State v. Banks , 2013 Ohio 649 ( 2013 )

[Cite as State v. Banks, 2013-Ohio-649.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
SENECA COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 13-12-18
v.
GEOFFREY M. BANKS, OPINION
DEFENDANT-APPELLANT.
Appeal from Seneca County Common Pleas Court
Trial Court No. 11-CR-0234
Judgment Affirmed in Part and Reversed in Part
Date of Decision: February 25, 2013
APPEARANCES:
Kent D. Nord for Appellant
Derek W. DeVine for Appellee
Case No. 13-12-18
ROGERS, J.
{¶1} Defendant-Appellant, Geoffrey Banks, appeals the judgment of the
Court of Common Pleas of Seneca County convicting him of three counts of
aggravated trafficking in drugs and sentencing him to three consecutive sentences
of five years for an aggregate prison term of 15 years. On appeal, Banks argues
that the trial court erred by: (1) improperly imposing consecutive sentences; (2)
referring to the incorrect statutory sections when orally imposing his mandatory
sentences; (3) handing down convictions that were against the manifest weight of
the evidence; (4) reaching a finding of aggravating circumstance that was against
the manifest weight of the evidence; and (5) allowing the State to refer to his
involvement in drug activities during closing argument. Banks also contends that
he was deprived of the effective assistance of counsel. For the reasons that follow,
we affirm in part and reverse in part the trial court’s judgment.
{¶2} On October 20, 2011, the Seneca County Grand Jury indicted Banks
on three counts of aggravated trafficking in drugs in violation of R.C.
2925.03(A)(1), a felony of the second degree. Each count included two
specifications. The first specification related to the amount of the drugs involved
and the second alleged that each count occurred within the vicinity of a school.
{¶3} The indictment arose from Banks’ alleged sale of oxycodone to a
confidential informant on three different occasions. Two of the counts were
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alleged to have occurred in Banks’ house at 449 South Jefferson Street in Tiffin,
Ohio while the other count was alleged to have occurred at 73 Melmore Street,
Tiffin, Ohio, which is a convenience store. The sales purportedly occurred on
April 14, 2010, April 25, 2010, and May 6, 2010.
{¶4} The jury trial of this matter commenced on March 12, 2012 and ended
on March 14, 2012. Detective Donald Joseph, of the Seneca County Sheriff’s
Office and the Metrich Drug Task Force, first testified as to his involvement in the
controlled buys that led to the indictment. He indicated that on April 14, 2010,
Craig Fell, a confidential informant, called Metrich and said that he could arrange
the purchase of oxycodone drugs from Banks. Fell then traveled to the task
force’s office, where Detective Joseph and other members of the task force,
pursuant to its protocols, searched Fell and his car for illegal drugs. The search
produced no drugs. Detective Joseph also placed recording equipment on Fell,
which allowed him to hear all of Fell’s interactions.
{¶5} Detective Joseph testified that he set up surveillance outside of 449
South Jefferson Street that allowed him to observe Fell enter the residence. Once
Fell was inside, Detective Joseph said that he heard Fell discuss the markings on
the oxycodone pills with an unidentified male voice. Detective Joseph then
observed Fell leave the residence and travel to another location where Fell handed
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over 34 pills of oxycodone to the task force. Detective Joseph also searched Fell
for other contraband and found nothing.
{¶6} After discussing the events of April 14, 2010, Detective Joseph
authenticated several of the State’s exhibits, including the following:
(1) A bag containing the pills that Fell turned over;
(2) A document containing the results of chemical tests run on the
pills;
(3) The audio recordings of the controlled buy and telephone calls
between Fell and Banks; and
(4) The photograph line-up in which Fell identified Banks as the
seller of the pills he purchased.
{¶7} Detective Joseph then testified that essentially the same process and
events occurred on April 25, 2010. Detective Joseph observed Fell drive his car to
449 South Jefferson Street. Banks walked outside and met Fell at his car. Later, a
car driven by Rachel Eckert arrived and both Fell and Banks walked to Eckert’s
car. Detective Joseph testified that he heard, via the surveillance equipment, the
parties discuss the drug transaction. After the deal, Fell turned over 30 oxycodone
pills to the task force. Detective Joseph authenticated the following exhibits
regarding the April 25, 2010 buy:
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(1) A bag containing the pills that Fell turned over after the
transaction;
(2) A document containing the results of chemical tests run on the
pills; and
(3) The audio recordings of the controlled buy and telephone calls
between Fell and Banks.
{¶8} Additionally, Detective Joseph discussed the events of May 6, 2010.
Again, essentially the same process and events occurred. Detective Joseph
observed Fell meet Banks at his residence. While Fell was there, Detective Joseph
heard Banks arrange for Fell to travel to a convenience store at 73 Melmore Street,
which is across the street from Calvert Elementary School. The drug task force
members maintained surveillance after Fell and Banks traveled to the convenience
store. The members heard Banks and Fell discuss the price of the pills over the
surveillance equipment. After this sale, Detective Joseph and the other drug task
force members arrested Banks. During his search of Banks, Detective Joseph
found the marked money that was issued to Fell for the purchase.
{¶9} Detective Joseph authenticated the following exhibits relating to the
May 6, 2010 controlled buy:
(1) The money seized from Banks’ pockets and the money issued
to Fell for the controlled buy;
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(2) A bag containing the pills that Fell turned over after the
transaction;
(3) A document containing the results of the chemical tests run on
the pills; and
(4) The audio recordings of the controlled buy and telephone calls
between Fell and Banks.
{¶10} Finally, Detective Joseph testified to the distance between Calvert
Elementary School and the locations where the controlled buys occurred. He
stated that both Banks’ house at 449 South Jefferson and the convenience store at
73 Melmore Street were within 1,000 feet of the school. Detective Joseph also
indicated that the school was operating at the times of the controlled buys.
{¶11} On cross-examination, Detective Joseph admitted that he did not see
the actual hand-to-hand transfer of the oxycodone pills and money during any of
the controlled buys. He also admitted that Eckert was present at the April 14,
2010 and April 25, 2010 transactions since she was the supplier of the pills for
Banks.
{¶12} In addition to Detective Joseph, several other police officers testified
to their involvement in the three controlled buys. Their testimonies all were
generally consistent with Detective Joseph’s testimony.
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{¶13} Seneca County Engineer Mark Zimmerman testified as to the
distance between the locations of the purported drug sales and Calvert Elementary.
He stated that he, along with other members of the Engineer’s Office, surveyed the
distances using GPS systems. As a result of the data collected, Engineer
Zimmerman concluded that both Banks’ residence at 449 South Jefferson Street
and the convenience store at 73 Melmore Street were within 1,000 feet of the
school. Dominic Helmstetter, the principal of Calvert Elementary School, also
testified that the school was open and operating on the dates of the alleged drug
sales.
{¶14} Fell was a critical witness for the State. He testified that he was
retained as a confidential informant by the Metrich Drug Task Force as part of a
plea bargain in an unrelated case. In regard to the April 14, 2010 drug buy, Fell
testified that Banks set the price for the pills and the meeting place for the deal.
This testimony was confirmed when the State played the recordings of two phone
calls between Banks and Fell discussing these matters. Fell then indicated that
when he went to Banks’ house for the buy, both Banks and Eckert were present.
During the transaction, Fell said he gave the money to Banks, who turned it over
to Eckert. Fell also testified that Banks physically handed the oxycodone over to
him. Also, Banks kept one of the pills as a type of finder’s fee. Finally, Fell
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authenticated the pills involved in this transaction as well as the photo line-up in
which he identified Banks as the seller in the transaction.
{¶15} Fell then moved on to discussing the April 25, 2010 drug buy.
Again, Fell testified that Banks set the price for the pills and the meeting place for
the deal. This testimony was confirmed when the State played the recordings of
two phone calls between Banks and Fell discussing these matters. Unlike the
April 14, 2010 buy, this one did not occur inside of the house at 449 South
Jefferson Street. Rather, when Fell arrived, Banks came out to meet Fell in his
car. The two sat in the car and waited for Eckert to arrive.
{¶16} When Eckert arrived, she pulled her car in front of the house at 449
South Jefferson Street. Both Banks and Fell got out of Fell’s car and went to
Eckert’s car, where the drug sale was closed. Fell testified that Banks counted the
pills he received from Eckert and then handed them to Fell. Further, Fell indicated
that he handed the money for the deal to Banks, who then turned it over to Eckert.
Fell again authenticated the pills that were involved in this deal.
{¶17} Finally, Fell testified regarding the drug sale on May 6, 2010. Again,
Banks set the price for the pills and the location of the buy. When Fell arrived at
the residence at 449 South Jefferson Street, Banks came out and got into Fell’s car.
They drove to the convenience store at 73 Melmore Street. When they arrived,
Fell parked outside the store and Banks handed over the oxycodone pills. After
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handing over the pills, Banks went into the store. Upon Banks’ return to the car,
Fell handed over the agreed amount of money for the pills, including a $10
finder’s fee for Banks.
{¶18} Throughout the transaction, Fell was wearing audio recording
equipment. The recording was played for the jury and Fell explained the
recording in the following exchange:
Q: Then there was some more discussion about the price of the
pills, sounded like it was “kind of high” but then someone said,
“Well, I already told ‘em I’d get ‘em.” Do you remember who said
that?
A: [Banks].
Q: Do you know what he was talking about at that point?
A: Uhm, getting the pills from somebody.
Q: Okay. Then there are some more discussions about, there
was an individual that said, “You run out, just call me. I can get
them the next day. No more than $10 apiece. Eventually, they’ll be
seven fifty to $8 a piece.” Do you remember that?
A: It was [Banks] and he was getting the price down for the
[oxycodone pills].
Q: So he was offering to sell you [oxycodone] in the future?
A: Yes. Trial Tr., p. 293-94.
Fell also authenticated the pills involved in this deal.
{¶19} On cross-examination, Fell admitted Eckert was present during the
first two deals and that that no pills or money exchanged hands until after Eckert
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arrived for the April 25, 2010 deal. However, Fell reiterated that Banks was
always the person who handed over the drugs and who took the money from Fell.
{¶20} Barbara Hoover, a forensic scientist with the Ohio Bureau of
Criminal Identification and Investigation (“BCI”), testified regarding the chemical
tests she ran on the pills handed over by Banks during the April 14, 2010 and
April 25, 2010 transactions. Hoover said that based on the tests she conducted,
she found that both sets of pills from these transactions contained oxycodone.
Shervonne Bufford, another BCI forensic scientist, testified as to the pills handed
over by Banks during the May 6, 2010 transaction. She stated that based on the
tests she conducted, she found that the pills contained oxycodone. Further, both
Hoover and Bufford testified the amount of the oxycodone in each sample was
several times greater than the normal prescribed amount.
{¶21} Eckert also testified regarding her involvement in the April 14, 2010
and April 25, 2010 controlled drug buys. On both occasions, she said that Banks
called her to inquire about the availability of oxycodone pills. Eckert said that she
could provide the pills and then met Banks at the 449 South Jefferson Street
address. She confirmed that the first drug deal occurred inside the residence at the
address and that the second one occurred by her car, which was parked outside of
the residence. Eckert indicated that she took the oxycodone pills and gave them to
Banks. She also testified that she saw Banks physically hand the pills to Fell who
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in exchange handed over the money to Banks. Eckert stated that Banks then
turned over the money to her.
{¶22} On cross-examination, Eckert admitted that the State reduced her
punishment in another case in exchange for her cooperation in the prosecution of
Banks. She also acknowledged her extensive involvement in the drug trade, which
has resulted in several convictions.
{¶23} Banks moved for an acquittal pursuant to Crim.R. 29(A), but the trial
court denied the motion. Banks offered no evidence in his defense. During the
State’s closing argument, the assistant prosecuting attorney played various
segments of the audio recordings from the purported drug deals. After playing one
segment, the assistant prosecuting attorney made the following statement:
You hear the defendant telling the informant, “You got that
money. I’ll just grab it and go jump in that car over there,” to go get
the drugs to transfer them to the informant.
It’s pretty clear in this audio, one, the defendant is getting
different drugs from different sources. He’s talking all about these
b[------] he’s getting drugs from. Trial Tr., p. 493.
At that point, Banks’ trial counsel objected. But, the trial court overruled it on the
basis that the prosecutor’s statements were argument, and not evidence.
{¶24} The jury returned guilty verdicts on all three counts alleged in the
indictment. It also found that all of the drug transactions occurred within 1,000
feet of a school. This matter then proceeded to sentencing. At the sentencing
hearing conducted on March 15, 2012, evidence was offered that Banks had
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previous felony convictions for forgery and theft, as well as multiple
misdemeanors for drug and alcohol offenses.
{¶25} In pronouncing Banks’ sentence, the trial court stated the following:
[T]he Court has looked at the factors and presumptions under
Revised Code Section 2929.13(D). And after consideration of all
factors, the Court finds that a prison term is not only consistent but
mandatory in this case, but is consistent with the purposes and
principals [sic] of felony sentencing under Revised Code 2929.11 *
* *. Sentencing Tr., p. 18-19.
The trial court handed down three consecutive prison terms of five years, for an
aggregate of 15 years. In its judgment entry of sentencing, the trial court
enumerated the following findings in regard to its imposition of consecutive
sentences:
The Court finds that consecutive sentences are necessary to
protect the public from future crime or to punish the defendant and
that consecutive sentences are not disproportionate to the seriousness
of the defendant’s conduct and to the danger the defendant poses to
the public.
The Court further finds that at least two of the multiple offenses
were committed as part of one or more courses of conduct, and the
harm caused by two or more of the offenses so committed was so
great or unusual that no single prison term for any of the offenses
committed as part of any of the courses of conduct adequately
reflects the seriousness of the defendant’s conduct.
The Court further finds that the defendant’s history of criminal
conduct demonstrates that consecutive sentences are necessary to
protect the public from future crime by the defendant. (Docket No.
76, p. 3).
The trial court also ordered that the defendant “pay restitution in the amount of
$635.00 to the [Metrich Drug Task Force].” (Docket No. 76, p. 6).
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{¶26} Banks filed this timely appeal, presenting the following assignments
of error for our review.
Assignment of Error No. I
THE TRIAL COURT IMPROPERLY SENTENCED THE
DEFENDANT WHEN THE TRIAL COURT ORDERED
CONSECUTIVE SENTENCES FOR EACH COUNT OF THE
INDICTMENT.
Assignment of Error No. II
THE CONVICTION IN COUNT ONE WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
Assignment of Error No. III
THE CONVICTION IN COUNT TWO WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
Assignment of Error No. IV
THE CONVICTION IN COUNT THREE WAS AGAINST THE
MANIFEST WEIGHT OF THE EVIDENCE.
Assignment of Error No. V
THE FINDING OF AGGRAVATED CIRCUMSTANCES IN
COUNT TWO OF THE TRANSACTION OCCURRING WITH
1000 FEET OF SCHOOL IS AGAINST THE MANIFEST
WEIGHT OF THE EVIDENCE.
Assignment of Error No. VI
THE TRIAL COURT ERRED WHEN IT FAILED TO
SUSTAIN THE OBJECTION OF DEFENSE COUNSEL
WHEN THE ASSISTANT PROSECUTING ATTORNEY
MADE ARGUMENTS ABOUT APPELLANT’S
INVOLVEMENT IN OTHER DRUG ACTIVITIES DURING
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CLOSING ARGUMENTS IN VIOLATION OF THE
APPELLANT’S RIGHTS UNDER THE FIFTH AMENDMENT
OF THE UNITED STATES CONSTITUTION.
Assignment of Error No. VII
GEOFFREY BANKS WAS DEPRIVED OF HIS RIGHTS TO
EFFECTIVE ASSISTANCE OF COUNSEL BY HIS
RETAINED COUNSEL, IN CONTRAVENTION OF THE
SIXTH AND FOURTEENTH AMENDMENTS TO THE
UNITED STATES CONSTITUTION, AND ARTICLE ONE,
SECTION TEN OF THE OHIO CONSTITUTION, WHICH
SEVERELY PREJUDICED THE RIGHTS OF APPELLANT
AND DID NOT FURTHER THE ADMINISTRATION OF
JUSTICE.
Assignment of Error No. VIII
DURING SENTENCING, THE TRIAL COURT STATED
THAT “AS A RESULT, THE COURT HAS LOOKED AT THE
FACTORS AND PRESUMPTIONS UNDER REVISED CODE
SECTION 2929.13(D). AND AFTER CONSIDERATION OF
ALL FACTORS, THE COURT FINDS THAT A PRISON
TERM IS NOT ONLY CONSISTENT BUT MANDATORY IN
THIS CASE, BUT IS CONSISTENT WITH THE PURPOSES
AND PRINCIPALS [SIC] OF FELONY SENTENCING
UNDER REVISED CODE 2929.11 …” (SENTENCING TR.
P18-19) SAID STATEMENT IS IN ERROR AND
THEREFORE THE SENTENCING SHOULD BE VOID.
{¶27} Due to the nature of Banks’ assignments of error, we elect to address
them out of order. We also elect to address the second, third, fourth, and fifth
assignments of error together.
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Assignments of Error Nos. II, III, IV, & V
{¶28} In his second, third, fourth, and fifth assignments of error, Banks
asserts that his convictions on all three counts alleged in the indictment and the
jury’s finding that the April 25, 2010 controlled buy occurred within 1,000 feet of
a school were against the manifest weight of the evidence. We disagree.
Manifest Weight Standard
{¶29} When an appellate court analyzes a conviction under the manifest
weight standard it must review the entire record, weigh all of the evidence and all
of the reasonable inferences, consider the credibility of the witnesses, and
determine whether, in resolving conflicts in the evidence, the fact finder clearly
lost its way and created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered. State v. Thompkins, 78 Ohio St.3d 380,
387 (1997), superseded by constitutional amendment on other grounds as stated by
State v. Smith, 80 Ohio St.3d 89 (1997), quoting State v. Martin, 20 Ohio App.3d
172, 175 (1st Dist. 1983). Only in exceptional cases, where the evidence “weighs
heavily against the conviction,” should an appellate court overturn the trial court’s
judgment. Id.Evidence Offered to Support Convictions
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{¶30} The State offered overwhelming evidence to support Banks’
convictions on all three counts alleged in the indictment. A review of the record
reveals that the State offered the following to prove Banks’ guilt:
(1) Fell testified that during the April 14, 2010, April 25, 2010, and May
6, 2010 transactions, he physically handed money to Banks and that Banks
physically handed oxycodone pills to him;
(2) Eckert testified that she personally observed this physical hand-off
during the April 14, 2010 and April 25, 2010 transactions;
(3) Detective Joseph testified that after the May 6, 2010 transaction was
completed and Banks was arrested, officers found the tracked money on his
person;
(4) A variety of audio recordings in which Banks is heard discussing the
transactions with Fell;
(5) The testimony of BCI’s forensic scientists that the pills Fell received
during the transactions were oxycodone and that they contained several
times the normal amount for a medical prescription;
(6) The actual pills that Fell received during the transactions; and
(7) The consistent testimonies of the Metrich Drug Task Force members
who were involved in the investigation.
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In light of this extensive evidence, we are unable to find that the jury’s findings of
guilt on all three counts alleged in the indictment were against the manifest weight
of the evidence.
Evidence Offered to Support School Vicinity Finding
{¶31} Again, the State offered overwhelming evidence to support the jury’s
finding that the April 25, 2010 drug buy occurred within 1,000 feet of Calvert
Elementary School. Detective Joseph, Fell, and Eckert testified that the drug
transaction occurred near Eckert’s car, which was parked immediately outside of
Banks’ residence at 449 South Jefferson Street. According to Detective Joseph
and Engineer Zimmerman, the house at 449 South Jefferson Street is within 1,000
feet of Calvert Elementary School. Meanwhile, Principal Helmstetter indicated
that the school was open and operating on the dates that the drug buys occurred.
In light of this evidence, we are unable to find that the jury’s finding was a
manifest miscarriage of justice. See State v. Speers, 11th Dist. No. 2003-A-2012,
2005-Ohio-4654, ¶ 27-30 (finding that sufficient evidence supported jury’s finding
that drug sale occurred within 1,000 feet of a school where detective testified as
such); State v. McDuffey, 3d Dist. No. 13-03-41, 2003-Ohio-6985, ¶ 8 (same).
{¶32} Accordingly, we overrule Banks’ second, third, fourth, and fifth
assignments of error.
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Assignment of Error No. VI
{¶33} In his sixth assignment of error, Banks contends that the trial court
erred in allowing the assistant prosecuting attorney to purportedly state that Banks
was involved in other drug transactions besides the ones involved in this matter.
We disagree.
{¶34} We initially note that Banks has failed to cite any legal authorities to
support his sixth assignment of error. This is violative of App.R. 16(A)(7), which
requires that the appellate provide “[a]n argument containing [his] contention * * *
with citations to the authorities * * * on which appellant relies.” Although App.R.
12(A)(2) gives us the authority to consequently disregard this assignment of error,
we elect to address it in the interests of justice. See State v. Thomas, 3d Dist. No.
10-10-17, 2011-Ohio-4337, ¶ 25.
{¶35} We read Banks’ sixth assignment of error as alleging that the State
engaged in prosecutorial misconduct during summation. The test for prosecutorial
misconduct is “whether [the prosecutor’s remarks] prejudicially affected
substantial rights of the accused.” State v. Lott, 51 Ohio St.3d 160, 165 (1990).
When applying this test in the context of closing statements, the courts have noted
that “[i]n the tension and turmoil of a trial, both the prosecution and the defense
have wide latitude in summation as to what the evidence has shown and what
reasonable inferences may be drawn * * *.” State v. Stephens, 24 Ohio St.2d 76,
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82 (1970); see also State v. Siefer, 3d Dist. No. 5-09-24, 2011-Ohio-1868, ¶ 46
(“In * * * closing statements, prosecutors are entitled to some latitude * * *.”).
Accordingly, we review the summation in its entirety to assess if “in the context of
the entire trial, it appears clear beyond a reasonable doubt that the jury would have
found the defendant guilty, even without the improper remarks.” Siefer at ¶ 46. If
this question is answered in the affirmative, then there is no prosecutorial
misconduct and no reversible error.
{¶36} Here, we find that the assistant prosecuting attorney’s statement
during summation was reasonably based on the evidence presented at trial. The
recordings offered by the State, Fell’s testimony, and Eckert’s testimony indicated
that Banks is intricately involved in the drug trade as a seller. Banks discussed his
suppliers with Fell and he even told Fell that based on his involvement in the drug
trade, he could get Fell whatever oxycodone pills he wanted. Based on this
evidence, it was entirely reasonable for the assistant prosecuting attorney to
remark that “[i]t’s pretty clear in this audio [that] the defendant is getting different
drugs from different sources.” Trial Tr., p. 493.
{¶37} Accordingly, we overrule Banks’ sixth assignment of error.
Assignment of Error No. VII
{¶38} In his seventh assignment of error, Banks argues that he was denied
the effective assistance of counsel in violation of the United States and Ohio
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Constitutions. In particular, Banks claims that his trial counsel’s failures to
introduce evidence that Eckert lived with him at the time of the purported deals
and to continually object to the assistant prosecuting attorney’s closing argument
rise to the level of ineffective assistance of counsel. We disagree.
{¶39} An ineffective assistance of counsel claim requires proof that trial
counsel’s performance fell below objective standards of reasonable representation
and that the defendant was prejudiced as a result. State v. Bradley, 42 Ohio St.3d
136 (1989), paragraph two of syllabus. To show that a defendant has been
prejudiced by counsel’s deficient performance, the defendant must prove that there
exists a reasonable probability that, but for counsel’s errors, the outcome at trial
would have been different. Id. at paragraph three of syllabus. “Reasonable
probability” is a probability sufficient to undermine confidence in the outcome of
the trial. State v. Waddy (1992), 63 Ohio St.3d 424, 433, superseded by
constitutional amendment on other grounds as recognized by State v. Smith, 80
Ohio St.3d 89, 103 (1997). Furthermore, the court must look to the totality of the
circumstances and not isolated instances of an allegedly deficient performance.
State v. Malone, 2d Dist. No. 10564 (Dec. 13, 1989). “Ineffective assistance does
not exist merely because counsel failed ‘to recognize the factual or legal basis for
a claim, or failed to raise the claim despite recognizing it.’” Id., quoting Smith v.
Murray, 477 U.S. 527, 106 S.Ct. 2661 (1986).
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{¶40} The introduction of evidence that Eckert lived in Banks’ residence at
449 South Jefferson Street would not have changed the trial outcome. Such a fact
would not reduce the import of the overwhelming evidence supporting convictions
on the counts relating to the April 14, 2010 and April 25, 2010 drug transactions.
Consequently, we find that the failure of Banks’ trial counsel to introduce this
evidence does not support a finding of ineffective assistance of counsel. Further,
as explained above, the assistant prosecuting attorney’s closing argument was
properly based on the evidence presented at trial. As such, we cannot find that the
failure of Banks’ trial counsel to continually object to the closing argument rises to
the level of ineffective assistance of counsel. See State v. O’Dell, 2d Dist. No.
22691, 2009-Ohio-1040, ¶ 51 (finding no ineffective assistance of counsel where
trial counsel did not object during summation that was proper).
{¶41} Accordingly, we overrule Banks’ seventh assignment of error.
Assignment of Error No. I
{¶42} In his first assignment of error, Banks claims that the trial court erred
in handing down consecutive sentences. We disagree.
{¶43} A reviewing court must conduct a meaningful review of the trial
court’s imposed sentence. State v. Daughenbaugh, 3d Dist. No. 16-07-07, 2007-
Ohio-5774, ¶ 8. Such review allows the Court to “modify or vacate the sentence
and remand the matter to the trial court for re-sentencing if the court clearly and
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convincingly finds that the record does not support the sentence or that the
sentence is otherwise contrary to law.” Id.{¶44} R.C. 2929.11 provides, in pertinent part, that the “overriding
purposes of felony sentencing are to protect the public from future crime and to
punish the offender.” R.C. 2929.11(A). In advancing these purposes, sentencing
courts are instructed to “consider the need for incapacitating the offender,
deterring the offender and others from future crime, rehabilitating the offender,
and making restitution to the victim of the offense, the public, or both.” Id.Meanwhile, R.C. 2929.11(B) states that felony sentences must be both
“commensurate with and not demeaning to the seriousness of the offender’s
conduct and its impact upon the victim” and consistent with sentences imposed in
similar cases.
{¶45} Additionally, when sentencing an offender, the trial court must
consider the factors set forth under R.C. 2929.12(B), (C), (D), and (E) relating to
the seriousness of the offender’s conduct and the likelihood of the offender’s
recidivism. R.C. 2929.12(A). However, the trial court is not required to make
specific findings of its consideration of the factors. State v. Kincade, 3d Dist. No.
16-09-20, 2010-Ohio-1497, ¶ 8.
{¶46} R.C. 2929.14(C) governs the imposition of consecutive prison terms,
and it provides, in pertinent part, as follows:
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(c)(4) If multiple prison terms are imposed on an offender for
convictions of multiple offenses, the court may require the offender
to serve the prison terms consecutively if the court finds that the
consecutive service is necessary to protect the public from future
crime or to punish the offender and that consecutive sentences are
not disproportionate to the seriousness of the offender’s conduct and
to the danger the offender poses to the public, and if the court finds
any of the following:
***
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender. R.C. 2929.14(C)(4)(c).
{¶47} Here, the trial court made the following findings regarding the
imposition of consecutive sentences:
The Court finds that consecutive sentences are necessary to protect
the public from future crime or to punish the defendant and that
consecutive sentences are not disproportionate to the seriousness of
the defendant’s conduct and to the danger the defendant poses to the
public.
***
The Court further finds that the defendant’s history of criminal
conduct demonstrates that consecutive sentences are necessary to
protect the public from future crime by the defendant. (Docket No.
76, p. 3).
A review of the record supports these findings.1 Banks has an extensive criminal
history, complete with felony forgery and theft convictions, as well as
misdemeanor drug and alcohol offenses, which indicates the continued threat he
1
We note that the trial court also found that the harm caused by Banks’ offenses “was so great or unusual
that no single prison term * * * adequately reflects the seriousness of the defendant’s conduct.” (Docket
No. 76, p. 3). A review of the record reveals that no harm occurred in this matter.
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poses to the public. In light of this, we cannot find that there is clear and
convincing evidence that the trial court’s imposition of consecutive sentences was
improper.
{¶48} Accordingly, we overrule Banks’ first assignment of error.
Assignment of Error No. VIII
{¶49} In his eighth assignment of error, Banks argues that since the trial
court referred to the incorrect section of the Revised Code when orally imposing
his mandatory sentence, the sentence is void. We disagree.
{¶50} We initially note that Banks’ argument in support of his eighth
assignment of error does not comply with App.R. 16(A)(7) because he has has
failed to cite any legal authorities. Although App.R. 12(A)(2) gives us the
authority to consequently disregard this assignment of error, we elect to address it
in the interests of justice. See Thomas, 2011-Ohio-4337, at ¶ 25.
{¶51} Here, although the trial court referred to the improper section when
orally imposing sentence, it did not cite to the improper section in its judgment
entry of sentencing. Further, we can find no case in which an appellate court has
vacated a sentence because the trial court failed to cite the appropriate Revised
Code section when orally imposing a mandatory sentence. As a result, we find no
reversible error based on the trial court’s failure to cite the proper statutory section
when orally imposing Banks’ sentence.
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Case No. 13-12-18
{¶52} Accordingly, we overrule Banks’ eighth assignment of error.
{¶53} In addition to Banks’ assignments of error, we sua sponte address
plain error in the trial court’s order of restitution to the Metrich Drug Task Force.
To have plain error under Crim.R. 52(B), there must be an error that is “obvious”
and that affects “substantial rights.” State v. Barnes, 94 Ohio St.3d 21, 27 (2002).
Plain error is to be used “with the utmost caution, under exceptional circumstances
and only to prevent a manifest miscarriage of justice.” Id.{¶54} R.C. 2929.18 governs a trial court’s authority to order restitution. It
provides, in relevant part, as follows:
Financial sanctions may be imposed pursuant to this section,
including, but not limited to, the following:
Restitution by the offender to the victim of the offender’s crime or
any survivor of the victim, in an amount based on the victim’s
economic loss. R.C. 2929.18(A)(1).
{¶55} In State v. Dietrich, 3d Dist. No. 1-10-76, 2011-Ohio-4347, we
addressed a similar factual scenario in which the trial court imposed restitution to
a drug task force after it had conducted a controlled buy targeting the defendant.
There, we found that “a governmental entity advancing its own funds to pursue a
drug buy through an informant” is not a victim under R.C. 2929.18(A)(1). Id. at ¶
31. Accordingly, we found plain error and vacated the trial court’s restitution
order.
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{¶56} Here, the trial court ordered Banks to “pay restitution in the amount
of $635.00 to [the Metrich Drug Task Force].” (Docket No. 76, p. 6). Under
Dietrich, the trial court was not authorized to issue this order since Metrich is not a
victim under R.C. 2929.18(A)(1). As a result, it was plainly erroneous for the trial
court to order restitution to benefit Metrich and we consequently vacate the
restitution award.
{¶57} Having found no error prejudicial to Banks, in the particulars
assigned and argued, in his first, second, third, fourth, fifth, sixth, seventh, and
eighth assignments of error, but having found plain error in the trial court’s award
of restitution to the Metrich Drug Task Force, we affirm in part, and reverse in
part, the trial court’s judgment.
Judgment Affirmed in Part
and Reversed in Part
WILLAMOWSKI and SHAW, J.J., concur.
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