[Cite as State v. Smith, 2013-Ohio-232.]



                              IN THE COURT OF APPEALS OF OHIO
                                 FOURTH APPELLATE DISTRICT
                                    WASHINGTON COUNTY

STATE OF OHIO,                        :    Case No. 12CA11
                                      :
     Plaintiff-Appellee,              :
                                      :    DECISION AND
     v.                               :    JUDGMENT ENTRY
                                      :
JOHN J. SMITH,                        :
                                      :
                                      :    RELEASED 01/23/13
     Defendant-Appellant.             :
______________________________________________________________________
                            APPEARANCES:

Robert W. Bright, Middleport, Ohio, for appellant.

James E. Schneider, Washington County Prosecuting Attorney, and Alison L. Cauthorn,
Washington County Assistant Prosecuting Attorney, Marietta, Ohio, for appellee.
______________________________________________________________________
Harsha, J.

        {¶1}     John Smith appeals his convictions for trafficking in drugs and argues that

his guilty plea was not made voluntarily because he did not understand the rights he

was waiving. However, the totality of the circumstances show otherwise. The record

reveals that the trial court accepted Smith’s guilty plea after providing him with the

necessary information required by Crim.R. 11(C), and after asking him if he understood.

Smith answered the trial court’s questions appropriately and stated that he understood

his rights and was voluntarily willing to waive these rights to plead guilty. Thus, we

conclude that the record shows that Smith made his plea knowingly, intelligently and

voluntarily.

        {¶2}     He also contends that he was denied the effective assistance counsel

because his trial attorney did not sufficiently explain the proceedings; therefore, his plea
Washington App. No. 12CA11                                                                 2

was not made knowing and intelligently. However, the record shows just the opposite.

In several instances Smith initially indicated that he did not understand the court’s

questions. After consulting with his attorney, Smith was able to proceed and stated that

he understood the court’s statements. Smith’s statements to the court show that

counsel provided him with an adequate explanation of the proceedings and he now

understood the questions. Thus we find no merit to this argument.

       {¶3}   Finally, Smith claims that the trial court erred by sentencing him to

consecutive prison terms for his convictions because it did not make the findings of fact

required by R.C. 2929.14(E)(4). However, in State v. Foster, 109 Ohio St.3d 1, 2006-

Ohio-856, 845 N.E.2d 470, the Supreme Court of Ohio previously found that statute

unconstitutional and determined that trial courts had full discretion to impose

consecutive sentences. Because Foster was still the law at the time of Smith’s

sentencing, the trial court in this case was not required to make any findings before

imposing consecutive sentences.

                                         I. FACTS

       {¶4}   This case originates from an incident in which John Smith sold ecstasy

pills and heroin to a confidential informant. Based on this exchange, Smith was

charged with seven drug-related offenses. After he filed a motion to plead not guilty by

reason of insanity, the trial court ordered an examination to determine, inter alia, his

competency to stand trial. After an examination, a clinical and forensic psychologist

determined that Smith was competent. Following this determination, Smith agreed to

plead guilty to two counts of trafficking in drugs and in exchange the prosecution

dismissed the remaining charges. The trial court sentenced Smith to 12 months
Washington App. No. 12CA11                                                                  3

incarceration on count one and three years incarceration on count two, to be served

consecutively. Smith now appeals his convictions and sentence.

                              II. ASSIGNMENTS OF ERROR

       {¶5}   Smith raises three assignments of error for our review:

       {¶6}   1. “THE TRIAL COURT ERRED IN ACCEPTING THE

DEFENDANT/APPELLANT’S GUILTY PLEA DUE TO THE

DEFENDANT/APPELLANT’S CLEAR INABILITY TO UNDERSTAND THE LEGAL

RIGHTS HE WAS WAIVING WHEN HE PLED GUILTY.”

       {¶7}   2. “THE ASSISTANCE OF DEFENDANT/APPELLANT’S BY[sic] TRIAL

COUNSEL WAS INEFFECTIVE.”

       {¶8}   3. “THE TRIAL COURT ERRED IN SENTENCING THE

DEFENDANT/APPELLANT TO CONSECUTIVE TERMS OF IMPRISONMENT.”

                                      III. GUILTY PLEA

       {¶9}   In his first assignment of error, Smith contends that he did not enter his

guilty plea knowingly, intelligently and voluntarily.

       {¶10} “‘When a defendant enters a plea in a criminal case, the plea must be

made knowingly, intelligently, and voluntarily. Failure on any of those points renders

enforcement of the plea unconstitutional under both the United States Constitution and

the Ohio Constitution.’” State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953

N.E.2d 826, ¶ 9, quoting State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450

(1996). “‘In considering whether a guilty plea was entered knowingly, intelligently and

voluntarily, an appellate court examines the totality of the circumstances through a de

novo review of the record to ensure that the trial court complied with constitutional and
Washington App. No. 12CA11                                                                  4

procedural safeguards.’” State v. Eckler, 4th Dist. No. 09CA878, 2009-Ohio-7064, ¶ 48,

quoting State v. Jodziewicz, 4th Dist. No. 98CA667, 1999 WL 266679 (Apr. 16, 1999).

       {¶11} “Crim.R. 11(C) governs the process that a trial court must use before

accepting a felony plea of guilty or no contest.” State v. Vieney, 120 Ohio St.3d 176,

2008-Ohio-5200, 897 N.E.2d 621, ¶ 8. Before accepting a guilty plea in a felony case, a

trial court must address the defendant personally and determine that “the defendant is

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

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

probation or for the imposition of community control sanctions at the sentencing

hearing.” Crim.R. 11(C)(2)(a).

       {¶12} Furthermore, the court must inform the defendant of both the constitutional

and nonconstitutional rights he is waiving and determine that he “understands the effect

of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may

proceed with judgment and sentence.” Crim.R. 11(C)(2)(b). The court must determine

that the defendant understands he “is waiving the rights to jury trial, to confront

witnesses against him or her, to have compulsory process for obtaining witnesses in the

defendant’s favor, and to require the state to prove the defendant's guilt beyond a

reasonable doubt at a trial at which the defendant cannot be compelled to testify against

himself or herself.” Crim.R. 11(C)(2)(c).

       {¶13} Smith does not contend that the trial court failed to comply with Crim.R.

11(C) or did not inform him of the rights that he was waiving by pleading guilty. Rather,

he claims that he did not understand the consequences of his plea and points to certain

statements, which he made at the hearing, that he claims demonstrate his confusion.
Washington App. No. 12CA11                                                               5

He contends that he was incapable of understanding due to his mental state and

minimal education. However, we find nothing in the record that indicates his plea was

involuntarily.

       {¶14} The record establishes that throughout the change of plea hearing Smith

consulted with his attorney and asked for clarification on certain issues. Contrary to his

claims, this alone does not demonstrate that he did not understand the consequences

of his plea. Rather, it shows that his attorney eliminated any confusion he may have

had by explaining the court’s statements. For example, the record shows the following

exchange between the trial court, Smith and his attorney at the change of plea hearing:

   THE COURT: Under both the federal and state Constitution, you have the
                absolute right to remain silent. You don’t have to say
                anything in this courtroom and you certainly do not have to
                answer any or all of my questions. You also have
                Constitutional privileges against self incrimination. You
                cannot say anything that makes you – you do not have to
                say anything that makes you look guilty. Now do you
                understand what I said?

   SMITH’S ATTORNEY: Do you understand what he said about the Fifth
                         Amendment? You don’t have to incriminate
                         yourself.

   SMITH: What’s that mean?

   SMITH’S ATTORNEY: You don’t have to – you don’t’ have to say anything
                         that would make you look guilty, but obviously, if
                         you’re going to enter a plea of guilty, then you’re
                         admitting Count 1 and Count 2, and the other
                         ones are going to be dismissed.

                                            ***

   (Attorney-client conference.)

                                            ***

   THE COURT: Does he want to proceed?
Washington App. No. 12CA11                                                                       6



   SMITH’S ATTORNEY: He said he did, Judge.

   THE COURT: Okay. Do you want to proceed?

   SMITH: Yes. I just want to get this over with.

       {¶15} Smith points out that during this time the court suggested to his attorney

that “we move this to tomorrow or sometime, give you a chance to go over this with him

in detail,” and stated “I get the sense that this just isn’t the day to do this for him. And I

don’t want to shove anything down his throat.” However, after making this suggestion

Smith consulted with his attorney and then stated that he wanted to proceed with the

hearing. He responded that he understood he had a Constitutional privilege against self

incrimination and that he was willing to give up his Constitutional rights, answer the

court’s questions and tell the truth about his charges. The record shows:

   THE COURT: Okay. Now, Mr. Smith, you don’t have to answer my
                questions. You’ve got a Constitutional right to remain silent.
                Do you understand that?

   SMITH: Yes.

   THE COURT: Do you understand that anything you do say can be used
                against you?

   SMITH: Yes.

   THE COURT: In this case and in other cases?

   SMITH: Yes.

   THE COURT: Okay. You also have a Constitutional privilege against self
                incrimination. You don’t have to say anything that makes
                you look guilty. Do you understand that?

   SMITH: Yes.
Washington App. No. 12CA11                                                               7

   THE COURT: Okay. Are you willing to give up your Constitutional rights,
                answer my questions today, and tell the truth concerning this
                charge?

   SMITH: Yes.

       {¶16} Accordingly, Smith appropriately answered the court’s questions and

indicated he wanted to proceed with the hearing and plead guilty. He also indicated he

was willing to waive his Constitutional rights. Thus, it appears that after consulting

counsel he was able to proceed with an understanding of the law and its consequences.

       {¶17} Smith also points to the following exchange to support his claim that he

did not understand the consequences of his plea:

   THE COURT: Did you hear the questions I asked Attorney Brum a moment
                ago?

   SMITH: Yes, but I don’t remember.

   THE COURT: Okay, I asked her, have you fully investigated the facts and the
                law? Have you determined whether there exists any
                question? Attorney Brum, have you determined whether
                there exists any question as to the admissibility of any
                claimed admissions, confessions, or other evidence under
                federal or state law and advised Mr. Smith regarding that?
                Has she done that?

   SMITH: Yes.

   THE COURT: Then I asked her, has she informed you of the elements of the
                offenses with which you’re charged, of all defenses that may
                be available to you and of all your Constitutional rights, state
                and federal. Has she done that?

   SMITH: Yes. What that means, just it’s a federal case?

   THE COURT: No.

   SMITH’S ATTORNEY: No. Remember when we went over these rights, that
                        if you plead guilty, you give up these rights? I
                        talked to you about the Constitution.
Washington App. No. 12CA11                                                                  8

   SMITH: Yeah.

   SMITH’S ATTORNEY: Because we’re not going to ever have a jury trial.
                        We’re not going to confront the witnesses. That’s
                        what he is talking about.

   SMITH: Yes.

   SMITH’S ATTORNEY: Yes.

   THE COURT: Okay. Now, Mr. Smith, are you willing to give up your
                Constitutional rights and answer my questions - - I’m going
                to ask you again - -and tell the truth concerning these two
                charges in court today?

   SMITH: Yes.

      {¶18} Therefore despite Smith’s claims, the record reveals that although he may

not have initially understood the court’s statement concerning his federal Constitutional

rights, after an explanation from his attorney, he confirmed that he was willing to waive

his Constitutional rights and answer the court’s questions. Nothing in the record shows

that his waiver was not made knowingly and intelligently.

      {¶19} The court also asked Smith if he now has or if he ever had “any mental

illness, mental condition, or any mental problems?” Smith responded affirmatively.

When asked if this would prevent him “from fully understanding what is happening here

in this courtroom today,” he responded “I don’t know.” His attorney then explained that

he was previously diagnosed as bipolar and there was a competency and sanity

evaluation performed. The court confirmed that he was found to be competent and then

asked the following questions:

   THE COURT: So, are you able to understand what’s happening here today?

   SMITH: Yes.

   THE COURT: Okay. Do you have any physical health problems today?
Washington App. No. 12CA11                                                             9



   SMITH: What does physical mean?

   THE COURT: Heart condition, broken finger, flu, another other than mental.
                Sore toe.

   SMITH: Yes, like I be having pains in my heart and like at the bottom right
           here –

   THE COURT: Okay.

   SMITH: -- inside of my – like in my ankle.

   THE COURT: Okay. Is there anything in that, that’s keeping you from fully
                understanding what’s happening, because of your physical
                health?

   SMITH: No.

      {¶20} Following this exchange, the court proceeded with the required

questioning contained in Crim.R. 11(C)(2). To each question, Smith answered

appropriately and indicated he understood the court’s statements, including that his

guilty plea was a voluntary and freely made decision. However, after making these

statements the court asked:

   THE COURT: No – one did anyone force you or threaten you to get you to
                plead guilty?

   SMITH: Well, when I first brought this case, the police officer told me I – if I
          was to take it to trial, that he threatened me, saying that I – that I
          know who which people was going to be on the jury or something. I
          didn’t know what he was talking about.

   THE COURT: Well that, wouldn’t happen in this courtroom. If you want a jury
               trial, I’ll give you a jury trial, and I’ll guarantee none of them
               will know the policeman.

   SMITH’S ATTORNEY: John, that – that has nothing to do with – did you – did
                        you hear what Judge said? We -- we talk to the
                        jurors and – and screen them, if they have any
                        interest or bias or if they know the witnesses, so
                        that doesn’t happen in a jury trial. Okay? It’s voir
Washington App. No. 12CA11                                                                  10

                                dire, where they select the jury. What he’s saying
                                is, did anybody for you – Mr. Schneider, myself,
                                Miss German, the CI, nobody has forced you to
                                take this deal, correct?

   SMITH: Yes.

   SMITH’S ATTORNEY: That’s right.

   THE COURT: So did anybody force you to plead guilty or threaten you?

   SMITH: No.

   THE COURT: Is it a voluntary decision on your behalf, is it something that you
                 want to do?

   SMITH: Yes.

       {¶21} Thus, again the record shows that although Smith initially may not have

understood the court’s questions, after an explanation from his attorney, he was able to

answer appropriately and confirm that his plea was voluntary.

       {¶22} In conclusion, considering the court’s compliance with Crim.R. 11(C)(2)

along with Smith’s responses that he understood the court’s statements concerning his

rights, the totality of the circumstances show that he made his plea knowingly,

intelligently and voluntarily. Accordingly, the court did not err by accepting Smith’s guilty

plea and we overrule his first assignment of error.

                     IV. INEFFECTIVE ASSISTANCE OF COUNSEL

       {¶23} Smith also argues that he was denied the effective assistance of counsel

because his attorney “did an insufficient job of informing [him] of his rights and of the

details concerning the hearing(s) in the case below.”

       {¶24} To establish ineffective assistance of counsel, a defendant must show (1)

deficient performance by counsel, that is, performance falling below an objective
Washington App. No. 12CA11                                                                11

standard of reasonable representation; and (2) prejudice, meaning that there is a

reasonable probability that but for counsel's errors, the proceeding’s result would have

been different. Strickland v. Washington, 466 U.S. 668, 687–688, 694, 104 Ohio S.Ct.

2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 141-142, 538 N.E.2d

373 (1989), paragraphs two and three of the syllabus. “The benchmark for judging any

claim of ineffectiveness must be whether counsel’s conduct so undermined the proper

functioning of the adversarial process that the trial cannot be relied on as having

produced a just result.” Strickland at 686.

       {¶25} Although Smith claims his trial counsel did not effectively assist him at the

change of plea hearing, the record reveals just the opposite. As we noted above, in

several instances Smith initially indicated to the court that he did not understand its

questions or gave inappropriate responses. However, after an explanation from his

attorney he indicated he understood the court’s questions and answered appropriately.

This indicates that counsel did just what she was required to do. She sufficiently

explained the court proceedings to Smith along with his rights. Smith’s changed

responses to the court demonstrate this. Accordingly, we find that counsel’s

performance was not deficient.

       {¶26} Smith also summarily contends that his counsel was ineffective for not

requesting a second competency evaluation and that a second evaluation may have

found him incompetent. To support this speculation he cites State v. Hall, 6th Dist. No.

WD-09-067, 2010-Ohio-4056. In that case the first evaluation found the defendant

incompetent. The state asked for a second evaluation with a specific psychologist

because his opinion was “much more relevant and credible to [the defendant's] current
Washington App. No. 12CA11                                                                12

condition,” and because this psychologist “had longer and closer contact with

[defendant] during treatment, and her evaluation did not rely on old, unrelated

evaluations.” Id. at ¶ 5. Nothing in our record indicates that the psychologist’s report in

this case was unreliable or that Smith would have been better served by an evaluation

from a different professional. Mere speculation will not support a claim of ineffective

assistance of counsel in a direct appeal in the absence of some evidence of prejudice.

Therefore, he was not prejudiced by counsel’s failure to request a second evaluation

and we find his argument to be meritless. For these reasons we conclude that Smith

was not denied the effective assistance of counsel and overrule his second assignment

of error.

                        V. SMITH’S CONSECUTIVE SENTENCE

       {¶27} Finally, in his third assignment of error Smith claims the trial court erred by

sentencing him to consecutive terms of imprisonment for his convictions without making

the findings required by R.C. 2929.14(E)(4).

       {¶28} R.C. 2929.41(A), the law regarding consecutive sentencing, previously

stated: “Except as provided in division (B) of this section, division (E) of section

2929.14, or division (D) or (E) of section 2971.03 of the Revised Code, a prison term,

jail term, or sentence of imprisonment shall be served concurrently with any other prison

term.” R.C. 2929.14(E)(4) then previously allowed a court to impose consecutive

sentences when it made the necessary findings. However, in Foster, the Supreme

Court of Ohio declared R.C. 2929.41(A) and R.C. 2929.14(E)(4) unconstitutional and

severed them from the statutes. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d

470, at paragraphs three and four of the syllabus. The Court held that because no
Washington App. No. 12CA11                                                               13

statute remained the “common-law presumptions [were] reinstated.” State v. Bates, 118

Ohio St.3d 174, 2008-Ohio-1983, 887 N.E.2d 328, ¶ 18. Thus, trial courts were left with

full discretion to determine whether a prison sentence would run consecutively to any

other term of imprisonment. Id. at paragraph seven of the syllabus.

       {¶29} However, the General Assembly recently enacted Am.Sub.H.B. 86 and

revived the judicial fact finding found unconstitutional in Foster. Nevertheless, H.B. 86

did not take effect until September 30, 2011, and therefore did not apply to Smith who

was sentenced on August 2, 2011. Thus, at the time of Smith’s sentencing the law as

announced in Foster was controlling, and the trial court had “full discretion to impose a

prison sentence within the statutory range and [was] no longer required to make

findings or give [its] reasons for imposing maximum, consecutive, or more than

minimum sentences.” Foster at paragraph seven of the syllabus. Therefore, the trial

court was not required to make any findings before sentencing Smith to a consecutive

sentence. Accordingly we overrule his third assignment of error.

                                                                JUDGMENT AFFIRMED.
Washington App. No. 12CA11                                                                  14

                                    JUDGMENT ENTRY

         It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the
costs.

         The Court finds there were reasonable grounds for this appeal.

     It is ordered that a special mandate issue out of this Court directing the
Washington County Court of Common Pleas to carry this judgment into execution.

        IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS
BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is
temporarily continued for a period not to exceed sixty days upon the bail previously
posted. The purpose of a continued stay is to allow Appellant to file with the Supreme
Court of Ohio an application for a stay during the pendency of proceedings in that court.
If a stay is continued by this entry, it will terminate at the earlier of the expiration of the
sixty day period, or the failure of the Appellant to file a notice of appeal with the
Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of
the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court
of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as
of the date of such dismissal.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure. Exceptions.

McFarland, P.J. & Abele, J.: Concur in Judgment and Opinion.


                                            For the Court


                                            BY: ________________________
                                                William H. Harsha, Judge




                                  NOTICE TO COUNSEL

       Pursuant to Local Rule No. 14, this document constitutes a final judgment
entry and the time period for further appeal commences from the date of filing
with the clerk.
