State v. Smith , 2018 Ohio 2271 ( 2018 )

[Cite as State v. Smith, 2018-Ohio-2271.]
IN THE COURT OF APPEALS OF OHIO
TENTH APPELLATE DISTRICT
State of Ohio, :
Plaintiff-Appellee, :
No. 17AP-636
v. : (C.P.C. No. 17CR-157)
Joshua F. Smith, : (REGULAR CALENDAR)
Defendant-Appellant. :
D E C I S I O N
Rendered on June 12, 2018
On brief: Ron O'Brien, Prosecuting Attorney, and Sheryl L.
Prichard, for appellee. Argued: Sheryl L. Prichard.
On brief: The Law Office of Brian Jones, LLC, Brian G.
Jones and Elizabeth E. Osorio, for appellant.
Argued: Elizabeth E. Osorio.
APPEAL from the Franklin County Court of Common Pleas
SADLER, J.
{¶ 1} Defendant-appellant, Joshua F. Smith, appeals from a judgment of
conviction and sentence entered by the Franklin County Court of Common Pleas pursuant
to a guilty plea entered by appellant.
{¶ 2} The charges against appellant arise out of his participation in drug trafficking.
The most expansive scheme involved obtaining unwarranted prescriptions for oxycodone
painkillers from a corrupt physician in Florida, filling the prescriptions in Michigan and
elsewhere, and reselling the pills in central Ohio. Several persons participated in this
scheme as couriers and distributors under appellant's direction, receiving travel expenses
and instructions from him.
No. 17AP-636 2
{¶ 3} Two indictments resulted. In the first, Franklin C.P. No. 17CR-000157, a 39-
count indictment issued on January 9, 2017 charged appellant and several other co-
offenders with crimes arising from the oxycodone operation. The counts pertaining to
appellant consisted of one count of engaging in a pattern of corrupt activity in violation of
R.C. 2923.32, a felony of the first degree; one count of aggravated funding of drug
trafficking in violation of R.C. 2925.05, a felony of the first degree; and 27 counts of
aggravated trafficking in drugs in violation of R.C. 2925.03, felonies of the second degree.
Appellant pleaded not guilty to these charges on January 11, 2017 and posted bond the same
day.
{¶ 4} The second indictment, Franklin C.P. No. 17CR-001817, issued on March 31,
2017, added three counts of aggravated trafficking involving bulk amounts of
methamphetamine. Appellant pleaded not guilty to these charges on April 5, 2017.
{¶ 5} In addition, continued investigation produced evidence of additional
trafficking in methamphetamine by appellant, but these incidents did not result in further
indictment. The resulting arrest on February 13, 2017 coincided with a bond revocation in
case No. 17CR-000157.
{¶ 6} After plea negotiations, the parties agreed appellant would plead guilty to
engaging in a pattern of corrupt activity and aggravated funding of drug trafficking counts
of the first indictment and 13 of the first indictment's counts for aggravated trafficking in
drugs. Appellant would further plead guilty to one of the three aggravated trafficking
counts from the second indictment. The state agreed to dismiss all other charges in the two
indictments and would not seek indictment of charges arising from the later
methamphetamine buys. The parties and judge agreed the statutory minimum total
sentence for the convictions was 11 years and the maximum 126 years. The parties agreed
they would submit no joint or separate recommendations of sentence.
{¶ 7} At the plea hearing, the trial judge noted he had previously indicated to
appellant's trial counsel that appellant's bond would be lowered in connection with the plea.
The judge expressed he was doing so reluctantly in light of the prior bond revocation and
"[o]ver objection of the prosecution." (Plea Tr. at 19.) The judge nonetheless reinstated
appellant's bond in one case and lowered it in the other, in order to allow appellant an
No. 17AP-636 3
opportunity to put his affairs in order before sentencing. The judge also ordered a pre-
sentence investigation ("PSI").
{¶ 8} The day following the plea hearing, the prosecution returned with a motion
seeking to immediately revoke the newly lowered bond on the basis of conduct by appellant
that predated the plea hearing. The principal complaint was appellant's continued contact
with co-offenders in blatant violation of a no-contact order. Nine days later, the trial court
revoked appellant's bond. In connection with the revocation, the prosecution provided
supplemental discovery consisting of an audio recording of jailhouse phone calls made by
appellant.
{¶ 9} On August 3, 2017, appellant appeared for sentencing. The state went over
the unfavorable PSI report and recounted the content of numerous recorded telephone
conversations. Appellant spoke on his own behalf and presented testimony from his father
and grandmother. The state again declined to recommend a specific sentence; counsel for
appellant argued that the minimum of 11 years appropriately served deterrent and punitive
purposes.
{¶ 10} The court imposed a term of 11 years on the charge of engaging in a pattern
of corrupt activity, 8 years on the charge of aggravated funding of drug trafficking, and 2
years each on the 13 aggravated trafficking counts. The first two terms were to be served
consecutively and the others concurrently with each other and the first two counts. This
resulted in a total sentence of 19 years in case No. 17CR-000157. Under case No. 17CR-
001817, the court sentenced appellant to a term of three years imprisonment on the sole
remaining count, to be served consecutively with the sentence imposed in the first
indictment. Appellant thus received a total prison term under both case numbers of 22
years imprisonment.
{¶ 11} Appellant has timely appealed and brings the following three assignments of
error:
[1.] The trial court erred in accepting defendant-appellant
Smith's guilty plea as knowingly, voluntarily, and intelligently
entered where the prosecution mislead the defendant and
counsel regarding the bargain. Boykin v. Alabama, 395 U.S.
238, 242, 89 S.Ct. 1709 (1969); Crim.R. 11.
No. 17AP-636 4
[2.] Trial counsel offered ineffective assistance of counsel by
failing to review the discovery disc of jail calls disclosed after
change of plea but before sentencing, resulting in prejudice to
the defendant-appellant.
[3.] Trial counsel offered ineffective assistance of counsel by
failing to submit testimony or evidence correcting the "worst
PSI ever seen" during the sentencing hearing, resulting in
prejudice to the defendant-appellant.
{¶ 12} Appellant's first assignment of error asserts that his change of plea to guilty
was based on an inducement in the form of lowered bond and that the state's action in
immediately seeking a bond revocation deprived appellant of the inducement that had led
him to accept the plea agreement. As a result, he claims his plea was not knowing and
voluntary because he could not be aware the state would promptly act to deprive him of the
lowered bond.
{¶ 13} " 'When a defendant enters a plea in a criminal case, the plea must be made
knowingly, intelligently, and voluntarily. Failure on any of those points renders
enforcement of the plea unconstitutional under both the United States Constitution and the
Ohio Constitution.' " State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶ 7, quoting
State v. Engle, 74 Ohio St.3d 525, 527 (1996). To be voluntary, a guilty plea must be the
expression of the defendant's own free will and must not be induced by threats,
misrepresentations, or improper promises. Brady v. United States, 397 U.S. 742, 755
(1970).
{¶ 14} A defendant who challenges his or her guilty plea on the basis that it was not
knowingly, intelligently, and voluntarily made must demonstrate prejudice in order to
invalidate the plea. Veney at ¶ 15; State v. Young, 10th Dist. No. 10AP-292, 2010-Ohio-
5873, ¶ 9. "The test for prejudice is 'whether the plea would have otherwise been made.' "
State v. Williams, 10th Dist. No. 10AP-1135, 2011-Ohio-6231, ¶ 36, quoting State v. Nero,
56 Ohio St.3d 106, 108 (1990). "A determination of whether a plea was knowingly,
intelligently, and voluntarily entered is based upon a review of the record." Young at ¶ 6,
citing State v. Vinson, 10th Dist. No. 08AP-903, 2009-Ohio-3240, ¶ 7, citing State v.
Spates, 64 Ohio St.3d 269, 272 (1992).
No. 17AP-636 5
{¶ 15} Appellant relies on the case of State v. Bowen, 52 Ohio St.2d 27 (1977), in
which a prosecutor agreed to recommend a concurrent prison term despite the fact that
circumstances of the defendant's crime made consecutive terms mandatory. The Supreme
Court of Ohio held the prosecution's recommendation formed an improper inducement to
plead:
Appellee's guilty plea and the inherent waiver of his
fundamental constitutional rights were induced, in part, by
appellant's promise to recommend to the court a statutorily
proscribed act. Appellee's plea can be viewed neither as
voluntary where induced by a promise, the very essence of
which is nonperformable, nor as knowing where the fact of
illegality was insufficiently delineated and, therefore, is void.
Bowen at 29, citing Machibroda v. United States, 368 U.S. 487, 493 (1962).
{¶ 16} Appellant asserts his case requires reversal under Bowen because the
prosecutor "stood silent" during his plea hearing regarding the change of bond and then
filed a motion to revoke the newly reinstated bond. (Appellant's Brief at 14.) Appellant
argues the state thus allowed an inducement to be presented by the court and did so with
the implied intent of negating that inducement at the earliest opportunity with facts already
known to the prosecution and occurring prior to the plea hearing. Appellant argues that
under Bowen, the effect of this illusory inducement on the will of the defendant makes his
plea bargain neither knowing nor voluntary.
{¶ 17} In response, the state points out the trial court specifically noted the state's
objection to reduced and renewed bonds, although this objection seems to have been
communicated prior to the plea hearing. The characterization of the prosecutor as silently
acquiescing to the bond is, therefore, not accurate. As such, Bowen is fundamentally
distinguishable from the case before us: in Bowen, clearly one important consideration was
the prosecutor's promise to recommend concurrent prison terms that, by law, could not be
imposed. It was, therefore, the prosecutor's express and negotiated recommendation that
induced the guilty plea in Bowen. Here, the prosecutor extended no such promise to induce
the plea.
{¶ 18} Although appellant's first assignment of error expressly states the alleged
improper inducement of lowered bond was introduced by the prosecution, he appears to
No. 17AP-636 6
further argue that the court itself extended the inducement. That is not the assignment of
error stated on appeal. Pursuant to App.R. 12(A)(1)(b), appellate courts "determine [an]
appeal on its merits on the assignments of error set forth in the briefs under App.R. 16."
Thus, this court rules on assignments of error only and will not address mere arguments.
State v. Armor, 10th Dist. No. 16AP-532, 2017-Ohio-396, ¶ 26; Ellinger v. Ho, 10th Dist.
No. 08AP-1079, 2010-Ohio-553, ¶ 70; In re Estate of Taris, 10th Dist. No. 04AP-1264,
2005-Ohio-1516, ¶ 5.
{¶ 19} Although here we have no developed record pertaining to the second
revocation of bond, the court noted at sentencing that appellant had been strictly advised
to have no further contact with co-offenders in his case and violated that order. The timing
of the court's learning of those violations is not explicitly stated by the court in the record
at sentencing, but the court presumably became aware of these violations through the
state's motion to revoke bond and the subsequent submission of jailhouse phone
transcripts. Although appellant may have justifiably believed he could benefit from the
lowered bond, as he indeed did for nine days, appellant does not and probably could not
argue on appeal that the revocation was improper in itself. Nor can he argue the plea
agreement required the state to turn a blind eye to his violation of the restrictions placed
on conditions of release.
{¶ 20} Appellant's first assignment of error is accordingly overruled because, in the
absence of any improper inducement, nothing in the record indicates appellant's plea was
less than knowing and voluntary.
{¶ 21} Appellant's second assignment of error asserts he received ineffective
assistance of trial counsel because his counsel appeared at the sentencing hearing without
having reviewed the recorded jailhouse telephone calls that were disclosed by the
prosecution in discovery after the plea hearing.
{¶ 22} In order to establish a claim of ineffective assistance of counsel in violation of
the rights granted under the Sixth and Fourteenth Amendments to the United States
Constitution, a defendant must first demonstrate his trial counsel's performance was so
deficient that it was unreasonable under prevailing professional norms. Strickland v.
Washington, 466 U.S. 668, 687-88 (1984). The defendant must then establish "there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the
No. 17AP-636 7
proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome." Id. at 694.
{¶ 23} "A fair assessment of attorney performance requires that every effort be made
to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's
challenged conduct, and to evaluate the conduct from counsel's perspective at the time.
Because of the difficulties inherent in making the evaluation, a court must indulge a strong
presumption that counsel's conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption that, under the
circumstances, the challenged action 'might be considered sound trial strategy.' " Id. at
689, quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955). A verdict adverse to a criminal
defendant is not of itself indicative that he received ineffective assistance of trial counsel.
State v. Hester, 45 Ohio St.2d 71, 75 (1976).
{¶ 24} At the sentencing hearing, prosecution verbally described and emphasized
many aspects of these recorded telephone conversations. The prosecution summarized the
contents of these conversations as indicating that appellant had a propensity for violence,
that he had fabricated a fable involving health issues for his daughter in order to gain
sympathy, that appellant's purported business buying and rehabilitating houses actually
involved using properties as grow houses for marijuana, and that appellant had tampered
with and threatened witnesses.
{¶ 25} In addressing the prosecution's summary for these jailhouse conversations,
appellant's trial counsel stated only that he was impressed by the prosecutor's exceptional
and possibly personally vindictive devotion to the case given the amount and duration of
phone calls described at the hearing. Counsel then stated "I didn't come here and listen to
200 hours of phone calls to determine what's relevant and what's going to be relevant to
what I can respond to or whether we can put each one of these phone calls in context."
(Sentencing Tr. at 16.)
{¶ 26} Appellant now argues on appeal trial counsel was ineffective because the
failure to review the phone transcripts deprived appellant of the opportunity to counter the
prosecution's allegations based on those conversations. Instead of countering with the
specific content of those jailhouse conversations, appellant's trial counsel prepared a
sentencing memorandum, reviewed the PSI, and presented two family members to speak
No. 17AP-636 8
on appellant's behalf at sentencing. Then, appellant's trial counsel deferred to appellant,
who personally addressed the court and explained the content of the jailhouse calls and
mitigated their impact.
{¶ 27} Trial counsel's decision not to review the lengthy jailhouse phone call
transcripts is not, on its face, ineffective when trial counsel relied on other means to present
mitigation and when appellant himself had the opportunity, perhaps more effectively than
trial counsel could have, to explain the content of the conversations. Appellant's second
assignment of error is overruled.
{¶ 28} Appellant's third assignment of error asserts trial counsel was ineffective in
failing to object to the presentencing investigation, which the trial court characterized as
"the worst PSI I've seen, the worst." (Sentencing Tr. at 22.)
{¶ 29} Trial counsel prepared a sentencing memorandum and called witnesses in
mitigation. Trial counsel also spoke to state the PSI did not reflect appellant's true nature
as defense counsel, friends, and family knew appellant.
{¶ 30} While the contents of the PSI are prejudicial in the sense they did not help
appellant's case, they are not challenged as inaccurate or improper, nor are they rebutted
as to their factual veracity. The PSI is available for review by this court on appeal. It is
lengthy, detailed, and not flattering to appellant. The content of the PSI report is not
attributable to the competence of appellant's trial counsel. Trial counsel was not ineffective
in this respect, and appellant's third assignment of error is overruled.
{¶ 31} In summary, appellant's three assignments of error are overruled, and the
judgment of the Franklin County Court of Common Pleas is affirmed.
Judgment affirmed.
BRUNNER and HORTON, JJ., concur.