State v. Hearns , 2023 Ohio 653 ( 2023 )


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  • [Cite as State v. Hearns, 
    2023-Ohio-653
    .]
    COURT OF APPEALS
    DELAWARE COUNTY, OHIO
    FIFTH APPELLATE DISTRICT
    STATE OF OHIO                                  JUDGES:
    Hon. W. Scott Gwin, P.J.
    Plaintiff-Appellee                     Hon. William B. Hoffman, J.
    Hon. Craig R. Baldwin, J.
    -vs-
    Case No. 22 CAC 06 0051
    NICOLE HEARNS
    Defendant-Appellant                   OPINION
    CHARACTER OF PROCEEDINGS:                      Appeal from the Delaware Municipal
    Court, Case No. 21TRC03400
    JUDGMENT:                                      Affirmed
    DATE OF JUDGMENT ENTRY:                        March 3, 2023
    APPEARANCES:
    For Plaintiff-Appellee                         For Defendant-Appellant
    AMELIA BEAN-DeFLUMER                           TODD A. WORKMAN
    City Prosecutor                                35 North Sandusky Street
    Delaware, Ohio 43015
    TYLER A. SANDERS
    Assistant City Prosecutor
    70 North Union Street
    Delaware, Ohio 43015
    Delaware County, Case No. 22 CAC 06 0051                                                              2
    Hoffman, J.
    {¶1}    Defendant-appellant Nicole Hearns1 appeals the judgment entered by the
    Delaware Municipal Court convicting him following his pleas of guilty to operating a motor
    vehicle while intoxicated (R.C. 4511.19(A)(1)(a)) and driving under suspension (R.C.
    4510.14), and sentencing him to an aggregate term of 60 days in jail. Plaintiff-appellee
    is the state of Ohio.
    STATEMENT OF THE FACTS AND CASE
    {¶2}    On April 8, 2021, the Genoa County Police Department in Delaware County,
    Ohio, received calls from witnesses stating a vehicle had crossed over the center line
    multiple times, almost hitting oncoming traffic. Officers located the vehicle in question,
    which was driven by Appellant. They noted Appellant had glassy, bloodshot eyes, and
    they could smell the odor of alcohol. Appellant’s speech was slurred. When asked if he
    had been drinking, Appellant responded he had a beer, but needed to go to work.
    {¶3}    When checking Appellant’s driver’s license, officers discovered he was
    under an ALS suspension. Police conducted field sobriety tests. Appellant exhibited six
    out of six clues of intoxication on the horizontal gaze nystagmus test, six clues on the
    walk and turn test, and two clues on the one-legged stand. The result of Appellant’s
    breath test was .202 weight of alcohol per 210 liters of his breath.
    {¶4}    Appellant was charged with operating a motor vehicle while intoxicated,
    driving with a prohibited breath alcohol content, and driving under suspension.
    1 On June 2, 2022, the trial court granted the State’s motion to amend Appellant’s name on the complaint
    to Robert Larry Hearns. However, the notice of appeal and other documents filed in this Court state
    Appellant’s name as Nicole Hearns. While we will maintain the caption on the case as submitted to this
    Court, we will refer to Appellant using the pronouns he/him, as the parties did in their briefs.
    Delaware County, Case No. 22 CAC 06 0051                                                  3
    {¶5}   The case was originally set for a change of plea hearing on June 15, 2021.
    Appellant failed to appear, and a bench warrant was issued. Appellant was arrested on
    the warrant on June 2, 2022.
    {¶6}   Appellant appeared for a change of plea hearing on June 3, 2022. Appellant
    was represented by the public defender’s office throughout the proceedings; however,
    the attorney who appeared on his behalf at the change of plea hearing in 2022 was not
    the same attorney who had previously represented him in 2021.
    {¶7}   At the start of the hearing, counsel for Appellant discussed the plea offer
    with the prosecutor. The prosecutor stated the offer was for Appellant to plead guilty to
    the operating a motor vehicle while intoxicated charge and the driving under suspension
    charge. The prosecutor further noted several prior offenses, including a prior out-of-state
    operating a vehicle while intoxicated conviction. At this point, counsel asked for his
    microphone to be muted so he could talk to Appellant and let him know what he was
    facing if he entered a guilty plea.
    {¶8}   After discussing the matter with Appellant, counsel represented to the trial
    court Appellant would like to take the deal. The trial court informed Appellant because of
    the prior out-of-state conviction, the trial court would sentence Appellant according to the
    penalties applicable to a second offense. Appellant asked what that meant. The trial
    court explained the sentencing implications of a second offense, and offered counsel
    more time to research the out-of-state conviction. Counsel asked for a moment to “let
    him [Appellant] know real quickly” what the out-of-state conviction meant. Tr. 9. Counsel
    then indicated Appellant wanted to proceed with the plea.
    Delaware County, Case No. 22 CAC 06 0051                                                 4
    {¶9}   The trial court explained the penalties for a second offense, and Appellant
    indicated he understood. Appellant indicated he wanted to enter a guilty plea, with an
    understanding of the potential penalties. Appellant entered pleas of guilty to operating a
    vehicle while intoxicated and driving under suspension, and was convicted upon his
    pleas. The State dismissed the charge of operating a vehicle with a prohibited breath
    alcohol content. The trial court sentenced Appellant to 180 days in jail for operating a
    vehicle while intoxicated, with 135 days suspended. The trial court sentenced Appellant
    to 180 days in jail for driving under suspension with 165 days suspended, to be served
    consecutively, for an aggregate jail term of 60 days.
    {¶10} It is from the June 3, 2022 judgment of the trial court Appellant prosecutes
    his appeal, assigning as error:
    THE DEFENDANT’S RIGHT TO EFFECTIVE ASSISTANCE OF
    COUNSEL GUARNATEED UNDER SECTION 10, ARTICLE I OF THE
    OHIO CONSTITUTION, AND SIXTH AND FOURTEENTH AMENDMENTS
    TO THE UNITED STATES CONSTITUTION WAS VIOLATED BY
    COUNSEL’S       FAILURE     TO     ADEQUATELY        KEEP     DEFENDANT
    APPRISED OF HIS CASE, AND FAILURE TO ADEQUATELY PREPARE.
    {¶11} Appellant argues his trial counsel was ineffective by failing to inform him of
    plea offers made by the State and failing to research his criminal background prior to the
    start of the plea hearing, and counsel was not aware of the sentencing possibilities at the
    hearing.
    Delaware County, Case No. 22 CAC 06 0051                                                  5
    {¶12} A properly licensed attorney is presumed competent. State v. Hamblin, 
    37 Ohio St.3d 153
    , 
    524 N.E.2d 476
     (1988). Therefore, in order to prevail on a claim of
    ineffective assistance of counsel, Appellant must show counsel's performance fell below
    an objective standard of reasonable representation and but for counsel’s error, the result
    of the proceedings would have been different. Strickland v. Washington, 
    466 U.S. 668
    ,
    
    104 S.Ct. 2052
    , 
    80 L.Ed.2d 674
    (1984); State v. Bradley, 
    42 Ohio St.3d 136
    , 
    538 N.E.2d 373
     (1989). In other words, Appellant must show counsel’s conduct so undermined the
    proper functioning of the adversarial process that the trial cannot be relied upon as having
    produced a just result. 
    Id.
    {¶13} A claim of ineffective assistance of counsel is waived by a guilty plea, except
    to the extent the ineffective assistance of counsel caused the defendant's plea to be less
    than knowing, intelligent and voluntary. 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). Where a defendant has entered a guilty plea, he can prevail on an ineffective
    assistance of counsel claim only by demonstrating there is a reasonable probability that
    but for counsel's deficient performance, he would not have pled guilty to the offenses and
    would have insisted on going to trial. Williams, supra at ¶ 11, citing State v. Xie, 
    62 Ohio St.3d 521
    , 524, 
    584 N.E.2d 715
     (1992); and Hill v. Lockhart, 
    474 U.S. 52
    , 
    106 S.Ct. 366
    ,
    
    88 L.Ed.2d 203
     (1985).
    {¶14} Appellant has not demonstrated but for the alleged deficient performance
    of counsel, he would not have entered a guilty plea and would have insisted on going to
    trial. The record demonstrates upon Appellant’s arrest on the warrant nearly a year after
    the originally-schedule plea hearing, new counsel from the public defender’s office
    Delaware County, Case No. 22 CAC 06 0051                                                       6
    represented Appellant. The new plea hearing was scheduled one day after Appellant
    was arrested on the warrant. While counsel may not have been fully prepared when he
    arrived at the hearing, it is apparent from the record Appellant’s counsel, the prosecutor,
    and the trial court worked together to ensure the plea was knowing, voluntary, and
    intelligent. Counsel for Appellant ascertained the terms of the plea offer from the State
    at the outset of the hearing, and asked for time off the record to confer with Appellant.
    {¶15} The trial court explained to Appellant the implications of his prior out-of-state
    conviction and offered counsel additional time to research the issue. After a second off-
    the-record discussion with Appellant, counsel indicated Appellant wanted to proceed with
    the plea. The trial court clearly explained the potential penalties which flowed from the
    instant offense being treated as a second offense because of the out-of-state prior
    conviction. Appellant indicated he understood the penalties, and indicated he wanted to
    enter a plea of guilty. As noted by trial counsel, Appellant intended to “fall on his sword.”
    Tr. 14.
    {¶16} Based on the record before this Court, we find Appellant has not
    demonstrated a reasonable probability he would not have entered a plea of guilty and
    would have insisted on going to trial in the absence of his alleged deficient performance
    by counsel.       We find the record demonstrates although counsel was a last-minute
    substitute for Appellant’s prior attorney, Appellant’s plea was knowingly, voluntarily, and
    intelligently entered, with full knowledge of the sentencing implications of the prior
    conviction.
    Delaware County, Case No. 22 CAC 06 0051                                      7
    {¶17} The assignment of error is overruled.   The judgment of the Delaware
    Municipal Court is affirmed.
    By: Hoffman, J.
    Gwin, P.J. and
    Baldwin, J. concur
    

Document Info

Docket Number: 22 CAC 06 0051

Citation Numbers: 2023 Ohio 653

Judges: Hoffman

Filed Date: 3/3/2023

Precedential Status: Precedential

Modified Date: 3/3/2023