Opinion
23 CO 0024 23 CO 0025
08-13-2024
STATE OF OHIO, Plaintiff-Appellee, v. JAMES V. WIEBE, Defendant-Appellant.
Atty. Vito J. Abruzzino, Columbiana County Prosecutor and Atty. Shelley M. Pratt, Assistant Prosecutor, for Plaintiff-Appellee Atty. Mark J. Lavelle, for Defendant-Appellant
Criminal Appeals from the Court of Common Pleas of Columbiana County, Ohio Case Nos. 2022 CR 472; 2021 CR 230
Judgment: Affirmed.
Atty. Vito J. Abruzzino, Columbiana County Prosecutor and Atty. Shelley M. Pratt, Assistant Prosecutor, for Plaintiff-Appellee
Atty. Mark J. Lavelle, for Defendant-Appellant
Before: Cheryl L. Waite, Mark A. Hanni, Katelyn Dickey, Judges.
OPINION AND JUDGMENT ENTRY
WAITE, J.
{¶1} Appellant James V. Wiebe appeals two judgment entries of the Columbiana County Court of Common Pleas, dated February 14, 2023 and March 3, 2023. Appellant argues that he received ineffective assistance of counsel during his trial court proceedings, as his counsel did not reach a global plea agreement with the state and failed to request a presentence investigation report ("PSI") before the sentencing hearing. For the following reasons, Appellant's arguments are without merit and the judgment of the trial court is affirmed.
Factual and Procedural History
{¶2} Due to the plea agreement in this matter, the underlying facts of the incidents leading to the indictments are sparse. However, both indictments involved mostly drug activity.
{¶3} In appellate case number 23CO0025, Appellant was indicted on July 14, 2021, and charged with: one count of having weapons while under a disability, a felony of the third degree in violation of R.C. 2923.13(A)(3) (prior conviction from the Superior Court of California involving a conviction for possession of methamphetamine with the intent to sell - 2017); one count of aggravated trafficking in drugs, a felony of the third degree in violation of R.C. 2925.03(A)(2) (methamphetamine equal to or in excess of bulk but less than five times the bulk amount) with a specification for forfeiture of money in a drug case ($10,500) in violation of R.C. 2941.1417(A); one count of aggravated possession of drugs, a felony of the third degree in violation of R.C. 2925.11(A) (methamphetamine equal to or in excess of bulk but less than five times the bulk amount) with a specification for forfeiture of money in a drug case ($10,500) in violation of R.C. 2941.1417(A); two counts of aggravated possession of drugs, felonies of the fifth degree in violation of R.C. 2925.11(A) (morphine and oxycodone). All of these charges stem from an incident that occurred on December 27, 2020.
{¶4} While legal proceedings continued in the above case, Appellant was again indicted on August 10, 2022 on the following charges: one count of aggravated trafficking in drugs, a felony of the third degree in violation of R.C. 2925.03(A)(2) (methamphetamine less than the bulk amount but committed within the vicinity of East Palestine Elementary School); aggravated possession of drugs, a felony of the third degree in violation of R.C. 2925.11(A) (methamphetamine equal to or in excess of bulk but less than five times the bulk amount) with a specification for forfeiture of money in a drug case ($102) in violation of R.C. 2941.1417(A) and two counts of aggravated possession of drugs, felonies of the fifth degree in violation of R.C. 2925.11(A) (methamphetamine and hydrocodone with a specification for forfeiture of money in a drug case ($102) in violation of R.C. 2941.1417(A). Due to the timing of the filing of his notices of appeal, this was assigned case number 23CO0024, despite the fact that the incident from which these charges arose occurred later in time than 23CO0025.
{¶5} Appellant failed to appear at a pretrial conference scheduled for November 18, 2021 on the second indictment and a bench warrant was issued for his arrest. It was later determined that Appellant had been hospitalized during this time and his absence was later excused.
{¶6} During the pendency of both cases, counsel for Appellant and the state attempted to negotiate a global plea agreement to resolve both. However, the parties were unable to reach such an agreement. On October 31, 2022, the date set for trial on the charges in the first indictment (23CO0025), the parties did reach a plea agreement. Appellant entered a guilty plea to charges of having weapons under disability, aggravated trafficking in drugs, and three counts of aggravated possession of drugs (one felony of the third degree and two felonies of the fifth degree). However, Appellant did not plead guilty to the forfeiture specifications contained in the first indictment, instead electing to proceed to a bench trial on these. After holding a hearing, the court found that the money was subject to forfeiture.
{¶7} On February 14, 2023, the court sentenced Appellant to eighteen months of incarceration for weapons disability, thirty months for aggravated trafficking in drugs, twenty-four months for the first count of aggravated possession, ten months for the second count of aggravated possession, and ten months for the final count of aggravated possession, to run concurrently.
{¶8} On February 28, 2023, the parties resolved the charges contained in the second indictment, case number 23CO0024, through a second plea agreement. In that case, Appellant pleaded guilty to one count of aggravated trafficking in drugs and three counts of aggravated possession of drugs (one felony of the third degree and two felonies of the fifth degree). Unlike the prior case, Appellant also entered a guilty plea to the forfeiture specification attached to two of the offenses.
{¶9} On March 3, 2023, Appellant was sentenced in case number 23CO0024 to thirty months of incarceration for aggravated trafficking in drugs, nine months for aggravated possession of drugs, fifteen months for his second count of aggravated possession of drugs, and nine months for the third count of aggregated possession of drugs. The court ordered the first and third counts to run consecutive to one another and concurrent to the second count. Although the court did not provide an aggregate total, the total sentence amounts to thirty-nine months of incarceration, to run consecutive to the sentence Appellant received for his first plea in 23CO0025.
{¶10} In total, Appellant was sentenced to thirty-nine months in prison in 23CO0024 and thirty months in 23CO0025, to run consecutively, for an aggregate total of sixty-nine months of incarceration (five years and nine months).
{¶11} On April 24, 2023, Appellant filed a motion seeking a correction for his jail time credit. On the same day this motion was filed, Appellant filed a delayed notice of appeal in both cases which this Court granted. While the appeal was pending, the trial court granted Appellant's motion for jail time credit and awarded additional days of credit in both cases.
{¶12} On June 2, 2023, the court reporter sought an extension for filing the trial transcript. It was granted by the trial court. Appellant sought and received two extensions in which to file a brief before moving to consolidate the appeals in case numbers 23CO0024 and 23CO0025, which was granted. The state then sought a thirty-day extension to file its brief.
General Law
{¶13} 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, 014-Ohio-4153, ¶ 18 (7th Dist.), citing Strickland v. Washington, 466 U.S. 668, (1984); State v. Williams, 2003-Ohio-4396, ¶ 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, 2015-Ohio-3325, ¶ 11 (7th Dist.), citing Strickland at 694. The appellant must affirmatively prove the alleged prejudice occurred. Id. at 693.
{¶14} 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, 2001 WL 741571 (7th Dist.) (June 29, 2001), citing State v. Calhoun, 86 Ohio St.3d 279, 289, (1999).
ASSIGNMENT OF ERROR
The trial court erred in allowing a conviction despite ineffective assistance of trial counsel.
{¶15} Appellant contends that his trial counsel was ineffective for failing to obtain a global plea agreement resolving all pending charges contained in the two indictments. We begin by noting that while no bright-line rule exists, absent extraordinary facts, trial counsel is not deficient for failing to seek a global plea resolution. Nonetheless, this record clearly establishes that the parties meaningfully attempted to reach a global plea agreement, but ultimately could not reach a final agreement addressing both matters.
{¶16} The record reveals that defense counsel requested a continuance after the filing of the second indictment to "perhaps reach a global resolution in all of these cases." (4/4/22 Pretrial Conf., p. 3.) In a May 19, 2022 pretrial conference, the parties requested an additional continuance to continue their negotiations. The prosecutor confirmed that the parties were in the midst of an "effort to resolve all outstanding matters involving [Appellant]." (5/19/22 Pretrial Conf., p. 3.) Several pretrials were held wherein the parties again requested additional time to continue their negotiations. Each time, the parties averred they were close to reaching a global agreement. Then, on October 31, 2022, the date scheduled for trial regarding the first set of charges, the parties informed the trial court they were able to reach a plea agreement as to these charges. However, they could not reach a full resolution of both cases at that time. This record reveals that counsel's ultimate failure to obtain a global plea agreement after aggressively attempting to secure such an agreement cannot be called deficient representation.
{¶17} Appellant also argues that counsel was ineffective for failing to request a PSI be prepared to preserve his eligibility for judicial release. We have previously held that "[a] trial court need not order a presentence report pursuant to Crim.R. 32.2(A) in a felony case when probation is not granted." State v. Palmer, 2006-Ohio-749, ¶ 105 (7th Dist.), citing State v. Cyrus, 63 Ohio St.3d 164, (1992), syllabus. Appellant pleaded guilty to several serious felony charges. Trial counsel's decision to not seek a PSI under these circumstances is not ineffective. Id.
{¶18} Regardless, as noted by the state, the Eleventh District has held that counsel's failure to request a PSI does not amount to ineffective assistance of counsel:
The rule requiring the court to obtain a presentence investigation report before imposing community control sanctions for a felony offense does not require that the presentence investigation report actually be completed prior to sentencing. State v. Digrino (1995), 107 Ohio App.3d 336, 339, 668 N.E.2d 965. Thus, a presentence investigation report could have been
completed after appellant's sentence, but prior to any early judicial release hearing. Id. at 341, 668 N.E.2d 965.State v. Galloway, 2002-Ohio-4359, ¶ 33 (11th Dist.).
{¶19} Appellant has failed to establish deficient performance by his counsel on any ground. He has failed to raise even the first prong of the Strickland test and, as such, his sole assignment of error is without merit and is overruled.
Conclusion
{¶20} Appellant argues that he received ineffective assistance of counsel during his trial court proceedings as his counsel did not reach a global plea agreement with the state and failed to request preparation of a presentence investigation report. For the reasons provided, Appellant's arguments are without merit and the judgment of the trial court is affirmed.
Hanni, J. concurs.
Dickey, J. concurs.
For the reasons stated in the Opinion rendered herein, Appellant's 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 Columbiana 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.