Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-17-614028-A
ATTORNEY FOR APPELLANT Sean Boris, Law Office of Sean Boris.
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor, Holly Welsh Assistant County Prosecutor.
BEFORE: Stewart, P.J., S. Gallagher, J., and Laster Mays, J.
JOURNAL ENTRY AND OPINION
J. STEWART, P. J.
Defendant-appellant Leon Hicks pleaded guilty to endangering
children, a felony of the third degree, and disseminating
matter harmful to juveniles, a felony of the fourth degree.
The court ordered Hicks to serve maximum sentences of 3 years
on the endangering children count, and 18 months on the
disseminating harmful matter count, and further ordered those
sentences to be served consecutively. Hicks appeals,
complaining that the court wrongly stated that he had a
juvenile record, that it ordered consecutive service based on
facts not on the record, and that defense counsel was
ineffective for agreeing that the offenses were not allied
and should not merge for sentencing.
Hicks concedes that the court considered the purposes and
principles of felony sentencing set forth in R.C. 2929.11 as
well as the R.C. 2929.12 factors guiding the court's
discretion in sentencing. He complains, however, that the
court based the sentence, in part, on Hicks's having a
juvenile record ("Mr. Hicks as a juvenile was several
times in the juvenile court, he was adjudicated delinquent on
drug trafficking offenses on two different occasions."),
but that the presentence investigation report does not
contain any reference to a juvenile record. We have reviewed
the presentence investigation report, and it refutes
Hicks's assertion - the report indicates that Hicks was
twice "adjudged delinquent" in separate cases on
counts of drug trafficking and possession consistent with the
court's statements at sentencing. The court correctly
cited Hicks's juvenile record.
Hicks also argues that the presentence investigation report
contains nothing about his likelihood of recidivism. We
reject this assertion because the presentence investigation
report not only detailed Hicks's lengthy criminal
history, it specifically stated that he was at a "HIGH
Risk Level" of reoffending. And we would add that the
lengthy criminal history is itself evidence supporting the
court's conclusions about Hicks's risk of recidivism.
State v. McCree, 2017-Ohio-791, 86 N.E.3d 57, ¶
23 (12th Dist).
Hicks next argues that with respect to consecutive service,
the court relied on information outside the record; namely,
that the court found that he assaulted the victim "under
the victim's roof in the custody of the victim's
sister who was entrusted with her care and protection."
The court accurately cited information provided in the
presentence investigation report. In addition, we note that at
the time Hicks entered his guilty plea, the state outlined
the same fact to the court, with no objection from defense
Finally, Hicks argues that he was denied the effective
assistance of counsel because trial counsel agreed that the
offenses of child endangering and disseminating matter
harmful to a juvenile were not allied offenses that should
merge for sentencing. Tellingly, Hicks does not say why
defense counsel wrongly conceded that the counts did not
merge for sentencing - he merely states a conclusion without
any rationale. We summarily overrule this assigned error.
See App.R. 16(A)(7). In addition, we note that both
the court and counsel below addressed in detail the issue of
whether the offenses merged for sentencing. Those discussions
indicate that the counts of endangering children and
disseminating harmful matter to a juvenile were based on
different conduct. The record thus gives no basis for us to
conclude that defense counsel violated an essential duty owed
to Hicks. See Strickland v. Washington, 466 U.S.
668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
ordered that appellee recover of appellant costs herein
court finds there were reasonable grounds for this appeal.
ordered that a special mandate issue out of this court
directing the common pleas court to ...