State v. Allen

[Cite as State v. Allen, 2017-Ohio-2831.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 27494
28213
Appellee
v.
APPEAL FROM JUDGMENT
TERRANCE ALLEN ENTERED IN THE
COURT OF COMMON PLEAS
Appellant COUNTY OF SUMMIT, OHIO
CASE No. CR 2013 01 0276 (A)
DECISION AND JOURNAL ENTRY
Dated: May 17, 2017
CALLAHAN, Judge.
{¶1} Defendant-Appellant, Terrance Allen, appeals from his convictions in the Summit
County Court of Common Pleas. This Court affirms.
I.
{¶2} In 2013, Allen’s four-year-old son tragically shot himself in the head while riding
in the backseat of Allen’s car. When the police initially spoke with Allen, he claimed that there
was no gun in the car. The police later found the gun the victim had used under the passenger’s
seat of the car, tucked behind several items. The police learned that Allen was under disability,
but, a year earlier, had convinced a woman with whom he was having a sexual relationship to
purchase the gun and give it to him, such that it was registered in her name. It is undisputed that
the victim was playing with the gun in Allen’s house the week before he shot himself. Allen’s
wife, his son, and his step-son were temporarily living with him, despite the fact that his wife had
obtained a protection order against him.
2
{¶3} A grand jury indicted Allen on charges of involuntary manslaughter, with child
endangering as its predicate offense; tampering with evidence; child endangering; having a
weapon under disability; and violating a protection order. Following a period of discovery,
Allen retracted his initial plea and signed a written guilty plea. The plea agreement provided that
the State would dismiss the charges of tampering with evidence and child endangering in
exchange for Allen pleading guilty to his three remaining charges. It also provided that the State
would not make a sentencing recommendation, but that both sides would present arguments after
reviewing the pre-sentence investigation report. The court ultimately accepted Allen’s guilty
plea and imposed an eight-year prison sentence.
{¶4} Subsequently, Allen, acting pro se, attempted to file two delayed appeals from his
judgment of conviction. Because his filings were procedurally defective, however, this Court
denied his motions for delayed appeal. See State v. Allen, 9th Dist. Summit No. 27111 (Oct. 29,
2013); State v. Allen, 9th Dist. Summit No. 27254 (Mar. 19, 2014). Allen then filed a motion to
withdraw his guilty plea, and the State opposed the motion. The trial court denied Allen’s
motion, but Allen did not initially appeal from the denial.
{¶5} Following the denial of his motion to withdraw, Allen once again sought to appeal
from his original judgment of conviction. This Court granted his motion for delayed appeal and
appointed him appellate counsel, but his counsel filed a brief pursuant to Anders v. California,
386 U.S. 738 (1967), and sought to withdraw from representation. Allen then responded with a
pro se brief on the merits, and the State responded in opposition. Upon review, this Court
determined that arguable issues for appeal existed. As such, this Court granted first appointed
counsel’s motion to withdraw and appointed Allen new counsel.
3
{¶6} Allen’s newly appointed counsel filed another motion for delayed appeal, seeking
to challenge the trial court’s denial of Allen’s motion to withdraw his plea. This Court granted
the motion for delayed appeal and ordered Allen’s two appeals consolidated for purposes of
briefing and decision. See State v. Allen, 9th Dist. Summit Nos. 27494 & 28213 (May 20, 2016).
{¶7} Allen’s appeals are now before this Court and raise six assignments of error for
our review. For ease of analysis, this Court rearranges and consolidates several of the
assignments of error.
II.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ERRED IN ACCEPTING APPELLANT’S GUILTY
PLEAS BECAUSE THEY WERE NOT KNOWINGLY, VOLUNTARILY, AND
INTELLIGENTLY ENTERED.
ASSIGNMENT OF ERROR NO. 3
THE TRIAL COURT ERRED IN DENYING THE PRO SE MOTION TO
WITHDRAW THE GUILTY PLEAS[.]
{¶8} In his second and third assignments of error, Allen argues that the trial court erred
by accepting his plea and denying his motion to withdraw it. He argues that he did not
knowingly, voluntarily, and intelligently enter his plea because the trial court failed to properly
explain the nature of his charges and his appellate rights. He further argues that the court abused
its discretion when it summarily denied his pro se motion to withdraw, given that the court had
repeatedly refused to appoint him counsel. Upon review, this Court concludes that Allen’s
second and third assignments of error are meritless.
{¶9} “‘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.’”
4
State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶ 7, quoting State v. Engle, 74 Ohio St.3d
525, 527 (1996). “To determine whether a plea is being made knowingly, intelligently, and
voluntarily, the court must conduct a colloquy with the defendant before accepting a guilty plea
in a felony case.” State v. Stoddard, 9th Dist. Summit No. 26663, 2013-Ohio-4896, ¶ 5.
{¶10} Under Crim.R. 11(C)(2)(a), a trial court must “[d]etermin[e] that [a] defendant is
making [his] plea voluntarily, with understanding of the nature of the charges * * *.” The
subsection sets forth “nonconstitutional notifications, [so] substantial compliance by a trial court
during a plea colloquy is sufficient.” State v. Jordan, 9th Dist. Summit No. 27690, 2015-Ohio-
4354, ¶ 5, citing Veney at ¶ 15. “‘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.’” State v. Rusu, 9th Dist. Summit No. 25597, 2012-Ohio-2613, ¶ 6, quoting State
v. Nero, 56 Ohio St.3d 106, 108 (1990). “[A] defendant who challenges his guilty plea on the
basis that it was not knowingly, intelligently, and voluntarily made must show a prejudicial
effect. The test is whether the plea would have otherwise been made.” (Internal citations
omitted.) Nero at 108.
{¶11} Allen argues that the trial court failed to substantially comply with Crim.R.
11(C)(2)(a) during his plea colloquy because it did not fairly inform him of the nature of his
charges. He notes that the court told him his child endangering charge was being dismissed, but
then nonetheless required him to admit that he caused his son’s death “as a result of committing
the offense of endangering a child.” He alleges, absent further elaboration, the court’s
explanation of the charges was inadequate.
{¶12} The record does not support Allen’s contention that he was not adequately
informed of the nature of his charges. Allen’s written plea agreement specified that he agreed to
5
plead guilty to three charges, including involuntary manslaughter, in exchange for the State
dismissing two charges, including child endangering. The agreement provided that he had read
the agreement, understood it, and understood “the nature of [his] charges and the possible
defenses [he] might have.” It further provided that, by pleading guilty to the three enumerated
charges, he “admit[ted] committing the offense(s) and [would] tell the Court the facts and
circumstances of [his] guilt.” Both Allen and his attorney signed the agreement.
{¶13} During the plea colloquy, the prosecutor outlined the plea agreement, and defense
counsel confirmed that (1) he had “gone over the plea agreement, every word of it, every inch of
it” with Allen, and (2) Allen’s plea was “being made knowingly, voluntarily and intelligently * *
* after consultation with counsel * * *.” The trial court then confirmed with Allen that he
understood the plea as well as the original charges against him. After Allen affirmatively
responded to all of the court’s questions, the court found that he understood the nature of the
charges against him. The court stated:
So here on the 23rd day of January, it’s alleged that you did cause the child’s
death as a result of committing the offense of endangering a child.
With those thoughts in mind, [Allen], how do you plead to involuntary
manslaughter?
Allen then responded that he was guilty, and the court proceeded to ask him about his two other
charges.
{¶14} Allen has not shown that the trial court failed to substantially comply with
Crim.R. 11(C)(2)(a). As noted, the State agreed to dismiss Allen’s child endangering charge in
exchange for his guilty plea. Because child endangering was the predicate offense for his
involuntary manslaughter charge, however, Allen was still required to admit, as part of that
charge, that he caused his son’s death as a result of having committed the offense of child
6
endangering. There is no indication in the record that Allen failed to appreciate the nature of his
involuntary manslaughter charge. Moreover, even assuming he did, he has not set forth any
argument that, had he possessed a better understanding of his charges, he would not have
pleaded guilty. See Nero, 56 Ohio St.3d at 108. We, therefore, reject his argument that his plea
is invalid because the trial court failed to substantially comply with Crim.R. 11(C)(2)(a).
{¶15} Allen also argues that his plea is invalid because the trial court failed to properly
advise him of his appellate rights when he entered into it. This Court has held, however, “that
‘[t]he trial court’s duty to advise a defendant of his right to appeal[] does not arise until
sentencing and, therefore, has no effect upon whether the defendant’s guilty plea was entered
knowingly, voluntarily, and intelligently.’” (Alterations sic.) Jordan, 2015-Ohio-4354, at ¶ 6,
quoting State v. Meredith, 9th Dist. Summit No. 25198, 2011-Ohio-1517, ¶ 6. Allen attempts to
distinguish the foregoing case law on the basis that, here, the trial court did broach the subject of
his appellate rights at the plea hearing, but mistakenly told him he had no right to appeal.
According to Allen, once a trial court decides to discuss appellate rights at a plea hearing, it must
do so “with substantial accuracy.”
{¶16} Allen fails to cite any case law in support of his substantial accuracy argument.
See App.R. 16(A)(7). Even assuming that he is correct, however, he still has not explained how
the trial court’s error, if any, prejudiced him. See Nero at 108. He has not claimed that, had he
better understood his appellate rights, he would have chosen to go to trial. See App.R. 16(A)(7).
Nor has he shown that the court’s statements actually deprived him of his appellate rights, given
that his two appeals are currently before this Court for a merits review. Absent a showing of
prejudice, this Court rejects Allen’s argument. See Crim.R. 52(A).
7
{¶17} Finally, Allen argues that the trial court abused its discretion when it denied his
post-sentence motion to withdraw his plea. “A defendant filing a post-sentence motion to
withdraw a guilty plea ‘has the burden of establishing the existence of manifest injustice.’” State
v. Robinson, 9th Dist. Summit No. 28065, 2016-Ohio-844, ¶ 11, quoting State v. Smith, 49 Ohio
St.2d 261 (1977), paragraph one of the syllabus. “Under the manifest injustice standard, a post-
sentence ‘withdrawal motion is allowable only in extraordinary cases.’” State v. Brown, 9th
Dist. Summit No. 24831, 2010-Ohio-2328, ¶ 9, quoting Smith at 264.
{¶18} The only basis upon which Allen sought to withdraw his plea was that the trial
court failed to inquire about his citizenship status at his plea hearing. The trial court rejected
Allen’s motion because (1) he failed to set forth evidence that he was not, in fact, a United States
citizen; (2) he failed to attach the transcript from his plea hearing; and (3) his argument was
barred by res judicata, as it could have been raised on direct appeal. Allen argues that the court’s
decision amounted to an abuse of discretion because he had to file his motion without the benefit
of counsel. He notes that the trial court repeatedly rejected his post-sentence requests for
counsel. Had he been appointed counsel, Allen argues, he could have secured a transcript of the
plea hearing and amended his motion to withdraw so as to include other meritorious arguments.
{¶19} The transcript from the plea hearing shows that the trial court did, in fact, confirm
Allen’s United States citizenship. Accordingly, Allen’s motion to withdraw lacked merit, and
the trial court properly denied it; albeit for a different reason. See State v. Calise, 9th Dist.
Summit No. 26027, 2012-Ohio-4797, ¶ 42. To the extent Allen argues that the trial court erred
by denying his motions for appointed counsel, he has not separately assigned that argument as
error. As such, we decline to address it. See, e.g., State v. Bravo, 9th Dist. Summit No. 27881,
2017-Ohio-272, ¶ 26. Allen’s second and third assignments of error are overruled.
8
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT COMMITTED PLAIN ERROR AND DENIED DUE
PROCESS BY CONVICTING MR. ALLEN OF INVOLUNTARY
MANSLAUGHTER AFTER THE PREDICATE OFFENSE FOR THAT
CHARGE WAS DISMISSED BY NEGOTIATED PLEA. THE CONVICTION
WAS ALSO A MATERIAL BREACH OF THE BARGAINED PLEA TO MR.
ALLEN’S PREJUDICE.
{¶20} In his first assignment of error, Allen argues that the trial court committed plain
error when it convicted him of involuntary manslaughter in the absence of a predicate offense.
He further argues that his conviction on the involuntary manslaughter charge amounted to a
breach of his plea agreement. This Court rejects both propositions.
{¶21} As previously noted, a portion of Allen’s plea agreement provided that the State
would dismiss his child endangering charge in exchange for his pleading guilty to involuntary
manslaughter. There is no dispute that the child endangering charge served as the predicate
offense for the involuntary manslaughter charge. Consequently, when pleading guilty to
involuntary manslaughter, Allen was required to admit that he caused his son’s death as a result
of committing the offense of child endangering. He was not, however, convicted of child
endangering. Consistent with his plea agreement, the court dismissed that charge.
{¶22} Allen requests that this Court vacate his conviction for involuntary manslaughter.
He argues that the trial court could not convict him of involuntary manslaughter in the absence of
its predicate offense (i.e., child endangering). Without the predicate offense, Allen argues, there
was insufficient evidence to support the involuntary manslaughter charge. He further claims that
the court must have relied on the child endangering count to support his involuntary
manslaughter conviction, so the child endangering count was not dismissed in its entirety.
Because his plea agreement provided that the child endangering count would be dismissed in its
9
entirety, he asserts that his involuntary manslaughter conviction amounts to a breach of his plea
agreement.
{¶23} This Court has held that “‘[a] defendant who enters a knowing, voluntary, and
intelligent guilty plea waives all nonjurisdictional defects for the purpose of future
proceedings[,]’ * * * includ[ing] the right to challenge the sufficiency of the evidence underlying
the conviction to which he pled guilty.” State v. Phillips, 9th Dist. Summit No. 24198, 2008-
Ohio-6795, ¶ 6, quoting State v. Niepsuj, 9th Dist. Summit No. 23929, 2008-Ohio-1050, ¶ 7.
Allen’s argument here does not concern the knowing, voluntary, or intelligent nature of his plea.
Instead, he attacks the validity of his manslaughter conviction on the basis that it is legally
flawed. Allen fails to explain how his argument is exempt from the general rule that guilty pleas
waive all nonjurisdictional defects. See App.R. 16(A)(7); Cardone v. Cardone, 9th Dist. Summit
No. 18349, 1998 WL 224934, *8 (May 6, 1998). His brief merely cites the plain error standard
and presupposes that his argument is properly before this Court. Moreover, even assuming he
did not waive his argument by pleading guilty, Allen has not shown that it has merit.
{¶24} Both the United States Supreme Court and the Ohio Supreme Court have
recognized that a conviction on a compound offense may stand although a jury acquits on its
predicate offense. State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, ¶ 81, quoting United
States v. Powell, 469 U.S. 57, 65 (1984). Allen has not explained why a different rule should
apply in the context of plea bargains. See App.R. 16(A)(7); Cardone at *8. Although he did not
plead guilty to child endangering, he was indicted on that charge and admitted to the conduct
underlying it for the sole purpose of pleading guilty to involuntary manslaughter. Thus, this is
not an instance where the State failed to present any legally adequate predicate offense to support
the compound offense. Compare State v. Adkins, 136 Ohio App.3d 765, 783 (3d Dist.2000).
10
Absent any further argument or supporting case law from Allen, this Court will not conclude that
the involuntary manslaughter portion of his plea is invalid. See App.R. 16(A)(7); Cardone at *8.
{¶25} This Court also rejects Allen’s argument that his conviction for involuntary
manslaughter amounts to a breach of his plea agreement. Allen was not convicted of child
endangering. Although he was required to admit to the conduct underlying that charge, no child
endangering conviction ensued. The trial court dismissed that charge, consistent with the terms
of Allen’s plea agreement. Thus, Allen has not shown that a breach occurred. Allen’s first
assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 4
THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT IMPOSED
SENTENCE UPON MR. ALLEN FOR INVOLUNTARY MANSLAUGHTER[.]
{¶26} In his fifth assignment of error, Allen argues that the trial court erred when it
sentenced him to serve eight years in prison on his involuntary manslaughter conviction. This
Court disagrees.
{¶27} In reviewing a felony sentence, “[t]he appellate court’s standard for review is not
whether the sentencing court abused its discretion.” R.C. 2953.08(G)(2). “[A]n appellate court
may vacate or modify a felony sentence on appeal only if it determines by clear and convincing
evidence” that: (1) “the record does not support the trial court’s findings under relevant statutes,”
or (2) “the sentence is otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-
Ohio-1002, ¶ 1. Clear and convincing evidence is that “which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v.
Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.
{¶28} Allen argues that his eight-year sentence is contrary to law because the trial court
(1) could not legally sentence him on a count that was not supported by a predicate offense, and
11
(2) failed to follow the dictates of R.C. 2929.11 in fashioning his sentence.1 With regard to the
latter proposition, he argues that the court neglected to impose upon him the minimum sanction
necessary to achieve the principles and purposes of felony sentencing.
{¶29} As previously discussed, Allen has failed to demonstrate that his involuntary
manslaughter conviction is legally unsound due to the trial court’s having dismissed the
predicate offense underlying it. As such, this Court rejects his related argument that the trial
court could not sentence him on that offense.
{¶30} As to Allen’s statutory argument, R.C. 2929.11(A) directs sentencing courts to be
“guided by the overriding purposes of felony sentencing.” It defines those purposes as the need
“to protect the public from future crime by the offender and others and to punish the offender
using the minimum sanctions that the court determines accomplish those purposes without
imposing an unnecessary burden on state or local government resources.” R.C. 2929.11(A).
“‘[W]here the trial court does not put on the record its consideration of [R.C.] 2929.11 * * *, it is
presumed that the trial court gave proper consideration to [the] statute[].’” State v. Steidl, 9th
Dist. Medina No. 10CA0025-M, 2011-Ohio-2320, ¶ 13, quoting State v. Kalish, 120 Ohio St.3d
23, 2008-Ohio-4912, ¶ 18, fn. 4, abrogated on other grounds, State v. Marcum, 146 Ohio St.3d
516, 2016-Ohio-1002.
{¶31} Upon review, the record does not support Allen’s contention that the trial court
failed to consider R.C. 2929.11 when it sentenced him. Allen’s sentencing entry specifically
provides that the court considered the principles and purposes of sentencing set forth in R.C.
2929.11. During the sentencing hearing, the court also repeatedly stated that it was considering
1
Although Allen’s argument is replete with citations to R.C. 2929.12, the merits of his argument
relate to R.C. 2929.11.
12
those principles and purposes. The court noted that Allen was under a disability when he
manipulated another individual to purchase a gun on his behalf. The court further noted that,
even after Allen became aware that his four-year old son had been playing with the gun, he failed
to take measures to properly store and secure it such that his son could no longer gain access to
it. The court drew attention to the fact that Allen had refused to take responsibility for the gun,
telling the police that there was no gun in his car and hiding it under the front passenger’s seat.
The court concluded that a sentence in excess of the minimum was necessary to protect the
public from Allen, to deter similar conduct, and to punish him for his behavior. Thus, the record
reflects that the trial court considered R.C. 2929.11 in fashioning Allen’s sentence. Allen’s
fourth assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 5
THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT
CONCURRENTLY SENTENCED MR. ALLEN TO ALLIED OFFENSES OF
SIMILAR IMPORT[.]
{¶32} In his fifth assignment of error, Allen argues that the trial court erred when it
sentenced him to allied offenses of similar import. Specifically, he argues that his convictions
for involuntary manslaughter and having a weapon under disability should have merged. This
Court does not agree.
{¶33} The failure to timely assert an allied offenses objection limits appellate review of
that issue to plain error. State v. Dodson, 9th Dist. Medina No. 16CA0020-M, 2017-Ohio-350, ¶
10, quoting State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, ¶ 3. To demonstrate plain
error, “an accused has the burden to demonstrate a reasonable probability that the convictions are
for allied offenses of similar import committed with the same conduct and without a separate
animus * * *.” Rogers at ¶ 3. “[A] defendant whose conduct supports multiple offenses may be
13
convicted of all the offenses if any one of the following is true: (1) the conduct constitutes
offenses of dissimilar import, (2) the conduct shows that the offenses were committed separately,
or (3) the conduct shows that the offenses were committed with separate animus.” State v. Ruff,
143 Ohio St.3d 114, 2015-Ohio-995, paragraph three of the syllabus.
{¶34} During the sentencing hearing, the prosecutor informed the court that Allen had
procured the gun at issue in this case the year before his son’s tragic death. The prosecutor
described how Allen went to a sporting goods store with a woman with whom he was having a
sexual relationship. Believing that Allen meant to teach her to use the gun, the woman bought
the gun using Allen’s money. Allen then kept the gun, even though it was registered in the
woman’s name and he was under a disability. The prosecutor described how Allen’s son found
the gun in Allen’s home the week before he died. At that time, Allen’s wife informed him that
she did not want a gun in the house, and he assured her that the gun was gone and no longer in
the house. Nevertheless, one week later, their son found the gun and shot himself with it.
{¶35} Allen argues that his convictions for involuntary manslaughter and having a
weapon under disability are allied offenses of similar import because they both resulted in a
single instance of harm involving the same victim. Allen has not shown, however, that the State
relied on the same conduct to support both offenses. See Ruff at paragraph three of the syllabus;
State v. Webb, 9th Dist. Summit No. 27424, 2015-Ohio-2380, ¶ 32. It was the State’s position
that Allen procured a gun well before he caused his son’s death by not securing it. The fact that
Allen had the gun at all while under disability was sufficient conduct to support that offense. His
later failure to secure the gun and to allow his son access to it amounted to separate conduct.
Thus, he has not met his plain error burden. See Rogers at ¶ 3 (accused must demonstrate a
14
reasonable probability that his convictions are for allied offenses of similar import committed
with the same conduct). Allen’s fifth assignment of error is overruled.
ASSIGNMENT OF ERROR NO. 6
MR. ALLEN WAS DENIED FEDERAL AND STATE CONSTITUTIONAL
RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL[.]
{¶36} In his sixth assignment of error, Allen argues that he received ineffective
assistance of counsel. He argues that his trial counsel failed to (1) seek an acquittal on his
involuntary manslaughter count, which lacked a predicate offense; (2) file a motion to suppress;
and (3) object on the basis of spousal privilege when Allen’s wife made statements at his
sentencing hearing. For the reasons outlined below, this Court rejects Allen’s assignment of
error.
{¶37} As previously noted, “‘[a] defendant who enters a knowing, voluntary, and
intelligent guilty plea waives all nonjurisdictional defects for the purpose of future
proceedings.’” Phillips, 2008-Ohio-6795, at ¶ 6, quoting Niepsuj, 2008-Ohio-1050, at ¶ 7. A
guilty plea “‘represents a break in the chain of events that preceded it in the criminal process,’”
such that a defendant cannot then “‘challenge the propriety of any action taken by a trial court or
trial counsel prior to that point in the proceedings unless it affected the knowing and voluntary
character of the plea.’” State v. Franco, 9th Dist. Medina No. 07CA0090-M, 2008-Ohio-4651, ¶
28, quoting State v. Gegia, 157 Ohio App.3d 112, 2004-Ohio-2124, ¶ 18 (9th Dist.).
{¶38} Allen once again fails to explain why, by pleading guilty, he has not waived at
least a portion of his ineffective assistance argument. See App.R. 16(A)(7). Any error his
counsel might have committed by not filing either a motion for acquittal or a motion to suppress
would have occurred before the trial court accepted Allen’s guilty plea. Thus, Allen waived
those errors unless they “‘affected the knowing and voluntary character of [his] plea.’” See
15
Franco at ¶ 28, quoting Gegia at ¶ 18. He makes no argument that his counsel’s alleged failure
to seek an acquittal affected the knowing and voluntary character of his plea, and his brief only
contains a blanket statement that his counsel’s failure to file a motion to suppress “would
necessarily affect the knowing and voluntary nature of his pleas.” Moreover, in his reply brief,
Allen did not respond to the State’s assertion that he waived his ineffective assistance arguments
by pleading guilty. Because Allen has not shown that the two errors his counsel allegedly
committed before he pleaded guilty affected his plea, this Court concludes that Allen’s plea
resulted in a waiver of those arguments. See Franco at ¶ 28, quoting Gegia at ¶ 18. See also
State v. Graham, 9th Dist. Summit No. 28153, 2017-Ohio-908, ¶ 12. Thus, this Court limits its
review to Allen’s third argument, regarding his counsel’s failure to object during the sentencing
hearing.
{¶39} To establish a claim of ineffective assistance of counsel, an appellant must
demonstrate “(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. Mundt, 115 Ohio
St.3d 22, 2007-Ohio-4836, ¶ 62. “In the context of a guilty plea, the defendant must demonstrate
that there is a reasonable probability that, but for his counsel’s error, he would not have pleaded
guilty and would have insisted on going to trial.” State v. Evans, 9th Dist. Medina No.
09CA0049-M, 2010-Ohio-3545, ¶ 4.
{¶40} At Allen’s sentencing hearing, his wife was allowed to address the court. She
described the wonderful qualities that her young son possessed, addressed the pain she
experienced as a result of Allen’s actions, portrayed Allen as a threat to society, and asked the
court to consider his criminal history and actions in sentencing him. Allen argues that his
16
counsel should have objected to her statements because, pursuant to the spousal privilege, they
were inadmissible. He asserts that his counsel’s failure to object prejudiced him because “[t]here
is no basis to find [his wife’s] comments did not impact the trial court’s sentencing decision.”
{¶41} Even assuming that Allen could invoke the spousal privilege at his sentencing
hearing, but see State v. Mavrakis, 9th Dist. Summit No. 27457, 2015-Ohio-4902, ¶ 29, citing
Evid.R. 101(C)(3), the privilege does not prohibit a spouse from testifying about
communications or acts done against his or her child. See State v. Patterson, 9th Dist. Lorain
No. 91CA004975, 1992 WL 6651, *5 (Jan. 15, 1992), citing R.C. 2945.42. Allen has not
explained why the foregoing exception would not apply here, given that the victim in this matter
was his son. See App.R. 16(A)(7). Moreover, he has not shown that, but for his counsel’s
alleged error, “he would not have pleaded guilty and would have insisted on going to trial.”
Evans at ¶ 4. Allen faced serious charges and there was little question of his guilt, given that his
son shot himself in Allen’s vehicle with Allen’s gun. Allen’s guilty plea allowed him to avoid
convictions on two third-degree felonies. Had he gone to trial on all of his charges, his sentence
could have been considerably longer. Accordingly, even if his counsel should have objected to
his wife’s statements, Allen has not shown that the error resulted in actual prejudice. See id. See
also State v. Debruce, 9th Dist. Summit No. 28233, 2016-Ohio-8280, ¶ 16. Allen’s sixth
assignment of error is overruled.
III.
{¶42} Allen’s assignments of error are overruled. The judgment of the Summit County
Court of Common Pleas is affirmed.
Judgment affirmed.
17
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.
LYNNE S. CALLAHAN
FOR THE COURT
HENSAL, P. J.
TEODOSIO, J.
CONCUR.
APPEARANCES:
MARK H. LUDWIG, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.