STATE OF OHIO, Plaintiff-Appellee, v. KRISTINA HUGHES, Defendant-Appellant.
Case No. 21CA1127
IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ADAMS COUNTY
RELEASED 9/01/2021
2021-Ohio-3127
Hess, J.
DECISION AND JUDGMENT ENTRY
Brian T. Goldberg, Schuh & Goldberg, LLP, Cincinnati, Ohio, for appellant.
David Kelley, Adams County Prosecutor, Mark R. Weaver and Ryan M. Stubenrauch, Adams County Assistant Prosecutors, West Union, Ohio, for appellee.
Hess, J.
{1} Kristina Hughes appeals her conviction for felonious assault and endangering children. In her first assignment of error, Hughes contends that the trial court erred when it failed to merge her felonious assault and endangering children offenses for purposes of sentencing. However, her conduct constituting felonious assault was committed separately from her conduct constituting endangering children and resulted in different identifiable harms. Thus, she failed to establish that
{2} In her second and third assignments of error, Hughes asserts the trial court erred by improperly sentencing her to consecutive prison terms and imposing the maximum prison sentence for felonious assault. We overrule her second assignment of
{3} We also overrule her third assignment of error contesting her maximum sentence for felonious assault. Hughes does not ask us to review whether the record supports the trial court‘s findings under
{4} In her fourth assignment of error, Hughes contends that the trial court erred in issuing a no-contact order in addition to her prison term. She argues that a no-contact order is a community control sanction and cannot be imposed where a prison term has been imposed for the same offense. The state poses an interesting and novel argument that the Marsy‘s Law amendment to the
{5} For her fifth assignment of error, Hughes contends that the Reagan Tokes Act is unconstitutional, and the trial court erred by sentencing her under that Act. However, we find that Hughes‘s constitutional challenge is not ripe for review. Hughes has not yet been subject to the application of the provisions, has not served her minimum time, and therefore has not been denied release at the expiration of her minimum term of incarceration. We overrule her fifth assignment of error.
{6} In her sixth and seventh assignments of error, Hughes asserts that the trial court erred in accepting her guilty plea because she received ineffective assistance of counsel and did not enter the plea knowingly and voluntarily. However, Hughes has failed to establish that her trial counsel‘s performance was deficient or that she suffered prejudice. Additionally, she failed to show that her plea was not made knowingly and voluntarily because, though she made some exculpatory remarks during the change of plea hearing, the trial court complied fully with Crim.R. 11 after which Hughes unequivocally pleaded guilty to both offenses.
{7} We sustain Hughes‘s fourth assignment of error, overrule the remaining assignments of error, vacate the no-contact order, and remand for the trial court to issue a corrected sentencing entry that removes reference to the no-contact order. We affirm the trial court‘s judgment in all other respects.
{8} In October 2019, the Adams County grand jury indicted Hughes on one count of felonious assault, a violation of
{9} In December 2020, Hughes changed her plea again. Pursuant to the plea agreement with the state, Hughes pleaded guilty to felonious assault, the state amended the endangering children offense from a second-degree offense under
II. ASSIGNMENTS OF ERROR
{10} Hughes presents seven assignments of error:
The trial court erred to the prejudice of Ms. Hughes by failing to merge allied offenses of similar import at the time of sentencing. - The trial court erred to the prejudice of Ms. Hughes by improperly sentencing her to consecutive prison terms.
- The trial court erred by imposing an indefinite maximum prison sentence of 8-12 years consecutive with a 36 month maximum prison sentence that was not supported by the record.
- The trial court erred to the prejudice of Ms. Hughes by sentencing her to prison for a term of incarceration, and issuing a no-contact order.
- The Reagan Tokes Act, as enacted by the Ohio Legislator [sic] is unconstitutional, and the trial court erred by sentencing Ms. Hughes under that Act.
- The trial court erred to the prejudice of Ms. Hughes Sixth Amendment rights by entering judgement [sic] of conviction after a plea and sentencing at which she received ineffective assistance of counsel.
- The trial court erred to the prejudice of Ms. Hughes by accepting a plea that was not made knowingly or voluntarily.
III. ALLIED OFFENSES OF SIMILAR IMPORT
{11} In the first assignment of error, Hughes contends that the trial court erred when it failed to merge allied offenses of similar import. She contends that the endangering children count was based on her placing the two-year-old victim in cold water, making him squat, and placing hot sauce in his mouth - all which occurred “a couple of times” and the felonious assault count was based on her hitting the victim with a belt and her hand, causing permanent scarring - which happened “probably at least ten” different times. These offenses occurred April through September, 2019. Hughes argues that the acts that constitute endangering children (cold water, squatting, hot sauce) are consistent with the elements of felonious assault and the acts that constitute felonious assault (striking victim with her hand and belt, resulting in permanent scarring)
{12} The state argues that the acts that form the basis for the endangering children offense would not meet the elements of felonious assault because, although terrible and torturous, did not result in serious physical harm, an element of felonious assault. In contrast, the beatings with hand and belt resulted in permanent scarring and were separate offenses with a dissimilar import.
A. General Principles and Standard of Review
{13} The Double Jeopardy Clause of the Fifth Amendment to the
{14} “The General Assembly enacted
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
{15} The sentencing court has a mandatory duty to merge allied offenses of similar import. State v. Stapleton, 4th Dist. Pickaway No. 19CA7, 2020-Ohio-4479, ¶ 50. However, the defendant has the burden to establish
{16} The determination whether an offender has been found guilty of allied offenses of similar import “is dependent upon the facts of a case because
When determining whether offenses are allied offenses of similar import within the meaning of
R.C. 2941.25 , courts must answer three essential questions: “(1) Were the offenses dissimilar in import or significance? (2) Were they committed separately? and (3) Were they committed with separate animus or motivation? An affirmative answer to any of the above will permit separate convictions.” State v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266, ¶ 12, citing State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31 and paragraphs one, two, and three of the syllabus. Accordingly, courts must consider “[t]he conduct, the animus, and the import.” Id.
{17} Under current Ohio law courts can only impose multiple punishments in a single trial for a defendant‘s conduct under two situations: 1) where the charged crimes are not allied offenses, i.e., it is not possible to commit multiple crimes with the same action, State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, and 2) the crimes are allied offenses but the defendant‘s actions have dissimilar import, i.e., the crimes were committed separately, or with a separate animus, or the resulting harm for each offense is separate and identifiable. State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, paragraph one of the syllabus; State v. Louis, 2016-Ohio-7596, 73 N.E.3d 917, ¶ 90-95 (4th Dist.); State v. Smith, 2017-Ohio-537, 85 N.E.3d 304, ¶ 15 (8th Dist.) (“Allied offense analysis interpreting
{18} However, here Hughes did not object in the trial court to separate sentences for felonious assault and endangering children, so we review this issue under the plain error standard of review. In other words, appellant “has the burden to demonstrate a reasonable probability that the convictions are for allied offenses of similar import committed with the same conduct and without a separate animus; absent that showing, the accused cannot demonstrate that the trial court‘s failure to inquire whether the convictions merge for purposes of sentencing was plain error.” State v. Cambron, 2020-Ohio-819, 152 N.E.3d 824, ¶ 9 (4th Dist.), citing State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3.
1. Allied Offenses - Step 1
{19} Initially, we look to see if the charges Hughes faced represent allied offenses. To accomplish that we must look at the defendant‘s conduct to determine if it was possible to both commit one offense and commit the other by that conduct. Johnson at ¶ 48. To do that we must also examine the crimes at issue. Id.
{20} Felonious assault is prohibited by
{21} Hughes hit the two-year-old victim repeatedly with her hand and a leather belt on areas of his body that were already suffering open wounds. Because these beatings could be “repeatedly administered unwarranted disciplinary measures that had a substantial risk of seriously impairing or retarding the child‘s mental health or development,” we conclude it was possible for Hughes to commit the offense of felonious assault and the offense of endangering children under
2. Offenses of Similar Import - Step 2
{22} However, even though it is possible to commit both offenses with the same conduct, and thus they are allied offenses, they are not allied offenses of similar
{23} For the conduct that formed the basis for her felonious assault conviction, Hughes intentionally beat the two-year-old victim with her hand and a leather belt on at least 10 different occasions, while the victim was already suffering from open wounds on his buttocks, causing permanent scarring. The permanent scarring constitutes serious physical harm:
“Serious physical harm” is defined under
R.C. 2901.01(A)(5)(c), (d), and (e) as including harm that produces “temporary, substantial incapacity,” “temporary, serious disfigurement,” or “acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain.” State v. Adams, 2016-Ohio-7772, 84 N.E.3d 155, ¶ 25 (4th Dist.); quoting State v. Scott, 4th Dist. Washington No. 15CA2, 2015-Ohio-4170, ¶ 23.
State v. Miller, 4th Dist. Hocking No. 18CA3, 2019-Ohio-92, ¶ 30.
{24} For the conduct that formed the basis for her endangering children conviction, on several different occasions as disciplinary measures Hughes placed the two-year-old victim in a very cold shower, forced the victim to squat for extensive lengths of time, and poured hot sauce down his throat. These punishments occurred on separate days and constituted a course of conduct that happened over time. And although this conduct was exceptionally cruel, it resulted in separate, primarily temporary and psychological, identifiable harm that differed from the serious physical harm, including permanent scarring, caused by the beatings.
IV. CONSECUTIVE PRISON TERMS
{26} For her second assignment of error, Hughes concedes that the trial court stated the necessary statutory language on the record and in the sentencing entry - the trial court made the findings required by
A. Standard of Review - Consecutive Sentences
{27} We analyze Hughes‘s consecutive sentences under
Under that provision, a court of appeals may increase, reduce, or otherwise modify a sentence if it clearly and convincingly finds “[t]hat the record does not support the sentencing court‘s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant.” Because
R.C. 2953.08(G)(2)(a) specifically mentions a sentencing judge‘s findings made underR.C. 2929.14(C)(4) as falling within a court of appeals’ review, the General Assembly plainly
intended
R.C. 2953.08(G)(2)(a) to be the exclusive means of appellate review of consecutive sentences. See State v. Vanzandt, 142 Ohio St.3d 223, 2015-Ohio-236, 28 N.E.3d 1267, ¶ 7 (“We primarily seek to determine legislative intent from the plain language of a statute“).
Id. at ¶ 16, 18 (reversing and remanding an appellate court decision that used the incorrect sentencing review “by reviewing Gwynne‘s consecutive sentences under
{28} We may vacate or modify a felony sentence if we clearly and convincingly find that the record does not support the trial court‘s findings. State v. Layne, 4th Dist. Adams No. 20CA1116, 2021-Ohio-255, ¶ 6. “‘This is an extremely deferential standard of review.‘” Id. at ¶ 8, quoting State v. Pierce, 4th Dist. Pickaway No. 18CA4, 2018-Ohio-3943, ¶ 8. Clear and convincing evidence is proof that is more than a “mere preponderance of the evidence” but not of such certainty as “beyond a reasonable doubt,” and produces in the mind a “firm belief or conviction” as to the facts sought to be established. State v. Conant, 4th Dist. Adams No. 20CA1108, 2020-Ohio-4319, ¶ 42.
B. Hughes‘s Consecutive Sentence is Supported by the Record
{29}
(4) If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender‘s conduct and to the danger the offender poses to the public, and if the court also finds any of the following:
(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender‘s conduct.
(c) The offender‘s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{30} Here, the trial court determined that consecutive sentences were necessary to protect the public from future crime, to punish Hughes, and that consecutive sentences were not disproportionate to the seriousness of Hughes‘s conduct and the danger she posed to the public. Additionally, the trial court found, pursuant to
{31} The trial court reviewed the facts and noted that law enforcement examined the victim and discovered bruises all over his face and head and, upon removing his clothes, found both old and fresh bruising all over the victim‘s body. Additionally, the court reviewed audio tapes of several incidents in which Hughes beat the two-year-old victim, punished him by forcing him to stand in a freezing cold shower, and forced hot sauce down his throat. The audio tapes clearly record the sounds of the victim suffering and screaming in pain as well as Hughes‘s nonstop verbal berating and profanity. After describing the audio tapes, the court stated:
I‘ve sat in the Courtroom and I‘ve dealt with the darkest humans possible. Men killed their father, putting him in a barrel, burned him up, and spread his ashes along the road. Killed prostitutes in Portsmouth and dumped
them here. Cut a man‘s head [--] top of his head off. I‘ve never, ever experienced a monster like you.
{32} The court stated that Hughes showed no remorse for her offenses, “She has absolutely no remorse.” The trial court also considered the victim impact statement prepared by the victim‘s foster parent, which detailed the psychological struggles the victim faced and described certain conversations with and behavior of the victim that indicated that the child may have experienced additional sexual trauma. The victim continued to receive psychological therapy and was still experiencing nightmares.
{33} The trial court found that it was necessary to impose consecutive sentences on Hughes because the harm caused was so great and unusual and was necessary, “to punish the offender of the most heinous crimes that this Court has ever experienced in his life.”
{34} We cannot say that the trial court‘s findings are clearly and convincingly unsupported by the record. The court‘s
{35} We overrule her second assignment of error.
V. MAXIMUM SENTENCE FOR FELONIOUS ASSAULT
{36} Hughes concedes that the 36-month sentence for child endangering was an agreed, recommended sentence and she does not seek review of it. As with her
A. Standard of Review - Maximum Sentence
{37} We review felony sentences under the standard set forth in
The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court‘s standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:
(a) That the record does not support the sentencing court‘s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;
(b) That the sentence is otherwise contrary to law.
B. Hughes‘s Maximum Sentence
{39} The trial court stated at the sentencing hearing and in the judgment of conviction that it considered the principles and purposes of sentencing under
{40} Hughes makes a broad argument that the record does not support her sentence. And, though she does not cite the statute specifically, she appears to be making an argument that the court made an improper finding concerning the seriousness of her offense under
{41} More specifically, Hughes does not argue that, under
R.C. 2929.13(B) (governing fourth and fifth-degree felonies, not applicable to Hughes);R.C. 2929.13(D) (governing first and second-degree drug offenses, not applicable to Hughes);R.C. 2929.14(B)(2)(e) (governing sentences imposed under2929.14(B)(2)(a) or (b) for repeat violent offenders, not applicable to Hughes);R.C. 2929.14(C)(4) (governing consecutive sentences, which we addressed when we reviewed Hughes‘s challenge to her consecutive sentence); orR.C. 2929.20(I) (governing judicial release hearings, not applicable to Hughes).
Instead, she broadly argues that the sentence is not supported by the record. However,
R.C. 2953.08(G)(2)(a) permits an appellate court to modify or vacate a sentence if it clearly and convincingly finds that “the record does not support the sentencing court‘s findings under” certain specified statutory provisions. ButR.C. 2929.11 and2929.12 are not among the statutory provisions listed inR.C. 2953.08(G)(2)(a) . OnlyR.C. 2929.13(B) and (D),2929.14(B)(2)(e) and (C)(4), and2929.20(I) are specified.
When we consider the evolution of
R.C. 2953.08(G) , it is evident that an appellate court‘s conclusion that the record does not support a sentence underR.C. 2929.11 or2929.12 is not the equivalent of a conclusion that the sentence is “otherwise contrary to law” as that term is used inR.C. 2953.08(G)(2)(b) .
Id. at ¶ 34. Thus, based on the recent decision in Jones, supra, it is clear we have no authority to conduct the sentencing review Hughes seeks. She asks us to review the record and determine that the serious physical injury caused by her felonious assault offense “is not the most serious form of harm” which, in essence, is asking us to review the record and determine whether it supports the trial court‘s implicit finding under
{43} We overrule her third assignment of error.
VI. NO-CONTACT ORDER
{44} Hughes contends that the trial court erred when it imposed a prison sentence and a no-contact order, which is a community control sanction, because the courts have made clear that if the trial court imposes a prison term, then it may not impose a no-contact order for the same offense. See State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512. The state concedes that the existing case law supports Hughes‘s argument. However, it argues that the 2017 amendment to the
{45} Our review of this aspect of Hughes‘s felony sentence is reviewed under the standard provided by
{46} On February 5, 2018, the amendment to
(A) To secure for victims justice and due process throughout the criminal and juvenile justice systems, a victim shall have the following rights, which shall be protected in a manner no less vigorous than the rights afforded to the accused:
(1) to be treated with fairness and respect for the victim‘s safety, dignity and privacy;
(2) upon request, to reasonable and timely notice of all public proceedings involving the criminal offense or delinquent act against the victim, and to be present at all such proceedings;
(3) to be heard in any public proceeding involving release, plea, sentencing, disposition, or parole, or in any public proceeding in which a right of the victim is implicated;
(4) to reasonable protection from the accused or any person acting on behalf of the accused;
(5) upon request, to reasonable notice of any release or escape of the accused;
(6) except as authorized by section 10 of Article I of this constitution, to refuse an interview, deposition, or other discovery request made by the accused or any person acting on behalf of the accused;
(7) to full and timely restitution from the person who committed the criminal offense or delinquent act against the victim;
(8) to proceedings free from unreasonable delay and a prompt conclusion of the case;
(9) upon request, to confer with the attorney for the government; and
(10) to be informed, in writing, of all rights enumerated in this section.
(B) The victim, the attorney for the government upon request of the victim, or the victim‘s other lawful representative, in any proceeding involving the criminal offense or delinquent act against the victim or in which the victim‘s rights are implicated, may assert the rights enumerated in this section and any other right afforded to the victim by law. If the relief sought is denied, the victim or the victim‘s lawful representative may petition the court of appeals for the applicable district, which shall promptly consider and decide the petition. * * *
{47} The
{48} The trial court‘s sentencing entry orders Hughes to have no contact with the victim. At the sentencing hearing, the trial court ordered that Hughes “shall have no contact with the victims [sic]” and asked her, “[D]o you know of any reason you would ever need to have contact with this little boy after what you‘ve done to him in the lifetime
{¶49} As we explained in Conant, supra:
In Anderson, the Supreme Court of Ohio considered whether a trial court has the authority to impose a prison term and a no-contact order with the victim for the same felony offense. Anderson at ¶ 1. The Supreme Court explained that a trial court may only impose a sentence that is provided for by statute, that “Ohio courts have recognized that a no-contact order is a community-control sanction,” and that the felony-sentencing statutes “reflect that the General Assembly intended prison terms and community-control sanctions to be alternative sanctions” for a felony offense. Id. at 12, 17, 28. The Supreme Court held that “as a general rule, when a prison term and community control are possible sentences for a particular felony offense, absent an express exception, the court must impose either a prison term or a community-control sanction or sanctions.” Id. at ¶ 31. Therefore, “[a] trial court cannot impose a prison term and a no-contact order for the same felony offense.” Id. at ¶ 1.
Id. at 43; State v. Behrle, 4th Dist. Adams No. 20CA1110, 2021-Ohio-1386, ¶ 49-51.
{¶50} The trial court‘s decision to impose a no-contact order in addition to Hughes‘s prison term was contrary to law. “Trial courts and intermediate courts of appeals are bound by and must follow decisions of the Ohio Supreme Court.” State v. Cox, 4th Dist. Adams No. 02CA751, 2003-Ohio-1935, ¶ 12. Pursuant to Anderson, trial
VII. REAGAN TOKES LAW
{¶51} Hughes contends that the trial court erred by sentencing her under the
{¶52} The
{¶53} Hughes maintains that the
{¶54} For a complete discussion of the
{¶55} While Maddox, supra, was pending, the Eighth District Court of Appeals reversed itself and determined that the
{¶56} More specifically, it found that the
{¶57} The Eighth District expressed concern for how the
This court is aware that effective March 15, 2021, the director of the DRC issued policy number 105-PBD-15 establishing procedures for the “Additional Term Hearing Process” under the Reagan Tokes Law. That policy was not in effect at the time the parties brought this appeal, it was not in effect at the time the parties submitted their briefs, and it was not in effect at the time the parties participated in oral argument in this case. It is not before this court to consider whether the DRC policy provides due process protections that are absent from the statute. See State v. Tate, 140 Ohio St.3d 442, 2014-Ohio-3667, 19 N.E.3d 888.
{¶58} Because our district precludes constitutional review of the
{¶59} We overrule Hughes‘s fifth assignment of error.
VIII. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL
{¶60} Hughes contends that the trial court erred by entering judgment of conviction after a plea hearing at which she received ineffective assistance of counsel. She argues that her trial attorney‘s performance was deficient because he: (1) filed a
{¶61} 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. Allen, 4th Dist. Pickaway No. 19CA31, 2021-Ohio-648, ¶ 21, citing State v. Turner, 4th Dist. Jackson No. 19CA4, 2019-Ohio-5470; State v. Short, 129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113. “In employing this standard “we apply a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.” State v. Day, 4th Dist. Adams No. 19CA1085, 149 N.E.3d 122, 2019-Ohio-4816, ¶ 27. “The benchmark for judging any claim of ineffectiveness must be whether counsel‘s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984).
A. Motion to Withdraw Guilty Plea
{¶62} Hughes contends that her trial counsel‘s performance was deficient because he filed a motion to withdraw her guilty plea without reviewing the state‘s discovery. However, the record shows that she filed her motion to withdraw her guilty plea because she “was not given a copy or allowed to review the discovery in the case.”
{¶63} Regardless of whether her attorney‘s performance was deficient, Hughes cannot show any prejudice because the trial court allowed both Hughes and her attorney to review the state‘s discovery, including the two audio tapes of Hughes‘s conduct with the victim, and gave them an opportunity to withdraw her motion to withdraw her guilty plea before the court ruled on it. The trial court explained that it understood that a motion to withdraw a guilty plea should be liberally granted and it was not trying to discourage Hughes from withdrawing her guilty plea, but the court wanted to be certain she had an opportunity to hear the audio recordings and review the state‘s discovery prior to seeking a ruling on her motion to withdraw her plea. The trial court, with the state and Hughes‘s agreement, informed Hughes and her attorney that it would reserve its ruling until the following Monday, until all discovery had been provided to Hughes‘s attorney and both Hughes and her attorney had a chance to review it together.
{¶65} Hughes has failed to demonstrate prejudice, i.e., a reasonable probability that, but for counsel‘s error - assuming, but not deciding, that it was an error - the result of the proceeding would have been different. The trial court held the motion in abeyance until after Hughes and her attorney reviewed all the state‘s discovery and then gave her an opportunity to withdraw her motion to withdraw her guilty plea. Hughes declined to withdraw her motion. There is nothing left to speculate: the result of the proceeding was not different. Therefore, Hughes was not prejudiced by her counsel‘s conduct.
B. Objections to Merger and Reagan Tokes Law
{¶66} Next Hughes argues that her attorney was deficient for failing to raise merger at sentencing and failing to object to the constitutionality of the
C. Objection to Amended Indictment
{¶67} Hughes argues that her attorney should have objected to the state‘s motion to amend the dates on the indictment. She speculates that the reason for the amendment was to place her conduct entirely within the
{¶68}
The court may at any time before, during, or after a trial amend the indictment, * * * provided no change is made in the name or identity of the crime charged. If any amendment is made to the substance of the indictment * * * the defendant is entitled to * * * a reasonable continuance, unless it clearly appears from the whole proceedings that the defendant has not been misled or prejudiced by the defect or variance in response to which the amendment is made * * *
{¶69} The amendment did not change the name or identity of the crime charged. And, Hughes does not explain: (1) how a continuance would have been warranted under
{¶70} Hughes has failed to establish that her counsel‘s performance was deficient or that she suffered any prejudice. We overrule her sixth assignment of error.
IX. GUILTY PLEA WAS MADE KNOWINGLY AND VOLUNTARILY
{¶71} For her seventh assignment of error, Hughes contends that she did not knowingly and voluntarily plead guilty because the record shows that she was unsure if she was guilty of endangering children as set forth in count two of the indictment. She argues that the record shows that she tried to downplay her conduct and claimed that the squats were recommended by a physician and eating hot sauce was something she and the victim regularly did together. The trial court took a recess to allow Hughes to discuss matters with her attorney. Hughes asserts that she was “not comfortable admitting to the statement of facts against her * * * only after the court offers her a recess and she is further questioned by the court, does she eventually acknowledge the statement of facts” contained in the indictment.
{¶72} Hughes also contends that her guilty plea was invalid because she received ineffective assistance of counsel as argued in her sixth assignment of error. However, we have overruled her sixth assignment of error and reject this argument.
{¶73} We conduct a de novo review of the record to determine whether the plea was made knowingly, intelligently, and voluntarily:
“An appellate court determining whether a guilty plea was entered knowingly, intelligently, and voluntarily conducts a de novo review of the record to ensure that the trial court complied with the constitutional and procedural safeguards.” State v. Moore, 4th Dist. Adams No. 13CA965, 2014-Ohio-3024, ¶ 13.
State v. Leonhart, 4th Dist. Washington No. 13CA38, 2014-Ohio-5601, ¶ 36.
B. Hughes‘s Guilty Plea Was Made Knowingly and Voluntarily
{¶74} A guilty plea involves a waiver of constitutional rights and the decision to enter a plea must be knowing, intelligent, and voluntary. State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, ¶ 10, citing Parke v. Raley, 506 U.S. 20, 28-29, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992). If the plea was not made knowingly, intelligently, and voluntarily, enforcement of that plea is unconstitutional. Id.
{¶75} Ohio‘s
{¶76} “When a criminal defendant seeks to have his conviction reversed on appeal, the traditional rule is that he must establish that an error occurred in the trial-court proceedings and that he was prejudiced by that error.” Dangler at ¶ 13;
Properly understood, the questions to be answered are simply: (1) has the trial court complied with the relevant provision of the rule? (2) if
{¶77} The record shows that the trial court properly complied with
{¶78} Even if Hughes believed she was innocent while pleading guilty, it would not require us to set aside her guilty plea. Persons who believe they are innocent, but conclude the evidence is incriminating enough that a jury would find them guilty, may plead guilty with an Alford plea. See State v. Hughes, 4th Dist. Highland No. 20CA2, 2021-Ohio-111. Hughes does not argue that she intended to enter an Alford plea and nothing in the record supports such a finding.
{¶79} We overrule her seventh assignment of error.
X. CONCLUSION
{¶80} We overrule the first, second, third, fifth, sixth and seventh assignments of error and sustain the fourth assignment of error. We affirm the trial court‘s judgment in part, vacate it in part, and remand for further proceedings consistent with this opinion.
JUDGMENT AFFIRMED IN PART AND VACATED IN PART. CAUSE REMANDED.
It is ordered that the JUDGMENT IS AFFIRMED IN PART AND VACATED IN PART. CAUSE REMANDED. Appellant shall pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Adams 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 60 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 60-day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-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 60 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.
Smith, P.J. & Wilkin, J.: Concur in Judgment and Opinion.
For the Court
BY: ____________________________
Michael D. Hess, 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.