[Cite as State v. Ellerb, 2014-Ohio-1231.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA



                               JOURNAL ENTRY AND OPINION
                                        No. 99958



                                       STATE OF OHIO
                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                     DEANTEZ ELLERB
                                                        DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-12-568229-A

              BEFORE:           Blackmon, J., Boyle, A.J., and Celebrezze, J.

              RELEASED AND JOURNALIZED:                     March 27, 2014
                                   -i-


ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender

Erika B. Cunliffe
Assistant County Public Defender
310 lakeside Avenue, Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Adrienne E. Linnick
Assistant Prosecuting Attorney
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:

       {¶1} Appellant Deantez Ellerb appeals his convictions and assigns the following

errors for our review:

       I. Counsel’s conduct at sentencing violated Mr. Ellerb’s Sixth Amendment
       right to the effective legal assistance and caused the court to impose a more
       lengthy sentence than it would have otherwise.

       II. The trial court violated Mr. Ellerb’s Sixth Amendment right to counsel
       of choice when it penalized him by doubling his prison sentence for
       exercising that right.

       {¶2} Having reviewed the record and pertinent law, we affirm Ellerb’s

conviction. The apposite facts follow.

       {¶3} On May 21, 2012, police officers from the city of Euclid attempted to effect

a traffic stop of the car Ellerb was driving.     Ellerb refused to stop and proceeded to

drive at a high rate of speed, along residential streets, in an attempt to elude the officers.

Ellerb ultimately crashed his car, badly injuring the front seat passenger.

       {¶4} On November 26, 2012, the Cuyahoga County Grand Jury indicted Ellerb

on one count of failure to comply, with a furthermore clause specifying that the operation

of the motor vehicle was a proximate cause of physical harm to persons or property. The

grand jury also indicted Ellerb on one count of aggravated vehicular assault, with a

furthermore clause specifying that the offender was driving under suspension.

       {¶5} On December 12, 2012, Ellerb was declared indigent, the trial court

appointed counsel for his defense, Ellerb pleaded not guilty to the charges, and was
placed on court-supervised release pending trial.      On April 30, 2013, after a series of

pretrials had been conducted, Ellerb reached a plea agreement with the state.

       {¶6} Pursuant to the bargain, Ellerb agreed to plead guilty to failure to comply,

as amended to delete the furthermore specification. In addition, Ellerb agreed to plead

guilty to aggravated vehicular assault as charged in the indictment. In exchange for the

foregoing pleas, the state agreed to recommend that the trial court sentence Ellerb to one

year in prison.

       {¶7} At the time scheduled to enter the pleas, Ellerb indicated that his

relationship with the court-appointed attorney had deteriorated and his family had taken

steps to hire new counsel. After discovering that new counsel had not been properly

retained, the trial court appointed the public defender’s office to represent Ellerb.

       {¶8} Following a two-hour recess, Ellerb indicated that he was prepared to enter

pleas pursuant to the aforementioned agreement. The trial court explained that it was not

part of the agreement reached between the state, defense counsel, and Ellerb.            In

addition, the trial court advised Ellerb that it could impose more than the recommended

sentence of one year. Thereafter, Ellerb entered the pleas.

       {¶9}       On May 7, 2013, the trial court sentenced Ellerb to consecutive prison

terms of six months for failure to comply and 18 months for aggravated vehicular

homicide for a total of 24 months.

                             Ineffective Assistance of Counsel
       {¶10} In the first assigned error, Ellerb argues that his newly retained counsel was

ineffective at sentencing.

       {¶11} To demonstrate ineffective assistance of counsel, defendants must satisfy

both parts of a two-prong test. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984). Defendants must first show that their trial counsel’s

performance was so deficient that the attorney was not functioning as the counsel

guaranteed by the Sixth Amendment to the United States Constitution. Id. Second,

defendants must establish that counsel’s “deficient performance prejudiced the defense.”

Id.   The failure to prove either prong of the Strickland test is fatal to a claim of

ineffective assistance. State v. Madrigal, 87 Ohio St.3d 378, 389, 2000-Ohio-448, 721

N.E.2d 52, citing Strickland, supra.

       {¶12} Further, in order to prove a claim of ineffective assistance of counsel with a

guilty plea, Ellerb must demonstrate that there is a reasonable probability that, but for

counsel’s errors, he 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 we have

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.

         {¶13} Ellerb argues that his newly retained counsel was ineffective for filing a

sentencing memorandum in mitigation requesting community control sanctions and for

having the severely injured victim speak on his behalf. Specifically, Ellerb contends that

counsel’s decisions resulted in the trial court increasing his sentence. A review of the

record does not support Ellerb’s contentions.

         {¶14} At the outset, we note that the record reveals that prior to accepting the

pleas, the trial court advised Ellerb that it was not bound by the agreement reached

between the state, defense counsel, and Ellerb.    The following relevant exchange took

place:

         The Court:         Okay. Now, I am not a part of the plea
                            agreement. It’s — the agreement is
                            between you, your lawyer and the state.
                            So if at the appropriate time of
                            sentencing I feel that you should be
                            sentenced to more than one year, then at
                            that time I will let you withdraw your
                            plea. Do you understand that?

         The Defendant:     Yes, Your Honor.

         The Court:          I am not part of your plea agreement. Okay?

         The Defendant:     Okay. Tr. 34-35.
       {¶15} It is clear from the above excerpt that the trial court placed Ellerb on notice

that it could impose a prison sentence that was greater than what the state had

recommended. In addition, the trial court advised Ellerb that it would even allow him to

withdraw the plea, if it decided to impose a greater sentence.

       {¶16} Further, the record indicates that the trial court warned Ellerb that if he

tested positive for marijuana, failed to show up for sentencing, or failed to show up for

court-supervised release, it would sentence him to six-and-one-half years. Tr. 40. Thus,

Ellerb should have had no doubts prior to pleading guilty that he could be sentenced to

more time than the state recommended.

       {¶17} At the sentencing hearing, Ellerb appeared with newly retained counsel, his

third in this matter, who Ellerb now contends was deficient for failing to familiarize

herself with the applicable law and the plea agreement that included the recommendation

of a one-year prison sentence.

       {¶18} We acknowledge that counsel’s decision to file a sentencing memorandum

advocating for community control sanctions suggests that counsel was unfamiliar with

details of the plea agreement. However, for reasons to be discussed below, Ellerb was

not prejudiced.

       {¶19} The newly retained counsel also invited the victim, Candice Avery, to speak

in mitigation. Avery indicated that she had spent three months in the hospital following

the car accident, believed Ellerb was remorseful, and did not desire to see him being sent

to prison. Ellerb contends that counsel’s decision to have the victim present only served
to demonstrate the severity of Avery’s injuries and that caused the trial court to increase

the sentence. Again, we fail to see how Ellerb was prejudiced.

         {¶20} The record indicates that immediately after Avery’s brief statement, the

prosecutor addressed the court as follows:

         Your Honor, you just heard from Candice Avery in regards to her injuries.
         Just to make sure everything is covered, she did have approximately six
         surgeries during her three months in the hospital, first at Hillcrest, then St.
         Vincent. Fortunately she has medical expense coverage for that. She had
         fractured her neck, that was the first surgery. She had a broken and
         shattered jaw which she had plates inserted. Broken nose, broken teeth.
         Broke both ankles. She had a trach in at one time. Trouble walking,
         hobbled through physical therapy. Tr. 51-52.

         {¶21} It is conceivable, if not customary, that the prosecutor would have made the

above statements whether or not Avery had been present for the hearing. Thus, the facts

of Avery’s injuries and her arduous recovery would have come to light without her

presence. As such, Ellerb cannot establish that he was prejudiced by counsel’s decision

to have Avery present.

         {¶22} After hearing from the parties, the trial court indicated that based on the

seriousness of the offense, it did not think the recommended sentence of one year was

appropriate. The trial court then indicated that it would allow Ellerb to withdraw his

guilty pleas and schedule trial within 30 days. However, notwithstanding the trial court’s

indication that he could withdraw his pleas and the clear evidence that the trial court

intended to impose a sentence greater than one year, Ellerb declined to withdraw his

pleas.
       {¶23} The trial court proceeded to sentence Ellerb and stated in pertinent part as

follows:

       So, based on the facts that I have heard and in light of your record that you
       have, Mr. Ellerb, the fact that you did cause serious physical harm —
       serious physical injury to the victim in this case, Candice Avery, she’s listed
       as the victim in Count 2, and really, driving 85 miles an hour in a residential
       neighborhood, fleeing from the police, then having the accident where you
       caused such severe injuries is, in my opinion, reprehensible.

       Also, while you were on court-supervised release, you tested positive for
       marijuana and I had you remanded on one occasion because you continued
       to smoke even though you were warned not to. Tr. 60-61.

       {¶24} Here, despite Ellerb’s contention that he was prejudiced by the

aforementioned two decisions of counsel, he was on notice that the trial court was not a

party to the plea bargain and was not bound by the recommended sentence. In addition,

Ellerb tested positive for marijuana while he was on court-supervised release. Further,

after accepting the plea, the trial court warned Ellerb that it would sentence him to

six-and-one-half years if he tested positive for marijuana while awaiting sentencing.

The trial court also noted that Ellerb was driving 85 miles an hour along residential streets

as he fled from the police. Thus, it is disingenuous for Ellerb to claim that the increased

sentence was based solely on the complained of two decisions of counsel.

       {¶25} Finally, when given the opportunity to withdraw his pleas, after the trial

court clearly indicated that he was facing a greater sentence than what the state had

recommended, Ellerb chose not to avail himself of that opportunity.           As previously

noted, in order to prove a claim of ineffective assistance of counsel with a guilty plea,

Ellerb must demonstrate that there is a reasonable probability that, but for counsel’s
errors, he would not have pled guilty and would have insisted on going to trial. Wright,

8th Dist. Cuyahoga No. 98345, 2013-Ohio-936.

       {¶26} Because Ellerb declined the trial court’s offer to withdraw his plea, he has

not established that he was prejudiced.    As such, Ellerb has failed to satisfy the second

prong of Strickland and this is fatal to his claim of ineffective assistance of counsel.

Accordingly, we overrule the first assigned error.

                                    Counsel of Choice

       {¶27} In the second assigned error, Ellerb argues the trial court penalized him by

doubling his prison sentence when he exercised his right to the counsel of his choice.

       {¶28} The right to counsel of one’s choice is an essential element of the Sixth

Amendment right to have the assistance of counsel for one’s defense. See State v.

Keenan, 8th Dist. Cuyahoga No. 89554, 2008-Ohio-807.

       {¶29} In the instant case, nothing in the record indicates that the trial court

penalized Ellerb for exercising his right to the counsel of his choice.   Instead, the record

indicates that the trial court appointed two separate counsel to represent Ellerb. When

Ellerb appeared to enter his pleas, he indicated that he was displeased with the first

attorney, prompting the trial court to appoint the second attorney. Ellerb proceeded to

plead guilty pursuant to the plea agreement that was negotiated by the first

court-appointed attorney. Ellerb then indicated that he was happy with the services of

the second court-appointed attorney.
       {¶30} At the sentencing hearing, Ellerb appeared with a third attorney; one

retained by his family. As we have been discussing throughout, Ellerb claims the third

attorney was ineffective and now claims the trial court penalized him for retaining

counsel of his choice.

       {¶31} However, as we discussed in the first assigned error, Ellerb failed to satisfy

the prejudice prong of Strickland, thus his claim that counsel was ineffective fails.

Further, as discussed in the first assigned error, the trial court clearly indicated to Ellerb

that it was not a party to the plea agreement and was not bound by the sentence the state

had recommended.

       {¶32} Finally, as discussed in the first assigned error, when it became certain that

the trial court was going to impose a greater sentence, and gave him the opportunity to

withdraw his pleas, Ellerb declined the offer. The record indicates that the trial court

advised Ellerb what it would do at the appropriate time and when that time came, the trial

court did not depart from its previous advisement. As such, we find no merit to Ellerb’s

assertion that he was penalized for hiring counsel of his choosing.           Accordingly, we

overrule the second assigned error.

       {¶33} Judgment affirmed.

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

       The court finds there were reasonable grounds for this appeal.
      It is ordered that a special mandate be sent to said 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.



PATRICIA ANN BLACKMON, JUDGE

MARY J. BOYLE, A.J., and
FRANK D. CELEBREZZE, JR., J., CONCUR
