[Cite as State v. Kessel,

.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 27997 : v. : Trial Court Case No. 2014-CR-3136 : JACOB ANTHONY KESSEL : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 12th day of April, 2019.

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MATHIAS H. HECK, JR., by MICHAEL J. SCARPELLI, Atty. Reg. No. 0093662, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

TYLER D. STARLINE, Atty. Reg. No. 0078552, 202 North Limestone Street, Suite 250, Springfield, Ohio 45503 Attorney for Defendant-Appellant

............. -2-

DONOVAN, J.

{¶ 1} This matter is before the Court on the May 15, 2018 Notice of Appeal of

Jacob Anthony Kessel. Kessel appeals from the trial court’s May 8, 2018 judgment entry,

finding that Kessel had violated the conditions of his community control sanctions and

imposing a sentence of 12 months on each of two counts, possession of cocaine and

possession of heroin, to be served consecutively. We hereby affirm the judgment of the

trial court.

{¶ 2} On October 29, 2014, Kessel was indicted on one count of possession of

cocaine (less than five grams) and one count of possession of clonazepam; each offense

was a felony of the fifth degree in violation of R.C. 2925.11(A). Kessel pled not guilty on

November 13, 2014. On November 24, 2014, Kessel filed a motion for intervention in

lieu of conviction (ILC).

{¶ 3} On December 31, 2014, the trial court found that Kessel was eligible for ILC,

“having tendered a plea of guilty to” possession of cocaine, and it stayed all criminal

proceedings; the court ordered Kessel to complete treatment at Eastway and imposed

other conditions of ILC.

{¶ 4} On March 23, 2015, the trial court was informed that Kessel had been

arrested on March 16, 2015 for theft. In June 2015, the probation officer reported that

Kessel’s whereabouts had been unknown since April 3, 2015, and a capias was issued.

A notice of alleged violations of community control was also issued, asserting that Kessel

was “declared an absconder from the Probation Department”; his case with Eastway had -3-

been closed; and he had been cited for disorderly conduct. The court found that the

circumstances did not justify a violation of community control and reinstated community

control sanctions, including ILC.

{¶ 5} On August 11, 2015, Kessel’s probation officer notified the court that he had

been arrested on August 9, 2015, for possession of drugs and possession of drug

paraphernalia. On August 19, 2015, the trial court issued a notice of an ILC revocation

hearing, which stated that Kessel had failed to refrain from violating of the law, and had

not informed his probation officer of his arrest; failed to obtain employment; failed to

comply with his child support order; and had used or possessed controlled substances.

Specifically, the notice provided that, on August 11, 2015, Kessel had admitted to the use

of benzodiazepines, methamphetamine and opiates, and that he had failed to comply with

treatment at Eastway on two occasions and with “outpatient treatment at SAMI.” A

hearing was scheduled for September 2, 2015.

{¶ 6} On September 1, 2015, Kessel was charged by a bill of information with one

count of possession of heroin (less than one gram), in violation of R.C. 2925.11(A), a

felony of the fifth degree. Kessel waived indictment and pled guilty to possession of

heroin on September 2, 2015. On September 3, 2015, the trial court initially continued

Kessel on supervision and ordered him to complete drug intervention at S.T.O.P.

However, later that same day, it “having come to the attention of the Court that [Kessel]

was unsuccessful at completing the drug treatment program outlined by the Court,” the

court revoked ILC.

{¶ 7} On September 10, 2015, the court issued a judgment entry of conviction for

the offenses of possession of cocaine and possession of heroin. The court sentenced -4-

Kessel to community control sanctions for a period not to exceed five years, with “ILC

specific conditions for a period of not less than one year.”

{¶ 8} On April 29, 2016, the court issued a capias for Kessel’s arrest because the

community control officer informed the court that his whereabouts had been unknown

since January 20, 2016. On May 24, 2016, a notice of a community control revocation

hearing was issued. The notice provided that Kessel had failed to follow the law and to

notify his probation officer upon his arrest; failed to obtain employment; failed to comply

with his child support order; failed to report to probation as ordered; and tested positive

for benzodiazepine and methamphetamine at a December 21, 2015 urinalysis. He was

ordered to report to the probation department by June 20, 2016, to obtain a court date,

but he did not do so.

{¶ 9} On July 15, 2016, the court issued a capias for Kessel on the basis that his

whereabouts had been unknown since June 17, 2016. Kessel was arrested on July 24.

On July 29, 2016, the court reinstated Kessel to community control, with the requirement

that he successfully complete the MonDay Correctional Program.

{¶ 10} On August 21, 2017, the court again issued a capias for Kessel’s arrest,

because his whereabouts had been unknown to his probation officer since April 26, 2017.

On September 14, 2017, a notice of a community control revocation hearing was issued.

The violations cited included that Kessel had failed to maintain and verify employment

and attend the Goodwill Easter Seals employment class; had been declared an

absconder for the fourth time; and had failed to provide urinalysis screens and follow

through with aftercare treatment. After a hearing, the court reinstated Kessel’s

community control, with the requirement that Kessel be placed on intensive supervision -5-

with the drug court.

{¶ 11} On November 16, 2017, the court issued a capias for Kessel’s arrest due to

his failure to report to probation; his whereabouts had been unknown since October 30,

2017. On December 11, 2017, the court reinstated Kessel’s community control and

ordered him to remain in custody to enter and complete the Nova Morningstar residential

treatment program and complete any recommended aftercare.

{¶ 12} On April 17, 2018, the court issued a notice of a community control

revocation hearing. The notice stated that Kessel had been arrested on February 27,

2018 by Huber Heights police for possession of drugs, and that he failed to advise his

probation officer of his arrest; failed to verify employment; failed to report to probation on

March 22, 2018, as scheduled; admitted to using or tested positive for multiple illegal

substances on February 15, 2018 and March 15, 2018, and recently admitted to using

and tested positive for methamphetamine and ecstasy in the Montgomery County Jail

after being incarcerated for 17 days; failed to comply with his case plan and child support

orders; and refused to comply with the MonDay program on April 13, 2018.

{¶ 13} A hearing was conducted on April 25, 2018. The following exchange

occurred:

THE COURT: * * * This is State of Ohio versus Jacob Kessel, Case

2014-CR-3136. My understanding, you’ve hired private counsel?

THE DEFENDANT: Yes, ma’am.

THE COURT: * * * And that is?

THE DEFENDANT: Patrick Flanagan.

THE COURT: We can set this over for a week. * * * -6-

DEFENSE COUNSEL: Do you want me to do the reading, Your

Honor? Since it’s the revocation. The first reading?

THE COURT: Right. Because we continued it - - that would be a

good idea.

DEFENSE COUNSEL: * * * At this time, we would like to

acknowledge receipt of the notice of revocation, waive the formal reading

and waive the evidentiary hearing, enter a general denial at this time and

ask for a one-week continuance, Your Honor.

THE COURT: * * * If you would sign the continuance and if you

would call Mr. Flanagan’s office, either him or - -

DEFENSE COUNSEL: Mr. Calhoun?

THE COURT: - - Jimmy Calhoun. And if they verify that they

represent Mr. Kessel and put on a notice of appearance then you can

withdraw otherwise we’ll see you again next week.

DEFENSE COUNSEL: * * * Thank you Your Honor.

{¶ 14} No notice of appearance by counsel retained on behalf of Kessel was filed.

Attorney Marshall Lachman appeared on Kessel’s behalf at the May 2, 2018 hearing.1

{¶ 15} The transcript of the May 2 hearing was not initially submitted to this court,

although a praecipe filed on May 15, 2018, indicated that Kessel’s attorney had requested

transcripts related to the probation revocation hearings held on April 18, 2018, April 25,

2018, and May 2, 2018. Initially, only the April 25, 2018 hearing was transcribed. On

1 We note that neither the prosecutor nor defense counsel was identified by name in the transcript of the April 25, 2018 hearing. -7-

July 23, 2018, Kessel filed a motion to supplement the incomplete record with additional

transcripts, to which the praecipe was attached. Kessel’s attorney asserted that,

“through an oversight,” the April 18 and May 2 transcripts had not been prepared, and

that “[f]or the record before this court to be complete, all three transcripts are needed.”

This court sustained the motion to supplement the record on July 27, 2018. The transcript

of the May 2, 2018 hearing was filed in this court on August 10, 2018.

{¶ 16} However, on November 7, 2018, the State filed a motion to correct the

record pursuant to App.R. 9(E), which was addressed to the transcript of the May 2, 2018

sentencing hearing, filed on August 10. The State’s motion provided:

At the beginning of the transcript of the May 2, 2018 drug court

hearing, a sidebar takes place before the trial court proceeds to sentencing.

The transcriptionist states that the sidebar could not be transcribed because

of static or white noise. However, the State has reviewed the video

recording of the hearing, and the discussion between the court, the

prosecutor, Appellant’s trial counsel, and a probation officer at the sidebar

is perfectly clear. The discussion lasts several minutes, and the

statements made are material to the issues raised in Appellant’s

assignments of error. Therefore, the State respectfully asks that this Court

order the transcript of May 2, 2018 to be supplemented to include a full

transcription of the sidebar.

Additionally, the transcript of the May 2, 2018 hearing indicates that

the Honorable Dennis J. Langer presided. However, based upon viewing

the video recording of the hearing, it is clear that the Honorable Timothy N. -8-

O’Connell was the presiding judge. Therefore, the State respectfully asks

that this Court order the transcript be corrected to reflect that Judge

O’Connell conducted the sentencing hearing.

{¶ 17} On November 28, 2018, this Court overruled the State’s motion to correct

the record but remanded the matter for the trial court to consider the issue. On

December 3, 2018, the State filed a motion to correct the record in the trial court, again

addressed to certain aspects of the transcript of the May 2 hearing. On December 27,

2018, the trial court sustained the State’s motion to correct the record. The court ordered

“that [the] sidebar be transcribed and made a part of the record of that hearing,” and the

court corrected the record to reflect that the May 2, 2018 hearing was “held in front of the

Honorable Timothy N. O’Connell, not the Honorable Dennis J. Langer as set forth on the

written transcription.”

{¶ 18} Thus, there are two transcripts of Kessel’s sentencing hearing in the record

before us. The first transcript was filed on August 10, 2018; it does not contain a date of

the hearing on the cover page, but it is dated “November 10, 2016, 4:21 pm” at the top of

the first page. This transcript is captioned “Transcript of Proceedings (Drug Court).” In

the transcript, after the court identifies the case, the transcript indicates, “(Sidebar held

but not able to be transcribed due to white noise.)” Kessel’s sentencing follows. A

transcript dated May 2, 2018, was filed on January 7, 2019; this transcript is captioned

“Transcript of Proceedings (Sentencing),” and it includes the sidebar omitted from the

transcript filed on August 10, 2018. Both transcripts erroneously reflect that Judge

Langer presided at the hearing. The transcript dated May 2, 2018, reflects the following

exchange: -9-

(At sidebar)

[DEFENSE COUNSEL] MR. LACHMAN: I talked to him and he’s

(indiscernible). I know I have no leverage. If there’s, the Court - - if there’s

any way we can do 18 months less 12 months (indiscernible) he won’t

appeal separate sentences (indiscernible).

(Indiscernible) in any event, but when sentence of the Court

proceeds with the (indiscernible) it’s less than 355 days of jailtime credit, we

will file an appeal. So he’s telling me if the State will agree to an 18-month

sentence (indiscernible).

[PROSECUTOR]: I don’t know (indiscernible) today. I can’t

(indiscernible) right now. I mean I - -

MR. LACHMAN: (Indiscernible) how she feels about (indiscernible).

[PROSECUTOR]: I think I would be opposed to that just in the

sense of how much jailtime credit he has.

THE COURT: (Indiscernible)

UNIDENTIFIED SPEAKER: Yes.

THE COURT: He’s kind of threatening an appeal because we’re

doing this consecutive.

UNIDENTIFIED SPEAKER: Okay.

THE COURT: Which - -

MR. LACHMAN: If he says that if he would get 18 months less the

355 (indiscernible) jail time credit (indiscernible) a, he wouldn’t appeal, and

b, (indiscernible) six months so (indiscernible) time. (Indiscernible) the -10-

question that the Court has (indiscernible) probation I asked the Court to

ask (indiscernible) the State (indiscernible).

[PROSECUTOR]: You’re in agreement (indiscernible)?

UNIDENTIFIED SPEAKER: No.

[PROSECUTOR]: You’re not?

[DEFENSE COUNSEL] LACHMAN: (Indiscernible) jumping up and

down saying she (indiscernible).

UNIDENTIFIED SPEAKER: I mean, yeah, he’s been given multiple

opportunities over and over and over, and, like I said, I went to bat for him

when (indiscernible) and said, hey, you know, let’s keep - - first of all, I got

him released from jail with the first detainer to get him into treatment. Then

I advocated for, you know, a COR bond and he basically was like

(indiscernible). So, I mean it’s ultimately up to you. I know Judge was

planning to do the 12 months. Do we want to continue it for a week?

MR. LACHMAN: I’ll double check with him. I (indiscernible) he

said (indiscernible). So (indiscernible) check that and (indiscernible) to go

forward. I would object on the (indiscernible) consecutive sentences and

if that (indiscernible) is a first-time offender (indiscernible).

UNIDENTIFIED SPEAKER: Felony - - I think - - I don’t think so.

MR. LACHMAN: (Indiscernible) the original (indiscernible).

UNIDENTIFIED SPEAKER: No, hu-huh. And I can go look - - well,

I was going to say, it’s in his (indiscernible) in here.

[PROSECUTOR]: Yeah. -11-

MR. LACHMAN: (Holding hand over microphone and talking)

UNIDENTIFIED SPEAKER: We wouldn’t be here if he would have

just said yes to MonDay, but now he knows we’re serious he’s like (making

movements) backtracking. No.

THE COURT: (Indiscernible)

UNIDENTIFIED SPEAKER: Yes. This is his only - - yeah.

THE COURT: He had no prior felonies. He had one prior

misdemeanor.

(The Court and Mr. Lachman whispering to each other from 4:25:29 to

4:25:58)

UNIDENTIFIED SPEAKER: But he’s also been on probation for

three years and we’ve tried to work with him.

[PROSECUTOR]: (Indiscernible)

UNIDENTIFIED SPEAKER: Huh?

[PROSECUTOR]: (Indiscernible)

UNIDENTIFIED SPEAKER: (Shaking head) I didn’t get him. I just

got him last year.

[PROSECUTOR]: Okay.

UNIDENTIFIED SPEAKER: He was under other supervision.

[PROSECUTOR]: I guess I don’t (holding hand over microphone

and talking)

MR. LACHMAN: Okay.

(End sidebar) -12-

{¶ 19} The court then asked the attorneys to identify themselves for the record,

and defense counsel asked, “Has there has been an initial reading on this?” The

prosecutor responded, “Yes, last week.” Defense counsel advised the court that he

spoke to Kessel and that “he’s going to admit that he violated Rule Number 1 in that he

shall refrain from violation of any law, federal, state and city. And get in touch with his

probation officer if arrested or questioned by law enforcement in that he was arrested on

February 27, 2018 by Huber Heights Police for possession of drugs and failed to advise

his probation officer.” In response to a question by the court, Kessel admitted the

violation, and he indicated in part, “I’m willing to do the time I have to do and just become

a better person at the end.”

{¶ 20} Defense counsel argued as follows:

* * * First of all, according to the revocation that was filed on April

the 17th through today’s date, Mr. Kessel is entitled to 355 days of jailtime

credit. We would - - this is, as I understand it, Mr. Kessel’s first felony

offenses as an adult, possibly as a juvenile. I’m not sure of his juvenile

record. But I understand this is his first felony offense, period. I would

object to the imposition of any kind of consecutive sentences given that

we’re talking two possession charges - - possession of cocaine, possession

of heroin. * * * I’m not sure why he wasn’t eligible at the time if he didn’t

get intervention in lieu of conviction, but I - - just given the purposes and

principles of sentencing, given the current status of first-time offenders on

these type of offenses, I believe that the imposition of consecutive

sentences, let alone the imposition of mandat [sic] - - (cell phone ringing) -13-

consecutive mandatory - - of maximum consecutive sentences is in violation

of the statutes of the state and would object to the imposition of them.

And should the Court send Mr. Kessel to prison, bearing in mind that

he has served nearly a year in prison in secure detention, be it through

MonDay, Nova, Morning Star, Nova, Morning Star again, STOP, he has

done nearly a year in custody. Should the Court impose a prison sentence,

we would ask for a reasonable (indiscernible).

{¶ 21} The court responded:

* * * Based on the information the Court has through the file and also

considering the statements, considering the purposes and principles of

sentencing as set forth in ORC 2929.11, considering the seriousness and

recidivism factors as set forth in ORC 2929.12, including but not limited to

the following: with respect to seriousness there are more serious factors

and there are less serious factors, and I think in this case the less serious

factor applies. These are non-violent offenses.

With regard to recidivism, there’s recidivism more likely and

recidivism less likely. Generally speaking, Mr. Kessel, you - - I think less

likely factor applies. You have no prior adult felony convictions. You have

one prior adult misdemeanor conviction. At least that was the situation at

the time you initially were sentenced on this.

***

Now, despite that or even considering that, and Mr. Lachman makes

some good points. However, your situation may be a little different than a -14-

typical person being sentenced on two felony 5 drug counts - - possession

counts - - because you’ve been under supervision since September of 2015,

and a lot of effort has been made to try to get you into recovery, keep you

in recovery, and have you move forward with a constructive lifestyle, and

there’s been lots of problems. And I understand about relapse to some

degree, and it maybe comes with the territory, but you have a very lengthy

history with I believe a number of non-compliances with treatment, failures

to report, failures to come to court, failures to report to your officers, and a

lot of positive urinalysis. So, I think in this case we do make a sentence that

I might not make under other circumstances for other people at another

time.

The Court will sentence in this case, and also I think it’s important to

understand that in this drug court, specialty court situation, part of it is

responsibility or consequences. Consequences come for improper

behavior, and sometimes we have to stand strong on that principle. That

there will be a consequence for improper behavior.

So, in 14-CR-3136 on Count I, the Court sentences Jacob Anthony

Kessel to a term of 12 months CRC. Also order on Count II that he serve

a term of 12 months CRC, and that term is to be served consecutive - -

those terms are to be served consecutive to each other for an aggregate

term of 24 months.

The Court, requiring the defendant to serve prison terms

consecutively, finds that given the entire history of the case that consecutive -15-

service * * * is necessary to punish the defendant. That consecutive

sentences are not disproportionate to the seriousness of the defendant’s

conduct and to the danger the defendant poses to the public. And that the

defendant’s history of criminal conduct demonstrates that consecutive

sentences are necessary to protect the public from future crime by the

defendant.

And part of the analysis here is that when one is addicted. This

Court is of the view that there’s nothing - - that’s an illness. It’s not a moral

failing, but when you are addicted there’s a high risk of engaging in criminal

behavior to support that addiction. A high percentage of our cases in this

court, forgeries, thefts, issues of credit cards, breaking and entering,

burglaries are as a result of drug addiction. So, there is a danger to the

community when one is addicted and particularly when one is not pursuing

a treatment plan, not in recovery, not working for recovery and not staying

in recovery. And I think the history here is Mr. Kessel has not worked hard

enough to be in recovery, get in recovery, stay in recovery. So, there’s a

danger to the public that to support the addiction, crimes will be committed

against persons. Now - - person’s property probably. I’m not saying

violent crimes.

***

You are eligible for shock incarceration on [sic] intensive program

prison. Based on the purposes and principles of sentencing, the

seriousness and recidivism factors, I will say that we’ve made those -16-

findings, we’ve ordered a consecutive sentence. And those weigh on one

side of the scale. As I mentioned on the seriousness and recidivism

factors, the less serious factor applies, and recidivism is less likely by virtue

of your record. And as I’ve mentioned, we have this concern about future

criminal activity because of the addiction. * * *

Now, let me - - we had indicated before that if Mr. Kessel had been

willing to go to MonDay, that would have been acceptable? Or am I

confusing his case with - -

UNIDENTIFIED SPEAKER: No. We had offered him Monday.

(Indiscernible) was on board with it until he refused it. Then there were the

issues in jail, which kind of took it off the table at that point.

THE DEFENDANT: That’s why - - ‘cause (indiscernible) it together

(indiscernible).

UNIDENTIFIED SPEAKER: Yeah. No. I mean, because of what

I told you about what happened when he was incarcerated, that was kind of

taken off the table. Additionally now, he may have another case coming

through for the February arrest, so it’s just kind of piled onto one another.

THE DEFENDANT: I was just defending myself in that case. I got

it - - the police got it all on camera and all that.

THE COURT: Well, this may all be superseded by what happens in

future charges and your federal situation. But, maybe at some future time

you might have a different idea about what you want to do regarding

treatment. It appears up to now you did not want to pursue it. -17-

So, the court is going to not disprove placement. The Court will

recommend placement if they come to you and if you become - - a place is

available for shock incarceration or intensive program prison.

***

{¶ 22} We note that on May 4, 2018, two days after the actual disposition,

attorneys Patrick Flanagan and James Calhoun filed a motion for a continuance,

requesting a one week continuance of Kessel’s sentencing that was set in this matter for

Wednesday, May 2, 2018. The motion stated:

The undersigned counsels were retained to try and help Mr. Kessel

in this case and Mr. Flanagan has met with the Defendant on numerous

occasions. Mr. Flanagan was supposed to be in court with the Defendant

on this sentencing date, however he was unable to be there at that time.

Mr. Flanagan has talked to Judge O’Connell, as the sitting Judge for Drug

Court on May 2, and it is Mr. Flanagan’s understanding that the sentencing

would be reset for May 9 so that Mr. Flanagan can ask the court to consider

the Mon[D]ay program for the Defendant.

{¶ 23} The trial court filed its judgment entry on May 8, 2018, without commenting

on the motion for a continuance. Defense counsel Lachman filed Kessel’s notice of

appeal on May 15, 2018.

{¶ 24} Kessler asserts two assignments of error herein. His first assignment of

error is as follows:

APPELLANT KESSEL WAS PREJUDICED BY THE TRIAL

COURT’S VIOLATION OF MONT. CO. C.P.R. 1.19(B) AND 3.12(E) WHEN -18-

AN ALTERNATE JUDGE, WHO WAS NEITHER ORIGINALLY ASSIGNED

TO THE CASE NOR THE SPECIFICALLY ASSIGNED DRUG COURT

JUDGE, ERRONEOUSLY PROCEEDED TO SENTENCE APPELLANT

KESSEL.

{¶ 25} Kessel asserts that he “has been prejudiced by several inexplicable

substitutions of jurist and defense counsel, unfortunately resulting in [his] being

incarcerated for a twenty-four month maximum, consecutive prison sentence.” Kessel

argues that several procedural irregularities demonstrate that the criminal justice system

“failed in this case,” and the maximum, consecutive prison sentence must be reversed

and remanded for a new sentencing hearing. Kessel asserts that, procedurally, he

should have only been sentenced by the assigned judge, namely Judge Gorman.

{¶ 26} Kessel asserts that the record does not show that the case was transferred

from Judge Gorman, the “assigned Judge,” to Judge Langer, “an alternate Judge” -- due

to Judge Gorman’s unavailability or for any other reason – that authorized Judge Langer

to hear motions or proceedings in the case.2

{¶ 27} Kessel argues that the record clearly shows that the trial court violated

multiple provisions of the Montgomery County Local Rules, and this court should

therefore find that “the alternate Judge” was without legal authority to conduct the

sentencing hearing on May 2, 2018 and that Kessel was prejudiced by the involvement

of an alternate judge.

{¶ 28} Kessel argues that this Court has previously been presented with the issue

2 We note that Kessel’s brief was filed prior to the trial court’s December 27, 2018 entry correcting the name of the judge presiding at sentencing. -19-

of an alternate Judge conducting a sentencing hearing in State v. Johnson, 2d Dist.

Montgomery No. 26032,

, but the concerns raised in that case “were not

manifest enough to warrant reversal.” According to Kessel, Judge Froelich’s concurring

opinion in Johnson, however, highlighted concerns about the trial court “violating Mont.

Co. C.P.R. 1.19.” According to Kessel, in “this case, the procedural and prejudicial error

is even more manifest” than in Johnson, because the trial court violated not only the

provisions of Mont. Co. C.P.R. 1.19, but also the provisions of Mont. Co. C.P.R. 3.12

relating to drug court cases.

{¶ 29} Kessel argues that, while the State may assert that he waived his argument

by failing to object, “the procedural posture of this particular case should overrule the

‘waiver’ argument.” He suggests that his defense attorney at the May 2 hearing “had

only just appeared as counsel of record (again, the record is unclear how such a

substitution of counsel happened)” and that defense counsel Lachman “[did] not appear

in the record of the prior hearing on April 25.” 3 Finally, according to Kessel, the

“unauthorized substitution of the judge” was not apparent from the docket, and it was

“plainly prejudicial” for the trial court to violate multiple provisions of its own local rules.

{¶ 30} The State responds that Judge Gorman’s lack of participation at Kessel’s

sentencing hearing does not entitle him to relief, because he did not object “to any alleged

procedural irregularities” and therefore waived this argument. The State also argues that

Kessel fails to articulate how he was prejudiced by the violation of any rule of court in this

case. The State notes that “Kessel was offered the choice of continuing the case an

additional week” after his counsel communicated an offer of an agreed 18-month

3 As noted above, the defense attorney is not identified in the record on April 25, 2018. -20-

sentence in exchange for Kessel’s foregoing an appeal; the fact that Kessel did not accept

the continuance “tends to suggest that Judge Gorman’s absence from the hearing was

not, in fact, an issue for Kessel.” Finally, according to the State, “Kessel points to nothing

in the record to support the notion that he suffered any actual prejudice, i.e. that Judge

Gorman would have given him a more lenient sentence if she had presided at the

sentencing hearing. In fact, the record suggests that the opposite was true,” because at

sidebar, Kessel’s probation officer indicated that it was her understanding that Judge

Gorman was going to impose consecutive 12-month prison terms.

{¶ 31} Mont. Co. C.P.R. 1.19 governs the assignment system for civil and criminal

dockets. Mont. Co. C.P.R. 1.19(B)(2)(a) provides: “Except as provided in Subsection

(B)(2)(b) of this Rule, all criminal cases shall be randomly assigned to the Judges of the

Court upon the approval of felony charges by the prosecuting attorney. * * *.” Mont. Co.

C.P.R. 3.12 governs drug court. Mont. Co. C.P.R. 3.12(A) provides in part: “Drug court

is created pursuant to the specialized docket set forth in Sup.R. 36.20-36.28, including

Appendix I. The purpose of Drug Court is to facilitate efficient and effective treatment of

drug addicted or drug abusing offenders.” Mont. Co. C.P.R. 3.12(E) applies to

sentencing and provides:

After a defendant is ordered to drug court as a community control or

ILC sanction, along with any other appropriate sanctions, the case shall be

transferred to the Drug Court Judge for any and all further proceedings.

The Drug Court Judge shall have the authority to conduct arraignments,

accept pleas, enter findings and disposition, revoke community control or

ILC, and order or modify community control or ILC sanctions. -21-

{¶ 32} In Johnson, 2d Dist. Montgomery No. 26032,

, Johnson

argued that “the trial court erred in proceeding to sentencing without the ‘assigned

judge.’ ” Id. at ¶ 2. This Court found no “error in the sentencing judge’s failure to ask

Johnson if he wanted a continuance,” and further determined that “[i]t is pure speculation

whether the originally assigned judge would have imposed a shorter sentence.” Id. at

¶ 13. The concurring opinion in Johnson, to which Kessel directs our attention, provided

as follows:

I agree with the majority that the record sufficiently reflects that the

sentencing was done by a different judge than the one who took the plea.

This raises concerns with both Montgomery County C.P.R. 1.19 and

Crim.R. 25. Crim.R. 25(B) “inferentially commands that unless unable to

do so, the judge who presided at the criminal trial must also preside at the

post-conviction proceedings, including sentencing.” Beatty v. Alston,

,

(1975). See also People v.

Childress, --- P.3d ---,

(Colo.App.), interpreting an

almost-identical C.P.R. 25.

Although the sentence was after a consideration of the PSI and was

within the range agreed upon at the plea, perhaps counsel or the appellant

only entered into the plea and sentencing agreement based on his or their

anticipation of what sentence the particular judge (who accepted the

agreement) would impose.

Regardless, the appellant and counsel both were aware that

sentencing was occurring before a different judge (in this regard, it is -22-

possible that their ‘opinion’ as to what this judge would do was more

favorable). There was no objection and there is no suggestion of plain

error or prejudice on this record. The appellant waived any error. State

v. Pecina,

,

(6th District 1992).

Id. at ¶ 15-17 (Froelich, J., concurring).

{¶ 33} It is well-settled that failure to object waives all but plain error. State v.

Bahns,

,

,

(2d Dist.), citing

McBride v. Quebe, 2d Dist. Montgomery No. 21310,

. “Plain error exists

‘if the trial outcome would clearly have been different, absent the alleged error in the trial

court proceedings.’ ”

citing State v. Rollins, 2d Dist. Clark No. 2005-CA-10, 2006-

Ohio-5399.

{¶ 34} As did the concurring opinion in Johnson, we conclude that Kessel “waived

any error” herein by failing to object to Judge O’Connell’s imposing sentence. We cannot

find, on this record, that Judge Gorman would have necessarily imposed a shorter

sentence. Although an “unidentified speaker” mentions 12 months at the disposition, this

individual makes the statement within the context of a consecutive sentence discussion,

wherein defense counsel argued for an 18-month sentence and foregoing an appeal.

Furthermore, this “unidentified speaker” cannot be said to speak on behalf of or bind

Judge Gorman. Furthermore, we know that Kessel already had 355 days of jail time

credit toward any prison term upon revocation, rendering it highly improbable the court

would essentially sentence him to 10 days at ODRC. Kessel was given multiple

opportunities in treatment to no avail, and he advised the court that he was “willing to do

the time I have to do.” Furthermore, through counsel, he declined to wait a week to -23-

appear before Judge Gorman when that suggestion was made. In other words,

prejudice is not demonstrated. Accordingly, Kessel’s first assignment of error is

overruled.

{¶ 35} Kessel’s second assignment of error is as follows:

APPELLANT KESSEL WAS PREJUDICED BY THE INEFFECTIVE

ASSISTANCE OF COUNSEL WHEN AN UNFAMILIAR SUBSTITUTE

DEFENSE ATTORNEY APPEARED ONLY FOR THE SENTENCING

HEARING.

{¶ 36} Kessel argues that, if this court finds that the alleged error was waived, it

should also find “that the waiver [was] the result of ineffective assistance of defense

counsel in not timely raising the issue.” Kessel argues that, notwithstanding “over four

years of procedural history * * *, with numerous court entries in the docket,” defense

counsel Lachman attempted to proceed with sentencing without familiarizing himself with

details of the case, such as whether the initial reading on the probation revocation had

occurred, that Kessel had initially been granted ILC, and whether Kessel had been in the

MonDay program. Kessel asserts, based on the transcript of the May 2, 2018, hearing,

that Lachman “was objectively unprepared to effectively advocate” for Kessel.

Accordingly to Kessel, the “alternate Judge * * * showed an unfamiliarity with the entirety

of the procedural history of the case” and “articulated an opportunity” for Kessel to seek

another possible treatment option rather than not prison, but Lachman “missed the

opportunity to advocate for MonDay,” even though “Judge Langer” indicated that “ ‘ if Mr.

Kessel had been willing to do to MonDay, that would have been acceptable.’ ” Kessel

asserts that, based on the record before this Court, the first and second Strickland prongs -24-

should be found, thereby satisfying the test for ineffective assistance of counsel.

{¶ 37} The State responds that, “[a]ssuming for the sake of argument that it was

objectively unreasonable for counsel to fail to raise a timely objection on this issue, Kessel

cannot establish that he suffered prejudice,” because “any argument that Judge Gorman

would have imposed a sentence that was more favorable to Kessel is pure speculation,

and the record tends to refute this idea.” The State notes that defense counsel Lachman

requested a sidebar at the start of the hearing, argued on behalf of Kessel for the

sentence Kessel desired, and argued against maximum consecutive sentences based

upon Kessel’s lack of significant criminal history and the fact that his offenses were fifth

degree felonies. The State asserts that Lachman’s reference to “a lack of ‘leverage’ ”

indicated a general understanding of the procedural history of Kessel’s case; Kessel had

been on supervision for multiple years, had violated the terms of his supervision multiple

times, and was subjected to additional conditions on each occasion as a result.

Accordingly, the State asserts that “there was very little for counsel to argue at the time

of the May 2 hearing as to possible alternatives to imprisonment.”

{¶ 38} The State notes that the record belies Kessel’s argument regarding the

MonDay program and “suggests that Kessel was interested only in avoiding a maximum

aggregate prison sentence, not avoiding prison all together.” The State asserts that,

given Kessel’s history, “the only strategy that had any real likelihood of success was for

counsel to do precisely what he did at the May 2 hearing: argue for concurrent sentences

and/or non-maximum sentences, because Kessel’s 355 days of credit would mean a

relatively short stint in prison.” The State argues that Lachman’s performance at the

hearing was more than adequate, even if he did not know all the specifics of the case -25-

history.

{¶ 39} Finally, the State points out that the May 2, 2018 hearing was not Kessel’s

original sentencing hearing for his two offenses; that occurred in September 2015. The

State notes that “the revocation that sparked the May 2 hearing was not Kessel’s first

one; rather, it was the final of several revocations that had been filed against him over the

course of the case.” According to the State, Kessel “fails to identify anything in the record

that would suggest there was a reasonable probability that the trial court would have kept

him on community control if his trial counsel would have argued more forcefully for the

MonDay program.”

{¶ 40} As this Court has previously noted:

In order to prevail on a claim of ineffective assistance of counsel, a

defendant must show both deficient performance and resulting prejudice.

Strickland v. Washington,

,

,

(1984), paragraph two of the syllabus; State v. Bradley,

,

(1989), paragraph two of the syllabus. Two elements must

be demonstrated: 1) that counsel's representation fell below an objective

standard of reasonableness; and 2) that counsel's errors were serious

enough to create a reasonable probability that, but for the errors, the

outcome of the proceeding would have been different.

In our review of

an ineffective assistance of counsel claim, “we will not second-guess trial

strategy decisions, and ‘a court must indulge a strong presumption that

counsel's conduct falls within the wide range of reasonable professional

assistance.’ ” -26-

State v. Hartman,

,

(2d Dist.), quoting State v.

English, 2d Dist. Montgomery No. 26337,

, ¶ 10.

{¶ 41} We agree that ineffective assistance of counsel is not demonstrated.

Having determined above that Kessel was not prejudiced by Judge O’Connell’s imposing

sentence, we cannot conclude that the failure to object to Judge Gorman’s absence at

sentencing constituted ineffective assistance of counsel. As noted above, defense

counsel Lachman relayed Kessel’s wishes to the court, and he argued against maximum,

consecutive sentences. We cannot conclude that Lachman was “objectively

unprepared,” as Kessel asserts, or that his performance was deficient. It was significant

to the court in sentencing Kessel that he demonstrated an ongoing lack of commitment

to treatment, and that his addiction posed a risk to the public. While Kessel asserts that

the MonDay program was “supposedly refused,” we note that Kessel was ordered to

successfully complete the MonDay program on July 29, 2016, and the April 17, 2018

revocation notice stated that Kessel refused to comply with the MonDay program on April

13, 2018. The “unidentified speaker” advised the court that “issues” at the jail “kind of

took [the MonDay program] off the table.” We cannot conclude that defense counsel

“missed the opportunity to advocate for MonDay,” or that had he done so, a prison term

would not have been imposed, and counsel did ensure that a first reading of the

revocation had occurred. Kessel has failed to demonstrate that he was prejudiced by his

representation.

{¶ 42} For the foregoing reasons, Kessel’s second assignment of error is

overruled.

{¶ 43} The judgment of the trial court is affirmed. -27-

.............

WELBAUM, P.J. and FROELICH, J., concur.

Copies sent to:

Mathias H. Heck, Jr. Michael J. Scarpelli Tyler D. Starline Hon. Barbara P. Gorman