State v. Reinthaler , 2018 Ohio 2483 ( 2018 )

[Cite as State v. Reinthaler, 2018-Ohio-2483.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
MAHONING COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
JOSEPH J. REINTHALER, JR.,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 16 MA 0170
Motion to Reopen
BEFORE:
Cheryl L. Waite, Carol Ann Robb, Kathleen Bartlett, Judges.
JUDGMENT:
Affirmed in part. Remanded in part.
Atty. Paul J. Gains, Mahoning County Prosecutor and
Atty. Nicholas A. Brevetta, Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee
Joseph J. Reinthaler, Jr., Pro se, #691-861
Belmont Correctional Institution, 68518 Bannock Road, P.O. Box 540, St. Clairsville,
Ohio 43950.
Dated: June 21, 2018
PER CURIAM.
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{¶1} Appellant Joseph J. Reinthaler, Jr. has filed an Application for Reopening
his appeal pursuant to App.R. 26(B). Appellant pleaded guilty and was convicted of one
count of tampering with records in violation of R.C. 2913.42(A)(2), (B)(1)(4), a felony of
the third degree, one count of forgery in violation of R.C. 2913.(A)(3)(C), a felony of the
fifth degree, one count of engaging in a pattern of corrupt activity in violation of R.C.
2923.32(A)(3), (B)(1), a felony of the first degree, and sixty-seven counts of tampering
with records in violation of R.C. 2913.42(A)(2), (B)(1)(4), felonies of the third degree.
{¶2} His guilty plea and conviction were based on a pattern of corrupt activity at
his automobile dealership, where he would accept used automobiles in trade, then
resell them without discharging the lien of the previous owner. On direct appeal,
Appellant challenged the voluntary nature of his plea, as well as propriety of the trial
court’s imposition of consecutive sentences. We affirmed his convictions and sentence,
but remanded the matter for the limited purpose of entering a nunc pro tunc entry that
memorialized the trial court’s findings with respect to consecutive sentences at the
sentencing hearing. As of the date of this order, no nunc pro tunc order has been filed
by the trial court.
{¶3} A criminal defendant may apply for reopening of his appeal from the
judgment of conviction and sentence based on a claim of ineffective assistance of
appellate counsel. App.R. 26(B)(1). The application for reopening cannot merely allege
that appellate counsel rendered ineffective assistance for failing to brief certain issues.
Rather, the application must demonstrate that there is a “genuine issue as to whether
the applicant was deprived of the effective assistance of counsel on appeal.” App.R.
26(B)(5).
Case No. 16 MA 0170
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{¶4} The test for ineffective assistance of appellate counsel has two parts:
establishing that counsel's performance was deficient, and that this resulted in
prejudice. State v. Tenace, 109 Ohio St. 3d 451, 2006-Ohio-2987, 849 N.E.2d 1, ¶ 5,
citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984); App.R. 26(B)(9). Appellant must show that counsel's performance was so
deficient that it fell below an objective standard of reasonableness and, but for this
substandard representation, the outcome of the case would have been different.
Strickland at 687. Establishing ineffective assistance of appellate counsel means that
the applicant must prove that counsel was deficient for failing to raise the issues he now
presents and that there was a reasonable probability of success had he presented
those claims on appeal. State v. Were, 120 Ohio St. 3d 85, 2008-Ohio-5277, 896
N.E.2d 699, ¶ 10-11.
{¶5} However, appellate counsel need not raise every possible issue in order to
render constitutionally effective assistance. Tenace at ¶ 7, citing Jones v. Barnes, 463
U.S. 745, 751, 103 S. Ct. 3308, 77 L. Ed. 2d 987 (1983). Counsel is expected to focus on
the stronger arguments and leave out the weaker ones, as this strategy is generally
accepted as the most effective means of presenting a case on appeal. State v. Adams,
7th Dist. No. 08 MA 246, 2012-Ohio-2719, ¶ 8-12.
{¶6} First, it is important to note that Appellant did not fulfill the requirements of
App.R. 26(B)(2)(d), insofar as he failed to submit a sworn statement of the basis for his
claim that appellate counsel's representation was deficient with respect to the
assignments of error or arguments raised pursuant to division (B)(2)(c), and the manner
in which the deficiency prejudicially affected the outcome of the appeal.
Case No. 16 MA 0170
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{¶7} Appellant advances four assignments of error. First, he argues that the
trial court imposed an aggregate sentence of thirteen years at the sentencing hearing,
but an aggregate sentence of fourteen years in the judgment entry of sentencing.
{¶8} In fact, the trial court imposed twelve-month concurrent sentences for
each of the sixty-seven counts of tampering with records. At the sentencing hearing,
the trial court stated that the twelve-month concurrent sentences were to be served
concurrently with the twelve-year consecutive sentences imposed for counts one, two,
and three. In the judgment entry, the trial court wrote that the twelve-month concurrent
sentences were to be served consecutively to the twelve-year consecutive sentence
imposed for counts one, two, and three.
{¶9} Crim.R. 43(A) provides that “the defendant must be physically present at
every stage of the criminal proceeding and trial, including * * * the imposition of
sentence.” Because a defendant is required to be present when sentence is imposed, it
constitutes reversible error for the trial court to impose a sentence in its judgment entry
different than the sentence announced at the sentencing hearing in defendant's
presence. If there exists a variance between the sentence pronounced in open court
and the sentence imposed by a court's judgment entry, a remand for resentencing is
required. State v. Williams, 6th Dist. No. L-11-1084, 2013-Ohio-726, 987 N.E.2d 322,
¶ 49. See also State v. Quinones, 8th Dist. No. 89221, 2007-Ohio-6077, ¶ 5; State v.
Hess, 7th Dist. No. 00-JE-40, 2001-Ohio-3463. Therefore, Appellant’s first assignment
of error has merit.
{¶10} Next, Appellant asserts that the summary of his crimes provided at the
sentencing hearing by the prosecutor and Amanda Butler, a Bureau of Motor Vehicles
Case No. 16 MA 0170
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investigator, misstated his criminal conduct. (11/3/16 Sent. Hrg., pp. 4-5.) He
specifically denies in his brief that he intentionally failed to discharge pre-existing liens
before re-selling the used automobiles but, as previously stated, offered no affidavit
containing a sworn statement. More importantly, Appellant was given an opportunity to
allocute at the sentencing hearing. In other words, Appellant had the opportunity to
correct the alleged misstatements by the prosecutor and Butler, but given this
opportunity said nothing on the record.
{¶11} The facts here are clearly distinguishable from Stewart v. Ervin, 503 F.3d
488 (6th Cir.2007), which Appellant cites in his brief. In that case, the petitioner was
denied access to the presentence report and victim impact statements prior to
sentencing. The same is not true here. Appellant was fully aware of the factual basis
on which the trial court relied for sentencing prior to his opportunity to allocute. He
waived his opportunity to object to the state’s recitation of the facts.
{¶12} Third, Appellant contends that statements made on behalf of the state at
the sentencing hearing regarding uncharged conduct affected the length of his
sentence. Appellant argues that he was convicted of uncharged conduct. In fact, to the
extent that the trial court considered information about uncharged conduct, it impacted
his sentence, not his conviction.
{¶13} Conduct by a defendant that does not result in a conviction, much less a
criminal charge, can be considered by the court during sentencing. State v. Clayton,
8th Dist. No. 99700, 2014-Ohio-112, ¶ 16. One caveat is that uncharged conduct
cannot form “the sole basis for the sentence.” State v. Gray, 8th Dist. No. 91806, 2009-
Ohio-4200, ¶ 13, citing State v. Williams, 8th Dist. No. 79273, 2002-Ohio-503. “Courts
Case No. 16 MA 0170
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have historically been permitted to consider hearsay evidence, evidence of an
offender's criminal history, the facts concerning charges dismissed, and even offenses
for which charges were not filed, but were addressed in the presentence investigation.”
State v. Ropp, 3d Dist. No. 14-13-21, 2014-Ohio-2462, ¶ 4. The court can “consider
other charges, including charges which were dismissed as part of a plea agreement,
during sentencing.” State v. Edwards, 8th Dist. No. 85908, 2006-Ohio-2315, ¶ 43. And
“prior arrests, facts supporting a charge that resulted in an acquittal, and facts related to
a charge that was dismissed under a plea agreement” are valid sentencing
considerations. State v. Bodkins, 2d Dist. No. 10-CA-38, 2011-Ohio-1274, ¶ 43.
Accordingly, to the extent that the trial court considered information regarding
Appellant’s unindicted criminal activity, Appellant was not denied effective assistance of
counsel when appellate counsel failed to raise this issue on appeal.
{¶14} Finally, Appellant contends that his sentence is inconsistent with similarly
situated defendants. Appellant relies on a six-year sentence recently imposed by the
trial court in a case involving a fraudulent sports memorabilia ring. On direct appeal, we
concluded that the sentence imposed was not contrary to law, and that the record
supported the sentence. Appellant’s argument is akin to an abuse of discretion
challenge. However, Ohio appellate courts no longer review sentences for an abuse of
discretion. State v. Hudson, 7th Dist. No. 15 MA 0134, 2017-Ohio-645, ¶ 33, citing
State v. Marcum, 146 Ohio St. 3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 10, 16.
{¶15} In summary, we find that appellate counsel provided ineffective assistance
insofar as he failed to raise the variance between the sentence imposed at the
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sentencing hearing and the sentence imposed in the sentencing entry on direct appeal.
Appellant’s remaining assignments of error have no merit.
{¶16} The appropriate remedy is a limited remand for a nunc pro tunc order
correcting the clerical error that the twelve-month concurrent sentences on each of the
sixty-seven counts are to be served concurrently with the twelve-year consecutive
sentences imposed for counts one, two, and three. Insofar as the trial court has yet to
issue a nunc pro tunc order memorializing its findings on the imposition of consecutive
sentences, any nunc pro tunc order now issued must correct both clerical errors.
JUDGE CHERYL L. WAITE
JUDGE CAROL ANN ROBB
JUDGE KATHLEEN BARTLETT
NOTICE TO COUNSEL
This document constitutes a final judgment entry.
Case No. 16 MA 0170