[Cite as State v. Reinthaler, 2018-Ohio-2483.]

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT 

MAHONING COUNTY

STATE OF OHIO, 

Plaintiff-Appellee, 

v. 

JOSEPH J. REINTHALER, JR., 

Defendant-Appellant.

 

OPINION AND JUDGMENT ENTRY 

Case No. 16 MA 0170 

 

Motion to Reopen 

BEFORE: 

Cheryl L. Waite, Carol Ann Robb, Kathleen Bartlett, Judges. 

JUDGMENT: 

Affirmed in part. Remanded in part. 

Atty. Paul J. Gains, Mahoning County Prosecutor and 

Atty. Nicholas A. Brevetta, Assistant Prosecuting Attorney 

21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503, for Plaintiff-Appellee 

Joseph J. Reinthaler, Jr., Pro se, #691-861 

Belmont Correctional Institution, 68518 Bannock Road, P.O. Box 540, St. Clairsville, 

Ohio 43950. 

 

Dated: June 21, 2018 

 

PER CURIAM. 
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Case No. 16 MA 0170

{¶1} Appellant Joseph J. Reinthaler, Jr. has filed an Application for Reopening 

his appeal pursuant to App.R. 26(B). Appellant pleaded guilty and was convicted of one 

count of tampering with records in violation of R.C. 2913.42(A)(2), (B)(1)(4), a felony of 

the third degree, one count of forgery in violation of R.C. 2913.(A)(3)(C), a felony of the 

fifth degree, one count of engaging in a pattern of corrupt activity in violation of R.C. 

2923.32(A)(3), (B)(1), a felony of the first degree, and sixty-seven counts of tampering 

with records in violation of R.C. 2913.42(A)(2), (B)(1)(4), felonies of the third degree. 

{¶2} His guilty plea and conviction were based on a pattern of corrupt activity at 

his automobile dealership, where he would accept used automobiles in trade, then 

resell them without discharging the lien of the previous owner. On direct appeal, 

Appellant challenged the voluntary nature of his plea, as well as propriety of the trial 

court’s imposition of consecutive sentences. We affirmed his convictions and sentence, 

but remanded the matter for the limited purpose of entering a nunc pro tunc entry that 

memorialized the trial court’s findings with respect to consecutive sentences at the 

sentencing hearing. As of the date of this order, no nunc pro tunc order has been filed 

by the trial court. 

{¶3} A criminal defendant may apply for reopening of his appeal from the 

judgment of conviction and sentence based on a claim of ineffective assistance of 

appellate counsel. App.R. 26(B)(1). The application for reopening cannot merely allege 

that appellate counsel rendered ineffective assistance for failing to brief certain issues. 

Rather, the application must demonstrate that there is a “genuine issue as to whether 

the applicant was deprived of the effective assistance of counsel on appeal.” App.R. 

26(B)(5). 
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{¶4} The test for ineffective assistance of appellate counsel has two parts: 

establishing that counsel's performance was deficient, and that this resulted in 

prejudice. State v. Tenace, 109 Ohio St.3d 451, 2006-Ohio-2987, 849 N.E.2d 1, ¶ 5, 

citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 

(1984); App.R. 26(B)(9). Appellant must show that counsel's performance was so 

deficient that it fell below an objective standard of reasonableness and, but for this 

substandard representation, the outcome of the case would have been different. 

Strickland at 687. Establishing ineffective assistance of appellate counsel means that 

the applicant must prove that counsel was deficient for failing to raise the issues he now 

presents and that there was a reasonable probability of success had he presented 

those claims on appeal. State v. Were, 120 Ohio St.3d 85, 2008-Ohio-5277, 896 

N.E.2d 699, ¶ 10-11. 

{¶5} However, appellate counsel need not raise every possible issue in order to 

render constitutionally effective assistance. Tenace at ¶ 7, citing Jones v. Barnes, 463 

U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). Counsel is expected to focus on 

the stronger arguments and leave out the weaker ones, as this strategy is generally 

accepted as the most effective means of presenting a case on appeal. State v. Adams, 

7th Dist. No. 08 MA 246, 2012-Ohio-2719, ¶ 8-12. 

{¶6} First, it is important to note that Appellant did not fulfill the requirements of 

App.R. 26(B)(2)(d), insofar as he failed to submit a sworn statement of the basis for his 

claim that appellate counsel's representation was deficient with respect to the 

assignments of error or arguments raised pursuant to division (B)(2)(c), and the manner 

in which the deficiency prejudicially affected the outcome of the appeal. 
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{¶7} Appellant advances four assignments of error. First, he argues that the 

trial court imposed an aggregate sentence of thirteen years at the sentencing hearing, 

but an aggregate sentence of fourteen years in the judgment entry of sentencing. 

{¶8} In fact, the trial court imposed twelve-month concurrent sentences for 

each of the sixty-seven counts of tampering with records. At the sentencing hearing, 

the trial court stated that the twelve-month concurrent sentences were to be served 

concurrently with the twelve-year consecutive sentences imposed for counts one, two, 

and three. In the judgment entry, the trial court wrote that the twelve-month concurrent 

sentences were to be served consecutively to the twelve-year consecutive sentence 

imposed for counts one, two, and three. 

{¶9} Crim.R. 43(A) provides that “the defendant must be physically present at 

every stage of the criminal proceeding and trial, including * * * the imposition of 

sentence.” Because a defendant is required to be present when sentence is imposed, it 

constitutes reversible error for the trial court to impose a sentence in its judgment entry 

different than the sentence announced at the sentencing hearing in defendant's 

presence. If there exists a variance between the sentence pronounced in open court 

and the sentence imposed by a court's judgment entry, a remand for resentencing is 

required. State v. Williams, 6th Dist. No. L-11-1084, 2013-Ohio-726, 987 N.E.2d 322, 

¶ 49. See also State v. Quinones, 8th Dist. No. 89221, 2007-Ohio-6077, ¶ 5; State v. 

Hess, 7th Dist. No. 00-JE-40, 2001-Ohio-3463. Therefore, Appellant’s first assignment 

of error has merit. 

{¶10} Next, Appellant asserts that the summary of his crimes provided at the 

sentencing hearing by the prosecutor and Amanda Butler, a Bureau of Motor Vehicles 
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Case No. 16 MA 0170

investigator, misstated his criminal conduct. (11/3/16 Sent. Hrg., pp. 4-5.) He 

specifically denies in his brief that he intentionally failed to discharge pre-existing liens 

before re-selling the used automobiles but, as previously stated, offered no affidavit 

containing a sworn statement. More importantly, Appellant was given an opportunity to 

allocute at the sentencing hearing. In other words, Appellant had the opportunity to 

correct the alleged misstatements by the prosecutor and Butler, but given this 

opportunity said nothing on the record. 

{¶11} The facts here are clearly distinguishable from Stewart v. Ervin, 503 F.3d 

488 (6th Cir.2007), which Appellant cites in his brief. In that case, the petitioner was 

denied access to the presentence report and victim impact statements prior to 

sentencing. The same is not true here. Appellant was fully aware of the factual basis 

on which the trial court relied for sentencing prior to his opportunity to allocute. He 

waived his opportunity to object to the state’s recitation of the facts. 

{¶12} Third, Appellant contends that statements made on behalf of the state at 

the sentencing hearing regarding uncharged conduct affected the length of his 

sentence. Appellant argues that he was convicted of uncharged conduct. In fact, to the 

extent that the trial court considered information about uncharged conduct, it impacted 

his sentence, not his conviction. 

{¶13} Conduct by a defendant that does not result in a conviction, much less a 

criminal charge, can be considered by the court during sentencing. State v. Clayton, 

8th Dist. No. 99700, 2014-Ohio-112, ¶ 16. One caveat is that uncharged conduct 

cannot form “the sole basis for the sentence.” State v. Gray, 8th Dist. No. 91806, 2009-

Ohio-4200, ¶ 13, citing State v. Williams, 8th Dist. No. 79273, 2002-Ohio-503. “Courts 
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have historically been permitted to consider hearsay evidence, evidence of an 

offender's criminal history, the facts concerning charges dismissed, and even offenses 

for which charges were not filed, but were addressed in the presentence investigation.” 

State v. Ropp, 3d Dist. No. 14-13-21, 2014-Ohio-2462, ¶ 4. The court can “consider 

other charges, including charges which were dismissed as part of a plea agreement, 

during sentencing.” State v. Edwards, 8th Dist. No. 85908, 2006-Ohio-2315, ¶ 43. And 

“prior arrests, facts supporting a charge that resulted in an acquittal, and facts related to 

a charge that was dismissed under a plea agreement” are valid sentencing 

considerations. State v. Bodkins, 2d Dist. No. 10-CA-38, 2011-Ohio-1274, ¶ 43. 

Accordingly, to the extent that the trial court considered information regarding 

Appellant’s unindicted criminal activity, Appellant was not denied effective assistance of 

counsel when appellate counsel failed to raise this issue on appeal. 

{¶14} Finally, Appellant contends that his sentence is inconsistent with similarly 

situated defendants. Appellant relies on a six-year sentence recently imposed by the 

trial court in a case involving a fraudulent sports memorabilia ring. On direct appeal, we 

concluded that the sentence imposed was not contrary to law, and that the record 

supported the sentence. Appellant’s argument is akin to an abuse of discretion 

challenge. However, Ohio appellate courts no longer review sentences for an abuse of 

discretion. State v. Hudson, 7th Dist. No. 15 MA 0134, 2017-Ohio-645, ¶ 33, citing 

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 10, 16. 

{¶15} In summary, we find that appellate counsel provided ineffective assistance 

insofar as he failed to raise the variance between the sentence imposed at the 
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sentencing hearing and the sentence imposed in the sentencing entry on direct appeal. 

Appellant’s remaining assignments of error have no merit. 

{¶16} The appropriate remedy is a limited remand for a nunc pro tunc order 

correcting the clerical error that the twelve-month concurrent sentences on each of the 

sixty-seven counts are to be served concurrently with the twelve-year consecutive 

sentences imposed for counts one, two, and three. Insofar as the trial court has yet to 

issue a nunc pro tunc order memorializing its findings on the imposition of consecutive 

sentences, any nunc pro tunc order now issued must correct both clerical errors. 

 

JUDGE CHERYL L. WAITE 

JUDGE CAROL ANN ROBB 

JUDGE KATHLEEN BARTLETT 

 

 

NOTICE TO COUNSEL 

This document constitutes a final judgment entry.