State v. Treece , 2022 Ohio 1610 ( 2022 )

[Cite as State v. Treece, 2022-Ohio-1610.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 29258
:
v. : Trial Court Case No. 2021-CR-269
:
DENNIS TREECE : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 13th day of May, 2022.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio
45422
Attorney for Plaintiff-Appellee
DANIEL F. GETTY, Atty. Reg. No. 0074341, 46 East Franklin Street, Centerville, Ohio
45459
Attorney for Defendant-Appellant
.............
DONOVAN, J.
-2-
{¶ 1} Defendant-appellant Dennis Treece appeals his conviction for one count
aggravated arson (harm to person), in violation of R.C. 2909.02(A)(1), a felony of the first
degree, and one count of aggravated arson (occupied structure), in violation of R.C.
2909.02(A)(2), a felony of the second degree. Treece’s appellate counsel filed a brief
under the authority of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493(1967), asserting the absence of any non-frivolous issues for appeal, and he asks
permission to withdraw as counsel. Counsel has identified two potential assignments of
error: whether Treece received ineffective assistance of counsel and whether the trial
court complied with sentencing guidelines as they related to violations of community
control sanctions. On February 18, 2022, we notified Treece that his counsel had found
no meritorious claims to present on appeal and granted him 60 days to file a pro se brief
assigning any errors for review. Treece has not filed a brief.
Procedural History
{¶ 2} On February 4, 2021, Treece was indicted for two counts of aggravated arson
(harm to person), both felonies of the first degree, and one count of aggravated arson
(occupied structure), a felony of the second degree, related to a fire he started at his
mother’s residence in Dayton, Ohio, on January 25, 2021.
{¶ 3} On August 25, 2021, Treece pled guilty to one count aggravated arson (harm
to person), a felony of the first degree, and one count of aggravated arson (occupied
structure), a felony of the second degree. In return for Treece’s pleas, the State agreed
-3-
to dismiss the remaining count. On September 15, 2021, the trial court sentenced
Treece to an indefinite term of five to seven and one-half years in prison for the first-
degree felony offense and to five years on the second-degree offense. The trial court
ordered that the sentences be served concurrently, for an aggregate sentence of five to
seven and one-half years in prison.
{¶ 4} Treece appeals.
Analysis
{¶ 5} The first potentially meritorious assignment of error raised by counsel is:
[W]HETHER DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE
OF COUNSEL DUE TO THE FACT THAT A MOTION TO SUPPRESS
WAS NOT FILED[.]
{¶ 6} Treece contends that he received ineffective assistance of counsel when his
attorney failed to file a motion to suppress.
{¶ 7} Alleged instances of ineffective assistance of trial counsel are reviewed
under the two-pronged analysis set forth in Strickland v. Washington, 466 U.S. 668, 687,
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). To prevail on an ineffective
assistance claim, a defendant must establish: (1) that his or her trial counsel's
performance was deficient and (2) that the deficient performance resulted in prejudice.
Strickland at paragraph two of the syllabus; Bradley at paragraph two of the syllabus.
The failure to make a showing of either deficient performance or prejudice defeats a claim
of ineffective assistance of counsel. Strickland at 697.
-4-
{¶ 8} To establish deficient performance, it must be shown that trial counsel's
performance fell below an objective standard of reasonable representation. Id. at 688.
In evaluating counsel's performance, “a court must indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable professional assistance; that
is, the defendant must overcome the presumption that, under the circumstances, the
challenged action ‘might be considered sound trial strategy.’ ” Id. at 689, quoting Michel
v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955).
{¶ 9} To establish prejudice, the defendant must demonstrate that there is “a
reasonable probability that, but for counsel's errors, the proceeding's result would have
been different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864,
¶ 204, citing Strickland at 687-688 and Bradley at paragraph two of the syllabus. “ ‘A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.’ ” Bradley at 142, quoting Strickland at 694.
{¶ 10} “The failure to file a suppression motion is not per se ineffective assistance
of counsel.” State v. Wilson, 2d Dist. Clark No. 2008-CA-45, 2009-Ohio-2744, ¶ 11,
citing State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000); accord State v.
Thomas, 2d Dist. Clark No. 2010-CA-48, 2011-Ohio-1987, ¶ 15. “Rather, trial counsel's
failure to file a motion to suppress constitutes ineffective assistance of counsel only if the
failure to file the motion caused Defendant prejudice; that is, when there is a reasonable
probability that, had the motion to suppress been filed, it would have been granted.”
(Citations omitted.) Wilson at ¶ 11; State v. Nields, 93 Ohio St.3d 6, 34, 752 N.E.2d 859(2001). There is no such evidence in the record.
-5-
{¶ 11} Here, Treece waived his ineffective assistance claim by pleading guilty. “A
guilty plea waives the right to allege ineffective assistance of counsel, except to the extent
the errors caused the plea to be less than knowing and voluntary.” State v. King, 2d Dist.
Montgomery No. 23325, 2010-Ohio-2839, ¶ 11, citing State v. Spates, 64 Ohio St.3d 269,
595 N.E.2d 351 (1992). Any non-jurisdictional defects raised by Treece which occurred
prior to the voluntary entering of a guilty plea are waived by such a plea. State v. Randle,
2d Dist. Montgomery. No. 21931, 2007-Ohio-2967.
{¶ 12} The first potentially meritorious assignment of error is meritless.
{¶ 13} The second potentially meritorious assignment of error is as follows:
[W]HETHER THE TRIAL COURT ERRED BY FAILING TO COMPLY WITH
SENTENCING GUIDELINES AS TO TECHNICAL VIOLATIONS OF
COMMUNITY CONTROL SANCTIONS.
{¶ 14} Treece argues that the trial court erred by failing to comply with sentencing
guidelines regarding violations of community control sanctions.
{¶ 15} At the plea hearing, the trial court stated the following:
TRIAL COURT: Okay. You are, technically, eligible to be sentenced to
community control sanctions for a period of up to five years which may
include community residential sanctions, including up to 12 months of local
jail time, and other non-residential sanctions. For violations of community
control sanctions, you could be required to serve a prison term of up to –
depending on what the sentence was, up to the maximum of 24 and a half
years if the Court, again, were to run that consecutively. Do you
-6-
understand that, sir?
TREECE: Yes, sir, I understand that.
TRIAL COURT: Okay. Did I say that correctly, [Defense Counsel]?
DEFENSE COUNSEL: Yes.
Plea Hearing Tr. 8.
{¶ 16} The trial court correctly informed Treece of the maximum penalty to which
he could be subjected if he were placed on community control sanctions that he
subsequently violated them. The trial court informed Treece that there was no
agreement on the record regarding the sentence he would ultimately receive, and Treece
acknowledged that. Additionally, Treece stated that he had not been promised that he
would receive community control in exchange for his guilty pleas. Upon review, we
conclude that no potentially meritorious issues exist with respect to the trial court’s
discussion of community control sanctions at Treece’s plea hearing.
{¶ 17} The second potentially meritorious assignment of error is meritless.
{¶ 18} Lastly, we note that at Treece’s plea hearing, the trial court mistakenly
advised him that he would be required to register with the violent offender database. At
Treece’s sentencing hearing, a different judge conducted the proceedings and advised
Treece that the judge at the plea hearing was incorrect regarding the violent offender
database. At sentencing, the trial court correctly advised Treece that he would have to
register with the Ohio arson database in light of the nature of his crimes. The trial court
also asked Treece if he wanted to withdraw his guilty pleas because he had initially been
told he had to register with the violent offender database rather than the arson database.
-7-
Treece stated that he did not want to withdraw his pleas and wanted to proceed with
sentencing. The trial court then advised Treece of the requirements to which he would
be subjected when he registered with the arson database. After its recitation, the trial
court asked Treece if he understood the requirements for the arson database, and Treece
answered in the affirmative. Because the sentencing court correctly advised Treece
regarding his duty to register with the arson database, as well as its requirements, we find
no potentially meritorious issue exists here.
{¶ 19} We have performed our duty to independently conduct a thorough and
complete examination of all the proceedings to decide whether this appeal is wholly
frivolous. Penson v. Ohio, 488 U.S. 75, 80, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), citing
Anders, 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493. Our review included scrutiny
of the entire record, including the docketed filings, the plea hearing and sentencing
hearing transcripts, and the presentence investigation report. We agree with appointed
counsel's assessment that there are no appealable issues with arguable merit.
Conclusion
{¶ 20} Our independent review of the record reveals no non-frivolous issues for
appeal. We agree with appellate counsel that Treece’s appeal is frivolous. We grant
counsel’s request to withdraw from representation. The judgment of the trial court is
affirmed.
.............
TUCKER, P.J. and WELBAUM, J., concur.
-8-
Copies sent to:
Mathias H. Heck, Jr.
Andrew T. French
Daniel F. Getty
Dennis Treece
Hon. Mary Katherine Huffman