[Cite as State v. Williams, 2014-Ohio-1618.]


                  Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100042




                                       STATE OF OHIO

                                                           PLAINTIFF-APPELLEE

                                                  vs.

                                     LOUIS WILLIAMS

                                                           DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-12-558420-A

       BEFORE:          Jones, P.J., Rocco, J., and Blackmon, J.

       RELEASED AND JOURNALIZED: April 17, 2014
ATTORNEY FOR APPELLANT

Eric M. Levy
55 Public Square
Suite 1600
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Sherrie S. Royster
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., P.J.:

          {¶1} Defendant-appellant Louis Williams appeals his three-year sentence that was

imposed after he pleaded guilty to one count of felonious assault. We affirm.

                                   I. Procedural History and Facts

          {¶2} In January 2012, Williams and his codefendant Bennie Brent were charged in

connection with the shooting of Demarco Clayton. Counts 1 and 2 charged aggravated

robbery in violation of R.C. 2911.01(A)(1) and 2911.01(A)(3), respectively, and contained

one- and three-year firearm specifications; and Counts 3 and 4 charged felonious assault in

violation of R.C. 2903.11(A)(2) and 2903.11(A)(1), respectively, and contained one- and

three-year firearm specifications.1

          {¶3} In September 2012, Williams pleaded guilty to an amended Count 3, felonious

assault, with the deletion of the firearm specifications.                The remaining counts and

specifications were nolled.        The matter was referred to the probation department so that a

presentence investigation report could be completed.

          {¶4} The sentencing hearing was held in February 2013.                  Defense counsel

informed the court that Williams took responsibility for his actions. Counsel also noted

that the presentence investigation report revealed that Williams had a “minimal” criminal

record consisting of one conviction each for forgery and misdemeanor assault.

          {¶5} Williams’s attorney further informed the court that the facts bore out that




    Count 5, having weapons while under disability, related only to Brent.
1
Williams did not have a gun during the incident and that the codefendant, Brent, was the

“acknowledged shooter.” The court took issue with that assessment, stating “[t]hat’s not

my understanding.”

         {¶6} Defense counsel informed the court of the following in support of his

statement that Williams was not the shooter: (1) the presentence investigation report

indicated that Demarco Clayton, the victim, said that Brent pointed the gun at him and he

heard a shot; (2) there were references in discovery that Brent was the shooter; and (3)

after the shooting Williams called for help for Clayton, as opposed to Brent, who fled the

scene.

         {¶7} In light of the above, defense counsel contended that Williams should not

receive the same sentence as Brent.2 Counsel noted that Williams had already served

almost six months on the case, and requested that he be sentenced to community control

sanctions.

         {¶8} The state did not take a position on the sentence, but the assistant prosecuting

attorney informed the court that in her discussions with Clayton, he told her that he felt

that Williams was the one who had set the robbery up, and also that both Williams and

Brent had guns and he did not know which one shot him.



 A search of the public online common pleas docket shows that Brent’s case was assigned to the same
2


judge as Williams’s case. Brent’s plea and sentencing hearing was the day before Williams’s
sentencing hearing. Brent pleaded guilty to an amended Count 3, felonious assault with a one-year
firearm specification (the three-year specification was deleted) and Count 5, having weapons while
under disability. The defense and the state agreed on a three-year sentence, which consisted of two
years on the felonious assault, consecutive to one year on the firearm specification, concurrent to three
years for having weapons while under disability.
       {¶9} After the above statements were made by the assistant prosecuting attorney,

the court asked the attorneys to approach to “refresh [his] memory.”            The sidebar

discussion was not recorded.

       {¶10} Immediately after the sidebar, the court sentenced Williams to a three-year

prison term. The court informed him of postrelease control. In its sentencing journal

entry, the trial court gave Williams 142 days credit for time served.   The court also stated

that it would consider judicial release after two years because of Williams’s “lack of

violent record and first time imprisonment.”

       {¶11} Williams now raises the following errors for our review:

       [I.] The trial court erred and imposed a sentence clearly and convincingly
       contrary to law when it failed to properly consider and apply the principles
       of sentencing under R.C. 2929.11 and the seriousness and recidivism factors
       under R.C. 2929.12 prior to imposing an excessive sentence upon appellant.

       [II.] Appellant was denied his Sixth Amendment right to counsel due to the
       ineffective assistance of trial counsel in failing to preserve issues resulting
       from a non-recorded sidebar for appeal.

       [III.] Appellant was denied his Sixth Amendment right to counsel due to the
       ineffective assistance of trial counsel in failing to preserve the issue of
       sentencing disproportionality for appeal.
                                  II. Law and Analysis

       {¶12} For his first assigned error, Williams contends that his three-year sentence is

clearly and convincingly contrary to law because the trial court did not properly consider

R.C. 2929.11 and 2929.12.

       {¶13} In reviewing felony sentencing, we follow the standard set forth in R.C.

2953.08(G)(2), which provides in relevant part as follows:

       The court hearing an appeal under division (A), (B), or (C) of this section
      shall review the record, including the findings underlying the sentence or
      modification given by the sentencing court. * * *

      The appellate court’s standard of review is not whether the sentencing court
      abused its discretion. The appellate court may take any action authorized
      by this division if it clearly and convincingly finds either of the following:

      ***

      (b) That the sentence is otherwise contrary to law.

      {¶14} In reviewing whether a felony sentence is clearly and convincingly otherwise

contrary to law, we are constrained by the fact that the sentencing range is determined by

the legislature and any sentence imposed within that range, after the sentencing court has

considered all the sentencing factors, is presumptively valid.   State v. Collier, 8th Dist.

Cuyahoga No. 95572, 2011-Ohio-2791, ¶ 15, citing State v. Foster, 109 Ohio St.3d 1,

2006-Ohio-856, 845 N.E.2d 470.

      {¶15} A sentence, therefore, is not clearly and convincingly contrary to law where

the trial court (1) considers the purposes and principles of sentencing under R.C. 2929.11,

including consistency in sentencing; (2) considers the seriousness and recidivism factors

under R.C. 2929.12; (3) properly applies postrelease control; and (4) sentences a defendant

within the permissible statutory range. State v. A.H., 8th Dist. Cuyahoga No. 98622,

2013-Ohio-2525, ¶ 10, citing State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896

N.E.2d 124.

      {¶16} The trial court did not mention R.C. 2929.11 and 2929.12 on the record at the

sentencing hearing.   But the sentencing journal entry states that “[t]he court considered

all required factors of the law. The court finds that prison is consistent with the purpose
of R.C. 2929.11.” Williams contends that, based on the transcript of the sentencing

hearing, “[i]t does not appear that the trial court gave any weight to the applicable

sentencing factors * * *.”

       {¶17} This court has refused to find that a sentence is contrary to law when the

sentence is in the permissible range and the court’s journal entry states that it “considered

all required factors of the law” and “finds that prison is consistent with the purposes of

R.C. 2929.11.” State v. May, 8th Dist. Cuyahoga No. 99064, 2013-Ohio-2697, ¶ 16,

citing State v. Turney, 8th Dist. Cuyahoga No. 91555, 2009-Ohio-964, ¶ 9; State v. Grant,

8th Dist. Cuyahoga No. 94101, 2010-Ohio-5241, ¶ 22. This is so because R.C. 2929.11

and 2929.12 do not require judicial fact-finding; rather, they direct trial courts to

“consider” the factors.   May at ¶ 15. Further, a court speaks through its journal entries.

Id. at ¶ 16.

       {¶18} Williams cites State v. Brown, 8th Dist. Cuyahoga No. 99024,

2013-Ohio-3134, for the proposition that it is not enough for the court’s sentencing journal

entry to state that the court considered the required factors, but the transcript must also

reflect that the court considered them as well. Brown does not support that proposition.

In Brown, this court found the following:

       The record in the present instance reflects that the trial court did, in fact,
       consider R.C. 2929.11 in sentencing appellant. The trial court’s September
       11, 2012 journal entry clearly indicates that the court considered “all
       required factors of law.” Furthermore, the sentencing transcript reflects
       that the trial court specifically considered the principles and purposes of
       felony sentencing found in R.C. 2929.11. Appellant’s argument that the
       trial court failed to consider R.C. 2929.11 is without merit.

Id. at ¶ 69.
       {¶19} Thus, Brown did not hold that consideration of R.C. 2929.11 must appear in

both the sentencing transcript and the sentencing journal entry. Rather, the fact that it did

in that case merely buttressed this court’s conclusion that the trial court had considered the

factors.

       {¶20} In light of the above, because Williams’s sentence for felonious assault was

within the statutory range, and because the court’s journal entry stated it had considered

the required statutory factors, the sentence was not clearly and convincingly contrary to

law.

       {¶21} Williams also contends within this assignment of error that his sentence was

excessive.    We disagree.

       {¶22} The Eighth Amendment to the United States Constitution states that

“excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted.” Section 9, Article I of the Ohio Constitution sets forth the same

restriction: “Excessive bail shall not be required; nor excessive fines imposed; nor cruel

and unusual punishments inflicted.”        The final clauses prohibit not only barbaric

punishments, but also sentences that are disproportionate to the crime committed. Solem

v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983).

       {¶23} “It is well established that sentences do not violate these constitutional

provisions against cruel and unusual punishment unless the sentences are so grossly

disproportionate to the offenses as to shock the sense of justice in the community.”

(Citations omitted.) State v. Hamann, 90 Ohio App.3d 654, 672, 630 N.E.2d 384 (8th

Dist.1993).
       {¶24} The Ohio Supreme Court has held that, “‘[a]s a general rule, a sentence that

falls within the terms of a valid statute cannot amount to a cruel and unusual

punishment.’”    State v. Hairston, 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d

1073, ¶ 21, quoting McDougle v. Maxwell, 1 Ohio St.2d 68, 69, 203 N.E.2d 334 (1964).

       {¶25} The three-year sentence for felonious assault, a felony of the second degree,

fell within the permissible statutory range. See R.C. 2929.14(A)(2). Further, the record

demonstrates that Clayton, who was shot in the stomach, suffered serious physical harm.

Thus, Williams’s three-year sentence was not excessive.

       {¶26} In light of the above, the first assignment of error is overruled.

       {¶27} Williams contends in his second and third assignments of error, respectively,

that his trial counsel was ineffective for failing to preserve the (1) issue that was the

subject matter of the sidebar conference that occurred immediately prior to the court

sentencing him, and (2) disproportionality of his sentence.

       {¶28} We review alleged instances of ineffective assistance of trial counsel under

the two-prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Pursuant to these cases, in order to

reverse a conviction based on ineffective assistance of counsel, a defendant first “must

show that counsel’s representation fell below an objective standard of reasonableness.”

Strickland at 688.

       {¶29} Second,

       [t]he defendant must show that there is a reasonable probability that, but for
       counsel’s unprofessional errors, the result of the proceeding would have
       been different. A reasonable probability is a probability sufficient to
       undermine confidence in the outcome.

Id. at 694.   Furthermore,

       [b]ecause of the difficulties inherent in making the evaluation, a court must
       indulge a strong presumption that counsel’s conduct falls within the wide
       range of reasonable professional assistance; that is, the defendant must
       overcome the presumption that, under the circumstances, the challenged
       action “might be considered sound trial strategy.”

Id. at 689, quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83

(1955).

       {¶30} In regard to trial counsel’s failure to request that the sidebar conference be

recorded, we follow the Second Appellate District’s approach in State v. Brewer, 2d Dist.

Greene No. 87-CA-67, 1988 Ohio App. LEXIS 3492 (Aug. 26, 1988):

       Notwithstanding the several years that Crim.R. 22 has been on the books,
       sidebar conferences continue in large part to be unrecorded in criminal cases
       unless a request for recording is made by the court or by counsel for one or
       both parties. Brewer was represented by experienced counsel and we can
       infer from the lack of a request for recording that, in his estimation,
       recording of the sidebar conference for appellate purposes was unnecessary.

Id. at *53-*54.

       {¶31} Williams was also represented by an experienced criminal defense attorney

who advocated for the imposition of community control sanctions, rather than prison.

The unrecorded sidebar was had when the court stated that it needed to “refresh its

memory” about whether Williams had a gun during the incident.           According to the

“offense summary” contained in the presentence investigation report, Clayton, the victim,

was “adamant that [Williams] had set him up.”        The summary further indicated that
Clayton said that Williams and another male came up to the passenger side of his car and

both pointed guns at him. Moreover, the report stated that Clayton “later identified

[Williams and Brent] as the two males that had pointed guns at him, attempted to rob him

and subsequently shot him. [Clayton] could not say for certain who actually shot him.”

       {¶32} Given the above, we find that any error in not recording the sidebar

conference was harmless.

       {¶33} In light of the above, the second assignment of error is overruled.

       {¶34} We further find Williams’s contention that his trial counsel was ineffective

for not preserving disproportionality of his sentence for review is without merit. Williams

contends that his trial counsel should have advocated that he receive a lesser sentence than

Brent, who was also sentenced to three years. His counsel did.

       {¶35} As previously mentioned, Brent was sentenced one day prior to Williams’s

sentencing, by the same judge who sentenced Williams.          At Williams’s hearing, his

attorney argued as follows to the court:

       [Williams’s] role was not the same as his co-defendant. And, likewise, Mr.
       Williams cooperated with the authorities immediately. * * * there wouldn’t
       be a case against the co-defendant but for the fact that [Williams] made the
       phone calls to the authorities when Demarco Clayton was shot.

       I think that shows that he did not have a reckless indifference to human life
       at all. That shows the contrary to that. That shows that he’s a person of
       redeeming value. He cares what happens to people. The co-defendant left
       and didn’t care less whether or not Demarco Clayton died or not, and I think
       that sets him apart.

       * * * I don’t think that Mr. Williams should be given that same sentence. I
       think that he should, based on his totality of the circumstances, be given a
       community control sanction * * *.
       {¶36} Thus, counsel did argue that any sentence three years or greater would be

disproportionate to that of Williams’s codefendant and, therefore, was not ineffective.

Moreover, for the reasons already discussed, the sentence was not disproportionate.

There was a dispute as to who the shooter actually was, and the trial court opted to assign

equal responsibility to both defendants.

       {¶37} In light of the above, the third assignment of error is overruled.

       {¶38} Judgment affirmed.

       It is ordered that appellee recover from 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.

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

Rules of Appellate Procedure.




LARRY A. JONES, SR., PRESIDING JUDGE

KENNETH A. ROCCO, J., and
PATRICIA ANN BLACKMON, J., CONCUR
