State v. Spurling , 2021 Ohio 3056 ( 2021 )

[Cite as State v. Spurling, 2021-Ohio-3056.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-200322
C-200323
Plaintiff-Appellee, : TRIAL NOS. B-1905121
B-1905397
vs. :
JERMAINE SPURLING, :
O P I N I O N.
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgments Appealed From Are: Affirmed
Date of Judgment Entry on Appeal: September 3, 2021
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant
Prosecuting Attorney, for Plaintiff-Appellee,
The Law Office of John D. Hill, LLC, and John D. Hill, Jr., for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
MYERS, Presiding Judge.
{¶1} Defendant-appellant Jermaine Spurling appeals his convictions for
trafficking in cocaine, possession of a fentanyl-related compound, and having a
weapon while under a disability. In three assignments of error, Spurling challenges
the validity of his guilty pleas, the effectiveness of his trial counsel, and the sentences
imposed. Finding no merit to Spurling’s assignments of error, we affirm.
{¶2} In the case numbered B-1905121, Spurling was indicted for possession
of a fentanyl-related compound, a fifth-degree felony, carrying a concealed weapon
and improper handling of a firearm in a motor vehicle, both fourth-degree felonies,
and having a weapon while under a disability, a third-degree felony. In exchange for
Spurling’s guilty pleas to the fentanyl and weapon-under-disability charges, the state
dismissed the remaining weapons charges. The trial court imposed prison terms of
12 and 36 months respectively, and ordered them to run concurrently to each other.
{¶3} In the case numbered B-1905397, Spurling was indicted for two first-
degree felonies, possession of cocaine and trafficking in cocaine, and accompanying
major-drug-offender specifications. In exchange for Spurling’s guilty plea to a
reduced charge of trafficking in cocaine, a felony of the third degree, the state
dismissed the possession count and the specifications for both offenses. The trial
court imposed a 36-month prison term and ordered it to run consecutively to the
sentence in the case numbered B-1905121, for an aggregate prison term of six years.
The Guilty Pleas
{¶4} In his first assignment of error, Spurling argues that the trial court
erred in accepting guilty pleas that were not made knowingly, intelligently, and
voluntarily.
{¶5} Before a trial court accepts a plea in a felony case, Crim.R. 11(C)(2)
requires the court to ascertain that the plea is voluntary and entered with an
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OHIO FIRST DISTRICT COURT OF APPEALS
understanding of the effect of the plea, the nature of the charges, and the maximum
penalty that may be imposed. See Crim.R. 11(C)(2)(a) and (b). In addition, the court
must inform the defendant, and determine that the defendant understands, that by
pleading guilty, the defendant is waiving her or his constitutional rights (1) to a jury
trial; (2) to confront witnesses against the defendant; (3) to have compulsory process
for obtaining witnesses in the defendant’s favor; (4) to require the state to prove the
defendant’s guilt beyond a reasonable doubt; and (5) to the privilege against self-
incrimination. See Crim.R. 11(C)(2)(c); State v. Brinkman, Slip Opinion No. 2021-
Ohio-2473, ¶ 11.
{¶6} In this case, Spurling concedes that the trial court complied with the
requirements of Crim.R. 11(C)(2). However, he asserts that his guilty pleas were
predicated on representations from counsel that the trial court would impose less
than a six-year aggregate term, which the state had offered as part of a proposed plea
bargain and which he had previously rejected.
{¶7} Spurling concedes that his claim is based on information outside the
record, which we cannot consider in deciding the appeal. See State v. Brooks, 1st
Dist. Hamilton No. C-190549, 2021-Ohio-425, ¶ 10; State v. Ishmail, 54 Ohio St.2d
402, 405-406, 377 N.E.2d 500 (1978). And, on the record before us, it is clear that
Spurling understood that the state was seeking a six-year prison sentence, because
defense counsel requested that sentencing be deferred so that he could provide
mitigation information to convince the court that a sentence of less than six years
was appropriate.
{¶8} Spurling also argues that he construed the trial court’s statement that
he would receive “a very, very good deal” as an indication that the court would
deviate downward from the previously rejected offer of an agreed six-year prison
sentence. But this claim is equally unavailing. After the court accepted Spurling’s
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OHIO FIRST DISTRICT COURT OF APPEALS
guilty pleas, defense counsel asked that Spurling be released on bond pending
sentence. The court denied the request, stating:
[Defense counsel] has on a number of occasions asked that on your
behalf. I am not going to do it. I appreciate you asking. You are going
to get a very, very good deal at the end of the day. You got nicked with
something that could have put you in jail for a long, long time. I think
it is best at this point. You get credit for time, anyway. * * * I think it is
best at this point to be where you are. I will overrule your request.
{¶9} Spurling could not have relied on the court’s statement as an
inducement to enter his guilty pleas because the statement was made after Spurling’s
pleas were made and accepted, and the statement likely referred to the fact that
defense counsel negotiated a favorable plea bargain for Spurling. Moreover, in
entering his pleas, Spurling acknowledged that he had not received promises from
the court or anyone else in order to get him to plead.
{¶10} The trial court did not err in accepting Spurling’s guilty pleas. We
overrule the first assignment of error.
Effective Assistance of Counsel
{¶11} In his second assignment of error, Spurling argues that he was
deprived of his constitutional right to the effective assistance of counsel. Counsel
will not be considered ineffective unless counsel’s 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 proceedings would have been different but for the
deficient performance. Strickland at 694; Bradley at 142.
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OHIO FIRST DISTRICT COURT OF APPEALS
{¶12} Spurling argues that counsel induced him to enter guilty pleas with
false assurances that the trial court would deviate downward from the six-year
agreed sentence that the state had previously offered and he had rejected. But we are
unable to determine on appeal whether ineffective assistance of counsel occurred
where the allegations of ineffectiveness are, as Spurling admits here, based on facts
outside the record. See State v. Giuggio, 1st Dist. Hamilton No. C-170133, 2018-
Ohio-2376, ¶ 10; State v. Coleman, 85 Ohio St.3d 129, 134, 707 N.E.2d 476 (1999).
We overrule the second assignment of error.
Sentencing
{¶13} In his third assignment of error, Spurling argues that the trial court’s
imposition of a six-year aggregate sentence was not supported by the record and that
it constituted cruel and unusual punishment.
{¶14} 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 sentence is
contrary to law or that the record does not support the trial court’s findings under
certain enumerated statutes, including R.C. 2929.13(B), R.C. 2929.13(D), R.C.
2929.14(B)(2)(e), R.C. 2929.14(C)(4), and R.C. 2929.20(I). State v. Bronson, 1st
Dist. Hamilton No. C-200151, 2021-Ohio-838, ¶ 2; State v. Jones, 163 Ohio St.3d
242, 2020-Ohio-6729, 169 N.E.3d 649, ¶ 31, 37.
{¶15} Here, the trial court made the mandatory consecutive-sentences
findings under R.C. 2929.14(C)(4) at the sentencing hearing and incorporated its
findings into the sentencing entry. See State v. Bonnell, 140 Ohio St.3d 209, 2014-
Ohio-3177, 16 N.E.3d 659, ¶ 37; Bronson at ¶ 8. The court found that consecutive
sentences are necessary to protect the public and to punish the defendant and are not
disproportionate to the seriousness of the defendant’s conduct and the danger the
defendant poses to the public. See R.C. 2929.14(C)(4). In addition, the court found
that the aggravating factor in R.C. 2929.14(C)(4)(c) existed, finding that the
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OHIO FIRST DISTRICT COURT OF APPEALS
defendant’s history of criminal conduct demonstrates that consecutive sentences are
necessary to protect the public from future crime by the defendant.
{¶16} The trial court’s findings are supported by the record. At the
sentencing hearing, the trial court noted that Spurling had prior felony convictions
for trafficking in marijuana, aggravated robbery, possession of cocaine, trafficking in
cocaine, carrying a concealed weapon, robbery, and having a weapon while under a
disability. The court stated that Spurling had previously served three prison terms.
The court noted that when Spurling was stopped by police, he possessed fentanyl and
a loaded firearm. The court also noted that Spurling’s trafficking charge involved
nearly 500 grams of cocaine, “all the trappings * * * that make up what constitutes a
pretty major drug dealer.” The court remarked that a drug dealer with a gun posed a
danger to the community. The record supports the imposition of consecutive
sentences.
{¶17} Spurling concedes that the individual sentences imposed fell within
the authorized ranges for the offenses and were not contrary to law. Rather, he
argues that his six-year aggregate sentence was disproportionate to his conduct,
amounting to cruel and unusual punishment in violation of the United States and
Ohio Constitutions.
{¶18} The Supreme Court of Ohio has held that, for purposes of review under
the Eighth Amendment to the United States Constitution and Article I, Section 9 of
the Ohio Constitution, “proportionality review should focus on individual sentences
rather than on the cumulative impact of multiple sentences imposed consecutively.”
State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, ¶ 20.
Therefore, if none of the individual sentences imposed on a defendant 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.” Id.6
OHIO FIRST DISTRICT COURT OF APPEALS
{¶19} Each of Spurling’s individual prison terms fell within the statutory
range for its respective offense, and “[a]s a general rule, a sentence that falls within
the terms of a valid statute cannot amount to a cruel and unusual punishment.” See
id. at ¶ 21, quoting McDougle v. Maxwell, 1 Ohio St.2d 68, 69, 203 N.E.2d 334(1964). Because the individual sentences imposed are within the range of penalties
authorized by statute, “they are not grossly disproportionate or shocking to a
reasonable person or to the community’s sense of justice and do not constitute cruel
and unusual punishment.” See id. at ¶ 23. Consequently, Spurling’s aggregate six-
year prison term, which resulted from the consecutive imposition of individual
prison terms, does not violate the Eighth Amendment to the United States
Constitution or Article I, Section 9 of the Ohio Constitution. See id.
{¶20} We overrule the third assignment of error, and we affirm the
judgments of the trial court.
Judgments affirmed.
CROUSE and BOCK, JJ., concur.
Please note:
The court has recorded its own entry this date.
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