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State v. Jones-McFarlane

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 12, 2019

STATE OF OHIO, Plaintiff-Appellee,
TOMIKA JONES-MCFARLANE, Defendant-Appellant.

          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.

          Ruth R. Fischbein-Cohen, for appellant.



         {¶ 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 sentence.

         {¶ 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 record.

         {¶ 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 ...

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