[Cite as State v. Monk, 2011-Ohio-5751.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO, JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee, Hon. Sheila G. Farmer, J. Hon. Julie A. Edwards, J. v. Case No. 11-CA-28 DANIEL MONK,
Defendant-Appellant. OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas Court, Case No. 10-CR-526
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 4, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT J. MATTHEW DAWSON Licking County Prosecutor 35 S. Park Pl., Suite 10 20 S. Second Street, Fourth Floor Newark, Ohio 43055 Newark, Ohio 43055 Licking County, Case No. 11-CA-28 2
Hoffman, P.J.
{¶ 1} Defendant-appellant Daniel Monk appeals his conviction and sentence
entered by the Licking County Court of Common Pleas. Plaintiff-appellee is the State of
Ohio.
STATEMENT OF THE CASE
{¶ 2} Appellant was indicted on two counts of sexual battery and one count of
contributing to the delinquency of a minor. On November 8, 2010, Appellant entered an
initial plea of not guilty by reason of insanity. The trial court ordered a competency
evaluation, and a hearing was scheduled for December 14, 2010. At Appellant’s
request, the hearing was then continued to January 3, 2011.
{¶ 3} On January 3, 2011, Appellant moved the trial court to continue the trial
set for January 5, 2011. Appellant also filed a motion to suppress on the same date.
The trial court denied the motions.
{¶ 4} On January 4, 2011, Appellant retained new counsel. On January 5,
2011, the date scheduled for trial, Appellant’s new trial counsel moved the trial court to
continue the jury trial. The trial court denied the motion. Appellant then entered a plea
of no contest to the charges.
{¶ 5} On February 16, 2011, the trial court sentenced Appellant to three years
incarceration on each count of sexual battery to run consecutively with a six month term
on the one count of contributing to the delinquency of a minor charge, for an aggregate
prison term of six years.
{¶ 6} Appellant now appeals, assigning as error: Licking County, Case No. 11-CA-28 3
{¶ 7} “I. WHETHER OR NOT THE TRIAL COURT ABUSED ITS DISCRETION
BY DENYING THE APPELLANT’S MOTION TO SUPPRESS AS UNTIMELY.
{¶ 8} “II. WHETHER OR NOT THE TRIAL COURT ABUSED ITS DISCRETION
BY DENYING THE APPELLANT’S MOTIONS FOR CONTINUANCE.
{¶ 9} “III. WHETHER OR NOT PREVIOUS COUNSEL WAS INEFFECTIVE BY
FAILING TO FILE A MOTION TO SUPPRESS.
{¶ 10} “IV. WHETHER OR NOT THE TRIAL COURT’S IMPOSITION OF
SENTENCE WAS CONTRARY TO LAW DUE TO THE LACK OF THE TRIAL
COURT’S CONSIDERATION OF THE OVERRIDING PURPOSES AND FACTORS TO
BE CONSDIERED IN FELONY SENTENCING.”
I. & III.
{¶ 11} Appellant’s first and third assignments of error raise common and
interrelated issues; therefore we will address the arguments together.
{¶ 12} Appellant asserts the trial court erred in denying Appellant’s motion to
suppress as untimely. Appellant further asserts his prior trial counsel was ineffective in
failing to move the trial court to suppress the evidence earlier in the proceedings.
{¶ 13} Criminal Rule 12 governs pretrial motions, and states in pertinent part:
{¶ 14} “(D) Motion date
{¶ 15} “All pretrial motions except as provided in Crim. R. 7(E) and 16(F) shall be
made within thirty-five days after arraignment or seven days before trial, whichever is
earlier. The court in the interest of justice may extend the time for making pretrial
motions.
{¶ 16} “*** Licking County, Case No. 11-CA-28 4
{¶ 17} “(H) Effect of failure to raise defenses or objections
{¶ 18} “Failure by the defendant to raise defenses or objections or to make
requests that must be made prior to trial, at the time set by the court pursuant to division
(D) of this rule, or prior to any extension of time made by the court, shall constitute
waiver of the defenses or objections, but the court for good cause shown may grant
relief from the waiver.”
{¶ 19} When a motion to suppress is filed out of the rule timelines, the movant
must “offer a convincing reason to warrant relief.” State v. Phillips (1995), 74 Ohio St.3d
72, 97.
{¶ 20} In the within case, Appellant argues the motion to suppress was untimely
due to the delay in the competency results, and “everything was pending the
competency evaluation results.” Appellant’s Brief p. 9. We disagree.
{¶ 21} The pending competency evaluation did not preclude Appellant from filing
a motion to suppress; rather, Appellant’s alleged competency would serve as a basis for
challenging his statements to the police. We conclude Appellant was not precluded
from arguing the inadmissibility of the evidence due to the questions surrounding his
competency.
{¶ 22} A claim of ineffective assistance of counsel requires a two-prong analysis.
The first inquiry is whether counsel's performance fell below an objective standard of
reasonable representation involving a substantial violation of any of defense counsel's
essential duties to appellant. The second prong is whether the appellant was prejudiced
by counsel's ineffectiveness. Lockhart v. Fretwell (1993), 506 U.S. 364, 113 S.Ct. 838, Licking County, Case No. 11-CA-28 5
122 L.Ed.2d 180; 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.
{¶ 23} To prevail on this claim, appellant must meet both the deficient
performance and prejudice prongs of Strickland and Bradley. Knowles v. Mirzayance
(2009), --- U.S. ----, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 251.
{¶ 24} To show deficient performance, appellant must establish that “counsel's
representation fell below an objective standard of reasonableness.” Strickland, at 688.
In light of “the variety of circumstances faced by defense counsel [and] the range of
legitimate decisions regarding how best to represent a criminal defendant,” the
performance inquiry necessarily turns on “whether counsel's assistance was reasonable
considering all the circumstances.” Id., at 688-689. At all points, “[j]udicial scrutiny of
counsel's performance must be highly deferential.” Id ., at 689.
{¶ 25} Appellant must further demonstrate that he suffered prejudice from his
counsel's performance. See Strickland, 466 U.S., at 691 (“An error by counsel, even if
professionally unreasonable, does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment”). To establish prejudice, “[t]he
defendant must show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694.
{¶ 26} The United States Supreme Court and the Ohio Supreme Court have held
a reviewing court “need not determine whether counsel's performance was deficient Licking County, Case No. 11-CA-28 6
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[Cite as State v. Monk, 2011-Ohio-5751.]
COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO, JUDGES: Hon. William B. Hoffman, P.J. Plaintiff-Appellee, Hon. Sheila G. Farmer, J. Hon. Julie A. Edwards, J. v. Case No. 11-CA-28 DANIEL MONK,
Defendant-Appellant. OPINION
CHARACTER OF PROCEEDING: Appeal from the Licking County Court of Common Pleas Court, Case No. 10-CR-526
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: November 4, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
KENNETH W. OSWALT J. MATTHEW DAWSON Licking County Prosecutor 35 S. Park Pl., Suite 10 20 S. Second Street, Fourth Floor Newark, Ohio 43055 Newark, Ohio 43055 Licking County, Case No. 11-CA-28 2
Hoffman, P.J.
{¶ 1} Defendant-appellant Daniel Monk appeals his conviction and sentence
entered by the Licking County Court of Common Pleas. Plaintiff-appellee is the State of
Ohio.
STATEMENT OF THE CASE
{¶ 2} Appellant was indicted on two counts of sexual battery and one count of
contributing to the delinquency of a minor. On November 8, 2010, Appellant entered an
initial plea of not guilty by reason of insanity. The trial court ordered a competency
evaluation, and a hearing was scheduled for December 14, 2010. At Appellant’s
request, the hearing was then continued to January 3, 2011.
{¶ 3} On January 3, 2011, Appellant moved the trial court to continue the trial
set for January 5, 2011. Appellant also filed a motion to suppress on the same date.
The trial court denied the motions.
{¶ 4} On January 4, 2011, Appellant retained new counsel. On January 5,
2011, the date scheduled for trial, Appellant’s new trial counsel moved the trial court to
continue the jury trial. The trial court denied the motion. Appellant then entered a plea
of no contest to the charges.
{¶ 5} On February 16, 2011, the trial court sentenced Appellant to three years
incarceration on each count of sexual battery to run consecutively with a six month term
on the one count of contributing to the delinquency of a minor charge, for an aggregate
prison term of six years.
{¶ 6} Appellant now appeals, assigning as error: Licking County, Case No. 11-CA-28 3
{¶ 7} “I. WHETHER OR NOT THE TRIAL COURT ABUSED ITS DISCRETION
BY DENYING THE APPELLANT’S MOTION TO SUPPRESS AS UNTIMELY.
{¶ 8} “II. WHETHER OR NOT THE TRIAL COURT ABUSED ITS DISCRETION
BY DENYING THE APPELLANT’S MOTIONS FOR CONTINUANCE.
{¶ 9} “III. WHETHER OR NOT PREVIOUS COUNSEL WAS INEFFECTIVE BY
FAILING TO FILE A MOTION TO SUPPRESS.
{¶ 10} “IV. WHETHER OR NOT THE TRIAL COURT’S IMPOSITION OF
SENTENCE WAS CONTRARY TO LAW DUE TO THE LACK OF THE TRIAL
COURT’S CONSIDERATION OF THE OVERRIDING PURPOSES AND FACTORS TO
BE CONSDIERED IN FELONY SENTENCING.”
I. & III.
{¶ 11} Appellant’s first and third assignments of error raise common and
interrelated issues; therefore we will address the arguments together.
{¶ 12} Appellant asserts the trial court erred in denying Appellant’s motion to
suppress as untimely. Appellant further asserts his prior trial counsel was ineffective in
failing to move the trial court to suppress the evidence earlier in the proceedings.
{¶ 13} Criminal Rule 12 governs pretrial motions, and states in pertinent part:
{¶ 14} “(D) Motion date
{¶ 15} “All pretrial motions except as provided in Crim. R. 7(E) and 16(F) shall be
made within thirty-five days after arraignment or seven days before trial, whichever is
earlier. The court in the interest of justice may extend the time for making pretrial
motions.
{¶ 16} “*** Licking County, Case No. 11-CA-28 4
{¶ 17} “(H) Effect of failure to raise defenses or objections
{¶ 18} “Failure by the defendant to raise defenses or objections or to make
requests that must be made prior to trial, at the time set by the court pursuant to division
(D) of this rule, or prior to any extension of time made by the court, shall constitute
waiver of the defenses or objections, but the court for good cause shown may grant
relief from the waiver.”
{¶ 19} When a motion to suppress is filed out of the rule timelines, the movant
must “offer a convincing reason to warrant relief.” State v. Phillips (1995), 74 Ohio St.3d
72, 97.
{¶ 20} In the within case, Appellant argues the motion to suppress was untimely
due to the delay in the competency results, and “everything was pending the
competency evaluation results.” Appellant’s Brief p. 9. We disagree.
{¶ 21} The pending competency evaluation did not preclude Appellant from filing
a motion to suppress; rather, Appellant’s alleged competency would serve as a basis for
challenging his statements to the police. We conclude Appellant was not precluded
from arguing the inadmissibility of the evidence due to the questions surrounding his
competency.
{¶ 22} A claim of ineffective assistance of counsel requires a two-prong analysis.
The first inquiry is whether counsel's performance fell below an objective standard of
reasonable representation involving a substantial violation of any of defense counsel's
essential duties to appellant. The second prong is whether the appellant was prejudiced
by counsel's ineffectiveness. Lockhart v. Fretwell (1993), 506 U.S. 364, 113 S.Ct. 838, Licking County, Case No. 11-CA-28 5
122 L.Ed.2d 180; 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.
{¶ 23} To prevail on this claim, appellant must meet both the deficient
performance and prejudice prongs of Strickland and Bradley. Knowles v. Mirzayance
(2009), --- U.S. ----, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 251.
{¶ 24} To show deficient performance, appellant must establish that “counsel's
representation fell below an objective standard of reasonableness.” Strickland, at 688.
In light of “the variety of circumstances faced by defense counsel [and] the range of
legitimate decisions regarding how best to represent a criminal defendant,” the
performance inquiry necessarily turns on “whether counsel's assistance was reasonable
considering all the circumstances.” Id., at 688-689. At all points, “[j]udicial scrutiny of
counsel's performance must be highly deferential.” Id ., at 689.
{¶ 25} Appellant must further demonstrate that he suffered prejudice from his
counsel's performance. See Strickland, 466 U.S., at 691 (“An error by counsel, even if
professionally unreasonable, does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment”). To establish prejudice, “[t]he
defendant must show that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” Id. at 694.
{¶ 26} The United States Supreme Court and the Ohio Supreme Court have held
a reviewing court “need not determine whether counsel's performance was deficient Licking County, Case No. 11-CA-28 6
before examining the prejudice suffered by the defendant as a result of the alleged
deficiencies.” Bradley at 143, 538 N.E.2d 373, quoting Strickland at 697.
{¶ 27} The failure to file a motion to suppress constitutes ineffective assistance of
counsel “only if, based on the record, the motion would have been granted.” State v.
Moss, Licking App. 05-CA-74, 2006-Ohio-2524. Here, Appellant has not demonstrated
his motion to suppress would have ultimately been granted on the merits. The record
demonstrates Appellant was found competent after evaluation. Appellant does not
develop in his brief the merits of the proposed motion to suppress; therefore, he has not
demonstrated the motion would have been granted by the trial court but for counsel’s
alleged error.
{¶ 28} Appellant’s first and third assignments of error are overruled.
II.
{¶ 29} In the second assignment of error Appellant maintains the trial court
abused its discretion in denying Appellant’s motion for a continuance.
{¶ 30} The granting of continuances is within the sound discretion of the trial
court. State v. McMilen (1996), 113 Ohio App.3d 137. Factors to be considered include
the length of the continuance requested, any prior continuances granted, any
inconvenience to other parties and to the court, the reasons offered for the delayed and
whether the moving party contributed to the delay. Village of Glenwillow v. Tomsick
(1996), 111 Ohio App.3d 718.
{¶ 31} Again, Appellant asserts the continuance was necessary in this matter as
his competency was at issue at the time the continuance was requested and delayed
matters herein. Further, Appellant argues the retention of new trial counsel Licking County, Case No. 11-CA-28 7
necessitated a continuance as counsel had only one day to prepare for trial. Appellant
requested one prior continuance which was granted by the trial court. Appellant asserts
the State was not prejudiced by the delay.
{¶ 32} Upon review, we find Appellant has not demonstrated his decision to
retain new counsel was based upon deterioration in his relationship with his prior trial
counsel. Rather, the record demonstrates Appellant “wanted a second opinion on an
issue that’s very crucial for his life.” Tr. at 9.
{¶ 33} A defendant’s right to retain counsel of his own choosing is not an
unlimited right. State v. Perkins, 2007-Ohio-136. Instead, “when considering a motion
for…new counsel, a trial court must balance ‘any potential prejudice to a defendant
against concerns such as a court’s right to control its own docket and the public’s
interest in the prompt and efficient dispatch of justice.” Id.
{¶ 34} Based on the above, we find the trial court did not abuse its discretion in
denying Appellant’s motion for a continuance. The Appellant’s last minute decision to
change counsel clearly contributed to the delay that would have been necessitated by a
continuance.
{¶ 35} Appellant’s second assignment of error is overruled.
IV.
{¶ 36} In the fourth assignment of error, Appellant asserts his sentence was
contrary to law as the trial court failed to consider the overriding purposes and factors to
be considered in felony sentencing.
{¶ 37} R.C. 2929.11(B) states, Licking County, Case No. 11-CA-28 8
{¶ 38} “(B) A sentence imposed for a felony shall be reasonably calculated to
achieve the two overriding purposes of felony sentencing set forth in division (A) of this
section, commensurate with and not demeaning to the seriousness of the offender's
conduct and its impact upon the victim, and consistent with sentences imposed for
similar crimes committed by similar offenders.”
{¶ 39} A court has broad discretion in determining the most effective way to
comply with the purposes and principles of sentencing. R.C. 2929.12(A).
{¶ 40} As stated in R.C. 2929.11, the two overriding purposes of felony
sentencing are to first, protect the public from future crime by the offender, and, second,
punish the offender. The 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.” Id.
{¶ 41} In State v. Kienzle, 2007-Ohio-4346, the Ninth District held,
{¶ 42} “In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, the Court found that
Ohio's sentencing structure was unconstitutional to the extent that it required judicial
fact-finding. Id. at paragraphs one through seven of the syllabus. In constructing a
remedy, the Court excised the portions of the statute it found to offend the Sixth
Amendment and thereby granted full discretion to trial court judges to sentence
defendants within the bounds prescribed by statute. See Id.; State v. Dudukovich, 9th
Dist. No. 05CA008729, 2006-Ohio-1309, at ¶ 19.
{¶ 43} “Additionally, Foster altered this Court's standard of review which was
previously a clear and convincing error standard. State v. Windham, 9th Dist. No.
05CA0033, 2006-Ohio-1544, at ¶ 11. Accordingly, this Court reviews Appellant's Licking County, Case No. 11-CA-28 9
sentence utilizing an abuse of discretion standard. Id. at ¶ 12. An abuse of discretion is
more than an error in judgment or law; it implies an attitude on the part of the trial court
that is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore (1983), 5
Ohio St.3d 217, 219. Furthermore, when applying the abuse of discretion standard, an
appellate court may not substitute its judgment for that of the trial court. Pons v. Ohio
State Med. Bd. (1993), 66 Ohio St.3d 619, 621.
{¶ 44} “The Foster Court noted that “there is no mandate for judicial fact-finding
in the general guidance statutes. The court is merely to ‘consider’ the statutory factors.”
Foster, supra, at ¶ 42. Moreover, post Foster, it is axiomatic that “[t]rial courts have full
discretion to impose a prison sentence within the statutory range and are no longer
required to make findings or give their reasons for imposing maximum, consecutive, or
more than the minimum sentences.” Id. at paragraph 7 of the syllabus. Therefore, post-
Foster, trial courts are still required to consider the general guidance factors in their
sentencing decisions. The trial court stated that it had considered Appellant's prior
record when making its decision.
{¶ 45} “***
{¶ 46} “Appellant was convicted of a third degree felony. Accordingly, the trial
court was permitted to utilize its discretion to sentence him within the range of one to
five years incarceration for the third degree felony conviction. R.C. 2929.14(A)(3).
Appellant was sentenced to five years incarceration. Accordingly, Appellant's conviction
fell within the statutory ranges set forth in R.C. 2929.14.”
{¶ 47} In the case herein, we find the trial court did not abuse its discretion in
sentencing Appellant as the prison term was within the statutory range for Appellant’s Licking County, Case No. 11-CA-28 10
convictions, and the court clearly stated it had considered the necessary factors in
sentencing Appellant. Tr. at 19-20.
{¶ 48} The fourth assignment of error is overruled.
{¶ 49} For the reasons set forth above, Appellant’s convictions and sentence in
the Licking County Court of Common Pleas are affirmed.
By: Hoffman, P.J.
Farmer, J. and
Edwards, J. concur
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer __________________ HON. SHEILA G. FARMER
s/ Julie A. Edwards___________________ HON. JULIE A. EDWARDS Licking County, Case No. 11-CA-28 11
IN THE COURT OF APPEALS FOR LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT
STATE OF OHIO, : : Plaintiff-Appellee, : : v. : JUDGMENT ENTRY : DANIEL MONK, : : Defendant-Appellant. : Case No. 11-CA-28
For the reasons stated in our accompanying Opinion, Appellant’s convictions and
sentence in the Licking County Court of Common Pleas are affirmed. Costs to
Appellant
s/ William B. Hoffman _________________ HON. WILLIAM B. HOFFMAN
s/ Sheila G. Farmer___________________ HON. SHEILA G. FARMER
s/ Julie A. Edwards ___________________ HON. JULIE A. EDWARDS