State v. Jeter

2023 Ohio 145

• Court: Ohio Court of Appeals
• Decided: January 19, 2023
• Docket: 111881
• Status: Published

Opinion

[Cite as State v. Jeter, 2023-Ohio-145.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, : No. 111881 v. :

RASHAD JETER, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED RELEASED AND JOURNALIZED: January 19, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-21-655952-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Katherine E. Mullin, Assistant Prosecuting Attorney, for appellee.

McNeal Legal Services, LLC, and Christopher McNeal, for appellant.

EILEEN T. GALLAGHER, J.:

This cause came to be heard on the accelerated calendar pursuant to

App.R. 11.1 and Loc.App.R. 11.1. Defendant-appellant, Rashad Jeter (“Jeter”), appeals from her conviction and sentence following a guilty plea. She raises the

following assignments of error for review:

1. The record does not support the sentence imposed because Jeter was not subject to a driving suspension under Chapter 4510 of the Ohio Revised Code at the time of her offense.

2. If Jeter was actually under a driver’s suspension, the doctrine of invited error precludes the state of Ohio from prosecuting her for such, due to the fact that the state of Ohio issued her a driver’s license.

3. Trial counsel was ineffective for failing to challenge the validity of Jeter’s alleged driver’s license suspension.

After careful review of the record and relevant case law, we affirm

Jeter’s conviction and sentence.

I. Procedural and Factual History

In January 2021, Jeter was named in a two-count indictment, charging

her with aggravated vehicular assault in violation of R.C. 2903.08(A)(2)(b), with a

furthermore clause that Jeter was driving under a suspension imposed pursuant

Chapter 4510 of the Ohio Revised Code (Count 1); and aggravated vehicular assault

in violation of R.C. 2903.08(A)(2)(a) (Count 2). The indictment stemmed from

allegations that on October 22, 2020, Jeter recklessly operated a motor-vehicle,

resulting in serious physical harm to the victim, L.R.

In November 2021, Jeter retracted her former plea of not guilty and

entered a plea of guilty to one count of aggravated vehicular assault, a felony of the

third degree, as charged in Count 1 of the indictment. In exchange for her plea,

Count 2 of the indictment was nolled. Satisfied that Jeter’s plea was knowingly,

voluntarily, and intelligently made, the trial court accepted Jeter’s guilty plea and referred her to the county probation department for the completion of a

presentence-investigation report.

In January 2022, the trial court sentenced Jeter to a 24-month term of

imprisonment, and suspended her driver’s license until January 26, 2032.

In August 2022, Jeter filed a motion for delayed appeal pursuant to

App.R. 5. The motion incorporated Jeter’s own affidavit and several exhibits that

were not part of the trial record. In September 2022, this court granted Jeter’s

request for a delayed appeal. Accordingly, Jeter now appeals from her conviction

and sentence.

II. Law and Analysis

A. The Furthermore Clause

In the first assignment of error, Jeter argues the record does not

support her prison sentence because, contrary to the allegation set forth in the

indictment, her driver’s license was not suspended at the time of the offense.

Alternatively, Jeter argues in the second assignment of error that even if her driver’s

license was suspended, the state was precluded from prosecuting the furthermore

specification because the Ohio Bureau of Motor Vehicles issued her a driver’s license

on July 6, 2020. Relying on the doctrine of invited error, Jeter suggests that the

state of Ohio “entrapped [her] to drive under suspension or created the conditions

which compelled her to drive without a license.” We address these assignments of

error together because they are related. In this case, Jeter entered a guilty plea, thereby admitting to the

indicted charge of aggravated vehicular assault in violation of R.C.

2903.08(A)(2)(b), with the attendant furthermore clause that Jeter was driving

under a suspension imposed pursuant to Chapter 4510 of the Ohio Revised Code.

The nature of the furthermore clause elevated the offense to a felony of the third

degree. See R.C. 2903.08(C)(2). Moreover, R.C. 2903.08(D)(2)(b) required the

trial court to impose a mandatory prison term because “[a]t the time of the offense,

the offender was driving under suspension * * *.”

It is well-settled that a plea of guilty is “a complete admission of the

defendant’s guilt.” Crim.R. 11(B)(1); see also State v. Korecky, 8th Dist. Cuyahoga

No. 108328, 2020-Ohio-797, ¶ 16. “By implication, a valid guilty plea represents a

complete admission to the state’s rendition of the facts upon which the charges are

based and which it represents it would prove had the matter proceeded to trial.”

State v. Kaufmann, 11th Dist. Ashtabula No. 2022-A-0011, 2022-Ohio-3487, ¶ 15.

This includes the facts supporting the specifications accompanying the underlying

offenses. State v. Fry, 8th Dist. Cuyahoga No. 109593, 2021-Ohio-2838, ¶ 26, citing

State v. Sims, 2019-Ohio-4975, 149 N.E.3d 1143, ¶ 18 (8th Dist.).

On appeal, Jeter suggests that the facts supporting the furthermore

clause were inaccurate, and therefore, should not have elevated the offense to a

third-degree felony pursuant to R.C. 2903.08(C)(2). As previously discussed,

however, by entering a plea of guilty to Count 1 as indicted, Jeter admitted that the

violation of R.C. 2903.08(A)(2)(b) was committed while she was driving with a suspended license. Jeter has therefore waived the right to challenge the sufficiency

of the evidence supporting her third-degree felony conviction. State v.

Haynesworth, 8th Dist. Cuyahoga No. 109965, 2021-Ohio-1817, ¶ 9 (“A guilty plea

waives a defendant’s right to challenge sufficiency or manifest weight of the

evidence.”), quoting State v. Hill, 8th Dist. Cuyahoga No. 90513, 2008-Ohio-4857,

¶ 6. See also State v. Rice, 8th Dist. Cuyahoga No. 106953, 2018-Ohio-5356, ¶ 8,

citing State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51. In the

absence of evidence to suggest Jeter’s plea was not knowingly, intelligently, and

voluntarily made, we find the trial court did not err by accepting Jeter’s guilty plea

and imposing a mandatory prison term on the third-degree felony offense. See R.C.

2903.08(C)(2), 2903.08(D)(2)(b), and 2929.13(F)(4).

We further find no merit to Jeter’s reliance on the doctrine of invited

error. Significantly, we note that the various traffic records cited in support of

Jeter’s position are not part of the trial court’s record below. Accordingly, we decline

to consider the documents for the first time on appeal. See App.R. 9; State v. Davis,

8th Dist. Cuyahoga No. 110301, 2021-Ohio-4015, ¶ 22 (“Appellate review is limited

to the record, and a reviewing court cannot add any new matter to the record that

was not part of the trial court’s proceedings or decide the appeal on the basis of any

new matter not before the trial court.”), citing State v. Ishmail, 54 Ohio St.2d 402,

377 N.E.2d 500 (1978), paragraph two of the syllabus.

The first and second assignments of error are overruled.

B. Ineffective Assistance of Counsel In the third assignment of error, Jeter argues defense counsel

rendered ineffective assistance of counsel by failing to challenge the validity of her

alleged driver’s-license suspension. Jeter also contends that defense counsel was

ineffective for waiting until the day of the plea hearing to advise her that she was

subject to a mandatory prison term.

To establish ineffective assistance of counsel, Jeter 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 outcome of the proceeding would have

been different.” State v. Sowell, 148 Ohio St.3d 554, 2016-Ohio-8025, 71 N.E.3d

1034, ¶ 138, citing Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373

(1989), paragraphs two and three of the syllabus. The failure to prove either prong

of this two-part test makes it unnecessary for a court to consider the other prong.

State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000), citing Strickland

at 697.

A licensed attorney is presumed to be competent, and a defendant

claiming ineffective assistance bears the burden of proof. State v. Black, 2019-Ohio-

4977, 149 N.E.3d 1132, ¶ 35 (8th Dist.), citing State v. Smith, 17 Ohio St.3d 98, 100,

477 N.E.2d 1128 (1985). “‘A reviewing court will strongly presume that counsel

rendered adequate assistance and made all significant decisions in the exercise of

reasonable professional judgment.’” State v. Powell, 2019-Ohio-4345, 134 N.E.3d 1270, ¶ 69 (8th Dist.), quoting State v. Pawlak, 8th Dist. Cuyahoga No. 99555, 2014-

Ohio-2175, ¶ 69.

As an initial matter, we note that Jeter has not filed the transcript of

the plea hearing. In the absence of a transcript or alternative record under App.R.

9(C) or (D), we must presume regularity in the proceedings below. State v.

Lababidi, 8th Dist. Cuyahoga No. 96755, 2012-Ohio-267, 969 N.E.2d 335, ¶ 13;

State v. Rice, 8th Dist. Cuyahoga No. 95100, 2011-Ohio-1929. We therefore reject

Jeter’s suggestion that defense counsel rendered ineffective assistance of counsel by

failing to provide her advance notice that her conviction carried a mandatory prison

term. Presuming the trial court completed a full Crim.R. 11 colloquy and ensured

that Jeter understood the mandatory nature of her prison term, Jeter cannot

establish the requisite level of prejudice to warrant a finding of ineffective assistance

of counsel.

Regarding Jeter’s contention that counsel was ineffective for failing to

challenge the validity or accuracy of the furthermore specification attached to Count

1 of the indictment, we reiterate that Jeter’s argument depends exclusively on off-

the-record discussions and information that was discovered after her guilty plea was

entered. Generally, “when an ineffective-assistance claim is based on evidence

outside the record, the proper vehicle for raising the claim is a petition for

postconviction relief, not a direct appeal.” State v. Fisher, 8th Dist. Cuyahoga No.

108494, 2020-Ohio-670, ¶ 22, citing State v. Kennard, 10th Dist. Franklin No.

15AP-766, 2016-Ohio-2811, ¶ 24; State v. Mankins, 8th Dist. Cuyahoga No. 99356, 2013-Ohio-4039, ¶ 23; State v. Irwin, 7th Dist. Columbiana No. 11CO6, 2012-Ohio-

2704, ¶ 97 (“While evidence may exist outside the record to support an appellant’s

contention of ineffective assistance, a direct appeal is not the proper place to present

this evidence.”). In this case, Jeter’s claim hinges on the veracity of various traffic

records that were not incorporated into the record below. Consequently, a claim of

ineffective assistance of counsel based on these records is not properly before this

court.

For the foregoing reasons, Jeter’s ineffective assistance of counsel

claim fails. Jeter has not established that she was prejudicially denied her

constitutional right to effective assistance of counsel. The third assignment of error

is overruled.

Judgment affirmed.

It is ordered that appellee recover from appellant costs herein taxed.

The court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this court directing the

common pleas court to carry this judgment into execution.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

EILEEN T. GALLAGHER, JUDGE

ANITA LASTER MAYS, A.J., and MICHAEL JOHN RYAN, J., CONCUR