State v. Moore ( 2018 )

[Cite as State v. Moore, 2018-Ohio-4528.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MIAMI COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2018-CA-6
:
v. : Trial Court Case No. 2017-CR-392
:
MATTHEW D. MOORE : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 9th day of November, 2018.
...........
PAUL M. WATKINS, Atty. Reg. No. 0090868, Miami County Prosecutor’s Office, 201 W.
Main Street, Troy, Ohio 45373
Attorney for Plaintiff-Appellee
DANIEL F. GETTY, Atty. Reg. No. 0074341, 46 E. Franklin Street, Centerville, Ohio
45459
Attorney for Defendant-Appellant
.............
DONOVAN, J.
{¶ 1} This matter is before the Court on the April 3, 2018 Notice of Appeal of
Matthew D. Moore. Moore appeals from the trial court’s judgment entry of conviction,
following his guilty plea on one count of aggravated possession of drugs (fentanyl) (less
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than bulk amount), in violation of R.C. 2925.11(A)/(C)(1)(a), a felony of the fifth degree.
We hereby affirm the judgment of the trial court.
{¶ 2} Moore was indicted on August 16, 2017; he entered a plea of not guilty and
was released on his own recognizance. The court advised Moore that the conditions of
his bond were “that he not leave the State of Ohio, not move from his current address
without notifying the court, not use or possess any illegal drugs.” Thereafter, Moore
entered his plea of guilty on January 29, 2018. The following exchange occurred at
Moore’s plea hearing:
THE COURT: * * * I’m going to show you a multi-page document.
Do you recognize that as the plea agreement?
MR. MOORE: Yes.
THE COURT: * * * Did you read over it?
MR. MOORE: Yes.
THE COURT: Did you understand what was stated in it?
MR. MOORE: Yes, Ma’am.
THE COURT: Did Mr. Layman [defense counsel] answer any
questions you might have?
MR. MOORE: Yes.
THE COURT: And did you voluntarily sign your name to the
appropriate places?
MR. MOORE: Yes, Ma’am.
THE COURT: And Mr. Layman you went over the plea document
with your client?
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MR. LAYMAN: That’s correct.
THE COURT: And is it your belief that he understood everything
contained in it?
MR. LAYMAN: It is.
THE COURT: * * * So Mr. Moore, are you satisfied with the advice
of Mr. Layman?
MR. MOORE: Yes.
THE COURT: Has he talked to you about your case?
MR. MOORE: Yeah.
THE COURT: Has he done everything that you’ve asked him to do?
MR. MOORE: Yes Ma’am.
{¶ 3} Moore’s “Petition to Enter Plea of Guilty (Felony)” provided: “Based upon
the records currently available, it appears to both parties, that Defendant meets the
statutory requirements for mandatory community control.”
{¶ 4} The court ordered a presentence investigation and set disposition for March
19, 2018. At the sentencing hearing, defense counsel advised the court that Moore
“tested positive today on a urine screen for what I understand to be marijuana as well as
opiates.” Moore advised the court that he “got worried about today * * * and * * * I did
a little bit of opiates, and I did a little bit of dope yesterday.” The court advised Moore
that he had violated the conditions of his bond “by what you tested to today,” and further
noted that in November 2017, he tested positive for fentanyl in Shelby County. The court
indicated that “you were eligible for mandatory community control until this bond violation.
So your circumstances have changed for the Court. I don’t have to put you on
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Community Control.” The court further advised Moore that “at this point, you’re either
looking at [a] prison term or inpatient.”
{¶ 5} The following exchange occurred:
THE COURT: So the only option I’m going to give you is inpatient,
and that’s for six months sir.
MR. MOORE: Inpatient?
THE COURT: Your attorney has told me that that’s something
you’re willing to do. Is that right?
MR. MOORE: Yes Ma’am.
THE COURT: Are you going to do the hard – homework and hard
work?
MR. MOORE: Yes. Ma’am.
{¶ 6} Moore and defense counsel executed a “Notification to Defendant Upon
Sentencing” that provided in part as follows:
(B) The undersigned defendant in the above-captioned case,
being represented by counsel, by signing below does certify that he/she has
read this document and further does acknowledge notification, knowledge,
and understanding of the following components of sentencing which shall
apply if the Court determines at this sentencing hearing that a prison term
is not necessary or required in the above-captioned case.
(1) If after the sentencing hearing, the Court determines that a
community control sanction should be imposed, the Court shall impose a
community control sanction.
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***
(C) By signing this form, the undersigned defendant acknowledges
receiving a copy of this form at the time of sentencing and completely
reading it, and acknowledges his/her understanding of the foregoing as a
component of any sentence which is imposed by the Court.
(D) The undersigned defense attorney certifies that his/her client
has read the foregoing notification, he/she has discussed and explained he
ramifications and components of sentencing set forth herein with the
undersigned client and that said defendant understands the forgoing
sentencing components and ramifications at the time of sentencing.
{¶ 7} The court sentenced Moore to five years of community control and up to three
years of discretionary post-release control. One of the conditions of community control
was that Moore must “[s]uccessfully complete the Mon-Day Program with step down to
intensive outpatient program at Shelby County Counseling Center and follow all
recommendations of both.”
{¶ 8} On appeal, Moore asserts two assignments of error. His first assigned
error is as follows:
THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION BY
ORDERING MR. MOORE TO SERVE A 6 MONTH PERIOD OF
INCARCERATION.
{¶ 9} According to Moore, a “6-month sentence, in a case where Mr. Moore is a
first-time felon with an F5 drug conviction, and is no danger to society in general, is not in
line with the current sentencing guidelines drafted to reduce sentences for low level
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felons. Other minimum means were and remain available, such as EHM monitoring,
anger management, and counseling.”
{¶ 10} As this Court recently noted:
“R.C. 2953.08(G)(2) is the appellate standard of review for felony
sentences.” State v. Clemons, 2d Dist. Montgomery No. 26038, 2014-
Ohio-4248, ¶ 5, citing State v. Rodeffer, 2013-Ohio-5759, 5 N.E.3d 1069,
¶ 29 (2d Dist.). R.C. 2953.08(G)(2) provides that an appellate court may
increase, reduce, or otherwise modify a sentence, or may vacate the
sentence and remand the matter to the sentencing court for resentencing,
if the appellate court clearly and convincingly finds that the record does not
support certain statutory findings made by the sentencing court or that the
sentence imposed is contrary to law. State v. Beverly, 2d Dist. Clark No.
2015-CA-71, 2016-Ohio-8078, ¶ 9.
State v. Wiles, 2d Dist. Clark No. 2017-CA-69, 2018-Ohio-3077, ¶ 7.
{¶ 11} In Wiles, the trial court imposed mandatory community control and a six-
month jail term, and Wiles asserted that the “the trial court could not impose a jail term
for a fourth- or fifth-degree, non-violent offense as a matter of law.” Id. at ¶ 9.
{¶ 12} This Court determined as follows:
R.C. 2929.13(B)(1) concerns the sentence imposed on an offender
who is “convicted of or pleads guilty to a felony of the fourth or fifth degree
that is not an offense of violence or that is a qualifying assault offense.”
Division (B)(1)(a) of the statute requires the court to “sentence the offender
to a community control sanction of at least one year’s duration” (provided
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that the conditions listed in the division are satisfied). Community control
is required unless one of the situations listed in division (B)(1)(b)1 exists, in
which case the court has discretion to impose a prison term. * * *
***
* * * R.C. 2929.13(B)(1)(a) require[s] the court to impose a
“community control sanction.” “Serving time in a ‘jail’ as a part of
community control sanctions,” we have said, “is not the same as a prison
sentence.” (Citation omitted.) State v. Williams, 2d Dist. Montgomery No.
19026, 2002 WL 1332912, *2 (Jun. 14, 2002). “[A] ‘jail’ sentence is part of
a community control sentence and not a prison sentence.” Id. Under the
community control statutes, a six-month jail term is a community-control
sanction: a sixth-month jail term is a “community residential sanction,” R.C.
2929.16(A)(2), and a community-residential sanction is one form of
community control, R.C. 2929.15(A)(1) (saying that if a prison term is not
required, “the court may directly impose a sentence that consists of one or
more community control sanctions authorized pursuant to section 2929.16
[community-residential sanctions], 2929.17 [nonresidential sanctions], or
2929.18 [financial sanctions] of the Revised Code”). * * *
Id. at ¶ 10, 12.
{¶ 13} Due to his bond violation, it was within the court’s discretion to sentence
1
R.C. 2929.13(B)(1)(b) provides in part that the “court has discretion to impose a prison
term upon an offender who is convicted of or pleads guilty to a felony of the fourth or fifth
degree that is not an offense of violence or that is a qualifying assault offense if * * * (iii)
The offender violated a term of the conditions of bond as set by the court.”
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Moore to a prison term. The court, however, declined to do so. Pursuant to R.C.
2929.16(A)(1), a “term of up to six months at a community-based correctional facility,”
such as the MonDay Program, is also a community-residential sanction, like a six-month
jail term. In other words, the trial court sentenced Moore to a community control sanction
authorized by R.C. 2929.16. Accordingly, his first assignment of error is overruled.
{¶ 14} Moore’s second assignment of error is as follows:
MR. MOORE WAS NOT AFFORDED THE EFFECTIVE
ASSISTANCE OF COUNSEL RESULTING IN AN UNINFORMED GUILTY
PLEA.
{¶ 15} Moore asserts that he was “not advised of the possibility of a 6-month
period of incarceration prior to entering his plea. This fact is supported by the record in
that even the trial court advised Mr. Moore that this was a mandatory community control
case.” Moore argues that his trial counsel “was aware that community control could
include 6 months of jail or lockdown in the MonDay program, but such advice was not
given” to him. Moore also asserts that, as “a lay person,” he “was of the belief that he
would be released and not required to serve any period of incarceration, but only
community control.” Finally, Moore asserts that if he had “been fully advised he may
have taken the matter to trial, which like many cases could have resulted in an acquittal.”
{¶ 16} The following is well-settled:
When a convicted defendant alleges that he has been denied the
effective assistance of counsel, he must demonstrate that counsel's
performance was so deficient that he was not functioning as the counsel
guaranteed under the Sixth Amendment to the United States Constitution,
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and that counsel's errors prejudiced him so as to deprive him of a reliable
result. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d
674 (1984); State v. Bradley, 42 Ohio St. 3d 136, 538 N.E.2d 373 (1989). In
assessing counsel's performance, “an objective review of counsel's
performance must be conducted in light of professional norms prevailing
when the representation took place.” State v. Herring, 142 Ohio St. 3d 165,
2014-Ohio-5228, 28 N.E.3d 1217, ¶ 68, citing Bobby v. Van Hook, 558 U.S.
4, 7, 130 S. Ct. 13, 175 L. Ed. 2d 255 (2009); Strickland, at 688. “Under the
deficient-performance prong, the court should ‘indulge a strong
presumption that counsel's conduct falls within the wide range of
reasonable professional assistance.’ ” Herring at ¶ 68, quoting Strickland at
689. “Hindsight is not permitted to distort the assessment of what was
reasonable in light of counsel's perspective at the time, and a debatable
decision concerning trial strategy cannot form the basis of a finding of
ineffective assistance of counsel.” State v. Jordan, 2d Dist. Montgomery No.
27208, 2017-Ohio-7342, ¶ 21 (Citation omitted). * * *
State v. Kuck, 2d Dist. Darke No. 2017-CA-15, 2018-Ohio-3290, ¶ 8.
{¶ 17} Moore indicated at his plea hearing that he was satisfied with defense
counsel’s representation.
{¶ 18} It was Moore’s own conduct in using drugs while on bond that removed the
possibility of community control supervision without local time at MonDay. Moore’s
counsel was not required to explain every potential condition of community control. At
disposition, the court advised Moore of the consequences of his bond violation, and he
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expressed a willingness to participate in an inpatient treatment program for a six-month
period. Moore executed the “Notification to Defendant Upon Sentencing” and thereby
certified his understanding that, if the court determined that a prison term was not
necessary and that a community control sanction should be imposed, the court would
impose a community control sanction. Defense counsel further certified that Moore
understood the “sentencing components and ramifications at sentencing.” As noted
above, the trial court sentenced Moore to community control sanctions as authorized by
R.C. 2929.16. Moore’s assertion that he may have been acquitted had he gone to trial
is merely speculative; we have no basis to conclude that defense counsel’s performance
was deficient or that a trial would have resulted in an acquittal. Since ineffective
assistance of counsel is not demonstrated, Moore’s second assignment of error is
overruled.
{¶ 19} The judgment of the trial court is affirmed.
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WELBAUM, P.J. and TUCKER, J., concur.
Copies sent to:
Paul M. Watkins
Daniel F. Getty
Hon. Jeannine N. Pratt