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Date: 01-08-2018

Case Style:

STATE OF OHIO v. DEREK S. CHILDERS

Case Number: 17CA5

Judge: Robert H. Hoover

Court: IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY

Plaintiff's Attorney: Brigham M. Anderson, Lawrence County Prosecuting Attorney, and Jeffrey M. Smith, Lawrence County Assistant Prosecuting Attorney

Defendant's Attorney: Todd A. Long
Charles A. Koenig

Description: Childers was originally indicted in November 2014 on two counts of
burglary, felonies of the second degree in violation of R.C. 2911.12(A)(2), and four
counts of breaking and entering, felonies of the fifth degree in violation of R.C.
2911.13(A). The counts stemmed from incidents that occurred during September 2014
and October 2014. Childers pleaded guilty to all counts of the indictment; and he was
sentenced to eight years in prison on each of the two burglary counts, to be served
consecutively, and to twelve months in prison on each of the four breaking and entering
counts to be served concurrently with each other and concurrent to the burglary
sentences. Thus, Childers was sentenced to an aggregate 16-year prison term. In addition,
Childers was ordered to pay restitution to his victims in the aggregate amount of $2,670.
{¶ 8} Childers appealed the trial court’s judgment of conviction and sentence. See
Childers I. On November 20, 2015, we remanded the case for re-sentencing because we
clearly and convincingly found that the record did not support the trial court’s R.C.
2929.14(C)(4) findings. Although Childers had also included an assignment of error
alleging ineffective assistance of counsel, we did not address the argument due to the
mootness doctrine.
Lawrence App. No. 17CA5 4
{¶ 9} Approximately one month later in December 2015, after the remand, but
before the re-sentencing, Childers filed a motion to withdraw his guilty plea. The State
filed a memorandum contra to Childers’s motion; and Childers filed a reply. In February
2016, the trial court overruled Childers’s motion to withdraw his guilty plea.
{¶ 10} In March 2016, Childers then filed a sentencing memorandum setting forth
reasons contra to the imposition of consecutive sentences. The State did not file a
sentencing memorandum. The Court proceeded to re-sentence Childers. During the re
sentencing hearing, Childers renewed his motion to withdraw his guilty plea.
Approximately ten months passed before the re-sentencing entry was filed. On January
27, 2017, the trial court finally filed the re-sentencing entry. On the same date, the trial
court also filed its entry overruling the oral renewal of Childers’s motion to withdraw the
guilty plea.
{¶ 11} Childers was re-sentenced to seven years in prison on each of the two
burglary counts, to be served consecutively, and to eleven months in prison on each of
the four breaking and entering counts to be served concurrently with each other and
concurrent to the burglary sentences. Thus, Childers was sentenced to an aggregate 14
year prison term. In addition, Childers was ordered to pay restitution to his victims in the
aggregate amount of $11,660.
{¶ 12} Childers timely appealed.
II. Assignments of Error

{¶ 13} Childers assigns the following errors for our review:

Assignment of Error No. 1:

The trial court erred when it Refused to Allow Appellant’s Presentence Request to Withdraw His Plea of Guilty.
Lawrence App. No. 17CA5 5

Assignment of Error No. 2:

The trial court erred when it sentenced Appellant to consecutive terms of imprisonment without making the required findings set forth in Ohio Revised Code section 2929.14(C)(4).

Assignment of Error No. 3:

Appellant was deprived of his constitutional rights to counsel as a consequence of ineffective assistance of counsel.

III. Law and Analysis

A. The Trial Court Did Not Have Jurisdiction to Address Childers’s Motion to
Withdraw His Guilty Plea
{¶ 14} With respect to Childers’s first assignment of error, Childers claims that
the trial court erred when it denied his motion to withdraw his guilty plea. In our view,
the trial court should not have addressed Childers’s motion. We believe that pursuant to
the Ohio Supreme Court’s holding in State ex rel. Special Prosecutors v. Judges, Court of
Common Pleas, 55 Ohio St.2d 94, 378 N.E.2d 162 (1978), that the trial court did not have
jurisdiction to address Childers’s motion to withdraw his guilty plea. In that case, the
Supreme Court of Ohio held that Crim.R. 32.1 “does not vest jurisdiction in the trial court
to maintain and determine a motion to withdraw the guilty plea subsequent to an appeal
and an affirmance by the appellate court.” Id. at 97.
{¶ 15} In State ex rel. Special Prosecutors, the defendant pleaded guilty to
murder. The court of appeals affirmed his conviction. Afterwards, he moved to withdraw
his guilty plea, which the trial court granted. The State did not appeal, but, before the
defendant’s case could proceed to trial, it filed a complaint for a writ of prohibition,
seeking to prevent the trial from taking place. The State argued that the trial court did not
Lawrence App. No. 17CA5 6
have jurisdiction to consider the motion to withdraw the guilty plea. The Supreme Court
granted the writ because it concluded that a trial court does not have jurisdiction to
consider a motion to withdraw a plea after an appellate court had affirmed the
defendant’s conviction. Id. at 98. The Supreme Court noted “the trial court lost its
jurisdiction when the appeal was taken, and, absent a remand, it did not regain
jurisdiction subsequent to the Court of Appeals’ decision.” Id. at 97.
{¶ 16} In Childers I, we reversed Childers’s sentence and remanded the cause to
the trial court for the sole purpose of re-sentencing. We did not vacate the conviction.
Therefore, the trial court did not have jurisdiction to consider Childers’s motion to
withdraw his guilty plea. Crim.R. 32.1 simply does not give the trial court the power to
vacate a conviction that has been affirmed by the appellate court; as such action would
affect the decision of the reviewing court, which is not within the power of the trial court
to do. See id. at 98. Consequently, the trial court was without jurisdiction to consider the
motion to withdraw the guilty plea.
{¶ 17} Even assuming arguendo that the trial court did have jurisdiction, the
doctrine of res judicata bars us from considering Childers’s arguments regarding the
motion to withdraw his guilty plea. “Under the doctrine of res judicata, a final judgment
of conviction bars a convicted defendant who was represented by counsel from raising
and litigating in any proceeding, except an appeal from that judgment, any defense or any
claimed lack of due process that was raised or could have been raised by the defendant at
trial, which resulted in that judgment of conviction, or on an appeal from that judgment.”
State v. Szefcyk, 77 Ohio St.3d 93, 671 N.E.2d 233 (1996), syllabus.
Lawrence App. No. 17CA5 7
{¶ 18} “Courts, including this one, have applied res judicata to bar defendants
from raising claims in a Crim.R. 32.1 postsentence motion to withdraw that they either
raised or could have raised in a direct appeal from their judgment of conviction and
sentence.” State v. Mackey, 4th Dist. Scioto No. 14CA3645, 2014-Ohio-5372, ¶ 15, citing
State v. Ketterer, 126 Ohio St.3d 448, 2010–Ohio–3831, 935 N.E.3d 9, ¶ 59 (“Ohio
courts of appeals have applied res judicata to bar the assertion of claims in a motion
to withdraw a guilty plea that were or could have been raised at trial or on appeal”); State
v. Dent, 8th Dist. Cuyahoga No. 100605, 2014–Ohio–3141, ¶ 4 (“The doctrine
of res judicata, however, prohibits all claims raised in a Crim.R. 32.1 postsentence
motion to withdraw a guilty plea that were raised or could have been raised on direct
appeal”); State v. Muhumed, 10th Dist. Franklin No. 11AP-1001, 2012–Ohio–6155, ¶
15 (“res judicata applies * * * to issues raised in a post-sentencing Crim.R. 32.1 motion
that were or could have been raised in direct appeal”); State v. Vincent, 4th Dist. Ross No.
03CA2713, 2003–Ohio–3998, ¶ 11 (“The doctrine of res judicata bars claims raised in
a Crim.R. 32.1 post-sentence motion to withdraw guilty plea that were raised or could
have been raised in prior proceedings”).
{¶ 19} It is understandable that in Childers I no argument was made concerning a
Crim.R. 32.1 motion because the motion to withdraw the guilty plea had not yet been
made. The Crim.R. 32.1 motion was made after the case was remanded for re-sentencing.
However, the argument that Childers is making in this appeal regarding his motion to
withdraw his guilty plea is based on a claim of ineffective assistance of counsel. Childers
made no claim in his direct appeal regarding the failure of his former counsel to file a
motion to withdraw his guilty plea. This is an argument that could have been included in
Lawrence App. No. 17CA5 8
Childers’s direct appeal in conjunction with his ineffective assistance of counsel claim.
Because Childers could have raised this argument in his direct appeal, his argument is
now barred by the doctrine of res judicata. See, e.g., State v. Young, 8th Dist. Cuyahoga
No. 104861, 2017-Ohio-5579, ¶ 7 (“Young could have raised any argument regarding
ineffective assistance of counsel relating to his plea * * * in his direct appeal. Because he
did not do so, his ineffective assistance of counsel claim is now barred by res judicata * *
*.”).
{¶ 20} Since the trial court did not have jurisdiction to address Childers’s motion
to withdraw his guilty plea, or in the alternative, res judicata applies and bars
consideration of Childers’s argument, we overrule the first assignment of error.
B. We Cannot Find by Clear and Convincing Evidence that the Record Does Not
Support the Trial Court’s Findings Under R.C. 2929.14(C)(4)
{¶ 21} Under R.C. 2929.14(C)(4), a trial court must engage in a three-step
analysis and make certain findings before imposing consecutive sentences. State v. Bever,
4th Dist. Washington No. 13CA21, 2014-Ohio-600, ¶ 16; State v. Clay, 4th Dist.
Lawrence No. 11CA23, 2013–Ohio–4649, ¶ 64; State v. Howze, 10th Dist. Franklin Nos.
13AP–386, 13AP–387, 2013–Ohio–4800, ¶ 18. Specifically, the trial court must find that
(1) “the consecutive service is necessary to protect the public from future crime or to
punish the offender”; (2) “consecutive sentences are not disproportionate to the
seriousness of the offender's conduct and to the danger the offender poses to the public”;
and (3) as applicable here, the harm caused by two or more multiple offenses was so
great or unusual that no single prison term for any of the offenses committed adequately
reflects the seriousness of the offender’s conduct. R.C. 2929.14(C)(4). The trial court “is
Lawrence App. No. 17CA5 9
required to make the findings mandated by R.C. 2929.14(C)(4) at the sentencing hearing
and [to] incorporate its findings into the sentencing entry, but it has no obligation to state
reasons to support its findings.” State v. Bonnell, 140 Ohio St.3d 209, 2014–Ohio–3177,
16 N.E.3d 659, syllabus. Furthermore, the trial court is not required to recite “a word-for
word recitation of the language of the statute * * *.” Id. at ¶ 29. “[A]s long as the
reviewing court can discern that the trial court engaged in the correct analysis and can
determine that the record contains evidence to support the findings, consecutive sentences
should be upheld.” Id. A failure to make the findings required by R.C. 2929.14(C)(4)
renders a consecutive sentence contrary to law. Id. at ¶ 37; Bever at ¶ 17; State v. Nia, 8th
Dist. Cuyahoga No. 99387, 2013–Ohio–5424, ¶ 22. The findings required by the statute
must be separate and distinct findings; in addition to any findings relating to the purposes
and goals of criminal sentencing. Bever at ¶ 17; Nia at ¶ 22.
{¶ 22} We review felony sentences under the standard set forth in R.C.
2953.08(G)(2). Bever at ¶ 13; State v. Baker, 4th Dist. Athens No. 13CA18, 2014–Ohio–
1967, ¶ 25. That statute directs the appellate court to “review the record, including the
findings underlying the sentence,” and to modify or vacate the sentence “if it clearly and
convincingly finds * * * (a) [t]hat the record does not support the sentencing court’s
findings under division * * * (C)(4) of section 2929.14 * * * of the Revised Code * * *
[or] (b) [t]hat the sentence is otherwise contrary to law.” R.C. 2953.08(G)(2).
{¶ 23} Our court has described “clear and convincing evidence” as follows:
“Clear and convincing evidence” is evidence that will produce in the mind
of the trier of fact a firm belief or conviction as to the facts sought to be
established. See, Eppinger, supra, at 163; Cross v. Ledford (1954), 161
Lawrence App. No. 17CA5 10
Ohio St. 469, paragraph three of the syllabus. “ ‘It does not mean clear and
unequivocal.’ ” Eppinger, at 164, quoting Cross, at 477. The clear and
convincing evidence standard is considered a higher degree of proof than a
mere “preponderance of the evidence,” the standard generally utilized in
civil cases. However, it is less stringent than the “beyond a reasonable
doubt” standard used in criminal trials. See, State v. Schiebel (1990), 55
Ohio St.3d 71, 74; Cross, at 477.

When reviewing whether “clear and convincing evidence” supports the
trial court’s decision, we must examine the record and ascertain whether
sufficient evidence exists to meet this burden of proof. See, In re Adoption
of Holcomb (1985), 18 Ohio St.3d 361, 368. This type of review is
deferential to the trial court, and we must affirm the court’s judgment if
the record contains some competent, credible evidence to support it. See,
Schiebel, at 74, and State v. Longnecker, Washington App. No. 02CA76,
2003-Ohio-6208, at ¶ 23. In reviewing the court’s decision, we are not
permitted to substitute our judgment for that of the trial court. See,
Longnecker, supra; State v. Waulk, Ross App. No. 05CA2847, 2006-Ohio
929, at ¶ 12.
State v. Offenberger, 4th Dist. Washington No. 06CA22, 2007-Ohio-2551, ¶¶ 11-12.
{¶ 24} “ ‘It is also important to understand that the clear and convincing standard
used by R.C. 2953.08(G)(2) is written in the negative. It does not say that the trial judge
must have clear and convincing evidence to support its findings. Instead, it is the court of
Lawrence App. No. 17CA5 11
appeals that must clearly and convincingly find that the record does not support the
court’s findings. In other words, the restriction is on the appellate court, not the trial
judge. This is an extremely deferential standard of review.’ ” State v. Bass, 4th Dist.
Washington No. 16CA32, 2017-Ohio-7059, ¶ 7 quoting State v. Venes, 2013–Ohio–1891,
992 N.E.2d 453, ¶ 21 (8th Dist.).
{¶ 25} In Childers I, we found by clear and convincing evidence that there was
“no evidence in the record to support the trial court’s consecutive sentence findings.”
Childers I at ¶ 22. “There [was] no indication that the trial court was aware of Childers’s
past criminal record, his social history, or the impact of his actions on the victims.
Moreover, no statement of facts underlying the indictment was ever offered by the State
or defense counsel at the plea or sentencing hearing.” Id. at ¶ 19. Additionally, it did not
appear from the record that the trial court possessed information regarding the
seriousness of the offenses. Id. at ¶ 22. We also found that there was no indication that
the trial court had reviewed the record or any other materials prior to imposing its
sentence. Id. at ¶ 20. We remanded the cause to the trial court for resentencing and
permitted the parties to offer evidence and arguments to aid the trial court’s consecutive
sentence analysis. We now review the imposition of the consecutive sentences with the
record before us after the re-sentencing.
{¶ 26} First of all, in Childers I, we found that “no statement of facts underlying
the indictment was ever offered by the State or defense counsel at the plea or sentencing
hearing.” In contrast, in the case sub judice, at the beginning of the re-sentencing hearing,
the State presented the details of each of the six counts to which Childers had pleaded
guilty. The State explained the particular facts of Childers’s “crime spree” during the
Lawrence App. No. 17CA5 12
time period from September 7, 2014 to October 5, 2014. In addition, at the resentencing
hearing, the trial court acknowledged that it had the discovery documents in the file. The
re-sentencing entry also refers to the fact that the trial court had available to it the filed
discovery. The trial court’s entry then indicated that from the discovery filed in the case,
consecutive sentences were necessary. This is different from Childers I where there was
no indication that the trial court reviewed the record or any other materials prior to
imposing sentence; and the original sentencing entry did not indicate that the trial court
considered the record materials when imposing its sentence.
{¶ 27} Next, in Childers I, we found that it did not appear from the record that the
trial court possessed information regarding Childers’s past criminal record or his social
history. After re-sentencing, however, we see that the trial court did consider the record
material, which includes the sentencing memorandum filed by Childers. The sentencing
memorandum gives sufficient detail of Childers’s past criminal record and social history.
We understand that the purpose of the sentencing memorandum was mitigation; however,
it is clear that the trial court had reviewed the sentencing memorandum when Childers’s
counsel stated at the re-sentencing hearing, “I did file a sentencing memorandum this
morning. I know the court has reviewed that.” Thus, evidence exists in the record that the
trial court had reviewed Childers’s social history including the unfortunate downward
spiral into drug addiction. Evidence also exists that the trial court considered Childers’s
past criminal record including a prior shoplifting case. The record further indicates that
the trial court referred to the discovery materials which included additional misdemeanor
convictions for driving under suspension, no driver license, failure to control, tag/sticker
Lawrence App. No. 17CA5 13
violation, two seat belt violations, improper left turn, as well as a miscellaneous case—all
spanning from 2003 through 2014.
{¶ 28} Moreover, when reviewing the full record on remand, it appears that the
trial court considered the seriousness of the offenses and the impact of the offenses on the
victims. The State had explained on the record the details of each count; and evidence
exists that the trial court considered the discovery materials, which included the incident
report, investigative narrative, restitution forms, and the handwritten statement of one of
the victims.
{¶ 29} The trial court specifically stated in its re-sentencing entry the following:
[I]t came to light that Mrs. Hall is somewhat elderly and that her adult son,
John Hall, had caught the Defendant, Derek Childers, in the act of
burglarizing Mrs. Hall’s home. A chase and a scuffle took place between
Mr. Hall and the Defendant. The Court would also note that victims
routinely describe the burglarizing of their private homes to be a most
frightening experience and one that leaves them with fear and doubt about
continuing to live in those structures. The Court is also mindful of the fact
that the Defendant pled guilty to Counts Three, Four, Five and Six, which
dealt with breaking and entering of four unoccupied structures as well.
{¶ 30} The trial court also explicitly stated in the re-sentencing entry that
it had available to it the discovery provided in the case. This discovery
demonstrated, inter alia, that Childers had entered William Walters’s residence
and had stolen a firearm, ammunition, a computer, jewelry and some tools.
Childers admitted to trading the firearm to a drug dealer for heroin.
Lawrence App. No. 17CA5 14
{¶ 31} After remand, the trial court did not just re-impose the original
sentence. The original sentence was an aggregate term of 16 years and total
restitution of $2,570. After the re-sentencing hearing, reviewing the discovery,
hearing arguments of counsels and pretrial discussions, the trial court imposed an
aggregate sentence of 14 years. The total restitution amount changed from $2,570
to $11,660.
{¶ 32} In summary, we cannot find by clear and convincing evidence, that
the record does not support the trial court’s findings justifying the imposition of
consecutive sentences. Consequently, we overrule Childers’s second assignment
of error.
C. Appellant Was Not Deprived of His Constitutional Right to Counsel as a
Consequence of Ineffective Assistance of Counsel
{¶ 33} To establish constitutionally ineffective assistance of counsel, a defendant
must show (1) that his counsel’s performance was deficient, and (2) that the deficient
performance prejudiced the defense and deprived him of a fair trial. Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Issa, 93
Ohio St.3d 49, 67, 752 N.E.2d 904 (2001); State v. Goff, 82 Ohio St.3d 123, 139, 694
N.E.2d 916 (1998). “In order to show deficient performance, the defendant must prove
that counsel’s performance fell below an objective level of reasonable representation. To
show prejudice, the defendant must show a reasonable probability that, but for counsel’s
errors, the result of the proceeding would have been different.” (Citations omitted.) State
v. Conway, 109 Ohio St.3d 412, 2006–Ohio–2815, 848 N.E.2d 810, ¶ 95. “Failure to
establish either element is fatal to the claim.” State v. Jones, 4th Dist. Scioto No.
Lawrence App. No. 17CA5 15
06CA3116, 2008–Ohio–968, ¶ 14. Therefore, if one element is dispositive, a court need
not analyze both. See State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000)
(stating that a defendant’s failure to satisfy one of the elements “negates a court’s need to
consider the other.”). In Ohio, there is a presumption that a properly licensed attorney is
competent. State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999).
{¶ 34} Childers claims that his former counsel did nothing to assist him.
However, the record shows that Childers’s former counsel had negotiated a judicial
release for Childers after serving eight years depending on Childers’s behavior while in
prison. The transcript from the sentencing hearing that occurred in February 2015
demonstrates that Childers asked, “I thought it was sixteen and out in eight. I didn’t hear
anything.” The trial court responded, “That’s because we don’t know how your [sic]
going to conduct your self [sic] in the next eight years. Good conduct is part of the
considerations when you, anytime you would apply for judicial release.” Childers’s
former counsel then states, “In eight years you can apply for judicial release.”
{¶ 35} Then, at the hearing on re-sentencing and motion to withdraw guilty plea
held in January 2016, the following exchange took place between the State and Childers:
Q. I’m the prosecutor, I can tell you right now, I’m telling you it is sixteen
out in eight.
A. Okay.
Q. So we’re on the same page Mr. Childers. There may be a little
misunderstanding there, but when you left that courtroom, you thought it
was sixteen years out in eight. And I’m telling you the prosecutor, as long
as your [sic] good up there, we’re going to honor that.
Lawrence App. No. 17CA5 16
A. Okay, I understand that.
Q. Yeah. And you thought that was deal. You said I thought sixteen out in
eight, right?
A. What do you mean?
Q. Well you explained it I thought it was…
A. I’ll put it this way. I understand that’s what the sentence was by the
time I left the courtroom.
Q. What didn’t you understand then? What didn’t you understand when
you left? You understood you confessed, right?
A. Right.
Q. You understood that you could get twenty years potentially if you went
to a jury, if they stacked them all, that’s potential, right?
A. Yeah.
Q. You understood that you actual starting sentence was sixteen?
A. Yes.
Q. And you understood that you were getting out in eight if, obviously
subject as he explained to you, you’ve got to wait for your good behavior.
But when he brought up sixteen out in eight, he said subject to you being
good behavior, right?
A. Okay, yeah.
{¶ 36} Next, a document, exhibit three, was admitted at the re-sentencing and
motion to withdraw guilty plea hearing, which states as follows:
Lawrence App. No. 17CA5 17
Defendant Derek Childers is sentenced to sixteen years in the Ohio penal
state institution, state penal institution. It is the understanding of the
prosecutor, that upon good behavior, the Defendant, the State will not
oppose the Defendant’s motion for early release after eight years
incarceration.
Childers admitted to being aware of the contents of the document at the end of the
sentencing when he said, “I thought sixteen out in eight.”
{¶ 37} We disagree with Childers’s contention that his former counsel did
nothing to assist him. She obviously negotiated a judicial release for him assuming good
behavior while incarcerated. Under these circumstances, we refuse to find that Childers’s
former counsel was deficient. Thus, we need not proceed to the prejudice prong of the
analysis.
{¶ 38} We overrule Childers’s third assignment of error.

Outcome: Having overruled all of Childers’s assignments of error, we affirm the
judgment of the trial court.

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