STATE OF OHIO v. GERALD CORBIN
No. 96484
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
December 22, 2011
2011-Ohio-6628
JOURNAL ENTRY AND OPINION; Case No. CR-533807
vs.
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-533807
BEFORE: Blackmon, J., Kilbane, A.J., and Keough, J.
RELEASED AND JOURNALIZED: December 22, 2011
ATTORNEY FOR APPELLANT
ATTORNEYS FOR APPELLEE
William D. Mason Cuyahoga County Prosecutor Robert B. Botnick James M. Price Assistant Prosecuting Attorneys The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:
{1} Appellant Gerald Corbin appeals his convictions and assigns the following errors for our review:
“I. The court erred in accepting appellant‘s guilty plea and appellant‘s guilty plea is void and invalid in light of the fact that the plea was not entered knowingly, voluntarily, and intelligently in violation of appellant‘s right to due process of law under the Fourteenth Amendment to the United States Constitution and Article 1, Section 10 of the Ohio Constitution.”
“II. The trial court erred in failing to hold a hearing on appellant‘s motion to disqualify counsel in violation of his due process rights under both the United States and Ohio Constitutions.”
“III. Appellant was denied the right to the effective assistance of counsel.”
{3} On February 17, 2010, a Cuyahoga County Grand Jury indicted Corbin on one count each of aggravated burglary, kidnapping, and aggravated robbery, with one and three-year firearm specifications attached to each count. In addition, the grand jury indicted Corbin with one count of having weapons under disability.
{4} On April 2, 2010, Corbin pleaded not guilty at his arraignment, and several pretrials followed. On June 1, 2010, pursuant to a plea agreement with the state, Corbin pleaded guilty to an amended indictment. Specifically, the state deleted the three-year firearm specification from the aggravated burglary charge, and Corbin pleaded guilty to the charge with the one-year firearm specification attached.
{5} The state also deleted the firearm specifications from the kidnapping and aggravated robbery charges, and Corbin pleaded to the charges as amended. In addition, Corbin pleaded guilty to having weapons under disability. Further, Corbin entered into the pleas with an understanding that he would be serving an agreed aggregate sentence of ten years.
{6} On the same day, the trial court imposed one year for the firearm specification, nine years each for aggravated burglary, kidnapping, and aggravated robbery. The trial court also sentenced Corbin to five years for having weapons under disability. In addition, the trial court ordered concurrent sentences for the underlying charges, but ordered them served consecutive to the one-year firearm specification.
Guilty Plea: Knowingly, Intelligently, and Voluntarily
{8} The underlying purpose of
{9}
“(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.”
{10} A trial court must strictly comply with the
{11} With respect to the nonconstitutional requirements of
{12} When nonconstitutional issues regarding the colloquy are raised, the defendant must show prejudice before a plea will be vacated for noncompliance with
{13} In the instant case, despite Corbin‘s assertions that his guilty pleas were not knowingly, intelligently, or voluntarily made, a review of the record indicates that the trial court adhered to all of the requirements of
{14} At the plea hearing, the state presented for the record the charges, the maximum penalty for the charges, and the plea discussions it had with defense counsel, specifically emphasizing that Corbin would serve an agreed sentence of ten years. Corbin indicated that he understood the charges and was willing to withdraw his not guilty pleas.
{15} Subsequently, the trial court engaged Corbin in a
{16} Corbin also stated he was not under the influence of drugs, alcohol, or medication that would affect his judgment. Further, he expressed that no threats or promises had been made to induce his pleas and that he was satisfied with his attorney‘s representation. Finally, the trial court asked him whether he had anything to say, to which Corbin stated: “I mean there‘s nothing that I have to say. I know what I did was wrong, but I‘m ready to suffer the consequences now.” Tr. 22.
Motion to Disqualify Attorney
{18} In the second assigned error, Corbin argues his due process rights were abridged by the trial court‘s failure to hold a hearing, prior to accepting his pleas, on his motion to disqualify his attorney, prior to the acceptance of his guilty pleas.
{19} Ordinarily, when an indigent accused moves to disqualify his or her counsel, it is the duty of the trial court to inquire into the complaint and make it a part of the record. State v. Lozada, Cuyahoga App. No. 94902, 2011-Ohio-823, citing State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 139. The inquiry need only be brief and minimal. Id., citing, State v. King (1995), 104 Ohio App.3d 434, 437, 662 N.E.2d 389.
{20} In the instant case, the record indicates that Corbin filed a pro se motion to disqualify his attorney the same day he pleaded guilty to the amended indictment and one day prior to trial. In his motion, Corbin complained that his attorney was not representing him to the best of his ability and that his attorney did not believe Corbin.
{21} The record also indicates that at the beginning of the hearing, the trial court stated that she had set aside time to discuss pending motions, but it had been brought to her attention that Corbin and the state had arrived at a plea agreement. As previously discussed in the first assigned error, we concluded that Corbin knowingly, intelligently, and voluntarily entered his guilty pleas to the amended charges.
“The Court: Do you have anything to say?
“Mr. Escovar: Your Honor, we withdraw the motions - -
“The Court: Thank you.
“Mr. Escovar: - I previously filed.
“The Court: So noted for the record. And I just wanted to make sure, because I know that sometimes they‘ll remain pending on the court docket if I don‘t mark them as such.” Tr. 21.
{23} Here, the record indicates that the trial court was prepared to address any pending motions, but Corbin failed to voice any dissatisfaction with his attorney when given the opportunity. Consequently, having previously concluded that Corbin‘s pleas were knowingly, intelligently, and voluntarily entered, we conclude that Corbin had abandoned his motion to disqualify his attorney. Accordingly, we overrule the second assigned error.
Ineffective Assistance of Counsel
{24} In the third assigned error, Corbin argues his trial counsel was ineffective. We disagree.
{25} To establish a claim for ineffective assistance of counsel, Corbin must show that his counsel‘s performance was deficient and that deficiency prejudiced his defense.
{26} Germane to our discussion, “[A] claim for ineffective assistance of counsel is waived by a guilty plea, unless the ineffective assistance caused the guilty plea to be involuntary.” State v. Hicks, Cuyahoga App. No. 90804, 2008-Ohio-6284, at ¶ 24. Having previously concluded that Corbin‘s pleas were knowingly, intelligently, and voluntarily entered into, we find nothing to support Corbin‘s claim that he was denied the effective assistance of counsel. Accordingly, we overrule the third assigned error.
Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate be sent to said 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.
PATRICIA ANN BLACKMON, JUDGE