State v. Loughman

2014 Ohio 1667

Opinion

[Cite as State v. Loughman, 2014-Ohio-1667.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. W. Scott Gwin, P.J. Plaintiff-Appellee : Hon. Sheila G. Farmer, J. : Hon. Craig R. Baldwin, J. -vs- : : RYAN LOUGHMAN : Case No. 13CA57 : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Court of Common Pleas, Case No. 2012-CR-0845

JUDGMENT: Affirmed

DATE OF JUDGMENT: April 16, 2014

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

JOHN C. NIEFT JEFFREY P. UHRICH 38 South Park Street P.O. Box 1977 Mansfield, OH 44902 Westerville, OH 43086 Richland County, Case No. 13CA57 2

Farmer, J.

{¶1} On December 7, 2012, the Richland County Grand Jury indicted appellant,

Ryan Loughman, on nine counts of burglary in violation of R.C. 2911.12, two counts of

attempted burglary in violation of R.C. 2911.12 and 2923.02, and three counts of theft in

violation of R.C. 2913.02, one involving drugs and two involving firearms. On April 22,

2013, appellant pled guilty to all the charges save one of the attempted burglary counts

which was subsequently dismissed. By judgment entry filed June 11, 2013, the trial

court sentenced appellant to an aggregate term of fourteen years in prison.

{¶2} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

I

{¶1} "THE TRIAL COURT ERRED WHEN IT FAILED TO RECUSE ITSELF OR

CONDUCT A HEARING ADDRESSING AS TO WHETHER RECUSAL WAS

APPROPRIATE DUE TO THE FACT AN EMPLOYEE OF THE RICHLAND COUNTY

COURT OF COMMON PLEAS (NAMELY, A BAILIFF) WAS A VICTIM OF THE

CRIMES ALLEGED AGAINST DEFENDANT."

II

{¶2} "TRIAL COUNSEL FOR DEFENDANT WAS INEFFECTIVE BY FAILING

TO RAISE THE ISSUE OF WHETHER THE TRIAL COURT WAS REQUIRED TO

DISQUALIFY ITSELF DUE TO THE FACT THAT A COURT EMPLOYEE (IE. A COURT

BAILIFF) WAS A VICTIM OF THE CRIMES ALLEGED AGAINST DEFENDANT." Richland County, Case No. 13CA57 3

I, II

{¶3} Appellant claims the trial court erred in failing to recuse itself when a victim

of one of the offenses was a court employee, and his counsel was ineffective in failing

to request a recusal or file an affidavit of prejudice pursuant to R.C. 2701.03. We

disagree.

{¶4} The standard this issue must be measured against is set out in State v.

Bradley, 42 Ohio St.3d 136 (1989), paragraphs two and three of the syllabus. Appellant

must establish the following:

2. Counsel's performance will not be deemed ineffective unless and

until counsel's performance is proved to have fallen below an objective

standard of reasonable representation and, in addition, prejudice arises

from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2

O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)

3. To show that a defendant has been prejudiced by counsel's

deficient performance, the defendant must prove that there exists a

reasonable probability that, were it not for counsel's errors, the result of

the trial would have been different.

{¶5} There is no evidence in the record to establish that the recusal issue was

brought to the trial court's attention. An error not raised in the trial court must be plain

error for an appellate court to reverse. State v. Long, 53 Ohio St.2d 91 (1978); Crim.R. Richland County, Case No. 13CA57 4

52(B). In order to prevail under a plain error analysis, appellant bears the burden of

demonstrating that the outcome of the trial clearly would have been different but for the

error. Long. Notice of plain error "is to be taken with the utmost caution, under

exceptional circumstances and only to prevent a manifest miscarriage of justice." Id. at

paragraph three of the syllabus.

{¶6} Both standards of review involve a determination of whether the claimed

error affected the outcome of the case.

{¶7} The record includes the transcripts from the change of plea hearing (April

22, 2013) and the sentencing hearing (June 10, 2013). Appellant pled guilty to nine

counts of burglary, one count of attempted burglary, and three counts of theft, one

involving drugs and two involving firearms. During the plea hearing, the trial court

stated it did not have a "list of all the various places involved***I have dates, but I don't

have identities or addresses." April 22, 2013 T. at 8. When the prosecutor enumerated

the various counts, the property owners were not identified. Id. at 8-14.

{¶8} During the sentencing hearing, two victims spoke, neither of which were

identified as a court employee. June 10, 2013 T. at 11-14. The trial court awarded

specific restitution to specific victims (Id. at 17):

THE COURT: All right. What I sentence you to in this case then is

restitution in the amount of twelve hundred dollars to Howard and Mary

Stottts; a thousand dollars to Jonathan Hill; twenty-three hundred dollars

to Heather Hill; forty-two hundred and forty-four dollars to Lisa Morrelli;

sixteen hundred dollars to Joy Smith; five hundred and forty dollars to Richland County, Case No. 13CA57 5

Marilyn Robinson; thirty-five hundred and twenty-five dollars to Laura

Robinson; five hundred dollars to Heather Richmond; five thousand and

seventy-four dollars and ninety-nine cents to Linda McFarland.***There is

a two hundred and fifty dollar restitution to Lucinda and Robert Powers.

{¶9} There is no evidence identifying any of these victims as a court employee.

In his brief at 4, appellant admits "the record is silent as to the identity of the court

bailiff." Appellant then argues "the fact that a court employee was a victim of the crimes

alleged***should have been apparent to the trial court at some point in the

proceedings." Appellant admits the record is silent as to the identity of the court bailiff,

yet the trial court is somehow supposed to know a court employee was one of the

victims?

{¶10} The record fails to establish any error or resulting prejudice to appellant.

The record establishes the trial court did not know the identity of the victims at the plea

hearing, and there is no evidence that the trial court gave a specific financial award to a

court employee at sentencing.

{¶11} We find no specific violation of the Ohio Code of Judicial Conduct, and the

record does not support the argument that if an affidavit had been filed pursuant to R.C.

2701.03, it would have been granted.

{¶12} Assignments of Error I and II are denied. Richland County, Case No. 13CA57 6

{¶13} The judgment of the Court of Common Pleas of Richland County, Ohio is

hereby affirmed.

By Farmer, J.

Gwin, P.J. and

Baldwin, J. concur.

SGF/sg 403