[Cite as State v. Reinthaler, 2018-Ohio-2483.]



             IN THE COURT OF APPEALS OF OHIO
                              SEVENTH APPELLATE DISTRICT
                                  MAHONING COUNTY

                                           STATE OF OHIO,

                                           Plaintiff-Appellee,

                                                    v.

                                JOSEPH J. REINTHALER, JR.,

                                        Defendant-Appellant.


                          OPINION AND JUDGMENT ENTRY
                                 Case No. 16 MA 0170


                                             Motion to Reopen

                                          BEFORE:
                  Cheryl L. Waite, Carol Ann Robb, Kathleen Bartlett, Judges.


                                             JUDGMENT:
                                 Affirmed in part. Remanded in part.

Atty. Paul J. Gains, Mahoning County Prosecutor and
Atty. Nicholas A. Brevetta, Assistant Prosecuting Attorney
21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee

Joseph J. Reinthaler, Jr., Pro se, #691-861
Belmont Correctional Institution, 68518 Bannock Road, P.O. Box 540, St. Clairsville,
Ohio 43950.


                                          Dated: June 21, 2018



PER CURIAM.
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       {¶1}    Appellant Joseph J. Reinthaler, Jr. has filed an Application for Reopening

his appeal pursuant to App.R. 26(B). Appellant pleaded guilty and was convicted of one

count of tampering with records in violation of R.C. 2913.42(A)(2), (B)(1)(4), a felony of

the third degree, one count of forgery in violation of R.C. 2913.(A)(3)(C), a felony of the

fifth degree, one count of engaging in a pattern of corrupt activity in violation of R.C.

2923.32(A)(3), (B)(1), a felony of the first degree, and sixty-seven counts of tampering

with records in violation of R.C. 2913.42(A)(2), (B)(1)(4), felonies of the third degree.

       {¶2}    His guilty plea and conviction were based on a pattern of corrupt activity at

his automobile dealership, where he would accept used automobiles in trade, then

resell them without discharging the lien of the previous owner.          On direct appeal,

Appellant challenged the voluntary nature of his plea, as well as propriety of the trial

court’s imposition of consecutive sentences. We affirmed his convictions and sentence,

but remanded the matter for the limited purpose of entering a nunc pro tunc entry that

memorialized the trial court’s findings with respect to consecutive sentences at the

sentencing hearing. As of the date of this order, no nunc pro tunc order has been filed

by the trial court.

       {¶3}    A criminal defendant may apply for reopening of his appeal from the

judgment of conviction and sentence based on a claim of ineffective assistance of

appellate counsel. App.R. 26(B)(1). The application for reopening cannot merely allege

that appellate counsel rendered ineffective assistance for failing to brief certain issues.

Rather, the application must demonstrate that there is a “genuine issue as to whether

the applicant was deprived of the effective assistance of counsel on appeal.” App.R.

26(B)(5).




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      {¶4}   The test for ineffective assistance of appellate counsel has two parts:

establishing that counsel's performance was deficient, and that this resulted in

prejudice. State v. Tenace, 109 Ohio St.3d 451, 2006-Ohio-2987, 849 N.E.2d 1, ¶ 5,

citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984); App.R. 26(B)(9).    Appellant must show that counsel's performance was so

deficient that it fell below an objective standard of reasonableness and, but for this

substandard representation, the outcome of the case would have been different.

Strickland at 687. Establishing ineffective assistance of appellate counsel means that

the applicant must prove that counsel was deficient for failing to raise the issues he now

presents and that there was a reasonable probability of success had he presented

those claims on appeal.     State v. Were, 120 Ohio St.3d 85, 2008-Ohio-5277, 896

N.E.2d 699, ¶ 10-11.

      {¶5}   However, appellate counsel need not raise every possible issue in order to

render constitutionally effective assistance. Tenace at ¶ 7, citing Jones v. Barnes, 463

U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). Counsel is expected to focus on

the stronger arguments and leave out the weaker ones, as this strategy is generally

accepted as the most effective means of presenting a case on appeal. State v. Adams,

7th Dist. No. 08 MA 246, 2012-Ohio-2719, ¶ 8-12.

      {¶6}   First, it is important to note that Appellant did not fulfill the requirements of

App.R. 26(B)(2)(d), insofar as he failed to submit a sworn statement of the basis for his

claim that appellate counsel's representation was deficient with respect to the

assignments of error or arguments raised pursuant to division (B)(2)(c), and the manner

in which the deficiency prejudicially affected the outcome of the appeal.




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       {¶7}   Appellant advances four assignments of error. First, he argues that the

trial court imposed an aggregate sentence of thirteen years at the sentencing hearing,

but an aggregate sentence of fourteen years in the judgment entry of sentencing.

       {¶8}   In fact, the trial court imposed twelve-month concurrent sentences for

each of the sixty-seven counts of tampering with records. At the sentencing hearing,

the trial court stated that the twelve-month concurrent sentences were to be served

concurrently with the twelve-year consecutive sentences imposed for counts one, two,

and three. In the judgment entry, the trial court wrote that the twelve-month concurrent

sentences were to be served consecutively to the twelve-year consecutive sentence

imposed for counts one, two, and three.

       {¶9}   Crim.R. 43(A) provides that “the defendant must be physically present at

every stage of the criminal proceeding and trial, including * * * the imposition of

sentence.” Because a defendant is required to be present when sentence is imposed, it

constitutes reversible error for the trial court to impose a sentence in its judgment entry

different than the sentence announced at the sentencing hearing in defendant's

presence. If there exists a variance between the sentence pronounced in open court

and the sentence imposed by a court's judgment entry, a remand for resentencing is

required. State v. Williams, 6th Dist. No. L-11-1084, 2013-Ohio-726, 987 N.E.2d 322,

¶ 49. See also State v. Quinones, 8th Dist. No. 89221, 2007-Ohio-6077, ¶ 5; State v.

Hess, 7th Dist. No. 00-JE-40, 2001-Ohio-3463. Therefore, Appellant’s first assignment

of error has merit.

       {¶10} Next, Appellant asserts that the summary of his crimes provided at the

sentencing hearing by the prosecutor and Amanda Butler, a Bureau of Motor Vehicles




Case No. 16 MA 0170
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investigator, misstated his criminal conduct.        (11/3/16 Sent. Hrg., pp. 4-5.)      He

specifically denies in his brief that he intentionally failed to discharge pre-existing liens

before re-selling the used automobiles but, as previously stated, offered no affidavit

containing a sworn statement. More importantly, Appellant was given an opportunity to

allocute at the sentencing hearing. In other words, Appellant had the opportunity to

correct the alleged misstatements by the prosecutor and Butler, but given this

opportunity said nothing on the record.

       {¶11} The facts here are clearly distinguishable from Stewart v. Ervin, 503 F.3d

488 (6th Cir.2007), which Appellant cites in his brief. In that case, the petitioner was

denied access to the presentence report and victim impact statements prior to

sentencing. The same is not true here. Appellant was fully aware of the factual basis

on which the trial court relied for sentencing prior to his opportunity to allocute. He

waived his opportunity to object to the state’s recitation of the facts.

       {¶12} Third, Appellant contends that statements made on behalf of the state at

the sentencing hearing regarding uncharged conduct affected the length of his

sentence. Appellant argues that he was convicted of uncharged conduct. In fact, to the

extent that the trial court considered information about uncharged conduct, it impacted

his sentence, not his conviction.

       {¶13} Conduct by a defendant that does not result in a conviction, much less a

criminal charge, can be considered by the court during sentencing. State v. Clayton,

8th Dist. No. 99700, 2014-Ohio-112, ¶ 16.         One caveat is that uncharged conduct

cannot form “the sole basis for the sentence.” State v. Gray, 8th Dist. No. 91806, 2009-

Ohio-4200, ¶ 13, citing State v. Williams, 8th Dist. No. 79273, 2002-Ohio-503. “Courts




Case No. 16 MA 0170
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have historically been permitted to consider hearsay evidence, evidence of an

offender's criminal history, the facts concerning charges dismissed, and even offenses

for which charges were not filed, but were addressed in the presentence investigation.”

State v. Ropp, 3d Dist. No. 14-13-21, 2014-Ohio-2462, ¶ 4. The court can “consider

other charges, including charges which were dismissed as part of a plea agreement,

during sentencing.” State v. Edwards, 8th Dist. No. 85908, 2006-Ohio-2315, ¶ 43. And

“prior arrests, facts supporting a charge that resulted in an acquittal, and facts related to

a charge that was dismissed under a plea agreement” are valid sentencing

considerations.    State v. Bodkins, 2d Dist. No. 10-CA-38, 2011-Ohio-1274, ¶ 43.

Accordingly, to the extent that the trial court considered information regarding

Appellant’s unindicted criminal activity, Appellant was not denied effective assistance of

counsel when appellate counsel failed to raise this issue on appeal.

       {¶14} Finally, Appellant contends that his sentence is inconsistent with similarly

situated defendants. Appellant relies on a six-year sentence recently imposed by the

trial court in a case involving a fraudulent sports memorabilia ring. On direct appeal, we

concluded that the sentence imposed was not contrary to law, and that the record

supported the sentence.       Appellant’s argument is akin to an abuse of discretion

challenge. However, Ohio appellate courts no longer review sentences for an abuse of

discretion. State v. Hudson, 7th Dist. No. 15 MA 0134, 2017-Ohio-645, ¶ 33, citing

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 10, 16.

       {¶15} In summary, we find that appellate counsel provided ineffective assistance

insofar as he failed to raise the variance between the sentence imposed at the




Case No. 16 MA 0170
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sentencing hearing and the sentence imposed in the sentencing entry on direct appeal.

Appellant’s remaining assignments of error have no merit.

      {¶16} The appropriate remedy is a limited remand for a nunc pro tunc order

correcting the clerical error that the twelve-month concurrent sentences on each of the

sixty-seven counts are to be served concurrently with the twelve-year consecutive

sentences imposed for counts one, two, and three. Insofar as the trial court has yet to

issue a nunc pro tunc order memorializing its findings on the imposition of consecutive

sentences, any nunc pro tunc order now issued must correct both clerical errors.


JUDGE CHERYL L. WAITE


JUDGE CAROL ANN ROBB


JUDGE KATHLEEN BARTLETT




                               NOTICE TO COUNSEL

      This document constitutes a final judgment entry.




Case No. 16 MA 0170
