[Cite as State v. Redmond, 2018-Ohio-2778.]




             IN THE COURT OF APPEALS OF OHIO
                            SEVENTH APPELLATE DISTRICT
                                MAHONING COUNTY

                                         STATE OF OHIO,

                                         Plaintiff-Appellee,

                                                 v.

                                    THEAPLUS REDMOND,

                                      Defendant-Appellant.


                       OPINION AND JUDGMENT ENTRY
                                        Case No. 17 MA 0068


                                  Criminal Appeal from the
                      Court of Common Pleas of Mahoning County, Ohio
                                  Case No. 2016 CR 426

                                          BEFORE:
                  Kathleen Bartlett, Gene Donofrio, Cheryl L. Waite, Judges.


                                        JUDGMENT:
                                  REVERSED AND REMANDED


Atty. Ralph Rivera, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503, for
Plaintiff-Appellee and

Atty. Michael Ciccone, 4822 Market Street, Suite 230, Youngstown, Ohio 44512, for
Defendant-Appellant.

                                        Dated: June 29, 2018
                                                                                    –2–




BARTLETT, J.

      {¶1}   Defendant-Appellant, Theaplus Redmond, appeals the March 30, 2017
decision of the Mahoning County Court of Common Pleas. On appeal, Appellant
challenges the trial court's colloquy during his plea proceedings and the trial court's
finding of guilt, pursuant to his Alford plea, as against the manifest weight of the
evidence. He further asserts he received ineffective assistance of counsel. For the
following reasons, the first two assignments of error are meritorious.         The third
assignment of error is meritless.

                            Facts and Procedural History
      {¶2}   On April 13, 2016, the GMC Yukon driven by Appellant was struck by a
Pontiac Grand Prix driven by Shateiya Harris. Harris left the scene of the accident and
Appellant followed her; both in their respective vehicles. At some point both automobiles
crashed. Appellant was taken by ambulance to the hospital. Harris was cited for hit/skip
and refused treatment. After receiving treatment at the hospital, Appellant was arrested
and charged with two counts of felonious assault.
      {¶3}   On April 15, 2016, Appellant made his initial appearance in the
Youngstown Municipal Court and was appointed trial counsel. Appellant waived his
preliminary hearing and consented to the matter being bound over to the grand jury.
      {¶4}   On May 19, 2016, Appellant was indicted on two counts of felonious
assault, pursuant to R.C. 2903.11(A)(2)(D), felonies of the second degree. Appellant
entered not guilty pleas to both counts and executed a waiver of speedy trial. Appellant
also executed a written waiver of jury trial. Multiple pre-trials were held between June
2016 and January 2017.
      {¶5}   The Appellant’s bench trial was scheduled for January 23, 2017; however,
the trial did not go forward.   Instead, Appellant appeared before the court with his
attorney to change his plea. The court was presented a form entitled "Plea of Guilty
Pursuant to Crim. R. 11(F)." The word "Alford" was hand written in the caption. In the
Rule 11 agreement, the prosecution agreed that the two counts would merge but made
no recommendation as to sentencing. The trial court accepted Appellant's Alford plea



Case No. 17 MA 0068
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and found him guilty.
       {¶6}   On March 17, 2017, Appellant appeared for sentencing. Prior to
sentencing, evidence of Appellant's good character was submitted to the court in the
form of letters from his children's teachers and coworkers, attached as exhibits to a
memorandum. At sentencing, Appellant stated to the court that the incident was not
intentional. His attorney stated, "I would take exception to one part of the police report
that states that he hit her car with his vehicle, because that didn't happen the way the
police report describes."
       {¶7}   The trial court found Appellant was not amenable to community control
and sentenced him to four years of incarceration. This timely appeal followed.

                                      Alford Plea
       {¶8}   Appellant's first and second assignments of error are interrelated and will
be discussed together for ease of analysis. They assert respectively:

       Redmond's plea was not entered knowingly, intelligently, and voluntarily
       because the trial court failed to conduct the heightened inquiry required
       when accepting a plea pursuant to Alford.

       The trial court's finding of Redmond guilty, pursuant to his Alford plea, was
       against the manifest weight of the evidence because the prosecution did
       not make a separate presentation of evidence when Redmond made no
       stipulation and the record before the trial court did not contain strong
       evidence of actual guilt.

       {¶9}   Appellant claims his pleas were not entered into knowingly, voluntarily, or
intelligently. This claim is not based on the failure to comply with Crim.R. 11. His claim
is based on the contention that the trial court failed to conduct the heightened inquiry
required when accepting a guilty plea pursuant to Alford.
       {¶10} This Court recently stated in State v. LaBooth, 7th Dist. No. 15 MA 0044,
2017-Ohio-1262, ¶23:

       Where, as here, Appellant makes an Alford plea, the trial court had a duty
       to make further inquiries about the voluntariness of his plea. North


Case No. 17 MA 0068
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      Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1971). An
      Alford plea occurs when a defendant pleads guilty to an offense but at the
      same time protests his innocence. Id.; State v. Padgett, 67 Ohio App.3d
      332, 337, 586 N.E.2d 1194 (1990). An Alford plea is properly accepted in
      Ohio as knowing, voluntary and intelligent where the record discloses: (1)
      defendant's plea was not the result of coercion, deception or intimidation;
      (2) defendant's counsel was present at the time the plea was entered; (3)
      defense counsel's representation was competent in light of the
      circumstances of the indictment; (4) the plea was entered with an
      understanding of the underlying charges; and (5) the defendant was
      motivated by a desire for a lesser penalty, a fear of the consequences of a
      jury trial, or both. State v. Piacella, 27 Ohio St.2d 92, 271 N.E.2d 852
      (1971), syllabus.

      {¶11} The Eight District has also spoken on this topic recently:

      Where a defendant enters an Alford plea, the trial court must inquire into
      the factual basis surrounding the charges to determine whether the
      defendant is making an intelligent and voluntary guilty plea. See, e.g.,
      State v. Corbett, 8th Dist. Cuyahoga No. 99649, 2013-Ohio-4478, 2013
      WL 5594234, ¶ 6. The trial court may accept the guilty plea only if a
      factual basis for the guilty plea is evidenced by the record. See, e.g., id. (“
      ‘When taking an Alford plea, the trial court cannot determine whether the
      accused was making an intelligent and voluntary guilty plea absent some
      basic facts surrounding the charge’ demonstrating that the plea cannot
      seriously be questioned.”), quoting State v. Jones, 8th Dist. Cuyahoga No.
      97674, 2012-Ohio-2512, 2012 WL 2047993, ¶ 5; State v. Johnson, 8th
      Dist. Cuyahoga No. 103408, 2016-Ohio-2840, 2016 WL 2587209, ¶ 27
      (“An Alford plea may not be accepted when the record fails to demonstrate
      facts upon which the trial court can resolve the apparent conflict between
      a defendant's claim of innocence and the defendant's desire to plead
      guilty to the charges.”), citing State v. Tyner, 8th Dist. Cuyahoga No.


Case No. 17 MA 0068
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         97403, 2012-Ohio-2770, 2012 WL 2355606, ¶ 6.

State v. Alvelo, 8th Dist. No. 104422, 2017-Ohio-742, ¶ 23
         {¶12} A review of the record reveals that Appellant was represented by counsel
who was present and competent at the hearing. Appellant indicated, multiple times, that
he understood the terms of the plea, the potential penalties, and the constitutional rights
and appellate rights he was waiving as a result of the plea. The record demonstrates
that his plea was not entered as the result of coercion or duress. There is no indication
that Appellant was motivated by a desire for a lesser penalty, a fear of the
consequences of a jury trial, or both.
         {¶13} The problem in this case arises from the Court’s failure to conduct a
heightened Alford inquiry during the plea colloquy. Absent a few mentions of the word
"Alford," this plea hearing was indistinguishable from that of an ordinary guilty plea.
From the Crim. R. 11 plea agreement that is used in regular plea proceedings, to the
recitation of constitutional and non-constitutional rights, there is nothing to differentiate
this from a normal plea hearing minus the word "Alford" written on the plea agreement
and the trial court referring to Alford on three occasions prior to accepting Appellant's
pleas.
         {¶14} Further, when taking an Alford plea, the trial court cannot determine
whether the accused was making an intelligent and voluntary guilty plea absent some
basic facts surrounding the charge, demonstrating that the plea cannot seriously be
questioned. The prosecution presented no background to the charges and presented
no facts or evidence. Appellant's counsel never stated any factual basis for the Alford
plea nor did Appellant ever stipulate to the prosecution's evidence. At no time during the
plea hearing did the trial court inquire as to the reason for invoking Alford.
         {¶15} As the record does not affirmatively disclose all of the required factors for
finding Appellant voluntarily, knowingly, and intelligently entered the Alford pleas, both
assignments of error are meritorious.

                            Ineffective Assistance of Counsel
         {¶16} In his final of three assignments of error, Appellant asserts:

         Redmond's trial counsel provided ineffective assistance of counsel.


Case No. 17 MA 0068
                                                                                       –6–


        {¶17} To prove an allegation of ineffective assistance of counsel, the defendant
must satisfy a two-prong test: that counsel's performance has fallen below an objective
standard of reasonable representation, and that he was prejudiced by counsel's
performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d
674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E .2d 373 (1989), at paragraph
two of the syllabus. To demonstrate prejudice, the defendant must prove that, but for
counsel's errors, the result of the trial would have been different. Id. at paragraph three
of the syllabus. In Ohio, a properly licensed attorney is presumed to be competent and
the burden is on the defendant to prove otherwise. State v. Hamblin, 37 Ohio St.3d 153,
155, 524 N.E.2d 476 (1988).
        {¶18} Appellant alleges his trial counsel was ineffective because the transcript
demonstrates that Appellant was a confused man. Further, he asserts that his attorney
should have tried the case as opposed to pleading out with no sentence
recommendation from the State.
        {¶19} "Effective assistance of counsel does not guarantee results and
consequences of advice are not the only measure." State v. Longo, 4 Ohio App.3d 136,
139, 446 N.E.2d 1145 (8th Dist.1982). Contrary to Appellant's assertion of being
confused, prior to entering his plea Appellant indicated to the trial court that he reviewed
the plea agreement with his attorney and that he understood it. (Plea Tr. 3). He
acknowledged on the record that his attorney and the court fully explained everything.
Id. at 7.
        {¶20} As the Appellee aptly points out, the State agreed to remain silent as to a
sentencing recommendation and agreed that both counts would be merged. This was of
significant benefit to Appellant who was facing a potential 16 years of incarceration.
Appellant has not proven the deficient performance of his trial counsel: his final
assignment of error is meritless.

                                       Conclusion
In summary, the trial court did not engage in the heightened inquiry required under
Alford. As such, Appellant's plea is vacated and this case is remanded for further




Case No. 17 MA 0068
                                                                 –7–


proceedings according to law and consistent with this opinion.




Donofrio, J., concurs.
Waite, J., concurs.




Case No. 17 MA 0068
[Cite as State v. Redmond, 2018-Ohio-2778.]




        For the reasons stated in the Opinion rendered herein, the third assignment of
error is overruled; the first and second assignments of error are sustained and it is the
final judgment and order of this Court that the judgment of the Court of Common Pleas
of Mahoning County, Ohio, is reversed. We hereby remand this matter to the trial court
for further proceedings according to law and consistent with this Court’s Opinion. Costs
to be taxed against the Appellee.
        A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.




                                       NOTICE TO COUNSEL

        This document constitutes a final judgment entry.
