State v. Illing , 2022 Ohio 4266 ( 2022 )

[Cite as State v. Illing, 2022-Ohio-4266.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-220166
TRIAL NO. B-2104768
Plaintiff-Appellee, :
vs. :
O P I N I O N.
PATRICK ILLING, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 30, 2022
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant
Prosecuting Attorney, for Plaintiff-Appellee,
Rubenstein & Thurman, L.P.A., and Scott A. Rubenstein, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BOCK, Judge.
{¶1} Defendant-appellant Patrick Illing appeals the trial court’s judgment,
arguing that (1) his plea was not made knowingly, intelligently, and voluntarily, (2) he
received the ineffective assistance of counsel, and (3) the trial court’s sentence was not
supported by the record. We affirm the trial court’s judgment.
I. Facts and Procedure
{¶2} Illing was indicted for rape under R.C. 2907.02(A)(1)(c), sexual battery
under R.C. 2907.03(A)(2), and sexual battery under R.C. 2907.03(A)(3). The victim,
N.R., was 19 years old, a friend of Illing’s son, and Illing’s employee. Illing was accused
of providing N.R. with a substantial amount of alcohol and sexually assaulting N.R.
while he was passed out from intoxication in Illing’s basement. Illing pled guilty to
sexual battery under R.C. 2907.03(A)(2), a third-degree felony. The state dismissed
the remaining counts.
{¶3} The court engaged in the Crim.R. 11 colloquy, pausing after each factor
to confirm that Illing understood. The court informed Illing that his guilty plea meant
that he was admitting the facts of the offense as true and his full guilt. It advised Illing
of the constitutional rights that he was foregoing by pleading guilty. The court
explained the minimum and maximum sentences, fines, postrelease control,
consequences of violating postrelease control or being indicted on a new felony, and
Illing’s requirement to register as a Tier III sex offender.
{¶4} The court asked Illing if anyone had made promises or threats that
would induce or force him to plead. He responded, “No, sir.” The court stated, “Do you
understand that there’s no promise of a particular sentence, and the Court could
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OHIO FIRST DISTRICT COURT OF APPEALS
proceed with judgment and sentence you immediately after your plea?” Illing
responded, “Yes, sir,” and entered his guilty plea.
The trial court sentenced Illing
{¶5} Illing asked for the court’s “leniency” and “mercy,” requesting a period
of probation and home incarceration and noting that “the Ohio legislature codified this
offense not to have a presumption of prison for a reason.” Illing argued that he should
not be subject to prison time as he had no criminal record, was fully cooperative with
police, had made a full confession, and “felt extreme remorse.”
{¶6} Illing told the court that he runs a successful business where his
employees described him as a “great boss” that they “deeply care about” and were “also
joining in our request for probation.” Illing had engaged in therapy “[b]efore [the
parties] reached this plea agreement,” which he “was doing all * * * on his own” despite
“facing mandatory time” to address the sexual abuse that Illing had “suffered from as
a child” and his “self-coping mechanisms.” Illing said that his sons could attest that
Illing’s therapy had “affected their entire family for the better.” Illing admitted that he
reached out to N.R. during the pendency of the case and said it was inappropriate to
do so.
{¶7} Detective Ruwe, who investigated the case, stated that, although Illing
was cooperative, it did not “change what happened.” Ruwe emphasized that Illing not
only recorded the act, but also retained the recording and still shots of it on his phone
“over a year later,” which told Ruwe that “he didn’t want to get rid of it.” Ruwe stated,
“Yes, once we arrested him, he wanted to get rid of it, but by then it was a little too late.
There were other pictures on his phone that were disturbing. He enjoyed taking
pictures of [his employees], and not full-body photos, just certain areas * * * employees
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OHIO FIRST DISTRICT COURT OF APPEALS
either bent over * * * and things like that.” He added that the victim “obviously had no
idea about this until it was brought to his attention” and described N.R.’s reaction as
an “entire range of emotions for him,” “upset,” “scared,” and “nervous” after seeing
the recording “over a year later.”
{¶8} N.R.’s grandmother stated that N.R. had tried to commit suicide after
discovering that he had been sexually assaulted. She added that N.R. had been bullied
at school before and abused by his previous stepfather. She further stated that N.R.
trusted Illing and now has to deal with the effects of this emotional and physical abuse
“for the rest of his life also.”
{¶9} N.R. did not address the court. The state explained that Illing was in a
position of trust to N.R. because he was N.R.’s employer and the father of N.R.’s friend.
The state reported that N.R. had gone to sleep in Illing’s basement when Illing
assaulted him. The state echoed Detective Ruwe’s statements regarding “multiple
other photos on the iPad or iPhone that were troubling.”
{¶10} The court explained to Illing the purposes and principles of sentencing,
stating that it is to “protect the public from future crime, to punish the defendant, but
also to promote the effective rehabilitation of the defendant” by using minimum
sanctions to accomplish the statute’s purposes. The court found that, while Illing had
no criminal record, it had to look at the seriousness factors in R.C. 2929.12(B). It noted
that N.R. had suffered “serious psychological harm” and would carry the effect of
Illing’s actions for the rest of his life.
{¶11} The court pointed to the “position of trust” that Illing had with N.R. and
that Illing had recorded the act and kept the recording for more than a year. It stated
that the victim-impact statement reflected that Illing had groomed N.R., and
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OHIO FIRST DISTRICT COURT OF APPEALS
therefore, Illing intended to commit the act. The court found that these factors
outweighed Illing’s risk of recidivism and imposed a 24-month sentence in the Ohio
Department of Rehabilitation and Correction.
II. Law and Analysis
A. Illing’s plea was made knowingly, intelligently, and voluntarily
{¶12} To determine whether a plea was entered knowingly, intelligently, and
voluntarily, “an appellate court examines the totality of the circumstances through a
de novo review of the record.” State v. Foster, 2018-Ohio-4006, 121 N.E.3d 76 (1st
Dist.), quoting State v. Tutt, 2015-Ohio-5145, 54 N.E.3d 619, ¶ 13 (8th Dist.).
{¶13} Crim.R. 11(C)(2)(a) requires the trial court to determine whether the
defendant is entering the plea voluntarily, with an understanding of the effect of the
plea, knows that the court may proceed to judgment and sentencing, and understands
the nature of the charges and the maximum penalty involved. The term “maximum
penalty” refers to “[t]he heaviest punishment permitted by law.” State v. Fikes, 1st
Dist. Hamilton No. C-200221, 2021-Ohio-2597, ¶ 6, quoting Black’s Law
Dictionary 1314 (10th Ed.2014).
{¶14} A trial court must strictly comply with the constitutional notifications
contained in Crim.R. 11(C)(2)(c). State v. Green, 1st Dist. Hamilton No. C-170477,
2019-Ohio-1428.
{¶15} A trial court must substantially comply with the nonconstitutional
notifications required by Crim.R. 11(C)(2)(a) and (b). State v. Veney, 120 Ohio St.3d
176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 14. “Substantial compliance means that
under the totality of the circumstances the defendant subjectively understands the
implications of his plea and the rights he is waiving.” Id.; see State v. Nero, 56 Ohio
5OHIO FIRST DISTRICT COURT OF APPEALS
St.3d 106, 108, 564 N.E.2d 474 (1990). “Literal compliance with Crim. R. 11 is certainly
the preferred practice, but the fact that the trial judge did not do so does not require
vacation of the defendant’s guilty plea if the reviewing court determines that there was
substantial compliance.” Nero at 108. Moreover, a defendant who challenges his guilty
plea on the basis that it was not knowingly, intelligently, and voluntarily made must
show a prejudicial effect. State v. Stewart, 51 Ohio St.2d 86, 93, 364 N.E.2d 1163(1977). The test for prejudice is whether the plea would have otherwise been made.
Veney at ¶ 15.
{¶16} In his first assignment of error, Illing argues that the trial court erred by
accepting his plea where it was based on counsel’s assurance that Illing would receive
probation. This argument is without merit. The court advised Illing of the sentence
that he was facing, asked him if he understood the terms of the sentence, and asked
whether he had been promised anything or threatened into pleading. Illing stated that
he understood the sentence and that he had not been promised anything or threatened
to make the plea.
{¶17} The trial court substantially complied with Crim.R. 11(C)(2)(a) and (b)
and strictly complied with Crim.R. 11 (C)(2)(c). Further, Illing had admitted his
culpability to police and later pled guilty to sexual battery, adding nothing to the facts
as they were read into the transcript. Illing did not object to the sentence when the
court announced it. He did not argue before the trial court that his counsel promised
probation. And on appeal, while Illing argues that his plea was “predicated on trial
counsel’s assurances regarding the anticipated sentence,” he does not assert that
absent those assurances, he would not have pled guilty. Accordingly, the trial court
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OHIO FIRST DISTRICT COURT OF APPEALS
correctly determined that Illing entered his plea knowingly, intelligently, and
voluntarily. We overrule Illing’s first assignment of error.
B. Illing received the effective assistance of counsel.
{¶18} A defendant who pleads guilty waives all appealable issues, including
the right to assert an ineffective-assistance-of-counsel claim, except that the defendant
may claim ineffective assistance of counsel on the basis that counsel’s deficient
performance caused the plea to be less than knowing, intelligent, and voluntary. State
v. Miller, 5th Dist. Stark No. 2019CA00046, 2019-Ohio-4275, ¶ 13. In such a case, a
defendant may prevail only by demonstrating that there is a reasonable probability
that, but for counsel’s deficient performance, he would not have pled guilty and would
have insisted on going to trial. (Citations omitted.) Id.{¶19} “To warrant reversal, ‘[t]he defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability
sufficient to undermine confidence in the outcome.’ ” State v. Bradley, 42 Ohio St.3d
136, 142, 538 N.E.2d 373, (1989), quoting Strickland v. Washington, 466 U.S. 668,
694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶20} The appropriate remedy for allegations of ineffective assistance of
counsel based on facts in the record is an appeal from the verdict. State v. Mallory,
8th Dist. Cuyahoga No. 49389, 1985 Ohio App. LEXIS 7256, *2 (Oct. 3, 1985). In an
ineffective-assistance-of-counsel claim, an appellant must show (1) that counsel’s
performance was deficient, and (2) that the deficient performance prejudiced the
defense, thereby depriving the appellant of a fair trial. Strickland at 687. “A
defendant’s failure to satisfy one prong of the Strickland test negates a court’s need to
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OHIO FIRST DISTRICT COURT OF APPEALS
consider the other.” State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000).
{¶21} In Illing’s second assignment of error, he argues that he received
ineffective assistance of counsel where counsel allegedly advised Illing that probation
was guaranteed. Illing does not argue on appeal that there is a reasonable probability
that he would not have pled guilty but for this alleged promise. Instead, he merely
states that his counsel “cause[d] substantial prejudice” without further explanation or
showing how the outcome would have been different but for counsel’s alleged
deficiency.
{¶22} Moreover, the record is devoid of evidence, testimony, or filings
suggesting that Illing pled guilty based on the alleged promise. As such discussions
were not a part of the record, and cannot be added to the record on appeal, Illing
cannot demonstrate that his counsel’s performance was deficient. We overrule Illing’s
second assignment of error.
C. The trial court’s sentence was proper
{¶23} Illing’s third assignment of error argues that the trial court imposed his
prison sentence without properly considering the purposes and principles of
sentencing or any of the factors set forth in R.C. 2929.11(A)-(B) and 2929.12(A)-(E).
Illing asserts that the trial court failed to consider his own trauma as “substantial
grounds” to mitigate his conduct, or the fact that the victim-impact statement
contained statements from the victim’s mother and grandmother, but not the victim.
{¶24} We review criminal sentences under R.C. 2953.08(G)(2), which allows
appellate courts to increase, reduce, or otherwise modify a sentence, or to vacate the
sentence and remand the matter for resentencing if it clearly and convincingly finds
that either the record does not support the sentencing court’s findings under relevant
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OHIO FIRST DISTRICT COURT OF APPEALS
statutory provisions, or the sentence is otherwise contrary to law. State v. Conley, 1st
Dist. Hamilton No. C-200144, 2021-Ohio-837, ¶ 20.
{¶25} In State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649,
the Ohio Supreme Court held, “R.C. 2953.08(G)(2)(a) clearly does not provide a basis
for an appellate court to modify or vacate a sentence if it concludes that the record
does not support the sentence under R.C. 2929.11 and 2929.12 because * * * R.C.
2929.11 and 2929.12 are not among the statutes listed in the provision.” Id. at ¶ 31.
Moreover, a trial court’s findings under R.C. 2929.11 and 2929.12 were not reviewable
under R.C. 2953.08(G)(2)(b) because “an appellate court’s conclusion that the record
does not support a sentence under R.C. 2929.11 or 2929.12 is not the equivalent of a
conclusion that the sentence is ‘otherwise contrary to law’ as that term is used in R.C.
2953.08(G)(2)(b).” Id. at ¶ 34. The court concluded that “[n]othing in R.C.
2953.08(G)(2) permits an appellate court to independently weigh the evidence in the
record and substitute its judgment for that of the trial court concerning the sentence
that best reflects compliance with R.C. 2929.11 and 2929.12.” Id. at ¶ 42.
{¶26} R.C. 2929.11 and 2929.12 are not fact-finding statutes, and, absent an
affirmative demonstration to the contrary, we presume that the trial court considered
them. State v. Mimes, 1st Dist. Hamilton No. C-200122, 2021-Ohio-2494, ¶ 9.
{¶27} The trial court imposed the 24-month sentence after considering Illing’s
actions and the impact that his actions had on the victim and the community. The
court explained the principles and purposes of sentencing in detail to Illing. Further,
the court generally acknowledged counsel’s arguments in favor of probation over
prison but imposed its sentence after “looking at the seriousness factors in 2929.12(B)”
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OHIO FIRST DISTRICT COURT OF APPEALS
and noting that the victim “suffered serious psychological harm,” and “mental
suffering is considered a physical harm” under R.C. 2929.01(A)(5).
{¶28} The court further stated that Illing “held a position of trust” and “of
authority,” which was a “relationship with the victim that facilitated the offense.”
Further, the victim-impact statement indicated that Illing “had groomed the victim,
shows the requisite mental intent to commit the act.” The court also noted that,
although Illing was a sexual-abuse survivor, he “knew better” than to perpetrate the
offense on another person who will “carry it with him his whole life.”
{¶29} Illing has not shown that the trial court failed to consider the statutory
factors. And under Jones, this court is not permitted to substitute its judgment for that
of the trial court “concerning the sentence that best reflects compliance with R.C.
2929.11 and 2929.12.” Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649,
at ¶ 42. We overrule Illing’s third assignment of error.
III. Conclusion
{¶30} Illing made his plea knowingly, intelligently, and voluntarily. The trial
court substantially complied with Crim.R. 11(C)(2)(a) and (b) and strictly complied
with Crim.R. 11(C)(2)(c). Illing did not show that his counsel was ineffective. Finally,
Illing did not show that the trial court improperly sentenced him. We affirm the trial
court’s judgment.
Judgment affirmed.
CROUSE, P.J., and WINKLER, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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