State v. Williams

[Cite as State v. Williams, 

2014-Ohio-3415

.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 100459



                                           STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                      LASHAWN WILLIAMS

                                                        DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED


                                  Criminal Appeal from the
                           Cuyahoga County Court of Common Pleas
                                  Case No. CR-11-555711

        BEFORE: Rocco, P.J., Keough, J., and Kilbane, J.

        RELEASED AND JOURNALIZED: August 7, 2014
                                   -i-

ATTORNEY FOR APPELLANT

Christopher J. Jankowski
John Brooks Cameron & Associates
247 East Smith Rod
Medina, Ohio 44256

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Brett Kyker
Assistant Prosecuting Attorney
Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
KENNETH A. ROCCO, P.J.:

      {¶1} Defendant-appellant Lashawn Williams appeals from his conviction and

sentences for pandering sexual material involving a minor and for possession of

criminal tools. Williams argues that his sentences are contrary to law and that his

guilty plea was not made knowingly, voluntarily, and intelligently due to ineffective

assistance of counsel. Finding no merit to any of these arguments, we affirm the

trial court’s final judgment.

      {¶2}    On November 3, 2011, Williams was indicted on twenty counts of

pandering sexually oriented material involving a minor, three counts of illegal use

of a minor in nudity-oriented material or performance, and one count of possessing

criminal tools. All of the counts included forfeiture specifications.   The charges

stemmed from allegations that Williams had downloaded and shared computer files

containing child pornography.

      {¶3} In a hearing held on July 15, 2013, Williams retracted his former plea of

not guilty and entered a plea of guilty to five counts of pandering sexually oriented

material involving a minor (second-degree felonies) with forfeiture specifications

(R.C. 2907.322(A)(1), (2); R.C. 2941.1417); and to one count of possessing

criminal tools (fifth-degree felony) with a forfeiture specification (R.C. 2923.24;

R.C. 2941.1417). The remaining counts were nolled.
      {¶4} The trial court accepted Williams’s plea.            In preparation for

sentencing, Williams was referred for a court psychiatric examination and

sentencing memoranda were filed. On August 30, 2013, Williams appeared for

sentencing. The trial court imposed a prison sentence of seven years on each

count of pandering sexually oriented materials, and twelve months for possession of

criminal tools. All sentences were ordered to run concurrently. Williams was

found to be a Tier II sex offender and he was ordered to forfeit his scandisk and his

computer. The trial court also ordered postrelease control for five years.

      {¶5} Williams now appeals, setting forth three assignments of error for our

review:

      I. Williams’s sentence for pandering sexually oriented matter
      involving a minor and for possessing criminal tools does not comply
      with the underlying purposes of sentencing, is contrary to law, and is
      unsupported by the record.

      II. Williams did not knowingly, voluntarily, and intelligently enter a
      guilty plea because trial counsel could not properly advise Williams as
      she failed to personally review sensitive evidence and she admitted she
      did not understand computers.

      III. Williams did not knowingly, voluntarily, and intelligently enter a
      guilty plea because Williams was denied effective assistance of
      counsel.

      {¶6} Williams’s first assignment of error asserts that the trial court’s

sentences were contrary to law and were unsupported by the record. We review
Williams’s sentence under the standard set forth in R.C. 2953.08(G)(2), which

provides in pertinent part:

      The court hearing an appeal under division (A), (B), or (C) of this
      section shall review the record, including the findings underlying the
      sentence or modification given by the sentencing court.

      The appellate court may increase, reduce, or otherwise modify a
      sentence that is appealed under this section or may vacate the sentence
      and remand the matter to the sentencing court for resentencing. The
      appellate court’s standard for review is not whether the sentencing
      court abused its discretion. The appellate court may take any action
      authorized by this division if it clearly and convincingly finds either of
      the following:

      (a) That the record does not support the sentencing court’s findings
      under division (B) or (D) of section 2929.13, division (B)(2)(e) or
      (C)(4) of section 2929.14, or division (I) of section 2929.20 of the
      Revised Code, whichever, if any, is relevant;

      (b) That the sentence is otherwise contrary to law.

      {¶7} A sentence is not contrary to law where the trial court (1) considered the

purposes and principles of sentencing under R.C. 2929.11; (2) considered the

seriousness and recidivism factors set forth in R.C. 2929.12; (3) properly applied

postrelease control; and (4) sentenced the defendant within the permissible statutory

range. State v. Watson, 8th Dist. Cuyahoga No. 100673, 

2014-Ohio-2191, ¶ 6

.

As this court has repeatedly explained, “‘[t]he decision as [to] how long a sentence

should be — assuming it falls within a defined statutory range — is a pure exercise

of discretion.’” Id. at ¶ 7, quoting State v. Akins, 8th Dist. Cuyahoga No. 99478,


2013-Ohio-5023, ¶ 16

. Unless a defendant claims that the trial court “failed to

fulfill a statutorily-mandated obligation before imposing sentence, a sentence

falling within the statutory range is unreviewable.” 

Id.,

 citing Akins at ¶ 16.

      {¶8} Williams argues that his sentence is harsher than necessary given the

number of files he downloaded and the time frame in which he downloaded the

files. In support of this argument, he points to the mitigating evidence that he

presented in the trial court. While Williams argues that the trial court was overly

focused on the severity of his crimes, he does not assert that the trial court failed to

consider his mitigating evidence. And the record confirms that the trial court did,

in fact, consider Williams’s mitigating evidence.

      {¶9} We conclude that Williams’ sentence is not contrary to law and that the

sentence is supported by the record.        Williams’s concurrent sentences are all

within the statutory range. See R.C. 2929.14. The trial court indicated that it had

considered the principles and purposes of sentencing as set forth in R.C. 2929.11, as

well as the seriousness and recidivism factors as set forth in R.C. 2929.12. There

is no indication that the trial court erred in its application of postrelease control.

For these reasons, we overrule the first assignment of error.

      {¶10} We consider Williams’s second and third assignments of error together

as both involve the same analysis.       Williams argues that, due to his defense
counsel’s deficient performance, his guilty plea was not made            knowingly,

voluntarily, and intelligently. We disagree.

      {¶11} A defendant who pleads guilty waives all appealable issues,

including the right to assert an ineffective assistance of counsel claim, except the

defendant may claim ineffective assistance of counsel on the basis that the counsel’s

deficient performance caused the plea to be less than knowing, intelligent, and

voluntary. State v. Spates, 

64 Ohio St.3d 269, 272

, 

595 N.E.2d 351

 (1992), citing

Tollett v. Henderson, 

411 U.S. 258, 267

, 

93 S.Ct. 1602

, 

36 L.Ed.2d 235

 (1973).

In such cases, a defendant can prevail only by demonstrating that there is a

reasonable probability that, but for counsel’s deficient performance, he would not

have pleaded guilty and would have insisted on going to trial. State v. Xie, 

62 Ohio St.3d 521, 524

, 

584 N.E.2d 715

 (1992); Hill v. Lockhart, 

474 U.S. 52

, 

106 S.Ct. 366

, 

88 L.Ed.2d 203

 (1985).

      {¶12} Williams cannot demonstrate that his counsel was deficient.

According to Williams, his counsel was deficient because she did not know enough

about computers and because she did not personally look at the sexual images

contained in the files found on Williams’s computer. First, “the fact that defense

counsel may not have been an expert in computers and/or peer-to-peer file-sharing

programs does not necessarily mean [s]he rendered ineffective assistance of

counsel.” State v. Cola, 8th Dist. Cuyahoga No. 99336, 

2013-Ohio-3252, ¶ 13

(rejecting similar argument). In this case, Williams’s counsel retained the services

of a computer forensic examiner who conducted an independent examination of

Williams’s computer and assisted defense counsel in understanding the resulting

data. On this record, we fail to see how defense counsel performed deficiently.

      {¶13} Second, we conclude that defense counsel did not render deficient

performance on the basis that she did not personally view the images found on

Williams’s computer. Again, we rely on the fact that counsel obtained the services

of a computer forensic examiner who viewed the files on behalf of defense counsel.

 Importantly, Williams fails to establish why it was imperative for defense counsel

to personally view the files. Williams does not assert that there was any question

as to whether the individuals portrayed in the pornographic images were minors

who were engaged in sexual acts with adult men.

      {¶14} Because Williams cannot demonstrate that his counsel’s performance

was deficient, he cannot prevail on his claim that his guilty plea was not made

knowingly, voluntarily, and intelligently. Accordingly, we overrule the second

and third assignments of error.

      {¶15} The trial court’s judgment is affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.
      It is ordered that a special mandate be sent to said court to carry this

judgment into execution.



      A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.



__________________________________________
KENNETH A. ROCCO, PRESIDING JUDGE

KATHLEEN ANN KEOUGH, J., and
MARY EILEEN KILBANE, J., CONCUR