[Cite as State v. Seanunier, 2017-Ohio-852.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                     CHAMPAIGN COUNTY

 STATE OF OHIO                                       :
                                                     :
         Plaintiff-Appellee                          :   C.A. CASE NO. 2016-CA-13
                                                     :
 v.                                                  :   T.C. NO. 16-CR-81
                                                     :
 JOSEPH C. SEAUNIER III                              :   (Criminal Appeal from
                                                     :    Common Pleas Court)
         Defendant-Appellant                         :
                                                     :

                                                ...........

                                               OPINION

                 Rendered on the ___10th __ day of _____March_____, 2017.

                                                ...........

KEVIN TALEBI, Atty. Reg. No. 0069198, 200 N. Main Street, Urbana, Ohio 43078
     Attorney for Plaintiff-Appellee

JOHN A. FISCHER, Atty. Reg. No. 0068346, Greene Town Center, 70 Birch Alley, Suite
240, Beavercreek, Ohio 45440
      Attorney for Defendant-Appellant

                                               .............

FROELICH, J.

        {¶ 1} Joseph C. Seaunier III pled guilty in the Champaign County Court of

Common Pleas to one count of illegal conveyance of drugs of abuse onto grounds of a

specified governmental facility, a third-degree felony, and possession of marijuana, a

minor misdemeanor.            In exchange for the plea, the State agreed to dismiss four
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additional charges and to recommend a presentence investigation. After a presentence

investigation, the trial court sentenced Seaunier to a maximum sentence of 36 months for

illegal conveyance and, for both charges, suspended his driver’s license for six months.

       {¶ 2} Seaunier’s appellate counsel has filed a brief pursuant to Anders v.

California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating that he found

no non-frivolous issues for appeal. Counsel raised two potential assignments of error,

namely that the trial court erred in imposing a maximum sentence and that trial counsel

rendered ineffective assistance. By entry, we informed Seaunier that his attorney had

filed an Anders brief on his behalf and granted him 60 days from that date to file a pro se

brief. To date, no pro se brief has been filed.

       {¶ 3} We have conducted our independent review of the record pursuant to

Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), and we agree with

appellate counsel that there are no non-frivolous issues for review. Accordingly, the trial

court’s judgment will be affirmed.

                           I. Factual and Procedural History

       {¶ 4} According to the record, in February 2016, Seaunier was arrested due to a

probation violation in a Union County case, and he was taken to the Tri-County Jail,

located in Champaign County. Seanuier conveyed drugs into the jail, including two types

of prescription medication.   Two days later, corrections officers at the jail received

information that Seaunier might possess contraband, and the officers informed Seaunier

that they were going to do a strip search. In response, Seaunier threw a sock into a

laundry tub; the sock contained pills, marijuana, tobacco, and a lighter. (At sentencing,

Seanier agreed that he brought prescription medication into the jail, but claimed that he
                                                                                        -3-


found the marijuana at the jail.) The record reflects that Seaunier was released from jail,

but the date of his release is not stated.

        {¶ 5} On March 3, 2016, Seaunier was indicted on three counts of illegal

conveyance of drugs of abuse onto grounds of a specified governmental facility, a third-

degree felony; one count of possession of dangerous drugs, a fifth-degree felony; and

one count of possession of marijuana, a minor misdemeanor.            The indictment was

served on Seaunier on March 4, and he was ordered to appear on March 16. Seaunier

appeared for his arraignment, the court appointed counsel for him, and Seaunier was

ordered to appear again the following day (March 17); Seaunier was released on a

personal recognizance bond. At his March 17 arraignment with counsel, Seaunier pled

not guilty.

        {¶ 6} A scheduling conference was held on March 24. At that time, a pretrial

conference was scheduled for April 29, 2016, and a jury trial was set for May 24 and 25,

2016.

        {¶ 7} On April 14, 2016, Seaunier was arrested for criminal activity in Union

County, and he again transported drugs into the Tri-County Jail, where he was taken.

According to the presentence investigation report, during a search of Seaunier at the jail,

a corrections officer found contraband sewn into Seaunier’s underwear. The contraband

consisted of tobacco, chew, rolling papers, a match striker, matches, a lighter, and three

suspected oxycodone pills (for which Seaunier had a prescription).

        {¶ 8} On April 29, 2016, the date of the scheduled pretrial conference, the parties

informed the trial court that there was a new charge and that they had reached a plea

agreement.     The State filed a bill of information, charging another count of illegal
                                                                                       -4-


conveyance, based on Seaunier’s April 14 conduct. Seaunier waived, in writing, his right

to an indictment on that count, as well as his right to 24-hour service. Seaunier then

entered a plea of guilty to the new charge and to possession of marijuana, in exchange

for which the State agreed to dismiss the other four counts of the previous indictment.

The court accepted Seaunier’s guilty plea and ordered a presentence investigation.

      {¶ 9} A sentencing hearing was held on June 13, 2016.           After an extensive

discussion between the court and Seaunier about the offenses and his criminal history,

the trial court sentenced Seaunier to 36 months in prison for illegal conveyance, and it

suspended Seaunier’s driver’s license for six months for both charges. No additional

sentence was imposed for possession of marijuana.

      {¶ 10} Seaunier appeals from his convictions.

                                II. Maximum Sentence

      {¶ 11} Seaunier’s appellate counsel first raises whether the trial court erred in

sentencing Seaunier to the maximum sentence possible for the illegal conveyance

charge.

      {¶ 12} “The trial court has full discretion to impose any sentence within the

authorized statutory range, and the court is not required to make any findings or give its

reasons for imposing maximum or more than minimum sentences.” State v. King, 2013-

Ohio-2021, 992 N.E.2d 491, ¶ 45 (2d Dist.). However, in exercising its discretion, a trial

court must consider the statutory policies that apply to every felony offense, including

those set out in R.C. 2929.11 and R.C. 2929.12. State v. Leopard, 194 Ohio App.3d

500, 2011-Ohio-3864, 957 N.E.2d 55, ¶ 11 (2d Dist.), citing State v. Mathis, 109 Ohio

St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶ 38.
                                                                                          -5-


       {¶ 13} R.C. 2929.11 requires trial courts to be guided by the overriding purposes

of felony sentencing. Those purposes are “to protect the public from future crime by the

offender and others and to punish the offender using the minimum sanctions that the court

determines accomplish those purposes without imposing an unnecessary burden on state

or local government resources.” R.C. 2929.11(A). The court must “consider the need

for incapacitating the offender, deterring the offender and others from future crime,

rehabilitating the offender, and making restitution to the victim of the offense, the public,

or both.” Id. R.C. 2929.11(B) further provides that “[a] sentence imposed for a felony

shall be reasonably calculated to achieve the two overriding purposes of felony

sentencing * * *, commensurate with and not demeaning to the seriousness of the

offender’s conduct and its impact upon the victim, and consistent with sentences imposed

for similar crimes committed by similar offenders.”

       {¶ 14} R.C. 2929.12(B) sets forth nine factors indicating that an offender’s conduct

is more serious than conduct normally constituting the offense; R.C. 2929.12(C) sets forth

four factors indicating that an offender’s conduct is less serious than conduct normally

constituting the offense. R.C. 2929.12(D) and (E) each lists five factors that trial courts

are to consider regarding the offender’s likelihood of committing future crimes. Finally,

R.C. 2929.12(F) requires the sentencing court to consider the offender’s military service

record.

       {¶ 15} Seaunier acknowledged at sentencing that he had a “horrible past” and had

served “extensive prison time,” but he claimed that his crimes were the result of drug

addiction; he requested an opportunity to be sentenced to community control with a drug

treatment program. Seaunier claimed that he did not realize that he had the oxycodone
                                                                                           -6-


(Percocet) pills in his underwear when he was arrested in April 2016. Seaunier also

discussed his poor health, and he stated that a judge in Union County indicated that he

would give Seaunier “drug court” on another pending matter.

       {¶ 16} In discussing Seaunier’s criminal history, as reported in the presentence

investigation, the trial court noted that fifteen of Seanier’s past offenses did not involve

drugs, and there was no indication that addiction was the underlying cause. Seaunier

responded that one judge in a prior case had tried to send him to West Central, but he

was not accepted due to his need for seizure medication and a past robbery charge

(which Seaunier denied he had committed). Seaunier indicated that West Central would

not take him now because of his substantial health issues. The trial court also asked

Seaunier about a note in the presentence investigation report that Seaunier had

threatened to stab a facility officer in the face with a knife during the April 14, 2016

investigation; Seaunier stated that he had been intoxicated, and he expressed remorse

for that conduct.

       {¶ 17} At the sentencing hearing, the trial court indicated that it had reviewed the

presentence investigation report, the statements of counsel, Seaunier’s statements, and

the court’s interaction with Seaunier. In imposing its sentence, the court orally explained

that Seaunier had “committed the multiple drug-related offenses separated in time in a

local correctional facility within seven months of being released from a state correctional

facility. And the Defendant has been previously convicted of the same offense. And

the Defendant threatened the rehabilitative environment and safety of the local

correctional facility by possessing tobacco, tobacco-related smoking products, and

matches and lighters.” The trial court’s detailed judgment entry reflects that the trial court
                                                                                         -7-


considered the purposes and principles of sentencing (R.C. 2929.11) and the factors set

forth in R.C. 2929.12.

       {¶ 18} The presentence investigation report shows nineteen adult convictions over

twenty years. The offenses included domestic violence (1995), carrying a concealed

weapon (1996), assault (2000), several counts of theft (2000, 2009, 2011, 2016), illegal

conveyance of drugs (2002), possession of crack cocaine (2007), aggravated menacing

(2010, 2011), and criminal damaging (2011, 2016). Seaunier had been sentenced to

prison on several occasions: two years in 1998; nine months and six months, respectively,

in two different 2000 cases; one year in 2002, two years in 2007; and four years in 2011.

Seaunier was on probation when he committed the offenses involved in this case, he had

previously committed illegal conveyance of drugs of abuse in 2002, and he committed the

newly-charged offense of illegal conveyance (April 2016 conduct) while on bond in this

case. The Ohio Risk Assessment System (ORAS) report indicated a very high risk of

recidivism.

       {¶ 19} Upon review of the record, we agree with appellate counsel that an appeal

of Seaunier’s maximum sentence would be frivolous.

                         III. Ineffective Assistance of Counsel

       {¶ 20} Seaunier’s appellate counsel next raises a potential claim that Seaunier’s

trial counsel rendered ineffective assistance. Appellate counsel states that Seaunier

may have had a defense to the illegal conveyance charge, because he had a prescription

for the medication and he willingly turned them over to corrections officers. Counsel

notes, however, that certain statements by Seaunier indicated that he did not willingly turn

over the drugs.
                                                                                            -8-


       {¶ 21} In general, we review alleged instances of ineffective assistance of trial

counsel under the two-pronged analysis set forth in Strickland v. Washington, 466 U.S.

668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio

in State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Pursuant to those cases,

trial counsel is entitled to a strong presumption that his or her conduct falls within the wide

range of reasonable assistance. Strickland, 466 U.S. at 688.

       {¶ 22} To establish ineffective assistance of counsel, a defendant must

demonstrate both that trial counsel’s conduct fell below an objective standard of

reasonableness and that the errors were serious enough to create a reasonable

probability that, but for the errors, the outcome of the case would have been different.

See id.; Bradley at 142. Hindsight is not permitted to distort the assessment of what was

reasonable in light of counsel’s perspective at the time, and a debatable decision

concerning trial strategy cannot form the basis of a finding of ineffective assistance of

counsel. State v. Cook, 65 Ohio St.3d 516, 524-525, 605 N.E.2d 70 (1992); State v.

Fields, 2017-Ohio-400, __ N.E.3d __, ¶ 38 (2d Dist.).

       {¶ 23} Seaunier acknowledged at sentencing that he usually tried to hide his

medication when he came into the jail and “they wouldn’t find it for days.” With respect

to the February incident (the counts which were dismissed), Seaunier told the trial court

that he had brought his seizure medications – Clonazepam and Quetiapine – into the jail.

Seaunier said:

       I did bring them in. I’ve had numerous seizures at the Tri-County. And

       they don’t like to transport people to the hospital. * * * I have grand [mal]

       seizures. It’s the most weirdest, painfullest [sic] thing you can experience.
                                                                                         -9-


       And I have them a lot. And they don’t give me the medications at the Tri-

       County Jail because a lot of people abuse them [sic] drugs. So they don’t

       give them out. So I had just brought enough to make it to my – all I had

       was ten days. I had it enough to make it ten days. That’s it.

       {¶ 24} As to the April incident, Seaunier had his medication, along with other items,

sewn into his underwear. Seaunier claimed at sentencing that he had forgotten that the

pills were among the items in his underwear when he turned the underwear over to

corrections officers; the trial court did not believe Seaunier’s assertion.

       {¶ 25} Based on the record, we find no arguably meritorious claim that Seaunier’s

counsel rendered ineffective assistance in counseling Seaunier to enter a plea to one

count of illegal conveyance and to possession of marijuana. As result of that plea, the

State dismissed three additional counts of illegal conveyance, all third-degree felonies,

and one count of possession of dangerous drugs, a fifth-degree felony. In addition,

Seaunier’s statements at sentencing reflected that Seaunier repeatedly smuggled his

prescription medication into the jail. We find no basis for Seaunier to claim that his

attorney’s plea recommendation fell below an objective standard of reasonableness.

                              V. Additional Anders Review

       {¶ 26} We have reviewed the entire record, including the transcripts of the plea

and sentencing hearings and the presentence investigation report. Based on our

review, we agree with appellate counsel that no non-frivolous claims exist.

Accordingly, the trial court’s judgment will be affirmed.

                                          .............

DONOVAN, J. and WELBAUM, J., concur.
                          -10-




Copies mailed to:

Kevin Talebi
John A. Fischer
Joseph C. Seaunier, III
Hon. Nick A. Selvaggio
