State v. Brewer
| Citation | 11 N.E.3d 317 |
| Decision Date | 24 April 2014 |
| Docket Number | No. 14CA1.,14CA1. |
| Parties | STATE of Ohio, Plaintiff–Appellee, v. Carl BREWER, Defendant–Appellant. |
| Court | United States Court of Appeals (Ohio) |
OPINION TEXT STARTS HERE
Michael R. Huff, Athens, Ohio, for appellant.
Colleen S. Williams, Meigs County Prosecuting Attorney, and Amanda Bizub–Franzmann, Meigs County Assistant Prosecuting Attorney, Pomeroy, Ohio, for appellee.
{¶ 1} Carl Brewer pleaded guilty to one count of burglary and appeals his sentence, which included a seven-year prison term and an order to pay restitution of $1,000 to the victim.
{¶ 2} First, Brewer argues that his trial counsel was ineffective because the attorney failed to review his presentence investigation report (“PSI”) before the sentencing hearing and failed to request a continuance of the hearing to review the report. However, counsel indicated he did not review the PSI because it was incomplete due to Brewer's failure to cooperate with the investigation. Moreover, given Brewer's admitted noncompliance with the trial court's orders, including his criminal conduct while released on bond pending sentencing, Brewer cannot establish a reasonable probability that, but for counsel's purported errors, the result of the proceeding would have been different.
{¶ 3} Next, Brewer claims that the trial court abused its discretion in sentencing him just short of the maximum prison term authorized by law. Because our standard of review in felony sentencing cases is no longer the abuse-of-discretion standard and Brewer concedes that his seven-year prison sentence is not clearly and convincingly contrary to law, this assignment of error has no merit.
{¶ 4} Brewer finally contends that the trial court erred when it sentenced him to pay restitution of $1,000 to the victim without first inquiring of his ability to pay as required by R.C. 2929.19(B)(5).1 Brewer's claim is meritless because the record included pertinent information about his financial situation and the trial court specified that it had determined that he “has the present and/or future ability to pay restitution.”
{¶ 5} Therefore, we overrule Brewer's assignments of error and affirm the judgment of the trial court.
{¶ 6} Michael Duhl, who had installed cameras inside his home, telephoned police that Brewer was burglarizing his house. The police interrupted the burglary and arrested Brewer when he attempted to run away. Brewer later confessed to breaking into Duhl's house and stealing items from it. A subsequent search of Brewer's car uncovered a tool case stolen from Duhl's house in an earlier burglary.
{¶ 7} Less than two months later, a Meigs County grand jury indicted Brewer on two counts of burglary in violation of R.C. 2911.12(A)(2), a felony of the second degree. At his arraignment hearing, Brewer stated that he was 28 years old, he had not worked in two years, he did not have assets more than $500 in his name alone, and he lived with his father. The trial court determined that Brewer was indigent and appointed attorney David Baer to represent him. Brewer noted that he had just posted $500 to be released on a $5,000 bond in a different criminal matter. The trial court set a $5,000 appearance bond, with 10% cash permitted.
{¶ 8} Shortly thereafter, the trial court held a bond hearing, and it released Brewer on his own recognizance upon his posting of $110 in fees. The court ordered Brewer to remain at his mother's residence except to travel with prior approval to church and doctor appointments. The trial court later held that Brewer need not post the $110 in fees because he had previously posted the $500 for the initial bond.
{¶ 9} About a month later, the state filed a motion to revoke Brewer's bond on the basis that he had committed another burglary while he was out on bond. The trial court revoked the bond and ordered Brewer's arrest and detention until he could appear before it. At a pretrial hearing, the state commented that Brewer had been released on his own recognizance for various crimes on five separate occasions and that he had “been in court a number of times on bond revocations,” including “a new breaking and entering,” which verified that he was not complying with the conditions of his release. The trial court emphasized to Brewer that he had to follow court orders, and it set a new bond.
{¶ 10} Brewer then entered into an agreement to plead guilty to the second count of burglary in return for the dismissal of the first count. The parties agreed that the state would recommend a prison term not to exceed four years and Brewer would argue that he be sentenced to community control. At the change of plea hearing, Brewer testified that he had completed the seventh grade and that he was not able to read and write very well. He stated, however, that he had previously been employed as a carpenter and also operated forklifts and Bobcat machines. He also stated that other than some liver problems he did not have physical or mental issues. The state noted that although Brewer's previous bond had been revoked because of a suspected burglary, because he was not indicted for that incident, the state would not oppose letting Brewer out on bond pending sentencing. A neighbor in the audience at the hearing noted that everybody in the community had had trouble with Brewer in the past.
{¶ 11} The trial court found Brewer guilty upon the parties' stipulation of fact and ordered a presentence investigation. The trial court further ordered that Brewer submit to an evaluation and assessment by TASC, Health Recovery Services, and SEPTA. The trial court released him on his own recognizance upon payment of $110 on the conditions that he stay home, he not have contact with either the victim of the crime or another neighbor who spoke at the hearing, he remain at home except when he went to church, and he remain law abiding.
{¶ 12} A couple months later, the trial court held a sentencing hearing. The state noted that Brewer had not completed the ordered evaluations and had been stopped by the State Highway Patrol for marijuana possession while out on bond pending sentencing.2 In accordance with the parties' plea agreement, the state recommended that Brewer receive a four-year prison term. The burglary victim requested restitution of $1,000 to replace a broken door, and in his victim impact statement, requested a six-month prison term. Brewer's trial counsel, attorney Baer, argued that Brewer should be placed in a community based correctional facility, rather than prison, to participate in programs addressing his underlying chemical dependency and substance abuse problems. But the attorney recognized that if Brewer had failed to make the appointments to be evaluated for these programs, “that may limit ou[r] choices.”
{¶ 13} At that point in the proceedings, the trial court asked attorney Baer if he had seen Brewer's PSI:
{¶ 14} The trial court noted that a probation officer had given Brewer a packet for the PSI that he was supposed to complete and return, but he did not. Brewer claimed that he didn't understand it. Brewer also failed to set an appointment with Health Recovery Services for a drug-dependence evaluation until the date of sentencing. Brewer claimed that he completed a TB test and answered questions at SEPTA, but he did not disagree with the court's statement that SEPTA found that he was not an acceptable candidate. Brewer agreed that his multiple misdemeanor convictions related to his use of alcohol and drugs and that he couldn't even remember that he had been pulled over by a patrolman for marijuana use while driving a car. The PSI concluded that Brewer “has a problem with following rules and the ability to stay out of trouble” and recommended that he be sentenced to the maximum prison term.
{¶ 15} At the conclusion of the hearing, the trial court decided to sentence Brewer to a prison term longer than that recommended by the state because of his failure to follow orders, including his continued violation of the law while he was out on bond:
THE COURT: Alright. I'm giving him seven years in prison. I'm going to remand him to the custody of the Meigs County Sheriff. You can apply for judicial release after 60 months. I'm not following the recommendation of the State. I don't think it's severe enough based on the fact you don't do anything anybody says, Mr. Brewer. You continue to violate the law while you're on bond. Remanded to custody.
{¶ 16} The trial court also ordered Brewer to pay court costs and the $1,000 in restitution requested by the victim. The trial court issued a sentencing entry reflecting its decision.
{¶ 17} We dismissed Brewer's initial appeal because there was no journal entry resolving the first count of burglary charged in the indictment. State v. Brewer, 4th Dist. Meigs No. 12CA9, 2013-Ohio-5118, 2013 WL 6148000. Subsequently, the trial court issued a new sentencing entry that sentenced Brewer to seven years in prison on his conviction for the second count of burglary, dismissed the first count of burglary, and ordered that Brewer pay $1,000 in restitution to the victim. This appeal from the amended sentencing entry ensued.
{¶ 18} Brewer assigns the following errors for our review:
1. The appellant was denied the effective assistance of counsel as guaranteed by the Sixth and Fourteenth Amendments to...
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