COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 59638, 59639, 59640 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : ODELL WRIGHT : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 12, 1991 CHARACTER OF PROCEEDING: Criminal appeals from Common Pleas Court, Nos. CR-166878, CR-204554, CR-206993. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Mary Ann O. Rini, Esq. 6151 Wilson Mills Road No. 200 Highland Heights, OH 44143 -2- MATIA, P.J.: Defendant-appellant, Odell Wright, appeals from his plea of guilty as entered to two counts of receiving stolen property, one count of grand theft and four counts of drug law violation as specified herein. The appellant's appeal is based upon a denial of speedy trial, ineffective assistance of counsel and improper sentencing. It should be noted that the instant appeal consists of two assignments of error as raised by appellant's court appointed counsel and two assignments of error as raised pro se by the appellant. Thus, four assignments of error are presented for review. The appellant's appeal is not well taken. I. THE FACTS A. INDICTMENT IN CR-116878 On September 14, 1981, the appellant was indicted by the grand jury of Cuyahoga County, in CR-116878, for two counts of receiving stolen property in violation of R.C. 2913.51 and one count of grand theft in violation of R.C. 2913.02. On January 15, 1986, the appellant entered a plea of not guilty to the two counts of receiving stolen property and one count of grand theft. B. INDICTMENT IN CR-204554 On December 12, 1985, the appellant was indicted by the grand jury of Cuyahoga County, in CR-204554, for one count of drug law violation in contravention of R.C. 2925.11 with a violence specification and one count of drug law violation in contravention of R.C. 4729.51 with a violence specification. On -3- January 15, 1985, the appellant entered a plea of not guilty to the two counts of drug law violation with a violence specification. C. INDICTMENT IN CR-206993 On April 3, 1986, the appellant was indicted by the grand jury of Cuyahoga County, in CR-206993, for one count of drug law violation in contravention of R.C. 2925.11 with a violence specification and two counts of drug law violation in contravention of R.C. 4729.51 with a violence specification. On April 7, 1986, the appellant entered a plea of not guilty to the three counts of drug law violation with a violence specification. D. APPELLANT'S CHANGE OF PLEA On April 18, 1986, the appellant retracted his former pleas of not guilty and entered a plea of guilty to the following offenses: 1) CR-116878 - two counts of receiving stolen property with a nolle of the offense of grand theft; 2) CR-204544 - two counts of drug law violation; and 3) CR-206993 - two counts of drug law violation with a nolle of one count of drug law violation. E. THE SUSPENDED SENTENCE OF THE TRIAL COURT On May 28, 1986, the trial court sentenced the appellant to consecutive sentences of incarceration with regard to each offense for which a plea of guilty was entered. The sentence of the trial court provided for terms of incarceration as follows: 1) eighteen months as to each count of receiving stolen property; and 2) three years to five years with regard to each count of -4- drug law violation. The trial court, however, suspended execution of sentence and placed the appellant on probation for a term of five years and the added conditions of drug treatment, monthly urine analysis, payment of costs and eighty hours of community work service. F. THE APPELLANT'S PROBATION VIOLATION AND EXECUTION OF ORIGINAL SENTENCE On December 22, 1987, the appellant was found to be a probation violator as a result of the appellant's failure to report to the Probation Department, failure to attempt to pay costs and failure to notify the Probation Department of a new arrest. Following the probation violation hearing, the trial court revoked the appellant's probation and ordered the original sentence of incarceration into execution. Thereafter, the appellant brought the instant delayed appeal. II. THE FIRST ASSIGNMENT OF ERROR The appellant's initial assignment of error, as raised by court appointed counsel, is that: "THE APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO A SPEEDY TRIAL WHEN THE COURT DENIED HIS MOTION TO DISMISS FOR PRE-INDICTMENT DELAY." A. ISSUE RAISED: DENIAL OF RIGHT TO SPEEDY TRIAL The appellant, in his initial assignment of error, argues that the trial court erred in denying the appellant's motion to dismiss for lack of a speedy trial. Specifically, the appellant argues that he was not brought to trial within two hundred and -5- seventy days with regard to the offenses of receiving stolen property as originally charged in CR-166878. The appellant's first assignment of error is not well taken. B. STATUTORY PERIOD FOR SPEEDY TRIAL R.C. 2945.71(C), which defines the time period in which a felony offense must be tried in order to afford a defendant his right to a speedy trial, provides that: "(C) A person against whom a charge of felony is pending: "(1) Notwithstanding any provisions to the contrary in Criminal Rule 5(B), shall be accorded a preliminary hearing within fifteen consecutive days after his arrest if the accused is not held in jail in lieu of bail on the pending charge or within ten consecutive days after his arrest if the accused is held in jail in lieu of bail on the pending charge; "(2) Shall be brought to trial within two hundred seventy days after his arrest." (Emphasis added.) C. PLEA OF GUILTY WAIVES RIGHT TO CHALLENGE ISSUE OF SPEEDY TRIAL Any error associated with the denial of the appellant's right to a speedy trial with regard to the two counts of receiving stolen property as contained in CR-166878, however, has been waived by the appellant. In State v. Kelley (1991), 57 Ohio St. 3d 127, the Supreme Court of Ohio held that a plea of guilty waives an appellant's right to challenge a conviction on the basis of a denial of the right to a speedy trial. -6- "A plea of guilty waives a defendant's right to challenge his or her conviction on statutory speedy trial grounds pursuant to R.C. 2945.71(B)(2). (Montpelier v. Greeno [1986], 25 Ohio St. 3d 170, 25 OBR 212, 495 N.E. 2d 581, applied and followed.)" State v. Kelley, supra, paragraph one of the syllabus. See also: State v. Branch (1983), 9 Ohio App. 3d 160. In addition, the United States Supreme Court has established that a voluntary and intelligent plea of guilty waives any claims of error associated with the deprivation of a defendant's constitutional guarantees and rights. "We thus reaffirm the principle recognized in the Brady trilogy: a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea...." Tollett v. Henderson (1973), 411 U.S. 258, at 2. D. APPELLANT'S PLEA OF GUILTY WAS VOLUNTARY AND INTELLIGENT In the case sub judice, a review of the record clearly demonstrates that the appellant entered a voluntary and intelligent plea of guilty to the two counts of receiving stolen property as charged in CR-166878. The trial court substantially complied with the mandates of Crim. R. 11(C) in accepting the appellant's plea of guilty and the record shows that: -7- 1) the appellant was advised of the terms of incarceration which could be imposed by the trial court with regard to the offenses of receiving stolen property; 2) the appellant acknowledged that no threats or promises had been made with regard to the plea of guilty; 3) the appellant acknowledged his confidence in defense counsel and further acknowledged a complete understanding of the effect of his plea of guilty; 4) the appellant acknowledged his right to a trial by a jury or judge, the right to confront all witnesses, the right to refuse to testify and the right to proof beyond a reasonable doubt; and 5) the appellant was informed of the nature of the pending offenses of receiving stolen property. E. APPELLANT HAS WAIVED RIGHT TO CHALLENGE LACK OF A SPEEDY TRIAL The trial court substantially complied with Crim. R. 11(C) in accepting the appellant's plea of guilty. State v. Stewart (1977), 51 Ohio St. 2d 86. Thus, the appellant's entry of a voluntary and intelligent plea of guilty to two counts of receiving stolen property has waived any error associated with a claimed lack of speedy trial. The appellant's first assignment of error is not well taken. -8- III. THE SECOND ASSIGNMENT OF ERROR The appellant's second assignment of error, as raised by appointed counsel, is that: "THE APPELLANT WAS DENIED HIS CONSTITUTIONAL RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN COUNSEL PERMITTED HIM TO PLEAD GUILTY RATHER THAN NO CONTEST TO THE CHARGE OF RECEIVING STOLEN PROPERTY AND THEREBY JEOPARDIZED HIS RIGHT TO APPEAL THE ISSUE OF PRE-INDICTMENT DELAY." A. ISSUE RAISED: INEFFECTIVE ASSISTANCE OF COUNSEL The appellant, in his second assignment of error, argues that he was denied effective assistance of counsel. Specifically, the appellant argues that he was prejudiced by the advice of defense counsel to plead guilty to two counts of receiving stolen property and four counts of drug law violation which in turn waived the appellant's right to raise as error a denial of the right to a speedy trial. The appellant's second assignment of error is not well taken. B. TWO-PRONG TEST APPLICABLE TO CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL In order to substantiate a claim of ineffective assistance of counsel, an appellant must demonstrate that he was prejudiced and denied a fair trial as a result of the conduct of defense counsel. Also, the appellant must affirmatively demonstrate that the performance of his defense counsel was seriously flawed and deficient and the result of the appellant's legal proceedings would have been different had defense counsel provided proper -9- representation. Strickland v. Washington (1984), 466 U.S. 668; State v. Brooks (1986), 25 Ohio St. 3d 144. C. PRESUMPTION OF EFFECTIVE ASSISTANCE OF COUNSEL In reviewing a claim of ineffective assistance of counsel, this court must presume that a properly licensed attorney has executed his legal duties in an ethical and competent manner. State v. Smith (1985), 17 Ohio St. 3d 98; Vaughn v. Maxwell (1965), 2 Ohio St. 2d 299. In addition, this court must accord deference to defense counsel's strategic choices made prior to and during the course of a legal proceeding and cannot examine the strategic choices of defense counsel through hindsight. Strickland v. Washington, supra. As stated previously, a review of a claim of ineffective assistance of counsel ordinarily requires an initial examination of the performance of defense counsel in order to determine whether such performance was seriously flawed and deficient. This court is then required to determine whether the claimed deficient performance of defense counsel prejudiced the appellant. D. UPON REVIEW, THIS COURT NEED ONLY CONSIDER THE PREJUDICE PRONG OF THE STRICKLAND TEST The Supreme Court of Ohio established in State v. Bradley, (1989), 42 Ohio St. 3d 136, however, that an initial examination of the performance prong of the Strickland test is not necessary where an appellant cannot demonstrate the prejudicial effect of defense counsel's alleged misconduct. -10- "Even assuming that counsel's performance was ineffective, this is not sufficient to warrant reversal of a conviction. 'An error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the judgment. Cf. United States v. Morrison, 449 U.S. 361, 364-365 (1981).' Strickland, supra, at 691. To warrant reversal, '[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.' Strickland, supra, at 694. *** "*** we note Strickland's admonition that it might not always be necessary to engage in an analysis of both counsel's effectiveness and the prejudicial impact of any of counsel's errors: "'Although we have discussed the performance component of an ineffectiveness claim prior to the prejudice component, there is no reason for a court deciding an ineffective assistance claim to approach the inquiry in the same order or even to address both components of the inquiry if the defendant makes an insufficient showing on one. In particular, a court need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure the ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.'" State v. Bradley, supra, at 142. -11- E. APPELLANT WAS NOT PREJUDICE BY PLEA OF GUILTY A review of the record before this court fails to disclose that the appellant was prejudiced as a result of his plea of guilty. To the contrary, the record establishes that the appellant's plea of guilty was both intelligent and voluntary and not the product of any coercion or threats as made by the trial court, the prosecutor or the appellant's defense counsel. "THE COURT: Now, in order for me to accept the plea of guilty from anybody, I have to be satisfied that it is your decision to plead guilty; that means you have made the decision based on all the facts and circumstances that exist in the case. "Nobody's promised you anything, nobody's threatened you in any way, nor has anyone forced or coerced you in any fashion to bring about this charge of plea from not guilty to guilty, and if you enter these pleas of guilty as we discussed here today, they would be done by you knowingly, voluntarily, and of your own free will? "Is that your state of might right now? "THE DEFENDANT: Yes, sir." (Tr. 17, 18.) (Emphasis added.) Thus, pursuant to the application of Bradley, this court need not address the issue of whether the performance of defense counsel was flawed and deficient. The failure of the appellant to demonstrate the existence of any prejudicial error, as a result of a voluntary and intelligent plea of guilty, must result in the finding that the appellant's argument of ineffective assistance of counsel is not well taken. -12- F. NO DEFICIENT PERFORMANCE OF DEFENSE COUNSEL DEMONSTRATED IN RECORD It should also be noted that the record fails to disclose that defense counsel advised the appellant to enter a plea of guilty. A claim of ineffective assistance of counsel, which is not demonstrated in the record cannot be raised on direct appeal but must be addressed thorough a statutory post-conviction proceeding pursuant to R.C. Chapter 2953. State v. Cooperrider (1983), 4 Ohio St. 3d 226; State v. Steel (1983), 8 Ohio App. 3d 137; State v. Gibson (1980), 69 Ohio App. 2d 91. Therefore, the appellant's second assignment of error is not well taken. IV. THE THIRD ASSIGNMENT OF ERROR The appellant's third assignment of error, as filed pro se, is that: "PETITIONER WAS ILLEGALY (SIC) SENTENCED OF MULTIPLE COUNTS AND WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF THE 5TH, 6TH AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 1 SECTION 10 OF THE OHIO CONSTITUTION." A. ISSUE RAISED: APPELLANT IMPROPERLY SENTENCED SINCE CHARGED OFFENSES WERE ALLIED OFFENSES OF SIMILAR IMPORT The appellant, in his third assignment of error, argues that he was improperly sentenced by the trial court with regard to the four counts of drug law violation as contained in CR- 204554 and CR-206993. Specifically, the appellant argues that the offenses of drug law violation as contained in CR-204554 and CR-206993 were allied offenses of similar import which prohibited -13- the trial court from imposing multiple sentences of incarceration. In addition, the appellant argues that the failure of defense counsel to prohibit the imposition of multiple terms of incarceration constituted ineffective assistance of counsel. The appellant's third assignment of error is not well taken. B. R.C. 2941.25 AND ALLIED OFFENSES OF SIMILAR IMPORT R.C. 2941.25, which deals with the issue of multiple counts and allied offenses of similar import, provides that: "(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one. "(B) Where the defendant's conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them." C. RECORD DOES NOT DEMONSTRATE ALLIED OFFENSES OF SIMILAR IMPORT Herein, a review of the record shows that the same conduct of the appellant was not used to support each offense of drug law violation. Initially, the course of conduct which resulted in the indictment as contained in CR-204554 occurred on October 19, 1985 while the prohibited conduct which culminated in the indictment as contained in CR-206993 occurred on February 27, -14- 1986. In addition, count one of CR-204554 involved the illegal possession of demerol while count two involved the illegal possession of PBZ. Finally, count one of CR-206993 involved the illegal possession of dilaudid while count two involved the illegal possession of demerol. D. APPELLANT WAS PROPERLY SENTENCED The appellant in the present appeal was properly charged and convicted of four separate counts of drug law violation since the four offenses were of dissimilar import and were committed with a separate animus as to each offense. State v. Hughley (1984), 20 Ohio App. 3d 77; State v. Brown (1982), 7 Ohio App. 3d 113. Finally, the appellant was not denied effective assistance of counsel since no prejudice befell the appellant nor was the conduct of defense counsel deficient as dealt with in the appellant's second assignment of error. Strickland v. Washington, supra. Thus, the appellant's third assignment of error is not well taken. IV. THE FOURTH ASSIGNMENT OF ERROR The appellant's fourth assignment of error, as raised pro se, is that: "SECTIONS 2941.143 AND 2929.11(B)(7) OF THE OHIO REVISED CODE WAS (SIC) APPLIED RETROSPECTIVELY TO ENHANCE PETITIONER'S SENTNCE (SIC) IN VIOLATION OF THE OHIO AND U.S. CONSTITUTIONS." -15- A. ISSUE RAISED: PENALTY ENHANCEMENT VIS-A-VIS PRIOR VIOLENCE SPECIFICATION UNCONSTITUTIONAL The appellant, through his fourth assignment of error, argues that he was improperly sentenced as a result of the imposition of indefinite terms of incarceration which resulted from the inclusion of prior violence specifications in CR-204544 and CR-206993. Specifically, the appellant argues that the penalty enhancements provisions as contained in R.C. 2929.11 and R.C. 2941.143 are unconstitutional and thus a violation of the appellant's due process rights as guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and Article I Section 16 of the Ohio Constitution. The appellant's fourth assignment of error is not well taken. B. PENALTY ENHANCEMENT IS NOT UNCONSTITUTIONAL This court, in State v. Stewart (June 27, 1985), Cuyahoga App. No. 49178, unreported, has previously determined that the imposition of an indefinite sentence of incarceration, as mandated by the inclusion of a prior violence specification in an indictment per R.C. 2929.11 and R.C. 2941.143, was constitutional and did not deny a defendant the right to due process as guaranteed by the United States Constitution and the Ohio Constitution. In addition, the appellant has failed to demonstrate to this court that R.C. 2929.11 and R.C. 2941.143 are unconstitutional. See, Cleveland v. Huff (1984), 14 Ohio App. 3d 207. -16- Thus, the appellant's fourth assignment of error is not well taken and the judgment of the trial court is affirmed. Judgment affirmed. Judgment affirmed. It is ordered that appellee recover of appellant its 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. JOHN F. CORRIGAN, J. and JAMES D. SWEENEY, J. CONCUR. DAVID T. MATIA PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. .