State v. Williams ( 2011 )

[Cite as State v. Williams, 2011-Ohio-3290.]
IN THE COURT OF APPEALS OF MIAMI COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 10CA28
vs. : T.C. CASE NO. 10CR68
BOBBY A. WILLIAMS : (Criminal Appeal from
Common Pleas Court)
Defendant-Appellant :
. . . . . . . . .
O P I N I O N
Rendered on the 30th day of June, 2011.
. . . . . . . . .
James Bennett, Prosecutor, 201 West Main Street, Troy, OH 45373
Attorney for Plaintiff-Appellee
Stephanie A. Gunter. Atty. Reg. No.0070436, 429 N. Main Street,
Piqua, OH 45356
Attorney for Defendant-Appellant
. . . . . . . . .
GRADY, P.J.:
{¶ 1} On March 10, 2010, M.S. was standing on the back patio
of her home in Piqua, Ohio, smoking a cigarette, when Defendant
Bobby Williams walked up and asked M.S. to come over to him. When
M.S. approached Defendant, he extended his hand and introduced
himself as her neighbor. When M.S. shook Defendant’s hand, he
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grabbed her and forcibly restrained her while touching her breast
underneath her shirt.
{¶ 2} Defendant was indicted on one count of gross sexual
imposition in violation of R.C. 2907.05(A)(1), a felony of the
fourth degree. Defendant was found guilty following a jury trial.
The trial court sentenced Defendant to eighteen months in prison
and classified him as a Tier I sexual offender.
{¶ 3} Defendant appealed to this court from his conviction
and sentence. Defendant’s appellate counsel filed an Anders
brief, Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396,
19 L.Ed.2d 493, stating that she could find no meritorious issues
for appellate review. We notified Defendant of his appellate
counsel’s representations and afforded him ample time to file a
pro se brief. None has been received. This case is now before
us for our independent review of the record. Penson v. Ohio (1988),
488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300.
{¶ 4} Defendant’s appellate counsel has identified two
possible issues for appeal, the first of which raises an issue
concerning the validity of Defendant’s sentence.
{¶ 5} In State v. Jeffrey Barker, Montgomery App. No. 22779,
2009-Ohio-3511, at ¶36-37, we wrote:
{¶ 6} “The trial court has full discretion to impose any
sentence within the authorized statutory range, and the court is
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not required to make any findings or give its reasons for imposing
maximum, consecutive, or more than minimum sentences. State v.
Foster, 109 Ohio St.3d 1, 2006-Ohio-856, at paragraph 7 of the
syllabus. Nevertheless, in exercising its discretion the trial
court must consider the statutory policies that apply to every
felony offense, including those set out in R.C. 2929.11 and 2929.12.
State v. Mathis, 109 Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d
1, at ¶37.
{¶ 7} “When reviewing felony sentences, an appellate court
must first determine whether the sentencing court complied with
all applicable rules and statutes in imposing the sentence,
including R.C. 2929.11 and 2929.12, in order to find whether the
sentence is contrary to law. State v. Kalish, 120 Ohio St.3d 23,
2008-Ohio-4912. If the sentence is not clearly and convincingly
contrary to law, the trial court’s decision in imposing the term
of imprisonment must be reviewed under an abuse of discretion
standard. Id.”
{¶ 8} The transcript of the sentencing hearing demonstrates
that the trial court considered the purposes and principles of
felony sentencing, R.C. 2929.11, and the seriousness and recidivism
factors, R.C. 2929.12, in imposing its sentence. The court also
considered oral statements of counsel and Defendant. The eighteen
month sentence the court imposed on the gross sexual imposition
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charge, while the maximum sentence, is nevertheless within the
authorized range of available punishments for a felony of the fourth
degree, which is six to eighteen months. R.C. 2929.14(A)(4).
The court also informed Defendant about post release control
requirements and the consequences for violating post release
control. Defendant’s sentence is not clearly and convincingly
contrary to law. Kalish.
{¶ 9} Furthermore, the court’s eighteen month sentence is not
an abuse of discretion because the record supports that sentence.
Defendant touched the victim’s breast underneath her clothing
while forcibly restraining her. As a result, the victim suffered
psychological harm. When he committed this offense, Defendant
had been released from prison on parole for only three months after
serving thirty one years for murder. That circumstance
demonstrates a high likelihood for recidivism. Finally, Defendant
denied any culpability and expressed no remorse. We see no abuse
of discretion in imposing the maximum eighteen month sentence.
This assignment of error lacks arguable merit.
{¶ 10} Appellate counsel additionally raises as a possible
issue for appeal trial counsel’s performance.
{¶ 11} Counsel's performance will not be deemed ineffective
unless and until counsel's performance is proved to have fallen
below an objective standard of reasonable representation and, in
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addition, prejudice arose from counsel's performance.
Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674. To show that a defendant has been prejudiced by
counsel’s deficient performance, the defendant must affirmatively
demonstrate to a reasonable probability that were it not for
counsel’s errors, the result of the trial would have been different.
Id., State v. Bradley (1989), 42 Ohio St.3d 136.
{¶ 12} Appellate counsel does not identify any instances of
deficient performance by trial counsel. To the contrary,
appellate counsel states that in reviewing this record she can
find no evidence of trial counsel rendering ineffective assistance.
Our independent review of the record has likewise not turned up
any instances of deficient performance by trial counsel, much less
resulting prejudice as defined by Strickland. This assignment
of error lacks arguable merit.
{¶ 13} In addition to reviewing the possible issues for appeal
raised by Defendant’s appellate counsel, we have conducted an
independent review of the trial court’s proceedings and have found
no error having arguable merit. Accordingly, Defendant’s appeal
is without merit and the judgment of the trial court will be
affirmed.
FROELICH, J. And HALL, J., concur.
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Copies mailed to:
James Bennett, Esq.
Stephanie A. Gunter, Esq.
Bobby Williams
Hon. Robert J. Lindeman