STATE OF OHIO, MAHONING COUNTY IN THE COURT OF APPEALS SEVENTH DISTRICT STATE OF OHIO, PLAINTIFF-APPELLEE, VS. MARK LETT, DEFENDANT-APPELLANT.
CASE NO. 08-MA-84
SEVENTH DISTRICT
September 1, 2010
2010-Ohio-4188
Hоn. Gene Donofrio, Hon. Cheryl L. Waite, Hon. Mary DeGenaro
CHARACTER OF PROCEEDINGS: Criminal Appeal from Youngstown Municipal Court of Mahoning County, Ohio Case No. 07TRD8037 JUDGMENT: Affirmed
For Plaintiff-Appellee Joseph R. Macejko Youngstown City Prosecutor Bret R. Hartup Senior Assistant Law Director City of Youngstown 26 S. Phelps Strеet Youngstown, Ohio 44503
For Defendant-Appellant Attorney David J. Betras 660 Seville Drive Canfield, Ohio 44406
{¶1} Defendant-appellant, Mark Lett, appeals from a Youngstown Municipal Court judgment convicting him of driving without a valid operator‘s license, following his no contest plea.
{¶2} Aрpellant was stopped by police on October 21, 2007, for failing to use his turn signal when making a turn. He was subsequently charged with driving under FRA suspension, a first-degree misdemeanor in violation of
{¶3} Appellant later entered into a
{¶4} The trial court found appellant guilty and sentenced him to 60 days in jail, one year of probation, and a $200 fine.
{¶5} Appellant filed a timely notiсe of appeal on April 23, 2008. This court originally dismissed the appeal for want of timely prosecution. However, we reopened the appeal on March 18, 2009, on appellant‘s motion. Additionally, while this court originally granted appellant a stay оf his sentence, we lifted that stay on May 27, 2009. Because appellant involuntarily served his sentence, which is likely now complete, his appeal is not moot because he did not voluntarily serve his sentence. See State v. Wolford, 3d Dist. No. 14-07-10, 2007-Ohio-6428, at ¶11. Furthermore, appellant has yet to pay his fine.
{¶6} Appellant raises two assignments of error, thе first of which states:
{¶7} “THE TRIAL COURT ERRED IN ACCEPTING APPELLANT‘S NO CONTEST PLEA WHICH WAS NOT MADE KNOWINGLY, INTELLIGENTLY OR VOLUNTARILY.”
{¶8} Appellant argues here that his plea was not entered knowingly,
{¶9} In this case, appellant entered his no contest plea to a first-degree misdemeanor petty offense. See
{¶10} To meet the requirement of informing a defendant of the effect of a plea, a trial court must inform the defendant of the aрpropriate
{¶11} “With reference to the offense or offenses to which the plea is entered:
{¶12} “(1) The plea of guilty is a complete admission of the defendant‘s guilt.
{¶13} “(2) The plea of no contest is not an admission of defendant‘s guilt, but is an admission of the truth of the faсts alleged in the indictment, information, or complaint, and the plea or admission shall not be used against the defendant in any subsequent civil or criminal proceeding.”
{¶14} Thus, in this case, the trial court was required to inform appellant that the effect of his entering a no contest plea was “an admission of the truth of the facts alleged in the indictment, information, or complaint” and the plea could not later be used against him in any civil or criminal proceedings. The trial court did not do this.
{¶15} The trial court did inform appellant of numerous rights he waived by entering a no contest plea including the rights to a jury trial, to confront his accuser, to cross examine witnesses against him, to subpoena witnesses on his behalf, to remain silent, to raise any defenses, to testify, and to appeal. (Plea Tr. 2). Appellant indicated that he understood that he was waiving all of these rights. (Plea Tr. 3).
{¶17} The failure to comply with informing a defendant of non-constitutional rights, such as the information in
{¶18} Accordingly, we must determine here whether appellant suffered prejudice as a result of the trial court‘s failure to inform him of the effect of his plea. As instructed by the Court, we will look at whether appellant would have otherwise entered the plea.
{¶19} In Jones, the Ohio Supreme Court noted that Jones presented no evidence that at the time he entered his guilty plea to a first-degree misdemeanor, he claimed that he was innocent. Jones, at ¶54. The Court determined that pursuant to Griggs, supra, any error by the trial court in failing to properly inform Jones of the effect of his plea was not prejudicial because Jones did not assert his innocence during the plea colloquy. Id. The Court statеd that Jones was, therefore, presumed to understand the effect of his guilty plea. Id.
{¶20} Likewise, in this case, appellant did not assert his innocence during his plea colloquy. However, at sentencing appellant‘s counsel made the following statement in mitigation of appellant‘s sentence:
{¶21} “On the date in question he was arrested, it has just been brought to my attention -- I may have attempted to assert it as a defense but it was just brought to my attention. He was trying to get his mother her blood pressure medication. She called him and needed to be taken to the hospital, which he did take his mother to the hospital. While en route either there or leaving the hospital that‘s when he was
{¶22} “Now, I don‘t think that necessarily rises to the level of an emergency defense but that‘s what it is.” (Sentencing Tr. 2).
{¶23} But appellant was fаcing three charges and a potential jail sentence of 360 days. Furthermore, appellant‘s counsel noted that appellant has a “horrid history and he will never, ever in his lifetime have his license back.” (Sentencing Tr. 2). Considering these factors, the plea аgreement whereby two charges were dismissed and the remaining charge was amended was a good deal for appellant. We can conclude appellant made an informed decision to enter into the plea agreement.
{¶24} And had the court infоrmed appellant that his plea could not be used against him in any future proceedings, the court would have been informing appellant of yet another benefit of his plea. This additional benefit of appellant‘s no contest plea would serve only as further inducement to enter the plea.
{¶25} Finally, there is no indication that had the trial court informed appellant that a no contest plea is an admission of the facts alleged in the complaint or that his plea could not be used against him in any future proceedings, he would not have entered the plea deal. Notably, when the court informed appellant of the various rights he was waiving, it specifically told him that he was waiving the right to raise “any and all defenses.” (Plea Tr. 2). Appellant indicated that he understood this. (Pleа Tr. 3).
{¶26} For all of these reasons, appellant did not suffer prejudice as a result of the court‘s failure to inform him of the effect of his plea. Accordingly, appellant‘s first assignment of error is without merit.
{¶27} Appellant‘s second assignment of error states:
{¶28} “THE DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL, CONTRARY TO HIS RIGHTS GUARANTEED BY THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I, OF THE OHIO CONSTITUTION.”
{¶29} Appellant asserts here that his counsel was ineffective fоr failing to
{¶30} To prove an allеgation of ineffective assistance of counsel, the appellant must satisfy a two-prong test. First, appellant must establish that counsel‘s performance has fallen below an objective standard of reasonable representation. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052; State v. Bradley (1989), 42 Ohio St.3d 136, at parаgraph two of the syllabus. Second, appellant must demonstrate that he was prejudiced by counsel‘s performance. Id. To show that he has been prejudiced by counsel‘s deficient performance, appellant must prove that, but for counsel‘s errors, the result of the trial would have been different. Bradley, 42 Ohio St.3d at paragraph three of the syllabus.
{¶31} Appellant bears the burden of proof on the issue of counsel‘s effectiveness. State v. Calhoun (1999), 86 Ohio St.3d 279, 289. In Ohio, a licensed attorney is presumed competent. Id.
{¶32} Where the defendant waives his right to trial in the context of a guilty or no contest plea, in asserting a claim of ineffective assistance of counsel, the defendant must demonstrate that, but for his attorney‘s error, he would not have entered his no contest plea and instead would have insisted on going to trial. State v. Barnett, 11th Dist. No. 2006-P-0111, 2007-Ohio-4954, at ¶52. See also Hill v. Lockhart (1985), 474 U.S. 52, 58-59.
{¶33} “A claim that a guilty or no contest plea was induced by ineffective assistance of сounsel must be supported by evidence where the record of the guilty
{¶34} In this case, appellant did not submit any evidence in an attempt to show prejudice. Consequently, appellant cannot show that but for his counsel‘s actions, he would not have entered his no contest plea.
{¶35} Further, appellant contends that his counsel should have raised emergency as a defense under
{¶36} Appellant was initially charged with three violations: (1) driving under financial rеsponsibility law suspension or cancellation in violation of
{¶37} Furthermore, while appellant asserts that he informed his counsel prior to sentencing that the reason he was driving on the day he was stopped was
{¶38} Given the charges appellаnt was facing, and the potential jail sentence of 360 days, counsel‘s efforts in negotiating a plea were reasonable. Furthermore, in sentencing appellant to 60 days, the trial court stated:
{¶39} “It should have been more probably with your history here. Your counsel just being forthwith about your record, you can thank him. It probably made a little difference for you.” (Sentencing Tr. 3).
{¶40} Thus, the trial court found counsel‘s statement in mitigation of appellant‘s sentence persuasive enough that it gave appellant a lesser sentencе than it otherwise may have given him.
{¶41} Based on the above, we cannot conclude that appellant‘s counsel was ineffective or that appellant suffered any prejudice. Accordingly, appellant‘s second assignment of error is without merit.
{¶42} For the reasons stated above, the trial court‘s judgment is hereby affirmed.
Waite, J., concurs.
DeGenaro, J., concurs.