State v. Patterson

2012 Ohio 5600

Opinion

[Cite as State v. Patterson, 2012-Ohio-5600.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES: Hon. Patricia A. Delaney, P. J. Plaintiff-Appellee Hon. Sheila G. Farmer, J. Hon. John W. Wise, J. -vs- Case No. CT2012-0029 DARIAN R. PATTERSON

Defendant-Appellant OPINION

CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common Pleas, Case No. CR2011-0103

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: November 30, 2012

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

RON WELCH DAVID A. SAMS ASSISTANT PROSECUTOR Box 40 27 North Fifth Street West Jefferson, Ohio 43162 Zanesville, Ohio 43701 Muskingum County, Case No. CT2012-0029 2

Wise, J.

{¶1} Defendant-appellant Darian R. Patterson appeals his sentence and

conviction on two counts of drug trafficking and one count of having weapons while

under disability following a guilty plea in the Muskingum County Court of Common

Pleas.

{¶2} Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE CASE AND FACTS

{¶3} On or about November 20, 2012, a Confidential Informant (C.I.), working

for the Zanesville Police Department, went to 725 Bates Street in Zanesville, Ohio, in a

vehicle with two Zanesville Police Department detectives. The C.I. was greeted at the

door of the residence by Gary A. Workman. The C.I. asked Gary if he could get an "80"

and Gary said "yeah". Gary yelled out "need a[n] 80". The C.I. stated that he dealt with

Appellant Darian Patterson in the living room by the couch. Gary Workman was present

in the kitchen mopping the floor. The C.I. got the Crack from Appellant and handed

$80.00 to Appellant. The C.I. stated there was an all black in color semi-auto pistol on

the coffee table within reach of Appellant during the deal,and Appellant cut the Crack

with a razor off a large chunk that was on a dinner plate. The C.I. gave the off-white

hard substance to one of the detectives upon return to the vehicle. The C.I. and two

detectives returned to ZPD headquarters where the substance was weighed (.6

grams+/-) and tested positive for Cocaine substance.

{¶4} On or about November 20, 2010, a C.I. working for the Zanesville Police

Department went to 725 Bates Street, in a vehicle with two Zanesville Police

Department detectives, for a second buy of Crack. Leitsa Lang answered the door and Muskingum County, Case No. CT2012-0029 3

let the C.I. inside. The C.I. asked for $100 worth of Crack Cocaine and handed $100 to

Lang who then gave the money to Appellant. The C.I. saw the same plate from the first

buy now on the kitchen table in front of Appellant. Appellant cut up the Crack Cocaine

on the plate with a razor blade and gave it to Lang who put the Crack in a baggie, tied it

off, cut off the top part of the baggie, and gave it to the C.I.. The C.l. returned to the

vehicle and gave the hard off-white substance to one of the detectives. A field test was

positive for Cocaine Substance.

{¶5} The detectives advised the Special Response Team to secure the

residence for Search Warrant Execution. The C.I. and detectives returned to the

Zanesville Police Department headquarters. Thereafter, one of the detectives returned

to 725 Bates Street to conduct a search of the residence.

{¶6} A search of 725 Bates Street produced: discovery of Appellant Darian

Patterson possessing $786.00,which $100.00 of second buy money was recovered; a

loaded Davis handgun; off-white substance on a scale; green leafy substance; off-white

substance with razor blade on a plate on the floor of the living room; off-white substance

in a baggie under the ottoman in the living room; and a loaded Bersa 9mm handgun in

the kitchen. Search of the bedroom where Charles Workman Ill resides produced 2

portable scales, a loaded Hi-point 40 caliber handgun, and a loaded Hi-Point 9mm

handgun.

{¶7} Appellant was indicted upon the following: two Counts of Trafficking in

Drugs (Crack Cocaine)(Forfeiture Specification), both felonies of the fifth degree; one

count of Possession of Drugs (Crack Cocaine)(Forfeiture Specification), a felony of the

fourth degree; two counts of Having a Weapon While Under Disability, both felonies of Muskingum County, Case No. CT2012-0029 4

the third degree; and one count of Possession of Drugs (Crack Cocaine)(Forfeiture

Specification), a felony of the third degree.

{¶8} On January 25, 2012, Appellant was arraigned and pled not guilty.

{¶9} On April 4, 2012, Appellant entered a negotiated plea of "guilty" to one

count of Trafficking in Drugs (Crack Cocaine)(Forfeiture Specification), a felony of the

fifth degree; one Count of Trafficking in Drugs (Crack Cocaine)(Forfeiture Specification),

a felony of the fifth degree; and one count of having a weapon under disability, a felony

of the third degree. In exchange for this plea, the State agreed to recommend a

sentence of two years in prison. In addition, the State agreed to nolle Counts Five,

Eight, and Eleven at the time of sentencing.

{¶10} On May 7, 2012, the parties returned to Court for sentencing. The trial

court ordered that the Defendant/Appellant serve a prison term of forty-seven (47)

months as follows: Count One - eleven (11) months in prison; Count Three- eleven (11)

months in prison to run concurrent to Count One; Count Seven- thirty-six (36) months in

prison to run consecutive to the aggregate total of Counts One and Three.

{¶11} Appellant now appeals, assigning the following errors for review:

ASSIGNMENTS OF ERROR

{¶12} “I. THE INDICTMENT CHARGING DEFENDANT-APPELLANT WITH

HAVING A WEAPON UNDER DISABILITY IS STRUCTURALLY INSUFFICIENT

CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS.

{¶13} “II. THE DEFENDANT-APPELLANT'S CONVICTION IS VOID AS

CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL CONSTITUTIONS. Muskingum County, Case No. CT2012-0029 5

{¶14} “III. THE DEFENDANT-APPELLANT'S PLEA WAS UNKNOWING,

UNINTELLIGENT AND INVOLUNTARY CONTRARY TO OHIO LAW AND THE STATE

AND FEDERAL CONSTITUTIONS.

{¶15} “IV. THE DEFENDANT-APPELLANT WAS DEPRIVED OF THE

EFFECTIVE ASSISTANCE OF COUNSEL CONTRARY TO THE STATE AND

FEDERAL CONSTITUTIONS.

{¶16} “V. THE DEFENDANT-APPELLANT WAS DENIED DUE PROCESS BY

A SENTENCE CONTRARY TO OHIO LAW AND THE STATE AND FEDERAL

CONSTITUTIONS.”

I.

{¶17} In his First Assignment of Error, appellant argues that the indictment was

structurally insufficient and contrary to law. We disagree.

{¶18} As to the having weapons while under disability charges, Appellant

argues that the indictment in this case failed to allege the actual dates of Appellant’s

prior convictions and was therefore insufficient.

{¶19} Appellant entered a guilty plea in this case. “ ‘[A] guilty plea represents a

break in the chain of events which has preceded it in the criminal process.’ ” State v.

Spates, 64 Ohio St.3d 269, 272, 595 N.E.2d 351 (1992), quoting Tollett v. Henderson,

411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). When a criminal defendant

admits to the facts contained in the indictment, all independent claims relating to the

deprivation of constitutional rights that occurred prior to the entry of the guilty plea are

thereby waived. Id. This waiver includes any right to challenge defects in the indictment.

State v. Martin, 8th Dist. No. 95281, 2011–Ohio–222, ¶ 20. The defendant's only Muskingum County, Case No. CT2012-0029 6

recourse, with regard to non-jurisdictional defects, is to raise an issue with the voluntary

and intelligent character of the guilty plea or with the effectiveness of his trial counsel for

rendering advice pertaining to the plea. Spates; see also State v. Alexander, 10th Dist.

Nos. 05AP–192 and 05AP–245, 2006–Ohio–1298, ¶ 12–13 (the defendant, by pleading

guilty to the charges, waived any non-jurisdictional error committed in the course of the

proceedings to that point, including any error with respect to the court's failure to appoint

new counsel)

{¶20} Because Appellant entered a guilty plea in this matter, such plea to the

indictment waived any defect.

{¶21} Further, upon review of the indictment in this matter, we find that such

contained the case numbers, courts of conviction, nature of the offense and month and

year of the prior convictions. As such, we do not find the indictment to me insufficient

as to said charges.

{¶22} Appellant’s First Assignment of Error is overruled.

II., III.

{¶23} In his Second and Third Assignments of Error, appellant argues that his

conviction is void and contrary to law, and that his plea was not made knowingly,

intelligently or voluntarily. We disagree.

{¶24} Crim.R. 11 governs pleas. Subsection (C)(2) states the following:

{¶25} “(2) In felony cases the court may refuse to accept a plea of guilty or a

plea of no contest, and shall not accept a plea of guilty or no contest without first

addressing the defendant personally and doing all of the following: Muskingum County, Case No. CT2012-0029 7

{¶26} “(a) Determining that the defendant is making the plea voluntarily, with

understanding of the nature of the charges and of the maximum penalty involved, and if

applicable, that the defendant is not eligible for probation or for the imposition of

community control sanctions at the sentencing hearing.

{¶27} “(b) Informing the defendant of and determining that the defendant

understands the effect of the plea of guilty or no contest, and that the court, upon

acceptance of the plea, may proceed with judgment and sentence.

{¶28} “(c) Informing the defendant and determining that the defendant

understands that by the plea the defendant is waiving the rights to jury trial, to confront

witnesses against him or her, to have compulsory process for obtaining witnesses in the

defendant's favor, and to require the state to prove the defendant's guilt beyond a

reasonable doubt at a trial at which the defendant cannot be compelled to testify against

himself or herself

{¶29} Appellant herein argues that during the plea hearing, the prosecuting

attorney admitted that the alleged firearm in this matter was inoperable, and that

Appellant’s conviction for having a weapon while under disability was therefore based

on insufficient evidence.

{¶30} As stated above, a guilty plea waives all appealable errors except for a

challenge as to whether the defendant made a knowing, intelligent and voluntary

acceptance of the plea. State v. Spates (1992), 64 Ohio St.3d 269, 272-273.

{¶31} Appellant further maintains his plea was not knowingly, voluntarily and

intelligently entered because he pled guilty to an insufficient indictment. Herein,

Appellant incorporates the arguments he made in his First and Second Assignments of Muskingum County, Case No. CT2012-0029 8

Error. Having found no merit to Appellant's claim his indictment was insufficient, we

cannot find his plea was not knowingly, voluntarily, and intelligently entered based on

this reason

{¶32} Appellant’s Second and Third Assignments of Error are overruled.

IV.

{¶33} In his Fourth Assignment of Error, Appellant claims that he was denied

the effective assistance of counsel. We disagree.

{¶34} 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 Appellant was

prejudiced by counsel's ineffectiveness. 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. In determining whether counsel's representation fell below an objective standard of

reasonableness, judicial scrutiny of counsel's performance must be highly deferential.

Bradley at 142, 538 N.E.2d 373. Because of the difficulties inherent in determining

whether effective assistance of counsel was rendered in any given case, a strong

presumption exists counsel's conduct fell within the wide range of reasonable

professional assistance. Id.

{¶35} In order to warrant a reversal, Appellant must additionally show he was

prejudiced by counsel's ineffectiveness. “Prejudice from defective representation

sufficient to justify reversal of a conviction exists only where the result of the trial was

unreliable or the proceeding fundamentally unfair because of the performance of trial Muskingum County, Case No. CT2012-0029 9

counsel.” State v. Carter (1995), 72 Ohio St.3d 545, 558, 651 N.E.2d 965, citing

Lockhart v. Fretwell (1993), 506 U.S. 364, 370, 113 S.Ct. 838, 122 L.Ed.2d 180.

{¶36} The United States Supreme Court and the Ohio Supreme Court have

held a reviewing court “need not determine whether counsel's performance was

deficient 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.

{¶37} Appellant argues that his counsel was ineffective for allowing Appellant to

plea to the charges in the indictment for the reasons set forth in the above assignments

of error. Having found no merit in Appellant's First, Second, and Third Assignments of

Error, we find Appellant is unable to satisfy either prong of Strickland.

{¶38} Appellant’s Fourth Assignment of Error is overruled

V.

{¶39} In his Fifth Assignment of Error, Appellant claims that his sentence was

contrary to law and therefore violated his right to due process. We disagree.

{¶40} Specifically, Appellant argues that the trial court erred in imposing

consecutive sentences in this matter.

{¶41} “It is well-established that a sentence that is agreed upon as part of a

negotiated plea, and that does not exceed the statutory maximum sentence applicable

to the crime, is not subject to appellate review pursuant to R.C. § 2953.08(D).” State v.

Yeager, Carroll App.No. 03CA786, 2004–Ohio–3640, ¶ 21 (additional citations omitted).

{¶42} However, in the case sub judice, the record indicates that the trial court

sentenced Appellant to more than that which was recommended by the State. In these Muskingum County, Case No. CT2012-0029 10

circumstances, we find Appellant has not waived his right to challenge his sentence

upon direct appeal.

{¶43} 2011 Am.Sub.H.B. No. 86, which became effective on September 30,

2011, revived the language provided in former R.C. 2929.14(E) and moved it to R.C.

2929.14(C)(4). The revisions to the felony sentencing statutes under 2011 Am.Sub.H.B.

No. 86 now require a trial court to make specific findings when imposing consecutive

sentences. R.C. 2929.14(C)(4) provides, in relevant part:

{¶44} “(4) 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:

{¶45} “(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.

{¶46} “(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. Muskingum County, Case No. CT2012-0029 11

{¶47} “(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime by the

offender. (Emphasis added).

{¶48} In Section 11, the legislature explained that in amending former R.C.

2929.14(E)(4), it intended “to simultaneously repeal and revive the amended language

in those divisions that was invalidated and severed by the Ohio Supreme Court's

decision in State v. Foster (2006), 109 Ohio St.3d 1.” The General Assembly further

explained that the amended language in those divisions “is subject to reenactment

under the United States Supreme Court's decision in Oregon v. Ice (2009), 555 U.S.

160, and the Ohio Supreme Court's decision in State v. Hodge (2010), ––– Ohio St.3d –

–––, Slip Opinion No. 2010–Ohio–6320.” Thus, it is the legislature's intent that courts

interpret the language in R.C. 2929.14(C)(4) in the same manner as the courts did prior

to State v. Foster, 109 Ohio St.3d 1, 2006–Ohio–856, 845 N.E.2d 470.

{¶49} The First District Court of Appeals has observed:

{¶50} “The consecutive-sentence findings required by R.C. 2929.14(C) are not

the same as those required by former R.C. 2929.19(B)(2), which provided that the trial

court “shall impose a sentence and shall make a finding that gives its reasons for

selecting the sentence * * * (c) If it imposes consecutive sentences .” (Emphasis added.)

See State v. Comer, 99 Ohio St.3d 463, 2003–Ohio–4165, 793 N.E.2d 473, ¶ 14–16. In

2003, the Ohio Supreme Court held that the requirement that a trial court give its

reasons for selecting consecutive sentences was “separate and distinct from the duty to

make the findings,” and it imposed an obligation on trial courts to articulate the reasons

supporting their findings at the sentencing hearing. Id. at ¶ 19–20, 793 N.E.2d 473. The Muskingum County, Case No. CT2012-0029 12

trial court's obligation to “give its reasons” is now gone from the sentencing statutes.

Gone with it, we hold, is the requirement that the trial court articulate and justify its

findings at the sentencing hearing. A trial court is free to do so, of course. But where, as

here, there is no statutory requirement that the trial court articulate its reasons, it does

not commit reversible error if it fails to do so, as long as it has made the required

findings. See Phillips, 1st Dist. No. C–960898, 1997 Ohio App. LEXIS 2615, 1997 WL

330605. State v. Alexander, 1st Dist. Nos. C-110828, C-110829, 2012-Ohio-3349, ¶ 18.

Accord, State v. Frasca, 11th Dist. 2011-T-0108, 2012-Ohio-3746, ¶ 57.

{¶51} The trial court is not required to recite any “magic” or “talismanic” words

when imposing consecutive sentences provided it is “clear from the record that the trial

court engaged in the appropriate analysis.” State v. Murrin, 8th Dist. No. 83714, 2004–

Ohio–3962, ¶ 12. Accord, State v. Jones, 1st Dist. No. C-110603, 2012-Ohio-2075, ¶

22. An appellate court may only sustain an assignment of error challenging the

imposition of consecutive sentences under R.C. 2929.14 if the appellant shows that the

judgment was clearly and convincingly contrary to law. R.C. 2953.08(G).

{¶52} In the case at bar, the Presentence Investigation reviewed by the trial

court, along with the trial court’s colloquy with Appellant, revealed that Appellant had

been sentenced to prison on two prior offenses. Appellant had a conviction in

Mahoning County for robbery with a firearm specification which resulted in a three year

prison term. Less than a year after his release, Appellant was convicted of two counts

of improperly discharging a firearm (into a habitation) and having a weapon while under

disability which resulted in a six year prison sentence. Less than one year later,

Appellant was convicted of trafficking in marijuana in Summit County. Less than eight Muskingum County, Case No. CT2012-0029 13

months later, Appellant committed the offenses that are the subject of this appeal. (Plea

T. at 7-9).

{¶53} Additionally, the trial court noted that Appellant had committed a robbery

offense with a firearm when he was fourteen years old. (Plea T. at 9).

{¶54} Such findings, when coupled with the trial court’s acknowledgement that

it has read and considered the PSI, are sufficient to satisfy the factual findings

requirement under R.C. 2929.19(C)(4). Cf. State v. Jones, supra, 2012–Ohio–2075 ¶ 23

(where the trial court stated during the sentencing hearing that it was ordering the prison

terms to be served consecutively because the defendant had an extensive criminal

history and the victims had been seriously injured, these statements were sufficient to

show that the trial court's imposition of consecutive sentences was appropriate and

complied with R.C. 2929.14(C)(4)); State v. Johnson, 8th Dist. No. 97579, 2012–Ohio–

2508 ¶ 12 (when the court made findings related to Appellant's specific conduct in the

case and his repeated engagement in criminal activity, it properly found that the

sentence was not disproportionate to his conduct and threat he posed to society).

{¶55} Although the trial court in the present matter may not have used the exact

wording of the statute in reaching these findings, courts have found that, in making

findings regarding consecutive sentencing, “a verbatim recitation of the statutory

language is not required by the trial court.” State v. Green, 11th Dist. No. 2003–A–0089,

2005–Ohio–3268 ¶ 26, citing State v. Grissom, 11th Dist. No. 2001–L–107, 2002–Ohio–

5154 ¶ 21. State v. Frasca, supra, 2012-Ohio-3746, ¶ 60.

{¶56} The entire record adequately reflects consecutive sentences were

necessary to protect the public and to punish Appellant, and that they were not Muskingum County, Case No. CT2012-0029 14

disproportionate to the seriousness of his conduct and the danger he posed to the

public. In addition, Appellant’s history of criminal conduct demonstrated that consecutive

sentences were necessary to protect the public from future crime.

{¶57} Based on the above facts and the record herein, we find no error in the

indictment in this matter and further find that the trial court did not abuse its discretion in

sentencing Appellant to 47 months in prison.

{¶58} Appellant’s Fifth Assignment of Error is overruled.

{¶59} For the foregoing reasons, the judgment of the Court of Common Pleas,

Muskingum County, Ohio, is affirmed.

By: Wise, J.

Delaney, P. J., and

Farmer, J., concur.

___________________________________

JUDGES JWW/d 1115 Muskingum County, Case No. CT2012-0029 15

IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : -vs- : JUDGMENT ENTRY : DARIAN R. PATTERSON : : Defendant-Appellant : Case No. CT2012-0029

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Muskingum County, Ohio, is affirmed.

Costs assessed to Appellant.

JUDGES