State v. SimmonsState v. Simmons
Steven H. Eckstein, for appellant.
O P I N I O N
M. POWELL, J.
{¶ 1} Appellant, Curtis Simmons, appeals his conviction and sentence in the Madison County Court of Common Pleas for aggravated possession of drugs.
{¶ 2} On June 14, 2024, appellant was indicted on one count оf aggravated
{¶ 3} On September 13, 2024, appellant pled guilty to one count of aggravated possession of drugs, a second-degree felony, and the two having weapons while under disability charges and the firearm specification were dismissed. The trial court ordered a presentence-investigative report (“PSI“). At sentencing, thе trial court observed that appellant had a lengthy criminal history dating back to 1997, which included five prior misdemeanor convictions and eight prior felony convictions, that he had been sentenced to prison on three separate occasions, and that only two of six probation periods were successfully terminated. While referring to a 1998 conviction for attempted felonious assault in Franklin County that resulted in a three-year prison term, the trial court observed that,
And when I look at what the Courts have attempted to do, they‘ve tried lots of different approaches. One of those outlier cases in 1998 was a felonious assault that worked its way into an attempted felonious assault.
I don‘t know any of the details of that, but a three-year penitentiary sentence . . . the makeup of the Franklin County judiciary was probably a little different in 1998. But be that as it may, that‘s still an unusual sentence in 1998. I rather suspect there was some damage done such that somebody thought . . . I‘m just speculating. It‘s all I can tell you. There was something that at least caused some judge to think that prison was the answer out of the gate.
You had, really, a fairly light misdemeanor related history prior to that. And so that‘s a pretty heavy shot for your first go-around unless the facts made that seem appropriate. And different judges are going to take different approaches.
{¶ 4} On November 20, 2024, the trial court sentenced appellant to an indefinite prison term of six to nine years. Appellant subsequently moved to withdraw his guilty plea and filed a notice of appeal a few days later. The trial court dismissed appellant‘s motion for lack of jurisdiction due to the pending appeal.
{¶ 5} Appellant now appeals, raising three assignments of error.
Appellant‘s Guilty Plea was Knowingly, Intelligently, and Voluntarily Entered
{¶ 6} Assignment of Error No. 1:
APPELLANT‘S GUILTY PLEA WAS NOT KNOWING, INTELLIGENT, OR VOLUNTARY.
{¶ 7} Appellant argues that his guilty plea was not knowingly, intelligently, or voluntarily made because (1) the trial court failed to inform him during the plea hearing that it could consider his criminal record, including a 20-year-old conviction, in determining the sentence to impose, and (2) he did not have the benefit of a bill of particulars prior to entering his plea.
{¶ 8} “When a defendant enters a guilty plea in a criminal case, the plea must be made knowingly, intеlligently, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution.” State v. Engle, 1996-Ohio-179, ¶ 7. To ensure that a guilty plea to a felony charge is knowing, intelligent, and voluntary, the trial court must engage the defendant in a plea colloquy pursuant to
{¶ 9} Specifically, the “trial court must inform the defendant that he is waiving his
{¶ 10} The Ohio Suprеme Court has addressed a trial court‘s compliance with
{¶ 11} The record shows that the trial court complied with
{¶ 12} As for the bill of particulars that the State never provided to appellant, the record shows that appellant filed a pro se motion requesting the bill of particulars while represented by counsel. “In Ohio, a criminal defendant has the right to representation by counsel or to proceed pro se with the assistance of standby counsel. However, these two rights are independent of each other and may not be asserted simultaneously.” State v. Martin, 2004-Ohio-5471, ¶ 32. In other words, a defendant does not have any right to “hybrid representation,” where the defendant is represented by counsel and simultaneously acts as his own attorney. Id. at ¶ 31. Accordingly, the State was not required to entertain appellant‘s pro se request for a bill of particulars as he was represented by counsel. Furthermore, appellant never identifies how the lack of a bill of particulars rendered his guilty plea less than knowing, intelligent, or voluntary.
{¶ 13} Appellant‘s first assignment of error is overruled.
Appellant Did Not Receive Ineffective Assistance of Counsel
{¶ 14} Assignment of Error No. 2:
THE DEFENDANT WAS DENIED THE EFFECTIVE ASSISTANCE OF TRIAL COUNSEL AS GUARANTEED BY SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION
{¶ 15} Appellant ostensibly argues he received ineffective assistance of counsel during the plea hearing because his trial counsel did not object to going forwаrd with the guilty plea even though appellant did not have the benefit of a bill of particulars and the trial court had failed to inform appellant that it could consider his criminal record in determining the sentence to impose.
{¶ 16} A defendant who pleads guilty waives the right to claim ineffective assistance of counsel, except to the extent that counsel‘s deficient performance caused the plea to be less than knowing and voluntary. State v. Moxley, 2012-Ohio-2572, ¶ 18 (12th Dist.), citing State v. Spates, 1992-Ohio-130.
{¶ 17} To prevail on a claim for ineffective assistance of counsel, a defendant must show that trial counsel‘s performance was deficient, that is, that the performanсe fell below an objective standard of reasonableness, and that the defendant was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 687-688, 694 (1984). In the context of a guilty plea, the “prejudice” requirement focuses on whether counsel‘s constitutionally ineffective performance affected the outcome of the pleа process. Hill v. Lockhart, 474 U.S. 52, 59 (1985). In other words, the defendant must demonstrate there is a reasonable probability that, but for his counsel‘s errors, he would not have pled guilty and would have insisted on going to trial. State v. Byrd, 2022-Ohio-1364, ¶ 10 (12th Dist.). The failure to satisfy either prong of the Strickland test is fatal to an ineffective assistance of counsel claim. Id.
{¶ 18} Appellant has failed to show his attorney‘s performancе was deficient. As discussed under the first assignment of error, the trial court was not required to inform appellant that it would consider his criminal history prior to accepting his guilty plea. Appellant‘s criminal history and failure to respond to prior sanctions are sentencing factors
{¶ 19} Appellant has likewise failed to meet the prejudice prong. Regarding the lack of a bill of particulars, appellant has “failed to demonstrate that his lаck of knowledge concerning the specific facts a bill of particulars would have provided him prejudiced him in his ability to fairly defend himself or evaluate the State‘s plea offer.” State v. Blanton, 2025-Ohio-237, ¶ 47 (4th Dist.). This was not a factually complex case as a law enforcement officer found appellant asleep in his car on a roadway with nearly 28 grams of methamphetamine in his pocket. Moreover, appellant does not allege he would have insisted on going to trial and simply asserts that the prejudice prong is “shown by [his] repeated requests for the bill of particulars” and his “filing a motion to withdraw his guilty plea one week aftеr the sentencing hearing.” However, a defendant “must do more than present ‘post hoc assertions . . . about how he would have pleaded but for his attorney‘s deficiencies.‘” State v. Romero, 2019-Ohio-1839, ¶ 28. “In assessing whether it would be rational for a defendant to go to trial instead of pleading guilty, the court should consider the totality of circumstanсes.” Id. at ¶ 29. Once again, this was not a factually complex case and as a result of appellant pleading guilty to one felony count, the State agreed to dismiss the other two felony counts as well as the firearm specification (and its mandatory three-year prison term).
{¶ 20} Appellant‘s second assignment of error is overruled.
Appellant‘s Sentence Is Not Contrary to Law
THE DEFENDANT-APPELLANT‘S SENTENCE IS CONTRARY TO LAW.
{¶ 22} Appellant argues that his sentenсe is contrary to law because the trial court improperly “used a twenty-year-old conviction“—that is, the 1998 conviction for attempted felonious assault in Franklin County that resulted in a three-year prison term—and speculated as to the conditions surrounding that conviction. Appellant asserts that a 20-year-оld conviction and a court‘s speculation regarding such conviction are not factors listed in
{¶ 23} A felony sentence is reviewed under the standard set forth in
{¶ 24} ”
{¶ 25} Upon reviewing the record, we find that appellant‘s sentence is not contrary to law. Under
{¶ 26} Furthermore, contrary to appеllant‘s assertions, his sentence was not based
{¶ 27} Appellant‘s third assignment of error is overruled.
{¶ 28} Judgment affirmed.
HENDRICKSON, P.J., and PIPER, J., concur.
J U D G M E N T E N T R Y
The assignments of error properly before this court having been ruled upon, it is the order of this court that the judgment or final order appealed from be, and the same hereby is, affirmed.
It is further ordered that a mandate be sent to the Madison County Court of Common Pleas for execution upon this judgment and that a certified copy of this Opinion and Judgment Entry shall constitute the mandate pursuant to
Costs to be taxed in compliance with
/s/ Robert A. Hendrickson, Presiding Judge
/s/ Robin N. Piper, Judge
/s/ Mike Powell, Judge