State v. HardingState v. Harding
Steven H. Eckstein, Washington Court House, Ohio, for defendant-appellant.
Jason Holdren, Gallia County Prosecuting Attorney, and Jeremy Fisher, Gallia County Assistant Prosecuting Attorney, Gallipolis, Ohio, for plaintiff-appellee.
Hoover, P.J.
{¶1} This is an appeal from a judgment of conviction and sentence entered by the Gallia County Court of Common Pleas following a guilty plea by Razoar B.D. Harding (“Harding“), appellant herein, to one count of trafficking in drugs. On appeal, Harding first contends that his guilty plea was not knowingly, voluntarily, and intelligently made because the trial court failed to substantially comply with
{¶2} Next, Harding contends that his sentence should be converted to non-mandatory prison time or his plea should be vacated because he received ineffective assistance of counsel. However, Harding is unable to demonstrate that his counsel‘s alleged deficiencies resulted in prejudice. Accordingly, we reject his second claim.
{¶3} For the reasons discussed more fully below, we overrule Harding‘s assignments of error and affirm the judgment of the trial court.
I. Facts and Procedural History
{¶4} The Gallia County Grand Jury returned an indictment charging Harding with one count of possession of drugs, in violation of
{¶5} Ultimately, the parties entered into a plea agreement requiring Harding to plead guilty to an amended count two, trafficking in drugs, in violation of
{¶6} At the change of plea hearing, the State proceeded to summarize the parties’ plea agreement; and the trial court received an affirmative response from Harding and his counsel that the State‘s summary was their understanding of the plea agreement:
COURT: And it‘s my understanding this matter has been resolved and Mr. Harding wishes to change a plea and then proceed to disposition of this matter this morning, is that correct?
MR. WISEMAN [Prosecutor]: Yes, Your Honor.
MR. SAUNDERS [Defense Counsel]: That‘s correct, Your Honor.
COURT: Okay, thank you. Would someone like to recite for purposes of the record what the underlying plea agreement is?
MR. WISEMAN: Yes, Your Honor. In consideration of the defendant‘s plea of guilty to Count 2 of the indictment and amended from an F1 trafficking in drugs to a F2 trafficking in drugs the defendant shall be sentenced to four years of incarceration. Upon the defendant‘s plea to Count 2 of the indictment the State hereby dismisses Count 1. The defendant shall pay a mandatory fine of $7,500.00. Further the defendant‘s operators [license] shall be suspended for six months and the defendant agrees to be assessed the cost of this action.
COURT: Okay, thank you. Mr. Saunders, is that your understanding of the underlying plea agreement?
MR. SAUNDERS: It is, Your Honor.
COURT: Okay, thank you. Mr. Harding, were you able to hear and understand what Mr. Wiseman indicated the underlying plea agreement is in this case and Mr. Saunders has confirmed?
MR. HARDING: Yes sir.
COURT: Is that your agreement?
MR. HARDING: Yes sir.
COURT: Do you have any questions about it?
MR. HARDING: No sir.
{¶7} Then, the trial court engaged in a colloquy with Harding under
COURT: And it‘s my understanding that you‘re going to plead guilty to an amended charge uh, amended Count 2, amended from a felony of the first degree trafficking in drugs to a felony of the second degree trafficking in drugs. This would be in violation of
Section 2925.03(A)(2) of the Ohio Revised Code . This uh, would be a felony of the second degree and what that means is that there is a mandatory term of incarceration ranging from a term of two, three, four, five, six, seven, or eight years in a state penal facility. Also a maximum fine of $15,000.00
with one half thereof being mandatory and also a license suspension ranging from a uh, minimum of six months up to a maximum of five years and a period of post-release control of three years that‘s required, however that is reducible by the parole board. Now I mentioned post-release control so let me describe to you what that is. * * * Now I know I said a lot there, but my question to you is this, were you able to hear and understand all of that?
MR. HARDING: Yes sir.
COURT: Do you have any questions about it?
MR. HARDING: No sir.
{¶8} Later, during the change in plea hearing, the trial court detailed the elements of the charge of trafficking in drugs and asked Harding if he understood the nature of the charge. Harding responded, “Yes sir.” Then the trial court asked Harding if he understood the elements of the charge that the State would need to prove beyond a reasonable doubt if the case were to proceed to trial. Again, Harding responded, “Yes sir.” Finally, the trial court asked Harding if he understood “the penalty provisions that are associated with this charge[.]“. Harding responded, “Yes sir.”
{¶9} Later on during the plea colloquy the trial court asked Harding if he understood the legal terms used in the discussion, and again asked if he understood by pleading guilty the trial court could impose “those statutory penalties that we‘ve been talking about[.]” Harding responded, “Yes sir.” The trial court also advised Harding of the constitutional rights he was waiving by pleading guilty.
The Court finds that this is a felony of the second degree and that there is a mandatory term of incarceration from the range that we previously mentioned, two to eight years I believe. The Court is going to go along with the underlying plea agreement and uh, * * * it‘s going to be the order and judgment of the Court uh, that you be sentenced to a term of incarceration in a state penal facility for an agreed upon period of four years, which as I indicated earlier is mandatory. Also assessed the cost of these proceedings for which judgment is rendered and execution may issue. Also assess the fine of seventy thou ... or $7,500.00, which is likewise mandatory in this case. * * *
{¶11} During the sentencing hearing, the following exchange took place:
MR. SAUNDERS: * * * Um, the defendant would also ask me to um, if the Court would consider um, making the mandatory sentence in this case the two years out of the four. Um, there‘s just the reason being he would ask the Court to, to do that. Um, that would allow him to be eligible for judicial release after those two years and he would be eligible to work any good time that might be available at the, at the facility. * * *
COURT: Well earlier you requested that I follow the plea agreement and that‘s what I did. Uh, Mr. Wiseman asked me to follow the plea agreement and that‘s
what the Court did so that‘s, that‘s what the sentence is. It‘s four years according to your agreement. * * *
{¶12} Harding has now appealed his conviction.
II. Assignments of Error
{¶13} Harding assigns the following errors for our review:
Assignment of Error I:
THE TRIAL COURT ERRED BY FAILING TO INFORM HARDING OF THE MAXIMUM PENALTY INVOLVED BEFORE HARDING ENTERED A PLEA OF GUILTY.
Assignment of Error II:
TRIAL COUNSEL RENDERED CONSTITUTIONALLY INEFFECTIVE ASSISTANCE IN VIOLATION OF HARDING‘S RIGHTS UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND OHIO CONSTITUTION ARTICLE I, §§ 5, 10 AND 16.
III. Law and Analysis
A. Validity of Guilty Plea
{¶14} In his first assignment of error, Harding contends that his guilty plea was not knowing, voluntary, and intelligent because the trial court failed to inform him of the maximum potential sentence. In particular, Walters argues that the trial court failed to explain that the entire sentence would be mandatory, and failed to explicitly state that he would not be eligible for community control, judicial release, or earned credit during the plea hearing.
{¶16} “Before accepting a guilty plea, the trial court should engage in a dialogue with the defendant as described in
{¶17} This case involves the trial court‘s notification of non-constitutional rights under
{¶18} A defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must generally prove prejudice, which in this context means that the plea would otherwise have not been entered. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, at ¶ 15. An exception to the prejudice requirement occurs when the trial court totally fails to comply with
When the trial judge does not substantially comply with
Crim.R. 11 in regard to a non[-]constitutional right, reviewing courts must determine whether the trial court partially complied or failed to comply with the rule. If the trial judge partially complied, e.g., by mentioning mandatory postrelease control without explaining it, the plea may be vacated only if the defendant demonstrates a prejudicial effect. The test for prejudice is “whether the plea would have otherwise been made.” If the trial judge completely failed to comply with the rule, e.g., by not informing the defendant of a mandatory period of postrelease control, the plea must be vacated. “A complete failure to comply with the rule does not implicate an analysis of prejudice.”
(Emphasis sic.) (Citations omitted.) State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 32:
{¶19} In the case sub judice, the trial court failed to explicitly inform Harding during the plea colloquy that he would be ineligible for community control, judicial release, or earned credit
{¶20} Because of the trial court‘s partial compliance, Harding must establish prejudice in order to vacate his guilty plea, i.e., that he would not have pleaded guilty had he known that his sentence included four years of mandatory prison time, which rendered him ineligible for community control, judicial release, or earned credit.
{¶21} First, we note that Harding affirmatively stated that he understood the penalties involved, including an affirmative response after the trial court expressly stated that imposition of a prison term was mandatory. We further note that while the trial court failed to expressly state that Harding was ineligible for community control; it also did not falsely advise him that community control was an available sanction. The trial court also made no misrepresentation concerning judicial release or earned credit during the plea colloquy.
{¶22} Although the written “Guilty Plea” form that Harding signed included statements referring to community control “[i]f this court is not required by law to impose a prison sanction,” this conditional language should not be deemed inordinately confusing in the absence of any expression of doubt by the defendant. Accord State v. McIntosh, 4th Dist. Scioto Nos. 17CA3792 & 17CA3801, 2018-Ohio-51, ¶ 24. In the case sub judice, neither Harding nor his counsel ever suggested that he was eligible for community control; rather, the transcript of the change of plea hearing demonstrates that Harding affirmatively acknowledged that a prison sentence was mandatory.
{¶23} Finally, this Court recently held that a trial court‘s failure to advise the defendant at the plea hearing that he or she would be ineligible for community control because of his or her mandatory prison term does not prejudice the defendant. McIntosh at ¶ 25. “[A] trial court substantially complies with the
{¶24} After considering the totality of the circumstances, we conclude that the trial court partially complied with the notification requirement of
B. Assistance of Counsel
{¶25} In his second assignment of error, Harding contends that his trial counsel provided constitutionally ineffective assistance by (1) failing to inform him that any prison term imposed was a mandatory prison term, thereby making him ineligible for community control, judicial release, and earned credit; and (2) failing to inform the trial court that he had a disability which required that he have an I.E.P. (Individualized Educational Plan) while attending school.
{¶26} To prevail on a claim of ineffective assistance of counsel, a criminal defendant must establish (1) deficient performance by counsel, i.e., performance falling below an objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but for counsel‘s errors, the result of the proceeding would have been different. State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113; Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Failure to satisfy either part of the test is fatal to the claim. Strickland at 697; State v. Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d 373 (1989). “Because this issue cannot be presented at trial, we conduct the initial review.” State v. Plymale, 4th Dist. Gallia No. 15CA1, 2016-Ohio-3340, ¶ 34.
{¶27} The defendant has the burden of proof because in Ohio, a properly licensed attorney is presumed competent. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62. In reviewing the claim of ineffective assistance of counsel, we must indulge in
{¶28} Here, even if we were to assume arguendo that Harding‘s counsel acted deficiently for the reasons alleged by Harding, Harding has failed to sufficiently demonstrate that the deficiencies prejudiced him. As previously noted, Harding on more than one occasion stated at the plea hearing, after explanation from the trial court, that he understood the maximum penalties involved and the mandatory nature of the sentence. Thus, even if his counsel failed to properly inform him, he was informed by the trial court and still decided to enter a guilty plea.
{¶29} With respect to Harding‘s claim that he was prejudiced by his counsel‘s failure to inform the trial court of an alleged mental disability, we note that the trial court directly asked Harding at the plea hearing if he was currently suffering from any mental condition that rendered him incapable of understanding the proceedings. He answered that he suffered from no conditions and was able to understand the proceedings. Specifically, the following discussion was held at the plea hearing:
COURT: Now Mr. Harding before I can accept a plea of guilty I need to advise you of your rights and ask you certain questions to determine if your plea‘s being made voluntarily, meaning of your own free will and also it‘s being made knowingly and intelligently, meaning that you understand what‘s happening here this morning. So except for the underlying plea agreement which has already been
stated for the purposes of the record have there been any threats or promises made to you to get you to change your plea in this case?
MR. HARDING: No.
COURT: And have you had adequate time to spend with Mr. Saunders and to seek his guidance and counsel in this matter?
MR. HARDING: Yeah.
COURT: Are you currently under any mental or physical condition this morning that would render you unable to understand what‘s happening here?
MR. HARDING: No.
COURT: Are you under the influence of alcohol or drugs of abuse that would render you unable to understand what‘s happening here this morning?
MR. HARDING: No sir.
* * *
COURT: Okay, thank you. How old are you Mr. Harding?
MR. HARDING: 23.
COURT: And how far through school did you get?
MR. HARDING: Uh, I got to the eleventh grade.
COURT: Okay. Do you have a GED?
MR. HARDING: No sir.
COURT: Made an [sic] preparations toward obtaining a GED?
MR. HARDING: Yes sir.
COURT: Tell me about that please.
MR. HARDING: Um, I tried to go to um, school to get back in school to go get my GED. Like I take class...try to take class, I tried to get back in school to get it, you know what I mean. I‘m ...inaudible...
COURT: Okay.
MR. HARDING: So I still need to get it. I still need to go get it.
COURT: Sure, sure and I would encourage you to do that.
MR. HARDING: Yes sir.
* * *
COURT: Okay, okay, very well. Now Mr. Harding we‘ve been talking about this charge and the language of the statute, or in other words legal terms. Are there any uncommon or unfamiliar terms there that you need further defined?
MR. HARDING: No sir.
{¶30} As evidenced by the above colloquy, the trial court went to great lengths to ensure that Harding was acting voluntarily, knowingly, and intelligently in entering his guilty plea. More importantly, the trial court asked Harding if he suffered from any mental condition that
{¶31} Based on the foregoing, we conclude that Harding has failed to show that his counsel‘s alleged deficiencies prejudiced him. Accordingly, we overrule Harding‘s second assignment of error.
IV. Conclusion
{¶32} Having overruled both of Harding‘s assignments of error, we affirm the judgment of the trial court.
JUDGMENT AFFIRMED.
It is ordered that the JUDGMENT IS AFFIRMED. Appellant shall pay the costs.
The Court finds that reasonable grounds existed for this appeal.
It is ordered that a special mandate issue out of this Court directing the Gallia County Court of Common Pleas to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Harsha, J. and Abele, J.: Concur in Judgment and Opinion.
For the Court
By: ____________________________
Marie Hoover, Presiding Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.