State v. Cascarelli , 2014 Ohio 5403 ( 2014 )

[Cite as State v. Cascarelli, 2014-Ohio-5403.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 13 MA 145
)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION
)
ANGELA CASCARELLI )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 10 CR 666
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Atty. A. Ross Douglass
860 Boardman-Canfield Road
Suite. 204
Youngstown, Ohio 44512
JUDGES:
Hon. Cheryl L. Waite
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: December 3, 2014
[Cite as State v. Cascarelli, 2014-Ohio-5403.]
WAITE, J.
{¶1} Appellant Angela Cascarelli appeals the Mahoning County Common
Pleas Court’s decision to reinstate her sentence for aggravated robbery. Appellant
argues that defense counsel’s performance reflected ignorance of her substance
abuse problems and that due to this ignorance counsel failed to request that she be
evaluated for alternative sanctions such as placement at a drug treatment facility.
The transcripts of the probation violation and sentencing hearings directly contradict
Appellant’s arguments. Appellant’s assignment of error is without merit and the trial
court judgment is affirmed.
Case History
{¶2} In 2010 Appellant pleaded guilty to aggravated robbery, a violation of
R.C. 2911.02(A)(3)(B), a third degree felony. She was originally sentenced to a
three-year term of incarceration. On August 15, 2011 Appellant was granted judicial
release pursuant to R.C. 2929.20 and was placed under community control sanctions
for three years. In 2013, Appellant pleaded guilty to possession of heroin. Based on
that new conviction, she was also cited for a probation violation. On August 16,
2013, the court held a probation violation hearing. During the hearing the trial court
discussed with Appellant her violation of the terms of her community control
sanctions, her criminal history including two robbery convictions, and listened to her
statements concerning the progress she made in counseling during the period of her
judicial release. The trial court then revoked Appellant’s community control and
reimposed the remainder of her original sentence. This appeal followed.
ASSIGNMENT OF ERROR
-2-
APPELLANT WAS DENIED HER RIGHT TO DUE PROCESS AND OF
ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND
FOURTEENTH AMENDMENTS OF THE UNITED STATES
CONSTITUTION AND OHIO CONSTITUTION SINCE HER COUNSEL
PROVIDED INEFFECTIVE ASSISTANCE.
{¶3} Appellant contends that defense counsel’s ignorance of her history of
addiction and illegal drug use resulted in ineffective assistance of counsel at the
probation revocation hearing. To prevail on a claim of ineffective assistance of
counsel, Appellant must show not only that counsel's performance was deficient, but
also that she was prejudiced by that deficiency. Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052, 80 L. Ed. 2d 674, (1984); see also State v. Williams, 99 Ohio
St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶107. “Deficient performance” means
performance falling below an objective standard of reasonable representation.
Strickland at 687-688. “Prejudice,” in this context, means a reasonable probability
that but for counsel's errors, the result of the proceeding would have been different.
Id. at 694.
{¶4} The United States Supreme Court originally explained in Strickland that
an “ineffectiveness claim * * * is an attack on the fundamental fairness of the
proceeding whose result is challenged” * * * “the ultimate focus of inquiry must be on
the fundamental fairness of the proceeding whose result is being challenged.”
Strickland, supra, at 697 and 670. A defendant’s burden when challenging the
effectiveness of counsel is to demonstrate that some action or inaction by counsel
operated to undermine or call into question the integrity of the process that resulted
-3-
in conviction. State v. Calhoun, 86 Ohio St. 3d 279, 289, 714 N.E.2d 905 (1999).
When evaluating the performance of counsel, a court “must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance.” State v. Wesson, 137 Ohio St.3d, 2013-Ohio-4575, 999
N.E.2d 557, ¶81. “Judicial scrutiny of counsel’s performance must be highly
deferential, and 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.” Strickland at 669. “It is all too tempting for a
defendant to second-guess counsel’s assistance after conviction or adverse
sentence, and it is all too easy for a court, examining counsel’s defense after it has
proved unsuccessful, to conclude that a particular act or omission of counsel was
unreasonable.” Id. at 689.
{¶5} Appellant complains that she was not assessed for placement at
Community Corrections Association or any other treatment facility to deal with her
addiction issues. She blames counsel for this alleged failure. Contrary to Appellant’s
arguments, the record of the sentencing hearing reflects a lengthy description by
counsel as to the “drug and alcohol issues and emotional and mental issues” that his
client had taken positive steps to address, including her participation in counseling
and in the Turning Point program. (Sentencing Tr., p. 7.) Counsel also argued that
returning Appellant to prison would hinder her positive progress and that she should
be allowed to build on the changes she had made. (Sentencing Tr., p. 8.) The
quotation from the probation revocation transcript Appellant cites as evidence of
-4-
defense counsel’s ignorance of her history of substance abuse is truncated and
misleading. The transcript reveals that during the probation violation hearing defense
counsel specifically acknowledged that he was aware of other substance abuses,
and he specifically requested “treatment options, if the court would consider them,
there’s structure at Community Corrections.” (Probation Violation Hrg., p. 6.)
{¶6} This record directly contradicts Appellant’s representations concerning
counsel's alleged ignorance of her drug use problems and does not reflect any
substandard performance by counsel. Defense counsel advocated alternative
sanctions for Appellant throughout both the original sentencing and the probation
violation proceedings. Counsel’s statement that he was surprised with Appellant’s
involvement with heroin, when viewed in the context of all statements made during
the probation violation hearing, appears to be a strategy designed to focus the court’s
attention on the addiction issue that underlies her criminal behavior and redirect the
court toward treatment options. It is impossible to conclude from these transcripts
that defense counsel’s statement was anything other than a strategic decision within
the range of choices defense counsel is required to make on behalf of his client.
See, e.g. State v. Maguire, 7th Dist. No. 08 MA 188, 2009-Ohio-4393, ¶20, “[t]actical
or strategic trial decisions, even if unsuccessful, do not generally constitute
ineffective assistance.”
{¶7} While counsel may advocate for any sentence or diversion, there is no
objective requirement that defense counsel request a particular sanction or present
arguments in a specific manner. At sentencing, the trial court has “full discretion to
impose a prison sentence within the statutory range.” State v. Foster, 109 Ohio St.3d
-5-
1, 30, 2006-Ohio-856, ¶100. The trial court’s broad discretion means that any
connection between the actions or inactions of counsel at sentencing or probation
violation hearings and the specific sentence imposed or reinstated is tenuous at best.
In this instance Appellant’s arguments do not accurately reflect defense counsel’s
performance or establish a connection between counsel’s performance and some
prejudice to Appellant. Nothing in this record supports a conclusion that defense
counsel’s advocacy was ineffective. Appellant’s assignment of error is without merit
and is overruled.
Conclusion
{¶8} The transcripts of the probation violation and sentencing hearings
reflect defense counsel’s knowledge of Appellant’s history of drug use. Counsel
specifically requested alternative sanctions and explained to the court why such
sanctions were preferable to incarceration. Appellant did not provide evidence of
prejudice resulting from any act or omission by defense counsel. Appellant’s
argument is not persuasive and the judgment of the trial court is affirmed.
Donofrio, J., concurs.
DeGenaro, P.J., concurs.