[Cite as State v. Rivers, 2019-Ohio-2375.]




             IN THE COURT OF APPEALS OF OHIO
                              SEVENTH APPELLATE DISTRICT
                                  MAHONING COUNTY

                                             STATE OF OHIO,

                                             Plaintiff-Appellee,

                                                     v.

                                             JOHNNY RIVERS,

                                        Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                             Case No. 17 MA 0078


                                 Criminal Appeal from the
                     Youngstown Municipal Court of Mahoning County, Ohio
                                  Case No. 17 CRB 192Y

                                          BEFORE:
                 David A. D’Apolito, Cheryl L. Waite, Carol Ann Robb, Judges.


                                                JUDGMENT:
                                                  Affirmed


 Atty. Jeffrey Moliterno, Assist. Prosecutor, 9 West Front Street, Third Floor,
 Youngstown, Ohio 44503, for Plaintiff-Appellee and

 Atty. Jan Mostov, 1108 Ravine Drive, Youngstown, Ohio 44505, for Defendant-
 Appellant.
                                                                                         –2–


                                    Dated: June 10, 2019


 D’Apolito, J.

       {¶1}     Appellant Johnny Rivers appeals the imposition of a thirty-day jail sentence,
a $100.00 probation fee, and one year of intensive probation by the Youngstown
Municipal Court after he entered guilty pleas and was convicted of four violations of
Youngstown General Property Maintenance Ordinance 546.04, misdemeanors of the
third degree.
       {¶2}     Appellant’s sole assignment of error, filed pursuant to this Court’s directive
in State v. Cruz-Ramos, 7th Dist. No. Mahoning 17 MA 0077, 2018-Ohio-1583, is
ineffective assistance of counsel.      Appellant contends that the trial court may have
imposed a lesser sentence, but for his trial counsel’s failure to request that the sentencing
hearing be continued for more than thirty days in order to provide additional time to
Appellant to remediate the offending property.            Because Appellant relies upon
suppositions rather than facts to support his claim, his sole assignment of error is
overruled and the judgment entry of the trial court is affirmed.

                                    ORDINANCE 546.04

       {¶3}     The relevant portions of Ordinance 546.04 read, in their entirety:

       (1) SANITATION. All exterior property and premises shall be maintained
       free from an unreasonable accumulation of waste, trash, garbage and
       rubbish. In determining whether such accumulation is unreasonable, the
       Code Official or his or her designee shall consider whether it is unsightly,
       has an unpleasant odor, or is otherwise detrimental to the health, safety and
       welfare of the area in which it is found. Where an accumulation is
       specifically allowed under another provision of this Code, on a temporary
       basis, it shall not be considered unreasonable.
       ***




Case No. 17 MA 0078
                                                                                      –3–


       (7) ACCESSORY STRUCTURES. All accessory structures, including
       detached     garages, fences and walls, shall be maintained structurally
       sound and in good repair.
       ***
       (10) SWIMMING POOLS. Swimming pools shall be maintained in a clean
       and sanitary condition, and in good repair.
       ***
       (20) ROOFS AND DRAINAGE. All roofs shall be maintained weather tight
       and shall be equipped with gutters and downspouts connected to a public
       storm sewer. The roof and flashing shall be sound, tight and not have
       defects that admit rain. Roof drainage shall be adequate to prevent
       dampness or deterioration in the walls or interior portion of the structure.
       Roof drains, gutters and downspouts shall be maintained in good repair and
       free from obstructions. Roof water shall not be discharged in a manner that
       creates a public nuisance.

                               PROCEDURAL HISTORY

       {¶4}   On February 1, 2017, a summons and four complaints were issued by the
trial court, charging Appellant with violations of the City’s general property maintenance
ordinance. Supporting documentation, which was prepared by City Code Official Abigail
Beniston and attached to the complaints, reads, in its entirety:

       On Wednesday, January 25, 2017, I went out to the property located at 104
       Jacobs Road to perform an inspection. Upon arriving I saw a fence with
       missing and broken sections that did not match in color. Weeds throughout
       the property in excess of eight inches. Dilapidated swimming pool in
       complete disrepair. The roof on the front portion of the structure is in
       disrepair with missing shingles. There is rubbish collected throughout the
       front yard and driveway.

(1/27/17 Memorandum, p. 1).




Case No. 17 MA 0078
                                                                                        –4–


        {¶5}   Appellant was unrepresented at his arraignment on March 10, 2017, and
did not waive his right to a speedy trial. As a consequence, his trial was scheduled for
March 20, 2017.
        {¶6}   Rather than proceeding to trial on March 20, 2017, Appellant, now
represented by counsel, entered guilty pleas to all four of the violations. During the plea
colloquy, the trial court informed Appellant that each of the violations was a third-degree
misdemeanor punishable by up to sixty days in jail and a fine of $500.00. (Id. at 3).
        {¶7}   Midway through the colloquy, Appellant informed the trial court that “there
[was] a lot [he] didn’t understand,” so a brief recess was taken to permit Appellant to
consult with counsel.
        {¶8}   When the hearing resumed, Appellant informed the trial court that his
questions had been answered to his satisfaction, but for one. He inquired:

        Well, the only thing I’m confused about, your Honor, no one ever told me
        about waiving my rights to a speedy trial. I need – see, they just started my
        [Veteran’s Administration (“VA”)] benefits back. All I needed was 30 days
        to get everything together, you know. I was going to order a dumpster from
        Happy Dumpster. That’s $240.

(Id. at 6).

        {¶9}   The trial court responded, “And hopefully you’ll do that by the time you come
back for sentencing.” (Id.) After Appellant entered his plea, the trial court stated, “Let’s
set this for sentencing and hopefully you will have everything cleared up by the time you
come back and it will be – it will be okay for you.” (Id. at 7).
        {¶10} In Ohio, a trial court may proceed directly to sentencing after a plea is
entered. However, defense counsel requested that the sentencing hearing be continued
for one month, because Appellant and his counsel “believe[d] [they had] a plan in place
to mitigate the severity of some of the[ ] issues.” (2/20/17 Plea Hrg. 2-3). The sentencing
hearing was scheduled for April 21, 2017.
        {¶11} At the sentencing hearing on April 21, 2017, the trial court recognized that
“we set it for sentencing so the property can be cleaned up, I’m assuming.” (4/21/17 Sent.



Case No. 17 MA 0078
                                                                                       –5–


Hrg. 2). Defense counsel acknowledged that the thirty-day continuance “gave [his] client
the opportunity to mitigate some of the circumstances surrounding his guilty plea.” (Id.)
       {¶12} However, the City offered photographs of the property that, according to an
unidentified speaker at the hearing, were taken that morning. The photographs are not
in the record. After viewing the photographs, the trial court said to Appellant, “[w]ell, if
this is how you want to keep your property, sir, shame on you.” (Id. at 3).
       {¶13} Defense counsel explained that Appellant had expended approximately
$4,000.00 for fence posts and roofing materials, and roughly $2,000.00 for roof repair,
which was in the process of being completed. He further explained that Appellant had
spent over $600.00 for two dumpsters, one dedicated exclusively to old roofing materials,
and the other to be filled with trash and debris when it was delivered.
       {¶14} At the time of sentencing, the pool had been dismantled but the slide
remained, the offending fence posts had been removed, and new fence posts were
purchased but not installed. Remediation had been delayed by Time Warner, which was
scheduled to send a technician to Appellant’s property on the following Tuesday. Defense
counsel explained, “So it’s not that he isn’t working. He is working.* * * Unfortunately, we
had this court date coming up. He has tried.” (Id. at 3-5).
       {¶15} Defense counsel further explained that Appellant’s VA benefits had been
erroneously reduced by half roughly two years prior to the sentencing hearing. In March
of 2017, roughly one month after the summons and complaint were filed in this case, the
VA rectified the problem and issued a lump-sum payment, as well as restored Appellant’s
original monthly benefit amount. The lump-sum payment was the source of funding for
the remediation efforts at the property. (Id. at 6).
       {¶16} Defense counsel offered receipts documenting Appellant’s expenditure of
funds over the previous month, but the trial court responded, “I don’t care about receipts.
Cleanliness, or lack thereof, doesn’t necessarily take thousands of dollars. It just takes
commitment.” (Id. at 8).
       {¶17} Beniston, who attended the sentencing hearing on behalf of the City
provided the following information in response to an inquiry from the trial court regarding
the current state of the property:




Case No. 17 MA 0078
                                                                                        –6–


        Well, your Honor, I will tell you that there has been work on the property.
        But I would agree with the previous statement that a lot of these are self-
        help issues. We have unlimited garbage service in [the City].
        ***
        This could have been taken to the curb and cleared up over time. We
        reached out on several occasions. [Appellant], he came in and met with
        Attorney (inaudible) and myself, involved in a last-ditch effort to please
        respond to us. Unfortunately, that didn’t happen and we weren’t taken
        seriously.
        Like I said, some progress has been made. But the neighbors in this area,
        the counsel person and the residents that come to every city council
        meeting are saying, please, we just want it cleaned up. We just want it to
        look better. We take care of our neighborhood. We would just like to see
        the property in compliance.

(Id. at 8-9).

        {¶18} The trial court addressed Appellant:

        When you’ve let your property become deplorable over a period of years,
        two weeks is not enough time to clean it up. Your neighbors have lived with
        it for years. They’re sick of it. So while I appreciate that you’re trying to
        clean it up now, you’re not Superman and you’re not gonna get it that way.
        So you leave me no choice but to incarcerate you. Because if you think a
        little bit of effort here solves the problem, it doesn’t.

(Id. at 9).

        {¶19} Appellant responded that he gave the majority of his VA benefits over the
course of the previous two years to his ex-wife to maintain a home for her and his children.
He further stated that his ex-wife abandoned the home without his knowledge and
absconded with his money. Unmoved, the trial court replied, “Here we go again with the
money.* * * What’s wrong with good old elbow grease.” (Id. at 10). The trial court imposed



Case No. 17 MA 0078
                                                                                          –7–


a thirty-day jail sentence. At the conclusion of the hearing, the trial court notified Appellant
that no financial sanction was imposed but that court costs were being assessed because
they could not be waived. (Id. at 13).

                       INEFFECTIVE ASSISTANCE OF COUNSEL

       {¶20} In order to demonstrate ineffective assistance of counsel, Appellant must
show that trial counsel’s performance fell below an objective standard of reasonable
representation, and prejudice arose from the deficient performance. State v. Bradley, 42
Ohio St.3d 136, 141-143, 538 N.E.2d 373 (1989), citing Strickland v. Washington, 466
U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Both prongs must be established: If
counsel’s performance was not deficient, then there is no need to review for prejudice.
Likewise, without prejudice, counsel’s performance need not be considered. State v.
Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000).
       {¶21} In Ohio, a licensed attorney is presumed to be competent. State v. Calhoun,
86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). In evaluating trial counsel’s performance,
appellate review is highly deferential as there is a strong presumption that counsel’s
conduct fell within the wide range of reasonable professional assistance. Bradley at 142-
143, citing Strickland at 689. Appellate courts are not permitted to second-guess the
strategic decisions of trial counsel. State v. Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d
965 (1995).
       {¶22} Even instances of debatable strategy very rarely constitute ineffective
assistance of counsel. See State v. Thompson, 33 Ohio St.3d 1, 10, 514 N.E.2d 407
(1987). The United States Supreme Court has recognized that there are “countless ways
to provide effective assistance in any given case.” Bradley at 142, citing Strickland at
689.
       {¶23} To show prejudice, a defendant must prove his lawyer’s deficient
performance was so serious that there is a reasonable probability the result of the
proceeding would have been different. Carter at 558. “It is not enough for the defendant
to show that the errors had some conceivable effect on the outcome of the proceeding.”
Bradley, 42 Ohio St.3d 136 at fn. 1, 538 N.E.2d 373, quoting Strickland at 693. Prejudice
from defective representation justifies reversal only where the results were unreliable or


Case No. 17 MA 0078
                                                                                        –8–


the proceeding was fundamentally unfair as a result of the performance of trial counsel.
Carter, 72 Ohio St.3d at 558, 651 N.E.2d 965, citing Lockhart v. Fretwell, 506 U.S. 364,
369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).
       {¶24} “A claim of ineffective assistance of counsel in a direct appeal must be
established by the evidence in the record.” State v. Carter, 2017-Ohio-7501, 96 N.E.3d
1046, ¶ 78, citing, e.g., State v. Hartman, 93 Ohio St.3d 274, 299, 754 N.E.2d 1150 (2001)
(if establishing ineffective assistance of counsel requires proof outside the record, then
the claim is not properly considered on direct appeal); see also State v. Ishmail, 54 Ohio
St.2d 402, 406, 377 N.E.2d 500 (1978) (review is limited to what transpired below as
reflected by the record on direct appeal). Appellant bears the burden of proof on the issue
of counsel’s ineffectiveness. Calhoun, supra, at 289.

                               ASSIGNMENT OF ERROR

       MR.    RIVERS     WAS     DENIED      HIS    RIGHT     TO    COUNSEL       AS
       GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO
       THE U.S. CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO
       CONSTITUTION, AND WAS PREJUDICED AS A RESULT.

       {¶25} In order to demonstrate ineffective assistance of counsel, Appellant must
show both that trial counsel’s inaction constituted deficient performance and that the
resulting sentence was fundamentally unfair because of trial counsel’s inaction. In his
brief, Appellant writes that, but for trial counsel’s failure to request a longer continuance
of the sentencing hearing, the trial court “may not have imposed all or part of the thirty
(30) day jail sentence or the $100.00 probation fee he received, along with the imposition
of one year of Intensive Probation.” (Appellant’s Brf. 5)(emphasis added).
       {¶26} Appellant’s deficient performance and prejudice arguments rest on three
suppositions unsupported by the record: First, the trial court was inclined to extend the
sentencing hearing beyond the thirty days actually requested by Appellant at the hearing.
Second, Appellant would have remediated the property to the trial court’s satisfaction
within the unspecified allotted time. Third, the trial court would have imposed a lesser
sentence if the property had been acceptably remediated at the time of sentencing.



Case No. 17 MA 0078
                                                                                      –9–


       {¶27} However, an ineffective assistance of counsel claim cannot be predicated
upon supposition. State v. Watkins, 7th Dist. Jefferson No. 07 JE 54, 2008-Ohio-6634, ¶
15.   Likewise, proof of ineffective assistance of counsel requires more than vague
speculations of prejudice. Id. ¶ 55, citing State v. Otte, 74 Ohio St.3d 555, 565, 1996-
Ohio-108, 660 N.E.2d 711.
       {¶28} Further, a review of the sentencing hearing reveals that the trial court did
not impose the thirty-day sentence based on the lack of progress on the structural repairs,
but, instead, because Appellant had failed to remove trash and debris from his property.
The trial court specifically recognized that it did not expect Appellant to completely
remediate the property in the limited time between the plea hearing and the sentencing
hearing.
       {¶29} The trial court’s sentence was predicated upon Beniston’s testimony that
Appellant had been contacted on more than one occasion but refused to cooperate with
the City in its effort to haul away his trash.       Because the sentence was based on
Appellant’s lack of “elbow grease,” rather than the failure to complete structural repairs
beyond his temporal limits, we find that Appellant has failed to demonstrate the nexus
between trial counsel’s alleged inaction and the sentence imposed by the trial court.
       {¶30} Finally, Appellant essentially concedes his ineffective assistance claim by
arguing that the trial court may have imposed a lesser sentence.           The ineffective
assistance of counsel standard requires a different probable outcome, rather than a
different possible outcome. See Carter, 72 Ohio St.3d at 558.

                                       CONCLUSION

       {¶31} Because Appellant’s argument is based on supposition built upon
supposition, and the record reveals that the sentence was predicated upon Appellant’s
failure to haul away trash, rather than the limited progress of the structural repairs,
Appellant has failed to demonstrate both deficient performance by his trial counsel and
resulting prejudice. Accordingly, Appellant’s sole assignment of error is overruled and
the judgment entry of the trial court is affirmed.




Case No. 17 MA 0078
                      – 10 –




Waite, J., concurs.

Robb, J., concurs.




Case No. 17 MA 0078
[Cite as State v. Rivers, 2019-Ohio-2375.]




          For the reasons stated in the Opinion rendered herein, the assignment of error

 is overruled and it is the final judgment and order of this Court that the judgment of the

 Youngstown Municipal Court of Mahoning County, Ohio, is affirmed. Costs to be

 waived.

          A certified copy of this opinion and judgment entry shall constitute the mandate

 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that

 a certified copy be sent by the clerk to the trial court to carry this judgment into

 execution.




                                         NOTICE TO COUNSEL

          This document constitutes a final judgment entry.
