STATE OF OHIO, PLAINTIFF-APPELLEE vs. TROY COLA, DEFENDANT-APPELLANT
No. 99336
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
July 25, 2013
2013-Ohio-3252
BEFORE: S. Gallagher, P.J., Blackmon, J., and McCormack, J.
JOURNAL ENTRY AND OPINION; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-555733
Joseph C. Patituce
Catherine R. Meehan
Megan M. Patituce
Jennifer Scott
Patituce & Scott, L.L.C.
26777 Lorain Road
Suite 708
North Olmsted, OH 44070
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Brett Kyker
Assistant Prosecuting Attorney
Justice Center - 8th Floor
1200 Ontario Street
Cleveland, OH 44113
{¶1} Appellant Troy Cola appeals his conviction and sentence on multiple counts in the Cuyahoga County Court оf Common Pleas. For the reasons stated herein, we affirm.
{¶2} Appellant was charged under a 120-count indictment. Counts 1 through 7 charged appellant with pandering sexually oriented matter involving a minor in violation of
{¶3} Appellant initially entered a plea of not guilty. Pursuant tо a plea agreement, appellant entered a change of plea to guilty on Counts 1 through 98 and Count 120. It was agreed that the remaining counts would be nolled. Appellant stipulated that the offenses to which he pled guilty were not allied offenses of similar import. An agreement was also reached on the forfeiture specifications.
{¶4} The trial court entered a finding of guilty on the charges to which appellant pled guilty and dismissеd the remaining counts. Thereafter, the trial court sentenced appellant to a concurrent sentence of seven years for each of Counts 1 through 98, with five years of mandatory postrelease contrоl. The court also imposed a concurrent
{¶5} Appellant timely filеd this appeal. He raises three assignments of error for our review. His first assignment of error provides as follows:
- Appellant‘s conviction should be vacated because his right to due process was violated when the trial court failed to substantially comply with Crim.R. 11.
{¶6} Appellant argues that the trial court failed to comply with
{¶7} A review of the record herein shows that the trial court explained the constitutional rights appellant would be waiving by entering a plea of guilty and appellant exрressed his understanding of those rights. The court also reviewed with appellant the nature of the offenses and the potential penalties involved. Defense counsel indicated,
{¶8} When the trial court reviewed the offеnse of pandering sexually oriented matter involving a minor, appellant indicated that “I didn‘t knowingly.” However, he made no further assertions while being advised of the rights he was waiving or while entering his guilty plea, nor did he otherwise maintain аctual innocence during the plea hearing. Rather, when the court advised appellant that by entering a plea of guilty, he would be admitting the charged offenses, appellant expressed that he understood. Whеn viewed in light of the entire plea colloquy, appellant did not enter an Alford plea.1
{¶9} Considering the totality of circumstances surrounding appellant‘s plea, we find that he subjectively understood that a guilty plea is a complеte admission of guilt. Because appellant has not demonstrated prejudice such that his plea would not have otherwise been made, we find that he entered a valid guilty plea. Appellant‘s first assignment of error is оverruled.
{¶10} Appellant‘s second assignment of error provides as follows:
- Appellant‘s conviction should be vacated because he was denied the right to effective assistance of counsel.
[W]hen a defendant enters a guilty plea as part of a plea bargain, he waives all appealable errors that may have occurred at trial, unless such errors are shown to havе precluded the defendant from entering a knowing and voluntary plea. State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991). “A failure by counsel to provide advice [which impairs the knowing and voluntary nature of the plea] may form the basis of a claim of ineffective assistance of counsel, but absent such a claim it cannot serve as the predicate for setting aside a valid plea.” United States v. Broce, 488 U.S. 563, 574, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). Accordingly, a guilty plea waives the right to claim that the accused was prejudiced by constitutionally ineffective counsel, except to the extent the defects complained of caused the plea to be less than knowing and voluntary. State v. Barnett, 73 Ohio App.3d 244, 248, 596 N.E.2d 1101 (2d Dist.1991).
State v. Milczewski, 8th Dist. No. 97138, 2012-Ohio-1743, ¶ 5.
{¶13} We note that the appellant‘s “repeated” assertions of lack of knowledge were made at sentencing and that appellant fails to set forth what defenses he would have raised. As the state argues, the fact that defense counsel may not have been an expert in computers and/or peer-to-peer file-sharing programs does not necessarily mean he rendered ineffective assistance of counsel. Further, the state indicated at sentencing that a “batch downloading” defense or a claim of “mistake” would not work in this case becausе of the number of child pornography files found on appellant‘s computer, the number of different dates of the downloads, the descriptive titles of the files, the placement of the files in a locked folder on the computer, and statements made to investigators.
{¶14} Upon review, we find that
{¶15} Upon the record before us, we are unable to find that defense counsel‘s performance was deficient or that it wаs such as to cause the plea to be less than knowing and voluntary. Appellant‘s second assignment of error is overruled.
{¶16} Appellant‘s third assignment of error provides as follows:
- Appellant‘s sentence should be vacated because the trial court failed to comply with R.C. 2929.11 and R.C. 2929.12.
{¶17} Appellant claims the trial court failed to make the requisite considerations under
{¶18} In this case, the trial court reviewed the prеsentence investigation report and the sentencing memorandum filed by the parties. At the sentencing hearing, the court heard statements from defense counsel, appellant, and his friends and family members. The court reсognized that appellant pled guilty to 98 counts of pandering sexually oriented matter and that his plea was knowingly, intelligently, and voluntarily entered. The court considered “the overriding purposes to punish the offender аnd protect the public from future crime by the offender and others using the minimum sanctions that the Court determines accomplishes those purposes.” The court addressed the specific factors listed under
{¶19} Upon the record before us, we cannot conclude that the sentеnce was improper or contrary to law. Accordingly, we overrule appellant‘s third assignment of error.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
SEAN C. GALLAGHER, PRESIDING JUDGE
PATRICIA ANN BLACKMON, J., and
TIM McCORMACK, J., CONCUR