[Cite as State v. Tims, 2011-Ohio-3329.]
IN THE COURT OF APPEALS FOR CHAMPAIGN COUNTY, OHIO
STATE OF OHIO :
Plaintiff-Appellee : C.A. CASE NO. 2010 CA 24
v. : T.C. NO. 10CR76
MARK A. TIMS : (Criminal appeal from
Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 1st day of July , 2011.
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NICK A. SELVAGGIO, Atty. Reg. No. 0055607, 200 North Main Street, Urbana, Ohio
43078
Attorney for Plaintiff-Appellee
MARK J. BAMBERGER, Atty. Reg. No. 0082053, 8 S. Third Street, Tipp City, Ohio 45371
Attorney for Defendant-Appellant
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FROELICH, J.
{¶ 1} Defendant-appellant Mark Tims appeals from his convictions and sentence
for four counts of tampering with coin machines, and one count each of vandalism and
possession of criminal tools. For the following reasons, we affirm the judgment of the trial
court.
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I
{¶ 2} On May 6, 2010, Tims was indicted on five counts each of tampering with
coin machines and possession of criminal tools, and one count each of vandalism and
receiving stolen property, all felonies of the fifth degree. On June 21, 2010, he was also
charged by bill of information with two additional counts of tampering with coin machines,
both felonies of the fifth degree. On the same day, Tims pled guilty to four counts of
tampering with a coin machine, and one count each of vandalism and possession of criminal
tools; the remaining charges were dismissed. He was sentenced appropriately. Tims
appeals.
II
{¶ 3} Tims’s Second Assignment of Error:
{¶ 4} “THE TRIAL COURT ERRED WHEN IT FAILED TO CONSIDER
DURESS AND/OR COERCION OF THE DEFENDANT-APPELLANT.”
{¶ 5} Tims’s First Assignment of Error:
{¶ 6} “THE TRIAL COURT ERRED WHEN IT ALLOWED THE JUDGMENT
TO BE RENDERED UPON INEFFECTIVE ASSISTANCE OF COUNSEL.”
{¶ 7} Tims’s two assignments of error are interrelated. In both, Tims argues that
trial counsel was ineffective, first for failing to argue diminished capacity and drug
dependency on Tims’s behalf, and second, for allowing him to plead guilty. Tims also
insists that his pleas were not knowingly, intelligently, and voluntarily made.
{¶ 8} A defendant who pleads guilty is precluded from claiming ineffective
assistance of counsel, except to the extent that the alleged defects caused the plea to have
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been less than knowingly, intelligently, and voluntarily made. State v. Moore, Clark App.
No. 2010 CA 55, 2010-Ohio-6226, ¶19; State v. Barnett (1991), 73 Ohio App.3d 244, 249.
In order to prevail on a claim of ineffective assistance of counsel, the defendant must show
both deficient performance and resulting prejudice. Strickland v. Washington (1984), 466
U.S. 668, 104 S.Ct. 2052. Trial counsel is entitled to a strong presumption that his conduct
falls within the wide range of effective assistance, and to show deficiency the defendant
must demonstrate that counsel’s representation fell below an objective standard of
reasonableness. Id.
{¶ 9} Much of Tims’s argument centers on his assertion that he has a limited
mental capacity. This claim is not supported by the record. To the contrary, Tims was able
to communicate clearly with the trial court, answering questions appropriately and asking
relevant questions of the court. This is especially evident in the protracted discussion with
the court at both the plea and sentencing hearings when the court was making exemplary
efforts to find housing and assistance for Tims.
{¶ 10} Tims maintains that “counsel apparently did not discuss in full detail (or was
unable to make the Defendant-Appellant comprehend) the seriousness of not opposing the
charges presented against him.” To the contrary, the record demonstrates that counsel
secured a very favorable plea agreement for Tims. In exchange for Tims’s guilty pleas to
six of the counts, the State agreed to dismiss eight other counts. Furthermore, despite
Tims’s lengthy and substantial criminal history and his previous terms of imprisonment, the
State agreed not to contest community control sanctions, which the trial court ordered.
{¶ 11} Furthermore, although Tims repeatedly cites to personal communications
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between himself and his appellate attorney in support of this claim, these communications
are not part of the appellate record before us and cannot be considered on appeal. State v.
Bethel, 110 Ohio St.3d 426, 2006-Ohio-4853, ¶168.
{¶ 12} In Boykin v. Alabama (1969), 395 U.S. 238, 242-43, 89 S.Ct. 1709, the
United States Supreme Court held that in order for a reviewing court to determine whether a
guilty plea was voluntary, the record must show that the defendant knowingly, intelligently,
and voluntarily waived his constitutional rights. See also, State v. Nero (1990), 56 Ohio
St.3d 106, 107. As a result, Crim.R. 11(C) was adopted to ensure an adequate record for
review in order to facilitate a more accurate determination of the voluntariness of a
defendant’s plea. Id.
{¶ 13} Crim.R. 11(C)(2) requires the trial court to personally inform a defendant of
the constitutional guarantees that he waives by entering a guilty plea. That section also
demands that the trial court ensure that the defendant understands the nature of the charges
against him, the maximum penalty that he faces, and whether he is eligible for probation. A
defendant who claims that his plea was not knowingly, intelligently, and voluntarily made
must show a prejudicial effect. Nero, supra, at 108. In other words, “[t]he test is whether
the plea would have otherwise been made.” Id., citations omitted.
{¶ 14} The record demonstrates that Tims was afforded a full and proper Crim.R. 11
hearing at the time of his plea.
{¶ 15} Tims affirmed that he was not under the influence of illegal or prescriptions
drugs or alcohol at the time of his plea. Tims acknowledged that he had discussed the
charges and possible defenses with his attorney. Tims told the trial court that he had no
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defense to any of the charges, and he agreed that he had received sufficient information to
make an informed decision. Tims stated that he was “definitely” satisfied with his
attorney’s representation.
{¶ 16} The trial court informed Tims of the maximum penalties for his crimes, even
clarifying the difference between consecutive and concurrent sentences. The court
explained community control, judicial release, and post-release control. Additionally, the
court concluded that Tims understood the constitutional rights that he would be giving up by
pleading guilty.
{¶ 17} The record indicates that the court recessed for Tims to discuss the plea form
with his attorney. Tims understood the form; and he signed it. Moreover, Tims
affirmatively stated that he was not coerced or forced to enter the plea. Nobody threatened
him, and nobody made any promises to him beyond the agreement with the State to dismiss
most of the charges and for the State not to object to community control sanctions.
{¶ 18} Tims has failed to show that his plea would not have been entered had the
trial court handled the plea hearing differently. To the contrary, the record supports a
finding that his plea was knowingly, voluntarily, and intelligently entered in order to avoid
facing the eight additional charges and to increase the likelihood of receiving community
control sanctions.
{¶ 19} Tims’s first and second assignments of error are overruled.
III
{¶ 20} Having overruled both of Tims’s assignments of error, the judgment of the
trial court is Affirmed.
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FAIN, J. and HALL, J., concur.
Copies mailed to:
Nick A. Selvaggio
Mark J. Bamberger
Hon. Roger B. Wilson