State v. Raymond

2014 Ohio 556

• Court: Ohio Court of Appeals
• Decided: February 18, 2014
• Docket: 1-13-23
• Status: Published

Opinion

[Cite as State v. Raymond, 2014-Ohio-556.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY

STATE OF OHIO,

PLAINTIFF-APPELLEE, CASE NO. 1-13-23

v.

CARL D. RAYMOND, OPINION

DEFENDANT-APPELLANT.

Appeal from Allen County Common Pleas Court Trial Court No. CR 2012 0388

Judgment Affirmed

Date of Decision: February 18, 2014

APPEARANCES:

Eric J. Allen for Appellant

Jana E. Emerick for Appellee Case No. 1-13-23

PRESTON, J.

{¶1} Defendant-appellant, Carl D. Raymond, appeals the Allen County

Court of Common Pleas’ judgment entry of sentence. We affirm.

{¶2} On November 16, 2012, the Allen County Grand Jury indicted

Raymond on six counts of burglary, violations of R.C. 2911.12(A)(2) and second

degree felonies. (Doc. No. 1).

{¶3} On December 20, 2012, Raymond appeared for arraignment and

entered pleas of not guilty. (See Doc. Nos. 5, 21).

{¶4} On February 8, 2013, Raymond withdrew his pleas of not guilty and

entered pleas of guilty to Counts One, Two, and Three of burglary as charged in

the indictment pursuant to a written plea agreement. (Feb. 8, 2013 Tr. at 1-2, 14-

15); (Doc. Nos. 20-21). In exchange for the change of plea, the State agreed to

dismiss Counts Four, Five and Six of burglary, not pursue any additional charges,

order a Pre-Sentence Investigation (PSI) report, and to remain silent at sentencing.

(Id. at 15); (Id.). The trial court accepted Raymond’s guilty pleas and found him

guilty based upon his pleas. (Id.); (Id.). The trial court also dismissed the

remaining charges and ordered a PSI for sentencing. (Id. at 15).

{¶5} On March 21, 2013, the trial court sentenced Raymond to four years

on each Count and further ordered that Raymond serve the terms consecutively for

an aggregate sentence of 12 years. (Mar. 21, 2013 Tr. at 12). The trial court

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further ordered that Raymond serve the 12-year term of imprisonment in the Allen

County case consecutive to the 9-year term of imprisonment in his Auglaize

County case—a case stemming from separate burglaries Raymond committed in

that county. (Id. at 4-5, 13). The trial court also ordered that Raymond pay

restitution to the victims of his burglaries totaling $57,583.23. (Id. at 13-14).

{¶6} On March 21, 2013, the trial court filed its judgment entry of sentence.

(Doc. No. 23).

{¶7} On April 17, 2013, Raymond filed a notice of appeal. (Doc. No. 29).

He raises two assignments of error for our review.

Assignment of Error No. I

The trial court abused its discretion when it ruled that the sentence imposed in Allen County should be served consecutive to the sentence imposed in Auglaize County.

{¶8} In his first assignment of error, Raymond argues that the trial court

abused its discretion by ordering his 12-year Allen County sentence consecutive to

his Auglaize County 9-year sentence for an aggregate total of 21 years

imprisonment. Raymond argues that the trial court had little knowledge of the

facts and circumstances of the Auglaize County case to support its findings that

the harm was so great and unusual to support consecutive sentences. Raymond

does not dispute the trial court’s imposition of consecutive sentences in his Allen

County case.

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{¶9} A trial court’s sentence will not be disturbed on appeal absent a

defendant’s showing by clear and convincing evidence that the sentence is

unsupported by the record; the sentencing statutes’ procedure was not followed or

there was not a sufficient basis for the imposition of a prison term; or that the

sentence is contrary to law. State v. Ramos, 3d Dist. Defiance No. 4-06-24, 2007-

Ohio-767, ¶ 23 (the clear and convincing evidence standard of review set forth

under R.C. 2953.08(G)(2) remains viable with respect to those cases appealed

under the applicable provisions of R.C. 2953.08(A), (B), and (C) * * *); State v.

Rhodes, 12th Dist. Butler No. CA2005-10-426, 2006-Ohio-2401, ¶ 4; State v.

Tyson, 3d Dist. Allen Nos. 1-04-38 and 1-04-39, 2005-Ohio-1082, ¶ 19, citing

R.C. 2953.08(G).

{¶10} Clear and convincing evidence is that “which will produce in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be

established.” Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the

syllabus; State v. Boshko, 139 Ohio App.3d 827, 835 (12th Dist.2000). An

appellate court should not, however, substitute its judgment for that of the trial

court because the trial court is ‘“clearly in the better position to judge the

defendant’s dangerousness and to ascertain the effect of the crimes on the

victims.”’ State v. Watkins, 3d Dist. Auglaize No. 2-04-08, 2004-Ohio-4809, ¶ 16,

quoting State v. Jones, 93 Ohio St.3d 391, 400 (2001).

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{¶11} “Except as provided in * * * division (C) of section 2929.14, * * * a

prison term, jail term, or sentence of imprisonment shall be served concurrently

with any other prison term, jail term, or sentence of imprisonment imposed by a

court of this state, another state, or the United States.” R.C. 2929.41(A). R.C.

2929.14(C)(4)(b) provides:

(4) * * * 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:

***

(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.

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{¶12} To determine whether the offender’s conduct is more serious than

conduct normally constituting the offense, R.C. 2929.12(B) lists several factors the

trial court must consider, including the following relevant factors:

(2) The victim of the offense suffered serious physical,

psychological, or economic harm as a result of the offense.

(7) The offender committed the offense for hire or as a part of an

organized criminal activity.

The trial court is also empowered to consider “any other relevant factors” when

making this determination. R.C. 2929.12(B).

{¶13} Prior to addressing the merits of Raymond’s appeal, we are

compelled to address the dissent’s novel position that the judgment entry of

sentence is a non-final, appealable order because it failed to provide the case

number of the Auglaize County case from which Raymond’s Allen County

sentence runs consecutively. After reviewing State v. Lester, we are persuaded

that the judgment entry Raymond appeals sets forth the “sentence” as required

under Crim.R. 32(C) as a matter of form. 130 Ohio St.3d 202, 2011-Ohio-5204.

Lester, itself, instructs appellate courts not to elevate a matter of orderly procedure

over substance for purposes of Crim.R. 32(C)—the dissent’s exact invitation. Id.

at ¶ 12. Contrary to the dissent’s characterization, the record also demonstrates

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that the parties were aware of the Auglaize County case at issue. The PSI

indicates that the Auglaize County case number is 2012CR0154. (PSI). The trial

court reviewed the PSI prior to sentencing and even circled the applicable

Auglaize County case.1 Finally, to the extent that the trial court’s failure to

include the Auglaize County case number was error, sentencing errors—even

illegal sentences—do not deprive this court of jurisdiction for appellate review.

State v. Fischer, 128 Ohio St.3d 92, 2010-Ohio-6238, ¶ 7, 39. Consequently, we

are not persuaded that the lack of the Auglaize County case number rendered the

judgment entry of sentence a non-final, appealable order depriving this Court of

jurisdiction. We now turn to the merits of Raymond’s appeal.

{¶14} Raymond was originally indicted on six burglaries stemming from

six separate home invasions throughout Allen County over the course of five days

for the purpose of stealing items to support his prescription drug addiction. (Doc.

No. 1); (PSI). The trial court found that the victims in this case suffered severe

economic harm. (R.C. 2929.12(B)(2)). The record supports this finding. The trial

court ordered Raymond to pay $57,583.23 in restitution to the victims. (Mar. 21,

2013 Tr. at 14). Beyond the trial court’s restitution order, the discovery in this

case supports the trial court’s finding that the victim’s suffered severe economic

harm. (See Doc. No. 15). Raymond stole several firearms that were collectors’

1 The trial court judge initialed the PSI using a blue felt-tip pen. This same pen was used to circle the Auglaize County case at issue.

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models or high-value, custom-built firearms, thousands of dollars in cash, and

jewelry. (See Id.). (See also Victim Impact Statements). While some of the loss

suffered by the victims was covered by insurance, the majority was not covered

due to insurance policy limitations on jewelry and firearms coverage. (Victim

Impact Statements).

{¶15} The trial court also found that the victims suffered severe

psychological harm. (R.C. 2929.12(B)(2)). The record also supports this finding.

One of the victims informed the trial court at sentencing that Raymond stole

family heirlooms that she planned to hand down to her grandchildren. (Mar. 21,

2013 Tr. at 2-3). This victim further indicated that she is still afraid when she is

alone in her home after her husband leaves for work. (Id. at 3). The victim impact

statements submitted along with the PSI also indicated severe psychological harm.

(Mar. 21, 2013 Tr. at 2-3); (Victim Impact Statements). Many of the victims

stated that they were now afraid to leave their homes vacant and have installed

security alarms. (Victim Impact Statements). Many of the items Raymond stole,

like jewelry, also had sentimental value to the victims. (Mar. 21, 2013 Tr. at 2-3);

(Victim Impact Statements). (See also Doc. No. 15). Some of the victims

expressed concern that Raymond would send his “buddies” back to their house to

further victimize them. (Victim Impact Statements). Other victims questioned

whether they should buy firearms to protect themselves. (Id.).

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{¶16} The trial court also found that the offenses were more serious than

normal in light of the drug activity and the fact that Raymond was coordinating

with his drug suppliers to determine which houses to burglarize. (Mar. 21, 2013

Tr. at 5-6, 9-10); (See R.C. 2929.12(B)(7)). (See also R.C. 2929.12(B), “any other

factor”).

{¶17} Finally, the trial court indicated at the sentencing hearing that it was

aware that Raymond was charged with two burglaries, an attempted burglary, and

a drug charge in Auglaize County. (Mar. 21, 2013 Tr. at 4). Raymond indicated

that the drug charges were dropped and he received nine years imprisonment on

the remaining convictions. (Id. at 4-5).

{¶18} Raymond has failed to clearly and convincingly demonstrate that the

trial court erred by ordering his Allen County sentence consecutive to his Auglaize

County sentence. The trial court weighed the appropriate factors and made the

appropriate R.C. 2929.14(C) findings prior to imposing consecutive sentences.

Therefore, the trial court followed the appropriate sentencing procedure, and the

sentence was not contrary to law. The trial court was clearly concerned with the

severe economic and psychological harm Raymond caused during his several-day

burglary spree. The trial court’s findings were supported by the record. Contrary

to Raymond’s argument, the trial court was aware of the essential circumstances

of the burglaries in Auglaize County—they were more of the same activity that

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took place in Allen County, i.e. burglarizing and stealing to fund Raymond’s drug

addiction.

{¶19} Raymond’s first assignment of error is, therefore, overruled.

Assignment of Error No. II

Appellant’s right to effective assistance of counsel was violated when counsel offered no evidence on behalf of her client in mitigation.

{¶20} In his second assignment of error, Raymond argues that he was

denied effective assistance of trial counsel when trial counsel failed to offer any

evidence in mitigation. In particular, Raymond argues that trial counsel failed to

highlight his substance abuse, lack of a prior felony record, and low Ohio Risk

Assessment System (“ORAS”) score.

{¶21} A defendant asserting a claim of ineffective assistance of counsel

must establish: (1) the counsel’s performance was deficient or unreasonable under

the circumstances; and (2) the deficient performance prejudiced the defendant.

State v. Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466

U.S. 668, 687, 104 S.Ct. 2052 (1984).

{¶22} In order to show counsel’s conduct was deficient or unreasonable,

the defendant must overcome the presumption that counsel provided competent

representation and must show that counsel’s actions were not trial strategies

prompted by reasonable professional judgment. Strickland, 466 U.S. at 689.

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Counsel is entitled to a strong presumption that all decisions fall within the wide

range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673,

675 (1998). Tactical or strategic trial decisions, even if unsuccessful, do not

generally constitute ineffective assistance. State v. Frazier, 61 Ohio St.3d 247,

255 (1991). Rather, the errors complained of must amount to a substantial

violation of counsel’s essential duties to his client. See State v. Bradley, 42 Ohio

St. 3d 136, 141-142 (1989), citing State v. Lytle, 48 Ohio St.2d 391, 396 (1976).

{¶23} The presentation of mitigation evidence is a matter of trial strategy,

which does not constitute ineffective assistance. State v. Stiles, 3d Dist. Allen No.

1-08-12, 2009-Ohio-89, ¶ 59, citing State v. Were, 118 Ohio St.3d 448, 2008-

Ohio-2762, ¶ 241, citing State v. Keith, 79 Ohio St.3d 514, 530 (1997). As a

matter of trial strategy, trial counsel decided to have Raymond make a statement

expressing his remorse to the victims, their families, and his family during

sentencing. (Mar. 21, 2013 Tr. at 4). A PSI was also prepared detailing

Raymond’s criminal record, prescription-drug addiction, and his moderate ORAS

score. Therefore, all of the mitigation evidence Raymond argues trial counsel

should have highlighted was already before the sentencing court. Consequently,

we are not persuaded that trial counsel’s argument concerning mitigation evidence

that was already before the sentencing court would have changed the outcome

here.

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{¶24} Raymond’s second assignment of error is, therefore, overruled.

{¶25} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

SHAW, J., concurs.

/jlr

ROGERS, J., DISSENTS.

{¶26} I respectfully dissent from the opinion of the majority and would find

that the entry appealed from is not a final, appealable order.

{¶27} The Ohio Court of Appeals is only vested with appellate jurisdiction

over final and appealable orders. Ohio Constitution, Article IV, Section 3(B)(2).

Thus, if the judgment appealed from is not a final order, an appellate court has no

jurisdiction over the matter and the appeal must be dismissed. State v. O’Black,

3d Dist. Allen No. 1-09-46, 2010-Ohio-192, ¶ 4.

{¶28} Appellant argues that the trial court erred in imposing a sentence that

is to be served consecutive to a conviction in Auglaize County. However, the trial

court has failed to identify the alleged conviction in Auglaize County. It cannot be

determined from the sentencing entry what Auglaize County case the trial court is

referring to or whether the Auglaize County case has even been completed and a

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sentence imposed.2 It is axiomatic that the Allen County case cannot be ordered to

be served consecutive to another case on which a sentence has not yet been

imposed.

{¶29} I would refer the majority to the opinion of the Ohio Supreme Court

in State v. Lester. 130 Ohio St.3d 303, 2011-Ohio-5204. In Lester, the Court

stated that a judgment of conviction is a final order “when the judgment entry sets

forth (1) the fact of the conviction, (2) the sentence, (3) the judge’s signature, and

(4) the time stamp indicating the entry upon the journal by the clerk.” Id. at ¶ 14.

Certainly an order imposing a consecutive sentence is incomplete when it cannot

be determined from a reading of the sentencing entry as to what case the current

sentence is to be served consecutive. It appears the trial court had no actual

knowledge of an Auglaize County case except for a discussion of its possible

existence.

{¶30} Since Raymond’s sentence cannot be ascertained from the trial

court’s judgment entry, I would dismiss this appeal for lack of a final, appealable

order.

2 Although the PSI states a case number for an Auglaize County case, it shows the status of the case as pending. Further, since the Auglaize County case number was never mentioned at the sentencing hearing, a nunc pro tunc judgment entry would not be able to correct this deficiency.

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