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State v. Storey

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 29, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
ARTHUR STOREY, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-17-622531-A and CR-18-627189-A

         JUDGMENT: AFFIRMED IN PART, VACATED IN PART, AND REMANDED

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Janna R. Steinruck, Assistant Prosecuting Attorney, for appellee.

          Stephen L. Miles, for appellant.

          JOURNAL ENTRY AND OPINION

          RAYMOND C. HEADEN, JUDGE

         I. Statement of the Facts

         {¶ 1} Appellant Arthur Storey ("Storey") appeals from the trial court's conviction, entered after guilty pleas, sentencing him to four years' incarceration. Storey contends his counsel was ineffective and his pleas were not knowingly, voluntarily, or intelligently made in violation of Crim.R. 11. For the reasons that follow, we affirm in part, vacate in part, and remand to the trial court.

         {¶ 2} On November 6, 2017, Storey was indicted in Cuyahoga C.P. No. CR-17-622531-A for burglarizing an elderly woman's home. On April 11, 2018, Storey was indicted in Cuyahoga C.P. No. CR-18-627189-A for breaking and entering and vandalizing a business. Storey pleaded not guilty to the indictments under CR-17-622531-A and CR-18-627189-A on March 28, 2018, and April 16, 2018, respectively.

         {¶ 3} On June 25, 2018, Storey withdrew his previously entered not guilty plea under CR-17-622531-A and pleaded guilty to an amended Count 1 of burglary in violation of R.C. 2911.12(A)(1). In exchange for his guilty plea, the state agreed to remove the notice of prior conviction specification and repeat violent offender specification under RC. 2941.149 and nolled Count 2. On the same date, Storey withdrew his previously entered not guilty plea under CR-18-627189-A and pleaded guilty to breaking and entering, in violation of RC. 2911.13(A), Count 1, and to vandalism, in violation of R.C. 2909.05(B)(1)(a), Count 2. In exchange for his guilty pleas under CR-18-627189-A, the state nolled Counts 3, 4, and 5. The court accepted Storey's pleas and found him guilty. The court scheduled a sentencing hearing on August 13, 2018.

         {¶4} During the sentencing hearing, the court imposed a four-year sentence - four years on CR-17-622531-A, amended Count 1, burglary, to be served concurrently with two 12-month sentences on CR-18-627189-A, Count 1, breaking and entering, and Count 2, vandalism.

         {¶ 5} Storey now appeals, raising two assignments of error for our review.

         II. Law and Analysis

         A. Ineffective Assistance of Counsel

         {¶ 6} The Ohio Supreme Court has provided this standard for reviewing claims of ineffective assistance of counsel:

Reversal of convictions for ineffective assistance of counsel requires that the defendant show, first, that counsel's performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674.

State v. Linder, 8th Dist. Cuyahoga No. 106600, 2018-Ohio-3951, ¶ 35, quoting State v. Hanna,95 Ohio St.3d 285, 2002-Ohio-2221, 767 N.E.2d 678, ¶ 109. To establish deficient performance, "a defendant must demonstrate that counsel's performance fell below an objective standard of reasonable representation." (Citations omitted.) State v. Bell, 8th Dist. Cuyahoga No. 105000, 2017-Ohio-7168, ΒΆ 23. Further, prejudice is found where "there is a reasonable probability that, but for counsel's ...


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