State v. Longo
| Decision Date | 27 May 1982 |
| Citation | 446 N.E.2d 1145,4 OBR 228,4 Ohio App.3d 136 |
| Parties | , 4 O.B.R. 228 The STATE of Ohio, Appellee, v. LONGO, Appellant. * |
| Court | Ohio Court of Appeals |
Syllabus by the Court
1. Effective assistance of counsel does not guarantee results. Consequences of advice are not the only measure of effectiveness.
2. A trial court has broad discretion in sentencing within the statutory limits. But when it appears from the record that the judge's discretion in imposing sentence has been determined by conclusions from his own investigation of a crime neither charged nor proven, the court has abused its discretion.
3. Abuse of discretion implies an unreasonable, arbitrary or unconscionable attitude on the part of the court. Such concept of abuse applies to a court's determination of a motion to change a plea. State v. Amison, 2 Ohio App.2d 390, 393 .
John T. Corrigan, Pros. Atty., for appellee.
Harvey H. Starkoff, Cleveland, for appellant.
This case is an appeal by defendant-appellant, Carl J. Longo (defendant), from his conviction and sentence on a charge of carrying a concealed weapon (CCW) in violation of R.C. 2923.12. Defendant, a first offender, pleaded no contest, was found guilty and was sentenced to one to ten years.
For the reasons adduced below, the judgment is reversed.
Defendant was arrested shortly after midnight on May 2, 1980, on Mayfield Road near SOM Center Road in Mayfield Heights. He (and another person who escaped and was not identified) were suspected of tampering with a truck parked in an apartment complex parking lot. When arrested defendant was found to be carrying a loaded .32 caliber revolver.
He was charged in Lyndhurst Municipal Court with a violation of Mayfield Heights Codified Ordinance (M.H.C.O.) 545.05. 1 He pled no contest to the charge on June 12, 1980. He was fined $100. It was the understanding of his defense counsel and the assistant Cuyahoga County prosecutor that defendant was to be bound over to the county grand jury only on the CCW charge. Nevertheless, the grand jury indicted defendant on three counts: CCW; aggravated robbery, R.C. 2911.01; and possession of criminal tools, R.C. 2923.24. The aggravated robbery charge was nolled and the criminal tools charge apparently dismissed. Defendant intended to plead no contest to the CCW charge. The prosecutor told the trial court that the two additional indictments resulted because the grand jury was not aware of the Lyndhurst plea and emphasized that "[t]he only charge that was bound over to the grand jury was CCW."
Among the reasons assigned for dropping the aggravated robbery charge was double jeopardy. The trial court appeared not to be convinced that this constitutional ground was implicated.
Defendant was allowed to plead no contest to the CCW charge and was found guilty. But the court continued to dwell on auto theft and the fact that defendant, at age thirty-four or thirty-five, was "a little beyond the normal age of auto theft." Based on a telephone call the court made to the vehicle owner, it said "the evidence is substantial to draw the inference that this was a part of the attempted theft of the auto * * * "; and, "I see this is a 35-year-old-man who is engaged in a car theft"; and, "I draw the conclusion that this guy is involved in this on a serious basis"; and, "I have never seen a guy this age, under these circumstances, which cannot be explained to me in any other way; that he was out really looking for trouble." The court also observed that "auto theft is an organized business" and that defendant "sells used auto parts."
Although CCW was the only charge before the court, it stated:
On the record, defendant was found guilty only of petty theft in violation of M.H.C.O. 545.05 2 in Lyndhurst Municipal Court, a first-degree misdemeanor, and in common pleas court of carrying a concealed weapon, a third-degree felony. 3
Defendant, according to testimony, 4 had no previous juvenile or criminal record. Nevertheless the trial court sentenced him to one to ten years, a heavy sentence for the offense, but within the statutory limits. 5
In accepting the plea the court conformed to the requirements of Crim.R. 11(C)(2) in advising the defendant.
In imposing sentence the court also said that it had called the people whose truck was alleged to be involved and "talked to a lady who said she was his [owner's] wife." The court then stated the woman told him what she and her husband saw 6 and concluded, "that's the testimony from both of these people * * * the testimony that both of these people would have presented. * * * " Needless to say neither the owner nor his wife was sworn, took the stand nor was subject to cross-examination by defense counsel. Moreover, what the wife said her husband saw was hearsay not within any redeeming exception.
After pronouncing sentence the court did say it would "consider shock probation" and urged counsel to file such a motion. Instead, defendant moved to stay execution of the sentence and to withdraw his no contest plea.
A hearing on defendant's motion was held March 3, 1981. The gist of the evidence presented was that trial counsel, whose "principal practice has been criminal defense work" for fifteen to eighteen years, felt that based on his twenty-nine years of experience as a lawyer and the "thousands" of plea-bargained criminal cases he had handled, defendant "would get probation or that he might have to do a few days." He added, "I have never seen a [first offender] CCW sent to the penitentiary and I told [defendant] that he could not and should not expect any penitentiary [sic ], although yet telling him that the Code calls for one to ten."
Defense counsel also stated what defendant's defense to the CCW charge would have been had he been tried. Defendant testified that he would have gone to trial had he known he was not getting probation. 7
The trial court denied defendant's motion to withdraw his plea. 8
Defendant appealed, assigning three errors:
Defendant's second assignment of error will be considered first. It argues ineffective assistance of counsel essentially because his attorney gave him what was later perceived to be bad advice combined with an unauthorized promise of probation.
In McMann v. Richardson (1970), 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763, it was said:
"[I]f the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel, and that judges should strive to maintain proper standards of performance by attorneys who are representing defendants in criminal cases in their courts."
The McMann court also said that a court would not retrospectively consider counsel's advice to be right or wrong but:
"[W]hether that advice was within the range of competence demanded of attorneys in criminal cases." Id.
A "two-step process" has been adopted by the Ohio Supreme Court for determining ineffective assistance of counsel in State v. Lytle (1976), 48 Ohio St.2d 391, 396-397, 358 N.E.2d 623 :
In this case it is not necessary to go beyond the first step. Defense counsel's bona fides were clearly established and the record shows that he violated no duty to his client. Indeed, it was observed that counsel "took special care with this case" because of a long-standing relationship with defendant's family.
Counsel's error was to predict a sentencing result based on an educated judgment--a judgment that did not pan out.
Effective assistance of counsel does not guarantee results and consequences of advice are not the only measure. For in State v. Clayton (1980), 62 Ohio St.2d 45, 49, 402 N.E.2d 1189 , certiorari denied 449 U.S. 879, 101 S.Ct. 227, 66 L.Ed.2d 102, the court held:
"Counsel chose a strategy that proved ineffective, but the fact that there was another and better strategy available does not amount to a breach of an essential duty to his client."
Although counsel's anticipation of probation, in retrospect, was mistaken, this did not render the assistance ineffective.
Defendant's second assignment of error is not well taken.
Defendant's first assignment of error contends that the trial court erred in refusing to allow him to withdraw...
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