State v. GiuggioState v. Giuggio
{¶1} Andrew Giuggio appeals his conviction for attempted rape. He argues that his guilty plea was invalid, defense counsel was ineffective, and his eight-year prison sentence was not supported by the record. We conclude that his assignments of error have no merit and affirm the trial court‘s judgment.
{¶2} Giuggio was indicted for rape and gross sexual imposition. Both counts of the indictment alleged that the offenses were committed on the same date against the same victim.
{¶3} In exchange for the state‘s dismissal of the gross-sexual-imposition charge and amendment of the rape charge, Giuggio entered a guilty plea to one сount of attempted rape. The trial court sentenced him to eight years in prison.
{¶4} In his first assignment of error, Giuggio argues that the trial court erred by accepting his guilty plea because it was not made knowingly, intelligently, and voluntarily. He contends that his guilty plea was invalid because the trial court failed to comply with Crim.R. 11 in accepting the plea.
{¶5} Before a trial court accepts a plea in a felony case, Crim.R. 11(C)(2) requires the court to personally address the defendant, аnd ascertain that the plea is voluntary and entered with an understanding of the effect of the plea, the nature of the charges, and the maximum penalty that may be imposed. In addition, the court must inform the defendant, and determine that the defendant understands, that by pleading guilty, the defendant is waiving her or his constitutional rights (1) to a jury trial, (2) tо confront witnesses against her or him, (3) to have compulsory process for obtaining witnesses, (4) to require the state to prove the defendant‘s guilt beyond a reаsonable doubt, and (5) to the privilege against self-incrimination. State v. Partee, 1st Dist. Hamilton No. C-120432, 2013-Ohio-908, ¶ 2, citing State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 14 and syllabus. The court must also advise a defendant regarding any applicable period of postrelease control and the sanctions for violation of the terms of postrelease control. Id.
{¶6} In this case, the record demonstrates that Giuggio understood the consequences of his guilty plea. The trial court engaged in an extensive Crim.R. 11 colloquoy with Giuggio, during which it explained the maximum penalty, the applicable period of postrelease control,1 the sanctions for violation of the terms of postrelease control, and the constitutional rights Giuggio waived by entering the guilty plea. Giuggio indicated that he was pleading guilty of his own free will; that he was not under the influence of drugs, medicines, or alcohol; that he had signed the plea form after it had been explained to him; that he fully understood the plea form, the nature of the charge, the effect of the plea, and the maximum penalty; and that he understood the constitutional rights he was waiving by entering the guilty plea.
{¶7} Although Giuggio has professed his innocence to his appellate counsel and indicated that his plea was the product of coercion and duress, he concedes that this aspect of his claim is based on information оutside the record, which we cannot consider in deciding the appeal. See State v. Ishmail, 54 Ohio St.2d 402, 405-406, 377 N.E.2d 500 (1978). Because our review of the record convinces us that Giuggio knowingly, intelligently, and voluntarily entered his guilty plea, we hold that the trial court properly accepted the plea. We overrule the first assignment of error.
{¶9} To establish ineffective assistance of counsel, the dеfendant must demonstrate that she or he was prejudiced by counsel‘s deficient performance. See Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989). To show prejudice, Giuggio must prove that, but for counsel‘s errоrs, he would not have entered a guilty plea and would have insisted on going to trial. See Hill v. Lockhart, 474 U.S. 52, 60, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); State v. Xie, 62 Ohio St.3d 521, 524, 584 N.E.2d 715 (1992).
{¶10} We are unable to determine on appeal whether ineffective assistance of counsel occurred where the allegations of ineffectiveness are, as Giuggio admits here, based on facts outside the record. See State v. Cooperrider, 4 Ohio St.3d 226, 228, 448 N.E.2d 452 (1983); State v. Coleman, 85 Ohio St.3d 129, 134, 707 N.E.2d 476 (1999). Therefore, we overrule the second assignment of error.
{¶11} In his third assignment оf error, Giuggio argues that the trial court erred by imposing a sentence that is not supported by the record. Specifically, he contends that the imposition of the maximum sentence was not supported by the record, and that the court failed to properly consider, under
{¶13} Giuggio contends that the trial court improperly tоok into consideration a similar California case that had gained national attention, and claims that the trial court improperly punished him for the “transgressions” of the California defendant. This is not supported by the record. The court simply informed Giuggio that his sentence would be different than the 60-day jail term imposed in the Califоrnia case.
{¶14} Giuggio also contends that the trial court failed to properly consider the purposes and principles of sentencing in
{¶15} In addition, the court considered the seriousness and recidivism factors in
{¶16} In addition, the trial court reviewed a presentence-investigation report that indicated Giuggio had completed high school and was employed, and that Giuggio had no prior criminal history. See
{¶17} Giuggio was convicted of a second-degree felony,
Judgment affirmed.
CUNNINGHAM, P.J., and MILLER, J., concur.
Please note:
The court has recorded its own entry on the date of the release of this opinion.