[Cite as State v. Bennett, 2012-Ohio-3664.]

STATE OF OHIO ) IN THE COURT OF APPEALS 

 )ss: NINTH JUDICIAL DISTRICT 

COUNTY OF SUMMIT ) 

STATE OF OHIO 

 Appellee 

 v. 

JOSEPH L. BENNETT 

 Appellant 

C.A. No. 26241 

APPEAL FROM JUDGMENT 

ENTERED IN THE 

COURT OF COMMON PLEAS 

COUNTY OF SUMMIT, OHIO 

CASE No. CR 11 04 0894 

DECISION AND JOURNAL ENTRY

Dated: August 15, 2012 

 

DICKINSON, Judge. 

INTRODUCTION 

{¶1} Joseph Bennett pleaded guilty to several charges stemming from leading police on 

a high-speed chase through Akron and, several days later, being caught in possession of narcotics 

inside a detention facility. The trial court sentenced him to 12 years in prison, and this Court 

granted his motion for delayed appeal. We dismiss Mr. Bennett’s third assignment of error due 

to lack of jurisdiction. We affirm the judgment of the trial court because it exercised proper 

discretion in sentencing Mr. Bennett, Mr. Bennett knowingly, intelligently, and voluntarily chose 

to waive his right to use compulsory process to obtain witnesses in his favor and his right to 

refuse to testify against himself at trial, and he did not show that his lawyer was ineffective. 

BACKGROUND 

{¶2} Mr. Bennett pleaded guilty to leading police on a high-speed chase on Arlington 

Road and throwing something, possibly drugs, out the window along the way. He was charged 
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with failure to comply with an order or signal of a police officer and tampering with evidence 

based on that incident. According to the indictment, he was also charged with three counts 

stemming from events that occurred five days after the chase. Those charges included 

prohibition of conveyance of weapons, drugs of abuse, or intoxicating liquor onto the grounds of 

a specified governmental facility, aggravated possession of drugs, and tampering with evidence. 

There are few details about the factual circumstances of the crimes in the record that has been 

transmitted to this Court. The parties seem to agree, however, that Mr. Bennett threw something 

from the car window while fleeing from police and that he was later found in possession of 

methamphetamine inside a detention facility. They also seem to agree that a police officer was 

seriously injured by a drunk driver while searching for the item that Mr. Bennett threw from the 

car window during the chase. 

{¶3} The State agreed to dismiss the tampering with evidence charge stemming from 

the incident inside the detention facility and to amend the aggravated possession of drugs charge 

from a felony of the third degree to a felony of the fifth degree. Mr. Bennett then pleaded guilty 

to the remaining four charges as amended, including three third-degree felonies and one fifthdegree felony. More than a month after the plea hearing, the trial court sentenced Mr. Bennett to 

12 years in prison. Within a month of receiving his sentence, Mr. Bennett moved the trial court 

for leave to withdraw his guilty pleas. The trial court denied his motion without a hearing. He 

has appealed. 

PLEA COLLOQUY 

{¶4} Mr. Bennett’s second assignment of error is that the trial court should not have 

accepted his guilty plea because it did not properly notify him that, by pleading guilty, he would 

be waiving his right to subpoena witnesses to testify on his behalf and that he could not be 
3 

 

compelled to testify at trial. The State has argued that the trial court’s advice was sufficient 

despite the fact that the court did not quote verbatim from Rule 11 of the Ohio Rules of Criminal 

Procedure. 

{¶5} “When a defendant enters a plea in a criminal case, the plea must be made 

knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of 

the plea unconstitutional under both the United States Constitution and the Ohio Constitution.” 

State v. Barker, 129 Ohio St. 3d 472, 2011–Ohio–4130, ¶ 9 (quoting State v. Engle, 74 Ohio St. 

3d 525, 527 (1996)). Under Rule 11(C)(2)(c) of the Ohio Rules of Criminal Procedure, before 

accepting a guilty plea in a felony case, a trial court must inform the defendant and determine 

that he understands that, by pleading guilty, he is waiving certain constitutional rights. 

Specifically, the court must advise the defendant that, by pleading guilty, he “is waiving the 

rights to jury trial, to confront witnesses against him . . . , to have compulsory process for 

obtaining witnesses in [his] favor, and to require the state to prove [his] guilt beyond a 

reasonable doubt at a trial at which the defendant cannot be compelled to testify against 

himself[.]” Crim. R. 11(C)(2)(c). 

{¶6} According to the Ohio Supreme Court, the “preferred method” is for the trial 

court to use the language of the rule, but it has held that “a trial court’s failure to literally 

comply” with Criminal Rule 11(C) “does not invalidate a plea agreement if the record 

demonstrates that the trial court explained the constitutional right ‘in a manner reasonably 

intelligible to that defendant.’” State v. Barker, 129 Ohio St. 3d 472, 2011-Ohio-4130, ¶ 14 

(quoting State v. Veney, 120 Ohio St. 3d 176, 2008-Ohio-5200, ¶ 27). A trial court may fulfill 

the purpose of the rule, that is, it may convey sufficient information to the defendant so that he 
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can make a voluntary and intelligent decision about whether to plead guilty, without reading the 

rule to the defendant verbatim. Id. at ¶ 15. 

{¶7} In this case, before the trial court addressed Mr. Bennett, his lawyer told the court 

that Mr. Bennett had “reviewed the plea form” and that she had “gone over his constitutional 

rights” with him. The trial court advised Mr. Bennett that, by changing his pleas to guilty, he 

would “give up [his] right to a jury trial, give up [his] right to making the prosecutor prove all the 

charges against [him] beyond a reasonable doubt, give up the right to have [his lawyer] subpoena 

and cross-examine witnesses for [him], give up the right to testify or not testify in [his] own 

defense, and . . . give up the right to then appeal that [he] would have had if we’d gone to trial . . 

. .” 

{¶8} The trial court also acknowledged that Mr. Bennett had signed a written plea form 

and asked him whether his lawyer had “go[ne] over it with [him] to [his] satisfaction.” Mr. 

Bennett answered, “[y]es.” The written plea form that Mr. Bennett signed on August 17, 2011, 

provided that “I have been informed by my attorney and by the Judge that by pleading guilty, I 

waive the following Constitutional Rights, and I understand these rights and it is my intention to 

waive them: (a) My right to a jury trial[;] (b) My right to confront and cross-examine the 

witnesses against me[;] (c) My right to have compulsory process, that is the right to subpoena 

witnesses to court to testify in my favor[;] (d) My right to require the State to prove my guilt 

beyond a reasonable doubt at trial at which I could not be compelled to testify against myself.” 

{¶9} The Ohio Supreme Court has held that “when a trial court addresses all the 

constitutional rights in the oral colloquy, a reviewing court should be permitted to consider 

additional record evidence to reconcile any alleged ambiguity in it.” State v. Barker, 129 Ohio 

St. 3d 472, 2011–Ohio–4130, ¶ 23-24 (distinguishing State v. Veney, 120 Ohio St. 3d 176, 2008-
5 

 

Ohio-5200, on basis that, in Veney, the trial court had completely omitted from the plea colloquy 

any mention of the defendant’s constitutional right to require the state to prove his guilt beyond a 

reasonable doubt). In Mr. Bennett’s case, the trial court told him that he would be giving up the 

right to have his lawyer subpoena witnesses for him and it told him that he would be giving up 

the right to testify or not testify in his own defense. Therefore, under Barker, we are permitted to 

consider whether additional evidence in the record clarifies any alleged ambiguity in those 

statements. 

{¶10} In regard to the constitutional right “to have compulsory process for obtaining 

witnesses in [his] favor,” any alleged ambiguity in the trial court’s advice was clarified by the 

written plea form Mr. Bennett acknowledged signing and discussing with his lawyer. Crim. R. 

11(C)(2)(c). The trial court warned Mr. Bennett that he would be giving up his “right to have 

[his lawyer] subpoena . . . witnesses for [him].” Criminal Rule 11(C)(2)(c) does not use the 

word “subpoena.” The Rule uses the term “compulsory process.” Although “subpoena” is not a 

common word, it is likely more comprehensible to a non-lawyer than the term “compulsory 

process.” See State v. Barker, 129 Ohio St. 3d 472, 2011–Ohio–4130, ¶ 20 (explaining that the 

use of more common words rather than a rote recitation of the legal terminology of the rule “can 

assist the defendant in understanding the rights forfeited by entry of a plea”). We believe that the 

trial court’s statement about Mr. Bennett’s lawyer being able to “subpoena” witnesses “for” him 

conveyed sufficient information to allow Mr. Bennett to make a voluntary and intelligent 

decision about whether to plead guilty. See Barker, 2011-Ohio-4130, at ¶ 15. Even if this Court 

had determined that the trial court’s statement created some ambiguity, it would have been 

clarified by the written plea form that listed the “right to have compulsory process” and 

explained that right as “the right to subpoena witnesses to court to testify in my favor.” Under 
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the totality of the circumstances, Mr. Bennett was adequately informed of his right to 

compulsory process and he knowingly, intelligently, and voluntarily waived that right. 

{¶11} Mr. Bennett has also argued that he was not adequately informed that, if he went 

to trial, he could not be compelled to take the witness stand. During the colloquy, the trial court 

told Mr. Bennett that, by pleading guilty, he would be giving up his right “to testify or not testify 

in [his] own defense.” The written plea form that Mr. Bennett signed informed him that, by 

pleading guilty, he was giving up his “right to require the State to prove [his] guilt beyond a 

reasonable doubt at a trial at which [he] could not be compelled to testify against [him]self.” The 

form also provided that, “I have either read this Written Plea of Guilty or it has been read to me 

and I understand it, and I wish to waive all of the rights set forth herein and voluntarily plead 

GUILTY to the charge(s) set forth above.” 

{¶12} Criminal Rule 11 provides that, by pleading guilty, a defendant waives his right 

“to require the state to prove [his] guilt beyond a reasonable doubt at a trial at which the 

defendant cannot be compelled to testify against himself[.]” Crim. R. 11(C)(2)(c). As the 

language of the written plea form tracked the language of Criminal Rule 11, any alleged 

ambiguity in the trial court’s statement to Mr. Bennett about his right to choose not to testify was 

sufficiently clarified by the form. Under the totality of the circumstances, Mr. Bennett was 

adequately informed of his right to refuse to testify against himself at trial and he knowingly, 

intelligently, and voluntarily waived that right. See State v. Coleman, 9th Dist. No. 26008, 2012-

Ohio-1712, ¶ 11 (approving trial court’s use of identical language). Mr. Bennett’s second 

assignment of error is overruled because he knowingly, intelligently, and voluntarily chose to 

waive his right to use compulsory process to obtain witnesses in his favor and his right to refuse 

to testify against himself at trial. 
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MOTION TO WITHDRAW GUILTY PLEA 

{¶13} Mr. Bennett’s third assignment of error is that the trial court incorrectly denied his 

post-sentence motion to withdraw his guilty plea without holding a hearing. The State has 

argued that this Court lacks jurisdiction to consider this assignment of error because the motion 

to file delayed appeal was limited to the judgment of conviction attached to Mr. Bennett’s notice 

of appeal. 

{¶14} On December 30, 2011, Mr. Bennett filed a notice of appeal from the trial court’s 

judgment entered September 21, 2011. He did not attach to his notice of appeal the October 26, 

2011, entry denying his motion to vacate his guilty plea nor did he refer to that entry in the body 

of his notice. At the same time, he moved this Court for leave to file a delayed appeal. The 

motion to file a delayed appeal did not include any reference to the trial court’s ruling on his 

post-sentence motion to withdraw his guilty plea. 

{¶15} A trial court’s entry imposing sentence in a criminal case is a final, appealable 

order. State v. Lester, 130 Ohio St. 3d 303, 2011-Ohio-5204, paragraph one of the syllabus. A 

denial of a post-sentence motion to withdraw a guilty plea is also a final, appealable order. State 

v. Kerns, 9th Dist. No. 11CA0051–M, 2011–Ohio–6788, ¶ 7. Under Rule 3(D) of the Ohio 

Rules of Appellate Procedure, a “notice of appeal . . . shall designate the judgment, order or part 

thereof appealed from[.]” 

{¶16} In this case, the only judgment Mr. Bennett designated in his notice of appeal was 

his sentencing entry. If he desired to appeal the denial of his post-sentence motion to withdraw 

his guilty plea, he should have either timely filed a notice of appeal designating that judgment 

under Rule 3(D) of the Ohio Rules of Appellate Procedure or moved this Court for leave to file a 

delayed appeal from that judgment. See App. R. 4(A); App. R. 5(A). In the absence of either a 
8 

 

timely filed notice of appeal or motion to file a delayed appeal from the October 26, 2011, entry 

denying the post-sentence motion to withdraw his guilty plea, this Court lacks jurisdiction to 

consider this assignment of error. See State v. Wilson, 9th Dist. No. 26238, 2012-Ohio-2890, ¶ 

4-5. Mr. Bennett’s third assignment of error is dismissed. 

SENTENCING 

{¶17} Mr. Bennett’s first assignment of error is that the trial court considered irrelevant 

and unconstitutional factors in sentencing him, violating his statutory and constitutional rights. 

He has argued that he was prejudiced by the trial court’s consideration of several factors, 

including his membership in a white supremacist organization, his display of certain tattoos 

associated with that membership, and the fact that a police officer was seriously injured while 

searching for evidence that Mr. Bennett had thrown from his car while fleeing from police. 

{¶18} In State v. Kalish, 120 Ohio St. 3d 23, 2008–Ohio–4912, ¶ 4, a plurality of the 

Ohio Supreme Court determined that, in light of State v. Foster, 109 Ohio St. 3d 1, 2006–Ohio–

856, when appellate courts review criminal sentences, they must follow a “two-step approach.” 

The first step is to determine whether the sentence is contrary to law. Kalish, 2008–Ohio–4912, 

at ¶ 4. The second step is to determine whether the court exercised proper discretion in imposing 

the term of imprisonment. Id. at ¶ 26. In this case, the defendant has not argued that any part of 

his sentence is contrary to law and a review of the record reveals that his sentence falls within the 

statutorily permissible range for his crimes. R.C. 2929.14(A)(3), (5), effective Apr. 7, 2009. 

Therefore, the question is whether the trial court exercised proper discretion in imposing Mr. 

Bennett’s sentence. 
9 

 

Membership in the Aryan Brotherhood 

{¶19} “The United States Supreme Court has recognized that even a sentence within the 

limits of a state’s sentencing laws may violate due process if the sentencing proceedings are 

fundamentally unfair.” State v. Arnett, 88 Ohio St. 3d 208, 217 (2000) (citing Gardner v. 

Florida, 430 U.S. 349, 358 (1977)). Thus, the Supreme Court has observed that a sentencing 

court may not base its decision on “factors that are constitutionally impermissible or totally 

irrelevant to the sentencing process, such as for example the race, religion, or political affiliation 

of the defendant.” Zant v. Stephens, 462 U.S. 862, 885 (1983). Mr. Bennett has relied on 

Dawson v. Delaware, 503 U.S. 159 (1992), to support his proposition that the trial court’s 

consideration, for the purposes of sentencing, of evidence that Mr. Bennett was a member of the 

Aryan Brotherhood violated his First and Fourth Amendment rights. 

{¶20} In Dawson v. Delaware, 503 U.S. 159 (1992), the United States Supreme Court 

held that the defendant’s First Amendment rights were violated by the admission into evidence at 

a capital sentencing hearing of a narrow stipulation regarding Mr. Dawson’s membership in the 

Aryan Brotherhood. The stipulation described the group as “a white racist prison gang that 

began in the 1960’s in California . . . . Separate gangs calling themselves the Aryan Brotherhood 

now exist in many state prisons including Delaware.” Id. at 162. In that case, the Court 

determined that the receipt of the stipulation regarding his membership was constitutional error 

because the narrow scope of the stipulation left the evidence “totally without relevance to . . . 

[the] sentencing proceeding.” Id. at 165. Even if the stipulation had been written in a way that 

provided evidence that the Delaware chapter to which Mr. Dawson belonged held racist beliefs, 

those beliefs had no relevance to the sentencing proceeding because both the defendant and the 

murder victim were white. Id. at 166. The Court, however, refused to “erect a per se barrier to 
10 

 

the admission of evidence concerning one’s beliefs and associations at sentencing simply 

because those beliefs and associations are protected by the First Amendment.” Id. at 165. The 

Court in Dawson pointed out that such evidence could be admissible to show, among other 

things, the bias of a witness or the likelihood that the defendant poses a future danger to society. 

Id. at 164-66. The Court explained that the State “might have avoided this problem if it had 

presented evidence showing more than mere abstract beliefs [of the defendant].” Id. at 167. 

{¶21} In Ohio, the sentencing court in a felony case is required to “be guided by the 

overriding purposes of felony sentencing. . . . [including] to protect the public from future crime 

by the offender and others and to punish the offender. To achieve those purposes, the sentencing 

court shall consider the need for incapacitating the offender, deterring the offender and others 

from future crime, rehabilitating the offender, and making restitution to the victim of the offense, 

the public, or both.” R.C. 2929.11(A), effective July 1, 1996. “A sentence imposed for a felony 

shall be reasonably calculated to achieve the two overriding purposes of felony sentencing . . . 

commensurate with and not demeaning to the seriousness of the offender’s conduct and its 

impact upon the victim, and consistent with sentences imposed for similar crimes committed by 

similar offenders.” R.C. 2929.11(B), effective July 1, 1996. 

{¶22} In this case, there is nothing in the record to indicate that race played a role in the 

crime. The fact that racism was not involved in the crime, however, does not mean that the trial 

court necessarily violated Mr. Bennett’s constitutional rights by considering for purposes of 

sentencing his membership in the Aryan Brotherhood. Such evidence may have been relevant at 

sentencing to prove the likelihood of recidivism if properly supported by the proper evidence 

about the Aryan Brotherhood. The Court in Dawson explained that one’s membership in the 

Aryan Brotherhood could not be used to enhance a penalty simply because the abstract beliefs 
11 

 

espoused by the group are generally considered to be morally reprehensible. Dawson v. 

Delaware, 503 U.S. 159, 167 (1992). The evidence, however, can be used to the extent that it 

tends to show that the offender is likely to reoffend, so that an increased penalty may be 

necessary to achieve the purpose of protecting the public from future crime. See R.C. 

2929.11(A), effective July 1, 1996. 

{¶23} “At the sentencing hearing, the court, before imposing sentence, shall consider the 

record, any information presented at the hearing by any person pursuant to division (A) of this 

section, and, if one was prepared, the presentence investigation report . . . .” R.C. 2929.19(B)(1), 

effective Apr. 7, 2009. It is apparent from the transcript of the sentencing hearing that a 

presentence investigation report was prepared in this case, but it does not appear in the record 

before this Court. 

{¶24} If a presentence investigation report is prepared, “there is a presumption that the 

trial court utilized it in imposing a sentence.” State v. Cox, 9th Dist. No. 19773, 2000 WL 

372317, *2 (Apr. 12, 2000) (citing State v. O’Neal, 9th Dist. No. 19255, 1999 WL 771917, *5 

(Sept. 29, 1999)). The trial court mentioned at the sentencing hearing that the presentence 

investigation report described “Mr. Bennett’s avowed and apparently proud membership in the 

Aryan Brotherhood” and the fact that he is “a captain” in that organization. Beyond that, it is 

impossible to discern what else the presentence investigation report provided on that topic 

because the report is not included in the record. “This Court has repeatedly held that it is the 

duty of the appellant to ensure that the record on appeal is complete.” Riggle v. McFadden, 9th 

Dist. No. 08CA0007, 2008–Ohio–5656, ¶ 5 (quoting Lunato v. Stevens Painton Corp., 9th Dist. 

No. 08CA009318, 2008–Ohio–3206, ¶ 11)). Without the presentence investigation report, we 

are unable to properly review the trial court’s sentencing decision, so we must presume the 
12 

 

validity of the trial court proceedings. See City of Cuyahoga Falls v. James, 9th Dist. No. 21119, 

2003-Ohio-531, ¶ 9 (quoting Knapp v. Edwards Labs., 61 Ohio St. 2d 197, 199 (1980)). 

Unintended Consequences of the Criminal Behavior 

{¶25} Mr. Bennett has also argued that the trial court incorrectly considered the 

undisputed fact that a police officer was severely injured by a drunk driver while searching for 

the item that Mr. Bennett threw from the window of his car while leading police on a high-speed 

chase through Akron neighborhoods. He has cited State v. Dykas, 185 Ohio App. 3d 763, 2010-

Ohio-359, ¶ 24 (8th Dist.), for the proposition that the trial court should not have considered the 

officer’s injury because it was not reasonably foreseeable. 

{¶26} “It is not necessary that the defendant ‘be in a position to foresee the precise 

consequence of his conduct; only that the consequence be foreseeable in the sense that what 

actually transpired was natural and logical in that it was within the scope of the risk created by 

his conduct.’” State v. Dykas, 185 Ohio App. 3d 763, 2010-Ohio-359, ¶ 24 (quoting State v. 

Losey, 23 Ohio App. 3d 93, 96 (10th Dist. 1985)). Mr. Bennett has argued that the officer’s 

injury was caused by the unforeseeable intervening cause of a drunk driver, which should 

“absolve [Mr. Bennett] of criminal liability.” Id. at ¶ 25. Presumably the missing presentence 

investigation report contains some details about how the officer was injured that would shed 

some light on the foreseeability question. 

{¶27} Regardless of those details, however, Mr. Bennett has not made a constitutional 

argument in regard to the court’s consideration of the officer’s injury. The only argument is that 

it should not have been considered because it was not a relevant factor under Section 2929.12 of 

the Ohio Revised Code. It makes no difference in this matter whether Mr. Bennett could have 

been held criminally liable for the officer’s injury because he was not charged with causing it. 
13 

 

The circumstances of the injury may prove to make it more or less relevant to the crimes Mr. 

Bennett admitted committing, depending on how attenuated the causation. In any event, in the 

absence of any details, we cannot say that the injury to the officer was, as a matter of law, 

“totally irrelevant” to the sentencing considerations of the trial court. See Zant v. Stephens, 462 

U.S. 862, 885 (1983). 

{¶28} The trial court warned Mr. Bennett at the plea hearing that it wanted a presentence 

investigation completed primarily for the purpose of uncovering the circumstances of his failure 

to comply with an order of a police officer. The court made it clear that those facts would 

“weigh heavily in the sentencing” because of the danger the high-speed chase posed to others. 

At the sentencing hearing, the State presented information, presumably from the presentence 

investigation report, indicating that Mr. Bennett had had “two attempts” at community control 

and that he had been “sent back to prison on both of those.” Mr. Bennett stated on the record 

that he had spent eight years in prison. Although Mr. Bennett was just 31 years old at the time, 

the State described his criminal record as spanning almost two decades and including two prior 

charges of failure to comply with an order or signal of a police officer. Mr. Bennett’s lawyer 

admitted that Mr. Bennett had sped away from the police at high rates of speed and did not 

object to the State’s assertion that he had led police on a chase at over 100 miles per hour on 

Arlington Road, nearly causing several collisions along the way. The trial court explained that 

“the danger [Mr. Bennett] posed to the community was monumental, not just to the officer, but 

to lots of other people.” 

{¶29} Based on these considerations, the trial court sentenced Mr. Bennett to the 

maximum sentence on his pleas of guilty to failure to comply, aggravated possession of drugs, 

and tampering with evidence. The court sentenced him to less than half of the maximum 
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permissible sentence for prohibition of conveyance of weapons, drugs of abuse, or intoxicating 

liquor onto the grounds of a specified governmental facility. The trial court exercised proper 

discretion in sentencing Mr. Bennett, and his first assignment of error is overruled. 

INEFFECTIVE ASSISTANCE OF COUNSEL 

{¶30} Mr. Bennett’s fourth assignment of error is that his lawyer was ineffective for 

failing to object to the consideration of irrelevant and prejudicial evidence at the sentencing 

hearing, failing to object or notify the Court of the ways in which the court’s advice at the plea 

colloquy failed to conform to Rule 11 of the Ohio Rules of Criminal Procedure, and failing to 

move to withdraw Mr. Bennett’s guilty plea before the court sentenced him. To establish that his 

lawyer was ineffective, Mr. Bennett “must show (1) deficient performance by counsel, i.e., 

performance falling below an objective standard of reasonable representation, and (2) prejudice, 

i.e., a reasonable probability that, but for counsel’s errors, the proceeding’s result would have 

been different.” State v. Hale, 119 Ohio St. 3d 118, 2008–Ohio–3426, ¶ 204 (citing Strickland v. 

Washington, 466 U.S. 668, 687–88, 694 (1984); State v. Bradley, 42 Ohio St. 3d 136, paragraph 

two of the syllabus (1989)). “A reasonable probability is a probability sufficient to undermine 

confidence in the outcome.” Strickland, 466 U.S. at 694. “An error by counsel, even if 

professionally unreasonable, does not warrant setting aside the judgment of a criminal 

proceeding if the error had no effect on the judgment.” Id. at 691. 

{¶31} Mr. Bennett’s first argument is that his lawyer was ineffective for failing to 

object, after his guilty pleas were accepted, to the consideration of evidence regarding his 

membership in the Aryan Brotherhood, his “Aryan Brother tattoos,” and the fact that a police 

officer was seriously injured by a drunk driver while searching for the item Mr. Bennett threw 

from the car window while fleeing from police. Having reviewed the record in regard to the first 
15 

 

assignment of error, this Court has determined that the trial court exercised proper discretion in 

considering those issues in sentencing Mr. Bennett. As there was no error in the trial court’s 

consideration of those issues, Mr. Bennett cannot show that his lawyer was ineffective for failing 

to object. 

{¶32} Mr. Bennett’s next argument is that his lawyer was ineffective for failing to object 

or notify the Court of the ways in which the court’s advice at the plea colloquy failed to conform 

to Rule 11 of the Ohio Rules of Criminal Procedure. In analyzing Mr. Bennett’s arguments in 

regard to his second assignment of error, we determined that the trial court properly advised him 

of the rights he was forfeiting by entering a plea of guilty. Therefore, he cannot show that his 

lawyer was ineffective for not objecting or notifying the trial court of any problems with its 

advice during the plea colloquy. 

{¶33} Mr. Bennett’s final argument is that his lawyer was ineffective for failing to move 

to withdraw Mr. Bennett’s guilty pleas before the court sentenced him. According to his brief, 

Mr. Bennett “was hesitant to go through with the sentencing hearing and expressed a desire to 

withdraw his guilty plea.” He has argued that his lawyer fell below an objective standard of 

reasonable representation by failing to ensure that Mr. Bennett wished to proceed to sentencing 

rather than move to withdraw his guilty pleas before the sentencing hearing. 

{¶34} There is no evidence that Mr. Bennett wanted to withdraw his pleas at any time 

between the August 17 plea hearing and the September 21 sentencing hearing. After the 

sentencing hearing, in the motion to withdraw the guilty pleas, Mr. Bennett’s lawyer indicated 

that, “[j]ust prior to sentencing, Mr. Bennett stated that he wanted to withdraw his plea.” His 

lawyer also indicated, however, that she immediately advised him that, if he wanted to withdraw 

his pleas, he needed to do so before sentencing while such motions are freely granted. Despite 
16 

 

that admonition, Mr. Bennett decided to go forward with the sentencing hearing. A review of the 

transcript of the sentencing hearing reveals that Mr. Bennett gave the trial court no indication 

that he was not completely comfortable with the court pronouncing sentence at that time. 

According to the record, he did not decide to withdraw his pleas until after he learned what the 

sentence would be. Without evidence in the record indicating that Mr. Bennett expressed a 

desire to withdraw his pleas before sentencing, this Court cannot determine whether his trial 

lawyer’s failure to move to withdraw the pleas before sentencing fell below an objective standard 

of reasonable representation. See Strickland v. Washington, 466 U.S. 668, 691 (1984). The only 

indication in the record appears after sentencing and is in the form of a motion. Even if we 

considered that evidence, it does not support Mr. Bennett’s argument that his lawyer’s 

performance was deficient in any way. Mr. Bennett’s fourth assignment of error is overruled. 

CONCLUSION 

{¶35} Mr. Bennett’s first assignment of error is overruled because, based on our review 

of the record, the trial court exercised proper discretion in sentencing Mr. Bennett. His second 

assignment of error is overruled because the trial court properly advised him at his plea hearing 

and he knowingly, intelligently, and voluntarily chose to waive his right to use compulsory 

process to obtain witnesses in his favor and his right to refuse to testify against himself at trial. 

His third assignment of error is dismissed because this Court lacks jurisdiction to consider it. 

His fourth assignment of error is overruled because he did not show that his lawyer was 

ineffective. The judgment of the Summit County Common Pleas Court is affirmed. 

Judgment affirmed. 
17 

 

 There were reasonable grounds for this appeal. 

 We order that a special mandate issue out of this Court, directing the Court of Common 

Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy 

of this journal entry shall constitute the mandate, pursuant to App.R. 27. 

 Immediately upon the filing hereof, this document shall constitute the journal entry of 

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the 

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is 

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the 

mailing in the docket, pursuant to App.R. 30. 

 Costs taxed to Appellant. 

 

 CLAIR E. DICKINSON 

 FOR THE COURT 

WHITMORE, P. J. 

CARR, J. 

CONCUR.

APPEARANCES:

ADAM VAN HO, Attorney at Law, for Appellant. 

SHERRI BEVAN WALSH, Prosecuting Attorney, and RICHARD S. KASAY, Assistant 

Prosecuting Attorney, for Appellee.