[Cite as State v. Gill, 2011-Ohio-5174.]


         Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA


                            JOURNAL ENTRY AND OPINION
                                    No. 96150



                                     STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                           PHILLIP GILL
                                                      DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                                   Case No. CR-531420

        BEFORE:             E. Gallagher, J., Blackmon, P.J., and Sweeney, J.

        RELEASED AND JOURNALIZED:                          October 6, 2011
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ATTORNEY FOR APPELLANT

Michael H. Murphy
20325 Center Ridge Road
Suite 512
Rocky River, Ohio 44116


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Maxwell M. Martin
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




EILEEN A. GALLAGHER, J.:

      {¶ 1} Phillip Gill appeals from his sentence rendered in the Cuyahoga

County Court of Common Pleas. Gill argues that his trial counsel rendered

ineffective assistance and that his sentence of six years was not

commensurate with the crime committed.          For the following reasons, we

affirm the decision of the trial court.

      {¶ 2} On December 3, 2009, a Cuyahoga County Grand Jury charged

Gill with a multi-count indictment alleging that he broke into Rhonda

Leftridge’s residence and punched her twice, breaking her jaw. At the time

of the assault, Leftridge had a temporary protection order in place,
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forbidding Gill from coming within 1,500 feet of her. As a result of Gill’s

actions, Leftridge had her jaw wired shut for approximately three months.

Additionally, while Leftridge received treatment in the hospital, Gill made

threatening phone calls to her and her mother.

      {¶ 3} The grand jury indicted Gill with one count of felonious assault,

one count of domestic violence, one count of kidnapping, one count of

burglary, two counts of theft, one count of having a weapon while under

disability, two counts of intimidation of a crime victim or witness, and seven

counts of violating a protection order. On April 19, 2010, Gill pleaded guilty

to felonious assault, domestic violence, burglary, intimidation of a crime

victim or witness, and violating a protection order as charged in counts one,

two, four, eight, and ten of the indictment, respectively.    The remaining

counts were nolled.   On April 20, 2010, Gill was sentenced to six years

imprisonment: six years on counts one and four; five years on counts eight

and ten, and six months on count two, all to run concurrently to one another.

      {¶ 4} In his first assigned error, Gill argues that his trial counsel

rendered ineffective assistance.     Specifically, Gill claims his counsel

maintained a disinterested attitude, only met with him three times during

the pendency of his case and never investigated the case as he requested.

Gill further claims that counsel’s actions resulted in his guilty plea. We
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disagree.

      {¶ 5} To prevail on a claim of ineffective assistance of counsel upon

entry of a guilty plea, a defendant must meet the test set forth in Strickland

v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. See

State v. Xie (1992), 62 Ohio St.3d 521, 524, 584 N.E.2d 715; State v. Cobb,

Cuyahoga App. No. 76950, 2001-Ohio-4132. The defendant must first show

that counsel’s performance was deficient. Strickland. The defendant must

also show that there is a reasonable probability that, “* * * but for counsel’s

errors, he would not have pleaded guilty * * *.” Strickland, quoting Hill v.

Lockhart (1985), 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203.

      {¶ 6} The defendant bears the burden of proving ineffectiveness of

counsel. State v. McNeill (1998), 83 Ohio St.3d 438, 451, 700 N.E.2d 596;

Cobb. The defendant cannot meet his burden by making bare allegations

that find no support in the record. State v. Leek (July 29, 1999), Cuyahoga

App. No. 74338, citing State v. Stewart (Nov. 19, 1998), Cuyahoga App. No.

73255; Cobb.

      {¶ 7} Here, Gill failed to satisfy either prong of the Strickland test as

applied to guilty pleas. According to Gill, his trial counsel maintained a

disinterested attitude and only met with him three times during his case.

Gill further alleges that his trial counsel failed to investigate his case,
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although Gill fails to allege, with any specificity, the type of investigation he

sought.

      {¶ 8} The record before this Court is utterly devoid of any indication

that Gill’s trial counsel was deficient in any way.       In fact, Gill himself

relayed to the court during its Crim.R. 11 plea colloquy, that he was satisfied

with his attorney’s representation.      Tr. 11.   Further, Gill has failed to

establish, through any evidence in the record, how his allegations outlined

above, rise to the level of deficient performance. Lastly, As to Gill’s general

claim that his attorney failed to investigate his defense, the record proves

otherwise.   The transcript reveals that trial counsel put forth efforts to

investigate Gill’s possible defense to the charges. Tr. 7.

      {¶ 9} We note that Gill also failed to satisfy the second prong of the

Strickland test. The record here does not establish a reasonable probability

that, but for the action or inaction of trial counsel, the outcome of the plea

proceeding would have been different.          Considering the sixteen-count

indictment as presented, counsel’s negotiations resulted in the issuance of a

nolle prosequi of eleven charges.     The record before us does not show a

reasonable probability of a different outcome in the absence of this

representation. Accordingly, we overrule Gill’s first assignment of error.

      {¶ 10} In his second assignment of error, Gill argues that his six year
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prison sentence was not commensurate with the crime he committed. We

disagree.

      {¶ 11} We review felony sentences using the framework announced in

State v. Kalish, 120 Ohio St.2d 23, 2008-Ohio-4912, 896 N.E.2d 124. In its

plurality opinion, the Kalish court declared that in applying State v. Foster,

109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, to the existing statutes,

appellate courts “must apply a two-step approach.” Kalish at ¶4.

      {¶ 12} Appellate courts must first “examine the sentencing court’s

compliance with all applicable rules and statutes in imposing the sentence to

determine whether the sentence is clearly and convincingly contrary to law.”

 Id. at 26, 896 N.E.2d 124. See, also, R.C. 2953.08(G). If this first prong is

satisfied, then we review the trial court’s decision under an abuse of

discretion standard. Id. at ¶4 and ¶19, 896 N.E.2d 124.

      {¶ 13} In the first step of our analysis, we review whether Gill’s

sentence is contrary to law as required by R.C. 2953.08(G). As the Kalish

court noted, post-Foster “trial courts have full discretion to impose a prison

sentence within the statutory range and are no longer required to make

findings and give reasons for imposing maximum, consecutive, or more than

the minimum sentence.”      Id. at 11, 845 N.E.2d 470, quoting Foster at

paragraph seven of the syllabus; State v. Mathis, 109 Ohio St.3d 54,
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2006-Ohio-855, 846 N.E.2d 1, paragraph three of the syllabus. The Kalish

court held that although Foster eliminated mandatory judicial fact-finding, it

left R.C. 2929.11 and 2929.12 intact.       Kalish at 13.   Therefore, the trial

court must still consider those statutes when imposing a sentence.          Id.,

citing Mathis at 38.

      {¶ 14} R.C. 2929.11(A) provides that:

      “[A] court that sentences an offender for a felony shall be guided by the
      overriding purposes of felony sentencing [:] * * * to protect the public
      from future crime by the offender and others and to punish the
      offender. To achieve those purposes, the sentencing court shall
      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.”

      {¶ 15} R.C. 2929.12 provides a nonexhaustive list of factors a trial court

must consider when determining the seriousness of the offense and the

likelihood that the offender will commit future offenses.

      {¶ 16} R.C. 2929.11 and 2929.12 are not fact-finding statutes.   Instead,

they “serve as an overarching guide for trial judges to consider in fashioning

an appropriate sentence.”     Kalish at 17.      Thus, “[i]n considering these

statutes in light of Foster, the trial court has full discretion to determine

whether the sentence satisfies the overriding purposes of Ohio’s sentencing

structure.” Id.

      {¶ 17} In the instant case, Gill does not argue that the court failed to
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consider R.C. 2929.11 and 2929.12, when imposing his sentence, instead, he

finds fault with the trial court’s alleged failure to consider his prior criminal

history.   Additionally, while making this argument, Gill has failed to

establish that a trial court is required to consider a criminal defendant’s

prior criminal history, on the record, before imposing sentence. The trial

court’s journal entry reflects that it considered all factors as required by law

and found that prison was consistent with R.C. 2929.11.            Further, the

imposed prison terms on the four felonies to which Gill pleaded guilty were

within the statutory range. Since Gill was sentenced within the statutory

range and has failed to demonstrate how his sentence violated Ohio’s

sentencing statutes, we do not find that it was contrary to law.

      {¶ 18} We next consider whether the trial court abused its discretion.

Kalish at ¶4 and ¶19, 896 N.E.2d 124. An “abuse of discretion” is more than

an error of law or judgment; it implies that the court’s attitude is

unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983),

5 Ohio St.3d 217, 219, 450 N.E.2d 1140.

      {¶ 19} We find nothing in the record to suggest that the trial court’s

decision was unreasonable, arbitrary, or unconscionable. As outlined above,

a review of the record indicates that the trial court also expressly stated that

it had considered all factors of the law and found that prison was consistent
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with the purposes and principles of R.C. 2929.11.

       {¶ 20} Accordingly, we overrule Gill’s second assigned error.

       {¶ 21} The judgment of the trial court is affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common pleas

court to carry this judgment into execution.        The defendant’s conviction having been

affirmed, any bail pending appeal is terminated.        Case remanded to the trial court for

execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




       EILEEN A. GALLAGHER, JUDGE

       PATRICIA A. BLACKMON, P.J., and
       JAMES J. SWEENEY, J., CONCUR




                                             Appendix

       Assignments of Error:

       {¶ 22} “I.    Appellant was not afforded effective assistance of
counsel.”
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    {¶ 23} “II.
             The sentence handed down from the trial court was
not commensurate with the crime committed.”
