[Cite as State v. Blevins, 2016-Ohio-8382.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
OTTAWA COUNTY
State of Ohio Court of Appeals No. OT-16-013
Appellee Trial Court No. 16 CR 015
v.
Arron Blevins DECISION AND JUDGMENT
Appellant Decided: December 23, 2016
*****
Mark E. Mulligan, Ottawa County Prosecuting Attorney, and
Joseph H. Gerber, Assistant Prosecuting Attorney, for appellee.
Amanda A. Krzystan, for appellant.
*****
SINGER, J.
{¶ 1} Appellant, Arron Blevins, appeals the April 8, 2016 judgment of the Ottawa
County Court of Common Pleas convicting him of rape in violation of R.C.
2907.02(A)(2), a felony of the first degree. Finding no error on record, we affirm.
Assignments of Error
{¶ 2} Appellant sets forth the following assignments of error:
1. THE TRIAL COURT ERRED IN ACCEPTING APPELLANT’S
WAIVER OF THE RIGHT TO A JURY TRIAL AS VOLUNTARY,
KNOWING AND INTELLIGENT DURING APPELLANT’S PLEA
CHANGE.
2. THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE
OF COUNSEL DURING HIS PLEA NEGOTIATIONS, PLEA CHANGE
AND SENTENCING.
Background Facts
{¶ 3} Appellant was watching his ex-fiancé’s children and, while bathing them,
digitally penetrated an 11 month old. Appellant confessed to these facts, and also stated
he was using cannabis, heroin and crack cocaine during the incident.
{¶ 4} Appellant was indicted on two counts in case No. 15 CR 079. Count 1 was
for rape in violation of R.C. 2907.02(A)(1)(b), a felony of the first degree that carries a
term of life imprisonment. Count 2 was for tampering with evidence in violation of R.C.
2921.12(A)(1), a felony of the third degree. Appellant initially pled not guilty.
{¶ 5} On February 12, 2016, appellant changed his plea and, by way of
information in case No. 16 CR 015, pled guilty to rape in violation of R.C.
2907.02(A)(2), a felony of the first degree.
2.
{¶ 6} At the February 12, 2016 change-plea hearing, appellant was informed of the
effect of, and the rights waived by, his guilty plea. Appellant confessed to the rape and
confirmed he understood his plea, including waived rights and possible sanctions. He
also confirmed he was clear minded and offered his plea free of coercion.
{¶ 7} On April 8, 2016, the court proceeded to sentence appellant to 11 years
incarceration and 5 years mandatory postrelease control, along with a requirement that
appellant register as a Tier III sex offender. The sentence was journalized and appellant
now appeals.
Assignment of Error No. 1
{¶ 8} In the first assignment of error, appellant makes three arguments that attack
his guilty plea. We will address each of appellant’s arguments, as numbered below.
Appellant’s Charge
{¶ 9} R.C. 2907.02(A)(2) pertinently provides no person shall engage in sexual
conduct with another when the offender purposely compels the other person to submit by
force or threat of force.
1.
{¶ 10} Appellant first argues his plea was invalid because the trial court failed to
advise him about the effect of waiving a jury trial on his chances of reversing his
sentence. Appellee contends appellant cites no legal support and appellant is
nevertheless incorrect where the trial court fully complied with Crim.R. 11.
3.
{¶ 11} Crim.R. 11 states in pertinent part:
(A) Pleas. A defendant may plead not guilty, not guilty by reason of
insanity, guilty or, with the consent of the court, no contest.* * *
(B) Effect of guilty or no contest pleas. With reference to the
offense or offenses to which the plea is entered: (1) The plea of guilty is a
complete admission of the defendant’s guilt. * * *
(3) When a plea of guilty or no contest is accepted pursuant to this
rule, the court, * * * shall proceed with sentencing under Crim.R. 32.
(C) Pleas of guilty and no contest in felony cases. * * * (2) In
felony cases the court may refuse to accept a plea of guilty or a plea of no
contest, and shall not accept a plea of guilty or no contest without first
addressing the defendant personally and doing all of the following:
(a) Determining that the defendant is making the plea voluntarily,
with understanding of the nature of the charges and of the maximum
penalty involved, and, if applicable, that the defendant is not eligible for
probation or for the imposition of community control sanctions at the
sentencing hearing.
(b) Informing the defendant of and determining that the defendant
understands the effect of the plea of guilty or no contest, and that the court,
upon acceptance of the plea, may proceed with judgment and sentence.
4.
(c) Informing the defendant and determining that the defendant
understands that by the plea the defendant is waiving the rights to jury trial,
to confront witnesses against him or her, to have compulsory process for
obtaining witnesses in the defendant’s favor, and to require the state to
prove the defendant’s guilt beyond a reasonable doubt at a trial at which the
defendant cannot be compelled to testify against himself or herself.
{¶ 12} Here, we find the trial court fully complied with Crim.R. 11 and,
particularly, with Crim.R. 11(C)(2)(c). See State v. Ballard, 66 Ohio St.2d 473, 480, 423
N.E.2d 115 (1981) (holding the record must only show right to jury trial explained in
intelligible manner during plea colloquy). Appellant’s signed plea agreement stated:
I enter a plea of GUILTY to the offense of: Count #ONE: Rape, a
felony of the first degree (F1), Ohio Revised Code Section 2907.02(A)(2).
I understand the MAXIMUM sentence COULD be: a maximum basic
prison term of eleven (11) years of which none is mandatory, during which
I am eligible for judicial release.
* * * I understand the nature of these charges and the possible
defenses I might have. I am satisfied with my attorney’s advice, counsel
and competence. I am not now under the influence of drugs or alcohol. No
threats have been made to me. No promises have been made except as part
of this plea agreement: The State will dismiss Case No. 15-CR-079 at
sentencing.
5.
* * * I understand by pleading guilty, I give up my right to a jury
trial or court trial, where I could see and have my attorney question
witnesses against me, and where I could use the power of the Court to call
witnesses to testify for me. I know at trial I would not have to take the
witness stand and could not be forced to testify against myself and that no
one could comment if I chose not to testify. I understand I waive my right
to have the prosecutor prove my guilt beyond a reasonable doubt.
By pleading guilty, I admit committing the offense and will tell the
Court the facts and circumstances of my guilt.
{¶ 13} The record further reveals the court complied with Crim.R. 11 colloquy,
which insured appellant was aware of his constitutional rights and the consequences of
his plea.
{¶ 14} Specifically, at the plea hearing, appellant was questioned regarding his
understanding of the nature of the charge, was informed with regard to the maximum
penalty, and was informed of not being amenable to community control sanction.
{¶ 15} Further, the court informed appellant and confirmed his understanding of
the effects of his guilty plea with regard to waiver of his right to jury trial, to confront
witnesses, to have compulsory process, to no self-incrimination, and to require proof of
the crime beyond a reasonable doubt. Appellant actually stated the terms and effects of
his plea agreement in open court in response to the court inquiring into his understanding.
6.
{¶ 16} Thus, the record amply supports the necessary colloquy was given, the trial
court lawfully accepted the plea, and the trial court correctly proceeded to sentencing.
Appellant’s first argument has no merit.
2.
{¶ 17} Appellant next argues he could not have pled knowingly where he was
unaware of the lack of factual basis for the rape. Appellee assets appellant knew of the
evidence against him and waived any factual challenges by pleading guilty.
{¶ 18} “A plea of guilty, from an early period in the history of criminal procedure,
* * * has been regarded as an admission of every material fact well pleaded in the
indictment, dispensing with the necessity of proving them, and authorizing the court to
proceed to judgment.” (Emphasis added.) Craig v. State, 49 Ohio St. 415, 418, 30 N.E.
1120 (1892). See State v. Post, 32 Ohio St.3d 380, 387, 513 N.E.2d 754 (1987)
(“Crim.R. 11 does not require the trial court to establish a factual basis for the plea before
its acceptance.”).
{¶ 19} Here, appellant lawfully entered into a plea agreement, which, in effect,
eliminated his opportunity to challenge the lack of factual basis. Moreover, based on the
facts as confessed to in open court, we find there was a factual basis for the rape on
record. At the plea hearing, appellant stated: “I was watching my ex-fiancé’s kids and I
was proceeding to give them a bubble bath, and I stuck my middle finger in [the victim’s]
vaginal area for a short period of time.”
7.
{¶ 20} Considering the plea and confession, we find it proper to regard appellant’s
plea as a complete admission of guilt. Appellant’s second argument has no merit.
3.
{¶ 21} Appellant lastly argues he could not have intelligently pled because he was
not feeling well when he made the plea. Appellee asserts appellant was not coerced, was
thinking clearly, and was feeling fine when making the accepted plea.
{¶ 22} “A defendant is presumed to be competent to stand trial, unless the court
finds by a preponderance of the evidence that because of the defendant’s present mental
condition, he is incapable of understanding the nature and objective of the proceedings
against him or cannot assist in his defense.” See, e.g., State v. Jones, 1st Dist. Hamilton
No. C-050112, 2006-Ohio-2339, ¶ 12 (denying plea was unknowingly made because
appellant was competent to stand trial).
{¶ 23} Here, appellant entered into an unambiguous and clearly written plea
agreement, was given Crim.R. 11 colloquy before he pled and at the time he pled guilty
and, therefore, nothing leads us to conclude he was incompetent. Further, at the plea
hearing, the court specifically asked if appellant was free from coercion or duress, was
thinking clearly, and was feeling well, all to which he responded in the affirmative. And
lastly, there is no evidence the trial court considered appellant incompetent during the
hearing.
{¶ 24} Accordingly, appellant’s arguments have no merit and his first assignment
of error is not well-taken.
8.
Assignment of Error No. 2
{¶ 25} In the second assignment of error, appellant argues he was deprived
effective assistance because his counsel misguided him into entering a guilty plea when
the factual basis for his guilt did not support the charge. Appellee contends appellant’s
counsel advised competently and there was no violation of duties or resulting prejudice.
{¶ 26} In evaluating ineffective assistance of counsel claims, the test is “whether
the accused, under all the circumstances, * * * had a fair trial and substantial justice was
done.” State v. Hester, 45 Ohio St.2d 71, 341 N.E.2d 304 (1976), paragraph four of the
syllabus; see also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). A court must determine whether there has been a substantial
violation of any of defense counsel’s essential duties to her client and whether the
defense was prejudiced by counsel’s ineffectiveness. State v. Calhoun, 86 Ohio St.3d
279, 289, 714 N.E.2d 905 (1999). To show prejudice, the defendant must prove “that
there exists a reasonable probability that, were it not for counsel’s errors, the result * * *
would have been different.” State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989),
paragraph three of the syllabus.
{¶ 27} “Upon the entry of a guilty plea, a defendant waives any and all appealable
errors that might have occurred during the trial court proceedings, unless he or she
demonstrates that the alleged errors precluded him or her from entering a knowing,
voluntary plea.” State v. Kocian, 6th Dist. Ottawa No. OT-07-018, 2008-Ohio-74, ¶ 8.
9.
{¶ 28} Here, appellant asserts that the only evidence supporting the conviction was
his open court confession and, therefore, his counsel’s advice to enter the plea was a
substantial violation of essential duties.
{¶ 29} Appellant points to how the record reveals that at the sentencing hearing
the state spoke of weaknesses with regard to his case. Specifically, the state said there
was no DNA found inside the victim, appellant’s out of court confession was not
recorded, appellant made contradictory statements while investigated, appellant was
never Mirandized before confessing, and that there was no witness to corroborate the
crime. However, based on the record, we find that appellant’s plea was strategic and
tactical. See State v. Tipton, 11th Dist. Portage No. 2012-P-0072, 2013-Ohio-3207, ¶ 30
(“It is well settled that strategic and tactical decisions do not constitute a deprivation of
the effective assistance of counsel.”).
{¶ 30} In terms of evidence against appellant, the record supports that the
11-month-old victim was abused in secret, the victim’s injuries were documented,
appellant was accused of the heinous acts, and appellant’s contradictory story was that a
young child was the culprit. We find this evidence supports appellant’s guilt. Thus,
coupled with the fact that appellant was risking life imprisonment if he proceeded to trial,
we find counsel advised competently. Consequently, we cannot say counsel’s judgment
precluded appellant from entering a knowing, voluntary plea.
{¶ 31} Accordingly, the second assignment of error is not well-taken.
10.
Conclusion
{¶ 32} The judgment of the Ottawa County Court of Common Pleas is affirmed.
Appellant is ordered to pay the costs of this appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________
JUDGE
Stephen A. Yarbrough, J.
_______________________________
James D. Jensen, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
11.
State v. Blevins
Combined Opinion