[Cite as State v. Ducker, 2013-Ohio-3658.]


                                   COURT OF APPEALS
                                  STARK COUNTY, OHIO
                               FIFTH APPELLATE DISTRICT


STATE OF OHIO                                :   JUDGES:
                                             :
                                             :   Hon. W. Scott Gwin, P.J.
       Plaintiff-Appellee                    :   Hon. William B. Hoffman, J.
                                             :   Hon. Patricia A. Delaney, J.
-vs-                                         :
                                             :   Case No. 2012CA00193
                                             :
JAMES N. DUCKER                              :
                                             :
                                             :
       Defendant-Appellant                   :   OPINION


CHARACTER OF PROCEEDING:                         Appeal from the Stark County
                                                 Court of Common Pleas, Case
                                                 No. 2012CR0684



JUDGMENT:                                        AFFIRMED




DATE OF JUDGMENT ENTRY:                          August 12, 2013




APPEARANCES:

For Plaintiff-Appellee:                          For Defendant-Appellant:

JOHN D. FERRERO, JR.                             KRISTINA SUPLER
STARK CO. PROSECUTOR                             Friedman & Frey, LLC
RONALD MARK CALDWELL                             1304 West 6th St.
110 Central Plaza S., Ste. 510                   Cleveland, OH 44113
Canton, OH 44702-1413
Stark County, Case No.2012CA00193                                                     2




Delaney, J.

         {¶1} Appellant James N. Ducker appeals from the June 22 and June 28,

2012 judgment entries of conviction and sentence in the Stark County Court of

Common Pleas. Appellee is the state of Ohio. This case is related to State v.

Ducker, 5th Dist. Stark No. 2012CA00192.

                      FACTS AND PROCEDURAL HISTORY

         {¶2} A statement of the facts underlying appellant’s criminal convictions

is not necessary to our resolution of this appeal.

         {¶3} On November 15, 2011, appellant was charged by indictment with

one count of illegal use of a minor in a nudity-oriented material or performance

[R.C. 2907.323(A)(1), a felony of the second degree)]; one count of unlawful

sexual conduct with a minor [R.C. 2907.04(A), a felony of the third degree]; and

one count of disseminating material harmful to juveniles [R.C. 2907.31(A)(1), a

felony of the fifth degree].1 Appellant entered pleas of not guilty and a trial was

scheduled for April 2012. In the meantime, appellant was free on a personal

recognizance bond.

         {¶4} During pretrial proceedings, appellant’s original defense trial

counsel moved to withdraw and appellant retained new counsel. The trial date

was continued to May 2012.

         {¶5} While the original case was pending, appellant was charged by

indictment with one count of tampering with evidence [R.C. 2921.12(A)(2), a



1
    Stark County Court of Common Pleas case no. 2011CR1684.
Stark County, Case No.2012CA00193                                                    3


felony of the third degree].2 Because appellant committed this offense while on

bond in the original case, the trial court revoked appellant’s bond on May 14,

2012 and appellant remained incarcerated during pretrial proceedings.

         {¶6} Also during the May 14, 2012 pretrial, defense trial counsel moved

for a competency examination and appellant was ultimately found competent to

stand trial.

         {¶7} On June 20, 2012, a change-of-plea hearing was held in both

cases; the trial court addressed the original charges and the tampering with

evidence charge simultaneously. Appellant entered pleas of guilty as charged

and was sentenced two days later to an aggregate prison term of eight years;

appellant was also designated a Tier II sexual offender. The trial court noted

appellant’s sentence as follows: four years upon the count of count of illegal use

of a minor in a nudity-oriented material or performance (Count I); 24 months

upon the count of unlawful sexual conduct with a minor (Count II); 12 months

upon the count of disseminating material harmful to juveniles (Count III); and 24

months on the count of tampering with evidence. Counts 1 and 2 are to be

served consecutively, and consecutive to the term of 24 months on the separate

tampering offense. Count III is to be served concurrently.

         {¶8} We permitted appellant to file a delayed appeal from the judgment

entry of sentence and conviction but denied his motion to consolidate both

appeals. This opinion, therefore, addresses only appellant’s appeal from the




2
    Stark County Court of Common Pleas case no. 2012CR0684.
Stark County, Case No.2012CA00193                                                      4


sentence in the latter case, Stark County Court of Common Pleas case no.

2012CR0684.

      {¶9} Appellant raises two assignments of error:

                          ASSIGNMENTS OF ERROR

      {¶10} “I. THE TRIAL COURT ERRED AND IMPOSED A SENTENCE

CONTRARY TO LAW AND IN VIOLATION OF THE APPELLANT’S DUE

PROCESS RIGHTS BY FAILING TO CONSIDER ADEQUATELY ALL THE

STATUTORY FACTORS.”

      {¶11} “II. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE

OF COUNSEL IN VIOLATION OF HIS RIGHT TO COUNSEL UNDER THE 6TH

AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND

ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.”

                                   ANALYSIS

      {¶12} In his first assignment of error, appellant argues the trial court erred

in sentencing him to a term of 24 months without making the statutory findings

delineated in R.C. 2929.11 and R.C. 2929.12. We disagree.

      {¶13} Appellant did not object to the imposition of a 24-month sentence,

admittedly was sentenced within the range of terms for the offense charged, and

cannot now demonstrate plain error. See, State v. Dewitt, 5th Dist. Licking No.

12-CA-35, 2012-Ohio-5162.       In State v. Little, Fifth Dist. Muskingum No.

CT2011–0057, 2012–Ohio–2895, we held:

             As set forth above, Appellant entered a plea to sexual

             battery, in violation of R.C. 2907.03(A)(1). H.B. 86 did not
Stark County, Case No.2012CA00193                                                5


           amend or change the statute for which Appellant was

           convicted. Further, H.B. 86, Section 4 does not specifically

           include sexual battery as one of the offenses for which the

           legislation is to be applied retroactively. Accordingly, we find

           Appellant's argument the trial court was required to comply

           with the requirements of H.B. 86 in issuing Appellant's

           sentence herein is not well taken.

           The Supreme Court of Ohio in State v. Kalish, 120 Ohio

           St.3d 23, 2008–Ohio–4912 set forth a two step process for

           examining felony sentences. The first step is to ‘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.’ Kalish

           at ¶ 4. If this first step ‘is satisfied,’ the second step requires

           the trial court's decision be ‘reviewed under an abuse-of-

           discretion standard.’ Id. The relevant sentencing law at the

           time of sentencing herein was controlled by the Ohio

           Supreme Court's decision in State v. Foster, i.e. ‘ * * * trial

           courts have full discretion to impose a prison sentence within

           the statutory range and are no longer required to make

           findings or give their reasons for imposing maximum,

           consecutive, or more than the minimum sentences.’ 109
Stark County, Case No.2012CA00193                                                      6


             Ohio St.3d 1, 30, 2006–Ohio–856 at ¶ 100, 845 N.E .2d 470,

             498.

             Upon review of Appellant's sentence, the same is within the

             parameters for the offense and does not amount to an abuse

             of discretion. We find the record fails to demonstrate the trial

             court failed to give careful and substantial deliberation to the

             relevant statutory considerations.

       {¶14} As in Little, supra, tampering with evidence, R.C. 2921.12(A)(2), the

charge for which appellant was sentenced, was not enumerated within H.B. 86;

therefore, pursuant to Kalish, supra, we find the trial court properly considered

the principles and factors necessary in imposing the sentence herein. The

sentence was within the statutory range for the offense.

       {¶15} Nor does appellant’s sentence constitute an abuse of discretion.

Appellate courts can find an “abuse of discretion” where the record establishes

that a trial judge refused or failed to consider statutory sentencing factors.

Cincinnati v. Clardy, 57 Ohio App.2d 153, 385 N.E.2d 1342 (1st Dist.1978). An

abuse of discretion has also been found where a sentence is greatly excessive

under traditional concepts of justice or is manifestly disproportionate to the crime

or the defendant. Woosley v. United States, 478 F.2d 139, 147(8th Cir.1973).

The imposition by a trial judge of a sentence on a mechanical, predetermined or

policy basis is subject to review. Id., 478 F.2d at 143–145. Where the severity of

the sentence shocks the judicial conscience or greatly exceeds penalties usually

exacted for similar offenses or defendants, and the record fails to justify and the
Stark County, Case No.2012CA00193                                                        7


trial court fails to explain the imposition of the sentence, the appellate court's can

reverse the sentence. Id., 478 F.2d at 147.

       {¶16} In this case, appellant’s 24-month sentence is not so severe that it

“shocks the judicial conscience or greatly exceeds penalties usually exacted for

similar offenses or defendants,” and while we noted in the related companion

case that the trial court did not make the required findings to impose consecutive

sentences, in this case the record justifies the sentence imposed because

appellant committed the offense while on bond. We therefore decline to reverse

the sentence.

       {¶17} Appellant’s first assignment of error is overruled.

                                              II.

       {¶18} In his second assignment of error, appellant argues he received

ineffective assistance of counsel. We disagree.

       {¶19} To succeed on a claim of ineffectiveness, a defendant must satisfy

a two-prong test. Initially, a defendant must show that trial counsel acted

incompetently. See, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052

(1984). In assessing such claims, “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, citing Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158 (1955).

       {¶20} “There are countless ways to provide effective assistance in any

given case. Even the best criminal defense attorneys would not defend a
Stark County, Case No.2012CA00193                                                    8

particular client in the same way.” Strickland, 466 U.S. at 689. The question is

whether counsel acted “outside the wide range of professionally competent

assistance.” Id. at 690.

       {¶21} Even if a defendant shows that counsel was incompetent, the

defendant must then satisfy the second prong of the Strickland test. Under this

“actual prejudice” prong, the 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.” Strickland, 466 U.S. at 694.

       {¶22} Appellant asserts defense trial counsel should have requested a

presentence investigation, should have filed a sentencing memorandum, and

should have presented evidence to mitigate the sentence. Appellant cites to trial

counsel’s alleged “failure to create a thorough record” but fails to establish how

the outcome of the sentencing hearing would have been different but for

counsel’s alleged deficiencies. We are unwilling to speculate the outcome would

have been different and therefore find appellant did not receive ineffective

assistance of counsel.

       {¶23} Appellant’s second assignment of error is overruled.
Stark County, Case No.2012CA00193                                         9


                               CONCLUSION

       {¶24} Appellant’s two assignments of error are overruled and the

judgment of the Stark County Court of Common Pleas is affirmed.

By: Delaney, J. and

Gwin, P.J. concur,

Hoffman, J., concurs in

part and dissents in part.
yh


                                      HON. PATRICIA A. DELANEY




                                      HON. W. SCOTT GWIN



                                      HON. WILLIAM B. HOFFMAN
Stark County, Case No.2012CA00193                                                         10

Hoffman, J., concurring in part and dissenting in part
      {¶25} I concur in the majority’s analysis and disposition of Appellant’s

second assignment of error.

       {¶26} I also concur in the majority’s analysis and disposition of

Appellant’s first assignment of error as it pertains to the trial court’s imposition of

24 months in prison.     I dissent only as to the trial court’s imposition of that

sentence consecutively to the charges in Case No. 2011CR1684 in the absence

of the requisite findings; thereby comporting with our decision in State v. Ducker,

Stark County App. No. 2012CA00192.




       ________________________________
                                                  HON. WILLIAM B. HOFFMAN
