[Cite as State v. Albritton, 2013-Ohio-116.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellate Case No. 25064 Plaintiff-Appellee : : Trial Court Case No. 2011-CR-2955 v. : : TIMOTHY M. ALBRITTON, JR. : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : : ...........
OPINION
Rendered on the 18th day of January, 2013.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0069384, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
WILLIAM T. DALY, Atty. Reg. #0069300, 70 Birch Alley, Suite 240, Dayton, Ohio 45440 Attorney for Defendant-Appellant
.............
FAIN, P.J.
{¶ 1} Defendant-appellant Timothy M. Albritton, Jr., appeals from his conviction 2
and sentence for Gross Sexual Imposition of a child less than thirteen years of age, following a
negotiated plea deal. Albritton contends that he received ineffective assistance of trial
counsel and that the trial court made misstatements of law, which “improperly induced” his
guilty plea. We conclude that Albritton has failed to demonstrate reversible error.
Accordingly, the judgment of the trial court is Affirmed.
I. Course of the Proceedings
{¶ 2} Timothy M. Albritton, Jr. was indicted on one count of Gross Sexual
Imposition of a child less than thirteen years of age, in violation of R.C. 2907.05(A)(4), a
felony of the third degree, and one count of Rape of a child under ten years of age, in
violation of R.C. 2907.02(A)(1)(b), a felony of the first degree. Albritton filed a motion to
suppress evidence obtained as a result of an unlawful seizure. The trial court overruled this
motion. On January 17, 2012, the trial court determined that the child victim was “not
competent for purposes of presenting testimony before the Trial.” Dkt. 24. The State filed a
motion to declare the complaining witness unavailable, and requested a hearing to determine
the admissibility of the complaining witness’s statements under Evid.R. 807.
{¶ 3} While the State’s motion was pending, Albritton pled guilty to Gross Sexual
Imposition of a child less than thirteen years of age, in violation of R.C. 2907.05(A)(4). In
exchange for his guilty plea, the State dismissed the Rape count of the indictment. The trial
court sentenced Albritton to five years in prison and five years of post-release control. The
trial court also found Albritton to be a Tier 2 sex offender as defined in R.C. 2950.01. From
his conviction and sentence, Albritton appeals. 3
II. Albritton’s Guilty Plea Was Knowing and Voluntary and He Failed
to Demonstrate Ineffective Assistance of Trial Counsel
{¶ 4} Albritton identifies the following assignment of error:
INEFFECTIVE ASSISTANCE OF COUNSEL AND MISSTATEMENTS OF
LAW BY THE TRIAL COURT.
{¶ 5} Albritton contends that, during the sentencing hearing, his trial counsel and
the trial court made “diametrically opposed statements” about whether the complaining
witness was competent to testify at trial. According to Albritton:
The appellant being given the wrong standard and procedure with
respect to determining competency by his counsel and also enunciated by the
trial court before sentencing without objection by counsel was sufficient to
improperly induced [sic] the defendant’s plea. The appellant’s plea could not
have been made knowingly. Brief, p. 6.
{¶ 6} Albritton cites pages 71-73 of the transcript from the sentencing hearing in
support of his assignment of error. Pages 71-73 of the transcript provide, in part:
THE COURT: Mr. Pentecost, anything you wanted to add before
sentencing? We’ve had very lengthy discussions about this case. Was there
anything you wanted to add?
MR. PENTECOST: Thank you, Your Honor. Yeah, it’s
for the record, you know, Mr. Albritton appears
before you with a lack of criminal history. 4
This is his first involvement with the Criminal
Justice System. These are certainly unfortunate
circumstances. He did take responsibility for the
acts that he indicated he committed. I
understand the State has submitted a sentencing
memorandum with some additional factual
allegations. However, I remind the Court that as
far as the factual allegations there was significant
– not much reliability of the complaining
witness. The Court made that determination as
well as the grand jury judge at the time found that
victim to be incompetent to testify. * * *
***
THE COURT: Thank you. Mr. Albritton, first of all, I do want to
address something Mr. Pentecost said and that is that I determined that the
child was incompetent as a result of her ago [sic] and competent to testify, but I
did not in any manner determine that the child or her statements were
unreliable as that it wasn’t something appropriate for me to talk with the child
about. So I didn’t pass any judgment on whether that child was reliable or not.
That would have been the jury’s function.
{¶ 7} Albritton contends that his guilty plea was not made knowingly because the
statements made by his trial counsel and the trial court at the sentencing hearing “improperly 5
induced” him to plead guilty. We do not agree. Albritton pled guilty at his January 30, 2012
plea hearing. At that time, he acknowledged on the record that his plea was being entered
voluntarily, intelligently, and knowingly. Tr. 56-66. Also, he signed a valid plea form at
that time that made it clear that his plea was knowing and voluntary. Dkt. 35. Furthermore,
statements made by Albritton’s trial counsel or the trial court at the February 14, 2012
sentencing hearing could not have induced a plea that was entered two weeks earlier, on
January 30, 2012. Therefore, the evidence of record establishes that Albritton’s guilty plea
was knowing, intelligent, and voluntary.
{¶ 8} Albritton next contends that his trial counsel was ineffective by failing to
advise Albritton of the correct legal standards regarding reliability and competency of
witnesses. A claim of ineffective assistance of trial counsel requires both a showing that trial
counsel’s representation fell below an objective standard of reasonableness, and that the
defendant was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). A reviewing court “must indulge in a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at
689. The prejudice prong requires a finding that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different, with a
reasonable probability being “a probability sufficient to undermine confidence in the
outcome.” Id. at 694. See also State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).
{¶ 9} Albritton has failed to demonstrate how his trial counsel’s representation fell
below an objective standard of reasonableness or how he was prejudiced by his trial counsel’s
performance. At the sentencing hearing, trial counsel attempted to convince the trial court to 6
Free access — add to your briefcase to read the full text and ask questions with AI
[Cite as State v. Albritton, 2013-Ohio-116.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
STATE OF OHIO : : Appellate Case No. 25064 Plaintiff-Appellee : : Trial Court Case No. 2011-CR-2955 v. : : TIMOTHY M. ALBRITTON, JR. : (Criminal Appeal from : (Common Pleas Court) Defendant-Appellant : : ...........
OPINION
Rendered on the 18th day of January, 2013.
...........
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0069384, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O. Box 972, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
WILLIAM T. DALY, Atty. Reg. #0069300, 70 Birch Alley, Suite 240, Dayton, Ohio 45440 Attorney for Defendant-Appellant
.............
FAIN, P.J.
{¶ 1} Defendant-appellant Timothy M. Albritton, Jr., appeals from his conviction 2
and sentence for Gross Sexual Imposition of a child less than thirteen years of age, following a
negotiated plea deal. Albritton contends that he received ineffective assistance of trial
counsel and that the trial court made misstatements of law, which “improperly induced” his
guilty plea. We conclude that Albritton has failed to demonstrate reversible error.
Accordingly, the judgment of the trial court is Affirmed.
I. Course of the Proceedings
{¶ 2} Timothy M. Albritton, Jr. was indicted on one count of Gross Sexual
Imposition of a child less than thirteen years of age, in violation of R.C. 2907.05(A)(4), a
felony of the third degree, and one count of Rape of a child under ten years of age, in
violation of R.C. 2907.02(A)(1)(b), a felony of the first degree. Albritton filed a motion to
suppress evidence obtained as a result of an unlawful seizure. The trial court overruled this
motion. On January 17, 2012, the trial court determined that the child victim was “not
competent for purposes of presenting testimony before the Trial.” Dkt. 24. The State filed a
motion to declare the complaining witness unavailable, and requested a hearing to determine
the admissibility of the complaining witness’s statements under Evid.R. 807.
{¶ 3} While the State’s motion was pending, Albritton pled guilty to Gross Sexual
Imposition of a child less than thirteen years of age, in violation of R.C. 2907.05(A)(4). In
exchange for his guilty plea, the State dismissed the Rape count of the indictment. The trial
court sentenced Albritton to five years in prison and five years of post-release control. The
trial court also found Albritton to be a Tier 2 sex offender as defined in R.C. 2950.01. From
his conviction and sentence, Albritton appeals. 3
II. Albritton’s Guilty Plea Was Knowing and Voluntary and He Failed
to Demonstrate Ineffective Assistance of Trial Counsel
{¶ 4} Albritton identifies the following assignment of error:
INEFFECTIVE ASSISTANCE OF COUNSEL AND MISSTATEMENTS OF
LAW BY THE TRIAL COURT.
{¶ 5} Albritton contends that, during the sentencing hearing, his trial counsel and
the trial court made “diametrically opposed statements” about whether the complaining
witness was competent to testify at trial. According to Albritton:
The appellant being given the wrong standard and procedure with
respect to determining competency by his counsel and also enunciated by the
trial court before sentencing without objection by counsel was sufficient to
improperly induced [sic] the defendant’s plea. The appellant’s plea could not
have been made knowingly. Brief, p. 6.
{¶ 6} Albritton cites pages 71-73 of the transcript from the sentencing hearing in
support of his assignment of error. Pages 71-73 of the transcript provide, in part:
THE COURT: Mr. Pentecost, anything you wanted to add before
sentencing? We’ve had very lengthy discussions about this case. Was there
anything you wanted to add?
MR. PENTECOST: Thank you, Your Honor. Yeah, it’s
for the record, you know, Mr. Albritton appears
before you with a lack of criminal history. 4
This is his first involvement with the Criminal
Justice System. These are certainly unfortunate
circumstances. He did take responsibility for the
acts that he indicated he committed. I
understand the State has submitted a sentencing
memorandum with some additional factual
allegations. However, I remind the Court that as
far as the factual allegations there was significant
– not much reliability of the complaining
witness. The Court made that determination as
well as the grand jury judge at the time found that
victim to be incompetent to testify. * * *
***
THE COURT: Thank you. Mr. Albritton, first of all, I do want to
address something Mr. Pentecost said and that is that I determined that the
child was incompetent as a result of her ago [sic] and competent to testify, but I
did not in any manner determine that the child or her statements were
unreliable as that it wasn’t something appropriate for me to talk with the child
about. So I didn’t pass any judgment on whether that child was reliable or not.
That would have been the jury’s function.
{¶ 7} Albritton contends that his guilty plea was not made knowingly because the
statements made by his trial counsel and the trial court at the sentencing hearing “improperly 5
induced” him to plead guilty. We do not agree. Albritton pled guilty at his January 30, 2012
plea hearing. At that time, he acknowledged on the record that his plea was being entered
voluntarily, intelligently, and knowingly. Tr. 56-66. Also, he signed a valid plea form at
that time that made it clear that his plea was knowing and voluntary. Dkt. 35. Furthermore,
statements made by Albritton’s trial counsel or the trial court at the February 14, 2012
sentencing hearing could not have induced a plea that was entered two weeks earlier, on
January 30, 2012. Therefore, the evidence of record establishes that Albritton’s guilty plea
was knowing, intelligent, and voluntary.
{¶ 8} Albritton next contends that his trial counsel was ineffective by failing to
advise Albritton of the correct legal standards regarding reliability and competency of
witnesses. A claim of ineffective assistance of trial counsel requires both a showing that trial
counsel’s representation fell below an objective standard of reasonableness, and that the
defendant was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). A reviewing court “must indulge in a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at
689. The prejudice prong requires a finding that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different, with a
reasonable probability being “a probability sufficient to undermine confidence in the
outcome.” Id. at 694. See also State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).
{¶ 9} Albritton has failed to demonstrate how his trial counsel’s representation fell
below an objective standard of reasonableness or how he was prejudiced by his trial counsel’s
performance. At the sentencing hearing, trial counsel attempted to convince the trial court to 6
give Albritton a lesser sentence because the complaining witness was incompetent to testify at
trial and was unreliable. The trial court correctly pointed out that being found incompetent to
testify is different from the child’s out-of-court statements being found to be unreliable.
There is no evidence in the record that trial counsel provided incorrect legal advice to
Albritton or that Albritton relied on such advice when he decided to enter a guilty plea.
Furthermore, we do not find that trial counsel’s attempts to convince the trial court to impose
a lesser sentence on Albritton constitutes ineffective assistance of counsel.
{¶ 10} Albritton’s sole assignment of error is overruled.
III. Conclusion
{¶ 11} Albritton’s sole assignment of error having been overruled, the judgment of
the trial court is Affirmed.
DONOVAN and HALL, JJ., concur.
Copies mailed to:
Mathias H. Heck Andrew T. French William T. Daly Hon. Mary K. Huffman