State v. Aldrich , 2017 Ohio 8944 ( 2017 )

[Cite as State v. Aldrich, 2017-Ohio-8944.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2017-A-0033
- vs - :
EMMIT HAROLD ALDRICH, :
Defendant-Appellant. :
Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2017
CR 00070.
Judgment: Affirmed.
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047-1092 (For Plaintiff-Appellee).
Ariana E. Tarighati, Law Offices of Ariana E. Tarighati, L.P.A., 34 South Chestnut
Street, #100, Jefferson, OH 44047-1092 (For Defendant-Appellant).
THOMAS R. WRIGHT, J.
{¶1} Appellant, Emmit Harold Aldrich, appeals his vehicular homicide and
failure to stop after an accident convictions. He contests the validity of his no contest
plea, imposition of the maximum prison term for failure to stop, and claims ineffective
assistance of trial counsel. We affirm.
{¶2} On the evening of January 26, 2017, appellant, while operating a vehicle
on Mill Street in the City of Conneaut, Ashtabula County, Ohio, hit a pedestrian crossing
the road. Appellant stopped, pulled the victim to the side of the road, returned to his
vehicle, and left without contacting the authorities. The victim died due to injuries
suffered in the accident.
{¶3} Appellant hid his vehicle in his girlfriend’s garage in the following days.
The city police department, nevertheless, determined that appellant was responsible.
The grand jury returned a four-count indictment, charging one count of vehicular
homicide, a first-degree misdemeanor; one count of failure to stop after an accident, a
second-degree felony; and two counts of tampering with evidence, third-degree
felonies.
{¶4} After pleading not guilty, appellant moved the trial judge for recusal due to
bias and knowing the victim. In an accompanying affidavit, appellant averred that the
trial judge was a municipal court judge for twenty-six years before joining the common
pleas bench and that during those years appellant appeared before him in multiple
criminal cases.
{¶5} In overruling the motion, the trial judge denied being acquainted with the
victim. The trial judge noted that appellant appeared before him on six occasions at the
municipal court, and that each case ended in appellant pleading guilty to a criminal or
traffic offense, the last case being four years ago. The trial judge concluded that he
could be fair and impartial.
{¶6} During a pretrial hearing, the state offered to dismiss the two “tampering”
counts in return for a no contest plea to the remaining counts. Appellant accepted the
terms and executed a written plea agreement. The trial court held a plea hearing during
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which the court informed appellant of the constitutional rights he would be waiving in
entering the no contest plea. Appellant was informed that he could not be compelled to
testify, but was not told of his right to testify if he so chose. At the conclusion of the
hearing, the trial court accepted the no contest plea and found him guilty of vehicular
homicide and failure to stop after an accident.
{¶7} At sentencing, appellant expressed remorse and said that he did not see
the victim until after his vehicle struck her. He further stated that he moved her from the
roadway due to concern that another car would hit her, and that he left the scene of the
accident because he panicked and there was nothing he could do to save her life. The
state challenged appellant’s assertion that the accident scene was dark, emphasizing
that an intersection and a well-lit gas station were nearby. The state also emphasized
his prior criminal record, noting three OVI convictions, multiple drug convictions, and
twenty-seven prior arrests.
{¶8} In pronouncing sentence, the trial court found that both the seriousness of
appellant’s actions and the likelihood that he would commit future crimes weighed in
favor of imposing a maximum prison term of eight years for failure to stop after an
accident. The trial court also imposed a concurrent six-month term on the vehicular
homicide count.
{¶9} Appellant appeals raising three assignments of error:
{¶10} “[1.] Trial counsel’s deficient performance during the proceedings in the
lower court deprived the defendant-appellant of the effective assistance of counsel in
violation of his Sixth and Fourteenth Amendment Rights.
{¶11} “[2.] An appellant’s plea is not knowingly, voluntarily and intelligently made
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when the trial court fails to advise him of all of the trial rights he is waiving by entering a
plea of guilty.
{¶12} “[3.] The trial court erred in sentencing the defendant-appellant to a
maximum prison sentence in violation of his Sixth and Fourteenth Amendment Rights.”
{¶13} Under his first assignment, appellant claims ineffective assistance of trial
counsel on the recusal issue. He contends that counsel should have requested a
hearing or instituted a separate action for disqualification before the Ohio Supreme
Court.
{¶14} “The standard of review for ineffective assistance of counsel was stated by
the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104
S.Ct. 2052, L.Ed.2d 674 (1984).
{¶15} “In order to support a claim of ineffective assistance of counsel, the
defendant must satisfy a two-prong test. First, he must show that counsel’s
performance was deficient. Strickland, supra. This requires a showing that counsel
made errors so serious that counsel was not functioning as the counsel guaranteed the
defendant by the Sixth Amendment. Id. A properly licensed attorney is presumed to be
competent. Id. at 688. In order to rebut this presumption, the defendant must show the
actions of counsel did not fall within a range of reasonable assistance. Id. at 689. The
Court in Strickland stated, ‘[t]here are countless ways to provide effective assistance in
any given case. * * *.’ Id. at 689. Therefore, ‘[j]udicial scrutiny of counsel’s performance
must be highly deferential. * * *.’ Id. In addition, ‘because of the difficulties inherent in
making the evaluation, a court must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional assistance * * *.’ Id.4
{¶16} “Second, the defendant must show the deficient performance prejudiced
the defense. In order to satisfy this prong, ‘[t]he defendant must show that there is a
reasonable probability that, but for counsel’s * * * errors, the result of the [trial] would
have been different.’ Id. at 694; accord State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d
373 (1989), paragraph three of the syllabus.
{¶17} “It is well settled that strategic and tactical decisions do not constitute a
deprivation of the effective assistance of counsel. State v. Clayton, 62 Ohio St.2d 45,
49, 402 N.E.2d 1189 (1980). Errors of judgment regarding tactical matters do not
substantiate a claim of ineffective assistance of counsel. Id.” State v. Holnapy, 11th
Dist. Lake No. 2013-L-002, 2013-Ohio-4307, ¶36-39.
{¶18} Regarding whether trial counsel should have filed an affidavit of prejudice
before the Ohio Supreme Court or requested a hearing, if counsel could reasonably
conclude that obtaining disqualification was unlikely, his performance cannot be
deemed deficient. State v. Hall, 2d Dist. Montgomery No. 25858, 2014-Ohio-416, ¶8;
State v. Hoskins, 2d Dist. Greene No. 2013 CA 78, 2014-Ohio-3639, ¶17.
{¶19} Appellant’s bias assertion is based on previously appearing before the
judge multiple times and the judge knowing the victim. Appellant did not, however, aver
that during the prior cases the trial judge ever demonstrated bias against him.
Moreover, the trial judge denied knowing the victim.
{¶20} Thus, disqualification was unlikely at best. Moreover, there appears to be
little to gain in seeking disqualification as any judge would ultimately gain knowledge of
appellant’s priors by way of a presentence investigation for purposes of sentencing.
Appellant has likewise failed to show that any alleged bias affected him in any way by
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the manner in which the case was conducted through accepting appellant’s plea.
{¶21} Under his next assignment, appellant argues that his no contest plea is
invalid because the trial court failed to advise him that, by entering the plea, he was
waiving his constitutional right to testify on his own behalf.
{¶22} In relation to a no contest plea in a felony proceeding, Crim.R. 11(C)(2)(c)
states that a trial court must not accept the plea unless it has personally addressed the
defendant and satisfied the following:
{¶23} “(c) Informing the defendant and determining that the defendant
understands that the plea the defendant 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.”
{¶24} Crim.R. 11(C)(2)(c) does not have a “catchall” provision under which a trial
court has a general duty to inform the defendant of other rights waived. State v.
Stewart, 11th Dist. Ashtabula No. 2010-A-0026, 2011-Ohio-2582, ¶20. The rule sets
forth the exclusive list of rights the trial court must discuss with the defendant. Id.Accordingly, a trial court’s failure to inform a defendant of his right to testify has no
effect upon the validity of the plea. Id. at ¶21. See, also, State v. Vialva, 8th Dist.
Cuyahoga No. 104199, 2017-Ohio-1279, ¶11. Appellant has failed to show deficient
performance or prejudice.
{¶25} In addition, the trial court informed appellant that his no contest plea
waives the rights enumerated. Appellant’s second assignment is without merit.
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{¶26} Under his last assignment, appellant challenges the imposition of the
maximum sentence of eight years for failure to stop. First, he asserts that the trial court
failed to state the basis for the maximum sentence and that the maximum was not
justified because he only had one prior felony conviction.
{¶27} R.C. 2953.08(G)(2) sets forth the standard an appellate court must follow
in reviewing a felony sentence:
{¶28} “The court hearing an appeal under division (A), (B), or (C) of this section
shall review the record, including the findings underlying the sentence or modification
given by the sentencing court.
{¶29} “The appellate court may increase, reduce, or otherwise modify a
sentence that is appealed under this section or may vacate the sentence and remand
the matter to the sentencing court for resentencing. The appellate court’s standard of
review is not whether the sentencing court abused its discretion. The appellate court
may take any action authorized by this division if it clearly and convincingly finds either
of the following:
{¶30} “(a) That the record does not support the sentencing court’s findings under
division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or
division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
{¶31} “(b) That the sentence is otherwise contrary to law.”
{¶32} Under this standard, an appellate court upholds the imposed felony
sentence unless: (1) required mandatory findings are clearly and convincingly not
supported by the record; or (2) the sentence is clearly and convincingly contrary to law.
State v. Talley, 11th Dist. Trumbull No. 2014-T-0098, 2015-Ohio-2816, ¶15, citing State
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v. Robinson, 1st Dist. Hamilton No. C-140043, 2015-Ohio-773, ¶38.
{¶33} Citing R.C. 2929.14(C) and 2929.19(B)(2)(d), appellant claims that, before
imposing the maximum, the court was required to find that one of the four alternative
criteria has been met, and then state the basis for its finding in open court. However,
the cited statutes were repealed before the incident. Specific findings are no longer
required before imposing the maximum. Appellate review is limited to determining
whether the maximum sentence is otherwise contrary to law.
{¶34} “A sentence is contrary to law if (1) the sentence falls outside the
statutory range for the particular degree of offense, or (2) the trial court failed to
consider the purposes and principles of felony sentencing set forth in R.C. 2929.11 and
the sentencing factors in R.C. 2929.12.” State v. Hinton, 8th Dist. Cuyahoga No.
102710, 2015-Ohio-4907, ¶10, citing State v. Smith, 8th Dist. Cuyahoga No. 100206,
2014-Ohio-1520, ¶13. There is no dispute that appellant’s sentence is within the
statutory range. See R.C. 4549.02(B)(3)(b) and R.C. 2929.14(A)(2).
{¶35} We presume a trial court considered R.C. 2929.11 and R.C. 2929.12 from
a silent record. State v. Foster, 11th Dist. Portage No. 2011-P-0087, 2012-Ohio-3744,
¶9. In this case, the trial court stated on the record and in the sentencing entry that it
considered both statutes. Moreover, the sentence itself does not rebut the
presumptions as the sentence is consistent with the overriding principles and purposes
of felony sentencing based on seriousness and recidivism.
{¶36} Appellant claims the maximum sentence for a second-degree felony is
unwarranted because he only had one prior felony conviction. However, while the
majority of appellant’s prior convictions were for misdemeanor offenses, the
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presentence investigation still confirms he had a substantial criminal record for over a
twenty-year period. As the trial court noted, he had twelve convictions for alcohol or
drug-related offenses, including three for drunk driving. Hence, there is considerable
evidence to support the finding that appellant is highly likely to commit future crimes.
{¶37} Furthermore, the seriousness of appellant’s criminal behavior cannot be
disputed. He struck and killed the victim, moved her to the side of the road, left the
scene, and did not inform authorities. Thus, he has failed to clearly and convincingly
show his sentence is contrary to law. The third assignment also lacks merit.
{¶38} The judgment of the Ashtabula County Court of Common Pleas is
affirmed.
CYNTHIA WESCOTT RICE, P.J., concurs,
COLLEEN MARY O’TOOLE, J., concurs in judgment only.
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