The opinion
[Cite as State v. Brown, 2022-Ohio-2655.]
COURT OF APPEALS
MORGAN COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. William B. Hoffman, P.J.
Plaintiff-Appellee Hon. John W. Wise, J.
Hon. Craig R. Baldwin, J.
-vs-
Case No. 21AP0006
ETHAN BROWN
Defendant-Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Morgan County Court of
Common Pleas, Case No. 21CR0011
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: August 2, 2022
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MARK J. HOWDYSHELL EVAN N. WAGNER
Prosecuting Attorney 3970 Brown Park Drive, Suite B
Morgan County, Ohio Hillard, Ohio 43026
JANNA C. WOODBURN
Assistant Prosecuting Attorney
Morgan County, Ohio
19 East Main Street
McConnelsville, Ohio 43756
Morgan County, Case No. 21AP0006 2
Hoffman, P.J.
{¶1} Defendant-appellant Ethan Brown appeals his indefinite sentence of 11-15
years entered by the Morgan County Court of Common Pleas, on one count of failure to
comply and two counts of felonious assault, after the trial court accepted his guilty pleas.
Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE1
{¶2} On February 12, 2021, the Morgan County Grand Jury indicted Appellant
on one count of failure to comply with the order or signal of a police officer, in violation of
R.C. 2931.331(B)(C)(1)(5)(a)(i)(ii), a felony of the third degree (Count 1); one count of
assault on a peace officer, in violation of R.C. 2903.12(A)(C)(5), a felony of the fourth
degree (Count 2); and two counts of felonious assault, in violation of R.C. 2903.11(A)(2),
felonies of the second degree (Counts 3 and 4). Appellant appeared without counsel for
arraignment on March 10, 2021. The trial court entered a plea of not guilty on Appellant’s
behalf. Subject to his filing an application for appointed counsel and financial affidavit,
the trial court found Appellant to be indigent and appointed Attorney Beau Cross to
represent him.
{¶3} The trial court conducted an initial pretrial hearing on May 26, 2021, and a
final pretrial hearing on July 21, 2021. The matter was scheduled for jury trial on August
19, 2021. Due to an older case taking priority on the trial court’s docket, the jury trial in
the instant matter was continued until October 7, 2021.
{¶4} On October 5, 2021, Appellant appeared before the trial court with Attorney
Cross. Attorney Cross advised the trial court Appellant would be withdrawing his former
1A Statement of the Facts underlying Appellant’s convictions is unnecessary to our disposition of this
Appeal.
Morgan County, Case No. 21AP0006 3
plea of not guilty and be entering guilty pleas to Counts 1, 3, and 4 of the Indictment. In
exchange for the guilty pleas, the state agreed to dismiss Count 2. The state confirmed
the agreement. After conducting a Crim. R. 11 colloquy with Appellant, the trial court
accepted his pleas and found him guilty of Counts 1, 3, and 4 of the Indictment.
{¶5} Prior to the sentencing hearing, Appellant and the state filed sentencing
memoranda in support of their respective positions. The trial court conducted a
sentencing hearing on October 27, 2021. Three law enforcement officers involved in
effectuating Appellant’s arrest provided statements to the trial court. The state and
counsel for Appellant made sentencing recommendations to the trial court. The trial court
found Appellant remorseful for his conduct. The trial court sentenced Appellant to an
indefinite, aggregate term of incarceration of 11 – 15 years. The trial court ordered
Appellant’s sentence to run concurrently with a sentence Appellant was serving on
Muskingum County convictions, which arose from the same events.
{¶6} The trial court memorialized Appellant’s sentence via Sentencing Entry filed
October 28, 2021.
{¶7} It is from his sentence Appellant appeals, raising the following assignments
of error:
I. THE TRIAL COURT VIOLATED MR. BROWN’S FEDERAL
CONSTITUTIONAL RIGHT TO COUNSEL.
II. THE TRIAL COURT VIOLATED MR. BROWN’S STATE
CONSTITUTIONAL RIGHT TO COUNSEL.
III. THE TRIAL COURT DID NOT COMPLY WITH CRIM. R. 44.
Morgan County, Case No. 21AP0006 4
IV. MR. BROWN’S FEDERAL CONSTITUTIONAL RIGHT TO THE
EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED BECAUSE
TRIAL COUNSEL ADVISED MR. BROWN TO REJECT A FAVORABLE
PLEA BARGAIN.
V. MR. BROWN’S STATE CONSTITUTIONAL RIGHT TO THE
EFFECTIVE ASSISTANCE OF COUNSEL WAS VIOLATED BECAUSE
TRIAL COUNSEL ADVISED MR. BROWN TO REJECT A FAVORABLE
PLEA BARGAIN.
I, II, III
{¶8} We elect to address Appellant’s first, second, and third assignments of error
together. In his first and second assignments of error, Appellant contends the trial court
violated his federal and state constitutional rights to counsel. In his third assignment of
error, Appellant asserts the trial court failed to comply with Crim. R. 44.
{¶9} “It is axiomatic that a criminal defendant has a right to counsel pursuant to
the Sixth and Fourteenth Amendments to the United States Constitution and Section 10,
Article I of the Ohio Constitution, as well as a right to act as his own counsel during trial,
if he so chooses.” State v. Smallwood, 6th Dist. Lucas No. L-19-1116, 2020-Ohio-5556,
¶ 8, citing State v. Harris, 6th Dist. Erie No. E-02-019, 2003-Ohio-5190, ¶ 23, citing Faretta
v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). But “before a defendant
may serve as his own counsel, the defendant must knowingly, intelligently, and voluntarily
waive his right to assistance of counsel.” Id., citing State v. Weiss, 92 Ohio App.3d 681,
Morgan County, Case No. 21AP0006 5
684, 637 N.E.2d 47 (1993). Under Crim.R. 44(C), “[w]aiver of counsel shall be in open
court and the advice and waiver shall be recorded as provided in Rule 22.” Id.
{¶10} “The arraignment signals ‘the initiation of adversary judicial proceedings’
and thus the attachment of the Sixth Amendment.” State v. Tyler, 6th Dist. Lucas No. L–
06–1326, 2010–Ohio–1368, ¶ 11 (Citations omitted). As such, we find the errors about
which Appellant complains are constitutional errors. We, therefore, must determine the
type of constitutional error in order to properly review these assignments of error.
{¶11} Recently, in State v. Montgomery, -- Ohio St.3d --, 2022-Ohio-2211, --
N.E.3d --, the Ohio Supreme Court analyzed the two types of constitutional error:
In general, “ ‘a constitutional error does not automatically require
reversal of a conviction.’ ” Weaver v. Massachusetts, ––– U.S. ––––, 137
S.Ct. 1899, 1907, 198 L.Ed.2d 420 (2017), quoting Fulminante at 306, 499
U.S. 279, 310, 111 S.Ct. 1246. For purposes of determining whether a
conviction should be reversed, the Supreme Court has divided
constitutional errors into two classes: “trial errors,” which are reviewable for
harmless error, and “structural errors,” which are per se cause for reversal.
State v. Fisher, 99 Ohio St.3d 127, 2003-Ohio-2761, 789 N.E.2d 222, ¶ 9,
citing Fulminante at 306-312, 111 S.Ct. 1246, and State v. Esparza, 74 Ohio
St.3d 660, 661, 660 N.E.2d 1194 (1996). Most constitutional errors are trial
errors. United States v. Gonzalez-Lopez, 548 U.S. 140, 148, 126 S.Ct.
2557, 165 L.Ed.2d 409 (2006). Trial errors occur during “ ‘presentation of
the case to the jury’ and their effect may ‘be quantitatively assessed in the
Morgan County, Case No. 21AP0006 6
context of other evidence presented in order to determine whether [they
were] harmless beyond a reasonable doubt.’ ” (Brackets sic.) Id., quoting
Fulminante at 307-308, 499 U.S. 279, 310, 111 S.Ct. 1246. A constitutional
trial error is harmless when the state demonstrates “ ‘beyond a reasonable
doubt that the error complained of did not contribute to the verdict obtained.’
” Weaver at ––––, 137 S.Ct. at 1907, quoting Chapman v. California, 386
U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
On the other hand, a constitutional error is structural when it affects
the framework in which the trial is conducted, rather than simply being an
error in the trial process itself. State v. Jones, 160 Ohio St.3d 314, 2020-
Ohio-3051, 156 N.E.3d 872, ¶ 20. “ ‘The purpose of the structural error
doctrine is to ensure insistence on certain basic, constitutional guarantees
that should define the framework of any criminal trial.’ ” Id. at ¶ 21, quoting
Weaver at ––––, 137 S.Ct. at 1907, 198 L.Ed.2d 420. Structural errors defy
analysis under harmless-error standards, id. at ¶ 20, and the effect of these
errors is unquantifiable in the context of an entire trial, Gonzalez-Lopez at
150, 126 S.Ct. 2557.
In Weaver, the Supreme Court identified three broad rationales for
finding that a constitutional error is structural. Weaver at ––––, 137 S.Ct. at
1908. A constitutional error has been deemed structural when the right that
is violated protects an interest other than protecting the defendant from
erroneous conviction, like an accused's fundamental right to conduct his
own defense and direct the manner in which he protects his own liberty. Id.,
Morgan County, Case No. 21AP0006 7
citing Faretta v. California, 422 U.S. 806, 834, 95 S.Ct. 2525, 45 L.Ed.2d
562 (1975).
The Supreme Court has deemed a constitutional error structural
when the effects of the error are too difficult to measure. Weaver, ––– U.S.
––––, 137 S.Ct. at 1908. “For example, when a defendant is denied the right
to select his or her own attorney, the precise ‘ “effect of the violation cannot
be ascertained.” ’ ” Id., quoting Gonzalez-Lopez, 548 U.S. at 149, 126 S.Ct.
2557, 165 L.Ed.2d 409, fn. 4, quoting Vasquez v. Hillery, 474 U.S. 254, 263,
106 S.Ct. 617, 88 L.Ed.2d 598 (1986). As a practical matter, in regard to
this type of error, the government will find it almost impossible to show that
the error was harmless beyond a reasonable doubt. Id.
Finally, a constitutional error has been deemed structural when it
always results in a trial that is fundamentally unfair. Id. For example, a trial
court's failure to give a reasonable-doubt instruction always results in a trial
that is fundamentally unfair. Id., citing Sullivan v. Louisiana, 508 U.S. 275,
279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). The rationales for why an
error is deemed structural are not rigid, and more than one may explain why
an error is ultimately held to be structural. Id. Constitutional errors that have
been deemed structural have included the presence of a biased judge,
Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927); the
introduction of a coerced confession, Payne v. Arkansas, 356 U.S. 560, 78
S.Ct. 844, 2 L.Ed.2d 975 (1958); and the unlawful exclusion of members of
the defendant's race from a grand jury, Hillery. These errors permeated the
Morgan County, Case No. 21AP0006 8
“entire conduct of the trial from beginning to end,” Fulminante, 499 U.S. at
310, 111 S.Ct. 1246, 113 L.Ed.2d 302, and “[w]ithout these basic
[constitutional] protections, a criminal trial cannot reliably serve its function
as a vehicle for determination of guilt or innocence,” Rose v. Clark, 478 U.S.
570, 577-578, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986), citing Powell v.
Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932).
Id. at ¶¶ 25-29.
{¶12} While we find the trial court erred by entering a not guilty plea on Appellant’s
behalf at his arraignment when Appellant was not represented by counsel, we find such
error does not comport with the traditional characteristics of a structural error as the error
did not “affect[ ] the framework within which the trial proceeds, rather than simply [being]
an error in the trial process itself” nor did the error “permeate [t]he entire conduct of the
trial from beginning to end’ so the criminal trial cannot ‘reliably serve its function as a
vehicle for determination of guilt or innocence.” See, State v. Perry, 101 Ohio St.3d 118,
2004-Ohio-297, 802 N.E.2d 643, ¶ 25 (Internal quotations and citations omitted).
Because the trial court entered a not guilty plea on Appellant’s behalf and his change of
plea was negotiated thereafter by his appointed counsel, we find any error was harmless
beyond a reasonable doubt.
{¶13} Appellant’s first, second, and third assignments of error are overruled.
IV, V
{¶14} Because Appellant’s fourth and fifth assignments of error require similar
analysis, we shall address said assignments together. In his fourth and fifth assignments
Morgan County, Case No. 21AP0006 9
of error, Appellant argues he was denied his federal and state constitutional rights to the
effective assistance of trial counsel as trial counsel advised him to reject a favorable plea
bargain.
{¶15} When a defendant enters a plea of guilty, he “waives a claim of ineffective
assistance of counsel except to the extent that the ineffective assistance of counsel
caused the defendant's plea to be less than knowing, intelligent, and voluntary.” State v.
Mohammad Khoshknabi, 8th Dist. No. 106117, 2018-Ohio-1752, 111 N.E.3d 813, ¶ 29,
citing State v. Vinson, 8th Dist. No. 103329, 2016-Ohio-7604, 73 N.E.3d 1025, ¶ 30; State
v. Williams, 8th Dist. No. 100459, 2014-Ohio-3415, ¶ 11. After a guilty plea, the defendant
can prevail on an ineffective assistance of counsel claim by demonstrating (1) that
counsel's performance fell below an objective standard of reasonable representation,
“that caused the defendant's guilty plea to be less than knowing, intelligent and voluntary”
and (2) “that there is a reasonable probability that, but for counsel's deficient performance,
the defendant would not have plead guilty * * * and would have insisted on going to trial.”
Id., (Citations omitted). A “reasonable probability” is one “sufficient to undermine
confidence in the outcome.” Id., quoting Strickland v. Washington, 466 U.S. 668, 694, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). The United States Supreme Court and the Ohio
Supreme Court have held a reviewing 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.” State v. Bradley, 42 Ohio St.3d 136, 143, 538 N.E.2d
373 (1989), quoting Strickland, supra at 697.
{¶16} In the instant matter, Appellant does not argue, much less demonstrate, his
guilty plea was not knowingly, intelligently, and voluntarily entered. Nor does Appellant
Morgan County, Case No. 21AP0006 10
argue trial counsel's advice to reject the state’s offer caused his guilty plea to be less than
knowing, intelligent, and voluntary.
{¶17} At the change of plea hearing on October 5, 2021, the trial court warned
Appellant, “the judge alone * * * decides your sentence. Irregardless of anything that
either counsel has said, I’m not obligated to follow any of their recommendations,
although in this case there is not a joint recommendation, but you understand that I, and
I alone, within the law will be deciding your sentence?” Tr. Oct. 5, 2021 Plea Hearing at
9. When asked if he understood, Appellant answered in the affirmative. The trial court
then advised Appellant of the potential prison terms for each offense. The trial court
added, “because of the nature of [Count 1] that if a prison term is imposed it is to be
served consecutively to the – any other prison imposed in the other offenses.” Id. at 10.
The record reflects Appellant understood he could be facing the maximum penalties for
each offense.
{¶18} We find, on this record, Appellant is unable to satisfy the second, or
“prejudice,” prong of the Strickland test. Once Appellant rejected the state’s offer, the trial
court was not required to impose that sentence.2
2Appellant’s claim his counsel was ineffective for recommending he reject the state’s plea offer is not
supported by the record presently before this Court.
Morgan County, Case No. 21AP0006 11
{¶19} Appellant’s fourth and fifth assignments of error are overruled.
{¶20} The judgment of the Morgan County Court of Common Pleas is affirmed.
By: Hoffman, P.J.
Wise, John, J. and
Baldwin, J. concur