[Cite as State v. Rust, 2013-Ohio-2151.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                               MARION COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 9-12-49

        v.

DONALD E. RUST,                                           OPINION

        DEFENDANT-APPELLANT.




                  Appeal from Marion County Common Pleas Court
                             Trial Court No. 11-CR-395

                                      Judgment Affirmed

                              Date of Decision: May 28, 2013




APPEARANCES:

        J.C. Ratliff for Appellant

        Brent W. Yager and David J. Stamolis for Appellee
Case No. 9-12-49


PRESTON, P.J.

       {¶1} Defendant-appellant, Donald E. Rust, appeals the Marion County

Court of Common Pleas’ sentence of 18 years imprisonment following his guilty

plea to six third degree felonies. Rust argues that the trial court failed to provide

adequate justification for imposing maximum, consecutive sentences, and that he

was denied effective assistance of counsel. For the following reasons, we affirm.

       {¶2} On August 4, 2011, the Marion County Grand Jury indicted Rust on

Count One of aggravated burglary in violation of R.C. 2911.11(A)(1), a first

degree felony; Count Two of kidnapping in violation of R.C. 2905.01(B)(2), a first

degree felony; Count Three of burglary in violation of R.C. 2911.12(A)(4), a

fourth degree felony; Count Four of failure to comply in violation of R.C.

2921.331(B)/(C)(4), a fourth degree felony; Count Five of failure to comply in

violation of R.C. 2921.331(B)/(C)(5), a third degree felony; Count Six of

felonious assault (peace officer) in violation of R.C. 2903.11(A)(2), a first degree

felony; and, Count Seven of operating a vehicle under the influence in violation of

R.C. 4511.19(A)(1)(a), a first degree misdemeanor. (Doc. No. 1). The indictment

included a repeat violent offender specification as to Counts One, Two, and Six

and a forfeiture specification as to all of the felony counts. (Id.).

       {¶3} The trial court arraigned Rust on August 8, 2011. (Doc. No. 4). At

that time, Rust pled not guilty to the charges. (Id.).


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        {¶4} By April 9, 2012, Rust and plaintiff-appellee, State of Ohio, reached a

plea agreement. That morning, as part of the plea agreement, the State filed a bill

of information, charging Rust with Count Eight of burglary in violation of R.C.

2911.12(A)(3), a third degree felony; Count Nine of attempted felonious assault in

violation of R.C. 2903.11(A)(1), a third degree felony; and, Count Ten of

tampering with evidence in violation of R.C. 2921.12(A)(1), a third degree felony.

(Doc. No. 58).

        {¶5} Later in the day on April 9, 2012, the trial court held a plea hearing.

(Apr. 9, 2012 Tr. at 1); (Doc. No. 86). At the hearing, also as part of the plea

agreement, the State moved to amend the indictment to reduce Count One to

burglary in violation of R.C. 2911.12(A)(3), a third degree felony, and to reduce

Count Two to abduction in violation of R.C. 2905.02(A)(2),1 a third degree felony.

(Id.); (Id.). The trial court granted the State’s motion to amend the indictment.

(Doc. No. 86).

        {¶6} At the April 9, 2012 plea hearing, Rust withdrew his not-guilty plea

and pled guilty to Counts One and Two, as amended, and Count Five, all felonies

of the third degree. (Doc. Nos. 59, 86); (Apr. 9, 2012 Tr. at 19-20). Rust also

waived his right to indictment and pled guilty to the bill of information, containing


1
  The trial court’s judgment entry of sentencing contains a typographical error, which does not impact our
disposition of this appeal. State v. Lux, 2d Dist. No. 2010 CA 30, 2012-Ohio-112, ¶ 42. The trial court
refers to the amended count of “Abduction [R.C. 2905.01(A)(2)], F3.” It appears the trial court intended to
cite R.C. 2905.02(A)(2), the abduction statute, rather than R.C. 2905.01(A)(2), the kidnapping statute.

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Counts Eight, Nine, and Ten, all felonies of the third degree. (Id.); (Id. at 3, 20).

The State dismissed the remaining charges, the repeat violent offender

specification, and the forfeiture specification. (Doc. Nos. 59, 86).

       {¶7} On July 16, 2012, the trial court held a sentencing hearing. (Doc. No.

86); (July 16, 2012 Tr. at 1).     In addition to counsel and Rust, five people

presented statements to the trial court, including four people on behalf of Rust.

(July 16, 2012 Tr. at 1-32). Before sentencing, the trial court was informed of

Rust’s criminal history, which included multiple rape offenses, a grand theft

offense, and an escape offense. (Pre-Sentence Investigation Report (“PSI”)).

       {¶8} The trial court accepted the State’s sentencing recommendation and

sentenced Rust to the maximum prison term—36 months imprisonment on each of

the six counts to which Rust pled guilty, to be served consecutively for a total of

18 years imprisonment. (July 16, 2012 Tr. at 29-30). The trial court filed its

judgment entry of sentencing on July 19, 2012. (Doc. No. 86).

       {¶9} On August 17, 2012, Rust filed a notice of appeal. (Doc. No. 88).

Rust raises two assignments of error for our review.

                            Assignment of Error No. I

       The trial court erred to the prejudice of defendant-appellant by
       imposing maximum consecutive sentences without adequate
       justification.




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       {¶10} In his first assignment of error, Rust argues that the record does not

support the imposition of maximum, consecutive sentences. In particular, he

argues that his sentence is contrary to the purposes and principles for felony

sentencing set forth in R.C. 2929.11 and the factors relating to the seriousness of

the offense and the recidivism of the offender under R.C. 2929.12.

       {¶11} A trial court’s sentence will not be disturbed on appeal absent a

defendant’s showing by clear and convincing evidence that the sentence is

unsupported by the record; the sentencing statutes’ procedure was not followed or

there was not a sufficient basis for the imposition of a prison term; or that the

sentence is contrary to law. State v. Ramos, 3d Dist. No. 4-06-24, 2007-Ohio-767,

¶ 23 (the clear and convincing evidence standard of review set forth under R.C.

2953.08(G)(2) remains viable with respect to those cases appealed under the

applicable provisions of R.C. 2953.08(A), (B), and (C) * * *); State v. Rhodes,

12th Dist. No. CA2005-10-426, 2006-Ohio-2401, ¶ 4; State v. Tyson, 3d Dist. Nos.

1-04-38; 1-04-39, 2005-Ohio-1082, ¶ 19, citing R.C. 2953.08(G).             Clear and

convincing evidence is that “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 (1954), paragraph three of the syllabus; State v. Boshko,

139 Ohio App.3d 827, 835 (12th Dist.2000). An appellate court should not,

however, substitute its judgment for that of the trial court because the trial court is


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“‘clearly in the better position to judge the defendant’s dangerousness and to

ascertain the effect of the crimes on the victims.’” State v. Watkins, 3d Dist. No.

2-04-08, 2004-Ohio-4809, ¶ 16, quoting State v. Jones, 93 Ohio St.3d 391, 400

(2001).

        {¶12} For each of the six third degree felonies to which Rust pled guilty,

“the prison term shall be nine, twelve, eighteen, twenty-four, thirty, or thirty-six

months.” State v. Snyder, 3d Dist. No. 13–11–37, 2012-Ohio-3069, ¶ 20, citing

R.C. 2929.14(A)(3)(b).2             Here, the trial court sentenced Rust to 36 months

imprisonment on each of the six counts to which Rust pled guilty, which terms are

all within the statutory range. Therefore, Rust’s sentence is not contrary to law.

        {¶13} R.C. 2929.14(C)(4), as amended in 2011 by H.B. 86, requires a trial

court to make specific findings when imposing consecutive sentences. State v.

Bentley, 3d Dist. No. 9-12-31, 2013-Ohio-852, ¶ 11.                                Specifically, R.C.

2929.14(C)(4) states:

        If multiple prison terms are imposed on an offender for convictions

        of multiple offenses, the court may require the offender to serve the

        prison terms consecutively if the court finds that the consecutive


2
  R.C. 2929.14(A)(3)(a) provides for a 60-month maximum penalty for certain offenses, including burglary
in violation of R.C. 2911.12, if the offender previously has been convicted of or pled guilty in two or more
separate proceedings to two or more aggravated robbery, robbery, aggravated burglary, or burglary
offenses. Snyder, 2012-Ohio-3069, at ¶ 20, fn.3. While Rust pled guilty to burglary in violation of R.C.
2911.12, his prior criminal history does not satisfy the prerequisite for the 60-month maximum penalty
under R.C. 2929.14(A)(3)(a). Therefore, the maximum penalty for the burglary count to which Rust pled
guilty, as with the other third degree felonies to which he pled guilty, was 36 months.

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       sentences are not disproportionate to the seriousness of the

       offender’s conduct and to the danger the offender poses to the

       public, and if the court also finds any of the following:

       (a) The offender committed one or more of the multiple offenses

       while the offender was awaiting trial or sentencing, was under a

       sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18

       of the Revised Code, or was under post-release control for a prior

       offense.

       (b) At least two of the multiple offenses were committed as part of

       one or more courses of conduct, and the harm caused by two or more

       of the multiple offenses so committed was so great or unusual that

       no single prison term for any of the offenses committed as part of

       any of the courses of conduct adequately reflects the seriousness of

       the offender’s conduct.

       (c) The offender’s history of criminal conduct demonstrates that

       consecutive sentences are necessary to protect the public from future

       crime by the offender.

       {¶14} Although R.C. 2929.14(C)(4) requires the trial court to make

findings before imposing a consecutive sentence, following the enactment of H.B.

86, the statute does not require the trial court to give its reasons for imposing the


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sentence. Bentley, 2013-Ohio-852, at ¶ 12; State v. Alexander, 1st Dist. Nos. C-

110828, C-110829, 2012-Ohio-3349, ¶ 18; State v. Nowlin, 5th Dist. No. CT2012-

0015, 2012-Ohio-4923, ¶ 69; State v. Parsons, 7th Dist. No. 12 BE 11, 2013-Ohio-

1281, ¶ 23; State v. Just, 9th Dist. No. 12CA0002, 2012-Ohio-4094, ¶ 49; State v.

Frasca, 11th Dist. No. 2011-T-0108, 2012-Ohio-3746, ¶ 57; State v. Smith, 12th

Dist. No. CA-2012-01-004, 2012-Ohio-4523, ¶ 34.

       {¶15} Additionally, in sentencing an offender, a trial court must consider

R.C. 2929.11 and 2929.12. State v. Pence, 3d Dist. No. 2-11-18, 2012-Ohio-1794,

¶ 9. The purposes and principles for felony sentencing provided in R.C. 2929.11

are:

       to protect the public from future crimes by the offender and others

       and to punish the offender, and shall be 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. State v. Hites, 3d

       Dist. No. 6-11-07, 2012-Ohio-1892, ¶ 8.

R.C. 2929.12(B) further requires the sentencing court to consider factors that

indicate the offender’s conduct is more or less serious than conduct that normally

constitutes the offense and factors that indicate the offender is likely or not likely




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to commit future offenses. State v. Billeg, 3d Dist. No. 16-12-03, 2013-Ohio-219,

¶ 22.

        {¶16} In sentencing Rust to consecutive terms, the trial court made the

findings required by R.C. 2929.14(C)(4). The trial court stated in its journal entry

of sentencing:

        The Court finds consecutive service is necessary to protect the

        public from future crime, and the sentences are not disproportionate

        to the seriousness of the Defendant’s conduct and to the danger the

        Defendant poses to the public. The Defendant’s history of criminal

        conduct demonstrates consecutive sentences are necessary to protect

        the public from future crime by the Defendant. (Doc. No. 86).

The trial court also stated these findings at the sentencing hearing. (July 16, 2012

Tr. at 30).

        {¶17} In sentencing Rust to maximum, consecutive terms of imprisonment,

the trial court considered R.C. 2929.11 and 2929.12. In its judgment entry of

sentencing, the trial court stated that it considered “the record, oral statements, any

victim impact statement and pre-sentence report prepared, as well as the principles

and purposes of sentencing under R.C. 2929.11, and the appropriate factors under

R.C. 2929.12.” (Doc. No. 86). The transcript of the sentencing hearing also




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reflects that the trial court considered the sentencing statutes when sentencing

Rust. (July 16, 2012 Tr. at 28-29).

       {¶18} Rust acknowledges that the trial court made the findings required by

R.C. 2929.14(C)(4) and considered the “statutory factors.” (Appellant’s Brief at 6,

9).   Rust argues, however, that the sentence is contrary to the purposes and

principles of felony sentencing and the factors relating to the seriousness of the

offense and the recidivism of the offender. Rust also argues that the record was

insufficient to support the imposition of consecutive sentences. After reviewing

the record, we are not persuaded by these arguments.

       {¶19} Rust’s sentence was not contrary to the purposes and principles set

forth in R.C. 2929.11. In its journal entry of sentencing, the trial court noted

Rust’s criminal history, finding that it warranted consecutive sentences to protect

the public from future crimes by Rust. (Doc. No. 86). The record also reflects the

harm suffered by at least one of the victims of Rust’s crimes. That victim, whose

home Rust burglarized and who Rust held at knifepoint, explained at the

sentencing hearing the serious psychological harm she has suffered: “[Rust] has

no idea how he changed me. That day was very emotional. It’s been very

emotional since.    I went through two months of treatment.        Just somebody

knocking on the door would set me off.” (July 16, 2012 Tr. at 6); (see also PSI).

Rust’s sentence is, therefore, not contrary to R.C. 2929.11.


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       {¶20} Nor is Rust’s sentence contrary to R.C. 2929.12. Among the factors

for determining whether the offense is more serious than conduct that normally

constitutes the offense is any “serious physical, psychological, or economic harm”

suffered by a victim as a result of the offense. R.C. 2929.12(B)(2). The victim

who Rust held at knifepoint described in a victim impact statement and at the

sentencing hearing the serious psychological harm she suffered. (PSI); (July 16,

2012 Tr. at 6).    The record reflects that none of the factors for determining

whether the offender’s conduct is less serious than conduct that normally

constitutes the offense favor Rust: no victims induced the offense; Rust did not

act under strong provocation; Rust caused physical harm to property, most notably

by ramming his pickup truck into an Ohio Highway Patrol cruiser (Apr. 9, 2012

Tr. at 18-19); and, there are no substantial grounds to mitigate Rust’s conduct.

R.C. 2929.12(C).       When considering the likelihood of recidivism, R.C.

2929.12(D) allows the trial court to consider “any other relevant factors” in

addition to those listed in the statute. The record reflects that while Rust was out

on bond, he went out of state without permission, and the trial court considered

that relevant factor in its sentencing decision. (July 16, 2012 Tr. at 29). For these

reasons, after reviewing the record, we cannot conclude that Rust’s sentence is

contrary to R.C. 2929.11 or 2929.12 or not adequately supported by the record.

       {¶21} Rust’s first assignment of error is, therefore, overruled.


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                           Assignment of Error No. II

       Defendant-appellant was denied effective assistance of counsel as
       guaranteed by the Sixth Amendment to the United States
       Constitution and Article I, Section 10 of the Ohio Constitution.

       {¶22} In his second assignment of error, Rust argues that he was denied

effective assistance of counsel because his trial counsel failed to argue to the trial

court the findings of the psychologist who examined him and to present to the trial

court any evidence of sentences imposed in similar cases.

       {¶23} A defendant asserting a claim of ineffective assistance of counsel

must establish: (1) the counsel’s performance was deficient or unreasonable under

the circumstances; and (2) the deficient performance prejudiced the defendant.

State v. Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466

U.S. 668, 687, 104 S.Ct. 2052 (1984). To establish prejudice when ineffective

assistance of counsel relates to a guilty plea, a defendant must show there is a

reasonable probability that but for counsel’s deficient or unreasonable

performance the defendant would not have pled guilty. State v. Xie, 62 Ohio St.3d

521, 524 (1992), citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366 (1985);

Strickland, 466 U.S. at 687.

       {¶24} In order to show counsel’s conduct was deficient or unreasonable,

the defendant must overcome the presumption that counsel provided competent

representation and must show that counsel’s actions were not trial strategies


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prompted by reasonable professional judgment.          Strickland, 466 U.S. at 687.

Counsel is entitled to a strong presumption that all decisions fall within the wide

range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673,

675 (1998). Tactical or strategic trial decisions, even if unsuccessful, do not

generally constitute ineffective assistance. State v. Frazier, 61 Ohio St.3d 247,

255 (1991).    Rather, the errors complained of must amount to a substantial

violation of counsel’s essential duties to his client. See State v. Bradley, 42 Ohio

St. 3d 136, 141-142 (1989), citing State v. Lytle, 48 Ohio St.2d 391, 396 (1976).

       {¶25} A review of the record shows that Rust’s trial counsel’s assistance

was not ineffective. First, the record does not indicate that Rust’s trial counsel’s

performance was deficient or unreasonable. Rust suggests that his trial counsel

should have argued to the trial court the findings in the psychologist’s report, but

the transcript of the sentencing hearing reveals that trial counsel did refer the trial

court to that report:     “And by reading Dr. Smaldon’s [sic] report, under

psychological evaluation, Your Honor, I think it is clear for this analysis that is

[sic] was the drinking that caused this incident over the background of Mr. Knots,

excuse me, as [sic] Mr. Rust as he described.” (July 16, 2012 Tr. at 26).

       {¶26} Rust further argues that his trial counsel should have had the

psychologist present a statement at the sentencing hearing, but the decision

whether to call a witness is “within the rubric of trial strategy and will not be


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second-guessed by a reviewing court.” State v. Stiles, 3d Dist. No. 1-08-12, 2009-

Ohio-89, ¶ 58 (citation and internal quotation marks omitted); see also State v.

Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, ¶ 278 (concluding that the decision

not to call a psychologist as a witness during the penalty phase of a capital murder

trial “was a tactical choice as part of a trial strategy” and, therefore, not ineffective

assistance). With the psychologist’s report available to the trial court, it was far

from unreasonable to forego a statement by the psychologist at the sentencing

hearing, particularly when trial counsel offered statements from four individuals

on behalf of Rust, in addition to the statements of Rust and trial counsel. Stiles,

2009-Ohio-89, at ¶ 58-59.

       {¶27} Nor was it unreasonable or deficient not to offer to the trial court

information concerning sentences imposed in similar cases because presentation of

mitigation evidence at a sentencing hearing is a matter of trial strategy. Id. at ¶ 59.

Rust has, therefore, failed to demonstrate that trial counsel’s performance was

deficient or unreasonable.

       {¶28} Rust has likewise failed to demonstrate that he was prejudiced by his

trial counsel’s performance. Indeed, Rust does not argue that but for his trial

counsel’s deficient or unreasonable performance, he would not have pled guilty.

Xie, 62 Ohio St.3d at 524. As originally indicted, Rust faced a multi-decade total,

maximum sentence. (Doc. No. 1). His trial counsel negotiated a plea agreement


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under which the State agreed to dismiss six counts, the repeat violent offender

specification, and the forfeiture specification.      (Doc. No. 86).       Under the

negotiated plea agreement, Rust faced a total maximum sentence of 18 years—a

substantial reduction from the possible total term of imprisonment as charged in

the original indictment. From at least as early as the hearing at which Rust entered

his guilty plea, the State requested an 18-year sentence, and Rust acknowledged as

much. (Apr. 9, 2012 Tr. at 2, 6). Therefore, even assuming Rust could establish

that his trial counsel’s performance were deficient or unreasonable, he cannot

demonstrate that he was prejudiced. For these reasons, Rust has failed to establish

that his trial counsel’s assistance was ineffective under the law.

       {¶29} Rust’s second assignment of error is, therefore, overruled.

       {¶30} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                                 Judgment Affirmed

WILLAMOWSKI and ROGERS, J.J., concur.

/jlr




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