[Cite as State v. Reed, 2018-Ohio-3040.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 105862



                                           STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.

                                           RONALD J. REED

                                                      DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED



                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-16-605771-A

        BEFORE: Kilbane, P.J., Boyle, J., and Keough, J.

        RELEASED AND JOURNALIZED: August 2, 2018
ATTORNEY FOR APPELLANT

Steve W. Canfil
55 Public Square, Suite 2100
Cleveland, Ohio 44113



ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
By: Andrew T. Gatti
Anne Mikhaiel
Assistant County Prosecutors
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




MARY EILEEN KILBANE, P.J.:

        {¶1}   Defendant-appellant, Ronald J. Reed (“Reed”), appeals from his convictions for

attempted felonious assault, abduction, and domestic violence. For the reasons set forth below,

we affirm.

        {¶2}   In May 2016, Reed was charged with one count each of felonious assault,

abduction, and domestic violence. These charges arose out of a physical altercation with his

girlfriend.

        {¶3}   In August 2016, Reed pled guilty, pursuant to a plea agreement with the state, to

attempted felonious assault, abduction, and domestic violence. At the outset of the plea hearing,

the assistant county prosecutor outlined the state’s plea offer. Reed’s defense counsel then
explained that he “had numerous, numerous conversations with [Reed] regarding the plea,” and it

was his opinion that “[Reed will] make a knowing, intelligent and voluntary change of plea.”

       {¶4}    The trial court then asked Reed if he had heard and understood the plea offer. In

response, Reed was reluctant:

       [REED]: I think. I think so.

       THE COURT: Was there anything that you have a question about?

       [REED]: The situation that happened at my residence, just that I don’t know
       what my rights was [sic]. You know, when I asked her to leave, she wouldn’t
       leave. I don’t know.

       [DEFENSE COUNSEL]: Judge, if I might clarify, many times Mr. Reed and I
       have talked about his potential defenses of self-defense, and being at his own
       property at the time this event occurred and we’ve talked about that a lot. And he
       understands in my opinion, that by entering this plea, we’re not going to be talking
       about self-defense anymore.

       [REED]: No, I don’t, sir.

       [DEFENSE COUNSEL]: Or defense of property or anything along that line.

       [REED]: Okay.

       {¶5} Next, the trial court asked Reed how far he went in school, to which Reed replied,

“[n]ot far because I have learning disabilities.” In response to further questioning, Reed replied

that he went as far in school as sixth or seventh grade, could read and write, and that he was

satisfied with defense counsel’s representation.     The trial court then advised Reed of the

constitutional rights he would waive by entering a guilty plea, and Reed acknowledged that he

understood he was giving up these rights. The trial court further advised Reed of the possible

penalties for the charges outlined in the plea agreement as well as postrelease control. Reed

replied that he understood each of these concepts.
       {¶6} After the trial court read the charges in the amended indictment, Reed again

interjected, asking to comment. The trial court instructed Reed to speak with counsel, allowing

a short recess off the record. After the recess, defense counsel explained Reed’s concern about

the abduction count, and his own belief that this offense would likely merge with the attempted

felonious assault conviction for purposes of sentencing. The state agreed these offenses would

merge at sentencing.

       {¶7} The trial court then continued on with the plea colloquy, and accepted Reed’s guilty

plea to the amended indictment. The trial court referred Reed to the probation department for a

presentence investigation report (“PSI”), and set the matter for sentencing. At sentencing, the

trial court determined that Count 1 (attempted felonious assault) and Count 2 (abduction)

constituted allied offenses of similar import that merged for purposes of sentencing. The state

elected to proceed on Count 1. The trial court sentenced Reed to two years of community

control sanctions for Counts 1 and 3.

       {¶8} In June 2017, Reed moved this court, pro se, for leave to file a delayed appeal and

for appointment of appellate counsel. We granted Reed leave to file a delayed appeal and

appointed him counsel.

       {¶9} In September 2016, Reed’s original appellate counsel filed a brief and moved to

withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)

(“[I]f counsel finds his case to be wholly frivolous, after a conscientious examination of it, he

should so advise the court and request permission to withdraw.” Id. at 744). Our independent

review of the record found that “a nonfrivolous issue exists regarding the knowing nature of

Reed’s guilty plea.” Accordingly, we granted original appellate counsel’s motion to withdraw,
but we declined to dismiss Reed’s appeal, appointed him new counsel, and ordered this case

returned to the active docket for briefing.

        {¶10} Reed now raises the following two assignments of error for our review:

                                        Assignment of Error One

        The trial court violated [Reed’s] federal and state constitutional rights to due
        process of law and Crim.R. 11 when it accepted [Reed’s] guilty plea[].

                                        Assignment of Error Two

        [Reed] was deprived of his federal and state constitutional rights to effective
        assistance of counsel.

                                              Guilty Plea

        {¶11} In the first assignment of error, Reed challenges the validity of his guilty plea,

arguing that the record demonstrates that he did not knowingly, intelligently, and voluntarily

enter his plea.

        {¶12} Crim.R. 11(C)(2) governs the trial court’s acceptance of guilty pleas in felony

cases. It provides, in relevant part:

        (2) In felony cases the court may refuse to accept a plea of guilty * * * and shall
        not accept a plea of guilty * * * 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 * * * and that the court, upon acceptance of the
        plea, may proceed with judgment and sentence.

        (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.

       {¶13} The purpose of Crim.R. 11(C) is to convey to the defendant certain information so

that he or she can make a voluntary and intelligent decision whether to plead guilty. State v.

Ballard, 66 Ohio St.2d 473, 479-480, 423 N.E.2d 115 (1981). In considering whether a criminal

defendant knowingly, intelligently, and voluntarily entered a guilty plea, we first review the

record to determine whether the trial court complied with Crim.R. 11(C). State v. Davner, 8th

Dist. Cuyahoga Nos. 104745 and 105144, 2017-Ohio-8862, ¶ 41.

       {¶14} We review a trial court’s compliance with the requirements set forth in Crim.R.

11(C) under a de novo standard of review. State v. Darling, 8th Dist. Cuyahoga No. 104517,

2017-Ohio-7603, ¶ 17. We review the totality of the circumstances surrounding the defendant’s

plea to determine whether it was entered into knowingly, intelligently, and voluntarily. State v.

Alvelo, 2017-Ohio-742, 85 N.E.3d 1032, ¶ 21 (8th Dist.).

       {¶15} A trial court must strictly comply with Crim.R. 11(C) where constitutional rights

are involved. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 18.

However, with respect to the nonconstitutional notifications required by Crim.R. 11(C)(2)(a) and

(b), substantial compliance is sufficient. Id. at  14.

       {¶16} Substantial compliance means that under the totality of the circumstances the

defendant subjectively understands the implications of his plea and the rights he is waiving.

State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). Additionally, a defendant who

challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily

made because the trial court failed to substantially comply with any of the nonconstitutional
notifications under Crim.R. 11 must show a prejudicial effect. Id., citing State v. Stewart, 51

Ohio St.2d 86, 93, 364 N.E.2d 1163 (1977); Crim.R. 52(A). The relevant test is whether the

plea would have otherwise been made. Id.

       {¶17} Reed argues that the trial court failed to ensure that he understood the

consequences of his guilty pleas. Specifically, he claims he was not fully advised of the nature

of the charges to which he was pleading guilty, the possible merger of offenses, and the

maximum penalties involved.

       {¶18} We first address Reed’s contention that the trial court failed to ensure his

understanding of the maximum penalties involved because he replied “possible,” when the trial

court questioned his understanding on that point. We find this argument unpersuasive.

       {¶19} The record demonstrates that the trial court explained to Reed the range of possible

penalties involved. Reed appeared to ask for clarification, and acknowledged that he understood

that the range of penalties discussed were all possible penalties.

       THE COURT: Now, the possible penalties for these crimes are as follows.
       Count 1 [attempted felonious assault] is a felony of the third degree. That would
       get you anywhere from 9 to 36 months in prison, with a fine of up to $10,000.
       Same with Count 2 [abduction], and Count 3 [domestic violence] would be a
       possible 6 to 18 months in prison, with a fine of up to $5,000. Do you
       understand all of that?

       [REED]: Possible.

       THE COURT: It’s possible. Not definite.

       [REED]: Right.

       THE COURT: Okay?

       [REED]: (Indicating yes.) Yes, your Honor.

       {¶20} Based upon the foregoing exchange, we find that the trial court substantially

complied with the requirement under Crim.R. 11(C)(2)(a) to advise Reed of the possible
penalties involved as a result of the plea agreement. We further find that Reed subjectively

understood that the penalties within the range discussed by the trial court were all possible

penalties as a result of his guilty plea.

        {¶21} Reed next argues that the confusion he expressed at the plea hearing regarding the

nature of the charges against him and the merger doctrine indicates that his guilty plea was not

knowingly, voluntarily, and intelligently entered.

        {¶22} After the trial court read the charges in the amended indictment to Reed and asked

him how he plead to those charges, Reed interjected:

        [REED]: Can I say? Can I comment?

        THE COURT: Talk to your lawyer.

        {¶23} After a brief off-the-record discussion between Reed and his defense counsel,

counsel explained to the trial court:

        [DEFENSE COUNSEL]: Judge, if I may place on the record, my client’s
        concern is regarding the abduction count and I explained to him and maybe I
        should for the record, that this is not an abduction/kidnapping sort of situation
        with ransom notes and all that sort of stuff. The act of assault is what constituted
        the abduction. It wasn’t like he was locking her up in a room or anything along
        that line, right, Mr. Reed? And I, on his behalf, would certainly argue now and at
        the time of sentencing for purposes of sentencing, these offenses, the merger
        doctrine might apply.

        [THE STATE]: We would agree with that.

        ***

        THE COURT: Good. Okay. So, knowing everything we’ve gone over 

        [REED]: I don’t understand it but 

        THE COURT: Knowing everything we’ve gone over, Mr. Reed, how do you
        want to plead to the charges that I read off to you?

        [REED]: I guess guilty.
       THE COURT: Well, we need more than you guess.

       [REED]: Guilty.

       THE COURT: Okay. Has anybody made any threat or promise in order to get
       you to plead guilty?

       [REED]: No.

       THE COURT: Okay. And whose desire it is to plead guilty? Are you doing it
       now because you want to, or because somebody else is telling you to plead guilty?


       [REED:] Because I want to, your Honor.

       {¶24} The court then accepted Reed’s plea, finding that Reed understood, and voluntarily

and willingly waived his constitutional rights.

       {¶25} Upon our de novo review of the record, we find that the trial court substantially

complied with the requirement under Crim.R. 11(C)(2)(a) that it personally address Reed to

determine whether he made his plea voluntarily, with understanding of the nature of the charges

involved. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, at  14. The trial

court remedied Reed’s initial confusion about the plea agreement by allowing Reed to discuss

with counsel. Defense counsel explained Reed’s hesitation about the abduction charge to the

trial court and explained to Reed on the record the nature of that charge. The trial court then

questioned Reed as to his understanding of the plea offer and the voluntariness of his plea, and

Reed stated his desire to plead guilty.

       {¶26} With regard to Reed’s argument that his guilty plea was not knowingly made

because he did not understand the merger doctrine, we note that there is no requirement in

Crim.R. 11 that the trial court must ensure a defendant understands the merger of offenses for

purposes of sentencing before accepting his plea. Indeed, there is “‘no obligation under Crim.R.

11(C)(2) for the trial court to determine, at a plea hearing, whether the offenses at issue are allied
offenses of similar import and to notify the defendant of the cumulative maximum penalty after

merger.’” State v. Carnahan, 3d Dist. Defiance No. 4-15-18, 2016-Ohio-3213, ¶ 23, quoting

State v. Jefferson, 2d Dist. Montgomery No. 26022, 2014-Ohio-2555, ¶ 21. “‘[T]he merger of

allied offenses of similar import occurs at sentencing.’” Id., quoting Jefferson at ¶ 21.

        {¶27} Likewise, after review of the totality of the circumstances surrounding Reed’s plea,

we find that Reed subjectively understood the implications of his plea. Nero, 56 Ohio St.3d

106, 108, 564 N.E.2d 474. Reed does not point to any prejudicial effect arising from his

possible misunderstanding of the maximum penalties involved, the abduction charge, or the

merger doctrine.

        {¶28} Based on the foregoing, we find that Reed made his guilty plea knowingly,

voluntarily, and intelligently. We further find the trial court did not err in accepting Reed’s

guilty plea.

        {¶29} Accordingly, the first assignment of error is overruled.

                                 Ineffective Assistance of Counsel

        {¶30} In the second assignment of error, Reed argues he was deprived of the right to

effective assistance of counsel. Specifically, he claims his defense counsel’s performance was

deficient because counsel failed to obtain Reed’s psychological assessment for a possible referral

to the court’s mental health docket. Reed also argues that counsel failed to fully explain to him

the ramifications of his guilty plea.

        {¶31} This court has explained that a defendant who enters a guilty plea waives

ineffective assistance of counsel claims except to the extent that the ineffective assistance of

counsel caused the defendant’s plea to be less than knowing, intelligent, and voluntary. Davner,

8th Dist. Cuyahoga Nos. 104745 and 105144, 2017-Ohio-8862, at ¶ 38.
       Thus, where a defendant has entered a guilty plea, a defendant can prevail on a
       claim of ineffective assistance of counsel only by demonstrating (1) deficient
       performance by counsel, i.e., that counsel’s performance fell below an objective
       standard of reasonable representation, that caused his guilty plea to be less than
       knowing, intelligent and voluntary and (2) that there is a reasonable probability
       that, but for counsel’s deficient performance, the defendant would not have pled
       guilty to the offenses at issue and would have, instead, insisted on going to trial.

Id., citing State v. Williams, 8th Dist. Cuyahoga No. 100459, 2014-Ohio-3415, ¶ 11. See also

Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984);

State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the

syllabus. “A ‘reasonable probability’ is a ‘probability sufficient to undermine confidence in the

outcome.’” Id., quoting Strickland at 694.

       {¶32} Reed argues his mental health problems, as evidenced in the PSI, should have

prompted his attorney to obtain his psychological assessment for a determination of whether

Reed was eligible for the court’s mental health docket. Reed maintains that he would not have

pled guilty had he been evaluated for the mental health docket.

       {¶33} Reed does not argue, however, that defense counsel’s failure to move for a mental

health evaluation “fell below an objective standard of reasonable representation, that caused his

guilty plea to be less than knowing, intelligent and voluntary.” Danver at ¶ 38. This court has

explained that “‘[j]udicial scrutiny of counsel’s performance is to be highly deferential, and

reviewing courts must refrain from second-guessing the strategic decisions of trial counsel.’”

State v. Hudson, 8th Dist. Cuyahoga No. 102767, 2015-Ohio-5424, ¶ 9, quoting State v. Carter,

72 Ohio St.3d 545, 558, 1995-Ohio-104, 651 N.E.2d 965. Indeed, “‘[t]rial counsel is entitled to

a strong presumption that all decisions fell within the wide range of reasonable, professional

assistance.’” Id., quoting State v. Sallie, 81 Ohio St.3d 673, 675, 1998-Ohio-343, 693 N.E.2d

267.
         {¶34} Reed points to the PSI as the basis of his claim that his mental health problems

should have prompted counsel to seek Reed’s psychological evaluation. However, we note the

PSI was prepared after the plea hearing for purposes of sentencing.                       The record does not

demonstrate that counsel was aware of Reed’s mental health issues prior to reading the PSI.

         {¶35}      Loc.R. 30.1 of the Court of Common Pleas of Cuyahoga County, General

Division, establishes a mental health docket for “[d]efendants with a confirmed severe mental

illness with a psychotic feature or developmental disabilities[.]” Loc.R. 30.1(A). In cases

where the defendant’s eligibility is not determined until after arraignment, reassignment of the

case to the mental health docket is discretionary. See Loc.R. 30(C)(2)(a); State v. Ellis, 8th Dist.

Cuyahoga No. 98538, 2013-Ohio-1184, ¶ 30. Thus, even if counsel had moved to have Reed

evaluated for a possible referral to the mental health docket, and he was determined eligible, the

trial court was not obligated to transfer this case.

         {¶36} Reed also argues that counsel was ineffective for leading Reed to believe that he

lacked any defenses to the charges “when the record belies such a belief.” In support of this

claim, Reed points to his own version of the physical altercation with the victim as told to the

probation officer and recorded in the PSI.               Reed argues the victim’s medical records and

statements to police following the incident indicate that she may have not suffered any injuries as

a result of his actions. Reed contends the record supports a conclusion that he did have viable

defenses to the charges against him, despite his attorney’s representations to the contrary.1

         {¶37} These assertions are unsupported in the record. As it relates to Reed’s statement

to the probation offer contained in the PSI, a defendant “cannot rely on post-plea statements or


         1
           We note that at the plea hearing, counsel never stated Reed did not have any possible defenses to the
charges in the indictment, but merely stated “[Reed] understands in my opinion, that by entering this plea, we’re not
going to be talking about self-defense anymore.”
claims of innocence to establish that the trial court erred in accepting [his] plea.” State v.

Damron, 2d Dist. Champaign No. 2014-CA-15, 2015-Ohio-2057, ¶ 10. In the PSI, Reed does

not fully claim his innocence, but rather, his version of events paints his former girlfriend as the

instigator of their physical dispute.

        {¶38} Ultimately, Reed does not meet his burden to show ineffective assistance of

counsel because he does not demonstrate that counsel’s actions “fell below an objective standard

of reasonable representation, that caused his guilty plea to be less than knowing, intelligent and

voluntary.” Davner at  38.

        {¶39} Accordingly, the second assignment of error is overruled.

        {¶40} Judgment affirmed.

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

        The court finds there were reasonable grounds for this appeal.

        It is ordered that a special mandate issue out of this court directing the common pleas

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.




MARY EILEEN KILBANE, PRESIDING JUDGE

MARY J. BOYLE, J., and
KATHLEEN ANN KEOUGH, J., CONCUR
