State v. SzakacsState v. Szakacs
JOURNAL ENTRY AND OPINION
STATE OF OHIO, PLAINTIFF-APPELLEE vs. KELLY SZAKACS, DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-505704
BEFORE: Cooney, A.J., Gallagher, J., and Stewart, J.
RELEASED: October 15, 2009
JOURNALIZED:
Michael J. Gordillo
1370 Ontario Street
2000 Standard Building
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Katherine Mullin
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
N.B. This entry is an announcement of the court‘s decision. See
{¶ 1} Defendant-appellant, Kelly Szakacs (“Szakacs“), appeals her conviction stemming from her guilty plea. Finding no merit to the appeal, we affirm.
{¶ 2} In January 2008, Szakacs was charged with four counts of child endangering.1 Pursuant to a plea agreement, Szakacs pled guilty to one count of child endangering in violation of
{¶ 3} Szakacs now appeals, raising two assignments of error for our review. In the first assignment of error, she argues that the trial court erred in instructing her on postrelease control during her plea hearing. In the second assignment of error, she argues that trial counsel was ineffective for failing to request a psychological exam and that she be placed on the mental health docket.
{¶ 4} Initially, we note that Szakacs pled guilty to child endangering. A defendant who pleads guilty is generally limited on appeal—the defendant may only attack the voluntary, knowing, and intelligent nature of the plea,
{¶ 5}
{¶ 6} “Substantial compliance means that under the totality of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving.” Nero at 108, 564 N.E.2d 474, citing State v. Stewart (1977), 51 Ohio St.2d 86, 364 N.E.2d 1163. “[I]f it appears from the record that the defendant appreciated the effect of his plea and his waiver of rights in spite of the trial court‘s error, there is still substantial compliance.” Caplinger at 572, citing Nero. “Furthermore, a defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect.” Nero at 108, citing Stewart;
Postrelease Control
{¶ 7} Szakacs does not attack the voluntary, knowing, and intelligent nature of her plea; rather she argues that the trial court erred when it stated that the parole authority could punish her if she committed a felony while on parole. She asks that her sentence be vacated because the parole authority cannot impose statutory sanctions in addition to the penalties imposed by the trial court.
{¶ 9} In the instant case, the trial court advised Szakacs at her guilty plea hearing that she would be subject to three years of postrelease control. If she failed to follow the parole authority‘s rules, she could be sent back to prison for up to half of her sentence term. The trial court also advised that the rules of postrelease control require her to report to a parole officer. If she failed to report, the court advised that the “parole authority can punish you for that and send you back to prison and you‘re subject to being indicted on a separate felony called escape. The judge who gets that new felony indictment can also punish you with more time on top of or consecutive to the time the parole authority gave you for the very same thing, not reporting.”
{¶ 10}
{¶ 11} Here, the trial court advised Szakacs she is subject to three years of postrelease control. The court also advised that should she commit a felony while on postrelease control, she could be subject to punishment by the parole authority and the court “who gets the new indictment.” Based on the
{¶ 12} Therefore, the first assignment of error is overruled.
Ineffective Assistance of Counsel
{¶ 13} Szakacs also argues that trial counsel was ineffective for failing to request a psychological exam and that she be placed on the mental health docket.
{¶ 14} In Ohio, a properly licensed attorney is presumed competent. Vaughn v. Maxwell (1965), 2 Ohio St.2d 299, 209 N.E.2d 164. To determine whether counsel was ineffective, the burden is on the defendant to establish that counsel‘s performance fell below an objective standard of reasonable representation and prejudiced the defense. State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraph two of the syllabus; Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.
{¶ 15} It is well-established that a guilty plea waives the right to claim the defendant was prejudiced by the ineffective assistance of counsel, except to the extent that the defects complained of caused the plea to be less than knowing and voluntary. State v. King, Cuyahoga App. No. 91909, 2009-Ohio-4551, citing State v. Caldwell (Aug. 13, 2001), Butler App. No. CA99-08-144. Thus, to prove a claim of ineffective assistance of counsel with a guilty plea, Szakacs must demonstrate that there is a reasonable
{¶ 16} In the instant case, Szakacs does not argue that her plea was less than knowing and voluntary because of counsel‘s errors; rather she claims that ample evidence in the record demonstrates that she suffers from a mental illness.2 She claims that there is a strong probability that her mental condition would have been considered a mitigating factor in sentencing.
{¶ 17} Szakacs‘s argument is speculative at best. The record before us fails to support her contention that the trial court would have imposed a lesser sentence had it obtained and reviewed a psychological evaluation. See State v. Pempton, Cuyahoga App. No. 80255, 2002-Ohio-5831 (holding that defense counsel‘s failure to request a psychiatric evaluation of defendant prior to sentencing did not constitute ineffective assistance).
{¶ 18} Moreover, there is not enough evidence in the record to demonstrate that a psychological evaluation was needed.
{¶ 19} Because Szakacs failed to demonstrate that “counsel‘s errors” caused her plea to be less than knowing and voluntary, we find counsel was not ineffective for failing to request that her case be placed on the mental health docket. Therefore, the second assignment of error is overruled.
Judgment is affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
_________________________________________________________
COLLEEN CONWAY COONEY, ADMINISTRATIVE JUDGE
SEAN C. GALLAGHER, J., and
MELODY J. STEWART, J., CONCUR