[Cite as State v. Hartley, 2012-Ohio-4108.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT UNION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 14-11-29
v.
KEITH MATTHEW HARTLEY, A.K.A MATTHEW ERIC HOVANEC, A.K.A. ANDREWS ALRIDE JACOB, OPINION
DEFENDANT-APPELLANT.
Appeal from Union County Common Pleas Court Trial Court No. 08-CR-0071
Judgment Affirmed
Date of Decision: September 10, 2012
APPEARANCES:
Alison Boggs for Appellant
Terry L. Hord for Appellee Case No. 14-11-29
ROGERS, J.
{¶1} Defendant-Appellant, Keith Hartley, appeals the judgment of the
Court of Common Pleas of Union County convicting him of receiving stolen
property and tampering with evidence, sentencing him to a total prison term of
nine years and ten months, and ordering him to pay restitution. On appeal, Hartley
contends that he received ineffective assistance of counsel in contravention of his
rights under the United States and Ohio Constitutions, and that the trial court erred
in sentencing him to consecutive prison terms. Since Hartley was provided
effective assistance of counsel and the trial court properly handed down
consecutive sentences, we affirm the judgment of the trial court.
{¶2} On June 25, 2008, the Union County Grand Jury indicted Hartley on
the following eight counts: two counts of receiving stolen property in violation of
R.C. 2913.51(A), (C), a felony of the fourth degree; two counts of tampering with
evidence in violation of R.C. 2921.12(A)(1), (B), a felony of the third degree; two
counts of tampering with identifying numbers to conceal the identity of a vehicle
or part in violation of R.C. 4549.62(A), (E), a felony of the fifth degree; one count
of grand theft of a motor vehicle in violation of R.C. 2913.02(A)(2), (B)(5), a
felony of the fourth degree; and one count of grand theft in violation of R.C.
2913.02(A)(1), (B)(2), a felony of the fourth degree.
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{¶3} This indictment arose from a May 16, 2008 incident in which Union
County Sheriff deputies discovered Hartley and his fiancée, Valerie Richmond,
removing scrap steel from a local property. The deputies found a truck on the
property with missing VIN and federal FID plates. Further investigation revealed
that the truck was stolen.
{¶4} After taking Hartley into custody, law enforcement officials learned
that Hartley was living in a travel trailer located on the property of Larry Webb,
Richmond’s uncle. When the deputies arrived at the property, Webb granted them
permission to enter and park their cruisers within eyesight of Hartley’s trailer. The
officers observed that the trailer had a different VIN plate besides the one assigned
to it by the manufacturer. Upon this discovery, the authorities obtained a warrant
for the trailer and the search revealed that other VIN plates in the trailer had been
removed.
{¶5} On June 4, 2009, Hartley’s counsel filed a motion to suppress the
evidence obtained in the search of the travel trailer. Counsel argued that there was
no nexus between Hartley’s arrest as a result of the discovery of the stolen truck
with missing VIN plates and the resulting search of the travel trailer on Webb’s
property. The trial court held a suppression hearing on July 21, 2009, during
which Hartley’s counsel called three witnesses: a deputy with the Union County
Sheriff’s Office, Webb, and Richmond. Testimony was elicited from Webb that
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he gave law enforcement permission to enter the property before the discovery of
the tampered VIN plate on the travel trailer. After this testimony, Hartley’s
counsel decided to withdraw the motion to suppress.
{¶6} In light of the motion’s withdrawal, on July 29, 2009, Hartley
knowingly, intelligently, and voluntarily pled guilty to two counts of receiving
stolen property and two counts of tampering with evidence. As part of a plea
bargain, the other counts of the indictment were dismissed.
{¶7} The trial court then proceeded, on September 16, 2009, to hold a
sentencing hearing in which evidence was adduced regarding Hartley’s extensive
criminal background, his mental health, and the nature of the crimes for which he
was convicted. In the course of the hearing, the State fleetingly suggested that
Hartley’s actions were part of an organized criminal activity. Meanwhile,
Hartley’s counsel stated that she considered entering an Alford plea, but decided
against it, and she requested a separate hearing on the matter of restitution, which
the trial court granted.
{¶8} After the presentation of evidence and counsel’s arguments, the trial
court stated the following:
The court with reference to the matters at hand, has considered the record, the oral statements, the victim impact statement, the presentence investigation, the principals and purposes of sentencing, the seriousness and recidivism factors, and I have also considered the need for deterrence, incapacitation, rehabilitation, and restitution, and the necessity that the court has also to protect the public
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whenever it can. The court finds that the shortest prison term would demean the seriousness of the offence [sic] and would not protect the public. The court further finds that consecutive sentences are necessary to protect the public and are not disproportionate to the offenses committed. Sentencing Hearing Tr., p. 37-38.
As a result, the trial court handed down an eleven month sentence for each count
of receiving stolen property and a four year sentence for each count of tampering
with evidence. Since each sentence was ordered to run consecutively, the trial
court’s order resulted in a total prison term of nine years and ten months.
{¶9} Hartley appealed, but this court dismissed the appeal as a non-final
appealable order, finding that the trial court failed to include an order of restitution
and had scheduled a separate hearing on that issue.
{¶10} The trial court conducted the restitution hearing on October 27, 2009,
but Hartley’s counsel failed to appear. Rather, on the morning of the hearing,
Hartley’s counsel faxed a motion for continuance or in the alternative, for waiver
of the hearing, because a family emergency precluded her from attending. No
affidavit explaining the particular circumstances of the family emergency was
attached to the pleading.
{¶11} The trial court gave Hartley the option to proceed without counsel or
to reschedule the hearing while new counsel was found. After Hartley indicated
that he wanted to proceed without counsel present, the trial court asked, “[I]s it
your desire to waive your right to counsel for purposes of this proceeding?”
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Restitution Hearing Tr., p. 40. Hartley then responded, “Yes, your honor.” Id.
The trial court inquired a second time whether Hartley had “proceed[ed] in a
knowingly, intelligently, and voluntarily manner,” to which Hartley stated that he
“voluntarily made into it.” Id. at 43. Based on the evidence presented in the
hearing, the trial court ordered restitution in the amount of $32,275.57.
{¶12} Hartley appealed, but this court again dismissed the appeal finding
that the restitution order did not name the victims entitled to restitution.
{¶13} On remand, the trial court conducted another restitution hearing on
November 22, 2011. The trial court again ordered restitution in the amount of
$32,275.57 and appropriately listed the victims and the amount each was due.
{¶14} Hartley filed this timely appeal, presenting the following assignments
of error for our review.
Assignment of Error No. I
DEFENDANT-APPELLANT RECEIVED PREJUDICIALLY INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS, AS WELL AS HIS RIGHTS UNDER SECTION 10, ARTICLE 1 OF THE OHIO CONSTITUTION.
Assignment of Error No. II
THE TRIAL COURT ERRED WHEN IT SENTENCED APPELLANT TO CONSECUTIVE SENTENCES.
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{¶15} In his first assignment of error, Hartley contends that he was denied
effective assistance of counsel. Specifically, he argues that the following
instances of conduct show ineffective assistance of counsel: (1) counsel’s decision
to withdraw the motion to suppress; (2) counsel’s failure to pursue an Alford plea
during the plea bargaining process; and (3) counsel’s failure to appear at the
October 27, 2009 restitution hearing. We disagree.
{¶16} An ineffective assistance of counsel claim requires proof that trial
counsel’s performance fell below objective standards of reasonable representation
and that the defendant was prejudiced as a result. State v. Bradley, 42 Ohio St.3d
136 (1989), paragraph two of the syllabus. To show that a defendant has been
prejudiced by counsel’s deficient performance, the defendant must prove that there
exists a reasonable probability that, but for counsel’s errors, the outcome at trial
would have been different. Id. at paragraph three of the syllabus. “Reasonable
probability” is a probability sufficient to undermine confidence in the outcome of
the trial. State v. Waddy, 63 Ohio St.3d 424, 433 (1992), citing United States v.
Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375 (1985), superseded by constitutional
amendment on other grounds as recognized by State v. Smith, 80 Ohio St.3d 89,
103 (1997).
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{¶17} Furthermore, the court must look to the totality of the circumstances
and not isolated instances of an allegedly deficient performance. State v. Malone,
2d Dist. No. 10564 (Dec. 13, 1989). “Ineffective assistance does not exist merely
because counsel failed ‘to recognize the factual or legal basis for a claim, or failed
to raise the claim despite recognizing it.’” Id., quoting Smith v. Murray, 77 U.S.
527, 535, 106 S.Ct. 2661 (1986).
Withdrawal of the Motion to Suppress
{¶18} The United States Supreme Court has counseled that the “failure to
file a suppression motion does not constitute per se ineffective assistance of
counsel.” Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S.Ct. 2574 (1986).
Rather, the defendant must prove that there is a reasonable probability that the
motion would have been successful. State v. Robinson, 108 Ohio App.3d 428,
432-33 (3d Dist. 1996); see also State v. McNeil, 83 Ohio St.3d 438, 449 (1998)
(“Defense counsel is not required to advance arguments lacking merit.”).
{¶19} Hartley cannot show that the motion to suppress would have
succeeded. Although the search warrant and affidavit are attached to Hartley’s
appellate brief, they are not contained within the record. Consequently, this court
is unable to consider the contents of these items. See State v. Ishmail, 54 Ohio
St.2d 402 (1978), paragraph one of the syllabus. Without the search warrant or the
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affidavit, we cannot assess the merits of Hartley’s motion to suppress, which
Hartley has the burden to prove.
{¶20} In light of this deficiency in the record, we decline to find that trial
counsel’s decision to withdraw the motion to suppress constitutes ineffective
assistance of counsel.
Failure to Pursue an Alford Plea
{¶21} An Alford plea is a guilty plea where the defendant maintains his
innocence. State v. Carey, 3d Dist. No. 14-10-25, 2011-Ohio-1998, ¶ 6. The
failure to pursue such a plea did not have a prejudicial effect in this matter.
Hartley was charged with eight counts in the indictment and in exchange for his
guilty plea, the State agreed to drop four of the counts. Trial counsel’s tactical
decisions in the plea bargaining process are generally immune from ineffective
assistance of counsel claims and there is no evidence in the record to reach a
contrary conclusion here. See State v. Staten, 7th Dist. No. 03-MA-187, 2005-
Ohio-1350 R60 (“The strategic or tactical decisions made by counsel will not
normally form a basis for a claim of ineffective assistance of counsel.”). Further,
there was no prejudice in failing to pursue an Alford plea since Hartley knowingly,
intelligently, and voluntarily pleaded guilty.
{¶22} Thus, we find that the failure to pursue an Alford plea in this matter
does not rise to the level of ineffective assistance of counsel.
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Failure to Appear at Restitution Hearing
{¶23} While trial counsel’s failure to appear at the October 27, 2009
restitution hearing was ill-advised, it had no prejudicial effect on the disposition of
the hearing. When presented with the option of going forward with the hearing or
postponing it, Hartley knowingly, intelligently, and voluntarily waived his right to
have counsel present at the hearing. Additionally, the trial court held a second
restitution hearing on November 22, 2011 during which counsel appeared on
Hartley’s behalf. Thus, we also reject the argument that the failure of Hartley’s
counsel to appear at the October 27, 2009 restitution hearing constitutes
ineffective counsel.
{¶24} In light of the evidence in the record, we find that the conduct of
Hartley’s counsel in withdrawing the motion to suppress, abstaining from an
Alford plea in the plea bargaining process, and failing to appear at the restitution
hearing does not amount to ineffective assistance of counsel.
{¶25} Accordingly, we overrule Hartley’s first assignment of error.
{¶26} In his second assignment of error, Hartley claims that the trial court
inappropriately sentenced him to consecutive prison terms. There appear to be
two bases for this assignment of error. First, Hartley argues that the trial court
failed to appropriately consider the factors for sentencing and consequently
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produced an unjust prison term. Second, Hartley suggests that the trial court relied
on a purportedly inaccurate statement regarding his alleged involvement with
organized crime. We disagree with both arguments.
Consideration of Factors for Sentencing
{¶27} We preliminarily note that the trial court’s sentence was imposed on
September 16, 2009, before the effective date of House Bill 86 (“H.B. 86”), which
amended R.C. 2929.14’s treatment of felony sentencing. State v. Stalnaker, 11th
Dist. No. 2011-L-151, 2012-Ohio-3028, ¶ 15. Since Hartley’s sentencing predates
the enactment of H.B. 86, the new provisions of R.C. 2929.14 have no
applicability to this matter and the former version of the statute controls. See, e.g.,
State v. McGee, 8th Dist. No. 96688, 2012-Ohio-1829, ¶ 5 (finding that the
provisions of H.B. 86 do not apply where the defendant was sentenced before
law’s effective date).
{¶28} A reviewing court must conduct a meaningful review of the trial
court’s imposed sentence. State v. Daughenbaugh, 3d Dist. No. 16-07-07, 2007-
Ohio-5774, ¶ 8. Such review allows the Court to “modify or vacate the sentence
and remand the matter to the trial court for re-sentencing if the court clearly and
convincingly finds that the record does not support the sentence or that the
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sentence is otherwise contrary to law.” Id.1
{¶29} Trial courts have plenary discretion to sentence an offender to any
term of imprisonment within the statutory range without a requirement that it
make any findings or give reasons for ordering the service of consecutive
sentences. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, paragraph seven of
the syllabus. Still, R.C. 2929.11, 2929.12, 2929.13, and the unsevered portions of
R.C. 2929.14 govern felony sentencing. State v. Rockwood, 3d Dist. No. 2-07-31,
2008-Ohio-738, ¶ 9.
{¶30} R.C. 2929.11 provides, in pertinent part, that the “overriding
purposes of felony sentencing are to protect the public from future crime and to
punish the offender.” R.C. 2929.11(A). In advancing these purposes, sentencing
courts are instructed to “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.
Meanwhile, R.C. 2929.11(B) states that felony sentences must be both
“commensurate with and not demeaning to the seriousness of the offender’s
conduct and its impact upon the victim” and consistent with sentences imposed in
similar cases.
1 We note that the Supreme Court of Ohio’s decision in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio- 4912, establishes a two-part test utilizing an abuse of discretion standard for appellate review of felony sentencing decisions under R.C. 2953.08(G). While we cite to this court’s precedential clear and convincing evidence standard adopted by the three dissenting justices in Kalish, we note that the outcome of our decision here would be the same under the plurality’s two-part test.
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{¶31} Additionally, when sentencing an offender, the trial court must
consider the factors set forth under R.C. 2929.12(B), (C), (D), and (E) relating to
the seriousness of the offender’s conduct and the likelihood of the offender’s
recidivism. R.C. 2929.12(A). However, the trial court is not required to make
specific findings of its consideration of the factors. State v. Kincade, 3d Dist. No.
16-09-20, 2010-Ohio-1497, ¶ 8.
{¶32} Here, the trial court explicitly stated during the sentencing hearing
and in the judgment entry of sentence that it considered the record, which included
evidence of Hartley’s mental illness, the pre-sentence investigation report, the
factors relating to the offense’s seriousness and the possibility of Hartley’s
recidivism, and the statutory factors codified in R.C. 2929.12 and 2929.13.
Additionally, the trial court imposed a sentence that was within the statutory range
for the offenses. See R.C. 2929.14(A). Thus, we reject the argument that the trial
court failed to consider the necessary statutory factors and consequently produced
an inappropriate sentence.
The State’s Allegation of Organized Criminal Activity
{¶33} While trial courts are granted plenary sentencing discretion under
Foster, we have recognized that a trial court is not vested with authority to
consider allegations of conduct that have not been adjudicated in a court of law.
State v. Montgomery, 3d Dist. Nos. 3-08-10, 3-08-11, 2008-Ohio-6182, ¶ 13. But,
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a trial court’s mere reference to a defendant’s uncharged and unadjudicated
conduct does not produce reversible error, provided that the trial court relied on
other evidence and factors in imposing sentence. Compare State v. Park, 3d Dist.
No. 3-06-14, 2007-Ohio-1084, ¶ 8 (affirming sentence despite its purported
reliance on the defendant’s uncharged conduct since the trial court indicated in the
record that a variety of other reasons supported the sentence) with State v. Blake,
3d Dist. No. 14-03-33, 2004-Ohio-1952, ¶ 6 (reversing sentence where trial court
indicated its sole basis for the sentence was the defendant’s conduct in charges
that were dismissed and never adjudicated).
{¶34} Here, the trial court made no reference to the State’s allegation of
organized criminal activity when imposing sentence on Hartley. Indeed, the only
references to the organized crime allegation were a single statement by the State
and a rebuttal by Hartley’s counsel that the allegation was unproven and
uncharged. From this, there is no indication in the record to suggest that the trial
court relied upon the State’s allegation of an organized criminal activity when it
sentenced Hartley.
{¶35} Even if such an indication existed, the trial court’s sentence would
still be proper. The trial court provided a variety of reasons for its imposition of
consecutive sentences. The trial court pointed out Hartley’s criminal history, his
lack of remorse for the crimes charged in this matter, the conclusions of the pre-
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sentence investigation report, and the crimes’ significant impact on the victims. It
also explicitly stated that these facts were weaved into the trial court’s
consideration of the statutory factors enumerated in R.C. 2929.11 and 2929.12.
These considerations alone are sufficient to support the trial court’s sentence.
Consequently, we reject Hartley’s argument that the trial court impermissibly
based its sentencing decision on improper evidence of uncharged conduct.
{¶36} We find that the evidence in the record plainly discloses that the trial
court properly considered the statutory factors for sentencing and that it did not
rely on uncharged conduct as its basis for Hartley’s sentence.
{¶37} Accordingly, we overrule the second assignment of error.
{¶38} Having found no error prejudicial to Hartley, in the particulars
assigned and argued, we affirm the judgment of the trial court.
PRESTON, J., concurs.
/jlr
WILLAMOWSKI, J., Concurring Separately.
{¶39} I concur fully with the judgment of the majority, however write
separately to emphasize the appropriate standards of review. The standard of
review for sentences was set forth in the plurality opinion of Kalish, supra. In
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Kalish, four panel members noted that R.C. 2953.08(G) requires that appellants
must meet a clearly and convincingly contrary to law standard of review when
reviewing a sentence.2 For example, if the sentencing court imposed consecutive
sentences, the standard of review would be whether appellant has shown that the
sentence was clearly and convincingly contrary to law. However, if the appeal is
based upon alleged improper application of the factors in R.C. 2929.12, four panel
members in Kalish would require review using an abuse of discretion standard as
specifically set forth in R.C 2929.12.3
{¶40} In his second assignment of error, Hartley alleges that the trial court
inappropriately sentenced him to consecutive prison terms. Hartley argues that the
trial court failed to properly consider the factors in R.C. 2929.11 and 2929.12
which resulted in an unjust sentence. As stated by the majority, Hartley has not
shown by clear and convincing evidence that the trial court failed to consider the
statutory factors. To the contrary, the record shows that the trial court considered
the record, Hartley’s history of mental illness, the presentence investigation report,
and the factors set forth in R.C. 2929.12 and R.C. 2929.13. The trial court also
considered Hartley’s criminal history, his lack of remorse, and the effect of the
crimes on the victims. Since Hartley only challenged whether the factors were
2 Justices Pfeifer, Lundberg Stratton, Lanzinger, and Judge Willamowski, sitting by assignment, all reached this conclusion. 3 Justices O’Connor, Moyer, O’Donnell, and Judge Willamowski, sitting by assignment, concurred in this position, although the first three would use both standards of review in all cases.
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considered and not the application of those factors, he had to prove that the
judgment of the trial court was clearly and convincingly contrary to law. He did
not. For this reason, I concur in the judgment of the majority.
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