State v. Baker ( 2013 )

[Cite as State v. Baker, 2013-Ohio-2553.]
STATE OF OHIO, BELMONT COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, )
) CASE NO. 11 BE 40
PLAINTIFF-APPELLEE, )
) OPINION
- VS - ) AND
) JUDGMENT ENTRY
CRAIG DEAN BAKER, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Application for Reopening.
JUDGMENT: Application for Reopening Denied.
APPEARANCES:
For Plaintiff-Appellee: Attorney Christopher Berhalter
Prosecuting Attorney
Attorney Daniel Fry
Assistant Prosecuting Attorney
147-A West Main Street
St. Clairsville, Ohio 43950
For Defendant-Appellant: Craig Dean Baker, Pro se
#A614-660
Belmont Correctional Institution
P.O. Box 540
St. Clairsville, Ohio 43950
JUDGES:
Hon. Joseph J. Vukovich
Hon. Gene Donofrio
Hon. Mary DeGenaro
Dated: June 17, 2013
[Cite as State v. Baker, 2013-Ohio-2553.]
PER CURIAM.
¶{1} Defendant-appellant Craig Dean Baker requests that we reopen his
appeal, claiming that appellate counsel should have argued that his total sentence of
24 years was unduly harsh and thus an abuse of discretion. As established infra, this
contention was essentially raised by appellate counsel and addressed by this court in
the direct appeal. Consequently, the application to reopen is denied.
STATEMENT OF THE CASE
¶{2} Appellant pled guilty in the Belmont County Common Pleas Court to four
counts of unlawful sexual conduct with a minor. The offenses were second degree
felonies because he was more than ten years older than the victim and because he
had been previously convicted of a certain sex offense. See R.C. 2907.02(B)(3),(4).
Specifically, he was 42 years old while the victim was 14 years old, and he had been
convicted in 2006 of a sex offense involving a minor (for which he was a registered sex
offender). The court sentenced him to six years on each count and ordered the
sentences to be served consecutively for a total of 24 years.
¶{3} In the direct appeal, appellate counsel raised two assignments of error:
(1) the trial court erred and abused its discretion in imposing consecutive sentences;
and (2) trial counsel rendered ineffective assistance at sentencing by not verbalizing
the written request for concurrent sentences, by failing to present mitigating evidence,
and by failing to inquire into whether a mental health evaluation had been conducted.
On March 1, 2013, we overruled both assignments of error and upheld the trial court’s
judgment. State v. Baker, 7th Dist. No. 11BE40, 2013-Ohio-900. On May 15, 2012,
appellant filed the within timely application to reopen his appeal under App.R. 26(B).
LAW
¶{4} A defendant in a criminal case may apply for reopening of the appeal
from the judgment of conviction and sentence based upon a claim of ineffective
assistance of counsel. App.R. 26(B)(1). The defendant must set forth one or more
assignments of error or arguments in support of assignments of error that previously
were not considered on the merits or that were considered on an incomplete record
due to appellate counsel's deficient performance. App.R. 26(B)(2)(c). An application
for reopening shall be granted if there is a genuine issue as to whether the defendant
was deprived of the effective assistance of counsel on appeal. App.R. 26(B)(5).
-2-
¶{5} Thus, in determining whether a defendant-appellant has received
ineffective assistance of appellate counsel, we apply the two-pronged analysis from
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984):
(1) conduct that fell below an objective standard of reasonableness, and (2) a
reasonable probability the results would have been different. State v. Were, 120 Ohio
St.3d 85, 2008-Ohio-5277, 896 N.E.2d 699, ¶ 10-11. Thus, the applicant must prove
that counsel was deficient for failing to raise the issues he now presents and that there
was a reasonable probability of success had he presented those claims on appeal. Id.
at ¶ 11, citing State v. Sheppard, 91 Ohio St.3d 329, 330, 744 N.E.2d 770 (2001). In
seeking reopening, the appellant bears the burden of demonstrating that there is a
“genuine issue” as to whether he has a “colorable claim” of ineffective assistance of
appellate counsel. Id., citing State v. Spivey, 84 Ohio St.3d 24, 25, 701 N.E.2d 696(1998).
¶{6} Appellate counsel need not raise every possible issue in order to render
constitutionally effective assistance. State v. Tenace, 109 Ohio St.3d 451, 2006-Ohio-
2987, 849 N.E.2d 1, ¶ 7, citing Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77
L.Ed.2d 987 (1983). Counsel is expected to focus on strong arguments and winnow
out the weaker ones as it is said that the receptiveness of the reviewing court declines
as the number of assigned errors increases. State v. Adams, 7th Dist. No. 08MA246,
2012-Ohio-2719, ¶ 8-12, citing Jones, 463 U.S. at 751–752 (“Multiplicity hints at lack of
confidence in any one [argument]”).
ANALYSIS
¶{7} The sole assignment of error appellant claims that appellate counsel was
deficient for failing to raise is:
¶{8} “APPELLANT’S SENTENCE OF 24 YEARS WAS UNDULY HARSH
AND NOT SUPPORTED BY THE RECORD, AND THEREFORE CONSTITUTES AN
ABUSE OF THE TRIAL COURT’S DISCRETION.”
¶{9} Besides stating that appellate counsel was deficient for failing to specify
this issue, appellant claims that the outcome of the appeal would have been different
had the issue been raised. However, appellate counsel essentially raised this issue
and this court essentially addressed this issue in the direct appeal. That is, the first
assignment of error set forth by counsel was:
-3-
¶{10} “THE TRIAL COURT COMMITTED ERROR IN IMPOSING
CONSECUTIVE SENTENCES BECAUSE THE TRIAL COURT ABUSED ITS
DISCRETION IN IMPOSING SAID SENTENCES UPON THE APPELLANT.”
¶{11} In support of this assignment of error, appellate counsel urged that the
trial court unreasonably weighed the sentencing factors and made arguments
suggesting that a less harsh sentence was warranted. The assignment and the
arguments presented in support thereof are equivalent to the current contention that
the aggregate sentence of 24 years was an abuse of discretion because it is unduly
harsh.
¶{12} Regardless, this court addressed the propriety of appellant’s sentence
and analyzed whether it was unreasonable, arbitrary, or unconscionable and thus an
abuse of discretion. See Baker, 7th Dist. No. 11BE40, ¶ 8, citing State v. Adams, 62
Ohio St.2d 151, 157, 404 N.E.2d 144 (1980) (setting forth the test of an abuse of
discretion). We began by setting forth the test for reviewing sentences. Id., citing
State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, at ¶ 4, 17-18,
and citing State v. Mann, 7th Dist. No. 08JE12, 2008-Ohio-6365, ¶ 24.
¶{13} We noted in sentencing appellant, the trial court considered the purposes
and principles of sentences, weighed the seriousness and recidivism factors, and set
forth the factors it found pertinent. Id. We detailed the purposes and principles of
sentencing under R.C. 2929.11 and the seriousness and recidivism factors under R.C.
2929.12. Id. at ¶ 10-14.
¶{14} We then applied the factors to appellant’s case. Id. at ¶ 15-20.
¶{15} For instance, the victim was 14, the age difference was great, she
suffered emotional harm, the offense was facilitated by his relationship with the victim
(which was cultivated over the internet through means including cyber-sex and
exchanged photographs of their private parts), he traveled from Iowa by bus to sleep
in her woods and sneak into her house after her mother left for work, he admitted she
seemed even younger in person, he had a 2006 conviction in Iowa for a sex offense
involving a minor (for which he had been sentenced to ten years and released early on
parole), he was a registered sex offender and thus failed to respond to a prior sanction
for a similar offense, and he also had prior convictions of domestic violence, theft, and
drunk driving. See Id. We recognized that the trial court opined that appellant lacked
-4-
genuine remorse and concern for the victim and that he was a threat to society for
future sexually deviant acts with minors due to his established pattern of sexual
violations and his minimizations of his actions. Id. at ¶ 29.
¶{16} Finally, we pointed out that appellant was sentenced to consecutive six-
year sentences for a total of 24 years in prison where he faced the possibility of being
sentenced to consecutive eight-year sentences for a total of 32 years in prison. Id. at
¶ 9, 21. We concluded that it was not unreasonable, unconscionable, or arbitrary to
sentence appellant consecutively. Id. at ¶ 21. Thus, this court had already addressed
the issue of whether the total sentence of 24 years was an abuse of discretion. The
application for reopening is thus denied.
¶{17} We note that, at the end of the application, appellant states in a
conclusion that he “also has two other error[s] which the Appellant believes would be a
valid assignment of error in an appeal.” He then mentions ineffective assistance of
counsel in failing to file a suppression motion and an abuse of discretion at sentencing
in failing to consider R.C. 2929.11(B), stating that the sentence was grossly
disproportionate.
¶{18} However, appellant failed to meet his burden to establish a colorable
claim of ineffective assistance on these matters by merely phrasing a potential
assignment of error. For instance, there is no claim regarding why a suppression
motion would have been required to avoid rendering deficient assistance (i.e. what
should have been suppressed) or why the motion would have been outcome-
determinative. In fact, if no suppression motion was filed, then there was no
suppression hearing, and appellant pled guilty, so there was no trial record. Appellant
has failed to establish that there is an indication in the record that appellate counsel
could have a raised a suppression issue on direct appeal.
¶{19} As to his proportionality suggestion, this court reviewed the provisions of
R.C. 2929.11 in the direct appeal. We cited to R.C. 2929.11(B) and specified that the
sentence should be commensurate with and not demeaning to the seriousness of the
offender’s conduct and its impact upon the victim and consistent with sentences
imposed for similar crimes committed by similar offenders. Baker, 7th Dist. No.
11BE40, ¶ 8, 10. We then conducted a general review for abuse of discretion in
imposing four six-year sentences consecutively. There is no indication that had
-5-
appellate counsel pinpointed the proportionality aspect of the purposes and principles
of sentencing, this court would have reversed. As aforementioned, counsel is
expected to focus on strong arguments and winnow out the weaker ones. State v.
Adams, 7th Dist. No. 08MA246, 2012-Ohio-2719, ¶ 8-12, citing Jones, 463 U.S. at
751-752.
¶{20} In addition, no cases with similar defendants and circumstances are
mentioned as existing to support a proportionality challenge. Thus, no colorable claim
concerning ineffectiveness on the topic of proportionality was presented in the
reopening application. See, e.g. State v. Marcum, 7th Dist. No. 10CO17, 2012-Ohio-
2721 (where appellant sought reopening because appellate counsel did not raise any
sentencing issue).
¶{21} In fact, appellant’s application for reopening does not even allege that
counsel was deficient or that outcome determinative prejudice exists with regards to
these two final potential assignments of error. Likewise, the sworn statement required
by App.R. 26(B)(2)(d) does not mention these final two issues. Rather, his allegations
of ineffective assistance of appellate counsel revolve around the unduly harsh
sentence claim, and the other two appear to be mentioned merely as potential issues
should reopening be granted on the main issue. However, we concluded supra that
the main issue was in essence already raised and in fact already analyzed.
¶{22} For all of these reasons, the application for reopening is hereby denied.
Vukovich, J., concurs.
Donofrio, J., concurs.
DeGenaro, P.J., concurs.