State v. Thompson

2019 Ohio 1454

• Court: Ohio Court of Appeals
• Decided: April 8, 2019
• Docket: 18CA74
• Status: Published

Opinion

[Cite as State v. Thompson, 2019-Ohio-1454.]

COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. William B. Hoffman, P.J. : Hon. Patricia A. Delaney, J. Plaintiff-Appellee : Hon. Craig R. Baldwin, J. : -vs- : : Case No. 18CA74 JOSHUA THOMPSON : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Richland County Court of Common Pleas, Case No. 18-CR- 0100

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: April 8, 2019

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

GARY BISHOP RANDALL E. FRY PROSECUTING ATTORNEY 10 West Newlon Place BY: JOSEPH C. SNYDER Mansfield, OH 44902 Assistant Prosecutor 38 South Park Street Mansfield, OH 44902 Baldwin, J. Richland County, Case No. 18CA74 2

{¶1} Joshua Thompson appeals the sentence imposed by the Richland County

Court of Common Pleas after he entered a guilty plea to six counts of burglary in violation

of R.C. 2911.12(A)(3), felonies of the third degree. Appellee is the state of Ohio.

STATEMENT OF FACTS AND THE CASE

{¶2} The facts that lead to the charges filed against appellant in this matter are

irrelevant to the resolution of the appeal.

{¶3} Appellant was charged with twelve counts of Burglary in violation of R.C.

2911.12(A)(3). After entering a plea of not guilty, appellant changed his plea to guilty as

part of a negotiated plea. Six charges were dismissed and appellant plead guilty to the

remaining six. He was found guilty and sentenced to an aggregate sentence of nine

years, ordered to pay several thousand dollars in restitution to the victims and was notified

of mandatory post release control. Appellant filed a timely appeal and submitted one

assignment of error:

{¶4} I. THE APPELLANT WAS DEPRIVED OF HIS SIXTH AMENDMENT

RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, AS THE APPELLANT'S TRIAL

ATTORNEY FAILED TO OBJECT TO THE SENTENCE THE APPELLANT RECEIVED.

STANDARD OF REVIEW

{¶5} Our standard of review for ineffective assistance claims is set forth in

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Ohio

adopted this standard in the case of State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373

(1989). These cases require a two-pronged analysis in reviewing a claim for ineffective

assistance of counsel. First, we must determine whether counsel's assistance was

ineffective; i.e., whether counsel's performance fell below an objective standard of Richland County, Case No. 18CA74 3

reasonable representation and was violative of any of his or her essential duties to the

client. If we find ineffective assistance of counsel, we must then determine whether or not

the defense was actually prejudiced by counsel's ineffectiveness such that the reliability

of the outcome of the trial is suspect. This requires a showing there is a reasonable

probability that but for counsel's unprofessional error, the outcome of the trial would have

been different. Id.

{¶6} Trial counsel is entitled to a strong presumption all decisions fall within the

wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675,

693 N.E.2d 267 (1998). In addition, 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, quoting Strickland at 697. Even

debatable trial tactics and strategies do not constitute ineffective assistance of counsel.

State v. Clayton, 62 Ohio St.2d 45, 402 N.E.2d 1189 (1980).

ANALYSIS

{¶7} Appellant’s assignment of error proposes that he received ineffective

assistance of counsel at the trial level, but the argument offered in support of that

assignment suffers from a fatal lack of detail. Appellant claims trial counsel failed in his

obligation to object to the sentence imposed by the trial court, but he does not disclose

any basis for an objection. As stated, appellant is arguing that trial counsel has an

obligation to his client to enter an objection to any sentence imposed by the trial court.

Appellant offers no argument regarding the nature of any objection regarding the

sentence and cites no legal support to demonstrate that making such an objection is an Richland County, Case No. 18CA74 4

essential duty of trial counsel. The only prejudice arguably suffered by appellant is the

inability to argue that the sentence was, somehow, inappropriate, but appellant makes no

effort to demonstrate that in the absence of this alleged unprofessional conduct, there is

a reasonable possibility the outcome of the sentencing hearing would have been different.

“An appellate court “is not obliged to search the record for some evidence of claimed

error. * * * Rather, an appellant must tell the appellate court specifically where the trial

court's alleged errors may be located in the transcript.” Graham v. City of Findlay Police

Dept. 3rd Dist. Hancock. No. 5-01-32, 2002-Ohio-1215 *4 (Mar. 19, 2002) as quoted in

State v. Kinsey, 5th Dist. Knox No. 08 CA 12, 2008-Ohio-23, ¶ 10. This court is not

obligated to search the record to substantiate appellant’s assertion; however, in the

interest of justice, we will review the sentence imposed by the court below.

{¶8} The trial court imposed the maximum sentence of thirty-six months for each

count, with the sentence on three counts to run concurrently with each other and his

sentence in a related case. The trial court ordered the sentences on the three remaining

counts to run consecutively for an aggregate sentence of nine years, eighteen months

less than the sentence recommended by the state. The trial court stated at the sentencing

hearing and in its sentencing entry that it considered the principles and purposes of

sentencing under R.C. 2929.11 and the seriousness and recidivism factors in R.C.

2929.12. The trial court also considered, at the sentencing hearing and within its

sentencing entry, the elements necessary for determination of the appropriateness of

consecutive sentencing under R.C. 2929.14(C). The sentences did not exceed the

maximum permissible sentence per offense. Appellant has failed to highlight any Richland County, Case No. 18CA74 5

objectionable action in the sentencing process and we have not discovered a basis for an

objection.

{¶9} Appellant’s unsupported assertion that trial counsel rendered ineffective

assistance is not borne out by his argument or the record. Appellant’s sole assignment

of error is denied.

{¶10} The decision of the Richland County Court of Appeals is affirmed.

By Baldwin, J.,

Hoffman, P.J., and

Delaney, J., concur