STATE OF OHIO v. TRISTEN A. BLAIR
CASE NO. 11-20-01 | CASE NO. 11-20-02
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT PAULDING COUNTY
February 1, 2021
[Cite as State v. Blair, 2021-Ohio-266.]
PRESTON, J.
Appeals from Paulding County Common Pleas Court, Trial Court Nos. CR-17-592 and CR-18-681. Judgments Affirmed.
Howard A. Elliott for Appellant
Joseph R. Burkard for Appellee
{1} Defendant-appellant, Tristen A. Blair (“Blair“), appeals the January 17, 2020 judgments of the Paulding County Court of Common Pleas. For the reasons that follow, we affirm.
{2} This appeal involves two separate, unrelated criminal cases. The first of these cases, case number CR-17-592, began on September 15, 2017, when the Paulding County Grand Jury indicted Blair on two counts: Count One of burglary in violation of
{3} A change-of-plea hearing in case number CR-17-592 was held on December 20, 2018. (Case No. CR-17-592, Doc. No. 35). At the change-of-plea hearing, under a negotiated plea agreement, Blair withdrew his pleas of not guilty and entered a plea of guilty to Count One of the September 15, 2017 indictment. (Id.). In exchange, the State agreed to recommend dismissal of Count Two. (Id.). The trial court accepted Blair‘s guilty plea, found him guilty of Count One, and ordered a presentence investigation. (Id.). In addition, the trial court dismissed Count Two of the September 15, 2017 indictment. (Id.).
{5} On January 14, 2019, the trial court held a sentencing hearing in case numbers CR-17-592 and CR-18-681. (Case No. CR-17-592, Doc. No. 36); (Case No. CR-18-681, Doc. No. 4). The trial court sentenced Blair to 7 years in prison as to Count One of case number CR-17-592 and 36 months in prison as to the charge
{6} On February 1, 2019, Blair filed his notices of appeal in case numbers CR-17-592 and CR-18-681. (Case No. CR-17-592, Doc. No. 40); (Case No. CR-18-681, Doc. No. 6). The cases were consolidated for the purpose of appeal. In his initial appeal, Blair raised four assignments of error.2 In State v. Blair, 3d Dist. Paulding Nos. 11-19-01 and 11-19-02, 2019-Ohio-4308, we reversed Blair‘s convictions due to deficiencies in the plea colloquy which rendered Blair‘s pleas invalid. Id. at 7-8.3
{7} Accordingly, on December 3, 2019, the trial court held a second change-of-plea hearing in case numbers CR-17-592 and CR-18-681. (Case No. CR-17-592, Doc. No. 52); (Case No. 18-CR-681, Doc. No. 15). With respect to case number CR-17-592, under a negotiated plea agreement, Blair withdrew his plea of not guilty as to Count One of the September 15, 2017 indictment and pleaded guilty. (Case No. CR-17-592, Doc. No. 52). In exchange, the trial court agreed to
{8} On January 13, 2020, the trial court held a sentencing hearing in case numbers CR-17-592 and CR-18-681. (Case No. CR-17-592, Doc. No. 53); (Case No. CR-18-681, Doc. No. 16). The trial court sentenced Blair to 6 years in prison as to Count One of case number CR-17-592 and 36 months in prison with respect to the charge contained in the bill of information in case number CR-18-681. (Id.); (Id.). Further, the trial court ordered the sentences in case numbers CR-17-592 and CR-18-681 to be served consecutively for an aggregate term of nine years in prison. (Id.); (Id.). On January 17, 2020, the trial court filed its judgment entries of sentence. (Id.); (Id.).
{9} On February 13, 2020, Blair filed his notices of appeal. He raises four assignments of error for our review.
Assignment of Error No. I
The trial court in accepting the Defendant-Appellant‘s plea of guilty to the charge of burglary and the Defendant-Appellant‘s
{10} In his first assignment of error, Blair argues that the trial court erred by failing to comply with
{11} Under
(2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept a plea of guilty or no contest without first addressing the defendant personally and doing all of the following:
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant‘s favor, and to require the state to prove the defendant‘s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.
{12}
{13} “When a criminal defendant seeks to have his conviction reversed on appeal, the traditional rule is that he must establish that an error occurred in the trial-court proceedings and that he was prejudiced by that error.” Dangler at 13, citing State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 14-15;
{14} There are limited exceptions to the prejudice requirement in the criminal-plea context. “When a trial court fails to explain the constitutional rights
{15} The Supreme Court of Ohio recognized one other exception to the prejudice requirement: “a trial court‘s complete failure to comply with a portion of
{16} ”
{17} At the December 3, 2019 change of plea hearing, the trial court stated, “[B]efore I can accept these pleas, I do need to make sure that you are aware of * * * the potential consequences of what you are doing here.” (Dec. 3, 2019 Tr. at 9). Additionally, on three separate occasions, the trial court informed Blair that by entering a “no contest” plea, he was “admitting to the facts as charged” in the bill of information. (Id. at 9-11, 14). Moreover, the trial court inquired whether Blair understood that if the trial court accepted his pleas of guilty and no contest and finds him guilty, “it may proceed immediately with judgment and sentencing * * *” (Id. at 11). In response, Blair responded, “Yes.” (Id.). Accordingly, the trial court did not completely fail to comply with the notification required by
{18} With respect to whether he was prejudiced, Blair has failed to establish, or even argue, that he would not have entered his pleas of no contest and
{19} Accordingly, Blair‘s first assignment of error is overruled.
Assignment of Error No. II
The trial court abused its discretion and committed reversible error by over objection description [sic] of the law enforcement officer‘s recollection an interview with the Defendant in lieu of recording the same, all in violation of Evidence Rule 1002, the so called best evidence rule.
{20} In his second assignment of error, Blair argues that the trial court committed reversible error by overruling his objections to testimony by Deputy Brion Hanenkratt (“Deputy Hanenkratt“) regarding Deputy Hanenkratt‘s recollection of two interviews he conducted with Blair. Blair contends that Deputy Hanenkratt‘s testimony violated the best evidence rule.
{21} Generally, the admission or exclusion of evidence lies within the trial court‘s discretion, and a reviewing court should not reverse absent an abuse of discretion and material prejudice. State v. Conway, 109 Ohio St. 3d 412, 2006-Ohio-2815, 62, citing State v. Issa, 93 Ohio St.3d 49, 64 (2001). An abuse of
{22} “In general any errors by a trial court concerning the admission or exclusion of evidence are necessarily harmless when a criminal defendant subsequently pleads guilty or no contest, since the defendant‘s conviction, being derived from the plea, has not been affected by the trial court‘s error.” State v. Gard, 2d Dist. Montgomery No. 25727, 2014-Ohio-531, 9. “The effect of the ‘no contest’ plea is to admit the truth of all the factual allegations in the [bill of information] and to relieve the prosecutor of the burden of proving the defendant guilty beyond a reasonable doubt.” State v. Baumgartner, 8th Dist. Cuyahoga Nos. 89190, 91207, and 91208, 2009-Ohio-624, 16.
{23} Here, Blair fails to acknowledge the effect his no contest plea had on his objections to the State‘s evidence during trial, and he does not argue that the alleged violations of the best evidence rule had any effect on his plea. Rather, Blair argues the trial court‘s ruling on his objections to the evidence at issue “was an
{24} Accordingly, Blair‘s second assignment of error is overruled.
Assignment of Error No. III
The conviction herein of reckless of [sic] homicide by way of the no contest plea of the Defendant must be reversed in that insufficient evidence in support of the necessary element of the offense of recklessness be imposed [sic] to negligence or an accident.
{25} In his third assignment of error, Blair argues that the trial court erred by finding him guilty of reckless homicide following his no contest plea. Specifically, Blair argues that insufficient evidence exists to support the element of “recklessness.” We disagree.
{26} “An appellate court‘s function when reviewing the sufficiency of the evidence to support a criminal conviction is to examine the evidence admitted at trial to determine whether such evidence, if believed, would convince the average mind of the defendant‘s guilt beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259 (1991), paragraph two of the syllabus, superseded by state constitutional amendment on other grounds, State v. Smith, 80 Ohio St.3d 89 (1997). Accordingly, “[t]he relevant inquiry is whether, after viewing the evidence in a light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt.” Id. “In deciding if the evidence was sufficient, we neither resolve evidentiary conflicts nor assess the credibility of witnesses, as both are functions reserved for the trier of fact.” State v. Jones, 1st Dist. Hamilton Nos. C-120570 and C-120571, 2013-Ohio-4775, 33, citing State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, 25 (1st Dist.). See also State v. Berry, 3d Dist. Defiance No. 4-12-03, 2013-Ohio-2380, 19 (“Sufficiency of the evidence is a test of adequacy rather than credibility or weight of the evidence.“), citing State v. Thompkins, 78 Ohio St.3d 380, 386 (1997).
{27} Blair was convicted of reckless homicide in violation of
{28} However, Blair‘s argument is made irrelevant by his no contest plea.
{29} Here, the bill of information stated the following:
“[O]n or about the 20th day of October, 2017, in Paulding County, Ohio, TRISTEN A. BLAIR did, recklessly cause the death of
another, to wit: [Z.B.], in violation of Section 2903.041(A) of the Ohio Revised Code, and against the peace and dignity of the State of Ohio, (Reckless homicide) a felony of the third degree.”
(Emphasis sic.) (Case No. CR-18-681, Doc. No. 1). Therefore, the language of the bill of information mirrors the language of the reckless homicide statute, and it was, accordingly, sufficient to charge the offense. See
{30} Further, we note that, at the change of plea hearing, the parties referenced Blair‘s inability to challenge the sufficiency of the evidence in the following exchange:
[Trial Court]: * * * Just to remind everyone, there were two (2) pleas in the case. In the Reckless Homicide case that was brought in the midst of [the December 18-20, 2018 trial] by the bill of information, that was a plea of “No Contest.” In the Burglary charge in the CR-17-592 case, that was a “Guilty” plea. Are those the pleas that Mr. Blair would intend to make at this time?
[Blair‘s Trial Counsel]: Yes, Your Honor.
[Trial Court]: Thank you. * * * [A]ny input at this point from the State?
[The State]: Your Honor, that is my understanding with one (1) additional item: the “No Contest” plea. It‘s my understanding that there is going to be a stipulation as to the need that no additional testimony is needed as far as a factual basis.
[Trial Court]: Yes, let‘s go ahead and address that as well. The Reckless Homicide charge was brought by a bill of information, and that was in the midst of the jury trial. That bill of information indicates * * * [:] I, Joseph R. Burkard, the Prosecuting Attorney of the County, say by way of information that, on or about the 20th day of October, 2017, in Paulding County, Ohio, Tristen A. Blair did, recklessly cause the death of another, to wit: [Z.B.], in violation of Section 2903.041(A) of
the Ohio Revised Code, and against the peace and dignity of the State of Ohio, (Reckless Homicide) a felony of the third degree.” So that is what he is admitting to as with the “No Contest” plea. He has to admit those facts. [Blair‘s Trial Counsel]: Yes, Your Honor. At this time, understanding the bill of information, we are inclined to do that.
[Trial Court]: Thank you. Mr. Blair, do you understand what your attorney is saying on your behalf?
[Blair]: Yes.
(Dec. 3, 2019 Tr. at 8-9). Thus, the transcript of the December 3, 2019 change-of-plea hearing indicates that not only was Blair aware of the facts he was admitting by entering a plea of no contest, it also indicates that the parties intended to stipulate to the fact that the State did not need to present additional evidence related to any of the elements of the offense.
{31} Accordingly, Blair‘s third assignment of error is overruled.
Assignment of Error No. IV
The trial counsel for the Defendant, rendered in effect [sic] assistance of counsel advised [sic] the Defendant to proceed with a no contest plea to the reckless homicide charge may preclude defective [sic] in lieu of the evidence concerning the mental
{32} In his fourth assignment of error, Blair argues that he was denied the right to effective assistance of counsel as provided for by the United States Constitution and by the Ohio Constitution. Specifically, Blair argues that his trial counsel failed to inform him that, by entering a no contest plea to the bill of information charging him with reckless homicide, he was waiving his ability to challenge the sufficiency of the evidence relating to the offense. For the reasons that follow, we disagree.
{33} “In criminal proceedings, a defendant has the right to effective assistance of counsel under both the United States and Ohio Constitutions.” State v. Evick, 12th Dist. Clinton No. CA2019-05-010, 2020-Ohio-3072, 45. A defendant asserting a claim of ineffective assistance of counsel must establish: (1) the counsel‘s performance was deficient or unreasonable under the circumstances; and (2) the deficient performance prejudiced the defendant. State v. Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). In order to show counsel‘s conduct was deficient or unreasonable, the defendant must overcome the presumption that counsel provided competent representation and must show that counsel‘s actions were not trial strategies prompted by reasonable professional judgment. Strickland at 689. Counsel is entitled to a strong presumption that all decisions fall within the wide range of
{34} Prejudice results when “‘there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.‘” Bradley at 142, quoting Strickland at 694. “‘Where a conviction is based on * * * [a] no contest plea[], the prejudice element requires the defendant to show that there is reasonable probability that, but for counsel‘s errors, he would not have entered [the] plea.‘” State v. Miller, 6th Dist. Lucas No. L-16-1029, 2017-Ohio-670, 7, quoting State v. Luciano, 6th Dist. Wood No. WD-14-023, 2015-Ohio-1264, 24, quoting State v. Trevino, 6th Dist. Lucas No. L-08-1394, 2009-Ohio-6983, 16. See State v. Lett, 7th Dist. Mahoning No. 08-MA-84, 2010-Ohio-4188, 32; State v. Francis, 11th Dist. Trumbull No. 2009-T-0015, 2010-Ohio-2686, 91 (“[I]n the context of a no contest plea, in asserting a claim of ineffective assistance of counsel, the defendant must demonstrate that, but for his attorney‘s error, he would not have entered his no contest plea and instead would have insisted
{35} First, we note that facts were not put in the record to support Blair‘s claim that he was unaware of the implications of his no contest plea. “‘It is impossible to determine whether the attorney was ineffective in his representation of appellant where the allegations of ineffectiveness are based on facts not appearing in the record.‘” Hernandez, 2017-Ohio-2797, at 16, quoting State v. Cooperrider, 4 Ohio St.3d 226, 228 (1983). We have previously held that an ineffective assistance of counsel claim in similar circumstances of a no contest plea is “more properly reserved for post-conviction petitions and as such cannot sustain an ineffective assistance of counsel argument on direct appeal.” Id., citing State v. Rothonbuhler, 3d Dist. Defiance No. 4-03-05, 2004-Ohio-2059, 11-13. Additionally, as indicated in our discussion of Blair‘s third assignment of error, the record indicates that the parties stipulated that the prosecutor was not required to present additional evidence relating to any of the elements of reckless homicide and that Blair was aware of the stipulation. (Dec. 3, 2019 Tr. at 8-9).
{37} However, in his initial appeal, Blair‘s fourth assignment of error was as follows:
The trial counsel for [Blair] rendered [ineffective assistance] of counsel in advising [Blair] to proceed with a no contest plea to the reckless homicide charge which may preclude effective challenge of the evidence concerning the mental capability the [State] presented to establish the charge.
State v. Blair, 2019-Ohio-4308, at 4. This assignment of error was rendered moot in Blair‘s initial appeal because this court remanded the cause to the trial court on the grounds that his initial plea colloquy was deficient. Id. at 7-8. However, on remand, Blair again entered a no contest plea to reckless homicide as charged in the bill of information. Thus, even if we assume (without deciding) that on December 20, 2018, when Blair entered his initial no contest plea to reckless homicide, he was unaware of the potential implications his plea could have on his ability to challenge the sufficiency of the evidence concerning his mental culpability, the fact that he
{38} Because Blair failed to satisfy his burden of demonstrating that he was prejudiced by his trial counsel‘s alleged errors, we need not consider whether Blair‘s trial counsel‘s performance was defective or unreasonable. See Bradley, 42 Ohio St.3d at 143 (“‘[T]here is no reason for a court deciding an ineffective assistance claim to * * * address both components of the inquiry if the defendant makes an insufficient showing on one.‘“), quoting Strickland, 466 U.S. at 697.
{39} Accordingly, Blair‘s fourth assignment of error is overruled.
{40} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgments of the trial court.
Judgments Affirmed
WILLAMOWSKI, P.J. and ZIMMERMAN, J., concur.