2018
• Docket: CT2018-0004
• Status: Published

Opinion

[Cite as State vs. Compton, 2018-Ohio-2868.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. John W. Wise, P. J. Plaintiff-Appellee Hon. William B. Hoffman, J. Hon. Earle E. Wise, J. -vs- Case No. CT2018-0004 GARY O. COMPTON

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. CR2017-0282

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: July 19, 2018

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

D. MICHAEL HADDOX JAMES A. ANZELMO PROSECUTING ATTORNEY ANZELMO LAW GERALD V. ANDERSON II 446 Howland Drive ASSISTANT PROSECUTOR Gahanna, Ohio 43230 27 North Fifth Street, P.O. Box 189 Zanesville, Ohio 43702-0189 Muskingum County, Case No. CT2018-0004 2

Wise, John, P. J.

{¶1} Defendant-Appellant Gary O. Compton appeals from his convictions, in the

Muskingum County Court of Common Pleas, on one count of burglary and one count of

motor vehicle theft. Appellee is the State of Ohio. The relevant facts leading to this appeal

are as follows.

{¶2} On April 9, 2017, Lonnie Shimer returned to his home near Dresden, Ohio,

and discovered a stranger inside his garage. Mr. Shimer gave chase to the man, but he

lost track of him. When Shimer returned to his home, he noticed that several items had

been removed from the residence and put into the garage. Sheriff deputies investigated

and obtained a jacket Shimer discovered at the house, which was later determined to

bear traces of appellant’s DNA. Security footage from a nearby tavern also helped

detectives identify appellant as the man who had run from the scene

{¶3} On April 10, 2017, Richard Cullins, who lives just one mile from Shimer,

reported that his 2006 Chrysler minivan had been stolen. The vehicle was later recovered

in Glenford, Ohio. A cigarette lighter found at the spot of recovery was analyzed and also

found to bear traces of appellant’s DNA.

{¶4} On August 23, 2017, appellant was indicted one count of burglary (R.C.

2911.12(A)(2)), a felony of the second degree, and one count of theft of a motor vehicle

(R.C. 2913.02), a felony of the fourth degree.

{¶5} On December 11, 2017, appellant appeared before the trial court with

appointed counsel and pled guilty to both charges.

{¶6} A sentencing hearing was conducted on December 29, 2017. Appellant told

the court he is a heroin user and that his criminal history is due to his habit. After Muskingum County, Case No. CT2018-0004 3

conducting the hearing and reviewing the pre-sentencing investigation report (“PSI”), the

trial court sentenced appellant inter alia to seven years for the crime of burglary and

twelve months for the crime of motor vehicle theft. These terms were ordered to be served

consecutively.

{¶7} On January 10, 2018, appellant filed a notice of appeal. He herein raises

the following two Assignments of Error:

{¶8} “I. THE TRIAL COURT UNLAWFULLY ORDERED GARY COMPTON TO

SERVE CONSECUTIVE SENTENCES, IN VIOLATION OF HIS RIGHTS TO DUE

PROCESS, GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO

CONSTITUTION AND THE FIFTH AND FOURTEENTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION.

{¶9} “II. GARY COMPTON RECEIVED INEFFECTIVE ASSISTANCE OF

COUNSEL, IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES

CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.”

I.

{¶10} In his First Assignment of Error, appellant contends the trial court erred and

violated his constitutional rights in ordering consecutive sentences for his two offenses.

We disagree.

{¶11} 2011 Am.Sub.H.B. No. 86 revived the language provided in former R.C.

2929.14(E) and moved it to R.C. 2929.14(C)(4). The General Assembly has thus

expressed its intent to revive the statutory fact-finding provisions pertaining to the

imposition of consecutive sentences that were effective in the pre–Foster era. See State

v. Wells, 8th Dist. Cuyahoga No. 98428, 2013–Ohio–1179, ¶ 11. The Ohio Supreme Court Muskingum County, Case No. CT2018-0004 4

has clearly held: “In order to impose consecutive terms of imprisonment, a trial court is

required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing

and incorporate its findings into its sentencing entry, but it has no obligation to state

reasons to support its findings.” State v. Bonnell, 140 Ohio St.3d 209, 16 N.E.3d 659,

2014–Ohio–3177, syllabus.

{¶12} Furthermore, we no longer review sentences pursuant to the standard set

forth in State v. Kalish, 120 Ohio St. 3d 23, 2008–Ohio–4912, 896 N.E.2d 124. See State

v. Cox, 5th Dist. Licking No. 16–CA–80, 2017–Ohio–5550, ¶ 9. We now review felony

sentences using the standard of review set forth in R.C. 2953.08. See State v. Marcum,

146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶ 22. Thus, under R.C.

2953.08(G)(2)(a), we will in this instance consider on appeal whether there is clear and

convincing evidence that the record in the case sub judice does not support the

sentencing court's findings under R.C. 2929.14(C)(4) to impose consecutive sentences.

See State v. Deeb, 6th Dist. Erie No. E–14–117, 2015–Ohio–2442, ¶ 27. See, also, R.C.

2953.08(C)(1).

{¶13} We direct our attention to R.C. 2929.14(C)(4), which provides as follows:

If multiple prison terms are imposed on an offender for convictions of

multiple offenses, the court may require the offender to serve the prison

terms consecutively if the court finds that the consecutive service is

necessary to protect the public from future crime or to punish the offender

and that consecutive sentences are not disproportionate to the seriousness

of the offender's conduct and to the danger the offender poses to the public,

and if the court also finds any of the following: Muskingum County, Case No. CT2018-0004 5

(a) The offender committed one or more of the multiple offenses

while the offender was awaiting trial or sentencing, was under a sanction

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised

Code, or was under post-release control for a prior offense.

(b) 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 so committed 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 offender's conduct.

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime

by the offender.

{¶14} In a nutshell, “R.C. 2929.14(C)(4) provides that a trial court may require the

offender to serve multiple prison terms consecutively if the court finds that the consecutive

service is necessary to protect the public from future crime or to punish the offender and

that consecutive sentences are not disproportionate to the seriousness of the offender's

conduct and to the danger the offender poses to the public, and if the court also finds any

one of three facts specified in subdivisions (a), (b), and (c).” State v. Leet, 2nd Dist.

Montgomery No. 25966, 2015–Ohio–1668, ¶ 15 (internal quotations and brackets

omitted).

{¶15} In the case sub judice, the trial court made written findings in accordance

with the language of the first paragraph of R.C. 2929.14(C)(4), supra, and also made a

written finding under subdivision (c), i.e., that “[t]he Defendant’s history of criminal conduct Muskingum County, Case No. CT2018-0004 6

demonstrates that consecutive sentences are necessary to protect the public from future

crime by the offender.” Judgment Entry, January 2, 2018, at 2.

{¶16} Similar oral findings were made on the record at sentencing. See

Sentencing Tr. at 9-10.

{¶17} Appellant posits that his offenses were non-violent and thus should be

treated as less serious that conduct normally constituting the offenses, pursuant to R.C.

2929.12(C)(3). We note appellant’s attorney told the court at sentencing that appellant

was mostly looking for clothing and food when he entered the Shimer residence.

Sentencing Tr. at 6. Appellant also presently submits that he has expressed remorse (see

R.C. 2929.12(E)(5)) and that at the time of the Shimer burglary, he was “deathly ill” due

to a recent heroin overdose (see Sentencing Tr. at 6; R.C. 2929.12(C)(4)). However, the

record reveals that appellant herein committed two separate theft-related felonies within

a few hours of each other against two victims. According to information in the PSI and

presented at the plea hearing, the minivan appellant stole from Mr. Cullins was then found

at the scene of suspected breaking and entering incident at a Glenford, Ohio farm. See

Plea Tr. at 12. Appellant was facing an additional felony charge for marijuana cultivation

in Morgan County at the time of sentencing, and he has at least ten prior felonies on his

record, including grand theft and receiving stolen property. Sentencing Tr. at 8; PSI at 5.

His last known regular employment was working as a meat cutter in 1997. PSI at 3. He

was forty-eight years old at sentencing, but he had spent nine of the prior twenty-three

years of his life in prison. Sentencing Tr. at 4.

{¶18} A presumption of regularity attaches to all trial court proceedings. See, e.g.,

Black v. Chiropractic Assocs. of Zanesville, L.L.C., 5th Dist. Muskingum No. CT2013– Muskingum County, Case No. CT2018-0004 7

0012, 2014–Ohio–192, ¶ 20, citing Chari v. Vore (2001), 91 Ohio St.3d 323, 325, 744

N.E.2d 763. Upon review, we hold the trial court adequately reviewed the matter of

consecutive sentences, and we find no clear and convincing evidence that the record

does not support the trial court's findings under R.C. 2929.14(C)(4) for purposes of

imposing consecutive sentences. See Deeb, supra.

{¶19} Appellant's First Assignment of Error is therefore overruled.

II.

{¶20} In his Second Assignment of Error, appellant contends he was deprived of

his constitutional right to the effective assistance of trial counsel. We disagree.

{¶21} Our standard of review for ineffective assistance claims is set forth in

Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Ohio

adopted this standard in the case of State v. Bradley (1989), 42 Ohio St.3d 136, 538

N.E.2d 373. These cases require a two-pronged analysis in reviewing a claim for

ineffective assistance of counsel. First, we must determine whether counsel's assistance

was ineffective; i.e., whether counsel's performance fell below an objective standard of

reasonable representation and was violative of any of his or her essential duties to the

client. If we find ineffective assistance of counsel, we must then determine whether or not

the defense was actually prejudiced by counsel's ineffectiveness such that the reliability

of the outcome of the trial is suspect. This requires a showing that there is a reasonable

probability that but for counsel's unprofessional error, the outcome of the trial would have

been different. Id. However, trial counsel is entitled to a strong presumption that all

decisions fall within the wide range of reasonable professional assistance. State v. Sallie

(1998), 81 Ohio St.3d 673, 675, 693 N.E.2d 267. Muskingum County, Case No. CT2018-0004 8

{¶22} In the case sub judice, appellant maintains that he filed an affidavit of

indigency with the trial court and was thereafter appointed defense counsel. He contends

that said counsel was subsequently ineffective for failing to request a waiver of court costs

on his behalf, based on his indigent status. See R.C. 2947.23(C). In support, he cites

State v. Springer, 8th Dist. Cuyahoga No. 104649, 2017-Ohio-8861.

{¶23} We recently noted that Springer is in conflict with our decision in State v.

Davis, 5th Dist. Licking No. 17-CA-55, 2017-Ohio-9445, and that the present issue has

been accepted for review by the Supreme Court of Ohio upon our certification of a conflict.

See State v. Ramsey, 5th Dist. Licking No. 17-CA-76, 2018-Ohio-2365, ¶ 46. We held in

Ramsey that “[u]nless a decision is rendered on the issue to the contrary in the future,

this Court will continue to abide by its decision in Davis.” Id.

{¶24} Accordingly, in conformity with Ramsey, we hold appellant was not deprived

of the effective assistance of trial counsel in violation of his rights under the Sixth and

Fourteenth Amendments to the United States Constitution and Article I, § 10 of the Ohio

Constitution. Muskingum County, Case No. CT2018-0004 9

{¶25} Appellant's Second Assignment of Error is overruled.

{¶26} For the reasons stated in the foregoing opinion, the judgment of the Court

of Common Pleas, Muskingum County, Ohio, is hereby affirmed.

By: Wise, John, P. J.

Hoffman, J., and

Wise, Earle, J., concur.

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