      [Cite as State v. McCann, 2011-Ohio-3339.]


                            IN THE COURT OF APPEALS OF OHIO
                               FOURTH APPELLATE DISTRICT
                                   LAWRENCE COUNTY

STATE OF OHIO,                                            :
                                                          :
      Plaintiff-Appellee,                                 :    Case No. 10CA12
                                                          :
      vs.                                                 :    Released: June 27, 2011
                                                          :
FLOYD C. McCANN,                                          :    DECISION AND JUDGMENT
                                                          :    ENTRY
      Defendant-Appellant.                                :

                                             APPEARANCES:

David Reid Dillon, South Point, Ohio, for Appellant.1

J.B. Collier, Jr., Lawrence County Prosecutor, and Robert C. Anderson, Lawrence
County Assistant Prosecutor, Ironton, Ohio, for Appellee.


McFarland, J.:

      {¶1} Appellant Floyd C. McCann appeals his conviction in the Lawrence

County Court of Common Pleas after he pled guilty to one count of felonious

assault, a felony of the second degree in violation of R.C. 2903.11(A)(2), with a

firearm specification. On appeal, Appellant raises two assignments of error,

arguing that 1) the trial court erred in accepting the Alford plea when there was no

evidence that Appellant knowingly shot the victim; 2) Appellant was deprived of

his right to effective assistance of counsel. Having reviewed the record, we find


      1
          The Court also permitted Appellant to file an additional assignment of error pro se.
Lawrence App. No. 10CA12                                                        2


that the trial court did not abuse its discretion in accepting Appellant’s Alford plea

and we overrule Appellant’s first assignment of error. We also find that Appellant

waived his claim of ineffective assistance of counsel and overrule his second

assignment of error. Accordingly, we affirm the judgment of the trial court.

                                       FACTS

      {¶2} On January 7, 2009, Mark Robinson (“Robinson”) heard a loud noise,

which he assumed was an animal being struck by a vehicle on the road in front of

his home. Robinson went to locate the downed animal, but found nothing. As he

turned back toward his home, Robinson was struck in the back by a .22 caliber

bullet. (Appellant’s Brief at 3.)

      {¶3} At that same time, Appellant had been shooting his .22 caliber rifle at a

box he had stationed on his front porch. (Id.) The backdrop of Appellant’s target

was Robinson’s property. Though ballistics were inconclusive, law enforcement

was able to establish the trajectory of a bullet that had traveled from Appellant’s

porch to the location where Robinson had been shot. (Id.) Robinson is now

paralyzed from the waist down.

      {¶4} Law enforcement arrested Appellant and the Lawrence County Grand

Jury indicted him for felonious assault and having weapons under disability.

Appellant was also serving a term of community control, which the state sought to

revoke. Appellant waived his statutory speedy trial rights.
Lawrence App. No. 10CA12                                                        3


      {¶5} The grand jury subsequently indicted Appellant on a single count of

felonious assault, with a firearm specification. After consolidating the two

indictments, Appellant filed several pre-trial motions. Eventually, Appellant

waived his statutory speedy trial rights relating to the second indictment.

      {¶6} In exchange for the state agreeing to dismiss the first indictment and

the pending motion to revoke Appellant’s community control, Appellant entered an

Alford plea to the second indictment. Appellant stipulated to the facts within the

indictment, but contested that he had knowingly shot Robinson. The trial court

questioned Appellant on his motives for entering such a plea, and ultimately

accepted his plea, finding him guilty of felonious assault with a firearm

specification. The trial court sentenced Appellant to 10 years of incarceration, and

Appellant now appeals his conviction.

                           ASSIGNMENTS OF ERROR

      I.  THE TRIAL COURT ERRED IN ACCEPTING THE ALFORD
      PLEA WHEN THERE WAS NO EVIDENCE THAT DEFENDANT
      KNOWINGLY SHOT THE ALLEGED VICTIM.

      II. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF
      COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH
      AMENDMENTS TO THE U.S. CONSTITUION AND ARTICLE I,
      SECTION 10 OF THE OHIO CONSTITUTION.

                                          I.

      {¶7} In his first assignment of error, Appellant argues that there was no

factual basis for his plea of guilty and the trial court should not have accepted his
Lawrence App. No. 10CA12                                                        4


plea. Specifically, Appellant contends that there was no evidence that he

knowingly shot Robinson. We disagree.

      {¶8} “[T]he decision to accept or refuse a guilty plea is within the sound

discretion of the trial court.” State v. Byrd, 4th Dist. No. 07CA29, 2008-Ohio-

3909, at ¶4, citing State v. Bronaka, 11th Dist. No. 2007-L-095, 2008-Ohio-1334,

at ¶20, Cleveland v. Curtis, 8th Dist. No. 89843, 2007-Ohio-5961, at ¶6. “As such,

we will not overrule a trial court’s judgment absent an abuse of discretion.” Byrd

at ¶4. “‘The term “abuse of discretion” connotes more than an error of law or

judgment; it implies that the court’s attitude is unreasonable, arbitrary or

unconscionable.’” (Citations omitted.) Blakemore v. Blakemore (1983), 5 Ohio

St.3d 217, 219, 450 N.E.2d 1140, quoting State v. Adams (1980), 62 Ohio St.2d

151, 157, 404 N.E.2d 144. “Under this highly deferential standard of review, we

may not simply substitute our judgment for that of the trial court.” Woody v.

Woody, 4th Dist. No. 09CA34, 2010-Ohio-6049, at ¶35, citing In re Jane Doe I

(1991), 57 Ohio St.3d 135, 137-138, 566 N.E.2d 1181. “Rather, we are limited to

determining whether considering the totality of the circumstances, the trial court

acted unreasonably, arbitrarily or unconscionably.” Woody at ¶35, citing Briganti

v. Briganti (1984), 9 Ohio St.3d 220, 222, 459 N.E.2d 896, citing Blakemore, 5

Ohio St.3d at 218-220.
Lawrence App. No. 10CA12                                                         5


      {¶9} In North Carolina v. Alford (1970), 400 U.S. 25, 91 S.Ct. 160, 27

L.Ed.2d 162, the court stated: “provides a method by which a defendant is able to

maintain his factual innocence yet enter a plea of guilty.” State v. Byrd, 4th Dist.

No. 07CA29, 2008-Ohio-3909, at ¶16. “‘A defendant who believes himself to be

innocent of the charges against him may rationally conclude that the evidence

against him is so incriminating that there is a significant likelihood that a jury

would find him guilty of the offense. Consequently, the defendant may rationally

conclude that accepting a plea bargain is in his best interests, since he will avoid

the risk of greater punishment if found guilty by a jury. When a defendant so

chooses to enter this plea, it is known as an Alford plea of guilty.’” (Citations

omitted.) Byrd at ¶16, quoting State v. Banjoko, 2nd Dist. No. 21978, 2008-Ohio-

402, at ¶ 12. The Court in Alford, however, cautioned that lower courts should not

accept a guilty plea coupled with a claim of innocence unless there is a factual

basis for the plea. Alford, 400 U.S. at 38, at fn. 10.

      {¶10} Regarding felonious assault, R.C. 2903.11(A)(2) provides that “[n]o

person shall knowingly * * * [c]ause or attempt to cause physical harm to another

* * * by means of a deadly weapon or dangerous ordnance.” “A person acts

knowingly, regardless of his purpose, when he is aware that his conduct will

probably cause a certain result or will probably be of a certain nature.” R.C.

2901.22(B). A finder of fact “may infer a defendant’s mental state from the
Lawrence App. No. 10CA12                                                        6


surrounding facts and circumstances.” State v. McCutcheon, 4th Dist. No.

04CA45, 2005-Ohio-4955, at ¶15, citing State v. Logan (1979), 60 Ohio St.2d 126,

131, 397 N.E.2d 1345.

        {¶11} Here, the parties stipulated to the facts supporting Appellant’s Alford

plea:

        “COURT:      You understand that if you still want to plea guilty under these

circumstances, the Court will require a statement of facts to be read into the record

to insure a factual basis to accept your plea? You aware of that?

        “[DEFENSE]:        Your Honor we are with the [Alford] plea. We would

accept the facts as they would appear on the indictment as to the felonious assault,

just contest the knowingly part of that.

        “COURT:      Understand. So is that the stipulation? [Defense counsel]?

        “[DEFENSE]:        Yes.

        “COURT:      [Prosecution]?

        “[PROSECUTION]:              Yes your honor.

        “COURT:      You heard your attorney Mr. McCown or Mr. McCann, are you

willing to stipulate that as well?

        “MCCANN: Yes.”

(Tr. at 8-9.)
Lawrence App. No. 10CA12                                                         7


      {¶12} The stipulated facts were succinct, but covered all elements of the

charged offense and specification:

      “FLOYD C. McCANN, on or about January 7, 2009, at Lawrence County,

Ohio, did knowingly cause or attempt to cause harm to Mark Robinson, by means

of a deadly weapon or dangerous ordnance, as defined in Section 2923.11 of the

Revised Code, to-wit: a firearm, in violation of Section 2903.11(A)(2) of the

Revised Code.

      “SPECIFICATION TO COUNT ONE:

      “The Grand Jurors further find and specify that the said Floyd C. McCann

had a firearm on or about his person or under his control while committing the

offense and displayed the firearm, brandished the firearm, indicated that he

possessed firearm or used it to facilitate the offense.

      “Said act occurred in Lawrence County, Ohio, and is contrary to Ohio

Revised Code Section 2903.11(A)(2), Felonious Assault, F2.”

      {¶13} Despite Appellant’s contention that he did not possess the requisite

mental state, the stipulated facts were sufficient for the trial court to find Appellant

guilty of the charged crime and specification. The trial court was not required to

find beyond a reasonable doubt that Appellant acted knowingly. The trial court

was not supposed to weigh the stipulated facts against Appellant’s contention that

he was innocent. Rather, the trial court needed only to insure that Appellant’s
Lawrence App. No. 10CA12                                                        8


Alford plea was supported by a factual basis, which it was. The stipulated facts

formed a factual basis for Appellant’s plea. Thus, Appellant’s argument is without

merit and the trial court’s plea was not unreasonable, arbitrary, or unconscionable.

Accordingly, we find that the trial court did not abuse its discretion and we

overrule Appellant’s first assignment of error.

                                         II.

      {¶14} In his second assignment of error, Appellant argues that he was denied

effective assistance of counsel because his trial counsel did not move to dismiss the

charges against him for violating statutory speedy trial limits. We find, however,

that Appellant waived this issue for appeal when he pled guilty.

      {¶15} “In order to establish ineffective assistance of counsel, an appellant

must show that counsel’s representation was both deficient and prejudicial.” State

v. Michael, 4th Dist. No. 09CA887, 2010-Ohio-5296, at ¶15, citing In re Sturm,

4th Dist. No. 05CA35, 2006-Ohio-7101, at ¶77; Strickland v. Washington (1984),

466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. “Deficient representation

means counsel’s performance was below an objective standard of reasonableness.

To show prejudice, an appellant must show it is reasonably probable that, except

for the errors of his counsel, the proceeding’s outcome would have been different.”

(Citations omitted). Michael at ¶15. We “must indulge a strong presumption that

counsel’s conduct falls within the wide range of reasonable professional assistance;
Lawrence App. No. 10CA12                                                         9


that is, the defendant must overcome the presumption that, under the

circumstances, the challenged action might be considered sound trial strategy.”

State v. Hankison, 4th Dist. No. 09CA3326, 2010-Ohio-4617, at ¶105, citing

Strickland, 466 U.S. at 689 (internal quotation omitted). “‘Moreover, the strategic

decision of a trial attorney will not form the basis of a claim of ineffective

assistance of counsel, even if there may have been a better strategy available.’”

Id., citing State v. Komora (Apr. 4, 1997), 11th Dist. No. 96-G-1994, citing State v.

Clayton (1980), 62 Ohio St.2d 45, 49, 402 N.E.2d 1189.

      {¶16} In support of his second assignment of error, Appellant relies upon

State v. Jensen, 4th Dist. No. 07CA21, 2008-Ohio-5228. In Jensen, we held that

an appellant may establish that he received constitutionally ineffective assistance

from counsel if he could prove that a motion to dismiss for a speedy trial violation

would have been successful. Jensen at ¶10. However, Jensen is distinguishable

from the present case because the appellant in Jensen proceeded to trial and was

convicted by a jury of the charges against him. By contrast, in the instant case,

Appellant expressly waived his statutory right to a speedy trial, and then pled

guilty.

      {¶17} “[W]here an accused enters a plea of guilty he waives his right to raise

the denial of his right to a speedy trial on appeal.” Montpelier v. Greeno (1986),

25 Ohio St.3d 170, 170, 495 N.E.2d 581. See, also, State v. Kelley (1991), 57 Ohio
Lawrence App. No. 10CA12                                                                      10


St.3d 127, 130, 566 N.E.2d 658 (reaffirming the holding in Greeno); State v.

Rogers (Mar. 23, 1994), 4th Dist. No. 548; State v. Burgin (Oct. 15, 1993), 4th

Dist. No. 1949; State v. Floyd (Oct. 13, 1993), 4th Dist. No. 92CA2102.

Moreover, an appellant “‘may not * * * raise independent claims relating to the

deprivation of constitutional rights that occurred prior to the entry of the guilty

plea.’” State v. Spates (1992), 64 Ohio St.3d 269, 595 N.E.2d 351, quoting Tollett

v. Henderson (1973), 411 U.S. 258, 267, 93 S.Ct. 1602, 36 L.Ed.2d 235. This

Court’s inquiry “is limited * * * and cannot address issues which were previously

waived by the defendant.” Kelley at 130.

      {¶18} “A plea of guilty constitutes a complete admission of guilt * * * and

waives the right to claim that the accused was prejudiced by constitutionally

ineffective counsel, except to the extent the defects complained of caused the plea

to be less than knowing and voluntary.”2 Floyd, citing State v. Barnett (1991), 73

Ohio App.3d 244, 248-249, 596 N.E.2d 1101. See, also, Rogers; Burgin. Other

jurisdictions have held the same. See State v. Miller, 8th Dist. No. 94790, 2011-

Ohio-928, at ¶15-16 (noting that a guilty plea waives not only a defendant’s right

to challenge his conviction on statutory speedy trial grounds, but also waives a

claim of ineffective assistance of counsel based upon speedy trial issues); State v.

Goodwin, 8th Dist. No. 93249, 2010-Ohio-1210, at ¶10-11; State v. Harvey, 3d


      2
          Appellant does not raise the issue of whether his plea was knowing and voluntary.
Lawrence App. No. 10CA12                                                       11


Dist. No. 1-09-48, 2010-Ohio-1627, at ¶30; State v. Mayle, 5th Dist. No. CA 07-3,

2008-Ohio-286, at ¶39; State v. Melampy, 12th Dist. No. CA2007-04-008, 2008-

Ohio-5838, at ¶22. But, compare, State v. Matland, 7th Dist. No. 09-MA-115,

2010-Ohio-6585, at ¶17 (acknowledging that permitting a defendant to enter a plea

after expiration of the speedy trial time would be ineffective assistance of counsel

and could affect the knowing and voluntary nature of the plea). Thus, Appellant’s

guilty plea waived his claim to ineffective assistance of counsel based upon speedy

trial issues. As such, we will not address the merit of Appellant’s claim and we

overrule his second assignment of error.

                                                       JUDGMENT AFFIRMED.


Kline, J., concurring.

      {¶19} I respectfully concur in judgment only.

      {¶20} Initially, I believe that McCann has waived the argument under his

first assignment of error. Here, McCann entered an Alford plea, which “has the

same legal effect as a guilty plea.” State v. Schmidt, Mercer App. No. 10-10-04,

2010-Ohio-4809, at ¶13, citing State v. Vogelsong, Hancock App. No. 5-06-60,

2007-Ohio-4935, at ¶15. See, also, State v. Anderson, Lake App. No. 2005-L-178,

2006-Ohio-5167, at ¶8. And significantly, “[a] guilty plea waives all appealable

orders except for a challenge as to whether the defendant made a knowing,

intelligent, and voluntary acceptance of the plea.” State v. Bower, Scioto App. No.
Lawrence App. No. 10CA12                                                        12


06CA3058, 2006-Ohio-6472, at ¶20, citing State v. Spates, 64 Ohio St.3d 269,

272-73, 1992-Ohio-130. I recognize that “an Alford plea places a heightened duty

upon the trial court to ensure that the defendant’s rights are protected and that

entering the plea is a rational decision on the part of the defendant.” State v.

Carey, Union App. No. 14-10-25, 2011-Ohio-1998, at ¶7 (citation omitted). But

even under this heightened standard, McCann does not argue that his plea was less

than knowing, intelligent, and voluntary. Instead, McCann essentially advances an

argument based on the sufficiency of the evidence against him.

      {¶21} “A guilty plea waives a defendant’s right to challenge sufficiency or

manifest weight of the evidence.” State v. Hill, Cuyahoga App. No. 90513, 2008-

Ohio-4857, at ¶6, citing State v. Siders (1992), 78 Ohio App.3d 699, 701. And

because an Alford plea has the same legal effect as a guilty plea, I would find that

McCann has waived the sufficiency-of-the-evidence argument under his first

assignment of error.

      {¶22} As to the second assignment of error, I agree with the reasoning in

State v. Matland, Mahoning App. No. 09-MA-115, 2010-Ohio-6585.                        I

acknowledge that, according to the Supreme Court of Ohio, “a guilty plea waives a

defendant’s right to raise the statutory right to a speedy trial on appeal.” Village of

Montpelier v. Greeno (1986), 25 Ohio St.3d 170, 172. But in a footnote, the court

also noted that “[a] more colorable claim would be made if issues of ineffective
Lawrence App. No. 10CA12                                                      13


counsel, involuntary plea, coercive plea bargain, etc. were present.” Id. at 172, fn.

5 (emphasis added). Therefore, I agree that “allowing a defendant to enter a guilty

plea after speedy trial time had expired would amount to ineffective assistance of

counsel, and thus, could affect the knowing and voluntary nature of the plea.”

Matland at ¶17 (internal quotation omitted). See, also, State v. Gray, Montgomery

App. No. 20980, 2007-Ohio-4549, at ¶21. Nevertheless, because his speedy-trial

rights were not violated, McCann’s ineffective-assistance-of-counsel claim must

fail.

        {¶23} Accordingly, I respectfully concur in judgment only.
Lawrence App. No. 10CA12                                                         14


                                  JUDGMENT ENTRY

      It is ordered that the JUDGMENT BE AFFIRMED and that the 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
Lawrence County Common Pleas Court to carry this judgment into execution.

       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR
THIS COURT, it is temporarily continued for a period not to exceed sixty days
upon the bail previously posted. The purpose of a continued stay is to allow
Appellant to file with the Supreme Court of Ohio an application for a stay during
the pendency of proceedings in that court. If a stay is continued by this entry, it
will terminate at the earlier of the expiration of the sixty day period, or the failure
of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the
forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses
the appeal prior to expiration of sixty days, the stay will terminate as of the date of
such dismissal.

       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
       Exceptions.

Abele, J.: Concurs in Judgment and Opinion.
Kline, J.: Concurs in Judgment Only with Opinion.

                                               For the Court,


                                               BY: _________________________
                                                   Matthew W. McFarland, Judge

                               NOTICE TO COUNSEL
             Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
