[Cite as State v. Johnson, 2017-Ohio-2931.]


                                   IN THE COURT OF APPEALS

                               ELEVENTH APPELLATE DISTRICT

                                      GEAUGA COUNTY, OHIO


STATE OF OHIO,                                  :       OPINION

                 Plaintiff-Appellee,            :
                                                        CASE NO. 2016-G-0093
        - vs -                                  :

DEBARI Q. JOHNSON,                              :

                 Defendant-Appellant.           :


Criminal Appeal from the Geauga County Court of Common Pleas, Case No. 2015 C
000240.

Judgment: Affirmed.


James R. Flaiz, Geauga County Prosecutor, and Nicholas A. Burling, Assistant
Prosecuting Attorney, Courthouse Annex, 231 Main Street, Suite 3A, Chardon, OH
44024 (For Plaintiff-Appellee).

Katherine E. Rudzik, 26 Market Street, #904, Youngstown, OH 44503 (For Defendant-
Appellant).



THOMAS R. WRIGHT, J.



        {¶1}     Appellant, Debari Q. Johnson, appeals the trial court’s sentencing entry

following his guilty plea. We affirm.

        {¶2}     In February 2016, Johnson was indicted and charged with nine offenses.

He initially pleaded not guilty, but later pleaded not guilty by reason of insanity. His

evaluation, however, opined that he was not legally insane at the time of the offenses.
      {¶3}   In July 2016, Johnson pleaded guilty to aggravated robbery with a gun

specification, kidnapping, and having a weapon under a disability.         The remaining

charges were dismissed. The trial court sentenced him to a total of seventeen years in

prison.

      {¶4}   His sole assignment of error asserts:

      {¶5}   “The defendant received ineffective assistance of counsel.”

      {¶6}   The U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052 (1984), established the two-prong test for courts to employ upon assessing

ineffective assistance of counsel claims:       “[T]he defendant must [first] show that

counsel's representation fell below an objective standard of reasonableness.” Id. at

687-688. “[Second, t]he defendant must show that there is a reasonable probability

that, but for counsel's unprofessional errors, the result of the proceeding would have

been different.   A reasonable probability is a probability sufficient to undermine

confidence in the outcome.” Id. at 694; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d

373 (1989) paragraphs two and three of the syllabus.

      {¶7}   Reviewing courts are to “indulge a strong presumption that counsel's

conduct falls within the wide range of reasonable professional assistance,” and we must

“judge the reasonableness of counsel's challenged conduct on the facts of the particular

case, viewed as of the time of counsel’s conduct.” Strickland, 466 U.S. at 689-690.

      {¶8}   Johnson first alleges he was denied the effective assistance of counsel

based on his attorney’s unclear explanation of the potential penalties he faced and

since his counsel intimated that the state would recommend concurrent sentences. As

a result of the charged deficiencies, Johnson states his plea was not entered knowingly.




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       {¶9}   However, these allegations are not based on evidence in the record, and

as such, are improperly raised in a direct appeal. State v. Rodriguez, 12th Dist. Butler

No. 2001-04-077, 2002-Ohio-3978, ¶34, citing State v. Gibson, 69 Ohio App.2d 91, 95,

430 N.E.2d 954 (1980). Instead, allegations based on evidence outside the record must

be brought in a proceeding for postconviction relief. Id.

       {¶10} Furthermore, contrary to Johnson’s claims that he was misled or confused

as to the potential penalties he faced, the record shows otherwise. Johnson’s written

guilty plea sets forth the potential penalty range for each of the offenses and the firearm

specification to which he pleaded guilty. It likewise states that no promises were made

to him that are not in the written plea agreement. It also states that the court could

impose consecutive sentences and that Johnson was facing a maximum prison term of

26 years.

       {¶11} Thereafter, the state filed its sentencing memorandum and requested

consecutive sentences totaling 20 years. Johnson did not object. At his sentencing

hearing, the state sought consecutive sentences totaling 20 years. He did not object or

question its recommendation as contrary to their alleged agreement.

       {¶12} Accordingly, Johnson fails to establish that his counsel was deficient.

       {¶13} Next Johnson claims his counsel’s performance was below an objective

standard of reasonableness based on his failure to challenge Johnson’s competency to

enter a guilty plea.

       {¶14} “The constitutional standard for assessing a defendant's competency to

enter a guilty plea is the same as that for determining his competency to stand trial.

Godinez v. Moran, 509 U.S. 389, 396, 398–399, 113 S.Ct. 2680, 125 L.Ed.2d 321




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(1993). The defendant must have a ‘ “sufficient present ability to consult with his lawyer

with a reasonable degree of rational understanding” and [have] “a rational as well as

factual understanding of the proceedings against him.” ’ Id. at 396, 113 S.Ct. 2680,

quoting Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960).

Further, ‘[i]n addition to determining that a defendant who seeks to plead guilty * * * is

competent, a trial court must satisfy itself that the waiver of his constitutional rights is

knowing and voluntary.’ Id. at 400, 113 S.Ct. 2680. And it is a matter of statutory and

decisional law that ‘[t]he fact that a defendant is taking antidepressant medication or

prescribed psychotropic drugs does not negate his competence to stand trial.’ Ketterer,

111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, at ¶ 71; see also Mink, 101 Ohio

St.3d 350, 2004-Ohio-1580, 805 N.E.2d 1064, at ¶ 38, citing R.C. 2945.37(F).” State v.

Montgomery, __ Ohio St.3d __, 2016-Ohio-5487, ¶56, reconsideration granted in part,

147 Ohio St.3d 1438, 2016-Ohio-7677, 63 N.E.3d 157.

       {¶15} As Johnson contends, his attorney did not request an evaluation of his

competency to enter the guilty plea. Notwithstanding, nothing in the record indicates

that Johnson failed to understand the proceedings or was incapable of understanding

his conversations with his attorney. During his plea hearing, Johnson answered the

court’s questions. He also agreed that his attorney explained the options of proceeding

to trial and what a plea agreement entailed.        Johnson personally asked the court

whether a presentence investigation is mandatory, and he later said he had no other

questions. Johnson subsequently told the court that there was nothing that the court

explained that he did not understand, and he told the court that he graduated from




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college after taking “special classes.” Finally, Johnson confirmed that he was taking his

prescribed medications, which do not impair his ability to understand or communicate.

        {¶16} The trial court’s judgment accepting Johnson’s guilty plea likewise

indicates that it accepted Johnson’s plea “after addressing the defendant personally and

determining that he was making his plea knowingly and voluntarily, with understanding

of the nature of the charges and the maximum penalty involved, determining that he

understood the effect of his plea * * *.”

        {¶17} Thus, nothing reflects that Johnson’s counsel’s performance fell below an

objective standard of reasonableness in not challenging his capacity to enter a guilty

plea.

        {¶18} Johnson’s sole assignment of error lacks merit and is overruled, and the

trial court’s decision is affirmed.



CYNTHIA WESTCOTT RICE, P.J.,

TIMOTHY P. CANNON, J.,

concur.




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