State v. Nocera , 2019 Ohio 2424 ( 2019 )


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  • [Cite as State v. Nocera, 2019-Ohio-2424.]
    COURT OF APPEALS
    STARK COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    STATE OF OHIO                               :   JUDGES:
    :
    :   Hon. W. Scott Gwin, P.J.
    Plaintiff-Appellee                   :   Hon. John W. Wise, J.
    :   Hon. Patricia A. Delaney, J.
    -vs-                                        :
    :   Case No. 2018CA00111
    :
    DANIEL MICHAEL NOCERA                       :
    :
    :
    Defendant-Appellant                  :   OPINION
    CHARACTER OF PROCEEDING:                         Appeal from the Stark County
    Court of Common Pleas, Case
    No. 2018CR0545
    JUDGMENT:                                        AFFIRMED
    DATE OF JUDGMENT ENTRY:                          June 14, 2019
    APPEARANCES:
    For Plaintiff-Appellee:                         For Defendant-Appellant:
    JOHN D. FERRERO, JR.                            AARON KOVALCHIK
    STARK CO. PROSECUTOR                            116 Cleveland Ave. N.W.
    RONALD MARK CALDWELL                            808 Courtyard Centre
    110 Central Plaza South, Ste. 510               Canton, OH 44702
    Canton, OH 44702-1413
    Stark County, Case No. 2018CA00111                                                2
    Delaney, J.
    {¶1} Appellant Daniel Michael Nocera appeals from the July 5, 2018
    Judgment Entry of the Stark County Court of Common Pleas. Appellee is the state
    of Ohio.
    FACTS AND PROCEDURAL HISTORY
    {¶2} A statement of the facts underlying appellant’s criminal convictions
    is not necessary to our resolution of this appeal.
    {¶3} Appellant was charged by indictment with one count of violation of a
    protection order pursuant to R.C. 2919.27(A)(2), a felony of the third degree [Count
    I]; one count of menacing by stalking pursuant to R.C. 2903.211(A)(1) and
    (B)(2)(g), a felony of the fourth degree [Count II]; and one count of
    telecommunications harassment pursuant to R.C. 2917.21(A)(1), a felony of the
    fifth degree [Count III].
    {¶4} On May 23, 2018, appellant appeared before the trial court and
    changed his previously-entered pleas of not guilty to ones of guilty as charged in
    the indictment.     The trial court deferred sentencing pending a pre-sentence
    investigation (P.S.I.).
    {¶5} On June 27, 2018, appellant appeared for sentencing and the trial
    court suspended a 36-month prison term on the condition that appellant complete
    a 36-month period of community control. Appellant was ordered to, e.g., complete
    a term in a community-based corrections facility, complete drug and alcohol
    treatment, obtain employment, complete community service, and to have no
    contact with the victim.
    Stark County, Case No. 2018CA00111                                                3
    {¶6} Appellant now appeals from the trial court’s July 5, 2018 Judgment
    Entry of conviction and sentence.
    {¶7} Appellant raises one assignment of error:
    ASSIGNMENT OF ERROR
    {¶8} “APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT TO
    EFFECTIVE ASSISTANCE OF COUNSEL.”
    ANALYSIS
    {¶9} In his sole assignment of error, appellant argues he received
    ineffective assistance of counsel because the trial court suspended a jail term of 3
    years instead of one year. We disagree.
    {¶10} To succeed on a claim of ineffectiveness, a defendant must satisfy a
    two-prong test. Initially, a defendant must show that trial counsel acted
    incompetently. See, Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    (1984). In assessing such claims, “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,
    citing Michel v. Louisiana, 
    350 U.S. 91
    , 101, 
    76 S. Ct. 158
    (1955).
    {¶11} “There are countless ways to provide effective assistance in any
    given case. Even the best criminal defense attorneys would not defend a particular
    client in the same way.” 
    Strickland, 466 U.S. at 689
    . The question is whether
    counsel acted “outside the wide range of professionally competent assistance.” 
    Id. at 690.
    Stark County, Case No. 2018CA00111                                                   4
    {¶12} Even if a defendant shows that counsel was incompetent, the
    defendant must then satisfy the second prong of the Strickland test. Under this
    “actual prejudice” prong, the defendant must show that “there is a reasonable
    probability that, but for counsel's unprofessional errors, the result of the proceeding
    would have been different.” 
    Strickland, 466 U.S. at 694
    .
    {¶13} On the record at the change-of-plea hearing, the trial court indicated
    appellant was subject to a potential prison sentence of up to 36 months upon Count
    I, up to 18 months upon Count II, and 6 to 12 months upon Count III. Appellant
    was further advised that those terms could be served concurrently or
    consecutively.     Appellant stated affirmatively that he understood the potential
    penalties. He also executed a Crim.R. 11(C) plea form acknowledging those
    potential penalties and that he understood the rights he waived in entering the
    guilty pleas.
    {¶14} At the sentencing hearing on June 27, 2018, the trial court stated it
    was in receipt of the P.S.I. and would sentence appellant to a community-control
    term of 36 months. The following statements were then made:
    THE COURT: ****.
    As indicated, going to be held for a bed at the Regional
    Correctional Facility. I remind you that the balance of 36 months will
    be imposed if you fail to comply or otherwise violate.
    Do you understand that?
    [APPELLANT:] Uh—
    THE COURT: Do you understand that?
    Stark County, Case No. 2018CA00111                                                 5
    [APPELLANT:] I thought it was a year.
    (Private conversation held between Defense attorney and
    [appellant].)
    THE COURT: You mean that’s being held?
    [APPELLANT:] Yeah.
    THE COURT:          No. And that’s—that really shouldn’t be
    something you should worry about.
    [APPELLANT:] No, I’m not.
    THE COURT: Because you’re not going to be back in front of
    me so it isn’t going to matter, but if you do, then it’s going to be 36
    months. We’re not going to mess around.
    Listen! Be careful.
    That will be all.
    [DEFENSE TRIAL COUNSEL:] Thank you, Your Honor.
    T. 4-5.
    {¶15} Appellant has framed his argument on appeal as one of ineffective
    assistance of counsel, although he summarily mentions that his plea was not
    knowing, intelligent, or voluntary because he expected to receive a suspended
    prison term of one year instead of three years. Appellant has not offered any
    explanation why he believed only one year would be suspended. Nor does he
    point to any support for his belief in the record. Instead, he points to the exchange
    above with the trial court as evidence of the second Strickland prong of ineffective
    assistance: he would not have entered the guilty pleas and would have gone to
    Stark County, Case No. 2018CA00111                                                6
    trial if he had known three years would be suspended instead of one. This self-
    serving statement is not supported by any evidence in the record.
    {¶16} The conversation 
    cited supra
    does not establish the circumstances
    surrounding appellant's decision to enter the pleas of guilty. Appellant does not
    make any claims about the conversation that he had with defense counsel off the
    record, and we observe that a claim requiring proof that exists outside of the trial
    record cannot appropriately be considered on a direct appeal. State v. Hartman,
    
    93 Ohio St. 3d 274
    , 299, 
    754 N.E.2d 1150
    (2001) (if establishing ineffective
    assistance of counsel requires proof outside the record, then such claim is not
    appropriately considered on direct appeal).
    {¶17} Appellant alleges that but for the ineffectiveness of his attorney, he
    would not have pleaded guilty and would have insisted on going to trial. We find
    no evidence that appellant failed to knowingly, intelligently, and voluntarily enter
    his pleas. See, State v. Congrove, 5th Dist. Delaware No. 09 CAA 09 0080, 2010-
    Ohio-2933, ¶ 35. Nor do we find any evidence in support of appellant’s argument
    of ineffective assistance of counsel. Appellant has not alleged any specific error
    by counsel, and has not established that but for counsel’s ineffectiveness, he
    would not have entered the guilty pleas.
    {¶18} Appellant’s sole assignment of error is overruled.
    Stark County, Case No. 2018CA00111                                          7
    CONCLUSION
    {¶19} Appellant’s sole assignment of error is overruled and the judgment
    of the Stark County Court of Common Pleas is affirmed.
    By: Delaney, J.,
    Gwin, P.J. and
    Wise, John, J., concur.
    

Document Info

Docket Number: 2018CA00111

Citation Numbers: 2019 Ohio 2424

Judges: Delaney

Filed Date: 6/14/2019

Precedential Status: Precedential

Modified Date: 6/19/2019