[Cite as State v. Tyner, 2012-Ohio-2770.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 97403



                                      STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                       MAURY TYNER
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-539001

        BEFORE: E. Gallagher, J., Celebrezze, P.J., and Rocco, J.

        RELEASED AND JOURNALIZED:                    June 21, 2012
ATTORNEY FOR APPELLANT

David K. Greer
1150 Morse Road
Suite 230
Columbus, Ohio 43229-6327

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: James M. Rice
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, J.:

       {¶1}      Maury Tyner appeals from his sentence imposed in the Cuyahoga

County Court of Common Pleas. Tyner argues that the trial court failed to perform the

required inquiry during the plea hearing, and that his trial counsel rendered ineffective

assistance in recommending that he plead guilty. For the foregoing reasons, we affirm

the judgment of the trial court.

       {¶2} On June 30, 2011, a Cuyahoga County Grand Jury returned a three-count

indictment against Tyner charging him with felonious assault, kidnapping and domestic

violence with prior conviction specifications. During the pretrial proceedings, Tyner

actively participated in his defense, filing numerous pro se motions and demanding to be

present at all proceedings. The defendant’s dissatisfaction with his court-appointed

counsel resulted in the trial court twice removing counsel and assigning new counsel

each time.    Trial was scheduled to commence on March 21, 2011.            Prior to jury

selection, Tyner, through counsel, engaged in plea negotiations with the state of Ohio, on

the record. On that same date, he ultimately pleaded guilty to the indictment as charged.

       {¶3} During the plea hearing, Tyner told the court that he felt that the jury

would find him guilty despite his claim that he did not commit the acts charged. The

court then explained that Tyner needed to make the decision to plead guilty of his own

free will and that by doing so, he would be admitting the truth of those same charges.

Tyner responded that he understood. The trial court accepted Tyner’s plea of guilty to
felonious assault and domestic violence, as charged in the indictment. However, when

the court reached the charge of kidnapping, Tyner stated “I plead not guilty to

kidnapping. I’ll go to the abduction.” The trial court informed Tyner that such a plea

was not an option, and that he could either plead to the indictment or proceed to trial.

The court asked Tyner again, how he wanted to plead to count two, kidnapping, and

Tyner stated “guilty.” After each count, the court asked Tyner whether his plea of guilty

was made knowingly, voluntarily and of his own free will and each time, Tyner

responded in the affirmative.

       {¶4} Immediately after accepting the plea, the trial court sentenced Tyner to

three years on the charge of felonious assault, four years on the charge of kidnapping and

four years on the charge of domestic violence with prior conviction specifications. The

court ordered the prison terms to be served concurrently, for a total prison sentence of

four years.   Tyner appeals, raising the two assignments of error contained in the

appendix to this opinion.

       {¶5} In his first assignment of error, Tyner argues that because he proclaimed

his innocence during the plea hearing, the trial court erred in failing to perform an Alford

inquiry and thus, his plea of guilty was not knowingly, intelligently or voluntarily given.

In response, the state argues that this type of plea proceeding was never contemplated by

the parties or the court, and that Tyner did plead guilty of his own free will. We find no

merit to Tyner’s argument.

       {¶6} A trial court may accept a guilty plea despite protestations of innocence
when a factual basis for the guilty plea is evidenced by the record. North Carolina v.

Alford, 400 U.S. 25, 37-38, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). This type of plea is

called an Alford plea. Id. An Alford plea may not be accepted when the record fails to

show facts upon which the trial court can resolve the apparent conflict between a

defendant’s claim of innocence and the defendant’s desire to plead guilty to the charges.

State v. Horton-Alomar, 10th Dist. No. 04AP-744, 2005-Ohio-1537. For a valid Alford

plea to take place, the defendant must enter a guilty plea and at the same time protest

innocence. Id. The claim of innocence puts the trial court on notice that a factual basis

for the plea must be established. Id. “Implicit in any Alford plea is the requirement

[that] a defendant actually state his innocence on the record when entering a guilty plea.”

 State v. Murphy, 8th Dist. No. 68129, 1995 WL 517057 (Aug. 31, 1995).

       {¶7} Nowhere during the plea colloquy did Tyner claim he was innocent of the

charges. Further, after pleading guilty to each of the three charges, Tyner stated that he

had done so knowingly, voluntarily and of his own free will.

       {¶8} Although the transcript reveals that Tyner did state that he did not commit

the crimes he was charged with during the plea negotiations (tr. 86), he never stated his

innocence on the record at the time of his plea. Based on these facts, the trial court did

not err when it failed to treat Tyner’s guilty plea as an Alford plea. See Murphy.

       {¶9} In his second assignment of error, Tyner argues his trial counsel rendered

ineffective assistance in her recommendation that appellant plead guilty to the

indictment. We disagree.
       {¶10} To prevail on a claim of ineffective assistance of counsel upon entry of a

guilty plea, a defendant must meet the test set forth in Strickland v. Washington, 466

U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See State v. Xie, 62 Ohio St.3d 521,

524, 584 N.E.2d 715 (1992); State v. Cobb, 8th Dist. No. 76950, 2001-Ohio-4132. The

defendant must first show that counsel’s performance was deficient. Strickland. The

defendant must also show that there is a reasonable probability that, but for counsel’s

errors, he would not have pleaded guilty * * *.”     Strickland, quoting Hill v. Lockhart,

474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

       {¶11} The defendant bears the burden of proving ineffectiveness of counsel.

State v. McNeill , 83 Ohio St.3d 438, 451, 700 N.E.2d 596 (1998); Cobb. The defendant

cannot meet his burden by making bare allegations that find no support in the record.

State v. Leek, 8th Dist. No. 74338 (July 29, 1999), citing State v. Stewart, 8th Dist. No.

73255 (Nov. 19, 1998); Cobb.

       {¶12} Here, Tyner failed to satisfy either prong of the Strickland test as applied

to guilty pleas. According to Tyner, his trial counsel rendered ineffective assistance in

recommending that he plead guilty to the indictment as charged, in lieu of pleading

guilty to the state’s plea offer, which represented reduced charges. However, the record

before this court reveals that Tyner’s trial counsel recommended that he reject the state’s

plea offer because it required Tyner to agree to a four-year prison sentence. Trial

counsel argued that it was possible for Tyner to receive a lesser prison sentence if he

pleaded guilty to the indictment and Tyner should take his chances before the court.
This recommendation by Tyner’s trial counsel does not provide any indication that

counsel was deficient. Further, Tyner has failed to establish, through any evidence in

the record, how his allegations as outlined above, rise to the level of deficient

performance.

      {¶13}       We note that Tyner also failed to satisfy the second prong of the

Strickland test. The record here does not establish a reasonable probability that, but for

the action or inaction of trial counsel, the outcome of the plea proceeding would have

been different.     The entirety of the plea transcript reveals that Tyner feared the

possibility of a harsher penalty upon a jury’s guilty verdict. Tyner’s trial counsel made

her recommendation but stated to Tyner that “it’s your call.” The record before us does

not show a reasonable probability of a different outcome in the absence of this

representation. Accordingly, we overrule Tyner’s second and final assignment of error.

      {¶14} The judgment of the trial court is affirmed.

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

      It is ordered that a special mandate be sent to said lower court to carry this

judgment into execution. The defendant’s conviction 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.
EILEEN A. GALLAGHER, JUDGE

FRANK D. CELEBREZZE, JR., P.J., and
KENNETH A. ROCCO, J., CONCUR




                                      Appendix

Assignments of Error:

      “I. The trial court erred when it failed to perform a proper Alford inquiry after
      appellant told the court that he was pleading guilty even though he did not commit
      the crimes; thereby rendering his pleas not knowing, intelligent or voluntary.

      II. Appellant was denied his Sixth Amendment right to the effective assistance
      of counsel, as guaranteed by the U.S. Constitution, when his counsel
      recommended that he plead guilty to the indictment, instead of the lesser offenses
      of F3 abduction and F4 domestic violence as offered by the state, even though Mr.
      Tyner felt he was not guilty of kidnapping, without any indication he might
      receive a more lenient sentence from the court.”
