[Cite as State v. Vaughn, 2012-Ohio-316.]

COURT OF APPEALS 

ASHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsSABRINA J. VAUGHN 

 Defendant-Appellant 

JUDGES: 

Hon. Patricia A. Delaney, P. J. 

Hon. W. Scott Gwin, J. 

Hon. William B. Hoffman, J. 

Case No. 2011-COA-021 

O P I N I O N

CHARACTER OF PROCEEDING: Criminal appeal from the Ashland County 

Court of Common Pleas, Case No. 10-CRI030 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: January 30, 2012 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

RAMONA FRANCESCONI-ROGERS ERIN N. POPLAR 

Ashland County Prosecutor ERIN POPLAR LAW, LLC 

110 Cottage Street 1636 Eagle Way 

Ashland, OH 44805 Ashland, OH 44805 
Gwin, P.J. 

{1} On or about February 26, 2010, appellant, Sabrina J. Vaughn, was 

indicted on one count of Trafficking in Heroin in violation of R.C. 2925.03(A)(1), a felony 

of the fifth degree, and one count of Complicity to Trafficking in Heroin in violation of 

R.C. 2923.03(A)(2) and 2925.03(A)(1), a felony of the fourth degree. The violations 

were alleged to have occurred on November 28, 2008 and December 5, 2008, 

respectively. 

{2} On April 21, 2011, appellant changed her plea to the count of Trafficking 

from not guilty to guilty. The count of Complicity to Trafficking was dismissed. Appellant 

was sentenced on June 3, 2011 and appellant's sentencing entry was filed June 6, 

2011. 

{3} Appellant timely appeals raising as her sole assignment of error1

, 

{4} “I. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL 

AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE 

UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 10 OF THE OHIO 

CONSTITUTION BECAUSE HER COURT-APPOINTED COUNSEL FAILED TO 

REQUEST INDEPENDENT LABORATORY TESTING OF ALLEGED HEROIN.” 

I. 

{5} A claim of ineffective assistance of counsel requires a two-prong analysis. 

The first inquiry is whether counsel's performance fell below an objective standard of 

reasonable representation involving a substantial violation of any of defense counsel's 

essential duties to appellant. The second prong is whether the appellant was prejudiced 

 1

 Appellant’s Motion to Supplement the Record to include the State of Ohio's partial discovery 

responses was granted by this Court on October 14, 2011. 
by counsel's ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 

L.Ed.2d 180(1993); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 

674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989). 

{6} In order to warrant a finding that trial counsel was ineffective, the petitioner 

must meet both the deficient performance and prejudice prongs of Strickland and

Bradley. Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 

251(2009). 

{7} To show deficient performance, appellant must establish that “counsel’s 

representation fell below an objective standard of reasonableness.” Strickland v. 

Washington, 466 U.S. at 688, 104 S.Ct. at 2064. This requires showing that counsel 

made errors so serious that counsel was not functioning as the “counsel” guaranteed 

the defendant by the Sixth Amendment. Strickland v. Washington 466 U.S. at 687, 104 

S.Ct. at 2064. Counsel also has a duty to bring to bear such skill and knowledge as will 

render the trial a reliable adversarial testing process. Strickland v. Washington 466 U.S. 

at 688, 104 S.Ct. 2052 at 2065. 

{8} “Thus, a court deciding an actual ineffectiveness claim 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. A convicted defendant making a claim of 

ineffective assistance must identify the acts or omissions of counsel that are alleged not 

to have been the result of reasonable professional judgment. The court must then 

determine whether, in light of all the circumstances, the identified acts or omissions 

were outside the wide range of professionally competent assistance. In making that 

determination, the court should keep in mind that counsel's function, as elaborated in 
prevailing professional norms, is to make the adversarial testing process work in the 

particular case. At the same time, the court should recognize that counsel is strongly 

presumed to have rendered adequate assistance and made all significant decisions in 

the exercise of reasonable professional judgment.” Strickland v. Washington, 466 U.S. 

668 at 689,104 S.Ct. at 2064. 

{9} In light of “the variety of circumstances faced by defense counsel [and] the 

range of legitimate decisions regarding how best to represent a criminal defendant,” the 

performance inquiry necessarily turns on “whether counsel’s assistance was reasonable 

considering all the circumstances.” Strickland v. Washington, 466 U.S. 668 at 689,104 

S.Ct. at 2064. At all points, “[j]udicial scrutiny of counsel’s performance must be highly 

deferential.” Strickland v. Washington, 466 U.S. 668 at 689,104 S.Ct. at 2064. 

{10} Appellant must further demonstrate that he suffered prejudice from his 

counsel’s performance. See Strickland, 466 U.S. at 691, 104 S.Ct. 2066 (“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”). To 

establish prejudice, “[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. To prevail on his ineffective-assistance claim, 

appellant must show, therefore, that there is a “reasonable probability” that the trier of 

fact would not have found him guilty. 

{11} Challenges to guilty pleas based on allegations of ineffective assistance of 

counsel during the plea process are evaluated under the same two-pronged cause and 
prejudice test of Strickland v. Washington, supra, 466 U.S. at 687-88, 104 S.Ct. 2064; 

Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203(1985). In order to 

satisfy the second prong in the context of a guilty plea, appellant must show that “there 

is a reasonable probability that, but for counsel's errors, he would not have pleaded 

guilty and would have insisted on going to trial.” Hill, 474 U.S. at 59, 106 S.Ct. 366, 88 

L.Ed.2d 203. Accord State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 

48, ¶ 81; State v. Bird, 81 Ohio St.3d 582, 585, 692 N.E.2d 1013(1998) State v. Xie, 62 

Ohio St.3d 521, 524-525, 584 N.E.2d 715 (1992). 

{12} In this case, appellant entered a plea of guilty as part of a plea agreement. 

By entering a plea of guilty, the accused is not simply stating that she did the discrete 

acts described in the indictment; she is admitting guilt of a substantive crime. United 

States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927(1989). The guilty plea 

renders irrelevant those constitutional violations not logically inconsistent with the valid 

establishment of factual guilt and which do not stand in the way of conviction if factual 

guilt is validly established. Menna v. New York (1975), 423 U.S. 61, 96 S.Ct. 241, 46 

L.Ed.2d 195, n. 2. Thus, when a defendant enters a plea of guilty as a part of a plea 

bargain she waives all appealable errors, unless such errors are shown to have 

precluded the defendant from entering a knowing and voluntary plea. State v. Kelley, 57 

Ohio St.3d 127, 566 N.E.2d 658(1991); State v. Barnett, 73 Ohio App.3d 244, 249, 596 

N.E.2d 1101 (2nd Dist. 1991); see, also, State v. Wotring, 11th Dist. No. L-99-114, 

2003-Ohio-326, 2003 WL 168225, ¶ 22, appeal denied (2003), 99 Ohio St.3d 1452, 790 

N.E.2d 1217. 
{13} “In many guilty plea cases, the ‘prejudice’ inquiry will closely resemble the 

inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions 

obtained through a trial. For example, where the alleged error of counsel is a failure to 

investigate or discover potentially exculpatory evidence, the determination whether the 

error ‘prejudiced’ the defendant by causing him to plead guilty rather than go to trial will 

depend on the likelihood that discovery of the evidence would have led counsel to 

change his recommendation as to the plea. This assessment, in turn, will depend in 

large part on a prediction whether the evidence likely would have changed the outcome 

of a trial. Similarly, where the alleged error of counsel is a failure to advise the 

defendant of a potential affirmative defense to the crime charged, the resolution of the 

‘prejudice’ inquiry will depend largely on whether the affirmative defense likely would 

have succeeded at trial. See, e.g., Evans v. Meyer, 742 F.2d 371, 375 (CA7 1984) (‘It is 

inconceivable to us ... that [the defendant] would have gone to trial on a defense of 

intoxication, or that if he had done so he either would have been acquitted or, if 

convicted, would nevertheless have been given a shorter sentence than he actually 

received’).” Hill v. Lockhart, 474 U.S. at 370-371, 106 S.Ct. 366, 88 L.Ed.2d 203. 

{14} R.C. 2925.03(A) sets forth the essential elements of trafficking in drugs: 

"No person shall knowingly sell or offer to sell a controlled substance." For purposes of 

R.C. Chapter 2925, a sale is defined as follows: "'Sale' includes delivery, barter, 

exchange, transfer, or gift, or offer thereof, and each transaction of those natures made 

by any person, whether as principal, proprietor, agent, servant, or employee." R.C. 

2925.01(A) (incorporating definition found in R.C. 3719.01(AA)). 
{15} In the case at bar, the evidence reveals that the substances sold by her 

contained detectable amounts of heroin. Appellant argues that because the amounts 

were minuscule the drugs likely would be destroyed in testing. Accordingly, she argues, 

that she could not have been convicted had counsel requested an independent analysis 

of the drugs pursuant to R.C. 2925.51(E). 

{16} The state did not destroy or consume the entire amount of the substances 

making it impossible for appellant to have an independent analysis. There is no 

evidence in the record before this Court that an independent test would destroy the 

substance, or that an insufficient amount of substance is available for testing. Thus, 

there is no reason for this Court to find that trial counsel’s representation of appellant 

was ineffective for failing to request an independent analysis of the substances. Failure 

to request such an analysis is a tactical decision. “Debatable trial tactics do not 

establish ineffective assistance of counsel." State v. Hoffner (2004), 102 Ohio St.3d 

358, 365, 2004-Ohio-3430, ¶ 45.

{17} When it comes to enhancing the penalty, the Supreme Court has stated 

that the statutory hierarchy of penalties based upon the identity and amount of the drug 

presupposes that a detectable amount of a controlled substance is present within the 

substance before the penalty enhancement applies. State v. Chandler, 109 Ohio St. 

3d 223, 846 N.E. 2d 1234, 2006-Ohio-2285, ¶ 18. In that case, the defendants 

pretended to sell crack but actually delivered only baking soda. They were convicted of 

drug trafficking and received the highest penalty enhancement for offering to sell more 

than 100 grams of crack cocaine. Id. at ¶ 19, 846 N.E. 2d 1234. 
{18} The Supreme Court determined that the defendants' convictions of drug 

trafficking could stand because they offered to sell drugs in violation of R.C. 

2925.03(A)(1), regardless of whether actual drugs were involved. Id. at ¶ 9, 846 N.E. 2d 

1234, 69 Ohio St. 2d 445, 432 N.E. 2d 802. However, the Court reversed the penalty 

enhancement, ruling that the state was required to prove the identity of the substance 

as well as a detectable amount of that substance, not for conviction but to impose the 

penalty enhancement. Id. at ¶ 16, 432 N.E.2d 802. In formulating its rationale, the 

Supreme Court noted that by the terms of the penalty provisions in R.C. 2925.03(C), the 

substance must be or contain the drug alleged. Id. at ¶ 18, 432 N.E.2d 802. “This 

language presumes that a detectable amount of cocaine is present within the substance 

before the penalty enhancement applies.” Id. The Court reiterated that the statute is 

clear that a “substance offered for sale must contain some detectable amount of the 

relevant controlled substance” before a person can be sentenced under a penalty 

enhancement such as R.C. 2925.03(C)(4)(g). Id. at ¶ 21, 432 N.E.2d 802. 

{19} “Undoubtedly, a person can be convicted for offering to sell a controlled 

substance in violation of R.C. 2925. 03(A)(1) without actually transferring a controlled 

substance to the buyer.” Chandler at ¶ 9. Accord, Garr v. Warden, Madison Corr. Inst., 

126 Ohio St.3d 334, 2010-Ohio-2449, 933 N.E.2d 1063, ¶26; State v. Scott (1982), 69 

Ohio St.2d 439, 432 N.E.2d 798, syllabus. 

{20} “For purposes of R.C. 2925.03(A), the phrase, ‘offer to sell a controlled 

substance,’ simply means to declare one's readiness or willingness to sell a controlled 

substance or to present a controlled substance for acceptance or rejection. 

Furthermore, the issue of whether a defendant has knowingly made an offer to sell a 
controlled substance in any given case must be determined by examining the totality of 

the circumstances, including ‘the dialogue and course of conduct of the accused.’ 

[State v.] Patterson [( 1982), 69 Ohio St. 2d 445,] 447 [ 23 O.O. 3d 394, 395], 432 N.E. 

2d 802 [ 803– 804].” State v. Burton (Mar. 31, 1995), Greene App. No. 94–CA–13, 

unreported, 1995 WL 137054. Accord State v. McKenzie (Sept. 12, 1996), Jefferson 

App. No. 96–JE–2, unreported, 1996 WL 529520.” State v. Henton (1997), 121 Ohio 

App.3d 501, 510, 700 N.E.2d 371. 

{21} No actual transfer of the drugs must occur in order for a violation of R.C. 

2925.03(A)(1) to occur. State v. Jeter, 6th Dist. No. E–02–047, 2004–Ohio–1332, 2004 

WL 541527, ¶ 26. Moreover, the suspect's subjective intent as to whether he intended 

to sell the informant drugs is irrelevant in this context. “Because intent lies within the 

privacy of a person's own thoughts and is not susceptible to objective proof, intent is 

determined from the surrounding facts and circumstances, and persons are presumed 

to have intended the natural, reasonable and probable consequences of their voluntary 

acts.” (Citations omitted.) State v. Garner (1995), 74 Ohio St.3d 49, 60, 1995-Ohio-168, 

656 N.E.2d 623. 

{22} Because appellant could be convicted for selling or offering to sell a 

controlled substance even if the substance is not recovered and even if the substance 

turns out not to be a controlled substance, appellant cannot demonstrate prejudice from 

counsel’s failure to request an independent analysis of the substances. State v. Scott, 

supra at syllabus. See, Garr v. Warden, Madison Corr. Inst. at ¶28 (where defendant 

offered to sell a drug that was not recovered the offender may be convicted of an MDO 

specification in a properly proven case). We do not believe that testing of the 
substances by an independent laboratory would have led counsel to change his 

recommendation as to the plea, or changed the outcome had appellant gone to trial. 

{23} Appellant’s First Assignment of Error is overruled. 

{24} The judgment of the Court of Common Pleas, Ashland County, Ohio is 

affirmed. 

By Gwin, J., 

Delaney, P.J., and 

Hoffman, J., concur 

 _________________________________ 

 HON. W. SCOTT GWIN 

 

 _________________________________ 

 HON. PATRICIA A. DELANEY 

 _________________________________ 

 HON. WILLIAM B. HOFFMAN 
IN THE COURT OF APPEALS FOR ASHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : 

 : 

 Plaintiff-Appellee : 

 : 

 : 

-vs- : JUDGMENT ENTRY 

 : 

SABRINA J. VAUGHN : 

 : 

 : 

 Defendant-Appellant : CASE NO. 2011-COA-021 

 For the reasons stated in our accompanying Memorandum-Opinion, the judgment of 

the Court of Common Pleas, Ashland County, Ohio is affirmed. Costs to appellant. 

 _________________________________ 

 HON. W. SCOTT GWIN 

 _________________________________ 

 HON. PATRICIA A. DELANEY 

 _________________________________ 

 HON. WILLIAM B. HOFFMAN