State v. Earich ( 2024 )

[Cite as State v. Earich, 2024-Ohio-477.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
COLUMBIANA COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
GLENN EDWARD EARICH, JR.,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 23 CO 0015Criminal Appeal from the
Court of Common Pleas of Columbiana County, Ohio
Case No. 2019 CR 468
BEFORE:
Mark A. Hanni, Carol Ann Robb, Judges,
William A. Klatt, Retired Judge of the Tenth District Court of Appeals,
Sitting by Assignment.
JUDGMENT:
Affirmed.
Atty. Vito J. Abruzzino, Columbiana County Prosecutor, and Atty. Shelley M. Pratt,
Assistant Prosecuting Attorney, Columbiana County Prosecutor's Office, for Plaintiff-
Appellee and
Atty. Catherine Meehan, Patituce & Associates, LLC, for Defendant-Appellant.
Dated: February 8, 2024
–2–
HANNI, J.
{¶1} Defendant-Appellant, Glenn Edward Earich, Jr., appeals from a
Columbiana County Common Pleas Court judgment convicting him of felonious assault,
following a guilty plea.
{¶2} On June 30, 2019, a group of people were gathered at Bill McMillen’s trailer
to socialize and drink. In attendance were Bill, Bill’s son Dustin, Heath Thibedeau,
Heath’s daughter Jasmine, Jasmine’s friend Ivy, Heath’s girlfriend Tammy, and Appellant.
According to several of the individuals, Heath was drunk and passed out on a chair on
the porch. At some point, Heath dropped a bottle of moonshine Appellant gave to him.
The bottle fell to the porch. Heath leaned over. Appellant, who was wearing steel-toe
boots, then kicked Heath in the face. Heath only remembers waking up in the hospital.
He suffered a broken nose and multiple facial fractures. When Heath left the hospital, he
filed a police report.
{¶3} Appellant never denied kicking Heath in the face. He even tried to apologize
after kicking Heath. Later, Appellant claimed that he acted in self-defense because he
thought Heath had made a sudden move toward him.
{¶4} On October 18, 2019, a Columbiana County Grand Jury indicted Appellant
on one count of felonious assault, a second-degree felony in violation of R.C.
2903.11(A)(1). Appellant entered a not guilty plea.
{¶5} The matter proceeded to a jury trial. At the close of evidence, the parties
had a discussion regarding the jury instructions. Specifically, Appellant requested a jury
instruction on self-defense. The State opposed this instruction. The trial court eventually
determined a self-defense instruction was not warranted.
{¶6} After the court’s decision regarding the self-defense instruction, Appellant
and Plaintiff-Appellee, the State of Ohio, entered into a plea agreement. So, the case did
not proceed to a jury verdict. Pursuant to the agreement, Appellant entered a guilty plea
to the charge in the indictment. The parties jointly agreed to recommend an eight-year
sentence. They further agreed to recommend that the sentence in this case run
concurrently with any sentence imposed in another criminal case Appellant had pending
Case No. 23 CO 0015–3–
in Columbiana County for failure to register (Case No. 19-CR-579), which carried a
mandatory three-year sentence.
{¶7} The trial court sentenced Appellant to an indefinite prison term of eight to
12 years. It ordered Appellant to serve this sentence concurrently with his three-year
sentence in Case No. 19-CR-579.
{¶8} This Court granted Appellant’s motion for leave to file a delayed appeal,
which he filed on March 9, 2023. He now raises two assignments of error for our review.
{¶9} Appellant’s first assignment of error states:
APPELLANT’S SIXTH AMENDMENT RIGHTS WERE VIOLATED WHEN
TRIAL COUNSEL FAILED TO PROPERLY ADVISE OF THE EFFECTS OF
A GUILTY PLEA AS IT RELATED TO THE FORECLOSURE OF
APPELLATE ISSUES.
{¶10} Appellant argues his trial counsel was ineffective for failing to advise him
that he was forfeiting his appellate rights by pleading guilty. He notes that his case had
proceeded through an entire trial and when the trial court denied his request for a self-
defense instruction, his counsel advised him to plead guilty. He took his counsel’s advice
and, as a result, is now unable to challenge on appeal the denial of the self-defense
instruction. Had counsel advised him to plead no contest instead, Appellant states he
would still have been able to challenge the trial court’s denial of the self-defense
instruction on appeal. Moreover, Appellant argues he received no benefit for pleading
guilty.
{¶11} Appellant claims the State presented evidence that he did not act in self-
defense while he presented evidence that he did act in self-defense. This conflicting
evidence, Appellant asserts, was enough to warrant a self-defense instruction and submit
the issue to the jury to determine which evidence was more credible.
{¶12} To prove an allegation of ineffective assistance of counsel, the Appellant
must satisfy a two-prong test. First, the Appellant must establish that counsel’s
performance has fallen below an objective standard of reasonable representation.
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);
State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the
Case No. 23 CO 0015–4–
syllabus. Second, the Appellant must demonstrate that he was prejudiced by counsel’s
performance. Id. To show that he has been prejudiced by counsel’s deficient
performance, the Appellant must prove that, but for counsel’s errors, the result of the trial
would have been different. Bradley, at paragraph three of the syllabus.
{¶13} The appellant bears the burden of proof on the issue of counsel’s
ineffectiveness. State v. Calhoun, 86 Ohio St.3d 279, 289, 714 N.E.2d 905 (1999). In
Ohio, a licensed attorney is presumed competent. Id.{¶14} Firstly, Appellant contends his counsel failed to advise him that he was
giving up his right to appeal by pleading guilty. But from the record we can glean that
Appellant was in fact aware that by pleading guilty he was waiving his right to appeal. In
the document titled “Defendant’s Response to Court”, one of the questions posed to
Appellant stated: “Do you fully realize that, by your offer to plead guilty, you surrender
the right to challenge everything that happened before you offered to plead guilty?”
Appellant acknowledged that he understood this by answering “yes” to this question and
signing the document. At the change of plea hearing, Appellant informed the court that
he reviewed that document with his attorney before signing it. (Plea Tr. 12-14). Appellant
told the court that he did not have any questions regarding it. (Plea Tr. 12-14). Thus,
Appellant acknowledged that he realized he was giving up his right to challenge
everything that occurred before his plea (including any rulings made during trial).
{¶15} Secondly, Appellant claims his counsel should have advised him to plead
no contest instead of pleading guilty so that he would preserve his appellate rights. But
there is no indication on the record that the State offered a no contest plea as part of the
plea negotiations or that the State would have even agreed to a no contest plea.
{¶16} Thirdly, Appellant argues he received no benefit from the State for pleading
guilty. This is not the case, however. In addition to the charge in this case, Appellant
was also facing a charge for a third-degree felony for failure to register in Case No. 2019-
CR-579. Appellant pleaded guilty to that charge, which carried a mandatory three-year
prison sentence. The court sentenced him to three years in Case No. 2019-CR-579 to
be served concurrently with the sentence in this case. The court could have ordered
Appellant’s sentences in the two cases to be served consecutively. As part of the plea
deal in this case, the State agreed to recommend that Appellant serve his two sentences
Case No. 23 CO 0015–5–
concurrently. Thus, the benefit that Appellant gained from pleading guilty in this case was
the recommendation from the State, which the trial court agreed to, to have his two felony
sentences run concurrently.
{¶17} Finally, Appellant cannot demonstrate any prejudice. Had Appellant been
able to challenge on appeal the trial court’s decision not to instruct the jury on self-
defense, he would not have prevailed.
{¶18} When reviewing a trial court’s jury instructions, the proper standard of
review of the trial court’s refusal to give a requested jury instruction is whether such
refusal constituted an abuse of discretion under the facts and circumstances of the case.
State v. Everson, 7th Dist. Mahoning No. 12 MA 128, 2016-Ohio-87, ¶ 58. Abuse of
discretion implies that the trial court’s judgment is arbitrary, unreasonable, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140(1983).
{¶19} A trial court is not required to give a jury instruction requested by a
defendant if the evidence offered is “legally insufficient” to support the issue raised in the
instruction. State v. Sims, 7th Dist. Columbiana No. 19 CO 0035, 2021-Ohio-2334, ¶ 8,
citing State v. Barnd, 85 Ohio App.3d 254, 259, 619 N.E.2d 518 (3d Dist.1993). If the
evidence offered in support constitutes “mere speculation,” that evidence is insufficient to
raise the defense and the requested instruction is not warranted. Id., citing State v.
Melchoir, 56 Ohio St.2d 15, 20, 381 N.E.2d 195 (1978).
{¶20} When a defendant raises self-defense, in order to convict a defendant of
felonious assault, the State must prove beyond a reasonable doubt that the defendant:
“(1) was at fault in creating the situation giving rise to the incident; (2) did not have a bona
fide belief that he was in imminent danger of death or great bodily harm and that his only
means of escape from such danger was the use of force; and (3) violated the duty to
retreat or avoid danger.” Id. at ¶ 10.
{¶21} In this case, Jasmine, Dustin, and Tammy all testified that Heath was
passed out sitting in a chair on the porch when Appellant attempted to hand him a bottle
of moonshine. (Trial Tr. 140, 153, 168). Heath dropped the bottle. (Trial Tr. 140, 153,
168). Each of the three witnesses testified that Appellant then kicked Heath in the face.
Case No. 23 CO 0015–6–
(Trial Tr. 140153-154, 169). Each of the witnesses also testified that Heath did not make
any threatening moves toward Appellant. (Trial Tr. 142, 154, 169-170).
{¶22} Appellant, however, testified that Heath “made a sudden move” toward him
so Appellant kicked him. (Tr. 210, 212). Appellant stated that he felt stressed and tense
at that moment. (Trial Tr. 213). Without being specific, Appellant testified that Heath had
threatened him once in the past. (Trial Tr. 207). Appellant also testified that after he
kicked Heath, he apologized to him and shook his hand. (Trial Tr. 212).
{¶23} Officer Channing Hank contacted Appellant regarding the allegations
against him. Appellant admitted that he kicked Heath and advised the officer that he had
apologized for his conduct. (Trial Tr. 192). Appellant told the officer that he had been
intoxicated at the time. (Trial Tr. 192). Appellant never mentioned to the officer that he
was fearful of Heath or that he acted in self-defense. (Trial Tr. 192-193).
{¶24} Given this evidence, had Appellant been able to challenge the trial court’s
denial of a self-defense instruction on appeal, the result here would be the same. The
evidence was sufficient to prove that Appellant was at fault in creating the situation.
Moreover, the evidence demonstrated that Appellant could have easily retreated from the
situation. The trial court did not abuse its discretion in refusing to give a self-defense
instruction. Thus, Appellant cannot prove the prejudice necessary for a claim of
ineffective assistance of counsel.
{¶25} Based on all of the above, Appellant cannot demonstrate that his counsel
was ineffective.
{¶26} Accordingly, Appellant’s first assignment of error is without merit and is
overruled.
{¶27} Appellant’s second assignment of error states:
THE TRIAL COURT ERRED WHEN IT ACCEPTED APPELLANT’S
GUILTY PLEA AFTER IMPROPERLY INSTRUCTING ON THE EFFECT
OF SAID PLEA DURING THE CRIMINAL RULE 11 PLEA COLLOQUY.
{¶28} Here, Appellant asserts the trial court failed to advise him of the effect of his
guilty plea. He alleges the trial court failed to substantially comply with Crim.R. 11(C)
Case No. 23 CO 0015–7–
when it neglected to inform him that the effect of a guilty plea is a complete admission of
guilt. Thus, Appellant claims this court must vacate his plea.
{¶29} When determining the validity of a plea, this court must consider all of the
relevant circumstances surrounding it. State v. Trubee, 3d Dist. Marion No. 9-03-65,
2005-Ohio-552, ¶ 8, citing Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463 (1970).
Pursuant to Crim.R. 11(C)(2), the trial court must follow a certain procedure for accepting
guilty pleas in felony cases. Before the court can accept a guilty plea to a felony charge,
it must conduct a colloquy with the defendant to determine that he understands the plea
he is entering and the rights he is voluntarily waiving. Crim.R. 11(C)(2). If the plea is not
knowing, intelligent, and voluntary, it has been obtained in violation of due process and
is void. State v. Martinez, 7th Dist. Mahoning No. 03 MA 196, 2004-Ohio-6806, ¶ 11,
citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709 (1969).
{¶30} Because Appellant has asserted that he did not enter his plea knowingly,
voluntarily, and intelligently, we must examine the plea colloquy to determine if the trial
court met all of the requirements that Crim.R. 11(C) demands.
{¶31} A trial court must strictly comply with Crim.R. 11(C)(2) pertaining to the
waiver of five federal constitutional rights. Martinez, 2004-Ohio-6806, ¶ 12. These rights
include the right against self-incrimination, the right to a jury trial, the right to confront
one's accusers, the right to compel witnesses to testify by compulsory process, and the
right to proof of guilt beyond a reasonable doubt. Crim.R. 11(C)(2)(c).
{¶32} A trial court need only substantially comply with Crim.R. 11(C)(2) pertaining
to non-constitutional rights such as informing the defendant of the nature of the charges,
the maximum penalty, that after entering a guilty plea or a no contest plea, the court may
proceed to judgment and sentence, and the effect of the plea of guilty or no contest.
Crim.R. 11(C)(2)(a)(b).
{¶33} The trial court strictly complied with Crim.R. 11(C)(2) pertaining to the
waiver of Appellant’s federal constitutional rights. (Plea Tr. 19-21). Appellant does not
take issue with this.
{¶34} As to the non-constitutional rights, the court informed Appellant of the nature
of the charges and the maximum penalty he faced. (Plea Tr. 15-17). The court also told
Appellant that upon acceptance of his plea, it could proceed immediately to sentencing.
Case No. 23 CO 0015–8–
(Plea Tr. 12). As to these non-constitutional rights, the court substantially complied with
Crim.R. 11(C)(2)(a)(b). But the trial court did not specifically inform Appellant on the
record of the effect of his plea.
{¶35} “To satisfy the requirement of informing a defendant of the effect of a plea,
a trial court must inform the defendant of the appropriate language under Crim.R. 11(B).”
State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, paragraph two of
the syllabus. Pursuant to Crim.R. 11(B), the effect of a guilty plea “is a complete
admission of the defendant's guilt.”
{¶36} The Ohio Supreme Court has held: “A defendant who has entered a guilty
plea without asserting actual innocence is presumed to understand that he has
completely admitted his guilt. In such circumstances, a court's failure to inform the
defendant of the effect of his guilty plea as required by Crim.R. 11 is presumed not to be
prejudicial.” (Emphasis added); State v. Griggs, 103 Ohio St.3d 85, 814 N.E.2d 51, 2004-
Ohio-4415, at the syllabus. The Griggs Court also found important the fact that the
defendant understood the rights that he waived by pleading guilty. Id. at ¶ 19.
{¶37} Here, the trial court’s failure to advise Appellant of the effect of his guilty
plea at the change of plea hearing was not prejudicial. Appellant never asserted actual
innocence in this case. He has admitted all along that he assaulted Heath, although at
trial he claimed it was in self-defense.
{¶38} Moreover, in the document “Defendant’s Response to Court”, the court
inquired of Appellant: “Do you fully realize that when you complete your Response to
Court under oath, you are confessing that you are truly guilty of committing the crime to
which you plead guilty and by doing so, this is as much a conviction as if a jury found you
guilty?” Appellant answered “yes” and signed the document. At the change of plea
hearing, Appellant told the court that he signed this document. (Plea Tr. 13). The court
asked Appellant if he reviewed this document with his attorney before he signed it and if
his attorney answered any questions he had regarding it. (Plea Tr. 13-15). Appellant
indicated that he reviewed the document and that his attorney answered any questions
he had about it. (Plea Tr. 13-15). These events demonstrate substantial compliance with
Crim.R. 11(C)(2) as to informing Appellant of the effect of his guilty plea.
Case No. 23 CO 0015–9–
{¶39} Accordingly, Appellant’s second assignment of error is without merit and is
overruled.
{¶40} For the reasons stated above, the trial court’s judgment is hereby affirmed.
Robb, P.J., concurs.
Klatt, J., concurs.
Case No. 23 CO 0015[Cite as State v. Earich, 2024-Ohio-477.]
For the reasons stated in the Opinion rendered herein, the assignments of error
are overruled and it is the final judgment and order of this Court that the judgment of the
Court of Common Pleas of Columbiana County, Ohio, is affirmed. Costs to be waived.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.