[Cite as State v. Steele,

.]

COURT OF APPEALS DELAWARE COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO, : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff - Appellee : Hon. Patricia A. Delaney, J. : Hon. Craig R. Baldwin, J. -vs- : : JOSHUA J. M. Steele, : Case No. 21 CAA 11 0061 : Defendant - Appellant : OPINION

CHARACTER OF PROCEEDING: Appeal from the Delaware County Court of Common Pleas, Case No. 11 CR I 08 0463

JUDGMENT: Affirmed

DATE OF JUDGMENT: March 10, 2022

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MELISSA A. SCHIFFEL JOSHUA J.M. STEELE, Pro Se Delaware County Prosecuting Attorney Chillicothe Correctional Institution 15802 State Route 104 N By: LAURA K. KENT PO Box 5500 Assistant Prosecuting Attorney Chillicothe, Ohio 45601 145 North Union Street, 3rd Floor Delaware, Ohio 43015 Delaware County, Case No. 21 CAA 11 0061 2

Baldwin, J.

{¶1} Defendant-appellant Joshua Steele appeals from the November 2, 2021

Judgment Entry of the Delaware County Court of Common Pleas denying his Motion to

Correct Sentence. Plaintiff-appellee is the State of Ohio.

STATEMENT OF THE FACTS AND CASE

Appellant was indicted in 2011 on five counts of rape, all violations of Ohio Revised

Code Section 2907.02(A)(2), five counts of Unlawful Sexual Conduct with a Minor, all

violations of Ohio Revised Code Section 2907.04(A), one count of Gross Sexual

Imposition, a violation of Ohio Revised Code Section 2907.05(A)(1), and one count of

Gross Sexual Imposition, a violation of Ohio Revised Code Section 2907.05(A)(4). The

victim was appellant's minor cousin. In 2011, appellant was convicted by a jury of five

counts of unlawful sexual conduct with a minor, felonies of the third degree, two counts

of rape, felonies of the first degree, and one count of gross sexual imposition (force), a

felony of the third degree. Appellant was found not guilty of three other counts of rape.

On October 28, 2011, appellant was sentenced to an aggregate prison term of twenty-

two years.

{¶2} Appellant then appealed. Pursuant to an Opinion filed on August 17, 2012

in State v. Steele, 5th Dist. Delaware No. 2011-CAA11-0110,

, this Court

affirmed the judgment of the trial court. The Ohio Supreme Court declined to accept

jurisdiction.

{¶3} On November 18, 2016, appellant filed a Verified Motion to Correct

Sentence. Appellant argued, in part, that his sentence was flawed because the sentence

should have been a non-mandatory concurrent sentence rather than a mandatory Delaware County, Case No. 21 CAA 11 0061 3

consecutive sentence. Appellant argued that his sentence was void. The trial court

denied appellant's motion on January 17, 2017.

{¶4} Appellant then appealed. Pursuant to an Opinion filed on July 14, 2017 in

State v. Steele, 5th Dist. Delaware No. 2017 CAA 01 0007,

, this Court

affirmed the judgment of the trial court. On December 20, 2017, the Ohio Supreme Court

declined to accept jurisdiction of the appeal. State v. Steele,

, 2017-

Ohio-9111.

{¶5} On October 29, 2021, appellant filed a Motion to Correct Sentence with the

trial court arguing, in part, that he was coerced by his trial counsel to reject a stipulated

plea of two years and that the prison terms imposed on him for two rape convictions were

not mandatory. The trial court denied appellant’s motion on November 2, 2021 both under

the doctrine of res judicata and on the merits.

{¶6} Appellant now appeals, raising the following assignments of error on

appeal:

{¶7} “I. THE LOWER COURT COMMITTED PREJUDICIAL ERROR IN

IGNORING DUE PROCESS AND EQUAL PROTECTION.”

{¶8} “II. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL

AAS GUARANTEED UNDER THE SIXTH AMENDMENT.”

I

{¶9} Appellant, in his first assignment of error, argues that his sentence is

contrary to law. We disagree.

{¶10} In State v. Perry,

,

(1967), the Ohio

Supreme Court stated: Delaware County, Case No. 21 CAA 11 0061 4

Under the doctrine of res judicata, a final judgment of conviction bars

the convicted defendant from raising and litigating in any proceeding, except

an appeal from that judgment, any defense or any claimed lack of due

process that was raised or could have been raised by the defendant at the

trial which resulted in that judgment of conviction or on an appeal from that

judgment.

{¶11} In the case sub judice, appellant argued that the prison terms imposed on

him for two rape convictions were not mandatory sentences. Appellant raised a challenge

to his mandatory sentence in his direct appeal. We concur with the trial court that

appellant is now barred by the doctrine of res judicata from challenging his sentence now.

Moreover, appellant's argument also fails substantively. As this Court stated in State v.

Steele, supra. at paragraph 16: “Two of appellant's convictions were for rape in violation

of R.C. 2907.02(A)(2). Pursuant to R.C. 2929.13(F)(2), a prison term is mandatory. This

Court has previously recognized the mandatory prison term for rape convictions. State v.

Nian, 5th Dist. Delaware No. 15 CAA 070052, 2016–Ohio–5146.” State v. Steele, 2017-

Ohio-5847, ¶ 16.

{¶12} Appellant’s first assignment of error is, therefore, overruled.

II

{¶13} Appellant, in his second assignment of error, contends that he received

ineffective assistance of trial counsel. We disagree.

{¶14} To prevail on a claim of ineffective assistance of counsel, a defendant must

demonstrate: (1) deficient performance by counsel, i.e., that counsel's performance fell

below an objective standard of reasonable representation, and (2) that counsel's errors Delaware County, Case No. 21 CAA 11 0061 5

prejudiced the defendant, i.e., a reasonable probability that but for counsel's errors, the

result of the trial would have been different. Strickland v. Washington,

, 687–

688, 694,

,

(1984); State v. Bradley,

,

(1989), paragraphs two and three of the syllabus. “Reasonable

probability” is “probability sufficient to undermine confidence in the outcome.”

.

{¶15} Appellant specifically maintains that his trial counsel was ineffective in

advising him to reject a plea deal that would have resulted in two years of incarceration.

With respect to claims of ineffective assistance regarding plea negotiations, we have held

that a defendant must demonstrate that (1) he or she was offered a plea agreement; (2)

his or her defense counsel provided legally unsound advice by recommending that he

reject the offer; (3) he or she would have entered into the agreement but for counsel's

unsound advice; (4) the offer would not have been withdrawn; (5) the trial court would

have approved the agreement; and (6) the sentence pursuant to the agreement would

have been more favorable than the sentence actually imposed by the court. State v.

Thompson, 2nd Dist. Montgomery No. 27924,

,

, ¶ 11,

citing Lafler v. Cooper,

,

,

(2012),

and State v. Royster, 2nd Dist. Montgomery No. 26378,

,

, ¶ 32-33.

{¶16} Appellant could have raised this issue in his direct appeal and, therefore, is

barred by the doctrine of res judicata from raising such issue now. Moreover, appellant,

in the case sub judice, produced no affidavit or other evidence of any type in support of

his motion. Delaware County, Case No. 21 CAA 11 0061 6

{¶17} Appellant also argues that his trial counsel fraudulently induced appellant

to “appoint” him by exaggerating his experience. Appellant did not raise this issue in his

motion in the trial court. That failure operates as a waiver of appellant's right to assert

such for the first time on appeal. Hadley v. Figley, 5th Dist. Ashland No. 15-COA-001,

,

, ¶ 22. Moreover, as is stated above, appellant produced

no evidence of any type in support of his motion. Furthermore, appellant has failed to

show that his trial counsel’s representation fell below any objective standard of

reasonableness.

{¶18} Appellant’s second assignment of error is, therefore, overruled.

{¶19} Accordingly, the judgment of the Delaware County Court of Common Pleas

is affirmed.

By: Baldwin, J.

Hoffman, P.J. and

Delaney, J. concur.