State v. Turner, Unpublished Decision (10-29-2004)
State v. Turner, Unpublished Decision (10-29-2004)
Opinion of the Court
{¶ 2} Turner was indicted on one count of possession of five to ten grams of crack cocaine, a violation of R.C.
{¶ 3} Before the trial court accepted the no contest plea, the prosecuting attorney related what it would have been proven at trial beyond a reasonable doubt. He stated that the police interrupted a drug deal at 2100 Consaul Street in Toledo, Ohio. Evidence would have shown that as the police approached the automobile where the deal was taking place, several people fled from the car. They saw Turner, sitting in the driver's position, shove something into the seat. The officers then undertook an investigative stop and found a baggie containing two large rocks of crack cocaine stuffed into the seat near Turner's hand. Tests performed later by the Toledo police crime lab confirmed that the baggie contained 5.44 grams of crack cocaine.
{¶ 4} After Turner reviewed and signed the proper forms, the trial court found him guilty. At the sentencing hearing on April 15, 2003, Turner was placed in the work release program as part of community control. The court told Turner if he violated community control provisions, he would be sentenced to prison for a year. Turner did not comply with his work release, and at a community control hearing where after he admitted the violations, the trial judge imposed the twelve month prison term.
{¶ 5} Turner's appellate counsel filed a brief, according toAnders v. California (1967),
{¶ 6} Appellate counsel argues three potential assignment of error: (1) that Turner did not receive effective assistance of counsel; (2) that the trial court did not strictly comply with Crim.R. 11; and (3) that the trial court did not fully comply with Crim.R. 32.3. These arguments are without merit.
{¶ 7} The appellant bears the burden of proving that his counsel was ineffective since an attorney is presumed competent.Strickland v. Washington (1984),
{¶ 8} In discussing the issue of attorney competence, the Ohio Supreme Court observed: "It is all too tempting for a defendant to second-guess counsel's assistance after conviction or adverse sentence, and it is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citations omitted] * * * Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy.' [Citations omitted]" State v. Frazier (1991),
{¶ 9} This presumption means that a great amount of deference must be given to counsel's trial strategy. State v. Carter
(1995),
{¶ 10} In this case, Turner's counsel was far from ineffective, as she was able to convince the prosecution to lower the charge against her client and successfully argue that the presumption for prison should be overcome. There was a no contest plea in this case. For an ineffective assistance claim, Turner was required to show that he did not enter his plea knowingly and voluntarily. See State v. Tillman, 6th Dist. No. H-02-004, 2004-Ohio-1967, at ¶ 22. After reviewing the record and especially Turner's own words affirming that he was entering the plea knowingly and voluntarily, we find no evidence of an uninformed plea.
{¶ 11} Turner's potential claims of ineffective assistance of counsel all concern evidence that was outside the record. Thus, he has presented nothing under App.R. 9 to reverse his conviction. His remedy was to file a motion for postconviction relief. State v. Watts (Sept. 27, 1985), 6th Dist. No. Cr 84-5026. See also, State v. Elson (Apr. 30, 1999), 6th Dist. No. L-98-1156. Turner did file a postconviction motion. That motion was denied and not appealed. Thus, the potential assignment of error for ineffective assistance of counsel is baseless.
{¶ 12} Turner's argument that the court did not strictly comply with Crim.R. 11 is also not persuasive. Before accepting a no contest plea for a felony, a trial court must substantially comply with Crim.R. 11(C), which recites the procedure for a court to accept a plea. State v. Nero (1990),
{¶ 13} After thoroughly reviewing the record, we find the trial court more than met the technical requirements of Crim.R. 11(C) when it accepted Turner's no contest plea. There is no question in light of Turner's own words at the plea hearing that the no contest plea was knowingly and voluntarily entered into.
{¶ 14} Finally, Turner's contention that the court did not fully comply with Crim.R. 32.3 is mistaken. A defendant need not be given the full panoply of rights at a community control revocation hearing. State v. Martin, 6th Dist. No. S-02-012, 2002-Ohio-5202, at ¶ 7; State v. Artiaga, 6th Dist. No. L-02-1021, 2003-Ohio-2357, at ¶ 13; State v. Malone, 6th Dist. No. L-03-1299, 2004-Ohio-5246, at ¶ 14. All the requirements of Crim.R. 32.3 were met here: a hearing was held, Turner was present with counsel at the hearing, and he was informed of the grounds of the community control violation.
{¶ 15} This case presents no arguable issues meriting review and is wholly frivolous. Appellate counsel's motion to withdraw is hereby granted. The judgment of the Lucas County Court of Common Pleas is affirmed. Appellant is ordered to pay the court costs of this appeal as specified under App.R. 24.
JUDGMENT AFFIRMED.
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