[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
