State v. Laber, Case No. 12CA24

• Citation: 2015 Ohio 2758
• Decision Date: 26 June 2015
• Docket Number: Case No. 12CA24
• Parties: STATE OF OHIO, Plaintiff-Appellee, v. DAVID L. LABER, Defendant-Appellant.
• Court: United States Court of Appeals (Ohio)

2015 Ohio 2758

STATE OF OHIO, Plaintiff-Appellee, v. DAVID L. LABER, Defendant-Appellant.

Case No. 12CA24

COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY

June 26, 2015

DECISION AND JUDGMENT ENTRY

APPEARANCES:

COUNSEL FOR APPELLANT: Timothy Young, Ohio Public Defender, and Peter Galyardt, Ohio Assistant Public Defender, 250 East Broad Street, Ste. 1400, Columbus, Ohio 43215¹

COUNSEL FOR APPELLEE: Brigham M. Anderson, Lawrence County Prosecuting Attorney, and Mack Anderson, Lawrence County Assistant Prosecuting Attorney, Lawrence County Courthouse, One Veterans Square, Ironton, Ohio 45638

CRIMINAL APPEAL FROM COMMON PLEAS COURT

ABELE, J.

{¶ 1} This matter is before us on a re-opened appeal from a Lawrence County Common Pleas Court judgment of conviction and sentence. A jury found David L. Laber, defendant below and appellant herein, guilty of making terrorist threats in violation of R.C. 2909.23(A)(1)(a)(2). Appellant assigns the following errors for our consideration:

FIRST ASSIGNMENT OF ERROR:

"OHIO REVISED CODE SECTION 2909.03 IS UNCONSTITUTIONAL, BOTH FACIALLY AND AS APPLIED DAVID LABER."

SECOND ASSIGNMENT OF ERROR:

"DAVID LABER WAS DEPRIVED OF HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL."

THIRD ASSIGNMENT OF ERROR:

"DAVID LABER WAS DEPRIVED HIS CONSTITUTIONAL RIGHT TO THE EFFECTIVE ASSISTANCE OF APPELLATE COUNSEL."

{¶ 2} On August 1, 2012, appellant was employed by "Labored" in Ironton, Ohio.² While employed, he engaged in a conversation with Linda Lawless and asked her if she ever thought of shooting someone or bombing their place of employment. Lawless replied in the negative. Appellant continued that he thought of shooting two company co-workers and that he had three bombs and "would start at the front office." Lawless thereupon contacted her superiors, who terminated appellant's employment later that day and notified the authorities.

{¶ 3} Three weeks later, the Lawrence County Grand Jury returned an indictment that charged appellant with making a terrorist threat. At the jury trial, Lawless testified as to appellant's comments. Lawless further related that she took his threats seriously and felt like he tried to intimidate her. In addition, several other Labored employees testified concerning the company's response to appellant's remarks. Appellant offered no evidence.

{¶ 4} After hearing the evidence, the jury returned a guilty verdict. The trial court sentenced appellant to serve three years in prison. We affirmed his conviction. See State v. Laber, 4^th Dist. Lawrence No. 12CA24, 2013-Ohio-2681 (Laber I). The Ohio Supreme Court subsequently allowed an appeal from our decision. See State v. Laber, 137 Ohio St.3d 1445, 2013- Ohio-5678, 999 N.E.2d 699 (Laber I-A).

{¶ 5} On November 5, 2013, we granted an App.R. 26(B) Application to reopen appeal. Appellant argued in his application that his appellate counsel was constitutionally ineffective for failing to argue (in the first appeal of right) that trial counsel had been ineffective for failing to challenge the constitutionality of the statute under which appellant was convicted. After our review of R.C. 2909.23(A)(1)(a)(2), we agreed that appellant raised a genuine issue as to whether he received effective assistance of counsel. Thus, we allowed the reopening of this appeal. See State v. Laber, 4^th Dist. Lawrence No. 12CA24, Entry on Application for Reopening Appeal (Nov. 5, 2013) (Laber I-B).

{¶ 6} Eight months later, the Ohio Supreme Court dismissed appellant's appeal as having been improvidently allowed. State v. Laber, 140 Ohio St.3d 65, 2014-Ohio-3154, 14 N.E.3d 1039 (Laber I-C). The matter is now before us on the re-opened appeal.

I

{¶ 7} Before we begin, it is important to define what issues are before us for review. Appellant posited in his App.R. 26(B) application that, if his appeal is reopened, he would assign the following error:

"TRIAL COUNSEL WAS CONSTITUTIONALLY INEFFECTIVE FOR FAILING TO FILE A PRETRIAL MOTION TO DISMISS THE INDICTMENT AS UNCONSTITUTIONAL UNDER THE FIRST AND FOURTEENTH

AMENDMENTS." Laber IB.

Appellant's second assignment of error closely parallels this, but he also sets out two additional assignments of error that are not mentioned in his Application to Reopen. Appellant's third assignment of error asserts that he received ineffective assistance from appellate counsel. However, in allowing this appeal to be reopened, we agreed that he arguably received ineffective assistance on appeal. Thus, his third assignment of error is overruled as moot.

{¶ 8} Appellant's first assignment of error directly challenges the constitutionality of R.C. 2909.23. Indeed, the vast majority of the parties' briefs are also devoted to this particular issue. We, however, overrule that assignment of error for the following reasons. To begin, this assignment of error is not listed in the App.R. 26(B) application as one that appellant would present if his appeal is reopened. More important, the Ohio Supreme Court has stated that constitutional issues should not generally be decided for the first time on appeal. See State v. Quarterman, 140 Ohio St.3d 464, 2014-Ohio-4034, 19 N.E.3d 900, at ¶15; State v. Awan, 22 Ohio St.3d 120, 489 N.E.2d 277, at the syllabus (1986). We even noted as such, albeit with regard to a different issue, in Laber I, 2013-Ohio-2681, at ¶7. This is no mere artifice to simply avoid deciding an issue, particularly in this case. Statutes may be challenged as unconstitutional either (1) on their face, or (2) as applied to a particular person under a particular set of circumstances. In Re A.Z., 4^th Dist. Meigs No. 11CA3, 2011-Ohio-6739, at ¶15; also see Fagan v. Boggs, 4^th Dist. Washington No. 10CA17, 2011-Ohio-5884, at ¶22. These are separate and distinct challenges, the differences of which have been explained as follows:

"A facial attack on the constitutionality of a statute is to be decided by considering the statute without regard to extrinsic facts. An "as applied" attack on theconstitutionality of a statute is to be decided by considering the facts. The burden is upon the party making the attack to present clear and convincing evidence of a presently existing state of facts that makes the statute unconstitutional when applied to the state of facts." (Citations Omitted.) In re Sturm, 4^th Dist. Washington No. 05CA35, 2006-Ohio-7101, at ¶88.

{¶ 9} Although appellate courts retain some discretion to hear facial challenges on constitutional grounds when the issue was not raised at the trial level, see In re M.D., 38 Ohio St.3d 149, 151, 527 N.E.2d 286 (1988), the same is not true for "as applied" challenges. The Supreme Court has opined that those issues must be raised at the earliest possible level (for our purposes here, the trial court) so that a full evidentiary record can be developed. See Wymsylo v. Bartec, Inc., 132 Ohio St.3d 167, 2012-Ohio-2187, 970 N.E.2d 898, at ¶20; State ex rel. Kingsley v. State Emp. Relations Bd., 130 Ohio St.3d 333, 2011-Ohio-5519, 958 N.E.2d 169, at ¶18.

{¶ 10} In the case sub judice, appellant's first assignment of error raises both a facial and an "as applied" challenge to the constitutionality of R.C. 2909.23. Although a trial was held and a record made, the prosecution was not given notice that an "as applied" challenge to the statute was to be made. Had the State been given such notice, it may have couched its evidence differently, or even presented additional evidence during the trial court proceedings.

{¶ 11} For these reasons, we do not believe appellant's first assignment of error is ripe for review. According, we hereby overrule appellant's first and third assignments of error.

II

{¶ 12} This brings us to appellant's second assignment of error, which contains the sole stated purpose asserted for the reopening his appeal, and the sole reason we granted that request.Appellant argues that he received ineffective assistance from trial counsel because counsel did not challenge the constitutionality of R.C. 2909.23. We agree.

{¶ 13} It is well-settled that criminal defendants have a right to the effective assistance from counsel. McCann v. Richardson, 397 U.S. 759, 770, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); also see State v. Sinkovitz, 4^th Dist. Hocking No. 13CA12, 2014-Ohio-4492, 20 N.E.3d 1206, at ¶16. To establish constitutionally ineffective assistance of counsel, a defendant must show (1) counsel's performance was deficient, and (2) such deficient performance prejudiced the defense and deprived him of a fair trial. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); also see State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v. Goff, 82 Ohio St.3d 123, 139, 694 N.E.2d 916 (1998). However, both prongs of the Strickland test need not be analyzed if the claimed ineffective assistance can be resolved under one. See State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000). To establish the latter element, i.e. the existence of prejudice, a defendant must show "a reasonable probability" exists that, but for counsel's alleged error, the result of the trial would have been different. State v. White, 82 Ohio St.3d 16, 23, 693 N.E.2d 772 (1998); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373, at paragraph three of the syllabus (1989). A "reasonable probability" is one sufficient to undermine confidence in the outcome. State v. Meddock, 4^th Dist. Ross No. 08CA3020, 2008- Ohio-6051, at ¶13; State v. Judy, 4^th Dist. Ross No. 08CA3013, 2008-Ohio-5551, at ¶35; State v. McKnight, 4^th Dist. Vinton No. 07CA665, at ¶71.

{¶ 14} As we mention above, the issue of whether R.C. 2909.23 is unconstitutional on its face, or as applied to the appellant under the facts of this particular case, is not now properly before us. The question now before us is whether counsel was ineffective for not raising thatissue during the trial court proceedings. Without actually deciding the issue here, we can say that our concerns about the...