[Cite as State v. Young, 2016-Ohio-2720.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 103024




                                      STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                              DARRYL A. YOUNG, JR.
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-588695-A

        BEFORE: E.T. Gallagher, J., McCormack, P.J., and Boyle, J.

        RELEASED AND JOURNALIZED: April 28, 2016
ATTORNEY FOR APPELLANT

Stephanie L. Lingle
1360 East 9th Street, Suite 910
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Anthony Thomas Miranda
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:

       {¶1} Defendant-appellant, Darryl A. Young, Jr. (“Young”), appeals his attempted

felonious assault conviction. He raises the following two assignments of error:

       1. The trial court erred in finding Young’s change in plea to have been
       made voluntarily.

       2. Young did not have effective assistance of counsel.

       {¶2} We find no merit to the appeal and affirm.

                            I. Facts and Procedural History

       {¶3} Young was charged with one count of felonious assault, a second-degree

felony, for allegedly assaulting a man who refused to give him 50 cents. The charge

included a notice of prior conviction and a repeat violent offender specification.

       {¶4} The court appointed counsel to represent Young at his arraignment. The

attorney-client relationship was brief, and counsel moved to withdraw after only one

month, explaining that “[d]efendant and undersigned counsel have a broad range of

differences, and cannot communicate effectively.” The trial court granted the motion to

withdraw and appointed new counsel.

       {¶5} Two weeks after new counsel was appointed, Young filed a pro se motion

seeking permission to be present at all proceedings. Meanwhile, counsel demanded

discovery and began preparing the case for trial. Following a pretrial, the court referred

Young to the court psychiatric clinic for an evaluation to determine his competency to

stand trial. However, the evaluating psychologist stated in a report that he was unable to
complete the evaluation because Young “refused or was unable to cooperate with his

evaluation.”

       {¶6} Following the psychologist’s recommendation, the court referred Young to

Northcoast Behavioral Healthcare (“Northcoast”) for a 20-day competency evaluation.

In the written evaluation, the psychologist at Northcoast opined that

       Mr. Young is malingering or exaggerating his illness. It’s my opinion he
       has antisocial personality disorder with borderline and narcissistic traits.
       And so Mr. Young has the capacity to understand the nature and objective
       of the proceedings against him and has the capacity to assist in his defense.

(Tr. 155.)

       {¶7} Young subsequently filed, pro se, a motion to disqualify the judge and for a

mistrial and a motion to dismiss the indictment. The court did not rule on Young’s pro

se motions because he was represented by counsel. Shortly thereafter, Young advised

the court that he wished to represent himself pro se, and the court held a hearing to ensure

that Young knowingly, intelligently, and voluntarily executed a waiver of his right to

counsel.

       {¶8} At the hearing, Young explained he was dissatisfied with both

court-appointed lawyers because they refused to do certain things he wanted them to do.

He also complained he needed more time on the jail computer to find the last names of

witnesses and to conduct research. According to Young, he was only entitled to use the

jail computer for two hours per day if someone was not using it. (Tr. 49.) An employee

of the jail advised the court that pursuant to jail policy, the computer is only accessible to

inmates with civil cases. (Tr. 49.) The trial court provided an order giving Young
access to the jail computer in accordance with jail policies and procedures. (Tr. 50.)

Young also advised the court that he was willing to plea bargain if the state would offer

something less than a guilty plea to the indictment. (Tr. 54-55.)

      {¶9} The court thoroughly explained the perils of self-representation. The court

also explained that Young would be held to the same standards as an attorney. After

executing the waiver of counsel, Young stated, “This is going to suck.” When the court

inquired as to what Young meant by the statement, Young explained he was concerned he

would have little access to the jail computer. The court had previously explained that

lack of access to resources “is one of the perils that you face with representing yourself

and unfortunately being incarcerated further compounds things.” (Tr. 47-48.) Finally,

the court advised Young: “We’re not giving you any preferential treatment in this case,”

and Young replied, “I’m screwed.”

      {¶10} The day after the hearing, the court held a second hearing for the purpose of

providing Young access to the state’s discovery. The state produced two DVDs and a

thick stack of documents. One DVD contained surveillance footage from inside Tower

City where the assault occurred. According to the state, this video showed Young

suddenly attacking the victim, punching him several times in the head, and biting off a

portion of his ear. The other DVD contained statements Young and the victim made to

police describing the event. Young viewed the DVDs in court.

      {¶11} Continuing the conversation from the previous day, Young informed the

court that he had the full names of his witnesses but lamented that he had no way to
contact them from the jail because his use of a Google account to contact people is

against jail policy. He complained, “So now I’m stuck without any of my witnesses.”

In response, the court explained that it would provide Young with defense subpoenas to

compel witnesses to appear for trial because compulsory process is one of his

constitutional rights. Young was dissatisfied with the court’s response and insisted that

he have permission to use the jail computer to contact witnesses.

      {¶12} After discussing the challenges Young would have in preparing a defense

from jail, the court and Young discussed the possibility of reappointing counsel. The

court explained that “hybrid” representation, where a defendant acts as co-counsel with

his lawyer, is not permitted by law, and that the court would not allow Young to vacillate

between acting pro se and having counsel.         During the discussion, the following

exchange took place:

      THE COURT: What is your intention with respect to pro se or with
      counsel? Because you’ve indicated to me you’re kind of waffling or
      wavering as to what your decision is.

      MR. YOUNG: I have to — I’m forced to go with counsel, because I have
      no other — I have no —

      THE COURT: No, no, no, no, no, no. * * * You have rights and I will
      provide you with whatever rights you choose. But to try to sit here and
      imply that someone is forcing you to do something, that’s not going to fly.
      You have choices. You have decisions to make.

      I’m happy to answer all your questions and provide you as much
      information as I can on all these issues for you to make an informed
      decision. * * * Would you like to proceed with or without counsel?
      That’s the issue.
       MR. YOUNG: I have to proceed with counsel because I can’t get things
       done without it.

       THE COURT: All right.

       {¶13} Finally, Young asked the trial court to order release of his property from the

jail. Young maintained that while he was at Northcoast, an envelope of papers and other

items of personal property were confiscated from him and never returned. The court

advised Young to discuss this matter with his attorney after the attorney is reappointed.

       {¶14} The court reappointed counsel, and the parties appeared in open court and

on the record for the third time. The judge advised Young he had learned that Young

lost computer privileges because he violated jail policies for computer usage. (Tr. 111.)

An investigator at the jail informed the prosecutor that Young lost his computer privileges

because he used his personal Google Voice account to send and receive text messages

from family and friends.     Young also asked a friend to email him videos of male

genitalia, and there were copies of pictures and videos of male genitalia discovered on the

computer during the time Young was using it. (Tr. 119.)

       {¶15} The state advised the court that it offered a plea bargain to Young through

his reappointed counsel. The state agreed to reduce the felonious assault charge, a

second-degree felony, with notice of prior conviction and repeat violent offender

specifications, to attempted felonious assault, with no specifications. Counsel advised

the court that he had discussed the plea with Young, including the difference in penalties.

 With respect to the state’s offer, the following dialogue occurred in open court and in

Young’s presence:
       [COUNSEL]: My client would have approximately eight months or so in
       county jail. I would absolutely make no promises as to what this Court
       would do, but that’s significantly different than the potential two to eight
       years under the felony of the second degree that currently was our
       understanding prior to today.

       THE COURT: Or to the 18 years the way it’s indicted.

       [COUNSEL]: That’s correct. We’ve spoken to that
                       just briefly. So I indicated to him
                       that that’s a vast improvement, if
                       you will, or reduction. * * *

       So I think he’s considering those things. I’m not rushing him. I just gave
       him information.

(Tr. 123.)

       {¶16} Following this discussion, the court explained that while a conviction on the

one count of felonious assault charged in the indictment carried a maximum prison term

of 18 years, a conviction of attempted felonious assault without specifications carried

only a maximum 36-month prison term. Young asked the court whether there was a

presumption of prison for the third-degree felony the state was offering in exchange for a

plea. The court advised Young that there was no presumption of prison, but the court

might impose a prison term depending on his prior criminal record, what the victim has to

say, and how he has historically behaved on probation. The court explained that he

would refer Young for a presentence investigation to learn more about him before

sentencing. Young did not enter a guilty plea at this time.

       {¶17} Before the hearing concluded, Young once again asked about his

confiscated property. According to defense counsel, the papers contained the names of
possible character witnesses that counsel deemed were unnecessary for trial.

Nevertheless, the court explained:

      I’m trying to make sure, Mr. Young, that your rights are protected, because
      if in the worst-case scenario you go to trial and you lose, you face a very
      lengthy sentence potential.

      The system has to have protections in place to make sure that you have been
      — all your rights have been protected. That includes the right to present a
      defense. And to the extent that information, if it’s deemed relevant and
      usable or whatever by [defense counsel], he has to know about and have
      access to it.

      {¶18} On the day of trial, Young indicated that he wanted to plead an insanity

defense, and that because his trial counsel was refusing to assert it on his behalf, he

wanted to once again terminate his relationship with counsel.             The following

conversation ensued:

      THE COURT: So, we have been round and round with that before, and I
      believe you can terminate your counsel, but you’re going forward with the
      jury today. So having said that, would you give me again the five page
      waiver of right to counsel so I can go over it with Mr. Young?

      THE DEFENDANT: No, I wasn’t talking about self-representation. I
      was talking about termination of my counsel.

      THE COURT: So there’s two things that are going to happen today. The
      first is we’re going to complete your case today, whether you go to trial, or
      not.

      The second issue is whether you want to represent yourself or have
      [counsel] represent you.

      THE DEFENDANT: I have no other alternative?

      THE COURT: We are going to trial today. I have had this conversation
      with you numerous times in the past and we chose this date specifically so
that we could bring your case to its conclusion today, either representing
yourself or having [counsel] represent you.

However, you do have a right to counsel. I believe you also have the right
to represent yourself at this point, but absent — there’s nothing that
indicates to me that [defense counsel] has a conflict of interest or is
otherwise unable to represent you, so you don’t have to have [defense
counsel] represent you. You can represent yourself, but we’re going
forward today. What would you like to do?

THE DEFENDANT: I’m not having this forced upon me.

THE COURT: No, you’re not having it forced upon you. But here’s what
we’re going to do. [Bailiff], would you bring in the jury?

And I want to place on the record my history of dealing with Mr. Young,
that he is being purposefully difficult in the way he responds to these
question[s]. I believe it would clearly be in your best interest to have
counsel representing you. And so I will continue on with this matter to
have [defense counsel] represent you.

As I said, I believe the record is clear by the documents that are contained
within the record and personal dealings with you, that you do not suffer
from any mental illness or defects that would impact your ability to
understand the nature of the proceedings that are happening against you.

My conversations with you, you are an intelligent individual. You are able
to recite different dates and times that things happened and recall things.
You are, I believe * * * clever enough to use the system. When we had
prior conversation[s] with your ability to access the computer, instead you
chose to use that contrary to the rules of the jail and go on certain cites and
share inappropriate content with other persons.

So I am of the opinion that you have absolute clarity of what was going on
and that you are also malingering.

Again, to reiterate, I believe it to be in your best interest to have good
counsel represent you at the time of the trial, and so we’re going to continue
on in this fashion.

Would you bring the jury in, please?
       {¶19} Just before the jury entered the courtroom, defense counsel advised the court

that Young wished to accept the state’s plea offer. The court asked Young if he truly

wanted to entertain the plea, and Young replied, “Yes, sir.” In response, the court stated:

       THE COURT: All right. And again * * * we have been through this. * *
       * I want you to understand I want you in no way to try to feel as though I
       am trying to jam a plea down your throat, so to speak.

       I’m prepared to go to trial, * * * we do have a jury standing in the hallway
       right now. We’re prepared to go forward. I think we have been over all
       the issues sufficiently, but again, if you would like to avail yourself to your
       right to trial by jury, I am happy to provide you with that opportunity.

       We talked in the past. The chips will fall as they may. If they came back
       with a not guilty verdict, that’s great. I’ll wish you well and send you on
       your way. And of course, if they come back with a guilty verdict, I’ll have
       to take a different approach.

       Sir, do you have any other questions about that issue?

       THE DEFENDANT: I wish to enter a plea.

       {¶20} After statements from the prosecutor and defense counsel regarding the

terms of the plea agreement, the court conducted a thorough Crim.R. 11 colloquy. The

court advised Young of all the rights he was waiving by pleading guilty and explained

that his conviction will be considered a violation of postrelease control that would subject

him to additional prison time. The court also described the potential penalties he could

receive for his conviction in this case. Upon questioning, Young advised the court that

he understood what was happening and the rights he was waiving. However, when the

court asked Young if he was satisfied with the services provided by defense counsel,

Young complained:
       I just wished that he fought harder for me, like as me. That’s the reason I
       wanted to represent myself, because nobody is going to fight for me like
       me.

       ***

       [H]e was more a thing of being cautious, and I’m more bold.

       {¶21} When the court asked if Young was otherwise satisfied with counsel, Young

replied: “Yes, I would say [defense counsel] is an adequate counsel and effective

counsel.”

       {¶22} Pursuant to the plea agreement, Young pleaded guilty to one count of

attempted felonious assault, a third-degree felony, with no specifications. The court

sentenced Young to 30 months in prison. Young now appeals his conviction.

                                 II. Law and Analysis

                                     A. Guilty Plea

       {¶23} In the first assignment of error, Young argues the trial court erroneously

concluded that he entered his guilty plea voluntarily. He contends he was forced to plead

guilty because he was denied access to evidence. In the second assignment of error,

Young contends his trial counsel was deficient because he (1) failed to locate a witness,

(2) made no effort to obtain Young’s property that was confiscated while he was at

Northcoast, and (3) failed to present mitigating factors at the time of sentencing. He also

argues that exculpatory evidence may have been lost as a result of counsel’s

ineffectiveness.   We discuss these assigned errors together because they are closely

related.
       {¶24} Under Crim.R. 11(C)(2), before accepting a guilty plea, a trial court must

personally address the defendant and (1) determine that the defendant is making the plea

voluntarily, with an understanding of the nature of the charges and the maximum penalty;

(2) inform the defendant of and determine that the defendant understands the effect of the

plea and that the court may proceed with judgment after accepting the plea; and (3)

inform the defendant and determine that the defendant understands that he is waiving his

constitutional rights to a jury trial, to confront the witnesses against him, to call witnesses

in his favor, and to require the state to prove his guilt beyond a reasonable doubt at a trial

where the defendant cannot be forced to testify against himself.

       {¶25} A trial court must strictly comply with the mandates of Crim.R. 11(C)(2)

regarding the waiver of constitutional rights, meaning the court must actually inform the

defendant of the constitutional rights he is waiving and make sure the defendant

understands them. State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d

621, ¶ 27. Failure to fully advise a defendant of his constitutional rights renders a plea

invalid. Id. at ¶ 29.

       {¶26} For nonconstitutional rights, scrupulous adherence to Crim.R. 11(C) is not

required and “substantial compliance” is sufficient.        Veney at ¶ 14, citing State v.

Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977). “Substantial compliance means that

under the totality of the circumstances the defendant subjectively understands the

implications of his plea and the rights he is waiving.” State v. Nero, 56 Ohio St.3d 106,

108, 564 N.E.2d 474 (1990).
      {¶27} The reviewing court conducts a de novo review to determine whether the

trial court accepted a plea in compliance with Crim.R. 11(C). State v. Cardwell, 8th

Dist. Cuyahoga No. 92796, 2009-Ohio-6827, ¶ 26. We are required to review the totality

of the circumstances and determine whether the trial court complied with the

requirements of Crim.R. 11(C).      State v. Schmick, 8th Dist. Cuyahoga No. 95210,

2011-Ohio-2263, ¶ 6.

      {¶28} If the trial judge partially complied with the rule with respect to

nonconstitutional rights, the plea may be vacated only if the defendant demonstrates a

prejudicial effect. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 17.

The test for prejudice is “‘whether the plea would have otherwise been made.’” State v.

Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 32, quoting Nero at 108.

      {¶29} A claim of ineffective assistance of counsel is waived by a guilty plea,

except to the extent that the ineffective assistance of counsel caused the defendant’s plea

to be less than knowing, intelligent, and voluntary. State v. Williams, 8th Dist. Cuyahoga

No. 100459, 2014-Ohio-3415, ¶ 11, citing State v. Spates, 64 Ohio St.3d 269, 272, 595

N.E.2d 351 (1992), citing Tollett v. Henderson, 411 U.S. 258, 267, 93 S.Ct. 1602, 36

L.Ed.2d 235 (1973).

      {¶30} In order to establish the prejudice necessary for an ineffective assistance of

counsel claim, the appellant must demonstrate there is a reasonable probability that, but

for counsel’s deficient performance, he would not have pleaded guilty to the offense at

issue and would have insisted on going to trial. Williams at ¶ 11, citing State v. Xie, 62
Ohio St.3d 521, 524, 584 N.E.2d 715 (1992), and Hill v. Lockhart, 474 U.S. 52, 106 S.Ct.

366, 88 L.Ed.2d 203 (1985).

       {¶31} On the day of trial, counsel described his attempts to locate a defense

witness, but indicated that, despite his best efforts, he was unable to make contact with

him. The record contains little evidence as to whether or not defense counsel eventually

made efforts to obtain the property Young claimed was confiscated from him.

Nevertheless, there is nothing in the record to indicate that the presence of the missing

witness or the confiscated property would have changed the outcome of the proceedings.

       {¶32} Young’s claim that counsel was deficient because “exculpatory evidence

may have been lost,” during the first five months of the pretrial stages is similarly without

merit. Young cannot demonstrate prejudice during these five months because he does

not even know if there was exculpatory evidence to begin with. When a court is left to

speculate as to whether any additional evidence existed, and what that evidence may or

may not have shown, the defendant fails to establish the prejudice necessary to support an

ineffective assistance of counsel claim. State v. Spencer, 8th Dist. Cuyahoga No. 69490,

2003-Ohio-5064, ¶ 12. Therefore, because Young’s argument is purely speculative, he

cannot demonstrate that the pretrial stages would have been different if counsel had acted

differently.

       {¶33} Young contends he did not enter his guilty plea voluntarily because he was

forced to accept counsel against his wishes in order to gain access to legal resources and a

computer.      He also contends the court prevented him from being able to contact a
defense witness and prevented him from recovering his property, which he claims

contained necessary evidence.

       {¶34} However, Young is the only one to blame for his loss of access to the jail

computer. The court gave him an order allowing him to conduct research on the jail

computer, but Young lost his computer privileges because he used the computer in

violation of jail policies. And, as previously stated, there is nothing in the record to

suggest that Young would not have pleaded guilty if he had access to the missing witness

or the confiscated property.

       {¶35} Moreover, the record shows that Young knowingly, intelligently, and

voluntarily pleaded guilty. Throughout several days of hearings, the court painstakingly

explained to Young all of his rights as well as the ramifications of a guilty plea. During

the plea colloquy, the following exchange took place:

       THE COURT: Do you understand that by your entering into this plea here
       today, that may constitute a probation violation, or prc violation which
       could subject you to additional time that you might get in this case? Do
       you understand that?

       THE DEFENDANT: It’s not a may. It’s a certainty. * * * That was
       one of the reasons why I wanted to try to get a lower felony, because I still
       have to answer to that.

       {¶36} Indeed, Young volunteered several times that he would like to enter a plea

bargain if the state made him an acceptable offer, and the state eventually did make such

an offer.   Young faced up to 18 years in prison if convicted of the charge and

specifications alleged in the indictment.    The state had surveillance video showing
Young attacking the victim. Thus, even if the missing witness could have provided some

mitigating evidence, Young would still have had a substantial risk of conviction at trial.

       {¶37} Yet, when Young was represented by counsel, the state reduced the charge

and deleted the specifications in exchange for his plea. The longest prison term Young

could receive to the reduced charge was 36 months. Moreover, the record reflects that

the trial court informed Young, and determined that Young understood he was waiving

his constitutional rights to a jury trial, to confront the witnesses against him, to call

witnesses in his favor, and to require the state to prove his guilt beyond a reasonable

doubt. He also understood that no one could compel him to testify against himself and

that no one could comment on his decision to remain silent. Therefore, the record shows

that Young knowingly, intelligently, and voluntarily pleaded guilty to attempted felonious

assault.

       {¶38} Finally, Young argues his trial counsel was ineffective because he failed to

present any mitigating statements at sentencing. This assertion is not supported by the

record. Counsel argued that Young should receive credit for taking full responsibility for

his actions. Counsel also asked the court to consider the fact that Young faces four

additional years in prison for the postrelease control violation when it fashions his

sentence. There is nothing in the record to show that defense counsel could have said

any more than these statements.

       {¶39} Moreover, counsel’s mitigating statements seem to have had a positive

impact on Young’s sentence.       Young was originally charged with felonious assault
because he bit off part of the victim’s ear. Young also broke the victim’s finger, which

affected his work as a cook.     These are serious injuries, and the court could have

sentenced Young to a 36-month prison term. Yet the court imposed a lesser 30-month

sentence, and Young had a history of prior convictions of violent crimes.

      {¶40} Therefore, the record reflects that the court complied with all the

requirements of Crim.R. 11(C) and that Young knowingly, intelligently, and voluntarily

pleaded guilty. Counsel effectively represented Young by procuring a plea agreement

that substantially reduced his potential prison time, and there is no evidence to suggest

that Young was prejudiced in any way by counsel’s performance.

      {¶41} Accordingly, both assignments of error are overruled.

      {¶42} Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



EILEEN T. GALLAGHER, JUDGE
TIM McCORMACK, P.J., and
MARY J. BOYLE, J., CONCUR
