[Cite as State v. Gill, 2011-Ohio-5174.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 96150
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
PHILLIP GILL DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-531420
BEFORE: E. Gallagher, J., Blackmon, P.J., and Sweeney, J.
RELEASED AND JOURNALIZED: October 6, 2011 2
ATTORNEY FOR APPELLANT
Michael H. Murphy 20325 Center Ridge Road Suite 512 Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor
BY: Maxwell M. Martin Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶ 1} Phillip Gill appeals from his sentence rendered in the Cuyahoga
County Court of Common Pleas. Gill argues that his trial counsel rendered
ineffective assistance and that his sentence of six years was not
commensurate with the crime committed. For the following reasons, we
affirm the decision of the trial court.
{¶ 2} On December 3, 2009, a Cuyahoga County Grand Jury charged
Gill with a multi-count indictment alleging that he broke into Rhonda
Leftridge’s residence and punched her twice, breaking her jaw. At the time
of the assault, Leftridge had a temporary protection order in place, 3
forbidding Gill from coming within 1,500 feet of her. As a result of Gill’s
actions, Leftridge had her jaw wired shut for approximately three months.
Additionally, while Leftridge received treatment in the hospital, Gill made
threatening phone calls to her and her mother.
{¶ 3} The grand jury indicted Gill with one count of felonious assault,
one count of domestic violence, one count of kidnapping, one count of
burglary, two counts of theft, one count of having a weapon while under
disability, two counts of intimidation of a crime victim or witness, and seven
counts of violating a protection order. On April 19, 2010, Gill pleaded guilty
to felonious assault, domestic violence, burglary, intimidation of a crime
victim or witness, and violating a protection order as charged in counts one,
two, four, eight, and ten of the indictment, respectively. The remaining
counts were nolled. On April 20, 2010, Gill was sentenced to six years
imprisonment: six years on counts one and four; five years on counts eight
and ten, and six months on count two, all to run concurrently to one another.
{¶ 4} In his first assigned error, Gill argues that his trial counsel
rendered ineffective assistance. Specifically, Gill claims his counsel
maintained a disinterested attitude, only met with him three times during
the pendency of his case and never investigated the case as he requested.
Gill further claims that counsel’s actions resulted in his guilty plea. We 4
disagree.
{¶ 5} To prevail on a claim of ineffective assistance of counsel upon
entry of a guilty plea, a defendant must meet the test set forth in Strickland
v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. See
State v. Xie (1992), 62 Ohio St.3d 521, 524, 584 N.E.2d 715; State v. Cobb,
Cuyahoga App. No. 76950, 2001-Ohio-4132. The defendant must first show
that counsel’s performance was deficient. Strickland. The defendant must
also show that there is a reasonable probability that, “* * * but for counsel’s
errors, he would not have pleaded guilty * * *.” Strickland, quoting Hill v.
Lockhart (1985), 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203.
{¶ 6} The defendant bears the burden of proving ineffectiveness of
counsel. State v. McNeill (1998), 83 Ohio St.3d 438, 451, 700 N.E.2d 596;
Cobb. The defendant cannot meet his burden by making bare allegations
that find no support in the record. State v. Leek (July 29, 1999), Cuyahoga
App. No. 74338, citing State v. Stewart (Nov. 19, 1998), Cuyahoga App. No.
73255; Cobb.
{¶ 7} Here, Gill failed to satisfy either prong of the Strickland test as
applied to guilty pleas. According to Gill, his trial counsel maintained a
disinterested attitude and only met with him three times during his case.
Gill further alleges that his trial counsel failed to investigate his case, 5
although Gill fails to allege, with any specificity, the type of investigation he
sought.
{¶ 8} The record before this Court is utterly devoid of any indication
that Gill’s trial counsel was deficient in any way. In fact, Gill himself
relayed to the court during its Crim.R. 11 plea colloquy, that he was satisfied
with his attorney’s representation. Tr. 11. Further, Gill has failed to
establish, through any evidence in the record, how his allegations outlined
above, rise to the level of deficient performance. Lastly, As to Gill’s general
claim that his attorney failed to investigate his defense, the record proves
otherwise. The transcript reveals that trial counsel put forth efforts to
investigate Gill’s possible defense to the charges. Tr. 7.
{¶ 9} We note that Gill also failed to satisfy the second prong of the
Strickland test. The record here does not establish a reasonable probability
that, but for the action or inaction of trial counsel, the outcome of the plea
proceeding would have been different. Considering the sixteen-count
indictment as presented, counsel’s negotiations resulted in the issuance of a
nolle prosequi of eleven charges. The record before us does not show a
reasonable probability of a different outcome in the absence of this
representation. Accordingly, we overrule Gill’s first assignment of error.
{¶ 10} In his second assignment of error, Gill argues that his six year 6
prison sentence was not commensurate with the crime he committed. We
{¶ 11} We review felony sentences using the framework announced in
State v. Kalish, 120 Ohio St.2d 23, 2008-Ohio-4912, 896 N.E.2d 124. In its
plurality opinion, the Kalish court declared that in applying State v. Foster,
109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, to the existing statutes,
appellate courts “must apply a two-step approach.” Kalish at ¶4.
{¶ 12} Appellate courts must first “examine the sentencing court’s
compliance with all applicable rules and statutes in imposing the sentence to
determine whether the sentence is clearly and convincingly contrary to law.”
Id. at 26, 896 N.E.2d 124. See, also, R.C. 2953.08(G). If this first prong is
satisfied, then we review the trial court’s decision under an abuse of
discretion standard. Id. at ¶4 and ¶19, 896 N.E.2d 124.
{¶ 13} In the first step of our analysis, we review whether Gill’s
sentence is contrary to law as required by R.C. 2953.08(G). As the Kalish
court noted, post-Foster “trial courts have full discretion to impose a prison
sentence within the statutory range and are no longer required to make
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Gill, 2011-Ohio-5174.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 96150
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
PHILLIP GILL DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-531420
BEFORE: E. Gallagher, J., Blackmon, P.J., and Sweeney, J.
RELEASED AND JOURNALIZED: October 6, 2011 2
ATTORNEY FOR APPELLANT
Michael H. Murphy 20325 Center Ridge Road Suite 512 Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor
BY: Maxwell M. Martin Assistant County Prosecutor The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:
{¶ 1} Phillip Gill appeals from his sentence rendered in the Cuyahoga
County Court of Common Pleas. Gill argues that his trial counsel rendered
ineffective assistance and that his sentence of six years was not
commensurate with the crime committed. For the following reasons, we
affirm the decision of the trial court.
{¶ 2} On December 3, 2009, a Cuyahoga County Grand Jury charged
Gill with a multi-count indictment alleging that he broke into Rhonda
Leftridge’s residence and punched her twice, breaking her jaw. At the time
of the assault, Leftridge had a temporary protection order in place, 3
forbidding Gill from coming within 1,500 feet of her. As a result of Gill’s
actions, Leftridge had her jaw wired shut for approximately three months.
Additionally, while Leftridge received treatment in the hospital, Gill made
threatening phone calls to her and her mother.
{¶ 3} The grand jury indicted Gill with one count of felonious assault,
one count of domestic violence, one count of kidnapping, one count of
burglary, two counts of theft, one count of having a weapon while under
disability, two counts of intimidation of a crime victim or witness, and seven
counts of violating a protection order. On April 19, 2010, Gill pleaded guilty
to felonious assault, domestic violence, burglary, intimidation of a crime
victim or witness, and violating a protection order as charged in counts one,
two, four, eight, and ten of the indictment, respectively. The remaining
counts were nolled. On April 20, 2010, Gill was sentenced to six years
imprisonment: six years on counts one and four; five years on counts eight
and ten, and six months on count two, all to run concurrently to one another.
{¶ 4} In his first assigned error, Gill argues that his trial counsel
rendered ineffective assistance. Specifically, Gill claims his counsel
maintained a disinterested attitude, only met with him three times during
the pendency of his case and never investigated the case as he requested.
Gill further claims that counsel’s actions resulted in his guilty plea. We 4
disagree.
{¶ 5} To prevail on a claim of ineffective assistance of counsel upon
entry of a guilty plea, a defendant must meet the test set forth in Strickland
v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. See
State v. Xie (1992), 62 Ohio St.3d 521, 524, 584 N.E.2d 715; State v. Cobb,
Cuyahoga App. No. 76950, 2001-Ohio-4132. The defendant must first show
that counsel’s performance was deficient. Strickland. The defendant must
also show that there is a reasonable probability that, “* * * but for counsel’s
errors, he would not have pleaded guilty * * *.” Strickland, quoting Hill v.
Lockhart (1985), 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203.
{¶ 6} The defendant bears the burden of proving ineffectiveness of
counsel. State v. McNeill (1998), 83 Ohio St.3d 438, 451, 700 N.E.2d 596;
Cobb. The defendant cannot meet his burden by making bare allegations
that find no support in the record. State v. Leek (July 29, 1999), Cuyahoga
App. No. 74338, citing State v. Stewart (Nov. 19, 1998), Cuyahoga App. No.
73255; Cobb.
{¶ 7} Here, Gill failed to satisfy either prong of the Strickland test as
applied to guilty pleas. According to Gill, his trial counsel maintained a
disinterested attitude and only met with him three times during his case.
Gill further alleges that his trial counsel failed to investigate his case, 5
although Gill fails to allege, with any specificity, the type of investigation he
sought.
{¶ 8} The record before this Court is utterly devoid of any indication
that Gill’s trial counsel was deficient in any way. In fact, Gill himself
relayed to the court during its Crim.R. 11 plea colloquy, that he was satisfied
with his attorney’s representation. Tr. 11. Further, Gill has failed to
establish, through any evidence in the record, how his allegations outlined
above, rise to the level of deficient performance. Lastly, As to Gill’s general
claim that his attorney failed to investigate his defense, the record proves
otherwise. The transcript reveals that trial counsel put forth efforts to
investigate Gill’s possible defense to the charges. Tr. 7.
{¶ 9} We note that Gill also failed to satisfy the second prong of the
Strickland test. The record here does not establish a reasonable probability
that, but for the action or inaction of trial counsel, the outcome of the plea
proceeding would have been different. Considering the sixteen-count
indictment as presented, counsel’s negotiations resulted in the issuance of a
nolle prosequi of eleven charges. The record before us does not show a
reasonable probability of a different outcome in the absence of this
representation. Accordingly, we overrule Gill’s first assignment of error.
{¶ 10} In his second assignment of error, Gill argues that his six year 6
prison sentence was not commensurate with the crime he committed. We
{¶ 11} We review felony sentences using the framework announced in
State v. Kalish, 120 Ohio St.2d 23, 2008-Ohio-4912, 896 N.E.2d 124. In its
plurality opinion, the Kalish court declared that in applying State v. Foster,
109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, to the existing statutes,
appellate courts “must apply a two-step approach.” Kalish at ¶4.
{¶ 12} Appellate courts must first “examine the sentencing court’s
compliance with all applicable rules and statutes in imposing the sentence to
determine whether the sentence is clearly and convincingly contrary to law.”
Id. at 26, 896 N.E.2d 124. See, also, R.C. 2953.08(G). If this first prong is
satisfied, then we review the trial court’s decision under an abuse of
discretion standard. Id. at ¶4 and ¶19, 896 N.E.2d 124.
{¶ 13} In the first step of our analysis, we review whether Gill’s
sentence is contrary to law as required by R.C. 2953.08(G). As the Kalish
court noted, post-Foster “trial courts have full discretion to impose a prison
sentence within the statutory range and are no longer required to make
findings and give reasons for imposing maximum, consecutive, or more than
the minimum sentence.” Id. at 11, 845 N.E.2d 470, quoting Foster at
paragraph seven of the syllabus; State v. Mathis, 109 Ohio St.3d 54, 7
2006-Ohio-855, 846 N.E.2d 1, paragraph three of the syllabus. The Kalish
court held that although Foster eliminated mandatory judicial fact-finding, it
left R.C. 2929.11 and 2929.12 intact. Kalish at 13. Therefore, the trial
court must still consider those statutes when imposing a sentence. Id.,
citing Mathis at 38.
{¶ 14} R.C. 2929.11(A) provides that:
“[A] court that sentences an offender for a felony shall be guided by the overriding purposes of felony sentencing [:] * * * to protect the public from future crime by the offender and others and to punish the offender. To achieve those purposes, the sentencing court shall 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.”
{¶ 15} R.C. 2929.12 provides a nonexhaustive list of factors a trial court
must consider when determining the seriousness of the offense and the
likelihood that the offender will commit future offenses.
{¶ 16} R.C. 2929.11 and 2929.12 are not fact-finding statutes. Instead,
they “serve as an overarching guide for trial judges to consider in fashioning
an appropriate sentence.” Kalish at 17. Thus, “[i]n considering these
statutes in light of Foster, the trial court has full discretion to determine
whether the sentence satisfies the overriding purposes of Ohio’s sentencing
structure.” Id.
{¶ 17} In the instant case, Gill does not argue that the court failed to 8
consider R.C. 2929.11 and 2929.12, when imposing his sentence, instead, he
finds fault with the trial court’s alleged failure to consider his prior criminal
history. Additionally, while making this argument, Gill has failed to
establish that a trial court is required to consider a criminal defendant’s
prior criminal history, on the record, before imposing sentence. The trial
court’s journal entry reflects that it considered all factors as required by law
and found that prison was consistent with R.C. 2929.11. Further, the
imposed prison terms on the four felonies to which Gill pleaded guilty were
within the statutory range. Since Gill was sentenced within the statutory
range and has failed to demonstrate how his sentence violated Ohio’s
sentencing statutes, we do not find that it was contrary to law.
{¶ 18} We next consider whether the trial court abused its discretion.
Kalish at ¶4 and ¶19, 896 N.E.2d 124. An “abuse of discretion” is more than
an error of law or judgment; it implies that the court’s attitude is
unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983),
5 Ohio St.3d 217, 219, 450 N.E.2d 1140.
{¶ 19} We find nothing in the record to suggest that the trial court’s
decision was unreasonable, arbitrary, or unconscionable. As outlined above,
a review of the record indicates that the trial court also expressly stated that
it had considered all factors of the law and found that prison was consistent 9
with the purposes and principles of R.C. 2929.11.
{¶ 20} Accordingly, we overrule Gill’s second assigned error.
{¶ 21} The judgment of the trial court is affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas
court to carry this judgment into execution. The defendant’s conviction having been
affirmed, any bail pending appeal is terminated. Case remanded to the trial court for
execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.
EILEEN A. GALLAGHER, JUDGE
PATRICIA A. BLACKMON, P.J., and JAMES J. SWEENEY, J., CONCUR
Appendix
Assignments of Error:
{¶ 22} “I. Appellant was not afforded effective assistance of counsel.” 10
{¶ 23} “II. The sentence handed down from the trial court was not commensurate with the crime committed.”