[Cite as State v. Runnion, 2019-Ohio-189.]


                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                    WASHINGTON COUNTY

STATE OF OHIO,                                     :

        Plaintiff-Appellee,                        :          Case Nos. 18CA7
                                                                        18CA8
v.                                                 :
                                                              DECISION AND
LISA L. RUNNION,                                   :          JUDGMENT ENTRY

        Defendant-Appellant.                       :          RELEASED: 01/15/2019


                                             APPEARANCES:

Steven H. Eckstein, Washington Court House, Ohio, for appellant.

Nicole Tipton Coil, Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for
appellee.


Hoover, J.

        {¶1}     Defendant-appellant, Lisa L. Runnion (“Runnion”), appeals the judgment of the

Washington County Court of Common Pleas, which convicted Runnion of Robbery in Case No.

17CA65 and of Failure to Appear in Case No. 17CR222; and sentenced her to five years in

prison. Runnion alleges that the trial court erred by imposing a sentence that was inconsistent to

that of her co-defendants. According to Runnion, the trial court should have sentenced her to 180

days in jail. Additionally, Runnion argues that her trial counsel was ineffective for failing to raise

a consistency-in-sentencing argument in the trial court.

        {¶2}     For the reasons that follow, we summarily reject Runnion’s consistency-in-

sentencing argument because she failed to raise the argument during trial court proceedings.

Further, we find that Runnion failed to establish a claim of ineffective assistance of counsel.

Therefore, we affirm the judgment of the trial court.
Washington App. Nos. 18CA7 & 17CA8                                                                   2


                                 I. Facts and Procedural History

       {¶3}    In May 2017, the Washington County Grand Jury returned a one-count indictment

charging Eric Barth (“Barth”), Glenn Johnson (“Johnson”), and Runnion with Robbery, a felony

of the second degree, in violation of R.C. 2911.02(A)(2). According to the Marietta Police

Department’s report, Barth, Johnson, and Runnion had attempted to take an alcoholic beverage

from Weber’s Market in Marrietta, Washington County, Ohio on March 30, 2017. The victim,

Stephanie Morris (“Morris”), told police that Barth and Johnson tried to obscure her view while

Runnion concealed the beverage on her person. Morris stopped the group after they exited the

store and attempted to escort Runnion back to the store when Runnion punched her in the face.

Runnion was arrested at the scene; Barth and Johnson fled but were arrested soon thereafter.

       {¶4}    On May 9, 2017, Runnion appeared at the arraignment and entered a not guilty

plea. Barth also appeared and entered a not guilty plea. Johnson did not appear. At that time, the

court granted Runnion a personal recognizance bond. The court informed Runnion of the

consequences if she failed to appear to a future hearing:

       THE COURT: * * * Now, ma’am, with a PR bond, it’s your signed promise to

       appear for all future hearings. If you fail to appear, it’s a real easy charge for the

       Prosecutor to prove, just that you signed the bond here, that you failed to appear;

       it’s a felony of the fourth degree. Do you understand that?

       THE DEFENDANT: Yes, sir.

       {¶5}    On June 29, 2017, Runnion failed to appear for her final pre-trial hearing.

Thereafter, the Washington County Grand Jury issued an indictment charging Runnion with

Failure to Appear, a fourth degree felony, in violation of R.C. 2937.29 and R.C.

2937.99(A)&(B). The trial court issued a warrant, and Runnion was soon arrested.
Washington App. Nos. 18CA7 & 17CA8                                                                  3


       {¶6}    Runnion appeared for arraignment on the Failure to Appear charge on October 11,

2017, at which time she pled not guilty. Again, the trial court released Runnion on a personal

recognizance bond.

       {¶7}    On July 7, 2017, Barth pled guilty to a charge arising out of the May 2017

incident at Weber’s Market: Theft, a first degree misdemeanor, in violation of R.C.

2913.02(A)(1). The Marietta Municipal Court accepted Barth’s plea and sentenced him 180 days

in jail. Because Barth pled guilty to Theft, the Robbery charge was dismissed.

       {¶8}    On October 20, 2017, the trial court held a change of plea hearing. According to

the written plea agreement, Runnion would enter two guilty pleas and the State would

recommend a four-year prison sentence with judicial released after two years and sixty days,

with respect to the Robbery charge; and a six-month prison term, with respect to the Failure to

Appear charge, to run concurrently. The trial court accepted Runnion’s two guilty pleas, ordered

the PSI Department to conduct a PSI interview, and set a sentencing hearing. The trial court

continued Runnion’s personal recognizance bond for her appearance at the PSI interview and the

sentencing hearing.

       {¶9}    On September 13, 2017, Johnson pled guilty to the reduced charge of Theft, a first

degree misdemeanor, in violation of R.C. 2913.02(A)(1). The Marietta Municipal Court accepted

Johnson’s plea and sentenced him to 180 days in jail.

       {¶10} On December 5, 2017, Runnion failed to appear for her sentencing hearing. The

trial court issued another warrant; and Runnion was subsequently arrested. At the time of arrest,

Runnion was found to be in possession of heroin and Suboxone. Since Runnion had a prior drug

offense, she was charged with fifth degree felonies for Possession of Controlled Substances.
Washington App. Nos. 18CA7 & 17CA8                                                               4


       {¶11} Runnion appeared for sentencing on April 3, 2017 The State presented a new plea

agreement, in which it recommended that Runnion receive a five-year prison sentence with

respect to the Robbery charge and one-year sentence with respect to the Failure to Appear

charge, to run concurrently. According to the plea agreement, the State agreed to dismiss the

second Failure to Appear charge and the new Possession of Controlled Substances charges if

Runnion was convicted and sentenced in accordance with the agreement. Ultimately, the trial

court adopted the State’s recommendation and sentenced Runnion to five years’ jail time on the

Robbery charge and one year’s jail time on the Failure to Appear charge, to be served

concurrently.

       {¶12} Thereafter, Runnion timely appealed.

                                    II. Assignments of Error

       {¶13} On appeal, Runnion assigns the following assignments of error for our review:

Assignment of Error One:

       Runnion was given an inconsistent sentence in violation of R.C. 2929.11(B).

Assignment of Error Two:

       Trial court rendered constitutionally ineffective assistance in violation of

       Mitchem’s [sic] rights under the Fifth, Sixth, and Fourteenth Amendments to the

       United States Constitution and Ohio Constitution, Article 1 §§ 5, 10 and 16.

                                     III. Law and Analysis

       A. Runnion Failed to Preserve the Consistency-in-Sentencing Issue for Appeal

       {¶14} In her first assignment of error, Runnion alleges that her sentence was

inconsistent with sentences imposed for similar crimes committed by similar offenders, in

violation of R.C. 2929.11(B). According to Runnion, the trial court should have imposed the
Washington App. Nos. 18CA7 & 17CA8                                                                     5


same sentence that her two co-defendants received: 180 days in jail. Despite the fact that her

five-year sentence was imposed pursuant to a plea deal, Runnion argues that her sentence is still

reviewable on appeal since it fails to comport with R.C. 2929.11(B). We note, however, that

Runnion failed to raise the issue of inconsistent sentencing during the trial court proceedings and

therefore failed to preserve the issue for appellate review.

       {¶15} When reviewing felony sentences, we apply the standard of review set forth in

R.C. 2953.08(G)(2). According to R.C. 2953.08(G)(2), “an appellate court may vacate or modify

a felony sentence on appeal only if it determines by clear and convincing evidence that the

record does not support the trial court’s findings under relevant statutes or that the sentence is

otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.2d

1231, ¶ 1. Clear and convincing evidence is,

       “that measure or degree of proof which is more than a mere ‘preponderance of the

       evidence,’ but not to the extent of such certainty as required ‘beyond a reasonable

       doubt’ in criminal cases, and which will produce in the mind of the trier of facts a

       firm belief or conviction as to the facts sought to be established.’ Cross v.

       Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the

       syllabus.”

Id. at ¶ 22. This is an extremely deferential standard. Id. at ¶ 23; see State v. Venes, 8th Dist.

Cuyahoga No. 98682, 2013-Ohio-1891, 992 N.E.2d 453, ¶¶ 20–21.

       {¶16} R.C. 2929.11(B) states that a felony sentence should be, inter alia, “consistent

with sentences imposed for similar crimes committed by similar offenders.” We have observed

that “ ‘ “[a] consistency-in-sentencing determination * * * is a fact-intensive inquiry that does

not lend itself to being initially reviewed at the appellate level.” ’ ” State v. Taylor, 2017-Ohio-
Washington App. Nos. 18CA7 & 17CA8                                                                    6


4395, 9 N.E.3d 1, ¶ 29 (4th Dist.), quoting State v. Adams, 2016-Ohio-7772, 84 N.E.3d 155, ¶ 46

(4th Dist.), quoting State v. Montanez-Roldon, 8th Dist. Cuyahoga No. 103509, 2016-Ohio-3062,

¶ 14.

        “ ‘ [A]ny review must begin with the defendant producing a record for the trial

        court's consideration before the final sentence is imposed. As courts have long

        concluded, a “defendant must raise [the consistency-in-sentencing] issue before

        the trial court and present some evidence, however minimal, in order to provide a

        starting point for analysis and to preserve the issue for appeal.” ’ ”

(Citations omitted.) Taylor at ¶ 29, quoting Adams at ¶ 46, quoting Montanez-Roldon at ¶ 14.

        {¶17} We have reviewed the transcript of Runnion’s sentencing hearing, which is

devoid of any consistency-in-sentencing argument. Therefore, we reject Runnion’s argument.

See Adams at ¶ 47 (noting that court may summarily reject consistency-in-sentencing argument

that defendant fails to raise during trial court proceedings).

        {¶18} Accordingly, we overrule Runnion’s first assignment of error.

        III. Runnion Failed to Establish a Claim of Ineffective Assistance of Counsel

        {¶19} In her second assignment of error, Runnion alleges that her trial counsel rendered

ineffective assistance in violation of her constitutional rights. Specifically, Runnion argues that

her trial counsel’s failure to raise a consistency-in-sentencing argument in the trial court denied

her of her constitutional right to effective assistance of counsel. Further, Runnion contends that

but for her counsel’s performance, she would have received a lower sentence.

        {¶20} The State argues that Runnion’s trial counsel did not provide ineffective

assistance of counsel. According to the State, no reason existed for Runnion’s trial counsel to

raise a consistency-in-sentencing argument because there was ample evidence establishing that
Washington App. Nos. 18CA7 & 17CA8                                                                                   7


Runnion’s sentence comported with the guidelines outlined in R.C. 2929.11 and R.C. 2929.12.

Specifically, the State notes that: (1) Runnion was more culpable than her co-defendants; (2)

Runnion committed additional felonies after the robbery independent of her co-defendants; and

(3) Runnion did not object to her sentence at the time of sentencing.1

        {¶21} Criminal defendants have a right to the effective assistance of counsel. McMann

v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), fn.14. To establish

constitutionally ineffective assistance of counsel, a criminal defendant must show (1) that his

counsel’s performance was deficient and (2) that the deficient performance prejudiced the

defense and deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984). Accord State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904

(2001); State v. Goff, 82 Ohio St.3d 123, 139, 694 N.E.2d 916 (1998). “In order to show

deficient performance, the defendant must prove that counsel’s performance fell below an

objective level of reasonable representation. To show prejudice, the defendant must show a

reasonable probability that, but for counsel’s errors, the result of the proceeding would have been

different.” State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 95.

“Failure to establish either element is fatal to the claim.” State v. Jones, 4th Dist. Scioto No.

06CA3116, 2008-Ohio-968, ¶ 14.

        {¶22} When considering whether trial counsel’s representation amounts to deficient

performance, “a court must indulge a strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance[.]” Strickland at 689. “A properly licensed

attorney is presumed to execute his duties in an ethical and competent manner.” State v. Taylor,


1
  The State mistakenly argues that the record establishes that Runnion knew of her co-defendants’ sentences at the
time of her sentencing. The prosecutor stated that: “We told her what the resolution was for all three of the
Defendants in these cases and she was perfectly - - she seemed very satisfied with the resolution.” However, the
prosecutor was referring to Morris, the victim, and not Runnion.
Washington App. Nos. 18CA7 & 17CA8                                                                   8


4th Dist. Washington No. 07CA11, 2008-Ohio-482, ¶ 10, citing State v. Smith, 17 Ohio St.3d 98,

100, 477 N.E.2d 1128 (1985). Therefore, a defendant bears the burden to show ineffectiveness

by demonstrating that counsel’s errors were so serious that he or she failed to function as the

counsel guaranteed by the Sixth Amendment. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-

6679, 860 N.E.2d 77, ¶ 61.

       {¶23} “[C]ourts have not interpreted the notion of consistency to mean equal

punishment for codefendants.” State v. Cargill, 8th Dist. Cuyahoga No. 103902, 2016-Ohio-

5932 (2016), ¶ 11, citing State v. Black, 8th Dist. Cuyahoga No. 100114, 2014-Ohio-2976, ¶ 12;

see also State v. Coburn, 4th Dist. Adams No. 03CA774, 2004-Ohio-2997, ¶ 17 (“The goal of

the sentencing guidelines is consistency, not uniformity.”). Instead, “ ‘consistency is achieved by

weighing the factors enumerated in R.C. 2929.11 and 2929.12 and applying them to the facts of

each particular case.’ ” State v. Wells, 8th Dist. Cuyahoga No. 100365, 2014-Ohio-3032, ¶ 12,

quoting State v. Lababidi, 8th Dist. Cuyahoga No. 100242, 2014-Ohio-2267, ¶ 16. Consistency

“requires a trial court to weigh the same factors for each defendant, which will ultimately result

in an outcome that is rational and predictable.” State v. Keyes, 4th Dist. Meigs No. 05CA16,

2006-Ohio-5032, ¶ 12, quoting State v. Quine, 9th Dist. Summit No. 20968, 2002-Ohio-6987, ¶

12.

       {¶24} Runnion argues that her sentence was inconsistent to that of her co-defendants’,

but nowhere in her second assignment of error does she establish how her sentence was

disproportionate to similarly situated offenders. After all, Runnion did receive two Failure to

Appear charges and two Possession of Controlled Substances charges, which her codefendants
Washington App. Nos. 18CA7 & 17CA8                                                                  9


did not receive.2 Therefore, Runnion has failed to show how she was prejudiced by trial

counsel’s failure to raise the issue of proportionality.

           {¶25} In Strickland, the United States Supreme Court emphasized, “[T]here is no reason

for a court deciding an ineffective assistance claim to approach the inquiry in the same order or

even to address both components of the inquiry if the defendant makes an insufficient showing

on one.” Strickland v. Washington, 466 U.S. 668, 697, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). It

explained:

           Although we have discussed the performance component of an ineffectiveness

           claim prior to the prejudice component, there is no reason for a court deciding an

           ineffective assistance claim to approach the inquiry in the same order or even to

           address both components of the inquiry if the defendant makes an insufficient

           showing on one. In particular, a court need not determine whether counsel’s

           performance was deficient before examining the prejudice suffered by the

           defendant as a result of the alleged deficiencies. The object of an ineffectiveness

           claim is not to grade counsel’s performance. If it is easier to dispose of an

           ineffectiveness claim on the ground of lack of sufficient prejudice, which we

           expect will often be so, that course should be followed.

Id.

           {¶26} Because Runnion failed to show how she was prejudiced by defense counsel’s

alleged deficiencies, she necessarily failed to establish a claim of ineffective assistance of

counsel. Thus, we need not consider whether Runnion’s trial counsel’s performance was

deficient.

           {¶27} Accordingly, we overrule Runnion’s second assignment of error.

2
    Johnson did fail to appear at the May 9, 2017 arraignment, however.
Washington App. Nos. 18CA7 & 17CA8                                                        10


                                          IV. Conclusion

       {¶28} Due to the reasons outlined above, we overrule both of Runnion’s assignments of

error and affirm the judgment of the trial court.

                                                                  JUDGMENT AFFIRMED.
Washington App. Nos. 18CA7 & 17CA8                                                                    11


                                       JUDGMENT ENTRY

        It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs.

        The Court finds that reasonable grounds existed for this appeal.

      It is ordered that a special mandate issue out of this Court directing the Washington
County Court of Common Pleas to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously posted. The
purpose of a continued stay is to allow Appellee to file with the Supreme Court of Ohio an
application for a stay during the pendency of proceedings in that court. If a stay is continued by
this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of
the Appellee to file a notice of appeal with the Supreme Court of Ohio in the forty-five day
appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days,
the stay will terminate as of the date of such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
Rules of Appellate Procedure.

Harsha, J. and McFarland, J.: Concur in Judgment and Opinion.


                                                        For the Court,


                                                        By: ________________________________
                                                            Marie Hoover, Judge




                                      NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and
the time period for further appeal commences from the date of filing with the clerk.
