Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-18-628068-A
Michael C. O'Malley, Cuyahoga County Prosecuting
Attorney, and Shannon M. Raley, Assistant Prosecuting
Attorney, for appellee.
R. Fischbein-Cohen, for appellant.
JOURNAL ENTRY AND OPINION
C. GALLAGHER, JUDGE.
1} Tomika Jones-McFarlane appeals her conviction for
menacing by stalking, a first-degree misdemeanor. We affirm.
2} Neither party provided a recitation of the facts
of this case. This omission is accepted as a concession that
the underlying factual basis for the guilty plea is
irrelevant to the outcome of this appeal. In the indictment,
Jones-McFarlane was accused of engaging in a pattern of
conduct that knowingly caused the victim to believe that
Jones-McFarlane would cause the victim or her family member
physical harm or mental distress. The conduct was alleged to
have occurred over a period of a few months. In exchange for
pleading guilty to that allegation, the complaint was amended
to delete a furthermore clause alleging that Jones-McFarlane
trespassed on the land where the victim worked or lived while
engaging in the criminalized behavior. See generally
R.C. 2903.211. This deletion reduced the severity of the
felony-level offense to that of a misdemeanor. Id.
3} In the first assignment of error, Jones-McFarlane
argues that the trial court abused its discretion by imposing
a suspended 180-day jail term of imprisonment and a two-year
term of community control sanctions, which was the maximum
potential sentence for the misdemeanor offense. According to
Jones-McFarlane, the two years of community control
sanctions, particularly when coupled with the suspended
180-day jail sentence, is too severe of a sentence for a
misdemeanor of the first degree.
4} In essence, this argument is nothing more than a
critique of the policy rationale underlying a sentence that
is otherwise authorized by law. Jones-McFarlane's
arguments do not implicate the particular facts underlying
her sentence, but are more appropriately categorized as a
general challenge to the statutory sentencing structure. The
penalties for statutorily proscribed conduct are purely a
matter for the legislature. State v. Williams, 148
Ohio St.3d 403, 2016-Ohio-7658, 71 N.E.3d 234, ¶ 20.
"A court has no power to substitute a different sentence
for that provided for by statute or one that is either
greater or lesser than that provided for by law."
Id. As a result, even if we were to empathize with
the argument regarding the severity of the punishment for a
first-degree misdemeanor, we cannot question the policy
concerns underlying the overall length of any statutory
5} The legislature has unambiguously authorized a
trial court to impose a 180-day term of jail and a two-year
term of community control sanctions. It cannot be concluded
that the statutory penalties are per se unreasonable because
those sentences are attached to a first-degree misdemeanor.
In light of the fact that Jones-McFarlane has not advanced
any arguments challenging the trial court's discretion to
impose an authorized sentence based on the particular facts
of her case, the first assignment of error is overruled.
6} In the second assignment of error,
Jones-McFarlane claims that her plea was not knowingly,
voluntarily, or intelligently entered because her attorney
pressured her into pleading guilty and her mental condition
precluded her from making an informed decision at the time of
the plea colloquy.
7} Before the trial court imposed the final sentence
but after the change-of-plea hearing, Jones-McFarlane voiced
her dissatisfaction with her appointed counsel. In an
abundance of caution, the trial court permitted the filing of
a presentence motion to withdraw the guilty plea and the
public defender's office was appointed to represent
Jones-McFarlane moving forward. Following the appointment of
new counsel, Jones-McFarlane voluntarily withdrew the motion
to vacate her plea and agreed to proceed to sentencing.
8} In light of the fact that the trial court
appointed new counsel, we need not consider
Jones-McFarlane's claim to have been pressured into
pleading guilty by her attorney before the trial court
permitted the change in representation, even if we could
consider such a claim in a direct appeal. See, e.g.,
State v. Baker, 1st Dist. Hamilton No. C-050791,
2006-Ohio-4902, ¶ 18 (claims that an attorney pressured
a defendant into pleading guilty necessarily rely on facts
outside of the appellate record). Any alleged deficiency in
appointed counsel's performance during the change-of-plea
hearing was mitigated by the change in counsel, especially
considering the fact that the public defender's office
was appointed for the sole purpose of prosecuting the motion
to withdraw the guilty plea, which itself was entirely based
on the alleged pressure exerted by her former counsel of
9} In addition, Jones-McFarlane has not demonstrated
that her plea was anything but in compliance with the law. In
this respect, Jones-McFarlane claims that her reliance on
medications to stabilize her mental conditions precluded the
ensuing plea from being ...