STATE OF OHIO, PLAINTIFF-APPELLEE vs. ELLORD WELLS, DEFENDANT-APPELLANT
No. 100365
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
January 28, 2015
[Cite as State v. Wells, 2015-Ohio-297.]
JOURNAL ENTRY AND OPINION; Cuyahoga County Court of Common Pleas Case No. CR-12-568017; Application for Reopening Motion No. 477869
APPLICATION DENIED
Ellord Wells
Inmate No. 642-828, BE.C.I.
P.O. Box 540
St. Clairsville, Ohio 43950
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
By: Scott Zarzycki
Katherine Mullin
Assistant County Prosecutors
Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Ellord Wells has filed a timely application for reopening pursuant to
{¶2} In order to establish a claim of ineffective assistance of appellate counsel, Wells is required to establish that the performance of his appellate counsel was deficient and the deficiency resulted in prejudice. Strickland v. Washington, 466 U.S. 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), cert. denied, 497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 767.
{¶3} In Strickland, the United States Supreme Court held that a court‘s scrutiny of an attorney‘s work must be highly deferential. The court further stated that it is all too tempting for a defendant to second-guess his attorney after conviction and that it would be too easy for a court to conclude that a specific act or omission was deficient, especially when examining the matter in hindsight. Thus, a court must indulge in a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy. Strickland.
{¶4} Herein, Wells raises three proposed assignments of error in support of
{¶5} A guilty plea is a complete admission of the defendant‘s guilt. A counseled plea of guilty, that is voluntarily and knowingly given, removes the issue of factual guilt from the case. State v. Siders, 78 Ohio App.3d 699, 605 N.E.2d 1283 (11th Dist.1992). When a defendant enters a plea of guilty, he waives all appealable errors that might have occurred at trial unless the errors precluded the defendant from entering a knowing and voluntary plea. State v. Barnett, 73 Ohio App.3d 244, 596 N.E.2d 1101 (2d Dist.1991), citing State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991). A plea of guilty even waives the right to claim that a defendant was prejudiced by ineffective counsel, except to any defects that caused the plea to be less than knowing and voluntary. Id. at 249; see also State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48.
{¶6} Through his initial proposed assignment of error, Wells argues that the trial court exhibited judicial bias during the course of sentencing. A review of the hearing of July 1, 2013, fails to demonstrate that the trial court displayed any hostile feelings, spirit of ill will, undue friendship or favoritism toward one of the litigants or attorneys. State v. Dennison, 10th Dist. Franklin No. 12AP-718, 2013-Ohio-5535. In addition, the Supreme Court of Ohio has held that “judicial remarks during the course of trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.” State ex rel. Pratt v. Weygant, 164 Ohio St. 463, 132 N.E.2d 191 (1956). Therefore, we find no prejudice as claimed by Wells‘s first proposed assignment of error.
{¶7} Through his second proposed assignment of error, Wells argues that his plea of
{¶8} The entry of a plea that is voluntary and knowing on the part of the defendant requires that the trial court engage in an oral dialogue with the defendant in compliance with
{¶9} Herein, the transcript of the plea hearing of June 6, 2013, clearly indicates that the trial court fully complied with the mandatory requirements of
{¶10} Specifically, the trial court advised Wells of his constitutional rights, including the right to legal representation, right to a jury trial, the state proving the criminal charges beyond a
{¶11} Wells, through his third proposed assignment of error, argues that trial counsel was ineffective as a result of failing to challenge the indictment. However, Wells has failed to establish that the indictment, that charged him with rape and kidnapping, was defective in any manner. The indictment provided Wells with sufficient notice that he was charged with the offenses of rape and kidnapping. State v. Buehner, 110 Ohio St.3d 403, 2006-Ohio-4707, 853 N.E.2d 1162. It must also be noted that Wells‘s plea of guilty waived all appealable errors that might have occurred at trial with regard to the indictment. State v. Barnett, supra. Therefore, we find no prejudice as claimed by Wells vis-a-vis his third proposed assignments of error.
{¶12} Accordingly, the application for reopening is denied.
FRANK D. CELEBREZZE, JR., ADMINISTRATIVE JUDGE
EILEEN A. GALLAGHER, J., and
MARY EILEEN KILBANE, J., CONCUR