State v. LindseyState v. Lindsey
Steven H. Eckstein, Washington Court House, Ohio for appellant.1
Nicole Tipton Coil, Washington County Prosecuting Attorney, and Joseph P. Derkin, Assistant Prosecuting Attorney, Marietta, Ohio, for appellee.
CRIMINAL APPEAL FROM COMMON PLEAS COURT
{¶1} This is an appeal from a Washington County Common Pleas Court judgment of conviction and sentence. Devin Lindsey, defendant below and appellant herein, pleaded guilty to various charges, including rape, receiving stolen property, unlawful sexual conduct with a minor and tampering with evidence.
{¶2} Appellant now assigns the following errors for review:
FIRST ASSIGNMENT OF ERROR:
“DEFENDANT-APPELLANT‘S GUILTY PLEA WAS OBTAINED IN VIOLATION OF THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION AND
CRIM.R. 11(C) .”SECOND ASSIGNMENT OF ERROR:
“DEFENDANT-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.”
{¶3} On October 2, 2019, in Case Number 20CA27 (Trial Court Case Number (TC) 19CR332), a Washington County Grand Jury returned an indictment that charged appellant with (1) one count of receiving stolen property, in violation of
{¶4} On November 6, 2019, in Case Number 20CA26 (TC 19CR456), a Washington County Grand Jury returned an indictment that charged appellant with one count of rape, in violation of
{¶5} On November 21, 2019, in Case Number 20CA28 (TC 19CR475),
{¶6} On January 22, 2020, in Case Number 20CA29 (TC 20CR45), a Washington County Grand Jury returned an indictment that charged appellant with tampering with evidence in violation of
{¶8} Subsequently, this court granted appellant‘s motion for delayed appeal.
I.
{¶9} In his first assignment of error, appellant asserts that his guilty pleas should be invalidated because the trial court did not strictly comply with
{¶10} “‘When a defendant enters a plea in a criminal case, the
{¶11} When appellate courts evaluate whether a defendant knowingly, intelligently, and voluntarily entered a guilty plea, a court must independently review the record to ensure that the trial court complied with the
{¶12} Pursuant to
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant‘s favor, and to require the state to prove the defendant‘s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.
Therefore, before a court accepts a guilty plea, a “court must
{¶13} The purpose of
{¶14} Additionally, a defendant who seeks to invalidate a plea
{¶15} In the case sub judice, appellant asserts that the trial court failed to fully comply with
THE COURT: I have in front of me a written plea of guilty that deals with all four cases with an agreed resolution, an agreed disposition. It‘s our intention to go through the plea and the sentencing and the sex offender registration form today.
Attorney Blakeslee, did you - - and I‘m going to include Attorney Fowler with you - - did the two of you go through the written plea of guilty with Mr. Lindsey before he signed it?
MR. BLAKESLEE: Yes, Your Honor.
THE COURT: Did you answer all of his questions and concerns as they relate to all four of the cases and the ultimate disposition of all four cases? MR. BLAKESLEE: We did.
THE COURT: Did you consider during your representation whether it would be appropriate to file a motion to suppress in any of the cases and so advise your client?
MR. BLAKESLEE: Yes.
THE COURT: Attorney Fowler, without going back through them, do you concur that, at least in the case that you represented him, you went through the plea with him, you advised him and answered questions, considered whether a motion to suppress would be appropriate, and - - and addressed all that with your client?
MR. FOWLER: Yes, I did, Your Honor.
THE COURT: Mr. Lindsey, can you read and write?
THE DEFENDANT: Yes, sir.
THE COURT: You heard the attorneys say that they‘d gone through this plea with you before you * * * signed it. Did they do that?
THE DEFENDANT: Yes, sir.
THE COURT: Did they answer your questions?
THE DEFENDANT: Yes, sir.
THE COURT: And you understand what we‘re doing here today. Is - - is there anything about the plea or the proceeding that you don‘t understand?
THE DEFENDANT: No, sir. I understand everything.
{¶16} We believe that the foregoing exchange reveals that, consistent with
{¶17} After our review, and based on the totality of the circumstances, we believe that the trial court sufficiently complied with the
{¶18} Accordingly, based upon the foregoing reasons we overrule appellant‘s first assignment of error.
II.
{¶19} In his second assignment of error, appellant asserts that
{¶20} To prevail on a claim of ineffective assistance of counsel, an appellant must establish that (1) counsel rendered a deficient performance that fell below an objective standard of reasonable representation, and (2) counsel‘s deficient performance resulted in prejudice, or, in other words, a reasonable probability exists that but for counsel‘s errors, the outcome of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, ¶ 62; State v. Day,
{¶21} Appellee first observes that in view of the fact that appellant pleaded guilty, appellee did not need to submit evidence or otherwise prove its case. Therefore, appellee reasons, even if we assume, for purposes of argument, that counsel rendered a deficient performance, appellant nevertheless cannot show prejudice or, in other words, no reasonable probability exists that but for counsel‘s errors the outcome of the proceeding would have been
{¶22} In the case sub judice, the prosecution and appellant‘s attorneys negotiated a plea agreement. Pursuant to that agreement (1) appellant received concurrent sentences less than the maximum sentences, and (2) appellee dismissed multiple (11) other counts of the indictments. Thus, it appears that appellant‘s counsel strongly advocated on his behalf with the resulting plea agreement. See State v. Collins, 4th Dist. Lawrence No. 18CA11, 2019-Ohio-3428, at ¶ 20. Moreover, appellant‘s guilty plea represents his acknowledgment of guilt. Appellant‘s concern that DNA identification evidence, in the range of 82 to 92 percent, while ignoring other evidence including, inter alia, video evidence, victim identifications, cell phone material and social media information, does not arguably undermine the strength of the evidence that the prosecution amassed during the preparation phrase of this proceeding, and does not undermine trial counsels’ representation of appellant.
{¶23} Therefore, because appellant cannot establish prejudice, we overrule appellant‘s second assignment of error and affirm the
JUDGMENT AFFIRMED.
It is ordered that the judgment be affirmed. Appellee shall recover of appellant the costs herein taxed.
The Court finds reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the Washington County Common Pleas Court 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 the 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 that mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Hess, J.: Concur in Judgment & Opinion
For the Court
BY:___________________________
Peter B. Abele, 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. tance.