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Date: 10-21-2019
Case Style:
STATE OF OHIO -vs- ALEXANDER TRE MYKEL WELLS
Case Number: 19 CA 06
Judge: John W. Wise
Court: COURT OF APPEALS GUERNSEY COUNTY, OHIO FIFTH APPELLATE DISTRICT
Plaintiff's Attorney: JASON R. FARLEY
MELISSA R. BRIGHT
Defendant's Attorney:
Description:
Call 888-354-4529 if you need a Criminal Defense Attorney in Ohio.
Appellant Alexander Tre Mykel Wells appeals from his conviction, in the
Guernsey County Court of Common Pleas, on a single count pertaining to his duty to
register. Appellee is the State of Ohio. The relevant facts leading to this appeal are as
follows.
{¶2} Appellant was previously convicted of a sexually-oriented offense and is
required to register under R.C. Chapter 2950. On April 10, 2018, appellant was indicted
on one count of failure to register (R.C. 2950.04(E)), a felony of the fourth degree, and
one count of failure to provide a change of address (R.C. 2950.05(E)(1)), also a felony of
the fourth degree. Under the second count, the indictment specifically alleged that
between November 8, 2016 and March 28, 2018, appellant failed to provide the Guernsey
County Sheriff’s Office with written notice at least seven days prior to a change in
residence address.
{¶3} At the time of his arraignment on April 23, 2018, appellant was serving a
five-year period of post-release control. He had approximately four years left on said
sanction, and he claimed he had been “typically” reporting on a monthly basis to his
supervising officer. Tr. at 6. Furthermore, as a result of the aforesaid pending felony
charges, appellant’s supervising officer sanctioned him with two weeks in the county jail.
Tr. at 5.
{¶4} At a plea hearing conducted on August 14, 2018, appellant pled guilty to the
second count of the indictment, i.e., the charge of failure to provide a change of address.
The trial court postponed sentencing, ordering an updated presentence investigation
Guernsey County, Case No. 19 CA 06 3
(“PSI”). The trial court stated that under the parties’ plea deal, the count of failure to
register was to be dismissed at the sentencing hearing. Tr. at 10.
{¶5} The initial sentencing hearing was scheduled for November 5, 2018.
Appellant appeared with counsel; however, the court noted that appellant had failed to
report for his PSI and Ohio Risk Assessment interview that had been scheduled for
October 18, 2018. It was also indicated that the probation department and defense
counsel had been unable to get in touch with appellant in a timely manner. Appellant
stated that he had been homeless, did not have a phone, and he just recently obtained a
residential address. See Tr. at 25-26. As a result, the court granted defense counsel's
request to continue the sentencing hearing.
{¶6} The sentencing hearing then took place on January 10, 2019. At that time,
the trial court had received the current presentence investigation (“PSI”), a prior PSI, and
a letter from Lieutenant Curtis Braniger of the Guernsey County Sheriff’s Office to Chief
Probation Officer Kevin Shipe. After defense counsel and appellant had reviewed the
Braniger letter, they indicated they were prepared to proceed with the sentencing hearing.
{¶7} During said hearing, the State noted inter alia that appellant’s ORAS score
was 25, which is considered to be in the “high” category. Tr. at 32. The State also
indicated that appellant had violated his supervision terms and that community control
would not be appropriate in this case because his parole authority officer indicated he
was not able to locate appellant. Id.
{¶8} In response, appellant’s defense counsel argued that community control
would be appropriate in his case, which “could include” a six-month jail sentence as an
appropriate community control sanction. Tr. at 32. Appellant spoke to the court and
Guernsey County, Case No. 19 CA 06 4
maintained that upon his jail release he had commenced making various employment
applications. He also noted that he had worked at three successive jobs, including a
fireworks retailer and a restaurant. Tr. at 39-40. Appellant conceded that there "has been
a lot of obstacles that my record has created." Tr. at 33. He stated he had transportation
issues and had been homeless, although he eventually moved in with a friend. Tr. at 34.
{¶9} The trial court, in addition to reviewing the PSI, indicated it gave "great
weight" to Lieutenant Braniger's aforementioned letter. Tr. at 42. Appellant nonetheless
claimed that the letter from Lieutenant Braniger was incorrect because he did do his six
month renewal of his registration at around the same time the letter was written. Tr. at 34.
Appellant also insisted he was residing at the address he utilized for registration, and that
he could prove it by showing his clothes at the location or having his friends provide
verification. Tr. at 41. He suggested that he simply might not have been home when his
parole authority officer showed up to see him. Id.
{¶10} The trial court observed that appellant had had his “intervention in lieu of
conviction” revoked and thus went to prison November 16, 2016. Tr. at 38. His five years
of postrelease control had then begun on December 8, 2017. Id. The court proceeded to
find inter alia that appellant was not amenable to a community control sanction. Tr. at 46.
{¶11} The court then sentenced appellant to fourteen months in prison. He was
also ordered to pay court costs. The court further indicated that it would have the
probation department inquire as to whether appellant would be eligible for the “Quick
Start” program through Zane State College if he were to be granted judicial release. Tr.
Guernsey County, Case No. 19 CA 06 5
at 47. The trial court issued its written sentencing entry, including PRC notification, on
January 11, 2019.1
{¶12} On February 8, 2019, appellant filed a notice of appeal. He herein raises
the following two Assignments of Error:
{¶13} “I. THE APPELLANT ALLEGES THAT THE TRIAL COURT ABUSED ITS
DISCRETION IN SENTENCING THE DEFENDANT, AS SAID SENTENCE WAS
UNREASONABLE.
{¶14} “II. THE APPELLANT HAS A CLAIM FOR INEFFECTIVE ASSISTANCE
OF COUNSEL AS APPELLANT'S COUNSEL FAILED TO REQUEST A CONTINUANCE
OF THE SENTENCING HEARING.”
I.
{¶15} In his First Assignment of Error, appellant challenges his felony sentence in
this matter.
{¶16} As an initial matter, we note appellant presents his challenge via an “abuse
of discretion” approach. However, we no longer review sentences pursuant to the
standard set forth in State v. Kalish, 120 Ohio St. 3d 23, 2008–Ohio–4912, 896 N.E.2d
124. See State v. Cox, 5th Dist. Licking No. 16–CA–80, 2017–Ohio–5550, ¶ 9. We now
review felony sentences using the standard of review set forth in R.C. 2953.08. See State
v. Marcum, 146 Ohio St.3d 516, 2016–Ohio–1002, 59 N.E.3d 1231, ¶ 22.
{¶17} R.C. 2953.08(G)(2) provides we may either increase, reduce, modify, or
vacate a sentence and remand for resentencing where we clearly and convincingly find
1 Appellant’s case thus predates March 22, 2019, the date on which Ohio's criminal sentencing statutes were extensively amended under 2017 S.B. No. 201. See, e.g., State v. Crawford, 6th Dist. Lucas No. L-17-1296, 2019-Ohio-3123, f.n. 3.
Guernsey County, Case No. 19 CA 06 6
that either the record does not support the sentencing court's findings under R.C.
2929.13(B) or (D), 2929.14(B)(2)(e) or (C)(4), or 2929.20(I), or the sentence is otherwise
contrary to law. See State v. Maurer, 5th Dist. Muskingum No. CT2018-0042, 2019-Ohio
2388, ¶ 30.
{¶18} In the case sub judice, appellant essentially contends that it was
unreasonable to sentence him to fourteen months in prison in lieu of community control
sanctions. However, appellant’s brief makes no references to the language of R.C.
2953.08(G)(2), supra. We emphasize it is not the duty of an Ohio appellate court to create
arguments for the parties and search the record for evidence to support them. State v.
Trammell, 5th Dist. Stark No. 2015 CA 00151, 2016-Ohio-1317, ¶ 15, citing Sisson v.
Ohio Department of Human Services, 9th Dist. Medina No. 2949–M, 2000 WL 422396.
{¶19} In the interest of justice, we will treat appellant’s challenge chiefly as a claim
that his sentence is contrary to law. “An appellate court will not find a sentence clearly
and convincingly contrary to law where the trial court considers the principles and
purposes of R.C. 2929.11, as well as the factors listed in R.C. 2929.12, properly imposes
postrelease control, and sentences the defendant within the permissible statutory range.”
State v. Daniels, 5th Dist. Muskingum No. CT2016-0021, 2017-Ohio-1045, ¶ 13 (internal
quotations and additional citations omitted).
{¶20} We note the trial court clearly articulated its review of the 2929.11 and
2929.12 factors in its sentencing entry, and appellant does not presently contend that his
sentences are outside the statutory ranges of the Ohio Revised Code. Furthermore,
during the pendency of the present appeal, this Court ordered the provision by the clerk
of courts of a sealed copy of the January 7, 2019 PSI and the letter from Lieutenant
Guernsey County, Case No. 19 CA 06 7
Braniger for our confidential review pursuant to R.C. 2951.03(D) and R.C. 2953.08(F)(1).
The PSI confirms for us, among other things, the State’s expressed concerns about
appellant’s ORAS score and his misdeeds during the last supervision attempt in 2016.
The Braniger letter sheds light on appellant’s non-compliance in “checking in” with his
APA officer. As the trial court observed, appellant committed his offense of failure to
provide a change of address while he was already on post release control. See Tr. at 43.
Furthermore, appellant clearly has not responded to intervention programs and/or
community control sanctions in the past. See Tr. at 44.
{¶21} Based on our review of the record and the sealed documents, we do not
find by clear and convincing evidence that the record does not support the sentence or
that the sentence is contrary to law.
{¶22} Appellant's First Assignment of Error is therefore overruled.
II.
{¶23} In his Second Assignment of Error, appellant contends his defense counsel
at sentencing was ineffective for failing to seek a continuance of the hearing. We disagree.
{¶24} Our standard of review for ineffective assistance claims is set forth in
Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. Ohio
adopted this standard in the case of State v. Bradley (1989), 42 Ohio St.3d 136, 538
N.E.2d 373. These cases require a two-pronged analysis in reviewing a claim for
ineffective assistance of counsel. First, we must determine whether counsel's assistance
was ineffective; i.e., whether counsel's performance fell below an objective standard of
reasonable representation and was violative of any of his or her essential duties to the
client. If we find ineffective assistance of counsel, we must then determine whether or not
Guernsey County, Case No. 19 CA 06 8
the defense was actually prejudiced by counsel's ineffectiveness such that the reliability
of the outcome of the trial is suspect. This requires a showing that there is a reasonable
probability that but for counsel's unprofessional error, the outcome of the trial would have
been different. Id.
{¶25} However, trial counsel is entitled to a strong presumption that all decisions
fall within the wide range of reasonable professional assistance. State v. Sallie (1998), 81
Ohio St.3d 673, 675, 693 N.E.2d 267. Likewise, “[i]n Ohio, a properly licensed attorney is
entitled to a strong presumption that his or her duties have been performed in an ethical,
reasonable and competent manner.” State v. Weber, 5th Dist. Stark No. 2007 CA 00334,
2009-Ohio-1344, ¶ 46 (additional citations omitted).
{¶26} Appellant in essence urges that a continuance would have provided a
greater opportunity to counter Lieutenant Braniger’s statements in his letter, particularly
as to appellant’s living arrangements at the time. However, upon review, notwithstanding
appellant’s prior history of disregarding court orders, we find his present arguments are
far too speculative to overcome the strong presumption that his attorney competently
represented him at sentencing.
Guernsey County, Case No. 19 CA 06 9
{¶27} Appellant's Second Assignment of Error is therefore overruled.
Outcome: For the foregoing reasons, the judgment of the Court of Common Pleas,
Guernsey County, Ohio, is hereby affirmed.
Plaintiff's Experts:
Defendant's Experts:
Comments: