[Cite as State v. White, 2019-Ohio-3130.]




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

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :   Appellate Case No. 28215
                                                  :
 v.                                               :   Trial Court Case No. 2018-CRB-5564
                                                  :
 AMBER R. WHITE                                   :   (Criminal Appeal from
                                                  :   Municipal Court)
         Defendant-Appellant                      :
                                                  :

                                             ...........

                                            OPINION

                             Rendered on the 2nd day of August, 2019.

                                             ...........

TROY B. DANIELS, Atty. Reg. No. 0084957 and LARHONDA L. CARSON, Atty. Reg.
No. 0080273, Assistant Prosecuting Attorneys, City of Dayton Prosecutor’s Office, 335
West Third Street, Room 372, Dayton, Ohio 45402
      Attorneys for Plaintiff-Appellee

CARL BRYAN, Atty. Reg. No. 0086838, 120 West Second Street, Suite 603, Dayton,
Ohio 45402
      Attorney for Defendant-Appellant

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

DONOVAN, J.
                                                                                       -2-


          {¶ 1} Amber White appeals from her October 18, 2018 judgment entry of

conviction, following a plea of guilty to unlawful restraint. She was sentenced to 60 days

in jail, with 60 days suspended, and the court imposed a term of basic supervision for one

year.     The court ordered White to complete a psychological assessment and any

recommended treatment and ordered her trespassed from Grandview Hospital. The court

imposed a fine of $200 and suspended $175, leaving a fine of $25, plus court costs. We

hereby affirm the judgment of the trial court.

          {¶ 2} White was charged by way of complaint on September 4, 2018, with assault,

in violation of R.C. 2903.13(A), a misdemeanor of the first degree. The complaint alleged

that White committed the offense on September 3, 2018, by striking and kicking Simon

Finley.     Finley subsequently obtained a temporary criminal protection order (“CPO”)

against White, but Finley did not appear at White’s September 7, 2018 arraignment and

hearing on the CPO, at a September 25, 2018 pretrial, or at the trial/plea hearing

scheduled for October 16, 2018. Pursuant to a plea agreement, White pled guilty to the

amended charge of unlawful restraint on October 16, 2018.

          {¶ 3} At the plea hearing, the prosecutor advised the court that the State was

willing to amend the charge to unlawful restraint, a misdemeanor of the third degree, and

White pled guilty to that charge. The court advised White that a plea of guilty was a

complete admission of guilt. White indicated that no threats or promises were made to

induce her plea. The State then recited the following facts: “The incident happened at

Grandview Hospital at 405 West Grand Avenue * * *. Miss White was in the hospital with

a family member. She came into contact with a gentleman by the name of Simon Finley

and at one point struck him in the face and then followed him out and continued to strike
                                                                                          -3-


him resulting in the charges.” White acknowledged her understanding of the facts as

recited and the possible maximum penalty of 60 days of incarceration and possible

maximum fine of $500. The court advised White that she had the right to have her case

tried by a judge or jury and to question the witnesses that would testify against her, the

right to present evidence on her own behalf and to subpoena witnesses to appear in court,

that she did not have to testify on her behalf, and that the State could not force her to do

so. Finally, the court informed White that the State would be required to prove each and

every element of the offense of unlawful restraint beyond a reasonable doubt.

        {¶ 4} White acknowledged her understanding to the court and entered her plea.

The court accepted her plea and found that it was made voluntarily, knowingly, and

intelligently.

        {¶ 5} Counsel for White then advised the court that the complaining witness and

White used to be friends. He further explained:

        * * * Earlier in the year [Finley] drove her vehicle while drunk and totaled it

        and he plead out to that OVI because that vehicle was totaled and she didn’t

        have transportation any more. She lost her job. She lost her housing.

        She was at the hospital because her son just attempted to commit suicide.

        She saw the complaining witness and it caught her off guard and this

        incident happened. She shouldn’t have – her behavior was unacceptable

        and that’s why she is pleading guilty today but there were things that went

        along with that. She is getting counseling right now. We have a letter

        from her therapist so she is doing that. She does work as an STNA.

        That’s why we worked out the unlawful restraint offer so she would not lose
                                                                                         -4-


       her job.

       {¶ 6} The trial court found White guilty and imposed sentence as described above.

The trial court granted a stay of execution of White’s sentence on December 5, 2018.

       {¶ 7} In her brief, White argues that defense counsel was ineffective for not

requesting the case be dismissed when the State failed three times to produce its

complaining witness, and White was “thereby prejudiced in so far as she nevertheless

pleaded guilty on advice of counsel.”1 She asserts that the trial court would have acted

within its discretion to dismiss the case had her counsel made such a request. According

to White, “[b]ecause defense counsel failed to make what would have been a reasonable

request for a dismissal [she] felt compelled, against her better judgment, to enter a plea.”

       {¶ 8} The State responds that White waived this issue for appeal when she entered

her guilty plea, and even if it was not waived, the argument is without merit. We agree

with the State.

       {¶ 9} “A plea of guilty is a complete admission of guilt.” State v. Howard, 2d Dist.

Montgomery No. 27941, 2018-Ohio-5160, ¶ 12. As this Court further noted in Howard:

              A guilty plea waives the right to claim ineffective assistance of

       counsel, except to the extent that the errors caused the plea to be less than

       knowing, intelligent, and voluntary. E.g., State v. Frazier, 2016-Ohio-727,

       60 N.E.3d 633, ¶ 81 (2d Dist.). If a defendant pleads guilty on the advice of

       counsel, he must demonstrate that the advice was not “within the range of

       competence demanded of attorneys in criminal cases.” Id., quoting Tollett



1  It is clear Finley was not present at arraignment or a pretrial hearing. However, at the
trial/plea hearing, the prosecutor stated that she “may not” have a complaining witness.
                                                                                          -5-

      v. Henderson, 411 U.S. 258, 266, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973).

      Furthermore, “[o]nly if there is a reasonable probability that, but for counsel's

      errors, the defendant would not have pleaded guilty but would have insisted

      on going to trial will the judgment be reversed.” State v. Huddleson, 2d Dist.

      Montgomery No. 20653, 2005-Ohio-4029, ¶ 9, citing Hill v. Lockhart, 474

      U.S. 52, 52-53, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). (Other citations

      omitted.)

             Trial counsel is entitled to a strong presumption that his or her

      conduct falls within the wide range of reasonable assistance. Strickland v.

      Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A

      defendant is entitled to “reasonable competence” from his or her attorney,

      not “perfect advocacy.” See Maryland v. Kulbicki, 136 S.Ct. 2, 5 (2015),

      citing Yarborough v. Gentry, 540 U.S. 1, 8, 124 S.Ct. 1, 157 L.Ed.2d 1

      (2003) (per curiam). Hindsight is not permitted to distort the assessment

      of what was reasonable in light of counsel's perspective at the time, and a

      debatable decision concerning trial strategy cannot form the basis of a

      finding of ineffective assistance of counsel. State v. Cook, 65 Ohio St.3d

      516, 524-525, 605 N.E.2d 70 (1992); State v. Fields, 2017-Ohio-400, 84

      N.E.3d 193, ¶ 38 (2d Dist.).

Howard at ¶ 26-27.

      {¶ 10} White does not argue that counsel’s errors caused her plea to be less than

knowing, intelligent, and voluntary, and we conclude that her ineffective assistance of

counsel argument regarding counsel’s failure to seek a dismissal due to Finley’s absence
                                                                                              -6-


from multiple proceedings is waived.

           {¶ 11} Moreover, even if we interpret White’s appeal as including a claim that her

plea was not knowing, intelligent and voluntary, this claim would also fail. As noted in

Howard:

                 Crim.R. 11 sets forth distinct procedures for the trial court to follow in

           accepting a plea, with the procedures varying based on whether the offense

           involved is a misdemeanor that is a petty offense, a misdemeanor that is a

           serious offense, or a felony. State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-

           6093, 877 N.E.2d 677, ¶ 11; State v. Hall, 2d Dist. Greene No. 2011 CA 32,

           2012-Ohio-2539, ¶ 18. A “serious offense” means “any felony, and any

           misdemeanor for which the penalty prescribed by law includes confinement

           for more than six months.” Crim. R. 2(C).           A “petty offense” is “a

           misdemeanor other than a serious offense.” Crim.R. 2(D).

Howard at ¶ 17.

           {¶ 12} Misdemeanors of the third degree are punishable by not more than 60 days

in jail.     R.C. 2929.24(A)(3). For a “petty offense” misdemeanor, the trial court was

required only to inform White of the effect of her guilty plea. Howard at ¶ 19, citing Jones

at ¶ 14 and Crim.R. 11(E). As further noted in Howard:

                 * * * The supreme court has held that, to satisfy the requirement of

           informing a defendant of “the effect of the plea” before accepting a guilty

           plea to a petty misdemeanor, the court is required to inform the defendant

           that the plea is a complete admission of guilt. * * * Unlike the provisions

           applicable to more serious offenses, Crim.R. 11(E) does not require the trial
                                                                                      -7-


       court to personally address the defendant and determine that the defendant

       understands the nature of the charge and is entering the plea voluntarily.

       State v. Wright, 2d Dist. Montgomery 26471, 2015-Ohio-3919, ¶ 17, citing

       State v. Hopkins, 2d Dist. Greene No. 2002-CA-108, 2003-Ohio-5963, ¶ 16.

Id. at ¶ 19.

       {¶ 13} As the State asserts, at no time “did White claim innocence or in any way

cast doubt on the trial court’s conclusion that her plea was knowing, intelligent, and

voluntary,” and there is no indication in the record “that White’s plea was coerced,

compelled, or entered into against her better judgment. Rather, it was a calculated plea

that, according to her attorney, allowed White to ‘not lose her employment’ as a STNA.”

Based upon the foregoing, we conclude that White’s assigned error lacks merit, and it is

accordingly overruled.

       {¶ 14} The judgment of the trial court is affirmed.



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



FROELICH, J. and TUCKER, J., concur.



Copies sent to:

Troy B. Daniels
LaRhonda L. Carson
Carl Bryan
Hon. Carl Sims Henderson
