[Cite as State v. Stamper,
2016-Ohio-433.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CHAMPAIGN COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2014-CA-30
:
v. : Trial Court Case No. 2013-CR-366
:
BOBBY LEE STAMPER : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 5th day of February, 2016.
...........
KEVIN TALEBI, Atty. Reg. No. 0069198, Champaign County Prosecutor, 200 North Main
Street, Urbana, Ohio 43078
Attorney for Plaintiff-Appellee
ENRIQUE RIVERA-CEREZO, Atty. Reg. No. 0085053, 61 North Dixie Drive, Suite B,
Vandalia, Ohio 45377
Attorney for Defendant-Appellant
.............
WELBAUM, J.
{¶ 1} Defendant-Appellant, Bobby Lee Stamper, pled guilty to two counts of
violation of a protection order and was sentenced to community control sanctions,
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including electronic monitoring. After Stamper violated the terms of his electronic
monitoring, the trial court revoked community control and sentenced Stamper to eight
months in prison on each count, with the terms to be served consecutively, for a total term
of imprisonment of 16 months.
{¶ 2} Stamper’s appellate counsel filed a brief pursuant to Anders v. California, 386
U.S. 738,
87 S.Ct. 1396,
18 L.Ed.2d 493 (1967), stating that he could find no meritorious
issues to pursue on appeal. Counsel raised two potential assignments of error: (1) that
Stamper’s sentence was not proportional to his community control violations; and (2) that
Stamper received ineffective assistance from his original trial counsel. In an entry filed
on May 14, 2015, we informed Stamper that his attorney had filed an Anders brief. We
granted Stamper 60 days from that date to file a pro se brief, but no pro se brief was filed.
{¶ 3} We subsequently ordered Stamper’s appellate counsel to file the transcript
of the sentencing hearing, and indicated we would grant appellate counsel time to file a
supplemental brief after the transcript was filed. The transcript was filed on November
10, 2015, and on November 17, 2015, we ordered Stamper to file a supplemental brief
within twenty days either raising assignments of error in connection with the plea and
sentencing agreement or advising the court that no non-frivolous issues existed.
Counsel for Stamper recently informed the court no further brief would be filed.
Accordingly, this matter is now ripe for disposition.
{¶ 4} We have independently reviewed the record, including the transcript of the
sentencing hearing, pursuant to Penson v. Ohio, 488 U.S. 75,
109 S.Ct. 346,
102 L.Ed.2d
300 (1988), and we agree with appellate counsel that there are no potentially meritorious
issues for review.
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I. Proportionality of the Sentence
{¶ 5} In December 2013, Stamper was indicted for three counts of having violated
a protection order, in violation of R.C. 2919.27(A)(1),(B)(3). The alleged violations
occurred on September 11, 21, and 23, 2013, and were fifth-degree felonies. On
January 7, 2014, Stamper was released on his own recognizance, with a special condition
that he not have any contact with, or be in the presence of Angie Stamper or minors, S.S.
and D.S.
{¶ 6} Subsequently, on February 21, 2014, Stamper pled guilty to counts two and
three. In exchange, the State agreed to dismiss count one, and further agreed to
recommend non-residential community control if the presentence investigation report did
not reveal additional criminal records not previously known or discussed with the State.
Certain other conditions were mentioned.
{¶ 7} The transcript of the sentencing hearing, which took place on April 1, 2014,
indicates that the trial court specifically informed Stamper that if he violated community
control provisions, the court would impose eight months in prison on count two and eight
months on count three, with the terms to be served consecutively, for a total term of 16
months. Transcript of April 1, 2014 sentencing hearing, p. 26. In the sentencing entry
that followed, the court imposed a three-year term of community control, including
sanctions such as anger management counseling and 75 hours of community service.
The court further ordered Stamper to reside at 1336 Beverly Street in Springfield, Ohio,
and not move from that address without written permission from the court. In addition,
the court ordered that Stamper be placed under house arrest and be subject to electronic
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monitoring, with exceptions for travel to and from work or to fulfill community service.
Finally, the court ordered that Stamper could not travel to or be present in Champaign
County, Ohio, as that is where the victims resided. The house arrest and electronic
monitoring were to last until February 17, 2015, at which time they would be reviewed for
termination.
{¶ 8} In the sentencing entry, the court again stated that if Stamper violated the
terms of community control, the court would impose eight months of imprisonment on
count one and eight months of imprisonment on count two, for a total prison term of 16
months. In the entry, the court made specific findings under R.C. 2929.14(C)(4),
concerning imposition of consecutive sentences.
{¶ 9} Problems arose almost immediately. On April 4, 2014, Stamper’s probation
officer notified the court that Stamper had displayed a confrontational attitude about
having to live at 1336 Beverly St., and that Stamper had demanded that he be permitted
to live at another residence. As a result, the court held a hearing on April 9, 2014. At
that time, based on Stamper’s testimony, the court ordered that Stamper be permitted to
move to a residence located on Kenton Street in Springfield. The court maintained the
same conditions as to electronic monitoring, and also ordered Stamper to write a letter of
apology to his probation officer. Finally, the court indicated that Stamper would be jailed
if he again displayed a confrontational or disrespectful attitude with probation officers or
the court.
{¶ 10} On June 19, 2014, a notice of supervision violation was filed, based on
allegations that Stamper failed to follow the rules of electronic monitoring on June 14,
2014. After Stamper contested the probable cause for the violation, the court held a
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hearing on July 14, 2014, and heard testimony from Tri-County Regional Jail Sergeant
Richard Wiskirchen, Parole Officer Jeanette Hogan, and Stamper. After hearing the
evidence, the trial court concluded that Stamper was guilty of having failed to follow the
rules of electronic monitoring on June 14, 2014. The court also concluded that Stamper
would be confined as a result of the violation. However, the court continued disposition
until September 5, 2014, in order for the court to decide where confinement would occur,
i.e., either locally or at the state level, and to allow Stamper to obtain medical treatment
for a back injury he had recently sustained. The court also stated that during this period,
“the Court is going to consider what should happen to you and for how long.” July 14,
2014 Transcript of CCV and Merits Hearing, p. 45.
{¶ 11} On August 26, 2014, the trial court was notified of additional community
control violations that had occurred on August 8, twice on August 9, and on August 17,
2014. On those occasions, the battery on Stamper’s electronic monitor was allowed to
expire without a charge, and the State was not able to ascertain Stamper’s whereabouts.
After Stamper challenged the probable cause for the allegations, the trial court held
another hearing on September 5, 2014. At this time, the court heard testimony from Sgt.
Wiskirchen and Stamper. After hearing the evidence, the court found Stamper guilty of
the four alleged August violations.
{¶ 12} At the September 2014 hearing, the court revoked Stamper’s community
control and imposed 8 months on count one and eight months on count two, with the
terms to run consecutive to each other, for a total of 16 months in prison. At the hearing
and in a journal entry filed on September 5, 2014, the trial court made specific findings
regarding the imposition of consecutive sentences. Stamper timely appealed from the
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entry revoking community control and imposing sentence.
{¶ 13} As was noted, Stamper’s appellate counsel raised the potential issue of
whether Stamper’s sentence was proportionate to the violations that caused revocation
of community control. Regarding community control sanctions, R.C. 2929.15(B)
provides that:
(1) If the conditions of a community control sanction are violated or if
the offender violates a law or leaves the state without the permission of the
court or the offender's probation officer, the sentencing court may impose
upon the violator one or more of the following penalties:
(a) A longer time under the same sanction if the total time under the
sanctions does not exceed the five-year limit specified in division (A) of this
section;
(b) A more restrictive sanction under section 2929.16, 2929.17, or
2929.18 of the Revised Code;
(c) A prison term on the offender pursuant to section 2929.14 of the
Revised Code.
(2) The prison term, if any, imposed upon a violator pursuant to this
division shall be within the range of prison terms available for the offense
for which the sanction that was violated was imposed and shall not exceed
the prison term specified in the notice provided to the offender at the
sentencing hearing pursuant to division (B)(2) of section 2929.19 of the
Revised Code. The court may reduce the longer period of time that the
offender is required to spend under the longer sanction, the more restrictive
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sanction, or a prison term imposed pursuant to this division by the time the
offender successfully spent under the sanction that was initially imposed.
{¶ 14} R.C. 2929.19(B)(4) also provides that:
If the sentencing court determines at the sentencing hearing that a
community control sanction should be imposed and the court is not
prohibited from imposing a community control sanction, the court shall
impose a community control sanction. The court shall notify the offender
that, if the conditions of the sanction are violated, if the offender commits a
violation of any law, or if the offender leaves this state without the
permission of the court or the offender's probation officer, the court may
impose a longer time under the same sanction, may impose a more
restrictive sanction, or may impose a prison term on the offender and shall
indicate the specific prison term that may be imposed as a sanction for the
violation, as selected by the court from the range of prison terms for the
offense pursuant to section 2929.14 of the Revised Code.
{¶ 15} In State v. Brooks, 103 Ohio St.3d 134,
2004-Ohio-4746,
814 N.E.2d 837,
the Supreme Court of Ohio held that under R.C. 2929.19(B)(5) [now (B)(4)], “a trial court
sentencing an offender to a community control sanction is required to deliver the
statutorily detailed notifications at the sentencing hearing.” Id. at ¶ 15. The court also
stressed that “notification given in a court's journal entry issued after sentencing does not
comply with R.C. 2929.19(B)(5).” Id. at ¶ 18. In addition, the court held in Brooks that:
Due to the particular nature of community control, any error in notification
cannot be rectified by “renotifying” the offender. When an offender violates
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community control conditions and that offender was not properly notified of
the specific term that would be imposed, an after-the-fact reimposition of
community control would totally frustrate the purpose behind R.C.
2929.19(B)(5) notification, which is to make the offender aware before a
violation of the specific prison term that he or she will face for a violation.
Consequently, where no such notification was supplied, and the offender
then appeals after a prison term is imposed under R.C. 2929.15(B), the
matter must be remanded to the trial court for a resentencing under that
provision with a prison term not an option.
Id. at ¶ 33.
{¶ 16} When we issued our order for the sentencing transcript to be filed, we were
concerned about whether Stamper had been properly notified of the specific prison term
that could be imposed in the event of a violation. However, the sentencing transcript
indicates that Stamper was specifically informed of the prison terms that could be
imposed for a violation of community control, and this is no longer an issue.
{¶ 17} Concerning the issue of whether the sentence for the violations is
proportionate, we find no issue of arguable merit. After the initial violation occurred, the
trial court continued the matter, and Stamper then violated community control provisions
four more times before the next hearing. The instances in August 2014 also involved
situations where Stamper’s whereabouts could not be ascertained. The transcript of the
original sentencing hearing indicates that the original crimes charged were violations of a
civil protection order, and that the trial court was very concerned about Stamper’s
potential intrusion into the lives of the alleged victims.
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{¶ 18} Stamper’s crimes were fifth-degree felonies, and carried a potential
sentence of six to 12 months. R.C. 2929.14(A)(5). The eight-month sentences were
well within this range, and Stamper was specifically warned that violation of community
control would result in the sentence that actually was imposed. As we noted in State v.
Adams, 2d Dist. Champaign No. 09-CA-37, 2011-Ohio-2562, “[t]he sentence was within
the statutory range of penalties for the offenses and consistent with the original sentence
imposed. Therefore, … an assignment of error about the sentencing issue would be
unsuccessful.” Id. at ¶ 8.
II. Ineffective Assistance of Counsel
{¶ 19} The second issue raised by Stamper’s appellate counsel is whether trial
counsel provided ineffective assistance because his strategy was not effective. In State
v. Mitchell, 2d Dist. Montgomery No. 21957, 2008-Ohio-493, we noted that:
We review the alleged instances of ineffective assistance of trial
counsel under the two prong analysis set forth in Strickland v. Washington
(1984), 466 U.S. 668,
104 S.Ct. 2052,
80 L.Ed.2d 674, and adopted by the
Supreme Court of Ohio in State v. Bradley (1989), 42 Ohio St.3d 136,
538
N.E.2d 373. Pursuant to those cases, trial counsel is entitled to a strong
presumption that his or her conduct falls within the wide range of reasonable
assistance. Strickland, 466 U.S. at 688. To reverse a conviction based
on ineffective assistance of counsel, it must be demonstrated that trial
counsel's conduct fell below an objective standard of reasonableness and
that his errors were serious enough to create a reasonable probability that,
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but for the errors, the result of the trial would have been different. Id.
Hindsight is not permitted to distort the assessment of what was reasonable
in light of counsel's perspective at the time, and a debatable decision
concerning trial strategy cannot form the basis of a finding of ineffective
assistance of counsel. State v. Cook (1992), 65 Ohio St.3d 516, 524-525,
605 N.E.2d 70.
Mitchell at ¶ 31.
{¶ 20} “A guilty plea waives the right to allege ineffective assistance of counsel,
except to the extent that the errors caused the plea to be less than knowing and
voluntary.” State v. Webb, 2d Dist. Montgomery No. 26198, 2015-Ohio-553, ¶ 15, citing
State v. Spates,
64 Ohio St.3d 269,
595 N.E.2d 351 (1992). (Other citation omitted.)
{¶ 21} Stamper pled guilty to the charges, and our review of the record, including
the plea hearing, reveals that before Stamper pled guilty, he was told of the charges, the
possible sentences, and the rights, both constitutional and not-constitutional, that he was
waiving when he pled guilty. At no time did Stamper indicate any confusion about any
of these matters, and he affirmatively stated that he understood these rights. Compare
Webb at ¶ 16 (rejecting potential assignment of error raising ineffective assistance of
counsel).
III. Conclusion
{¶ 22} Because the record fails to reveal any non-frivolous issues regarding
whether Stamper’s conviction and sentence were appropriate, the judgment of the trial
court is affirmed.
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.............
DONOVAN, J. and HALL, J., concur.
Copies mailed to:
Kevin Talebi
Enrique Rivera-Cerezo
Bobby Lee Stamper
Hon. Nick A. Selvaggio
