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State v. Reinthaler

Court of Appeals of Ohio, Seventh District, Mahoning

June 21, 2018

STATE OF OHIO, Plaintiff-Appellee,
v.
JOSEPH J. REINTHALER, JR., Defendant-Appellant.

          Atty. Paul J. Gains, Mahoning County Prosecutor and Atty. Nicholas A. Brevetta, Assistant Prosecuting Attorney for Plaintiff-Appellee

          Joseph J. Reinthaler, Jr., Pro se

          BEFORE: Cheryl L. Waite, Carol Ann Robb, Kathleen Bartlett, Judges.

          OPINION AND JUDGMENT ENTRY

          PER CURIAM.

         {¶1} Appellant Joseph J. Reinthaler, Jr. has filed an Application for Reopening his appeal pursuant to App.R. 26(B). Appellant pleaded guilty and was convicted of one count of tampering with records in violation of R.C. 2913.42(A)(2), (B)(1)(4), a felony of the third degree, one count of forgery in violation of R.C. 2913. (A)(3)(C), a felony of the fifth degree, one count of engaging in a pattern of corrupt activity in violation of R.C. 2923.32(A)(3), (B)(1), a felony of the first degree, and sixty-seven counts of tampering with records in violation of R.C. 2913.42(A)(2), (B)(1)(4), felonies of the third degree.

         {¶2} His guilty plea and conviction were based on a pattern of corrupt activity at his automobile dealership, where he would accept used automobiles in trade, then resell them without discharging the lien of the previous owner. On direct appeal, Appellant challenged the voluntary nature of his plea, as well as propriety of the trial court's imposition of consecutive sentences. We affirmed his convictions and sentence, but remanded the matter for the limited purpose of entering a nunc pro tunc entry that memorialized the trial court's findings with respect to consecutive sentences at the sentencing hearing. As of the date of this order, no nunc pro tunc order has been filed by the trial court.

         {¶3} A criminal defendant may apply for reopening of his appeal from the judgment of conviction and sentence based on a claim of ineffective assistance of appellate counsel. App.R. 26(B)(1). The application for reopening cannot merely allege that appellate counsel rendered ineffective assistance for failing to brief certain issues. Rather, the application must demonstrate that there is a "genuine issue as to whether the applicant was deprived of the effective assistance of counsel on appeal." App.R. 26(B)(5).

         {¶4} The test for ineffective assistance of appellate counsel has two parts: establishing that counsel's performance was deficient, and that this resulted in prejudice. State v. Tenace, 109 Ohio St.3d 451, 2006-Ohio-2987, 849 N.E.2d 1, ¶ 5, citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); App.R. 26(B)(9). Appellant must show that counsel's performance was so deficient that it fell below an objective standard of reasonableness and, but for this substandard representation, the outcome of the case would have been different. Strickland at 687. Establishing ineffective assistance of appellate counsel means that the applicant must prove that counsel was deficient for failing to raise the issues he now presents and that there was a reasonable probability of success had he presented those claims on appeal. State v. Were, 120 Ohio St.3d 85, 2008-Ohio-5277, 896 N.E.2d 699, ¶ 10-11.

         {¶5} However, appellate counsel need not raise every possible issue in order to render constitutionally effective assistance. Tenace at ¶ 7, citing Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). Counsel is expected to focus on the stronger arguments and leave out the weaker ones, as this strategy is generally accepted as the most effective means of presenting a case on appeal. State v. Adams, 7th Dist. No. 08 MA 246, 2012-Ohio-2719, ¶ 8-12.

         {¶6} First, it is important to note that Appellant did not fulfill the requirements of App.R. 26(B)(2)(d), insofar as he failed to submit a sworn statement of the basis for his claim that appellate counsel's representation was deficient with respect to the assignments of error or arguments raised pursuant to division (B)(2)(c), and the manner in which the deficiency prejudicially affected the outcome of the appeal.

         {¶7} Appellant advances four assignments of error. First, he argues that the trial court imposed an aggregate sentence of thirteen years at the sentencing hearing, but an aggregate sentence of fourteen years in the judgment entry of sentencing.

         {¶8} In fact, the trial court imposed twelve-month concurrent sentences for each of the sixty-seven counts of tampering with records. At the sentencing hearing, the trial court stated that the twelve-month concurrent sentences were to be served concurrently with the twelve-year consecutive sentences imposed for counts one, two, and three. In the judgment entry, the trial court wrote that the twelve-month concurrent sentences were to be served consecutively to the twelve-year consecutive sentence imposed for counts one, two, and three.

         {¶9} Crim.R. 43(A) provides that "the defendant must be physically present at every stage of the criminal proceeding and trial, including * * * the imposition of sentence." Because a defendant is required to be present when sentence is imposed, it constitutes reversible error for the trial court to impose a sentence in its judgment entry different than the sentence announced at the sentencing hearing in defendant's presence. If there exists a variance between the sentence pronounced in open court and the sentence imposed by a court's judgment entry, a remand for resentencing is required. State v. Williams, 6th Dist. No. L-11-1084, 2013-Ohio-726, 987 N.E.2d 322, ¶ 49. See also State v. Quinones, 8th Dist. No. 89221, 2007-Ohio-6077, ¶ 5; State v. Hess, 7th Dist. No. 00-JE-40, 2001-Ohio-3463. Therefore, Appellant's first assignment of error has merit.

         {¶10} Next, Appellant asserts that the summary of his crimes provided at the sentencing hearing by the prosecutor and Amanda Butler, a Bureau of Motor Vehicles investigator, misstated his criminal conduct. (11/3/16 Sent. Hrg., pp. 4-5.) He specifically denies in his brief that he intentionally failed to discharge pre-existing liens before re-selling the used automobiles but, as previously stated, offered no affidavit containing a sworn statement. More importantly, Appellant was given an opportunity to allocute at the sentencing hearing. In other words, ...


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