State v. Hawks

2022 Ohio 4137

• Court: Ohio Court of Appeals
• Decided: November 21, 2022
• Docket: CA2021-11-103 & CA2021-11-104
• Status: Published

Opinion

[Cite as State v. Hawks, 2022-Ohio-4137.]

IN THE COURT OF APPEALS

TWELFTH APPELLATE DISTRICT OF OHIO

WARREN COUNTY

STATE OF OHIO, :

Appellee, : CASE NOS. CA2021-11-103 CA2021-11-104 : - vs - OPINION : 11/21/2022

JESSE HAWKS, :

Appellant. :

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case Nos. 21CR37894 and 21CR38472

David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A. Brandt, Assistant Prosecuting Attorney, for appellee.

Craig A. Newburger, for appellant.

BYRNE, J.

{¶1} In this consolidated appeal, Jesse Hawks contends that his defense counsel

provided ineffective assistance of counsel. For the reasons described below, we find that

Hawks has failed to demonstrate ineffective assistance and we affirm Hawks' convictions.

I. Procedural and Factual Background

{¶2} In March 2021, in case number 21CR37894, a Warren County grand jury

indicted Hawks on one count of aggravated possession of drugs in violation of R.C. Warren CA2021-11-103 CA2021-11-104

2925.11(A). The following month, the Warren County Court of Common Pleas appointed

defense counsel to represent Hawks. In May 2021, Hawks moved for intervention in lieu of

conviction pursuant to R.C. 2951.041.

{¶3} While the possession charge was pending, Hawks remained incarcerated at

the Warren County Jail. Hawks requested a medical furlough due to significant medical

needs. On May 24, 2021, the court filed an entry and order granting Hawks' requested

medical furlough. The court ordered Hawks released to Atrium Medical Center and further

ordered that Hawks, upon discharge from Atrium Medical Center, "shall immediately return

to the Warren County Jail." The entry and order indicated that Hawks' failure to return to

the Warren County Jail would result in the filing of escape charges.

{¶4} Three days later, the court issued an order reflecting that Hawks had failed to

return to the Warren County Jail from his medical furlough. The court ordered a capias

warrant be issued.

{¶5} On October 11, 2021, a Warren County grand jury indicted Hawks for one

count of escape, a violation of R.C. 2921.34(A)(1). This indictment occurred in case number

21CR38472—that is, in a second, separate case from case number 21CR37894, the case

involving the possession charge. The state premised the escape charge on the allegations

related to Hawks failing to return to jail from his medical furlough to Atrium Medical Center.

{¶6} The court appointed the same defense counsel who was representing Hawks

on the possession charge to represent Hawks on the escape charge. On October 21, 2021,

the court held a hearing on intervention in lieu of conviction in the possession case and a

pretrial hearing and scheduling conference with respect to the escape charge at the same

time. Hawks appeared at the combined hearing with his defense counsel.

{¶7} At the combined hearing, the court asked Hawks' counsel whether Hawks

-2- Warren CA2021-11-103 CA2021-11-104

would offer a plea on the escape charge. Defense counsel indicated that he did not have

a plea ready yet on the escape charge but that another hearing was scheduled with respect

to the escape charge, six days later, on October 27, 2021. Defense counsel indicated that

it was his hope that they would have a plea ready on the escape charge by then.

{¶8} The court then asked why the parties could not resolve the plea that day.

Defense counsel responded by stating that he and the assistant prosecutor did not "know

much" about the escape charge as a grand jury had just indicted Hawks.

{¶9} The prosecutor then offered, "I believe he was indicted last week and was

arraigned last week. This was a quick set. I was able to complete discovery but I think it

was only on Tuesday. So [defense counsel] likely hasn't had a chance to even review that

yet. So it's a very quick setting in terms of trying to get the escape case resolved." The

court, referring to the previously scheduled upcoming hearing on the escape charge,

responded, "Okay. You can do it on the 27th."

{¶10} Defense counsel then replied: "I mean it doesn't matter. If he [referring to

Hawks] wants to resolve it today, I’m willing to do the plea form with [the assistant

prosecutor] today to try to resolve it today, that's fine. Like I said, [the assistant prosecutor]

and I walked right into this today."

{¶11} The court asked defense counsel if he had talked to Hawks about the offense

and plea. Defense counsel responded,

I was on the previous case [referring to the possession charge]. I know what the allegation is. It's from when he was in the hospital while the other case was pending and it's a walk away from the hospital. So I mean I'm aware of the allegations.

The court then asked Hawks, "Okay. Do you want to get this over today with a plea or do

you want to wait and see what the discovery reveals and let your attorney review this and

discuss it with you?" Hawks responded, "I'd like to resolve all of this today, Your Honor."

-3- Warren CA2021-11-103 CA2021-11-104

{¶12} The court proceeded with the plea hearing. The court, pursuant to Crim.R.

11, informed Hawks of the various rights he was foregoing by pleading guilty, including his

right to a jury trial and the state's burden of proof, the right to confront and compel witnesses,

and the right against self-incrimination. Hawks individually acknowledged those rights and

acknowledged that he understood he was giving up those rights.

{¶13} Hawks pleaded guilty to the possession charge. The court granted Hawks

intervention in lieu of conviction on the possession charge, stayed the possession

proceedings, and placed Hawks under the general supervision of the Adult Probation

Department for three years. Hawks also pleaded guilty to the escape charge. The court

found Hawks guilty of escape and sentenced him to three years of community control.

{¶14} Hawks appealed both his possession charge and his escape charge. This

court sua sponte consolidated the two appeals.

II. Law and Analysis

{¶15} While this is a consolidated appeal arising from both the possession charge

and the escape charge, Hawks' appellate brief only argues and assigns error with respect

to his conviction on the escape charge. Hawks does not assign error with regard to the

possession charge, so we need not analyze that charge further.

{¶16} With respect to the escape charge, Hawks' sole assignment of error states:

{¶17} APPELLANT'S CONVICTION FOR ESCAPE MUST BE REVERSED DUE

TO INEFFECTIVE ASSISTANCE OF COUNSEL.

{¶18} Hawks contends that his defense counsel was ineffective because his counsel

had no knowledge of the state's discovery and therefore could not advise Hawks concerning

that discovery, discuss potential defenses, or consider "sentencing nuances." Hawks

argues that his counsel was deficient by "leaving the decision to [Hawks] to get [his plea]

-4- Warren CA2021-11-103 CA2021-11-104

done today [that is, at the October 21, 2021 hearing], without the benefit of diligent

representation * * *." After our review of the record and the applicable case law we conclude

that Hawks is incorrect.

A. Standard of Review

{¶19} "To establish ineffective assistance of counsel, appellant must show (1)

deficient performance by counsel, that is, performance falling below an objective standard

of reasonable representation, and (2) prejudice, that is, a reasonable probability that but for

counsel's errors, the result of the proceedings would have been different." State v. Taylor,

12th Dist. Fayette No. CA2018-11-021, 2019-Ohio-3437, ¶ 16, citing Strickland v.

Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052 (1984); State v. Mundt, 115 Ohio

St.3d 22, 2007-Ohio-4836, ¶ 62.

{¶20} Regarding the objective standard of reasonable representation, the United

States Supreme Court in Strickland recognized that there are "countless ways to provide

effective assistance in any given case." Id. at 689. Accordingly, "[j]udicial scrutiny of

counsel's performance must be highly deferential." Id. And, "[b]ecause of the difficulties

inherent in making the evaluation, a court must indulge a strong presumption that counsel's

conduct falls within the wide range of reasonable professional assistance* * *." Id.

{¶21} Regarding the prejudice requirement, we have explained that prejudice exists

where there is a reasonable probability that but for counsel's errors, the result of the

proceedings would have been different. Taylor at ¶ 16. In cases in which an appellant

alleges ineffective assistance with regard to a guilty plea, "to show prejudice, the defendant

must demonstrate there is a reasonable probability that, but for his counsel's errors, he

would not have pled guilty and would have insisted on going to trial." State v. Byrd, 12th

Dist. Madison No. CA2021-07-011, 2022-Ohio-1364, ¶ 11, citing State v. Moxley, 12th Dist.

-5- Warren CA2021-11-103 CA2021-11-104

Madison No. CA2011-06-010, 2012-Ohio-2572, ¶ 20; and Lee v. United States, __ U.S. __,

137 S.Ct. 1958, 1965 (2017). The failure to demonstrate either deficient representation or

prejudice is fatal to an ineffective assistance of counsel claim. State v. Kaufhold, 12th Dist.

Butler No. CA2019-09-148, 2020-Ohio-3835, ¶ 54.

B. Analysis of Ineffective Assistance Claim

{¶22} An attorney's failure to review evidence in a case prior to a defendant entering

a plea is ordinarily problematic. See State v. Tribune, 12th Dist. Warren No. CA2016-04-

027, 2017-Ohio-1407, ¶ 9. However, this court will not find deficient performance under

such circumstances where the record supports the conclusion that a defendant entered a

guilty plea entirely on his or her own accord. Id. We have decided two cases in recent

years involving this issue.

{¶23} In Tribune, the defendant's counsel stated during the plea hearing that he had

not reviewed the state's evidence, had explained this to his client, and had suggested

moving to suppress, explaining that the defendant had nothing to lose by doing so. Id. at ¶

8. Nonetheless, defense counsel stated that the defendant had "explained to me that he

felt that he committed the crime and he wants to get it going as quickly as possible. And

that's why we are here." Id. The defendant then pleaded guilty to two counts of OVI. Id.

at ¶ 2-3.

{¶24} We rejected Tribune's claim of ineffective assistance, finding that the record

reflected that the decision to plead was Tribune's decision, was "fully his own, untainted by

ineffective assistance of counsel, and there is no evidence to suggest that [the defendant]

would not have pled guilty under different circumstances." Id. at ¶ 9. We affirmed Tribune's

conviction. Id. at ¶ 12, 27.

{¶25} Second, in State v. Fluhart, 12th Dist. Clermont No. CA2020-12-069, 2021-

-6- Warren CA2021-11-103 CA2021-11-104

Ohio-2153, a trial court accepted the defendant's no contest plea even though the record

reflected that defense counsel had just been appointed and had not yet received discovery.

Id. at ¶ 5-7. Fluhart's counsel explained that the state had not yet provided discovery and

that all she could go on was her discussions with Fluhart and answering any questions that

he had about the plea process. Id. at ¶ 5. The court told Fluhart that he could request more

time to speak with his attorney and the court would provide that time. Fluhart confirmed he

understood but still wished to go forward with the plea agreement. Id. On appeal, Fluhart

argued that his trial counsel provided ineffective assistance by failing to review discovery

and discuss all aspects of the case with him. Id. at ¶ 32.

{¶26} We found that Fluhart's case was like Tribune. Fluhart at ¶ 38. Fluhart

confirmed that he wished to go forward with the plea despite his counsel stating on the

record she had not received discovery and was missing information. We further noted that

the court advised Fluhart that he could use his attorney's services more fully, but Fluhart

instead chose, by his own volition, to go forward with the plea. We found that Fluhart's

decision was fully his own and untainted by ineffective assistance of counsel. Id.

{¶27} Here, Hawks' counsel and the prosecutor both acknowledged during the plea

hearing that defense counsel had not yet had a chance to review the state's discovery.

Hawks' counsel indicated that there was a hearing date coming up in less than one week

and that he would be prepared for a plea at that time. Hawks' counsel noted that he

represented Hawks on a somewhat related offense—that is, the possession charge—and

that he was aware of the allegations regarding escape. The court stated that it would

continue the matter until that later date, thus allowing Hawks' counsel additional time.

Hawks was present for this exchange.

{¶28} The court then asked Hawks if we would rather resolve everything "today"

-7- Warren CA2021-11-103 CA2021-11-104

with a plea or if he would prefer to wait and see what the discovery revealed and discuss it

with his defense counsel before making a plea. Hawks unequivocally responded that he

wanted to resolve it all that day.

{¶29} The prosecutor indicated that he would need a few minutes to prepare a plea

form, and the record reflects that a recess occurred at that point. Upon resuming from that

recess, nothing in the record indicates that Hawks changed his mind or otherwise had any

questions. The record also does not indicate whether Hawks and his counsel conferred

during the recess, nor what they may have discussed. The trial court engaged Hawks in a

Crim.R. 11 colloquy and Hawks indicated his awareness of the rights he was giving up by

pleading guilty, i.e., his right to a jury trial and the state's burden of proof, the right to confront

and compel witnesses, and the right against self-incrimination. After acknowledging these

rights, Hawks stated that it was his intention to plead guilty.

{¶30} Given these facts, the circumstances in this case are substantively like those

in Tribune and Fluhart. Like in those cases, Hawks' counsel openly and candidly discussed

the lack of opportunity to review discovery. The court informed Hawks that it would

postpone proceedings to allow his attorney to review such discovery and to advise him

concerning what the discovery revealed. Hawks declined this offer and stated that it was

his intention to plead guilty. Like in Tribune, Hawks indicated that he wanted the case

resolved as quickly as possible, i.e., "today." Hawks proceeded with the plea hearing

entirely on his own accord and nothing in the record indicates any lack of enthusiasm or

wavering of his intention to enter a guilty plea to the escape charge.

{¶31} In hindsight, Hawks may now wish he had accepted the court's offer to briefly

continue the proceedings to permit him to use his attorney's services more fully, to permit

counsel to review the discovery and then discuss the discovery and potential defenses with

-8- Warren CA2021-11-103 CA2021-11-104

Hawks, or to consider sentencing nuances. However, Hawks refused that opportunity and

was adamant that he wanted to resolve the matter immediately.

{¶32} Based on the foregoing, we find that Hawks' decision to plead guilty to the

escape charge was "fully his own, untainted by ineffective assistance of counsel." Tribune

at ¶ 9. Accord Fluhart at ¶ 38 ("the record reflects that Fluhart was advised that he could

utilize his attorney's services more fully, but instead chose, by his own volition, to go forward

with his no contest pleas"). As a result, Hawks has not demonstrated that his counsel's

performance fell below an objective standard of reasonable representation; this failure is

fatal to his assignment of error without the need to separately consider prejudice. Taylor,

2019-Ohio-3437 at ¶ 16; Kaufhold, 2020-Ohio-3835 at ¶ 54.

{¶33} However, even if Hawks had established deficient performance by his trial

counsel, we would still find that Hawks did not prove ineffective assistance because he also

failed to demonstrate prejudice. As explained above, in cases in which a defendant alleges

ineffective assistance with regard to a guilty plea, "to show prejudice, the defendant must

demonstrate there is a reasonable probability that, but for his counsel's errors, he would not

have pled guilty and would have insisted on going to trial." Byrd, 2022-Ohio-1364 at ¶ 11,

citing Moxley, 2012-Ohio-2572 at ¶ 20; Lee, 137 S.Ct. at 1965. Here, not only did Hawks

not make such a showing, but Hawks did not even attempt to make such a showing.

Instead, Hawks simply stated that he "asks this Court to consider whether the record

supports that this Court should accept the reasonable probability that but for counsel's

deficient performance, there are sufficient grounds to undermine this Court's confidence in

the outcome." He further stated, "Accepting [the] State's uncontested allegations regarding

the F-3 Escape charge, where [Hawks] did not benefit from the advice of competent counsel

makes confidence in the outcome speculative." In other words, rather than making an

-9- Warren CA2021-11-103 CA2021-11-104

argument regarding prejudice, Hawks simply invites the court to search the record to

determine whether he was prejudiced. Because Hawks offers no argument supporting the

prejudice prong of Strickland, he has failed to demonstrate ineffective assistance. State v.

Bey, 85 Ohio St.3d 487, 493 (1999).

{¶34} We overrule Hawks' sole assignment of error.

III. Conclusion

{¶35} Hawks' decision to plead guilty with respect to the escape charge was his

own. His allegations of ineffective assistance are meritless. Hawks makes no further

argument and assigns no error regarding the possession charge.

{¶36} Judgments affirmed.

M. POWELL, P.J., and S. POWELL, J., concur.

- 10 -