State v. Johnson ( 2017 )


Menu:
  • [Cite as State v. Johnson, 
    2017-Ohio-2931
    .]
    IN THE COURT OF APPEALS
    ELEVENTH APPELLATE DISTRICT
    GEAUGA COUNTY, OHIO
    STATE OF OHIO,                                  :       OPINION
    Plaintiff-Appellee,            :
    CASE NO. 2016-G-0093
    - vs -                                  :
    DEBARI Q. JOHNSON,                              :
    Defendant-Appellant.           :
    Criminal Appeal from the Geauga County Court of Common Pleas, Case No. 2015 C
    000240.
    Judgment: Affirmed.
    James R. Flaiz, Geauga County Prosecutor, and Nicholas A. Burling, Assistant
    Prosecuting Attorney, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH
    44024 (For Plaintiff-Appellee).
    Katherine E. Rudzik, 26 Market Street, #904, Youngstown, OH 44503 (For Defendant-
    Appellant).
    THOMAS R. WRIGHT, J.
    {¶1}     Appellant, Debari Q. Johnson, appeals the trial court’s sentencing entry
    following his guilty plea. We affirm.
    {¶2}     In February 2016, Johnson was indicted and charged with nine offenses.
    He initially pleaded not guilty, but later pleaded not guilty by reason of insanity. His
    evaluation, however, opined that he was not legally insane at the time of the offenses.
    {¶3}   In July 2016, Johnson pleaded guilty to aggravated robbery with a gun
    specification, kidnapping, and having a weapon under a disability.         The remaining
    charges were dismissed. The trial court sentenced him to a total of seventeen years in
    prison.
    {¶4}   His sole assignment of error asserts:
    {¶5}   “The defendant received ineffective assistance of counsel.”
    {¶6}   The U.S. Supreme Court in Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S.Ct. 2052
     (1984), established the two-prong test for courts to employ upon assessing
    ineffective assistance of counsel claims:       “[T]he defendant must [first] show that
    counsel's representation fell below an objective standard of reasonableness.” 
    Id. at 687-688
    . “[Second, t]he defendant must show that there is a reasonable probability
    that, but for counsel's unprofessional errors, the result of the proceeding would have
    been different.   A reasonable probability is a probability sufficient to undermine
    confidence in the outcome.” 
    Id. at 694
    ; State v. Bradley, 
    42 Ohio St.3d 136
    , 
    538 N.E.2d 373
     (1989) paragraphs two and three of the syllabus.
    {¶7}   Reviewing courts are to “indulge a strong presumption that counsel's
    conduct falls within the wide range of reasonable professional assistance,” and we must
    “judge the reasonableness of counsel's challenged conduct on the facts of the particular
    case, viewed as of the time of counsel’s conduct.” Strickland, 
    466 U.S. at 689-690
    .
    {¶8}   Johnson first alleges he was denied the effective assistance of counsel
    based on his attorney’s unclear explanation of the potential penalties he faced and
    since his counsel intimated that the state would recommend concurrent sentences. As
    a result of the charged deficiencies, Johnson states his plea was not entered knowingly.
    2
    {¶9}   However, these allegations are not based on evidence in the record, and
    as such, are improperly raised in a direct appeal. State v. Rodriguez, 12th Dist. Butler
    No. 2001-04-077, 
    2002-Ohio-3978
    , ¶34, citing State v. Gibson, 
    69 Ohio App.2d 91
    , 95,
    
    430 N.E.2d 954
     (1980). Instead, allegations based on evidence outside the record must
    be brought in a proceeding for postconviction relief. 
    Id.
    {¶10} Furthermore, contrary to Johnson’s claims that he was misled or confused
    as to the potential penalties he faced, the record shows otherwise. Johnson’s written
    guilty plea sets forth the potential penalty range for each of the offenses and the firearm
    specification to which he pleaded guilty. It likewise states that no promises were made
    to him that are not in the written plea agreement. It also states that the court could
    impose consecutive sentences and that Johnson was facing a maximum prison term of
    26 years.
    {¶11} Thereafter, the state filed its sentencing memorandum and requested
    consecutive sentences totaling 20 years. Johnson did not object. At his sentencing
    hearing, the state sought consecutive sentences totaling 20 years. He did not object or
    question its recommendation as contrary to their alleged agreement.
    {¶12} Accordingly, Johnson fails to establish that his counsel was deficient.
    {¶13} Next Johnson claims his counsel’s performance was below an objective
    standard of reasonableness based on his failure to challenge Johnson’s competency to
    enter a guilty plea.
    {¶14} “The constitutional standard for assessing a defendant's competency to
    enter a guilty plea is the same as that for determining his competency to stand trial.
    Godinez v. Moran, 
    509 U.S. 389
    , 396, 398–399, 
    113 S.Ct. 2680
    , 
    125 L.Ed.2d 321
    3
    (1993). The defendant must have a ‘ “sufficient present ability to consult with his lawyer
    with a reasonable degree of rational understanding” and [have] “a rational as well as
    factual understanding of the proceedings against him.” ’ 
    Id. at 396
    , 
    113 S.Ct. 2680
    ,
    quoting Dusky v. United States, 
    362 U.S. 402
    , 
    80 S.Ct. 788
    , 
    4 L.Ed.2d 824
     (1960).
    Further, ‘[i]n addition to determining that a defendant who seeks to plead guilty * * * is
    competent, a trial court must satisfy itself that the waiver of his constitutional rights is
    knowing and voluntary.’ Id. at 400, 
    113 S.Ct. 2680
    . And it is a matter of statutory and
    decisional law that ‘[t]he fact that a defendant is taking antidepressant medication or
    prescribed psychotropic drugs does not negate his competence to stand trial.’ Ketterer,
    
    111 Ohio St.3d 70
    , 
    2006-Ohio-5283
    , 
    855 N.E.2d 48
    , at ¶ 71; see also Mink, 
    101 Ohio St.3d 350
    , 
    2004-Ohio-1580
    , 
    805 N.E.2d 1064
    , at ¶ 38, citing R.C. 2945.37(F).” State v.
    Montgomery, __ Ohio St.3d __, 
    2016-Ohio-5487
    , ¶56, reconsideration granted in part,
    
    147 Ohio St.3d 1438
    , 
    2016-Ohio-7677
    , 
    63 N.E.3d 157
    .
    {¶15} As Johnson contends, his attorney did not request an evaluation of his
    competency to enter the guilty plea. Notwithstanding, nothing in the record indicates
    that Johnson failed to understand the proceedings or was incapable of understanding
    his conversations with his attorney. During his plea hearing, Johnson answered the
    court’s questions. He also agreed that his attorney explained the options of proceeding
    to trial and what a plea agreement entailed.        Johnson personally asked the court
    whether a presentence investigation is mandatory, and he later said he had no other
    questions. Johnson subsequently told the court that there was nothing that the court
    explained that he did not understand, and he told the court that he graduated from
    4
    college after taking “special classes.” Finally, Johnson confirmed that he was taking his
    prescribed medications, which do not impair his ability to understand or communicate.
    {¶16} The trial court’s judgment accepting Johnson’s guilty plea likewise
    indicates that it accepted Johnson’s plea “after addressing the defendant personally and
    determining that he was making his plea knowingly and voluntarily, with understanding
    of the nature of the charges and the maximum penalty involved, determining that he
    understood the effect of his plea * * *.”
    {¶17} Thus, nothing reflects that Johnson’s counsel’s performance fell below an
    objective standard of reasonableness in not challenging his capacity to enter a guilty
    plea.
    {¶18} Johnson’s sole assignment of error lacks merit and is overruled, and the
    trial court’s decision is affirmed.
    CYNTHIA WESTCOTT RICE, P.J.,
    TIMOTHY P. CANNON, J.,
    concur.
    5
    

Document Info

Docket Number: 2016-G-0093

Judges: Wright

Filed Date: 5/22/2017

Precedential Status: Precedential

Modified Date: 5/22/2017