State v. Washington , 2011 Ohio 4500 ( 2011 )

[Cite as State v. Washington, 2011-Ohio-4500.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 95774
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DEBORAH WASHINGTON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-530880
BEFORE: Cooney, J., Boyle, P.J., and S. Gallagher, J.
RELEASED AND JOURNALIZED: September 8, 2011
ATTORNEY FOR APPELLANT
2
Susan J. Moran
55 Public Square
Suite 1616
Cleveland, Ohio 44113-1901
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Nick Giegerich
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
COLLEEN CONWAY COONEY, J.:
{¶ 1} Defendant-appellant, Deborah Washington (“Washington”),
appeals her conviction and sentence after pleading guilty to attempted
engaging in a pattern of corrupt activity, a third degree felony. We find no
merit to the appeal and affirm.
3
{¶ 2} Washington was charged with a second degree felony of engaging in
a pattern of corrupt activity. The indictment alleged that she and 17
codefendants submitted false documents to obtain mortgage loans.
Washington claims her court-appointed counsel never discussed the merits of
the State’s case with her but recommended she plead guilty to a reduced
charge because she would most likely receive community control sanctions in
lieu of prison.
{¶ 3} Washington pled guilty to an amended charge, and the court
continued the sentencing for a presentence investigation report. At the
sentencing hearing, Washington denied knowing that any fraudulent
documents had been submitted to mortgage companies, and the court offered
to allow her to withdraw her plea. Neither she nor her counsel requested to
withdraw the plea. At the conclusion of the hearing, the court imposed the
minimum sentence of one year in prison but stayed execution of the sentence
until Washington completed chemotherapy treatment. Washington now
appeals, raising three assignments of error.
Ineffective Assistance of Counsel and the Guilty Plea
{¶ 4} In her first assignment of error, Washington argues that she did not
enter her guilty plea knowingly, intelligently, and voluntarily because her
counsel failed to effectively assist her prior to pleading guilty. In her third
4
assignment of error, she contends she was deprived of her constitutional right
to the effective assistance of counsel. We address these two assigned errors
together.
{¶ 5} In a claim of ineffective assistance of counsel, the burden is on the defendant to
establish that counsel’s performance fell below an objective standard of reasonable
representation and that the deficient performance prejudiced the defense. State v. Madrigal,
87 Ohio St.3d 378, 388-389, 2000-Ohio-448, 721 N.E.2d 52, citing Strickland v. Washington
(1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. A guilty plea waives a defendant’s
claim of ineffective assistance of counsel except to the extent that the alleged ineffectiveness
may have caused the guilty plea to be less than knowing, intelligent, and voluntary. State v.
Barnett (1991), 73 Ohio App.3d 244, 249, 596 N.E.2d 1101; State v. Smith, Cuyahoga App.
No. 85616, 2005-Ohio-4702, at ¶14.
{¶ 6} A guilty plea must be made knowingly, voluntarily, and intelligently or it is void.
State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶7. In assessing the
voluntariness of a plea, this court must consider all of the relevant circumstances surrounding
it. Brady v. United States (1970), 397 U.S. 742, 749, 90 S.Ct. 1463, 25 L.Ed.2d 747. To
establish ineffective assistance of counsel in the context of a guilty plea, a
defendant must show that (1) counsel’s performance was deficient, and (2)
there is a reasonable probability that, but for counsel’s errors, the defendant
5
would not have pleaded guilty, and instead would have insisted on going to
trial. Hill v. Lockhart (1985), 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203. In
other words, by pleading guilty, a defendant waives the right to claim
ineffective assistance of counsel, “except to the extent the defects complained
of caused the plea to be less than knowing and voluntary.” Barnett at 249.
{¶ 7} Washington contends her trial counsel was ineffective because,
despite her repeated requests, he never met with her to discuss the evidence in
the case or any potential defenses prior to the plea hearing. She further
claims that she was “under great duress” because she was scheduled for cancer
surgery in the near future and she had recently been told that her prognosis
was “not promising.” She maintains “the record reveals that she did not
understand that to which she was accused and convicted.” The record,
however, does not support her arguments.
{¶ 8} During the Crim.R. 11(C) colloquy, the court specifically asked
Washington if she was entering her plea knowingly and voluntarily and she
replied, “Yes, sir.” When the court asked her: “Do you have any questions
that you would care to ask me about what is going on here today?” she relied,
“No, sir.” Thus, the court afforded Washington the opportunity to inform the
court that she did not have a meaningful discussion with her counsel prior to
the plea hearing and she denied having any doubts about pleading guilty.
6
She never mentioned any distress about her recent cancer diagnosis or her
scheduled surgery. She received a stay of her sentence so she could complete
her chemotherapy. She informed the court that she was entering her plea
knowingly, intelligently, and voluntarily. The court informed her at the plea
hearing that she faced one to five years in prison.
{¶ 9} Washington argues that because she asserted her innocence and
claimed she was ignorant of any wrongdoing at the sentencing hearing, the
record demonstrates that she did not enter her plea knowingly and
voluntarily. However, the trial court considered her denials of knowledge of
all the facts and determined she lacked credibility. After initially denying
knowledge of any fraudulent misconduct, Washington admitted that she asked
her accountant to combine her income with her father’s income to obtain better
credit. Although she denied knowing this was illegal, she admitted that her
father is an aged individual who is unemployed and that Washington was his
caregiver. The court noted that it had previously sentenced Washington’s
father for his participation in the scheme and that his presentence
investigation report indicated he had no verifiable income. The court also
noted that Washington’s father “clearly knew what he was doing,” and that he
had told the court that the scheme was Washington’s idea.
7
{¶ 10} Upon further questioning, Washington acknowledged her limited
participation in the scheme. She admitted she was involved in the sale of a
house from her father to her son and that she obtained a profit from the sale,
which she claimed went back into the business rather than into her pocket.
The postal inspector informed the court that when Washington’s son
purchased the home from Washington’s father, the title company informed her
that Washington’s son was out of state and unemployed. The postal inspector
suggested that, based on this evidence, Washington was attempting to “flip”
the property from her father to her son to receive the difference in purchase
price as a profit.
{¶ 11} The State presented evidence that Washington claimed an income
of $4,700 per month on mortgage documents although her tax returns
indicated an income of only $2,000 per month. Her father’s tax returns also
indicated an income even though he was unemployed. His pay stubs were
from a company called “Telemarketing, Inc.,” which never existed.
{¶ 12} Under these circumstances, we agree with the trial court that
Washington’s claimed innocence is not credible and fails to demonstrate that
she was ignorant or unknowing when she entered her guilty plea.
Washington fails to demonstrate that her trial counsel’s ineffectiveness caused
8
the plea to be less than knowing and voluntary. Therefore, the first and third
assignments of error are overruled.
Sentencing
{¶ 13} In the second assignment of error, Washington argues the trial
court abused its discretion by imposing a prison sentence when the sentencing
guidelines supported the imposition of a community control sanction.
Washington contends that the trial court abused its discretion by failing to
appropriately evaluate the purposes and principles of sentencing pursuant to
R.C. 2929.11 and balancing the seriousness and recidivism factors pursuant to
R.C. 2929.12. We disagree.
{¶ 14} Appellate courts must apply a two-step approach when reviewing
a defendant’s sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912,
896 N.E.2d 124, ¶4. “First, they must examine the sentencing court’s
compliance with all applicable rules and statutes in imposing the sentence to
determine whether the sentence is clearly and convincingly contrary to law.
If this first prong is satisfied, the trial court’s decision shall be reviewed under
an abuse-of-discretion standard.” Id.{¶ 15} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d
470, the Ohio Supreme Court held that trial courts “have full discretion to
impose a prison sentence within the statutory range and are no longer
9
required to make findings or give their reasons for imposing maximum,
consecutive, or more than the minimum sentences.” Id. at ¶ 100. In Kalish,
the Supreme Court explained that although Foster eliminated mandatory
judicial fact-finding for upward departures from the minimum, it left R.C.
2929.11 and 2929.12 intact and thus maintained the requirement that trial
courts consider them at sentencing. Id. at ¶13, citing State v. Mathis, 109
Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶38.
{¶ 16} The Kalish court explained that R.C. 2929.11 and 2929.12 serve as
an “overarching guide for trial judges to consider in fashioning an appropriate
sentence” and that “trial court[s] have full discretion to determine whether the
sentence satisfies the overriding purpose of Ohio’s sentencing structure.”
Moreover, R.C. 2929.12 permits a trial court to exercise its discretion in
determining whether its sentence complies with the purposes of sentencing.
Id. Assuming the trial court has complied with the applicable rules and
statutes, we review the sentence within the permissible statutory range for an
abuse of discretion. Id.{¶ 17} Further, the Supreme Court in Kalish held that even after Foster,
“where the trial court does not put on the record its consideration of R.C.
2929.11 and 2929.12, it is presumed that the trial court gave proper
10
consideration to those statutes.” Id. at fn. 4, citing State v. Adams (1988), 37
Ohio St.3d 295, 525 N.E.2d 1361, paragraph three of the syllabus.
{¶ 18} R.C. 2929.11(A) provides that when a trial court sentences an
offender for a felony conviction it must be guided by the “overriding purposes
of felony sentencing.” Those purposes are “to protect the public from future
crime by the offender and others and to punish the offender.” R.C. 2929.11(B)
states that a felony sentence “must be reasonably calculated to achieve the
purposes set forth under R.C. 2929.11(A), commensurate with and not
demeaning to the seriousness of the crime and its impact on the victim, and
consistent with sentences imposed for similar crimes committed by similar
offenders.” R.C. 2929.12 sets forth factors concerning the seriousness of the
offense and recidivism factors.
{¶ 19} Because Washington pleaded guilty to a third degree felony, a
one-year prison term falls within the range set forth in R.C. 2929.14(A)(3).
There is no presumption in favor of community control sanctions. R.C.
2929.13(C). The court informed her at her plea hearing that she faced a
prison sentence of one to five years. Therefore, Washington’s sentence is
consistent with Ohio sentencing laws.
{¶ 20} The trial court properly considered the factors in R.C. 2929.12 and
adhered to the purposes and principles of sentencing set forth in R.C. 2929.11.
11
At the sentencing hearing, the court noted that Washington showed no
remorse for her crimes but attempted to minimize her culpability and blame
the crime on other people. The court also noted that Washington had a prior
felony conviction for a theft offense. Thus, although the court is no longer
required to make findings on the record to justify its sentence, the record
demonstrates that the court considered the applicable factors and principles
contained in R.C. 2929.11 and 2929.12, including recidivism factors and the
need to punish the offender. Accordingly, we find no abuse of discretion in the
minimum sentence of one year in prison.
{¶ 21} The second assignment of error is overruled.
{¶ 22} Judgment affirmed.
It is ordered that appellee recover of 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. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
12
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
______________________________________________
COLLEEN CONWAY COONEY, JUDGE
MARY J. BOYLE, P.J., and
SEAN C. GALLAGHER, J., CONCUR