[Cite as State v. Combs, 2011-Ohio-1734.]




        IN THE COURT OF APPEALS FOR MONTGOMERY COUNTY, OHIO

STATE OF OHIO                                          :

        Plaintiff-Appellee                             :        C.A. CASE NO.        23904

v.                                                     :        T.C. NO.     09CR1191

STEVEN COMBS                                           :        (Criminal appeal from
                                                                Common Pleas Court)
        Defendant-Appellant                  :

                                                       :

                                            ..........

                                            OPINION

                         Rendered on the         8th   day of    April     , 2011.

                                            ..........

ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W.
Third Street, 5th Floor, Dayton, Ohio 45422
       Attorney for Plaintiff-Appellee

GEORGE A. KATCHMER, Atty. Reg. No. 0005031, 115 Brookside Drive, Yellow Springs,
Ohio 45387
      Attorney for Defendant-Appellant

                                            ..........

FROELICH, J.

        {¶ 1} Defendant-appellant Steven Combs appeals from his conviction and

sentence for rape. For the following reasons, the judgment of the trial court will be

affirmed.
                                                                                     2

                                              I

       {¶ 2} On April 27, 2009, Combs was indicted on one count each of forcible

rape of a child under the age of ten years, gross sexual imposition of a child under

the age of thirteen, and sexual battery of a child under the age of thirteen. All

charges arose as a result of offenses that were alleged to have occurred in early

2009 against Combs’s daughter. On January 8, 2010, Combs pled no contest to

forcible rape by bill of information, and was found guilty by the court; the indictment

was nolled. The parties agreed to a five-year mandatory term of imprisonment, to

which the trial court sentenced him. Combs appeals.

                                              II

       {¶ 3} Combs’s First Assignment of Error:

       {¶ 4} “A PLEA THAT IS NOT KNOWINGLY, INTELLIGENTLY AND

VOLUNTARILY GIVEN MUST BE VACATED.”

       {¶ 5} Combs’s Second Assignment of Error:

       {¶ 6} “A    PLEA     MUST     BE    VACATED        WHEN      DUE     TO    THE

INEFFECTIVENESS OF COUNSEL THE PLEA WAS NOT KNOWINGLY,

INTELLIGENTLY AND VOLUNTARILY GIVEN.”

       {¶ 7} In his first assignment of error, Combs maintains that his plea must be

vacated because he did not knowingly, intelligently, and voluntarily enter his plea as

the result of the trial court’s interrupting him when he “resisted the acceptance of a

plea.” In his second assignment of error, Combs offers a cursory argument that he

was denied the effective assistance of trial counsel because counsel should not

have allowed him to enter a plea. The record does not support either claim.
                                                                                   3

      {¶ 8} In Boykin v. Alabama (1969), 395 U.S. 238, 242-43, 89 S.Ct. 1709,

the United States Supreme Court held that in order for a reviewing court to

determine whether a guilty plea was voluntary, the record must show that the

defendant knowingly, intelligently, and voluntarily waived his constitutional rights.

See also, State v. Nero (1990), 56 Ohio St.3d 106, 107.          Crim.R. 11(C) was

adopted to ensure an adequate record for review in order to facilitate a more

accurate determination of the voluntariness of a defendant’s plea. Id.

      {¶ 9} Crim.R. 11(C)(2) requires the trial court to personally inform a

defendant of the constitutional guarantees that he waives by entering a guilty plea.

That section also demands that the trial court ensure that the defendant

understands the nature of the charges against him, the maximum penalty that he

faces, and whether he is eligible for probation. A defendant who claims that his no

contest plea was not knowingly, intelligently, and voluntarily made must show a

prejudicial effect. Nero, supra, at 108. In other words, “[t]he test is whether the

plea would have otherwise been made.” Id., citations omitted.

      {¶ 10} The record demonstrates that Combs was afforded a full and proper

Crim.R. 11 hearing at the time of his plea. At that hearing, he acknowledged that

he had discussed the charges and possible defenses with his attorneys.

Additionally, after the State’s recitation of the facts, Combs acknowledged that he

understood and wanted to plead no contest. See, e.g., State v. Patrick (Oct. 5,

1994), Montgomery App. No. 13954 (having the prosecutor recite the facts

supporting the charges to which a defendant intends to plead is an acceptable way

to determine whether the defendant understands the nature of the charges).
                                                                                     4

      {¶ 11} Additionally, Combs affirmatively stated that he was satisfied with both

of his attorneys’ representation. He acknowledged that his attorneys had read the

plea form to him, and that he understood the form; and he signed it. The trial court

found that Combs understood the rights that he was waiving by entering the plea.

      {¶ 12} Moreover, Combs affirmatively stated that he was not coerced or

forced to enter the plea. Nobody threatened him, and nobody made any promises

to him beyond the agreement with the State to dismiss the indictment and to

recommend a five-year sentence, as described at the outset of the hearing.

      {¶ 13} Combs has failed to show that his plea would not have been entered

had the trial court handled the plea hearing differently. To the contrary, the record

supports the State’s position that Combs’s plea was knowingly, voluntarily, and

intelligently entered in order to avoid facing the original charges that were

dismissed in exchange for his plea.

      {¶ 14} With regard to the trial court’s interruption of Combs, we point out first

that this interruption occurred during the sentencing hearing, not at the plea

hearing.   During the sentencing hearing, Combs stated, “This incident was totally

blown out of proportion. I understand that what happened was an accident and I

take full responsibility for it, but what I pled out to was not the degree of what

happened. It was * * *.” At this point, the trial court interrupted Combs and ordered

a recess so that Combs could consult with his attorneys. Following that recess,

the court explained that it feared that Combs was “running dangerously close to * *

* saying some things [he] might regret.” Combs stated that he understood. He

apologized for his crime and accepted “whatever you see fit as a just punishment
                                                                                         5

for me.” He never expressed a desire to withdraw his plea. The record fails to

support Combs’s conclusion that the interruption during his sentencing hearing

invalidated his plea entered more than two weeks earlier.

         {¶ 15} Combs also claims that trial counsel was ineffective for allowing him

to enter a plea because counsel was aware that he did not want to enter the plea.

In order to prevail on a claim of ineffective assistance of counsel, the defendant

must show both deficient performance and resulting prejudice.               Strickland v.

Washington (1984), 466 U.S. 668, 104 S.Ct. 2052. Trial counsel is entitled to a

strong presumption that his conduct falls within the wide range of effective

assistance, and to show deficiency the defendant must demonstrate that counsel’s

representation fell below an objective standard of reasonableness. Id.

         {¶ 16} The record does not support Combs’s claim that he did not want to

enter a plea or that counsel was aware that he did not want to enter the plea. Nor

did Combs ever file a motion in the trial court to withdraw that plea. As explained

above,     Combs    knowingly,   intelligently,   and   voluntarily   entered   his   plea.

Furthermore, Combs indicated he was satisfied with both of his attorneys’

representation, and we note that counsel negotiated a favorable plea agreement,

including a five-year sentence when the original charges were much more serious,

including a mandatory life sentence for forcible rape of a child under the age of ten.

         {¶ 17} In regard to the interruption during the sentencing hearing, it appears

to us that the trial court acted very appropriately by allowing Combs all the time he

needed to consult with his attorneys; the record does not reflect what conversation

took place between Combs and his attorneys. Following that conversation, Combs
                                                                                  6

expressed no desire to withdraw his plea.          We cannot conclude on the record

before us that Combs was denied the effective assistance of trial counsel.

       {¶ 18} Combs’s first and second assignments of error are overruled.

                                             III

       {¶ 19} Both of Combs’s assignments of error having been overruled, the

judgment of the trial court is Affirmed.

                                      ..........

DONOVAN, J. and HALL, J., concur.

Copies mailed to:

Andrew T. French
George A. Katchmer
Hon. Frances E. McGee
