State v. Stroub , 2011 Ohio 169 ( 2011 )

[Cite as State v. Stroub, 2011-Ohio-169.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
WYANDOT COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 16-10-02
v.
EDWARD D. STROUB, OPINION
DEFENDANT-APPELLANT.
Appeal from Wyandot County Common Pleas Court
Trial Court No. 09 CR 0032
Judgment Affirmed
Date of Decision: January 18, 2011
APPEARANCES:
Scott B. Johnson for Appellant
Jonathan K. Miller for Appellee
Case No. 16-10-02
WILLAMOWSKI, J.
{¶1} Defendant-appellant Edward D. Stroub (“Stroub”) brings this appeal
from the judgment of the Court of Common Pleas of Wyandot County. For the
reasons set forth below, the judgment is affirmed.
{¶2} On April 29, 2009, the Wyandot County Grand Jury indicted Stroub
on two counts of trafficking in a Schedule II controlled substance in violation of
R.C. 2925.03(A)(1) with specifications that the sales occurred within the vicinity
of a school and one count of trafficking in a Schedule III controlled substance in
violation of R.C. 2925.03(A)(1) with a specification that the sale occurred within
the vicinity of a school.1 The arraignment was held on April 30, 2009, and Stroub
entered pleas of not guilty to all counts. On March 30, 2010, Stroub entered into a
plea agreement with the State. The plea agreement set forth the following
conditions.
Defendant shall plead guilty to Count One of the Indictment
(F4) [trafficking in Schedule II controlled substance]. The State
will dismiss the School Specification to County One.
The State will dismiss Count Two and the School Specification
to County Two.
The State will amend Count Three to less than the bulk amount.
Defendant shall plead guilty to Count Three of the Indictment
(F3) [trafficking in Schedule II controlled substance], as
amended, and the School Specification to Count Three.
1
All three counts also contained criminal forfeiture specifications as well. Upon the State’s motion, the
trial court dismissed these specifications on March 23, 2010.
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The State and Defendant will jointly recommend a basic prison
term of twelve (12) months on Count One and a basic prison of
(sic) two (2) years on Count Three, consecutive to each other.
Agreement, 3. The trial court held a change of plea hearing and discussed the
terms of the plea agreement with Stroub. Stroub then signed the agreement in
open court and the trial court accepted the plea.
{¶3} On April 15, 2010, a sentencing hearing was held. The trial court
sentenced Stroub to twelve months in prison for Count One and three years in
prison for Count Three. The sentences were ordered to be served consecutively
for a total sentence of four years. Stroub appeals the judgment and raises the
following assignments of error.
First Assignment of Error
The trial court erred in accepting [Stroub’s] criminal rule
waiver at the plea hearing in that it was not knowing and
voluntary with respect to the school specification.
Second Assignment of Error
[Stroub’s] conviction of trafficking with a school specification
was not supported by the sufficiency of the evidence with
respect to the school specification.
Third Assignment of Error
The counsel for [Stroub] provided ineffect (sic) assistance of
counsel.
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Case No. 16-10-02
{¶4} Stroub alleges in his first assignment of error that his guilty plea
was not knowingly and voluntarily entered. Specifically, Stroub claims that his
guilty plea to the school specification was not clear.
(B) Effect of guilty or no contest pleas. With reference to the
offense or offenses to which the plea is entered:
(1) The plea of guilty is a complete admission of the
defendant’s guilt.
***
(C) Pleas of guilty and no contest in felony cases.
***
(1) In felony cases the court may refuse to accept a plea of
guilty or a plea of no contest, and shall not accept a plea of
guilty or no contest without first addressing the defendant
personally and doing all of the following:
(a) Determining that the defendant is making the plea
voluntarily, with understanding of the nature of the charges and
of the maximum penalty involved, and if applicable, that the
defendant is not eligible for probation or for the imposition of
community control sanctions at the sentencing hearing
(b) Informing the defendant of and determining that the
defendant understands the effect of the plea of guilty or no
contest, and that the court, upon acceptance of the plea, may
proceed with judgment and sentence.
(c) Informing the defendant and determining that the
defendant understands that by the plea the defendant is waiving
the rights to jury trial, to confront witnesses against him or her,
to have compulsory process for obtaining witnesses in the
defendant’s favor, and to require the state to prove the
defendant’s guilt beyond a reasonable doubt at a trial at which
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Case No. 16-10-02
the defendant cannot be compelled to testify against himself or
herself.
Crim.R. 11.
{¶5} Here, Stroub claims that since he did not clearly enter a guilty plea
to the school specification, the trial court erred in accepting his plea. A review of
the record reveals the following dialogue between the trial court and Stroub.
The Court: All right. Mr. Stroub, as to the first aggravated
trafficking in drugs charge that it’s proposed you’re going to
plead to, tell me what your understanding of the penalty
associated with this charge, what that is, the maximum penalty.
The Defendant: I got it wrote – I got it wrote down here. Is that
the third degree or the fourth degree?
The Court: That would be the felony of the fourth degree.
The Defendant: Yeah. I just started reading it. Is says that I
can get up to a year, I think, eighteen months. I didn’t read the
rest of it. Yeah. Eighteen months is on that second sheet. Yeah.
I seen (sic) that.
The Court: And you could get a maximum fine of $5,000?
The Defendant: Right.
The Court: An also on the felony of the third degree that you
are proposing to plead to, can you tell me what the maximum
fine for that is?
The Defendant: Up to ten thousand.
The Court: And do you understand at least five thousand is
mandatory?
The Defendant: That’s what it says, yeah.
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Case No. 16-10-02
The Court: Can you tell me what the maximum time in prison
is you could receive?
The Defendant: It says five years.
The Court: And you understand you could receive five years if
you got the maximum penalty?
The Defendant: That’s what it says, yes.
***
The Court: do you understand the nature of these charges and
the possible defenses you might have to them?
The Defendant: Yes.
The Court: Are you entering this plea voluntarily and of your
own free will?
The Defendant: yes.
***
The Court: Well, let’s read the sentence recommendation. It
says, Defendant shall plead guilty to Count One in the
indictment, F4. The State will dismiss the school specification to
Count One. State will dismiss Count Two and the school
specification to Count Two. State will amend Count Three to
less than the bulk amount. Defendant shall plead guilty to
Count Three of the indictment, an F3 as amended, and the
school specification to Count Three.
***
The Court: Again, Mr. Stroub, are you entering this plea
voluntarily?
The Defendant: Yes.
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The Court: You may sign the plea.
March 30, 2010 Transcript, 5-14 (emphasis added). Stroub then signed the plea
agreement in open court. Although Stroub later questioned whether the school
was within 1,000 feet of his home, the State stated that GPS mapping was done
and Stroub’s home was within the required distance for the specification. Tr. 16.
The trial court then questioned Stroub as to whether he admitted the specification.
The Defendant: If that’s what they say. I didn’t measure it.
I’m just going by what they’re saying.
The Court: Well, I need to know you know what the amended
indictment, what it accuses you of in Count One and in Count
Three with the specification and you’re admitting to those
allegations.
The Defendant: I thought they was (sic) dropping that school
specification. Okay. I thought they was (sic) dropping it. Like
I said, if they’re saying it’s within one thousand feet, I have no
way of measuring it.
The Court: But what I’m saying is you’re admitting to what
you’re accused of in the amended indictment in Count 1 and
Count 3?
The Defendant: Yes.
Tr. 17. Despite the fact that Stroub stated that he did not know about the school
specification remaining for Count Three, a review of the record indicates that the
trial court informed him that the specification as to Count Three was remaining
and that Count Three would be an F3. Thus the record supports a conclusion that
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Case No. 16-10-02
the guilty plea was knowingly and voluntarily entered. The first assignment of
error is overruled.
{¶6} In his second assignment of error, Stroub argues that the school
specification was not supported by sufficient evidence. Crim.R.11(B)(1) provides
that a guilty plea is a complete admission of guilt. By entering a guilty plea, one
waives the requirement that the State prove guilt beyond a reasonable doubt.
Crim.R. 11(C)(2)(c). The guilty plea itself provides all the necessary proof of the
elements of the offense and is sufficient evidence to support the conviction. State
v. Fuller, 12th Dist. No. CA2008-09-240, 2009-Ohio-5068, ¶105. Since Stroub
entered a guilty plea to the offenses, including the school specification, he cannot
now argue that the evidence is insufficient. Thus, the second assignment of error
is overruled.
{¶7} Finally, Stroub claims that he was denied effective assistance of
counsel. “Reversal of convictions on ineffective assistance requires the defendant
to show ‘first that counsel’s performance was deficient and, second that the
deficient performance prejudice the defense so as to deprive the defendant of a
fair trial.’” State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, ¶105, 772
N.E.2d 81. The defendant must show that there was a reasonable probability that
but for counsel’s error, the result of the trial would have been different. Id. at
¶108.
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Case No. 16-10-02
{¶8} Stroub argues that counsel was ineffective for not speaking up at the
change of plea hearing concerning the school specification and for not clarifying
the State’s sentencing memorandum. However, in both instances, the trial court
was aware of the facts. The trial court specifically questioned Stroub about his
plea to the school specification. As discussed above, Stroub voluntarily and
knowingly entered his guilty plea. The trial court also heard Stroub’s statement as
to the involvement of the third party to the sales. The trial court acknowledged
that Stroub had twice facilitated drug sales from his home near a school. Stroub
has not indicated in any way how the alleged ineffectiveness of counsel
prejudiced him. Without a showing of prejudice, the third assignment of error
must be overruled.
{¶9} Having found no error prejudicial to Stroub, the judgment of the
Court of Common Pleas of Wyandot County is affirmed.
Judgment Affirmed
ROGERS P.J., and PRESTON, J., concur.
/jlr
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