[Cite as State v. Olds, 2020-Ohio-1528.]




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

                                                 :
 STATE OF OHIO                                   :
                                                 :    Appellate Case No. 2019-CA-9
          Plaintiff-Appellee                     :
                                                 :    Trial Court Case No. 2019-CR-230
 v.                                              :
                                                 :    (Criminal Appeal from
 MELISSA L. OLDS                                 :    Common Pleas Court)
                                                 :
          Defendant-Appellant                    :


                                            ...........

                                           OPINION

                              Rendered on the 17th day of April, 2020.

                                            ...........

JANNA L. PARKER, Atty. Reg. No. 0075261, Assistant Prosecuting Attorney, Miami
County Prosecutor’s Office, Safety Building, 201 West Main Street, Troy, Ohio 45373
      Attorney for Plaintiff-Appellee

MARK J. BAMBERGER, P.O. Box 189, Spring Valley, Ohio 45370
    Attorney for Defendant-Appellant

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




HALL, J.
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       {¶ 1} Melissa L. Olds appeals from her conviction for drug-related offenses. We

find no error, so we affirm.

                      I. FACTUAL AND PROCEDURAL HISTORY

       {¶ 2} In May 2019, Olds was indicted on one count of aggravated trafficking in

drugs, in violation of R.C. 2925.03(A)(2)/(C)(1)(d), a first-degree felony; one count of

trafficking in heroin, in violation of R.C. 2925.03(A)(2)/(C)(6)(b), a fourth-degree felony;

one count of possession of L.S.D., in violation of R.C. 2925.11(A)/(C)(5)(a), a fifth-degree

felony; one count of possession of cocaine, in violation of R.C. 2925.11(A)/(C)(4)(a), a

fifth-degree felony; and a forfeiture specification for money found in her possession. Olds

was represented by a public defender for purposes of her arraignment only. She told the

public defender, who told the trial court, that she had retained private counsel. Olds

pleaded not guilty to the charges, and the court scheduled a pretrial conference.

       {¶ 3} At the pretrial, Olds appeared without counsel. She told the court that she

had hired an attorney and that she did not know why he was not there. When the court

asked if Olds had given him the pretrial date, Olds said that she had not been able to

contact him. The court noted that counsel had not filed a notice of appearance in the case.

The court continued the pretrial so that Olds could talk to counsel. Olds then told the court

that she wanted “to get this over with today” and asked if she could represent herself.

(Pretrial Tr. 3). The court advised against it, noting that she was facing four charges,

including a first-degree felony that carried mandatory prison time. The state indicated that

it would talk to her attorney and try to work out a plea agreement.

       {¶ 4} Instead of the rescheduled pretrial hearing, a change-of-plea hearing was

held at which Olds appeared with both the public defender and her private counsel. Under
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a plea agreement, Olds pleaded guilty to the charges of aggravated trafficking in drugs,

trafficking in heroin, and the forfeiture specification. In exchange, the state dismissed the

other two charges in this case and, in other cases, either dismissed the pending charges

or agreed not to file charges. The trial court accepted the plea and immediately proceeded

to sentencing. Olds waived a presentence investigation. The state recounted for the trial

court some of Olds’s criminal history, which included four prior prison terms, most of which

were for felony drug offenses. The court sentenced Olds to a mandatory eight-year prison

term for aggravated trafficking and a 12-month concurrent term for trafficking in heroin,

plus the forfeiture of $388 in currency.

       {¶ 5} Olds appeals.

                                       II. ANALYSIS

       {¶ 6} Olds presents three assignments of error for our review.

                    A. Claims of ineffective assistance of counsel

       {¶ 7} The first assignment of error alleges:

       THE    TRIAL     COURT      DEFENSE       WAS     INEFFECTIVE       IN   NOT

       VIGOROUSLY        REPRESENTING          THE    DEFENDANT-APPELLANT’S

       BEST INTERESTS IN VIOLATION OF THE SIXTH AND FOURTEENTH

       AMENDMENTS.

Olds asserts a claim of ineffective assistance of counsel based on her trial counsel’s

failure to communicate with her and failure to attend hearings.

       {¶ 8} To prevail on a claim of ineffective assistance of counsel, a criminal

defendant must show that counsel’s performance was deficient and that this resulted in

prejudice. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674
                                                                                           -4-


(1984), paragraph two of the syllabus; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d

373 (1989), paragraph two of the syllabus. “A guilty plea waives the right to allege

ineffective assistance of counsel, except to the extent that the errors caused the plea to

be less than knowing and voluntary.” State v. Hurtado, 2d Dist. Montgomery No. 26892,

2017-Ohio-1465, ¶ 11, citing State v. Spates, 64 Ohio St.3d 269, 595 N.E.2d 351 (1992).

       {¶ 9} Here, Olds claims that there was significant lack of communication from

counsel and that he failed to attend hearings on her behalf, but she does not claim that

his conduct rendered her guilty plea not knowing and voluntary. Indeed, during the plea

colloquy, Olds told the court that she had had enough time to review the plea form with

her attorney and to speak to him about entering the plea. Furthermore, Olds said that

counsel was able to answer all of her questions and that she was satisfied “very much”

with his advice. (Change of Plea Tr. 7).

       {¶ 10} In addition, it does not appear that counsel’s conduct was deficient. Based

on the record, the only hearings her private counsel did not attend were the arraignment

and the pretrial conference. But from what Olds told the trial court at the pretrial, it seems

that she had never actually told that counsel about the arraignment or the pretrial. At any

rate, as we said, the absence of counsel did not affect her decision to plead guilty.

       {¶ 11} Second, as to Olds’s claim that counsel failed to communicate, we have

said that “a claim of lack of communication between a defendant and his trial counsel is

not one that can be borne out by the record. It relies upon information necessarily outside

the record, and is therefore not an issue we can review on direct appeal.” State v. Watters,

2016-Ohio-8083, 76 N.E.3d 723, ¶ 27 (2d Dist.).

       {¶ 12} The first assignment of error is overruled.
                                                                                            -5-


                                         B. Recusal

       {¶ 13} The second assignment of error alleges:

       THE TRIAL COURT FAILED TO OFFER RECUSAL FOR A CLEAR

       CONFLICT OF INTEREST.

Olds argues in this assignment of error that the trial judge should have offered to recuse

herself from the case because of the appearance of bias or prejudice. Olds says that the

trial judge admitted that she was the prosecutor in several of Olds’s previous criminal

cases, giving the judge intimate prior knowledge of Olds’s history. Olds seems to suggest

that the eight-year prison sentence imposed by the judge, when the minimum of three

years was discussed, showed actual bias.

       {¶ 14} First, we note that Olds never asked the judge to recuse herself or ever

even suggested the possibility. Nor did Olds file an affidavit of disqualification with the

Ohio Supreme Court. See R.C. 2701.03(A). Moreover, we do not have authority to pass

upon the disqualification of a judge of the Court of Common Pleas because that power is

vested solely in the Chief Justice of the Ohio Supreme Court under Section 5(C) of Article

IV of the Ohio Constitution and by R.C. 2701.03. Beer v. Griffith, 54 Ohio St.2d 440, 441-

442, 377 N.E.2d 775, 776 (1978).

       {¶ 15} Second, the record does not establish that the trial judge was the prosecutor

in several of Olds’s prior criminal cases. In fact, we see little indication in the record that

the judge knew Olds. One of the first things that the trial court noted after proceeding to

sentencing was that it did not have the benefit of a presentence investigation (because

Olds had waived it). This comment suggested that the judge did not know Olds’s history.

Later, the judge said, “the court knows some of your background, and you’ve given some
                                                                                           -6-


of it, a lot of it, actually, at our arraignment.” (Sentencing Tr. 15). It is unclear how the

court knew Olds’s background, but this statement suggested that the knowledge came

from what Olds had told the court at the various proceedings in this case. Later, the state

orally recounted Olds’s criminal history for the court. Before imposing sentence, the trial

court explained the reason for the long prison term and began by saying, “How do we

make sure that you’re not going to do it again with the history we just heard[?]” (Id. at 18).

This suggested that the court’s sentencing decision was based on Olds’s history as

recounted by the state, not her history, if any, already known by the judge.

       {¶ 16} Finally, there is no evidence in the record that so much as hints that the trial

judge may have had a bias or prejudice against Olds.

       {¶ 17} The second assignment of error is overruled.

                                    C. Manifest weight

       {¶ 18} The third assignment of error alleges:

       THE TRIAL COURT FAILED TO CONSIDER THE MANIFEST EVIDENCE

       OF AN INEFFECTIVE COUNSEL OR CONFLICT OF INTEREST.

       {¶ 19} It is unclear how the trial court could have improperly failed to consider the

evidence on these two matters when Olds did not raise either matter with the court. Suffice

it to say that considering what little evidence there was to support Olds’s positions on

these matters would be a fruitless exercise.

       {¶ 20} The third assignment of error is overruled.

                                     III. CONCLUSION

       {¶ 21} We have overruled each of the assignments of error presented. The trial

court’s judgment is affirmed.
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                               .............



DONOVAN, J. and FROELICH, J., concur.


Copies sent to:

Janna L. Parker
Mark J. Bamberger
Hon. Stacy M. Wall
