[Cite as State v. Korbel, 2018-Ohio-1926.]


                                        COURT OF APPEALS
                                      LICKING COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


 STATE OF OHIO                                  :   JUDGES:
                                                :
                                                :   Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                      :   Hon. Patricia A. Delaney, J.
                                                :   Hon. Craig R. Baldwin, J.
 -vs-                                           :
                                                :   Case No. 17-CA-66
                                                :
 KEVIN J. KORBEL                                :
                                                :
                                                :
        Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                            Appeal from the Licking County Court of
                                                    Common Pleas, Case No. 17-CR-434



JUDGMENT:                                           AFFIRMED




DATE OF JUDGMENT ENTRY:                             May 14, 2018




APPEARANCES:

 For Plaintiff-Appellee:                            For Defendant-Appellant:

 HAWKEN FLANAGAN                                    ANDREW SANDERSON
 Licking Co. Prosecutor’s Office                    Burkett & Sanderson
 20 South Second St., 4th Floor                     738 East Main St.
 Newark, OH 43055                                   Lancaster, OH 43130
Licking County, Case No. 17-CA-66                                                        2

Delaney, J.

        {¶1} Appellant Kevin J. Korbel appeals from the judgment entry of his conviction

upon one count of telecommunications harassment in the Licking County Court of

Common Pleas. Appellee is the state of Ohio.

                          FACTS AND PROCEDURAL HISTORY

        {¶2} The following is adduced from appellee’s bill of particulars filed June 7,

2017.

                                 First Conviction, Same Victim

        {¶3} On May 1, 2017, appellant was convicted of telecommunications

harassment following a bench trial in Licking County Municipal Court, Case No. 17-CRB-

145. The victim of the offense in that case is Jane Doe. Appellant was sentenced to 180

days in the Licking County Justice Center with 170 days suspended. Appellant was

remanded to the custody of the Licking County Sheriff’s Office to serve his jail time.

                       Appellant Calls the Same Victim, Again, from Jail

        {¶4} On May 4, 2017, while incarcerated at the Licking County Jail, appellant

called his brother-in-law, Cory Jewell, and asked Jewell to initiate a conference call

bringing Doe into the conversation. Doe did not answer the call, but appellant and Jewell

could be heard talking on Doe’s voice mail. A recording of the subject call was retrieved

from the Licking County Jail, confirming that appellant asked Jewell to initiate a

conference call to Doe.

        {¶5} Appellant was charged by indictment with one count of telecommunications

harassment, a felony of the fifth degree, pursuant to R.C. 2917.21(A)(5)(C)(2). On July

3, 2017, appellant filed a written Motion for Change of Pleas and Continuance, moving
Licking County, Case No. 17-CA-66                                                          3


the trial court to withdrawn his previously-entered plea of not guilty, to enter a plea of

guilty, and for the trial court to order a pre-sentence investigation (P.S.I.) prior to

sentencing.

       {¶6} On August 14, 2017, appellant appeared before the trial court, entered his

guilty plea, and the trial court found him guilty as charged. The trial court sentenced

appellant to a 3-year term of community control.         The community-control sentence

included a term of 90 days in the Licking County Jail.

       {¶7} Appellant now appeals from the judgment entries of his conviction and

sentence dated August 14, 2017.

       {¶8} Appellant raises two assignments of error:

                               ASSIGNMENT OF ERROR

       {¶9} “I. THE TRIAL COURT COMMITTED HARMFUL ERROR IN CONVICTING

THE DEFENDANT-APPELLANT OF A FELONY OFFENSE BASED ON THE

INDICTMENT FILED BELOW.”

       {¶10} “II.   THE DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE

ASSISTANCE OF COUNSEL.”

                                        ANALYSIS

                                             I.

       {¶11} In his first assignment of error, appellant argues the indictment is fatally

defective because it does not state the fact of his prior conviction elevating the instant

offense to a felony of the fifth degree. We disagree.

       {¶12} We first note appellant did not object to the indictment before the trial court.

Failure to timely object to an alleged defect in an indictment constitutes a waiver of the
Licking County, Case No. 17-CA-66                                                          4

error. State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3830, 935 N.E.2d 26, ¶ 46; Crim.R.

12(C)(2) (objections to defect in indictment must be raised before trial). Any claim of error

in the indictment in such a case is limited to a plain-error review on appeal. State v.

Frazier, 73 Ohio St.3d 323, 652 N.E.2d 1000 (1995); Crim.R. 52(B). Appellant in the

instant case acknowledged at arraignment that he understood the charge and waived

reading of the indictment. State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819

N.E.2d 215, ¶ 26.

       {¶13} Appellant was charged by indictment with one count of telecommunications

harassment pursuant to R.C. 2917.21(A)(5) and (C)(2), which state:

                     No person shall knowingly make or cause to be made a

              telecommunication, or knowingly permit a telecommunication to be

              made from a telecommunications device under the person's control,

              to another, if the caller does any of the following:

                     * * * *.

                     Knowingly makes the telecommunication to the recipient of

              the telecommunication, to another person at the premises to which

              the telecommunication is made, or to those premises, and the

              recipient or another person at those premises previously has told the

              caller not to make a telecommunication to those premises or to any

              persons at those premises;

                     * * * *.

                     Whoever violates this section is guilty of telecommunications

              harassment.
Licking County, Case No. 17-CA-66                                                          5


                     A violation of division (A) * * * (5) * * * of this section is a

              misdemeanor of the first degree on a first offense and a felony of the

              fifth degree on each subsequent offense.

                     * * * *.

       {¶14} In the instant case, the indictment tracks the language of the statute, stating

appellant is charged with telecommunications harassment “in violation of Section

2917.21(A)(5)(C)(2) of the Ohio Revised Code, a felony of the fifth degree * * *.” The

indictment does not explicitly aver appellant has a prior conviction of telecommunications

harassment, but does state the offense is a felony of the fifth degree.      Appellee relies

upon the citing of the statute as a felony of the fifth degree to adequately advise appellant

the charge is elevated due to his prior conviction.

       {¶15} Additionally, as we noted supra, appellee’s bill of particulars filed June 7,

2017, states the instant charge is premised upon appellant’s initiation of a telephone call

to the victim from the county jail, where appellant was incarcerated for an earlier

conviction of telecommunications harassment against the same victim.

       {¶16} Appellant argues that the indictment is fatally defective because it does not

state the prior conviction. R.C. 2945.75(A)(1) states, “When the presence of one or more

additional elements makes an offense one of more serious degree, [t]he * * * indictment

* * * either shall state the degree of the offense which the accused is alleged to have

committed, or shall allege such additional element * * *. Otherwise, such affidavit,

complaint, indictment, or information is effective to charge only the least degree of the

offense.” Appellant argues the indictment in this case therefore effectively charged him

with telecommunications harassment as a misdemeanor of the first degree.
Licking County, Case No. 17-CA-66                                                      6


      {¶17} The purposes of an indictment are to give an accused adequate notice of

the charge and to enable an accused to protect himself from any future prosecutions for

the same incident. State v. Buehner, 110 Ohio St.3d 403, 2006-Ohio-4707, 853 N.E.2d

1162, ¶ 7, citing Weaver v. Sacks, 173 Ohio St. 415, 417, 20 O.O.2d 43, 183 N.E.2d 373

(1962); State v. Sellards, 17 Ohio St.3d 169, 170, 17 OBR 410, 478 N.E.2d 781 (1985).

The Ohio Supreme Court has held:

                    The sufficiency of an indictment is subject to the requirements

             of Crim.R. 7 and the constitutional protections of the Ohio and federal

             Constitutions. Under Crim.R. 7(B), an indictment “may be made in

             ordinary and concise language without technical averments or

             allegations not essential to be proved. The statement may be in the

             words of the applicable section of the statute, provided the words of

             that statute charge an offense, or in words sufficient to give the

             defendant notice of all the elements of the offense with which the

             defendant is charged.

                    An indictment meets constitutional requirements if it “first,

             contains the elements of the offense charged and fairly informs a

             defendant of the charge against which he must defend, and, second,

             enables him to plead an acquittal or conviction in bar of future

             prosecutions for the same offense.

                    State v. Buehner, 110 Ohio St.3d 403, 2006-Ohio-4707, 853

             N.E.2d 1162, ¶ 8-9, citing State v. Childs, 88 Ohio St.3d 558, 564–
Licking County, Case No. 17-CA-66                                                            7

              565, 728 N.E.2d 379 (2000), quoting Hamling v. United States, 418

              U.S. 87, 117–118, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974).

       {¶18} The lack of certain particulars in an indictment is not fatal. An indictment is

not defective for the state's failure to identify the elements of the underlying offense of the

charged crime. Bruehner, supra at ¶ 9, citing State v. Murphy, 65 Ohio St.3d 554, 583,

605 N.E.2d 884 (1992). If an indictment sufficiently tracks the wording of the statute of

the charged offense, the omission of an underlying offense in the indictment can be

remedied by identifying the underlying offense in the bill of particulars. Id., citing Skatzes,

supra, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, at ¶ 30.

       {¶19} The bill of particulars is relevant because the bill should further describe the

elements of the offense and supplement the indictment. An omission in an indictment

may be remedied if the bill of particulars identifies the underlying felony, as is permitted

where the indictment sufficiently tracked the wording of the offense. State v. Murphy, 65

Ohio St.3d 554, 583, 605 N.E.2d 884, 907 (1992). There is no plain error in an indictment

when appellant received a bill of particulars which supplied much of the information he

now claims he lacked. Id. As we noted supra, appellant received a bill of particulars

containing the fact of his prior conviction.

       {¶20} As appellant acknowledges, the same argument regarding the sufficiency

of the indictment was made in State v. Salupo, 177 Ohio App.3d 354, 2008-Ohio-3721,

894 N.E.2d 746, ¶ 13 (9th Dist.). That case also involved a fifth-degree felony count of

telecommunications harassment; the indictment also stated the violation of R.C.

2917.21(A)(5) was “a [f]elony of the [f]ifth [d]egree” but did not explicitly state the

existence of a prior conviction. The Ninth District held:
Licking County, Case No. 17-CA-66                                                           8


                     * * * [T]he indictment in this case stated that Salupo was

              charged with “a [f]elony of the [f]ifth [d]egree.” It therefore was

              sufficient under R.C. 2945.75(A) to charge him with the more serious

              offense. Furthermore, under Crim.R. 7(B), an indictment must only

              include “words sufficient to give the defendant notice of all the

              elements of the offense with which the defendant is charged.” A

              violation of R.C. 2917.21 can be a felony of the fifth degree only if it

              is a subsequent offense. Accordingly, the indictment gave Salupo

              sufficient notice of all the elements of the elevated offense. This court,

              therefore, concludes that because the indictment informed Salupo

              that he was charged with the more serious telecommunications

              harassment offense, his conviction and sentence for that offense did

              not violate his state due-process rights. * * * *.

                     State v. Salupo, 9th Dist. No. 07CA009233, 177 Ohio App.3d

              354, 2008-Ohio-3721, 894 N.E.2d 746, ¶ 15.

       {¶21} We find the language of the indictment in the instant case adequately

notified appellant of the existence of his prior conviction, elevating the offense to a felony

of the fifth degree. When Crim.R. 7(B) is read in conjunction with R.C. 2945.75(A)(1), it

appears the legislature intended for the “degree of the offense” to adequately give notice

to a defendant of the enhancement element contained within the statute. State v. Fields,

4th Dist. No. 06CA3080, 2007-Ohio-4191, 2007 WL 2332066, ¶ 18. Consequently, in

stating the degree of the offense, appellant was given notice of all elements of the offense.

State v. Downs, 7th Dist. No. 15 MA 0170, 2017-Ohio-1014, 86 N.E.3d 787, ¶ 43.
Licking County, Case No. 17-CA-66                                                           9

       {¶22} We find no reason to disagree with the rationale of Salupo, especially when

the bill of particulars in the instant case stated the fact of the prior conviction. Moreover,

the uncontested circumstances of the instant case undermine appellant’s argument that

he was insufficiently notified of his own prior conviction: appellant initiated the phone call

in this case while incarcerated for his first conviction for the same offense, against the

same victim.

       {¶23} The indictment was not fatally defective, no plain error occurred, and

appellant was effectively charged with telecommunications harassment as a felony of the

fifth degree. His first assignment of error is overruled.

                                                 II.

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

assistance of defense trial counsel due to the failure to object to the language of the

indictment. We disagree.

       {¶25} 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). “There are countless ways to provide effective assistance in any given case.

Even the best criminal defense attorneys would not defend a particular client in the same
Licking County, Case No. 17-CA-66                                                         10

way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the

wide range of professionally competent assistance.” Id. at 690.

       {¶26} 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.

       {¶27} In light of our decision supra that the indictment effectively charged

appellant with a felony of the fifth degree, appellant has not established that trial counsel

acted incompetently in failing to challenge the indictment at the trial level. We find

appellant has demonstrated neither error nor prejudice arising from the representation of

defense trial counsel.

       {¶28} Appellant’s second assignment of error is overruled.
Licking County, Case No. 17-CA-66                                                   11


                                    CONCLUSION

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

Licking County Court of Common Pleas is affirmed.

By: Delaney, J.,

Hoffman, P. J. and

Baldwin, J., concur.
