[Cite as State v. Jackson, 2019-Ohio-665.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 1-18-20

        v.

CORY L. JACKSON,                                          OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR2017 0186

                                      Judgment Affirmed

                           Date of Decision: February 25, 2019




APPEARANCES:

        Nikki Trautman Baszynski for Appellant

        Jana E. Emerick for Appellee
Case No. 1-18-20


ZIMMERMAN, P.J.

       {¶1} Defendant-appellant, Cory L. Jackson (“Jackson”), appeals the April

13, 2018 judgment entry of sentence of the Allen County Court of Common Pleas.

For the reasons that follow, we affirm.

       {¶2} This case stems from the October 8, 2016 shooting death of Amari

Gooding (“Gooding”) at the Main Street Pub in Lima, Ohio. On June 15, 2017, the

Allen County Grand Jury indicted Jackson on one count of murder in violation of

R.C. 2903.02(A), (D) and 2929.02(B), an unclassified felony, and one count of

aggravated robbery in violation of R.C. 2911.01(A)(1), (C), a first-degree felony.

(Doc. No. 1).      The indictment contains a firearm specification under R.C.

2941.145(A) as to both counts. (Id.). On June 29, 2017, Jackson appeared for

arraignment and entered pleas of not guilty. (Doc. No. 15).

       {¶3} The case proceeded to a jury trial on February 20-21, 2018. (Feb. 20-

21, 2018 Tr., Vol. I, at 1); (Feb. 20-21, 2018 Tr., Vol. II, at 297). On February 21,

2018, the jury found Jackson guilty of the counts and specifications in the

indictment. (Doc. Nos. 90, 91, 92, 93).

       {¶4} On April 11, 2018, the trial court sentenced Jackson to an indeterminate

term of life in prison with parole eligibility after serving 15 years on Count One, 9

years in prison on Count Two, and 3 years in prison as to each specification. (Doc.

No. 103). The trial court further ordered that Jackson serve the terms consecutively


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for an aggregate sentence of life in prison with parole eligibility after serving 30

years. (Id.). The trial court filed its judgment entry of sentence on April 13, 2018.

(Id.).

         {¶5} Jackson timely filed his notice of appeal on April 24, 2018, and raises

one assignment of error for our review. (Doc. No. 105).

                                       Assignment of Error

         Cory L. Jackson was denied the right to choose the objective of
         his defense, in violation of the Sixth and Fourteenth Amendments
         to the United States Constitution and Section 10, Article I of the
         Ohio Constitution.

         {¶6} In his sole assignment of error, Jackson argues that his trial counsel

impinged his Sixth Amendment right to insist that his trial counsel refrain from

admitting guilt. That is, Jackson contends that his trial counsel unconstitutionally

conceded his guilt over Jackson’s objection during the sentencing hearing and that

the error amounts to structural error under McCoy v. Louisiana.                       __ U.S. __, 138

S.Ct. 1500 (2018). Jackson’s argument necessarily challenges the lawfulness of his

sentence.1




1
  “Because a client’s autonomy, not counsel’s competence, is in issue, we do not apply our ineffective-
assistance-of-counsel jurisprudence.” McCoy v. Louisiana, ___ U.S. ___, 138 S.Ct. 1500, 1511 (2018), citing
Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984) and United States v. Cronic, 466 U.S. 648,
104 S.Ct. 2039 (1984).


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                                  Standard of Review

       {¶7} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence

“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. 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.’” Id.

at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of the

syllabus.

                                        Analysis

       {¶8} “A structural error is a constitutional defect that defies analysis by

harmless error standards, because it affects the framework within which the trial

proceeds, rather than simply being an error in the trial process itself.” State v.

Fields, 12th Dist. Butler No. CA2005-03-067, 2005-Ohio-6270, ¶ 27, citing State v.

Perry, 101 Ohio St.3d 118, 2004-Ohio-297, ¶ 17.

       Structural error affects the substantial rights of a criminal defendant,
       even absent a specific showing that the outcome of the trial would
       have been different, and requires automatic reversal. Because a
       defendant is relieved of his burden to show prejudice, the finding of
       structural error is rare and limited to exceptional cases.

State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, ¶ 53 (Moyer, J., concurring

in judgment only), citing Perry at ¶ 18, citing Johnson v. United States, 520 U.S.


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461, 468, 117 S.Ct. 1544 (1997). The “‘limited class of cases’” recognizing

structural error are cases “in which the errors permeate the ‘entire conduct of the

trial from beginning to end,’ so that the trial court cannot ‘“reliably serve its function

as a vehicle for determination of guilt or innocence.”’” Fields at ¶ 27, quoting

Arizona v. Fulminante, 449 U.S. 279, 309-310, 111 S.Ct. 1246 (1991), quoting Rose

v. Clark, 478 U.S. 570, 577-78, 106 S.Ct. 3101 (1986). Those “‘limited number of

cases’” in which structural errors have been recognized include “‘a total deprivation

of the right to counsel; lack of an impartial trial judge; unlawful exclusion of grand

jurors of the defendant’s race; the right to self-representation at trial; the right to a

public trial; erroneous reasonable doubt instruction to the jury.’” Id., quoting

Johnson v. United States, 520 U.S. 461, 468-469, 117 S.Ct. 1544 (1997). To begin

with, we must examine whether the error that Jackson alleges to be structural error

is such error.

       {¶9} The United States Supreme Court recently concluded in McCoy that a

trial “counsel’s admission of a client’s guilt over the client’s express objection is

error structural in kind.” McCoy, 138 S.Ct. at 1511. However, to amount to the

type of structural error found in McCoy, the Court specifically noted that “the

defendant repeatedly and adamantly insisted on maintaining his factual innocence

despite counsel’s preferred course: concession of the defendant’s commission of

criminal acts and pursuit of diminished capacity, mental illness, or lack of


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premeditation defenses.” (Emphasis added.) Id. at 1510. In other words, as Justice

Alito stated in his dissenting opinion, “Where the defendant is advised of the

strategy and says nothing, or is equivocal, the right is deemed to have been waived.”

Id. at 1515 (Alito, J., dissenting), citing Florida v. Nixon, 543 U.S. 175, 192, 125

S.Ct. 551 (2004).

       {¶10} First, we must address whether a trial counsel’s concession of guilt

during sentencing in a non-capital case can amount to structural error. Primarily,

Justice Alito suggested in his dissenting opinion in McCoy that “the right that the

Court has discovered is effectively confined to capital cases.” Id. at 1514 (Alito, J.,

dissenting). See also State v. Brown, 8th Dist. Cuyahoga No. 106667, 2019-Ohio-

313, ¶13 (discussing the narrow application of the Supreme Court’s holding in

McCoy). That is, unlike all other cases, the jury must decide both guilt and

punishment in capital cases. See McCoy at 1514. Turning to the merits of Jackson’s

appeal, this is not a capital case. That alone distinguishes the facts of this case from

those presented in McCoy. Compare United States v. Rosemond, 322 F.Supp.3d

482, 486 (S.D.N.Y.2018) (distinguishing the Supreme Court’s holding in McCoy by

noting that “the government did not seek the death penalty in this case”). We need

not extend the narrow holding of McCoy beyond capital cases in this case. See id.

at 486-487 (noting “Rosemond’s contention that the narrow holding of McCoy

should be extended beyond capital cases and that this question will be resolved in


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Case No. 1-18-20


due course by appellate courts, there is no need to decide it here” and that “[t]his

Court is not prepared to read McCoy so broadly absent definitive guidance from the

higher courts”). But see State v. Sowell, 8th Dist. Cuyahoga No. 102752, 2015-

Ohio-4770, ¶ 9 (suggesting that “[a]s a matter of constitutional law, constitutional

violations occurring during sentencing are not structural errors and thus do not

render a sentence void.”).

       {¶11} Even if a trial counsel’s concession of guilt during sentencing in a non-

capital case could amount to structural error, Jackson’s argument that his trial

counsel’s statements amounted to structural error fails under the facts presented in

this case. Compare Rosemond at 486 (“Even if the Court were to assume that

McCoy is not limited to capital cases, Rosemond’s motion would fail.”). In this

case, Jackson directs us to the following statement of his trial counsel at the

sentencing hearing as violative of his Sixth Amendment right amounting to

structural error:

       I get so disappointed because here when I look at Cory I know
       everybody’s looking at him like “Oh well, he murdered somebody.”
       Well, okay, yeah, he did; but he’s not a life worth throwing out.

(Apr. 11, 2018 Tr. at 7-8). The balance of Jackson’s argument focuses on his trial

counsel’s statements during the sentencing hearing to bolster his argument that his

trial counsel disregarded his desire to maintain his innocence.




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       {¶12} However, Jackson fails to direct us to any evidence in the record of

any definitive statements that Jackson repeatedly and adamantly insisted on

maintaining his factual innocence. Compare People v. Lopez, 31 Cal.App.5th. 55,

242 Cal.Rptr.3d 451, 459 (2019) (“Here, unlike in McCoy, there is no evidence that

appellant raised any objection to his counsel’s decision to concede guilt on the hit

and run charge.”). Instead, Jackson encourages this court to assume from statements

contained in the presentence-investigation report—which he contends reflect that

he denied murdering Gooding—that he repeatedly and adamantly conveyed his

desire to maintain his factual innocence. Nonetheless, after his trial counsel’s

statements during the sentencing hearing, Jackson did not object to any of his trial

counsel’s statements or repeatedly or adamantly protest his innocence in any way.

Rather, Jackson’s statement to the trial court immediately following his trial

counsel’s statements focused on apologizing to the victim’s family and his family,

while appealing to the trial court for leniency. (See id. at 9-10). Further, under the

section titled “Defendant’s Version,” of the presentence-investigation report,

Jackson stated, in part, “I take full responsibility because that lead [sic] to the

shooting which caused the death of [Gooding].” (PSI).

       {¶13} Accordingly, even if a trial counsel’s concession of guilt during

sentencing in a non-capital case could considered structural error, we conclude that

Jackson waived his Sixth Amendment right in this case. See McCoy, 138 S.Ct. at


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1515 (Alito, J., dissenting), citing Nixon, 543 U.S. at 192. For these reasons, we

conclude that Jackson’s sentence is not contrary to law. Thus, Jackson’s assignment

of error is overruled.

       {¶14} 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

PRESTON and WILLAMOWSKI, J.J., concur.

/jlr




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