[Cite as State v. Dooley, 2010-Ohio-6260.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                               CASE NO. 1-10-41

        v.

JOSHUA D. DOOLEY,                                         OPINION

        DEFENDANT-APPELLANT.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR2009 0270

                                      Judgment Affirmed

                          Date of Decision: December 20, 2010




APPEARANCES:

        F. Stephen Chamberlain for Appellant

        Jana E. Emerick for Appellee
Case No. 1-10-41


PRESTON, J.

       {¶1} Defendant-appellant, Joshua D. Dooley (hereinafter “Dooley”),

appeals the Allen County Court of Common Pleas’ judgment of conviction and

sentence. For the reasons that follow, we affirm.

       {¶2} On September 17, 2009, the Allen County Grand Jury indicted

Dooley on count one of rape in violation of R.C. 2907.02(A)(1)(b), a first degree

felony, and count two of rape in violation of R.C. 2907.02(A)(1)(b), a first degree

felony. (Doc. No. 3). Both counts contained a specification that the victim was

less than ten years of age. (Id.).

       {¶3} Arraignment was scheduled for September 28, 2009, at which time

Dooley filed a written plea of not guilty by reason of insanity. (Doc. Nos. 6, 8).

       {¶4} On October 2, 2009, Dooley filed a motion for a competency

evaluation and hearing, which the trial court granted on October 7, 2009. (Doc.

Nos. 14-15).

       {¶5} On October 8, 2009, Dooley filed a motion to suppress his

statements to law enforcement and evidence seized as a result of his allegedly

unlawful arrest. (Doc. No. 17).

       {¶6} A pretrial hearing on the issue of competency was scheduled for

December 21, 2009. (Doc. Nos. 23-24). Dooley made an oral motion at this




                                        -2-
Case No. 1-10-41


hearing for an additional mental status examination, which the trial court granted

on December 31, 2009. (Doc. No. 30).

      {¶7} On February 22, 2010, the trial court held a competency hearing.

(Doc. No. 34). The State and the defense stipulated to the admission of the

evaluation reports of Dr. Scott Kidd and Thomas L. Hustak, Ph.D., and no other

evidence was presented at the hearing. (Id.); (Feb. 22, 2010 Tr. at 2-3). After

reviewing the evidence, the trial court found that Dooley was competent to stand

trial pursuant to R.C. 2945.37, 2945.371, and 2945.38. (Feb. 22, 2010 JE, Doc.

No. 34).

      {¶8} On March 12, 2010, the trial court held a hearing on Dooley’s

motion to suppress, and thereafter, overruled the motion. (Mar. 15, 2010 JE, Doc.

No. 41).

      {¶9} On March 22, 2010, Dooley appeared before the trial court,

withdrew his previously tendered pleas of not guilty by reason of insanity, and

entered pleas of guilty to both counts in the indictment pursuant to plea

negotiations. (Mar. 22, 2010 Tr. at 2-3, 15-17). In exchange for Dooley’s guilty

pleas in this case, the State agreed to dismiss its second case (CR 2009 0351)

against Dooley stemming from the same incident. (Plea Agreement, Doc. No. 45);

(Mar. 22, 2010 Tr. at 17). After accepting Dooley’s guilty pleas, the trial court

entered convictions, ordered a pre-sentence investigation (PSI) report, and set the



                                       -3-
Case No. 1-10-41


matter for sentencing. (Mar. 22, 2010 Tr. at 17). On March 23, 2010, the trial

court filed its judgment entry of conviction. (Doc. No. 46).

       {¶10} On May 6, 2010, the trial court sentenced Dooley to twenty-five (25)

years to life on count one and twenty-five (25) years to life on count two. (May 6,

2010 JE, Doc. No. 51). The trial court further ordered that the term imposed in

count two be served consecutive to the term imposed in count one for an aggregate

sentence of fifty (50) years to life imprisonment. (Id.).

       {¶11} On May 24, 2010, Dooley filed a notice of appeal. (Doc. No. 59).

Dooley now appeals raising two assignments of error for our review.

                        ASSIGNMENT OF ERROR NO. I

       THE DEFENDANT DID NOT RECEIVE EFFECTIVE
       ASSISTANCE OF TRIAL COUNSEL DUE TO ERRORS AND
       OMISSIONS AND COUNSEL PERFORMANCE DUE TO
       INDIVIDUAL AND CUMULATIVE ERRORS RESULTED IN
       PREJUDICE TO THE DEFENDANT.

       {¶12} In his first assignment of error, Dooley argues that he was denied

effective assistance of trial counsel because trial counsel failed to hire an expert to

examine the digital pictures and computer data in the case, especially in light of

evidence that the camera was not working properly. Dooley further asserts that

trial counsel was ineffective for failing to locate “Christina Hill,” the person who

initially contacted the police and started the investigation against him. Dooley

further argues that trial counsel was ineffective for failing to argue that he



                                         -4-
Case No. 1-10-41


unintelligently and unknowingly waived his Miranda rights since he has a low IQ

level.

         {¶13} A defendant asserting a claim of ineffective assistance of counsel

must establish: (1) the counsel’s performance was deficient or unreasonable under

the circumstances; and (2) the deficient performance prejudiced the defendant.

State v. Kole (2001), 92 Ohio St.3d 303, 306, 750 N.E.2d 148, citing Strickland v.

Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674.

         {¶14} In order to show counsel’s conduct was deficient or unreasonable,

the defendant must overcome the presumption that counsel provided competent

representation and must show that counsel’s actions were not trial strategies

prompted by reasonable professional judgment.       Strickland, 466 U.S. at 687.

Counsel is entitled to a strong presumption that all decisions fall within the wide

range of reasonable professional assistance. State v. Sallie (1998), 81 Ohio St.3d

673, 675, 693 N.E.2d 267.         Tactical or strategic trial decisions, even if

unsuccessful, do not generally constitute ineffective assistance. State v. Carter

(1995), 72 Ohio St.3d 545, 558, 651 N.E.2d 965. Rather, the errors complained of

must amount to a substantial violation of counsel’s essential duties to his client.

See State v. Bradley (1989), 42 Ohio St. 3d 136, 141-42, 538 N.E.2d 373, quoting

State v. Lytle (1976), 48 Ohio St.2d 391, 396, 358 N.E.2d 623.




                                       -5-
Case No. 1-10-41


       {¶15} To establish prejudice when ineffective assistance of counsel relates

to a guilty plea, the defendant must show there is a reasonable probability that but

for counsel’s deficient or unreasonable performance he or she would not have pled

guilty. State v. Xie (1992), 62 Ohio St.3d 521, 524, 584 N.E.2d 715, citing Hill v.

Lockhart (1985), 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.E.2d 203; Strickland, 466

U.S. at 687.

       {¶16} Dooley’s arguments lack merit. Although the record indicates that

Dooley informed law enforcement that the dates on the camera may have been

incorrect, Dooley admitted to law enforcement that he committed the acts in

October and November of 2008. (Mar. 12, 2010 Tr. at 17-18). Furthermore,

Dooley has not indicated on appeal how this would have affected his decision to

plead guilty to the two rape offenses. Xie, 62 Ohio St.3d at 524. Additionally,

whether to consult an expert witness is generally a matter of trial strategy, and

therefore, does not constitute ineffective assistance of counsel. See State v. Mundt,

115 Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, ¶118; State v. Nicholas

(1993), 66 Ohio St.3d 431, 436, 613 N.E.2d 225; State v. Thompson (1987), 33

Ohio St.3d 1, 10-11, 514 N.E.2d 407; Carter, 72 Ohio St.3d at 558. See, also,

State v. Alvarado, 3d Dist. No. 12-07-14, 2008-Ohio-4411, ¶40.

       {¶17} Dooley next argues that trial counsel was ineffective for failing to

locate “Christina Hill,” whose email to the Wapakoneta Police Department



                                        -6-
Case No. 1-10-41


ultimately resulted in his arrest and subsequent rape convictions. (Mar. 12, 2010

Tr. at 5-6); (State’s Discovery Response, Doc. No. 13). Sergeant Mark Pierce of

the Allen County Sheriff’s Office testified that Christina Hill sent an email to the

Wapakoneta Police Department and forwarded photographs of an adult male’s

penis pressed up against a female infant’s vagina, which Christina indicated she

had received from Dooley. (Mar. 12, 2010 Tr. at 7, 23); (Doc. No. 13). Dooley

admitted that he had sent the pictures to Christina and that the adult male penis

photographed was his. (Mar. 12, 2010 Tr. at 8, 16-17); (Doc. No. 13). Dooley also

admitted to law enforcement that he had penetrated both female infants’ vaginas

with his penis. (Doc. No. 13).      Trial counsel did inquire of Sergeant Pierce

concerning the whereabouts of Christina Hill, and Sergeant Pierce testified that

they might have Hill’s email address, but no other contact information for her.

(Mar. 12, 2010 Tr. at 19-23). Nevertheless, in light of Dooley’s admissions and

the photographic evidence in this case, failing to contact Christina Hill was not

ineffective assistance of trial counsel. Furthermore, Dooley has not suggested

what, if any, exculpatory evidence Hill might have offered that would have

affected his decision to plead guilty. Xie, 62 Ohio St.3d at 524. Therefore, we find

this argument also meritless.

       {¶18} Finally, Dooley argues that trial counsel was ineffective for failing to

argue that he unintelligently and unknowingly waived his Miranda rights since he



                                        -7-
Case No. 1-10-41


has a low IQ. Sergeant Pierce testified that he read the Pre-Interrogation Advice

of Rights to Dooley prior to his interrogation and, when he asked Dooley if he

understood what he was reading to him, Dooley responded, “[o]h, yes, this is the

Miranda Warning.” (Mar. 12, 2010 Tr. at 13). Sergeant Pierce also testified that

Dooley had graduated from Bath High School, was able to read and write English,

and appeared to understand his rights. (Id. at 13-14). Dr. Hustak’s report noted

that Dooley appeared to suffer from attention deficient disorder; however, Dooley

had adequate verbal comprehension despite this attention problem. (Hustak Report

at 12). Furthermore, we note that Dooley made a voluntary statement to law

enforcement prior to arrest and interrogation that the penis in the picture was his.

(Mar. 12, 2010 Tr. at 8); (Doc. No. 13). As such, we fail to see how trial counsel’s

failure to inquire about Dooley’s ability to waive Miranda rights at the

interrogation would have affected Dooley’s decision to plead or not plead guilty

since Dooley had already made incriminating statements prior to the interrogation.

Therefore, this argument lacks merit.

       {¶19} Dooley’s first assignment of error is, therefore, overruled.

                       ASSIGNMENT OF ERROR NO. II

        THE TRIAL COURT FAILED TO CONDUCT A PROPER
        CRIMINAL RULE 11 HEARING TO ASCERTAIN THAT
        DEFENDANT WAS COMPETENT TO ENTER A GUILTY
        PLEA THAT CARRIED ESSENTIALLY A LIFE
        SENTENCE GIVEN THE INFORMATION AVAILABLE TO
        THE COURT OF THE DEFENDANT’S LOW IQ.


                                        -8-
Case No. 1-10-41



       {¶20} In his second assignment of error, Dooley argues that the trial court

did not conduct an adequate Crim.R. 11 hearing in light of his low IQ. We

disagree.

       {¶21} In determining whether to accept a no contest or guilty plea, the trial

court must determine whether the defendant has knowingly, intelligently, and

voluntarily entered the plea. Crim.R. 11(C); State v. Johnson (1988), 40 Ohio

St.3d 130, 132-33, 532 N.E.2d 1295. To do so, the trial court should engage in a

dialogue with the defendant as described in Crim.R. 11(C). State v. Ballard

(1981), 66 Ohio St.2d 473, 480, 423 N.E.2d 115. The mere fact that a defendant

has a low IQ does not prevent him or her from entering a valid change of plea.

State v. Zachery, 5th Dist. No. 2004CA00091, 2004-Ohio-6282, ¶22.

       {¶22} Upon review of the record herein, we hold that the trial court

conducted a proper Crim.R. 11(C) dialogue.         Throughout the Crim.R. 11(C)

inquiry, the trial court repeatedly asked Dooley if he understood what he was

being told and whether he had any questions. (Mar. 22, 2010 Tr., passim). Dooley

repeatedly stated that he understood and had no questions. (Id.). The trial court

also allowed Dooley to consult with trial counsel with his additional questions. (Id.

at 12). After being fully informed of the rights he was forgoing by pleading guilty

and the possible penalties involved, Dooley entered his pleas of guilty to the two

rape charges pursuant to a written plea agreement. (Id. at 16). The written plea


                                        -9-
Case No. 1-10-41


agreement also provided Dooley with notice of his rights and the possible

penalties involved. (Doc. No. 45). As such, Dooley’s argument lacks merit.

       {¶23} Dooley’s second assignment of error is, therefore, overruled.

       {¶24} Having found no error prejudicial to the appellant herein in the

particulars assigned and argued, we affirm the judgment of the trial court.

                                                               Judgment Affirmed

WILLAMOWSKI, P.J. and ROGERS, J., concur.

/jlr




                                       - 10 -
