State v. Jackson , 2019 Ohio 665 ( 2019 )

[Cite as State v. Jackson, 2019-Ohio-665.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-18-20
v.
CORY L. JACKSON, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR2017 0186
Judgment Affirmed
Date of Decision: February 25, 2019
APPEARANCES:
Nikki Trautman Baszynski for Appellant
Jana E. Emerick for Appellee
Case No. 1-18-20
ZIMMERMAN, P.J.
{¶1} Defendant-appellant, Cory L. Jackson (“Jackson”), appeals the April
13, 2018 judgment entry of sentence of the Allen County Court of Common Pleas.
For the reasons that follow, we affirm.
{¶2} This case stems from the October 8, 2016 shooting death of Amari
Gooding (“Gooding”) at the Main Street Pub in Lima, Ohio. On June 15, 2017, the
Allen County Grand Jury indicted Jackson on one count of murder in violation of
R.C. 2903.02(A), (D) and 2929.02(B), an unclassified felony, and one count of
aggravated robbery in violation of R.C. 2911.01(A)(1), (C), a first-degree felony.
(Doc. No. 1). The indictment contains a firearm specification under R.C.
2941.145(A) as to both counts. (Id.). On June 29, 2017, Jackson appeared for
arraignment and entered pleas of not guilty. (Doc. No. 15).
{¶3} The case proceeded to a jury trial on February 20-21, 2018. (Feb. 20-
21, 2018 Tr., Vol. I, at 1); (Feb. 20-21, 2018 Tr., Vol. II, at 297). On February 21,
2018, the jury found Jackson guilty of the counts and specifications in the
indictment. (Doc. Nos. 90, 91, 92, 93).
{¶4} On April 11, 2018, the trial court sentenced Jackson to an indeterminate
term of life in prison with parole eligibility after serving 15 years on Count One, 9
years in prison on Count Two, and 3 years in prison as to each specification. (Doc.
No. 103). The trial court further ordered that Jackson serve the terms consecutively
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for an aggregate sentence of life in prison with parole eligibility after serving 30
years. (Id.). The trial court filed its judgment entry of sentence on April 13, 2018.
(Id.).
{¶5} Jackson timely filed his notice of appeal on April 24, 2018, and raises
one assignment of error for our review. (Doc. No. 105).
Assignment of Error
Cory L. Jackson was denied the right to choose the objective of
his defense, in violation of the Sixth and Fourteenth Amendments
to the United States Constitution and Section 10, Article I of the
Ohio Constitution.
{¶6} In his sole assignment of error, Jackson argues that his trial counsel
impinged his Sixth Amendment right to insist that his trial counsel refrain from
admitting guilt. That is, Jackson contends that his trial counsel unconstitutionally
conceded his guilt over Jackson’s objection during the sentencing hearing and that
the error amounts to structural error under McCoy v. Louisiana. __ U.S. __, 138
S.Ct. 1500 (2018). Jackson’s argument necessarily challenges the lawfulness of his
sentence.1
1
“Because a client’s autonomy, not counsel’s competence, is in issue, we do not apply our ineffective-
assistance-of-counsel jurisprudence.” McCoy v. Louisiana, ___ U.S. ___, 138 S.Ct. 1500, 1511 (2018), citing
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984) and United States v. Cronic, 466 U.S. 648,
104 S.Ct. 2039 (1984).
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Standard of Review
{¶7} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence
“only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,
¶ 1. Clear and convincing evidence is that “‘which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.’” Id.
at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the
syllabus.
Analysis
{¶8} “A structural error is a constitutional defect that defies analysis by
harmless error standards, because it affects the framework within which the trial
proceeds, rather than simply being an error in the trial process itself.” State v.
Fields, 12th Dist. Butler No. CA2005-03-067, 2005-Ohio-6270, ¶ 27, citing State v.
Perry, 101 Ohio St.3d 118, 2004-Ohio-297, ¶ 17.
Structural error affects the substantial rights of a criminal defendant,
even absent a specific showing that the outcome of the trial would
have been different, and requires automatic reversal. Because a
defendant is relieved of his burden to show prejudice, the finding of
structural error is rare and limited to exceptional cases.
State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, ¶ 53 (Moyer, J., concurring
in judgment only), citing Perry at ¶ 18, citing Johnson v. United States, 520 U.S.
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461, 468, 117 S.Ct. 1544 (1997). The “‘limited class of cases’” recognizing
structural error are cases “in which the errors permeate the ‘entire conduct of the
trial from beginning to end,’ so that the trial court cannot ‘“reliably serve its function
as a vehicle for determination of guilt or innocence.”’” Fields at ¶ 27, quoting
Arizona v. Fulminante, 449 U.S. 279, 309-310, 111 S.Ct. 1246 (1991), quoting Rose
v. Clark, 478 U.S. 570, 577-78, 106 S.Ct. 3101 (1986). Those “‘limited number of
cases’” in which structural errors have been recognized include “‘a total deprivation
of the right to counsel; lack of an impartial trial judge; unlawful exclusion of grand
jurors of the defendant’s race; the right to self-representation at trial; the right to a
public trial; erroneous reasonable doubt instruction to the jury.’” Id., quoting
Johnson v. United States, 520 U.S. 461, 468-469, 117 S.Ct. 1544 (1997). To begin
with, we must examine whether the error that Jackson alleges to be structural error
is such error.
{¶9} The United States Supreme Court recently concluded in McCoy that a
trial “counsel’s admission of a client’s guilt over the client’s express objection is
error structural in kind.” McCoy, 138 S.Ct. at 1511. However, to amount to the
type of structural error found in McCoy, the Court specifically noted that “the
defendant repeatedly and adamantly insisted on maintaining his factual innocence
despite counsel’s preferred course: concession of the defendant’s commission of
criminal acts and pursuit of diminished capacity, mental illness, or lack of
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premeditation defenses.” (Emphasis added.) Id. at 1510. In other words, as Justice
Alito stated in his dissenting opinion, “Where the defendant is advised of the
strategy and says nothing, or is equivocal, the right is deemed to have been waived.”
Id. at 1515 (Alito, J., dissenting), citing Florida v. Nixon, 543 U.S. 175, 192, 125
S.Ct. 551 (2004).
{¶10} First, we must address whether a trial counsel’s concession of guilt
during sentencing in a non-capital case can amount to structural error. Primarily,
Justice Alito suggested in his dissenting opinion in McCoy that “the right that the
Court has discovered is effectively confined to capital cases.” Id. at 1514 (Alito, J.,
dissenting). See also State v. Brown, 8th Dist. Cuyahoga No. 106667, 2019-Ohio-
313, ¶13 (discussing the narrow application of the Supreme Court’s holding in
McCoy). That is, unlike all other cases, the jury must decide both guilt and
punishment in capital cases. See McCoy at 1514. Turning to the merits of Jackson’s
appeal, this is not a capital case. That alone distinguishes the facts of this case from
those presented in McCoy. Compare United States v. Rosemond, 322 F.Supp.3d
482, 486 (S.D.N.Y.2018) (distinguishing the Supreme Court’s holding in McCoy by
noting that “the government did not seek the death penalty in this case”). We need
not extend the narrow holding of McCoy beyond capital cases in this case. See id.
at 486-487 (noting “Rosemond’s contention that the narrow holding of McCoy
should be extended beyond capital cases and that this question will be resolved in
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due course by appellate courts, there is no need to decide it here” and that “[t]his
Court is not prepared to read McCoy so broadly absent definitive guidance from the
higher courts”). But see State v. Sowell, 8th Dist. Cuyahoga No. 102752, 2015-
Ohio-4770, ¶ 9 (suggesting that “[a]s a matter of constitutional law, constitutional
violations occurring during sentencing are not structural errors and thus do not
render a sentence void.”).
{¶11} Even if a trial counsel’s concession of guilt during sentencing in a non-
capital case could amount to structural error, Jackson’s argument that his trial
counsel’s statements amounted to structural error fails under the facts presented in
this case. Compare Rosemond at 486 (“Even if the Court were to assume that
McCoy is not limited to capital cases, Rosemond’s motion would fail.”). In this
case, Jackson directs us to the following statement of his trial counsel at the
sentencing hearing as violative of his Sixth Amendment right amounting to
structural error:
I get so disappointed because here when I look at Cory I know
everybody’s looking at him like “Oh well, he murdered somebody.”
Well, okay, yeah, he did; but he’s not a life worth throwing out.
(Apr. 11, 2018 Tr. at 7-8). The balance of Jackson’s argument focuses on his trial
counsel’s statements during the sentencing hearing to bolster his argument that his
trial counsel disregarded his desire to maintain his innocence.
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{¶12} However, Jackson fails to direct us to any evidence in the record of
any definitive statements that Jackson repeatedly and adamantly insisted on
maintaining his factual innocence. Compare People v. Lopez, 31 Cal.App.5th. 55,
242 Cal.Rptr.3d 451, 459 (2019) (“Here, unlike in McCoy, there is no evidence that
appellant raised any objection to his counsel’s decision to concede guilt on the hit
and run charge.”). Instead, Jackson encourages this court to assume from statements
contained in the presentence-investigation report—which he contends reflect that
he denied murdering Gooding—that he repeatedly and adamantly conveyed his
desire to maintain his factual innocence. Nonetheless, after his trial counsel’s
statements during the sentencing hearing, Jackson did not object to any of his trial
counsel’s statements or repeatedly or adamantly protest his innocence in any way.
Rather, Jackson’s statement to the trial court immediately following his trial
counsel’s statements focused on apologizing to the victim’s family and his family,
while appealing to the trial court for leniency. (See id. at 9-10). Further, under the
section titled “Defendant’s Version,” of the presentence-investigation report,
Jackson stated, in part, “I take full responsibility because that lead [sic] to the
shooting which caused the death of [Gooding].” (PSI).
{¶13} Accordingly, even if a trial counsel’s concession of guilt during
sentencing in a non-capital case could considered structural error, we conclude that
Jackson waived his Sixth Amendment right in this case. See McCoy, 138 S.Ct. at
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1515 (Alito, J., dissenting), citing Nixon, 543 U.S. at 192. For these reasons, we
conclude that Jackson’s sentence is not contrary to law. Thus, Jackson’s assignment
of error is overruled.
{¶14} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
PRESTON and WILLAMOWSKI, J.J., concur.
/jlr
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