State v. Steele , 2022 Ohio 712 ( 2022 )

[Cite as State v. Steele, 2022-Ohio-712.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO, : JUDGES:
: Hon. William B. Hoffman, P.J.
Plaintiff - Appellee : Hon. Patricia A. Delaney, J.
: Hon. Craig R. Baldwin, J.
-vs- :
:
JOSHUA J. M. Steele, : Case No. 21 CAA 11 0061
:
Defendant - Appellant : OPINION
CHARACTER OF PROCEEDING: Appeal from the Delaware County
Court of Common Pleas, Case No.
11 CR I 08 0463
JUDGMENT: Affirmed
DATE OF JUDGMENT: March 10, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MELISSA A. SCHIFFEL JOSHUA J.M. STEELE, Pro Se
Delaware County Prosecuting Attorney Chillicothe Correctional Institution
15802 State Route 104 N
By: LAURA K. KENT PO Box 5500
Assistant Prosecuting Attorney Chillicothe, Ohio 45601
145 North Union Street, 3rd Floor
Delaware, Ohio 43015
Delaware County, Case No. 21 CAA 11 0061 2
Baldwin, J.
{¶1} Defendant-appellant Joshua Steele appeals from the November 2, 2021
Judgment Entry of the Delaware County Court of Common Pleas denying his Motion to
Correct Sentence. Plaintiff-appellee is the State of Ohio.
STATEMENT OF THE FACTS AND CASE
Appellant was indicted in 2011 on five counts of rape, all violations of Ohio Revised
Code Section 2907.02(A)(2), five counts of Unlawful Sexual Conduct with a Minor, all
violations of Ohio Revised Code Section 2907.04(A), one count of Gross Sexual
Imposition, a violation of Ohio Revised Code Section 2907.05(A)(1), and one count of
Gross Sexual Imposition, a violation of Ohio Revised Code Section 2907.05(A)(4). The
victim was appellant's minor cousin. In 2011, appellant was convicted by a jury of five
counts of unlawful sexual conduct with a minor, felonies of the third degree, two counts
of rape, felonies of the first degree, and one count of gross sexual imposition (force), a
felony of the third degree. Appellant was found not guilty of three other counts of rape.
On October 28, 2011, appellant was sentenced to an aggregate prison term of twenty-
two years.
{¶2} Appellant then appealed. Pursuant to an Opinion filed on August 17, 2012
in State v. Steele, 5th Dist. Delaware No. 2011-CAA11-0110, 2012-Ohio-3777, this Court
affirmed the judgment of the trial court. The Ohio Supreme Court declined to accept
jurisdiction.
{¶3} On November 18, 2016, appellant filed a Verified Motion to Correct
Sentence. Appellant argued, in part, that his sentence was flawed because the sentence
should have been a non-mandatory concurrent sentence rather than a mandatory
Delaware County, Case No. 21 CAA 11 0061 3
consecutive sentence. Appellant argued that his sentence was void. The trial court
denied appellant's motion on January 17, 2017.
{¶4} Appellant then appealed. Pursuant to an Opinion filed on July 14, 2017 in
State v. Steele, 5th Dist. Delaware No. 2017 CAA 01 0007, 2017-Ohio-5847, this Court
affirmed the judgment of the trial court. On December 20, 2017, the Ohio Supreme Court
declined to accept jurisdiction of the appeal. State v. Steele, 151 Ohio St.3d 1475, 2017-
Ohio-9111.
{¶5} On October 29, 2021, appellant filed a Motion to Correct Sentence with the
trial court arguing, in part, that he was coerced by his trial counsel to reject a stipulated
plea of two years and that the prison terms imposed on him for two rape convictions were
not mandatory. The trial court denied appellant’s motion on November 2, 2021 both under
the doctrine of res judicata and on the merits.
{¶6} Appellant now appeals, raising the following assignments of error on
appeal:
{¶7} “I. THE LOWER COURT COMMITTED PREJUDICIAL ERROR IN
IGNORING DUE PROCESS AND EQUAL PROTECTION.”
{¶8} “II. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL
AAS GUARANTEED UNDER THE SIXTH AMENDMENT.”
I
{¶9} Appellant, in his first assignment of error, argues that his sentence is
contrary to law. We disagree.
{¶10} In State v. Perry, 10 Ohio St.2d 175, 180, 226 N.E.2d 104 (1967), the Ohio
Supreme Court stated:
Delaware County, Case No. 21 CAA 11 0061 4
Under the doctrine of res judicata, a final judgment of conviction bars
the convicted defendant from raising and litigating in any proceeding, except
an appeal from that judgment, any defense or any claimed lack of due
process that was raised or could have been raised by the defendant at the
trial which resulted in that judgment of conviction or on an appeal from that
judgment.
{¶11} In the case sub judice, appellant argued that the prison terms imposed on
him for two rape convictions were not mandatory sentences. Appellant raised a challenge
to his mandatory sentence in his direct appeal. We concur with the trial court that
appellant is now barred by the doctrine of res judicata from challenging his sentence now.
Moreover, appellant's argument also fails substantively. As this Court stated in State v.
Steele, supra. at paragraph 16: “Two of appellant's convictions were for rape in violation
of R.C. 2907.02(A)(2). Pursuant to R.C. 2929.13(F)(2), a prison term is mandatory. This
Court has previously recognized the mandatory prison term for rape convictions. State v.
Nian, 5th Dist. Delaware No. 15 CAA 070052, 2016–Ohio–5146.” State v. Steele, 2017-
Ohio-5847, ¶ 16.
{¶12} Appellant’s first assignment of error is, therefore, overruled.
II
{¶13} Appellant, in his second assignment of error, contends that he received
ineffective assistance of trial counsel. We disagree.
{¶14} To prevail on a claim of ineffective assistance of counsel, a defendant must
demonstrate: (1) deficient performance by counsel, i.e., that counsel's performance fell
below an objective standard of reasonable representation, and (2) that counsel's errors
Delaware County, Case No. 21 CAA 11 0061 5
prejudiced the defendant, i.e., a reasonable probability that but for counsel's errors, the
result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687–
688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136,
538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. “Reasonable
probability” is “probability sufficient to undermine confidence in the outcome.” Strickland
at 694, 104 S.Ct. 2052.
{¶15} Appellant specifically maintains that his trial counsel was ineffective in
advising him to reject a plea deal that would have resulted in two years of incarceration.
With respect to claims of ineffective assistance regarding plea negotiations, we have held
that a defendant must demonstrate that (1) he or she was offered a plea agreement; (2)
his or her defense counsel provided legally unsound advice by recommending that he
reject the offer; (3) he or she would have entered into the agreement but for counsel's
unsound advice; (4) the offer would not have been withdrawn; (5) the trial court would
have approved the agreement; and (6) the sentence pursuant to the agreement would
have been more favorable than the sentence actually imposed by the court. State v.
Thompson, 2nd Dist. Montgomery No. 27924, 2018-Ohio-4689, 2018 WL 6132298, ¶ 11,
citing Lafler v. Cooper, 566 U.S. 156, 162-164, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012),
and State v. Royster, 2nd Dist. Montgomery No. 26378, 2015-Ohio-625, 2015 WL
751663, ¶ 32-33.
{¶16} Appellant could have raised this issue in his direct appeal and, therefore, is
barred by the doctrine of res judicata from raising such issue now. Moreover, appellant,
in the case sub judice, produced no affidavit or other evidence of any type in support of
his motion.
Delaware County, Case No. 21 CAA 11 0061 6
{¶17} Appellant also argues that his trial counsel fraudulently induced appellant
to “appoint” him by exaggerating his experience. Appellant did not raise this issue in his
motion in the trial court. That failure operates as a waiver of appellant's right to assert
such for the first time on appeal. Hadley v. Figley, 5th Dist. Ashland No. 15-COA-001,
2015-Ohio-4600, 46 N.E.3d 1129, ¶ 22. Moreover, as is stated above, appellant produced
no evidence of any type in support of his motion. Furthermore, appellant has failed to
show that his trial counsel’s representation fell below any objective standard of
reasonableness.
{¶18} Appellant’s second assignment of error is, therefore, overruled.
{¶19} Accordingly, the judgment of the Delaware County Court of Common Pleas
is affirmed.
By: Baldwin, J.
Hoffman, P.J. and
Delaney, J. concur.