State v. Hentrich

[Cite as State v. Hentrich, 2019-Ohio-5174.]
COURT OF APPEALS
FAIRFIELD COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. Craig R. Baldwin;, J.
Plaintiff-Appellee : Hon. Earle E. Wise, J.
:
-vs- :
: Case No. 2019 CA 00009
BRANDY HENTRICH :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Fairfield County
Court of Common Pleas, Case No.
2017CR743
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: December 9, 2019
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
ROBERT WITT JAMES ANZELMO
Fairfield County Prosecutor 446 Howland Drive
239 West Main Street Gahanna, OH 43230
Suite 101
Lancaster, OH 43130
Fairfield County, Case No. 2019 CA 00009 2
Gwin, P.J.
{¶1} Defendant-appellant Brandy Hentrich [“Hentrich”] appeals her conviction
and sentence after a negotiated guilty plea in the Fairfield County Court of Common
Pleas.
Facts and Procedural History
{¶2} Hentrich was indicted on: (1) aggravated trafficking in drugs, a first degree
felony, in violation of R.C. 2925.03; (2) aggravated possession of drugs, a second degree
felony, in violation of R.C. 2925.11; (3) possession of hashish, a third degree felony, in
violation of R.C. 2925.11; (4) possession of cocaine, a fifth degree felony, in violation of
R.C. 2925.11; (5) selling, purchasing, distributing or delivering dangerous drugs, a fifth
degree felony, in violation of R.C. 4729.51; (6) illegal use or possession of drug
paraphernalia, a fourth degree misdemeanor, in violation of R.C. 2925.14; (7) possession
of marijuana, a minor misdemeanor, in violation of R.C. 2925.11; and (8) illegal use or
possession of marijuana drug paraphernalia, a minor misdemeanor, in violation of R.C.
2925.141.
{¶3} Hentrich agreed to plead guilty to the charges in exchange for the defense
and prosecution jointly recommending a sentence of five years in prison. The parties
agreed to merge the aggravated trafficking of drugs offense into the aggravated
possession of drugs offense. The prosecution also agreed not to object to Hentrich being
granted judicial release.
{¶4} Hentrich pleaded guilty, and the trial court merged the aggravated trafficking
of drugs offense into the aggravated possession of drugs offense. The court ordered
Hentrich to serve a total of five years in prison for the offenses. Lastly, the court ordered
Fairfield County, Case No. 2019 CA 00009 3
Hentrich to serve the five-year prison sentence consecutive to any sentence imposed on
Hentrich violating the conditions of her intervention in lieu of conviction matter in a
separate case.
Assignments of Error
{¶5} Hentrich raises two Assignments of Error,
{¶6} “I. BRANDY HENTRICH DID NOT KNOWINGLY, INTELLIGENTLY AND
VOLUNTARILY PLEAD GUILTY, IN VIOLATION OF HER DUE PROCESS RIGHTS
UNDER THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES
CONSTITUTION AND SECTION SIXTEEN, ARTICLE ONE OF THE OHIO
CONSTITUTION.
{¶7} “II. HENTRICH RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL,
IN VIOLATION OF THE SIXTH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.”
I.
{¶8} In her First Assignment of Error, Hentrich argues that the trial court failed to
inform her that judicial release would not be considered, her attorney told her she would
receive concurrent sentences, the trial court failed to make sure that she understood the
nature of the charges against her, and her attorney pressured her into pleading guilty.
[Appellant’s Brief at 3-5]. Hentrich contends, therefore, her plea was not knowing,
intelligent and voluntary.
STANDARD OF APPELLATE REVIEW.
{¶9} The entry of a plea of guilty is a grave decision by an accused to dispense
with a trial and allow the state to obtain a conviction without following the otherwise difficult
Fairfield County, Case No. 2019 CA 00009 4
process of proving his guilt beyond a reasonable doubt. See Machibroda v. United States,
368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473(1962). A plea of guilty constitutes a complete
admission of guilt. Crim. R. 11 (B) (1). “By entering a plea of guilty, the accused is not
simply stating that he did the discreet acts described in the indictment; he is admitting
guilt of a substantive crime.” United v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 762, 102
L.Ed.2d 927(1989).
{¶10} Crim. R. 11 requires guilty pleas to be made knowingly, intelligently and
voluntarily. Although literal compliance with Crim. R. 11 is preferred, the trial court need
only "substantially comply" with the rule when dealing with the non-constitutional
elements of Crim.R. 11(C). State v. Ballard, 66 Ohio St.2d 473, 475, 423 N.E.2d
115(1981), citing State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163(1977). In State v.
Griggs, the Ohio Supreme Court noted the following test for determining substantial
compliance with Crim.R. 11:
Though failure to adequately inform a defendant of his constitutional
rights would invalidate a guilty plea under a presumption that it was entered
involuntarily and unknowingly, failure to comply with non-constitutional
rights will not invalidate a plea unless the defendant thereby suffered
prejudice.[State v. Nero (1990), 56 Ohio St.3d 106,] 108, 564 N.E.2d 474.
The test for prejudice is ‘whether the plea would have otherwise been
made.’ Id. Under the substantial-compliance standard, we review the
totality of circumstances surrounding [the defendant’s] plea and determine
whether he subjectively understood [the effect of his plea]. See, State v.
Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509 at ¶ 19-20.
Fairfield County, Case No. 2019 CA 00009 5
103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶12.
ISSUE FOR APPEAL
Whether Hentrich’s plea was made knowingly, intelligently and voluntarily.
{¶11} In the case at bar, neither the Crim.R. 11(C) and (F) plea agreement signed
by Hentrich and her attorney, nor the trial judge promised Hentrich that she would be
granted judicial release. Waiver Upon Plea of Guilty or No Contest, filed May 30, 2018.
[Docket Entry Number 36]. That entry further provides:
NO PROMISES OR THREATS HAVE BEEN MADE TO ME BY
ANYONE TO INDUCE ME TO ENTER A PLEA OR PLEAS OF GUILTY OR
NO CONTEST TO THE OFFENSES SET FORTH ABOVE. IN
PARTICULAR, MY ATTORNEY, THE PROSECUTOR ASSIGNED TO MY
CASE, AND THE JUDGE, WHO IS PRESIDING OVER THE MATTER,
HAVE NOT MADE ANY PROMISES TO ME AS TO WHAT SENTENCE
THE COURT WILL IMPOSE IF I ENTER A PLEA OF GUILTY OR NO
CONTEST TO THE OFFENSE(S) SET FORTH ABOVE.
{¶12} The plea agreement was signed by Hentrich, her attorney and the
prosecutor on May 29, 2018.
{¶13} During the Change of Plea/Sentencing hearing the following exchange
occurred:
[Defense Counsel]: Your Honor, the only other thing I would add is,
as part of the plea agreement, the State agrees not to object to the filing of
a motion for judicial release at the earliest opportunity, provided that the
Defendant has a satisfactory institutional summary report.
Fairfield County, Case No. 2019 CA 00009 6
THE COURT: Counsel, could you approach on that matter?
(Thereupon, a side-bar discussion was held, outside the hearing of
the jury, as follows:)
THE COURT: I’d certainly be willing to listen to anything more that
you have to say about that, but from what I see here on this PSI, I’m not
inclined – let me tell you that I would not be inclined to grant judicial release.
This was a considerable amount of drugs that was involved here.
So just so that you’ll be aware.
[Defense Counsel]: Could I have a few minutes to discuss that with
my client?
THE COURT: Yes.
(Thereupon, the discussion was concluded and the proceedings
continued as follows: )
(Pause in proceedings.)
[Defense Counsel]: Thank you, Your Honor. We’re prepared to
proceed.
Plea / Sentence, filed Apr. 29, 2019 at 4-5. Before accepting Hentrich’s plea, the trial
court informed her,
Ms. Hentrich, you've heard what's been stated here today by Mr.
Walker on behalf of the State of Ohio concerning the State's sentencing
recommendation and your attorney's comments. Do you understand the
State's recommendation?
THE DEFENDANT: Yes, sir.
Fairfield County, Case No. 2019 CA 00009 7
THE COURT: And do you understand as well, that while the Court
listens to those recommendations, and will listen to anything that you have
to say concerning sentencing, that the Court is not legally obligated or
required to follow those sentencing recommendations?
THE DEFENDANT: Yes, sir.
THE COURT: Have you had enough time and opportunity to meet
with your attorney?
THE DEFENDANT: Yes, sir.
Plea/Sentence, filed Apr. 29, 2019 at 7-8.
{¶14} In the case at bar, the trial judge gave Hentrich several opportunities to ask
questions or bring any concerns to his attention. She did not. Hentrich did not file a
motion in the trial court seeking to withdraw her negotiated guilty plea. We find Hentrich’s
suggestion that she did not understand her rights, or that his plea was involuntary to be
unsupported by the record.
This Court may not consider facts not contained in the trial court record.
{¶15} Hentrich’s arguments concerning her trial attorney contain no citation to the
trial court record.
{¶16} In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d 528(2001),
the Supreme Court noted, “a reviewing court cannot add matter to the record before it
that was not a part of the trial court's proceedings, and then decide the appeal on the
basis of the new matter. See, State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500(1978).”
It is also a longstanding rule “that the record cannot be enlarged by factual assertions in
the brief.” Dissolution of Doty v. Doty, 4th Dist. No. 411, 1980 WL 350992 (Feb. 28, 1980),
Fairfield County, Case No. 2019 CA 00009 8
citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201 N.E.2d
227(1963). New material and factual assertions contained in any brief in this court may
not be considered. See, North v. Beightler, 112 Ohio St.3d 122, 2006-Ohio-6515, 858
N.E.2d 386, ¶7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-Ohio-1195, 843
N.E.2d 1202, ¶16.
{¶17} It is also a longstanding rule “that the record cannot be enlarged by factual
assertions in the brief.” See, Dissolution of Doty v. Doty, 4th Dist. No. 411, 1980 WL
350992 (Feb. 28, 1980), citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio
App. 55, 59, 201 N.E.2d 227(1963). Therefore, Hentrich’s new arguments may not be
considered. See, North v. Beightler, 112 Ohio St.3d 122, 2006–Ohio–6515, 858 N.E.2d
386, ¶ 7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006–Ohio–1195, 843 N.E.2d
1202, ¶ 16.
{¶18} App.R.16(A)(7) states that appellant shall include in his brief "[a]n argument
containing the contentions of the appellant with respect to each assignment of error
presented for review and the reasons in support of the contentions, with citations to the
authorities, statutes, and parts of the record on which appellant relies. The argument may
be preceded by a summary.” [Emphasis added].
{¶19} Because Hentrich fails to properly reference portions of the record
supporting her claim that she was pressured or promised something by her trial attorney
Hentrich cannot demonstrate the claimed error. See Daniels v. Santic, 11th Dist. Geauga
No. 2004-G-2570, 2005-Ohio-1101, ¶ 13-15. See, also, App.R. 12(A)(2) and 16(A)(7);
Graham v. City of Findlay Police Dept. 3rd Dist. Hancock No. 5–01–32, 2002–Ohio–1215
(stating, "[t]his court is not obliged to search the record for some evidence of claimed
Fairfield County, Case No. 2019 CA 00009 9
error. * * * Rather, an appellant must tell the appellate court specifically where the trial
court's alleged errors may be located in the transcript"); State ex rel. Physicians Commt.
for Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006-
Ohio-903, ¶ 13; State ex rel. Petro v. Gold, 166 Ohio App.3d 371, 2006-Ohio-943(10th
Dist.), ¶ 94, appeal not allowed, 110 Ohio St.3d 1439, 2006-Ohio-3862, reconsideration
denied, 111 Ohio St.3d 1418, 2006- Ohio-5083; Porter v. Keefe, 6th Dist. Erie No. E-02-
018, 2003-Ohio-7267, ¶109-113.
Whether the trial court ensured that Hentrich understood the nature of the charges
against her.
{¶20} A written waiver of constitutional rights is presumed to have been voluntary,
knowing, and intelligent. State v. Turner, 105 Ohio St.3d 331, 2005-Ohio-1938, 826
N.E.2d 266, ¶25. Further, the trial court conducted a lengthy inquiry concerning each of
Hentrich’s s constitutional rights during the change of plea hearing on May 29, 2018.
{¶21} In State v. Post, 32 Ohio St.3d 380, 513 N.E.2d 754, the Supreme Court of
Ohio addressed the issue of whether guilty pleas coupled with claims of innocence should
be accepted without factual basis for the plea. Id. at 387. In addressing that issue, the
Court noted,
Contrary to appellant’s assertion, however, Crim.R. 11 does not
require the trial court to establish a factual basis for the plea before its
acceptance. See State v. Ricks (1976), 48 Ohio App.2d 128, 2 O.O.3d 104,
356 N.E.2d 312. See, also, Roddy v. Black (C.A. 6, 1975), 516 F.2d 1380,
1385, certiorari denied (1975), 423 U.S. 917, 96 S.Ct. 226, 46 L.Ed.2d 147.
Hawk v. Berkemer (C.A. 6, 1979), 610 F.2d 445, 447, 18 O.O.3d 396, 398,
Fairfield County, Case No. 2019 CA 00009 10
fn. 2; King v. Perini (N.D.Ohio 1976), 431 F.Supp. 481, 483, fn. 2
32 Ohio St.3d at 387, 513 N.E.2d 754 (1987).
{¶22} We reviewed the transcript of the hearing at which the trial court conducted
the plea colloquy required by Crim.R. 11 and determined that the court substantially
complied with Crim.R. 11(C)(2)(a) and (b) and strictly complied with Crim.R. 11(C)(2)(c).
The record supports that an extensive colloquy occurred, and that the trial court accepted
Hentrich’s plea and properly proceeded to sentencing.
{¶23} Hentrich’s First Assignment of Error is overruled.
II.
{¶24} In her Second Assignment of Error, Hentrich contends that she received
ineffective assistance of counsel. Specifically, Hentrich argues that her attorney failed to
inform her that the judge would not consider judicial release, told her she would receive
concurrent sentences, pressured her to plead guilty and failed to object to the trial court’s
failure to go over the indictment or read the facts before entering her plea. [Appellant’s
Brief at 5-6].
STANDARD OF APPELLATE REVIEW.
{¶25} To obtain a reversal of a conviction based on ineffective assistance of
counsel, the defendant must prove (1) that counsel's performance fell below an objective
standard of reasonableness, and (2) that counsel's deficient performance prejudiced the
defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding.
Strickland v. Washington, 466 U.S. 668, 687–688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674,
693(1984). A defendant's failure to satisfy one prong of the Strickland test negates a
Fairfield County, Case No. 2019 CA 00009 11
court's need to consider the other. Strickland at 697, 104 S.Ct. at 2069, 80 L.Ed.2d at
699; State v. Madrigal, 87 Ohio St.3d 378, 2000-Ohio-448, 721 N.E.2d 52 (2000).
{¶26} In light of “the variety of circumstances faced by defense counsel [and] the
range of legitimate decisions regarding how best to represent a criminal defendant,” the
performance inquiry necessarily turns on “whether counsel’s assistance was reasonable
considering all the circumstances.” Strickland v. Washington, 466 U.S. 668 at 689,104
S.Ct. at 2064. At all points, “[j]udicial scrutiny of counsel’s performance must be highly
deferential.” Strickland v. Washington, 466 U.S. 668 at 689,104 S.Ct. at 2064.
{¶27} The United States Supreme Court discussed the prejudice prong of the
Strickland test,
With respect to prejudice, a challenger must demonstrate “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.” Id., at
694, 104 S.Ct. 2052. It is not enough “to show that the errors had some
conceivable effect on the outcome of the proceeding.” Id., at 693, 104 S.Ct.
2052. Counsel’s errors must be “so serious as to deprive the defendant of
a fair trial, a trial whose result is reliable.” Id., at 687, 104 S.Ct. 2052.
“Surmounting Strickland’s high bar is never an easy task.” Padilla v.
Kentucky, 559 U.S. ––––, ––––, 130 S.Ct. 1473, 1485, 176 L.Ed.2d 284(2010). An ineffective-assistance claim can function as a way to escape
rules of waiver and forfeiture and raise issues not presented at trial, and so
the Strickland standard must be applied with scrupulous care, lest “intrusive
Fairfield County, Case No. 2019 CA 00009 12
post-trial inquiry” threaten the integrity of the very adversary process the
right to counsel is meant to serve. Strickland, 466 U.S., at 689–690, 104
S.Ct. 2052. Even under de novo review, the standard for judging counsel’s
representation is a most deferential one. Unlike a later reviewing court, the
attorney observed the relevant proceedings, knew of materials outside the
record, and interacted with the client, with opposing counsel, and with the
judge. It is “all too tempting” to “second-guess counsel’s assistance after
conviction or adverse sentence.” Id., at 689, 104 S.Ct. 2052; see also Bell
v. Cone, 535 U.S. 685, 702, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002);
Lockhart v. Fretwell, 506 U.S. 364, 372, 113 S.Ct. 838, 122 L.Ed.2d 180(1993). The question is whether an attorney’s representation amounted to
incompetence under “prevailing professional norms,” not whether it
deviated from best practices or most common custom. Strickland, 466 U.S.,
at 690, 104 S.Ct. 2052.
Harrington v. Richter, 562 U.S. 86, 104-105, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).
Judicial release.
{¶28} The record reflects that defense counsel was informed at sidebar that the
trial court would not grant judicial release. Defense counsel asked for time to speak to
his client. The trial court granted him an opportunity to confer with Hentrich. Thereafter
the trial court informed Hentrich that the trial court was not bound to accept or follow the
negotiated plea agreement.
{¶29} In the case at bar, the trial judge gave Hentrich several opportunities to ask
questions or bring any concerns to his attention. She did not. Hentrich did not file a
Fairfield County, Case No. 2019 CA 00009 13
motion in the trial court seeking to withdraw her negotiated guilty plea. We find Hentrich’s
suggestion that she did not understand that judicial release would not be granted to not
be supported by the trial court record.
Discussions not contained in the trial court record.
{¶30} As we have discussed in our disposition of Hentrich’s First Assignment of
Error, Hentrich’s arguments concerning her trial attorney contain no citation to the trial
court record.
{¶31} Because Hentrich fails to properly reference portions of the record
supporting her claim that she was pressured or promised something by her trial attorney
Hentrich cannot demonstrate the claimed error. See Daniels v. Santic, 11th Dist. Geauga
No. 2004-G-2570, 2005-Ohio-1101, ¶ 13-15. See, also, App.R. 12(A)(2) and 16(A)(7);
Graham v. City of Findlay Police Dept. 3rd Dist. Hancock No. 5–01–32, 2002–Ohio–1215
(stating, "[t]his court is not obliged to search the record for some evidence of claimed
error. * * * Rather, an appellant must tell the appellate court specifically where the trial
court's alleged errors may be located in the transcript"); State ex rel. Physicians Commt.
for Responsible Medicine v. Ohio State Univ. Bd. of Trustees, 108 Ohio St.3d 288, 2006-
Ohio-903, ¶ 13; State ex rel. Petro v. Gold, 166 Ohio App.3d 371, 2006-Ohio-943(10th
Dist.), ¶ 94, appeal not allowed, 110 Ohio St.3d 1439, 2006-Ohio-3862, reconsideration
denied, 111 Ohio St.3d 1418, 2006- Ohio-5083; Porter v. Keefe, 6th Dist. Erie No. E-02-
018, 2003-Ohio-7267, ¶109-113.
Trial counsel’s failure to object to the trial court’s failure to go over the indictment
or read the facts before entering her plea.
{¶32} As we discussed in our disposition of Hentrich’s First Assignment of Error,
Fairfield County, Case No. 2019 CA 00009 14
we reviewed the transcript of the hearing at which the trial court conducted the plea
colloquy required by Crim.R. 11 and determined that the court substantially complied
with Crim.R. 11(C)(2)(a) and (b) and strictly complied with Crim.R. 11(C)(2)(c). The record
supports that an extensive colloquy occurred, and that the trial court accepted Hentrich’s
plea and properly proceeded to sentencing. Crim.R. 11 does not require the trial court to
establish a factual basis for the plea before its acceptance.
{¶33} Accordingly, Hentrich has failed in her burden to demonstrate that the
proceedings were unreliable or that there was a fundamentally unfair outcome of the
proceeding
{¶34} Hentrich’s Second Assignment of Error is overruled.
{¶35} For the forgoing reasons, the judgment of the Fairfield County Court of
Common Pleas is affirmed.
By Gwin, P.J.,
Baldwin, J., and
Wise, Earle, J., concur