Opinion
Appellate Case No. 2016-CA-14
05-12-2017
STATE OF OHIO Plaintiff-Appellee v. TEVIN M. TEVIS Defendant-Appellant
ANTHONY E. KENDELL, by PAUL M. WATKINS, Atty. Reg. No. 0090868, Assistant Prosecuting Attorney, Miami County Prosecutor's Office, Safety Building, 201 West Main Street, Troy, Ohio 45373 Attorney for Plaintiff-Appellee KIRIAKOS KORDALIS, Atty. Reg. No. 0089697, 130 West Second Street, Ste. 1818, Dayton, Ohio 45402 Attorney for Defendant-Appellant
Trial Court Case No. 16-CR-202 (Criminal Appeal from Common Pleas Court)
OPINION
ANTHONY E. KENDELL, by PAUL M. WATKINS, Atty. Reg. No. 0090868, Assistant Prosecuting Attorney, Miami County Prosecutor's Office, Safety Building, 201 West Main Street, Troy, Ohio 45373 Attorney for Plaintiff-Appellee KIRIAKOS KORDALIS, Atty. Reg. No. 0089697, 130 West Second Street, Ste. 1818, Dayton, Ohio 45402 Attorney for Defendant-Appellant WELBAUM, J.
{¶ 1} Defendant-appellant, Tevin M. Tevis, appeals from his conviction in the Miami County Court of Common Pleas after he pled no contest to one count of possessing cocaine. In support of his appeal, Tevis contends his trial counsel rendered ineffective assistance by: (1) having minimal contact with him; (2) waiting for the State to make a plea offer before attempting to negotiate a plea agreement; and (3) negotiating his plea agreement at the last minute before trial. For the reasons outlined below, the judgment of the trial court will be affirmed.
Facts and Course of Proceedings
{¶ 2} On May 26, 2016, the Miami County Grand Jury returned an indictment charging Tevis with one count of trafficking cocaine in violation of R.C. 2925.03(A)(1) and (C)(4)(e), a second-degree felony, which included an attendant forfeiture specification of $285. Tevis was also charged with one count of second-degree-felony possession of cocaine in violation of R.C. 2925.11(A) and (C)(4)(d). Tevis pled not guilty to both charges.
{¶ 3} On June 17, 2016, a superseding indictment was filed charging Tevis with trafficking cocaine under R.C. 2925.03(A)(2) (preparation/distribution) as opposed to R.C. 2925.03(A)(1) (sell/offer to sell). The superseding indictment also included the original forfeiture specification and possession of cocaine charge. Once again, Tevis pled not guilty to the charges in the superseding indictment and prepared for trial.
{¶ 4} At the final pretrial conference of August 8, 2016, Tevis's counsel advised the trial court that the State had yet to make any plea offers. Two weeks later, on the date of trial, the State advised the trial court that it had offered to make a joint recommendation for a five-year prison sentence in exchange for Tevis's plea to the possession of cocaine charge. Tevis rejected the State's offer on the record and indicated that he wanted to proceed to trial.
{¶ 5} Despite its plea offer being rejected, the State thereafter advised the trial court that it was going to dismiss the trafficking charge and forfeiture specification and proceed only on the possession charge. Just prior to the jury being seated, Tevis's counsel asked the trial court for five minutes to negotiate with the State, indicating that the parties "may be on the cusp of something." Trans. (Aug. 23, 2016), p. 4. The trial court granted counsel's request, and a few minutes later, the parties advised the trial court that they had reached a plea agreement.
{¶ 6} Pursuant to the negotiated plea agreement, Tevis agreed to plead no contest to possessing cocaine as charged in the indictment in exchange for the State agreeing to jointly recommend a four-year mandatory prison sentence. The parties also stipulated that Tevis would receive 154 days of jail time credit and that Tevis would waive a presentence investigation and be sentenced immediately that day.
{¶ 7} In light of this information, the trial court conducted the necessary Crim.R. 11 plea colloquy, accepted Tevis's no contest plea, and found him guilty of the possession charge. The trial court then sentenced Tevis to the recommended mandatory four years in prison that included 154 days of jail time credit. The trial court waived the mandatory fine associated with Tevis's offense, but ordered Tevis to pay court costs and $125 in restitution for his drug testing. The trial court also suspended Tevis's driver's license for a period of six months.
{¶ 8} Tevis now appeals from his conviction, raising one assignment of error for review.
Assignment of Error
{¶ 9} Tevis's assignment of error is as follows:
MR. TEVIS RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.
{¶ 10} Under his sole assignment of error, Tevis contends that he received ineffective assistance of counsel because his trial counsel: (1) had minimal contact with him; (2) waited for the State to make a plea offer before attempting to negotiate a plea agreement; and (3) negotiated his plea agreement just minutes before trial. Tevis maintains that his chances of receiving a more favorable plea agreement would have increased had his trial counsel started engaging in plea negotiations with the State earlier.
{¶ 11} We review alleged instances of ineffective assistance of trial counsel under the two-prong analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which has been adopted by the Supreme Court of Ohio in State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Pursuant to those cases, in order to prevail on an ineffective assistance claim, Tevis must show that his trial counsel rendered deficient performance and that counsel's deficient performance prejudiced him. Strickland at paragraph two of the syllabus; Bradley at paragraph two of the syllabus.
{¶ 12} To establish deficient performance, Tevis must show that his trial counsel's performance fell below an objective standard of reasonable representation. Strickland at 688; Bradley at 142. To establish prejudice, Tevis must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204, citing Strickland at 687-688, 694; Bradley at paragraph two of the syllabus. The failure to make a showing of either deficient performance or prejudice defeats a claim of ineffective assistance of counsel. Strickland at 697.
{¶ 13} Trial counsel is entitled to a strong presumption that his or her conduct falls within the wide range of reasonable assistance. Id. at 688. "The adequacy of counsel's performance must be viewed in light of all of the circumstances surrounding the trial court proceedings." State v. Jackson, 2d Dist. Champaign No. 2004-CA-24, 2005-Ohio-6143, ¶ 29, citing Strickland. "Hindsight is not permitted to distort the assessment of what was reasonable in light of counsel's perspective at the time." State v. Cook, 65 Ohio St.3d 516, 524-525, 605 N.E.2d 70 (1992), citing Strickland at 687-689. "[A] debatable decision concerning trial strategy cannot form the basis of a finding of ineffective assistance of counsel." State v. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964, ¶ 37 (2d Dist.), citing Strickland at 689. (Other citation omitted.)
{¶ 14} As previously noted, Tevis first claims that his trial counsel rendered ineffective assistance because counsel only had minimal contact with him. However, not only is there nothing in the record supporting this claim, but Tevis's own statements at the plea hearing prove otherwise and further establish that Tevis was satisfied with his trial counsel's performance. This is reflected in the following discussion that Tevis had with the trial court:
THE COURT: Do you feel you've had enough time to talk to your lawyer about going ahead with this no contest plea today?
MR. TEVIS: Yeah. Yeah, I do.Trans. (Aug. 23, 2016), p. 12-13.
THE COURT: Has your lawyer talked to you about this case and has your lawyer answered all your questions?
MR. TEVIS: Yes, he has. He has.
THE COURT: Good. Has he gone over this felony two Cocaine Possession charge with you and discussed that with you?
MR. TEVIS: Yes, he has.
THE COURT: And are you satisfied with the advice your attorney has given to you?
MR. TEVIS: Yeah. He's pretty—pretty blunt (inaudible), so I can't say it's bad or it's good, it's just straightforward. So, yeah.
THE COURT: And so you feel like your attorney is doing a competent job on your behalf?
MR. TEVIS: I feel like he's doing the best he can.
THE COURT: Okay. Good. * * *
{¶ 15} Tevis once again indicated that he was satisfied with his trial counsel's performance after the plea colloquy:
THE COURT: Do you have any questions you want to ask your lawyer?
MR. TEVIS: No, he's answered all of them.
THE COURT: Good. Do you feel you've had enough time to think about the very important decision that you're making this morning?Id. at 21-22.
MR. TEVIS: Yeah. Yes, sir. I feel like I'm—my lawyer advised me to do what's best for me. Entering this plea is probably what is best for me, so.
THE COURT: Well, that's what you and he have to decide together and I think that's—and you ultimately make the—that decision, so.
MR. TEVIS: Right. Well, I mean he pretty much—it's—it's pretty much the choice—choice that I made. I mean, you know, I feel like I do make the decision, but, you know, together I guess we agree that's the best thing. * * *
{¶ 16} The foregoing portions of the record establish that Tevis believed his trial counsel sufficiently communicated with him, that he was satisfied with his counsel's performance, and that his counsel helped him make the best possible decision in this case. Accordingly, we find no merit in Tevis's claim that his trial counsel rendered ineffective assistance by having minimal contact with him. It should also be noted that " 'an attorney's advice to take a plea deal is not ineffective assistance of counsel.' " State v. Chatman, 2d Dist. Montgomery No. 25766, 2014-Ohio-134, ¶ 7, quoting State v. Shugart, 7th Dist. Mahoning No. 08 MA 238, 2009-Ohio-6807, ¶ 37.
{¶ 17} Tevis also contends that his trial counsel was ineffective in waiting for the State to make a plea offer and in negotiating his plea agreement at the last minute before trial. This, however, amounts to nothing more than trial strategy, which cannot form the basis of an ineffective assistance claim. Woullard, 158 Ohio App.3d 31, 2004-Ohio-3395, 813 N.E.2d 964 at ¶ 37, citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 674.
{¶ 18} We note that the record indicates the parties began negotiating before they appeared for trial, as the State advised the trial court on the day of trial that there had been "a previous offer made that if the defendant pled to the offense as charged, the State would jointly recommend a sentence of five years." Trans. (Aug. 23, 2016), p. 2. "The fact that a plea agreement was reached on the day scheduled for trial is not indicative of any lapse in representation, since experience shows us that is most often the moment when a plea agreement is accepted." State v. Jones, 7th Dist. Mahoning No. 09 MA 50, 2011-Ohio-2903, ¶ 23. Therefore, last minute plea negotiations are not only a regular practice among trial counsel, but in this case it proved to be an effective practice given that Tevis's counsel successfully negotiated the State down from recommending five years in prison to four years in prison with 154 days of jail time credit. As a result, because his trial counsel was able to negotiate a lesser sentence, Tevis has failed to demonstrate how his trial counsel's negotiation strategy fell below an objective standard of reasonable representation.
{¶ 19} Furthermore, we find Tevis also failed to demonstrate that he was prejudiced by his trial counsel's negotiation strategy, as it is pure speculation to conclude that Tevis would have received a more favorable plea agreement had his counsel started to negotiate with the State any earlier. Tevis also does not argue that the last minute nature of the negotiations affected his decision to plead no contest or pressured him to enter his plea. Rather, Tevis specifically advised the trial court on the record that he had sufficient time to make his decision to plead no contest. Trans. (Aug. 23, 2016), p. 21.
{¶ 20} Therefore, because Tevis failed to demonstrate that his trial counsel rendered deficient performance that resulted in prejudice, his ineffective assistance claim must fail. Accordingly, Tevis's sole assignment of error is overruled.
Conclusion
{¶ 21} Having overruled Tevis's sole assignment of error, the judgment of the trial court is affirmed. HALL, P.J. and FROELICH, J., concur. Copies mailed to: Anthony E. Kendell
Paul M. Watkins
Kiriakos Kordalis
Hon. Christopher Gee