STATE OF OHIO v. TRACI A. HENNEN
C.A. No. 25903
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
May 23, 2012
[Cite as State v. Hennen, 2012-Ohio-2278.]
COUNTY OF SUMMIT. APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF SUMMIT, OHIO CASE Nо. CR 10 10 2758
Dated: May 23, 2012
BELFANCE, Judge.
{¶1} Defendant-Appellant Traci Hennen appeals from the judgment of the Summit County Court of Common Pleas. For the reasons set fоrth below, we affirm.
I.
{¶2} In October 2010, Ms. Hennen was charged with multiple counts of driving under the influence of alcohol or drugs in violation of
{¶3} On February 23, 2011, Ms. Hennen entered a plea of guilty to count one (violating
II.
ASSIGNMENT OF ERROR I
THE INDICTMENT FOR THE FELONY OVI OFFENSES AND THE SPECIFICATIONS UNDER
O.R.C. []2941.1413 WERE STRUCTURALLY FLAWED BECAUSE THE INDICTMENT FAILED TO OUTLINE THE PRIOR CONVICTIONS WHICH SERVED AS UNDERLYING PREDICATE OFFENSES.
{¶4} Ms. Hennen аsserts in her first assignment of error that her indictment was fatally defective because it did not include the details of her prior conviсtions and that such defect amounted to structural error.
{¶5} Ms. Hennen did not challenge the sufficiency of the indictment below. We have previously noted that the Ohio Supreme Court has held that a defendant waives any deficiency in the indictment by failing to object tо the indictment and by pleading guilty to the offense. See State v. Neal, 9th Dist. Nos. 24392, 24398, 2009-Ohio-3170, ¶ 2-3, quoting State v. Barton, 108 Ohio St.3d 402, 2006-Ohio-1324, ¶ 73. Ms. Hennen pleaded guilty to the charges at issue. See id. at ¶ 3. Thus, Ms. Hennen has forfеited review of this issue on appeal. See id. at ¶ 2-3. Nonetheless, Ms. Hennen asserts that pursuant to State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-1624, the omission constitutes structural error, and thus, this Court can consider her argument. We nоte that this Court has stated that ”Colon did not overrule the longstanding waiver rules with regard to guilty pleas.” (Internal quotations and citation omitted.) Neal at ¶ 4. Moreover, Colon was subsequently overruled in State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3803, paragraphs one and three of the syllabus. Thus, Ms. Hennen has forfeited the right to challenge
ASSIGNMENT OF ERROR II
APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION.
{¶6} Ms. Hennen asserts in her second assignment of error that her trial counsel was ineffective for failing to challenge the sufficiency of the indictment pursuant to
{¶7} To prove an ineffective assistance claim, Ms. Hennen must show (1) that counsel‘s performance was deficient to the extent that “counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) that “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). To demonstrate prejudice, Ms. Hennen “must demonstrate that there is a reasonable probability that, but fоr h[er] counsel‘s error, [s]he would not have pleaded guilty and would have insisted on going to trial.” State v. Evans, 9th Dist. No. 09CA0049–M, 2010–Ohio–3545, ¶ 4.
{¶8} Ms. Hennen asserts the indictment is defective only because it fails to list the details of her prior convictions. Even assuming that the indictment was defective, Ms. Hennen‘s argument is prеdicated upon matters outside the record. Ms. Hennen has not pointed to evidence in the record to demonstrate thаt her trial counsel was unaware of the alleged defect when her trial counsel advised her concerning the guilty plea. Undеr the circumstances of this
{¶9} Ms. Hennen‘s remaining arguments concerning ineffective assistance are that trial counsel was ineffective for failing to investigаte whether Ms. Hennen‘s prior convictions were counseled and was ineffective for failing to make the State “provide evidence of the convictions to sustain its burden of proof prior to allowing [Ms. Hennen] to * * *[]” plead guilty.
{¶10} We note that there is nothing in thе record to substantiate Ms. Hennen‘s allegation that trial counsel failed to investigate this issue, and, thus, in order to substantiate her assertion, Ms. Hennen would need to point to evidence outside the record. “[W]e cannot infer counsel‘s failure to investigate from a silent record; the burden of demonstrating ineffective assistance is on [the defendant].” State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 68. Thus, Ms. Hennen has failed to demonstrate thаt her trial counsel was deficient. Id.
{¶11} Finally, it seems that Ms. Hennen asserts that trial counsel was ineffective as trial counsel did not compel the State to provide evidence which would establish it could meet its burden of proof prior to allowing Ms. Hennen to рlead guilty. Ms. Hennen has not cited to any
{¶12} In light of the foregoing, we overrule Ms. Hennen‘s seсond assignment of error.
III.
{¶13} In light of the forgoing, we overrule Ms. Hennen‘s assignments of error and affirm the judgment of the Summit County Court of Common Pleas.
Judgment affirmed.
There were reasonable grounds for this appeal.
Wе order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Summit, State of Ohio, to carry this judgment intо execution. A certified copy of this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
EVE V. BELFANCE
FOR THE COURT
CARR, P. J.
DICKINSON, J.
CONCUR.
APPEARANCES:
CAROLYN KAYE RANKE and NANCY T. JAMIESON, Attorneys at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant Prosecuting Attorney, for Appellee.