COURT OF APPEALS, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71920 STATE OF OHIO ) ) Plaintiff-Appellee ) JOURNAL ENTRY ) AND -VS- ) OPINION ) ANTHONY BATES ) ) Defendant-Appellant ) Date of Announcement of Decision NOVEMBER 20, 1997 Character of Proceeding Criminal appeal from Court of Common Pleas Case No. CR-342223 Judgment Affirmed in part; reversed in part. Date of Journalization Appearances: For Plaintiff-Appellee: For Defendant-Appellant STEPHANIE TUBBS JONES JAMES A. DRAPER, ESQ. Cuyahoga County Prosecutor Cuyahoga County Public Defender JOHN CLOUGH, Assistant JEAN M. GALLAGHER, Asst. Prosecuting Attorney Public Defender 1200 Ontario Street 1200 West Third Street Cleveland, Ohio 44113 100 Lakeside Place Cleveland, Ohio 44113-1569 JAMES M. PORTER, P.J.: Defendant-appellant Anthony Bates appeals from his conviction following a jury trial for aggravated assault (R.C. 2903.12) in the 2 knifing of a store security guard. Defendant claims his conviction was against the manifest weight of the evidence because he established self defense; the imposition of a $750 fine to reimburse the State for his appointed defense counsel was improper; restitution ordered was void or an abuse of discretion; imposition of the maximum prison sentence was an abuse of discretion; and he was deprived of effective assistance of counsel for not objecting to the restitution and punishment imposed. We find merit to the appeal and affirm in part and reverse in part. Bates was indicted for felonious assault. A jury trial commenced on November 26, 1996 with the following evidence presented. On June 23, 1996, defendant was allegedly in the process of switching envelopes from one box to another in a Walgreens store on Euclid Avenue in East Cleveland. He was accosted by Anthony Phillips, a deputy bailiff for Cleveland Municipal Court who was working security in uniform. Phillips confronted defendant and told him that he would have to buy one box or the other. He suspected Bates was a shoplifter and told him to leave the store. At this point Bates became upset and profane and asked to speak with the manager. The store manager, Ron Edwards, came over and asked Bates to leave as well. Bates was told by Edwards that he would not be allowed to make a purchase. He was told several more times to leave. Bates refused to leave, however, saying that he would have to be told that by the East Cleveland Police. Phillips then called the police. 3 While the police were en route, Bates and Phillips had another confrontation near the checkout counter. Bates was demanding to buy the envelopes. When Phillips put his hand on the sleeve of Bates' shirt to escort him out of the store, Bates inflicted a serious cut on Phillips' arm with a lock-blade knife. Phillips then drew his weapon and ordered Bates to drop the knife. He was held until the police arrived. The entire incident took approximately twenty-five minutes. Phillips was treated at Huron Road Hospital where he received a total of twenty-two stitches to close the knife wound. Phillips testified that he never threatened to harm Bates nor did he try to prevent him from leaving. This incident was witnessed by store manager Edwards and a customer, Joe McGhee, both of whom testified at trial that Phillips was attempting to get Bates to leave the store and that Bates cut Phillips on the arm with a knife which he had concealed. McGhee related that Bates pushed Phillips away before he cut him with the knife that was already in defendant's hand. Edwards stated that the doors were locked at this time as they are always locked shortly before closing time to prevent a rush of incoming customers at the last minute. It was the security guard's duty to unlock the door to let departing customers out. Edwards testified that Phillips never abused the defendant, but asked him to leave six or seven times. No one was preventing him from leaving. East Cleveland Police arrested Bates at the scene. While in custody, Bates admitted that Phillips never drew his weapon until 4 after he was cut. The police later testified at trial that Bates showed no injuries or sign that he had been in a struggle. Bates testified that he only opened the box of envelopes in order to count them. He claimed that Phillips accused him of theft. Bates became perturbed when the assistant manager discussed the matter with Bates. He claimed that Phillips removed his jacket and locked the doors. He then told Bates, you're leaving the store. This made Bates nervous. Phillips then repeatedly poked him in the chest and told him you are leaving. Bates claims he told Phillips to keep his hands to himself and to back off, but he kept coming at him. Bates showed Phillips his knife to warn him, but once Phillips saw the knife, he placed his hand on his revolver and started towards Bates. Bates stated this scared him because he thought Phillips was going to shoot him, so he cut Phillips. On cross-examination he claimed he did not leave the store because Phillips told him not to. He also claimed that the State's witnesses were lying. The jury found Bates guilty of the lesser included offense of aggravated assault with a violence specification and the trial court gave him the maximum sentence of three to five years in prison, $500 in restitution and a $750 fine to pay for his appointed counsel. Defendant brought a timely appeal. We will address his assignments of error in the order asserted. I. THE CONVICTION WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE WHEN MR. BATES PROVED BY A PREPONDERANCEOF THE EVIDENCE THAT HE ACTED IN SELF DEFENSE. 5 When the argument is made that the conviction is against the manifest weight of the evidence, the appellate court is obliged to consider the weight of the evidence not its mere legal sufficiency. The defendant has a heavy burden in overcoming the fact finder's verdict. As the Supreme Court of Ohio has stated in State v. Thompkins (1997), 78 Ohio St.3d 380, 387: Weight of the evidence concerns the inclination of the greater amount of credible evidence, offered in a trial, to support one side of the issue rather than the other. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief. (Emphasis added.) Black's supra, at 1594. When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a `thirteenth juror' and disagrees with the factfinder's resolution of the conflicting testimony. Tibbs, 457 U.S. at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721 ( The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of witnesses and determines whether in resolving conflicts in the evidence, the jury clearly lost its way and created such a manifest miscarriage of justice that the conviction must be reversed and a new trial ordered. The discretionary power to grant a new trial should be exercised only in the exceptional case in which the evidence weighs heavily against the conviction. ). 6 The elements defendant must establish to make out a case of self defense were recently summarized in State v. Thomas (1997), 77 Ohio St.3d 323, 326: In Ohio, the affirmative defense of self- defense has three elements: (1) the defendant was not at fault in creating the violent situation, (2) the defendant had a bona fide belief that she was in imminent danger of death or great bodily harm and that the only means of escape was the use of force, and (3) that the defendant did not violate any duty to retreat or avoid the danger. State v. Williford (1990), 49 Ohio St.3d 247, 249, 551 N.E.2d 1279, 1281, citing State v. Robbins (1979), 58 Ohio St.2d 74, 12 O.O.3d 84, 388 N.E.2d 755, paragraph two of the syllabus. The trial court instructed the jury on the affirmative defense of self defense. The jury, however, apparently found defendant did not act in self defense. The testimony of all of the State's witnesses clearly showed that time and again Bates was told to leave the store; that he would not be allowed to make any purchases; that he refused to leave and instead got into an argument with the security guard; that the guard told Bates to leave the store on at least six occasions; that Bates refused; that no one tried to prevent Bates from leaving or blocked his path out of the store; customers were being moved to other checkout lines to avoid a confrontation. The State's evidence showed that Bates was not in any danger whatsoever, but stubbornly insisted on making a purchase of envelopes which the store no longer wished to sell him. When Phillips attempted to remove him, Bates cut him on the arm with a knife which he already had in hand. The knife had a folding blade 7 which presumably had to be opened, unless Bates carried it open in his pocket. Bates was not injured at all; Phillips did not draw his gun until he was slashed. Bates testified that he was prevented from leaving by Phillips' locking the door and that he only cut Phillips when he saw him reach for his gun as he came towards him. However, the jury apparently found the State's witnesses more credible. The defendant is asking this Court to substitute its judgment of the credibility of the witnesses for that of the jury acting as the trier of facts. Based on the testimony given, the jury weighed the credibility of the witnesses and found that the State had proved the offense of aggravated assault beyond a reasonable doubt. Defendant's failure to prove self defense was not against the manifest weight of the evidence. Assignment of Error I is overruled. II. THE TRIAL COURT'S ORDER THAT THE ACCUSED WOULD BE FINED AN ADDITIONAL $750.00 TO PAY FOR HIS COURT-APPOINTED COUNSEL IS A VOID ORDER TO PAY A FINE, A VOID ORDER TO TAX THE FEE AS COSTS, A VIOLATION OF THE RIGHT TO COUNSEL, AN ABUSE OF DISCRETION AND A DENIAL OF DUE PROCESS. The State agrees with defendant's assertion that the provisions of R.C. 120.33(A)(4) prohibit the taxing of appointed counsel fees as costs. We sustain this assignment of error and remand this issue for a hearing on whether or not defendant has the means to meet some part of the cost of the services rendered to him and reimburse the county therefore. Id. Assignment of Error II is sustained. 8 III. THE RESTITUTION ORDER IS EITHER VOID OR AN ABUSE OF DISCRETION AND A DENIAL OF DUE PROCESS. At sentencing, the trial court ordered defendant to pay the victim $500 as restitution for the victim's medical expenses when he is released from prison. The State agrees that State v. Wohlgemuth(1990), 66 Ohio App.3d 195 is controlling authority for the proposition that restitution may only be ordered as part of sentencing under former R.C. 2929.11(E), which limits restitution to compensation for property damage. This assignment of error is well taken and is sustained. The trial court had no authority to order restitution in the circumstances of this case. IV. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT IMPOSED A PRISON SENTENCE AND ORDERED THE MAXIMUM SENTENCE. There is no evidence as defendant contends that he was punished for going to trial on this case rather than entering a plea. At the defendant's sentencing, the trial court engaged in a rambling and unnecessary soliloquy laced with personal anecdotes. Although the trial court indicated defendant was ill-advised not to take the plea that was offered, it did not go on to indicate it was going to punish defendant for not accepting the plea. Instead, it appears defendant received the maximum due to the senseless and vicious nature of the crime, which the court duly noted. The evidence showed that the victim, in the course of doing his job, was knifed by this defendant over a box of envelopes. R.C. 2929.12 allows the court to take into consideration (B) *** in favor of imposing a longer term of imprisonment for a felony for which an 9 indefinite term of imprisonment is imposed: *** (3) the victim of the offense has suffered severe *** physical *** injury as a result of the offense. Mr. Phillips testified that his wound required a tourniquet and 22 stitches and that there was blood all over the place. Witnesses testified that Bates already had the knife in his hand when Phillips tried to remove him from the store and that they had tried to warn him. The severity of a sentence imposed in conformity with the law by a trial court rests in the discretion of that court and is not a matter with which a reviewing court can interfere, except for an abuse of that discretion. State v. McIntyre (Sept. 19, 1996), Cuyahoga App. No. 69579, unreported at 7, citing State v. Williams (1982), 7 Ohio App.3d 160; In re Disqualification of Martin (1987), 36 Ohio St.3d 603. Thus, the standard of review here is whether the trial court abused its discretion in imposing the sentence. The term `abuse of discretion' connotes more than an error in law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157. When applying an abuse of discretion standard, the reviewing court is not free to substitute its judgment for that of the trial court. Generally, an appellate court will not reverse a trial court's exercise of discretion if the sentence imposed is within the statutory limits. State v. Polick (1995), 101 Ohio App.3d 428, 431. 10 Although many of the judge's remarks were uncalled for and even provocative, we find no evidence that the trial court abused its discretion and acted in an arbitrary or capricious manner. Assignment of Error IV is overruled. V. MR. BATES WAS DENIED HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL GUARANTEED BY ART. I, SECTION 10 OF THE OHIO CONSTITUTION AND THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WHEN COUNSEL FAILED TO OBJECT TO THE ORDER TO PAY FOR COUNSEL, THE ORDER OF RESTITUTION AND THE PUNISHMENT OF MR. BATES FOR REFUSING TO PLEAD AND EXERCISING HIS RIGHT TO GO TO TRIAL. In order to receive a new trial for ineffective assistance of counsel, an appellant must make a two-part showing. First, there must be a demonstration that the attorney's representation fell below an objective standard of reasonable representation. State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus. Second, it must be shown that the attorney's substandard representation resulted in prejudice to the defendant. Id. The same test was previously announced by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. 688. To establish prejudice, a defendant must demonstrate a reasonable probability that, but for counsel's unprofessional errors, the result of his trial would have been different. State v. Seiber (1990), 56 Ohio St.3d 4, 11; State v. Tyler (1990), 50 Ohio St.3d 24, 38. In evaluating defense counsel's performance, a strong presumption exists that the assistance which was rendered was effective. Strickland v. Washington, supra, at 689. 11 There has been no showing that, but for counsel's performance, the defendant would have been acquitted. All of the alleged instances of counsel's incompetence arose after the jury had already returned a verdict of guilty, and thus, even if true, had no effect on the question of his guilt. The State has conceded error in Assignments of Error II and III and this Court has sustained those assignments removing any prejudice to defendant from the restitution and fees errors. Otherwise we find no merit to defendant's contentions. Assignment of Error V is overruled. Judgment affirmed in part; reversed in part and remanded for further proceedings consistent with this opinion. 12 It is ordered that appellee and appellant shall pay their respective costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed in part, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. KARPINSKI, J., CONCURS. O'DONNELL, J., CONCURS IN JUDGMENT ONLY. JAMES M. PORTER PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .