State v. Thompson ( 2014 )

[Cite as State v. Thompson, 2014-Ohio-2271.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 100335
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
KENNETH THOMPSON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-13-574009
BEFORE: Jones, J., Boyle, A.J., and Kilbane, J.
RELEASED AND JOURNALIZED: May 29, 2014
ATTORNEY FOR APPELLANT
Allison S. Breneman
1220 West 6th Street
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Mahmoud Awadalla
Brian Hoffman
Assistant County Prosecutors
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:
{¶1} Defendant-appellant Kenneth Thompson appeals his consecutive sentence in
Case No. CR-13-574009. We affirm.
{¶2} Thompson was charged with failure to provide notice of change of address in
Case No. CR-13-574215. In Case No. CR-13-574009, Thompson was charged with 13
crimes relative to the physical and sexual assault of the primary victim. The cases were
disposed of together at the trial court level.
{¶3} The state and defense entered into plea negotiations and reached an
agreement. Thompson pleaded guilty to an amended charge in Case No. CR-13-574215.
In Case No. CR-13-574009, he pleaded guilty to Count 3, that was amended to reflect
sexual battery; Count 4, kidnapping, that was amended to delete the indicted
specifications; and Count 11, that was amended to reflect attempted felonious assault and
to name two additional victims. The remaining counts and specifications were nolled.
As part of the plea bargain, the state and defense agreed that the sexual battery and
kidnapping counts were not allied offenses; the agreement was not placed on the record at
the plea hearing, however.
{¶4} The following facts gave rise to the charges. The primary victim and
Thompson had been intimately involved with each other. The first event, which was the
subject of Count 11, attempted felonious assault, occurred in March 2013, and involved
the primary victim waking up to Thompson holding a knife to her throat, threatening her.
He also threatened the additionally named victims, who were the primary victim’s
housemates.
{¶5} The primary victim reported Thompson’s actions to the police, a prosecution
against him was initiated, but the charges were no-billed because of the primary victim’s
failure to pursue the prosecution.
{¶6} The second incident, that was the subject of Count 3, sexual battery, and
Count 4, kidnapping, occurred in April 2013. Thompson sexually assaulted the primary
victim, who was then able to escape from him to her bedroom, where she closed and
locked the door. Thompson, however, kicked the door open and physically assaulted
her, splitting her lip during the attack. He would not let her leave the house to get help.
A neighbor heard her screaming, went into the house, and found the victim lying on the
floor, naked, bleeding, and unconscious. The neighbor woke the victim up and helped
her get dressed. The police arrived on the scene and could hear the victim screaming
and Thompson screaming obscenities at her.
{¶7} The trial court sentenced Thompson to a nine-year prison term, which
included a consecutive sentence on the sexual battery and kidnapping charges.
Thompson appeals and presents the following two assignments of error for our review:
I. Appellant was denied effective assistance of counsel in violation of
Amendments VI and XIV, United States Constitution; and Article I, Section
10, Ohio Constitution.
II. The trial court erred by imposing consecutive sentences.
{¶8} In his first assignment of error, Thompson contends that his trial counsel was
ineffective because he “failed to establish that [the sexual battery and kidnapping] were
allied offenses during the plea hearing, which prejudiced [Thompson] during sentencing
when he was sentenced to consecutive sentences for these two counts.”
{¶9} The standard of review for ineffective assistance of counsel was stated by the
United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). In order to support a claim of ineffective assistance of
counsel, the defendant must satisfy a two-prong test. First, he must show that counsel’s
performance was deficient. Id. This requires a showing that counsel made errors so
serious that counsel was not functioning as the counsel guaranteed the defendant by the
Sixth Amendment. Id.{¶10} A properly licensed attorney is presumed to be competent. Id. at 688. In
order to rebut this presumption, the defendant must show the actions of counsel did not
fall within a range of reasonable assistance. Id. at 689. The court in Strickland stated,
“[t]here are countless ways to provide effective assistance in any given case. * * *” Id.Therefore, “[j]udicial scrutiny of counsel’s performance must be highly deferential. * * *”
Id. “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.”
Id. In addition, “[b]ecause 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 * * *.” Id.{¶11} Second, the defendant must show the deficient performance prejudiced the
defense. In order to satisfy this prong, “[t]he defendant must show that there is a
reasonable probability that, but for counsel’s * * * errors, the result of the proceeding
would have been different.” Id. at 694. In the context of a guilty plea, the defendant
must demonstrate that there is a reasonable probability that, but for his counsel’s errors,
he would not have pled guilty and instead would have insisted on going to trial. Hill v.
Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); State v. Curd, 11th
Dist. Lake No. 2003-L-030, 2004-Ohio-7222, ¶ 110.
{¶12} Thompson is unable to demonstrate that his counsel’s performance was
deficient. There was no discussion at the plea hearing as to whether the sexual battery
and kidnapping counts would merge. But the court informed Thompson that his
maximum prison exposure was 22 years, which would only be possible if the court ran the
sexual battery and kidnapping counts consecutive. Thompson indicated that he
understood.
{¶13} At sentencing, the assistant prosecuting attorney informed the court that
there was no merger of the sexual battery and kidnapping counts, as agreed to by the
parties as part of the plea bargain. The court inquired about the non-merger, and defense
counsel admitted that, as part of the plea, Thompson stipulated that the offenses would
not merge, but he argued that they were “connected” and “it doesn’t mean that you have
to run them consec[utive].”
{¶14} The court told the parties to “go back to the drawing board” because it was
going to impose a consecutive sentence and it needed to know if the plea was “on the
table” or not. The assistant prosecuting attorney reiterated that the agreement between
the parties was that the two counts would not merge, and defense counsel also reiterated
that was the agreement, stating: “That is the agreement, your Honor. I will state that
unequivocally on the record; however, I do not believe the Court has to impose a
consecutive sentence.”
{¶15} On this record, counsel was not deficient for failing to “establish that [the
sexual battery and kidnapping] were allied offenses during the plea hearing,” as
Thompson contends. The record reflects that, as part of the plea bargain, Thompson
agreed that the two offenses would not merge, and the plea colloquy advisement of his
possible maximum prison term accounted for the possibility of the sexual battery and
kidnapping counts being run consecutive.
{¶16} Further, the record supported the parties’ agreement that the two counts not
merge. Thompson sexually assaulted the primary victim, who was then able to escape
from him to her bedroom, where she closed and locked the door. Thompson, however,
kicked the door open and physically assaulted her, splitting her lip during the attack. He
would not let her leave the house to get help. Thus, the sexual assault and kidnapping
were two separate crimes.
{¶17} In regard to the second Strickland factor, even after being advised of the
potential maximum sentence, that could only occur based on non-merger of the subject
counts, Thompson pled guilty. Thus, he has failed to demonstrate that the result of the
proceeding would have been any different.
{¶18} The first assignment of error is, therefore, overruled.
{¶19} For his second assignment of error, Thompson contends that the trial court
erred in sentencing him to consecutive terms on the sexual battery and kidnapping counts.
{¶20} First, Thompson contends that the offenses were allied, and that the trial
court made the same determination. We disagree. The court inquired whether they
were allied because they arose from the “same date and time.” After it was explained
that they were not, and that the parties had stipulated to that, the court accepted that they
were not allied offenses.
{¶21} We are not persuaded by Thompson’s argument that the court found
otherwise because it stated that they arose from the “same date and time.” The incidents
occurred on the same date, within the same time frame, but, as just discussed, they were
separate occurrences that involved Thompson sexually assaulting the primary victim, then
refusing to let her go to seek help. In fact, the court made a specific finding that “based
on the facts and circumstances” these were “two separate incidents,” and the primary
victim was “victimized twice.” On this record, the sexual battery and kidnapping had
separate animuses and, thus, were not allied offenses.
{¶22} Second, Thompson contends that the trial court’s findings for the imposition
of consecutive sentences were not supported by the record.
{¶23} Under R.C. 2953.08(G)(2), we may overturn the imposition of a consecutive
sentence if (1) the sentence is otherwise contrary to law or (2) we clearly and
convincingly find that the record does not support the sentencing court’s findings under
R.C. 2929.14(C)(4). See State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 11; State v.
Goins, 8th Dist. Cuyahoga No. 98256, 2013-Ohio-263, ¶ 6.
{¶24} In imposing consecutive sentences, R.C. 2929.14(C)(4) requires that the trial
court must find that the sentence is “necessary to protect the public from future crime or
to punish the offender,” that consecutive sentences are “not disproportionate to the
seriousness of the offender’s conduct and to the danger the offender poses to the public,”
and the existence of one of the three statutory factors set forth in R.C.
2929.14(C)(4)(a)-(c), which are as follows:
(a) the offender committed one or more of the multiple offenses while
awaiting trial or sentencing, while under a sanction imposed pursuant to
R.C. 2929.16, 2929.17, or 2929.18, or while under postrelease control for a
prior offense; (b) at least two of the multiple offenses were committed as
part of one or more courses of conduct, and the harm caused by two or more
of the offenses was so great or unusual that no single prison term for any of
the offenses committed as part of any of the courses of conduct adequately
reflects the seriousness of the offender’s conduct; or (c) the offender’s
history of criminal conduct demonstrates that consecutive sentences are
necessary to protect the public from future crime by the offender.
{¶25} In imposing consecutive terms on Thompson, the trial court found that
consecutive sentences were necessary to protect or punish and were not disproportionate
to the seriousness of Thompson’s conduct and the danger he posed to the public. The
court further found the following:
I believe that the offender’s criminal history, especially with regard to the
sexual battery from 1996, and the facts and circumstances that I read into
the record of that case as well as the continuing course of illegal conduct
from * * * after his release from prison * * * and his continued
nonreporting of his whereabouts to the county sheriff warrant consecutive
sentences. I also find that, based on the facts and circumstances of the
police report, portions of which I read into the record, with regard to the
sexual battery, * * * the harm was so great or unusual that one term would
not adequately reflect the seriousness of the conduct.
{¶26} Thompson does not contend that the trial court did not make the required
findings but, rather, he contends that the record does not support them. According to
Thompson, (1) he and the victim were in an “intimate, consensual relationship,” (2) he is
not a danger to the public, and (3) there was nothing “so serious and unusual” about his
conduct. We disagree.
{¶27} The record clearly demonstrates that there was nothing consensual about
Thompson and the primary victim’s encounter that led to the charges here. The police
report from that incident indicated that a neighbor heard the victim loudly screaming at
Thompson to “stop” and “get off.” Another neighbor also heard the victim “yelling for
help like she was under duress.” Moreover, when the police arrived at the home they
heard Thompson yelling obscenities at the victim.
{¶28} The record also belies Thompson’s contention that he is not a danger to the
public. He has a significant history of criminal offenses, including violent ones. For
example, in 1996, he was convicted of sexual battery, which resulted from him
approaching two teenaged girls and offering them a ride. The girls accepted, but he took
them to a location other than their intended destination, told them he possessed a firearm
and would shoot them if they did not have sex with him, and then had sex with one of
them.
{¶29} We are also not persuaded by Thompson’s contention that there was nothing
so “serious and unusual” about his conduct. For all the reasons previously discussed,
this was a serious, violent offense.
{¶30} In light of the above, the second assignment of error is overruled.
{¶31} Judgment 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 issue out of this court directing the common
pleas 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.
LARRY A. JONES, SR., JUDGE
MARY J. BOYLE, A.J., and
MARY EILEEN KILBANE, J., CONCUR
KEYWORDS:
#100335
Ineffective assistance of counsel; R.C. 2929.14 (C)(4)/sentencing/consecutive. As
part of the pleas agreement, the parties agreed that the sexual battery and kidnapping
counts would not merge, and appellant pled guilty. Trial counsel was not ineffective for
not establishing that the two charges were allied offenses. Appellant’s contention that
the record does not support consecutive sentences is not based on fact. The record shows
clearly that appellant is a danger to society, that he has a significant history of criminal
offenses, and that appellant was not in a consensual relationship with the victim. The
trial court did not err in imposing consecutive sentences.