COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72880 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION BRIAN BELTOWSKI : : DEFENDANT-APPELLANT : : DATE OF ANNOUNCEMENT OF DECISION: JULY 30, 1998 CHARACTER OF PROCEEDING: Criminal appeal from Court of Common Pleas, Case No. CR-298960. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor David J. Hildebrandt Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Brian Beltowski #293-834, pro se Marion Correctional Institution P.O. Box 57 Marion, Ohio 43301-0057 Rocco J. Russo, Esq. 55 Public Square, Suite 1450 Cleveland, Ohio 44113-1901 -2- SWEENEY, JAMES D., J.: D , eefendant-appell reasons adduced below, we affirm. A review of the record on appeal indicates that the defendant entered pleas of guilty on January 25, 1994, and was sentenced as follows to various offenses: (1) two counts of Breaking and Entering in violation of R.C. 2911.13, each count containing a violence specification,1 with a sentence of 1.5 to 5 years on each count; (2) one count of Receiving Stolen Property in violation of R.C. 2913.51, with a violence specification, with a sentence of 4 to 10 years; and, (3) one count of Theft in violation of R.C. 2913.02, with a violence specification, with a sentence of 4 to 10 years.2 The sentences were run concurrent to one another, and concurrent to defendant's federal sentence. Three assignments of error are presented for review in appellant's amended brief. I 1The violence specification in this case, which is included in all counts, is a January 9, 1991 conviction of Vandalism [R.C. 2909.05]. 2The remaining counts were nolled. These nolled counts consisted of the following: (1) nine counts of Breaking and Entering [R.C. 2911.13]; (2) one count of Disrupting Public Service [R.C. 2909.04]; (3) one count of Felonious Assault [R.C. 2903.11]; four counts of Theft [R.C. 2913.02]. -3- INEFFECTIVE ASSISTANCE OF COUNSEL IS DEMONSTRATED WHERE THERE ARE ABSOLUTELY NO PRE-TRIAL MOTIONS FILED IN THIS CASE. COUNSEL DID NO INVESTIGATING INTO THIS CASE, AND FURTHER, HE RECOMMENDS THE MAXIMUM OF AN ILLEGAL SENTENCE. COUNSEL ASSISTED THE COURT, NOT HIS CLIENT. AND, COUNSEL FACILITATED THE ILLEGAL ACTS CONDUCTED BY THE COURT AND THE PROSECUTOR. In this assignment, appellant's entire argument supporting this assignment states: Ineffective assistance of counsel... There are absolutely NO pre-trial motions filed by Mr. Mineff, and he recommends that the court impose the maximum penalty allowed (which is in fact, an illegal sentence). The appellant was denied his right to assistance of counsel which is guaranteed by the 6th Amendment of the U.S. Constitution. What Mr. Mineff did do is assist the court in committing crimes against his client. Appellant's Amended Brief, at 3. Thus, appellant asserts that his trial counsel was ineffective because, allegedly, (1) no pretrial motions were filed by the defense and (2) counsel requested that the court impose the maximum amount of imprisonment. The record indicates that defendant's trial counsel, attorney George Mineff, Jr., filed a motion for bill of particulars (see Crim.R. 7) and a motion for evidentiary notice (see Crim.R. 12[d]) on December 29, 1993. Also, attorney Mineff filed on January 20, 1994, a motion to sever the counts contained in the indictment (see Crim.R. 8, 12 and 14). Since pretrial motions were filed by counsel, the first issue of ineffective assistance of counsel is without merit. -4- With regard to the second issue, the plea/sentencing hearing transcript indicates that attorney Mineff requested that the trial court consider sentencing the defendant to a term of 4 to 10 years on the charges of Theft and Receiving Stolen Property because of the defendant's young age. See Plea/Sentencing Hearing R. at 17. These two felonies are third degree indefinite felonies which carry a potential term of 2, 2.5, 3, or 4 years to 10 years. Former R.C. 2929.11(B)(6), effective November 20, 1990. Although counsel asked the court to consider a particular term of imprisonment with the greatest minimum amount of time, such request does not bind the court to accept the request. The trial court is free to impose a term of incarceration which is within the statutory framework, and such discretion is limited by the considerations contained in former R.C. 2929.12. In the present case, the trial court knew that the defendant had a lengthy history of felony convictions, thirteen in all, concerning illegally dealing in scrap metal acquired from vandalizing property and also vandalizing police cars. Given the consideration factors contained in former R.C. 2929.12, the trial court could have concluded that the sentence imposed was proper, based on those factors without any considerationof the request of defense counsel. Also, defendant- appellant has failed to show that, but for the remark of attorney Mineff, he would not have pled guilty. State v. Elliott (1993), 86 Ohio App.3d 792. Accordingly, defendant-appellant has failed to demonstrate any prejudice in the event that counsel's request did amount to ineffective assistance. State v. Bradley (1989), 42 Ohio -5- St.3d 136 (a showing of prejudice is a prerequisite in finding ineffective assistance of counsel). The first assignment of error is overruled. II THE COURT ERRED WHEN IT VIOLATED SEVERAL CRIMINAL STATUTES TO IMPOSE THE SENTENCE IT DID. In this assignment, the appellant generally argues that the trial court committed the following offenses when it sentenced defendant: (1) Abduction [R.C. 2905.02]; (2) Unlawful Restraint [R.C. 2905.03]; (3) Extortion [R.C. 2905.11]; (4) Coercion [R.C. 2905.12]; (5) Cheating [R.C. 2915.05]; (6) Perjury [R.C. 2921.11]; (7) Tampering With Evidence [R.C. 2921.12]; (8) Falsification [R.C. 2921.13]; (9) Obstruction Of Justice [R.C. 2921.32]; (10) Dereliction of Duty [R.C. 2921.44]; and, (11) Interfering With Civil Rights [R.C. 2921.45]. The basis of these offenses is the claim that the imposed sentence was not proper. We conclude that the record does not demonstrate any violation of these offenses by the trial court in the sentencing of defendant-appellant because the sentence was in accordance with the sentencing parameters contained in R.C. 2929.11 and .12. The second assignment of error is overruled. III EVEN WHEN IMPOSING AN ILLEGAL SENTENCE, THE COURT ERRED AND ABUSED IT'S (SIC) DISCRETION WHEN IT DID NOT CONSIDER MITIGATING FACTORS AS ENUMERATED IN R.C. 2929.12 WHEN IMPOSING THE ILLEGAL SENTENCE. -6- This assignment is without merit. The record of the plea/sentencing hearing indicates that, without specifically stating it as such, the trial court considered the factors contained in R.C. 2929.12 in imposing the valid sentence. The third assignment of error is overruled. Appellant has also raised a separate assignment in his original brief, which was not included in his amended brief. This assignment provides that the trial court erred in imposing an indefinite sentence rather than a definite term of incarceration. This argument is without merit. Appellant has a previous conviction for Vandalism (R.C. 2909.05), an offense of violence pursuant to R.C. 2901.01(I)(1). Having been convicted of a prior offense of violence, appellant is precluded from receiving a definite sentence by application of R.C. 2929.11(D). Judgment affirmed. -7- It is ordered that appellee recover of appellant its 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 Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, 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. JAMES M. PORTER, P.J., and KENNETH A. ROCCO, J., CONCUR. ______________________________ JAMES D. SWEENEY 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 .