State v. Stevenson

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[Cite as State v. Stevenson, 2022-Ohio-1457.] IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MAHONING COUNTY STATE OF OHIO, Plaintiff-Appellee, v. MICHAEL J. STEVENSON, Defendant-Appellant. OPINION AND JUDGMENT ENTRY Case No. 21 MA 0014 Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 16CR717 BEFORE: Cheryl L. Waite, Gene Donofrio, Carol Ann Robb, Judges. JUDGMENT: Affirmed. Atty. Paul J. Gains, Mahoning County Prosecutor and Atty. Ralph M. Rivera, Assistant Chief Prosecuting Attorney, Criminal Division, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee Atty. Nicholas Cerni, 755 Boardman-Canfield Road, Suite M-1, Youngstown, Ohio 44512 for Defendant-Appellant. –2– Dated: March 24, 2022 WAITE, J. {¶1} Appellant Michael J. Stevenson appeals a February 8, 2021 Mahoning County Court of Common Pleas judgment entry reimposing the remainder of his four-year suspended prison sentence. Appellant argues that his trial counsel provided ineffective assistance by failing to submit mitigating evidence on his behalf at the sentencing hearing. For the reasons provided, Appellant’s argument is without merit and the judgment of the trial court is affirmed. Factual and Procedural History {¶2} This appeal involves Appellant’s second violation of his community control sanctions. The case began on July 28, 2016 when Appellant was indicted on one count of burglary, a felony of the second degree in violation of R.C. 2911.12 (A)(2), (C). On October 7, 2016, the trial court sentenced Appellant to a four-year term of community control and reserved an eight-year prison sentence in the event Appellant violated the terms of his community control. {¶3} On August 22, 2017, the state filed a “motion to extend or revoke” based on Appellant’s contact with the victim and his use of an illegal drug. Appellant waived a hearing on the matter and stipulated to the violation. On September 1, 2017, the trial court imposed a four-year prison term with 264 days of jail-time credit. {¶4} On March 8, 2019, the trial court granted Appellant’s motion for judicial release and imposed a three-year community control term. At this point, Appellant had served 740 days of his four-year prison term. Case No. 21 MA 0014 –3– {¶5} On December 17, 2020, the state filed a “motion to extend or revoke” based on Appellant’s positive drug test. Appellant stipulated to the violation. On February 8, 2021, the trial court reimposed the remainder of Appellant’s suspended four-year prison term, which amounted to 404 days. It is from this entry that Appellant timely appeals. ASSIGNMENT OF ERROR The Appellant received ineffective assistance of counsel. {¶6} Appellant argues that his counsel was ineffective for failing to present “better evidence” in support of continuing his community control sanction in lieu of imposition of his remaining prison term. {¶7} The state responds by noting that Appellant acknowledges mitigating evidence was presented, but claims that “better” evidence should have been offered by counsel. Even so, the state points out that Appellant has not shown that other mitigating evidence exists. {¶8} The test for an ineffective assistance of counsel claim is two-part: whether trial counsel's performance was deficient and, if so, whether the deficiency resulted in prejudice. State v. White, 7th Dist. Jefferson No. 13 JE 33, 2014-Ohio-4153, ¶ 18, citing Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 107. In order to prove prejudice, “[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.” State v. Lyons, 7th Dist. Belmont No. 14 BE 28, 2015-Ohio-3325, ¶ 11, citing Case No. 21 MA 0014 –4– Strickland at 694. The appellant must affirmatively prove the alleged prejudice occurred. Id. at 693. {¶9} As both are necessary, if one prong of the Strickland test is not met, an appellate court need not address the remaining prong. Id. at 697. The appellant bears the burden of proof on the issue of counsel's effectiveness, and in Ohio, a licensed attorney is presumed competent. State v. Carter, 7th Dist. Columbiana No. 2000-CO-32, 2001 WL 741571 (June 29, 2001), citing State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). {¶10} “The presentation of mitigating evidence is a matter of trial strategy.” State v. Johnson, 7th Dist. Mahoning No. 20 MA 0008, 2020-Ohio-7025, ¶ 36, appeal not allowed, 162 Ohio St.3d 1438, 2021-Ohio-1399, 166 N.E.3d 1256, ¶ 36, citing State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 189. “While counsel may advocate for any sentence or diversion, there is no objective requirement that defense counsel request a particular sanction or present arguments in a specific manner.” State v. Cascarelli, 7th Dist. Mahoning No. 13 MA 145, 2014-Ohio-5403, ¶ 7. {¶11} At the sentencing hearing, trial counsel informed the court that Appellant suffered from addiction and is in poor health due to his serious medical conditions. (2/4/21 Sentencing Hrg. Tr., p. 4.) Counsel requested the court to impose a community control sanction based on these factors. (2/4/21 Sentencing Hrg. Tr., pp. 8-9.) {¶12} As noted by the state, mitigating evidence was presented by trial counsel and Appellant does not cite to any additional evidence that was not presented at the hearing. As such, there is no evidence that the trial court’s performance was deficient or Case No. 21 MA 0014 –5– that Appellant suffered any prejudice. Appellant’s sole assignment of error is without merit and is overruled. Conclusion {¶13} Appellant argues that his trial counsel provided ineffective assistance of counsel by failing to submit mitigating evidence at the sentencing hearing. For the reasons provided, Appellant’s argument is without merit and the judgment of the trial court is affirmed. Donofrio, P.J., concurs. Robb, J., concurs. Case No. 21 MA 0014 [Cite as State v. Stevenson, 2022-Ohio-1457.] For the reasons stated in the Opinion rendered herein, the assignment of error is overruled and it is the final judgment and order of this Court that the judgment of the Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs waived. A certified copy of this opinion and judgment entry shall constitute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a certified copy be sent by the clerk to the trial court to carry this judgment into execution. NOTICE TO COUNSEL This document constitutes a final judgment entry.

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