State v. Hale, Case No. 14-CA-00014

Decision Date07 November 2014
Docket NumberCase No. 14-CA-00014
Citation2014 Ohio 5028
PartiesSTATE OF OHIO Plaintiff-Appellee v. SHAWN M. HALE Defendant-Appellant
CourtOhio Court of Appeals

JUDGES: Hon. W. Scott Gwin, P.J. Hon. Sheila G. Farmer, J. Hon. John W. Wise, J.

OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Perry County Court of Common Pleas, Case No. 13-CR-0049

JUDGMENT: Affirmed

APPEARANCES:

For Plaintiff-Appellee

JOSEPH A. FLAUTT

Perry Prosecuting Attorney

111 N. High Street

New Lexington, OH 43764

For Defendant-Appellant

TERRY RUGG

Barr, Jones & Associates, LLP

150 E. Mound Street, Ste. 200

Columbus, OH 43215

Gwin, P.J.

{¶1} Appellant Shawn M. Hale ["Hale"] appeals his conviction and sentence after a negotiated guilty plea in the Perry County Court of Common Pleas for one count of engaging in a Pattern of Corrupt Activity a felony of the first degree in violation of R.C. Section 2923.32.

Facts and Procedural History

{¶2} Hale was indicted on three counts of Aggravated Trafficking in Drugs felonies of the first degree in violation of R.C. 2925.03(A)(1) and R.C. 2925.03 (C)(1); one count of Aggravated Trafficking a felony of the second degree in violation of R.C. 2925.03(A)(1) and R.C. 2925.03(C)(1)(c); one count Aggravated Trafficking in Drugs a felony of the third degree in violation of R.C. 2925.03(A)(1) and R.C. 2925.03(C)(2)(e); and one count of Engaging in a Pattern of Corrupt Activity a felony of the first degree in violation of R.C. Section 2923.32.

{¶3} On November 6, 2013, Hale's attorney requested a continuance of the Status Conference/Plea scheduled for November 19, 2013 in order to review discovery. The trial court granted the continence by Judgment Entry filed November 7, 2013, rescheduling the matter to December 19, 2013.

{¶4} On December 19, 2013, Hale requested a continuance of the Status Conference/Plea upon the grounds that he had just viewed discovery and counsel needed additional time to discuss the plea offer with Hale.

{¶5} On December 23, 2013, Hale requested an identical continuance of the December 19, 2013 Status Conference /Plea upon the grounds that he had just viewed discovery and counsel needed additional time to discuss the plea offer with Hale.

{¶6} On January 6, 2013, the trial court granted Hale's requests for a continuance and rescheduled the Status Conference/Plea for January 17, 2014.

{¶7} By entry filed January 17, 2014, the trial court rescheduled the Status Conference/Plea to January 21, 2014.

{¶8} On January 21, 2014, Hale pled guilty to one count of Engaging in a Pattern of Corrupt Activity. The state dismissed the remaining charges. The court ordered a pre-sentence investigation report and deferred sentencing until February 25, 2014.

{¶9} On February 3, 2014, Hale requested a continuance because his attorney was scheduled to be out of town on vacation on February 25, 2014. The trial court granted the continuance by entry filed February 11, 2014 and rescheduled the sentencing hearing for February 20, 2014.

{¶10} On February 20, 2014, the trial court conducted a sentencing hearing. By this date, the pre-sentence investigation had been completed, filed and examined by the court. The trial court judge imposed a definite prison term of five years in a state penal institution. The judgment entry filed February 21, 2014 found that there were zero days of jail credit and advised Hale that post release control for a period of five years is mandatory in his case. The trial court's judgment entry further informed Hale of the consequences for violating the conditions of post release control, including but not limited to re-imprisonment for up to one half of the originally stated prison term.

Assignments of Error

{¶11} Hale raises four assignments of error,

{¶12} "I. DEFENDANT/APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL WHEN HE WAS NOT AFFORDED THE OPPORTUNITY TO REVIEW THE PRE-SENTENCE INVESTIGATION THAT WAS ORDERED BY THE COURT PRIOR TO HIS SENTENCE, WHICH PREVENTED HIM FROM INFORMING HIS COUNSEL AND THE COURT THAT THE PRE-SENTENCE INVESTIGATION CONTAINED INCORRECT INFORMATION ABOUT APPELLANT.

{¶13} "II. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE COURT APPOINTED COUNSEL TOLD APPELLANT THAT HIS CASE HAD TO BE COMPLETED WITHIN SIX (6) MONTHS AND THAT A JURY TRIAL WOULD NOT BE COMPLETED WITHIN THAT SIX (6) MONTH WINDOW OF TIME AND A PLEA WAS THE ONLY POSSIBLE OUTCOME.

{¶14} "III. APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE APPELLANT'S TRIAL COUNSEL DID NOT MAKE CLEAR TO APPELLANT THAT WHEN, PRIOR TO HIS PLEA OF GUILTY, THE COURT ASKED APPELLANT IF HE WAS UNDER THE INFLUENCE OF DRUGS OR ALCOHOL THAT WOULD IMPAIR HIS ABILITY TO MAKE PROPER DECISIONS, THAT PRESCRIBED MEDICATIONS WERE TO BE INCLUDED IN THAT CONSIDERATION.

{¶15} "IV. THE TRIAL COURT JUDGE ABUSED HER DISCRETION WHEN IMPOSING SENTENCE UPON THE APPELLANT AND THE CASE SHOULD BE REMANDED TO THE TRIAL COURT FOR A NEW SENTENCING HEARING."

I, II, III

{¶16} Appellant's first, second and third assignments of error raise common and interrelated issues; therefore, we will address the arguments together.

{¶17} In his first assignment of error, Hale argues he was not given an opportunity to review the pre-sentence investigation report; in his second assignment of error, Hale contends his attorney gave inaccurate advice; and in his third assignment of error Hale argues that his attorney did not advise him he could speak prior to the imposition of sentence.

{¶18} In support of his arguments, Hale refers to numerous statements and circumstances that are not part of the record in this case. Hale's arguments center exclusively upon matters not contained in the trial court record. In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d 528(2001), the Supreme Court noted, "a reviewing court cannot add matter to the record before it that was not a part of the trial court's proceedings, and then decide the appeal on the basis of the new matter. See, State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500(1978)." It is also a longstanding rule "that the record cannot be enlarged by factual assertions in the brief." Dissolution of Doty v. Doty, 4th Dist. Pickaway No. 411, 1980 WL 350992 (Feb. 28, 1980), citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201 N.E.2d 227(10th Dist. 1963). New material and factual assertions contained in any brief in this court may not be considered. See, North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858 N.E.2d 386, ¶7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843 N.E.2d 1202, ¶16.

{¶19} Hale's new material may not be considered. Thus we cannot review Hale's first, second and third assignments of error in this appeal1.

{¶20} Having reviewed the record that Hale cites in support of his claims that he was denied effective assistance of counsel, we find Hale was not prejudiced by defense counsel's representation of him. The result of the proceedings were not unreliable nor were the proceedings fundamentally unfair because of the performance of defense counsel. Harrington v. Richter, 562 U.S. 86, 131 S.Ct. 770, 777-778, 178 L.Ed.2d 624(2011).

{¶21} Hale's first, second and third assignments of error are overruled.

IV.

{¶22} In his fourth assignment of error, Hale maintains that the imposed sentence was an abuse of discretion.

{¶23} At the outset, we note there is no constitutional right to an appellate review of a criminal sentence. Moffitt v. Ross, 417 U.S. 600, 610-11, 94 S.Ct. 2437, 2444, 41 L.Ed.2d 341(1974); McKane v. Durston, 152 U.S. 684, 687, 14 S.Ct. 913. 917(1894); State v. Smith, 80 Ohio St.3d 89, 1997-Ohio-355, 684 N.E.2d 668(1997); State v. Firouzmandi, 5th Dist No. 2006-CA-41, 2006-Ohio-5823, 2006 WL 3185175. An individual has no substantive right to a particular sentence within the range authorized by statute. Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 1204-1205, 51 L.Ed.2d 393 (1977); State v. Goggans, Fifth District Delaware No. 2006-CA-07-0051, 2007-Ohio-1433, ¶ 28. In other words "[t]he sentence being within the limits set by the statute, its severity would not be grounds for relief here even on direct review of the conviction ... It is not the duration or severity of this sentence that renders it constitutionally invalid...." Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690(1948).

{¶24} R.C. 2953.08 governs an appeal of sentence for felony. Subsection (G)(2) states as follows:

The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court's standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:

(a) That the record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division (E)(4) of section 2929.14, or division (H) of section 2929.20 of the Revised Code, whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law.

{¶25} Clear and convincing evidence is that evidence "which will provide 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, 120 N.E.2d 118(1954), paragraph three of the syllabus. The Eighth District stated in State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891,

It is important to understand that the "clear and convincing" standard applied in R.C. 2953.08(G)(2) is not discretionary. In fact, R.C. 2953.08(G)(2) makes it clear that "(t)he appellate court's standard for review is not whether the sentencing court abused its discretion." As apractical consideration, this means that appellate courts are prohibited from substituting their judgment for that of the trial judge.

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