State v. Huber

[Cite as State v. Huber, 2023-Ohio-1658.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 30415
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
THOMAS L. HUBER COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 22 02 0482
DECISION AND JOURNAL ENTRY
Dated: May 17, 2023
HENSAL, Presiding Judge.
{¶1} Thomas Huber appeals his sentences for domestic violence and gross sexual
imposition from the Summit County Court of Common Pleas. For the following reasons, this
Court affirms.
I.
{¶2} The Grand Jury indicted Mr. Huber on one count of domestic violence and one
count of attempted rape. After the State amended the attempted rape count to gross sexual
imposition, Mr. Huber agreed to plead guilty to the offenses. Following the preparation of a pre-
sentence investigation report, the State requested that the trial court sentence Mr. Huber to three
years of imprisonment. Mr. Huber requested that the court consider community control instead.
Following a review of the sentencing factors, the court sentenced Mr. Huber to 30 months on both
counts, which it ordered to run concurrently. Mr. Huber has appealed his sentences, assigning two
errors.
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II.
ASSIGNMENT OF ERROR I
TRIAL COURT IMPOSING A PRISON SENTENCE ON MR. HUBER WAS
CONTRARY TO LAW AND IN VIOLATION OF THE DUE PROCESS
CLAUSE OF THE 14TH AMENDMENT TO THE U.S. CONSTITUTION AND
ARTICLE 1, SECTION 2 OF THE OHIO CONSTITUTION.
{¶3} In his first assignment of error, Mr. Huber argues that his sentences are contrary to
law and violate his right to due process. In reviewing a felony sentence, “[t]he * * * standard for
review is not whether the sentencing court abused its discretion.” R.C. 2953.08(G)(2). “[A]n
appellate court may vacate or modify a felony sentence on appeal only if it determines by clear
and convincing evidence” that: (1) “the record does not support the trial court’s findings under
relevant statutes[,]” or (2) “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.” Cross
v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶4} According to Mr. Huber, his sentences are contrary to law because his presentence
report indicates he was amenable to a community control sanction. He argues that he took
responsibility for his conduct, was remorseful, was employed, did not have a serious felony record,
had not had any criminal offenses for a lengthy period, and committed the offenses while he was
grieving his recently deceased father and while off his medication for bi-polar disorder. Mr. Huber
argues that these factors suggest that there is little likelihood that he will commit a similar offense
in the future.
{¶5} When reviewing a felony sentence, this Court does not conduct a plenary review of
the sentencing and may not substitute its “judgment for that of the trial court regarding the
appropriate sentences * * * under R.C. 2929.11 and 2929.12.” State v. Jones, 163 Ohio St.3d 242,
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2020-Ohio-6729, ¶ 41. At sentencing, the trial court noted the level of the charges and the fact
that it was Mr. Huber’s third domestic violence offense. It noted that Mr. Huber had violated
protection orders two times. It also noted that courts in the past had tried placing Mr. Huber in
various programs, but Mr. Huber was back in court on a serious offense, nonetheless. The court
also considered the trauma that Mr. Huber’s wife had endured, which included bruising, emotional
harm, and economic harm. The court further noted that Mr. Huber’s relationship with his wife had
facilitated the offense.
{¶6} Upon review of the record, this Court concludes that Mr. Huber has not established
by clear and convincing evidence that the trial court’s sentence was contrary to law or violated his
due process rights. Mr. Huber’s first assignment of error is overruled.
ASSIGNMENT OF ERROR II
MR. HUBER WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF
COUNSEL GUARANTEED UNDER THE SIXTH AMENDMENT TO THE U.S.
CONSTITUTION AND ARTICLE 1, SECTION 1, 10 & 16 OF THE OHIO
CONSTITUTION. THE TRIAL COURT ERRED AS A MATTER OF LAW IN
SENTENCING MR. HUBER IN VIOLATION OF THE DOUBLE JEOPARDY
CLAUSE OF THE 5TH AMENDMENT TO THE U.S. CONSTITUTION AND
ARTICLE 1, SECTION[ ] 10 OF THE OHIO CONSTITUTION.
{¶7} In his second assignment of error, Mr. Huber argues that his offenses were allied
and should have merged for sentencing purposes because they were committed with the same
conduct and part of a single continuous act. He also argues that his trial counsel was ineffective
for not arguing that the offenses were allied at the sentencing hearing.
{¶8} Section 2941.25 “is the primary indication of the General Assembly’s intent to
prohibit or allow multiple punishments for two or more offenses resulting from the same conduct”
and is “an attempt to codify the judicial doctrine of merger[.]” State v. Washington, 137 Ohio
St.3d 427, 2013-Ohio-4982, ¶ 11. It provides:
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(A) Where the same conduct by defendant can be construed to constitute two or more allied
offenses of similar import, the indictment or information may contain counts for all such
offenses, but the defendant may be convicted of only one.
(B) Where the defendant’s conduct constitutes two or more offenses of dissimilar import,
or where his conduct results in two or more offenses of the same or similar kind committed
separately or with a separate animus as to each, the indictment or information may contain
counts for all such offenses, and the defendant may be convicted of all of them.
R.C. 2941.25. In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, the Ohio Supreme Court
interpreted Section 2941.25(B), explaining:
Under R.C. 2941.25(B), a defendant whose conduct supports multiple offenses may be
convicted of all the offenses if any one of the following is true: (1) the conduct constitutes
offenses of dissimilar import, (2) the conduct shows that the offenses were committed
separately, or (3) the conduct shows that the offenses were committed with separate
animus.
Id. at paragraph three of the syllabus. When determining whether offenses merge under Section
2941.25, this Court ordinarily applies a de novo standard of review. State v. Williams, 134 Ohio
St.3d 482, 2012-Ohio-5699, ¶ 12. If a defendant does not raise allied offenses at sentencing,
however, he “forfeits all but plain error, and a forfeited error is not reversible error unless it
affected the outcome of the proceeding and reversal is necessary to correct a manifest miscarriage
of justice.” State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, ¶ 3. In that situation, it is an
appellant’s “burden to demonstrate a reasonable probability that the convictions are for allied
offenses of similar import committed with the same conduct and without a separate animus; absent
that showing, the accused cannot demonstrate that the trial court’s failure to inquire whether the
convictions merge for purposes of sentencing was plain error.” Id.{¶9} Regarding ineffective assistance of counsel, to prevail on his claim, Mr. Huber must
establish (1) that his counsel’s performance was deficient to the extent that “counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) that but
for his counsel’s deficient performance the result of the trial would have been different. Strickland
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v. Washington, 466 U.S. 668, 687 (1984). A deficient performance is one that falls below “an
objective standard of reasonable representation.” State v. Bradley, 42 Ohio St.3d 136 (1989),
paragraph two of the syllabus. A court, however, “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.’” Strickland at 689, quoting Michel v. Louisiana, 350
U.S. 91, 101 (1955). To establish prejudice, Mr. Huber must show that there existed “a reasonable
probability that, but for his counsel’s errors, the outcome of the proceeding would have been
different.” State v. Sowell, 148 Ohio St.3d 554, 2016-Ohio-8025, ¶ 138.
{¶10} Few details about the circumstances of the offenses were discussed at the plea and
sentencing hearings. According to the pre-sentence investigation report, however, Mr. Huber’s
wife told law enforcement that, after they had an argument in their bedroom over sex, Mr. Huber
ripped her shirt off. She put on a different shirt and went to the garage, but Mr. Huber followed
her, they had another argument, and Mr. Huber ripped her shirt and bra off. He also struck her
face. She managed to leave the house and went to a nearby gas station to call for help. According
to Mr. Huber’s statement, he removed a total of three different shirts from his wife, but he denied
striking her on the face.
{¶11} The gross sexual imposition offense was, presumably, related to Mr. Huber’s
removal of his wife’s shirts. According to her report to law enforcement, this occurred in the
bedroom of their house and again later in the garage. She described what happened when Mr.
Huber came into the garage as another verbal argument, suggesting that it was not merely a
continuation of the original one. Accordingly, upon review of the record, this Court concludes
that Mr. Huber has not established that it was plain error to sentence him on both counts. He also
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has not demonstrated that his trial counsel’s performance was deficient for failing to argue that the
offenses were allied at the sentencing hearing. Thus, he has not demonstrated ineffective
assistance of counsel. Mr. Huber’s second assignment of error is overruled.
III.
{¶12} Mr. Huber’s assignments of error are overruled. The judgment of the Summit
County Court of Common Pleas is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period
for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is instructed to
mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the
docket, pursuant to App.R. 30.
Costs taxed to Appellant.
JENNIFER HENSAL
FOR THE COURT
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CARR, J.
STEVENSON, J.
CONCUR.
APPEARANCES:
JAMES K. REED, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and JACQUENETTE S. CORGAN, Assistant
Prosecuting Attorney, for Appellee.