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Date: 10-15-2019

Case Style:


Case Number: 18CA11

Judge: Jason Smith


Plaintiff's Attorney: Brigham M. Anderson, Lawrence County Prosecuting Attorney, and Jeffrey M. Smith, Assistant Prosecuting Attorney

Defendant's Attorney:


Call 888-354-4529 if you need a Criminal Defense Attorney in Ohio.

Appellant was indicted on one count of burglary, a second-degree
felony in violation of R.C. 2911.12(A)(2), on February 28, 2018. An allegation
that Appellant broke into the residence of Harvey McGowan in Chesapeake, Ohio,
and stole numerous items including a firearm and jewelry, formed the basis of the
charge. Appellant entered a guilty plea pursuant to a negotiated plea agreement on
April 4, 2018. As part of the plea agreement, Appellant was sentenced to a seven
year prison term, a mandatory three-year period of post-release control, $1000.00
Lawrence App. No. 18CA11 3

in restitution, and costs of prosecution.1 Appellant has now filed his timely appeal,
arguing that his competency should have been questioned by both the trial court
and trial counsel. His appeal raises two assignments of error primarily challenging
the voluntariness of his plea and effectiveness of his counsel, as follows.


{¶4} In his first assignment of error, Appellant contends that the trial court
erred in finding his plea was knowingly, voluntarily, and intelligently entered when
the trial court failed to properly follow the requirements of Crim.R. 11(C)(2). He
argues the trial court failed to comply with Crim.R. 11(C)(2)(a), and claims that
the trial court failed to ensure Appellant was actually capable of understanding the
proceedings in general. The State responds by arguing that although Appellant
1 Although the trial court orally imposed a fine of $10,000.00 on the record during the combined plea and sentencing hearing, the sentencing entry omits any reference to the fine.
Lawrence App. No. 18CA11 4

made several “flippant, borderline disrespectful comments” to the trial court during
his hearing, there is no evidence that he genuinely failed to appreciate what he was
doing. The State further argues that the mandates of Criminal Rules 11 and 32
were scrupulously followed by the trial court.
{¶5} “ ‘When a defendant enters a plea in a criminal case, the plea must be
made knowingly, intelligently, and voluntarily. Failure on any of those points
renders enforcement of the plea unconstitutional under both the United States
Constitution and the Ohio Constitution.’ ” State v. Veney, 120 Ohio St.3d 176,
2008-Ohio-5200, 897 N.E.2d 621, ¶ 7, quoting State v. Engle, 74 Ohio St.3d 525,
527, 660 N.E.2d 450 (1996). In determining whether a guilty or no contest plea
was entered knowingly, intelligently, and voluntarily, an appellate court examines
the totality of the circumstances through a de novo review of the record to ensure
that the trial court complied with constitutional and procedural safeguards. State v.
Cooper, 4th Dist. Athens No. 11CA15, 2011-Ohio-6890, ¶ 35.
{¶6} “Crim.R. 11(C) governs the process that a trial court must use before
accepting a felony plea of guilty or no contest.” Veney at ¶ 8. Before accepting a
guilty plea in a felony case, a trial court must address the defendant personally and
determine 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
Lawrence App. No. 18CA11 5

control sanctions at the sentencing hearing.” Crim.R. 11(C)(2)(a). The court must
also inform the defendant of both the constitutional and nonconstitutional rights he
is waiving and determine that he “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.” Crim.R. 11(C)(2)(b). Finally, the court must both inform
and determine that the defendant understands that he “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 the defendant cannot
be compelled to testify against himself or herself.” Crim.R. 11(C)(2)(c).
{¶7} Substantial compliance with Crim.R. 11(C)(2)(a) and (b) is sufficient
for a valid plea because they do not involve constitutional rights. Veney at ¶ 14.
“ ‘Substantial compliance means that, under the totality of the circumstances,
appellant subjectively understood the implications of his plea and the rights he
waived.’ ” State v. McDaniel, 4th Dist. Vinton No. 09CA677, 2010–Ohio–5215,
¶ 13, quoting State v. Vinson, 10th Dist. Franklin No. 08AP–903, 2009–Ohio–
3240, ¶ 6. But strict compliance with Crim.R. 11(C)(2)(c) is required because
constitutional rights are involved. “ ‘However, failure to [literally comply] will not
necessarily invalidate a plea. The underlying purpose, from the defendant's
perspective, of Crim.R. 11(C) is to convey to the defendant certain information so
Lawrence App. No. 18CA11 6

that he can make a voluntary and intelligent decision whether to plead guilty.’ ”
Veney at ¶ 18, quoting State v. Ballard, 66 Ohio St.2d 473, 479–480, 423 N.E.2d
115 (1981). A guilty plea that is not entered into knowingly, intelligently, and
voluntarily is void. State v. Moore, 165 Ohio App.3d 538, 2006–Ohio–114, 847
N.E.2d 452, ¶ 22 (4th Dist.), citing McCarthy v. United States, 394 U.S. 459, 466,
89 S.Ct. 1166, 22 L.Ed.2d 418 (1969).
{¶8} We construe Appellant’s argument as an assertion that he was not
competent to enter a guilty plea. As this Court explained in State v. Pigge, 4th
Dist. Ross No. 09CA3136, 2010-Ohio-6541, ¶ 28:
Without question, the conviction of a defendant who is not competent
to enter a plea violates due process of law. See State v. Skatzes, 104
Ohio St.3d 195, 2004–Ohio–6391, 819 N.E.2d 215, at ¶ 155, citing
Drope v. Missouri (1975), 420 U.S. 162, 171, 95 S.Ct. 896, 43
L.Ed.2d 103, and State v. Berry (1995), 72 Ohio St.3d 354, 359, 650
N.E.2d 433. However, in the absence of evidence to the contrary, a
criminal defendant is rebuttably presumed competent to enter a guilty
plea. See R.C. 2945.37(G); State v. Were, 118 Ohio St.3d 448, 2008–
Ohio–2762, 890 N.E.2d 263, at ¶ 45. * * * Rather, a court will
presume that the defendant is competent unless the defendant shows
that the defendant is unable to understand the proceedings or to assist
Lawrence App. No. 18CA11 7

in the defense. Were at ¶ 45. “The test for determining whether a
defendant is competent to stand trial [or to plead guilty] is ‘ “ whether
[the defendant] has sufficient present ability to consult with his lawyer
with a reasonable degree of rational understanding—and whether he
has a rational as well as a factual understanding of the proceedings
against him.’ ” Id., quoting State v. Berry (1995), 72 Ohio St.3d 354,
359, 650 N.E.2d 433, quoting Dusky v. United States (1960), 362 U.S.
402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824; see, also, Godinez v. Moran
(1993), 509 U.S. 389, 113 S.Ct. 2680, 125 L.Ed.2d 321. A trial court
possesses no need to sua sponte inquire into a defendant's competency
unless the record contains “ ‘sufficient indicia of incompetence,’ such
that an inquiry * * * is necessary to ensure the defendant's right to a
fair trial.” Berry, 72 Ohio St.3d at 359, quoting Drope, 420 U.S. at
175; see, also, State v. Ahmed, 103 Ohio St.3d 27, 2004–Ohio–4190,
813 N.E.2d 637, at ¶ 65.
The record before us indicates that Appellant’s case proceeded through the
litigation process, from indictment and arraignment to a change of plea and
sentencing, without Appellant’s competency being questioned at any point.
However, Appellant’s competency is now being questioned on appeal and
Lawrence App. No. 18CA11 8

essentially serves as the basis for Appellant’s contention that his guilty plea was
involuntary, unknowing and unintelligent.
{¶9} Here, Appellant does not argue that the trial court failed to give all of
the proper advisements in accordance with Crim.R. 11(C)(2)(b) and (c). Instead,
Appellant contends the trial court failed to comply with Crim.R. 11(C)(2)(a) based
upon an argument that the trial court failed to ensure he was actually capable of
understanding the proceedings in general. As set forth above, the trial court must
substantially comply with Crim.R. 11(C)(2)(a) when accepting pleas. Appellant
points to the manner in which he responded to the trial court’s questions as
evidence that he was not competent. More specifically, Appellant references his
responses of “Yewow,” “Yeep,” “10-4,” and “I’m sorry, I apologize,” rather than
stating “Yes” in response to the court’s questions, as evidence that his plea was not
entered into knowingly, intelligently, and voluntarily. Appellant argues that his
failure to actually answer numerous questions concerning his plea resulted in a
“failure to comply with the precepts mandated under Criminal Rule 11(C)[,]”
presumably on the part of the trial court. Appellant concedes that the trial court
admonished him during the plea colloquy by telling him that the “noises and
rambling he was responding with * * * were not going to ‘cut it[,]’ ” but he argues
the trial court thereafter still failed to “actually obtain intelligible and coherent
responses to the Court’s questions * * *.”
Lawrence App. No. 18CA11 9

{¶10} We begin with a review of the plea hearing transcript. The following
exchanges from the various parts of the transcript serve as the basis for Appellant’s
COURT: * * * Alright Mr. Collins are you a citizen of the United
COURT: And are you presently under the influence of any drugs,
alcohol or other mind altering substance?
COLLINS: No sir.
* * *
COURT: [in an effort to confirm Appellant’s signature was listed on
the Proceeding on Plea of Guilty form] * * * there’s a signature right
here that purports to be yours, is that your signature?
COURT: Okay. Did you go over this form with Mr. Smith or his
COLLINS: Uh yes sir.
COURT: Alright, do you understand all the questions on it?
COURT: And were the answers that you provided true and correct?
Lawrence App. No. 18CA11 10

COLLINS: Yes sir.
* * *
COURT: [after several instances of Appellant responding “Yep” to
questions by the court] Alright. Just for the record sake yep’s mean
yes, is that correct?
COLLINS: Ten four.
COURT: Is that a yes?
COLLINS: I’m sorry.
COURT: I need a yes or a no man.
COLLINS: I’m sorry.
COURT: The yeps, the yeps and ten fours aren’t going to cut it. We
need a clear record.
COLLINS: I’m sorry. I apologize your Honor.”
{¶11} Our review of the record, in its entirety, reveals that Appellant
answered the trial court consistently by stating “Yes sir” or “No sir” a large
majority of the time. It is only these few instances where Appellant stated either
“Yewow” or “Yeep” or “Ten four” that he was not entirely clear. Once he was
admonished by the trial court, Appellant cleared up his speech and properly
answered the trial court in a yes or no fashion throughout the remainder of the
hearing. Further, with respect to Appellant’s response of “Ten-four,” it is
Lawrence App. No. 18CA11 11

commonly understood that this term is one of affirmation or understanding of the
message being conveyed.2 Thus, our review of this portion of the transcript fails to
demonstrate, based upon the totality of the circumstances, that the trial court fell
short of substantially complying with its duty under Crim.R. 11(C)(2)(a) to ensure
Appellant subjectively understood the implications of his plea and the rights he
was waiving.
{¶12} Appellant also points to another section of the transcript, towards the
end of the hearing, where he interjected into the proceedings as follows:
COURT: Alright, Mr. Smith.
SMITH: Your, Honor, that is a complete and accurate representation
of the plea negotiations had between myself and Mr. Anderson. I
would ask the Court to adopt the recommended and agreed sentence.
COLLINS: Eleven, eleven make a wish.
COURT: Alright, Mr. Collins do you have anything you’d like to say
before sentence is imposed?
COLLINS: Um eleven, eleven let make a wish.
COURT: What’s that?
2 The Association of Public-Safety Communications Officials-International (APCO) developed “Ten Signals” in 1937 “to reduce the use of speech on the radio at a time when police radio channels were limited.” The official meaning of the phrase “10-4” has varied over the years, beginning in 1937 to present. Over the years, the meanings attributed to this phrase are as follows: “Acknowledgment,” “Message received,” “Affirmative (Ok),” “Roger,” and “Roger/Affirmative.” The current understood meaning of 10-4 is “Roger.” Further, the term “Roger” is understood to mean “Message received and understood.”
Lawrence App. No. 18CA11 12

COLLINS: Eleven, eleven make a wish.
COURT: Eleven, eleven make a wish.
COLLINS: Never mind seven to twelve now that’s it, that’s all I got
to say. I’m sorry. I do apologize. Alright.
Appellant contends that his “rambling and incoherence was clear evidence that he
was not, at the time, capable of entering a knowing, intelligent, and voluntary
plea.” He further argues that his behavior at the plea hearing indicated he
“potentially possessed personal circumstances in mitigation of his crime of
conviction and, ultimately, should have been considered in mitigation of the
Court’s sentencing determination.”
{¶12} First, with regard to Appellant’s argument that his behavior during
sentencing should have mitigated in his favor with regard to sentencing, the record
reveals and the State points out that Appellant entered his guilty plea as part of a
negotiated plea agreement that kept him from receiving a maximum sentence and
provided the State would not oppose judicial release after five years. Thus, his
argument that there should have been mitigation in reference to sentencing is not
well-taken. Next, we cannot definitively speak to the comments made by
Appellant in this portion of the transcript. It does not appear Appellant was
initially responding to any question asked of him, but rather he simply interjected
“Eleven, eleven make a wish.” Although this Court generally refrains from
Lawrence App. No. 18CA11 13

speculation, one must wonder whether Appellant was possibly watching the clock
and commenting on the fact that the time was 11:11, which prompts a wish to be
made in some contexts.3 One further wonders if possibly the court transcriptionist
incorrectly transcribed “Never mind eleven twelve now” as “Never mind seven to
twelve now,” which would indicate the time to make a wish had passed. The State
characterizes Appellant’s comments during the hearing as “flippant” and
“borderline disrespectful.” We believe this is an accurate characterization, based
upon our review of the record, and we see nothing in the record that indicates
incompetency on Appellant’s part or lack of substantial compliance on the trial
court’s part.
{¶13} However, prior to concluding our analysis, we note that Appellant
appears to raise an additional argument under this assignment of error. At the end
of the argument portion of Appellant’s first assignment of error, he states as
“Appellant contends that the trial court’s error was more than a slight
deviation from the requirements of the text of Crim.R. 11(C), the
Court failed to substantially comply with Crim.R. 11(C) when the
court incorrectly advised Appellant of the law in regards to whether
3 11:11 is “[t]he time of day when one should make a wish while looking at the clock.”
Lawrence App. No. 18CA11 14

post-release control was mandatory or discretionary under the specific
circumstances of Appellant’s case.”
Aside from this single sentence, there is no additional argument as to exactly how
the trial court erred (i.e. what the trial court should have advised Appellant of
regarding post-release control versus what it actually advised him of). Further,
R.C. 2967.28 provides that the period of post-release control for an offender
convicted of a second-degree felony that is not a felony sex offense shall be three
years. The record here indicates Appellant was correctly advised he would be
subject to a three-year term of post-release control during the plea portion of the
hearing. The trial court additionally imposed a three-year term of post-release
control orally and upon the record during the sentencing portion of the hearing, and
also properly included the correct term of post-release control in the sentencing
judgment entry. Thus, we find no merit to this portion of Appellant’s argument.
{¶14} Based upon the totality of the circumstances, we conclude the trial
court substantially complied with the Crim.R. 11(C)(2)(a) requirements during the
initial plea colloquy. We further conclude there is nothing in the record that raises
“a sufficient indicia of incompetency to suggest that [A]ppellant was not
competent to enter a guilty plea.” State v. Pigge, supra, ¶ 30 (involving a guilty
plea entered by a “mentally retarded individual”). In light of the foregoing, we
Lawrence App. No. 18CA11 15

conclude Appellant’s plea was entered knowingly, intelligently, and voluntarily.
Accordingly, we overrule Appellant’s first assignment of error.
{¶15} In his second assignment of error, Appellant contends his trial counsel
provided ineffective assistance in that his competency was in question, or should
have been questioned, during the plea proceedings. More specifically, Appellant
argues that he was not fully aware of the nature of the proceedings and required a
competency evaluation, as he was not, at the time, capable of entering a plea. He
further argues that his trial counsel failed to present any mitigating evidence that he
may have also been suffering from “undetermined issues which influenced his
actions and should have resulted in a lesser sentence.” The State’s position is that
Appellant was simply responding to the trial court in a flippant manner, as
discussed above.
{¶16} We construe Appellant’s argument as a claim that he would not have
entered a guilty plea but for the ineffective assistance provided by trial counsel.
Criminal defendants have a right to counsel, including a right to the effective
assistance from counsel. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct.
1441, 25 L.Ed.2d 763 (1970), fn.14; State v. Stout, 4th Dist. Gallia No. 07CA5,
2008-Ohio-1366, ¶ 21. To establish constitutionally ineffective assistance of
counsel, a criminal defendant must show (1) that his counsel's performance was
Lawrence App. No. 18CA11 16

deficient, and (2) that the deficient performance prejudiced the defense and
deprived him of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d
904 (2001); State v. Goff, 82 Ohio St.3d 123, 139, 694 N.E.2d 916 (1998). In
addition, in State v. Xie, 62 Ohio St.3d 521, 524, 584 N.E.2d 715 (1992), the Ohio
Supreme Court stated as follows:
The Strickland test was applied to guilty pleas in Hill v. Lockhart
(1985), 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203. “First, the
defendant must show that counsel's performance was deficient.”
Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693;
Hill, 474 U.S. at 57, 106 S.Ct. at 369, 88 L.Ed.2d at 209. Second,
“the defendant must show that there is a reasonable probability that,
but for counsel's errors, he would not have pleaded guilty * * *.” Hill,
474 U.S. at 59, 106 S.Ct. at 370, 88 L.Ed.2d at 210; see Strickland,
466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693.”
{¶17} “When considering whether trial counsel's representation amounts to
deficient performance, ‘a court must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable professional assistance.’ ” State
v. Walters, 4th Dist. Washington Nos. 13CA33 & 13CA36, 2014-Ohio-4966, ¶ 23,
quoting Strickland at 689. “Thus, ‘the defendant must overcome the presumption
Lawrence App. No. 18CA11 17

that, under the circumstances, the challenged action might be considered sound
trial strategy.’ ” Id., quoting Strickland at 689. “ ‘A properly licensed attorney is
presumed to execute his duties in an ethical and competent manner.’ ” Id., quoting
State v. Taylor, 4th Dist. Washington No. 07CA11, 2008-Ohio-482, ¶ 10.
“Therefore, a defendant bears the burden to show ineffectiveness by demonstrating
that counsel's errors were so serious that he or she failed to function as the counsel
guaranteed by the Sixth Amendment.” Id.
{¶18} Appellant’s argument under this assignment of error is premised upon
the idea that his competency should have been called into question and his
behavior at his change of plea/sentencing hearing should have been taken into
consideration as a mitigating factor in terms of sentencing. However, we have
already determined under his first assignment of error that there was nothing in the
record that raised a sufficient indicia of incompetency to suggest Appellant was not
competent to enter a guilty plea. Thus, to the extent Appellant’s argument is based
upon an allegation of incompetency, or an argument that but for counsel’s failure
to raise the issue of competency he would not have pled guilty, we find it is
without merit.
{¶19} Next, with respect to Appellant’s argument that “counsel failed to
present any evidence in mitigation of Appellant’s sentence,” we again note, as does
the State, that this was a negotiated plea agreement whereby Appellant would be
Lawrence App. No. 18CA11 18

sentenced to less than the maximum with the State’s agreement not to oppose
judicial release after five years. Thus, it appears Appellant’s trial counsel had
advocated on his behalf with a resulting plea agreement. Moreover, “[t]he decision
to forgo the presentation of additional mitigating evidence does not itself constitute
proof of ineffective assistance of counsel.” State v. Keith, 79 Ohio St.3d 514, 536,
684 N.E.2d 47 (1997), citing State v. Johnson, 24 Ohio St.3d 87, 91, 494 N.E.2d
1061 (1986). “ ‘Attorneys need not pursue every conceivable avenue; they are
entitled to be selective.’ ” State v. Murphy, 91 Ohio St.3d 516, 542, 747 N.E.2d
765 (2001), quoting United States v. Davenport (C.A.7, 1993), 986 F.2d 1047,
1049; State v. Davis, 116 Ohio St.3d 404, 2008–Ohio–2, 880 N.E.2d 31.
Furthermore, “[t]he presentation of mitigating evidence is a matter of trial
strategy.” Keith at 530. Based upon the foregoing, we cannot conclude Appellant
has demonstrated his trial counsel’s performance was deficient. Thus, we find no
merit in his second assignment of error.
{¶20} However, our analysis does not end here. In reviewing the record, we
sua sponte take notice of the fact that although the trial court imposed a $10,000.00
fine upon Appellant on the record during the combined plea and sentencing
hearing, there is no reference to the fine in the sentencing entry. “It is axiomatic
that a court speaks only through its journal entries.” State v. Payton, 4th Dist.
Scioto No. 14CA3628, 2015–Ohio–1796, ¶ 7, quoting State ex rel. Collier v.
Lawrence App. No. 18CA11 19

Farley, 4th Dist. Lawrence No. 05CA4, 2005–Ohio–4204, ¶ 18. “The oral
announcement of a judgment or decree binds no one.” State v. Grube, 4th Dist.
Gallia No. 10CA16, 2012–Ohio–2180, ¶ 7, quoting In re Adoptions of Gibson, 23
Ohio St.3d 170, 492 N.E.2d 146 (1986), at fn. 3.
{¶21} Because the fine was clearly imposed on the record and in Appellant’s
presence, it appears this was simply a clerical error. Clerical errors can be
corrected by a nunc pro tunc entry. See State v. Bradford, 2017-Ohio-3003, 91
N.E.3d 10, ¶ 23 (4th Dist.), citing State v. Lattimore, 1st Dist. Hamilton No. C
010488, 2002 WL 252451, *1-2 (2002) (“the trial court’s internally inconsistent
sentencing entry is a correctable clerical error.”); see also State v. Daley, 3rd Dist.
Seneca N. 13-13-26, 2014-Ohio-2128, ¶ 1 (remanded case for correction of clerical
errors included in the sentencing judgment entry). Thus, we need not vacate nor
remand the trial court’s judgment, but rather pursuant to App.R. 9(E), we instruct
the trial court to issue a nunc pro tunc sentencing entry that includes the
$10,000.00 fine, so as to accurately reflect the sentence imposed on the record
during the sentencing hearing. State v. Scoggins, 4th Dist. Scioto No. 16CA3767,
2017-Ohio-8989, ¶ 109. We find this is necessary and in the interests of justice
because, as set forth above, the trial court speaks only through its journal entry and
thus, the fine cannot be enforced if it is not properly included in the sentencing
judgment entry.

Outcome: Accordingly, having found no merit in the assignments of error raised
by Appellant, but having sua sponte noticed a clerical error, the judgment of the
trial court is affirmed with instructions to correct the clerical error regarding the fine that was imposed during the sentencing hearing but omitted from the
sentencing entry.

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