[Cite as State v. Quigley, 2011-Ohio-5500.]


                Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 96299



                                      STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                       SEAN QUIGLEY
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED


                                   Criminal Appeal from the
                           Cuyahoga County Court of Common Pleas
                         Case Nos. CR-536912, CR-536920, CR-539841,
                                  CR-542618, and CR-542638

        BEFORE: E. Gallagher, J., Kilbane, A.J., and Rocco, J.

        RELEASED AND JOURNALIZED:                      October 27, 2011
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 ATTORNEY FOR APPELLANT

David H. Brown
David H. Brown, LLC
1956 West 25th Street
Suite 302
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: John P. Colan
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113



EILEEN A. GALLAGHER, J.:

      {¶ 1} Sean Quigley appeals his sentence received in the Cuyahoga County

Common Pleas Court.      Quigley argues the trial court erred in imposing a term of

incarceration that was not proportionate to the conduct he committed and that his trial

counsel rendered ineffective assistance in allegedly conceding that Quigley would be

sentenced to prison. Finding no merit to this appeal, we overrule Quigley’s appeal.

      {¶ 2} Cuyahoga County grand juries indicted Quigley in several criminal cases in

2010. As part of a plea agreement with the State, Quigley pleaded guilty to breaking

and entering (CR-536912), attempted theft and theft (CR-536920) and burglary
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(CR-539841).        While awaiting sentencing, Quigley committed additional crimes,

resulting in two additional felony indictments in Cuyahoga County. In those cases,

Quigley ultimately pleaded guilty to an amended charge of burglary and theft

(CR-542618) and carrying a concealed weapon and having weapons under disability

(CR-542638). On December 22, 2010, the trial court sentenced Quigley on all five

cases for a total term of incarceration of ten years.1

          {¶ 3} Quigley appeals from this order of sentencing, raising the two assignments

of error contained in the appendix to this opinion.

          {¶ 4} In his first assignment of error, Quigley argues that his ten year prison

sentence was not commensurate with the crimes he committed. We disagree.

          {¶ 5} 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.

          {¶ 6} 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,

      1
       Quigley was sentenced to one year on case CR-536912, one year on case
CR-536920, two years on case CR-539841, four years on case CR-542618 and two
years on case CR-542638. The trial court ordered Quigley to serve each term
consecutive to one another, for a total prison term of ten years.
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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.

      {¶ 7} In the first step of our analysis, we review whether Quigley’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,

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

R.C.2929.12 intact. Kalish at 13. Therefore, the trial court must still consider those

statutes when imposing a sentence. Id., citing Mathis at 38.

      {¶ 8} 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.”

      {¶ 9} 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.

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

       {¶ 11} In the instant case, Quigley concedes that the sentences for all five of his

cases fall within the statutory range. Further, Quigley does not argue that the court

failed to consider R.C. 2929.11 and R.C. 2929.12, when imposing his sentence; nor does

he argue how his ten-year sentence is disproportionate to the volume of criminal activity

he committed. Instead, Quigley merely cites to this court’s opinion of State v. Geddes,

Cuyahoga App. No. 88186, 2007-Ohio-2626, a case that is factually distinguishable from

the instant matter.    Quigley’s brief fails entirely to demonstrate how his sentence

violated Ohio’s sentencing statutes. Accordingly, we do not find Quigley’s sentence

contrary to law.

       {¶ 12} We next consider whether the trial court abused its discretion. Kalish,

supra at ¶4 and ¶19. 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.

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

unreasonable, arbitrary, or unconscionable. 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
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prison was consistent with the purposes and principles of R.C. 2929.11.

       {¶ 14} Accordingly, we overrule Quigley’s first assignment of error.

       {¶ 15} In his second assignment of error, Quigley argues his trial counsel rendered

ineffective assistance. In particular, Quigley finds fault with his trial counsel’s alleged

concession that Quigley would receive a prison sentence. We find no merit to Quigley’s

argument.

       {¶ 16} 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.

       {¶ 17} 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.

       {¶ 18} Here, Quigley failed to satisfy either prong of the Strickland test as applied
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to guilty pleas. According to Quigley, his trial counsel conceded that he would not

receive community controlled sanctions for his crimes and that he failed entirely to

mitigate the potential sentence. Quigley further alleged that his trial counsel called the

court’s attention to his lengthy prior record and failed in all respects to argue for a lesser

sentence. Lastly, Quigley stated that his trial counsel failed to provide the court with

letters of support written on his behalf.

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

Quigley’s trial counsel was deficient in any way. In fact, Quigley himself relayed to the

court during its multiple Crim.R. 11 plea colloquies, that he was satisfied with his

attorney’s representation. Further, Quigley has failed to establish, through any evidence

in the record, how his allegations outlined above, rise to the level of deficient

performance.

       {¶ 20} Additionally, we note that Quigley 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 multiple count indictments on the five separate

cases facing Quigley as presented, counsel’s negotiations resulted in the issuance of a

nolle prosequi of several charges and the reduction in the severity in two cases. The

record before us does not show a reasonable probability of a different outcome in the

absence of this representation. Accordingly, we overrule Quigley’s second assignment
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of 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

MARY EILEEN KILBANE, A.J., and
KENNETH A. ROCCO, J., CONCUR




                                         Appendix

Assignments of Error:

       “I.   Mr. Quigley’s sentence is manifestly disproportionate making it void as
                                  9

contrary to law.”

“II. Mr. Quigley’s trial attorney provided ineffective assistance by conceding
that Mr. Quigley would be sentenced to prison and then failing to attempt to
mitigate adequately.”
