State v. Cooper , 2019 Ohio 2813 ( 2019 )


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  •          [Cite as State v. Cooper, 2019-Ohio-2813.]
    IN THE COURT OF APPEALS
    FIRST APPELLATE DISTRICT OF OHIO
    HAMILTON COUNTY, OHIO
    STATE OF OHIO,                                        :   APPEAL NO. C-180401
    TRIAL NO. B-1702699
    Plaintiff-Appellee,                           :
    O P I N I O N.
    vs.                                                 :
    JEFFREY COOPER,                                       :
    Defendant-Appellant.                              :
    Criminal Appeal From: Hamilton County Court of Common Pleas
    Judgment Appealed From Is: Affirmed and Cause Remanded
    Date of Judgment Entry on Appeal: July 10, 2019
    Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan,
    Assistant Prosecuting Attorney, for Plaintiff-Appellee,
    Timothy J. McKenna, for Defendant-Appellant.
    OHIO FIRST DISTRICT COURT OF APPEALS
    MYERS, Judge.
    {¶1}    In this appeal, defendant-appellant Jeffrey Cooper raises four
    assignments of error challenging his conviction for felonious assault. Finding his
    assignments of error to be without merit, we affirm the trial court’s judgment. But
    because the trial court’s sentencing entry incorrectly reflects that Cooper was
    convicted of two counts of felonious assault, we remand the case for the trial court to
    issue a nunc pro tunc entry correcting the clerical error in the sentencing entry.
    Factual and Procedural Background
    {¶2}   On May 6, 2017, Hamilton County Sheriff’s Deputy Michael Schneider
    responded to a dispatch for a domestic disturbance in the lobby of a Days Inn hotel.
    Upon his arrival, a female in the lobby told Deputy Schneider that Cooper had taken
    her cell phone and would not return it. Deputy Schneider attempted to engage
    Cooper in a dialogue regarding the phone, but Cooper ignored him. When Deputy
    Schneider told Cooper that he could either return the phone or go to jail, Cooper
    charged at the deputy and put him in a chokehold, repeatedly stating that “You are
    going to die today.” Cooper took Deputy Schneider to the floor, with his arms
    around the deputy’s neck and his legs wrapped around the deputy’s body. Cooper
    refused to let go when ordered to do so by another deputy, and only released his hold
    on Deputy Schneider when he was tased.
    {¶3}   The grand jury issued an indictment charging Cooper with attempted
    murder in violation of R.C. 2923.02(A), felonious assault in violation of R.C.
    2903.11(A)(1) (alleging that he had caused serious physical harm to Deputy
    Schneider), felonious assault in violation of R.C. 2903.11(A)(2) (alleging that he had
    caused physical harm to Deputy Schneider with a deadly weapon, specifically mixed
    martial arts training), and aggravated robbery in violation of R.C. 2911.01(B).
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    OHIO FIRST DISTRICT COURT OF APPEALS
    {¶4}   At a bench trial, Deputy Schneider testified about Cooper’s attack,
    explaining that he lost consciousness several times while Cooper had him in the
    chokehold. He was hospitalized for three days and suffered a pseudoaneurysm to his
    carotid artery. He additionally suffered vertigo, neck pain, chronic headaches, and
    bouts of depression and anxiety. Hamilton County Sheriff’s Deputy William Cruz
    testified that he had arrived on the scene after Deputy Schneider. After Cooper
    ignored Deputy Cruz’s verbal command to release Deputy Schneider, Deputy Cruz
    tased Cooper, which caused Cooper to release his grip.
    {¶5}   Cooper testified that he had previously served two overseas tours in
    the army, and that he had been diagnosed with posttraumatic stress disorder
    (“PTSD”) and readjustment disorder. He had been prescribed medicine to treat
    these disorders, but had not taken the medicine for approximately one week prior to
    his attack on Deputy Schneider. Cooper explained that the cell phone he had refused
    to return belonged to his ex-girlfriend and that he had been using it to locate an
    email. According to Cooper, he told Deputy Schneider that he would return the
    phone once he found the email. Cooper saw Deputy Schneider’s hands on his belt
    and he thought that the deputy was reaching for his weapon. He testified that he put
    Deputy Schneider in the chokehold to restrain him, rather than hurt him, and that he
    told the deputy that “I’m not going to die today.” On cross-examination, Cooper
    testified that he was trained in the Korean martial art of tang soo do.
    {¶6}   After a trial to the bench, the trial court acquitted Cooper of attempted
    murder and aggravated robbery, but found him guilty of both counts of felonious
    assault. At the sentencing hearing, the prosecutor referenced that defense counsel
    had made a post-trial motion to merge the two counts of felonious assault. The trial
    court stated that it was proceeding with sentencing on count two, which was Cooper’s
    conviction for felonious assault in violation of R.C. 2903.11(A)(1) for causing serious
    physical harm to Deputy Schneider.         Cooper received a sentence of 11 years’
    imprisonment.
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    OHIO FIRST DISTRICT COURT OF APPEALS
    Allied Offenses
    {¶7}   In his first assignment of error, Cooper argues that the trial court erred
    in imposing sentences on allied offenses of similar import and that the trial court
    should have merged his two convictions for felonious assault.
    {¶8}   Cooper’s argument is without merit, as the record clearly indicates that
    the trial court did, in fact, merge the two counts of felonious assault. The trial court
    stated at the sentencing hearing that it was proceeding with sentencing on Cooper’s
    felonious-assault conviction in count two. And the record clearly indicates that the
    court never imposed a sentence for the charge of felonious assault in violation of R.C.
    2903.11(A)(2) in count three. Therefore, Cooper was only convicted of one count of
    felonious assault.
    {¶9}   The trial court’s sentencing entry contains a clerical error, as it states
    that the court imposed a sentence of 11 years’ imprisonment on each count of
    felonious assault, and that these two sentences were to be served concurrently. We
    accordingly overrule Cooper’s assignment of error, but remand this case for the trial
    court to correct the clerical error in its sentencing entry so that the entry conforms to
    the sentencing hearing and reflects that the two counts of felonious assault were
    merged.
    Sentence Imposed
    {¶10} Cooper argues in his second assignment of error that the record does
    not support the sentence imposed by the trial court. He specifically argues that the
    trial court erred in imposing a maximum sentence and that it failed to consider the
    principles and purposes of sentencing in R.C. 2929.11 and 2929.12.
    {¶11} Pursuant to R.C. 2953.08(G)(2)(a), we may modify or vacate a
    defendant’s sentence only if we clearly and convincingly find that the record does not
    support the mandatory sentencing findings or that the sentence is contrary to law.
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    OHIO FIRST DISTRICT COURT OF APPEALS
    State v. Marcum, 
    146 Ohio St. 3d 516
    , 2016-Ohio-1002, 
    59 N.E.3d 1231
    , ¶ 22-23;
    State v. White, 2013-Ohio-4225, 
    997 N.E.2d 629
    , ¶ 5 (1st Dist.).
    {¶12} Here, the trial court was not required to make any mandatory findings
    before imposing sentence. Cooper’s sentence of 11 years’ imprisonment fell within
    the available sentencing range and was not contrary to law. And this court has
    consistently held that R.C. 2929.11 and 2929.12 are not fact-finding statutes, and
    that, in the absence of an affirmative demonstration by the defendant to the
    contrary, we may presume that the trial court considered them. State v. Patterson,
    1st Dist. Hamilton No. C-170329, 2018-Ohio-3348, ¶ 60. Cooper has made no such
    affirmative demonstration.
    {¶13} The second assignment of error is overruled.
    Sufficiency and Weight of the Evidence
    {¶14} We address Cooper’s remaining assignments of error out of order. In
    his fourth assignment of error, Cooper argues that his conviction in count three for
    felonious assault in violation of R.C. 2903.11(A)(2) for causing physical harm to
    Deputy Schneider with a deadly weapon was not supported by sufficient evidence
    and was against the weight of the evidence because the state failed to prove that his
    hands were deadly weapons.
    {¶15} The charge of felonious assault in count three for a violation of R.C.
    2903.11(A)(2) was merged at sentencing with the felonious assault charged in count
    two for a violation of R.C. 2903.11(A)(1).1 No sentence was imposed for the violation
    of R.C. 2903.11(A)(2), and Cooper was not convicted of that offense. Because no
    judgment of conviction was entered, we do not consider a challenge to the sufficiency
    or the weight of the evidence as to that offense. State v. Phillips, 1st Dist. Hamilton
    1 Cooper raises no challenge to the sufficiency and weight of the evidence supporting his
    conviction for felonious assault in violation of R.C. 2903.11(A)(1).
    5
    OHIO FIRST DISTRICT COURT OF APPEALS
    Nos. C-150376 and C-150378, 2016-Ohio-4672, ¶ 15. See State v. Bell, 8th Dist.
    Cuyahoga No. 106842, 2019-Ohio-340, ¶ 53.
    {¶16} The fourth assignment of error is accordingly overruled.
    Ineffective Assistance
    {¶17} In his third assignment of error, Cooper argues that he received
    ineffective assistance from his trial counsel.
    {¶18} Counsel will not be considered ineffective unless her or his
    performance was deficient and caused actual prejudice to the defendant. Strickland
    v. Washington, 
    466 U.S. 668
    , 687, 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984); State v.
    Bradley, 
    42 Ohio St. 3d 136
    , 141-142, 
    538 N.E.2d 373
    (1989). Counsel’s performance
    will only be deemed deficient if it fell below an objective standard of reasonableness.
    Strickland at 688; Bradley at 142.      A defendant is only prejudiced by counsel’s
    performance if there is a reasonable probability that the outcome of the proceeding
    would have been different but for the deficient performance.                Strickland at
    694; Bradley at 142. A reviewing court must indulge a presumption that counsel’s
    behavior fell within the acceptable range of reasonable professional assistance.
    Strickland at 689; Bradley at 142.
    {¶19} Cooper first argues that his counsel was ineffective for failing to make
    a Crim.R. 29 motion for an acquittal. He concedes, and we agree, that the evidence
    was sufficient to support his conviction for felonious assault in count two, but argues
    that, had counsel made a Crim.R. 29 motion, it would have been granted as to the
    charge of felonious assault in count three.          But, as set forth in our analysis of
    Cooper’s fourth assignment of error, Cooper was not convicted of felonious assault in
    count three because that offense was merged at sentencing. Consequently, Cooper
    suffered no prejudice from counsel’s failure to make a Crim.R. 29 motion for an
    acquittal.
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    OHIO FIRST DISTRICT COURT OF APPEALS
    {¶20} Cooper further argues that counsel was ineffective for failing to have a
    psychologist testify in mitigation at sentencing regarding his mental-health and
    PTSD issues. The presentation of mitigation evidence at sentencing is generally a
    matter of trial strategy that will not support a claim of ineffective assistance. State v.
    Walker, 1st Dist. Hamilton No. C-170321, 2018-Ohio-3918, ¶ 26. Any testimony that
    a psychologist would have offered is purely speculative, and Cooper cannot
    demonstrate that he would have received a lesser sentence had counsel presented
    such mitigating testimony. The record established that Cooper had twice undergone
    competency evaluations, and that he was found competent to stand trial after both
    evaluations. The court had full access to these reports before sentencing. Further,
    the trial court was aware of Cooper’s mental-health issues and his PTSD diagnosis
    from Cooper himself, as he testified regarding those issues. Moreover, counsel told
    the court at the sentencing hearing that Cooper suffered severe PTSD following his
    overseas tours.
    {¶21} We hold that counsel did not render ineffective assistance, and we
    overrule the third assignment of error.
    Conclusion
    {¶22} Having overruled Cooper’s assignments of error, we affirm the trial
    court’s judgment. But we remand for the trial court to issue a nunc pro tunc entry to
    correct the clerical error in its sentencing entry.
    Judgment affirmed and cause remanded.
    ZAYAS, P.J., and WINKLER, J., concur.
    Please note:
    The court has recorded its own entry on the date of the release of this opinion.
    7
    

Document Info

Docket Number: C-180401

Citation Numbers: 2019 Ohio 2813

Judges: Myers

Filed Date: 7/10/2019

Precedential Status: Precedential

Modified Date: 7/10/2019