[Cite as State v. Richards, 2014-Ohio-381.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION Nos. 99690 and 99825
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ALBERT RICHARDS
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-567371 and CR-564475
BEFORE: Jones, P.J., E.A. Gallagher, J., and Stewart, J.
RELEASED AND JOURNALIZED: February 6, 2014 ATTORNEY FOR APPELLANT
Jeffrey Froude P.O. Box 771112 Lakewood, Ohio 44107
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
BY: James Hofelich Assistant County Prosecutor The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 LARRY A. JONES, SR., P.J.:
{¶1} Defendant-appellant Albert Richards appeals his conviction in two cases,
arguing that he was not afforded effective assistance of counsel. We affirm.
{¶2} In 2012, Richards pleaded guilty in Case No. CR-564475 to one count of
attempted having weapons while under disability and agreed to forfeit a gun. At the
same plea hearing, he pleaded guilty in Case No. CR-567371 to one count each of
improperly handling firearms in a motor vehicle and drug possession and agreed to forfeit
a gun. The trial court ordered a presentence investigation report and continued the
matter for sentencing.
{¶3} At the sentencing hearing, the trial court sentenced Richards to 12 months in
prison in Case No. CR-564475 and 15 months in prison in Case No. CR-567371 and
ordered the sentences to run consecutive. The public defender’s office represented
Richards at both his plea and sentencing hearings.
{¶4} Richards filed a notice of delayed appeal in both cases, which this court
granted. This court sua sponte consolidated the appeals for briefing and disposition.
Richards raises one assignment of error for our review:
[I.] The public defender’s office erred in failing to report a conflict of
interest to the court.
{¶5} Richards argues that his attorney, an assistant public defender, rendered
ineffective assistance of counsel because the attorney did not inform the trial court that the public defender’s office had a potential conflict. According to Richards, the public
defender’s office represented two of the three codefendants during proceedings related to
the 1987 homicide of Richards’s parents. Richards asks this court to vacate his guilty
plea and sentence.
{¶6} We are unable to address this issue on direct appeal, however, because it was
not raised in the trial court, it is not part of the trial court record, and relies on evidence
outside the record.
{¶7} Our function as an appellate court is to review the proceedings that occurred
in the trial court and determine whether any errors occurred in those proceedings.
Walton v. Dynamic Auto Body, 7th Dist. Columbiana No. 12 CO 11, 2013-Ohio-758, ¶ 4.
“We are a court of record and our review of cases brought before us is confined to the
record as defined in App.R. 9(A).” Id. As such, we are limited to a review of the
record on appeal, consisting of “[t]he original papers and exhibits thereto filed in the trial
court, the transcript of proceedings, if any, including exhibits, and a certified copy of the
docket and journal entries prepared by the clerk of the trial court.” App.R. 9(A).
{¶8} Richards did not raise the issue of a conflict or the representation of any
codefendants in relation to the murder of his parents during the trial court proceedings in
this case. In fact, the conflict issue was not raised until after Richards filed his appeal
and has only been raised on appeal, e.g., he did not file a motion to withdraw his guilty
plea in the trial court. Consequently, because the conflict issue is not properly before
this court, we are unable to consider whether the public defender’s office had a conflict in representing Richards during his plea and sentencing hearings.
{¶9} Because the conflict issue is the only argument Richards raises, we could
summarily overrule his assignment of error and affirm the trial court’s judgment. We
employ our discretion, however, and consider whether Richards received effective
assistance of counsel based on the App.R. 9(B) record before us.
{¶10} We review a claim of ineffective assistance of counsel under the two-part
test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). In order to prevail on an ineffective assistance of counsel claim, an appellant
must demonstrate that his or her counsel’s performance fell below an objective standard
of reasonable representation, and show there was a reasonable probability that counsel’s
errors affected the outcome of the proceedings. Id.
{¶11} In order to prove a claim of ineffective assistance of counsel with a guilty
plea, an appellant must demonstrate that there is a reasonable probability that, but for
counsel’s errors, he or she would not have pled guilty and would have insisted on going to
trial. State v. Wright, 8th Dist. Cuyahoga No. 98345, 2013-Ohio-936, ¶ 12. As this
court has previously recognized:
[W]hen a defendant enters a guilty plea as part of a plea bargain, he waives all appealable errors that may have occurred at trial, unless such errors are shown to have precluded the defendant from entering a knowing and voluntary plea. State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991). “A failure by counsel to provide advice [which impairs the knowing and voluntary nature of the plea] may form the basis of a claim of ineffective assistance of counsel, but absent such a claim it cannot serve as the predicate for setting aside a valid plea.” United States v. Broce, 488 U.S. 563, 574, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). Accordingly, a guilty plea waives the right to claim that the accused was prejudiced by constitutionally ineffective counsel, except to the extent the defects complained of caused the plea to be less than knowing and voluntary. State v. Barnett, 73 Ohio App.3d 244, 248, 596 N.E.2d 1101 (2d Dist.1991).
State v. Milczewski, 8th Dist. Cuyahoga No. 97138, 2012-Ohio-1743, ¶ 5.
{¶12} Pursuant to Crim.R. 11(C)(2), a court shall not accept a guilty plea in a
felony case without first addressing the defendant personally and doing all of the
following:
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved * * *.
(b) Informing the defendant of and determining that the defendant understands the effect of the plea * * *, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands
that by the plea the defendant is waiving the rights to jury trial, to confront
witnesses against him or her, to have compulsory process for obtaining
witnesses in the defendant’s favor, and to require the state to prove the
defendant’s guilt beyond a reasonable doubt at a trial at which the defendant
cannot be compelled to testify against himself or herself.
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[Cite as State v. Richards, 2014-Ohio-381.]
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION Nos. 99690 and 99825
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ALBERT RICHARDS
DEFENDANT-APPELLANT
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-567371 and CR-564475
BEFORE: Jones, P.J., E.A. Gallagher, J., and Stewart, J.
RELEASED AND JOURNALIZED: February 6, 2014 ATTORNEY FOR APPELLANT
Jeffrey Froude P.O. Box 771112 Lakewood, Ohio 44107
ATTORNEYS FOR APPELLEE
Timothy J. McGinty Cuyahoga County Prosecutor
BY: James Hofelich Assistant County Prosecutor The Justice Center, 8th Floor 1200 Ontario Street Cleveland, Ohio 44113 LARRY A. JONES, SR., P.J.:
{¶1} Defendant-appellant Albert Richards appeals his conviction in two cases,
arguing that he was not afforded effective assistance of counsel. We affirm.
{¶2} In 2012, Richards pleaded guilty in Case No. CR-564475 to one count of
attempted having weapons while under disability and agreed to forfeit a gun. At the
same plea hearing, he pleaded guilty in Case No. CR-567371 to one count each of
improperly handling firearms in a motor vehicle and drug possession and agreed to forfeit
a gun. The trial court ordered a presentence investigation report and continued the
matter for sentencing.
{¶3} At the sentencing hearing, the trial court sentenced Richards to 12 months in
prison in Case No. CR-564475 and 15 months in prison in Case No. CR-567371 and
ordered the sentences to run consecutive. The public defender’s office represented
Richards at both his plea and sentencing hearings.
{¶4} Richards filed a notice of delayed appeal in both cases, which this court
granted. This court sua sponte consolidated the appeals for briefing and disposition.
Richards raises one assignment of error for our review:
[I.] The public defender’s office erred in failing to report a conflict of
interest to the court.
{¶5} Richards argues that his attorney, an assistant public defender, rendered
ineffective assistance of counsel because the attorney did not inform the trial court that the public defender’s office had a potential conflict. According to Richards, the public
defender’s office represented two of the three codefendants during proceedings related to
the 1987 homicide of Richards’s parents. Richards asks this court to vacate his guilty
plea and sentence.
{¶6} We are unable to address this issue on direct appeal, however, because it was
not raised in the trial court, it is not part of the trial court record, and relies on evidence
outside the record.
{¶7} Our function as an appellate court is to review the proceedings that occurred
in the trial court and determine whether any errors occurred in those proceedings.
Walton v. Dynamic Auto Body, 7th Dist. Columbiana No. 12 CO 11, 2013-Ohio-758, ¶ 4.
“We are a court of record and our review of cases brought before us is confined to the
record as defined in App.R. 9(A).” Id. As such, we are limited to a review of the
record on appeal, consisting of “[t]he original papers and exhibits thereto filed in the trial
court, the transcript of proceedings, if any, including exhibits, and a certified copy of the
docket and journal entries prepared by the clerk of the trial court.” App.R. 9(A).
{¶8} Richards did not raise the issue of a conflict or the representation of any
codefendants in relation to the murder of his parents during the trial court proceedings in
this case. In fact, the conflict issue was not raised until after Richards filed his appeal
and has only been raised on appeal, e.g., he did not file a motion to withdraw his guilty
plea in the trial court. Consequently, because the conflict issue is not properly before
this court, we are unable to consider whether the public defender’s office had a conflict in representing Richards during his plea and sentencing hearings.
{¶9} Because the conflict issue is the only argument Richards raises, we could
summarily overrule his assignment of error and affirm the trial court’s judgment. We
employ our discretion, however, and consider whether Richards received effective
assistance of counsel based on the App.R. 9(B) record before us.
{¶10} We review a claim of ineffective assistance of counsel under the two-part
test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
(1984). In order to prevail on an ineffective assistance of counsel claim, an appellant
must demonstrate that his or her counsel’s performance fell below an objective standard
of reasonable representation, and show there was a reasonable probability that counsel’s
errors affected the outcome of the proceedings. Id.
{¶11} In order to prove a claim of ineffective assistance of counsel with a guilty
plea, an appellant must demonstrate that there is a reasonable probability that, but for
counsel’s errors, he or she would not have pled guilty and would have insisted on going to
trial. State v. Wright, 8th Dist. Cuyahoga No. 98345, 2013-Ohio-936, ¶ 12. As this
court has previously recognized:
[W]hen a defendant enters a guilty plea as part of a plea bargain, he waives all appealable errors that may have occurred at trial, unless such errors are shown to have precluded the defendant from entering a knowing and voluntary plea. State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991). “A failure by counsel to provide advice [which impairs the knowing and voluntary nature of the plea] may form the basis of a claim of ineffective assistance of counsel, but absent such a claim it cannot serve as the predicate for setting aside a valid plea.” United States v. Broce, 488 U.S. 563, 574, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). Accordingly, a guilty plea waives the right to claim that the accused was prejudiced by constitutionally ineffective counsel, except to the extent the defects complained of caused the plea to be less than knowing and voluntary. State v. Barnett, 73 Ohio App.3d 244, 248, 596 N.E.2d 1101 (2d Dist.1991).
State v. Milczewski, 8th Dist. Cuyahoga No. 97138, 2012-Ohio-1743, ¶ 5.
{¶12} Pursuant to Crim.R. 11(C)(2), a court shall not accept a guilty plea in a
felony case without first addressing the defendant personally and doing all of the
following:
(a) Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved * * *.
(b) Informing the defendant of and determining that the defendant understands the effect of the plea * * *, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant understands
that by the plea the defendant is waiving the rights to jury trial, to confront
witnesses against him or her, to have compulsory process for obtaining
witnesses in the defendant’s favor, and to require the state to prove the
defendant’s guilt beyond a reasonable doubt at a trial at which the defendant
cannot be compelled to testify against himself or herself.
{¶13} In this case, the trial court questioned Richards thoroughly, advised him of
the rights he was waiving, informed him that the court could proceed with judgment and
sentence, explained to him the possible penalties and maximum sentence involved, and
informed him of his postrelease control obligations. The trial court also informed
Richards that there were possible additional consequences if he pleaded guilty because he was on postrelease control at the time he committed his offenses. The trial court further
explained to him what it meant to forfeit the guns that were seized during his crimes.
{¶14} Based on the record before us, the trial court complied with the Crim.R. 11
mandates and Richards made his plea knowingly, intelligently, and voluntarily. As for
the sentencing phase, a review of the hearing does not demonstrate, under Strickland, that
trial counsel’s performance was deficient. Therefore, Richards was afforded effective
assistance of trial counsel.
{¶15} Richards’s sole assignment of error is overruled.
{¶16} Judgment affirmed.
It is ordered that appellee recover from appellant its 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. The defendant’s convictions having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
LARRY A. JONES, SR., PRESIDING JUDGE
EILEEN A. GALLAGHER, J., and MELODY J. STEWART, J., CONCUR