State v. Tusin
2011 Ohio 2629
Ohio Ct. App.2011Background
- Defendant Michael Tusin was charged by information with one count of theft of firearms, a third-degree felony under R.C. 2913.02(A)(1)(B)(1)(4).
- Plea agreement required the State to remain silent at sentencing and to join a recommendation for release on recognizance, and Tusin agreed to help police recover the stolen firearms.
- Court accepted the guilty plea, ordered sentencing, and released Tusin on his own recognizance.
- Tusin failed to appear for sentencing, was extradited back from Illinois a year later, and the State shifted to seeking incarceration due to noncooperation and nonappearance.
- Trial court sentenced Tusin to four years in prison and ordered restitution.
- Counsel filed a no-merit brief under State v. Toney, and the court appointed counsel to represent Tusin on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was the plea knowingly, voluntarily, and intelligently entered? | State contends Crim.R. 11(C)(2) was satisfied; rights were explained and understood. | Tusin argues the plea could be invalid if not properly explained or understanding rights was lacking. | Plea valid; court strictly complied with Crim.R. 11(C)(2) and Tusin knowingly, voluntarily, intelligently pled. |
| Is the sentence clearly and convincingly contrary to law or an abuse of discretion? | State argues sentence within statutory range and supported by factors. | Tusin contends improper consideration of factors or misapplication of law. | Sentence within range; not contrary to law; no abuse of discretion. |
| Was there ineffective assistance of counsel? | State (via defendant’s counsel) argues no demonstrable ineffectiveness. | Tusin claims counsel failed to provide effective representation. | Record shows no ineffectiveness; no meritorious issues; counsel acted competently. |
Key Cases Cited
- State v. Martinez, 2004-Ohio-6806 (7th Dist. No. 03-MA-196, 2004-Ohio-6806) (Crim.R. 11 needs strict compliance for constitutional rights; substantial for non-constitutional rights)
- State v. Kalish, 120 Ohio St.3d 23 (2008-Ohio-4912) (Two-step review of felony sentences: clearly and convincingly contrary to law then abuse-of-discretion within range)
- State v. Trubee, 2005-Ohio-552 (3d Dist. No. 9-03-65) (Plea voluntariness considerations and factual-context review)
- Bradley, 42 Ohio St.3d 136 (1989) (Ineffective assistance standard (predecessor to Strickland applicability))
- Strickland v. Washington, 466 U.S. 668 (1984) (Established two-prong test for ineffective assistance of counsel)
- Boykin v. Alabama, 395 U.S. 238 (1969) (Must ensure voluntary waiver of rights in guilty plea)