[Cite as State v. Hall , 2019-Ohio-341.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 106943

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. MILTON HALL

DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-617366-A

BEFORE: E.A. Gallagher, J., Laster Mays, P.J., and Sheehan, J.

RELEASED AND JOURNALIZED: January 31, 2019ATTORNEYS FOR APPELLANT

Mark A. Stanton Cuyahoga County Public Defender BY: Noelle A. Powell Assistant Public Defender 310 Lakeside Ave., Suite 200 Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE Michael C. O’Malley Cuyahoga County Prosecutor BY: Jennifer A. Driscoll Assistant Prosecuting Attorney The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113

EILEEN A. GALLAGHER, J.: {¶1} Defendant-appellant Milton Hall was charged in a 155-c ount indictment with 53 counts of rape, 6 counts of attempted rape, 28 c ounts of kidnapping, 18 counts of gross sexual imposition, 22 counts of endanger ing children, 7 counts of domestic violence, 20 counts of sexual battery and 1 count of importuning. One count of rape pertained to his biological daughter and occurred when she was approxima tely 14 years old. The remaining 154 counts pertained to his adopted daughter beginning when she was approximate ly ten years old and continuing for several years. Hall pleaded guilty to 8 counts of rape, 5 c ounts of sexual battery, 2 counts of endangering childre n, 1 count of domestic violence and 1 count of importuning. The remaining counts were nolle d. The court imposed an aggregate sentence of 40 years in prison, which included some consecutive terms. On appeal, Hall raises two assignments oferror, claiming he was denied th e effective assistance of counsel and arguing that his sentence violates the Eighth Amendment and R.C. 2929.11. We disagree. {¶2} Prior to pleading guilty, Hall’s counsel in formed the court that Hall would be entering his pleas knowingly, voluntarily and intelligently. After the colloquy the court confirmed this, entered a finding and accepted Hall’s pleas. The court sentenced Hall to ten years for each of the rape counts and ran four of those terms consecutively for a total of 40 years. The court imposed concurrent sent ences for the remaining counts. {¶3} In Hall’s first assignment of error, he argues that he was denied the effective

assistance of counsel because his trial counsel did not file a moti on for a bill of particulars or a motion to dismiss particular counts in the indictment. 1 Hall complains that while most of the counts included a specific date as to the crimes, 66 of the counts only in cluded an approximate date. He argues the lack of specificity denied notice of the charges against him. We note that

65 of these counts were nolled. The one count that was not alle ged the crime occurred within an approximate six- month time period. {¶4} Hall suggests that had trial c ounsel filed a motion for a b ill of particul ars, and had the court granted the motion, he would have known more about the charges and may have decided to go to trial. Similarly, he suggest s that had counsel filed a motion to dismiss the counts alleging nonspecific dates, and had the court granted it, his criminal exposure would have been less which may have caused the state to offer him a more favorable plea bargain. {¶5} To establish ineffective assistance of counsel in a case where a defendant has pleaded guilty, the defendant is required to make a dual showing. First, the defendant must

1 Although the state concedes in its brief that a bill of particulars was not provided, our review reflects otherwise. As part of the state’s response to Hall’s request for disc overy, it attached a bill of particulars that included a certificate of service signed by the prosecutor and providing th at “[a] copy of the foregoing Bill of Particulars has been filed and served electronically * * * upon * * * Attorney for Defendant, at: DEFENSE.CCPOPORTAL.US.”establish that counsel’s perfo rmance was deficient, falling be low an objective standard of reasonable representation that caused his or he r guilty plea to be less than knowing, voluntary and intelligent. State v. Williams , 8th Dist. Cuyahoga No. 100459, 2014-Ohio-3415, ¶ 11, citing State v. Spates , 64 Ohio St.3d 269, 272, 595 N.E.2d 351 (1992). Second, the defendant must establish that there is a reasonable probab ility that but for counsel’s deficient performance, he or should would not have plead guilty, a nd instead would have gone to trial. Id., citing State

v. Xie , 62 Ohio St.3d 521, 524, 584 N.E.2d 715 (1992). “A reasonable probability is a probability sufficient to undermine th e confidence in the outcome.” State v. Bradley , 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989), quoting Strickland v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). {¶6} Here, Hall does not dispute the validity of his guilty plea; he makes no claim that his plea was not knowing, voluntary and intelligent. As such, Hall has waived his right to claim

ineffective assistance of counsel. See State v. Ramos , 8th Dist. Cuyahoga No. 104550, 2017-Ohio-934, ¶ 2 (rejecting ineff ective assistance of counsel cl aim where defendant did not contest validity of plea). Nevert heless, even assuming that he did not waive this right, his arguments are meritless. See State v. Williams , 8th Dist. Cuyahoga No. 106570,

2018-Ohio-5022 ¶ 28 (defendant cannot demonstrate he was prejudiced by counsel failing to demand bill of particulars where the state filed bill of particulars as part of initial discovery responses); see State v. Vihtelic , 8th Dist. Cuyahoga No. 105381, 2017-Ohio-5818, ¶ 14 (guilty plea waives right to challenge indictment as defective); see also State v. Bogan , 8th Dist. Cuyahoga No. 84468, 2005-Ohio-3412, ¶ 10 (specificity as to time and date of an offense is not required in an indictment). We overrule Hall’s first assignment of error.{¶7} In his second assignment of error, Hall argues that his aggregate 40-year prison sentence violates the Eighth Amendment prohibition against cr uel and unusual punishment as well as R.C. 2929.11. He complains that in light of his age, 40 years in prison represents a de facto life sentence. Hall does not cite any author ity in support of his ar gument. Moreover, he does not challenge the validity of any statute or an y individual sentence. In stead, he asserts that

neither of his victims died as the result of his crimes and that he should similarly not be sentenced to die in prison. {¶8} Trial courts have di scretion to impose a prison sentence within the statutory range of

the offense. State v. Hairston , 118 Ohio St.3d 289, 2008-Ohio-2338, 888 N.E.2d 1073, ¶ 21. In general, “a sentence that falls within term s of a valid statute cannot amount to cruel and unusual punishment.” Id. quoting McDougle v. Maxwell , 1 Ohio St.2d 68, 69, 203 N.E.2d 334 (1964). Moreover, individual sentences are c onsidered for purposes of Eighth Amendment analysis, not the aggregate term of imprisonment. Id. at ¶ 22. “Where none of the individual sentences imposed on an offender are grossly disproportionate to their respective offenses, an aggregate prison term resulting from consecutive imposition of those sentences does not

constitute cruel and unusual punishment.” Id. at ¶ 20. {¶9} Here, each of Hall’s rape c onvictions were violations of R.C. 2907.02(A)(2). All were first-degree felonies, which in Ohio are puni shable by prison terms between 3 and 11 years.

See R.C. 2929.14(A)(1). Hall’s 10-year sentences ar e within that range. Accordingly, his 40-year sentence does not viol ate the Eighth Amendment. {¶10} Moreover, the court’s journal entry confirms that it “considered all required factors of the law” and found that “prison is consiste nt with the purpose of R.C. 2929.11.” The court’sstatement that it considered the requisite statutory factors, alone , satisfy its obligation under the

statute. See State v. Binford , 8th Dist. Cuyahoga No. 105414, 2018-Ohio-90, ¶ 39. {¶11} The record reflects that the court spent a considerable amount of time discussing and applying the purposes and principles of fe lony sentencing. For example, it extensively discussed the victims’ mental and physical injuries and the harm Hill caused them. The court discussed the lack of mitigating circumstances and Hill’s lack of remorse and summarized the

case as follows: Two victims, beaten unless they— unless they would submit to being raped by their father. Constant physical abuse * * * threatening the victim with physical harm if she did not comply with his orders. That only takes into consideration th e actual events. We’ll never know how great the harm is in this matter to thos e two young women, what you did to them and how they will have to suffer with that for the rest of their lives. It is disgusting beyond belief. {¶12} We overrule Hall’s second a ssignment of error. {¶13} The judgment of the tria l court is affirmed. It is ordered that appellee recover of appellant the co sts herein taxed.

The court finds there were reas onable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to

Rule 27 of the Rules of Appellate Procedure.

__________________________________ EILEEN A. GALLAGHER, JUDGE ANITA LASTER MAYS, P.J., and MICHELLE J. SHEEHAN, J., CONCUR