State v. Timmons

2018 Ohio 2837

• Court: Ohio Court of Appeals
• Decided: July 19, 2018
• Docket: 105940,105941,105943
• Status: Published

Opinion

[Cite as State v. Timmons, 2018-Ohio-2837.]

Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION Nos. 105940, 105941, and 105942

STATE OF OHIO

PLAINTIFF-APPELLEE

vs.

TERRANCE TIMMONS, JR.

DEFENDANT-APPELLANT

JUDGMENT: AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-16-611004-A, CR-16-611131-A, and CR-16-611383-A

BEFORE: S. Gallagher, J., E.T. Gallagher, P.J., and Stewart, J.

RELEASED AND JOURNALIZED: July 19, 2018 ATTORNEY FOR APPELLANT

Gregory Scott Robey Robey & Robey 14402 Granger Road Cleveland, Ohio 44137

ATTORNEYS FOR APPELLEE

Michael C. O’Malley Cuyahoga County Prosecutor By: Shannon M. Musson Gregory J. Ochocki Assistant Prosecuting Attorneys Justice Center - 9th Floor 1200 Ontario Street Cleveland, Ohio 44113

SEAN C. GALLAGHER, J.: {¶1} Appellant Terrance Timmons, Jr., appeals his convictions and the sentences

imposed in three underlying cases, Cuyahoga C.P. Nos. CR-16-611004-A, CR-16-611131-A, and

CR-16-611383-A. Upon review, we affirm.

{¶2} Appellant was indicted in the underlying cases for drug-related offenses occurring in

August and October 2016. Appellant entered guilty pleas to some of the charges, with the

remaining counts being nolled. He was sentenced to a total aggregate prison term on all three

cases of 14.5 years.

{¶3} In Cuyahoga C.P. No. CR-16-611004-A, appellant pled guilty to the following

charges as amended: Count 1, drug trafficking (R.C. 2925.03(A)(2)), a felony of the fourth

degree, with a one-year firearm specification; Count 3, drug trafficking (R.C. 2925.03(A)(2)), a

felony of the fourth degree; Count 6, attempted having weapons while under disability (R.C.

2923.02/2923.13(A)(3)), a felony of the fourth degree; and all forfeiture specifications associated

with those counts. The sentencing entry reflects appellant was sentenced to a total prison term

of 66 months in the case, including 18 months on Count 1, plus 1 year on the gun specification to

be served prior to and consecutive with the base charge; 18 months on Count 3; and 18 months

on Count 6. The trial court ordered all counts to run consecutive to one another and to the

sentences imposed in Cuyahoga C.P. No. CR-16-611383-A, for a total sentence in all three cases

of 14.5 years.1

1 The transcript reflects that in Cuyahoga C.P. No. CR-16-611004-A, the sentence pronounced at the sentencing hearing included a longer sentence of 36 months on Count 6, resulting in a total sentence in that case of 7 years, and a total sentence in all three cases of 16 years. We note that although the state mentioned the discrepancy at oral argument, no appeal was taken by the state to challenge the modified sentence imposed in the journal entry. Further, although Crim.R. 43(A)(1) provides a criminal defendant the right to be present at every stage of the criminal proceedings, including the imposition of sentence and any modification of a sentence, appellant does not seek to invoke his due process rights on appeal as to the reduction of his sentence. Accordingly, because a court speaks only through its written journal entries, we shall review the sentence imposed in the trial court’s sentencing entry. {¶4} In Cuyahoga C.P. No. CR-16-611131-A, appellant pled guilty to drug possession

(R.C. 2925.11), a felony of the fifth degree. The trial court sentenced appellant to a prison term

of 12 months and ordered the sentence to run concurrent to Cuyahoga C.P. Nos.

CR-16-611004-A and CR-16-611383-A.

{¶5} In Cuyahoga C.P. No. CR-16-611383-A, appellant pled guilty to the following

charges: Count 1, drug trafficking (R.C. 2925.03(A)(2)), a felony of the fourth degree; Count 3,

drug trafficking (R.C. 2925.03(A)(2)), a felony of the third degree; Count 5, drug trafficking

(R.C. 2925.03(A)(2)), a felony of the fourth degree; and Count 7, having weapons while under

disability (R.C. 2923.13(A)(2)), a felony of the third degree; and all forfeiture specifications

associated with those counts. The trial court sentenced appellant to a total prison term of 9 years

in the case, including 18 months on Count 1; 36 months on Count 3, 18 months on Count 5; and

36 months on Count 7. The trial court ordered all counts to run consecutive to one another and

to the sentences imposed in Cuyahoga C.P. No. CR-16-611004-A.

{¶6} Appellant timely filed this appeal. He raises two assignments of error for our

review. Under his first assignment of error, appellant claims the trial court erred by failing to

fully advise him of his constitutional and statutory rights prior to accepting his guilty plea and

that his plea was not knowingly, intelligently, and voluntarily made.

{¶7} Appellant claims that the trial court failed to strictly comply with Crim.R. 11. He

argues that although the trial court informed him of his right to be represented by counsel, the

court did not advise him that if he could not afford to hire a lawyer, one would be appointed to

represent him at no cost. He also argues that although the court advised him of his right to a jury

trial, the court did not advise him that he could waive that right and elect to have a bench trial. {¶8} Additionally, appellant argues that the plea hearing was interrupted by a medical

emergency and an exchange by the court with another defense attorney. Appellant further states

that he expressed confusion during the plea hearing.

{¶9} “When a defendant enters a plea in a criminal case, the plea must be made

knowingly, intelligently, and voluntarily.” State v. Engle, 74 Ohio St.3d 525, 527,

1996-Ohio-179, 660 N.E.2d 450. The standard of review for determining whether a plea was

knowing, intelligent, and voluntary within the meaning of Crim.R. 11 for nonconstitutional

issues is substantial compliance, and strict compliance for constitutional issues. State v. Nero,

56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990), citing State v. Stewart, 51 Ohio St.2d 86, 92-93,

364 N.E.2d 1163 (1977); see also State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897

N.E.2d 621. “Substantial compliance means that under the totality of the circumstances the

defendant subjectively understands the implications of his plea and the rights he is waiving.”

Nero at 108. Furthermore, a defendant must show a prejudicial effect. Id., citing Stewart at 93.

The test for prejudice is “whether the plea would have otherwise been made.” Id., citing

Stewart at 93.

{¶10} The transcript herein reflects that the plea hearing was interrupted while the plea

agreement was being placed on the record. Upon resuming with appellant’s case, the remainder

of the plea agreement was stated on the record and the plea hearing continued. There is no

suggestion that the plea agreement was not properly stated on the record or that appellant did not

understand the agreement. Defense counsel indicated that he had fully advised appellant of his

available defenses, and counsel expressed satisfaction that the plea would be voluntarily entered. {¶11} The trial court engaged in a colloquy with appellant and advised him of each of his

constitutional rights. Appellant was informed that upon acceptance of his guilty plea, the court

could proceed to judgment and sentencing. Appellant indicated that he understood the

implications of a plea of guilty and the rights he would be waiving by entering such a plea.

{¶12} Appellant then informed the court about his family’s history with selling drugs and

that his father was pushing it off on him, and he expressed he was being told things that were

causing confusion as to his sentence. The trial court informed appellant about the sentencing

process and that the sentence would not be determined until the day of sentencing. The court

thoroughly reviewed each count to which appellant would be pleading and the possible sentences

that could be imposed. Appellant expressed that he understood. Appellant then pled guilty to

each count and expressed that his plea had been voluntarily entered. The trial court accepted the

guilty pleas and nolled the remaining counts.

{¶13} Our review of the record reflects that under the totality of the circumstances the

defendant had a subjective understanding of the implications of his plea and the rights he was

waiving. Further, appellant has not shown that the plea otherwise would not have been entered.

We find that the trial court complied with Crim.R. 11 and that appellant’s plea was knowing,

intelligent, and voluntary. Appellant’s first assignment of error is overruled.

{¶14} Under his second assignment of error, appellant claims that the prison terms of 9

years imposed in Cuyahoga C.P. No. CR-16-611383-A and 5.5 years imposed in Cuyahoga C.P.

No. CR-16-611004-A, as well as the aggregate prison term of 14.5 years imposed for all three

cases is not supported by the record. Under his third assignment of error, appellant challenges

the imposition of maximum, consecutive sentences in Cuyahoga C.P. Nos. CR-16-611383-A and

CR-16-611004-A. {¶15} A trial court has full discretion to impose any term of imprisonment within the

statutory range, as long as it considers the sentencing purposes in R.C. 2929.11 and the

guidelines contained in R.C. 2929.12. State v. Ray, 8th Dist. Cuyahoga No. 101142,

2014-Ohio-4689, ¶ 14, citing State v. Holmes, 8th Dist. Cuyahoga No. 99783, 2014-Ohio-603, ¶

8. Under the plain language of R.C. 2953.08(G)(2), “an appellate court may vacate or modify a

felony sentence on appeal only if it determines by clear and convincing evidence that the record

does not support the trial court’s findings under relevant statutes or that the sentence is otherwise

contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1,

21. Appellate courts are to afford deference to a trial court’s broad discretion in making

sentencing decisions. State v. Rahab, 150 Ohio St.3d 152, 2017-Ohio-1401, 80 N.E.3d 431, ¶

10.

{¶16} Appellant argues that the trial court failed to properly consider a number of

sentencing factors under the law. Appellant claims that the “more serious” factors under R.C.

2929.12(B) were not applicable and that certain “less serious” factors under R.C. 2929.12(C)

were applicable, including that he did not cause or expect to cause physical harm to any person or

property and that two of the offenses happened in a very short time period. He also argues that

the trial court failed to consider several “less likely” recidivism factors under R.C. 2929.12(E)

and maintains that the conduct was the result of rash decisions, made by an immature young man,

over a short time period, and that he demonstrated genuine remorse.

{¶17} Additionally, appellant claims the trial court engaged in unfairly prejudicial and

overbroad generalizations concerning the growing number of heroin overdose deaths, made

statements calling appellant a “death dealer” and “boogeyman” who is going to “come and sell

death,” and expressed the court’s belief that “everyone who sells heroin or fentanyl should be charged with attempted murder.” Appellant states that there was no evidence that any person

overdosed or died in connection with any of the cases.

{¶18} The record reflects that prior to imposing sentence, the trial court reviewed the

presentence investigation report and heard statements from defense counsel, the assistant

prosecutor, and appellant. Appellant expressed that he felt he had been manipulated by his

father and blamed his parents for his predicament. However, the court noted that appellant was

26 years old at the time of the offenses and could have said no. Appellant acknowledged that he

had been to prison in the past for selling drugs. The trial court’s discussion of the heroin

epidemic and comments on the dangers of selling heroin reflected upon the seriousness of the

offenses. Appellant acknowledged that heroin kills.

{¶19} The trial court rejected appellant’s request for a minimum sentence, commenting to

appellant that “each time you went to prison for selling drugs you came out and you went right

back to selling drugs.” Appellant’s history of drug offenses dated back to 2008. Appellant also

indicated he was on postrelease control at the time of the offenses in this matter.

{¶20} The court engaged in a proper analysis for imposing consecutive sentences.

Pursuant to R.C. 2929.14(C)(4), in order to impose consecutive sentences, the trial court must (1)

find that consecutive sentences are necessary to protect the public from future crime or to punish

the offender, (2) find 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 (3) make a finding

under R.C. 2929.14(C)(4)(a)-(c). The trial court made the requisite findings and incorporated its

findings into the sentencing journal entry consistent with State v. Bonnell, 140 Ohio St.3d 209,

2014-Ohio-3177, 16 N.E.3d 659, ¶ 37. {¶21} The sentencing journal entry also states that “the court considered all required

factors of the law. The court finds that prison is consistent with the purpose of R.C. 2929.11.”

The trial court was not required to make any findings in support of the factors contained in R.C.

2929.11 or 2929.12. State v. Binford, 8th Dist. Cuyahoga No. 105414, 2018-Ohio-90, ¶ 39.

Also, there is no requirement for findings for imposing maximum sentences. State v. Foster,

109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, paragraph seven of the syllabus.

{¶22} Having reviewed the entire record and the presentence investigation report, we are

unable to determine by clear and convincing evidence that the record does not support the trial

court’s findings or the sentence imposed. Appellant’s second and third assignments of error are

overruled.

{¶23} Under his fourth assignment of error, appellant claims he was denied effective

assistance of counsel. In order to substantiate a claim of ineffective assistance of counsel, the

appellant must show “(1) deficient performance by counsel, i.e., performance falling below an

objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability

that but for counsel’s errors, the proceeding’s result would have been different.” State v. Perez,

124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 200, citing Strickland v. Washington,

466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio

St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. The defendant has

the burden of proving his counsel rendered ineffective assistance. Perez at ¶ 223.

{¶24} Appellant’s claim is premised upon his argument that defense counsel failed to

secure further inquiry from the court relating to the voluntariness of his plea and that, at

sentencing, defense counsel failed to object or to correct the record with regard to the trial court’s

statements about heroin overdose deaths. Upon our review, we are unable to conclude that appellant has demonstrated deficient performance of counsel or prejudice. Appellant’s fourth

assignment of error is overruled.

{¶25} Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed. The court

finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution. The defendant’s convictions having been affirmed,

any bail pending appeal is terminated. Case remanded to the trial court for execution of

sentence.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.

SEAN C. GALLAGHER, JUDGE

EILEEN T. GALLAGHER, P.J., and MELODY J. STEWART, J., CONCUR