[Cite as State v. Blevins, 2016-Ohio-8382.]




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


State of Ohio                                     Court of Appeals No. OT-16-013

        Appellee                                  Trial Court No. 16 CR 015

v.

Arron Blevins                                     DECISION AND JUDGMENT

        Appellant                                 Decided: December 23, 2016

                                              *****

        Mark E. Mulligan, Ottawa County Prosecuting Attorney, and
        Joseph H. Gerber, Assistant Prosecuting Attorney, for appellee.

        Amanda A. Krzystan, for appellant.

                                              *****

        SINGER, J.

        {¶ 1} Appellant, Arron Blevins, appeals the April 8, 2016 judgment of the Ottawa

County Court of Common Pleas convicting him of rape in violation of R.C.

2907.02(A)(2), a felony of the first degree. Finding no error on record, we affirm.
                                   Assignments of Error

       {¶ 2} Appellant sets forth the following assignments of error:

              1. THE TRIAL COURT ERRED IN ACCEPTING APPELLANT’S

       WAIVER OF THE RIGHT TO A JURY TRIAL AS VOLUNTARY,

       KNOWING AND INTELLIGENT DURING APPELLANT’S PLEA

       CHANGE.

              2. THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE

       OF COUNSEL DURING HIS PLEA NEGOTIATIONS, PLEA CHANGE

       AND SENTENCING.

                                    Background Facts

       {¶ 3} Appellant was watching his ex-fiancé’s children and, while bathing them,

digitally penetrated an 11 month old. Appellant confessed to these facts, and also stated

he was using cannabis, heroin and crack cocaine during the incident.

       {¶ 4} Appellant was indicted on two counts in case No. 15 CR 079. Count 1 was

for rape in violation of R.C. 2907.02(A)(1)(b), a felony of the first degree that carries a

term of life imprisonment. Count 2 was for tampering with evidence in violation of R.C.

2921.12(A)(1), a felony of the third degree. Appellant initially pled not guilty.

       {¶ 5} On February 12, 2016, appellant changed his plea and, by way of

information in case No. 16 CR 015, pled guilty to rape in violation of R.C.

2907.02(A)(2), a felony of the first degree.




2.
       {¶ 6} At the February 12, 2016 change-plea hearing, appellant was informed of the

effect of, and the rights waived by, his guilty plea. Appellant confessed to the rape and

confirmed he understood his plea, including waived rights and possible sanctions. He

also confirmed he was clear minded and offered his plea free of coercion.

       {¶ 7} On April 8, 2016, the court proceeded to sentence appellant to 11 years

incarceration and 5 years mandatory postrelease control, along with a requirement that

appellant register as a Tier III sex offender. The sentence was journalized and appellant

now appeals.

                               Assignment of Error No. 1

       {¶ 8} In the first assignment of error, appellant makes three arguments that attack

his guilty plea. We will address each of appellant’s arguments, as numbered below.

                                   Appellant’s Charge

       {¶ 9} R.C. 2907.02(A)(2) pertinently provides no person shall engage in sexual

conduct with another when the offender purposely compels the other person to submit by

force or threat of force.

                                             1.

       {¶ 10} Appellant first argues his plea was invalid because the trial court failed to

advise him about the effect of waiving a jury trial on his chances of reversing his

sentence. Appellee contends appellant cites no legal support and appellant is

nevertheless incorrect where the trial court fully complied with Crim.R. 11.




3.
     {¶ 11} Crim.R. 11 states in pertinent part:

            (A) Pleas. A defendant may plead not guilty, not guilty by reason of

     insanity, guilty or, with the consent of the court, no contest.* * *

            (B) Effect of guilty or no contest pleas. With reference to the

     offense or offenses to which the plea is entered: (1) The plea of guilty is a

     complete admission of the defendant’s guilt. * * *

            (3) When a plea of guilty or no contest is accepted pursuant to this

     rule, the court, * * * shall proceed with sentencing under Crim.R. 32.

            (C) Pleas of guilty and no contest in felony cases. * * * (2) In

     felony cases the court may refuse to accept a plea of guilty or a plea of no

     contest, and shall not accept a plea of guilty or no contest 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, and, if applicable, that the defendant is not eligible for

     probation or for the imposition of community control sanctions at the

     sentencing hearing.

            (b) Informing the defendant of and determining that the defendant

     understands the effect of the plea of guilty or no contest, and that the court,

     upon acceptance of the plea, may proceed with judgment and sentence.




4.
             (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.

      {¶ 12} Here, we find the trial court fully complied with Crim.R. 11 and,

particularly, with Crim.R. 11(C)(2)(c). See State v. Ballard, 66 Ohio St.2d 473, 480, 423

N.E.2d 115 (1981) (holding the record must only show right to jury trial explained in

intelligible manner during plea colloquy). Appellant’s signed plea agreement stated:

             I enter a plea of GUILTY to the offense of: Count #ONE: Rape, a

      felony of the first degree (F1), Ohio Revised Code Section 2907.02(A)(2).

      I understand the MAXIMUM sentence COULD be: a maximum basic

      prison term of eleven (11) years of which none is mandatory, during which

      I am eligible for judicial release.

             * * * I understand the nature of these charges and the possible

      defenses I might have. I am satisfied with my attorney’s advice, counsel

      and competence. I am not now under the influence of drugs or alcohol. No

      threats have been made to me. No promises have been made except as part

      of this plea agreement: The State will dismiss Case No. 15-CR-079 at

      sentencing.




5.
              * * * I understand by pleading guilty, I give up my right to a jury

       trial or court trial, where I could see and have my attorney question

       witnesses against me, and where I could use the power of the Court to call

       witnesses to testify for me. I know at trial I would not have to take the

       witness stand and could not be forced to testify against myself and that no

       one could comment if I chose not to testify. I understand I waive my right

       to have the prosecutor prove my guilt beyond a reasonable doubt.

              By pleading guilty, I admit committing the offense and will tell the

       Court the facts and circumstances of my guilt.

       {¶ 13} The record further reveals the court complied with Crim.R. 11 colloquy,

which insured appellant was aware of his constitutional rights and the consequences of

his plea.

       {¶ 14} Specifically, at the plea hearing, appellant was questioned regarding his

understanding of the nature of the charge, was informed with regard to the maximum

penalty, and was informed of not being amenable to community control sanction.

       {¶ 15} Further, the court informed appellant and confirmed his understanding of

the effects of his guilty plea with regard to waiver of his right to jury trial, to confront

witnesses, to have compulsory process, to no self-incrimination, and to require proof of

the crime beyond a reasonable doubt. Appellant actually stated the terms and effects of

his plea agreement in open court in response to the court inquiring into his understanding.




6.
       {¶ 16} Thus, the record amply supports the necessary colloquy was given, the trial

court lawfully accepted the plea, and the trial court correctly proceeded to sentencing.

Appellant’s first argument has no merit.

                                              2.

       {¶ 17} Appellant next argues he could not have pled knowingly where he was

unaware of the lack of factual basis for the rape. Appellee assets appellant knew of the

evidence against him and waived any factual challenges by pleading guilty.

       {¶ 18} “A plea of guilty, from an early period in the history of criminal procedure,

* * * has been regarded as an admission of every material fact well pleaded in the

indictment, dispensing with the necessity of proving them, and authorizing the court to

proceed to judgment.” (Emphasis added.) Craig v. State, 49 Ohio St. 415, 418, 30 N.E.

1120 (1892). See State v. Post, 32 Ohio St.3d 380, 387, 513 N.E.2d 754 (1987)

(“Crim.R. 11 does not require the trial court to establish a factual basis for the plea before

its acceptance.”).

       {¶ 19} Here, appellant lawfully entered into a plea agreement, which, in effect,

eliminated his opportunity to challenge the lack of factual basis. Moreover, based on the

facts as confessed to in open court, we find there was a factual basis for the rape on

record. At the plea hearing, appellant stated: “I was watching my ex-fiancé’s kids and I

was proceeding to give them a bubble bath, and I stuck my middle finger in [the victim’s]

vaginal area for a short period of time.”




7.
       {¶ 20} Considering the plea and confession, we find it proper to regard appellant’s

plea as a complete admission of guilt. Appellant’s second argument has no merit.

                                             3.

       {¶ 21} Appellant lastly argues he could not have intelligently pled because he was

not feeling well when he made the plea. Appellee asserts appellant was not coerced, was

thinking clearly, and was feeling fine when making the accepted plea.

       {¶ 22} “A defendant is presumed to be competent to stand trial, unless the court

finds by a preponderance of the evidence that because of the defendant’s present mental

condition, he is incapable of understanding the nature and objective of the proceedings

against him or cannot assist in his defense.” See, e.g., State v. Jones, 1st Dist. Hamilton

No. C-050112, 2006-Ohio-2339, ¶ 12 (denying plea was unknowingly made because

appellant was competent to stand trial).

       {¶ 23} Here, appellant entered into an unambiguous and clearly written plea

agreement, was given Crim.R. 11 colloquy before he pled and at the time he pled guilty

and, therefore, nothing leads us to conclude he was incompetent. Further, at the plea

hearing, the court specifically asked if appellant was free from coercion or duress, was

thinking clearly, and was feeling well, all to which he responded in the affirmative. And

lastly, there is no evidence the trial court considered appellant incompetent during the

hearing.

       {¶ 24} Accordingly, appellant’s arguments have no merit and his first assignment

of error is not well-taken.




8.
                                Assignment of Error No. 2

       {¶ 25} In the second assignment of error, appellant argues he was deprived

effective assistance because his counsel misguided him into entering a guilty plea when

the factual basis for his guilt did not support the charge. Appellee contends appellant’s

counsel advised competently and there was no violation of duties or resulting prejudice.

       {¶ 26} In evaluating ineffective assistance of counsel claims, the test is “whether

the accused, under all the circumstances, * * * had a fair trial and substantial justice was

done.” State v. Hester, 45 Ohio St.2d 71, 341 N.E.2d 304 (1976), paragraph four of the

syllabus; see also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984). A court must determine whether there has been a substantial

violation of any of defense counsel’s essential duties to her client and whether the

defense was prejudiced by counsel’s ineffectiveness. State v. Calhoun, 86 Ohio St.3d

279, 289, 714 N.E.2d 905 (1999). To show prejudice, the defendant must prove “that

there exists a reasonable probability that, were it not for counsel’s errors, the result * * *

would have been different.” State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989),

paragraph three of the syllabus.

       {¶ 27} “Upon the entry of a guilty plea, a defendant waives any and all appealable

errors that might have occurred during the trial court proceedings, unless he or she

demonstrates that the alleged errors precluded him or her from entering a knowing,

voluntary plea.” State v. Kocian, 6th Dist. Ottawa No. OT-07-018, 2008-Ohio-74, ¶ 8.




9.
       {¶ 28} Here, appellant asserts that the only evidence supporting the conviction was

his open court confession and, therefore, his counsel’s advice to enter the plea was a

substantial violation of essential duties.

       {¶ 29} Appellant points to how the record reveals that at the sentencing hearing

the state spoke of weaknesses with regard to his case. Specifically, the state said there

was no DNA found inside the victim, appellant’s out of court confession was not

recorded, appellant made contradictory statements while investigated, appellant was

never Mirandized before confessing, and that there was no witness to corroborate the

crime. However, based on the record, we find that appellant’s plea was strategic and

tactical. See State v. Tipton, 11th Dist. Portage No. 2012-P-0072, 2013-Ohio-3207, ¶ 30

(“It is well settled that strategic and tactical decisions do not constitute a deprivation of

the effective assistance of counsel.”).

       {¶ 30} In terms of evidence against appellant, the record supports that the

11-month-old victim was abused in secret, the victim’s injuries were documented,

appellant was accused of the heinous acts, and appellant’s contradictory story was that a

young child was the culprit. We find this evidence supports appellant’s guilt. Thus,

coupled with the fact that appellant was risking life imprisonment if he proceeded to trial,

we find counsel advised competently. Consequently, we cannot say counsel’s judgment

precluded appellant from entering a knowing, voluntary plea.

       {¶ 31} Accordingly, the second assignment of error is not well-taken.




10.
                                       Conclusion

       {¶ 32} The judgment of the Ottawa County Court of Common Pleas is affirmed.

Appellant is ordered to pay the costs of this appeal 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.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Stephen A. Yarbrough, J.
                                               _______________________________
James D. Jensen, P.J.                                      JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE




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