State v. Bennett , 2012 Ohio 3664 ( 2012 )

[Cite as State v. Bennett, 2012-Ohio-3664.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 26241
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
JOSEPH L. BENNETT COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR 11 04 0894
DECISION AND JOURNAL ENTRY
Dated: August 15, 2012
DICKINSON, Judge.
INTRODUCTION
{¶1} Joseph Bennett pleaded guilty to several charges stemming from leading police on
a high-speed chase through Akron and, several days later, being caught in possession of narcotics
inside a detention facility. The trial court sentenced him to 12 years in prison, and this Court
granted his motion for delayed appeal. We dismiss Mr. Bennett’s third assignment of error due
to lack of jurisdiction. We affirm the judgment of the trial court because it exercised proper
discretion in sentencing Mr. Bennett, Mr. Bennett knowingly, intelligently, and voluntarily chose
to waive his right to use compulsory process to obtain witnesses in his favor and his right to
refuse to testify against himself at trial, and he did not show that his lawyer was ineffective.
BACKGROUND
{¶2} Mr. Bennett pleaded guilty to leading police on a high-speed chase on Arlington
Road and throwing something, possibly drugs, out the window along the way. He was charged
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with failure to comply with an order or signal of a police officer and tampering with evidence
based on that incident. According to the indictment, he was also charged with three counts
stemming from events that occurred five days after the chase. Those charges included
prohibition of conveyance of weapons, drugs of abuse, or intoxicating liquor onto the grounds of
a specified governmental facility, aggravated possession of drugs, and tampering with evidence.
There are few details about the factual circumstances of the crimes in the record that has been
transmitted to this Court. The parties seem to agree, however, that Mr. Bennett threw something
from the car window while fleeing from police and that he was later found in possession of
methamphetamine inside a detention facility. They also seem to agree that a police officer was
seriously injured by a drunk driver while searching for the item that Mr. Bennett threw from the
car window during the chase.
{¶3} The State agreed to dismiss the tampering with evidence charge stemming from
the incident inside the detention facility and to amend the aggravated possession of drugs charge
from a felony of the third degree to a felony of the fifth degree. Mr. Bennett then pleaded guilty
to the remaining four charges as amended, including three third-degree felonies and one fifth-
degree felony. More than a month after the plea hearing, the trial court sentenced Mr. Bennett to
12 years in prison. Within a month of receiving his sentence, Mr. Bennett moved the trial court
for leave to withdraw his guilty pleas. The trial court denied his motion without a hearing. He
has appealed.
PLEA COLLOQUY
{¶4} Mr. Bennett’s second assignment of error is that the trial court should not have
accepted his guilty plea because it did not properly notify him that, by pleading guilty, he would
be waiving his right to subpoena witnesses to testify on his behalf and that he could not be
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compelled to testify at trial. The State has argued that the trial court’s advice was sufficient
despite the fact that the court did not quote verbatim from Rule 11 of the Ohio Rules of Criminal
Procedure.
{¶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. Barker, 129 Ohio St. 3d 472, 2011–Ohio–4130, ¶ 9 (quoting State v. Engle, 74 Ohio St.
3d 525, 527 (1996)). Under Rule 11(C)(2)(c) of the Ohio Rules of Criminal Procedure, before
accepting a guilty plea in a felony case, a trial court must inform the defendant and determine
that he understands that, by pleading guilty, he is waiving certain constitutional rights.
Specifically, the court must advise the defendant that, by pleading guilty, he “is waiving the
rights to jury trial, to confront witnesses against him . . . , to have compulsory process for
obtaining witnesses in [his] favor, and to require the state to prove [his] guilt beyond a
reasonable doubt at a trial at which the defendant cannot be compelled to testify against
himself[.]” Crim. R. 11(C)(2)(c).
{¶6} According to the Ohio Supreme Court, the “preferred method” is for the trial
court to use the language of the rule, but it has held that “a trial court’s failure to literally
comply” with Criminal Rule 11(C) “does not invalidate a plea agreement if the record
demonstrates that the trial court explained the constitutional right ‘in a manner reasonably
intelligible to that defendant.’” State v. Barker, 129 Ohio St. 3d 472, 2011-Ohio-4130, ¶ 14
(quoting State v. Veney, 120 Ohio St. 3d 176, 2008-Ohio-5200, ¶ 27). A trial court may fulfill
the purpose of the rule, that is, it may convey sufficient information to the defendant so that he
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can make a voluntary and intelligent decision about whether to plead guilty, without reading the
rule to the defendant verbatim. Id. at ¶ 15.
{¶7} In this case, before the trial court addressed Mr. Bennett, his lawyer told the court
that Mr. Bennett had “reviewed the plea form” and that she had “gone over his constitutional
rights” with him. The trial court advised Mr. Bennett that, by changing his pleas to guilty, he
would “give up [his] right to a jury trial, give up [his] right to making the prosecutor prove all the
charges against [him] beyond a reasonable doubt, give up the right to have [his lawyer] subpoena
and cross-examine witnesses for [him], give up the right to testify or not testify in [his] own
defense, and . . . give up the right to then appeal that [he] would have had if we’d gone to trial . .
. .”
{¶8} The trial court also acknowledged that Mr. Bennett had signed a written plea form
and asked him whether his lawyer had “go[ne] over it with [him] to [his] satisfaction.” Mr.
Bennett answered, “[y]es.” The written plea form that Mr. Bennett signed on August 17, 2011,
provided that “I have been informed by my attorney and by the Judge that by pleading guilty, I
waive the following Constitutional Rights, and I understand these rights and it is my intention to
waive them: (a) My right to a jury trial[;] (b) My right to confront and cross-examine the
witnesses against me[;] (c) My right to have compulsory process, that is the right to subpoena
witnesses to court to testify in my favor[;] (d) My right to require the State to prove my guilt
beyond a reasonable doubt at trial at which I could not be compelled to testify against myself.”
{¶9} The Ohio Supreme Court has held that “when a trial court addresses all the
constitutional rights in the oral colloquy, a reviewing court should be permitted to consider
additional record evidence to reconcile any alleged ambiguity in it.” State v. Barker, 129 Ohio
St. 3d 472, 2011–Ohio–4130, ¶ 23-24 (distinguishing State v. Veney, 120 Ohio St. 3d 176, 2008-
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Ohio-5200, on basis that, in Veney, the trial court had completely omitted from the plea colloquy
any mention of the defendant’s constitutional right to require the state to prove his guilt beyond a
reasonable doubt). In Mr. Bennett’s case, the trial court told him that he would be giving up the
right to have his lawyer subpoena witnesses for him and it told him that he would be giving up
the right to testify or not testify in his own defense. Therefore, under Barker, we are permitted to
consider whether additional evidence in the record clarifies any alleged ambiguity in those
statements.
{¶10} In regard to the constitutional right “to have compulsory process for obtaining
witnesses in [his] favor,” any alleged ambiguity in the trial court’s advice was clarified by the
written plea form Mr. Bennett acknowledged signing and discussing with his lawyer. Crim. R.
11(C)(2)(c). The trial court warned Mr. Bennett that he would be giving up his “right to have
[his lawyer] subpoena . . . witnesses for [him].” Criminal Rule 11(C)(2)(c) does not use the
word “subpoena.” The Rule uses the term “compulsory process.” Although “subpoena” is not a
common word, it is likely more comprehensible to a non-lawyer than the term “compulsory
process.” See State v. Barker, 129 Ohio St. 3d 472, 2011–Ohio–4130, ¶ 20 (explaining that the
use of more common words rather than a rote recitation of the legal terminology of the rule “can
assist the defendant in understanding the rights forfeited by entry of a plea”). We believe that the
trial court’s statement about Mr. Bennett’s lawyer being able to “subpoena” witnesses “for” him
conveyed sufficient information to allow Mr. Bennett to make a voluntary and intelligent
decision about whether to plead guilty. See Barker, 2011-Ohio-4130, at ¶ 15. Even if this Court
had determined that the trial court’s statement created some ambiguity, it would have been
clarified by the written plea form that listed the “right to have compulsory process” and
explained that right as “the right to subpoena witnesses to court to testify in my favor.” Under
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the totality of the circumstances, Mr. Bennett was adequately informed of his right to
compulsory process and he knowingly, intelligently, and voluntarily waived that right.
{¶11} Mr. Bennett has also argued that he was not adequately informed that, if he went
to trial, he could not be compelled to take the witness stand. During the colloquy, the trial court
told Mr. Bennett that, by pleading guilty, he would be giving up his right “to testify or not testify
in [his] own defense.” The written plea form that Mr. Bennett signed informed him that, by
pleading guilty, he was giving up his “right to require the State to prove [his] guilt beyond a
reasonable doubt at a trial at which [he] could not be compelled to testify against [him]self.” The
form also provided that, “I have either read this Written Plea of Guilty or it has been read to me
and I understand it, and I wish to waive all of the rights set forth herein and voluntarily plead
GUILTY to the charge(s) set forth above.”
{¶12} Criminal Rule 11 provides that, by pleading guilty, a defendant waives his right
“to require the state to prove [his] guilt beyond a reasonable doubt at a trial at which the
defendant cannot be compelled to testify against himself[.]” Crim. R. 11(C)(2)(c). As the
language of the written plea form tracked the language of Criminal Rule 11, any alleged
ambiguity in the trial court’s statement to Mr. Bennett about his right to choose not to testify was
sufficiently clarified by the form. Under the totality of the circumstances, Mr. Bennett was
adequately informed of his right to refuse to testify against himself at trial and he knowingly,
intelligently, and voluntarily waived that right. See State v. Coleman, 9th Dist. No. 26008, 2012-
Ohio-1712, ¶ 11 (approving trial court’s use of identical language). Mr. Bennett’s second
assignment of error is overruled because he knowingly, intelligently, and voluntarily chose to
waive his right to use compulsory process to obtain witnesses in his favor and his right to refuse
to testify against himself at trial.
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MOTION TO WITHDRAW GUILTY PLEA
{¶13} Mr. Bennett’s third assignment of error is that the trial court incorrectly denied his
post-sentence motion to withdraw his guilty plea without holding a hearing. The State has
argued that this Court lacks jurisdiction to consider this assignment of error because the motion
to file delayed appeal was limited to the judgment of conviction attached to Mr. Bennett’s notice
of appeal.
{¶14} On December 30, 2011, Mr. Bennett filed a notice of appeal from the trial court’s
judgment entered September 21, 2011. He did not attach to his notice of appeal the October 26,
2011, entry denying his motion to vacate his guilty plea nor did he refer to that entry in the body
of his notice. At the same time, he moved this Court for leave to file a delayed appeal. The
motion to file a delayed appeal did not include any reference to the trial court’s ruling on his
post-sentence motion to withdraw his guilty plea.
{¶15} A trial court’s entry imposing sentence in a criminal case is a final, appealable
order. State v. Lester, 130 Ohio St. 3d 303, 2011-Ohio-5204, paragraph one of the syllabus. A
denial of a post-sentence motion to withdraw a guilty plea is also a final, appealable order. State
v. Kerns, 9th Dist. No. 11CA0051–M, 2011–Ohio–6788, ¶ 7. Under Rule 3(D) of the Ohio
Rules of Appellate Procedure, a “notice of appeal . . . shall designate the judgment, order or part
thereof appealed from[.]”
{¶16} In this case, the only judgment Mr. Bennett designated in his notice of appeal was
his sentencing entry. If he desired to appeal the denial of his post-sentence motion to withdraw
his guilty plea, he should have either timely filed a notice of appeal designating that judgment
under Rule 3(D) of the Ohio Rules of Appellate Procedure or moved this Court for leave to file a
delayed appeal from that judgment. See App. R. 4(A); App. R. 5(A). In the absence of either a
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timely filed notice of appeal or motion to file a delayed appeal from the October 26, 2011, entry
denying the post-sentence motion to withdraw his guilty plea, this Court lacks jurisdiction to
consider this assignment of error. See State v. Wilson, 9th Dist. No. 26238, 2012-Ohio-2890, ¶
4-5. Mr. Bennett’s third assignment of error is dismissed.
SENTENCING
{¶17} Mr. Bennett’s first assignment of error is that the trial court considered irrelevant
and unconstitutional factors in sentencing him, violating his statutory and constitutional rights.
He has argued that he was prejudiced by the trial court’s consideration of several factors,
including his membership in a white supremacist organization, his display of certain tattoos
associated with that membership, and the fact that a police officer was seriously injured while
searching for evidence that Mr. Bennett had thrown from his car while fleeing from police.
{¶18} In State v. Kalish, 120 Ohio St. 3d 23, 2008–Ohio–4912, ¶ 4, a plurality of the
Ohio Supreme Court determined that, in light of State v. Foster, 109 Ohio St. 3d 1, 2006–Ohio–
856, when appellate courts review criminal sentences, they must follow a “two-step approach.”
The first step is to determine whether the sentence is contrary to law. Kalish, 2008–Ohio–4912,
at ¶ 4. The second step is to determine whether the court exercised proper discretion in imposing
the term of imprisonment. Id. at ¶ 26. In this case, the defendant has not argued that any part of
his sentence is contrary to law and a review of the record reveals that his sentence falls within the
statutorily permissible range for his crimes. R.C. 2929.14(A)(3), (5), effective Apr. 7, 2009.
Therefore, the question is whether the trial court exercised proper discretion in imposing Mr.
Bennett’s sentence.
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Membership in the Aryan Brotherhood
{¶19} “The United States Supreme Court has recognized that even a sentence within the
limits of a state’s sentencing laws may violate due process if the sentencing proceedings are
fundamentally unfair.” State v. Arnett, 88 Ohio St. 3d 208, 217 (2000) (citing Gardner v.
Florida, 430 U.S. 349, 358 (1977)). Thus, the Supreme Court has observed that a sentencing
court may not base its decision on “factors that are constitutionally impermissible or totally
irrelevant to the sentencing process, such as for example the race, religion, or political affiliation
of the defendant.” Zant v. Stephens, 462 U.S. 862, 885 (1983). Mr. Bennett has relied on
Dawson v. Delaware, 503 U.S. 159 (1992), to support his proposition that the trial court’s
consideration, for the purposes of sentencing, of evidence that Mr. Bennett was a member of the
Aryan Brotherhood violated his First and Fourth Amendment rights.
{¶20} In Dawson v. Delaware, 503 U.S. 159 (1992), the United States Supreme Court
held that the defendant’s First Amendment rights were violated by the admission into evidence at
a capital sentencing hearing of a narrow stipulation regarding Mr. Dawson’s membership in the
Aryan Brotherhood. The stipulation described the group as “a white racist prison gang that
began in the 1960’s in California . . . . Separate gangs calling themselves the Aryan Brotherhood
now exist in many state prisons including Delaware.” Id. at 162. In that case, the Court
determined that the receipt of the stipulation regarding his membership was constitutional error
because the narrow scope of the stipulation left the evidence “totally without relevance to . . .
[the] sentencing proceeding.” Id. at 165. Even if the stipulation had been written in a way that
provided evidence that the Delaware chapter to which Mr. Dawson belonged held racist beliefs,
those beliefs had no relevance to the sentencing proceeding because both the defendant and the
murder victim were white. Id. at 166. The Court, however, refused to “erect a per se barrier to
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the admission of evidence concerning one’s beliefs and associations at sentencing simply
because those beliefs and associations are protected by the First Amendment.” Id. at 165. The
Court in Dawson pointed out that such evidence could be admissible to show, among other
things, the bias of a witness or the likelihood that the defendant poses a future danger to society.
Id. at 164-66. The Court explained that the State “might have avoided this problem if it had
presented evidence showing more than mere abstract beliefs [of the defendant].” Id. at 167.
{¶21} In Ohio, the sentencing court in a felony case is required to “be guided by the
overriding purposes of felony sentencing. . . . [including] to protect the public from future crime
by the offender and others and to punish the offender. To achieve those purposes, the sentencing
court shall consider the need for incapacitating the offender, deterring the offender and others
from future crime, rehabilitating the offender, and making restitution to the victim of the offense,
the public, or both.” R.C. 2929.11(A), effective July 1, 1996. “A sentence imposed for a felony
shall be reasonably calculated to achieve the two overriding purposes of felony sentencing . . .
commensurate with and not demeaning to the seriousness of the offender’s conduct and its
impact upon the victim, and consistent with sentences imposed for similar crimes committed by
similar offenders.” R.C. 2929.11(B), effective July 1, 1996.
{¶22} In this case, there is nothing in the record to indicate that race played a role in the
crime. The fact that racism was not involved in the crime, however, does not mean that the trial
court necessarily violated Mr. Bennett’s constitutional rights by considering for purposes of
sentencing his membership in the Aryan Brotherhood. Such evidence may have been relevant at
sentencing to prove the likelihood of recidivism if properly supported by the proper evidence
about the Aryan Brotherhood. The Court in Dawson explained that one’s membership in the
Aryan Brotherhood could not be used to enhance a penalty simply because the abstract beliefs
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espoused by the group are generally considered to be morally reprehensible. Dawson v.
Delaware, 503 U.S. 159, 167 (1992). The evidence, however, can be used to the extent that it
tends to show that the offender is likely to reoffend, so that an increased penalty may be
necessary to achieve the purpose of protecting the public from future crime. See R.C.
2929.11(A), effective July 1, 1996.
{¶23} “At the sentencing hearing, the court, before imposing sentence, shall consider the
record, any information presented at the hearing by any person pursuant to division (A) of this
section, and, if one was prepared, the presentence investigation report . . . .” R.C. 2929.19(B)(1),
effective Apr. 7, 2009. It is apparent from the transcript of the sentencing hearing that a
presentence investigation report was prepared in this case, but it does not appear in the record
before this Court.
{¶24} If a presentence investigation report is prepared, “there is a presumption that the
trial court utilized it in imposing a sentence.” State v. Cox, 9th Dist. No. 19773, 2000 WL
372317, *2 (Apr. 12, 2000) (citing State v. O’Neal, 9th Dist. No. 19255, 1999 WL 771917, *5
(Sept. 29, 1999)). The trial court mentioned at the sentencing hearing that the presentence
investigation report described “Mr. Bennett’s avowed and apparently proud membership in the
Aryan Brotherhood” and the fact that he is “a captain” in that organization. Beyond that, it is
impossible to discern what else the presentence investigation report provided on that topic
because the report is not included in the record. “This Court has repeatedly held that it is the
duty of the appellant to ensure that the record on appeal is complete.” Riggle v. McFadden, 9th
Dist. No. 08CA0007, 2008–Ohio–5656, ¶ 5 (quoting Lunato v. Stevens Painton Corp., 9th Dist.
No. 08CA009318, 2008–Ohio–3206, ¶ 11)). Without the presentence investigation report, we
are unable to properly review the trial court’s sentencing decision, so we must presume the
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validity of the trial court proceedings. See City of Cuyahoga Falls v. James, 9th Dist. No. 21119,
2003-Ohio-531, ¶ 9 (quoting Knapp v. Edwards Labs., 61 Ohio St. 2d 197, 199 (1980)).
Unintended Consequences of the Criminal Behavior
{¶25} Mr. Bennett has also argued that the trial court incorrectly considered the
undisputed fact that a police officer was severely injured by a drunk driver while searching for
the item that Mr. Bennett threw from the window of his car while leading police on a high-speed
chase through Akron neighborhoods. He has cited State v. Dykas, 185 Ohio App. 3d 763, 2010-
Ohio-359, ¶ 24 (8th Dist.), for the proposition that the trial court should not have considered the
officer’s injury because it was not reasonably foreseeable.
{¶26} “It is not necessary that the defendant ‘be in a position to foresee the precise
consequence of his conduct; only that the consequence be foreseeable in the sense that what
actually transpired was natural and logical in that it was within the scope of the risk created by
his conduct.’” State v. Dykas, 185 Ohio App. 3d 763, 2010-Ohio-359, ¶ 24 (quoting State v.
Losey, 23 Ohio App. 3d 93, 96 (10th Dist. 1985)). Mr. Bennett has argued that the officer’s
injury was caused by the unforeseeable intervening cause of a drunk driver, which should
“absolve [Mr. Bennett] of criminal liability.” Id. at ¶ 25. Presumably the missing presentence
investigation report contains some details about how the officer was injured that would shed
some light on the foreseeability question.
{¶27} Regardless of those details, however, Mr. Bennett has not made a constitutional
argument in regard to the court’s consideration of the officer’s injury. The only argument is that
it should not have been considered because it was not a relevant factor under Section 2929.12 of
the Ohio Revised Code. It makes no difference in this matter whether Mr. Bennett could have
been held criminally liable for the officer’s injury because he was not charged with causing it.
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The circumstances of the injury may prove to make it more or less relevant to the crimes Mr.
Bennett admitted committing, depending on how attenuated the causation. In any event, in the
absence of any details, we cannot say that the injury to the officer was, as a matter of law,
“totally irrelevant” to the sentencing considerations of the trial court. See Zant v. Stephens, 462
U.S. 862, 885 (1983).
{¶28} The trial court warned Mr. Bennett at the plea hearing that it wanted a presentence
investigation completed primarily for the purpose of uncovering the circumstances of his failure
to comply with an order of a police officer. The court made it clear that those facts would
“weigh heavily in the sentencing” because of the danger the high-speed chase posed to others.
At the sentencing hearing, the State presented information, presumably from the presentence
investigation report, indicating that Mr. Bennett had had “two attempts” at community control
and that he had been “sent back to prison on both of those.” Mr. Bennett stated on the record
that he had spent eight years in prison. Although Mr. Bennett was just 31 years old at the time,
the State described his criminal record as spanning almost two decades and including two prior
charges of failure to comply with an order or signal of a police officer. Mr. Bennett’s lawyer
admitted that Mr. Bennett had sped away from the police at high rates of speed and did not
object to the State’s assertion that he had led police on a chase at over 100 miles per hour on
Arlington Road, nearly causing several collisions along the way. The trial court explained that
“the danger [Mr. Bennett] posed to the community was monumental, not just to the officer, but
to lots of other people.”
{¶29} Based on these considerations, the trial court sentenced Mr. Bennett to the
maximum sentence on his pleas of guilty to failure to comply, aggravated possession of drugs,
and tampering with evidence. The court sentenced him to less than half of the maximum
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permissible sentence for prohibition of conveyance of weapons, drugs of abuse, or intoxicating
liquor onto the grounds of a specified governmental facility. The trial court exercised proper
discretion in sentencing Mr. Bennett, and his first assignment of error is overruled.
INEFFECTIVE ASSISTANCE OF COUNSEL
{¶30} Mr. Bennett’s fourth assignment of error is that his lawyer was ineffective for
failing to object to the consideration of irrelevant and prejudicial evidence at the sentencing
hearing, failing to object or notify the Court of the ways in which the court’s advice at the plea
colloquy failed to conform to Rule 11 of the Ohio Rules of Criminal Procedure, and failing to
move to withdraw Mr. Bennett’s guilty plea before the court sentenced him. To establish that his
lawyer was ineffective, Mr. Bennett “must show (1) deficient performance by counsel, i.e.,
performance falling below an objective standard of reasonable representation, and (2) prejudice,
i.e., a reasonable probability that, but for counsel’s errors, the proceeding’s result would have
been different.” State v. Hale, 119 Ohio St. 3d 118, 2008–Ohio–3426, ¶ 204 (citing Strickland v.
Washington, 466 U.S. 668, 687–88, 694 (1984); State v. Bradley, 42 Ohio St. 3d 136, paragraph
two of the syllabus (1989)). “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Strickland, 466 U.S. at 694. “An error by counsel, even if
professionally unreasonable, does not warrant setting aside the judgment of a criminal
proceeding if the error had no effect on the judgment.” Id. at 691.
{¶31} Mr. Bennett’s first argument is that his lawyer was ineffective for failing to
object, after his guilty pleas were accepted, to the consideration of evidence regarding his
membership in the Aryan Brotherhood, his “Aryan Brother tattoos,” and the fact that a police
officer was seriously injured by a drunk driver while searching for the item Mr. Bennett threw
from the car window while fleeing from police. Having reviewed the record in regard to the first
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assignment of error, this Court has determined that the trial court exercised proper discretion in
considering those issues in sentencing Mr. Bennett. As there was no error in the trial court’s
consideration of those issues, Mr. Bennett cannot show that his lawyer was ineffective for failing
to object.
{¶32} Mr. Bennett’s next argument is that his lawyer was ineffective for failing to object
or notify the Court of the ways in which the court’s advice at the plea colloquy failed to conform
to Rule 11 of the Ohio Rules of Criminal Procedure. In analyzing Mr. Bennett’s arguments in
regard to his second assignment of error, we determined that the trial court properly advised him
of the rights he was forfeiting by entering a plea of guilty. Therefore, he cannot show that his
lawyer was ineffective for not objecting or notifying the trial court of any problems with its
advice during the plea colloquy.
{¶33} Mr. Bennett’s final argument is that his lawyer was ineffective for failing to move
to withdraw Mr. Bennett’s guilty pleas before the court sentenced him. According to his brief,
Mr. Bennett “was hesitant to go through with the sentencing hearing and expressed a desire to
withdraw his guilty plea.” He has argued that his lawyer fell below an objective standard of
reasonable representation by failing to ensure that Mr. Bennett wished to proceed to sentencing
rather than move to withdraw his guilty pleas before the sentencing hearing.
{¶34} There is no evidence that Mr. Bennett wanted to withdraw his pleas at any time
between the August 17 plea hearing and the September 21 sentencing hearing. After the
sentencing hearing, in the motion to withdraw the guilty pleas, Mr. Bennett’s lawyer indicated
that, “[j]ust prior to sentencing, Mr. Bennett stated that he wanted to withdraw his plea.” His
lawyer also indicated, however, that she immediately advised him that, if he wanted to withdraw
his pleas, he needed to do so before sentencing while such motions are freely granted. Despite
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that admonition, Mr. Bennett decided to go forward with the sentencing hearing. A review of the
transcript of the sentencing hearing reveals that Mr. Bennett gave the trial court no indication
that he was not completely comfortable with the court pronouncing sentence at that time.
According to the record, he did not decide to withdraw his pleas until after he learned what the
sentence would be. Without evidence in the record indicating that Mr. Bennett expressed a
desire to withdraw his pleas before sentencing, this Court cannot determine whether his trial
lawyer’s failure to move to withdraw the pleas before sentencing fell below an objective standard
of reasonable representation. See Strickland v. Washington, 466 U.S. 668, 691 (1984). The only
indication in the record appears after sentencing and is in the form of a motion. Even if we
considered that evidence, it does not support Mr. Bennett’s argument that his lawyer’s
performance was deficient in any way. Mr. Bennett’s fourth assignment of error is overruled.
CONCLUSION
{¶35} Mr. Bennett’s first assignment of error is overruled because, based on our review
of the record, the trial court exercised proper discretion in sentencing Mr. Bennett. His second
assignment of error is overruled because the trial court properly advised him at his plea hearing
and he knowingly, intelligently, and voluntarily chose to waive his right to use compulsory
process to obtain witnesses in his favor and his right to refuse to testify against himself at trial.
His third assignment of error is dismissed because this Court lacks jurisdiction to consider it.
His fourth assignment of error is overruled because he did not show that his lawyer was
ineffective. The judgment of the Summit County Common Pleas Court is affirmed.
Judgment affirmed.
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There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
CLAIR E. DICKINSON
FOR THE COURT
WHITMORE, P. J.
CARR, J.
CONCUR.
APPEARANCES:
ADAM VAN HO, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.