[Cite as State v. Martin, 2019-Ohio-2047.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                     SANDUSKY COUNTY


State of Ohio                                          Court of Appeals No. S-18-028

        Appellee                                       Trial Court No. 18CR286

v.

Amy M. Martin                                          DECISION AND JUDGMENT

        Appellant                                      Decided: May 24, 2019

                                                *****

        Timothy Braun, Sandusky County Prosecuting Attorney, and
        Mark E. Mulligan, Assistant Prosecuting Attorney, for appellee.

        James H. Ellis III, for appellant.

                                                *****

        ZMUDA, J.
                                             I. Introduction

        {¶ 1} Appellant, Amy Martin, appeals the judgment of the Sandusky County Court

of Common Pleas, sentencing her to a total of nine years and six months in prison after

accepting her guilty plea to aggravated robbery, burglary, and failure to comply with

order or signal of police officer. For the following reasons, we affirm.
                           A. Facts and Procedural Background

       {¶ 2} On March 12, 2018, appellant entered Lee’s Famous Recipe Chicken in

Fremont, Sandusky County, Ohio, and robbed the restaurant while in possession of a

firearm. As a result of the robbery, appellant obtained $385.

       {¶ 3} Four days later, appellant forced her way into a Fremont residence located at

636 Sixth Street. Appellant demanded money from the owner of the residence, who gave

appellant $30 in response to her demands. Appellant then fled the scene in the resident’s

automobile. A high-speed police pursuit ensued, and appellant was apprehended after

crashing the automobile.

       {¶ 4} On April 9, 2018, a bill of indictment was filed with the trial court, charging

appellant with one count of aggravated robbery in violation of R.C. 2911.01(A)(1), a

felony of the first degree, one count of burglary in violation of R.C. 2911.12(A)(1), a

felony of the second degree, one count of failure to comply with order or signal of police

officer in violation of R.C. 2921.331(B), a felony of the third degree, and one count of

grand theft of a motor vehicle in violation of R.C. 2913.02(A)(1) and (B)(5), a felony of

the fourth degree. Additionally, a firearms specification was attached to the aggravated

robbery charge.

       {¶ 5} Following the filing of the indictment, appellant entered a plea of not guilty,

and the matter proceeded through pretrial discovery and plea negotiations. On May 17,

2018, appellant appeared before the trial court for a change of plea hearing. At the

hearing, appellant entered a guilty plea to three counts: aggravated robbery; burglary;




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and failure to comply with order or signal of police officer. Pursuant to the terms of a

plea agreement, the state dismissed the firearms specification and the grand theft charge.

Following a thorough Crim.R. 11 colloquy, the trial court accepted appellant’s plea and

continued the matter for sentencing.

       {¶ 6} During the plea hearing, appellant indicated that she was addicted to heroin

and Xanax, and was using bath salts during the commission of the aforementioned

crimes. Appellant claimed that the bath salts altered her consciousness and prevented her

from remembering her criminal conduct.

       {¶ 7} Appellant’s sentencing hearing was held on July 26, 2018. At the

sentencing hearing, the trial court ordered appellant to serve eight years in prison for

aggravated robbery, six years for burglary, and 18 months for failure to comply with

order or signal of police officer. The court ordered the sentences for aggravated assault

and burglary served concurrently. The court then directed that the sentence for failure to

comply with order or signal of police officer would be served consecutively to the other

sentences, for an aggregate prison term of nine years and six months.

                                B. Assignments of Error

       {¶ 8} Appellant has appealed her conviction, and now asserts the following

assignments of error for our review:

              A. Appellant was denied effective assistance of counsel.

              B. The trial court erred by failing to comply with applicable statutes

       in sentencing the appellant.




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                                        II. Analysis

                          A. Ineffective Assistance of Counsel

       {¶ 9} In appellant’s first assignment of error, she asserts that she was deprived of

the effective assistance of trial counsel during sentencing.

              A convicted defendant’s claim that counsel’s assistance was so

       defective as to require reversal of a conviction * * * has two components.

       First, the defendant must show that counsel’s performance was deficient.

       This requires showing that counsel made errors so serious that counsel was

       not functioning as the “counsel” guaranteed the defendant by the Sixth

       Amendment. Second, the defendant must show that the deficient

       performance prejudiced the defense. Strickland v. Washington, 466 U.S.

       668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

       {¶ 10} Here, appellant complains that her trial counsel was ineffective because

counsel did not articulate appellant’s mental health and substance abuse issues and,

therefore, the trial court could not consider appropriate alternatives to incarceration prior

to imposing its sentence. Appellant asserts that she has undergone drug addiction

treatment at the Zepf Center on two separate occasions, but was unable to enter an

inpatient recovery program despite her willingness to do so. On these facts, appellant

argues that trial counsel should have provided the trial court with a recommendation for

drug addiction and mental health services in lieu of incarceration.




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       {¶ 11} “An attorney’s failure to reasonably investigate the defendant’s background

and present mitigating evidence to the jury at sentencing can constitute ineffective

assistance of counsel.” State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12

N.E.3d 1112, ¶ 234, citing Wiggins v. Smith, 539 U.S. 510, 521-522, 123 S.Ct. 2527, 156

L.Ed.2d 471 (2003). However, the defendant carries the burden of demonstrating that

trial counsel rendered ineffective assistance by failing to conduct an adequate

investigation. Id., citing State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960

N.E.2d 955, ¶ 104.

       {¶ 12} Our review of the transcript from the sentencing hearing reveals that trial

counsel did, in fact, inform the trial court of appellant’s mental health and substance

abuse issues. During the hearing, the following discussion took place between the trial

court and appellant’s counsel:

              THE COURT: Okay. [Counsel], is there anything you or your client

       or anybody else would say – like to say prior to the Court imposing

       sentence * * *?

              [TRIAL COUNSEL]: Thank you, Your Honor. Yes, I would like to

       make a statement on Amy’s behalf.

              ***

              I’m glad that the Court has read the letters. I’m glad that the Court

       spent the extra time today looking at the P.S.I. ‘cause there’s a lot of

       information in there.




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              She does have the depression, the mental health illness, and she does

       have the drug problem. She’s making good progress. She made great

       progress while hospitalized.

              She – I see the score, the ORAS score is high. The last time she was

       sentenced, it was not high enough to go to Crosswaeh. We would ask the

       Court [consider] some sort of treatment so that when she gets out, she’s a

       better person. When she is incarcerated she gets some help for her mental

       health issues and also her drug abuse.

              ***

              THE COURT: What type of treatment do you think – do you think

       the Court can order?

              [TRIAL COUNSEL]: Well, I guess I’m of the opinion the Court can

       order whatever it wants, but if it’s a mental health – if it’s inpatient, if it’s –

       she would be willing to go back to the NOPH. She wants help. She is

       remorseful, and she is intent on getting better.

       {¶ 13} Following this dialogue, the court afforded appellant an opportunity to

speak, and appellant referenced her substance abuse issues, stating that “hard drugs

affected me.” Appellant went on to indicate that she “steadily went downhill” as a result

of drug abuse, leading her to check into various rehabilitation facilities. Further,

appellant explained that she had become severely depressed.




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       {¶ 14} After appellant and her counsel spoke, the trial court addressed appellant

and took note of her substance abuse issues. The court sympathized with appellant’s

condition, but nonetheless deemed a prison sanction necessary to protect the community

and found that prison was appropriate in view of the harm appellant caused to the

victims. In particular, the court stated:

              [Appellant], you understand that when I sentence you, I not only

       have to think about you as a person, but I have to think about the

       community as a whole, and I especially have to think about [the victim].

              Did you – was it shared with you in the Pre-Sentence Investigation

       that she no longer feels comfortable in her own home – * * * that she

       doesn’t sleep, that she’s so afraid that there’s going to be repercussions

       from people that you have associated with * * *? They know her address,

       and they know how vulnerable she is, and she’s scared to death.

              ***

              I’m saying that so that you understand what is involved in the Court

       imposing a sentence upon a Defendant who’s convicted of these nature of

       offenses.

              I have compassion for anybody that has a drug addiction problem, I

       really do. It’s absolutely horrible, I’m sure it is, but having a drug abuse

       problem is not a license to wreak havoc. It is not an excuse. It might help

       explain why you behaved the way you did, but we all know that when you




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        injected those drugs into your veins, * * * that was a free and voluntary act.

        You did that of your own volition, and anybody that has been using drugs

        for the past five years and buying them off the street knows as well as

        anybody else that people who sell drugs are scum bags, and they will put

        anything in a mixture of drugs in order to keep you actively addicted, you

        know that, and you know that at the time you did it.

               ***

               I read your letters. I read your mother’s letters. I am so sympathetic

        in that sense to the situation that you’re in, and if this was just about you,

        the Court’s sentence would probably be a lot different than it is.

        {¶ 15} Upon consideration of the foregoing, we find that the record in this case

belies appellant’s assertion that trial counsel failed to adequately investigate her

background and present mitigating evidence at sentencing. Counsel referenced

appellant’s substance abuse issues in an effort to secure a sentence that would be most

advantageous to appellant. Counsel’s argument was then buttressed by appellant’s

articulation of her substance abuse and mental health issues. Further, the presentence

investigation report that was prepared and reviewed by the trial court includes a detailed

description of appellant’s mental health issues and substance abuse.

        {¶ 16} In the presentence investigation report, appellant reported that her drug

abuse




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                started over percocets and a back injury, [Xanax] and bad nerves.

         * * * All my life till I was almost 33 I had only smoke pot and now I’m a

         heroin/Xanax addict who thought I was buying dope and instead was sold

         an even worse drug. I’m not sure what made me blackout, the bath

         salt/meth or the [Xanax] on top of the weird crap. But [it has] ruined me

         and my life, and I’m sorry with my whole heart.

Additionally, the presentence investigation report revealed that appellant was diagnosed

with a number of mental health issues including major depressive disorder, obsessive-

compulsive disorder, and generalized anxiety disorder.

         {¶ 17} At sentencing, the court indicated its consideration of the presentence

investigation report, and noted appellant’s mental health and substance abuse when it

addressed appellant. On this record, we find no support for appellant’s assertion that

counsel failed to adequately present mitigation evidence to the trial court at sentencing.

Therefore, we find trial counsel’s performance was not deficient.

         {¶ 18} Because we find the first prong of Strickland has not been met, we need not

address the second prong. Having found that trial counsel’s representation of appellant at

sentencing was not deficient, we conclude that appellant’s ineffective assistance

argument is without merit. Accordingly, appellant’s first assignment of error is not well-

taken.




9.
                     B. Compliance with R.C. 2929.11 and 2929.12

       {¶ 19} In her second assignment of error, appellant argues that the trial court failed

to consider the principles and purposes of sentencing under R.C. 2929.11 prior to

fashioning its sentence. Likewise, appellant urges that the trial court did not take all of

the sentencing factors contained in R.C. 2929.12 into consideration before imposing its

sentence.

       {¶ 20} Under R.C. 2953.08(G)(2), an appellate court may increase, reduce,

modify, or vacate and remand a sentence if it clearly and convincingly finds either of the

following:

              (a) That the record does not support the sentencing court’s findings

       under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of

       section 2929.14, or division (I) of section 2929.20 of the Revised Code,

       whichever, if any, is relevant; [or]

              (b) That the sentence is otherwise contrary to law.

       {¶ 21} Here, only R.C. 2953.08(G)(2)(b) is relevant. Thus, “clearly and

convincingly” in this context means that the record must provide us with “a firm belief or

conviction” that appellant’s sentence was contrary to law. Hook v. Hook, 189 Ohio

App.3d 440, 2010-Ohio-4165, 938 N.E.2d 1094, ¶ 19 (6th Dist.).

       {¶ 22} A sentence is not contrary to law where the trial court considers the

purposes and principles of sentencing under R.C. 2929.11, along with the seriousness and




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recidivism factors under R.C. 2929.12, and imposes a sentence within the statutory range.

See State v. Craig, 6th Dist. Wood No. WD-14-061, 2015-Ohio-1479, ¶ 9.

      {¶ 23} R.C. 2929.11(A) provides:

              A court that sentences an offender for a felony shall be guided by the

      overriding purposes of felony sentencing. The overriding purposes of

      felony sentencing are to protect the public from future crime by the

      offender and others, to punish the offender, and to promote the effective

      rehabilitation of the offender using the minimum sanctions that the court

      determines accomplish those purposes without imposing an unnecessary

      burden on state or local government resources. To achieve those purposes,

      the sentencing court shall consider the need for incapacitating the offender,

      deterring the offender and others from future crime, rehabilitating the

      offender, and making restitution to the victim of the offense, the public, or

      both.

      {¶ 24} In order to comply with R.C. 2929.11(A), a trial court must impose a

sentence that is “reasonably calculated to achieve the two overriding purposes of felony

sentencing * * * commensurate with and not demeaning to the seriousness of the

offender’s conduct and its impact upon the victim, and consistent with sentences imposed

for similar crimes committed by similar offenders.” R.C. 2929.11(B). To determine the

most effective way to comply with the purposes and principles of sentencing set forth in




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R.C. 2929.11, the trial court must consider the seriousness and recidivism factors outlined

in R.C. 2929.12.

          {¶ 25} Here, appellant does not dispute that her sentence falls within the

applicable statutory range. Rather, appellant argues that the record is devoid of any

evidence that the trial court considered her substance abuse and mental health issues as

mitigating factors under R.C. 2929.12(C) and (E). We have already concluded that this

argument lacks support in the record based upon the trial court’s dialogue with appellant

regarding her substance abuse history and her ongoing mental health issues. Ultimately,

the trial court found that the mitigating evidence was outweighed by the court’s need to

protect the public from harm.

          {¶ 26} We have previously noted that “a sentencing court is not required to use

any specific language or make specific findings to demonstrate that it considered the

applicable sentencing criteria.” State v. Allen, 6th Dist. Ottawa No. OT-18-001, 2018-

Ohio-3822, ¶ 27, citing State v. Arnett, 88 Ohio St.3d 208, 215, 724 N.E.2d 793 (2000)

and State v. Thebeau, 6th Dist. Ottawa No. OT-14-017, 2014-Ohio-5598, ¶ 16. “Merely

stating that the court considered the statutory factors is enough.” State v. Brimacombe,

195 Ohio App.3d 524, 2011-Ohio-5032, 960 N.E.2d 1042, ¶ 11 (6th Dist.), citing Arnett

at 215.

          {¶ 27} In its sentencing entry in this case, the trial court stated its consideration of

the relevant sentencing statutes, as follows:




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                The Court has considered the record, oral statements and prior

       criminal history of the defendant and has also considered the principles and

       purposes of sentencing under R.C. 2929.11. and has balanced the

       seriousness and recidivism factors under R.C. 2929.12.

       {¶ 28} The trial court’s statement that it considered the relevant sentencing

statutes is supported by the record at sentencing, where the trial court explained its

rationale behind the prison sentence, relying upon the need to protect the public from

future harm and the impact appellant’s behavior had on the victims in this case. Because

the trial court considered the principles and purposes of sentencing under R.C. 2929.11,

as well as the seriousness and recidivism factors under R.C. 2929.12, we find that

appellant’s sentence, which is within the applicable statutory range, is not contrary to

law.

       {¶ 29} Accordingly, appellant’s second assignment of error is not well-taken.

                                      III. Conclusion

       {¶ 30} For the foregoing reasons, the judgment of the Sandusky County Court of

Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant

to App.R. 24.


                                                                         Judgment affirmed.




13.
                                                                      State v. Martin
                                                                      C.A. No. S-18-028




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Thomas J. Osowik, J.                           _______________________________
                                                           JUDGE
Christine E. Mayle, P.J.
                                               _______________________________
Gene A. Zmuda, J.                                          JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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