State v. Krill , 2023 Ohio 1216 ( 2023 )

[Cite as State v. Krill, 2023-Ohio-1216.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 111613
v. :
KYLE KRILL, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: April 13, 2023
Criminal Appeal from the Cuyahoga County Common Pleas Court
Case Nos. CR-21-665757-A and CR-21-665897-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Thomas Rovito, Assistant Prosecuting
Attorney, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Jonathan Sidney, Assistant Public Defendant, for
appellant.
ANITA LASTER MAYS, A.J.:
Defendant-appellant Kyle Krill (“Krill”) appeals his guilty convictions
and asks this court to vacate his sentence and remand for a new trial. We affirm
Krill’s convictions and sentence.
Krill was indicted in two different cases, Cuyahoga C.P. Nos. CR-21-
665757 and CR-21-665897, stemming from incidents occurring on November 24,
2021, and November 26, 2021, respectively. The cases were joined together for trial.
Krill elected to bifurcate each offense of having weapons while under disability to be
heard before the trial judge. In Cuyahoga C.P. No. CR-21-665757, after a jury trial,
Krill was found not guilty of one count of kidnapping, abduction, felonious assault,
and domestic violence. The trial court found Krill guilty of having weapons while
under disability, with attached one-year, 18-month, three-year, and 54-month
firearm specifications. In Cuyahoga C.P. No. CR-21-665897, after a jury trial, Krill
was found not guilty of discharging of firearm on or near prohibited premises. Krill
was found guilty by the trial court of having weapons while under disability, with
attached one-year, 18-month, three-year, and 54-month firearm specifications.
The trial court sentenced Krill to an aggregate total of 117 months
imprisonment, which included the 54-month firearm specifications on each count
of having weapons under disability and nine months for the underlying felony. In
its journal entry the trial court stated that it considered all required factors of the
law and found that prison is consistent with the purpose of R.C. 2929.11.
I. Facts and Procedural History
On April 20, 2022, Krill’s trial began and after voir dire, Krill executed
a jury waiver in regards to the having weapons while under disability counts. The
following conversation between the trial court, Krill’s trial counsel, and Krill
occurred:
Court: We’re back on the oral record outside of the presence of
the jury.
Has Mr. Krill, [trial counsel], executed a jury waiver, a
partial jury waiver, on the various NPC/RVO and prior
conviction?
Counsel: We went over it. He understands it and he’s ready to
sign it and sign it in the courtroom.
Court: Mr. Krill, first of all, good afternoon again.
Defendant: Good afternoon.
Court: Are you able to read and write in English?
Defendant: Yes, sir.
Court: Did you read the partial jury waiver before you signed
them?
Defendant: Yes, Your Honor.
Court: Now, do you understand that for the repeat violent
offender spec, the notice of prior conviction, and any
proof that the prosecutors require to make of a prior
conviction to either enhance a firearm specification or
the domestic violence charge, you have a right to have
this jury decide those issues; do you understand that?
Defendant: Yes, Your Honor.
Court: And do you understand that the jury could not find
beyond a reasonable doubt that those things, those
issues, have been proved until and unless all twelve of
them agree that proof exists beyond a reasonable doubt
of the particular allegations depending on whether it is
the NPC, RVO, or the prior conviction; do you
understand that?
Defendant: Yes, Your Honor.
Court: So, if even one person did not agree it’s proof beyond a
reasonable doubt, they could not come back with a
finding against you on one or more of those things?
Defendant: Yes, Your Honor.
Court: On the other hand, when you try these things to the
Court in a bench trial, only one person, me, has to make
the decision. So, when I’m deliberating whether these
things have been proved, I don’t have anyone, if I should
happen to be leaning towards finding you guilty —
finding these proved beyond a reasonable doubt to give
you my reasons why I’m wrong and I should reconsider
my initial feelings.
In other words, the only downside is there is no one to
question whether I have considered everything that’s
relevant and so on. Do you understand that?
Defendant: Yes, Your Honor.
Court: Of course, by the same token, if I’m leaning towards
finding these things not proved, there is no one telling
me I should reconsider because I have taken into
account some other factor that was not raised in
evidence.
But that’s the primary difference between a jury trial and
a bench trial, and I believe that you understand that.
The other thing is, without asking you what your
reasoning is, without going into your strategy or your
confidential communications with your lawyer, do you
perceive that it may be more beneficial to you to have the
Court decide these matters rather than a jury?
Defendant: No, Your Honor.
Court: Why not?
Defendant: I feel like the jury is my better offer, my best bet.
Court: All right. Well, again, I’m not going to get into what you
may or may not have discussed with your lawyer.
By the way, I will include, of course, the weapons while
under disability charge as well. Now that one — let me
back up.
Here is some of the things that you are waiving the jury
on: The entire weapons under disabilities charge — let
me make sure.
In the case from November 24th, that count entirely
would be up to me to decide upon the evidence.
And then the other things that would be up to me
entirely would be the — anywhere that prior conviction
is alleged to have made this for the domestic violence a
felony 4 instead of a misdemeanor 1.
Well, instead of saying — let me go through them by
number.
The things that I would be deciding if you waive this jury
trial are as follows:
Number one, the allegation of the prior conviction on
every 18 month firearm spec and every 54 month
firearm spec.
Number 2, the entirety of Count 2 of the November
24th case weapons while under disability.
Number 3, the notice of prior conviction on Counts 1
and 3 in the case from November 26th, and the repeat
violent offender specs in the case from November
26th.
Now, on those things, and of course on the prior
conviction for any count, if the jury happens to find you
not guilty of any count where there is a prior conviction
that’s at issue, or a notice of prior conviction, or repeat
violent offender spec, then I would have nothing to
decide because to find you guilty of notice of prior
conviction or repeat violent offender requires a guilty
finding on the underlying count.
So the jury would still be deciding those underlying
counts. If they found you guilty on one, some, or all of
those, I would deliberate, and I would find you guilty or
not guilty on the conviction on the RVO.
Now, for the two — I’m sorry — there are two weapons
under disability counts. One is Count 2 in the November
24th case. And the other is Count 5 in the November
26th case. So, there I would be deciding those and it is
possible, for example — well, here are the possibilities
on those two.
It may be that the jury finds you not guilty of everything.
Even if that happens, I could still, depending on the
evidence and my reaction to it, find you guilty of a
weapons under disability charge.
The opposite is also true. It may be that the jury finds
you guilty of everything that it’s deciding. I could still
find you not guilty of the weapons while under disability,
so those two counts, because they would all be within my
ability to decide, but all other counts would be the jury’s
decision to decide, and then I would only decide certain
things, the NPC and RVO if the jury found you guilty.
Now going back to your reasoning or not. I don’t know
for sure, but typically when a defendant in your position
tries certain counts and issues to the jury and tries other
counts and issues to the Court, it’s because the
defendant would prefer that a jury not receive evidence
of a prior conviction or a prior similar conduct. I don’t
know for a fact that that’s what’s happening here
because I’m not in a private conversation that you have
with your lawyer. I’ll infer that’s likely, but I recognize
that there may be other reasons that the questions of a
bench trial on these certain issues was brought up.
So, when I asked you do you perceive that there may be
a benefit to you to have certain issues that were
discussed tried to the Court, that’s what I’m talking
about. In other words, do you think that without
guarantees of a certain result may work out better for
you?
Defendant: Yes, Your Honor.
Court: All right. And I just want to assure you that the decision
that you are making is a decision that many defendants
before you have made, and by the same token, many
defendants in your position haven’t done the same thing.
All I need to be sure of is, first of all, your decision to do
this is voluntary; and second, that you are aware of what
the differences are on these counts and these issues
between having a jury deciding or the Court; and third,
that a waiver of a jury trial is not coerced.
So on that final issue, are you, Mr. Krill, being forced or
pressured to try these certain issues to the Court and the
rest to the jury?
Defendant: No, Your Honor.
Court: Did you then read this and sign this to waive these rights
voluntarily?
Defendant: Yes, Your Honor.
Court: All right. I’m going to trust that you are telling me the
truth, and I’m going to accept the waiver on those issues.
(Tr. 160-168.)
At the conclusion of the jury trial, Krill was found not guilty of all
offenses tried to the jury. On the bifurcated weapon offenses, the trial court found
Krill guilty of both counts of having weapons while under disability and the
accompanying firearm specifications, stating as follows:
On Count 2, weapons under disability, in the November 24th case
which is number 665897, Mr. Krill, I find that you are in fact guilty of
having weapon under disability, and you are guilty of the firearm
specifications as well. Every one of them, to be honest with you,
because clearly you had a firearm, and to me, used it and then the
prior conviction is known.
You are also ordered to forfeit the gun on that.
Then for weapons under disability two days later, I do find beyond a
reasonable doubt that you had carried or used a firearm on that date,
and that the other count, the specs, are proved as well.
The other things that I was charged with considering, the notice of
prior conviction and — I’m sorry — the RVO specs are moot. There is
no decision for me to make based on the not guilty findings.
The two counts of weapons under disability, however, are entirely
independent of the jury’s determinations. So I just find beyond a
reasonable doubt that gun was yours, that it was under your control
on both days, and that it was used on both days.
So you are guilty of those crimes. It is necessary to proceed to
sentencing.
(Tr. 625-626.)
At sentencing, Krill stipulated conceded that he was on postrelease
control at the time of the offenses. (Tr. 636.) Krill’s trial counsel requested that the
trial court run the sentences concurrently instead of consecutively. The trial court
stated:
Under Revised Code 2929.14(B)(1)(e), I do find after having found
Mr. Krill guilty of having weapons under disability in violation of
Revised Code 2923.13 on both of these counts, I do find that he
previously has been convicted of a felony of the second degree, namely
the felonious assault and the improper discharge in the prior case, and
I find that less than five years have passed since he was released from
prison or postrelease control. Indeed, he’s still on postrelease control.
In other words then, prison terms must be imposed on the gun specs
for short [sic].
(Tr. 644-645.)
The state advised the trial court that consecutive sentences on the
firearm specifications were mandatory per R.C. 2929.14(C)(1)(a). The trial court
stated:
Additionally, I am considering the sentencing laws after Revised Code
Section 2929 including in particular Revised Code Section
2929.14(C)(1)(a).
After having considered all of that information, sir, in case number
665897 from November 24th you are ordered on the felony itself to
serve nine months at the Lorain Correctional Institution.
In case 665757 from November 26th, you are ordered on the felony
itself to serve nine months at LCI. Those sentences are ordered to be
served concurrently, which is to say a single nine month prison term
for the felonies themselves.
However, on the firearm specifications in each case you are ordered
to serve 54 months on all specs in the one case, and 54 months on all
specs in the other case, and these sentences are obligated under the
section of the Revised Code just mentioned to be served consecutively,
meaning one after the other. So your prison term will be 54 months,
plus 54 months, plus nine months, which is to say nine years and nine
months.
(Tr. 657-658.)
Krill filed this appeal assigning four errors for our review:
1. The trial court plainly erred in imposing prison terms on the
firearms specifications, in violation of Krill’s right to trial by
jury, because the elements required to authorize these prison
terms were not appropriately subject to judicial-fact finding;
2. Krill received ineffective assistance of counsel at sentencing
when counsel failed to object to the imposition of prison terms
on the firearms specifications;
3. Krill’s purported waivers of right to trial by jury were invalid in
total because they were not voluntary, knowing, and intelligent;
and
4. Krill’s purported waiver of right to trial by jury were invalid as
to the 3-year and 54-month firearms specifications because
they were not voluntary, knowing, and intelligent.
We will jointly review assignments of error three and four first and
then one and two, separately.
II. Waiver of Right to Trial by Jury
In Krill’s third assignment of error, he argues that his waiver of right
to a trial by jury was invalid because it was not voluntary, knowing, and intelligent.
Krill argues that the trial court failed to make an effort to ascertain whether Krill
genuinely felt it was in his interest to waive his jury trial right. “A criminal
defendant’s right to a jury trial is guaranteed in the Sixth and Fourteenth
Amendments to the United States Constitution and Article I, Sections 5 and 10, of
the Ohio Constitution.” State v. Morris, 8th Dist. Cuyahoga No. 107674, 2019-Ohio-
3184, ¶ 31, citing State v. Burnside, 186 Ohio App.3d 733, 2010-Ohio-1235, 930
N.E.2d 372, ¶ 45 (2d Dist.). “Regarding serious offenses, an accused may not be
deprived of this right unless it is knowingly, intelligently, and voluntarily waived.”
Id., citing Duncan v. Louisiana, 391 U.S. 145, 154, 88 S.Ct. 1444, 20 L.Ed.2d 491(1968); R.C. 2945.05; Crim.R. 23(A).
R.C. 2945.05 further clarifies the requirements to be met before a
criminal defendant may waive his right to a jury trial:
In all criminal cases pending in courts of record in this state, the
defendant may waive a trial by jury and be tried by the court without
a jury. Such waiver by a defendant, shall be in writing, signed by the
defendant, and filed in said cause and made a part of the record
thereof. It shall be entitled in the court and cause, and in substance
as follows: “I, _____________, defendant in the above cause,
hereby voluntarily waive and relinquish my right to a trial by jury, and
elect to be tried by a Judge of the Court in which the said cause may
be pending. I fully understand that under the laws of this state, I have
a constitutional right to a trial by jury.”
Id.“Such waiver of trial by jury must be made in open court after the
defendant has been arraigned and has had opportunity to consult with counsel.”
State v. Da Vonne Phillips, 8th Dist. Cuyahoga No. 110526, 2022-Ohio-375, ¶ 15.
“Under the plain language of Section 2945.05, the entirety of a defendant’s jury-trial
waiver must be in writing.” Morris, at ¶ 34, citing R.C. 2945.05; State v. Lomax, 114
Ohio St.3d 350, 2007-Ohio-4277, 872 N.E.2d 279, ¶ 9. “The Ohio Supreme Court
explained that ‘to be valid, a waiver [under R.C. 2945.05] must meet five conditions.
It must be (1) in writing, (2) signed by the defendant, (3) filed, (4) made part of the
record, and (5) made in open court.’” Id.First, the trial court and Krill’s trial counsel acknowledged that the
waiver was in writing and signed by the defendant. (Tr. 168.) Second, the waiver
was filed and made part of the record in open court. (Tr. 160-168.) Krill stated that
he was not coerced or pressured to waive his right to a jury trial. (Tr. 167.) Krill’s
argument that the trial court failed to make certain that his waiver was knowing,
voluntary, and intelligent is therefore misplaced.
In Lomax, however, the Supreme Court made clear: “‘We do not
mandate magic words, or a prolonged colloquy, but simply what Ohio
law intends — that a defendant while in the courtroom and in the
presence of counsel, if any, acknowledge to the trial court that the
defendant wishes to waive the right to a jury trial.’”
State v. Fisher, 8th Dist. Cuyahoga No. 101365, 2015-Ohio-597, ¶ 22, quoting
Lomax at ¶ 48.
Krill was represented by counsel, and he acknowledged to the trial
court, in the presence of his counsel, that he was waiving his right to a jury trial. He
also executed the waiver in writing, as required by the statute. Thus, Krill’s waivers
were not invalid.
In Krill’s fourth assignment of error, he argues that his waiver of right
to trial by jury was invalid as to the three-year and 54-month firearm specifications.
Krill’s argument is identical for his argument in assignment of error three. Krill,
specifically, argues that the trial court mislead him when it stated:
Now, do you understand that for the repeat violent offender spec, the
notice of prior conviction, and any proof that the prosecutors require
to make of a prior conviction to either enhance a firearm specification
or the domestic violence charge, you have a right to have this jury
decide those issues; do you understand that?
(Tr. 161.)
We determine that the trial court’s statement was not misleading.
The record reveals that the trial court thoroughly informed Krill of his options as it
related to having weapons while under disability charges and specifications being
tried to the court. As noted above, the trial court explained as follows:
By the way, I will include, of course, the weapons while under
disability charge as well. Now that one — let me back up.
Here is some of the things that you are waiving the jury on: The entire
weapons under disabilities charge — let me make sure.
In the case from November 24th, that count entirely would be up to
me to decide upon the evidence.
And then the other things that would be up to me entirely would be
the — anywhere that prior conviction is alleged to have made this for
the domestic violence a felony 4 instead of a misdemeanor 1.
Well, instead of saying — let me go through them by number.
The things that I would be deciding if you waive this jury trial are as
follows:
Number one, the allegation of the prior conviction on every 18
month firearm spec and every 54 month firearm spec.
Number 2, the entirety of Count 2 of the November 24th case
weapons while under disability.
Number 3, the notice of prior conviction on Counts 1 and 3 in
the case from November 26th, and the repeat violent offender
specs in the case from November 26th.
Now, on those things, and of course on the prior conviction for any
count, if the jury happens to find you not guilty of any count where
there is a prior conviction that’s at issue, or a notice of prior
conviction, or repeat violent offender spec, then I would have nothing
to decide because to find you guilty of notice of prior conviction or
repeat violent offender requires a guilty finding on the underlying
count.
So the jury would still be deciding those underlying counts. If they
found you guilty on one, some, or all of those, I would deliberate, and
I would find you guilty or not guilty on the conviction on the RVO.
Now, for the two — I’m sorry – there are two weapons under disability
counts. One is Count 2 in the November 24th case. And the other is
Count 5 in the November 26th case. So, there I would be deciding
those and it is possible, for example — well, here are the possibilities
on those two.
It may be that the jury finds you not guilty of everything. Even if that
happens, I could still, depending on the evidence and my reaction to
it, find you guilty of a weapons under disability charge.
The opposite is also true. It may be that the jury finds you guilty of
everything that it’s deciding. I could still find you not guilty of the
weapons while under disability, so those two counts, because they
would all be within my ability to decide, but all other counts would be
the jury’s decision to decide, and then I would only decide certain
things, the NPC and RVO if the jury found you guilty.
Now going back to your reasoning or not. I don’t know for sure, but
typically when a defendant in your position tries certain counts and
issues to the jury and tries other counts and issues to the Court, it’s
because the defendant would prefer that a jury not receive evidence of
a prior conviction or a prior similar conduct. I don’t know for a fact
that that’s what’s happening here because I’m not in a private
conversation that you have with your lawyer. I’ll infer that’s likely, but
I recognize that there may be other reasons that the questions of a
bench trial on these certain issues was brought up.
So, when I asked you do you perceive that there may be a benefit to
you to have certain issues that were discussed tried to the Court, that’s
what I’m talking about. In other words, do you think that without
guarantees of a certain result may work out better for you?
(Tr. 163-167.)
The trial court informed Krill that he had a right to have a jury decide
those particular issues. Krill argues that he was confused about the consequences
of the waiver regarding possession of the firearm. However, the record does not
indicate that Krill was confused, stated that he was confused, or asked clarifying
questions regarding the waiver. As previously stated, the requirements to execute a
jury waiver are: (a) the waiver must be in writing; (b) signed by the defendant;
(c) filed; (d) made part of the record; and (e) made in open court. Lomax, 114 Ohio
St.3d 350, 2007-Ohio-4277, 872 N.E.2d 279, ¶ 9. The record reflects that the trial
court fully complied with those requirements, and appellant has failed to
demonstrate that his jury waiver was not knowingly, voluntarily, and intelligently
made.
Therefore, Krill’s third and fourth assignment of error are overruled.
III. Firearm Specifications and Judicial Fact-Finding
In Krill’s first assignment of error, he argues that the trial court erred
by imposing prison terms on the firearm specifications. Specifically, he argues that
the trial court’s verdict did not encompass the following facts: that less than five
years passed since Krill was released from prison or postrelease control for a prior
offense that was a felony of the first- or second-degree; and that the weapons while
under disability counts were not committed as part of the same act or transaction in
accordance with R.C. 2929.14(B)(1)(b). However, the evidence for that finding was
presented at trial. The trial court explained that Krill and his trial counsel stipulated
to his prior conviction and that he was released from prison less than five years ago
for the purpose of the firearm specification and the weapons while under disability
count. The trial court stated:
Okay. So, the idea is, [counsel], that you and Mr. Krill stipulate that
the prior offense is proved for the purpose of proving the various 18-
month firearm specifications and that proof, any proof, any evidence
of that prior conviction — I’m sorry, for the 54-month specs as well,
as well as the notice of prior conviction and the RVO, and that now
dispenses with any evidence of that prior conviction?
(Tr. 24.) To which Krill’s counsel responded, “Yes, Your Honor.” Id.Krill’s argument is also misplaced because the trial court did find that
less than five years passed since Krill was released from prison or postrelease control
and Krill stipulated to this fact. The trial court stated:
Under Revised Code 2929.14(B)(1)(e), I do find after having found
Mr. Krill guilty of having weapons under disability in violation of
Revised Code 2923.13 on both of these counts, I do find that he
previously has been convicted of a felony of the second degree, namely
the felonious assault and the improper discharge in the prior case, and
I find that less than five years have passed since he was released from
prison or postrelease control. Indeed, he’s still on postrelease control.
In other words then, prison terms must be imposed on the gun specs
for short.
(Tr. 644-645.)
Additionally, the trial court found that the acts were not committed
as part of the same act or transaction. The state argued that the Krill’s actions were
part of two separate actions. The state stated:
Thus, for all of the reasons the State of Ohio would take the position
that because we are looking at two separate acts or occurrences
because we are looking at events that took place within two days of
each other, they were in the same general vicinity, your Honor.
However, with the first incident it started outside on November 24th
and proceeded inside. With the incident of November 26th it started
inside the home and then proceeded outside the home, and the
general same parties were involved.
For all of these reasons, the State of Ohio takes the position these were
different acts or occurrences, and thus the two 54-month
specifications can be ran consecutively to each other. Thank you, your
Honor.
(Tr. 631-632.) The trial court agreed with the state and sentenced Krill to
consecutive terms.
Krill also argues that the trial court’s imposition of prison sentences
on the specifications violated Krill’s right to trial by jury. To support his contention,
he cites State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 3,
quoting Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d
435 (2000), which states that “‘[o]ther than the fact of a prior conviction, any fact
that increases the penalty for a crime beyond the prescribed statutory maximum
must be submitted to a jury, and proved beyond a reasonable doubt.’” Id. However,
Krill’s argument is misplaced because he did have a prior conviction. Thus, the trial
court is following the law in Foster. Also, Krill waived his right to a jury trial with
regard to the firearm specification.
There are countless cases in our jurisdiction where the trial court has
sentenced an offender on firearm specifications after a bench trial. See, e.g.,
Parham v. McManamon, 8th Dist. Cuyahoga No. 103679, 2016-Ohio-3264, ¶ 2;
State v. Nelson, 8th Dist. Cuyahoga No. 110593, 2022-Ohio-1665; State v. Watson,
8th Dist. Cuyahoga No. 109044, 2020-Ohio-3462; and State v. Woods, 8th Dist.
Cuyahoga No. 106476, 2018-Ohio-4856. Similar to our instant case, in Woods, the
appellant elected to have a bench trial on the having weapons while under a
disability counts. The trial court found Woods guilty and sentenced him on the
firearm specifications. The trial court’s decision was affirmed by this court, because
the trial court has the authority to impose prison terms on firearm specifications.
Therefore, Krill’s first assignment of error is overruled.
IV. Ineffective Assistance of Counsel.
In Krill’s second assignment of error, he argues that he received
ineffective assistance of counsel at sentencing when counsel failed to object to the
imposition of prison terms on the firearm specifications. “A claim of ineffective
assistance of counsel is judged using the standard announced in Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).” State v.
Sims, 8th Dist. Cuyahoga No. 109335, 2021-Ohio-4009, ¶ 21, citing State v. Bradley,
42 Ohio St.3d 136, 538 N.E.2d 373 (1989). “‘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 addition, prejudice
arises from counsel’s performance.’” Id., quoting Bradley, at paragraph two of the
syllabus.
“The Sixth Amendment to the United States Constitution guarantees
a defendant the effective assistance of counsel at all ‘critical stages’ of a criminal
proceeding, including sentencing.” State v. Debose, 8th Dist. Cuyahoga No. 109531,
2022-Ohio-837, ¶ 20, citing State v. Davis, 159 Ohio St.3d 31, 2020-Ohio- 309, 146
N.E.3d 560, ¶ 7 (“sentencing is a critical stage in which a felony offender has a right
to counsel”), citing State v. Schleiger, 141 Ohio St.3d 67, 2014-Ohio-3970, 21 N.E.3d
1033, ¶ 15, and Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 51 L.Ed.2d 393(1977).
However, we previously determined that the trial court had the
authority to sentence Krill on the firearm specifications. Thus, his trial counsel did
not err or provide ineffective assistance of counsel when trial counsel did not object
to the imposition of prison terms. “Trial counsel is not ineffective for failing to make
a futile argument.” State v. Trafton, 12th Dist. Warren No. CA2022-06-040, 2023-
Ohio-122, ¶ 29, citing State v. Martinez, 1st Dist. Hamilton No. C-180580, 2019-
Ohio-3350, ¶ 12, citing State v. Black, 1st Dist. Hamilton No. C-100357, 2011-Ohio-
1330, ¶ 23 (the failure to make a futile argument is not ineffective assistance of
counsel).
Therefore, Krill’s second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending is terminated.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
______________________________________
ANITA LASTER MAYS, ADMINISTRATIVE JUDGE
FRANK DANIEL CELEBREZZE, III, J., and
MARY EILEEN KILBANE, J., CONCUR
KEYWORDS
#111613
Waiver of jury trial; firearm specifications; ineffective assistance of counsel. The
trial court did not err when it accepted the appellant’s jury trial waiver because the
waiver was executed in open court, signed, and the appellant was represented by
counsel. The trial court did not err when it sentenced the appellant on firearm
specifications because the trial court has the authority to sentence and made the
necessary findings. The appellant was not rendered ineffective assistance of
counsel for counsel’s failure to object to the trial court’s imposition of a prison
sentence on the firearm specifications, because the trial court has the authority to
sentence the appellant on firearm specifications.