{¶ 2} On June 2, 2004, appellant was indicted in Clermont County on 12 counts of rape under R.C.
{¶ 3} On February 9, 2005, appellant entered pleas of guilty to amended charges under counts four, seven, and ten, with the state dismissing the balance of the indictment. Counts four and seven were amended to remove the allegation that force was used and count ten was amended to remove the allegation regarding the victim's age, thereby removing the life imprisonment specifications on all counts. On May 17, 2005, the trial court found appellant to be a sexually-oriented offender and sentenced her to four years imprisonment on each of the three counts, ordering them to run consecutively for a total term of 12 years. Appellant moved for leave to file delayed appeal which was granted by this court by an entry dated November 3, 2005. Appellant raises six assignments of error.
{¶ 4} Assignment of Error No. 1:
{¶ 5} "TRIAL COURT ERRED BY SENTENCING TO THE DETRIMENT OF DEFENDANT-APPELLANT TO GREATER THAN THE MINIMUM SENTENCE ON EACH COUNT."
{¶ 6} Appellant's first assignment of error argues that the trial court's reliance upon statutory findings in determining her sentence violated her
{¶ 7} The Ohio Supreme Court recently found portions of Ohio's statutory sentencing scheme unconstitutional in State v.Foster,
{¶ 8} The Foster court instructed that all cases pending on direct review in which the unconstitutional sentencing provisions were utilized must be remanded for resentencing. Foster at ¶ 104. Given the fact that unconstitutional sentencing provisions were utilized by the trial court in this case, we must remand this case for resentencing, consistent with Foster. On remand, the trial court will have full discretion to impose sentences within the statutory range and is no longer required to make findings or give reasons for imposing consecutive or more than minimum sentences. Appellant's first assignment of error is sustained.
{¶ 9} Assignment of Error No. 2:
{¶ 10} "TRIAL COURT ERRED BY IN RELYING ON STATEMENTS FROM VICTIMS WHO WERE UNDER TEN YEARS OF AGE, AND WERE INCOMPETENT TO TESTIFY."
{¶ 11} Assignment of Error No. 3:
{¶ 12} "IN THE ALTERNATIVE, TRIAL COURT ERRED BY FAILING TO CONDUCT A HEARING TO DETERMINE COMPETENCY TO TESTIFY."
{¶ 13} As appellant's second and third assignments of error are related, we will address them jointly. Within the two assignments of error, appellant argues she was prejudiced by the trial court's reliance on testimony and statements from witnesses who were incompetent to testify due to their age at the time the offenses were committed, or alternatively, that the trial court erred in failing to conduct a hearing to determine the competency of those witnesses. The victims identified under the three counts to which appellant plead guilty were appellant's half-sisters, J.H. (D.O.B. 7/22/89), and C.H. (D.O.B. 3/1/86), and appellant's cousin, C.A. (D.O.B. 7/22/83), who reported that appellant forcibly performed cunnilingus upon them and forced them to perform cunnilingus upon her and upon each other.
{¶ 14} Ohio Evid.R. 601 states that a child under the age of ten is presumed incompetent for purposes of testifying as a witness in a trial. However, issues relating to witness competency and the need for a hearing to determine the capacity of a child to testify are wholly inapplicable to this case. All of the victims, although children when the offenses were committed against them, were well beyond the age of presumed competency for the purposes of witness testimony by the date of appellant's indictment.1 As such, appellant's challenge can only logically pertain to the reliability and credibility of witnesses who may have testified against her, had she proceeded to trial. However, such concerns were waived by her voluntary plea of guilty and the waiver of her right to a jury trial and the confrontation of witnesses.
{¶ 15} "A plea of guilty is a complete admission of the defendant's guilt." Crim.R. 11(B)(1). Crim.R. 11(C)(2)(c) expressly explains that a knowing, voluntary plea of guilty waives a defendant's right to a jury trial, and the right to confront the witnesses against him or her. Further, the Ohio Supreme Court has clearly stated that a guilty plea "renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction if factual guilt is validly established." State v. Fitzpatrick,
{¶ 16} It is clear that such a rule is applicable in the case before us. Appellant pled guilty to the three counts which she challenges on appeal and she does not present any argument challenging the informed, knowing, or voluntary nature of her pleas. Had appellant wished to challenge the allegations made by the victims, she had the right to proceed to trial and confront her accusers and challenge the credibility of their statements. Any claims regarding the reliability of the statements of the witnesses against her were waived by her knowing and voluntary plea of guilty. Finding appellant's second and third assignments of error to be entirely without merit, they are overruled.
{¶ 17} Assignment of Error No. 4:
{¶ 18} "TRIAL COURT ERRED BY ALLOWING PROSECUTION TO MAKE STATEMENTS INVOLVING HEARSAY AT THE SENTENCING HEARING OF DEFENDANTA-PPELLANT."
{¶ 19} Appellant contends that the state introduced inadmissible hearsay evidence at the sentencing hearing and that the court's acceptance of the evidence was plain error. Appellant argues that the admission of this hearsay evidence deprived her of her
{¶ 20} At appellant's sentencing hearing on May 17, 2005, victim C.A. addressed the court and described the impact that the sexual assaults have had on her life. The prosecution then addressed the court and described an interview he conducted with the two other victims in the case, appellant's two younger sisters, in which they had described the abuse and the impact it has had on their lives. The prosecutor described how, as the two victims gave their accounts of the events that took place, "they wept," and presented their statements in an effort to describe the brutality of the sexual assaults as it pertained to the court's sentencing decision.
{¶ 21} Our previous discussion with regard to appellant's right to confront the witnesses against her is equally relevant under this assignment of error. Appellant's knowing and voluntary plea of guilty was a complete admission of guilt and waived her rights under the Confrontation Clause of the
{¶ 22} Assignment of Error No. 5:
{¶ 23} "DEFENDANT-APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL."
{¶ 24} In her fifth assignment of error, appellant argues that she was denied her
{¶ 25} To prevail on an ineffective assistance of counsel claim, a criminal defendant must demonstrate both that her counsel's performance was deficient, and that she was prejudiced by that deficient performance. State v. Wells, Warren App. No. CA2005-04-050,
{¶ 26} It is well-established that a guilty plea waives the right to claim that the defendant was prejudiced by the ineffective assistance of counsel, except to the extent that the defects complained of caused the plea to be less than knowing and voluntary. State v. Caldwell (Aug. 13, 2001), Butler App. No. CA99-08-144, at 9-10, citing State v. Spates,
{¶ 27} Accordingly, appellant must demonstrate an error on the part of her trial counsel which affected the knowing or voluntary nature of her plea of guilty to the amended charges. However, the only claims made by appellant are that she "may not have agreed" with the allegations of force, that she "may not have been aware" of her right to a jury trial, and that she "could have been advised otherwise." Appellant's mere suggestions and potential dissatisfaction are insufficient to establish either element of a claim of ineffective assistance of counsel. And, with regard to sentencing, although appellant challenges her counsel's failure to object to the hearsay statements offered by the state at appellant's sentencing hearing, it is clear pursuant to our discussion above that any objection would have been without merit and therefore no error or prejudice to appellant occurred thereby.
{¶ 28} Although appellant makes no direct challenge to the knowing or voluntary nature of her pleas, we do note that the trial court fully complied with Crim.R. 11 in the acceptance of appellant's guilty pleas. The court proceeded through an extensive and thorough dialogue with appellant to ensure that she understood each of the three remaining charges against her, the potential penalties she faced, and that she was entering her pleas voluntarily. The court also specifically addressed appellant's right to a jury trial and her right to confront and cross-examine the witnesses against her, ensuring appellant understood those rights and that she would be waiving them by the entry of her guilty pleas. The court also addressed the fact that appellant was on certain medications at the time of the plea hearing, and asked both appellant and her counsel whether those medications had any effect on her ability to knowingly and voluntarily enter her pleas of guilty. Both appellant and her counsel responded that the medications did not impair her ability to knowingly and voluntarily enter the guilty pleas. The court even questioned appellant about the quality of her trial counsel's performance, and asked if appellant if she had confidence in the advice she had received; to which appellant replied, "Yes."
{¶ 29} It is also clear, despite appellant's argument that she could have been advised to pursue dismissal of all of the charges in the indictment, that appellant's trial counsel was effective in greatly reducing the charges and penalties appellant faced in the original indictment. Trial counsel was able to have three of the charges against appellant dismissed by motion and was able to enter into an agreement with the state in which the state dismissed six more pending charges and amended the remaining three in order to allow appellant to avoid life imprisonment specifications. Because appellant has wholly failed to demonstrate any errors on the part of her trial counsel as it relates to her knowing and voluntary decision to plead guilty, appellant's fifth assignment of error is overruled.
{¶ 30} Assignment of Error No. 6:
{¶ 31} "TRIAL COURT ERRED WHEN IT DID NOT GRANT DEFENDANTA-PPELLANT'S MOTION TO DISMISS ON ALL CHARGES."
{¶ 32} Appellant's sixth assignment of error re-examines previous assignments of error regarding the competency of the witnesses against her and the effective assistance of her trial counsel, and argues that the trial court erred in denying her motion to dismiss because the court relied on the statements of witnesses who were incompetent to testify before the court.
{¶ 33} Again, issues of witness competency are wholly inapplicable to the facts presented in this case and we can only interpret appellant's argument to challenge the reliability and sufficiency of the evidence available against her had she proceeded to trial. However, such a determination is wholly inappropriate for a motion to dismiss. Crim.R. 12(C), governing pretrial motions, including motions to dismiss, states:
{¶ 34} "Prior to trial, any party may raise by motion any defense, objection, evidentiary issue, or request that is capable of determination without the trial of the general issue."
{¶ 35} This court applied the requirements of Crim.R. 12 inState v. Riley, Butler App. No. CA2001-04-095,
{¶ 36} On the state's appeal, we reversed, finding that the trial court had improperly assessed the sufficiency of the state's evidence in finding the "fleece" insufficient to support the charges in the indictment. Id. at p. 4. Citing Crim.R. 12, we held that "a pretrial motion must not entail a determination of the sufficiency of the evidence to support the indictment." Id., citing State v. O'Neal (1996),
{¶ 37} A similar situation was presented by appellant's motion to dismiss in this case. Appellant's motion challenged the reliability and competency of the witnesses against her, arguing that her right to confront witnesses was compromised by the fact that the witnesses against her would potentially be testifying to events which occurred prior to an age when they would have been presumed competent to testify. However, such determinations regarding the reliability and credibility of witnesses and the sufficiency of the evidence is improper for a motion to dismiss and the trial court therefore properly denied it. Appellant's sixth assignment of error is without merit and is overruled.
{¶ 38} Having reviewed the assignments of error, the judgment of the trial court is reversed as to sentencing only and this case is remanded for resentencing in accordance with this opinion.
{¶ 39} Judgment reversed as to sentencing only and remanded for resentencing.
Walsh, P.J., and Young, J., concur.