State v. Bird

692 N.E.2d 1013, 81 Ohio St. 3d 582, 1998 Ohio LEXIS 1203

Opinions

Francis E. Sweeney, Sr., J.

After his probation was revoked, appellant filed a delayed appeal challenging the trial court’s acceptance of. his no contest plea and the effectiveness of his attorney. For the following reasons, we find appellant’s contentions meritless. Accordingly, we affirm the judgment of the court of appeals.

First, appellant finds fault with the trial court’s acceptance of his no contest plea. Appellant contends that the indictment was insufficient to charge him with the offense of felonious assault with a deadly weapon because it failed to establish the existence of essential elements of the crime, i.e., that saliva is a deadly weapon, and that appellant knowingly caused or attempted to cause the officer physical harm. However, we find that by pleading no contest to the indictment, appellant is foreclosed from challenging the factual merits of the underlying charge.

According to Crim.R. 11(B)(2), a no contest plea is “not an admission of defendant’s guilt, but is an admission of the truth of the facts alleged in the indictment * * *.” Therefore, we have held that where the indictment, information, or complaint contains sufficient allegations to state a felony offense and the defendant pleads no contest, the court must find the defendant guilty of the charged offense. State ex rel. Stern v. Mascio (1996), 75 Ohio St.3d 422, 425, 662 N.E.2d 370, 373.

If there had been a trial, the state would have had to prove beyond a reasonable doubt all elements of the indictment, including that appellant’s saliva is a deadly weapon and that appellant knowingly caused or attempted to cause the officer physical harm. However, with a no contest plea, the state was relieved of these obligations. The state only had to allege sufficient facts to charge a violation for R.C. 2903.11. See Mascio, 75 Ohio St.3d at 425, 662 N.E.2d at 373. The state fulfilled its obligations.

The indictment charged that “Jimmy Lee Bird * * * on or about the 2nd day of October * * * in violation of section 2903.11 of the Revised Code, did knowingly cause or attempt to cause physical harm to Officer Shirk by means of a deadly weapon, to wit: spit and/or saliva * * R.C. 2903.11(A)(2) defines “felonious assault” as to “knowingly * * * [c]ause or attempt to cause physical harm to another * * * by means of a deadly weapon * * *, as defined in section 2923.11 of the Revised Code.” “Deadly weapon” is defined in R.C. 2923.11(A) as “any instrument, device, or thing capable of inflicting death, and designed or specially adapted for use as a weapon, or possessed, carried, or used as a weapon.” The indictment language mirrors the statutory language found in R.C. 2903.11. Thus, it is sufficient to charge an offense. Crim.R. 7(B).

It is unnecessary to decide whether the human immunodeficiency virus may be communicated through saliva and whether saliva may be considered a deadly weapon. By pleading no contest, appellant admitted the truth of the allegations in the indictment.

Appellant also argues that he was denied effective assistance of counsel because his attorney did not file a motion to dismiss the indictment or assert the defense that saliva is not a deadly weapon and did not secure expert testimony on this point.

To prevail on this ground, appellant must meet the test for ineffective assistance of counsel established in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, as applied to the plea process in Hill v. Lockhart (1985), 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203. See State v. Xie (1992), 62 Ohio St.3d 521, 584 N.E.2d 715. First, appellant must show that counsel’s performance was deficient. Strickland, 466 .U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; Xie, 62 Ohio St.3d at 524, 584 N.E.2d at 717. Second, appellant must show that there is a reasonable probability that, but for counsel’s errors, he would not have entered his plea. Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; Xie, 62 Ohio St.3d at 524, 584 N.E.2d at 717. Because of the inherent difficulties in making the first determination, a court must indulge in a strong presumption that the challenged action might be considered sound trial strategy. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694-695. Thus, judicial scrutiny of counsel’s performance must be highly deferential. Id. at 689, 104 S.Ct. at 2065, 80 L.Ed.2d at 694.

The record indicates that defense counsel was aware of the HIV transmission issue. Two months prior to the trial date, defense counsel filed a motion requesting permission to take a videotape deposition of a doctor. While the court did not allow the videotape deposition, it did grant an order for expert witness fees. The filing of the motion shows that defense counsel was taking affirmative steps to develop this defense.

Moreover, it is possible that defense counsel’s discovery was sufficient to convince him that a plea bargain was the best trial tactic in the case. The prosecutor recommended probation, which would have allowed appellant’s immediate release. While the court did not accept the recommendation, it granted appellant’s motion for super shock probation, which was supported by the prosecutor. If the case had gone to trial, it is unlikely that the state would have recommended probation or supported the super shock probation. See Alabama v. Smith (1989), 490 U.S. 794, 802-803, 109 S.Ct. 2201, 2206, 104 L.Ed.2d 865, 875 (the state’s interests support a practice of more lenient sentences in plea cases). Moreover, because of the identity of the victim, the state could have indicted appellant on the more serious charge of felonious assault on a police officer.

Appellant has shown neither deficient performance nor prejudice. Under these facts, we cannot find that' appellant was denied the effective assistance of counsel.

Accordingly, we affirm the judgment of the court of appeals.

Judgment affirmed.

Moyer, C.J., Douglas, Resnick, Cook and Lundberg Stratton, JJ., concur. Pfeifer, J., dissents.