[Cite as State v. Hennen, 2012-Ohio-2278.]


STATE OF OHIO                    )                   IN THE COURT OF APPEALS
                                 )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                 )

STATE OF OHIO                                        C.A. No.      25903

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
TRACI A. HENNEN                                      COURT OF COMMON PLEAS
                                                     COUNTY OF SUMMIT, OHIO
        Appellant                                    CASE No.   CR 10 10 2758

                                 DECISION AND JOURNAL ENTRY

Dated: May 23, 2012



        BELFANCE, Judge.

        {¶1}    Defendant-Appellant Traci Hennen appeals from the judgment of the Summit

County Court of Common Pleas. For the reasons set forth below, we affirm.

                                                I.

        {¶2}    In October 2010, Ms. Hennen was charged with multiple counts of driving under

the influence of alcohol or drugs in violation of R.C. 4511.19: she was indicted for one count of

violating R.C. 4511.19(A)(1)(a), a felony of the fourth degree, along with a related specification

pursuant to R.C. 2941.1413, one count of violating R.C. 4511.19(A)(2), a felony of the fourth

degree, along with a related specification pursuant to R.C. 2941.1413, and one count of violating

R.C. 4511.19(A)(1)(f), a felony of the fourth degree, along with a related specification pursuant

to R.C. 2941.1413.

        {¶3}    On February 23, 2011, Ms. Hennen entered a plea of guilty to count one

(violating R.C. 4511.19(A)(1)(a)) and its accompanying specification. The remaining counts and
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specifications were dismissed. The trial court sentenced Ms. Hennen to a total prison term of

three years and also suspended her driver’s license for life. Ms. Hennen has appealed, raising

two assignments of error for our review.

                                               II.

                                 ASSIGNMENT OF ERROR I

       THE INDICTMENT FOR THE FELONY OVI OFFENSES AND THE
       SPECIFICATIONS UNDER O.R.C. []2941.1413 WERE STRUCTURALLY
       FLAWED BECAUSE THE INDICTMENT FAILED TO OUTLINE THE PRIOR
       CONVICTIONS WHICH SERVED AS UNDERLYING PREDICATE
       OFFENSES.

       {¶4}    Ms. Hennen asserts in her first assignment of error that her indictment was fatally

defective because it did not include the details of her prior convictions and that such defect

amounted to structural error.

       {¶5}    Ms. Hennen did not challenge the sufficiency of the indictment below. We have

previously noted that the Ohio Supreme Court has held that a defendant waives any deficiency in

the indictment by failing to object to the indictment and by pleading guilty to the offense. See

State v. Neal, 9th Dist. Nos. 24392, 24398, 2009-Ohio-3170, ¶ 2-3, quoting State v. Barton, 108

Ohio St.3d 402, 2006-Ohio-1324, ¶ 73. Ms. Hennen pleaded guilty to the charges at issue.      See

id. at ¶ 3. Thus, Ms. Hennen has forfeited review of this issue on appeal. See id. at ¶ 2-3.

Nonetheless, Ms. Hennen asserts that pursuant to State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-

1624, the omission constitutes structural error, and thus, this Court can consider her argument.

We note that this Court has stated that “Colon did not overrule the longstanding waiver rules

with regard to guilty pleas.” (Internal quotations and citation omitted.) Neal at ¶ 4. Moreover,

Colon was subsequently overruled in State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3803,

paragraphs one and three of the syllabus. Thus, Ms. Hennen has forfeited the right to challenge
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the sufficiency of the indictment. Neal at ¶ 4. Based on the foregoing, we overrule Ms.

Hennen’s first assignment of error.

                                 ASSIGNMENT OF ERROR II

       APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL
       IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS TO
       THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF
       THE OHIO CONSTITUTION.

       {¶6}    Ms. Hennen asserts in her second assignment of error that her trial counsel was

ineffective for failing to challenge the sufficiency of the indictment pursuant to Crim.R. 12(C).

Additionally, she seems to assert that her trial counsel was ineffective for failing to investigate

whether Ms. Hennen’s prior convictions were counseled and was ineffective for failing to make

the State “provide evidence of the convictions to sustain its burden of proof prior to allowing

[Ms. Hennen] to * * *[]” plead guilty.

       {¶7}    To prove an ineffective assistance claim, Ms. Hennen must show (1) that

counsel’s performance was deficient to the extent that “counsel was not functioning as the

‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) that “the deficient

performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). To

demonstrate prejudice, Ms. Hennen “must demonstrate that there is a reasonable probability that,

but for h[er] counsel’s error, [s]he would not have pleaded guilty and would have insisted on

going to trial.” State v. Evans, 9th Dist. No. 09CA0049–M, 2010–Ohio–3545, ¶ 4.

       {¶8}    Ms. Hennen asserts the indictment is defective only because it fails to list the

details of her prior convictions. Even assuming that the indictment was defective, Ms. Hennen’s

argument is predicated upon matters outside the record.         Ms. Hennen has not pointed to

evidence in the record to demonstrate that her trial counsel was unaware of the alleged defect

when her trial counsel advised her concerning the guilty plea. Under the circumstances of this
                                                  4


case, Ms. Hennen cannot demonstrate that trial counsel’s actions were anything other than

strategic decisions.   See State v. Carter, 72 Ohio St.3d 545, 558 (1995) (“Judicial scrutiny of

counsel’s performance is to be highly deferential, and reviewing courts must refrain from

second-guessing the strategic decisions of trial counsel. To justify a finding of ineffective

assistance of counsel, the appellant must overcome a strong presumption that, under the

circumstances, the challenged action might be considered sound trial strategy.”). It would not be

implausible that trial counsel was aware of the alleged defect and nonetheless, because of the

nature of the State’s plea offer, still advised Ms. Hennen that it was in her best interests to accept

the plea deal. Absent evidence to the contrary, we are not inclined to conclude Ms. Hennen’s

trial counsel’s performance was deficient.

       {¶9}    Ms. Hennen’s remaining arguments concerning ineffective assistance are that trial

counsel was ineffective for failing to investigate whether Ms. Hennen’s prior convictions were

counseled and was ineffective for failing to make the State “provide evidence of the convictions

to sustain its burden of proof prior to allowing [Ms. Hennen] to * * *[]” plead guilty.

       {¶10} We note that there is nothing in the record to substantiate Ms. Hennen’s allegation

that trial counsel failed to investigate this issue, and, thus, in order to substantiate her assertion,

Ms. Hennen would need to point to evidence outside the record. “[W]e cannot infer counsel’s

failure to investigate from a silent record; the burden of demonstrating ineffective assistance is

on [the defendant].” State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 68. Thus, Ms.

Hennen has failed to demonstrate that her trial counsel was deficient. Id.

       {¶11} Finally, it seems that Ms. Hennen asserts that trial counsel was ineffective as trial

counsel did not compel the State to provide evidence which would establish it could meet its

burden of proof prior to allowing Ms. Hennen to plead guilty. Ms. Hennen has not cited to any
                                                 5


law or rule with which the State failed to comply, App.R. 16(A)(7), and, therefore, has not met

her burden of establishing that her trial counsel was deficient in failing to require the State to

produce the evidence. See id.; see also State v. Nieves, 9th Dist. No. 96CA006379, 1997 WL

89213, *3 (Feb. 26, 1997) (noting that Nieves’ plea of guilty was a complete admission of guilt

to the crimes charged, and thus, the State “was not required to ‘prove’ anything[]”).

       {¶12} In light of the foregoing, we overrule Ms. Hennen’s second assignment of error.

                                                III.

       {¶13} In light of the forgoing, we overrule Ms. Hennen’s assignments of error and

affirm the judgment of the Summit County Court of Common Pleas.

                                                                               Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.
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      Costs taxed to Appellant.




                                          EVE V. BELFANCE
                                          FOR THE COURT



CARR, P. J.
DICKINSON, J.
CONCUR.


APPEARANCES:

CAROLYN KAYE RANKE and NANCY T. JAMIESON, Attorneys at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
