STATE OF OHIO v. JACOB A. KELLEY

Lima, OH - Criminal defense attorney represented Jacob A. Kelley with one count of escape and one count of failure to verify his address charges.

On March 17, 2020, the Hancock County Grand jury indicted Kelley on

one count of escape and one count of failure to periodically verify his current

address. Doc. 1. On August 10, 2020, Kelley entered pleas of guilty to the amended

indictment and was informed that as to count 1, a felony of the fifth degree, the

maximum sentence was 12 months in prison, and as to count 2, a felony of the fourth

degree, the maximum sentence was 18 months in prison. Doc. 13. On August 29,

2020, the trial court entered judgment accepting the change of plea and ordering a

presentence investigation ("PSI”). Doc. 15. A sentencing hearing was held on

October 1, 2020. Doc. 16. The trial court ordered Kelley to serve a prison term of

10 months as to Count 1 and 17 months as to count 2, with the terms to be served

concurrently. Doc. 16. Additionally, the trial court terminated Kelley's PRC

supervision and ordered him to serve his remaining 1,166 days in prison as a judicial

sanction, consecutive to the new sentences. Doc. 16. Kelley filed a timely notice Case No. 5-20-33

-3-

of appeal from this judgment. Doc. 23. On appeal, Kelley raises the following

assignments of error.

First Assignment of Error

[Kelley] entered a plea of guilty without the effective assistance of

counsel as required by the United States and Ohio Constitutions

where there is no statutory requirement for a homeless person to

appear in person daily at the Sheriff's office to register under R.C.

2950.05 or 2950.06 and as such, his plea was not knowing,

voluntary and intelligent.

Second Assignment of Error

[Kelley] was not afforded effective assistance of counsel during

sentencing when, despite the trial court's obvious willingness to

entertain mitigation, failed to inform the court that [Kelley's]

failure to daily report to the Sheriff's Department was not a

violation of his tier II sex offender registration requirements.

Ineffective Assistance of Counsel

{¶3} As both assignments of error claim that Kelley was denied the effective

assistance of counsel, the legal standard of review for both are the same.

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.” State v. Hester (1976), 45 Ohio St.2d

71, 74 O.O.2d 156, 341 N.E.2d 304, paragraph four of the syllabus.

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.” State v. Lytle

(1976), 48 Ohio St.2d 391, 396–397, 2 O.O.3d 495, 498, 358 N.E.2d Case No. 5-20-33

-4-

623, 627, vacated on other grounds (1978), 438 U.S. 910, 98 S.Ct.

3135, 57 L.Ed.2d 1154.

On the issue of counsel's ineffectiveness, the petitioner has the

burden of proof, since in Ohio a properly licensed attorney is

presumably competent. See Vaughn v. Maxwell (1965), 2 Ohio

St.2d 299, 31 O.O.2d 567, 209 N.E.2d 164; State v. Jackson, 64

Ohio St.2d [107] at 110–111, 18 O.O.3d [348] at 351, 413 N.E.2d

[819] at 822.

State v. Calhoun, 86 Ohio St.3d 279, 289, 1999-Ohio-102, 714 N.E.2d 905. "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, 66 N.E.3d 349, ¶ 20 (3d Dist.). "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.” State v. Conway,

109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 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, 148

Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180 quoting Lockhart v. Fretwell, 506

U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993).

{¶4} Kelley argues in his first assignment of error that his counsel erred by

advising him to plead guilty without telling him that he had no duty to register his

address with the Hancock County Sheriff's Office daily. Pursuant to R.C.

2950.06(B)(2), tier II sex offenders are required to verify their addresses every 180 Case No. 5-20-33

-5-

days. The statute sets the frequency of residence verification.

1

R.C. 2950.06(A).

As a person without a fixed address, Kelley was required to provide notice to the

sheriff with a detailed description of places the defendant intended to stay until a

fixed address was available. R.C. 2950.05(A). These descriptions would then be

considered his "residence” for registration purposes. R.C. 2950.05(A).

{¶5} In the PSI, Kelley indicated that he notified the Sheriff that he was

homeless on November 20, 2019. However, Kelley apparently did not provide the

Sheriff with detailed descriptions of places where he intended to stay, instead giving

no information. The failure to provide this information was a violation of the

requirements set forth in R.C. 2950.05 and 2950.06. Thus even if failing to contact

the Sheriff daily was not a violation of 2950.06(F), Kelley's failure to provide the

required information to the Sheriff when notifying that office of his new status as

homeless was a violation of the statute. Kelley's counsel was not ineffective by

failing to advise him that the failure to report daily to the Sheriff's office was not,

in and of itself, the basis for a violation of R.C. 2950.06(F) as set forth in Count II

of the indictment. The first assignment of error is overruled.

{¶6} In the second assignment of error, Kelley claims that his counsel was

ineffective for failing to advise the trial court that Kelley's failure to report daily to



1

This Court notes that the Hancock County Sheriff's Office has apparently set forth a requirement that

homeless registrants report to the Sheriff's Office daily. Failure to do so would not necessarily be a violation

of R.C. 2950.06 as that time frame is not set forth in the statute. However, we need not address whether the

policy is permissible to resolve this appeal. Case No. 5-20-33

-6-

the Sheriff's Department was not a violation of R.C. 2950.06. A trial judge is

presumed to know the law. See State v. Thomas, 97 Ohio St.3d 309, 2002-Ohio6624, ¶ 57, 779 N.E.2d 1017 and State v. Bickley, 3d Dist. Union Nos. 14-18-05,

14-18-06, 2019-Ohio-16, ¶ 18. Defense counsel's alleged failure to raise the issue

before the trial court is not prejudicial because the trial court can read the statute

itself and is presumed to have done so. Any failure by defense counsel in this

circumstance would be resolved by the trial court's own knowledge. Defense

counsel did present an argument in mitigation and the trial court noted that it was

somewhat persuasive. The trial court then imposed an aggregate prison term lower

than that recommended by either the PSI or by the State. This Court finds that any

alleged error in failing to raise this matter to the trial court was not prejudicial and

thus does not rise to the level of ineffective assistance of counsel. The second

assignment of error is overruled

Having found no prejudicial error in the particulars assigned and

argued, the judgment of the Court of Common Pleas of Hancock County is affirmed.



Judgment Affirmed