COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69238 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION JAMES SIMMONS : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION FEBRUARY 27, 1997 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-245056 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES REGIS McGANN, ESQ. Cuyahoga County Prosecutor 450 Standard Building LISA REITZ WILLIAMSON, Asst. 1370 Ontario Street Prosecuting Attorney Cleveland, Ohio 44113 1200 Ontario Street Cleveland, Ohio 44113 - 2 - JAMES M. PORTER, P.J., Defendant-appellant James Simmons appeals from his conviction following a guilty plea to one count of murder in violation of R.C. 2903.02. Defendant contends he was denied his constitutional right to effective assistance of counsel. Defendant also argues that the trial court improperly denied his application for post-conviction relief pursuant to R.C. 2953.21. Defendant contends that the trial court erred in that his petition was meritorious because the indictment was defective and the trial court that accepted his murder plea was without jurisdiction and he was deprived of his constitutional rights to effective assistance of counsel. We find no error and affirm. Defendant was indicted by the Cuyahoga County Grand Jury in September 1989 in a one count indictment for aggravated murder (R.C. 2903.01). On February 26, 1990, defendant, represented by counsel, pled guilty to an amended indictment of one count of the lesser included offense of murder (R.C. 2903.02). He was sentenced by the trial court to a term of fifteen years to life at the Ohio State Reformatory. No appeal was taken at that time. On April 3, 1995, defendant filed a petition with the trial court for post-conviction relief, which the State opposed. On May 31, 1995, the trial court denied this petition without a hearing and issued findings of fact and conclusions of law pursuant to R.C. 2953.21. - 3 - Defendant, pro se, filed with this Court on July 6, 1995 a motion for leave to file a delayed appeal. That motion was granted on August 4, 1995 and counsel was appointed to represent defendant. On motion of defendant, that counsel was dismissed from the case and new counsel was appointed on April 11, 1996 and submitted a brief with new assignments of error, to which the State responded. In the appeal now before this Court, defendant raises two assignments of error. The first assignment of error asserts the trial court erred in denying his petition for post-conviction relief. The second assignment of error deals with his original conviction in 1990 claiming ineffective assistance of counsel. The first assignment of error dealing with the denial of the post- conviction relief is not properly before this Court since no timely appeal was taken from the May 31, 1995 judgment. Defendant cannot employ a delayed appeal to contest the denial of his post-conviction relief. App.R. 5(A) which governs delayed appeals reads in pertinent part: After the expiration of the thirty day period provided by App.R. 4(A) for the filing of a notice of appeal as of right in criminal cases, an appeal may be taken only by leave of the court to which the appeal is taken. *** It is well-established that a delayed appeal filed pursuant to App.R. 5(A) is not available in an appeal from a post-conviction relief proceeding. State v. Nichols (1984), 11 Ohio St.3d 40, paragraph one of the syllabus; State v. Harvey (1980), 68 Ohio - 4 - App.2d 170, 171; State v. Blount (Aug. 26, 1993), Cuyahoga App. No. 65095, unreported. Post-conviction relief proceedings are "governed by the Ohio Rules of Appellate Procedure as applicable in civil actions." Nichols, supra, paragraph two of syllabus. Accordingly, an appeal from the denial of post-conviction relief must be filed within thirty days of judgment. That was not done here. Therefore, defendant's first assignment of error is untimely and this Court is without jurisdiction to address this issue. We will address the merits of defendant's remaining assignment of error which relates to his original conviction. II. THE TRIAL COURT ERRED IN FINDING APPELLANT'S TRIAL COUNSEL TO HAVE PROVIDED THE APPELLANT WITH EFFECTIVE ASSISTANCE OF COUNSEL AT TRIAL. Defendant argues in his second assignment of error that his counsel was ineffective in allowing him to plead guilty to the amended indictment which included the lesser included offense of murder. Defendant asserts that the original indictment on aggravated murder was void due to the absence of the mens rea element requiring purposeful conduct. Defendant faults his counsel for allowing him to plead guilty to the lesser included charge of murder. Defendant contends that the amendment of the original indictment to murder, which included the mens rea element of purposeful conduct, was improper and caused him to suffer prejudice. This assignment of error is without merit. - 5 - While it is clear that the State intended to prosecute the defendant for the purposeful killing of his girlfriend, the language of the grand jury indictment failed to allege a necessary element of aggravated murder, i.e., the element of purposely causing the death of another. In State v. Wozniak (1961), 172 Ohio St. 517, paragraph two of the syllabus, the Ohio Supreme Court held that "an indictment which does not charge the defendant with an intent which is one of the essential elements of a crime cannot be amended so as to include a charge of such intent." See, also, State v. Dilley (1989), 47 Ohio St.3d 20, syllabus. The Wozniak court specifically held that due to this type of defect in the indictment, the case would have to be brought before the grand jury in order to amend the indictment. Id. at 520. However, it is also well-settled that when a defendant enters a plea of guilty as part of a plea bargain he waives all appealable errors which may have occurred at trial unless such errors are shown to have prevented defendant from entering a knowing and voluntary plea. State v. Barnett (1991), 73 Ohio App.3d 244, 249, citing State v. Kelley (1991), 57 Ohio St.3d 127, paragraph two of the syllabus. See, also, State v. Hill (Feb. 4, 1993), Cuyahoga App. No. 61685, unreported (guilty plea waives a defendant's right to challenge error relating to the wording of the indictment). Therefore, courts have distinguished cases where an indictment is amended pursuant to a plea agreement from cases where an indictment is amended and the case proceeds to trial. State v. Childress - 6 - (1993), 91 Ohio App.3d 258, 261; State v. Fryling (1992), 85 Ohio App.3d 557; State v. Williams (May 23, 1996), Cuyahoga App. No. 69403, unreported. In Childress, supra at 261, the court held that any error made in amending an indictment was waived following a knowing and voluntary plea of guilty. The Childress court held: In State v. Fryling (1992), 85 Ohio App.3d 557, 620 N.E.2d 862, this court distinguished the situation, such as the present one, where the defendant agreed to the amendment pursuant to a plea bargain, from the situation in Dilley, where the defendant objected to the amendment and the case was proceeding to trial. In Fryling, we held that an indictment may be amended to include an R.C. 2941.143 specification without returning the matter to the grand jury where the amendment was made pursuant to a plea bargain in open court with the defendant's voluntary agreement after full disclosure. In the present case, defendant does not claim that his plea was not entered knowingly and voluntarily. The record below is clear that defendant knowingly and voluntarily agreed to the amended indictment to which he entered a guilty plea pursuant to the plea agreement. Further, it is clear from the record that the indictment was effectively amended to include the element of purposeful conduct. Both parties and the court were aware that "purposefully causing the death" was included in the plea. Prior to the defendant's plea, the court stated: THE COURT: All Right. Then understanding the nature of the charges involved at present, and the potential penalties that are involved I ask you first of all, sir, if you are in fact guilty of murder as contained in the - 7 - amended indictment, setting forth that you purposefully caused the death of another, to wit: Venessa Smith? THE DEFENDANT: Yes, your Honor. (Tr. 9). Based on our review of the entire record and the foregoing law, we do not find that counsel was ineffective in allowing defendant to plead to the lesser included offense of murder. The test for ineffective assistance of counsel, as articulated in Strickland v. Washington (1984), 466 U.S. 668, 686, 80 L.Ed.2d 674, 104 S.Ct. 2052, is "whether counsel's conduct so undermined the proper function of the adversarial process that the trial cannot be relied on as having produced a just result." The two-prong Strickland test was followed by the Ohio Supreme Court in State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraphs two and three of the syllabus, as follows: Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises form counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2, 358 N.E.2d 623, O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S. 668, 80 L.Ed.2d 674, 104 S.Ct. 2052, followed.) To show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different. - 8 - In addition, to establish prejudice in the context of a guilty plea challenge, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial." Hill v. Lockhart (1985), 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203, 210; State v. Xie (1992), 62 Ohio St.3d 521, 524. We do not find that counsel was ineffective in failing to object to the indictment. State v. Bradley, supra. Defendant's plea involved a tactical decision used to obtain a very favorable sentence on the amended indictment. Therefore, based on the foregoing discussion and the record of the proceedings, there is no reason to find that defense counsel's performance fell below an objective standard of reasonable representation from which the defendant was prejudiced. Assignment of Error II is overruled. Judgment affirmed. - 9 - 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 Court of Common Pleas 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. KARPINSKI, J., and TIMOTHY E. McMONAGLE, J., CONCUR. JAMES M. PORTER PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .