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State v. Lewis

Court of Appeals of Ohio, Third District, Logan

May 14, 2018

STATE OF OHIO, PLAINTIFF-APPELLEE,
v.
JASMINE D. LEWIS, DEFENDANT-APPELLANT.

          Appeal from Logan County Common Pleas Court Trial Court No. CR17-06-0180

          Kort Gatterdam for Appellant

          Eric C. Stewart for Appellee

          OPINION

          WILLAMOWKSI, P.J.

         {¶1} Defendant-appellant Jasmine D. Lewis ("Lewis") brings this appeal from the judgment of the Court of Common Pleas of Logan County. Lewis alleges on appeal that she was denied the effective assistance of counsel. For the reasons set forth below, the judgment is affirmed.

         {¶2} On November 23, 2016, Lewis and four of her friends made a plan to rob Jeffrey Brentlinger (Brentlinger). Lewis and one of her friends distracted Brentlinger while two other friends entered Brentlinger's home with guns. When Brentlinger confronted the two armed with the guns, he was shot and killed.

         {¶3} On June 13, 2017, the Logan County Grand Jury indicted Lewis on three counts: 1) Complicity to Aggravated Burglary in violation of R.C. 2911.11(A)(1) and 2923.03, a felony of the first degree; 2) Complicity to Aggravated Robbery in violation of R.C. 2911.01(A)(1) and 2923.03, a felony of the first degree; and 3) Complicity to Murder in violation of R.C. 2903.02 and 2923.03, an unclassified felony. Doc. 2. All three counts carried firearm specifications. Id. Lewis entered pleas of not guilty to all of the counts. Doc. 10. Lewis later changed her plea to count three to guilty pursuant to a plea agreement. Doc. 55. The terms set forth in the written plea agreement advised Lewis that the maximum sentence she could receive would be a life term. Id. In exchange for the guilty plea to count three, the State agreed to dismiss the other two counts and the gun specification. Doc. 55. A hearing was held on the change of plea on August 14, 2017. Doc. 56. After speaking with Lewis, the trial court accepted the change of plea and found Lewis guilty of complicity to commit murder. Id. The remaining charges and the gun specification were dismissed. Id.

         {¶4} A sentencing hearing was held on September 21, 2017. Doc. 58. After reviewing the record, the oral statements, victim impact statements and the presentence investigation report, the trial court considered the statutory sentencing factors. Id. The trial court then imposed a prison term of life in prison with parole eligibility after fifteen years. Id. Lewis filed a notice of appeal from this judgment. Doc. 69. On appeal, Lewis raises the following assignment of error.

[Lewis'] trial counsel rendered ineffective assistance of counsel, in violation of her constitutional rights under the Sixth and Fourteenth Amendments to the United States Constitution and Article I, Sections 10 and 16, of the Ohio Constitution.

         {¶5} Lewis' sole assignment of error alleges that she was denied effective assistance of counsel.

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 0.0.2d 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 0.0.3d 495, 498, 358 N.E.2d 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 0.0.2d 567, 209 N.E.2d 164; State v. Jackson, 64 Ohio St.2d at 110-111, 18 0.0.3d at 351, 413 N.E.2d at 822.

State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). "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, 3d Dist. Seneca No. 13-15-42, 2016-Ohio-3499, ¶ 20.

         {¶6} Lewis claims that her counsel was ineffective for not informing her that she could not get a sentence lower than life in prison with parole eligibility after fifteen years. In support, Lewis cites to an argument made by her attorney at sentencing for the possibility of parole before fifteen years. Lewis alleges that counsel's representation that the sentence could be lower was what caused her to agree to plead guilty. There is no question that anyone convicted of violating R.C. 2903.02 "shall be imprisoned for an indefinite term of fifteen years to life." R.C. 2929.02(B)(1). Thus, counsel's alleged statement that ...


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