State v. Danley , 2012 Ohio 3717 ( 2012 )

[Cite as State v. Danley, 2012-Ohio-3717.]
IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 24901
v. : T.C. NO. 09CR2831
YAVONNE DANLEY : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 17th day of August , 2012.
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KIRSTEN A. BRANDT, Atty. Reg. No. 0070162, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
JEFFREY T. GRAMZA, Atty. Reg. No. 0053392, Talbott Tower, Suite 1210, 131 N.
Ludlow Street, Dayton, Ohio 45402
Attorney for Defendant-Appellant
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FROELICH, J.
{¶ 1} Yavonne Danley appeals from a judgment of the Montgomery County
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Court of Common Pleas, which revoked her community control and sentenced her to three
years in prison. For the following reasons, the trial court’s judgment will be affirmed.
Procedural History
{¶ 2} In December 2009, Danley pled guilty to felonious assault, a second degree
felony. The trial court sentenced her to community control sanctions, which included,
among other requirements, that she complete a term of up to five years of intensive
probation supervision, that she abide by a curfew set by her probation officer, that she pay
her ordered child support, and that she abstain from the use of illegal drugs, drugs of abuse,
and alcohol. The court indicated that, if Danley violated any condition of her community
control, she faced a longer period of time under the same sanction, a more restrictive
sanction, or seven years in prison.
{¶ 3} In October 2011, Danley was notified that she had allegedly violated the
conditions of her community control, and she was ordered to appear in court to admit or
deny the following violations:
You violated Rule #1, “I shall refrain from violation of any law
(Federal, State, County and City). I shall get in touch immediately with my
probation officer if arrested or questioned by a law enforcement officer.”
Although not arrested, on September 21, 2011, you were listed as the suspect
in a felonious assault charge in which the victim was cut with a knife.
You violated Rule #6, “I shall not use or possess any controlled
substances or drugs of abuse. I consent to medical tests to determine if I
have violated this condition. (All medications need to be in original
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prescription bottles or packet.)” You violated this condition as you submitted
a urinalysis sample on September 29, 2011, which tested positive for
marijuana.
You violated the conditions of your supervision in that the police
report filed on September 21, 2011, occurred at approximately 11:30 p.m.,
which is past your stated curfew of 9:00 p.m. to 7:00 a.m. The police report
also indicates that you were under the influence of alcohol. During an office
visit on September 29, 2011, you admitted to drinking alcohol and using
illegal drugs three days prior to the visit. Furthermore, you have failed to
make payments toward your child support.
Danley initially denied the allegations and asked for an evidentiary hearing.
{¶ 4} The revocation hearing was held on November 7, 2011. At the beginning
of the hearing, the court noted that the matter had been discussed in chambers and that the
parties agreed that Danley would waive the evidentiary hearing and admit to one or more of
the violations. Danley then admitted to violating the requirement that she abide by a
curfew. Based on that admission, the court found that Danley had violated her community
control.
{¶ 5} Trial counsel advocated that Danley remain on community control. He
argued that Danley’s violation occurred because she was distraught over the death of her
grandmother, that Danley had worked hard to regain custody of her children, and that the
court should not consider the unproven allegations of a new felonious assault. Danley,
speaking on her own behalf, discussed both the reasons for her failure to comply with
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community control and her eagerness to continue with community control. Danley asked
that she be permitted to participate in the MonDay program, and she indicated that a bed
would be available to her in a few weeks.
{¶ 6} After considering Danley’s original charge of felonious assault, the new
allegations against her, and her history of compliance with the community control sanctions,
the trial court revoked Danley’s community control and sentenced her to three years in
prison. The court ordered that Danley be remanded to custody to begin serving her
sentence.
{¶ 7} In response to the court’s sentence, Danley repeatedly asked for time to
arrange for her child. She began, “Three years – * * * My kids in the car. Can I have two
weeks? Can I have two weeks to get my kids situated * * * please?”
{¶ 8} Danley’s counsel expressed surprise at the trial court’s sentence. He
stated:
I understand where the Court’s coming from, but (indiscernible) * * *
you said in your view. And (indiscernible) to me was, did I think that two
years would be fair. I didn’t realize that after looking at (indiscernible) prior
record (indiscernible) * * *.
* * * I’m asking the Court to reconsider the plea in light of your last
statements to me was that I know you were (indiscernible) the entire
(indiscernible) Greene County (indiscernible) record. One point to consider
(indiscernible) two, and then in addition, (indiscernible) the Court stay
execution for at least a brief period so that she can (indiscernible) situated.
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{¶ 9} The trial court asked the State if it opposed allowing Danley to report for
her sentence. The State asked that the court “not revisit the sentence as requested by
[defense counsel].” It further stated, “[A]s the Court has already noted, [Danley] knew that
there was a court date today. I believe she does have some family members here with her as
well.” The trial court denied Danley’s request and repeated its order that she be remanded
to custody.
{¶ 10} Danley appeals from the revocation of her community control, raising one
assignment of error.
Ineffective Assistance of Counsel
{¶ 11} In her sole assignment of error, she claims that she “received ineffective
assistance of counsel at the hearing on the revocation of her community control sanctions.”
{¶ 12} We review the alleged instances of ineffective assistance of trial counsel
under the two prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v. Bradley,
42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Pursuant to those cases, trial counsel is entitled
to a strong presumption that his or her conduct falls within the wide range of reasonable
assistance. Strickland, 466 U.S. at 688. To reverse a conviction based on ineffective
assistance of counsel, it must be demonstrated that trial counsel’s conduct fell below an
objective standard of reasonableness and that counsel’s errors were serious enough to create
a reasonable probability that, but for the errors, the result of the trial would have been
different. Id. 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
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strategy cannot form the basis of a finding of ineffective assistance of counsel. State v.
Cook, 65 Ohio St.3d 516, 524-525, 605 N.E.2d 70 (1992).
{¶ 13} Danley asserts that her trial counsel acted deficiently in either of two ways.
First, she states that her counsel “did not properly communicate what would be the Court’s
disposition to his client, so that Ms. Danley admitted a violation of community control
without being properly informed of what sentence would be imposed as a consequence of
that admission.” Alternatively, she asserts that, if the trial court had informed defense
counsel that it would impose a two-year sentence, her attorney nonetheless rendered
ineffective assistance by failing to “object vigorously” to the court’s imposition of a harsher
sentence and by failing to make a record of the court’s assurance to counsel that it would
sentence Danley to two years.
{¶ 14} Danley’s assertion that her attorney did not properly communicate the
sentence that she would receive is not supported by the record. The record contains no
information about the communications between Danley and her counsel regarding her
possible revocation of community control. Accordingly, we have no basis to evaluate
whether Danley’s counsel gave inaccurate information to Danley about the sentence she
could expect to receive if her community control were revoked.
{¶ 15} Nor can we conclude, based on the record before us, that Danley’s counsel
acted deficiently upon hearing the trial court impose a three-year sentence. Although many
of counsel’s statements to the court were indiscernible, it is apparent that counsel raised his
concern over the length of the court’s sentence. Counsel expressed that the court had
implied, in chambers, that it was considering a two-year sentence, as reflected by the court’s
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question to counsel if “two years would be fair.” Counsel also indicated his surprise
concerning the information that the court considered in reaching its sentence. Counsel
expressly asked that court to reconsider its judgment. He also asked, in the alternative, that
the court stay execution of the judgment, apparently so that Danley could make
arrangements for her children. The record does not support Danley’s contention that her
counsel failed to vigorously object to the trial court’s sentence.
{¶ 16} Finally, Danley claims that her counsel should have made a record of the
court’s promise to impose a two-year sentence, assuming the trial court did, in fact, make
such a promise. The record does not contain a transcript (or “statement of the evidence” per
App.R. 9(C)) of the discussion held in chambers prior to the revocation hearing. Thus, we
can only speculate about whether the trial court promised Danley a two-year sentence or,
instead, discussed possible options that the court was considering. In the absence of
evidence that the court promised to impose a two-year sentence, we cannot conclude that
counsel’s objection to Danley’s sentence was inadequate.
{¶ 17} The assignment of error is overruled.
Conclusion
{¶ 18} The trial court’s judgment will be affirmed.
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FAIN, J. and RICE, J., concur.
(Hon. Cynthia Westcott Rice, Eleventh District Court of Appeals, sitting by assignment of
the Chief Justice of the Supreme Court of Ohio).
Copies mailed to:
Kirsten A. Brandt
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Jeffrey T. Gramza
Hon. Timothy N. O’Connell