State v. Jones , 2019 Ohio 4938 ( 2019 )

[Cite as State v. Jones, 2019-Ohio-4938.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SHELBY COUNTY
STATE OF OHIO,
CASE NO. 17-19-08
PLAINTIFF-APPELLEE,
v.
JAVONTE E. JONES, OPINION
DEFENDANT-APPELLANT.
Appeal from Shelby County Common Pleas Court
Trial Court No. 19CR000052
Judgment Affirmed
Date of Decision: December 2, 2019
APPEARANCES:
Jim R. Gudgel for Appellant
Timothy S. Sell for Appellee
Case No. 17-19-08
WILLAMOWSKI, J.
{¶1} Defendant-appellant Javonte E. Jones (“Jones”) appeals the judgment
of the Shelby County Court of Common Pleas, alleging (1) that the trial court abused
its discretion in sentencing him; (2) that his trial counsel was ineffective; and (3)
that the trial court’s order as to restitution was not based upon competent, credible
evidence. For the reasons set forth below, the judgment of the trial court is affirmed.
Facts and Procedural History
{¶2} On February 18, 2019, Jones and Amonte Clayton (“Clayton”) were
inside a Wal-Mart. Doc. 10. Clayton used a crowbar to force open a metal cage
that stored a number of iPads. Doc. 10. In this process, the metal cage was
damaged. Jones and Clayton removed nine iPads, left the store, and got in a vehicle.
At roughly 5:30 A.M., Jones drove out of the Wal-Mart parking lot. Doc. 10.
However, Officer Anderson Bradley (“Officer Bradley”) noticed that Jones did not
have his headlights activated. Doc. 10. At this point, Officer Bradley activated his
lights to initiate a traffic stop, but Jones did not stop his vehicle and drove onto the
interstate. Doc. 10. Officer Bradley continued to pursue Jones at speeds that ranged
from eighty to ninety-five miles per hour. Doc. 10. The police deployed spike strips
in Jones’s path of travel. Doc. 10. Jones’s vehicle came to a stop only after the
spike strips disabled his vehicle. Doc. 10. In the vehicle, the police found nine
iPads, two shirts, and a tote bag that had been stolen from Wal-Mart. Doc. 10.
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{¶3} On February 21, 2019, Jones was indicted on one count of failure to
comply with the order or signal of an officer in violation of R.C. 2921.331(B); one
count of theft in violation of R.C. 2913.02(A)(1); and one count of vandalism in
violation of R.C. 2909.05(B)(1)(b). Doc. 1. On March 26, 2019, Jones filed a
petition to enter a plea of guilty. Doc. 44. This petition was based upon an
underlying plea agreement. Doc. 44. Pursuant to this agreement, Jones pled guilty
to failure to comply with the order or signal of an officer, and the State dismissed
the charges of theft and vandalism. Doc. 44, 54. On May 13, 2019, the trial court
entered its judgment entry of sentencing. Doc. 54. The trial court sentenced Jones
to twenty-four (24) months in prison. Doc. 54. The trial court also ordered Jones
to pay Wal-Mart restitution in the amount of $7,152.22. Doc. 54.
{¶4} The appellant filed his notice of appeal on May 31, 2019. Doc. 65. On
appeal, Jones raises the following assignments of error:
First Assignment of Error
The Court abused its discretion by imposing a prison sentence of
24 months.
Second Assignment of Error
Defense Counsel was ineffective for not requesting a separate
restitution hearing.
Third Assignment of Error
The trial court committed reversible error under Section 2929.18
when it sentenced the Defendant-Appellant to pay restitution in
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the amount of $7,152.55 without a reasonable degree of certainty
based on competent and credible evidence.
First Assignment of Error
{¶5} Jones argues that the trial court did not properly balance the seriousness
and recidivism factors in imposing his sentence.
Legal Standard
{¶6} Trial courts are to sentence convicted felons in accordance with the
overriding purposes of felony sentencing, which
are to protect the public from future crime by the offender and
others and to punish the offender using the minimum sanctions
that the court determines accomplish those purposes without
imposing an unnecessary burden on state or local government
resources.
R.C. 2929.11. “To effectuate compliance with these overriding purposes, the Ohio
Revised Code requires the trial court to consider a number of factors listed in R.C.
2929.12.” State v. Walton, 3d Dist. Logan No. 8-17-55, 2018-Ohio-1680, ¶ 6. The
R.C. 2929.12 factors direct the trial court to evaluate the seriousness of the offense
and the likelihood of recidivism. R.C. 2929.12.
Although the trial court must consider the purposes and
principles of felony sentencing set forth in R.C. 2929.11 and the
sentencing factors listed in R.C. 2929.12, the sentencing court is
not required to ‘state on the record that it considered the
statutory criteria or discuss[ed] them.’ State v. Polick, 101 Ohio
App.3d 428, 431 [655 N.E.2d 820] (4th Dist. 1995). A trial court’s
statement that it considered the required statutory factors,
without more, is sufficient to fulfill its obligations under the
sentencing statutes.
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Case No. 17-19-08
State v. Maggette, 3d Dist. Seneca No. 13-16-06, 2016-Ohio-5554, ¶ 31.
{¶7} Appellate courts defer to the broad discretion of the trial court in matters
of sentencing.1 State v. Witt, 3d Dist. Auglaize No. 2-17-09, 2017-Ohio-7441, ¶ 12.
If the defendant establishes by clear and convincing evidence that his or her sentence
is “(1) contrary to law and/or (2) unsupported by the record,” an appellate court has
the authority, pursuant to R.C. 2953.08(G)(2), “to increase, reduce, or otherwise
modify a sentence * * *.” State v. McGowan, 147 Ohio St.3d 166, 2016-Ohio-2971,
62 N.E.3d 178, ¶ 1.
Clear and convincing evidence is that measure or degree of proof
which is more than a mere ‘preponderance of the evidence,’ but
not to the extent of such certainty as is required ‘beyond a
reasonable doubt’ in criminal cases, and which will produce in the
mind of the trier of facts a firm belief or conviction as to the facts
sought to be established.
State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 22,
quoting Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three
of the syllabus.
Legal Analysis
{¶8} The trial court, at the sentencing hearing and in its judgment entry,
stated that it considered the purposes and principles of sentencing in R.C. 2929.11
1
We note that the trial court is given discretion in applying the statutory factors in the process of determining
an appropriate sentence. A misapplication of these factors in sentencing that rises to the level of an abuse of
discretion is clearly and convincingly contrary to law. Thus, we examine the record to determine whether the
trial court clearly and convincingly failed to act in accordance with the laws governing the imposition of
sentences.
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and the seriousness and recidivism factors listed in R.C. 2929.12. Doc. 54. Tr. 10.
See Magette, supra, at ¶ 31. Further, at the sentencing hearing, the trial court noted
that Jones had a past criminal record; that Jones has “had difficulty accepting
responsibility for * * * [his] conduct in this”; and that Jones had two other offenses
that were dismissed pursuant to the plea agreement. Tr. 10-11. The trial court also
mentioned that Jones fled the scene of the crime at speeds that neared one hundred
miles per hour and had to be stopped using spike strips. Tr. 11.
{¶9} Further, when Jones pled guilty, he was informed that he could be
sentenced up to thirty-six months in prison. Doc. 44. Thus, not only is this sentence
within the range permitted by statute, but the imposed sentence falls short of what
Jones was aware that he could receive by pleading guilty. After reviewing the
evidence in the record, we conclude that some competent, credible evidence
supports Jones’s sentence. Jones has not demonstrated, by clear and convincing
evidence, that his sentence is contrary to law. Thus, Jones’s first assignment of error
is overruled.
Second Assignment of Error
{¶10} Jones argues that he was denied his right to the effective assistance of
counsel because his attorney did not request a separate restitution hearing.
Legal Standard
{¶11} “Under Ohio law, ‘a properly licensed attorney is presumed to carry
out his duties in a competent manner.’” State v. Beaver, 3d Dist. Marion No. 9-17-
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37, 2018-Ohio-2438, ¶ 26, quoting State v. Gee, 3d Dist. Putnam No. 12-92-9, 1993
WL 270995 (July 22, 1993). In order to prove an ineffective assistance of counsel
claim, the appellant must carry the burden of establishing (1) that his or her
counsel’s performance was deficient and (2) that this deficient performance
prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984).
{¶12} The first prong “requires showing that counsel made errors so serious
that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860
N.E.2d 77, ¶ 61. “Tactical or strategic trial decisions, even if unsuccessful, do not
generally constitute ineffective assistance.” State v. Pellegrini, 3d Dist. Allen No.
1-12-30, 2013-Ohio-141, ¶ 40. In order to establish prejudice, “the defendant must
show a reasonable probability that, but for counsel’s errors, the result of the
proceeding would have been different.” State v. Davis, 3d Dist. Seneca No. 13-16-
30, 2017-Ohio-2916, ¶ 36, quoting State v. Bibbs, 3d Dist. Hancock No. 5-16-11,
2016-Ohio-8396, ¶ 13.
{¶13} “If the appellant does not establish one of these two prongs, the
appellate court does not need to consider the facts of the case under the other prong
of the test.” State v. Smalley, 3d Dist. Henry No. 7-18-30, 2019-Ohio-1572, ¶ 5,
citing State v. Walker, 2016-Ohio-3499, 66 N.E.3d 349, ¶ 20 (3d Dist.). “Appellate
courts are to examine the record to determine whether the defendant had a fair
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proceeding under the circumstances and whether substantial justice was done.”
State v. McWay, 3d Dist. Allen No. 1-17-42, 2018-Ohio-3618, ¶ 24, citing State v.
Hester, 45 Ohio St.2d 71, 341 N.E.2d 304 (1976), paragraph four of the syllabus.
Legal Analysis
{¶14} In this case, Jones expressly agreed to pay restitution as part of a plea
agreement in which two charges against him were dismissed. Doc. 44. At the
beginning of Jones’s sentencing hearing, the State clearly stated that the amount of
restitution requested by Wal-Mart was $7,152.55. Tr. 7. The State obtained this
figure from the presentence investigation. Tr. 7. This apparently included the costs
of the electronics and the damage to the interior of the cage that contained the iPads.
Tr. 9. At this point, Jones’s counsel, in reference to the amount of restitution that
Wal-Mart requested, said: “I believe that they [Wal-Mart] would have at least
received back the lost or the—the electronics equipment. So I’m not sure why they
couldn’t have sold that. It wasn’t damaged as far as I know.” Tr. 9.
{¶15} In response to this statement, the trial court stated that it was obligated
to order restitution in this case but asked Jones if he wanted to present any
information to contest the amount of restitution that had been presented by Wal-
Mart. Tr. 8. After a brief, off-the-record colloquy between Jones and his trial
counsel, the Defense indicated that it would not contest the amount of the damages
that Wal-Mart reported. Tr. 9. The trial court stated that it was going to impose the
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amount of restitution as a “joint and several obligation * * * of the co-defendants in
the case.” Tr. 9.
{¶16} The trial court then gave Jones another opportunity to contest the
amount of restitution at a separate hearing. Tr. 10. Again, defense counsel engaged
in another off-the-record colloquy with Jones. Tr. 11. Jones, who was aware that
the amount of restitution that Wal-Mart requested was $7,152.55, indicated to his
trial counsel that he “believe[d] that he[ was] capable of * * * paying restitution and
[was] willing to pay restitution in this matter.” Tr. 10.
{¶17} Thus, the record indicates that defense counsel effectuated the wishes
of Jones in declining the opportunity to have a restitution hearing. Tr. 10. Jones
has not carried the burden of establishing that his trial counsel was ineffective. See
State v. Banks, 2d Dist. Montgomery No. 20711, 2005-Ohio-4488, ¶ 11. After
reviewing the record, we do not find any indication that defense counsel’s
performance in this matter fell below the objective standard of reasonableness that
is held to attorneys.
{¶18} We also note that Jones has not met the burden of proving that he was
prejudiced. Jones asserts that the failure of his attorney to request a restitution
hearing operated to his prejudice because he was ordered to pay $7,251.55 in
restitution. However, the fact that the defense counsel was effectuating Jones’s
wishes also defeats his argument as to prejudice. In this case, Jones was aware of
the amount of restitution that Wal-Mart was requesting. Jones also knew, from his
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defense counsel’s statements at the sentencing hearing, that there were some
arguments against the amount of the restitution. The trial court gave Jones two
opportunities to contest the amount of restitution.
{¶19} However, Jones twice chose not to contest the amount of restitution
and instead indicated to his counsel that he was willing and capable of paying for
this amount. Tr. 10. Thus, Jones has not, on appeal, alleged prejudice that resulted
from his counsel’s performance. Rather, he has alleged prejudice that resulted from
his own choices. For these reasons, Jones’s second assignment of error is overruled.
Third Assignment of Error
{¶20} Jones argues that the trial court’s order for him to pay $7,152.22 in
restitution is not based upon competent, credible evidence.
Legal Standard
{¶21} R.C. 2929.18(A)(1) authorizes a trial court to impose restitution as part
of a sentence in order to compensate the victim for economic loss. State v. Lalain,
136 Ohio St.3d 248, 2013-Ohio-3093, 994 N.E.2d 423, ¶ 20. R.C. 2929.18(A)
reads, in its relevant part, as follows:
If the court imposes restitution, at sentencing, the court shall
determine the amount of restitution to be made by the offender.
If the court imposes restitution, the court may base the amount of
restitution it orders on an amount recommended by the victim,
the offender, a presentence investigation report, estimates or
receipts indicating the cost of repairing or replacing property,
and other information, provided that the amount the court orders
as restitution shall not exceed the amount of the economic loss
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suffered by the victim as a direct and proximate result of the
commission of the offense.
R.C. 2929.18(A)(1). “There must be competent and credible evidence in the record
from which the court may ascertain the amount of restitution to a reasonable degree
of certainty.” State v. Estes, 3d Dist. Seneca No. 13-11-14, 2011-Ohio-5740, ¶ 20.
{¶22} R.C. 2929.18(A)(1) also provides that “[i]f the court decides to impose
restitution, the court shall hold a hearing on restitution if the offender, victim, or
survivor disputes the amount.” R.C. 2929.18(A)(1). However, “[a] defendant who
does not dispute an amount of restitution, request a hearing, or otherwise object
waives all but plain error in regards to the order of restitution.” State v. Snowden,
2019-Ohio-3006, --- N.E.3d ---, ¶ 88 (2d Dist.). See State v. Dunham, 5th Dist.
Richland No. 13CA26, 2014-Ohio-1042, ¶ 84; State v. Downie, 183 Ohio App.3d
665, 2009-Ohio-4643, 918 N.E.2d 218, ¶ 32 (7th Dist.); State v. Ford, 9th Dist.
Summit No. 26073, 2012-Ohio-1327, ¶ 6.
{¶23} Under Crim.R. 52(A), “[p]lain errors or defects affecting substantial
rights may be noticed although they were not brought to the attention of the court.”
Crim.R. 52(B).
“In order to find plain error under Crim.R. 52(B), there must be
an error, the error must be an ‘obvious’ defect in the trial
proceedings, and the error must have affected ‘substantial
rights.’” State v. Bowsher, 3d Dist. Union No. 14-07-32, 2009-
Ohio-6524, ¶ 12, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759
N.E.2d 1240 (2002). ‘The standard for plain error is whether, but
for the error, the outcome of the proceeding clearly would have
been otherwise.’ State v. Hornbeck, 155 Ohio App.3d 571, 2003-
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Ohio-6897, 802 N.E.2d 184, ¶ 16 (2d Dist.), citing State v. Long, 53
Ohio St.2d 91, 372 N.E.2d 804 (1978). Notice of plain error is
taken “only to ‘prevent a manifest miscarriage of justice.’” State
v. Davis, 3d Dist. Seneca No. 13-16-30, 2017-Ohio-2916, ¶ 23,
quoting Long, supra, at paragraph three of the syllabus.
State v. Taflinger, 3d Dist. Logan No. 8-17-20, 2018-Ohio-456, ¶ 17. Under
Crim.R. 52(B), “the defendant bears the burden of demonstrating that a plain error
affected his substantial rights.” (Emphasis sic.) State v. Perry, 101 Ohio St.3d 118,
2004-Ohio-297, 802 N.E.2d 643, ¶ 14.
Legal Analysis
{¶24} Jones, on appeal, seeks to contest the amount of restitution that the
trial court imposed. R.C. 2929.18(A)(1) provides an avenue for a defendant to
contest the amount of restitution. R.C. 2929.18(A)(1). However, Jones chose not
to contest the amount of restitution and did not raise these arguments before the trial
court. Tr. 9-10. In fact, Jones indicated to the trial court that he was “capable” and
“willing” to pay the amount of restitution submitted by Wal-Mart. Tr. 10. Since
Jones did not contest the amount of restitution before the trial court, Jones has
waived all but plain error.
{¶25} On appeal, Jones has not carried the burden of demonstrating that the
trial court committed plain error in imposing $7,152.22 in restitution. In this case,
the trial court based the amount of restitution on the economic losses reported by
the victim, Wal-Mart. Doc. 54. Tr. 9. The trial court had the authority, under R.C.
2929.18(A)(1), to base the amount of the restitution “on an amount recommended
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by the victim, the offender, a presentence investigation report, estimates or receipts
* * *.” (Emphasis added.) R.C. 2929.18(A)(1).
{¶26} The evidence in the record indicates that the trial court acted in
accordance with the dictates of R.C. 2929.18(A)(1). After reviewing the evidence
in the record, we find no indication of an obvious defect in the process of imposing
restitution. For this reason, Jones’s third assignment of error is overruled.
Conclusion
{¶27} Having found no error prejudicial to the appellant in the particulars
assigned and argued, the judgment of the Shelby County Court of Common Pleas is
affirmed.
Judgment Affirmed
SHAW and PRESTON, J.J., concur.
/hls
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