[Cite as State v. Coleman, 2011-Ohio-2633.]


STATE OF OHIO                    )                    IN THE COURT OF APPEALS
                                 )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

STATE OF OHIO                                         C.A. No.     25537

          Appellee

          v.                                          APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
MICHAEL L. J. COLEMAN                                 COURT OF COMMON PLEAS
                                                      COUNTY OF SUMMIT, OHIO
          Appellant                                   CASE No.   CR 09 12 3581

                                 DECISION AND JOURNAL ENTRY

Dated: June 1, 2011



          DICKINSON, Judge.

                                              INTRODUCTION

          {¶1}     Michael Coleman broke into a church and into a teacher training center.

Following a bench trial, the court convicted him of three counts of breaking and entering and

sentenced him to 12 months in prison. Realizing that, with credit for time served, he would be

released in December, the trial court extended his prison term to 18 months. We affirm the trial

court’s sentence because it did not abuse its discretion in increasing Mr. Coleman’s sentence and

because Mr. Coleman did not receive ineffective assistance of counsel.

                                              BACKGROUND

          {¶2}     Officer Karleton Starks and Officer Charles Artis responded to an alarm at a

church.        While Officer Starks performed a sweep of the property, Officer Artis set up a

perimeter.       Officer Artis testified that he noticed someone by the building next door and

investigated. He found Mr. Coleman standing on a loading dock and escorted him to the police
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cruiser. According to Officer Starks, Mr. Coleman told him that he had been there for about half

an hour and was trying to get warm. Mr. Coleman was arrested and, later, released on bond.

       {¶3}    James Dyer, a custodian for the Akron Public Schools, testified that he reported

for work one morning and found Mr. Coleman asleep on a couch. He testified that he also

discovered the glass front door had been broken by a large rock. When he confronted Mr.

Coleman, Mr. Coleman responded, “I’m cold, man.” The police arrested Mr. Coleman, and

Detective Steven Snyder interviewed him. Mr. Coleman told Detective Snyder that he was just

looking for a place to sleep. Mr. Coleman had posted his bond from the church break-in the day

before the teacher training center break-in.

                                           SENTENCE

       {¶4}    Mr. Coleman’s assignment of error is that the trial court abused its discretion in

extending his sentence “on the sole basis that [he] is homeless.” When reviewing felony

sentencing, an appellate court must examine the sentencing court’s compliance with all

applicable rules and statutes in imposing the sentence to determine whether the sentence is

contrary to law. If the sentence is not contrary to law, it is then reviewed for an abuse-of-

discretion. State v. Kalish, 120 Ohio St. 3d 23, 2008-Ohio-4912, at ¶4.

       {¶5}    Mr. Coleman has conceded that his sentence is not contrary to law. In his brief,

he wrote that “it seems arguable that a trial court abuses its discretion in basing the term of

imprisonment on appellant’s homeless status and the desire to provide him with room and

board.” He has also noted that “[e]nhancing a sentence on such a basis may raise constitutional

issues of due process and equal protection[,] . . . [but these issues] were not raised [at] the trial

court [level][.]” Mr. Coleman has not cited any cases in support of his position.
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       {¶6}    The overriding purposes of felony sentencing are “to protect the public from

future crime by the offender and others and to punish the offender.” R.C. 2929.11(A). “To

achieve those purposes, the sentencing court shall consider the need for incapacitating the

offender, deterring the offender and others from future crime, rehabilitating the offender, and

making restitution to the victim of the offense, the public, or both.” Id. Section 2929.11(B)

requires that a sentence “be reasonably calculated to achieve the two overriding purposes of

felony sentencing . . . commensurate with and not demeaning to the seriousness of the offender’s

conduct and its impact upon the victim, and consistent with sentences imposed for similar crimes

committed by similar offenders.” Further, “[t]he sentencing court shall consider all of the

following that apply regarding the offender, and any other relevant factors, as factors indicating

that the offender is likely to commit future crimes: . . . At the time of committing the offense, the

offender was under release from confinement before trial or sentencing . . . .”                 R.C.

2929.12(D)(1).

       {¶7}    The trial court considered the facts before it, including that Mr. Coleman had

committed both of his offenses in an attempt to find warm shelter. He committed one of the

offenses while he was out on bond awaiting trial for the other one. The trial court realized that,

if he served a 12 month sentence, he would be released at the beginning of winter, essentially

setting up the same scenario that led to his convictions. In fact, Mr. Coleman’s entire defense

strategy was based on demonstrating that he committed his offenses out of necessity because he

was in need of shelter due to the cold. Further, when the trial court asked Mr. Coleman if he

preferred jail or probation, Mr. Coleman said that he wanted to go to jail.

       {¶8}    Accordingly, given Mr. Coleman’s own stated preferences and the circumstances

surrounding his offenses, the trial court’s decision to have his sentence continue through the
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winter in order to prevent new offenses was not unreasonable, arbitrary, or unconscionable. His

first assignment of error is overruled.

                          INEFFECTIVE ASSISTANCE OF COUNSEL

       {¶9}     Mr. Coleman’s second assignment of error is that his trial lawyer was ineffective

because he advocated a longer sentence for Mr. Coleman. In order to prevail on a claim of

ineffective assistance of counsel, Mr. Coleman must demonstrate that “[his] counsel’s

representation fell below an objective standard of reasonableness” and “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.”      State v. Bradley, 42 Ohio St. 3d 136, 142 (1989) (quoting Strickland v.

Washington, 466 U.S. 668, 687-88, 694 (1984)).

       {¶10} Mr. Coleman has argued that his lawyer’s statement that a 12 month sentence

“puts him back out in December, right [back] where we started” fell below an objective standard

of reasonableness. He has not cited any cases to support his argument. Instead, through a string

of questions, he has argued that, even if prison were an acceptable substitute for the social

services available to the homeless, “the prudent attorney [would] require that his . . . client

affirmatively state on the record that he . . . desires a longer prison term.” He has also argued

that, if his lawyer’s representation was deficient, he clearly suffered prejudice in the form of a

longer sentence.

       {¶11} After the trial court found Mr. Coleman guilty, it stated, “the court is in a

quandary with what to do with . . . Mr. Coleman. . . . I guess what I’d like to know before I

sentence Mr. Coleman is a little bit more about him . . . because I’m just not confident that he’s
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going to be able to be successful on probation. That’s my concern. He has no place to live and

he’s not going to be compliant. He may prefer to go to prison.”

       {¶12} When the trial court asked Mr. Coleman whether he preferred jail or probation, he

responded that he wanted to go to jail. The trial court stated, “[a]ll right. . . . I don’t want to set

him up to fail[.]” Mr. Coleman’s attorney told the trial court, “Well . . . I would just ask that the

court give him a sentence that would probably outlast the winter.” The trial court responded,

“All right.”

       {¶13} The trial court then sentenced Mr. Coleman to 12 months in prison. Without

prompting, it noted that, because of the time required for Mr. Coleman’s competency evaluation,

he would receive credit for over six months served. The trial court said, “I’m concerned. I’m

wondering if maybe I should give him a little bit more time.”               Mr. Coleman’s attorney

responded, “Yeah, that puts him back out in December, right where we started.”

       {¶14} The trial court had proceeded directly to sentencing following the trial.              Its

statements during sentencing indicate that it realized that it had not considered the effect Mr.

Coleman’s credit for time served would have on the timing of his release. Mr. Coleman’s

lawyer’s statement that a 12-month sentence returns him to the same situation that led to his

offenses merely echoed the trial court’s concerns. Prior to the statement at issue, the trial court

had questioned whether it should give Mr. Coleman a longer sentence.

       {¶15} Mr. Coleman has focused his arguments on his lawyer’s statement concerning his

December release and has not argued that his lawyer’s earlier statements prejudiced him. Given

all the facts surrounding Mr. Coleman’s arrests and the trial court’s expressed concern for Mr.

Coleman’s living situation, this Court cannot conclude that, but for Mr. Coleman’s lawyer’s
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statement, there is a reasonable probability that his prison term would have been for less than 18

months. His second assignment of error is overruled.

                                         CONCLUSION

       {¶16} The trial court did not abuse its discretion when it sentenced Mr. Coleman to 18

months in prison, and he did not receive ineffective assistance of counsel. The judgment of the

Summit County Common Pleas Court is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.


                                                     CLAIR E. DICKINSON
                                                     FOR THE COURT


BELFANCE, P. J.
CONCURS
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CARR, J.
CONCURS IN JUDGMENT ONLY


APPEARANCES:

JEFFREY N. JAMES, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN R. DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
