State v. Hughes

2021 Ohio 3127

Opinion

[Cite as State v. Hughes, 2021-Ohio-3127.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT ADAMS COUNTY

STATE OF OHIO, : Case No. 21CA1127

Plaintiff-Appellee, :

v. : DECISION AND JUDGMENT ENTRY KRISTINA HUGHES, :

Defendant-Appellant. : RELEASED 9/01/2021 ______________________________________________________________________ APPEARANCES:

Brian T. Goldberg, Schuh & Goldberg, LLP, Cincinnati, Ohio, for appellant.

David Kelley, Adams County Prosecutor, Mark R. Weaver and Ryan M. Stubenrauch, Adams County Assistant Prosecutors, West Union, Ohio, for appellee. ______________________________________________________________________ Hess, J.

{¶1} Kristina Hughes appeals her conviction for felonious assault and

endangering children. In her first assignment of error, Hughes contends that the trial

court erred when it failed to merge her felonious assault and endangering children

offenses for purposes of sentencing. However, her conduct constituting felonious

assault was committed separately from her conduct constituting endangering children

and resulted in different identifiable harms. Thus, she failed to establish that R.C.

2941.25 prohibits multiple punishments for these two offenses. We reject her merger

argument.

{¶2} In her second and third assignments of error, Hughes asserts the trial

court erred by improperly sentencing her to consecutive prison terms and imposing the

maximum prison sentence for felonious assault. We overrule her second assignment of Adams App. No. 21CA1127 2

error and affirm the trial court’s imposition of consecutive sentences pursuant to R.C.

2929.14(C)(4)(b). The record supports the trial court’s finding because the harm to the

victim was sufficiently severe and Hughes’s conduct was exceptionally egregious.

Hughes has failed to establish by clear and convincing evidence that the consecutive

sentence is contrary to law or not supported by the record.

{¶3} We also overrule her third assignment of error contesting her maximum

sentence for felonious assault. Hughes does not ask us to review whether the record

supports the trial court’s findings under R.C. 2953.08(G)(2)(a), but instead asks us to

review the trial court’s findings as they relate to the seriousness of the physical harm

she caused the victim – a finding under R.C. 2929.12(B)(2). We have no authority to

review the record to determine whether it supports the trial court’s findings under R.C.

2929.12 or to modify or vacate the sentence on this ground.

{¶4} In her fourth assignment of error, Hughes contends that the trial court

erred in issuing a no-contact order in addition to her prison term. She argues that a no-

contact order is a community control sanction and cannot be imposed where a prison

term has been imposed for the same offense. The state poses an interesting and novel

argument that the Marsy’s Law amendment to the Ohio Constitution now permits the

trial court to impose a no-contact order concurrent with a prison term. The state

contends that Marsy’s Law provides an exception to the existing Ohio Supreme Court

case law which prohibits the imposition of community control sanctions and a prison

term for the same offense. However, we find that the trial court’s order was not imposed

under Marsy’s Law so it has no application here. We decline the state’s invitation to

wade into these unchartered waters. Under existing case law, the trial court erred when Adams App. No. 21CA1127 3

it imposed a no-contact order and a prison term for the same felony offense. We sustain

Hughes’s fourth assignment of error, vacate the no-contact order, and remand for the

trial court to issue a corrected sentencing entry that removes references to that order.

{¶5} For her fifth assignment of error, Hughes contends that the Reagan

Tokes Act is unconstitutional, and the trial court erred by sentencing her under that Act.

However, we find that Hughes’s constitutional challenge is not ripe for review. Hughes

has not yet been subject to the application of the provisions, has not served her

minimum time, and therefore has not been denied release at the expiration of her

minimum term of incarceration. We overrule her fifth assignment of error.

{¶6} In her sixth and seventh assignments of error, Hughes asserts that the

trial court erred in accepting her guilty plea because she received ineffective assistance

of counsel and did not enter the plea knowingly and voluntarily. However, Hughes has

failed to establish that her trial counsel’s performance was deficient or that she suffered

prejudice. Additionally, she failed to show that her plea was not made knowingly and

voluntarily because, though she made some exculpatory remarks during the change of

plea hearing, the trial court complied fully with Crim.R. 11 after which Hughes

unequivocally pleaded guilty to both offenses.

{¶7} We sustain Hughes’s fourth assignment of error, overrule the remaining

assignments of error, vacate the no-contact order, and remand for the trial court to issue

a corrected sentencing entry that removes reference to the no-contact order. We affirm

the trial court’s judgment in all other respects. Adams App. No. 21CA1127 4

I. PROCEDURAL HISTORY

{¶8} In October 2019, the Adams County grand jury indicted Hughes on one

count of felonious assault, a violation of R.C. 2903.11(A)(1), and one count of

endangering children, a violation of R.C. 2919.22(B)(2), both second-degree felonies.

Hughes initially pleaded not guilty, but in January 2020 she entered into a plea

agreement with the state and entered a guilty plea to felonious assault in exchange for

the state’s dismissal of the endangering children count. However, in late March 2020,

Hughes retained new counsel and asked to withdraw her guilty plea. The trial court

granted her motion, and the state reinstated the endangering children count. The state

also successfully moved to amend the indictment to accurately reflect the dates on

which the offenses occurred.

{¶9} In December 2020, Hughes changed her plea again. Pursuant to the plea

agreement with the state, Hughes pleaded guilty to felonious assault, the state

amended the endangering children offense from a second-degree offense under R.C.

2919.22(B)(2) to a third-degree offense under R.C. 2919.22(B)(4), Hughes pleaded

guilty to the amended endangering children offense, and the parties stipulated to a 36-

month prison term on the endangering children offense. The trial court sentenced

Hughes to an indefinite prison term of 8 to 12 years for felonious assault and the

stipulated prison term of 36 months for endangering children, which was ordered to be

served consecutively, for a total prison term of 11 years to 15 years. The court also

ordered Hughes to pay a $5,000 fine and to have no contact with the victim.

II. ASSIGNMENTS OF ERROR

{¶10} Hughes presents seven assignments of error: Adams App. No. 21CA1127 5

I. The trial court erred to the prejudice of Ms. Hughes by failing to merge allied offenses of similar import at the time of sentencing.

II. The trial court erred to the prejudice of Ms. Hughes by improperly sentencing her to consecutive prison terms.

III. The trial court erred by imposing an indefinite maximum prison sentence of 8-12 years consecutive with a 36 month maximum prison sentence that was not supported by the record.

IV. The trial court erred to the prejudice of Ms. Hughes by sentencing her to prison for a term of incarceration, and issuing a no-contact order.

V. The Reagan Tokes Act, as enacted by the Ohio Legislator [sic] is unconstitutional, and the trial court erred by sentencing Ms. Hughes under that Act.

VI. The trial court erred to the prejudice of Ms. Hughes Sixth Amendment rights by entering judgement [sic] of conviction after a plea and sentencing at which she received ineffective assistance of counsel.

VII. The trial court erred to the prejudice of Ms. Hughes by accepting a plea that was not made knowingly or voluntarily.

III. ALLIED OFFENSES OF SIMILAR IMPORT

{¶11} In the first assignment of error, Hughes contends that the trial court erred

when it failed to merge allied offenses of similar import. She contends that the

endangering children count was based on her placing the two-year-old victim in cold

water, making him squat, and placing hot sauce in his mouth – all which occurred “a

couple of times” and the felonious assault count was based on her hitting the victim with

a belt and her hand, causing permanent scarring – which happened “probably at least

ten” different times. These offenses occurred April through September, 2019. Hughes

argues that the acts that constitute endangering children (cold water, squatting, hot

sauce) are consistent with the elements of felonious assault and the acts that constitute

felonious assault (striking victim with her hand and belt, resulting in permanent scarring) Adams App. No. 21CA1127 6

are consistent with endangering children. Thus, she contends that the offenses of

felonious assault and endangering children were allied offenses of similar import.

{¶12} The state argues that the acts that form the basis for the endangering

children offense would not meet the elements of felonious assault because, although

terrible and torturous, did not result in serious physical harm, an element of felonious

assault. In contrast, the beatings with hand and belt resulted in permanent scarring and

were separate offenses with a dissimilar import.

A. General Principles and Standard of Review

{¶13} The Double Jeopardy Clause of the Fifth Amendment to the United States

Constitution provides that no person shall “be subject for the same offence to be twice

put in jeopardy of life or limb.” “This protection applies to Ohio citizens through the

Fourteenth Amendment to the United States Constitution * * * and is additionally

guaranteed by the Ohio Constitution, Article I, Section 10.” State v. Ruff, 143 Ohio

St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 10. “This constitutional protection prohibits

multiple punishments in a single trial for the same conduct in the absence of a clear

indication of contrary legislative intent.” State v. Fannon, 2018-Ohio-5242, 117 N.E.3d

10, ¶ 129 (4th Dist.), citing Missouri v. Hunter, 459 U.S. 359, 366, 103 S.Ct. 673, 74

L.Ed.2d 535 (1983).

{¶14} “The General Assembly enacted R.C. 2941.25 to identify when a court

may impose multiple punishments[.]” Id. at ¶ 130. R.C. 2941.25 states:

(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. Adams App. No. 21CA1127 7

(B) Where the defendant’s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.

{¶15} The sentencing court has a mandatory duty to merge allied offenses of

similar import. State v. Stapleton, 4th Dist. Pickaway No. 19CA7, 2020-Ohio-4479, ¶

50. However, the defendant has the burden to establish R.C. 2941.25 prohibits multiple

punishments. Id. at ¶ 52. “We apply a de novo standard to review a trial court’s

determination of whether offenses constitute allied offenses of similar import requiring

merger under R.C. 2941.25.” Fannon at ¶ 131, citing State v. Williams, 134 Ohio St.3d

482, 2012-Ohio-5699, 983 N.E.2d 1245, ¶ 28.

{¶16} The determination whether an offender has been found guilty of allied

offenses of similar import “is dependent upon the facts of a case because R.C. 2941.25

focuses on the defendant’s conduct,” Ruff at ¶ 26, and “an offense may be committed in

a variety of ways.” Id. at ¶ 30. In Ruff, the Supreme Court of Ohio explained that an

accused may be convicted and sentenced for multiple offenses when “(1) the offenses

are dissimilar in import or significance—in other words, each offense caused separate,

identifiable harm, (2) the offenses were committed separately, or (3) the offenses were

committed with separate animus or motivation.” Id. at ¶ 25.

When determining whether offenses are allied offenses of similar import within the meaning of R.C. 2941.25, courts must answer three essential questions: “(1) Were the offenses dissimilar in import or significance? (2) Were they committed separately? and (3) Were they committed with separate animus or motivation? An affirmative answer to any of the above will permit separate convictions.” State v. Earley, 145 Ohio St.3d 281, 2015-Ohio-4615, 49 N.E.3d 266, ¶ 12, citing State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 892, ¶ 31 and paragraphs one, two, and three of the syllabus. Accordingly, courts must consider “[t]he conduct, the animus, and the import.” Id. Adams App. No. 21CA1127 8

State v. Cunningham, 4th Dist. Ross No. 19CA3698, 2021-Ohio-416, ¶ 23.

{¶17} Under current Ohio law courts can only impose multiple punishments in a

single trial for a defendant's conduct under two situations: 1) where the charged crimes

are not allied offenses, i.e., it is not possible to commit multiple crimes with the same

action, State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, and

2) the crimes are allied offenses but the defendant's actions have dissimilar import, i.e.,

the crimes were committed separately, or with a separate animus, or the resulting harm

for each offense is separate and identifiable. State v. Ruff, 143 Ohio St.3d 114, 2015-

Ohio-995, 34 N.E.3d 892, paragraph one of the syllabus; State v. Louis, 2016-Ohio-

7596, 73 N.E.3d 917, ¶ 90-95 (4th Dist.); State v. Smith, 2017-Ohio-537, 85 N.E.3d 304,

¶ 15 (8th Dist.) (“Allied offense analysis interpreting R.C. 2941.25, from Rance to Ruff,

is only implicated where the conduct can be construed to constitute two or more allied

offenses.”).

{¶18} However, here Hughes did not object in the trial court to separate

sentences for felonious assault and endangering children, so we review this issue under

the plain error standard of review. In other words, appellant “has the burden to

demonstrate a reasonable probability that the convictions are for allied offenses of

similar import committed with the same conduct and without a separate animus; absent

that showing, the accused cannot demonstrate that the trial court's failure to inquire

whether the convictions merge for purposes of sentencing was plain error.” State v.

Cambron, 2020-Ohio-819, 152 N.E.3d 824, ¶ 9 (4th Dist.), citing State v. Rogers, 143

Ohio St.3d 385, 2015-Ohio-2459, 38 N.E.3d 860, ¶ 3. Adams App. No. 21CA1127 9

B. Felonious Assault and Endangering Children Merger Analysis

1. Allied Offenses—Step 1

{¶19} Initially, we look to see if the charges Hughes faced represent allied

offenses. To accomplish that we must look at the defendant's conduct to determine if it

was possible to both commit one offense and commit the other by that

conduct. Johnson at ¶ 48. To do that we must also examine the crimes at issue. Id.

{¶20} Felonious assault is prohibited by R.C. 2903.11(A)(1), which states, “(A)

No person shall knowingly do either of the following: (1) Cause serious physical harm to

another * * *.” Endangering children is prohibited by R.C. 2919.22(B)(4), which states,

“(B) No person shall do any of the following to a child under eighteen years of age * * *

(4) Repeatedly administer unwarranted disciplinary measures to the child, when there is

a substantial risk that such conduct, if continued, will seriously impair or retard the

child's mental health or development * * *.”

{¶21} Hughes hit the two-year-old victim repeatedly with her hand and a leather

belt on areas of his body that were already suffering open wounds. Because these

beatings could be “repeatedly administered unwarranted disciplinary measures that had

a substantial risk of seriously impairing or retarding the child’s mental health or

development,” we conclude it was possible for Hughes to commit the offense of

felonious assault and the offense of endangering children under R.C. 2919.22(B)(4) with

the same conduct and they are allied offenses.

2. Offenses of Similar Import—Step 2

{¶22} However, even though it is possible to commit both offenses with the

same conduct, and thus they are allied offenses, they are not allied offenses of similar Adams App. No. 21CA1127 10

import. We conclude that Hughes can be separately punished for each one. Hughes’s

conduct of felonious assault and her conduct of endangering children were of dissimilar

import, i.e., they were committed with separate conduct, on different occasions, and

resulted in separate, identifiable harms.

{¶23} For the conduct that formed the basis for her felonious assault conviction,

Hughes intentionally beat the two-year-old victim with her hand and a leather belt on at

least 10 different occasions, while the victim was already suffering from open wounds

on his buttocks, causing permanent scarring. The permanent scarring constitutes

serious physical harm:

“Serious physical harm” is defined under R.C. 2901.01(A)(5)(c), (d), and (e) as including harm that produces “temporary, substantial incapacity,” “temporary, serious disfigurement,” or “acute pain of such duration as to result in substantial suffering or that involves any degree of prolonged or intractable pain.” State v. Adams, 2016-Ohio-7772, 84 N.E.3d 155, ¶ 25 (4th Dist.); quoting State v. Scott, 4th Dist. Washington No. 15CA2, 2015- Ohio-4170, ¶ 23.

State v. Miller, 4th Dist. Hocking No. 18CA3, 2019-Ohio-92, ¶ 30.

{¶24} For the conduct that formed the basis for her endangering children

conviction, on several different occasions as disciplinary measures Hughes placed the

two-year-old victim in a very cold shower, forced the victim to squat for extensive

lengths of time, and poured hot sauce down his throat. These punishments occurred on

separate days and constituted a course of conduct that happened over time. And

although this conduct was exceptionally cruel, it resulted in separate, primarily

temporary and psychological, identifiable harm that differed from the serious physical

harm, including permanent scarring, caused by the beatings. Adams App. No. 21CA1127 11

{¶25} Hughes failed to meet her burden to demonstrate a reasonable probability

that the convictions are for allied offenses of similar import committed with the same

conduct and without a separate animus. The trial court did not plainly err in failing to

merge Hughes’s convictions for purposes of sentencing. We overrule her first

assignment of error.

IV. CONSECUTIVE PRISON TERMS

{¶26} For her second assignment of error, Hughes concedes that the trial court

stated the necessary statutory language on the record and in the sentencing entry – the

trial court made the findings required by R.C. 2919.14(C)(4) – thus consecutive

sentences were not “contrary to law.” But, she contends that the record does not

support the imposition of consecutive terms. Specifically, she argues that an eight-year

prison term would be sufficient to punish her and protect the public because she had no

prior criminal record, had a drug problem which likely contributed to her behavior, and

acted in conjunction with a co-defendant. She asks that we modify the sentence and

order that the two sentences be served concurrently.

A. Standard of Review – Consecutive Sentences

{¶27} We analyze Hughes’s consecutive sentences under R.C. 2953.08(G)(2)(a)

for compliance with R.C. 2929.14(C). State v. Gwynne, 158 Ohio St.3d 279, 2019-Ohio-

4761, 141 N.E.3d 169, ¶ 16.

Under that provision, a court of appeals may increase, reduce, or otherwise modify a sentence if it clearly and convincingly finds “[t]hat the record does not support the sentencing court's findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant.” Because R.C. 2953.08(G)(2)(a) specifically mentions a sentencing judge's findings made under R.C. 2929.14(C)(4) as falling within a court of appeals' review, the General Assembly plainly Adams App. No. 21CA1127 12

intended R.C. 2953.08(G)(2)(a) to be the exclusive means of appellate review of consecutive sentences. See State v. Vanzandt, 142 Ohio St.3d 223, 2015-Ohio-236, 28 N.E.3d 1267, ¶ 7 (“We primarily seek to determine legislative intent from the plain language of a statute”).

Id. at ¶ 16, 18 (reversing and remanding an appellate court decision that used the

incorrect sentencing review “by reviewing Gwynne's consecutive sentences under R.C.

2929.11 and 2929.12” instead of “for compliance with R.C. 2929.14(C)(4)”).

{¶28} We may vacate or modify a felony sentence if we clearly and convincingly

find that the record does not support the trial court’s findings. State v. Layne, 4th Dist.

Adams No. 20CA1116, 2021-Ohio-255, ¶ 6. “ ‘This is an extremely deferential standard

of review.’ ” Id. at ¶ 8, quoting State v. Pierce, 4th Dist. Pickaway No. 18CA4, 2018-

Ohio-3943, ¶ 8. Clear and convincing evidence is proof that is more than a “mere

preponderance of the evidence” but not of such certainty as “beyond a reasonable

doubt,” and produces in the mind a “firm belief or conviction” as to the facts sought to be

established. State v. Conant, 4th Dist. Adams No. 20CA1108, 2020-Ohio-4319, ¶ 42.

B. Hughes’s Consecutive Sentence is Supported by the Record

{¶29} R.C. 2929.14(C)(4) provides for the imposition of consecutive sentences:

(4) If multiple prison terms are imposed on an offender for convictions of multiple offenses, the court may require the offender to serve the prison terms consecutively if the court finds that the consecutive service is necessary to protect the public from future crime or to punish the offender and that consecutive sentences are not disproportionate to the seriousness of the offender's conduct and to the danger the offender poses to the public, and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the Adams App. No. 21CA1127 13

multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender's conduct.

(c) The offender's history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.

{¶30} Here, the trial court determined that consecutive sentences were

necessary to protect the public from future crime, to punish Hughes, and that

consecutive sentences were not disproportionate to the seriousness of Hughes’s

conduct and the danger she posed to the public. Additionally, the trial court found,

pursuant to R.C. 2929.14(C)(4)(b), that “at least two of the multiple offenses were

committed as part of one or more courses of conduct, and the harm caused by two or

more of the multiple offenses so committed was so great or unusual that no single

prison term for any of the offenses committed as part of any of the courses of conduct

adequately reflects the seriousness of the offender’s conduct.”

{¶31} The trial court reviewed the facts and noted that law enforcement

examined the victim and discovered bruises all over his face and head and, upon

removing his clothes, found both old and fresh bruising all over the victim’s body.

Additionally, the court reviewed audio tapes of several incidents in which Hughes beat

the two-year-old victim, punished him by forcing him to stand in a freezing cold shower,

and forced hot sauce down his throat. The audio tapes clearly record the sounds of the

victim suffering and screaming in pain as well as Hughes’s nonstop verbal berating and

profanity. After describing the audio tapes, the court stated:

I’ve sat in the Courtroom and I’ve dealt with the darkest humans possible. Men killed their father, putting him in a barrel, burned him up, and spread his ashes along the road. Killed prostitutes in Portsmouth and dumped Adams App. No. 21CA1127 14

them here. Cut a man’s head [--] top of his head off. I’ve never, ever experienced a monster like you.

{¶32} The court stated that Hughes showed no remorse for her offenses, “She

has absolutely no remorse.” The trial court also considered the victim impact statement

prepared by the victim’s foster parent, which detailed the psychological struggles the

victim faced and described certain conversations with and behavior of the victim that

indicated that the child may have experienced additional sexual trauma. The victim

continued to receive psychological therapy and was still experiencing nightmares.

{¶33} The trial court found that it was necessary to impose consecutive

sentences on Hughes because the harm caused was so great and unusual and was

necessary, “to punish the offender of the most heinous crimes that this Court has ever

experienced in his life.”

{¶34} We cannot say that the trial court’s findings are clearly and convincingly

unsupported by the record. The court’s R.C. 2919.14(C)(4) findings are supported by

the record as it is undisputed that: (1) the victim was a two-year-old child, (2) Hughes

beat the victim repeatedly, on at least 10 occasions, with her hand and a belt on areas

of his body that suffered open wounds, which left permanent scarring, (3) she

repeatedly forced the victim to stand naked in a freezing cold shower, (4) she forced hot

sauce down the victim’s throat, and (5) she continued to administer this punishment,

along with verbal abuse, while the victim cried, screamed, and pleaded with her.

{¶35} We overrule her second assignment of error.

V. MAXIMUM SENTENCE FOR FELONIOUS ASSAULT

{¶36} Hughes concedes that the 36-month sentence for child endangering was

an agreed, recommended sentence and she does not seek review of it. As with her Adams App. No. 21CA1127 15

consecutive sentence, Hughes does not argue that the felonious assault sentence is

contrary to law or that the trial court failed to consider the sentencing statute. Instead,

she contests the maximum sentence imposed for felonious assault as unsupported by

the record: “The prison sentence imposed against Ms. Hughes was excessive and not

supported by the record. The court should have imposed a shorter sentence. * * * The

record does not justify a maximum consecutive sentence on both counts.” She argues

that she should not have been sentenced to a maximum prison term for her conviction

for felonious assault because the “serious physical harm” she caused to the victim “is

not the most serious form of harm” because it did not involve the loss of a limb or

permanent paralysis. Though Hughes does not specifically cite R.C. 2929.12(B)(2)

(governing the seriousness of the physical harm), her argument about the harm not

being “the most serious form” would fall under this statutory finding.

A. Standard of Review – Maximum Sentence

{¶37} We review felony sentences under the standard set forth in R.C.

2953.08(G)(2):

The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacate the sentence and remand the matter to the sentencing court for resentencing. The appellate court's standard for review is not whether the sentencing court abused its discretion. The appellate court may take any action authorized by this division if it clearly and convincingly finds either of the following:

(a) That the record does not support the sentencing court’s findings under division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant;

(b) That the sentence is otherwise contrary to law. Adams App. No. 21CA1127 16

{¶38} As we outlined in our review of Hughes’s consecutive sentence, we must

clearly and convincingly determine that the record does not support the trial court’s

findings, which is a highly deferential standard of review.

B. Hughes’s Maximum Sentence

{¶39} The trial court stated at the sentencing hearing and in the judgment of

conviction that it considered the principles and purposes of sentencing under R.C.

2929.11 and balanced the seriousness and recidivism factors of R.C. 2929.12.

“[N]either R.C. 2929.11 nor 2929.12 requires a trial court to make any specific factual

findings on the record.” State v. Wilson, 129 Ohio St.3d 214, 2011-Ohio-2669, 951

N.E.2d 381, ¶ 31.

{¶40} Hughes makes a broad argument that the record does not support her

sentence. And, though she does not cite the statute specifically, she appears to be

making an argument that the court made an improper finding concerning the

seriousness of her offense under R.C. 2929.12(B)(2). Hughes does not argue that the

trial court was required to make findings under R.C. 2953.08(G)(2)(a) that are not

supported by the record. Based on the record before us, the trial court was not required

to make any findings under R.C. 2953.08(G)(2)(a). See State v. Lodwick, 2018-Ohio-

3710, 118 N.E.3d 948, ¶ 28 (4th Dist.) (“Further, and importantly,

maximum sentences do not require specific findings.”). Nor does Hughes argue that her

sentence was contrary to law under R.C. 2953.08(G)(2)(b).

{¶41} More specifically, Hughes does not argue that, under R.C.

2953.08(G)(2)(a), the record does not support the sentencing court’s findings under: Adams App. No. 21CA1127 17

(1) R.C. 2929.13(B) (governing fourth and fifth-degree felonies, not applicable to

Hughes);

(2) R.C. 2929.13(D) (governing first and second-degree drug offenses, not

applicable to Hughes);

(3) R.C. 2929.14(B)(2)(e) (governing sentences imposed under 2929.14(B)(2)(a)

or (b) for repeat violent offenders, not applicable to Hughes);

(4) R.C. 2929.14(C)(4) (governing consecutive sentences, which we addressed

when we reviewed Hughes’s challenge to her consecutive sentence); or

(5) R.C. 2929.20(I) (governing judicial release hearings, not applicable to

Hughes).

Instead, she broadly argues that the sentence is not supported by the record. However,

R.C. 2953.08(G)(2) does not give appellate courts broad authority to review sentences

to determine if they are supported by the record. State v. Jones, 163 Ohio St.3d 242,

2020-Ohio-6729, 169 N.E.3d 649, ¶ 27 (“statements made in [State v.] Marcum, [146

Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231,] at ¶ 23 suggesting that it would be

‘fully consistent’ with R.C. 2953.08(G) for an appellate court to modify or vacate a

sentence when the record does not support the sentence under R.C 2929.11 or R.C.

2929.12 were made only in passing and were not essential” and “are therefore dicta”).

In Jones, supra, the Court recently explained:

R.C. 2953.08(G)(2)(a) permits an appellate court to modify or vacate a sentence if it clearly and convincingly finds that “the record does not support the sentencing court's findings under” certain specified statutory provisions. But R.C. 2929.11 and 2929.12 are not among the statutory provisions listed in R.C. 2953.08(G)(2)(a). Only R.C. 2929.13(B) and (D), 2929.14(B)(2)(e) and (C)(4), and 2929.20(I) are specified.

Id. at ¶ 28. Adams App. No. 21CA1127 18

{¶42} And, although R.C. 2953.08(G)(2)(b) permits an appellate court to modify

or vacate a sentence that is “contrary to law,” “an appellate court’s determination that

the record does not support a sentence does not equate to a determination that the

sentence is ‘otherwise contrary to law’ as that term is used in R.C. 2953.08(G)(2)(b).” Id.

at ¶ 32.

When we consider the evolution of R.C. 2953.08(G), it is evident that an appellate court's conclusion that the record does not support a sentence under R.C. 2929.11 or 2929.12 is not the equivalent of a conclusion that the sentence is “otherwise contrary to law” as that term is used in R.C. 2953.08(G)(2)(b).

Id. at ¶ 34. Thus, based on the recent decision in Jones, supra, it is clear we have no

authority to conduct the sentencing review Hughes seeks. She asks us to review the

record and determine that the serious physical injury caused by her felonious assault

offense “is not the most serious form of harm” which, in essence, is asking us to review

the record and determine whether it supports the trial court’s implicit finding under R.C.

2929.12(B)(2). Her argument falls outside the scope of R.C. 2953.08(G)(2) and asks us

to go beyond our statutory authority. See also State v. Loy, 4th Dist. Washington No.

19CA21, 2021-Ohio-403, ¶ 26-30 (discussing Jones, supra); State v. Abrogast, 4th Dist.

Adams No. 20CA1119, 2021-Ohio-484, ¶ 7-8 (discussing Jones, supra).

{¶43} We overrule her third assignment of error.

VI. NO-CONTACT ORDER

{¶44} Hughes contends that the trial court erred when it imposed a prison

sentence and a no-contact order, which is a community control sanction, because the

courts have made clear that if the trial court imposes a prison term, then in may not

impose a no-contact order for the same offense. See State v. Anderson, 143 Ohio St.3d Adams App. No. 21CA1127 19

173, 2015-Ohio-2089, 35 N.E.3d 512. The state concedes that the existing case law

supports Hughes’s argument. However, it argues that the 2017 amendment to the Ohio

Constitution known as Marsy’s Law expands victim rights and allows a trial court to

simultaneously impose a prison term and a no-contact order. The state provides no

case law in support of its position and our research has uncovered none. Most of the

cases involving the application of Marsy’s Law involve the restitution or discovery

provisions in Section 10(a)(A)(6) and (7).

{¶45} Our review of this aspect of Hughes’s felony sentence is reviewed under

the standard provided by R.C. 2953.08(G)(2) as discussed in our review of Hughes’s

maximum and consecutive sentences.

{¶46} On February 5, 2018, the amendment to Article I, Section 10(a) of the

Ohio Constitution, known as Marsy's Law, became effective. This amendment expands

the rights afforded to crime victims:

(A) To secure for victims justice and due process throughout the criminal and juvenile justice systems, a victim shall have the following rights, which shall be protected in a manner no less vigorous than the rights afforded to the accused:

(1) to be treated with fairness and respect for the victim's safety, dignity and privacy;

(2) upon request, to reasonable and timely notice of all public proceedings involving the criminal offense or delinquent act against the victim, and to be present at all such proceedings;

(3) to be heard in any public proceeding involving release, plea, sentencing, disposition, or parole, or in any public proceeding in which a right of the victim is implicated;

(4) to reasonable protection from the accused or any person acting on behalf of the accused; Adams App. No. 21CA1127 20

(5) upon request, to reasonable notice of any release or escape of the accused;

(6) except as authorized by section 10 of Article I of this constitution, to refuse an interview, deposition, or other discovery request made by the accused or any person acting on behalf of the accused;

(7) to full and timely restitution from the person who committed the criminal offense or delinquent act against the victim;

(8) to proceedings free from unreasonable delay and a prompt conclusion of the case;

(9) upon request, to confer with the attorney for the government; and

(10) to be informed, in writing, of all rights enumerated in this section.

(B) The victim, the attorney for the government upon request of the victim, or the victim's other lawful representative, in any proceeding involving the criminal offense or delinquent act against the victim or in which the victim's rights are implicated, may assert the rights enumerated in this section and any other right afforded to the victim by law. If the relief sought is denied, the victim or the victim's lawful representative may petition the court of appeals for the applicable district, which shall promptly consider and decide the petition. * * *

{¶47} The Ohio Constitution Article I, Section 10(a)(A)(4) gives the two-year-old

victim “reasonable protection from the accused or any person acting on behalf of the

accused.” However, to assert that right Section 10(a)(B) requires “the victim, the

attorney for the government upon the request of the victim, or the victim’s other lawful

representative” to assert the rights enumerated in Section (A). If the relief is denied, the

victim or the victim’s representative may petition the court of appeals.

{¶48} The trial court’s sentencing entry orders Hughes to have no contact with

the victim. At the sentencing hearing, the trial court ordered that Hughes “shall have no

contact with the victims [sic]” and asked her, “[D]o you know of any reason you would

ever need to have contact with this little boy after what you’ve done to him in the lifetime Adams App. No. 21CA1127 21

of recovery, that he is going to have mentally and physically?” Hughes responded, “No

sir.” However, there is no evidence in the record that the victim’s representative asked

for the no-contact order or asked the prosecutor to seek a no-contact order on the

victim’s behalf. The no-contact order was imposed sua sponte by the trial court as part

of the sentencing order – not at the request of the victim’s representative under Marsy’s

Law. For that reason, Marsy’s Law does not apply here and we need not determine

whether it provides an exception or requires a deviation from the established case law

that prohibits a trial court from imposing a prison term and a community control sanction

of no contact for the same felony offense. Anderson at ¶ 31; State v. Conant, 4th Dist.

Adams No. 20CA1108, 2020-Ohio-4319, ¶ 41- 44.

{¶49} As we explained in Conant, supra:

In Anderson, the Supreme Court of Ohio considered whether a trial court has the authority to impose a prison term and a no-contact order with the victim for the same felony offense. Anderson at ¶ 1. The Supreme Court explained that a trial court may only impose a sentence that is provided for by statute, that “Ohio courts have recognized that a no-contact order is a community-control sanction,” and that the felony-sentencing statutes “reflect that the General Assembly intended prison terms and community- control sanctions to be alternative sanctions” for a felony offense. Id. at ¶ 12, 17, 28. The Supreme Court held that “as a general rule, when a prison term and community control are possible sentences for a particular felony offense, absent an express exception, the court must impose either a prison term or a community-control sanction or sanctions.” Id. at ¶ 31. Therefore, “[a] trial court cannot impose a prison term and a no-contact order for the same felony offense.” Id. at ¶ 1.

Id. at 43; State v. Behrle, 4th Dist. Adams No. 20CA1110, 2021-Ohio-1386, ¶ 49-51.

{¶50} The trial court's decision to impose a no-contact order in addition to

Hughes's prison term was contrary to law. “Trial courts and intermediate courts of

appeals are bound by and must follow decisions of the Ohio Supreme Court.” State v.

Cox, 4th Dist. Adams No. 02CA751, 2003-Ohio-1935, ¶ 12. Pursuant to Anderson, trial Adams App. No. 21CA1127 22

courts lack authority to impose a prison term and community-control sanction for the

same felony offense unless an express exception applies. Because the victim or his

representative did not request the no-contact order, Marsy’s Law was not triggered and

provides no possible exception in this case. Accordingly, we sustain the fourth

assignment of error, vacate the no-contact order, and remand for the trial court to issue

a corrected sentencing entry that removes reference to that order.

VII. REAGAN TOKES LAW

{¶51} Hughes contends that the trial court erred by sentencing her under the

Reagan Tokes Law because it is unconstitutional. She concedes that she made no

objection at the sentencing hearing and has forfeited all but plain error.

{¶52} The Reagan Tokes Law requires that a court imposing a prison term

under R.C. 2929.14(A)(1)(a) or (2)(a) for a first or second-degree felony committed on

or after March 22, 2019, impose a minimum prison term under that provision and a

maximum prison term determined under R.C. 2929.144(B). R.C. 2929.144(C). There is

a presumption that the offender “shall be released from service of the sentence on the

expiration of the offender's minimum prison term or on the offender's presumptive

earned early release date, whichever is earlier.” R.C. 2967.271(B). A presumptive

earned early release date is a date determined under procedures described in R.C.

2967.271(F) which allow the sentencing court to reduce the minimum prison term under

certain circumstances. R.C. 2967.271(A)(2). The Ohio Department of Rehabilitation and

Corrections (ODRC) may rebut the presumption if it determines at a hearing that one or

more statutorily numerated factors applies. R.C. 2967.271(C). If ODRC rebuts the

presumption, it may maintain the offender's incarceration after the expiration of the Adams App. No. 21CA1127 23

minimum prison term or presumptive earned early release date for a reasonable period

of time, determined and specified by ODRC, that “shall not exceed the offender's

maximum prison term.” R.C. 2967.271(D)(1).

{¶53} Hughes maintains that the Reagan Tokes Law violates the separation of

powers doctrine and her due process rights. However, we find that the question of the

constitutionality of the Reagan Tokes Law is not ripe for review. Hughes was sentenced

to an indefinite prison term of a minimum of 11 years and a maximum of 15 years.

Under the Reagan Tokes Law, there is a rebuttable presumption that Hughes will be

released at the end of her minimum sentence. The ODRC may, under certain

circumstances, rebut that presumption and keep Hughes incarcerated for an additional

reasonable period, not to exceed her maximum prison term as sentenced by the trial

court. However, Hughes has not yet served her minimum sentence. Therefore, she has

not yet been subject to the application of the provisions she challenges. Because she

has not yet been subject to the actions by the ODRC, the constitutional issues are not

yet ripe for review.

{¶54} For a complete discussion of the Reagan Tokes Law and a survey of Ohio

case law, see State v. Halfhill, 4th Dist. Meigs No. 20CA7, 2021-Ohio-177, ¶ 8–20. The

question of whether the Reagan Tokes Law is ripe for review is currently pending before

the Supreme Court of Ohio because of the conflict within Ohio appellate districts on the

ripeness question. See State v. Maddox, 160 Ohio St.3d 1505, 2020-Ohio-6913, 159

N.E.3d 1150.

{¶55} While Maddox, supra, was pending, the Eighth District Court of Appeals

reversed itself and determined that the Reagan Tokes Law was unconstitutional. See Adams App. No. 21CA1127 24

State v. Daniel, 2021-Ohio-1963, __N.E.3d__ (8th Dist.) and State v. Sealey, 8th Dist.

Cuyahoga No. 109670, 2021-Ohio-1949. In Daniel and Sealey, which were both

released and journalized on June 10, 2021 and were virtually identical in analysis, the

Eighth District acknowledged that it had, only months earlier, found the Reagan Tokes

Law constitutional, State v. Wilburn, 2021-Ohio-578, 168 N.E.3d 873 (8th Dist.) and

State v. Simmons, 2021-Ohio-939, 169 N.E.3d 728 (8th Dist.). But in Daniel (and

Sealey, but for sake of simplicity we will refer only to Daniel), the Eighth District

reversed course and disagreed with the analogy to Ohio’s parole eligibility regimen and

instead decided that the Reagan Tokes Law is more akin to parole revocation and

reduction of good-time credit proceedings. Id. at ¶ 19-20, 26. Daniel found that the

procedures identified in R.C. 2967.271(C) and (D) for rebutting the presumptive release

date are constitutionally insufficient because the law, “as written, does not afford

inmates a meaningful hearing, which is the fundamental element of due process

required by the liberty interest the statute itself creates.” Id. at ¶ 31-39, 40.

{¶56} More specifically, it found that the Reagan Tokes Law provisions did not

provide the minimum due process requirements under Morrissey v. Brewer, 408 U.S.

471, 92 St.Ct. 2593, 33 L.Ed.2d 484 (1972) for parole revocation and Wolff v.

McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) for withdrawal of good-

time credits, which require the inmate receive written notice of the hearing, knowledge

of the evidence to be used by the state, a chance to be heard to present evidence and

confront the state’s evidence, and a decision made by a neutral entity. Daniel at ¶ 38.

{¶57} The Eighth District expressed concern for how the Reagan Tokes Law

proceedings will affect certain inmates with mental health and substance abuse issues Adams App. No. 21CA1127 25

and further found that, “failing to provide an inmate the right to present a defense – any

defense at all – flies in the face of well-established due process jurisprudence at its very

core.” Id. at ¶ 39. Notably the court acknowledged that while Daniel was pending, the

ODRC issued procedures for the hearing process under the Reagan Tokes Law. Due to

the timing of these procedures, the court would not consider their impact on its due

process analysis:

This court is aware that effective March 15, 2021, the director of the DRC issued policy number 105-PBD-15 establishing procedures for the “Additional Term Hearing Process” under the Reagan Tokes Law. That policy was not in effect at the time the parties brought this appeal, it was not in effect at the time the parties submitted their briefs, and it was not in effect at the time the parties participated in oral argument in this case. It is not before this court to consider whether the DRC policy provides due process protections that are absent from the statute. See State v. Tate, 140 Ohio St.3d 442, 2014-Ohio-3667, 19 N.E.3d 888.

Id. at ¶ 42.

{¶58} Because our district precludes constitutional review of the Reagan Tokes

Law for lack of ripeness – and because the ODRC and the Ohio Legislature may adopt

additional procedures before any case ripens – we see no need to re-examine our

decisions in light of Daniel and Sealey. To the contrary, the fact that the ODRC

promulgated rules that will impact the Eighth District’s future constitutional analysis

post-Daniel further convinces us that our conservative approach is prudent.

{¶59} We overrule Hughes’s fifth assignment of error.

VIII. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL

{¶60} Hughes contends that the trial court erred by entering judgment of

conviction after a plea hearing at which she received ineffective assistance of counsel.

She argues that her trial attorney’s performance was deficient because he: (1) filed a Adams App. No. 21CA1127 26

motion to withdraw Hughes’s first guilty plea without having first reviewed the discovery

in the case, (2) failed to argue merger at sentencing and object to the application of the

Reagan Tokes Law, and (3) failed to object to the state’s motion to amend the

indictment.

{¶61} To prevail on a claim of ineffective assistance of counsel, a criminal

defendant must establish (1) deficient performance by counsel, i.e., performance falling

below an objective standard of reasonable representation, and (2) prejudice, i.e., a

reasonable probability that, but for counsel's errors, the result of the proceeding would

have been different. State v. Allen, 4th Dist. Pickaway No. 19CA31, 2021-Ohio-648, ¶

21, citing State v. Turner, 4th Dist. Jackson No. 19CA4, 2019-Ohio-5470; State v. Short,

129 Ohio St.3d 360, 2011-Ohio-3641, 952 N.E.2d 1121, ¶ 113. “In employing this

standard “we apply a strong presumption that counsel's conduct falls within the wide

range of reasonable professional assistance.” State v. Day, 4th Dist. Adams No.

19CA1085, 149 N.E.3d 122, 2019-Ohio-4816, ¶ 27. “The benchmark for judging any

claim of ineffectiveness must be whether counsel's conduct so undermined the proper

functioning of the adversarial process that the trial cannot be relied on as having

produced a just result.” Strickland v. Washington, 466 U.S. 668, 686, 104 S. Ct. 2052,

80 L. Ed. 2d 674 (1984).

A. Motion to Withdraw Guilty Plea

{¶62} Hughes contends that her trial counsel’s performance was deficient

because he filed a motion to withdraw her guilty plea without reviewing the state’s

discovery. However, the record shows that she filed her motion to withdraw her guilty

plea because she “was not given a copy or allowed to review the discovery in the case.” Adams App. No. 21CA1127 27

She argued that she “was unaware of the actual foundations of the charge and what the

facts were.” She contended in her motion to withdraw her guilty plea that because she

had not been able to review discovery, she was “not afforded her due process rights to

confront all evidence against her.” It was her lack of review of the state’s discovery that

formed the exclusive basis for her motion to withdraw her guilty plea. Now, she claims

that this same lack of discovery is the reason that her counsel was deficient for filing her

motion to withdraw her guilty plea. In other words, she sought to withdraw her guilty

plea because she had not reviewed the state’s discovery, but now argues that she

should not have filed the motion to withdraw her guilty plea because she had not

reviewed the state’s discovery.

{¶63} Regardless of whether her attorney’s performance was deficient, Hughes

cannot show any prejudice because the trial court allowed both Hughes and her

attorney to review the state’s discovery, including the two audio tapes of Hughes’s

conduct with the victim, and gave them an opportunity to withdraw her motion to

withdraw her guilty plea before the court ruled on it. The trial court explained that it

understood that a motion to withdraw a guilty plea should be liberally granted and it was

not trying to discourage Hughes from withdrawing her guilty plea, but the court wanted

to be certain she had an opportunity to hear the audio recordings and review the state’s

discovery prior to seeking a ruling on her motion to withdraw her plea. The trial court,

with the state and Hughes’s agreement, informed Hughes and her attorney that it would

reserve its ruling until the following Monday, until all discovery had been provided to

Hughes’s attorney and both Hughes and her attorney had a chance to review it

together. Adams App. No. 21CA1127 28

{¶64} The following Monday, the trial court reiterated the agreement to reserve

ruling on Hughes’s motion to withdraw her plea so that she and her attorney could

review the state’s evidence. Hughes’s attorney stated that he had received all of the

state’s discovery and provided it to and discussed it with Hughes. When asked if she

still wanted to withdraw her guilty plea, Hughes responded, “Yes, sir.” Even after giving

that straightforward answer, the trial court again explained the significance of

withdrawing her plea and asked her again if she understood it all and Hughes

responded, “Yes, sir.” Only then did the trial court grant her motion to withdraw her

guilty plea.

{¶65} Hughes has failed to demonstrate prejudice, i.e., a reasonable probability

that, but for counsel's error – assuming, but not deciding, that it was an error – the result

of the proceeding would have been different. The trial court held the motion in abeyance

until after Hughes and her attorney reviewed all the state’s discovery and then gave her

an opportunity to withdraw her motion to withdraw her guilty plea. Hughes declined to

withdraw her motion. There is nothing left to speculate: the result of the proceeding was

not different. Therefore, Hughes was not prejudiced by her counsel’s conduct.

B. Objections to Merger and Reagan Tokes Law

{¶66} Next Hughes argues that her attorney was deficient for failing to raise

merger at sentencing and failing to object to the constitutionality of the Reagan Tokes

Law. However, in our analysis of her first and fifth assignments of error we determined

that her offenses were not subject to merger and that her constitutional objection to the

Reagan Tokes Law was not ripe. Any objection would have been futile. Therefore,

counsel’s failure to object cannot constitute ineffective assistance of counsel. State v. Adams App. No. 21CA1127 29

Black, 4th Dist. Ross No. 12CA3327, 2013-Ohio-2105, ¶ 37 (the failure to do a futile act

cannot be the basis for a claim of ineffective assistance of counsel and is not

prejudicial).

C. Objection to Amended Indictment

{¶67} Hughes argues that her attorney should have objected to the state’s

motion to amend the dates on the indictment. She speculates that the reason for the

amendment was to place her conduct entirely within the Reagan Tokes Law, but she

cites nothing in the record to support her speculation. At the change of plea hearing, the

state described it as “a matter of housekeeping” and asked to change the dates from

April 21, 2018 through September 23, 2019 to April 1, 2019 through September 23,

2019. Hughes’s attorney stated that he was aware of the state’s proposed amendment,

had discussed it with Hughes, and they had no objections. The trial court asked Hughes

if her attorney had her authority not to object to the amendment and she stated, “Yes,

sir.”

{¶68} Crim.R. 7(D) provides:

The court may at any time before, during, or after a trial amend the indictment, * * * provided no change is made in the name or identity of the crime charged. If any amendment is made to the substance of the indictment * * * the defendant is entitled to * * * a reasonable continuance, unless it clearly appears from the whole proceedings that the defendant has not been misled or prejudiced by the defect or variance in response to which the amendment is made * * *.

{¶69} The amendment did not change the name or identity of the crime charged.

And, Hughes does not explain: (1) how a continuance would have been warranted

under Crim.R. 7(D) had her trial attorney asked for one, (2) how a continuance would

have affected her decision to enter a guilty plea, or (3) how any lack of a continuance Adams App. No. 21CA1127 30

prejudiced her defense. Hughes has failed to demonstrate ineffective assistance of

counsel or prejudice. See State v. Tucker, 4th Dist. Ross No. 01CA2592, 2002-Ohio-

1597, *3 (“We refuse to hold that defense counsel must always ipso facto lodge an

objection to a request to amend an indictment regardless of whether an objection is

warranted.”).

{¶70} Hughes has failed to establish that her counsel’s performance was

deficient or that she suffered any prejudice. We overrule her sixth assignment of error.

IX. GUILTY PLEA WAS MADE KNOWINGLY AND VOLUNTARILY

{¶71} For her seventh assignment of error, Hughes contends that she did not

knowingly and voluntarily plead guilty because the record shows that she was unsure if

she was guilty of endangering children as set forth in count two of the indictment. She

argues that the record shows that she tried to downplay her conduct and claimed that

the squats were recommended by a physician and eating hot sauce was something she

and the victim regularly did together. The trial court took a recess to allow Hughes to

discuss matters with her attorney. Hughes asserts that she was “not comfortable

admitting to the statement of facts against her * * * only after the court offers her a

recess and she is further questioned by the court, does she eventually acknowledge the

statement of facts” contained in the indictment.

{¶72} Hughes also contends that her guilty plea was invalid because she

received ineffective assistance of counsel as argued in her sixth assignment of error.

However, we have overruled her sixth assignment of error and reject this argument. Adams App. No. 21CA1127 31

A. Standard of Review

{¶73} We conduct a de novo review of the record to determine whether the plea

was made knowingly, intelligently, and voluntarily:

“An appellate court determining whether a guilty plea was entered knowingly, intelligently, and voluntarily conducts a de novo review of the record to ensure that the trial court complied with the constitutional and procedural safeguards.” State v. Moore, 4th Dist. Adams No. 13CA965, 2014–Ohio–3024, ¶ 13.

State v. Leonhart, 4th Dist. Washington No. 13CA38, 2014-Ohio-5601, ¶ 36.

B. Hughes’s Guilty Plea Was Made Knowingly and Voluntarily

{¶74} A guilty plea involves a waiver of constitutional rights and the decision to

enter a plea must be knowing, intelligent, and voluntary. State v. Dangler, 162 Ohio

St.3d 1, 2020-Ohio-2765, 164 N.E.3d 286, ¶ 10, citing Parke v. Raley, 506 U.S. 20, 28-

29, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992). If the plea was not made knowingly,

intelligently, and voluntarily, enforcement of that plea is unconstitutional. Id.

{¶75} Ohio's Crim.R. 11 outlines the procedures that trial courts are to follow

when accepting pleas. “The rule ‘ensures an adequate record on review by requiring the

trial court to personally inform the defendant of his rights and the consequences of

his plea and determine if the plea is understandingly and voluntarily made.’ ” Dangler at

¶ 11, quoting State v. Stone, 43 Ohio St.2d 163, 168, 331 N.E.2d 411 (1975).

{¶76} “When a criminal defendant seeks to have his conviction reversed on

appeal, the traditional rule is that he must establish that an error occurred in the trial-

court proceedings and that he was prejudiced by that error.” Dangler at ¶ 13; Crim.R.

52.

Properly understood, the questions to be answered are simply: (1) has the trial court complied with the relevant provision of the rule? (2) if Adams App. No. 21CA1127 32

the court has not complied fully with the rule, is the purported failure of a type that excuses a defendant from the burden of demonstrating prejudice? and (3) if a showing of prejudice is required, has the defendant met that burden?

Dangler at ¶ 17.

{¶77} The record shows that the trial court properly complied with Crim.R. 11

and Hughes does not contend otherwise. The record further shows that her ambiguity

about her guilt on the endangering children count prior to the recess ceased after she

consulted with her attorney and the proceedings resumed. Hughes clearly and

unequivocally pleaded guilty to both felonious assault and endangering children.

{¶78} Even if Hughes believed she was innocent while pleading guilty, it would

not require us to set aside her guilty plea. Persons who believe they are innocent, but

conclude the evidence is incriminating enough that a jury would find them guilty, may

plead guilty with an Alford plea. See State v. Hughes, 4th Dist. Highland No. 20CA2,

2021-Ohio-111. Hughes does not argue that she intended to enter an Alford plea and

nothing in the record supports such a finding.

{¶79} We overrule her seventh assignment of error.

X. CONCLUSION

{¶80} We overrule the first, second, third, fifth, sixth and seventh assignments of

error and sustain the fourth assignment of error. We affirm the trial court’s judgment in

part, vacate it in part, and remand for further proceedings consistent with this opinion.

JUDGMENT AFFIRMED IN PART AND VACATED IN PART. CAUSE REMANDED. Adams App. No. 21CA1127 33

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED IN PART AND VACATED IN PART. CAUSE REMANDED. Appellant shall pay the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Adams County Court of Common Pleas to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed 60 days upon the bail previously posted. The purpose of a continued stay is to allow appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the 60-day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of 60 days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.

Smith, P.J. & Wilkin, J.: Concur in Judgment and Opinion.

For the Court

BY: ________________________ Michael D. Hess, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.