[Cite as State v. Hayes, 2016-Ohio-330.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                      LUCAS COUNTY


State of Ohio                                        Court of Appeals No. L-14-1249

        Appellee                                     Trial Court No. CR0201401129

v.

Leon J. Hayes                                        DECISION AND JUDGMENT

        Appellant                                    Decided: January 29, 2016

                                              *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Evy M. Jarrett, Assistant Prosecuting Attorney, for appellee.

        Robert P. Soto, for appellant.

                                              *****

        YARBROUGH, J.

                                           I. Introduction

        {¶ 1} This is an appeal from a conviction in the Lucas County Court of Common

Pleas on two counts of attempt to commit aggravated arson.
                                         A. Facts

       {¶ 2} On January 1, 2014, appellant’s ex-girlfriend hosted a party at her home in

Toledo, Ohio. Appellant was not invited to the party but was still in attendance.

Appellant arrived at the party either already intoxicated or he became intoxicated after his

arrival. Partygoers called the police when appellant became disruptive. Appellant left

the party and returned later the same night. At this point, appellant broke a window on

the lower level of the house. Appellant left again and returned at 3:00 a.m. Appellant’s

ex-girlfriend, his daughter, and two others were sleeping in the house. Appellant

proceeded to reach through the broken window and poured a flammable liquid into the

residence. He then set the liquid on fire. The small fire charred the window before going

out on its own. Appellant’s ex-girlfriend saw appellant standing outside of the window

while this incident took place.

       {¶ 3} Appellant was charged with four counts of aggravated arson, a felony of the

first degree, in violation of R.C. 2909.02(A)(1) and one count of arson, a felony of the

fourth degree, in violation of R.C. 2909.03(A)(1) and (B)(2)(b). He was later charged by

information with attempted aggravated arson, a felony of the third degree, in violation of

R.C. 2923.02 and 2909.02(A)(2). Appellant entered an Alford plea to attempt to commit

aggravated arson, a felony of the second degree, and attempt to commit aggravated arson,

a felony of the third degree. North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27

L.Ed.2d 162 (1970). The trial court sentenced appellant to six years of prison for each

count to run concurrently.




2.
                                B. Assignments of Error

       {¶ 4} Appellant brings forth four assignments of error for our review:

              1. The trial court abused its discretion and committed reversible

       error in accepting the defendant’s plea despite evidence that it was not

       accepted voluntarily, knowingly, and intelligently.

              2. Appellant’s trial counsel provided ineffective assistance by

       misrepresenting the plea offer and inducing his client into accepting a plea

       based upon this misrepresentation.

              3. The indictment is defective because it violates the appellant’s

       constitutional right to due process of law and double jeopardy.

              4. The trial court imposed a sentence contrary to law and abused its

       discretion in imposing the sentences on both counts.

                                        II. Analysis

                                  A. Acceptance of Plea

       {¶ 5} Appellant first contends that the trial court abused its discretion when it

accepted appellant’s plea as the plea was not made intelligently, knowingly, or

voluntarily. Specifically, appellant argues he was misled by the trial court about the

availability of community control as a sentence. A trial court has the sound discretion to

accept a plea. State v. Raymond, 10th Dist. Franklin No. 05AP-1043, 2006-Ohio-3259,

¶ 10; Crim.R. 11(C)(2). A trial court abuses its discretion when the court commits more

than an error of law or judgment, but rather that “the court’s attitude is unreasonable,




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arbitrary, or unconscionable.” Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450

N.E.2d 1140 (1983).

       {¶ 6} For a plea to be accepted by the trial court, the plea must be given

intelligently, knowingly, and voluntarily. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-

3748, 893 N.E.2d 462, ¶ 27. In all felony cases, a trial court is required to address the

defendant personally and determine whether the plea is made voluntarily, the defendant

understands the charges against him, the possible maximum sentence, and whether the

defendant is eligible for probation or community control. Id.; Crim.R. 11(C)(2)(a). The

trial court must inform the defendant of all rights the defendant is waiving by deciding to

plea to the charge rather than pursue the charge at trial. Crim.R. 11(C)(2)(c).

       {¶ 7} Appellant argues that because the trial court informed appellant of the

possibility of community control, he was led to believe community control as a sanction

was likely. Appellant argues that based on this belief, he was induced to make an Alford

plea. Appellant focuses on a hearing held by the trial court on April 28, 2015. During

this hearing, appellant rejected a proposed plea agreement. At the hearing, the trial court

informed appellant of all of the possible sanctions he was facing, should the case have

continued to trial. Appellant was facing a $25,000 fine and 41.5 years in prison. The

trial court stated that the court was aware that no one was hurt and there was minimal

damage to the structure itself. The court stated “that’s a good thing.” The court also

informed appellant there was a rebuttable presumption against a prison term for felonies

of the second degree.




4.
       {¶ 8} However, the trial court then stated, “I’d have to hear more about the facts or

the background to indicate whether there would ever be a chance that I would consider

community control.” The court also stated he did not know what the sentence was going

to be at that particular time and informed appellant of the factors that he would consider.

The trial court stated, “It doesn’t matter to me if you take the plea.” During the

conversation with appellant, the trial court also clearly states it is relaying this

information to appellant to ensure he understands the plea agreement.

       {¶ 9} At a second hearing, appellant accepted a plea agreement offered by the

prosecution. A different trial judge formally accepted the plea by appellant. During this

hearing, the trial court presented two possible outcomes in terms of sentencing. The first

option was the possibility of a prison term of more than 40 years and a $25,000 fine. The

second option covered by the trial judge was the option for a period of community

control. The trial judge did not indicate that community control was a more likely

sanction than penitentiary time but rather informed appellant of its possibility. Appellant

was also informed that the trial court was not required to follow the recommendation by

the prosecution.

       {¶ 10} The trial court did not abuse its discretion by accepting appellant’s plea and

appellant was not misled by the trial court during the course of several hearings. The trial

court merely informed appellant of his rights and the possible consequences if the plea

was not accepted. The trial court is required to personally address the defendant and

determine whether he understood his constitutionally protected rights. The lengthy




5.
discussion the trial court had with appellant did not exert undue pressure on appellant to

accept the plea agreement. In fact, during the hearing in which appellant argues the trial

court pressured him to accept a plea, appellant did not accept a proposed plea agreement.

Further, when community control was spoken about as an option, it was the second

option given to appellant. The trial court made no promises about the possible sentence

and the trial court did not attempt to induce appellant into accepting a plea. Therefore, we

find appellant’s first assignment of error not well-taken.

                          B. Ineffective Assistance of Counsel

       {¶ 11} Appellant’s second assignment of error agues he received ineffective

assistance of counsel because his trial counsel misrepresented a plea offer to appellant

and induced appellant into accepting a plea agreement. To support his claim for

ineffective assistance of counsel, appellant must show that counsel’s performance fell

below an objective standard of reasonableness, and a reasonable probability exists that,

but for defense counsel’s error, the results of the proceedings would have been different.

Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). On appeal, a defendant may only bring a claim of ineffective assistance of

counsel in relationship to whether counsel caused the defendant to be less than knowing

and voluntary. State v. Nguyen, 6th Dist. Lucas No. L-05-1369, 2007-Ohio-2034, ¶ 18.

       {¶ 12} Appellant asserts that trial counsel misrepresented the plea agreement to

him and, had this misrepresentation not taken place, he would not have pled to the

charges against him. According to appellant, trial counsel told appellant the racial




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makeup of the jury was not in his favor and he would likely be convicted if appellant

chose to go to trial. Trial counsel also allegedly informed appellant he would likely

receive community control as a sentence.

       {¶ 13} However, appellant’s claims are rebutted by the record. The trial court

engaged in a lengthy colloquy with appellant before accepting his Alford plea. The trial

court specifically asked appellant if he was satisfied with his trial counsel. Appellant

signed a written plea form which stated he was satisfied with his representation.

Appellant stated on the record that no promises or threats were made to induce his plea.

Appellant does not show how any advice he received from his trial counsel fell below an

objective standard of reasonableness. Trial counsel informed appellant of what counsel

believed would be the likely outcome of the trial. Appellant was free to disregard this

advice and proceed to trial. Based on the record, we find appellant’s second assignment

of error not well-taken.

                                      C. Indictment

       {¶ 14} Appellant’s third assignment of error argues his indictment is defective

because it violates appellant’s constitutional right to due process and double jeopardy.

An indictment is only sufficient if it (1) contains the elements of charged offenses, (2)

gives the defendant notice of the charges, and (3) protects the defendant against double

jeopardy. Hamling v. United States, 418 U.S. 87, 118, 94 S.Ct. 2887, 41 L.Ed.2d 590

(1974). The indictment must give defendant notice of the charges against him. Russell v.

United States, 369 U.S. 749, 765, 82 S.Ct. 1038, 8 L.Ed.2d 240 (1962). The indictment




7.
must set forth all of the elements of the charged offense and give a statement of the facts

and circumstances of the specific crimes charged. Id.

       {¶ 15} However, by entering an Alford plea appellant waived any alleged error

committed at trial, except those errors which affected the entry of appellant’s plea.

Nguyen, 6th Dist. Lucas No. L-05-1369, 2007-Ohio-2034, at ¶ 18. Furthermore, an

objection to an indictment or information must be made prior to the commencement of

trial or with leave of the court. R.C. 2941.29. Here, appellant did not object to the

indictment prior to trial, nor did he object when he was charged with attempt to commit

aggravated arson by information. Therefore, we do not find appellant’s third assignment

of error well-taken.

                                       D. Sentencing

       {¶ 16} Appellant then argues the trial court abused its discretion when sentencing

him to terms of imprisonment on both counts. Appellant argues the trial court did not

make the correct findings prior to sentencing him to a prison term. An appellate court

may increase, reduce, vacate, or otherwise modify a sentence if it clearly and

convincingly finds the record does not support the trial court’s findings it is required to

make or if the sentence is otherwise contrary to law. Id. R.C. 2929.12 requires a trial

court to consider factors listed in R.C. 2929.11 before sentencing a defendant who is

charged with a felony. These factors include the defendant’s past criminal history, the

defendant’s occupation, and any injury suffered by the victim. R.C. 2929.11. Appellant




8.
argues that because the trial court did not specifically articulate the factors it considered,

the trial court did not properly consider the required factors.

       {¶ 17} However, the trial court did consider the required factors. The trial court

stated it considered the factors in R.C. 2929.11 and its sentencing entry also reflected that

the factors were considered. The court also considered the presentence report, as well as

appellant’s previous criminal charges. The trial court considered appellant’s statement to

the court and the victim’s statement. Finally, the court took into consideration the limited

property damage and the fact that no one was injured during the crime. Appellant’s

sentence was well within the statutory limitations and therefore was not contrary to law.

We, therefore, find the trial court properly considered the required factors and find

appellant’s fourth assignment of error not well-taken.

                                      III. Conclusion

       {¶ 18} Based on the foregoing reasons, we affirm the decision of the Lucas

County Court of Common Pleas. Costs assessed to appellant pursuant to App.R. 24.


                                                                          Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




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                                                                     State v. Hayes
                                                                     C.A. No. L-14-1249




Mark L. Pietrykowski, J.                      _______________________________
                                                          JUDGE
Thomas J. Osowik, J.
                                              _______________________________
Stephen A. Yarbrough, J.                                  JUDGE
CONCUR.
                                              _______________________________
                                                          JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                 http://www.sconet.state.oh.us/rod/newpdf/?source=6.




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