[Cite as State v. Varholick, 2011-Ohio-4402.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 94187
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
JAMES VARHOLICK DEFENDANT-APPELLANT
JUDGMENT: APPLICATION DENIED
Cuyahoga County Court of Common Pleas Case No. CR-526692 Application for Reopening Motion No. 440557 RELEASE DATE: August 26, 2011 FOR APPELLANT
James Varholick, pro se Inmate #573-485 Marion Correctional Institution P.O. Box #57 Marion, Ohio 43301
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor
BY: Daniel T. Van Assistant Prosecuting Attorney The Justice Center, 8 Floor ht
1200 Ontario Street Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{¶ 1} On December 30, 2010, the applicant, James Varholick, pursuant to App.R. 26(B)
and State v. Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204, applied to reopen this
court’s judgment in State v. James Varholick, Cuyahoga App. No. 94187, 2010-Ohio-5132, in
which this court affirmed Varholick’s sentence for operating a vehicle under the influence.
Varholick now claims that his appellate counsel should have argued that the indictment did not
plead an essential element of the offense to raise the charge to a third degree felony, that the
state did not provide sufficient evidence to raise the offense to a third degree felony, and that the trial judge deprived him of his right to allocution. On January 31, 2011, the state of Ohio,
through the Cuyahoga County Prosecutor, filed a brief in opposition, and Varholick filed a reply
brief on February 9, 2011. For the following reasons, this court denies the application.
{¶ 2} In August 2009, the grand jury indicted Varholick on two counts of driving while
under the influence. The “Furthermore” clause in the first charge listed by date and case 1
number Varholick’s five previous convictions for drunk driving. The second indictment’s
“Furthermore” clause stated that Varholick “previously had been convicted of or pleaded guilty
to a violation of [R.C. 4511.19](A) that was a felony, regardless of when the violation and the
conviction or guilty plea occurred.” 2
{¶ 3} On September 2, 2009, Varholick pleaded guilty to Count 2, and the state nolled
Count 1. At that time, defense counsel admitted that this was Varholick’s second felony
offense for drunk driving and consequently this charge was a third degree felony. Varholick
1 The record, including the police report of the incident found in the file, shows that Varholick was so intoxicated that he fell asleep while driving. (Tr. Pg. 15.) Fortunately, he fell asleep while stopping for a light, and his foot remained on the brake until a police officer investigated the vehicle not proceeding at the light. 2 R.C. 4511.19(G)(1)(e) provides in pertinent part as follows: “An offender who previously has been convicted of or pleaded guilty to a violation of division (A) of this section that was a felony, regardless of when the violation and the conviction or guilty plea occurred, is guilty of a felony of the third degree.” also admitted that he was now serving a 30-month prison sentence for violating probation on the
previous felony conviction for drunk driving. 3
{¶ 4} The trial judge held the sentencing hearing on October 1, 2009. Defense counsel
made a concise statement on Varholick’s behalf. He stressed that Varholick had taken
responsibility for his actions by admitting his culpability and his alcoholism, that he had been
staying sober on probation, that he had attended many 12-step meetings, that he could benefit
from treatment, and that he does not want to drink anymore. The trial judge then stated he
would hear from the defendant himself. Varholick stated that he did not know what to say, that
the judge had given him a chance, that he had been doing so well, that he was not drinking, that
he did not want to drink and did not know why he drank again.
{¶ 5} The trial judge then terminated the allocution and stated that Varholick drank again
because he is an alcoholic. The judge expressed his sympathy for Varholick’s condition, but
stated that Varholick’s and his friends’ statements about unfortunate events in Varholick’s life
were unnecessary. The judge told Varholick that he had given him a chance, but that
Varholick had not done what was necessary, which was to stay sober every day. Instead,
Varholick chose to drink and get behind a wheel again. The judge continued that Varholick
was fortunate that he did not kill anyone, but the judge needed to protect the public. Thus, he
sentenced Varholick to four years consecutive to the 30 months for the probation violation.
3 Varholick had the same trial judge for both of his drunk driving felony cases. LEGAL ANALYSIS
{¶ 6} In order to establish a claim of ineffective assistance of appellate counsel, the
applicant must demonstrate that counsel’s performance was deficient and that the deficient
performance prejudiced the defense. 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, cert. denied
(1990), 497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 768; State v. Reed, 74 Ohio St.3d 534,
1996-Ohio-21, 660 N.E.2d 456.
{¶ 7} In Strickland, the United States Supreme Court ruled that judicial scrutiny of an
attorney’s work must be highly deferential. The Court noted that it is all too tempting for a
defendant to second-guess his lawyer after conviction and that it would be all too easy for a
court, examining an unsuccessful defense in hindsight, to conclude that a particular act or
omission was deficient. Therefore, “a court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Strickland, 104 S.Ct. at 2065.
{¶ 8} Specifically, in regard to claims of ineffective assistance of appellate counsel, the
United States Supreme Court has upheld the appellate advocate’s prerogative to decide strategy
and tactics by selecting what he thinks are the most promising arguments out of all possible
contentions. The court noted: “Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one
central issue if possible, or at most on a few key issues.” Jones v. Barnes (1983), 463 U.S.
745, 103 S.Ct. 3308, 3313, 77 L.Ed.2d 987. Indeed, including weaker arguments might lessen
the impact of the stronger ones. Accordingly, the Court ruled that judges should not
second-guess reasonable professional judgments and impose on appellate counsel the duty to
raise every “colorable” issue. Such rules would disserve the goal of vigorous and effective
advocacy. The Supreme Court of Ohio reaffirmed these principles in State v. Allen, 77 Ohio
St.3d 172, 1996-Ohio-366, 672 N.E.2d 638.
{¶ 9} Moreover, even if a petitioner establishes that an error by his lawyer was
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[Cite as State v. Varholick, 2011-Ohio-4402.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION No. 94187
STATE OF OHIO PLAINTIFF-APPELLEE
vs.
JAMES VARHOLICK DEFENDANT-APPELLANT
JUDGMENT: APPLICATION DENIED
Cuyahoga County Court of Common Pleas Case No. CR-526692 Application for Reopening Motion No. 440557 RELEASE DATE: August 26, 2011 FOR APPELLANT
James Varholick, pro se Inmate #573-485 Marion Correctional Institution P.O. Box #57 Marion, Ohio 43301
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor
BY: Daniel T. Van Assistant Prosecuting Attorney The Justice Center, 8 Floor ht
1200 Ontario Street Cleveland, Ohio 44113
SEAN C. GALLAGHER, J.:
{¶ 1} On December 30, 2010, the applicant, James Varholick, pursuant to App.R. 26(B)
and State v. Murnahan (1992), 63 Ohio St.3d 60, 584 N.E.2d 1204, applied to reopen this
court’s judgment in State v. James Varholick, Cuyahoga App. No. 94187, 2010-Ohio-5132, in
which this court affirmed Varholick’s sentence for operating a vehicle under the influence.
Varholick now claims that his appellate counsel should have argued that the indictment did not
plead an essential element of the offense to raise the charge to a third degree felony, that the
state did not provide sufficient evidence to raise the offense to a third degree felony, and that the trial judge deprived him of his right to allocution. On January 31, 2011, the state of Ohio,
through the Cuyahoga County Prosecutor, filed a brief in opposition, and Varholick filed a reply
brief on February 9, 2011. For the following reasons, this court denies the application.
{¶ 2} In August 2009, the grand jury indicted Varholick on two counts of driving while
under the influence. The “Furthermore” clause in the first charge listed by date and case 1
number Varholick’s five previous convictions for drunk driving. The second indictment’s
“Furthermore” clause stated that Varholick “previously had been convicted of or pleaded guilty
to a violation of [R.C. 4511.19](A) that was a felony, regardless of when the violation and the
conviction or guilty plea occurred.” 2
{¶ 3} On September 2, 2009, Varholick pleaded guilty to Count 2, and the state nolled
Count 1. At that time, defense counsel admitted that this was Varholick’s second felony
offense for drunk driving and consequently this charge was a third degree felony. Varholick
1 The record, including the police report of the incident found in the file, shows that Varholick was so intoxicated that he fell asleep while driving. (Tr. Pg. 15.) Fortunately, he fell asleep while stopping for a light, and his foot remained on the brake until a police officer investigated the vehicle not proceeding at the light. 2 R.C. 4511.19(G)(1)(e) provides in pertinent part as follows: “An offender who previously has been convicted of or pleaded guilty to a violation of division (A) of this section that was a felony, regardless of when the violation and the conviction or guilty plea occurred, is guilty of a felony of the third degree.” also admitted that he was now serving a 30-month prison sentence for violating probation on the
previous felony conviction for drunk driving. 3
{¶ 4} The trial judge held the sentencing hearing on October 1, 2009. Defense counsel
made a concise statement on Varholick’s behalf. He stressed that Varholick had taken
responsibility for his actions by admitting his culpability and his alcoholism, that he had been
staying sober on probation, that he had attended many 12-step meetings, that he could benefit
from treatment, and that he does not want to drink anymore. The trial judge then stated he
would hear from the defendant himself. Varholick stated that he did not know what to say, that
the judge had given him a chance, that he had been doing so well, that he was not drinking, that
he did not want to drink and did not know why he drank again.
{¶ 5} The trial judge then terminated the allocution and stated that Varholick drank again
because he is an alcoholic. The judge expressed his sympathy for Varholick’s condition, but
stated that Varholick’s and his friends’ statements about unfortunate events in Varholick’s life
were unnecessary. The judge told Varholick that he had given him a chance, but that
Varholick had not done what was necessary, which was to stay sober every day. Instead,
Varholick chose to drink and get behind a wheel again. The judge continued that Varholick
was fortunate that he did not kill anyone, but the judge needed to protect the public. Thus, he
sentenced Varholick to four years consecutive to the 30 months for the probation violation.
3 Varholick had the same trial judge for both of his drunk driving felony cases. LEGAL ANALYSIS
{¶ 6} In order to establish a claim of ineffective assistance of appellate counsel, the
applicant must demonstrate that counsel’s performance was deficient and that the deficient
performance prejudiced the defense. 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, cert. denied
(1990), 497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 768; State v. Reed, 74 Ohio St.3d 534,
1996-Ohio-21, 660 N.E.2d 456.
{¶ 7} In Strickland, the United States Supreme Court ruled that judicial scrutiny of an
attorney’s work must be highly deferential. The Court noted that it is all too tempting for a
defendant to second-guess his lawyer after conviction and that it would be all too easy for a
court, examining an unsuccessful defense in hindsight, to conclude that a particular act or
omission was deficient. Therefore, “a court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances, the challenged action ‘might be
considered sound trial strategy.’” Strickland, 104 S.Ct. at 2065.
{¶ 8} Specifically, in regard to claims of ineffective assistance of appellate counsel, the
United States Supreme Court has upheld the appellate advocate’s prerogative to decide strategy
and tactics by selecting what he thinks are the most promising arguments out of all possible
contentions. The court noted: “Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one
central issue if possible, or at most on a few key issues.” Jones v. Barnes (1983), 463 U.S.
745, 103 S.Ct. 3308, 3313, 77 L.Ed.2d 987. Indeed, including weaker arguments might lessen
the impact of the stronger ones. Accordingly, the Court ruled that judges should not
second-guess reasonable professional judgments and impose on appellate counsel the duty to
raise every “colorable” issue. Such rules would disserve the goal of vigorous and effective
advocacy. The Supreme Court of Ohio reaffirmed these principles in State v. Allen, 77 Ohio
St.3d 172, 1996-Ohio-366, 672 N.E.2d 638.
{¶ 9} Moreover, even if a petitioner establishes that an error by his lawyer was
professionally unreasonable under all the circumstances of the case, the petitioner must further
establish prejudice: but for the unreasonable error there is a reasonable probability that the
results of the proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome. A court need not determine whether
counsel’s performance was deficient before examining prejudice suffered by the defendant as a
result of alleged deficiencies.
{¶ 10} Varholick’s first argument is that the indictment for Count 2 was jurisdictionally
defective because it did not plead the fact of his prior felony conviction for drunk driving, i.e.,
the indictment did not state by date, court, and case number his prior felony conviction.
Varholick reasons that because under R.C. 2911.19 and 2945.75 the fact of the prior conviction is a necessary element of the offense to raise the level of the crime from a misdemeanor to a
third degree felony, the failure to plead the prior conviction with factual specificity deprived the
trial court of jurisdiction to convict and sentence him for a third degree felony. Furthermore,
even a guilty plea cannot waive jurisdictional defects.
{¶ 11} However, Varholick’s argument is unpersuasive. In State v. Patterson, Medina
App. No. 09CA0014, 2009-Ohio-6953, the court of appeals addressed this issue. Patterson’s
indictment averred in pertinent part that he “unlawfully did operate a motor vehicle within this
state, while under the influence of alcohol * * * having previously been convicted of a violation
of this section which was a felony, in violation of Section 4511.19(A)(1)(a)(e) of the Ohio
Revised Code, a felony of the third degree* * * .” The indictment did not specifically state the
date, court, or case number of the previous felony conviction. The court upheld Patterson’s no
contest plea, because by pleading no contest he admitted the truth of the facts alleged in the
indictment. It reasoned that when the indictment contains sufficient allegations to state a
felony offense, and the defendant pleads no contest, the court must find the defendant guilty of
the charged offense. Thus, the court ruled that the general allegations of a prior felony
conviction for drunk driving were sufficient to state the third degree offense.
{¶ 12} Moreover, in the present case there was no doubt that Varholick had a prior felony
drunk driving conviction, and everyone agreed that he was pleading guilty to a third degree offense. To argue otherwise would be to raise form over substance, which appellate counsel in
the exercise of professional judgment could decline to do.
{¶ 13} Varholick’s second argument is that the state failed to provide sufficient proof of
this prior conviction. Generally, the state must provide a certified copy of the judgment and
evidence that the judgment applies to the defendant. R.C. 2945.75(B). Varholick, thus,
argues that because the state did not provide such evidence, the trial court did not have a proper
basis for sentencing him to a third degree felony. Varholick distinguishes this argument from
the first on the grounds of sufficient evidence, as compared to a jurisdictional defect. In State
v. Large, Stark App. No. 2006CA00359, 2007-Ohio-4685, the appellant raised the same issue,
that the state failed to prove the prior conviction because a certified copy of the conviction was
not produced. The court of appeals rejected that argument because the defendant had
stipulated to the prior conviction, and such an agreement obviated the need for proof.
Similarly, in the present case, by pleading guilty Varholick admitted to the prior conviction, his
counsel stipulated to it, and the trial judge knew it. Thus, this argument also endeavors to raise
form over substance.
{¶ 14} Varholick’s third argument appears to be that because the initial charging
instrument in Rocky River Municipal Court did not state a prior felony drunk driving
conviction, there could be no third degree offense. However, this argument is ill-founded. A
review of the Rocky River Municipal Court complaint shows that it lists all five of his prior drunk driving convictions by date, court, and case number. To the extent that his argument
actually refers to some other charging instrument, it is a variant of his first argument, which this
court has already rejected.
{¶ 15} Varholick’s final argument is that the trial court improperly terminated his right to
allocution under Crim.R. 32(A), which requires a remand for resentencing. Crim.R. 32(A)
provides in pertinent part as follows: “At the time of imposing sentence, the court shall do all of
the following: (1) Afford counsel an opportunity to speak on behalf of the defendant and address
the defendant personally and ask if he or she wishes to make a statement in his or her own
behalf or present any information in mitigation of punishment.” This court rules that the trial
judge complied with Crim.R. 32(A). Varholick’s attorney made his statement, and Varholick
also made a short statement. The right of allocution is not uncircumscribed, and the trial judge
may limit a defendant’s presentence statement. A trial judge does not have to indulge a
defendant in venting his spleen, issuing a diatribe, explaining extraneous matters, or engaging in
drivel. State v. Smith (Nov. 8, 1995), Greene App. No. 94-CA-86; State v. Copeland, Butler
App. No. CA2007-02-039, 2007-Ohio-6168; State v. Foster, Cuyahoga App. No. 93029,
2009-Ohio-6648; and State v. Budreaux (Sept. 16, 1993), Cuyahoga App. No. 63698.
Accordingly, this court denies the application to reopen.
SEAN C. GALLAGHER, JUDGE MELODY J. STEWART, P.J., and KENNETH A. ROCCO, J., CONCUR