State v. Marcum , 2012 Ohio 2721 ( 2012 )

[Cite as State v. Marcum, 2012-Ohio-2721.]
STATE OF OHIO, COLUMBIANA COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO ) CASE NO. 10 CO 17)
PLAINTIFF-APPELLEE )
)
VS. ) OPINION AND
) JUDGMENT ENTRY
J.C. JOHN MARCUM )
)
DEFENDANT-APPELLANT )
CHARACTER OF PROCEEDINGS: Motion to Reopen Direct Appeal
JUDGMENT: Overruled.
APPEARANCES:
For Plaintiff-Appellee: Atty. Robert Herron
Columbiana County Prosecutor
Atty. John E. Gamble
Assistant Prosecuting Attorney
105 South Market Street
Lisbon, Ohio 44432
For Defendant-Appellant: J.C. John Marcum, Pro se
#583-801
Belmont Correctional Institution
P.O. Box 540
St. Clairsville, Ohio 43950
JUDGES:
Hon. Cheryl L. Waite
Hon. Joseph J. Vukovich
Hon. Mary DeGenaro
Dated: June 13, 2012
[Cite as State v. Marcum, 2012-Ohio-2721.]
PER CURIAM
{¶1} Appellant, J.C. John Marcum, Jr., has already appealed his Columbiana
County convictions of assault on a peace officer and aggravated burglary. In his
original appeal, Appellant challenged the sufficiency and the weight of the evidence
against him on both charges. He also challenged the admission of what he alleged
to be hearsay evidence and claimed prosecutorial misconduct during trial and in
closing. On review, we found sufficient evidence on each element of the offenses
charged and that the conviction was not against the weight of the evidence. Because
the alleged hearsay evidence was not offered for the truth of the matter asserted, it
was not hearsay within the meaning of the rule. While the prosecutor’s conduct was
not ideal, it did not rise to the level of misconduct resulting in prejudice that
necessitated reversal. We affirmed the judgment of the trial court in full.
{¶2} Appellant has now filed a timely application to reopen his appeal, to
which the state has not responded. The time for response has passed and we will
consider the matter on Appellant’s motion alone. Appellant now contends that he
received ineffective assistance of appellate counsel because counsel did not
challenge the duration of his sentence and did not challenge the imposition of
consecutive sentences. Although in Appellant’s first assignment of error he refers to
the word “sentence” in the singular, he does not specify which of the two sentences
imposed he seeks to challenge. Appellant offers no reason, argument, or law
supporting his contention that the “[s]everity of the sentence does not match the the
[sic] offense pursuant to [R.C.] 2929.11 et seq.” nor does he identify on what, within
the approximately forty-two subsections of R.C. 2929 encompassed by “2929.11 et
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seq.,” he is relying in making his argument. (1/3/12 Motion to Reopen, Assignments
of Error Nos. 1 and 2.) Similarly, Appellant does not offer any reason why the
imposition of consecutive sentences is unlawful in this instance. Appellant includes a
third assignment of error where he asserts that appellate counsel has not been in
regular contact with him. The presence, absence, or quality of contact between
attorney and client is not a legal or factual error properly before this Court on an
application to reopen an appeal. Hence, we address what Appellant identifies as
errors number one and two only to the extent that they refer to legal or factual issues
that may be considered by a reviewing court.
{¶3} Appellate Rule 26(B) governs applications for reopening. The rule
provides: “A defendant in a criminal case may apply for reopening of the appeal from
the judgment of conviction and sentence, based on a claim of ineffective assistance
of appellate counsel.” App.R. 26(B)(1). The defendant seeking to reopen must
provide “[o]ne or more assignments of error * * * that previously were not considered
on the merits in the case by any appellate court or that were considered on an
incomplete record because of appellate counsel’s deficient representation.” App.R.
26(B)(2)(c). The applicant must also provide a “sworn statement of the basis for the
claim that appellate counsel’s representation was deficient with respect to the
assignments of error * * * and the manner in which the deficiency prejudicially
affected the outcome of the appeal.” App.R. 26(B)(2)(d).
{¶4} To justify reopening his appeal, Appellant “bears the burden of
establishing that there was a ‘genuine issue’ as to whether he has a ‘colorable claim’
of ineffective assistance of counsel on appeal.” State v. Spivey, 84 Ohio St.3d 24,
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25, 701 N.E.2d 696 (1998), accord State v. Sheppard, 91 Ohio St.3d 329, 744,
N.E.2d 770 (2001). “The two-pronged analysis found in Strickland v. Washington
(1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, is the appropriate standard to
assess whether [Appellant] has raised a ‘genuine issue’ as to the ineffectiveness of
appellate counsel in his request to reopen under App. R. 26(B).” Sheppard at 330.
To prevail on a claim of ineffective assistance of counsel Appellant must show not
only that counsel's performance was deficient, but also that he was prejudiced by that
deficiency. Strickland, supra; see also State v. Williams, 99 Ohio St.3d 493, 2003-
Ohio-4396, 794 N.E.2d 27, ¶107. “Deficient performance” is performance that falls
below an objective standard of reasonable representation. “Prejudice,” in this
context, is defined as a reasonable probability that, but for counsel's errors, the result
of the proceeding would have been different. Strickland at 687-688, 694. Moreover,
in evaluating the performance of counsel, “strategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually
unchallengeable; and strategic choices made after less than complete investigation
are reasonable precisely to the extent that reasonable professional judgments
support the limitations on investigation.” Id. at 690-691. In support of an application
for reopening Appellant must “prove that his 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.” Sheppard, supra, at 330, citing State v.
Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three of the syllabus.
{¶5} Appellant was charged with and convicted of assaulting a peace officer
while in the commission of his duties, a violation of R.C. 2903.13(C)(3), which
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provides: “No person shall knowingly cause or attempt to cause physical harm to
another * * * [i]f the victim of the offense is a peace officer * * * while in the
performance of their official duties, assault is a felony of the fourth degree.”
{¶6} Appellant was also convicted of aggravated burglary, a violation of R.C.
2911.11(A), which provides: “No person, by force, stealth, or deception, shall
trespass in an occupied structure * * * when another person other than an accomplice
of the offender is present, with purpose to commit in the structure * * * any criminal
offence, if any of the following apply: (1) The offender inflicts, or attempts or
threatens to inflict physical harm on another.”
{¶7} Pursuant to R.C. 2911.11, the distinction between “burglary” and
“aggravated burglary” is the element of physical harm in or accompanying the
criminal offense committed or to be committed within the occupied structure. In
conjunction with the aggravated burglary, Appellant was charged with aggravated
menacing, a violation of R.C. 2903.21(A), which states, “[n]o person shall knowingly
cause another to believe that the offender will cause serious physical harm to the
person or property of the other person, the other person’s unborn, or a member of the
other person’s immediate family.” A conviction on aggravated menacing satisfies the
harm element of aggravated burglary. A guilty verdict on each count was returned by
the jury on May 4, 2010. Appellant was sentenced and judgment entered on May 5,
2010. Appellant received fourteen months of incarceration on the assault charge and
nine years on the aggravated burglary charge, to be served consecutively.
{¶8} Ohio sentencing ranges and sentencing goals are established by the
legislature. In 1996 the Ohio legislature passed a comprehensive sentencing reform
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bill, intended to provide truth in sentencing by introducing certainty and
proportionality to felony sentencing. 146 Ohio Laws, Part IV, 7136, effective July 1,
1996 (“S.B. 2”); State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470,
¶34. The resulting scheme included both over-arching purposes for felony
sentencing, R.C. 2929.11, and factors for a court to consider, R.C. 2929.12, when
exercising its discretion in compliance with the principles and purposes established
by the legislature. Foster, ¶36-42. The legislation established presumptions for and
against prison terms and community control as well as requirements that the trial
court make specific findings before imposing more than a minimum or maximum
prison term and when imposing consecutive sentences. All provisions of S.B. 2 were
applicable only to offenses committed on or after July 1, 1996. State v. Rush, 83
Ohio St.3d 53, 697 N.E.2d 634 (1998), paragraph two of the syllabus.
{¶9} Subsequent to Ohio’s sentencing reform a majority of the United States
Supreme Court held, in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147
L.Ed.2d 435 (2000), that any fact used to increase the penalty for a crime beyond the
statutory maximum must be submitted to a jury and proven beyond a reasonable
doubt whether the sentence is imposed at the federal or at the state level. Id. at 476.
“[I]t is unconstitutional for a legislature to remove from the jury the assessment of
facts that increase the prescribed range of penalties to which a criminal defendant is
exposed.” Id. at 490. Applying these principles the United States Supreme Court
found unconstitutional a New Jersey hate crime statute that allowed a trial judge to
impose an extended term of imprisonment if the trial judge found by a preponderance
of the evidence at sentencing that the defendant was convicted of a crime committed
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with the purpose to intimidate an individual or group due to his, her, or their, race,
color, ethnicity, gender, sexual orientation, religion, or disability. Id. at 468-469.
{¶10} Subsequently, in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531,
159 L.Ed.2d 403 (2004), the same majority invalidated a Washington state case in
which the trial court imposed an “exceptional” sentence after a judicial determination
that the defendant had acted with “deliberate cruelty” resulting in a total sentence of
ninety months, thirty-seven months longer than the maximum penalty that could
otherwise be imposed for a “Class-B” felony in Washington at that time. Id. at 297-
298. The Washington statute, like the New Jersey statute, required the trial judge to
make a specific factual finding before imposing a penalty beyond the statutory
maximum for the conviction and therefore violated the Sixth Amendment. The
Blakely Court emphasized that the relevant statutory maximum when evaluating the
constitutionality of a sentencing statute or sentence under Apprendi “is not the
maximum sentence a judge may impose after finding additional facts, but the
maximum he may impose without any additional findings.” (Emphasis sic.) Id. at
303-304. Whether, under the relevant statutory scheme, a “judge’s authority to
impose an enhanced sentence depends on finding a specified fact * * * one of
several specified facts * * * or any aggravating fact * * * it remains the case that the
jury’s verdict alone does not authorize the sentence” because “[t]he judge acquires
that authority only upon finding some additional fact.” (Emphasis sic.) Id. at 305.
{¶11} Both Apprendi and Blakely refute the use of sentencing enhancements
that require judicial fact-finding, however, both opinions also emphasize that while
judicial fact-finding is prohibited by the Sixth Amendment, judicial discretion is not. In
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Apprendi the Court explained that “nothing in history suggests that it is impermissible
for judges to exercise discretion - taking into consideration various factors relating
both to offense and offender - in imposing a judgment within the range prescribed by
statute. We have often noted that judges in this country have long exercised
discretion of this nature in imposing sentence within statutory limits in the individual
case.” (Emphasis sic.) Apprendi at 481. In Blakely the majority reiterates that
statutory schemes that allow judicial discretion in sentencing but do not compel
judicial fact finding are constitutional. Blakely at 305.
{¶12} Applying the principles of Apprendi and Blakely, the United States
Supreme Court determined that the sentencing guidelines promulgated by the federal
sentencing commission under the 1984 Sentencing Reform Act violated the Sixth
Amendment. U.S. v. Booker, 543 U.S. 220, 226, 125 S.Ct. 738, 160 L.Ed.2d 261(2005). The Booker Court stated “[w]e have never doubted the authority of a judge to
exercise broad discretion in imposing a sentence within a statutory range;” “[i]f the
Guidelines as currently written could be read as merely advisory * * * their use would
not implicate the Sixth Amendment.” Id. at 233. The remedy the Booker Court
devised, having determined that the provisions of the statute were severable, was to
sever and invalidate the portions of the Sentencing Reform Act of 1984 that had the
effect of making the Guidelines mandatory. Id. As a result, the sentencing scheme
now grants full discretion to federal judges to impose any sentence allowed under the
statutory range without making specific findings. “[D]istrict courts, while not bound to
apply the Guidelines, must consult those Guidelines and take them into account
when sentencing” which helps “to avoid excessive sentencing disparities, while
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maintaining flexibility sufficient to individualize sentences where necessary.” Id. at
264-265.
{¶13} The Ohio Supreme Court applied Apprendi, Blakely, and Booker to
Ohio’s Sentencing Reform Act, S.B. 2, in State v. Foster, 109 Ohio St.3d 1, 2006-
Ohio-856, 845 N.E.2d 470. The Court conducted an analysis similar to that found in
Booker and held that the sections of Ohio’s Sentencing Reform Act governing the
imposition of more than minimum terms, maximum terms, consecutive terms, penalty
enhancements for repeat violent offenders and major drug offenders, and the
imposition of consecutive prison terms all violated the Sixth Amendment by requiring
judicial fact-finding. The Court determined that these provisions were severable.
The purposes of felony sentencing, established by R.C. 2929.11, and the
seriousness and recidivism factors included in R.C. 2929.12, both of which were
stated in general terms and did not require findings, were undisturbed by the Foster
Court’s analysis. The Court concluded its analysis by holding that “judicial fact-
finding is not required before a prison term may be imposed within the basic ranges
of R.C. 2929.14(A) based upon a jury verdict or admission of the defendant”; “judicial
fact-finding is not required before imposition of consecutive prison terms”; and “trial
courts have full discretion to impose a prison sentence within the statutory range and
are no longer required to make findings or give their reasons for imposing maximum,
consecutive, or more than the minimum sentences.” Foster at ¶99-100. After Foster,
Ohio trial court judges “have full discretion to impose a prison sentence within the
statutory range and are no longer required to make findings or give their reasons for
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imposing * * * consecutive [sentences].” State v. Mathis, 109 Ohio St.3d 54, 2006-
Ohio-855, 846 N.E.2d 1, paragraph three of the syllabus.
{¶14} Three years after the Ohio Supreme Court found the Ohio consecutive
sentencing provisions unconstitutional, the United States Supreme Court ruled in
Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009), that a state
statute requiring judicial findings prior to the imposition of consecutive sentences did
not violate the Sixth Amendment under Blakely and Apprendi. The Court evaluated
the statutory scheme adopted by Oregon, which provides that sentences run
concurrently unless the judge finds statutorily described facts which permit, but do
not require, consecutive terms. The Court held that because the elements of the
individual sentences were found beyond a reasonable doubt, by a jury, the
sentencing provision did not implicate the due process concerns raised by the
sentencing enhancements involved in Blakely and Apprendi and their predecessors.
{¶15} The Ohio State Supreme Court then revisited Foster in State v. Hodge,
and found “[t]he United States Supreme Court’s decision in Oregon v. Ice * * * does
not revive Ohio’s former consecutive-sentencing statutory provisions * * * which were
held unconstitutional in State v. Foster,” and therefore “[t]rial court judges are not
obligated to engage in judicial fact-finding prior to imposing consecutive sentences
unless the General Assembly enacts new legislation requiring that findings be made.”
(Internal citations omitted.) State v. Hodge, 128 Ohio St.3d 1, 2010-Ohio-6320, 941
N.E.2d 768, paragraphs two and three of the syllabus. In 2011 the Ohio Legislature
passed H.B. 86, effective September 30, 2011, which re-codified the exact
conditional language severed from R.C. 2929.14(E)(4) by the Ohio Supreme Court in
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Foster. No further decision on the issue of consecutive sentences has been released
by the Ohio Supreme Court since Hodge and the subsequent re-enactment of R.C.
2929.14(E)(4).
{¶16} Appellant was tried and convicted of offenses committed on December
9, 2009. The offenses occurred three years after the Ohio Supreme Court
invalidated the consecutive sentencing provisions of R.C. 2929.14(E)(4) and the
more than minimum sentencing requirements of R.C. 2929.14(B) in Foster and two
years before the consecutive sentencing provisions were re-codified by the
legislature. The sentencing provisions in effect when Appellant committed assault
and aggravated burglary and applicable to his sentence are those enacted by the
legislature in S.B. 2, as amended by the Supreme Court in Foster. At the time, under
R.C. 2929.14 the penalty range for assault on a peace officer, a fourth degree felony,
was six to eighteen months and the penalty range for aggravated burglary, a first
degree felony, was three to eleven years. Appellant was sentenced to fourteen
months for the assault and nine years for the aggravated burglary. Both sentences
were within the applicable statutory ranges.
{¶17} Under Foster, Mathis, Blakely, and Apprendi the trial court has
complete discretion to impose a sentence within the statutory range. The trial court
could have exercised its discretion in this instance to impose a maximum of eighteen
months for the assault and a maximum of eleven years for the aggravated burglary.
It did not choose to do so. There is nothing in this record that suggests error with
regard to sentences within the statutory range. Appellate counsel’s decision not to
challenge the duration of Appellant’s sentences and the application of consecutive
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sentences is not error where, as here, the sentences were entirely compliant with
applicable law. Appellant was in no way prejudiced by the fact that appellate counsel
did not raise an argument that had no chance of success. Based on the record
before us, appellate counsel’s performance was not deficient.
{¶18} Appellant received effective assistance of counsel in his appeal. There
was no reasonable probability of success had counsel challenged the duration and
consecutive application of Appellant’s sentences. Accordingly, Appellant’s
application for reopening is denied.
Waite, P.J., concurs.
Vukovich, J., concurs.
DeGenaro, J., concurs.