STATE OF OHIO v. PATRICK ILLING
APPEAL NO. C-220166
IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO
November 30, 2022
[Cite as State v. Illing, 2022-Ohio-4266.]
TRIAL NO. B-2104768
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: November 30, 2022
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Mary Stier, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Rubenstein & Thurman, L.P.A., and Scott A. Rubenstein, for Defendant-Appellant.
{¶1} Defendant-appellant Patrick Illing appeals the trial court‘s judgment, arguing that (1) his plea was not made knowingly, intelligently, and voluntarily, (2) he received the ineffective assistance of counsel, and (3) the trial court‘s sentence was not supported by the record. We affirm the trial court‘s judgment.
I. Facts and Procedure
{¶2} Illing was indicted for rape under
{¶3} The court engaged in the
{¶4} The court asked Illing if anyone had made promises or threats that would induce or force him to plead. He responded, “No, sir.” The court stated, “Do you understand that there‘s no promise of a particular sentence, and the Court could
The trial court sentenced Illing
{¶5} Illing asked for the court‘s “leniency” and “mercy,” requesting a period of probation and home incarceration and noting that “the Ohio legislature codified this offense not to have a presumption of prison for a reason.” Illing argued that he should not be subject to prison time as he had no criminal record, was fully cooperative with police, had made a full confession, and “felt extreme remorse.”
{¶6} Illing told the court that he runs a successful business where his employees described him as a “great boss” that they “deeply care about” and were “also joining in our request for probation.” Illing had engaged in therapy “[b]efore [the parties] reached this plea agreement,” which he “was doing all * * * on his own” despite “facing mandatory time” to address the sexual abuse that Illing had “suffered from as a child” and his “self-coping mechanisms.” Illing said that his sons could attest that Illing‘s therapy had “affected their entire family for the better.” Illing admitted that he reached out to N.R. during the pendency of the case and said it was inappropriate to do so.
{¶7} Detective Ruwe, who investigated the case, stated that, although Illing was cooperative, it did not “change what happened.” Ruwe emphasized that Illing not only recorded the act, but also retained the recording and still shots of it on his phone “over a year later,” which told Ruwe that “he didn‘t want to get rid of it.” Ruwe stated, “Yes, once we arrested him, he wanted to get rid of it, but by then it was a little too late. There were other pictures on his phone that were disturbing. He enjoyed taking pictures of [his employees], and not full-body photos, just certain areas * * * employees
{¶8} N.R.‘s grandmother stated that N.R. had tried to commit suicide after discovering that he had been sexually assaulted. She added that N.R. had been bullied at school before and abused by his previous stepfather. She further stated that N.R. trusted Illing and now has to deal with the effects of this emotional and physical abuse “for the rest of his life also.”
{¶9} N.R. did not address the court. The state explained that Illing was in a position of trust to N.R. because he was N.R.‘s employer and the father of N.R.‘s friend. The state reported that N.R. had gone to sleep in Illing‘s basement when Illing assaulted him. The state echoed Detective Ruwe‘s statements regarding “multiple other photos on the iPad or iPhone that were troubling.”
{¶10} The court explained to Illing the purposes and principles of sentencing, stating that it is to “protect the public from future crime, to punish the defendant, but also to promote the effective rehabilitation of the defendant” by using minimum sanctions to accomplish the statute‘s purposes. The court found that, while Illing had no criminal record, it had to look at the seriousness factors in
{¶11} The court pointed to the “position of trust” that Illing had with N.R. and that Illing had recorded the act and kept the recording for more than a year. It stated that the victim-impact statement reflected that Illing had groomed N.R., and
II. Law and Analysis
A. Illing‘s plea was made knowingly, intelligently, and voluntarily
{¶12} To determine whether a plea was entered knowingly, intelligently, and voluntarily, “an appellate court examines the totality of the circumstances through a de novo review of the record.” State v. Foster, 2018-Ohio-4006, 121 N.E.3d 76 (1st Dist.), quoting State v. Tutt, 2015-Ohio-5145, 54 N.E.3d 619, ¶ 13 (8th Dist.).
{¶13}
{¶14} A trial court must strictly comply with the constitutional notifications contained in
{¶15} A trial court must substantially comply with the nonconstitutional notifications required by
{¶16} In his first assignment of error, Illing argues that the trial court erred by accepting his plea where it was based on counsel‘s assurance that Illing would receive probation. This argument is without merit. The court advised Illing of the sentence that he was facing, asked him if he understood the terms of the sentence, and asked whether he had been promised anything or threatened into pleading. Illing stated that he understood the sentence and that he had not been promised anything or threatened to make the plea.
{¶17} The trial court substantially complied with
B. Illing received the effective assistance of counsel.
{¶18} A defendant who pleads guilty waives all appealable issues, including the right to assert an ineffective-assistance-of-counsel claim, except that the defendant may claim ineffective assistance of counsel on the basis that counsel‘s deficient performance caused the plea to be less than knowing, intelligent, and voluntary. State v. Miller, 5th Dist. Stark No. 2019CA00046, 2019-Ohio-4275, ¶ 13. In such a case, a defendant may prevail only by demonstrating that there is a reasonable probability that, but for counsel‘s deficient performance, he would not have pled guilty and would have insisted on going to trial. (Citations omitted.) Id.
{¶19} “To warrant reversal, ‘[t]he defendant must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.‘” State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373, (1989), quoting Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
{¶20} The appropriate remedy for allegations of ineffective assistance of counsel based on facts in the record is an appeal from the verdict. State v. Mallory, 8th Dist. Cuyahoga No. 49389, 1985 Ohio App. LEXIS 7256, *2 (Oct. 3, 1985). In an ineffective-assistance-of-counsel claim, an appellant must show (1) that counsel‘s performance was deficient, and (2) that the deficient performance prejudiced the defense, thereby depriving the appellant of a fair trial. Strickland at 687. “A defendant‘s failure to satisfy one prong of the Strickland test negates a court‘s need to
{¶21} In Illing‘s second assignment of error, he argues that he received ineffective assistance of counsel where counsel allegedly advised Illing that probation was guaranteed. Illing does not argue on appeal that there is a reasonable probability that he would not have pled guilty but for this alleged promise. Instead, he merely states that his counsel “cause[d] substantial prejudice” without further explanation or showing how the outcome would have been different but for counsel‘s alleged deficiency.
{¶22} Moreover, the record is devoid of evidence, testimony, or filings suggesting that Illing pled guilty based on the alleged promise. As such discussions were not a part of the record, and cannot be added to the record on appeal, Illing cannot demonstrate that his counsel‘s performance was deficient. We overrule Illing‘s second assignment of error.
C. The trial court‘s sentence was proper
{¶23} Illing‘s third assignment of error argues that the trial court imposed his prison sentence without properly considering the purposes and principles of sentencing or any of the factors set forth in
{¶24} We review criminal sentences under
{¶25} In State v. Jones, 163 Ohio St.3d 242, 2020-Ohio-6729, 169 N.E.3d 649, the Ohio Supreme Court held, ”
{¶26}
{¶27} The trial court imposed the 24-month sentence after considering Illing‘s actions and the impact that his actions had on the victim and the community. The court explained the principles and purposes of sentencing in detail to Illing. Further, the court generally acknowledged counsel‘s arguments in favor of probation over prison but imposed its sentence after “looking at the seriousness factors in
{¶28} The court further stated that Illing “held a position of trust” and “of authority,” which was a “relationship with the victim that facilitated the offense.” Further, the victim-impact statement indicated that Illing “had groomed the victim, shows the requisite mental intent to commit the act.” The court also noted that, although Illing was a sexual-abuse survivor, he “knew better” than to perpetrate the offense on another person who will “carry it with him his whole life.”
{¶29} Illing has not shown that the trial court failed to consider the statutory factors. And under Jones, this court is not permitted to substitute its judgment for that of the trial court “concerning the sentence that best reflects compliance with
III. Conclusion
{¶30} Illing made his plea knowingly, intelligently, and voluntarily. The trial court substantially complied with
Judgment affirmed.
Crouse, P.J., and Winkler, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
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