COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 71907 STATE OF OHIO Plaintiff-appellee JOURNAL ENTRY vs. AND MICHELLE KINNEY OPINION Defendant-appellant DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 18, 1997 CHARACTER OF PROCEEDINGS: Criminal appeal from Court of Common Pleas Case No. CR-316198 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES, ESQ. HENRY J. HILOW, ESQ. Cuyahoga County Prosecutor McGINTY, GIBBONS & HILOW One Cleveland Center RICHARD J. BOMBIK, ESQ. 1375 East Ninth Street, #1920 The Justice Center Cleveland, Ohio 44114 9th Floor 1200 Ontario Street Cleveland, Ohio 44113 -2- KARPINSKI, J.: Defendant-appellant Michelle Kinney appeals from her convictions for voluntary manslaughter with a firearm specification and felonious assault. Defendant was indicted November 8, 1994, for aggravated murder, by purposely, and with prior calculation and design causing the death of Valerie Ballou, and for the attempted murder of Richetta Ballou. A firearm specification accompanied each count. The charges arose out of an incident in which defendant shot at the two victims with a handgun and struck Valerie Ballou twice. She died approximately one week later. Defendant, who was appointed two defense counsel, pleaded not guilty to the charges. Defense counsel made a series of discovery motions, including the following: (1) a general motion for discovery, (2) a motion for discovery of statements made by defendant and any exculpatory or mitigatory evidence, (3) a request for evidence notice seeking to identify evidence the prosecutor proposed to introduce in its case in chief, and (4) a motion for bill of particulars. The court also appointed an independent investigator. Defendant appeared in open court with both her appointed attorneys on February 1, 1995, to enter a guilty plea as part of a plea bargain. The prosecutor agreed to reduce the aggravated murder charge to voluntary manslaughter and the attempted murder charge to felonious assault. In addition, the prosecutor agreed to -3- delete the firearm specification from the second charge, in return for defendant's guilty plea to the reduced charges. After the prosecutor explained the terms of the plea agreement, the trial court explained defendant's rights to her in compliance with Crim.R. 11. During the course of this colloquy, defendant stated that she had completed high school and had taken some college courses. Prior to entering her plea, she also stated that she was satisfied with the representation provided by her two lawyers. She specifically declined the opportunity to ask the trial judge any questions before entering her plea. The trial court thereafter accepted her guilty pleas to the reduced charges and scheduled the matter for sentencing. At the outset of the sentencing hearing, the trial judge inquired about a letter defendant sent to him after her guilty pleas. The letter indicated that she desired to withdraw her guilty pleas. Defendant responded that after sending the letter she had spoken to counsel and no longer desired to withdraw her guilty pleas. The trial court sentenced defendant to three years prior actual incarceration for the firearm specification followed by concurrent indeterminate sentences of seven to twenty-five years for involuntary manslaughter and eight to fifteen years for felonious assault. Defendant filed a motion for delayed appeal, and this court appointed new appellate counsel to represent her. Defendant's first assignment of error follows: APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL PRIOR TO ENTERING HER GUILTY PLEA, UPON ENTERING HER GUILTY PLEA, AND AT SENTENCING. -4- This assignment lacks merit. Defendant contends generally that her defense counsel was ineffective. Specifically, she complains that her counsel did not prepare a defense and that she was not present during plea negotiations and a pretrial in the case. To establish ineffective assistance of counsel, defendant must show that counsel's performance was deficient and that prejudice resulted from that deficient performance. State v. Xie (1992), 62 Ohio St.3d 521, 524. The record does not support either element in this case. First, the record flatly contradicts defendant's contention that her counsel did not conduct any defense. Her two counsel conducted extensive discovery and the court also appointed an investigator. The charges were relatively simple: they arose out of a shooting, with one eyewitness victim surviving. Contrary to defendant's argument competent representation does not require that defendant be physically present during plea negotiations or at all pretrials. See State v. Wilson (Apr. 23, 1987), Cuyahoga App. No. 52031, unreported at p. 8. Attorneys frequently, in the absence of their clients, perform services and conduct preliminary matters and then subsequently seek approval. Defendant specifically stated on the record, moreover, that she accepted the plea bargain negotiated on her behalf and that she was satisfied with the representation provided by her attorneys. Defendant has made no other claim of deficient performance. -5- The record likewise does not support any claim of prejudice. To establish this element in the context of a guilty plea, the defendant must show that there is a reasonable possibility that, but for counsel's errors, [s]he would not have pleaded guilty. State v. Xie, supra at 524. Defendant contends that the letter she sent to the trial judge seeking to withdraw her guilty plea establishes that she would not have pleaded guilty if counsel had explained her options to her before she had entered the plea. This argument lacks merit, however, because she deliberately abandoned any request to withdraw her guilty plea after she had spoken to counsel. The record specifically shows that counsel explained the matter to her satisfaction at the sentencing hearing. By abandoning her request to withdraw the plea prior to sentencing, she indicated she was personally satisfied that her prior lack of understandinghad no effect on her guilty plea. There is no basis to infer prejudice because these circumstances completely negate any possibility that the alleged lack of information had any effect on her guilty plea.1 In summary, contrary to defendant's argument, the record indicates that her two defense counsel negotiated a plea agreement to lesser charges. She admitted guilt to the reduced charges because she has failed to show that counsel was ineffective in any 1 Defendant's naked argument to the contrary does not articulate what option her counsel allegedly failed to explain to her before her plea or what information she allegedly learned after her plea. Without this foundation, there is no basis to evaluate her claim of prejudice or find a reasonable possibility she would not otherwise have pleaded guilty. -6- way that contributed to her plea of guilty or affected her sentence. Accordingly, defendant's first assignment of error is overruled. Defendant's second assignment of error follows: THE TRIAL COURT COMMITTED REVERSIBLE ERROR IN ACCEPTING APPELLANT'S GUILTY PLEA WITHOUT ADEQUATELY DETERMINING THAT SUCH PLEA WAS MADE VOLUNTARILY AND KNOWINGLY. This assignment lacks merit. Defendant contends the trial court erred by accepting her guilty plea without determining whether she knew what she was doing. In support defendant cites to her letter to the judge, written after she entered her guilty plea. As noted above, however, the trial court expressly asked defendant at the time of her guilty plea hearing whether she had any questions. She stated that she had attended some college, had no questions, and was satisfied with the representation provided by counsel. The trial court also determined that no one had made any threats or promises to induce her plea. As a result of her own statements during the plea hearing, the trial court was warranted in concluding that her plea was voluntarily, knowingly, and intelligently made. There is nothing in the record at the time of the guilty plea to indicate that defendant did not subjectively understand what she was doing. The trial court appropriately questioned her, and she did not indicate any lack of understanding. Although her letter to the court, after her plea, raised some concerns, defendant -7- subsequently stated at the sentencing hearing that she had spoken to counsel, was satisfied, and did not desire to withdraw her plea. Under the circumstances, defendant has failed to show any error by the trial court in accepting her guilty plea. Accordingly, defendant's second assignment of error is overruled. Judgment affirmed. -8- 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. PORTER, P.J., CONCURS; O'DONNELL, J., CONCURS IN JUDGMENT ONLY. DIANE KARPINSKI 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 .