COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 70507 STATE OF OHIO : : ACCELERATED DOCKET : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : MACK CLARK : OPINION : : PER CURIAM DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT FEBRUARY 13, 1997 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, Case No. CR-326931. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-appellee: Stephanie Tubbs Jones Cuyahoga County Prosecutor Richard J. Bombik Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-appellant: Nicholas K. Thomas, Esq. 21801 Lake Shore Boulevard Euclid, Ohio 44123 - 2 - PER CURIAM: An accelerated appeal is authorized pursuant to App.R. 11.1 and Loc.App.R. 25. The purpose of an accelerated docket is to allow an appellate court to render a brief and conclusionary decision. Crawford v. Eastland Shopping Mall Assn. (1983), 11 Ohio App.3d 158; App.R. 11.1(E). The appellant appeals his convictions for two counts of sexual battery in violation of R.C. 2907.03. The appellant was sentenced to two consecutive two-year terms of incarceration. The appellant's conviction was entered subsequent to a plea of guilty. The original four count indictment contains one count of each of the following: 1) rape, 2) kidnapping, 3) felonious assault, and 4) felonious sexual penetration. In return for the plea, the appellee amended counts one and four to sexual battery, recommended the two-year consecutive sentences to the court, and recommended that counts two and three be nolled. The appellant entered his plea, the court entered a nolle as to counts two and three, and imposed the agreed sentence. The appellant asserts two assignments of error: I THE APPELLANT WAS DENIED HIS SIXTH AND FOURTEENTH AMENDMENT RIGHTS OF THE UNITED STATES CONSTITUTION AND UNDER ARTICLE 1 SECTION 10 OF THE OHIO CONSTITUTION AS THE APPELLANT DID NOT RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL. - 3 - II THE APPELLANT WAS DENIED HIS FIFTH AND FOURTEENTH AMENDMENT RIGHTS UNDER THE UNITED STATES CONSTITUTION AND UNDER ARTICLE 1 SECTION 10 OF THE OHIO CONSTITUTION. The appellant asserts that he was rendered ineffective assistance of counsel by counsel's failure to inform the court at the time of the plea hearing that the appellant maintained his innocence of the crimes for which he had been indicted. To prevail on a claim for ineffective assistance of counsel, a defendant must demonstrate that counsel's performance was deficient, and that the deficient performance prejudiced the defense. Strickland v. Washington (1984), 466 U.S. 668. A properly licensed attorney is presumed to execute his duties in an ethical and competent manner. State v. Smith (1987), 36 Ohio App.3d 162. The burden of proving ineffectiveness is on the defendant. State v. Smith (1981), 3 Ohio App.3d 115. Ineffectiveness is demonstrated by showing that counsel's errors were so serious that he or she failed to function as the counsel guaranteed by the Sixth Amendment. State v. Hamblin (1988), 37 Ohio St.3d 153. To establish prejudice, a defendant must show that there is a reasonable possibility that, but for counsel's errors, the result of the proceeding would have been different. Strickland, supra. A guilty plea may be accepted despite protestations of innocence where the validity of the plea cannot seriously be questioned in view of a strong factual basis for the plea - 4 - demonstrated by the record. North Carolina v. Alford (1970), 400 U.S. 25; State v. Padgett (1990), 67 Ohio App.3d 332; State v. Casale (1986), 34 Ohio App.3d 339; State v. Habart (Oct. 19, 1995), Cuyahoga App. No. 68545, unreported. Where the defendant has failed to invoke Alford's protections, and the requirements of Crim.R. 11 have been otherwise met, this court has affirmed the conviction. State v. Nejeeullah (Oct. 3, 1996), Cuyahoga App. No. 70126, unreported; State v. Kandiko (Feb. 9, 1995), Cuyahoga App. Nos. 66888, 66889, unreported. In the case sub judice, the record demonstrates that the appellant was facing a possible lengthy sentence of incarceration; that the plea was the result of extensive negotiations; and that counsel informed the appellant of his Constitutional rights, the evidence to be presented at trial, and the possible outcomes of a trial. The appellant does not contest that the plea itself was without flaw. At the sentencing hearing the court conducted an extensive interview with the appellant at which time the facts underlying the indictment were discussed. The appellant made no request to withdraw the plea, and the court proceeded to impose the agreed upon sentence. The appellant has not argued that he would not have pled, but rather, merely asserts that had the trial court known the appellant protested his innocence, the trial court could very well have refused to accept the plea. The record of the sentencing hearing - 5 - demonstrates that the court did learn of the appellant's position, closely questioned the appellant, and proceeded with the sentencing. Presumably, had the court found that the requirements of Alford, supra, were not met, he would have refused to proceed. The appellant has failed to demonstrate that counsel failed to perform an essential duty, that counsel's errors were so serious that she failed to function as the counsel guaranteed by the Sixth Amendment, or that there is a reasonable possibility that, but for counsel's errors, the result of the proceeding would have been different. The appellant's first and second assignment of errors are overruled. Judgment affirmed. - 6 - 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. JAMES D. SWEENEY, C.J. ANN DYKE, J. TERRENCE O'DONNELL, J. 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 .