[Cite as State v. Wilson,
2024-Ohio-5557.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
UNION COUNTY
STATE OF OHIO,
CASE NO. 14-23-41
PLAINTIFF-APPELLEE,
v.
ZACHARY ALLEN WILSON, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
CASE NO. 14-23-44
PLAINTIFF-APPELLEE,
v.
ZACHARY ALLEN WILSON, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
CASE NO. 14-24-13
PLAINTIFF-APPELLEE,
v.
ZACHARY ALLEN WILSON, OPINION
DEFENDANT-APPELLANT.
Case Nos. 14-23-41, 14-23-44 and 14-24-13
Appeals from Union County Common Pleas Court
Trial Court Nos. 22-CR-0224, 23-CR-0139 and 22-CR-0223
Judgments Affirmed
Date of Decision: November 25, 2024
APPEARANCES:
Alison Boggs for Appellant
Raymond Kelly Hamilton for Appellee
WILLAMOWSKI, P.J.
{¶1} Defendant-appellant Zachary Allen Wilson (“Wilson”) brings this
appeal from the judgment of the Court of Common Pleas of Union County. Wilson
claims that the trial court erred by considering facts outside the record when it
sentenced Wilson and that he was denied the effective assistance of counsel. For
the reasons set forth below, the judgments are affirmed.
Background
{¶2} On October 7, 2022, the Union County Grand Jury indicted Wilson on
two counts of vandalism in violation of R.C. 2909.05(A) and (B)(1)(b), felonies of
the fifth degree and the fourth degree. This was assigned the trial court case number
22-CR-0223 (“223”). On October 7, 2022, the Union County Grand Jury further
indicted Wilson on one count of sexual battery in violation of R.C. 2907.04(A), a
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Case Nos. 14-23-41, 14-23-44 and 14-24-13
felony of the fourth degree, one count of unlawful sexual conduct with a minor in
violation of R.C. 2907.04(A), (B)(1), a felony of the fourth degree, and one count
of gross sexual imposition in violation of R.C. 2907.05(A)(3), (C)(1), a felony of
the fourth degree. This was assigned the trial court case number 22-CR-0224
(“224”). A joint pretrial was held on November 16, 2022. At that time, the trial
court ordered that Wilson, having previously been found to be incompetent to stand
trial, be evaluated to determine his competency to stand trial. On March 29, 2023,
counsel for Wilson filed a motion for another competency evaluation as well a
written plea of not guilty by reason of insanity. The trial court granted the motion.
A competency hearing was held on May 23, 2023, and the trial court found him
competent.
{¶3} On June 2, 2023, the Union County Grand Jury indicted Wilson on 1)
tampering with evidence in violation of R.C. 2921.12(A), a felony of the third
degree, 2) vandalism in violation of R.C. 2909.05(B)(1)(b), a felony of the fifth
degree, 3) breaking and entering in violation of R.C. 2911.13(B), a felony of the
fifth degree, and 4) resisting arrest in violation of R.C. 2921.33(A), a misdemeanor
of the second degree. This case was assigned the trial court number of 23-CR-0139
(“139”). No motions regarding competency were filed in this case.
{¶4} On September 20, 2023, Wilson entered into a plea agreement in which
he would enter pleas of guilty in all three cases. In exchange, the State agreed to
dismiss the fifth degree count in case number 223. In case number 224 the State
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agreed to dismiss all counts except the sexual battery charge. In case number 139,
the State agreed to dismiss the vandalism charge. The trial court held a change of
plea hearing on September 22, 2023, and accepted the guilty pleas to the remaining
charges. As to case number 223, Wilson entered a guilty plea to vandalism for
tearing off strips from his inmate attire and flushing it down the toilet. Wilson also
entered a guilty plea to sexual battery in case number 224 for engaging in sexual
conduct with a minor while the minor was substantially impaired. In case number
139 Wilson entered a guilty plea to tampering with evidence for removing his ankle
monitor, to breaking and entering for breaking into a garage, and to resisting arrest
for running away from the police resulting in a pursuit which lasted approximately
20 minutes. After the trial court accepted the guilty pleas, it ordered a presentence
investigation report (“PSI”) and set the matter for sentencing.
{¶5} The trial court conducted the sentencing hearing on November 2, 2023.
At the hearing, the State presented evidence to show that Wilson knew what he was
doing was criminal and that he had no remorse in the forms of two different TikTok
videos made by Wilson. The first video was Wilson repeatedly saying “F*&k the
police”. The second video involved Wilson “rapping” about how he wanted to
engage in sexual conduct with his probation officer. The trial court then started
talking about the victim in this case and raised the issue of a second victim. The
trial court imposed the following sentences. In case number 223, the trial court
found that Wilson had been convicted of one count of vandalism, a felony of the
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fifth degree, and sentenced Wilson to a prison term of 12 months. In case number
224, the trial court found that Wilson had been convicted of one count of sexual
battery, a felony of the third degree. The trial court sentenced Wilson to a prison
term of 60 months and ordered that it be served consecutive to the sentence in case
number 223. In case number 139, the trial court found that Wilson had been
convicted of one count of tampering with evidence, a felony of the third degree, one
count of breaking and entering, a felony of the fifth degree, and one count of
resisting arrest, a misdemeanor of the second degree. The trial court sentenced
Wilson to an aggregate prison term of 30 months for these three offenses and
ordered that it be served consecutive to the sentences in cases numbered 223 and
224.1
{¶6} On December 22, 2023, Wilson filed a motion for leave to file delayed
appeals in cases number 224 and 139. This Court granted the motion for delayed
appeals on January 24, 2024. Case number 224 was assigned appellate number 14-
23-41 and case number 139 was assigned appellate number 14-23-44, with the cases
consolidated. On February 2, 2024, Wilson filed a motion for leave to file a delayed
appeal in case number 223. This Court granted that motion and assigned it case
1
The trial court ordered a sentence of 30 months in prison for tampering with evidence to be consecutive to
the other cases. The trial court then ordered a sentence of 12 months in prison for breaking and entering and
60 days in jail for resisting arrest with these sentences to be served concurrent to the tampering with evidence
conviction as well as the other cases.
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Case Nos. 14-23-41, 14-23-44 and 14-24-13
number 14-24-13. This case was consolidated with the two prior appeals. On appeal
Wilson raises the following assignments of error
First Assignment of Error
The trial court erred when it considered facts outside the record
and incorrectly made findings in all the cases that did not pertain
to all the cases.
Second Assignment of Error
[Wilson] received ineffective assistance of counsel when he pled
guilty in each case instead of pleading no contest so that he could
properly raise the competency finding on appeal.
Sentencing Considerations
{¶7} In the first assignment of error, Wilson claims that the trial court erred
by considering facts outside the record to impose the sentence. Under R.C.
2953.08(G)(2), an appellate court will only reverse a sentence “if it determines by
clear and convincing evidence that the record does not support the trial court’s
findings under relevant statutes or that the sentence is otherwise contrary to law.”
State v. Marcum, 2016-Ohio-1002. “[A]n appellate court’s authority to modify or
vacate a sentence is limited to situations in which it concludes that the record does
not support the sentencing court’s findings under certain specified statutes, not
including R.C. 2929.11 and 2929.12.” State v. Jones,
2020-Ohio-6729, ¶ 38. “A
sentence imposed within the statutory range is not contrary to law as long as the trial
court considered the purposes and principles of felony sentencing contained in R.C.
2929.11 and the sentencing factors contained in R.C. 2929.12.” State v. Paxson,
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Case Nos. 14-23-41, 14-23-44 and 14-24-13
2024-Ohio-2680, ¶ 7 (3d Dist.) quoting State v. Lane,
2022-Ohio-3775, ¶ 85 (3d
Dist.).
{¶8} Wilson argues that the trial court erred by considering an allegation that
he had previously engaged in sexual conduct with another minor victim. According
to Wilson, the trial court should not have considered this information as it was not
in the record or in the PSI. Additionally, Wilson claims that since the allegation had
never been tried before a court, consideration of it denies Wilson his standing of
being presumed innocent. This Court has previously considered the issue of
whether a trial court may consider allegations of other offenses which have not
resulted in a conviction during the sentencing phase of a case. In State v. Ropp
(2014-Ohio-2462 (3d Dist.)), Ropp entered a guilty plea to multiple felonies. Id. at
¶ 2. The trial court sentenced Ropp to an aggregate prison term of 11 years. Id. at
¶ 3. On appeal, Ropp claimed that the trial court erred when it allowed the State to
present evidence outside the record. Id. This Court held that the sentence imposed
by the trial court was not excessive and did not indicate a bias resulting from
consideration of the uncharged offenses. Id. at ¶ 7. The basis for the judgment was
based upon the following reasons.
{¶9} Historically, trial courts were permitted to consider hearsay evidence,
evidence of an offender’s criminal history, facts concerning dismissed charges and
offenses for which charges were not filed, but were discussed in the PSI. Id. at ¶ 4.
When the PSI contains information regarding offenses for which charges had not
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Case Nos. 14-23-41, 14-23-44 and 14-24-13
been filed, the Ohio Supreme Court has held that a trial court may consider the
alleged offenses at sentencing as part of the social history of the defendant. State v.
Cooey, 46 Ohio St.3d 20 (1989) superseded by constitutional amendment on other
grounds. The Supreme Court of the United States has also indicated that a
sentencing court may consider information outside the offense charged and those
facts as it is necessary to “determine the type and extent of punishment after the
issue of guilt has been determined.” Williams v. New York,
337 U.S. 241 at 247
(1949).
Highly relevant—if not essential—to his selection of an appropriate
sentence is the possession of the fullest information possible
concerning the defendant's life and characteristics. And modern
concepts individualizing punishment have made it all the more
necessary that a sentencing judge not be denied an opportunity to
obtain pertinent information by a requirement of rigid adherence to
restrictive rules of evidence properly applicable to the trial.
Id. “[T]he function of the sentencing court is to acquire a thorough grasp of the
character and history of the defendant before it.” State v. Burton,
52 Ohio St.2d 21,
23 (1977).
{¶10} Although the trial court may consider evidence of other offenses for
which no conviction occurred, the ability to do so is not unlimited. Ropp at ¶ 5.
“[W]e have recognized that a trial court is not vested with authority to consider
allegations of conduct that have not been adjudicated in a court of law.” State v.
Hartley,
2012-Ohio-4108, ¶ 33 (3d Dist.). “The trial court’s consideration cannot
indicate a bias toward the defendant indicating that the trial court believes that the
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Case Nos. 14-23-41, 14-23-44 and 14-24-13
defendant is guilty of the charges which were dismissed.” State v. Blake 2004-Ohio-
1952, ¶ 5 (3d Dist.).
{¶11} Similar to Ropp, the PSI in this case mentioned that another girl was
sexually assaulted at the same address as the victim in this case, but did not directly
mention who the assailant was. Additionally, the PSI discussed in detail a prior
charge against Wilson out of Logan County. In that case, Wilson was indicted on
two counts of unlawful sexual conduct with a minor. Wilson was 19 years of age
at the time and victim was a 13 year old girl. The PSI contained an extensive
discussion as to the allegations including that Wilson and the victim had engaged in
sexual intercourse and that they were communicating via text message. The PSI
indicates that Wilson admitted in the messages that he had engaged in sexual
conduct with the 13 year old victim. The charges stemming from these facts were
later dismissed due to a finding that Wilson lacked competency to stand trial.
{¶12} At the sentencing hearing, the trial court appears to have confused the
name of the victim for whom no charges were filed with the facts of the indicted
charges out of Logan County. The facts set forth by the trial court were those
provided in the PSI regarding the Logan County case. This confusion was
exasperated by the State misunderstanding which case the trial court was discussing
and having the detective state the basic facts surrounding the uncharged case.
However, the facts being considered by the trial court were regarding a case for
which Wilson had previously been indicted and the details of which were
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Case Nos. 14-23-41, 14-23-44 and 14-24-13
thoroughly addressed in the PSI. The trial court was permitted to consider this prior
case, even though it had been dismissed for a lack of competency. A review of the
record does not indicate that the trial court was acting in a biased manner as a result
of that consideration. On the contrary, the trial court individually addressed the
sentencing factors set forth in R.C. 2929.12 as to each of the cases without reference
to the dismissed charges. Thus, the trial court did not err in considering the facts of
a prior charge that was dismissed when fashioning the sentence.
{¶13} Next, Wilson claims that the trial court considered facts that were
inapplicable to each charge. A review of the record does not indicate this. In case
number 223 (the vandalism conviction) and case number 139 (the convictions for
tampering with evidence, breaking and entering, and resisting arrest), the trial court
found that none of the more or less serious factors and none of the less likely to
commit future crimes factors set forth in R.C. 2929.12(B), (C), and (E) applied.
223Doc. The trial court did find that multiple factors under the likely to commit
future crimes as set forth in R.C. 2929.12(D) applied. In case number 224 (the
sexual battery conviction), the trial court found that factors set forth in 2929.12(B)
did apply due to the age of the victim and psychological harm that resulted. These
factors were not found to apply to the other two cases. Thus, the trial court did not
just consider all of the cases as one, but instead considered the cases individually
when viewing the statutory factors. Since the trial court did not err in considering
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Case Nos. 14-23-41, 14-23-44 and 14-24-13
facts outside the records and did make findings pertaining to each specific case, the
first assignment of error is overruled.
Ineffective Assistance of Counsel
{¶14} In the second assignment of error, Wilson claims that he was denied
the effective assistance of counsel. Wilson claims trial counsel was ineffective by
advising him to plead guilty rather than no contest so that he could properly raise
the competency finding on appeal.
In evaluating whether a petitioner has been denied effective assistance
of counsel, this court has held that the test is “whether the accused,
under all the circumstances, . . . had a fair trial and substantial justice
was done.” . . .
When making that determination, a two-step process is usually
employed. “First, there must be a determination as to whether there
has been a substantial violation of any of defense counsel's essential
duties to his client. Next, and analytically separate from the question
of whether the defendant's Sixth Amendment rights were violated,
there must be a determination as to whether the defense was
prejudiced by counsel's ineffectiveness.” . . .
On the issue of counsel's ineffectiveness, the petitioner has the burden
of proof, since in Ohio a properly licensed attorney is presumably
competent.
State v. Calhoun, 1999-Ohio-102 (internal citations omitted). “The failure to prove
either 1) a substantial violation or 2) prejudice caused by the violation makes it
unnecessary for a court to consider the other prong of the test.” State v. Walker,
2016-Ohio-3499, ¶ 20 (3d Dist.). “To show prejudice, the defendant must show a
reasonable probability that, but for counsel's errors, the result of the proceeding
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would have been different.” State v. Conway, 2006-Ohio-2815, ¶ 95. “The prejudice
inquiry, thus, focuses not only on outcome determination, but also on ‘whether the
result of the proceeding was fundamentally unfair or unreliable.’” State v.
Montgomery,
2016-Ohio-5487, quoting Lockhart v. Fretwell,
506 U.S. 364, 369
(1993).
{¶15} Here, Wilson claims that counsel erred by having him plead guilty
rather than no contest, thus preventing him from appealing the trial court’s decision
finding him competent to stand trial. This Court has previously addressed this issue
in State v. Conley. 2016-Ohio-8408 (3d Dist.). In Conley, the appellant claimed that
his counsel was ineffective for failing to advise him to enter a no contest plea rather
than a guilty plea. The appellant claimed he was prejudiced by counsel’s error
because he could not raise the denial of his motion to suppress on appeal. This
Court held that for appellant to prevail, he was required to show that 1) the state
would have agreed to a no-contest plea on the same terms; 2) counsel failed to advise
that the no-contest plea would preserve the right to appeal while the guilty plea
would not; and 3) if the appellant had been so advised, appellant would have rejected
the plea offer. Id. at ¶ 12. Having found that the appellant in Conley did not
establish these facts, this Court overruled the claim. Id.
{¶16} Similarly to the case in Conley, the record in this case does not
establish any of the required facts. There is no evidence in the record that the State
would have agreed to a no-contest plea on the same terms. A review of the change
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of plea hearing indicates that Wilson was agreeing to enter pleas of guilty and the
State was agreeing to dismiss multiple charges in return for the guilty plea. At
another point, the trial court even indicated that the guilty plea was being entered
“in exchange” for a dismissal of a charge. Tr. 4. The plea agreements signed by
Wilson all contain statements that the dismissal of charges is based upon Wilson
entering a plea of guilty. The plea agreement also stated that Wilson understood he
was waiving the right to appeal the judgments of the trial court, except for the right
to appeal the sentence. The plea agreements show that Wilson received substantial
consideration for the plea as multiple charges were dismissed, thus reducing the
potential maximum sentences.
{¶17} Additionally, the record does not contain any evidence that Wilson
was not advised that he would be losing his right to appeal the competency ruling
by entering a guilty plea in contradistinction to a no-contest plea. The Supreme
Court of Ohio has held that “it is impossible to determine whether [an] attorney was
ineffective in his representation of appellant where the allegations of ineffectiveness
are based on facts not appearing in the record.” State v. Cooperrider, 4 Ohio St.3d
226, 228 (1983). If a record is silent as to the advice provided by counsel when
discussing entering a plea agreement, an appellate court would be required to
examine facts outside the record to determine the competency of counsel’s advice.
State v. Jacobson,
2003-Ohio-1201 (4th Dist.). In a direct appeal, this court may
not consider matters outside the record. State v. Jones,
2007-Ohio-5624 (3d Dist.).
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Without more than a conclusory assertion on appeal, Wilson does not overcome the
presumption that counsel acted reasonably. Conley at ¶ 14. Thus, the record does
not support the contention that counsel was ineffective and the second assignment
of error is overruled.
{¶18} Having found no prejudicial error in the particulars assigned and
argued, the judgments of the Court of Common Pleas of Union County is affirmed.
Judgments Affirmed
WALDICK and MILLER, J.J., concur.
/hls
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