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State v. Johnson

Court of Appeals of Ohio, Eleventh District, Geauga

May 22, 2017

STATE OF OHIO, Plaintiff-Appellee,
v.
DEBARI Q. JOHNSON, Defendant-Appellant.

         Criminal Appeal from the Geauga County Court of Common Pleas, Case No. 2015 C 000240.

          James R. Flaiz, Geauga County Prosecutor, and Nicholas A. Burling, Assistant Prosecuting Attorney, Courthouse Annex, (For Plaintiff-Appellee).

          Katherine E. Rudzik, (For Defendant-Appellant).

          OPINION

          THOMAS R. WRIGHT, J.

         {¶1} Appellant, Debari Q. Johnson, appeals the trial court's sentencing entry following his guilty plea. We affirm.

         {¶2} In February 2016, Johnson was indicted and charged with nine offenses. He initially pleaded not guilty, but later pleaded not guilty by reason of insanity. His evaluation, however, opined that he was not legally insane at the time of the offenses.

         {¶3} In July 2016, Johnson pleaded guilty to aggravated robbery with a gun specification, kidnapping, and having a weapon under a disability. The remaining charges were dismissed. The trial court sentenced him to a total of seventeen years in prison.

         {¶4} His sole assignment of error asserts:

         {¶5} "The defendant received ineffective assistance of counsel."

         {¶6} The U.S. Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984), established the two-prong test for courts to employ upon assessing ineffective assistance of counsel claims: "[T]he defendant must [first] show that counsel's representation fell below an objective standard of reasonableness." Id. at 687-688. "[Second, 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." Id. at 694; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989) paragraphs two and three of the syllabus.

         {¶7} Reviewing courts are to "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, " and we must "judge the reasonableness of counsel's challenged conduct on the facts of the particular case, viewed as of the time of counsel's conduct." Strickland, 466 U.S. at 689-690.

         {¶8} Johnson first alleges he was denied the effective assistance of counsel based on his attorney's unclear explanation of the potential penalties he faced and since his counsel intimated that the state would recommend concurrent sentences. As a result of the charged deficiencies, Johnson states his plea was not entered knowingly.

         {¶9} However, these allegations are not based on evidence in the record, and as such, are improperly raised in a direct appeal. State v. Rodriguez, 12th Dist. Butler No. 2001-04-077, 2002-Ohio-3978, ¶34, citing State v. Gibson, 69 Ohio App.2d 91, 95, 430 N.E.2d 954 (1980). Instead, allegations based on evidence outside the record must be brought in a proceeding for postconviction relief. Id.

         {¶10} Furthermore, contrary to Johnson's claims that he was misled or confused as to the potential penalties he faced, the record shows otherwise. Johnson's written guilty plea sets forth the potential penalty range for each of the offenses and the firearm specification to which he pleaded guilty. It likewise states that no promises were made to him that are not in the written plea agreement. It also ...


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