State v. Coffman , 2011 Ohio 4284 ( 2011 )

[Cite as State v. Coffman, 2011-Ohio-4284.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
STATE OF OHIO :
: Appellate Case No. 2010-CA-20
Plaintiff-Appellee :
: Trial Court Case Nos. 2010-CR-33
v. : Trial Court Casse No. 2010-CR-77
:
BRADLEY J. COFFMAN :
: (Criminal Appeal from
Defendant-Appellant : (Common Pleas Court)
:
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OPINION
Rendered on the 26th day of August, 2011.
.........
NICK A. SELVAGGIO, by SCOTT SCHOCKLING, Atty. Reg. #0062949, Champaign
County Prosecutor’s Office, Courthouse, 200 North Main Street, Urbana, Ohio 43078
Attorneys for Plaintiff-Appellee
DANIEL R. ALLNUTT, Atty. Reg. #0085452, Post Office Box 234, Alpha, Ohio 45301
Attorney for Defendant-Appellant
.........
HALL, J.
{¶ 1} This matter is before the Court on a Notice of Appeal filed by Bradley J.
Coffman on July 14, 2010. Coffman was convicted, after pleas of guilty, of one count of theft,
a felony of the fifth degree, and 31 counts of forgery, each felonies of the fifth degree, in case
# 2010 CR33, and 10 counts of forgery, each felonies of the fifth degree, in case # 2010
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CR77. One count from each case was dismissed. Coffman was sentenced to an aggregate term
of seven years in prison, being a combination of seven consecutive one-year sentences for
each of the seven identified victims, and the remainder of the sentences of one year were
ordered to be served concurrently. He was ordered to pay restitution of $1,912.99. He also was
ordered to pay a $200.00 fine for each offense, but the court merged the fines to a single
amount of $200.00. The defendant also was ordered to pay court costs. The trial court
specifically found that the “defendant is employable and in good health. The defendant is able
to pay costs, fine and restitution upon release from confinement.” Journal Entry of Judgment
filed June 22, 2010, pg. 13.
{¶ 2} Counsel for Coffman filed a brief pursuant to Anders v. California (1967), 386
U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, on January 11, 2011. We notified Coffman of his
counsel's Anders brief and advised that he could file a pro se brief assigning any errors for
review. Coffman filed his own brief on March 14, 2011. The case is now before us for our
independent review of the record. Penson v. Ohio (1988), 488 U.S. 75, 109 S.Ct. 346, 102
L.Ed.2d 300.
{¶ 3} Counsel for Coffman asserts two potential assignments of error as follows:
{¶ 4} A. “THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION
WHEN IT SENTENCED THE APPELLANT TO THE MAXIMUM PERIOD OF
IMPRISONMENT FOR EVERY COUNT, AND ORDERED THAT HE SERVE SEVEN OF
THOSE COUNTS CONSECUTIVELY.”
{¶ 5} B. “THE APPELLANT’S SENTENCE OF SEVEN YEARS CONSTITUTES
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CRUEL AND UNUSUAL PUNISHMENT, A VIOLATION OF APPELLANT’S RIGHTS
UNDER THE EIGHTH AMENDMENT OF THE UNITED STATES CONSTITUTION.”
{¶ 6} In State v. Barker, Montgomery App. No. 22779, 2009–Ohio–3511, ¶ 36, this
court stated:
{¶ 7} “‘The trial court has full discretion to impose any sentence within the
authorized statutory range, and the court is not required to make any findings or give its
reasons for imposing maximum, consecutive, or more than minimum sentences. State v.
Foster, 109 Ohio St.3d 1, 2006–Ohio–856, at paragraph 7 of the syllabus. Nevertheless, in
exercising its discretion the trial court must consider the statutory policies that apply to every
felony offense, including those set out in R.C. 2929.11 and 2929.12. State v. Mathis, 109 Ohio
St.3d 54, 2006–Ohio–855, 846 N.E.2d 1, at ¶ 37.’”
{¶ 8} Once an appellate court determines that a sentence is not contrary to law, the
decision of the trial court will only be found to be error if it constitutes an abuse of discretion.
State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912. Here, there is nothing in this record to
demonstrate that in imposing its sentence the trial court failed to consider either the purposes
and principles of felony sentencing, R.C. 2929.11, or the seriousness and recidivism factors,
R.C. 2929.12. We have reviewed the transcript of the sentencing hearing. The court
considered the oral statements of counsel and of the defendant. The court considered the
defendant’s record, which consisted of two prior cases in felony court. On the first, the
defendant was placed on community control but was revoked and ordered to spend time in
MonDay, a community-based correctional facility. The second case involved some 27 counts
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of forgery, similar to the offenses in these cases. The defendant was originally sentenced to
the West Central Community Correction facility, followed by community control supervision.
He violated and was ordered to complete Nova House, which was unsuccessful. He was
then sent to prison, but the court allowed him to be in the Intensive Program Prison early
release, which was to a half-way house in Columbus, Ohio. In the present cases, the
defendant was released on bond after the initial indictment. The defendant admitted that at
least four of the ten counts in the second indictment were committed while he was out on
bond on the first case. Given these facts, we would not be able to say that the trial court
abused its discretion and, therefore, we do not consider the first potential assignment of error
as having arguable merit.
{¶ 9} With regard to the second potential assignment of error, “[a]s a general rule, a
sentence that falls within the terms of a valid statute cannot amount to a cruel and unusual
punishment.” McDougle v. Maxwell (1964), 1 Ohio St.2d 68, 69 (citations omitted). This
concept was reiterated by the Ohio Supreme Court in the applicability of current sentencing
statutes in the more recent case of State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338,
where the court held in the syllabus: “Where none of the individual sentences imposed on an
offender are grossly disproportionate to their respective offenses, an aggregate prison term
resulting from consecutive imposition of those sentences does not constitute cruel and unusual
punishment.” Accordingly, we cannot say that Maxwell’s aggregate sentence constitutes
cruel and unusual punishment. The second potential assignment of error does not have
arguable merit.
{¶ 10} The defendant’s pro se brief raises the following assignment of error:
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{¶ 11} “DEFENSE COUNSEL RENDERED INEFFECTIVE ASSISTANCE OF
COUNSEL WHEN, BEFORE SENTENCING HE FAILED TO PREPARE AND FILE AN
AFFIDAVIT INDICATING THAT HE WAS INDIGENT AND UNABLE TO PAY A
FINE.”
{¶ 12} For this court to find ineffective assistance of trial counsel, the defendant must
demonstrate that counsel's performance was deficient and fell below an objective standard of
reasonable representation, and that defendant was prejudiced by counsel's performance.
Prejudice requires a determination that there is a reasonable probability that but for counsel's
unprofessional errors, the result of defendant's trial or proceeding would have been different.
Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v.
Bradley (1989), 42 Ohio St.3d 136.
{¶ 13} The defendant refers us to State v. Sheffield, Montgomery App. No. 20029,
2004-Ohio-3099, where this court indicated that the failure to file an affidavit of indigency
may constitute ineffective assistance of counsel if the record shows a reasonable probability
that the trial court would have found the defendant indigent and waived the mandatory fine.
In that case, the mandatory fine was $10,000.00. Nevertheless, the Sheffield court was unable
to find a reasonable probability that the trial court would have found the defendant indigent.
Here, the aggregate fine is only $200.00. All that is required is that the trial court must
“consider the offender's ability to pay.” R.C. 2929.19(B)(6). This the court did when it
concluded that the defendant was employable and in good health. On this record, we are
unable to conclude that the filing of an affidavit of indigency probably would have led the trial
court to waive, or not impose, the fine. Therefore, the defendant’s assignment of error does
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not have arguable merit.
{¶ 14} In addition to reviewing the possible issues for appeal raised by defendant’s
appellate counsel, and the issue raised by the appellant, we have conducted an independent
review of the trial court's proceedings and have found no error having arguable merit.
Accordingly, defendant's appeal is without merit, and the judgment of the trial court will be
affirmed.
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FROELICH and CELEBREZZE, JJ., concur.
(Hon. Frank D. Celebrezze, Jr., Eighth District Court of Appeals, sitting by assignment of
the Chief Justice of the Supreme Court of Ohio.)
Copies mailed to:
Nick A. Selvaggio
Scott Schockling
Daniel Allnutt
Bradley J. Coffman
Hon. Roger B. Wilson