[Cite as State v. Arledge, 2019-Ohio-3147.]




                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                              CLINTON COUNTY




 STATE OF OHIO,                                     :

        Appellee,                                   :      CASE NO. CA2018-12-024

                                                    :           OPINION
     - vs -                                                      8/5/2019
                                                    :

 GLENN T. ARLEDGE, JR.,                             :

        Appellant.                                  :




      CRIMINAL APPEAL FROM CLINTON COUNTY COURT OF COMMON PLEAS
                          Case No. CRI 18-500-303




Richard W. Moyer, Clinton County Prosecuting Attorney, Katie Wilkin, 103 East Main Street,
Wilmington, Ohio 45177, for appellee

Tyler J. Hoffer, 530 North Broadway, Lebanon, Ohio 45036, for appellant



        S. POWELL, J.

        {¶ 1} Appellant, Glenn T. Arledge, Jr., appeals from the conviction and prison

sentence he received in the Clinton County Court of Common Pleas after he pled guilty to

reckless homicide. For the reasons outlined below, we affirm.
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                                  Statement of the Case

      {¶ 2} In June 2018, the Clinton County Grand Jury returned an indictment, under a

separate case number, charging appellant with two offenses: involuntary manslaughter, a

third-degree felony, and permitting drug abuse, a first-degree misdemeanor. Subsequently,

in the instant case, the state additionally charged appellant, through a bill of information,

with reckless homicide, also a third-degree felony. All charges arose from an incident in

which appellant's friend fatally overdosed on drugs. Instead of offering any type of aid,

appellant recorded a video of his friend's distress and then waited several hours before

calling for emergency medical assistance. By the time emergency personnel arrived, the

friend could not be saved.

      {¶ 3} In September 2018, appellant entered into a plea agreement in which he

agreed to plead guilty to reckless homicide in exchange for the dismissal of the other two

counts. After conducting the necessary Crim.R. 11(C) plea colloquy, the trial court accepted

appellant's guilty plea. The trial court sentenced appellant to 24 months in prison and

notified appellant that the adult parole authority may impose a three-year period of

postrelease control following his release from prison.

      {¶ 4} Appellant now appeals, raising two assignments of error for review.

                                          Appeal

      {¶ 5} Assignment of Error No. 1:

      {¶ 6} INEFFECTIVE ASSISTANCE OF COUNSEL

      {¶ 7} In the first assignment of error, appellant argues that his trial counsel provided

him with ineffective assistance of counsel by not advising him of a potential defense to the

reckless homicide offense. Specifically, appellant argues that his counsel failed to advise

him that he could potentially defend against the charge by claiming he did not have a duty

to render aid to the victim pursuant to Ohio's tort law. We find no merit to appellant's

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argument.

       {¶ 8} A defendant in a criminal trial has the right, under both the United States and

Ohio Constitutions, to effective assistance of counsel. State v. Villani, 12th Dist. Butler No.

CA2018-04-080, 2019-Ohio-1831, ¶ 9. The defendant bears the burden of proving that his

trial counsel was ineffective. State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, ¶

142. To prevail on an ineffective assistance of counsel claim in the context of a guilty plea,

the defendant must show that (1) his counsel's performance was deficient and (2) there is

a reasonable probability that, but for counsel's errors, the defendant would not have pled

guilty. State v. Bird, 81 Ohio St.3d 582, 585 (1998). Deficient performance is defined as

performance that fell below an objective standard of reasonableness. State v. Jackson,

149 Ohio St.3d 55, 2016-Ohio-5488, ¶ 97. Appellant's failure to satisfy one prong will

negate this court's need to consider the other prong. State v. Madrigal, 87 Ohio St.3d 378,

389 (2000).    This court will strongly presume that trial counsel "rendered adequate

assistance and made all significant decisions in the exercise of reasonable professional

judgment." State v. Burns, 12th Dist. Clinton No. CA2013-10-019, 2014-Ohio-4625, ¶ 7.

       {¶ 9} Appellant has failed to demonstrate deficiency for two reasons. First, there is

nothing in the record that shows appellant was or was not advised of this potential defense.

For this court to properly review the claim, the "alleged ineffective assistance of counsel

must be apparent from the record on appeal." State v. Harris, 12th Dist. Butler No. CA2018-

04-076, 2019-Ohio-1700, ¶ 22, citing State v. Cooperrider, 4 Ohio St.3d 226, 228 (1983).

"Any allegations of ineffectiveness based on facts not appearing in the record should be

reviewed through the postconviction remedies of R.C. 2953.21." State v. Coleman, 85 Ohio

St.3d 129, 134 (1999).

       {¶ 10} Second, appellant has not cited to any authority to prove that the duty of care

as comprehended under Ohio tort law would be a viable defense in a criminal prosecution

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for reckless homicide. The Ohio Supreme Court has held that a defendant does not have

a constitutional right to determine strategy, State v. Conway, 108 Ohio St.3d 214, 2006-

Ohio-791, ¶ 150, and "[d]ecisions about 'the viability of certain defenses' are 'within the

exclusive province of defense counsel to make after consultation with his client.'" State v.

Murphy, 91 Ohio St.3d 516, 524 (2001), quoting Lewis v. Alexander, 11 F.3d 1349, 1354

(6th Cir.1993). This alleged strategic deficiency is further militated against by the fact that

appellant faced other charges, i.e. involuntary manslaughter, in which the duty of care

defense seems even less viable. Again, appellant has not shown in the record that his trial

counsel did not competently advise him of potential and viable defenses to all the charged

offenses. Therefore, under these facts, appellant has not proven that his trial counsel was

deficient.

       {¶ 11} Regardless, even if we were to find appellant's trial counsel was deficient,

appellant has not shown by reasonable probability that he would not have pled guilty if his

counsel had not made the alleged error. Thus, appellant has failed to show any resulting

prejudice. Appellant pled guilty to the reckless homicide offense in exchange for the state's

agreement to dismiss the two other pending offenses: involuntary manslaughter and

permitting drug abuse. As this court has previously held, counsel's advice to take a plea

deal is not ineffective assistance of counsel. State v. Sturgill, 12th Dist. Clermont No.

CA2014-09-066, 2015-Ohio-1933, ¶ 20. Appellant received the benefit of the bargain. If

appellant decided to instead go to trial, the state would have had the option to pursue all

three charges. Appellant has therefore failed to demonstrate that he would not have pled

guilty but for his counsel's alleged deficiency. Accordingly, finding no merit to any of the

arguments raised herein, appellant's first assignment of error is without merit and overruled.

       {¶ 12} Assignment of Error No. 2:

       {¶ 13} THE CLINTON COUNTY COMMON PLEAS COURT'S FINDINGS WERE

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NOT SUPPORTED BY THE RECORD AND THE SENTENCING FACTORS WERE NOT

PROPERLY CONSIDERED.

       {¶ 14} In the second assignment of error, appellant presents two separate issues.

First, appellant argues the trial court erred when it found appellant guilty because appellant

did not owe a duty of care to the victim and therefore was not criminally liable. Second,

appellant contends that the trial court improperly considered the "sentencing factors

promulgated in O.R.C. 2929.11" when it imposed a prison sentence instead of community

control. Again, we find no merit to either of appellant's arguments.

       {¶ 15} We first address appellant's claim that the trial court improperly found

appellant guilty. This court has previously held that by pleading guilty, a criminal defendant

has "waived the right to require the state to prove his guilt beyond a reasonable doubt," and

the plea, itself, "provides the necessary proof of the elements of the crime and sufficient

evidence to support the conviction." State v. Isbell, 12th Dist. Butler No. CA2003-06-152,

2004-Ohio-2300, ¶ 16. This concept is also reflected in the Rules of Criminal Procedure,

wherein the effect of a guilty plea is defined as a "complete admission of the defendant's

guilt." Crim.R. 11(B)(1); See also State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, ¶

14 (a guilty plea, absent an assertion of actual innocence, is an admission of guilt).

Therefore, contrary to appellant's claim, a trial court has no obligation to inquire further into

the factual basis of the charged offense when a defendant pleads guilty to a felony offense.

State v. Taylor, 12th Dist. Warren No. CA2011-08-054, 2011-Ohio-6797, ¶ 7; accord State

v. Pearce, 12th Dist. Clermont No. CA2013-01-001, 2013-Ohio-3484, ¶ 8-10.

       {¶ 16} Furthermore, a trial court does not have to engage in a detailed recitation of

the elements of the offense to demonstrate the defendant's understanding of the charge,

State v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, ¶ 57, nor do the Rules of Criminal

Procedure require the court to explain possible defenses to the charged offense during the

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plea colloquy. See Crim.R. 11. Here, the record demonstrates that the trial court provided

appellant a full and proper plea colloquy as required for felonies in Crim.R. 11(C). During

this exchange appellant acknowledged that he understood his constitutional rights, the

nature of the charge, the effect of the plea, and the potential punishments to which he was

subject. Therefore, we find that appellant's guilty plea was properly accepted and that the

trial court's finding of guilt was not contrary to law. Appellant's claim otherwise lacks merit.

       {¶ 17} Next, we address the issue of sentencing. R.C. 2953.08(G)(2) provides the

standard of review for felony sentences. State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-

1002, ¶ 1. Pursuant to R.C. 2953.08(G)(2), an appellate court may modify or vacate a

felony sentence only if the appellate court "clearly and convincingly finds that the sentence

is (1) contrary to law and/or (2) unsupported by the record." State v. McGowan, 147 Ohio

St.3d 166, 2016-Ohio-2971, ¶ 1, citing Marcum at ¶ 7. As this court has previously held,

"[a]n appellate court will not find a sentence clearly and convincingly contrary to law where

the trial court considers the principles and purposes of R.C. 2929.11, as well as the factors

listed in R.C. 2929.12, properly imposes postrelease control, and sentences the defendant

within the permissible statutory range." State v. Ahlers, 12th Dist. Butler No. CA2015-06-

100, 2016-Ohio-2890, ¶ 8.

       {¶ 18} Appellant contends that the court should have imposed the minimum sanction

by law, that is community control, rather than sentencing him to prison. However, contrary

to appellant's claim, the trial court has discretion to determine which sentence, from all the

available sanctions, will satisfy Ohio's felony sentencing statutes. State v. Spencer, 12th

Dist. Butler No. CA2018-10-202, 2019-Ohio-2160, ¶ 12. Specifically, as set forth in R.C.

2929.11(A),

              [t]he overriding purposes of felony sentencing are to protect the
              public from future crime by the offender and others, to punish
              the offender, and to promote the effective rehabilitation of the

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              offender using the minimum sanctions that the court determines
              accomplish those purposes without imposing an unnecessary
              burden on state or local government resources. To achieve
              those purposes, the sentencing court shall consider the need for
              incapacitating the offender, deterring the offender and others
              from future crime, rehabilitating the offender, and making
              restitution to the victim of the offense, the public, or both.

R.C. 2929.12 aids the court in complying with the overriding purposes of felony sentencing

set forth in R.C. 2929.11 by providing a list of factors for the court to determine the

seriousness of the offense vis-à-vis other perpetrations of the same offense and the

offender's likelihood to commit further crime. The only requirement is that the court consider

the factors provided in R.C. 2929.12 and conform to the purposes of sentencing as provided

in R.C. 2929.11. State v. King, 12th Dist. Butler No. CA2018-05-101, 2019-Ohio-1492, ¶ 9.

       {¶ 19} While appellant may disagree with the trial court's balancing of the factors,

that does not mean the court erred when it imposed the sentence. State v. Hutchinson,

12th Dist. Butler No. CA2018-11-211, 2019-Ohio-2789, ¶ 9. As part of its discretion, the

trial court "determines the weight afforded to any particular statutory factors, mitigating

grounds, or other relevant circumstances" when imposing the sentence. State v. Steger,

12th Dist. Butler No. CA2016-03-059, 2016-Ohio-7908, ¶ 18. A trial court is also "not

required to provide a rationale for its sentencing decision." State v. Gilmore, 12th Dist.

Butler No. CA2018-06-118, 2019-Ohio-1046, ¶ 10.

       {¶ 20} Here, the record shows that the trial court properly considered the sentencing

factors of R.C. 2929.12 and the purposes of felony sentencing pursuant to R.C. 2929.11.

Before pronouncing the sentence, the trial court twice reiterated that it had considered the

purposes of sentencing in R.C. 2929.11 and the seriousness and recidivism factors in R.C.

2929.12. Specifically, the trial court stated:

              [Court]: After considering the factors set forth under 2929.12,
              the Court finds that a combination of community control would
              not be appropriate in this case and would be inconsistent with

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               the purposes and principles set forth in 2929.11. The Court
               finds that community control would not adequately punish the
               Defendant nor protect the public from a future crime by this
               Defendant and others. And that community control sanctions
               would not be commensurate with and would demean the
               seriousness of the Defendant's conduct committing this offense.
               This matter was a tragic event for the victim in this case, Mr.
               Cox. And in some respects, it was tragic for Mr. Arledge.
               However, the Court has to deal with Mr. Arledge's actions today.

The trial court incorporated its consideration of R.C. 2929.11 and 2929.12 into its judgment

entry.    The record therefore clearly demonstrates that the trial court considered the

necessary sentencing statutes prior to issuing its sentencing decision.

         {¶ 21} Moreover, the sentence imposed by the trial court was not otherwise contrary

to law. Appellant's offense constituted a third-degree felony. As a result, the trial court

could have sentenced appellant to a maximum 36-month prison term.                 See R.C.

2929.14(A)(3)(b). The trial court instead exercised its discretion by sentencing appellant to

a lesser 24-month prison term. The trial court also correctly imposed postrelease control.

There was therefore nothing infirm about the trial court's sentencing decision. Accordingly,

finding no merit to any of the arguments raised herein, appellant's second assignment of

error is overruled.

         {¶ 22} Judgment affirmed.



         HENDRICKSON, P.J., and M. POWELL, J., concur.




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