State v. Williams , 2020 Ohio 3802 ( 2020 )

[Cite as State v. Williams, 2020-Ohio-3802.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 108724
v. :
DEMICO T. LEE WILLIAMS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 23, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-17-613909-A, CR-17-614036-A, and CR-17-614194-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Jennifer M. Meyer, Assistant Prosecuting
Attorney, for appellee.
Robert A. Dixon, for appellant.
Demico T. Lee Williams, pro se.
ANITA LASTER MAYS, P.J.:
Defendant-appellant Demico T. Lee Williams (“Williams”) filed a pro
se brief asking this court to vacate his sentence. We affirm.
On July 17, 2018, Williams entered into a negotiated guilty plea
involving three criminal cases, Cuyahoga C.P. Nos. CR-17-613909-A, CR-17-614036-
A, and CR-17-614194-A. Williams pled guilty to four counts of robbery, second-
degree felonies in violation of R.C. 2911.02(A)(1). Three of the robbery counts
contained one-year firearm specifications. Williams also pled guilty to four counts
of kidnapping and one count of receiving stolen property. Williams and the state
agreed to a sentence range of 10 to 15 years imprisonment. The trial court sentenced
Williams to 15 years’ imprisonment, which consisted of consecutive terms.
Counsel appointed to represent Williams in the instant appeal filed a
brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493(1967), and requested leave to withdraw as counsel. Anders held that where, after a
conscientious examination of the case, appellate counsel is unable to find any
meritorious issues for review, then counsel should inform the court and request
permission to withdraw from the case. Id. at 744. In addition, the request must be
accompanied by a brief referring to anything in the record that might
arguably support the appeal. A copy of counsel’s brief should be
furnished the indigent and time allowed him to raise any points that
he chooses; the court — not counsel — then proceeds, after a full
examination of all the proceedings, to decide whether the case is
wholly frivolous. If it so finds it may grant counsel’s request to
withdraw and dismiss the appeal insofar as federal requirements are
concerned, or proceed to a decision on the merits, if state law so
requires. On the other hand, if it finds any of the legal points arguable
on their merits (and therefore not frivolous) it must, prior to decision,
afford the indigent the assistance of counsel to argue the appeal.
Id.Counsel offers that there are no meritorious arguments in this case,
and asks this court to permit him to withdraw. On October 16, 2019, Williams was
sent notification of counsel’s filing of an Anders brief with his motion to withdraw
and Williams was given until January 3, 2020, to respond. Williams filed his pro se
brief with this court on January 9, 2020. Upon the filing of Williams’s pro se brief,
we granted counsel’s motion to withdraw and will review Williams’s assignments of
error on the merits. Williams has assigned two errors for our review.
I. Appellant was denied due process when the trial court
sentenced appellant to a term of imprisonment contrary to law,
where the record is insufficient to establish factual support for
a sentence of consecutive terms of imprisonment; and
II. Appellant was denied effective assistance of counsel.
I. Consecutive Sentences
A. Standard of Review
We review felony sentences under the standard set forth in
R.C. 2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59
N.E.3d 1231, ¶ 16.
R.C. 2953.08(G)(2) provides that when reviewing felony sentences, a
reviewing court may overturn the imposition of consecutive sentences
where the court “clearly and convincingly” finds that (1) “the record
does not support the sentencing court’s findings under
R.C. 2929.14(C)(4),” or (2) “the sentence is otherwise contrary to law.”
State v. Henderson, 8th Dist. Cuyahoga Nos. 106340 and 107334, 2018-Ohio-
3168, ¶ 15.
B. Whether the Trial Court Erred in Sentencing the
Appellant to Consecutive Sentences
Before reaching the assignments of error, we must first determine the
reviewability of the sentence imposed in Williams’s case. See State v. Grant, 2018-
Ohio-1759, 111 N.E.3d 791, ¶ 11 (8th Dist.). In this case, there was an agreement to
a sentence of 10 to 15 years. Williams pleaded guilty to four second-degree felony
counts of robbery, four first-degree felony counts of kidnapping, and one fourth-
degree felony count of receiving stolen property. There were also mandatory one-
year firearm specifications attached to three of the four robbery counts. The
statutory maximum prison sentences under R.C. 2929.14(A) for felonies of the first,
second, and fourth degrees are 11, 8, and 1½ years respectively. If sentenced on
each robbery count plus the three mandatory one-year firearm specifications, each
kidnapping count, and the receiving stolen property count, the trial could have
statutorily sentenced Williams to 80½ years’ imprisonment. The trial court
imposed an aggregate sentence of 15 years, per the recommended sentence of 10 to
15 years’ imprisonment between Williams and the state.
R.C. 2953.08(D)(1) limits our ability to review an agreed sentence.
R.C. 2953.08(D)(1) states:
A sentence imposed upon a defendant is not subject to review under
this section if the sentence is authorized by law, has been
recommended jointly by the defendant and the prosecution in the
case, and is imposed by a sentencing judge.
The initial question we must answer is whether an agreement to a
sentencing range, as opposed to a specific term of incarceration, is a jointly
recommended sentence for purposes of R.C. 2953.08(D)(1). Williams and the state
agreed to a jointly recommended sentencing range of 10 to 15 years imprisonment.
(Tr. 7.) The trial court sentenced Williams to 15 years’ imprisonment. (Tr. 25.)
Williams, in his pro se brief, argues that the trial court’s sentence is contrary to law
because the record does not reflect that the trial court made the statutory findings
mandated for consecutive sentences. However, “a trial court’s imposition of
nonmandatory consecutive sentences within an agreed sentencing range is a jointly
recommended sentence that is authorized by law and not reviewable on appeal
under R.C. 2953.08(D)(1).” Grant at ¶ 29.
Additionally, it does not matter if the jointly recommended sentence
is a range or a specific term. Grant, 2018-Ohio-1759, 111 N.E.3d 791, at ¶ 19. The
sentence is not reviewable. Id.Other districts agree. So long as the sentence imposed within a jointly
recommended sentencing range is authorized by law, the sentence is
not reviewable on appeal. R.C. 2953.08(D)(1). See State v. Ramsey,
5th Dist. Licking No. 16-CA-91, 2017-Ohio-4398, ¶ 15-17; State v.
Essinger, 2d Dist. Montgomery No. 26593, 2016-Ohio-4977, ¶ 10;
State v. Connors, 2d Dist. Montgomery No. 26721, 2016-Ohio-3195,
¶ 4; State v. James, 8th Dist. Cuyahoga Nos. 104006 and 104169,
2016-Ohio-7889, ¶ 9; State v. Scurles, 6th Dist. Lucas Nos. L-07-1108
and L-07-1109, 2008-Ohio-2480, ¶ 7-9 (all finding sentence imposed
within a jointly recommended sentencing range that was authorized
by law was not subject to review on appeal).
Id.Williams’s sentence on each count was within the statutory range.
(Tr. 24-25.) “It follows that a sentence that is within the authorized statutory ranges
for the offenses and comports with all mandatory sentencing provisions is
authorized by law.” Id. at ¶ 23. Additionally, whether Williams “agreed to a
sentencing range or sentencing cap, as opposed to a specific sentence, is
immaterial.” Id. “A sentence that is authorized by law and imposed within a jointly
recommended sentencing range is not subject to appellate review.” Id.
This court has also held that “when a trial judge imposes
nonmandatory consecutive sentences within a jointly recommended sentencing
range, the sentence is ‘authorized by law’ and is not subject to review on appeal
pursuant to R.C. 2953.08(D)(1), regardless of any express agreement to consecutive
sentences.” Id. at ¶ 24. Therefore, we find that Williams’s sentence is not subject to
review, and is not contrary to law.
Williams’s first assignment of error is overruled.
II. Ineffective Assistance of Counsel
A. Standard of Review
To establish a claim for ineffective assistance of counsel, Williams
must show his trial counsel’s performance was deficient, and that the deficient
performance prejudiced the defense so as to deprive Williams of a fair trial.
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, 538 N.E.2d 373 (1989). To establish
prejudice, Williams must demonstrate there is a “reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland at 694.
In evaluating a claim of ineffective assistance of counsel, a court must
give great deference to counsel’s performance. Id. at 689. “A reviewing court will
strongly presume that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.” State v.
Pawlak, 8th Dist. Cuyahoga No. 99555, 2014-Ohio-2175, ¶ 69. Thus, “[t]rial strategy
or tactical decisions cannot form the basis for a claim of ineffective counsel.” State v.
Foster, 8th Dist. Cuyahoga No. 93391, 2010-Ohio-3186, ¶ 23, citing State v. Clayton,
62 Ohio St.2d 45, 402 N.E.2d 1189 (1980). Additionally, the failure to do a futile act
cannot be the basis for claims of ineffective assistance of counsel, nor could such a
failure be prejudicial. State v. Kilbane, 8th Dist. Cuyahoga No. 99485, 2014-Ohio-
1228, ¶ 37.
B. Whether the Appellant was Denied Effective
Assistance of Counsel
Williams argues that his trial counsel was ineffective because trial
counsel advised him to plead guilty, and he received the maximum agreed-upon
sentence. A review of the record reveals that Williams was facing a possible more
than 200 years1 in prison if he was convicted on each count and underlying
specification and the trial court imposed maximum sentences. Williams and the
state agreed they would recommend a sentence of 10 to 15 years’ imprisonment. The
trial court sentenced Williams to 15 years’ imprisonment. In Williams’s brief, he
1 Total possible years on Cuyahoga C.P. Nos. CR-17-613909-A, CR-17-614036-A, and CR-
17-614194-A is over 200 years.
argued that his trial counsel was ineffective because his counsel’s advice to plead
guilty “with so little compensation for his guilty plea” was deficient. Appellant’s
brief, p. 12. Williams was unhappy that he received the maximum 15 years of the
jointly recommended sentence. However, we disagree with Williams’s assertion.
Williams was facing substantially more time than he received.
Also, the record demonstrates the trial court initially considered a
sentence of 50 years’ imprisonment, because the trial court expressed that Williams
should not ever be allowed in society and should be locked in a cage. (Tr. 9, 11.) The
trial court also admonished the state for agreeing to a deal where Williams would
serve less than 20 years’ imprisonment. (Tr. 10.)
Williams indicated to the trial court that he was satisfied with his trial
counsel. (Tr. 14.) There is no indication from the record that Williams’s trial counsel
was ineffective. Williams argues in his brief that “[t]rial counsel failed to investigate
the facts of this case and/or interview any potential witnesses that could have shed
light on the factors that lead up to this tragic event and/or could have been alibi
witnesses.” Appellant’s brief, p. 14. However, the record reveals that trial counsel
visited Williams three times before the plea hearing, and the record is void regarding
any claims of Williams telling counsel of any alibi witnesses or that he had an alibi
for the times when the crimes were committed.
Additionally, Williams had an opportunity to express his
dissatisfaction of the terms of his deal at the plea hearing. As the record
demonstrates, Williams received the benefit of the plea deal negotiated by his trial
counsel. We find that Williams has not demonstrated that he was prejudiced by trial
counsel’s performance. In order to reverse Williams’s convictions, he must
demonstrate that his counsel’s performance was deficient, and that deficiency
prejudiced him. State v. Jones, 8th Dist. Cuyahoga No. 102260, 2016-Ohio-688,
¶ 14.
Therefore, Williams’s second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
__________________________________
ANITA LASTER MAYS, PRESIDING JUDGE
FRANK D. CELEBREZZE, JR., J., and
LARRY A. JONES, SR., J., CONCUR