[Cite as State v. Allen, 2017-Ohio-2831.]


STATE OF OHIO                      )                   IN THE COURT OF APPEALS
                                   )ss:                NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT                   )

STATE OF OHIO                                          C.A. No.      27494
                                                                     28213
        Appellee

        v.
                                                       APPEAL FROM JUDGMENT
TERRANCE ALLEN                                         ENTERED IN THE
                                                       COURT OF COMMON PLEAS
        Appellant                                      COUNTY OF SUMMIT, OHIO
                                                       CASE No.   CR 2013 01 0276 (A)

                                  DECISION AND JOURNAL ENTRY

Dated: May 17, 2017



        CALLAHAN, Judge.

        {¶1}     Defendant-Appellant, Terrance Allen, appeals from his convictions in the Summit

County Court of Common Pleas. This Court affirms.

                                                  I.

        {¶2}     In 2013, Allen’s four-year-old son tragically shot himself in the head while riding

in the backseat of Allen’s car. When the police initially spoke with Allen, he claimed that there

was no gun in the car. The police later found the gun the victim had used under the passenger’s

seat of the car, tucked behind several items. The police learned that Allen was under disability,

but, a year earlier, had convinced a woman with whom he was having a sexual relationship to

purchase the gun and give it to him, such that it was registered in her name. It is undisputed that

the victim was playing with the gun in Allen’s house the week before he shot himself. Allen’s

wife, his son, and his step-son were temporarily living with him, despite the fact that his wife had

obtained a protection order against him.
                                                  2


       {¶3}    A grand jury indicted Allen on charges of involuntary manslaughter, with child

endangering as its predicate offense; tampering with evidence; child endangering; having a

weapon under disability; and violating a protection order. Following a period of discovery,

Allen retracted his initial plea and signed a written guilty plea. The plea agreement provided that

the State would dismiss the charges of tampering with evidence and child endangering in

exchange for Allen pleading guilty to his three remaining charges. It also provided that the State

would not make a sentencing recommendation, but that both sides would present arguments after

reviewing the pre-sentence investigation report. The court ultimately accepted Allen’s guilty

plea and imposed an eight-year prison sentence.

       {¶4}    Subsequently, Allen, acting pro se, attempted to file two delayed appeals from his

judgment of conviction. Because his filings were procedurally defective, however, this Court

denied his motions for delayed appeal. See State v. Allen, 9th Dist. Summit No. 27111 (Oct. 29,

2013); State v. Allen, 9th Dist. Summit No. 27254 (Mar. 19, 2014). Allen then filed a motion to

withdraw his guilty plea, and the State opposed the motion. The trial court denied Allen’s

motion, but Allen did not initially appeal from the denial.

       {¶5}    Following the denial of his motion to withdraw, Allen once again sought to appeal

from his original judgment of conviction. This Court granted his motion for delayed appeal and

appointed him appellate counsel, but his counsel filed a brief pursuant to Anders v. California,

386 U.S. 738 (1967), and sought to withdraw from representation. Allen then responded with a

pro se brief on the merits, and the State responded in opposition. Upon review, this Court

determined that arguable issues for appeal existed. As such, this Court granted first appointed

counsel’s motion to withdraw and appointed Allen new counsel.
                                                 3


       {¶6}    Allen’s newly appointed counsel filed another motion for delayed appeal, seeking

to challenge the trial court’s denial of Allen’s motion to withdraw his plea. This Court granted

the motion for delayed appeal and ordered Allen’s two appeals consolidated for purposes of

briefing and decision. See State v. Allen, 9th Dist. Summit Nos. 27494 & 28213 (May 20, 2016).

       {¶7}    Allen’s appeals are now before this Court and raise six assignments of error for

our review.    For ease of analysis, this Court rearranges and consolidates several of the

assignments of error.

                                                II.

                              ASSIGNMENT OF ERROR NO. 2

       THE TRIAL COURT ERRED IN ACCEPTING APPELLANT’S GUILTY
       PLEAS BECAUSE THEY WERE NOT KNOWINGLY, VOLUNTARILY, AND
       INTELLIGENTLY ENTERED.

                              ASSIGNMENT OF ERROR NO. 3

       THE TRIAL COURT ERRED IN DENYING THE PRO SE MOTION TO
       WITHDRAW THE GUILTY PLEAS[.]

       {¶8}    In his second and third assignments of error, Allen argues that the trial court erred

by accepting his plea and denying his motion to withdraw it. He argues that he did not

knowingly, voluntarily, and intelligently enter his plea because the trial court failed to properly

explain the nature of his charges and his appellate rights. He further argues that the court abused

its discretion when it summarily denied his pro se motion to withdraw, given that the court had

repeatedly refused to appoint him counsel. Upon review, this Court concludes that Allen’s

second and third assignments of error are meritless.

       {¶9}    “‘When a defendant enters a plea in a criminal case, the plea must be made

knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of

the plea unconstitutional under both the United States Constitution and the Ohio Constitution.’”
                                                 4


State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶ 7, quoting State v. Engle, 74 Ohio St.3d

525, 527 (1996). “To determine whether a plea is being made knowingly, intelligently, and

voluntarily, the court must conduct a colloquy with the defendant before accepting a guilty plea

in a felony case.” State v. Stoddard, 9th Dist. Summit No. 26663, 2013-Ohio-4896, ¶ 5.

       {¶10} Under Crim.R. 11(C)(2)(a), a trial court must “[d]etermin[e] that [a] defendant is

making [his] plea voluntarily, with understanding of the nature of the charges * * *.” The

subsection sets forth “nonconstitutional notifications, [so] substantial compliance by a trial court

during a plea colloquy is sufficient.” State v. Jordan, 9th Dist. Summit No. 27690, 2015-Ohio-

4354, ¶ 5, citing Veney at ¶ 15. “‘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. Rusu, 9th Dist. Summit No. 25597, 2012-Ohio-2613, ¶ 6, quoting State

v. Nero, 56 Ohio St.3d 106, 108 (1990). “[A] defendant who challenges his guilty plea on the

basis that it was not knowingly, intelligently, and voluntarily made must show a prejudicial

effect. The test is whether the plea would have otherwise been made.” (Internal citations

omitted.) Nero at 108.

       {¶11} Allen argues that the trial court failed to substantially comply with Crim.R.

11(C)(2)(a) during his plea colloquy because it did not fairly inform him of the nature of his

charges. He notes that the court told him his child endangering charge was being dismissed, but

then nonetheless required him to admit that he caused his son’s death “as a result of committing

the offense of endangering a child.”         He alleges, absent further elaboration, the court’s

explanation of the charges was inadequate.

       {¶12} The record does not support Allen’s contention that he was not adequately

informed of the nature of his charges. Allen’s written plea agreement specified that he agreed to
                                               5


plead guilty to three charges, including involuntary manslaughter, in exchange for the State

dismissing two charges, including child endangering. The agreement provided that he had read

the agreement, understood it, and understood “the nature of [his] charges and the possible

defenses [he] might have.” It further provided that, by pleading guilty to the three enumerated

charges, he “admit[ted] committing the offense(s) and [would] tell the Court the facts and

circumstances of [his] guilt.” Both Allen and his attorney signed the agreement.

       {¶13} During the plea colloquy, the prosecutor outlined the plea agreement, and defense

counsel confirmed that (1) he had “gone over the plea agreement, every word of it, every inch of

it” with Allen, and (2) Allen’s plea was “being made knowingly, voluntarily and intelligently * *

* after consultation with counsel * * *.” The trial court then confirmed with Allen that he

understood the plea as well as the original charges against him. After Allen affirmatively

responded to all of the court’s questions, the court found that he understood the nature of the

charges against him. The court stated:

       So here on the 23rd day of January, it’s alleged that you did cause the child’s
       death as a result of committing the offense of endangering a child.

       With those thoughts in mind, [Allen], how do you plead to involuntary
       manslaughter?

Allen then responded that he was guilty, and the court proceeded to ask him about his two other

charges.

       {¶14} Allen has not shown that the trial court failed to substantially comply with

Crim.R. 11(C)(2)(a). As noted, the State agreed to dismiss Allen’s child endangering charge in

exchange for his guilty plea. Because child endangering was the predicate offense for his

involuntary manslaughter charge, however, Allen was still required to admit, as part of that

charge, that he caused his son’s death as a result of having committed the offense of child
                                                 6


endangering. There is no indication in the record that Allen failed to appreciate the nature of his

involuntary manslaughter charge. Moreover, even assuming he did, he has not set forth any

argument that, had he possessed a better understanding of his charges, he would not have

pleaded guilty. See Nero, 56 Ohio St.3d at 108. We, therefore, reject his argument that his plea

is invalid because the trial court failed to substantially comply with Crim.R. 11(C)(2)(a).

       {¶15} Allen also argues that his plea is invalid because the trial court failed to properly

advise him of his appellate rights when he entered into it. This Court has held, however, “that

‘[t]he trial court’s duty to advise a defendant of his right to appeal[] does not arise until

sentencing and, therefore, has no effect upon whether the defendant’s guilty plea was entered

knowingly, voluntarily, and intelligently.’” (Alterations sic.) Jordan, 2015-Ohio-4354, at ¶ 6,

quoting State v. Meredith, 9th Dist. Summit No. 25198, 2011-Ohio-1517, ¶ 6. Allen attempts to

distinguish the foregoing case law on the basis that, here, the trial court did broach the subject of

his appellate rights at the plea hearing, but mistakenly told him he had no right to appeal.

According to Allen, once a trial court decides to discuss appellate rights at a plea hearing, it must

do so “with substantial accuracy.”

       {¶16} Allen fails to cite any case law in support of his substantial accuracy argument.

See App.R. 16(A)(7). Even assuming that he is correct, however, he still has not explained how

the trial court’s error, if any, prejudiced him. See Nero at 108. He has not claimed that, had he

better understood his appellate rights, he would have chosen to go to trial. See App.R. 16(A)(7).

Nor has he shown that the court’s statements actually deprived him of his appellate rights, given

that his two appeals are currently before this Court for a merits review. Absent a showing of

prejudice, this Court rejects Allen’s argument. See Crim.R. 52(A).
                                                 7


       {¶17} Finally, Allen argues that the trial court abused its discretion when it denied his

post-sentence motion to withdraw his plea. “A defendant filing a post-sentence motion to

withdraw a guilty plea ‘has the burden of establishing the existence of manifest injustice.’” State

v. Robinson, 9th Dist. Summit No. 28065, 2016-Ohio-844, ¶ 11, quoting State v. Smith, 49 Ohio

St.2d 261 (1977), paragraph one of the syllabus. “Under the manifest injustice standard, a post-

sentence ‘withdrawal motion is allowable only in extraordinary cases.’” State v. Brown, 9th

Dist. Summit No. 24831, 2010-Ohio-2328, ¶ 9, quoting Smith at 264.

       {¶18} The only basis upon which Allen sought to withdraw his plea was that the trial

court failed to inquire about his citizenship status at his plea hearing. The trial court rejected

Allen’s motion because (1) he failed to set forth evidence that he was not, in fact, a United States

citizen; (2) he failed to attach the transcript from his plea hearing; and (3) his argument was

barred by res judicata, as it could have been raised on direct appeal. Allen argues that the court’s

decision amounted to an abuse of discretion because he had to file his motion without the benefit

of counsel. He notes that the trial court repeatedly rejected his post-sentence requests for

counsel. Had he been appointed counsel, Allen argues, he could have secured a transcript of the

plea hearing and amended his motion to withdraw so as to include other meritorious arguments.

       {¶19} The transcript from the plea hearing shows that the trial court did, in fact, confirm

Allen’s United States citizenship. Accordingly, Allen’s motion to withdraw lacked merit, and

the trial court properly denied it; albeit for a different reason. See State v. Calise, 9th Dist.

Summit No. 26027, 2012-Ohio-4797, ¶ 42. To the extent Allen argues that the trial court erred

by denying his motions for appointed counsel, he has not separately assigned that argument as

error. As such, we decline to address it. See, e.g., State v. Bravo, 9th Dist. Summit No. 27881,

2017-Ohio-272, ¶ 26. Allen’s second and third assignments of error are overruled.
                                                8


                              ASSIGNMENT OF ERROR NO. 1

       THE TRIAL COURT COMMITTED PLAIN ERROR AND DENIED DUE
       PROCESS BY CONVICTING MR. ALLEN OF INVOLUNTARY
       MANSLAUGHTER AFTER THE PREDICATE OFFENSE FOR THAT
       CHARGE WAS DISMISSED BY NEGOTIATED PLEA. THE CONVICTION
       WAS ALSO A MATERIAL BREACH OF THE BARGAINED PLEA TO MR.
       ALLEN’S PREJUDICE.

       {¶20} In his first assignment of error, Allen argues that the trial court committed plain

error when it convicted him of involuntary manslaughter in the absence of a predicate offense.

He further argues that his conviction on the involuntary manslaughter charge amounted to a

breach of his plea agreement. This Court rejects both propositions.

       {¶21} As previously noted, a portion of Allen’s plea agreement provided that the State

would dismiss his child endangering charge in exchange for his pleading guilty to involuntary

manslaughter. There is no dispute that the child endangering charge served as the predicate

offense for the involuntary manslaughter charge.        Consequently, when pleading guilty to

involuntary manslaughter, Allen was required to admit that he caused his son’s death as a result

of committing the offense of child endangering. He was not, however, convicted of child

endangering. Consistent with his plea agreement, the court dismissed that charge.

       {¶22} Allen requests that this Court vacate his conviction for involuntary manslaughter.

He argues that the trial court could not convict him of involuntary manslaughter in the absence of

its predicate offense (i.e., child endangering). Without the predicate offense, Allen argues, there

was insufficient evidence to support the involuntary manslaughter charge. He further claims that

the court must have relied on the child endangering count to support his involuntary

manslaughter conviction, so the child endangering count was not dismissed in its entirety.

Because his plea agreement provided that the child endangering count would be dismissed in its
                                                9


entirety, he asserts that his involuntary manslaughter conviction amounts to a breach of his plea

agreement.

       {¶23} This Court has held that “‘[a] defendant who enters a knowing, voluntary, and

intelligent guilty plea waives all nonjurisdictional defects for the purpose of future

proceedings[,]’ * * * includ[ing] the right to challenge the sufficiency of the evidence underlying

the conviction to which he pled guilty.” State v. Phillips, 9th Dist. Summit No. 24198, 2008-

Ohio-6795, ¶ 6, quoting State v. Niepsuj, 9th Dist. Summit No. 23929, 2008-Ohio-1050, ¶ 7.

Allen’s argument here does not concern the knowing, voluntary, or intelligent nature of his plea.

Instead, he attacks the validity of his manslaughter conviction on the basis that it is legally

flawed. Allen fails to explain how his argument is exempt from the general rule that guilty pleas

waive all nonjurisdictional defects. See App.R. 16(A)(7); Cardone v. Cardone, 9th Dist. Summit

No. 18349, 1998 WL 224934, *8 (May 6, 1998). His brief merely cites the plain error standard

and presupposes that his argument is properly before this Court. Moreover, even assuming he

did not waive his argument by pleading guilty, Allen has not shown that it has merit.

       {¶24} Both the United States Supreme Court and the Ohio Supreme Court have

recognized that a conviction on a compound offense may stand although a jury acquits on its

predicate offense. State v. Gardner, 118 Ohio St.3d 420, 2008-Ohio-2787, ¶ 81, quoting United

States v. Powell, 469 U.S. 57, 65 (1984). Allen has not explained why a different rule should

apply in the context of plea bargains. See App.R. 16(A)(7); Cardone at *8. Although he did not

plead guilty to child endangering, he was indicted on that charge and admitted to the conduct

underlying it for the sole purpose of pleading guilty to involuntary manslaughter. Thus, this is

not an instance where the State failed to present any legally adequate predicate offense to support

the compound offense. Compare State v. Adkins, 136 Ohio App.3d 765, 783 (3d Dist.2000).
                                                 10


Absent any further argument or supporting case law from Allen, this Court will not conclude that

the involuntary manslaughter portion of his plea is invalid. See App.R. 16(A)(7); Cardone at *8.

       {¶25} This Court also rejects Allen’s argument that his conviction for involuntary

manslaughter amounts to a breach of his plea agreement. Allen was not convicted of child

endangering. Although he was required to admit to the conduct underlying that charge, no child

endangering conviction ensued. The trial court dismissed that charge, consistent with the terms

of Allen’s plea agreement. Thus, Allen has not shown that a breach occurred. Allen’s first

assignment of error is overruled.

                               ASSIGNMENT OF ERROR NO. 4

       THE TRIAL COURT ERRED AS A MATTER OF LAW WHEN IT IMPOSED
       SENTENCE UPON MR. ALLEN FOR INVOLUNTARY MANSLAUGHTER[.]

       {¶26} In his fifth assignment of error, Allen argues that the trial court erred when it

sentenced him to serve eight years in prison on his involuntary manslaughter conviction. This

Court disagrees.

       {¶27} In reviewing a felony sentence, “[t]he appellate court’s standard for review is not

whether the sentencing court abused its discretion.” R.C. 2953.08(G)(2). “[A]n appellate court

may vacate or modify a felony sentence on appeal only if it determines by clear and convincing

evidence” that: (1) “the record does not support the trial court’s findings under relevant statutes,”

or (2) “the sentence is otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-

Ohio-1002, ¶ 1. Clear and convincing evidence is that “which will produce in the mind of the

trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v.

Ledford, 161 Ohio St. 469 (1954), paragraph three of the syllabus.

       {¶28} Allen argues that his eight-year sentence is contrary to law because the trial court

(1) could not legally sentence him on a count that was not supported by a predicate offense, and
                                                 11


(2) failed to follow the dictates of R.C. 2929.11 in fashioning his sentence.1 With regard to the

latter proposition, he argues that the court neglected to impose upon him the minimum sanction

necessary to achieve the principles and purposes of felony sentencing.

       {¶29} As previously discussed, Allen has failed to demonstrate that his involuntary

manslaughter conviction is legally unsound due to the trial court’s having dismissed the

predicate offense underlying it. As such, this Court rejects his related argument that the trial

court could not sentence him on that offense.

       {¶30} As to Allen’s statutory argument, R.C. 2929.11(A) directs sentencing courts to be

“guided by the overriding purposes of felony sentencing.” It defines those purposes as the need

“to protect the public from future crime by the offender and others and to punish the offender

using the minimum sanctions that the court determines accomplish those purposes without

imposing an unnecessary burden on state or local government resources.” R.C. 2929.11(A).

“‘[W]here the trial court does not put on the record its consideration of [R.C.] 2929.11 * * *, it is

presumed that the trial court gave proper consideration to [the] statute[].’” State v. Steidl, 9th

Dist. Medina No. 10CA0025-M, 2011-Ohio-2320, ¶ 13, quoting State v. Kalish, 120 Ohio St.3d

23, 2008-Ohio-4912, ¶ 18, fn. 4, abrogated on other grounds, State v. Marcum, 146 Ohio St.3d

516, 2016-Ohio-1002.

       {¶31} Upon review, the record does not support Allen’s contention that the trial court

failed to consider R.C. 2929.11 when it sentenced him. Allen’s sentencing entry specifically

provides that the court considered the principles and purposes of sentencing set forth in R.C.

2929.11. During the sentencing hearing, the court also repeatedly stated that it was considering



1
  Although Allen’s argument is replete with citations to R.C. 2929.12, the merits of his argument
relate to R.C. 2929.11.
                                                12


those principles and purposes. The court noted that Allen was under a disability when he

manipulated another individual to purchase a gun on his behalf. The court further noted that,

even after Allen became aware that his four-year old son had been playing with the gun, he failed

to take measures to properly store and secure it such that his son could no longer gain access to

it. The court drew attention to the fact that Allen had refused to take responsibility for the gun,

telling the police that there was no gun in his car and hiding it under the front passenger’s seat.

The court concluded that a sentence in excess of the minimum was necessary to protect the

public from Allen, to deter similar conduct, and to punish him for his behavior. Thus, the record

reflects that the trial court considered R.C. 2929.11 in fashioning Allen’s sentence. Allen’s

fourth assignment of error is overruled.

                              ASSIGNMENT OF ERROR NO. 5

       THE TRIAL COURT COMMITTED PLAIN ERROR WHEN IT
       CONCURRENTLY SENTENCED MR. ALLEN TO ALLIED OFFENSES OF
       SIMILAR IMPORT[.]

       {¶32} In his fifth assignment of error, Allen argues that the trial court erred when it

sentenced him to allied offenses of similar import. Specifically, he argues that his convictions

for involuntary manslaughter and having a weapon under disability should have merged. This

Court does not agree.

       {¶33} The failure to timely assert an allied offenses objection limits appellate review of

that issue to plain error. State v. Dodson, 9th Dist. Medina No. 16CA0020-M, 2017-Ohio-350, ¶

10, quoting State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, ¶ 3. To demonstrate plain

error, “an accused has the burden to demonstrate a reasonable probability that the convictions are

for allied offenses of similar import committed with the same conduct and without a separate

animus * * *.” Rogers at ¶ 3. “[A] defendant whose conduct supports multiple offenses may be
                                                13


convicted of all the offenses if any one of the following is true: (1) the conduct constitutes

offenses of dissimilar import, (2) the conduct shows that the offenses were committed separately,

or (3) the conduct shows that the offenses were committed with separate animus.” State v. Ruff,

143 Ohio St.3d 114, 2015-Ohio-995, paragraph three of the syllabus.

       {¶34} During the sentencing hearing, the prosecutor informed the court that Allen had

procured the gun at issue in this case the year before his son’s tragic death. The prosecutor

described how Allen went to a sporting goods store with a woman with whom he was having a

sexual relationship. Believing that Allen meant to teach her to use the gun, the woman bought

the gun using Allen’s money. Allen then kept the gun, even though it was registered in the

woman’s name and he was under a disability. The prosecutor described how Allen’s son found

the gun in Allen’s home the week before he died. At that time, Allen’s wife informed him that

she did not want a gun in the house, and he assured her that the gun was gone and no longer in

the house. Nevertheless, one week later, their son found the gun and shot himself with it.

       {¶35} Allen argues that his convictions for involuntary manslaughter and having a

weapon under disability are allied offenses of similar import because they both resulted in a

single instance of harm involving the same victim. Allen has not shown, however, that the State

relied on the same conduct to support both offenses. See Ruff at paragraph three of the syllabus;

State v. Webb, 9th Dist. Summit No. 27424, 2015-Ohio-2380, ¶ 32. It was the State’s position

that Allen procured a gun well before he caused his son’s death by not securing it. The fact that

Allen had the gun at all while under disability was sufficient conduct to support that offense. His

later failure to secure the gun and to allow his son access to it amounted to separate conduct.

Thus, he has not met his plain error burden. See Rogers at ¶ 3 (accused must demonstrate a
                                                14


reasonable probability that his convictions are for allied offenses of similar import committed

with the same conduct). Allen’s fifth assignment of error is overruled.

                              ASSIGNMENT OF ERROR NO. 6

         MR. ALLEN WAS DENIED FEDERAL AND STATE CONSTITUTIONAL
         RIGHTS TO THE EFFECTIVE ASSISTANCE OF COUNSEL[.]

         {¶36} In his sixth assignment of error, Allen argues that he received ineffective

assistance of counsel. He argues that his trial counsel failed to (1) seek an acquittal on his

involuntary manslaughter count, which lacked a predicate offense; (2) file a motion to suppress;

and (3) object on the basis of spousal privilege when Allen’s wife made statements at his

sentencing hearing. For the reasons outlined below, this Court rejects Allen’s assignment of

error.

         {¶37} As previously noted, “‘[a] defendant who enters a knowing, voluntary, and

intelligent guilty plea waives all nonjurisdictional defects for the purpose of future

proceedings.’” Phillips, 2008-Ohio-6795, at ¶ 6, quoting Niepsuj, 2008-Ohio-1050, at ¶ 7. A

guilty plea “‘represents a break in the chain of events that preceded it in the criminal process,’”

such that a defendant cannot then “‘challenge the propriety of any action taken by a trial court or

trial counsel prior to that point in the proceedings unless it affected the knowing and voluntary

character of the plea.’” State v. Franco, 9th Dist. Medina No. 07CA0090-M, 2008-Ohio-4651, ¶

28, quoting State v. Gegia, 157 Ohio App.3d 112, 2004-Ohio-2124, ¶ 18 (9th Dist.).

         {¶38} Allen once again fails to explain why, by pleading guilty, he has not waived at

least a portion of his ineffective assistance argument. See App.R. 16(A)(7). Any error his

counsel might have committed by not filing either a motion for acquittal or a motion to suppress

would have occurred before the trial court accepted Allen’s guilty plea. Thus, Allen waived

those errors unless they “‘affected the knowing and voluntary character of [his] plea.’” See
                                                 15


Franco at ¶ 28, quoting Gegia at ¶ 18. He makes no argument that his counsel’s alleged failure

to seek an acquittal affected the knowing and voluntary character of his plea, and his brief only

contains a blanket statement that his counsel’s failure to file a motion to suppress “would

necessarily affect the knowing and voluntary nature of his pleas.” Moreover, in his reply brief,

Allen did not respond to the State’s assertion that he waived his ineffective assistance arguments

by pleading guilty.    Because Allen has not shown that the two errors his counsel allegedly

committed before he pleaded guilty affected his plea, this Court concludes that Allen’s plea

resulted in a waiver of those arguments. See Franco at ¶ 28, quoting Gegia at ¶ 18. See also

State v. Graham, 9th Dist. Summit No. 28153, 2017-Ohio-908, ¶ 12. Thus, this Court limits its

review to Allen’s third argument, regarding his counsel’s failure to object during the sentencing

hearing.

       {¶39} To establish a claim of ineffective assistance of counsel, an appellant must

demonstrate “(1) deficient performance by 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. Mundt, 115 Ohio

St.3d 22, 2007-Ohio-4836, ¶ 62. “In the context of a guilty plea, the defendant must demonstrate

that there is a reasonable probability that, but for his counsel’s error, he would not have pleaded

guilty and would have insisted on going to trial.”        State v. Evans, 9th Dist. Medina No.

09CA0049-M, 2010-Ohio-3545, ¶ 4.

       {¶40} At Allen’s sentencing hearing, his wife was allowed to address the court. She

described the wonderful qualities that her young son possessed, addressed the pain she

experienced as a result of Allen’s actions, portrayed Allen as a threat to society, and asked the

court to consider his criminal history and actions in sentencing him. Allen argues that his
                                                16


counsel should have objected to her statements because, pursuant to the spousal privilege, they

were inadmissible. He asserts that his counsel’s failure to object prejudiced him because “[t]here

is no basis to find [his wife’s] comments did not impact the trial court’s sentencing decision.”

       {¶41} Even assuming that Allen could invoke the spousal privilege at his sentencing

hearing, but see State v. Mavrakis, 9th Dist. Summit No. 27457, 2015-Ohio-4902, ¶ 29, citing

Evid.R. 101(C)(3), the privilege does not prohibit a spouse from testifying about

communications or acts done against his or her child. See State v. Patterson, 9th Dist. Lorain

No. 91CA004975, 1992 WL 6651, *5 (Jan. 15, 1992), citing R.C. 2945.42. Allen has not

explained why the foregoing exception would not apply here, given that the victim in this matter

was his son. See App.R. 16(A)(7). Moreover, he has not shown that, but for his counsel’s

alleged error, “he would not have pleaded guilty and would have insisted on going to trial.”

Evans at ¶ 4. Allen faced serious charges and there was little question of his guilt, given that his

son shot himself in Allen’s vehicle with Allen’s gun. Allen’s guilty plea allowed him to avoid

convictions on two third-degree felonies. Had he gone to trial on all of his charges, his sentence

could have been considerably longer. Accordingly, even if his counsel should have objected to

his wife’s statements, Allen has not shown that the error resulted in actual prejudice. See id. See

also State v. Debruce, 9th Dist. Summit No. 28233, 2016-Ohio-8280, ¶ 16. Allen’s sixth

assignment of error is overruled.

                                                III.

       {¶42} Allen’s assignments of error are overruled. The judgment of the Summit County

Court of Common Pleas is affirmed.

                                                                               Judgment affirmed.
                                                17




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     LYNNE S. CALLAHAN
                                                     FOR THE COURT



HENSAL, P. J.
TEODOSIO, J.
CONCUR.


APPEARANCES:

MARK H. LUDWIG, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant
Prosecuting Attorney, for Appellee.
