State v. Hawks, CA2021-11-103

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtBYRNE, J.
Citation2022 Ohio 4137
PartiesSTATE OF OHIO, Appellee, v. JESSE HAWKS, Appellant.
Docket NumberCA2021-11-103,CA2021-11-104
Decision Date21 November 2022

2022-Ohio-4137

STATE OF OHIO, Appellee,
v.

JESSE HAWKS, Appellant.

Nos. CA2021-11-103, CA2021-11-104

Court of Appeals of Ohio, Twelfth District, Warren

November 21, 2022


CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS Case Nos. 21CR37894 and 21CR38472

David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A. Brandt, Assistant Prosecuting Attorney, for appellee.

Craig A. Newburger, for appellant.

OPINION

BYRNE, J.

{¶1} In this consolidated appeal, Jesse Hawks contends that his defense counsel provided ineffective assistance of counsel. For the reasons described below, we find that Hawks has failed to demonstrate ineffective assistance and we affirm Hawks' convictions.

I. Procedural and Factual Background

{¶2} In March 2021, in case number 21CR37894, a Warren County grand jury indicted Hawks on one count of aggravated possession of drugs in violation of R.C. 2925.11(A).

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The following month, the Warren County Court of Common Pleas appointed defense counsel to represent Hawks. In May 2021, Hawks moved for intervention in lieu of conviction pursuant to R.C. 2951.041.

{¶3} While the possession charge was pending, Hawks remained incarcerated at the Warren County Jail. Hawks requested a medical furlough due to significant medical needs. On May 24, 2021, the court filed an entry and order granting Hawks' requested medical furlough. The court ordered Hawks released to Atrium Medical Center and further ordered that Hawks, upon discharge from Atrium Medical Center, "shall immediately return to the Warren County Jail." The entry and order indicated that Hawks' failure to return to the Warren County Jail would result in the filing of escape charges.

{¶4} Three days later, the court issued an order reflecting that Hawks had failed to return to the Warren County Jail from his medical furlough. The court ordered a capias warrant be issued.

{¶5} On October 11, 2021, a Warren County grand jury indicted Hawks for one count of escape, a violation of R.C. 2921.34(A)(1). This indictment occurred in case number 21CR38472-that is, in a second, separate case from case number 21CR37894, the case involving the possession charge. The state premised the escape charge on the allegations related to Hawks failing to return to jail from his medical furlough to Atrium Medical Center.

{¶6} The court appointed the same defense counsel who was representing Hawks on the possession charge to represent Hawks on the escape charge. On October 21, 2021, the court held a hearing on intervention in lieu of conviction in the possession case and a pretrial hearing and scheduling conference with respect to the escape charge at the same time. Hawks appeared at the combined hearing with his defense counsel.

{¶7} At the combined hearing, the court asked Hawks' counsel whether Hawks

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would offer a plea on the escape charge. Defense counsel indicated that he did not have a plea ready yet on the escape charge but that another hearing was scheduled with respect to the escape charge, six days later, on October 27, 2021. Defense counsel indicated that it was his hope that they would have a plea ready on the escape charge by then.

{¶8} The court then asked why the parties could not resolve the plea that day. Defense counsel responded by stating that he and the assistant prosecutor did not "know much" about the escape charge as a grand jury had just indicted Hawks.

{¶9} The prosecutor then offered, "I believe he was indicted last week and was arraigned last week. This was a quick set. I was able to complete discovery but I think it was only on Tuesday. So [defense counsel] likely hasn't had a chance to even review that yet. So it's a very quick setting in terms of trying to get the escape case resolved." The court, referring to the previously scheduled upcoming hearing on the escape charge, responded, "Okay. You can do it on the 27th."

{¶10} Defense counsel then replied: "I mean it doesn't matter. If he [referring to Hawks] wants to resolve it today, I'm willing to do the plea form with [the assistant prosecutor] today to try to resolve it today, that's fine. Like I said, [the assistant prosecutor] and I walked right into this today."

{¶11} The court asked defense counsel if he had talked to Hawks about the offense and plea. Defense counsel responded,

I was on the previous case [referring to the possession charge]. I know what the allegation is. It's from when he was in the hospital while the other case was pending and it's a walk away from the hospital. So I mean I'm aware of the allegations

The court then asked Hawks, "Okay. Do you want to get this over today with a plea or do you want to wait and see what the discovery reveals and let your attorney review this and discuss it with you?" Hawks responded, "I'd like to resolve all of this today, Your Honor."

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{¶12} The court proceeded with the plea hearing. The court, pursuant to Crim.R. 11, informed Hawks of the various rights he was foregoing by pleading guilty, including his right to a jury trial and the state's burden of proof, the right to confront and compel witnesses, and the right against self-incrimination. Hawks individually acknowledged those rights and acknowledged that he understood he was giving up those rights.

{¶13} Hawks pleaded guilty to the possession charge. The court granted Hawks intervention in lieu of conviction on the possession charge, stayed the possession proceedings, and placed Hawks under the general supervision of the Adult Probation Department for three years. Hawks also pleaded guilty to the escape charge. The court found Hawks guilty of escape and sentenced him to three years of community control.

{¶14} Hawks appealed both his possession charge and his escape charge. This court sua sponte consolidated the two appeals.

II. Law and Analysis

{¶15} While this is a consolidated appeal arising from both the possession charge and the escape charge, Hawks' appellate brief only argues and assigns error with respect to his conviction on the escape charge. Hawks does not assign error with regard to the possession charge, so we need not analyze that charge further.

{¶16} With respect to the escape charge, Hawks' sole assignment of error states:

{¶17} APPELLANT'S CONVICTION FOR ESCAPE MUST BE REVERSED DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL.

{¶18} Hawks contends that his defense counsel was ineffective because his counsel had no knowledge of the state's discovery and therefore could not advise Hawks concerning that discovery, discuss potential defenses, or consider "sentencing nuances." Hawks argues that his counsel was deficient by "leaving the decision to [Hawks] to get [his plea]

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done today [that is, at the October 21, 2021 hearing], without the benefit of diligent representation * * *." After our review of the record and the applicable case law we conclude that Hawks is incorrect.

A. Standard of Review

{¶19} "To establish ineffective assistance of counsel, appellant must show (1) deficient performance by counsel, that is, performance falling below an objective standard of reasonable representation, and (2) prejudice, that is, a reasonable probability that but for counsel's errors, the result of the...

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