[Cite as State v. Brewton, 2020-Ohio-1234.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                     LUCAS COUNTY


State of Ohio                                     Court of Appeals No. L-19-1034

        Appellee                                  Trial Court No. CR0201703044

v.

Ben Brewton                                       DECISION AND JUDGMENT

        Appellant                                 Decided: March 31, 2020

                                              *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Lauren Carpenter, for appellee.

        Lawrence A. Gold, for appellant.

                                              *****
        ZMUDA, P.J.

        {¶ 1} This matter is before the court on appeal from the judgment of the Lucas

County Court of Common Pleas, general division, sentencing appellant after an Alford

plea to a term of life with parole eligibility after 20 years of imprisonment. Finding no

error, we affirm.
                         I. Facts and Procedural Background

       {¶ 2} The events leading to this case occurred in July 2015, at a home on Gordon

Street in Toledo, Ohio. At that time, Brewton had moved in with his girlfriend, Vicky,

who was herself staying with 61-year old Susan Furr, a co-worker and friend of Vicky.

When Brewton needed a place to stay while on electronic monitoring in an unrelated

case, Furr agreed to let Brewton move in. Brewton continued to live with Furr, even after

Vicky moved out.

       {¶ 3} The morning of July 23, 2015, Furr left work, arriving home around 10:00

a.m. Friends and co-workers had no more contact with her after she left work, which was

unusual and caused concern. On this date, between 3:00 and 4:00 p.m., three ATM

withdrawals were made from Furr’s account, using her debit card. Around 8:00 p.m.,

officers conducted a traffic stop of Furr’s vehicle for a license plate violation. Brewton

was driving the vehicle, and police issued him a ticket, noting a large sum of cash on his

lap, appearing to be around a thousand dollars.

       {¶ 4} Furr did not report for her work shift the night of July 23, 2015. In the

evening of July 24, officers conducted a welfare check at Furr’s residence, with authority

to enter the home. They found a dog closed in a bathroom, and at the bottom of the

basement steps, they discovered Furr, deceased. Furr’s wrists and ankles were bound,

and her body was covered in bedding. The coroner later determined the cause of death as

multiple blunt force trauma and strangulation, and ruled the death a homicide.




2.
       {¶ 5} The investigation of this offense continued. In the meantime, Brewton was

sentenced to prison on unrelated charges. This case went dormant, but eventually, the

cold case unit took the case, and investigators interviewed Brewton at prison in

September 2017. Brewton initially denied any involvement, but eventually claimed he

witnessed Furr’s death. After police confronted Brewton with physical evidence, he

admitted to striking Furr in the head with a hammer because she had seen his face.

Brewton then admitted to taking Furr’s ATM card, forcing Furr to give him the PIN

while beating her with the hammer. He admitted to using the card and PIN to withdraw

funds from Furr’s account. Police recovered Brewton’s DNA from the hammer, retrieved

from Furr’s bedroom of the house.

       {¶ 6} On November 27, 2017, Brewton was indicted on three counts: Count 1,

aggravated murder in violation of R.C. 2903.02(B) and (F), an unclassified felony;

Count 2, murder in violation of R.C. 2903.02(B) and 2929.02, an unclassified felony; and

Count 3, aggravated robbery in violation of R.C. 2911.01(A)(3) and (C), a felony of the

first degree.

       {¶ 7} Brewton was conveyed from prison, and arraigned on January 23, 2018.

The trial court appointed counsel, and Brewton entered not guilty pleas as to all counts.

Prior to entering his plea, Brewton filed a motion for funds to retain an investigator,

which was granted, and a motion to suppress. Following the state’s response to his

motion to suppress, the trial court granted Brewton’s trial counsel leave to file a

supplemental motion, providing more specificity regarding the suppression issues.




3.
       {¶ 8} In his supplemental memorandum, Brewton raised issues regarding his

competency to consent to interrogation, citing his tenth grade education and limited

reading skills. He also argued that, at the time of the September 18, 2017 interview, he

had begun serving a 24-month prison sentence in unrelated cases, and was not receiving

proper medical or mental health care.1

       {¶ 9} After several continuances of the suppression hearing, the trial court

appointed new counsel for Brewton. At the scheduled suppression hearing, trial counsel

withdrew the motion, and a trial date was set.

       {¶ 10} On January 11, 2019, Brewton entered a plea of guilty pursuant to North

Carolina v. Alford to Count 1, aggravated murder, with the state recommending a

sentence of life with parole eligibility after 20 years and dismissal of the remaining

charges. The trial court engaged in a Crim.R. 11 colloquy with Brewton. The trial court

determined that Brewton was satisfied with his counsel’s assistance and understood the

potential sentence versus the sentence recommended by the state but not binding on the

court. The trial court advised Brewton of his constitutional rights, and explained the

effect of his plea. Brewton articulated his understanding of these rights and his

understanding of the plea. The trial court accepted the plea, entered a finding of guilt as

to Count 1, and continued the matter for sentencing.




1
  At the time of that interview, Brewton was recovering in prison from a gunshot wound
to his chest, with the injury sustained prior to his incarceration.



4.
       {¶ 11} On January 17, 2019, the trial court sentenced Brewton to a term of life

imprisonment with parole eligibility after 20 years, and after making the required

statutory findings, ordered the sentence to be served consecutively to the sentence

Brewton was serving in a prior case. The trial court entered a nolle prosequi as to

Counts 2 and 3, and waived all costs.

                                II. Assignment of Error

       {¶ 12} Brewton now appeals the trial court’s judgment, asserting the following

assignments of error.

              1. Appellant received ineffective assistance of counsel in violation

       of his rights under the Sixth and Fourteenth Amendments to the United

       States Constitution and Article I, § 10 of the Ohio Constitution

              2. The trial court erred to the prejudice of appellant in accepting a

       guilty plea, pursuant to North Carolina v. Alford which was not made

       knowingly, intelligently and voluntarily, in violation of appellant’s Due

       Process rights under the Fifth and Fourteenth Amendments of the United

       States Constitution and Article I, Section 16 of the Ohio Constitution.

                                        III. Analysis

       {¶ 13} In his first assignment of error, Brewton argues his trial counsel was

ineffective in failing to seek a competency evaluation, based on his own assertions during

the proceedings that he “needed help” and had a “messed up mindset.”




5.
       {¶ 14} We review claims of ineffective assistance of counsel using a two-part

analysis. First, we consider whether trial counsel’s performance “fell below an objective

standard of reasonableness.” State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373

(1989), quoting Strickland v. Washington, 466 U.S. 668, 687-689, 104 S.Ct. 2052, 80

L.Ed.2d 675 (1984). Second, if we find deficient performance, we must then consider

whether prejudice occurred as a consequence. Bradley at 142, citing Strickland at 691.

       {¶ 15} In reviewing counsel’s performance, our scrutiny “must be highly

deferential[.]” Bradley at 142, quoting Strickland at 689. We presume a properly

licensed attorney is competent. (Citation omitted.) State v. Shaw, 6th Dist. Lucas No.

L-15-1165, 2016-Ohio-7699, ¶ 17. Furthermore, we “indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance[.]”

Bradley at 142, quoting Strickland at 689.

       {¶ 16} Even if we find counsel’s performance fell below the standard of

reasonableness, we will not reverse unless we also find that this performance resulted in

prejudice. Bradley at 142. “An error by counsel, even if professionally unreasonable,

does not warrant setting aside the judgment of a criminal proceeding if the error had no

effect on the judgment.” Bradley at 142, quoting Strickland at 691. Therefore, to

warrant reversal, Brewton must demonstrate that, but for his trial counsel’s error, he

would have realized a different result in the proceeding. Bradley at 142, citing Strickland

at 691. “A reasonable probability is a probability sufficient to undermine confidence in

the outcome.” Strickland at 694.




6.
       {¶ 17} In arguing his trial counsel was ineffective, Brewton suggests that the

record demonstrated a competency issue. In support, Brewton relies on the reference to

his mental state in seeking to suppress his statement, as well as the “horrific, brutal nature

of the offense.” Based on these circumstances, Brewton argues his counsel should have

entered a plea of not guilty by reason of insanity (NGRI) on his behalf, and requested a

mental health evaluation. The record, however, is devoid of any evidence warranting

such action.

       {¶ 18} “A person is ‘not guilty by reason of insanity’ relative to a charge of an

offense only if the person proves [by a preponderance of the evidence] that at the time of

the commission of the offense, the person did not know, as a result of a severe mental

disease or defect, the wrongfulness of the person's acts.” R.C. 2901.01(A)(14). In

contrast, the standard for competency requires inquiry into a defendant’s present mental

condition to determine whether the defendant understands the nature of the proceedings

and has the ability to assist trial counsel with the defense. State v. Monford, 190 Ohio

App.3d 35, 2010-Ohio-4732, 940 N.E.2d 634, ¶ 69-70 (10th Dist.), citing R.C. 2945.37.

       {¶ 19} Here, Brewton identifies no portion of the record that indicates he suffered

from any type of mental illness at the time of the offense, or at any time in his life, as

providing a basis for an insanity defense. In order to find trial counsel’s performance

deficient, there must be some indication that an NGRI plea would have “a reasonable

probability of success” based on the facts and circumstances in the case. State v. Anaya,




7.
6th Dist. Lucas No. L-06-1375, 2008-Ohio-1853, ¶ 29, citing State v. Brown, 84 Ohio

App.3d 414, 421, 616 N.E.2d 1179 (8th Dist.1992).

       {¶ 20} With nothing in the record to indicate mental illness, Brewton’s trial

counsel was not deficient in failing to assert the defense of NGRI. Anaya at ¶ 29, citing

State v. Twyman, 2d Dist. Montgomery No. 19086, 2002-Ohio-3558, ¶ 73. Trial counsel

may not be deemed ineffective for failing to attempt a “futile act.” State v. Leu, 6th Dist.

Lucas No. L-17-1265, 2019-Ohio-3404, ¶ 47, citing State v. Conkright, 6th Dist. Lucas

No. L-06-1107, 2007-Ohio-5315, ¶ 50 (no ineffective assistance because failing to file a

meritless motion would be a “futile act”). Accordingly, we find Brewton’s first

assignment of error not well-taken.

       {¶ 21} In his second assignment of error, Brewton argues his plea was not

knowing, intelligent, and voluntary. Brewton acknowledges the governing rule, Crim.R.

11(C), and concedes that the trial court properly followed the rule in fully explaining the

charges and penalties, conveyed all pertinent information, and inquired regarding

Brewton’s understanding. During a plea hearing, a trial court may not accept a guilty

plea “without first addressing the defendant personally and doing all of the following” as

provided by Crim.R. 11(C)(2):

              (a) Determining 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




8.
       probation or for the imposition of community control sanctions at the

       sentencing hearing.

              (b) Informing the defendant of and determining that the defendant

       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.

              (c) Informing the defendant and determining that the defendant

       understands that by the plea the defendant 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.

       {¶ 22} Ordinarily, we review a challenge regarding the voluntariness of a plea for

strict compliance with Crim.R. 11(C)(2). See, e.g., State v. Hayward, 6th Dist. Wood No.

WD-17-010, 2017-Ohio-8611, ¶ 6 (strict compliance with Crim.R. 11(C)(2) is required).

Here, Brewton acknowledges the trial court complied with Crim.R. 11(C)(2). He also

concedes his own failure to seek to withdraw his plea. Even so, Brewton contends his

plea was not voluntary because he indicated a wish for trial, expressed a sense of

hopelessness in the face of a lengthy prison term, and felt compelled to enter his plea as a

result of this hopelessness rather than any outside influence or coercive force.

       {¶ 23} To be clear, Brewton does not proclaim his innocence, or dispute any of the

evidence the state was prepared to introduce against him in a trial. The lengthy prison




9.
sentence, moreover, was the shortest possible sentence for the offense for which he

entered a plea. Brewton presents no legal authority to support his argument that hopeless

feelings regarding a lengthy prison term will render a plea involuntary.

       {¶ 24} Additionally, Brewton does not argue the trial court failed to explain any of

his constitutional rights. Pursuant to Crim.R. 11(C)(2), a trial court need only ensure a

defendant “subjectively understands the implications of his plea and the rights he is

waiving.” State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 31,

citing State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). The fact that

Brewton experienced feelings of hopelessness may be viewed as an indication that the

trial court effectively conveyed complete information to Brewton.

       {¶ 25} We find no provision, within Crim.R. 11(C)(2) or elsewhere in the law,

requiring a defendant to enter into a plea free of hopeless feelings in order for that plea to

be considered knowing, intelligent, and voluntary. Because there is no challenge to the

trial court’s compliance with Crim.R. 11(C)(2), and Brewton identifies no authority to

support his theory of involuntariness due to hopelessness, we find no error regarding his

plea. Brewton’s second assignment of error, therefore, is not well-taken.

                                      IV. Conclusion.

       {¶ 26} Finding substantial justice has been done, we hereby affirm the judgment

of the Lucas County Common Pleas Court, general division. Appellant is assessed the

costs of this appeal pursuant to App.R. 24.

                                                                          Judgment affirmed.




10.
                                                                      State v. Brewton
                                                                      C.A. No. L-19-1034




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                              _______________________________
                                                           JUDGE
Christine E. Mayle, J.
                                               _______________________________
Gene A. Zmuda, P.J.                                        JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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