[Cite as State v. Carter, 2014-Ohio-4856.]




                IN THE COURT OF APPEALS FOR CLARK COUNTY, OHIO

STATE OF OHIO                                            :

        Plaintiff-Appellee                               : C.A. CASE NO.      2013 CA 115

v.                                                       : T.C. NO.    12CR112

DEE CARTER                                               :   (Criminal appeal from
                                                             Common Pleas Court)
        Defendant-Appellant                   :

                                                         :

                                             ..........

                                             OPINION

                          Rendered on the         31st        day of        October     , 2014.

                                             ..........

RYAN A. SAUNDERS, Atty. Reg. No. 0091678, Assistant Prosecuting Attorney, 50 E.
Columbia Street, Suite 449, Springfield, Ohio 45502
      Attorney for Plaintiff-Appellee

DANIEL A. PERRY, Atty. Reg. No. 0087548, 123 Boggs Lane, Cincinnati, Ohio 45246
     Attorney for Defendant-Appellant

                                             ..........




FROELICH, P.J.
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                 {¶ 1} Dee Carter pled guilty in the Clark County Court of Common Pleas to

one count of gross sexual imposition, a fourth-degree felony, in exchange for which the State

dismissed one count of rape. The parties agreed to an eleven-month sentence and that

Carter would receive credit for time served in jail while the case was pending (348 days),

which exceeded eleven months. The trial court imposed the agreed eleven-month sentence,

informed Carter that he would be subject to five years of post-release control, and ordered

him to pay court costs. Carter was designated a Tier III sex offender.

       {¶ 2}     Carter appeals from his conviction, claiming that the trial court erred in

accepting his guilty plea and that his counsel rendered ineffective assistance. For the

following reasons, the trial court’s judgment will be affirmed.

                                  I. Defendant’s Guilty Plea

       {¶ 3}     Carter’s first assignment of error states:

       The trial court erred by failing to properly inform and ensure that the

       defendant-appellant understood his constitutional rights prior to accepting

       defendant-appellant’s waiver and guilty plea, and continuing to accept

       defendant-appellant’s guilty plea after defendant-appellant made known that

       he was not aware of the possible penalties, was not guilty of the criminal

       offense of which he was pleading guilty, and did not desire to enter a plea of

       guilty.

       {¶ 4}      An appellate court must determine whether the record affirmatively

demonstrates that a defendant’s plea was made knowingly, intelligently, and voluntarily.

State v. Russell, 2d Dist. Montgomery No. 25132, 2012-Ohio-6051, ¶ 7. “If a defendant’s
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guilty plea is not knowing and voluntary, it has been obtained in violation of due process and

is void.” State v. Brown, 2d Dist. Montgomery Nos. 24520 and 24705, 2012-Ohio-199, ¶

13, citing Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). In

order for a plea to be given knowingly and voluntarily, the trial court must follow the

mandates of Crim.R. 11(C). Brown at ¶ 13.

       {¶ 5}     Crim.R. 11(C)(2) requires the court to (a) determine that the defendant is

making the plea voluntarily, with an understanding of the nature of the charges and the

maximum penalty, and, if applicable, that the defendant is not eligible for probation or for

the imposition of community control sanctions; (b) inform the defendant of and determine

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 sentencing; and (c) inform the

defendant and determine that he understands that, by entering the plea, the defendant is

waiving the rights to a jury trial, to confront witnesses against him, to have compulsory

process for obtaining witnesses, and to require the State to prove his guilt beyond a

reasonable doubt at a trial at which he cannot be compelled to testify against himself. State

v. Brown, 2d Dist. Montgomery No. 21896, 2007-Ohio-6675, ¶ 3.

       {¶ 6}     The Supreme Court of Ohio has urged trial courts to literally comply with

Crim.R. 11. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 29.

However, because Crim.R. 11(C)(2)(a) and (b) involve non-constitutional rights, the trial

court need only substantially comply with those requirements. E.g., State v. Nero, 56 Ohio

St.3d 106, 108, 564 N.E.2d 474 (1990). “Substantial compliance means that under the

totality of the circumstances the defendant subjectively understands the implications of his
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plea and the rights he is waiving.” Id. In contrast, the trial court must strictly comply with

Crim.R. 11(C)(2)(c), as it pertains to the waiver of federal constitutional rights. Clark at ¶

31.

       {¶ 7}     Furthermore, when non-constitutional rights are at issue, a defendant who

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

voluntarily made generally must show a prejudicial effect. State v. Veney, 120 Ohio St.3d

176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 17. Prejudice in this context means that the plea

would otherwise not have been entered. Id. at ¶ 15.

       {¶ 8}    Carter argues that the trial court failed to comply with Crim.R. 11 and failed

to ensure that he understood the rights he was waiving.          Carter emphasizes that he

repeatedly stated at the plea hearing that he was “slow” and he did not believe it was in his

best interest to enter the plea. Carter also states that he was not aware of several penalties

that would result from his plea and he “felt forced” to accept the plea deal. Carter argues,

“It is evident from the trial court record that [he] did not want to change his plea, believed

that he was not guilty of the criminal offense, and believed that he was being forced into a

plea deal that he did not want.”

       {¶ 9}    During the plea hearing, the prosecutor stated that the parties agreed that

Carter would pled guilty to gross sexual imposition and that he would receive an

eleven-month sentence; a rape charge would be dismissed. Carter asked the court to explain

to him that he would get “time served” and that he would not have to go to the penitentiary,

and the court did so. The court then inquired if Carter was making his plea voluntarily, as

follows:
                                                                                    5

       THE COURT: Have there been any other promises made to you to get

you to plead guilty that I’m not aware of or are those the only two promises

that have been made to you?

       THE DEFENDANT: Just what [the prosecutor] said and what my

attorney said, I just have – I guess I understand. I just wanted to know in

simple words because I really don’t know that much, I guess. I just want to

know how it will work.

       I mean, I plead guilty to it and I’m trying to see if I understand it, and

I’m getting the felony four and he’s dismissed a felony one thing, but then I

gotta register for life and then I was promised to leave today, but I got a

felony four. But I got – it’s called gross sexual something, whatever it is on

my record and like he said, you’ll be free to leave today, but you gotta register

for life now. So is that what that means?

       THE COURT: That’s what that means.

       THE DEFENDANT: Yes, sir.

       THE COURT: Has anybody threatened you to get you to plead guilty?

 Is anybody forcing you to do this or threatening you that if you don’t do this,

something bad would happen to you or are you doing this because it’s what

you believe is in your best interests?

       THE DEFENDANT: I don’t believe it’s in my best interest. I just

believe that when he told me that you should do it because I don’t believe you

have no chance, so what am I supposed to do?
                                                                                   6

        THE COURT: Do you want to have a trial in this case? Because you

have the right to a trial.

        THE DEFENDANT: But I learned it’s about my mother and if I can

understand what’s going on here today instead of traveling back and forth to

Tennessee because I feel I’m not guilty of it honestly, but it’s not about that.

I am just trying to understand what you guys are talking about. I am gonna

cut to the chase.

(Counsel consults with defendant.)

        THE DEFENDANT: I will plead guilty to what you just explained to

me. Does that make any sense? I’m sorry, Mr. Rastatter. I’m a little slow

sometimes.

        THE COURT: If you are telling me that you don’t believe you are

guilty of an offense –

        THE DEFENDANT: I’m sorry. I didn’t mean to – I’m not trying to

put no pressure on you or nothing. I just want to get this resolved because of

my mother, and I have been right beside her from day one. She’s got tubes

in her, so she’s telling me she just wants me home, and I don’t want to put too

much pressure on her heart and knowing that I have to go and try to

jeopardize my life is going to put a lot of pressure on her. Does that make

any sense, Your Honor?

        THE COURT: I understand what you are saying, but I also want you

to understand that I don’t want you to plead guilty to an offense if you’re not
                                                                                             7

       guilty of it. If you’re telling me you’re not guilty, then you have the right to

       have a trial.

                [DEFENSE COUNSEL]: May I have one moment?

                THE DEFENDANT: I’ll plead guilty to that and get it over with.

                [PROSECUTOR]: That’s not – There’s rules that you have to go by.

                THE DEFENDANT: Oh, I’m sorry.

       (Counsel consults with defendant.)

                THE DEFENDANT: Yes. I am guilty of that, Your Honor.

       {¶ 10}    Following this exchange, the court informed Carter of the offense to which

he was pleading guilty (gross sexual imposition), the maximum prison term and fine that he

faced (as well as reiterating that the court had agreed to give him eleven months), and that as

a result of his plea he would be required to “register in person with the Sheriff in the county

in which you reside every ninety days for the rest of your life.” Carter indicated that he

understood each of these.

       {¶ 11} The trial court also informed Carter that he would be placed on post-release

control for five years. When the court asked Carter if he knew anything about that, Carter

responded that he did not. The court explained that, if Carter pled guilty, the court would

sentence him to eleven months in prison, but he would be free to leave that day, that he

would have the lifetime sex offender registration requirement every 90 days, “and then you

will also be on post-release control, which means a parole officer will supervise you and

give you specific rules that you will have to follow and comply with, and that will last for

five years.” Carter responded:
                                                                                     8

        Excuse me, Your Honor. I am glad you explained this. Can I tell

you the truth about something?

        THE COURT: Sure.

        THE DEFENDANT: I feel I have been forced to take this deal

through [defense counsel], and I didn’t want to say anything and I didn’t

know nothing about the probation or none of that. He didn’t explain to me

the whole thing. He was just trying to get me to take it. I’m not. No, I’m

not taking it.

        THE COURT: Okay.

        THE DEFENDANT: I’m gonna keep my plea of not guilty. I wasn’t

informed of none of this of what’s going on. I don’t understand none of this.

        THE COURT: Okay. That’s your choice and –

        THE DEFENDANT: He didn’t tell me nothing about probation or

none of that. I was not informed of any of this, Your Honor. He was just

telling me – I figured it’s in his * * * best interest to take it because he feels

that he can’t do nothing for me, is what he said to me out there. That’s his

exact words.

        THE COURT: All right. We’ll take a recess and I’ll give you time to

talk to your lawyer some more; and if that’s your decision for right now, then

I respect that.

        THE DEFENDANT: Thank you for informing me of my rights.

That’s very important because I didn’t know none of this. I was never even
                                                                                          9

       – he never told me none of this. He said he feels it’s in his interest for me to

       take the deal.

               THE COURT: Well, I want you to talk to your lawyer now.

       {¶ 12} After a six-minutes recess, Carter informed the court that he agreed to the

deal. The court again inquired about Carter’s understanding of the penalties:

               THE COURT: Have you had a chance to talk to your attorney about

       this?

               THE DEFENDANT: Yes, and I understand everything.                     He

       explained it to me more, Your Honor.

               THE COURT: Are you satisfied with the advice you have been given

       from your attorney in this case?

               THE DEFENDANT: Yes, sir. He’s done a great job.

               THE COURT: Did he explain to you the post-release control that I

       was talking to you about?

               THE DEFENDANT: Yes, Your Honor.

               THE COURT: So you understand that by pleading guilty to this

       offense, you will be placed on post-release control for five years. Do you

       understand that?

               THE DEFENDANT: Yes, sir.           That’s after the sentence; is that

       correct?

               THE COURT: Yes. * * *

       {¶ 13} The court informed Carter of the possible consequences if he violated
                                                                                           10

post-release control. Carter indicated that he understood. The trial court then explained

the constitutional rights that Carter was waiving by entering a plea. Carter stated that he

understood his rights and that he was giving up those rights by pleading guilty. The trial

court asked Carter how he wanted to plead; Carter responded, “I’d like to plead guilty to

that, sir.” The court asked, “You’re telling the Court at this time that you’re guilty of that

offense?” Carter replied, “Yes, Your Honor.” The court found that Carter had knowingly,

voluntarily, and intelligently waived his rights and entered a guilty plea to gross sexual

imposition, and it found him guilty. The court immediately sentenced Carter, as agreed.

         {¶ 14}   Contrary to Carter’s assertions, the record reflects that the trial court

carefully and patiently reviewed with Carter the consequences of his guilty plea and took

pains to ensure that Carter’s plea was made knowingly, intelligently, and voluntarily. The

court literally complied with Civ.R. 11(C)(2)(c), which concerned Carter’s federal

constitutional rights. Moreover, the court complied with Crim.R. 11(C)(2)(a) and (b) by

inquiring whether Carter’s plea was voluntarily entered, whether he had been threatened or

any promises had been made to him, and explaining the possible penalties and the effect of

his plea.    Carter was permitted to (and did) consult with his attorney throughout the plea

hearing, and the court made sure that Carter was not entering his plea simply to “get it over

with.”

         {¶ 15} Carter’s first assignment of error is overruled.

                             II. Ineffective Assistance of Counsel

         {¶ 16} Carter’s second assignment of error states:

         Defendant-appellant was not provided with the effective assistance of trial
                                                                                            11

       counsel as defendant-appellant’s trial counsel failed to properly advise

       defendant-appellant of mandatory post-release control, mandatory sex

       offender classification, failed to properly investigate the background of the

       victim’s competency, and generally failed to aid in defendant-appellant’s

       defense.

       {¶ 17}     To reverse a conviction based on ineffective assistance of counsel, an

appellant must demonstrate both that trial counsel’s conduct fell below an objective standard

of reasonableness and that the errors were serious enough to create a reasonable probability

that, but for the errors, the result of the trial would have been different. Strickland v.

Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42

Ohio St.3d 136, 538 N.E.2d 373 (1989). Trial counsel is entitled to a strong presumption

that his or her conduct falls within the wide range of reasonable assistance. Strickland, 466

U.S. at 688.

       {¶ 18} Carter claims that his trial counsel acted deficiently by failing to advise him

regarding mandatory post-release control and sex offender registration prior to the plea

hearing.   He also claims that his counsel did not properly investigate the victim’s

competency and failed to aid in his defense.

       {¶ 19} First, Carter asserts that his counsel rendered ineffective assistance by not

informing him of mandatory penalties associated with his plea to gross sexual imposition.

During the plea hearing, the trial court asked Carter if he understood that, as a result of his

plea, he would be placed on post-release control for five years and that he would have to

register as a sex offender every ninety days. Carter told the court that defense counsel
                                                                                             12

“didn’t tell me nothing about probation or none of that. I was not informed of any of this,

Your Honor.” The court ordered a recess to provide Carter an opportunity to discuss the

matter with his attorney. After a six-minute recess, Carter stated that he had spoken with

his attorney and that he was satisfied with the advice his counsel had given. Carter stated,

“I understand everything. He explained it to me more, Your Honor.” Carter expressly

acknowledged that he understood that he would be placed on post-release control and the

consequences he faced if he violated post-release control.

       {¶ 20} Even if we were to assume that counsel failed to adequately explain

post-release control and the sex offender registration requirements prior to the plea hearing,

we have no basis to conclude that Carter was prejudiced by that conduct. The trial court

notified Carter of these mandatory sentencing requirements, and the court provided Carter an

opportunity to discuss the requirements with his attorney prior to entering his plea. After

further discussion with his attorney, Carter indicated that he understood the post-release

control and registration requirements and that he wanted to go forward with the plea

agreement. Carter’s claim of ineffective assistance of counsel based on counsel’s alleged

failure to advise him of the mandatory post-release control and sex offender registration

requirements prior to the plea hearing is without merit.

       {¶ 21} Next, Carter claims that his defense counsel did not properly investigate the

victim’s competence and failed to aid in his defense. “A plea of guilty waives any claim

that the accused was prejudiced by ineffective assistance of trial counsel, except to the extent

that the ineffectiveness alleged may have caused the guilty plea to be less than knowing,

intelligent, and voluntary.”     State v. Stivender, 2d Dist. Montgomery No. 23973,
                                                                                           13

2011-Ohio-247, ¶ 15.       Carter’s arguments regarding his counsel’s alleged failures to

investigate the victim’s competence and to aid in his defense are based on statements made

at a January 25, 2013 status hearing, approximately ten months before the plea hearing.

Carter has not argued, much less demonstrated, that counsel’s conduct at or prior to January

25, 2013 affected his decision to enter a plea.

       {¶ 22} Even if we were to consider the issues, we would conclude that the record

does not support Carter’s claim that his counsel rendered ineffective assistance in this

regard. At a status hearing on January 25, 2013, Carter complained to the court that he had

had no contact with his defense counsel in four months and that he had not received any

discovery regarding his case. Carter expressed his belief that defense counsel was not

acting in his (Carter’s) best interest, because counsel had proposed that Carter plead to the

rape charge without providing Carter the discovery packet. Carter also questioned how the

victim could be found to be incompetent for purposes of his case when, according to Carter,

the victim was placed on probation by the juvenile court and “the juvenile judge across the

street said that person is competent.”

       {¶ 23} Defense counsel indicated to the court that he believed he had provided a

discovery packet to Carter, but counsel offered to supply it again. The prosecutor stated that

he and defense counsel had talked about the question of the victim’s competence, and he

indicated that the purpose of one of the continuances in the case was to obtain a competency

evaluation of the victim. An expert evaluated the victim and concluded that the victim was

not competent. The prosecutor further stated that he did not believe a competency hearing

had been ordered by the juvenile court and, regardless, “those two types of competencies are
                                                                                           14

different than what we’re talking about.” The prosecutor explained that the expert in

Carter’s case “did a specific exam to request about the elements of the crime that Mr. Carter

is charged with here * * *, but it would have been a different exam” in juvenile court. The

prosecutor reiterated that “no exam was ever done over in juvenile court.”

       {¶ 24} The trial court ordered defense counsel to provide Carter a copy of the

discovery packet that day and to personally consult with Carter during the week of February

4, 2013, after counsel returned from vacation. We have no reason to believe that counsel

failed to comply with the court’s order. In addition, in February 2013, defense counsel

obtained an order for the victim’s juvenile court records.          Defense counsel ultimately

negotiated a plea to gross sexual imposition, which included the dismissal of the rape charge

and an agreed sentence that was satisfied by the time Carter had served in jail.

       {¶ 25} The record, including the transcript of the January 25, 2013 status hearing,

reflects that defense counsel was aware of the issue surrounding the victim’s competency

and investigated that issue. We find nothing in the record to support Carter’s claims that

counsel failed to aid Carter in his defense and did not act in Carter’s best interest.

       {¶ 26} Carter’s second assignment of error is overruled.

                                        III. Conclusion

       {¶ 27} The trial court’s judgment will be affirmed.

                                          ..........

FAIN, J. and DONOVAN, J., concur.

Copies mailed to:

Ryan A. Saunders
Daniel A. Perry
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Hon. Douglas M. Rastatter
