[Cite as State v. D'Amico, 2017-Ohio-1352.]


STATE OF OHIO                    )                     IN THE COURT OF APPEALS
                                 )ss:                  NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

STATE OF OHIO                                          C.A. No.       27258

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
THOMAS J. D'AMICO                                      COURT OF COMMON PLEAS
                                                       COUNTY OF SUMMIT, OHIO
        Appellant                                      CASE No.   CR 13 04 0997

                                 DECISION AND JOURNAL ENTRY

Dated: April 12, 2017



        TEODOSIO, Judge.

        {¶1}    Appellant, Thomas J. D’Amico, appeals from his convictions in the Summit

County Court of Common Pleas. This Court affirms.

                                                  I.

        {¶2}    This Court previously set forth the underlying facts in this case as follows:

        On March 17, 2013, Mr. D’Amico ran up behind [R.F.], who was the [fiancé] of
        Mr. D’Amico’s former wife, M.S., broke a beer bottle over [R.F.’s] head, and
        attempted to stab him in the neck with it. As a result of this attack, Mr. D’Amico
        was indicted on charges of felonious assault, menacing by stalking, aggravated
        menacing, and violating a protection order. Mr. D’Amico pleaded guilty to
        felonious assault and violating a protection order, and the remaining counts were
        dismissed. The trial court sentenced Mr. D’Amico to seven years in prison.

State v. D’Amico, 9th Dist. Summit No. 27258, 2015-Ohio-278, ¶ 2.               This Court initially

affirmed the case on appeal, but later granted Mr. D’Amico’s motion to reopen the appeal. The

Court confirmed its prior judgment, but then granted Mr. D’Amico’s second motion to reopen

the appeal.
                                                  2


       {¶3}     Mr. D’Amico now appeals from his convictions and raises three assignments of

error for this Court’s review.

                                                 II.

                                 ASSIGNMENT OF ERROR ONE

       THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. D’AMICO BY
       IMPOSING A SENTENCE BASED UPON FACTS NOT CONTAINED IN THE
       RECORD, IN VIOLATION OF MR. D’AMICO’S RIGHTS UNDER THE
       SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
       CONSTITUTION, AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO
       CONSTITUTION. []

       {¶4}     In his first assignment of error, Mr. D’Amico argues that the trial court relied

heavily on an incorrect interpretation of the video surveillance footage at sentencing. We

disagree.

       {¶5}     The Supreme Court of Ohio has held that “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, ¶ 1; see also

R.C. 2953.08(G)(2). The Supreme Court of Ohio has further defined “clear and convincing

evidence” as:

       [T]hat measure or degree of proof which will produce in the mind of the trier of
       facts a firm belief or conviction as to the allegations sought to be established. It is
       intermediate, being more than a mere preponderance, but not to the extent of such
       certainty as is required beyond a reasonable doubt as in criminal cases. It does
       not mean clear and unequivocal.

(Emphasis sic.) Cross v. Ledford, 161 Ohio St. 469, 477 (1954).

       {¶6}     Mr. D’Amico specifically challenges the following statement made by the trial

court at sentencing:
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          And the Court notes that the offense itself, the manner in which it occurred was
          incredibly violent. And in a certain sense, Mr. D’Amico, you are fortunate that
          you did not kill the victim, given the manner in which you assaulted him. To take
          a beer bottle and hammer it over somebody’s head until it breaks requires quite a
          bit of force, especially when the bottle is full. And to then take the broken bottle
          and start stabbing somebody in the neck could have easily severed arteries that
          could have caused death. So you are fortunate in a certain sense that you did not
          kill [the victim.]

          {¶7}   Mr. D’Amico admits that he hit the victim with a beer bottle, but argues that he

only punched the victim in the head or face afterward. Although the pre-sentence investigation

report states that “[o]nce the beer bottle broke, the Defendant continued to stab at the back of

[the victim’s] head and neck area until the beer bottle completely broke away” and that the

victim was treated for “multiple lacerations on his head and neck that had glass from a beer

bottle imbedded in them[,]” Mr. D’Amico argues that the video does not reflect an attack to the

victim’s neck area and claims that the breaking of the bottle caused the victim’s wounds, not a

stabbing to the neck.

          {¶8}   Our independent review of video reveals that Mr. D’Amico used a bottle to strike

the victim twice in the head and neck area, with the bottle shattering upon the second hit. But,

the video is inconclusive as to whether Mr. D’Amico retained a piece or pieces of the shattered

bottle in his hand when he subsequently punched or stabbed the victim two additional times in

the head and neck area. Accordingly, we cannot say that the trial court relied on an incorrect

interpretation of the video by stating that Mr. D’Amico “stabb[ed] somebody in the neck * * *.”

          {¶9}   Mr. D’Amico also argues that the video does not demonstrate an assault that is

incredibly violent in nature. He first indicates that the victim did not fall down after the assault.

But, the victim’s ability to remain standing immediately after being suddenly and unexpectedly

assaulted from behind bears absolutely no relationship to the level of violence inherent in the

attack.
                                                 4


         {¶10} Mr. D’Amico further argues that the video does not depict a stabbing.             He

inaccurately asserts that neither the victims nor the State mentioned a stabbing in their statements

to the court. The record is clear that one of the victims said in her statement to the court, “He * *

* attacked my fiancé from behind by hitting him on head with a full bottle of beer and stabbing

him in the neck with a broken bottle.” (Emphasis added.). The pre-sentence investigation report

also details a stabbing. We have already concluded that the video itself is inconclusive as to this

issue.

         {¶11} The prosecutor played the video of the assault for the trial court to view prior to

sentencing, but the record does not reflect that the court relied heavily on the video, especially in

light of the court’s “lengthy discussion about other factors on the record * * *.” D’Amico, 2015-

Ohio-278, at ¶ 9.

         {¶12} At the sentencing hearing, the trial court heard statements from the prosecutor,

defense counsel, Mr. D’Amico, both of the victims, and a victim’s stepmother. The court stated

that it “is required to evaluate the principles and purposes of felony sentencing and the

seriousness and recidivism factors that exist under Ohio law.” It noted that the victims “suffered

serious physical and psychological harm” and Mr. D’Amico’s relationship with one of the

victims facilitated the offenses. The court considered the record of harassment prior to the

offense, the violence of the offense itself, Mr. D’Amico’s criminal history, and his failure to

respond favorably to previous sanctions. The court found no genuine remorse in Mr. D’Amico

and found his statements in the pre-sentence investigation report “unbelievably inappropriate in

tone.” The court considered the video and found no provocation on the part of the victim. In

reference to Mr. D’Amico’s “ongoing psychological condition[,]” the court noted concern over

his “homicidal ideations” and his statement that “[s]trangely * * * the assault helped him to get
                                                5


over his former girlfriend.” The court stated that it “has zero assurance that [imposing] less than

a significant prison term would adequately protect the public or punish the offender” and

recidivism was a “genuine concern.”

       {¶13} The trial court sentenced Mr. D’Amico to seven years in prison for Felonious

Assault, a felony of the second degree, to be served concurrently with six months in jail for

Violating a Protection Order, a misdemeanor of the first degree. Mr. D’Amico does not claim

that these sentences are not within the statutory sentencing ranges for these offenses. See R.C.

2929.14(A)(2); see also R.C. 2929.24(A)(1). “Trial courts have full discretion to impose a

prison sentence within the statutory range and are no longer required to make findings or give

their reasons for imposing maximum * * * sentences.” State v. Foster, 109 Ohio St.3d 1, 2006-

Ohio-856, paragraph seven of the syllabus.

       {¶14} We conclude that the record here supports the trial court’s findings under relevant

statutes and that the sentence is not otherwise contrary to law. See Marcum, 146 Ohio St.3d 516,

2016-Ohio-1002, at ¶ 1.

       {¶15} Mr. D’Amico’s first assignment of error is overruled.

                              ASSIGNMENT OF ERROR TWO

       TRIAL COUNSEL RENDERED INEFFECTIVE ASSISTANCE AT
       SENTENCING, IN VIOLATION OF MR. D’AMICO’S RIGHTS UNDER THE
       SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
       CONSTITUTION, AND ARTICLE I, SECTIONS 10 AND 16 OF THE OHIO
       CONSTITUTION. []

       {¶16} In his second assignment of error, Mr. D’Amico argues that trial counsel’s failure

to correct the trial court’s erroneous interpretation of the video amounted to ineffective

assistance of counsel and there is a reasonable probability that he would have received a lesser

sentence if trial counsel had objected. We disagree.
                                                6


       {¶17} “To prove ineffective assistance of counsel, [Mr. D’Amico] must establish that:

(1) [his] trial counsel’s performance was deficient; and (2) but for counsel’s deficient

performance, there is a reasonable probability that the result of the trial would have been

different.” State v. Taylor, 9th Dist. Summit No. 27867, 2016-Ohio-3439, ¶ 20, citing Strickland

v. Washington, 466 U.S. 668, 687 (1984).

       {¶18} In light of our conclusion above that the trial court did not err in its interpretation

of the video, Mr. D’Amico “cannot show the necessary prejudice required to support an

ineffective assistance of counsel claim.” Id., quoting State v. Blankenship, 9th Dist. Summit No.

16019, 1993 WL 329962, *4 (Sept. 1, 1993).

       {¶19} Mr. D’Amico’s second assignment of error is overruled.

                            ASSIGNMENT OF ERROR THREE

       PREVIOUS   APPELLATE      COUNSEL    RENDERED    INEFFECTIVE
       ASSISTANCE, IN VIOLATION OF MR. D’AMICO’S RIGHTS UNDER THE
       FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION,
       AND ARTICLE I, SECTION 16 OF THE OHIO CONSTITUTION. []

       {¶20} In his third assignment of error, Mr. D’Amico argues that previous appellate

counsel’s failure to provide an adequate record, including the surveillance video and pre-

sentence investigation report, for this Court’s review amounted to ineffective assistance of

counsel. We disagree.

       {¶21} Once again, “[a]n appellant must show prejudice to establish ineffective

assistance of counsel.” State v. McGowan, 9th Dist. Summit No. 27092, 2015-Ohio-1804, ¶ 28,

rev’d on other grounds, 147 Ohio St.3d 166, 2016-Ohio-2971, citing Strickland at 687. Mr.

D’Amico cannot demonstrate prejudice because he received an adequate remedy for any error

when this Court reopened his appeal and now has the video and pre-sentence investigation report

before it for review. See id. Moreover, even with the complete record now before this Court,
                                                 7


including the surveillance video and pre-sentence investigation report, Mr. D’Amico cannot

demonstrate prejudice in light of our conclusion above that the trial court did not err in its

interpretation of the video. See id.

       {¶22} Mr. D’Amico’s third assignment of error is overruled.

                                                III.

       {¶23} Mr. D’Amico’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       THOMAS A. TEODOSIO
                                                       FOR THE COURT
                                           8




HENSAL, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

KRISTOPHER A. HAINES, Assistant State Public Defender, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
