State v. VaughnState v. Vaughn
For Plaintiff-Appellee: RAMONA FRANCESCONI-ROGERS, Ashland County Prosecutor, 110 Cottage Street, Ashland, OH 44805
For Defendant-Appellant: ERIN N. POPLAR, ERIN POPLAR LAW, LLC, 1636 Eagle Way, Ashland, OH 44805
{1} On or about February 26, 2010, appellant, Sabrina J. Vaughn, was indicted on one count of Trafficking in Heroin in violation of
{2} On April 21, 2011, appellant changed her plea to the count of Trafficking from not guilty to guilty. The count of Complicity to Trafficking was dismissed. Appellant was sentenced on June 3, 2011 and appellant‘s sentencing entry was filed June 6, 2011.
{3} Appellant timely appeals raising as her sole assignment of error1,
{4} “I. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO CONSTITUTION BECAUSE HER COURT-APPOINTED COUNSEL FAILED TO REQUEST INDEPENDENT LABORATORY TESTING OF ALLEGED HEROIN.”
I.
{5} A claim of ineffective assistance of counsel requires a two-prong analysis. The first inquiry is whether counsel‘s performance fell below an objective standard of reasonable representation involving a substantial violation of any of defense counsel‘s essential duties to appellant. The second prong is whether the appellant was prejudiced
{6} In order to warrant a finding that trial counsel was ineffective, the petitioner must meet both the deficient performance and prejudice prongs of Strickland and Bradley. Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 251(2009).
{7} To show deficient performance, appellant must establish that “counsel‘s representation fell below an objective standard of reasonableness.” Strickland v. Washington, 466 U.S. at 688, 104 S.Ct. at 2064. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Strickland v. Washington 466 U.S. at 687, 104 S.Ct. at 2064. Counsel also has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process. Strickland v. Washington 466 U.S. at 688, 104 S.Ct. 2052 at 2065.
{8} “Thus, a court deciding an actual ineffectiveness claim must judge the reasonableness of counsel‘s challenged conduct on the facts of the particular case, viewed as of the time of counsel‘s conduct. A convicted defendant making a claim of ineffective assistance must identify the acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment. The court must then determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. In making that determination, the court should keep in mind that counsel‘s function, as elaborated in
{9} In light of “the variety of circumstances faced by defense counsel [and] the range of legitimate decisions regarding how best to represent a criminal defendant,” the performance inquiry necessarily turns on “whether counsel‘s assistance was reasonable considering all the circumstances.” Strickland v. Washington, 466 U.S. 668 at 689, 104 S.Ct. at 2064. At all points, “[j]udicial scrutiny of counsel‘s performance must be highly deferential.” Strickland v. Washington, 466 U.S. 668 at 689, 104 S.Ct. at 2064.
{10} Appellant must further demonstrate that he suffered prejudice from his counsel‘s performance. See Strickland, 466 U.S. at 691, 104 S.Ct. 2066 (“An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment“). To establish prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. at 694. To prevail on his ineffective-assistance claim, appellant must show, therefore, that there is a “reasonable probability” that the trier of fact would not have found him guilty.
{11} Challenges to guilty pleas based on allegations of ineffective assistance of counsel during the plea process are evaluated under the same two-pronged cause and
{12} In this case, appellant entered a plea of guilty as part of a plea agreement. By entering a plea of guilty, the accused is not simply stating that she did the discrete acts described in the indictment; she is admitting guilt of a substantive crime. United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927(1989). The guilty plea renders irrelevant those constitutional violations not logically inconsistent with the valid establishment of factual guilt and which do not stand in the way of conviction if factual guilt is validly established. Menna v. New York (1975), 423 U.S. 61, 96 S.Ct. 241, 46 L.Ed.2d 195, n. 2. Thus, when a defendant enters a plea of guilty as a part of a plea bargain she waives all appealable errors, unless such errors are shown to have precluded the defendant from entering a knowing and voluntary plea. State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658(1991); State v. Barnett, 73 Ohio App.3d 244, 249, 596 N.E.2d 1101 (2nd Dist. 1991); see, also, State v. Wotring, 11th Dist. No. L-99-114, 2003-Ohio-326, 2003 WL 168225, ¶ 22, appeal denied (2003), 99 Ohio St.3d 1452, 790 N.E.2d 1217.
{14}
{16} The state did not destroy or consume the entire amount of the substances making it impossible for appellant to have an independent analysis. There is no evidence in the record before this Court that an independent test would destroy the substance, or that an insufficient amount of substance is available for testing. Thus, there is no reason for this Court to find that trial counsel‘s representation of appellant was ineffective for failing to request an independent analysis of the substances. Failure to request such an analysis is a tactical decision. “Debatable trial tactics do not establish ineffective assistance of counsel.” State v. Hoffner (2004), 102 Ohio St.3d 358, 365, 2004-Ohio-3430, ¶ 45.
{17} When it comes to enhancing the penalty, the Supreme Court has stated that the statutory hierarchy of penalties based upon the identity and amount of the drug presupposes that a detectable amount of a controlled substance is present within the substance before the penalty enhancement applies. State v. Chandler, 109 Ohio St. 3d 223, 846 N.E. 2d 1234, 2006-Ohio-2285, ¶ 18. In that case, the defendants pretended to sell crack but actually delivered only baking soda. They were convicted of drug trafficking and received the highest penalty enhancement for offering to sell more than 100 grams of crack cocaine. Id. at ¶ 19, 846 N.E. 2d 1234.
{19} “Undoubtedly, a person can be convicted for offering to sell a controlled substance in violation of
{20} “For purposes of
{21} No actual transfer of the drugs must occur in order for a violation of
{22} Because appellant could be convicted for selling or offering to sell a controlled substance even if the substance is not recovered and even if the substance turns out not to be a controlled substance, appellant cannot demonstrate prejudice from counsel‘s failure to request an independent analysis of the substances. State v. Scott, supra at syllabus. See, Garr v. Warden, Madison Corr. Inst. at ¶28 (where defendant offered to sell a drug that was not recovered the offender may be convicted of an MDO specification in a properly proven case). We do not believe that testing of the
{23} Appellant‘s First Assignment of Error is overruled.
{24} The judgment of the Court of Common Pleas, Ashland County, Ohio is affirmed.
By Gwin, J.,
Delaney, P.J., and
Hoffman, J., concur
HON. W. SCOTT GWIN
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN
HON. W. SCOTT GWIN
HON. PATRICIA A. DELANEY
HON. WILLIAM B. HOFFMAN