Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case Nos. CR-17-622531-A and CR-18-627189-A
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
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.
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.
Law and Analysis
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, ¶ 23. Further,
prejudice is found where "there is a reasonable
probability that, but for counsel's ...