[Cite as State v. Hopings, 2019-Ohio-1486.]




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


State of Ohio                                     Court of Appeals No. L-18-1038

        Appellee                                  Trial Court No. CR0201601938

v.

Telly Hopings, Jr.                                DECISION AND JUDGMENT

        Appellant                                 Decided: April 19, 2019


                                              *****

        Julia R. Bates, Lucas County Prosecuting Attorney, and
        Alyssa Breyman, Assistant Prosecuting Attorney, for appellee.

        Jeffrey M. Brandt, for appellant.

                                              *****

        MAYLE, P.J.

        {¶ 1} Following a plea of guilty pursuant to North Carolina v. Alford, 400 U.S. 25,

26, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), defendant-appellant, Telly Hopings, Jr., appeals

the January 30, 2018 judgment of the Lucas County Court of Common Pleas, convicting

him of murder and an accompanying firearms specification. For the reasons that follow,

we affirm the trial court judgment.
                                      I. Background

       {¶ 2} On May 8, 2016, Hopings shot E.B. four times, killing him. He then led

police on a high-speed vehicular chase, followed by a foot chase, and disposed of the

weapon along the way. He was indicted on May 19, 2016, on charges of (1) aggravated

murder, with a firearms specification, (2) murder, with a firearms specification, (3)

failure to comply with the order of a police officer, and (4) tampering with evidence.

       {¶ 3} A jury trial began on January 29, 2018, however, on the second day of trial,

Hopings and the state reached an agreement, pursuant to which Hopings would plead

guilty under North Carolina v. Alford to murder, a violation of R.C. 2903.02(B), along

with a firearms specification under R.C. 2941.145, in exchange for the dismissal of the

remaining counts of the indictment. The state provided a statement of the evidence that it

would have presented had the matter proceeded to trial. The trial court accepted

Hopings’s plea, made a finding of guilt, and sentenced Hopings to a term of life in prison

with the eligibility of parole after 15 years on the murder conviction, and three years’

imprisonment on the firearms specification.

       {¶ 4} Hopings appealed and assigns the following errors for our review:

              I. HOPINGS’ PLEA MUST BE VACATED, AS THE TRIAL

       COURT ERRED AS A MATTER OF LAW BY FAILING TO ELICIT

       FROM HOPINGS HIS REASONS FOR PLEADING GUILTY DESPITE

       HIS PROTESTATION OF INNOCENCE.

              II. THE TRIAL COURT ERRED IN DENYING HOPINGS’

       MOTION TO SUPPRESS.

2.
              III. HOPINGS’ PLEA MUST BE VACATED AS A RESULT OF

       THE INEFFECTIVE ASSISTANCE OF COUNSEL.

                                   II. Law and Analysis

       {¶ 5} Hopings raises three assignments of error. First, he claims that his plea must

be vacated because the trial court failed to elicit from him personally his reason for

pleading guilty despite his protestation of innocence. Second, he claims that the trial

court erred because it rejected his contention that he suffered from delusions and PTSD

that prevented him from effectively waiving his rights under Miranda v. Arizona, 384

U.S. 436, 439, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and, therefore, improperly denied

his motion to suppress statements made during a custodial interrogation. Finally, he

claims that trial counsel was ineffective because he led Hopings to believe that he could

appeal the denial of his suppression motion despite entering an Alford plea, and because

he failed to advise him to enter a plea of no contest instead of an Alford plea. We address

each of these assignments in turn.

                                        A. The Plea

       {¶ 6} In his first assignment of error, Hopings argues that the trial court erred by

failing to elicit from him his reasons for pleading guilty despite his protestations of

innocence. He complains that the trial court did not directly address him to ensure that he

had made a rational calculation that it was in his best interest to accept the plea bargain

offered by the state.

       {¶ 7} Under North Carolina v. Alford, a defendant may enter a plea of guilty while

professing his innocence. Because an Alford plea has the same effect as a guilty plea, “it

3.
must be made voluntarily, knowingly and intelligently.” State v. Willis, 6th Dist. Lucas

No. L-07-1210, 2008-Ohio-6808, ¶ 4, citing Alford at 36-37. To ensure that a defendant

has sufficient information to allow him or her to make a voluntary and intelligent

decision regarding whether to plead guilty, the trial court must comply with Crim.R.

11(C). State v. Duhart, 6th Dist. Lucas No. L-16-1283, 2017-Ohio-7983, ¶ 8. Crim.R.

11(C) sets forth a number of constitutional and nonconstitutional rights that the court

must explain to a defendant before accepting his or her plea. Id.

       {¶ 8} In addition to these Crim.R. 11(C) requirements, where a defendant enters

an Alford plea, “‘[t]he trial judge must ascertain that notwithstanding the defendant’s

protestations of innocence, he has made a rational calculation that it is in his best interest

to accept the plea bargain offered by the prosecutor.’” Willis at ¶ 6, quoting State v.

Padgett, 67 Ohio App.3d 332, 338, 586 N.E.2d 1194 (2d Dist.1990).

       {¶ 9} Hopings does not claim that the trial court failed to comply with Crim.R.

11(C). He argues only that the trial court erred because it did not directly ask him his

reasons for pleading guilty despite his protestations of innocence.

       {¶ 10} To begin with, it does not appear that Hopings made “protestations of

innocence” at the plea hearing. Although an inquiry may be required in cases – unlike

this one – where the defendant pleads guilty but yet protests his or her innocence, we

have previously rejected the proposition that the trial court must personally inquire of a

defendant to ensure that he or she has made a rational calculation to plead guilty. State v.

Lacumsky, 6th Dist. Ottawa No. OT-08-060, 2009-Ohio-3214, ¶ 9, citing State v. Kafai,

6th Dist. No. WM-99-001, 1999 Ohio App. LEXIS 6339 (Dec. 30, 1999). See also State

4.
v. Martinez, 6th Dist. Lucas Nos. L-09-1152, L-09-1153, 2010-Ohio-2791, ¶ 21, fn. 5

(“An affirmative showing in the record of the defendant’s motivation in making an

Alfords [sic] plea * * * may exist absent direct inquiry by the trial court.”). Rather, we

have held that “the state’s narrative statement of the evidence that would have been

presented against appellant at trial * * * [may provide] a sufficient basis on which to

make that determination.” Martinez at ¶ 21.

       {¶ 11} Additionally, our review of the record demonstrates that the trial court did

directly address Hopings during the plea colloquy to determine his reasons for entering

the plea and to ensure that he had made a rational calculation that it was in his best

interest to plead guilty:

              THE COURT: All right. The plea that you are entering today it is

       called a guilty plea, but it is being done specifically to a case called North

       Carolina versus Alford.

              In this type of plea the Defendant maintains their innocence.

       However, they accept responsibility for the charge that they enter the plea

       to – in order to avoid the potential of a more serious punishment.

              In this particular case, Count 1 is a [sic] aggravated murder charge

       with a firearm specification. The sentence in that particular charge if found

       guilty is a life sentence with the option the Court would select parole

       eligibility after 20, 25, 30 years or without parole, which is a more

       extensive sentence.



5.
              Also, you have two other charges in Counts 3 and 4 which were each

       felonies of the third degree, which could be punishment up to 36 months as

       to each charge. If run consecutive that could add an additional six years of

       sentence of aggravated murder, which in itself could be a life without

       parole sentence. Do you understand all that?

              THE DEFENDANT: Yes.

              THE COURT: And that is the sentence that you would be avoiding

       by accepting this plea. Do you understand that?

              THE DEFENDANT: Yes.

              THE COURT: Is that what you intend to do here today?

              THE DEFENDANT: Yes.

       {¶ 12} In addition to this dialogue between Hopings and the trial court, Hopings

signed a plea form in which he acknowledged that “[b]y this plea of guilty, I DO NOT

admit committing the offense, but I enter this plea only to avoid the risk of conviction on

a more serious offense if I went to trial on the original charge and the possibility of a

higher penalty as a result.” His attorney told the court that he and Hopings “had an

opportunity to review the plea of guilty pursuant to North Carolina versus Alford,” and

that “[a]ny questions that he entertained were answered, and he knowingly, intelligently,

and voluntarily placed his signature of each side of the document.”

       {¶ 13} Finally, Hopings’s attorney spoke on his behalf, informing the trial court of

the reason for Hopings’s plea:



6.
              As the Court is well aware, and my client is also, the nature of the

       plea itself does not indicate that he admits committing this offense.

       However, for fear of proceeding to trial and perhaps being found guilty of

       aggravated murder with a firearm spec, and tampering with evidence, and

       fleeing and alluding the police, and thereby potentially being exposed to a

       much greater sentence.

              My client at this time will knowingly, intelligently, and voluntarily

       withdraw his – waive his Constitutional rights to a trial and withdraw his

       former plea of not guilty and tender this plea of guilty pursuant to North

       Carolina v. Alford.

       {¶ 14} Given the dialogue between Hopings and the trial court, his execution of

the plea form, trial counsel’s explanation of his reasons for entering the plea, and the

state’s summary of the evidence it would have presented at trial, we find that the trial

court properly determined Hopings’s reasons for entering an Alford plea and ascertained

that he had made a rational calculation that it was in his best interest to do so. See Willis,

6th Dist. Lucas No. L-07-1210, 2008-Ohio-6808, at ¶ 8-9 (concluding that Alford plea

was properly accepted where defendant reviewed written plea form with counsel, signed

the plea form, and responded affirmatively when he was asked by the court whether he

was entering the plea to avoid risk of conviction for a more serious offense).

       {¶ 15} We find Hopings’s first assignment of error not well-taken.




7.
                                B. The Motion to Suppress

       {¶ 16} In his second assignment of error, Hopings argues that the trial court erred

when it denied his motion to suppress evidence. He acknowledges the numerous cases

from this court that hold that by entering an Alford plea, an appellant waives his right to

challenge the denial of a suppression motion. Nevertheless, Hopings contends that our

holdings are incorrect because (1) there is no Ohio or U.S. Supreme Court case that

stands for this proposition, and (2) our first enunciation of this rule was in State v.

Barhite, 6th Dist. Lucas No. L-90-043, 1991 Ohio App. LEXIS 3314, (July 12, 1991), an

appeal filed under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493

(1967), in which appellate counsel “did not engage in advocacy” on behalf of the client.

       {¶ 17} First, we note that this court is not alone in holding that a guilty plea under

Alford waives any alleged errors committed by the trial court in failing to suppress

evidence. See, e.g., State v. Adkins, 2015-Ohio-4605, 46 N.E.3d 1143, ¶ 7 (2d Dist.);

State v. Dailey, 7th Dist. Columbiana No. 06-CO-63, 2007-Ohio-6429, ¶ 20; State v.

Bilicic, 11th Dist. Ashtabula No. 2017-A-0066, 2018-Ohio-5377, ¶ 27; State v. Bailey,

12th Dist. Butler No. CA99-03-067, 2000 Ohio App. LEXIS 3300, *2 (July 24, 2000).

We would also point out that we were not the first district to arrive at this conclusion.

See, e.g., State v. Mastice, 2d Dist. Montgomery No. 10154, 1987 Ohio App. LEXIS

7439, *2 (June 8, 1987).

       {¶ 18} Second, Barhite does not have less precedential weight simply because it

involved an Anders appeal. Moreover, while we may have first acknowledged our

position in an Anders appeal, we have had numerous opportunities to revisit our holding

8.
and have declined to do so. See, e.g. State v. Pringle, 6th Dist. Lucas No. L-98-1275, L-

98-1364, 1999 Ohio App. LEXIS 3013, *11-12 (June 30, 1999) (recognizing that a guilty

plea entered pursuant to Alford is procedurally indistinguishable from a guilty plea and

waives alleged error by the trial court in failing to suppress evidence unless such error is

shown to have prevented defendant from knowingly and voluntarily entering guilty plea);

State v. Leasure, 6th Dist. Lucas No. L-05-1260, 2007-Ohio-100, ¶ 7 (“Possible error in a

trial court’s denial of a motion to suppress is among those appealable errors waived.”);

State v. Rice, 6th Dist. Lucas No. L-06-1343, 2007-Ohio-6529, ¶ 15.

       {¶ 19} Finally, the absence of any Ohio or U.S. Supreme Court case law on point

means that our decisions are not in conflict with any higher-court precedent. Unless a

higher court rules otherwise, our decisions remain controlling in this district.

       {¶ 20} Accordingly, we find that by entering an Alford plea, Hopings waived his

ability to challenge the trial court’s denial of his motion to suppress evidence. We find

his second assignment of error not well-taken.

                           C. Ineffective Assistance of Counsel

       {¶ 21} In his third assignment of error, Hopings argues that trial counsel was

ineffective for (1) leading him to believe that by entering an Alford plea, he would be

able to appeal the trial court’s denial of his motion to suppress, and (2) failing to advise

him to enter a no-contest plea instead of an Alford plea.

       {¶ 22} In order to prevail on a claim of ineffective assistance of counsel, an

appellant must show that counsel’s conduct so undermined the proper functioning of the

adversarial process that the trial court cannot be relied on as having produced a just

9.
result. State v. Shuttlesworth, 104 Ohio App.3d 281, 287, 661 N.E.2d 817 (7th

Dist.1995). To establish ineffective assistance of counsel, an appellant must show “(1)

deficient performance of counsel, i.e., performance falling below an objective standard of

reasonable representation, and (2) prejudice, i.e., a reasonable probability that, but for

counsel’s errors, the proceeding’s result would have been different.” State v. Hale, 119

Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204, citing Strickland v.

Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” State v. Sanders, 94 Ohio St.3d 150, 151, 761 N.E.2d 18 (2002).

       {¶ 23} Here, there is nothing in the record to support Hopings’s claim that trial

counsel led him to believe that he could appeal the trial court’s denial of his motion to

suppress despite entering an Alford plea, or that trial counsel failed to advise him to enter

a no-contest plea rather than an Alford plea. There is also nothing in the record to suggest

that the state ever offered or would have allowed Hopings the option of entering a no-

contest plea. We, therefore, reject Hopings’s claim of ineffective assistance of counsel.

See State v. Bonnet, 12th Dist. Warren No. CA96-07-059, 1997 Ohio App. LEXIS 718,

*5-6 (Mar. 3, 1997) (rejecting ineffective assistance claim where “record [did] not

include private conversations between appellant and his trial counsel regarding the effect

of appellant’s plea on his pretrial motions,” and “there [was] nothing in the record to

support appellant’s contention that he and his trial counsel were given the option of

pleading no contest”).

       {¶ 24} We find Hopings’s third assignment of error not well-taken.

10.
                                     III. Conclusion

       {¶ 25} The trial court properly ascertained Hopings’s reasons for entering a plea of

guilty under North Carolina v. Alford where it personally addressed him, he executed a

plea form, trial counsel spoke on his behalf, and the state provided a statement of

evidence that it would have presented at trial. Hopings waived his ability to appeal the

trial court’s denial of his suppression motion when he entered this plea. And there is no

evidence in the record to support Hopings’s claim that trial counsel was ineffective for

failing to advise him that by entering an Alford plea, he was waiving his ability to appeal

the denial of the suppression motion, or that counsel failed to advise him to enter a plea

of no contest instead of an Alford plea.

       {¶ 26} Accordingly, we find Hopings’s three assignments of error not well-taken

and affirm the January 30, 2018 judgment of the Lucas County Court of Common Pleas.

Hopings is ordered to pay the costs of this appeal under App.R. 24.

                                                                       Judgment affirmed.

       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
Thomas J. Osowik, J.
                                                _______________________________
Christine E. Mayle, P.J.                                    JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE




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           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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