[Cite as State v. Akins, 2013-Ohio-5023.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                        No. 99478



                                       STATE OF OHIO

                                                     PLAINTIFF-APPELLEE

                                               vs.

                                  JERMAINE L. AKINS
                                                     DEFENDANT-APPELLANT



                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                        Case Nos. CR-562034, CR-562934, and CR-563681

        BEFORE: Stewart, A.J., Keough, J., and McCormack, J.

        RELEASED AND JOURNALIZED:                    November 14, 2013
ATTORNEY FOR APPELLANT

Jonathan N. Garver
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, OH 44103


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Jeffrey S. Schnatter
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113
MELODY J. STEWART, A.J.:

       {¶1} Defendant-appellant Jermaine Akins pleaded guilty in three separate cases to

attempted rape, robbery, and failure to provide notice of a change of address. The court

sentenced him to seven years on the attempted rape count, 12 months on the robbery

count, and six months on the notice of change of address count. All counts were ordered

to be served concurrently. In this appeal, Akins complains that (1) defense counsel’s

failure to attend a scheduled sentencing amounted to ineffective assistance of counsel; (2)

the state engaged in misconduct during sentencing; and (3) the sentence imposed by the

court was an abuse of discretion because it failed to consider mitigating factors. We find

no error and affirm.

                                             I

       {¶2} After taking Akins’s guilty plea, the court referred him to the psychiatric

clinic for an evaluation. It set the matter for sentencing, but then twice rescheduled

because of its own scheduling conflicts. When the court convened for sentencing on

December 3, 2012, defense counsel did not appear. The court expressed its displeasure

at counsel’s unexcused failure to appear, saying that it would reschedule the case at the

state’s convenience, without regard for defense counsel’s schedule because defense

counsel “loses the moral authority to insist upon a date that is acceptable to him, by not

offering the Court and his opposing counsel the courtesy of either appearing on time, or

satisfactorily explaining his nonappearance.” Akins now argues that defense counsel’s
failure to attend the December 3, 2012 sentencing compromised his ability to represent

Akins and made it likely that the court imposed a more severe penalty.

       {¶3} A claim of ineffective assistance of counsel requires a defendant to show that

(1) the performance of defense counsel was seriously flawed and deficient and (2) the

result of the defendant’s trial or legal proceeding would have been different had defense

counsel provided proper representation. Strickland v. Washington, 466 U.S. 668, 104

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

       {¶4} Akins cannot meet the second prong of the Strickland test because he makes

no showing that his sentence would have been otherwise had defense counsel not missed

the December 3, 2012 sentencing. It is true that the court was displeased that defense

counsel inexplicably failed to appear at the sentencing, but the only repercussion from

that absence was the court saying it would reset sentencing with no regard for defense

counsel’s schedule. The court even appeared to back off that slap on the wrist — a

journal entry issued by the court following its on-the-record remarks states that sentencing

was rescheduled for December 6, 2012, “at the request of defendant.” The court’s

chiding of defense counsel had no effect whatsoever on the length of Akins’s sentence.

In addition, the court made no mention of defense counsel’s failure to appear at the

December 3, 2012 sentencing when it finally did impose sentence. And nothing it said

during sentencing gave any basis for concluding that defense counsel’s conduct caused

the court to impose a lengthier sentence on Akins. By failing to establish the second

prong of the Strickland test, Akins’s ineffective assistance of counsel claim fails.
                                            II

       {¶5} During sentencing, the state argued for a severe sentence based not only on

Akins’s lengthy criminal history, but because the victim of the attempted rape was only

six weeks past her thirteenth birthday. The assistant prosecuting attorney told the court

that “[i]f it was 6 weeks and 1 day earlier, this would have been a case where Mr. Akins

was exposed to a potential life sentence.” Akins claims that the state’s argument was

improper because he pleaded guilty to attempted rape and was ineligible to be sentenced

as a first- degree felon for the charge and the victim was more than six weeks past her

thirteenth birthday.

       {¶6} A defendant who alleges prosecutorial misconduct must show that the

prosecutor’s remarks were improper and that the remarks prejudicially affected his

substantial rights. State v. Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284, 787 N.E.2d 1185,

¶ 145. The fairness of trial, not the culpability of the prosecutor, is the “touchstone” of

our analysis. Id.

       {¶7} The state’s remarks regarding the victim’s age and the possible penalty that

would be imposed had she been younger were not prejudicial because the court expressly

ignored those remarks. After defense counsel objected to the state’s recitation of facts,

the court stated that “I think the information that [the assistant prosecuting attorney] is

trying to convey is that based on his knowledge of the evidence it would be very difficult

to conclude that Mr. Akins was mistaken about the victim’s identity.” Tr. 34. The court

went on to say that “I think a summary of the proposed evidence is not unwarranted in a
circumstance like this, keeping in mind obviously, * * * that Mr. Akins did not admit to a

rape, he admitted to an attempted rape.” (Emphasis added.) Id. at 35.

         {¶8} The record leaves no doubt that the state did not persuade the court to

sentence Akins as though he committed a rape and not an attempted rape. The court was

well-aware that Akins pleaded guilty to attempted rape and cautioned the state on that

point.    By so cautioning the state, there is no basis for concluding that the state’s

comment caused the court to impose a longer sentence.

         {¶9} We likewise find nothing impermissible with the state’s characterization of

the victim’s age. Even if the state did misstate the victim’s age by a few days (and there

is no proof of that in the record), its broader point in mentioning the victim’s age was to

highlight the seriousness of Akins’s actions given the victim’s age. The 33-year-old

Akins apparently considered the 13-year-old victim to be his girlfriend and that they were

engaging in consensual sexual conduct. The victim’s age — whether 13 years and six

days or 13 years and 364 days — was a relevant factor for the court to consider when

determining the seriousness of Akins’s conduct and was thus a permissible consideration

under the catchall provision of R.C. 2929.12(B).

                                            III

         {¶10} Finally, Akins argues that the court abused its discretion by imposing a

collective seven-year sentence because it failed to give sufficient consideration to

mitigating circumstances set forth in a report prepared by the court’s psychiatric clinic.
We have no authority, however, to review a claim that the court abused its discretion

when imposing a criminal sentence.

       {¶11} “[T]here is no constitutional right to an appellate review of a criminal

sentence.” State v. Smith, 80 Ohio St.3d 89, 97, 1997-Ohio-355, 684 N.E.2d 668 (1997),

citing Estelle v. Dorrough, 420 U.S. 534, 536, 95 S.Ct. 1173, 43 L.Ed.2d 377 (1975).

What is more, there is “no right to object to a particular result of the sentencing process.”

Gardner v. Florida, 430 U.S. 349, 358, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977), citing

Witherspoon v. Illinois, 391 U.S. 510, 521-523, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968). If

a sentence is within the statutory limits, the severity of the sentence is not a basis for

seeking relief on direct appeal. Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 92

L.Ed. 1690 (1948).

       {¶12} With there being no constitutional right to appeal the length of a sentence

that is within the statutory range, the only right to appeal is the one provided by statute.

In its present incarnation, R.C. 2953.08(A) sets forth various grounds for appealing a

criminal sentence as a matter of right. As applicable here, the only viable ground for

Akins’s appeal is R.C. 2953.08(A)(4), which allows an appeal of right if “[t]he sentence

is contrary to law.”

       {¶13} The phrase “contrary to law” is not defined in R.C. 2953.08, but in State v.

Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124, the Ohio Supreme Court

stated that a sentence “outside the permissible statutory range * * * is clearly and

convincingly contrary to law.” Id. at ¶ 15. Although we have found that the two-part
sentencing analysis set forth in Kalish is no longer viable after the enactment of H.B. 86,

see State v. Venes, 8th Dist. Cuyahoga No. 98682, 2013-Ohio-1891, ¶ 10, that portion of

the opinion addressing the concept of “contrary to law” is a persuasive interpretation of

the statutory term.

       {¶14} In addition to sentences that are outside the statutory limits and thus illegal,

we agree that a sentencing court’s failure to perform a mandated action or make required

findings would likewise be contrary to law. See, e.g., State v. Jones, 93 Ohio St.3d 391,

399, 754 N.E.2d 1252 (2001) (agreeing that trial judge’s failure to make the findings on

the record required by R.C. 2929.19(B)(2)(c) is “contrary to law.”)

       {¶15} While appellate courts have the authority to review whether sentences are

contrary to law, they have no authority to consider whether a sentence falling within the

statutory limits constitutes an abuse of discretion.     The recent amendments to R.C.

2953.08(G)(2) make it clear that “[t]he appellate court’s standard for review is not

whether the sentencing court abused its discretion.” In State v. A.H., 8th Dist. Cuyahoga

No. 98622, 2013-Ohio-2525, we held that the standard of review in R.C. 2953.08(G)(2)

applies for all sentencing. Id. at ¶ 7.

       {¶16} We should be clear at this point that for sentencing purposes an “abuse of

discretion” is different than an “error of law.” In sentencing cases, appellate courts

engage in error correction, but only to correct errors of law that affect substantial rights.

See Crim.R. 52. The decision as how long a sentence should be — assuming it falls

within a defined statutory range — is a pure exercise of discretion. Indeed, the Ohio
Supreme Court has held that “[t]rial courts have full discretion to impose a prison

sentence within the statutory range * * *.”           State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, 845 N.E.2d 470, paragraph seven of the syllabus. What this precedent

means is that apart from any claim that the sentencing judge failed to fulfill a

statutorily-mandated obligation before imposing sentence, a sentence falling within the

statutory range is unreviewable.

       {¶17} Akins does not claim that his sentence is contrary to law, nor would that be a

colorable argument on appeal. His sentences all fell within the statutory range for the

applicable degree of felony and were thus presumptively valid. See State v. Collier, 8th

Dist. Cuyahoga No. 95572, 2011-Ohio-2791, ¶ 15. In addition, the court stated that it

considered all relevant statutory factors.       This was enough to fulfill the court’s

obligations under R.C. 2929.11 and 2929.12. See State v. Kamleh, 8th Dist. Cuyahoga

No. 97092, 2012-Ohio-2061, ¶ 61.

       {¶18} In summary, Akins argues that the length of his sentence resulted from the

court’s refusal to give more weight to factors in mitigation. R.C. 2953.08(A) gives us no

authority to review this claim, so we overrule this assignment of error.

       {¶19} Judgment affirmed.

       It is ordered that appellee recover of appellant its 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 Cuyahoga

County Court of Common Pleas to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated.   Case remanded

to the trial court for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




MELODY J. STEWART, ADMINISTRATIVE JUDGE

KATHLEEN ANN KEOUGH, J., and
TIM McCORMACK, J., CONCUR
