STATE OF OHIO, PLAINTIFF-APPELLEE vs. ANGEL JONES, DEFENDANT-APPELLANT
No. 94607
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
April 21, 2011
2011-Ohio-1918
Cooney, J., Kilbane, A.J., and Keough, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case Nos. CR-525895 and CR-524898
JUDGMENT: AFFIRMED
Christopher R. Lenahan
2035 Crocker Road
Westlake, Ohio 44145
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Brian D. Kraft
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
COLLEEN CONWAY COONEY, J.:
{¶ 1} Defendant-appellant, Angel Jones (Jones), appeals her drug possession and theft convictions. Finding no merit to the appeal, we affirm.
{¶ 2} In June 2009, Jones was indicted on two counts of drug possession (Case No.
{¶ 3} In September 2009, Jones pled guilty to one count of drug possession and one count of theft. The remaining counts were nolled. She was sentenced to one year in prison on each count, to run consecutively, for a total of two years in prison.
{¶ 4} Jones has filed a delayed appeal, raising two assignments of error.
Plea
{¶ 5} In her first assignment of error, Jones argues that her guilty plea violates the mandates of
{¶ 6} Before accepting a guilty plea, a trial court must strictly comply with
{¶ 7} However, some compliance with the rule with respect to postrelease control prompts a substantial-compliance analysis and the corresponding prejudice analysis. Id. at ¶23; see, also, State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶32 (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.).
{¶ 8} In order to substantially comply with
THE COURT: If it is a prison sentence then it is six months, seven months, eight months, nine months, to a maximum of twelve months in the reformatory the Court can sentence you to. You have to serve virtually every day of the number of months the Court chooses for you. There is hardly any good time credit.
When you get out of prison, you are not done yet because you are subject to supervision by the Parole Board, up to three years. That is called post-release control. If they choose to supervise you coming out of prison then you have to do what they say. If you don‘t, they can extend the period of time they supervise you, change the terms and conditions of your supervision, or they could return you to prison.
(Emphasis added.)
{¶ 10} The record shows that trial court properly advised Jones of the maximum penalty allowed. The trial court‘s comment regarding good time credit does not constitute a violation of
{¶ 11} The transcript also illustrates that the court informed Jones that she was subject to three years of postrelease control after serving her prison sentence. Although the court did not expressly state that the three-year term of postrelease control was discretionary, the court stated that she would be subject to postrelease control if they choose to supervise you. This statement properly indicates that postrelease control supervision is within the sound discretion of the parole board.
{¶ 12} It is clear that the trial court substantially complied with the requirements of
{¶ 13} In her second assignment of error, Jones contends that her counsel was ineffective in failing to file a motion to transfer her case to the mental health docket at the outset of the case.
{¶ 14} To reverse a conviction for ineffective assistance of counsel, the defendant must prove (1) that counsel‘s performance fell below an objective standard of reasonableness, and (2) that counsel‘s deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome of the proceeding. State v. Madrigal, 87 Ohio St.3d 378, 388-389, 2000-Ohio-448, 721 N.E.2d 52, citing Strickland v. Washington (1984), 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674.
{¶ 15} As to the second element of the test, the defendant must establish that there exists a reasonable probability that, were it not for counsel‘s errors, the result of the trial would have been different. State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph three of the syllabus; Strickland at 686. In evaluating whether a petitioner has been denied effective assistance of counsel, the Ohio Supreme Court held that the test is whether the accused, under all the circumstances, had a fair trial and substantial justice was done. State v. Hester (1976), 45 Ohio St.2d 71, 341 N.E.2d 304, paragraph four of the syllabus.
{¶ 17} We note that a defendant who pleads guilty is generally limited on appeal; the defendant may only attack the voluntary, knowing, and intelligent nature of the plea, and may not raise independent claims relating to the deprivation of constitutional rights that occurred prior to pleading guilty. See State v. Clay, Cuyahoga App. Nos. 89339-89341, 2008-Ohio-314; State v. Sadowsky, Cuyahoga App. Nos. 90696 and 91796, 2009-Ohio-341. [A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann [v. Richardson (1970), 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763]. State v. Spates (1992), 64 Ohio St.3d 269, 272, 595 N.E.2d 351, quoting Brady v. United States (1970), 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747.
{¶ 19} Jones was referred to the court psychiatric clinic for an evaluation after arraignment. The report found that Jones suffered from depression, psychosis, and the use of Phencyclidine. However, the report concluded that she was competent to stand trial and was sane at the time of the alleged acts. The report did not diagnose her with a severe mental illness with a psychotic feature. Therefore, it is not clear that she was eligible for assignment to the mental health docket. Therefore, counsel‘s failure to file a motion to transfer the case to the mental health docket does not fall below an objective standard of reasonable representation.
{¶ 20} Accordingly, the second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
COLLEEN CONWAY COONEY, JUDGE
MARY EILEEN KILBANE, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR