State v. Dooley , 2010 Ohio 6260 ( 2010 )

[Cite as State v. Dooley, 2010-Ohio-6260.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-10-41
v.
JOSHUA D. DOOLEY, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR2009 0270
Judgment Affirmed
Date of Decision: December 20, 2010
APPEARANCES:
F. Stephen Chamberlain for Appellant
Jana E. Emerick for Appellee
Case No. 1-10-41
PRESTON, J.
{¶1} Defendant-appellant, Joshua D. Dooley (hereinafter “Dooley”),
appeals the Allen County Court of Common Pleas’ judgment of conviction and
sentence. For the reasons that follow, we affirm.
{¶2} On September 17, 2009, the Allen County Grand Jury indicted
Dooley on count one of rape in violation of R.C. 2907.02(A)(1)(b), a first degree
felony, and count two of rape in violation of R.C. 2907.02(A)(1)(b), a first degree
felony. (Doc. No. 3). Both counts contained a specification that the victim was
less than ten years of age. (Id.).
{¶3} Arraignment was scheduled for September 28, 2009, at which time
Dooley filed a written plea of not guilty by reason of insanity. (Doc. Nos. 6, 8).
{¶4} On October 2, 2009, Dooley filed a motion for a competency
evaluation and hearing, which the trial court granted on October 7, 2009. (Doc.
Nos. 14-15).
{¶5} On October 8, 2009, Dooley filed a motion to suppress his
statements to law enforcement and evidence seized as a result of his allegedly
unlawful arrest. (Doc. No. 17).
{¶6} A pretrial hearing on the issue of competency was scheduled for
December 21, 2009. (Doc. Nos. 23-24). Dooley made an oral motion at this
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hearing for an additional mental status examination, which the trial court granted
on December 31, 2009. (Doc. No. 30).
{¶7} On February 22, 2010, the trial court held a competency hearing.
(Doc. No. 34). The State and the defense stipulated to the admission of the
evaluation reports of Dr. Scott Kidd and Thomas L. Hustak, Ph.D., and no other
evidence was presented at the hearing. (Id.); (Feb. 22, 2010 Tr. at 2-3). After
reviewing the evidence, the trial court found that Dooley was competent to stand
trial pursuant to R.C. 2945.37, 2945.371, and 2945.38. (Feb. 22, 2010 JE, Doc.
No. 34).
{¶8} On March 12, 2010, the trial court held a hearing on Dooley’s
motion to suppress, and thereafter, overruled the motion. (Mar. 15, 2010 JE, Doc.
No. 41).
{¶9} On March 22, 2010, Dooley appeared before the trial court,
withdrew his previously tendered pleas of not guilty by reason of insanity, and
entered pleas of guilty to both counts in the indictment pursuant to plea
negotiations. (Mar. 22, 2010 Tr. at 2-3, 15-17). In exchange for Dooley’s guilty
pleas in this case, the State agreed to dismiss its second case (CR 2009 0351)
against Dooley stemming from the same incident. (Plea Agreement, Doc. No. 45);
(Mar. 22, 2010 Tr. at 17). After accepting Dooley’s guilty pleas, the trial court
entered convictions, ordered a pre-sentence investigation (PSI) report, and set the
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matter for sentencing. (Mar. 22, 2010 Tr. at 17). On March 23, 2010, the trial
court filed its judgment entry of conviction. (Doc. No. 46).
{¶10} On May 6, 2010, the trial court sentenced Dooley to twenty-five (25)
years to life on count one and twenty-five (25) years to life on count two. (May 6,
2010 JE, Doc. No. 51). The trial court further ordered that the term imposed in
count two be served consecutive to the term imposed in count one for an aggregate
sentence of fifty (50) years to life imprisonment. (Id.).
{¶11} On May 24, 2010, Dooley filed a notice of appeal. (Doc. No. 59).
Dooley now appeals raising two assignments of error for our review.
ASSIGNMENT OF ERROR NO. I
THE DEFENDANT DID NOT RECEIVE EFFECTIVE
ASSISTANCE OF TRIAL COUNSEL DUE TO ERRORS AND
OMISSIONS AND COUNSEL PERFORMANCE DUE TO
INDIVIDUAL AND CUMULATIVE ERRORS RESULTED IN
PREJUDICE TO THE DEFENDANT.
{¶12} In his first assignment of error, Dooley argues that he was denied
effective assistance of trial counsel because trial counsel failed to hire an expert to
examine the digital pictures and computer data in the case, especially in light of
evidence that the camera was not working properly. Dooley further asserts that
trial counsel was ineffective for failing to locate “Christina Hill,” the person who
initially contacted the police and started the investigation against him. Dooley
further argues that trial counsel was ineffective for failing to argue that he
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unintelligently and unknowingly waived his Miranda rights since he has a low IQ
level.
{¶13} A defendant asserting a claim of ineffective assistance of counsel
must establish: (1) the counsel’s performance was deficient or unreasonable under
the circumstances; and (2) the deficient performance prejudiced the defendant.
State v. Kole (2001), 92 Ohio St.3d 303, 306, 750 N.E.2d 148, citing Strickland v.
Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674.
{¶14} In order to show counsel’s conduct was deficient or unreasonable,
the defendant must overcome the presumption that counsel provided competent
representation and must show that counsel’s actions were not trial strategies
prompted by reasonable professional judgment. Strickland, 466 U.S. at 687.
Counsel is entitled to a strong presumption that all decisions fall within the wide
range of reasonable professional assistance. State v. Sallie (1998), 81 Ohio St.3d
673, 675, 693 N.E.2d 267. Tactical or strategic trial decisions, even if
unsuccessful, do not generally constitute ineffective assistance. State v. Carter
(1995), 72 Ohio St.3d 545, 558, 651 N.E.2d 965. Rather, the errors complained of
must amount to a substantial violation of counsel’s essential duties to his client.
See State v. Bradley (1989), 42 Ohio St. 3d 136, 141-42, 538 N.E.2d 373, quoting
State v. Lytle (1976), 48 Ohio St.2d 391, 396, 358 N.E.2d 623.
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{¶15} To establish prejudice when ineffective assistance of counsel relates
to a guilty plea, the defendant must show there is a reasonable probability that but
for counsel’s deficient or unreasonable performance he or she would not have pled
guilty. State v. Xie (1992), 62 Ohio St.3d 521, 524, 584 N.E.2d 715, citing Hill v.
Lockhart (1985), 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.E.2d 203; Strickland, 466
U.S. at 687.
{¶16} Dooley’s arguments lack merit. Although the record indicates that
Dooley informed law enforcement that the dates on the camera may have been
incorrect, Dooley admitted to law enforcement that he committed the acts in
October and November of 2008. (Mar. 12, 2010 Tr. at 17-18). Furthermore,
Dooley has not indicated on appeal how this would have affected his decision to
plead guilty to the two rape offenses. Xie, 62 Ohio St.3d at 524. Additionally,
whether to consult an expert witness is generally a matter of trial strategy, and
therefore, does not constitute ineffective assistance of counsel. See State v. Mundt,
115 Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, ¶118; State v. Nicholas
(1993), 66 Ohio St.3d 431, 436, 613 N.E.2d 225; State v. Thompson (1987), 33
Ohio St.3d 1, 10-11, 514 N.E.2d 407; Carter, 72 Ohio St.3d at 558. See, also,
State v. Alvarado, 3d Dist. No. 12-07-14, 2008-Ohio-4411, ¶40.
{¶17} Dooley next argues that trial counsel was ineffective for failing to
locate “Christina Hill,” whose email to the Wapakoneta Police Department
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ultimately resulted in his arrest and subsequent rape convictions. (Mar. 12, 2010
Tr. at 5-6); (State’s Discovery Response, Doc. No. 13). Sergeant Mark Pierce of
the Allen County Sheriff’s Office testified that Christina Hill sent an email to the
Wapakoneta Police Department and forwarded photographs of an adult male’s
penis pressed up against a female infant’s vagina, which Christina indicated she
had received from Dooley. (Mar. 12, 2010 Tr. at 7, 23); (Doc. No. 13). Dooley
admitted that he had sent the pictures to Christina and that the adult male penis
photographed was his. (Mar. 12, 2010 Tr. at 8, 16-17); (Doc. No. 13). Dooley also
admitted to law enforcement that he had penetrated both female infants’ vaginas
with his penis. (Doc. No. 13). Trial counsel did inquire of Sergeant Pierce
concerning the whereabouts of Christina Hill, and Sergeant Pierce testified that
they might have Hill’s email address, but no other contact information for her.
(Mar. 12, 2010 Tr. at 19-23). Nevertheless, in light of Dooley’s admissions and
the photographic evidence in this case, failing to contact Christina Hill was not
ineffective assistance of trial counsel. Furthermore, Dooley has not suggested
what, if any, exculpatory evidence Hill might have offered that would have
affected his decision to plead guilty. Xie, 62 Ohio St.3d at 524. Therefore, we find
this argument also meritless.
{¶18} Finally, Dooley argues that trial counsel was ineffective for failing to
argue that he unintelligently and unknowingly waived his Miranda rights since he
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has a low IQ. Sergeant Pierce testified that he read the Pre-Interrogation Advice
of Rights to Dooley prior to his interrogation and, when he asked Dooley if he
understood what he was reading to him, Dooley responded, “[o]h, yes, this is the
Miranda Warning.” (Mar. 12, 2010 Tr. at 13). Sergeant Pierce also testified that
Dooley had graduated from Bath High School, was able to read and write English,
and appeared to understand his rights. (Id. at 13-14). Dr. Hustak’s report noted
that Dooley appeared to suffer from attention deficient disorder; however, Dooley
had adequate verbal comprehension despite this attention problem. (Hustak Report
at 12). Furthermore, we note that Dooley made a voluntary statement to law
enforcement prior to arrest and interrogation that the penis in the picture was his.
(Mar. 12, 2010 Tr. at 8); (Doc. No. 13). As such, we fail to see how trial counsel’s
failure to inquire about Dooley’s ability to waive Miranda rights at the
interrogation would have affected Dooley’s decision to plead or not plead guilty
since Dooley had already made incriminating statements prior to the interrogation.
Therefore, this argument lacks merit.
{¶19} Dooley’s first assignment of error is, therefore, overruled.
ASSIGNMENT OF ERROR NO. II
THE TRIAL COURT FAILED TO CONDUCT A PROPER
CRIMINAL RULE 11 HEARING TO ASCERTAIN THAT
DEFENDANT WAS COMPETENT TO ENTER A GUILTY
PLEA THAT CARRIED ESSENTIALLY A LIFE
SENTENCE GIVEN THE INFORMATION AVAILABLE TO
THE COURT OF THE DEFENDANT’S LOW IQ.
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{¶20} In his second assignment of error, Dooley argues that the trial court
did not conduct an adequate Crim.R. 11 hearing in light of his low IQ. We
disagree.
{¶21} In determining whether to accept a no contest or guilty plea, the trial
court must determine whether the defendant has knowingly, intelligently, and
voluntarily entered the plea. Crim.R. 11(C); State v. Johnson (1988), 40 Ohio
St.3d 130, 132-33, 532 N.E.2d 1295. To do so, the trial court should engage in a
dialogue with the defendant as described in Crim.R. 11(C). State v. Ballard
(1981), 66 Ohio St.2d 473, 480, 423 N.E.2d 115. The mere fact that a defendant
has a low IQ does not prevent him or her from entering a valid change of plea.
State v. Zachery, 5th Dist. No. 2004CA00091, 2004-Ohio-6282, ¶22.
{¶22} Upon review of the record herein, we hold that the trial court
conducted a proper Crim.R. 11(C) dialogue. Throughout the Crim.R. 11(C)
inquiry, the trial court repeatedly asked Dooley if he understood what he was
being told and whether he had any questions. (Mar. 22, 2010 Tr., passim). Dooley
repeatedly stated that he understood and had no questions. (Id.). The trial court
also allowed Dooley to consult with trial counsel with his additional questions. (Id.
at 12). After being fully informed of the rights he was forgoing by pleading guilty
and the possible penalties involved, Dooley entered his pleas of guilty to the two
rape charges pursuant to a written plea agreement. (Id. at 16). The written plea
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agreement also provided Dooley with notice of his rights and the possible
penalties involved. (Doc. No. 45). As such, Dooley’s argument lacks merit.
{¶23} Dooley’s second assignment of error is, therefore, overruled.
{¶24} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
WILLAMOWSKI, P.J. and ROGERS, J., concur.
/jlr
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