[Cite as State v. McCall,
2020-Ohio-270.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
Nos. 108304, 108306, and 108307
v. :
CHARLES C. MCCALL, ET AL. :
Defendants-Appellants. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: January 30, 2020
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-18-631046-A, CR-18-632000-A, and CR-18-632000-B
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Jeffrey Maver, Assistant Prosecuting
Attorney, for appellee.
L. Bryan Carr, for appellants.
KATHLEEN ANN KEOUGH, P.J.:
Defendants-appellants, Charles McCall (“Charles”) and Kelley McCall
(“Kelley”) appeal from the trial court’s judgments rendered after their guilty pleas.
Finding no merit to the appeal, we affirm.
I. Background
In August 2018, Charles was indicted in Cuyahoga C.P. No. CR-18-
631046-A on one count of trafficking in counterfeit controlled substances in
violation of R.C. 2925.37, a fifth-degree felony.
Later that month, he and his mother, Kelley, were indicted in
Cuyahoga C.P. No. CR-18-632000 (a reindictment of Cuyahoga C.P. No. CR-18-
628858) on two counts of trafficking in violation of R.C. 2925.03, first-degree
felonies; two counts of drug possession in violation of R.C. 2925.11, first-degree
felonies; and one count of possessing criminal tools in violation of R.C. 2923.24, a
fifth-degree felony. Charles was also indicted on one count of having weapons while
under disability in violation of R.C. 2923.13, a third-degree felony. The counts
included major drug offender, firearm, and forfeiture specifications.
In January 2019, as part of a plea agreement, Charles pleaded guilty
in CR-18-631046 to one count of trafficking in counterfeit controlled substances, a
felony of the fifth degree. In CR-18-632000, he pled guilty to one count of
trafficking, a first-degree felony, with a one-year firearm and forfeiture
specifications. At the plea hearing, the prosecutor told the judge that “part and
parcel with this plea is also the agreed recommended sentence of a four-year prison
term” regarding the trafficking offense. Prior to accepting Charles’s plea, the trial
judge confirmed with Charles that he understood that the court was not bound by
the recommended sentence and was free to impose a different sentence. Charles
told the judge that he had “just now found that out” when the court so advised him
but it did not change his mind about pleading guilty.
Kelley pleaded guilty in CR-18-632000 to drug possession, a third-
degree felony, with forfeiture specifications. The remaining counts and
specifications with respect to both Charles and Kelley were nolled.
On February 28, 2019, the parties appeared for sentencing. Kelley’s
counsel told the judge that the offenses, which occurred at Kelley’s residence, “were
fueled by a little bit of a drug issue that Miss McCall had at the time.” The trial court
sentenced Kelley to five years community control, and told Kelley that as a condition
of her community control, she could not go or work anywhere “where drugs or
alcohol are sold, served, or used” because “drugs and alcohol obviously add to
addictions of people.” The judge informed Kelley, who worked as a manager at a
restaurant where alcohol was served, that she had 30 days to get a new full-time job,
or two part-time jobs.
With respect to Charles, both defense counsel and the prosecutor
asked the judge to impose the agreed-upon four-year sentence in CR-18-632000.
However, the judge sentenced Charles to eight years incarceration on the trafficking
charge and one year on the firearm specification, for an aggregate term of nine years.
The judge sentenced him in CR-18-631046 to one year in prison, to be served
concurrently with the sentence in CR-18-632000. The judge also ordered Charles
and Kelley to forfeit a gun and digital scale to the state.
On March 6, 2019, the trial court entered a nunc pro tunc entry
correcting Charles’s sentence in CR-18-632000 to reflect that he was sentenced to
six years incarceration on the underlying charge and one year on the firearm
specification, for an aggregate sentence of seven years, to run concurrent with the
sentence imposed in CR-18-631046. This appeal followed.
II. Law and Analysis
A. Charles’s Sentence
In his first assignment of error, Charles contends that the trial court
abused its discretion in rejecting the agreed-upon four-year recommended sentence.
We begin by noting that a trial court is not required to accept an
agreed-upon sentence. State v. Patrick, 163 Ohio App.3d 666,
2005-Ohio-5332,
839 N.E.2d 987, ¶ 26 (8th Dist.). The trial court in this case was very clear that it
was not bound by the recommended sentence, and Charles confirmed before he
pleaded guilty that he so understood. Accordingly, the fact that the parties agreed
upon a four-year recommended sentence is not relevant to our analysis.
Appellate review of felony sentences is governed by R.C. 2953.08,
which provides that when reviewing felony sentences, this court may increase,
reduce, modify a sentence, or vacate and remand for resentencing if we clearly and
convincingly find that the record does not support the sentencing court’s statutory
findings, if applicable, or the sentence is contrary to law. R.C. 2953.08(G)(2). A
sentence is contrary to law if (1) the sentence falls outside the statutory range for the
particular degree of offense, or (2) the trial court failed to consider the purposes and
principles of felony sentencing set forth in R.C. 2929.11 and the sentencing factors
in R.C. 2929.12. State v. McGowan, 8th Dist. Cuyahoga No. 105806, 2018-Ohio-
2930, ¶ 9.
Charles contends that his sentence is contrary to law because the trial
court did not consider the relevant statutory factors. He notes that the trial court
did not set forth any reasons during the sentencing hearing regarding why the
agreed-upon sentence would not be appropriate, and that the sentencing entry does
not reference R.C. 2929.12. Although the trial court did not specifically reference
the relevant statutory factors at sentencing, its journal entry imposing sentence
states that it “considered all required factors of the law” and, further, that “prison is
consistent with the purpose of R.C. 2929.11.” The court’s statement that it
considered the required statutory factors, without more, is sufficient to fulfill its
obligation under the sentencing statutes. State v. Kamleh, 8th Dist. Cuyahoga No.
97092, 2012-Ohio-2061, ¶ 61, citing State v. Payne,
114 Ohio St.3d 502, 2007-Ohio-
4642,
873 N.E.2d 306, ¶ 18. Charles’s sentence is also within the statutory range for
a first-degree felony. Accordingly, the sentence is not contrary to law.
And despite Charles’s assertion otherwise, the record supports the
trial court’s sentence. Charles appears to argue that the sentence is too harsh
because the parties agreed upon a four-year recommended sentence, he apologized
for his offenses, and he had only one prior adult felony offense. But Charles’s
sentence is within the statutory range for a first-degree felony, so the severity of the
sentence is not a basis for seeking relief. State v. Akins, 8th Dist. Cuyahoga No.
99478, 2013-Ohio-5023, ¶ 11.
Furthermore, as the trial court found at the sentencing hearing,
Charles’s drug trafficking offenses were serious and impacted the community, and
he was charged in two more felony cases while his first case was pending before the
court. Charles also apparently lacked candor with the court. The judge found, and
Charles agreed, that the letters of support to the judge by various of Charles’s friends
contained details that were not entirely true. The judge also told Charles that she
did not “believe your whole story today either.” In light of this record, we cannot
find by clear and convincing evidence that the record does not support the sentence.
The first assignment of error is overruled.
The state asserts that having initially imposed a nine-year sentence,
the trial court had no authority to reduce Charles’s sentence to seven years.
However, the state did not cross-appeal the trial court’s corrected sentence nor file
a motion for leave to appeal this issue. See App.R. 4(B) and 5(C). Accordingly, that
issue is not before this court and we decline to address it.
B. Ineffective Assistance of Counsel
In his second assignment of error, Charles contends that he was not
afforded effective assistance of counsel. He argues that counsel was deficient
because he (1) did not argue that Charles did not possess any drugs and therefore
could not have trafficked drugs, (2) failed to advise Charles that the court was not
bound by the agreed-upon recommended sentence; (3) did not make Charles aware
that the court could impose a mandatory fine; and (4) did not show Charles the
discovery provided to the defense by the state of Ohio.
To establish ineffective assistance of counsel, a defendant must show
that his trial counsel’s performance was seriously flawed and deficient, and the
result of the defendant’s trial or legal proceedings would have been different had
defense counsel provided proper representation. Strickland v. Washington, 466
U.S. 668,
104 S.Ct. 2052,
80 L.Ed.2d 674 (1984).
However, ‘“a claim for ineffective assistance of counsel is waived by a
guilty plea, unless the ineffective assistance caused the guilty plea to be
involuntary.”’ State v. Hudson, 8th Dist. Cuyahoga No. 96435, 2011-Ohio-6272,
¶ 24, quoting State v. Hicks, 8th Dist. Cuyahoga No. 90804,
2008-Ohio-6284, ¶ 24.
To prove a claim of ineffective assistance of counsel after having pleaded guilty, a
defendant “must demonstrate that there is a reasonable probability that, but for
counsel’s errors, [he] would not have pled guilty and would have insisted on going
to trial.” State v. Szakacs, 8th Dist. Cuyahoga No. 92230,
2009-Ohio-5480, ¶ 15,
citing Hill v. Lockhart,
474 U.S. 52, 58-59,
106 S.Ct. 366,
88 L.Ed.2d 203 (1985).
Charles makes no such showing. Although he contends that counsel
did not advise him prior to his plea that the court was not bound by the four-year
recommended sentence, the record reflects that before pleading guilty, Charles told
the court he was aware that a four-year sentence was not guaranteed but that fact
did not change his decision to plead guilty. And Charles makes no argument that
counsel’s alleged failure to advise him of the mandatory fine or show him discovery
provided by the state somehow affected his decision to plead guilty. Likewise,
Charles does not argue that counsel’s alleged failure to argue that he did not possess
any drugs and therefore could not have trafficked drugs affected his decision to
plead guilty. This is presumably because at the plea hearing, after acknowledging
that his counsel and the prosecutor had engaged in a “huge negotiation” that
resulted in a plea agreement that reduced his maximum prison exposure from
twenty-seven years to eleven years, with the state agreeing to recommend four years,
Charles told the court that he was satisfied with his counsel.
In short, Charles fails to demonstrate that counsel’s performance was
deficient and caused him to enter a guilty plea that he would not otherwise have
made. The second assignment of error is overruled.
C. Condition of Community Control
In the third assignment of error, Kelley contends that the trial court’s
requirement as a condition of her community control that she not work in any
location where alcohol is served was overbroad and unreasonable.
Generally, a trial court has broad discretion when deciding and
imposing the terms and conditions of community control. State v. Patton, 8th Dist.
Cuyahoga No. 103737, 2016-Ohio-4867, ¶ 18, citing Lakewood v. Hartman,
86 Ohio
St.3d 275, 277,
714 N.E.2d 902 (1999). Accordingly, we review the imposition of
these terms and conditions for an abuse of discretion. State v. Talty,
103 Ohio St.3d
177,
2004-Ohio-4888,
814 N.E.2d 1201, ¶ 10. A court abuses its discretion if its
decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore,
5
Ohio St.3d 217, 219,
450 N.E.2d 1140 (1983).
Probation “conditions cannot be overly broad so as to unnecessarily
impinge upon the probationer’s liberty.” State v. Jones, 49 Ohio St.3d 51, 52,
550
N.E.2d 469 (1990). Appellate courts evaluate the reasonableness of probation
conditions using the three-prong test articulated in Jones. Under the test, courts
should:
Consider whether the condition (1) is reasonably related to
rehabilitating the offender, (2) has some relationship to the crime of
which the offender was convicted, and (3) relates to conduct which is
criminal or reasonably related to future criminality and serves the
statutory ends of probation.
Id. at 53; State v. Dorsey, 8th Dist. Cuyahoga No. 104229,
2016-Ohio-8315, ¶ 4.
Kelley contends that her conviction “had absolutely nothing to do
with” alcohol and by imposing such a condition, the trial court effectively ruled that
she cannot work in the restaurant business at all. Thus, she contends the prohibition
is overbroad and unreasonable.
We do not agree that the trial court abused its discretion by ordering
that Kelley not work anywhere where alcohol is served. Kelley was convicted of drug
possession, and at the sentencing hearing, Kelley’s counsel admitted that Kelley’s
offense arose out of her drug addiction. Alcohol, like drugs, is an intoxicant. Given
the reasonable relationship between Kelley’s drug addiction, the drug possession
offense, and the prohibition on working anywhere alcohol is served, we find no error
in the imposition of the condition.
We disagree with Kelley’s assertion that the condition effectively
prohibits her from working in the restaurant industry. The condition is not a
complete prohibition on working in restaurants; it allows Kelley to work in
restaurants that do not serve alcohol. Furthermore, although Kelley had to quit her
current employment to comply with the condition, the judge gave her the flexibility
of finding either one full-time job or two part-time jobs within 30 days. We find no
abuse of discretion. The third assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellants costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendants’
convictions having been affirmed, any bail pending is terminated.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, PRESIDING JUDGE
MICHELLE J. SHEEHAN, J., and
MARY EILEEN KILBANE, J., CONCUR
