[Cite as State v. Albritton, 2013-Ohio-116.]




                            IN THE COURT OF APPEALS OF OHIO
                               SECOND APPELLATE DISTRICT
                                  MONTGOMERY COUNTY

STATE OF OHIO                                      :
                                                   :     Appellate Case No. 25064
        Plaintiff-Appellee                         :
                                                   :     Trial Court Case No. 2011-CR-2955
v.                                                 :
                                                   :
TIMOTHY M. ALBRITTON, JR.                          :     (Criminal Appeal from
                                                   :     (Common Pleas Court)
        Defendant-Appellant                        :
                                                   :
                                                ...........

                                               OPINION

                              Rendered on the 18th day of January, 2013.

                                                ...........

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. #0069384, Montgomery
County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, P.O.
Box 972, 301 West Third Street, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

WILLIAM T. DALY, Atty. Reg. #0069300, 70 Birch Alley, Suite 240, Dayton, Ohio 45440
     Attorney for Defendant-Appellant

                                               .............

FAIN, P.J.

        {¶ 1}     Defendant-appellant Timothy M. Albritton, Jr., appeals from his conviction
                                                                                            2


and sentence for Gross Sexual Imposition of a child less than thirteen years of age, following a

negotiated plea deal.    Albritton contends that he received ineffective assistance of trial

counsel and that the trial court made misstatements of law, which “improperly induced” his

guilty plea.   We conclude that Albritton has failed to demonstrate reversible error.

Accordingly, the judgment of the trial court is Affirmed.



                                I. Course of the Proceedings

       {¶ 2}    Timothy M. Albritton, Jr. was indicted on one count of Gross Sexual

Imposition of a child less than thirteen years of age, in violation of R.C. 2907.05(A)(4), a

felony of the third degree, and one count of Rape of a child under ten years of age, in

violation of R.C. 2907.02(A)(1)(b), a felony of the first degree. Albritton filed a motion to

suppress evidence obtained as a result of an unlawful seizure. The trial court overruled this

motion. On January 17, 2012, the trial court determined that the child victim was “not

competent for purposes of presenting testimony before the Trial.” Dkt. 24. The State filed a

motion to declare the complaining witness unavailable, and requested a hearing to determine

the admissibility of the complaining witness’s statements under Evid.R. 807.

       {¶ 3}    While the State’s motion was pending, Albritton pled guilty to Gross Sexual

Imposition of a child less than thirteen years of age, in violation of R.C. 2907.05(A)(4). In

exchange for his guilty plea, the State dismissed the Rape count of the indictment. The trial

court sentenced Albritton to five years in prison and five years of post-release control. The

trial court also found Albritton to be a Tier 2 sex offender as defined in R.C. 2950.01. From

his conviction and sentence, Albritton appeals.
                                                                                          3




         II. Albritton’s Guilty Plea Was Knowing and Voluntary and He Failed

                  to Demonstrate Ineffective Assistance of Trial Counsel

       {¶ 4}    Albritton identifies the following assignment of error:

               INEFFECTIVE ASSISTANCE OF COUNSEL AND MISSTATEMENTS OF

       LAW BY THE TRIAL COURT.

       {¶ 5}    Albritton contends that, during the sentencing hearing, his trial counsel and

the trial court made “diametrically opposed statements” about whether the complaining

witness was competent to testify at trial. According to Albritton:

               The appellant being given the wrong standard and procedure with

       respect to determining competency by his counsel and also enunciated by the

       trial court before sentencing without objection by counsel was sufficient to

       improperly induced [sic] the defendant’s plea. The appellant’s plea could not

       have been made knowingly. Brief, p. 6.

       {¶ 6}    Albritton cites pages 71-73 of the transcript from the sentencing hearing in

support of his assignment of error. Pages 71-73 of the transcript provide, in part:

               THE COURT: Mr. Pentecost, anything you wanted to add before

       sentencing? We’ve had very lengthy discussions about this case. Was there

       anything you wanted to add?

               MR. PENTECOST: Thank you, Your Honor. Yeah, it’s

                      for the record, you know, Mr. Albritton appears

                      before you with a lack of criminal history.
                                                                                            4


                      This is his first involvement with the Criminal

                      Justice System. These are certainly unfortunate

                      circumstances. He did take responsibility for the

                      acts that he indicated he committed.               I

                      understand the State has submitted a sentencing

                      memorandum with some additional factual

                      allegations. However, I remind the Court that as

                      far as the factual allegations there was significant

                      – not much reliability of the complaining

                      witness. The Court made that determination as

                      well as the grand jury judge at the time found that

                      victim to be incompetent to testify. * * *

               ***

               THE COURT: Thank you. Mr. Albritton, first of all, I do want to

       address something Mr. Pentecost said and that is that I determined that the

       child was incompetent as a result of her ago [sic] and competent to testify, but I

       did not in any manner determine that the child or her statements were

       unreliable as that it wasn’t something appropriate for me to talk with the child

       about. So I didn’t pass any judgment on whether that child was reliable or not.

        That would have been the jury’s function.

       {¶ 7}   Albritton contends that his guilty plea was not made knowingly because the

statements made by his trial counsel and the trial court at the sentencing hearing “improperly
                                                                                            5


induced” him to plead guilty. We do not agree. Albritton pled guilty at his January 30, 2012

plea hearing. At that time, he acknowledged on the record that his plea was being entered

voluntarily, intelligently, and knowingly. Tr. 56-66. Also, he signed a valid plea form at

that time that made it clear that his plea was knowing and voluntary. Dkt. 35. Furthermore,

statements made by Albritton’s trial counsel or the trial court at the February 14, 2012

sentencing hearing could not have induced a plea that was entered two weeks earlier, on

January 30, 2012. Therefore, the evidence of record establishes that Albritton’s guilty plea

was knowing, intelligent, and voluntary.

       {¶ 8}    Albritton next contends that his trial counsel was ineffective by failing to

advise Albritton of the correct legal standards regarding reliability and competency of

witnesses. A claim of ineffective assistance of trial counsel requires both a showing that trial

counsel’s representation fell below an objective standard of reasonableness, and that the

defendant was prejudiced as a result. Strickland v. Washington, 466 U.S. 668, 104 S.Ct.

2052, 80 L.Ed.2d 674 (1984). A reviewing court “must indulge in a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at

689. The prejudice prong requires a finding that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different, with a

reasonable probability being “a probability sufficient to undermine confidence in the

outcome.” Id. at 694. See also State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989).

       {¶ 9}    Albritton has failed to demonstrate how his trial counsel’s representation fell

below an objective standard of reasonableness or how he was prejudiced by his trial counsel’s

performance. At the sentencing hearing, trial counsel attempted to convince the trial court to
                                                                                           6


give Albritton a lesser sentence because the complaining witness was incompetent to testify at

trial and was unreliable. The trial court correctly pointed out that being found incompetent to

testify is different from the child’s out-of-court statements being found to be unreliable.

There is no evidence in the record that trial counsel provided incorrect legal advice to

Albritton or that Albritton relied on such advice when he decided to enter a guilty plea.

Furthermore, we do not find that trial counsel’s attempts to convince the trial court to impose

a lesser sentence on Albritton constitutes ineffective assistance of counsel.

       {¶ 10} Albritton’s sole assignment of error is overruled.



                                        III. Conclusion

       {¶ 11} Albritton’s sole assignment of error having been overruled, the judgment of

the trial court is Affirmed.

                                        .............

DONOVAN and HALL, JJ., concur.


Copies mailed to:

Mathias H. Heck
Andrew T. French
William T. Daly
Hon. Mary K. Huffman
