[Cite as State v. Washington, 2011-Ohio-4500.]


         Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                           JOURNAL ENTRY AND OPINION
                                    No. 95774



                                    STATE OF OHIO
                                                 PLAINTIFF-APPELLEE

                                                  vs.

                         DEBORAH WASHINGTON

                                                 DEFENDANT-APPELLANT




                                          JUDGMENT:
                                           AFFIRMED


                               Criminal Appeal from the
                         Cuyahoga County Court of Common Pleas
                                  Case No. CR-530880

        BEFORE:           Cooney, J., Boyle, P.J., and S. Gallagher, J.

    RELEASED AND JOURNALIZED: September 8, 2011
ATTORNEY FOR APPELLANT
                                    2

Susan J. Moran
55 Public Square
Suite 1616
Cleveland, Ohio 44113-1901



ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: Nick Giegerich
Assistant County Prosecutor
8th Floor, Justice Center
1200 Ontario Street
Cleveland, Ohio 44113




COLLEEN CONWAY COONEY, J.:

      {¶ 1} Defendant-appellant,   Deborah   Washington     (“Washington”),

appeals her conviction and sentence after pleading guilty to attempted

engaging in a pattern of corrupt activity, a third degree felony. We find no

merit to the appeal and affirm.
                                        3

      {¶ 2} Washington was charged with a second degree felony of engaging in

a pattern of corrupt activity.        The indictment alleged that she and 17

codefendants      submitted   false   documents   to   obtain   mortgage   loans.

Washington claims her court-appointed counsel never discussed the merits of

the State’s case with her but recommended she plead guilty to a reduced

charge because she would most likely receive community control sanctions in

lieu of prison.

      {¶ 3} Washington pled guilty to an amended charge, and the court

continued the sentencing for a presentence investigation report.           At the

sentencing hearing, Washington denied knowing that any fraudulent

documents had been submitted to mortgage companies, and the court offered

to allow her to withdraw her plea. Neither she nor her counsel requested to

withdraw the plea. At the conclusion of the hearing, the court imposed the

minimum sentence of one year in prison but stayed execution of the sentence

until Washington completed chemotherapy treatment.              Washington now

appeals, raising three assignments of error.

             Ineffective Assistance of Counsel and the Guilty Plea

      {¶ 4} In her first assignment of error, Washington argues that she did not

enter her guilty plea knowingly, intelligently, and voluntarily because her

counsel failed to effectively assist her prior to pleading guilty. In her third
                                              4

assignment of error, she contends she was deprived of her constitutional right

to the effective assistance of counsel. We address these two assigned errors

together.

        {¶ 5} In a claim of ineffective assistance of counsel, the burden is on the defendant to

establish that counsel’s performance fell below an objective standard of reasonable

representation and that the deficient performance prejudiced the defense.     State v. Madrigal,

87 Ohio St.3d 378, 388-389, 2000-Ohio-448, 721 N.E.2d 52, citing Strickland v. Washington

(1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.       A guilty plea waives a defendant’s

claim of ineffective assistance of counsel except to the extent that the alleged ineffectiveness

may have caused the guilty plea to be less than knowing, intelligent, and voluntary. State v.

Barnett (1991), 73 Ohio App.3d 244, 249, 596 N.E.2d 1101;        State v. Smith, Cuyahoga App.

No. 85616, 2005-Ohio-4702, at ¶14.

        {¶ 6} A guilty plea must be made knowingly, voluntarily, and intelligently or it is void.

State v. Sarkozy, 117 Ohio St.3d 86, 2008-Ohio-509, 881 N.E.2d 1224, ¶7.         In assessing the

voluntariness of a plea, this court must consider all of the relevant circumstances surrounding

it.   Brady v. United States (1970), 397 U.S. 742, 749, 90 S.Ct. 1463, 25 L.Ed.2d 747.        To

establish ineffective assistance of counsel in the context of a guilty plea, a

defendant must show that (1) counsel’s performance was deficient, and (2)

there is a reasonable probability that, but for counsel’s errors, the defendant
                                     5

would not have pleaded guilty, and instead would have insisted on going to

trial. Hill v. Lockhart (1985), 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203. In

other words, by pleading guilty, a defendant waives the right to claim

ineffective assistance of counsel, “except to the extent the defects complained

of caused the plea to be less than knowing and voluntary.” Barnett at 249.

      {¶ 7} Washington contends her trial counsel was ineffective because,

despite her repeated requests, he never met with her to discuss the evidence in

the case or any potential defenses prior to the plea hearing. She further

claims that she was “under great duress” because she was scheduled for cancer

surgery in the near future and she had recently been told that her prognosis

was “not promising.”    She maintains “the record reveals that she did not

understand that to which she was accused and convicted.”          The record,

however, does not support her arguments.

      {¶ 8} During the Crim.R. 11(C) colloquy, the court specifically asked

Washington if she was entering her plea knowingly and voluntarily and she

replied, “Yes, sir.” When the court asked her: “Do you have any questions

that you would care to ask me about what is going on here today?” she relied,

“No, sir.” Thus, the court afforded Washington the opportunity to inform the

court that she did not have a meaningful discussion with her counsel prior to

the plea hearing and she denied having any doubts about pleading guilty.
                                      6

She never mentioned any distress about her recent cancer diagnosis or her

scheduled surgery. She received a stay of her sentence so she could complete

her chemotherapy. She informed the court that she was entering her plea

knowingly, intelligently, and voluntarily. The court informed her at the plea

hearing that she faced one to five years in prison.

      {¶ 9} Washington argues that because she asserted her innocence and

claimed she was ignorant of any wrongdoing at the sentencing hearing, the

record demonstrates that she did not enter her plea knowingly and

voluntarily. However, the trial court considered her denials of knowledge of

all the facts and determined she lacked credibility. After initially denying

knowledge of any fraudulent misconduct, Washington admitted that she asked

her accountant to combine her income with her father’s income to obtain better

credit. Although she denied knowing this was illegal, she admitted that her

father is an aged individual who is unemployed and that Washington was his

caregiver. The court noted that it had previously sentenced Washington’s

father for his participation in the scheme and that his presentence

investigation report indicated he had no verifiable income. The court also

noted that Washington’s father “clearly knew what he was doing,” and that he

had told the court that the scheme was Washington’s idea.
                                     7

      {¶ 10} Upon further questioning, Washington acknowledged her limited

participation in the scheme. She admitted she was involved in the sale of a

house from her father to her son and that she obtained a profit from the sale,

which she claimed went back into the business rather than into her pocket.

The postal inspector informed the court that when Washington’s son

purchased the home from Washington’s father, the title company informed her

that Washington’s son was out of state and unemployed. The postal inspector

suggested that, based on this evidence, Washington was attempting to “flip”

the property from her father to her son to receive the difference in purchase

price as a profit.

      {¶ 11} The State presented evidence that Washington claimed an income

of $4,700 per month on mortgage documents although her tax returns

indicated an income of only $2,000 per month. Her father’s tax returns also

indicated an income even though he was unemployed. His pay stubs were

from a company called “Telemarketing, Inc.,” which never existed.

      {¶ 12} Under these circumstances, we agree with the trial court that

Washington’s claimed innocence is not credible and fails to demonstrate that

she was ignorant or unknowing when she entered her guilty plea.

Washington fails to demonstrate that her trial counsel’s ineffectiveness caused
                                        8

the plea to be less than knowing and voluntary. Therefore, the first and third

assignments of error are overruled.

                                   Sentencing

      {¶ 13} In the second assignment of error, Washington argues the trial

court abused its discretion by imposing a prison sentence when the sentencing

guidelines supported the imposition of a community control sanction.

Washington contends that the trial court abused its discretion by failing to

appropriately evaluate the purposes and principles of sentencing pursuant to

R.C. 2929.11 and balancing the seriousness and recidivism factors pursuant to

R.C. 2929.12. We disagree.

      {¶ 14} Appellate courts must apply a two-step approach when reviewing

a defendant’s sentence. State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912,

896 N.E.2d 124, ¶4.       “First, they must examine the sentencing court’s

compliance with all applicable rules and statutes in imposing the sentence to

determine whether the sentence is clearly and convincingly contrary to law.

If this first prong is satisfied, the trial court’s decision shall be reviewed under

an abuse-of-discretion standard.” Id.

      {¶ 15} In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d

470, the Ohio Supreme Court held that trial courts “have full discretion to

impose a prison sentence within the statutory range and are no longer
                                      9

required to make findings or give their reasons for imposing maximum,

consecutive, or more than the minimum sentences.” Id. at ¶ 100. In Kalish,

the Supreme Court explained that although Foster eliminated mandatory

judicial fact-finding for upward departures from the minimum, it left R.C.

2929.11 and 2929.12 intact and thus maintained the requirement that trial

courts consider them at sentencing. Id. at ¶13, citing State v. Mathis, 109

Ohio St.3d 54, 2006-Ohio-855, 846 N.E.2d 1, ¶38.

      {¶ 16} The Kalish court explained that R.C. 2929.11 and 2929.12 serve as

an “overarching guide for trial judges to consider in fashioning an appropriate

sentence” and that “trial court[s] have full discretion to determine whether the

sentence satisfies the overriding purpose of Ohio’s sentencing structure.”

Moreover, R.C. 2929.12 permits a trial court to exercise its discretion in

determining whether its sentence complies with the purposes of sentencing.

Id.   Assuming the trial court has complied with the applicable rules and

statutes, we review the sentence within the permissible statutory range for an

abuse of discretion. Id.

      {¶ 17} Further, the Supreme Court in Kalish held that even after Foster,

“where the trial court does not put on the record its consideration of R.C.

2929.11 and 2929.12, it is presumed that the trial court gave proper
                                     10

consideration to those statutes.” Id. at fn. 4, citing State v. Adams (1988), 37

Ohio St.3d 295, 525 N.E.2d 1361, paragraph three of the syllabus.

      {¶ 18} R.C. 2929.11(A) provides that when a trial court sentences an

offender for a felony conviction it must be guided by the “overriding purposes

of felony sentencing.” Those purposes are “to protect the public from future

crime by the offender and others and to punish the offender.” R.C. 2929.11(B)

states that a felony sentence “must be reasonably calculated to achieve the

purposes set forth under R.C. 2929.11(A), commensurate with and not

demeaning to the seriousness of the crime and its impact on the victim, and

consistent with sentences imposed for similar crimes committed by similar

offenders.” R.C. 2929.12 sets forth factors concerning the seriousness of the

offense and recidivism factors.

      {¶ 19} Because Washington pleaded guilty to a third degree felony, a

one-year prison term falls within the range set forth in R.C. 2929.14(A)(3).

There is no presumption in favor of community control sanctions.           R.C.

2929.13(C). The court informed her at her plea hearing that she faced a

prison sentence of one to five years.    Therefore, Washington’s sentence is

consistent with Ohio sentencing laws.

      {¶ 20} The trial court properly considered the factors in R.C. 2929.12 and

adhered to the purposes and principles of sentencing set forth in R.C. 2929.11.
                                     11

At the sentencing hearing, the court noted that Washington showed no

remorse for her crimes but attempted to minimize her culpability and blame

the crime on other people. The court also noted that Washington had a prior

felony conviction for a theft offense. Thus, although the court is no longer

required to make findings on the record to justify its sentence, the record

demonstrates that the court considered the applicable factors and principles

contained in R.C. 2929.11 and 2929.12, including recidivism factors and the

need to punish the offender. Accordingly, we find no abuse of discretion in the

minimum sentence of one year in prison.

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

      {¶ 22} Judgment affirmed.

      It is ordered that appellee recover of 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.
                                    12

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

Rule 27 of the Rules of Appellate Procedure.


______________________________________________
COLLEEN CONWAY COONEY, JUDGE

MARY J. BOYLE, P.J., and
SEAN C. GALLAGHER, J., CONCUR
