[Cite as State v. Stan, 2017-Ohio-7756.]



                             STATE OF OHIO, BELMONT COUNTY
                                   IN THE COURT OF APPEALS
                                           SEVENTH DISTRICT

STATE OF OHIO                                       )
                                                    )
        PLAINTIFF-APPELLEE                          )
                                                    )            CASE NO. 16 BE 0029
VS.                                                 )
                                                    )                   OPINION
JUSTIN S. STAN                                      )
                                                    )
        DEFENDANT-APPELLANT                         )

CHARACTER OF PROCEEDINGS:                           Criminal Appeal from the Court of
                                                    Common Pleas of Belmont County, Ohio
                                                    Case No. 15 CR 264

JUDGMENT:                                           Affirmed.

APPEARANCES:
For Plaintiff-Appellee                              Attorney Daniel Fry
                                                    Belmont County Prosecutor
                                                    Attorney Helen Yonak
                                                    Assistant Prosecutor
                                                    147 West Main Street
                                                    St. Clairsville, Ohio 43950

For Defendant-Appellant                             Attorney Cynthia Henry
                                                    P.O. Box 4332
                                                    Youngstown, Ohio 44515


JUDGES:

Hon. Mary DeGenaro
Hon. Gene Donofrio
Hon. Cheryl L. Waite


                                                    Dated: September 21, 2017
[Cite as State v. Stan, 2017-Ohio-7756.]
DeGENARO, J.

        {¶1}     Defendant-Appellant Justin Stan appeals the trial court's judgment
convicting him of one count of burglary and two counts of theft and sentencing him
accordingly. Stan argues that trial counsel was ineffective during plea and sentencing
proceedings and that his sentence was erroneous. As Stan's assignments of error
are meritless, the judgment of the trial court is affirmed.
        {¶2}     Stan was charged by Bill of Information with one count of burglary, R.C.
2911.12(A)(3),        a    third-degree    felony;   and   two   counts   of   theft,   R.C.
2913.02(A)(1)(B)(3), one as a fourth-degree felony and the other as a fifth-degree
felony. Along with his brother, who was separately charged and convicted, Stan was
accused of breaking into the home of his 88 year old uncle, restraining him, and
robbing him of his cash, wallet, credit cards and household goods, while his brother
held him at gunpoint.
        {¶3}     Stan appeared in court and was arraigned; counsel was appointed.
Stan waived indictment and indicated his willingness to plead guilty to the charges in
the Bill of Information.
        {¶4}     Stan then executed a Crim.R. 11 plea agreement, which had been
prepared in advance of the hearing. It can be gleaned from the record that Stan had
assistance from prior counsel in the preparation and/or negotiation of this plea.
Ultimately the plea agreement was signed by Stan, current counsel, the prosecutor
and the trial court. In exchange for Stan's guilty plea to the Bill of Information, the
State did not make a specific sentencing recommendation other than to state that it
would not oppose judicial release to the East Ohio Correctional Center, a community-
based corrections facility, after four years of incarceration.
        {¶5}     During the plea hearing, the trial court engaged in a colloquy with Stan
concerning the rights he would give up by pleading guilty, and ultimately accepted
Stan's plea as knowingly, voluntarily and intelligently made and sentencing was
continued so a pre-sentence investigation and EOCC evaluation could be prepared.
        {¶6}     During sentencing, the prosecutor noted that by pleading to the Bill of
Information Stan potentially avoided much more serious charges. Stan's co-
                                                                                 -2-


defendant had been indicted on first-degree felonies. Defense counsel requested that
the court follow the State's recommendation which was to consider judicial release
after four years in prison. The trial court asked Stan if he had anything to say
regarding sentencing and he apologized for his conduct. The record also contains an
apology letter sent to the trial court by Stan, which the trial court considered, stating
at sentencing: "I do appreciate the comments in your letter."
       {¶7}   After considering, among other things, the record, statements made at
sentencing, the information in the PSI, the purposes and principles of sentencing
under R.C. 2929.11 and the seriousness and recidivism factors under R.C. 2929.12,
and after making consecutive sentence findings pursuant to R.C. 2929.14(C)(4), the
trial court proceeded to sentence Stan to 36 months on the burglary charge, 18
months on the felony-four theft charge, and 12 months on the felony-five theft
charge, to be served consecutively for an aggregate sentence of 66 months. The trial
court imposed a three-year discretionary period of post-release control; and ordered
Stan to pay restitution to the victim.
       {¶8}   The trial court stated that it "would consider a request for judicial
release, as agreed by counsel in the plea agreement petition, and that is after you
have served four years in the penitentiary; you will be able to file that." Finally, the
trial court granted Stan jail-time credit of 58 days.
       {¶9}   Stan filed a pro-se motion for leave to file a delayed appeal which was
granted. The State failed to file an appellee brief.
                          Ineffective Assistance of Counsel
       {¶10} Stan's first and second assignments of error will be discussed together
for clarity of analysis. They assert, respectively:

       Appellant received ineffective assistance of counsel at the plea hearing
       where counsel was appointed during the course of the hearing and
       made     misleading    representations     to    the   Appellant   regarding
       sentencing.
                                                                             -3-


       Appellant received ineffective assistance of counsel at the sentencing
       proceedings where counsel failed to present and [sic] mitigating
       witnesses or to address the court on his client's behalf.

       {¶11} To prove ineffective assistance of counsel, the defendant must satisfy a
two-prong test; that counsel's performance has fallen below an objective standard of
reasonable representation, and that he was prejudiced by counsel's performance.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);
State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), at paragraph two of the
syllabus. To demonstrate prejudice, the defendant must prove that, but for counsel's
errors, the result of the trial would have been different. Id., paragraph three of the
syllabus. In Ohio, a properly licensed attorney is presumed to be competent and the
burden is on the defendant to prove otherwise. State v. Hamblin, 37 Ohio St.3d 153,
155, 524 N.E.2d 476 (1988).
       {¶12} With regard to the plea proceedings, "A guilty plea waives the right to
allege ineffective assistance of counsel, except to the extent the errors caused the
plea to be less than knowing and voluntary." State v. Stephen, 7th Dist. No. 14 BE
0037, 2016-Ohio-4803, 2016 WL 3573240, ¶ 14, quoting State v. Huddleson, 2d Dist.
No. 20653, 2005-Ohio-4029, 2005 WL 1846531, ¶ 9, citing State v. Spates, 64 Ohio
St.3d 269, 595 N.E.2d 351 (1992).
       {¶13} Stan first argues that trial counsel was ineffective at the plea hearing
because counsel had little or no time to review the file and advise Stan as to the
strength of the State's case against him and what evidence could or could not be
used against him in trial.
       {¶14} However, the trial court specifically asked Stan:

              TRIAL COURT: Has Mr. Pierce reviewed everything with you,
       gone over all the evidence with you and answered all of your
       questions?
                                                                                 -4-


              THE DEFENDANT: Yes, he has.

              THE COURT: Are you satisfied with his advice and competence?

              THE DEFENDANT: Yes.

       {¶15} Thus, counsel's performance in this regard did not cause the plea to be
less than knowing and voluntary.
       {¶16} Stan also argues that counsel presented "false or misleading
information" to him to induce his guilty plea. It appears this is wholly meritless. First,
Stan is mistaken in his assertion that "[d]uring the course of the proceeding [the
prosecutor] stated that the State of Ohio would not be opposed to four years of
service in prison." The State actually made no recommendation as to the total prison
sentence, only that it would not be opposed to judicial release after four years in
prison. The prosecutor said:

              Thank you, Your Honor. By way of plea to a Bill of Information,
       the Court had recited the maximum sentences faced. According to the
       plea petition, it would not be-- the State of Ohio would not be opposed
       to the East Ohio Correctional Center, after a term of commitment of at
       least four years. So and then, obviously, as the Court had recited, the
       maximum the defendant faces is five-and-a-half years. So at some
       point, we're not getting into what sentence we would recommend, but
       after four years of service in prison, we would not be opposed to the
       East Ohio Correctional Center.

       {¶17} This is consistent with the written plea agreement. Further, both the trial
court and defense counsel explained to Stan that the trial court was not bound by any
recommendations in any event, and Stan indicated his full understanding.
       {¶18} Defense counsel did tell Stan—after warning him that the trial court was
not bound by any recommendation—that, "this Court does have a history of being
                                                                               -5-


respectful of the State's recommendations." This is not misleading. In sentencing
Stan, the trial court ultimately agreed that it would "consider a request for judicial
release, as agreed by counsel in the plea agreement petition, * * * after [Stan] served
four years in the penitentiary."
       {¶19} Regarding      sentencing    proceedings,    Stan   argues   counsel    was
ineffective for failing to present any mitigating evidence or to speak on his behalf.
First, counsel did request that the court follow the State's recommendation, which
was to consider judicial release after four years in prison.
       {¶20} Further, counsel's decision not to present mitigating evidence during
sentencing can be considered sound trial strategy based upon the totality of the
circumstances. State v. Bartimus, 7th Dist. No. 02 BA 5, 2003-Ohio-807, ¶ 9. This
court in Bartimus noted that "the Ohio Supreme Court [likewise] recognizes that
failure to present evidence in the penalty phase as a tactical decision." Id. at ¶ 10,
citing State v. Keith, 79 Ohio St.3d 514, 684 N.E.2d 47 (1997) (discussing
presentation of mitigating evidence at the penalty phase of a capital trial); State v.
Johnson, 24 Ohio St.3d 87, 91, 494 N.E.2d 1061 (1986) (discussing presentation of
mitigating evidence at the penalty phase of a capital trial).
       {¶21} Stan argues that counsel should have noted, inter alia, his family life,
prior consistent employment history, history of drug problems and the fact that his
prior convictions were misdemeanors. However, all of that information can be found
in the PSI, which the trial court reviewed. Even assuming arguendo that counsel
should have been more zealous during the sentencing hearing and that this
constitutes deficient representation, there is no prejudice.
       {¶22} Accordingly, counsel was not ineffective, and Stan's first and second
assignments of error are meritless.
                                      Sentencing
       {¶23} In his third and final assignment of error, Stan asserts:

       The trial court abused its discretion in sentencing the Appellant to
       maximum and consecutive sentences.
                                                                              -6-


      {¶24} Appellate courts review a felony sentence to determine whether the trial
court's findings—or where findings are not required, the sentence itself—are clearly
and convincingly unsupported by the record, or whether the sentence is otherwise
contrary to law. R.C. 2953.08(G)(2); State v. Marcum, 146 Ohio St.3d 516, 2016-
Ohio-1002, 59 N.E.3d 1231, ¶ 1; ¶ 23. "Marcum does not permit appellate courts to
independently weigh the sentencing factors in R.C. 2929.12 on review." State v.
Davis, 2016-Ohio-7319, 71 N.E.3d 1254, ¶ 5 (7th Dist.).
      {¶25} Stan specifically asserts the trial court erred by imposing maximum,
consecutive sentences. To impose consecutive sentences R.C. 2929.14(C)(4)
requires the trial court make three findings: that consecutive sentences are 1)
necessary to protect the public from future crime or to punish the defendant; 2) not
disproportionate to the seriousness of the defendant's conduct and the danger the
defendant poses to the public; and 3) one of three alternative findings set out in
subsections: a) the defendant was under post-release control, specified statutory
community control, or awaiting trial/sentencing; b) the offenses were committed
during a course of conduct and the harm was so great/unusual that a single term
does not reflect the seriousness of the defendant's conduct; or c) the defendant's
criminal history demonstrates the need to protect the public from future crime by the
defendant. R.C. 2929.14(C)(4).
      {¶26} The findings supporting consecutive sentences must be made both at
the sentencing hearing and in the entry. State v. Bonnell, 140 Ohio St.3d 209, 2014–
Ohio–3177, 16 N.E.3d 659, ¶ 37. But a trial court is not required to state reasons
supporting its findings or use magic or talismanic words, so long as it is apparent the
court conducted the proper analysis. State v. Jones, 7th Dist. No. 13 MA 101, 2014–
Ohio–2248, ¶ 6; see also Bonnell at ¶ 37. Post-Bonnell, we may liberally review the
entire sentencing transcript to discern whether the trial court made the requisite
findings. Bonnell at ¶ 29. However, as demonstrated by the outcome in Bonnell—the
Supreme Court reversed and remanded Bonnell's sentence because the trial court
failed to make a proportionality finding—there are limits to that deference. Bonnell at
                                                                               -7-


¶ 33–34. After a reviewing court determines the findings have been made, the court
“must also determine whether the record contains evidence in support of the trial
court's findings.” State v. Correa, 7th Dist. 13 MA 23, 2015–Ohio–3955, ¶ 76, citing
Bonnell at ¶ 29.
      {¶27} The trial court found during the sentencing hearing:

             I do believe that prison terms are necessary in this matter, in that
      those should be consecutive so as to protect the public and to punish
      you. I don't believe that consecutive terms are disproportionate with
      your conduct, in that knowing you are on probation but needing money
      instead to have a party with your brother, broke into the home of your
      88 year old uncle, restrained him at gun point, robbed him; the next
      day, used his credit cards to buy gasoline, cigarettes, phone cards and
      a birthday gift for your own son; used his cash money to buy drugs.

             The harm caused to Mr. Kocher and the risk of worse harm, as a
      gun was used, are so great that a single term does not adequately
      reflect the seriousness of your conduct; consecutive terms are
      necessary, given your history.

      {¶28} The trial court found in its sentencing entry:

             The Court further finds in accordance with the above factors that
      consecutive prison terms are necessary in this action so as to protect
      the public and to punish this Defendant. Consecutive terms are not
      disproportionate with Defendant's conduct in that, knowing that he was
      on probation but needing money to "party," he nevertheless broke into
      the home of his 88 year old uncle, restrained him at gunpoint, robbed
      him, and, the next day, used his credit cards to buy gasoline, cigarettes,
      phone cards, and a birthday gift for his son, and used the cash to buy
      drugs. The harm suffered by this 88 year old victim and the risk of
                                                                           -8-


       worse harm as a gun was used, are so great that a simple term does
       not adequately reflect the seriousness of Defendant's conduct.
       Consecutive terms are needed due to Defendant's history.

       {¶29} Thus, the trial court complied with R.C. 2929.14(C)(4) in imposing
consecutive sentences. Further, the record contains ample evidence in support of
the findings and of the decision to impose the maximum consecutive sentences. The
factual findings made during the sentencing hearing and in the entry about the
underlying offenses are supported by the information in the PSI. Further, as Stan
himself concedes, he has a lengthy criminal history. The sentence is not clearly and
convincingly unsupported by the record, or otherwise contrary to law.
       {¶30} Accordingly, for all of the above reasons, Stan's assignments of error
are meritless and the judgment of the trial court is affirmed.

Donofrio, J., concurs.

Waite, J., concurs.
