State v. Williams , 2014 Ohio 3415 ( 2014 )

[Cite as State v. Williams, 2014-Ohio-3415.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100459
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
LASHAWN WILLIAMS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-11-555711
BEFORE: Rocco, P.J., Keough, J., and Kilbane, J.
RELEASED AND JOURNALIZED: August 7, 2014
-i-
ATTORNEY FOR APPELLANT
Christopher J. Jankowski
John Brooks Cameron & Associates
247 East Smith Rod
Medina, Ohio 44256
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Brett Kyker
Assistant Prosecuting Attorney
Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, P.J.:
{¶1} Defendant-appellant Lashawn Williams appeals from his conviction and
sentences for pandering sexual material involving a minor and for possession of
criminal tools. Williams argues that his sentences are contrary to law and that his
guilty plea was not made knowingly, voluntarily, and intelligently due to ineffective
assistance of counsel. Finding no merit to any of these arguments, we affirm the
trial court’s final judgment.
{¶2} On November 3, 2011, Williams was indicted on twenty counts of
pandering sexually oriented material involving a minor, three counts of illegal use
of a minor in nudity-oriented material or performance, and one count of possessing
criminal tools. All of the counts included forfeiture specifications. The charges
stemmed from allegations that Williams had downloaded and shared computer files
containing child pornography.
{¶3} In a hearing held on July 15, 2013, Williams retracted his former plea of
not guilty and entered a plea of guilty to five counts of pandering sexually oriented
material involving a minor (second-degree felonies) with forfeiture specifications
(R.C. 2907.322(A)(1), (2); R.C. 2941.1417); and to one count of possessing
criminal tools (fifth-degree felony) with a forfeiture specification (R.C. 2923.24;
R.C. 2941.1417). The remaining counts were nolled.
{¶4} The trial court accepted Williams’s plea. In preparation for
sentencing, Williams was referred for a court psychiatric examination and
sentencing memoranda were filed. On August 30, 2013, Williams appeared for
sentencing. The trial court imposed a prison sentence of seven years on each
count of pandering sexually oriented materials, and twelve months for possession of
criminal tools. All sentences were ordered to run concurrently. Williams was
found to be a Tier II sex offender and he was ordered to forfeit his scandisk and his
computer. The trial court also ordered postrelease control for five years.
{¶5} Williams now appeals, setting forth three assignments of error for our
review:
I. Williams’s sentence for pandering sexually oriented matter
involving a minor and for possessing criminal tools does not comply
with the underlying purposes of sentencing, is contrary to law, and is
unsupported by the record.
II. Williams did not knowingly, voluntarily, and intelligently enter a
guilty plea because trial counsel could not properly advise Williams as
she failed to personally review sensitive evidence and she admitted she
did not understand computers.
III. Williams did not knowingly, voluntarily, and intelligently enter a
guilty plea because Williams was denied effective assistance of
counsel.
{¶6} Williams’s first assignment of error asserts that the trial court’s
sentences were contrary to law and were unsupported by the record. We review
Williams’s sentence under the standard set forth in R.C. 2953.08(G)(2), which
provides in pertinent part:
The court hearing an appeal under division (A), (B), or (C) of this
section shall review the record, including the findings underlying the
sentence or modification given by the sentencing court.
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 (B)(2)(e) or
(C)(4) of section 2929.14, or division (I) of section 2929.20 of the
Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
{¶7} A sentence is not contrary to law where the trial court (1) considered the
purposes and principles of sentencing under R.C. 2929.11; (2) considered the
seriousness and recidivism factors set forth in R.C. 2929.12; (3) properly applied
postrelease control; and (4) sentenced the defendant within the permissible statutory
range. State v. Watson, 8th Dist. Cuyahoga No. 100673, 2014-Ohio-2191, ¶ 6.
As this court has repeatedly explained, “‘[t]he decision as [to] how long a sentence
should be — assuming it falls within a defined statutory range — is a pure exercise
of discretion.’” Id. at ¶ 7, quoting State v. Akins, 8th Dist. Cuyahoga No. 99478,
2013-Ohio-5023, ¶ 16. Unless a defendant claims that the trial court “failed to
fulfill a statutorily-mandated obligation before imposing sentence, a sentence
falling within the statutory range is unreviewable.” Id., citing Akins at ¶ 16.
{¶8} Williams argues that his sentence is harsher than necessary given the
number of files he downloaded and the time frame in which he downloaded the
files. In support of this argument, he points to the mitigating evidence that he
presented in the trial court. While Williams argues that the trial court was overly
focused on the severity of his crimes, he does not assert that the trial court failed to
consider his mitigating evidence. And the record confirms that the trial court did,
in fact, consider Williams’s mitigating evidence.
{¶9} We conclude that Williams’ sentence is not contrary to law and that the
sentence is supported by the record. Williams’s concurrent sentences are all
within the statutory range. See R.C. 2929.14. The trial court indicated that it had
considered the principles and purposes of sentencing as set forth in R.C. 2929.11, as
well as the seriousness and recidivism factors as set forth in R.C. 2929.12. There
is no indication that the trial court erred in its application of postrelease control.
For these reasons, we overrule the first assignment of error.
{¶10} We consider Williams’s second and third assignments of error together
as both involve the same analysis. Williams argues that, due to his defense
counsel’s deficient performance, his guilty plea was not made knowingly,
voluntarily, and intelligently. We disagree.
{¶11} A defendant who pleads guilty waives all appealable issues,
including the right to assert an ineffective assistance of counsel claim, except the
defendant may claim ineffective assistance of counsel on the basis that the counsel’s
deficient performance caused the plea to be less than knowing, intelligent, and
voluntary. State v. Spates, 64 Ohio St.3d 269, 272, 595 N.E.2d 351 (1992), citing
Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973).
In such cases, a defendant can prevail only by demonstrating that there is a
reasonable probability that, but for counsel’s deficient performance, he would not
have pleaded guilty and would have insisted on going to trial. State v. Xie, 62
Ohio St.3d 521, 524, 584 N.E.2d 715 (1992); Hill v. Lockhart, 474 U.S. 52, 106
S.Ct. 366, 88 L.Ed.2d 203 (1985).
{¶12} Williams cannot demonstrate that his counsel was deficient.
According to Williams, his counsel was deficient because she did not know enough
about computers and because she did not personally look at the sexual images
contained in the files found on Williams’s computer. First, “the fact that defense
counsel may not have been an expert in computers and/or peer-to-peer file-sharing
programs does not necessarily mean [s]he rendered ineffective assistance of
counsel.” State v. Cola, 8th Dist. Cuyahoga No. 99336, 2013-Ohio-3252, ¶ 13
(rejecting similar argument). In this case, Williams’s counsel retained the services
of a computer forensic examiner who conducted an independent examination of
Williams’s computer and assisted defense counsel in understanding the resulting
data. On this record, we fail to see how defense counsel performed deficiently.
{¶13} Second, we conclude that defense counsel did not render deficient
performance on the basis that she did not personally view the images found on
Williams’s computer. Again, we rely on the fact that counsel obtained the services
of a computer forensic examiner who viewed the files on behalf of defense counsel.
Importantly, Williams fails to establish why it was imperative for defense counsel
to personally view the files. Williams does not assert that there was any question
as to whether the individuals portrayed in the pornographic images were minors
who were engaged in sexual acts with adult men.
{¶14} Because Williams cannot demonstrate that his counsel’s performance
was deficient, he cannot prevail on his claim that his guilty plea was not made
knowingly, voluntarily, and intelligently. Accordingly, we overrule the second
and third assignments of error.
{¶15} The trial court’s judgment is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this
judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
__________________________________________
KENNETH A. ROCCO, PRESIDING JUDGE
KATHLEEN ANN KEOUGH, J., and
MARY EILEEN KILBANE, J., CONCUR