[Cite as State v. Tribune, 2017-Ohio-1407.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

WARREN COUNTY 

STATE OF OHIO, : 

 

 Plaintiff-Appellee, : CASE NO. CA2016-04-027 

 : O P I N I O N 

 - vs - 4/17/2017 

 : 

GEORGE RICHARD TRIBUNE, : 

 Defendant-Appellant. : 

CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS 

Case No. 15 CR 31192 

David P. Fornshell, Warren County Prosecuting Attorney, Kirsten A. Brandt, 520 Justice 

Drive, Lebanon, Ohio 45036, for plaintiff-appellee 

Jennifer S. Getty, 7501 Paragon Road, Lower Level, Dayton, Ohio 45459, for defendantappellant 

 RINGLAND, J.

{¶ 1} Defendant-appellant, George Tribune, appeals his conviction and sentence in 

the Warren County Court of Common Pleas for operating a vehicle while under the influence 

of alcohol (OVI) with an accompanying habitual offender specification. For the reasons 

detailed below, we affirm. 

{¶ 2} This is Tribune's twentieth OVI conviction. On August 24, 2015, Tribune was 
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indicted on two OVI counts in violation of R.C. 4511.19(A)(1)(a) and R.C. 4511.19(A)(1)(h). 

Both counts were accompanied with specifications that Tribune had previously been 

convicted of five or more OVI offenses within the past 20 years pursuant to R.C. 

2941.1413(A). 

{¶ 3} Tribune pled guilty to both counts and the attending specifications. At the 

October 29, 2015 sentencing hearing, the trial court merged the two counts and imposed a 

three-year prison term for the violation of R.C. 4511.19(A)(1)(h) to be served consecutive 

with a five-year mandatory prison term for the repeat offender specification. Tribune now 

appeals, raising three assignments of error for review. For ease of discussion, we will 

address Tribune's assignments of error out of order. 

{¶ 4} Assignment of Error No. 2: 

{¶ 5} MR. TRIBUNE WAS DENIED HIS CONSTITUTIONAL RIGHTS TO 

EFFECTIVE ASSISTANCE OF TRIAL COUNSEL. 

{¶ 6} In his second assignment of error, Tribune argues that he was denied effective 

assistance of trial counsel because his attorney had not reviewed the state's evidence prior 

to his guilty plea. We find Tribune's argument to be without merit. 

{¶ 7} To establish a claim of ineffective assistance of counsel, the appellant must 

show that counsel's actions were outside the wide range of professionally competent 

assistance and that he was prejudiced as a result of counsel's actions. State v. Patrick, 12th 

Dist. Butler No. CA2015-05-090, 2016-Ohio-995, ¶ 13, citing Strickland v. Washington, 466 

U.S. 668, 687, 104 S.Ct. 2052 (1984). In the context of a guilty plea, prejudice will not be 

found unless a defendant demonstrates there is a reasonable probability that, if not for 

counsel's errors, he would not have pled guilty and would have insisted on going to trial. 

State v. Peters, 12th Dist. Clermont No. CA2015-07-066, 2016-Ohio-5288, ¶ 14. 

{¶ 8} The record here supports Tribune's contention that his trial counsel did not 
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review the evidence prior to the guilty plea. The reasons for that failure, however, are fully 

provided in the record and do not support a claim of ineffective assistance of counsel. As the 

record indicates, Tribune and his trial counsel were present for a pretrial hearing when the 

trial court noted that the parties had entered into a plea agreement. During the hearing, 

Tribune's trial counsel noted that he had not reviewed the state's evidence, but had advised 

Tribune that there may be potential defenses to his case. Still, Tribune proceeded with a 

guilty plea. As Tribune's trial counsel stated on the record: 

[TRIAL COUNSEL]: Your Honor, may I make a statement at this 

time? I want to make a record of the fact that I have not 

reviewed the evidence against my client. I explained that to him. 

THE COURT: You have not? 

[TRIAL COUNSEL]: I have not. And I also explained to him that 

I thought we should at least give a Motion to Suppress a shot, 

and he and I talked about that. It's not customary to plead as 

charged in a situation like this without being offered anything at 

all. He certainly has nothing to lose by going to trial and we 

talked about that. So I want the record to be clear, you know, my 

standpoint what would [sic] I tried to do as far as Mr. Tribune. 

 Now, he explained to me that he felt that he committed the 

crime and he wants to get it going as quickly as possible. And 

that's why we are here. 

THE COURT: Well, I think I'm going to do something that 

accomplishes both objectives. Have you provided discovery, 

[Prosecutor]? 

[PROSECUTOR]: Yes, Your Honor. 

[TRIAL COUNSEL]: Okay. I'm going to accept the plea at this 

time. I'll make a finding of guilty. During this pre-sentence 

investigation it takes a little time for them to get over to interview 

him. If you want to go over and go over the evidence with him on 

this and if he reconsiders, then I'm going to give you an 

opportunity to withdraw your plea. It's going to toll time for sure, 

but if you go over the evidence with him and he sees that he has 

a case that or a defense in this case, then we'll reconsider it at 

that time. 

Tribune did not attempt to withdraw his guilty plea and the matter proceeded to sentencing. 
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{¶ 9} Based on our review, we find the record does not support Tribune's claim of 

ineffective assistance of counsel. While an attorney's failure to review evidence in a case 

would ordinarily be problematic, the record establishes that the guilty plea was done entirely 

on Tribune's own accord. Here, Tribune's trial counsel candidly admitted that he had not 

reviewed the state's evidence and had advised his client of potential defenses, even noting 

that he believed that a motion to suppress was worth pursuing. Still, the record reflects that 

the decision to plead guilty under the circumstances was Tribune's decision based on his 

belief that he committed the crime and wanted to resolve the legal proceedings as quickly as 

possible. The record supports a finding that Tribune's decision to plead guilty was fully his 

own, untainted by ineffective assistance of counsel, and there is no evidence to suggest that 

Tribune would not have pled guilty under different circumstances. Accordingly, we fail to find 

any merit to Tribune's argument on this issue. 

{¶ 10} Separately, Tribune argues he received ineffective assistance of counsel 

because his trial counsel failed to oppose the $1,350 mandatory fine that was imposed at 

sentencing. Tribune asserts that there was a reasonable probability that the trial court would 

have found him indigent and unable to pay the fine had his trial counsel filed an affidavit of 

indigency regarding his ability to pay the fine. 

{¶ 11} However, this court and other Ohio courts have held that the failure to file an 

affidavit of indigency only constitutes ineffective assistance of counsel when the record 

shows a reasonable probability that the trial court would have found the defendant indigent 

and unable to pay the fine had the affidavit been filed. State v. Russia, 12th Dist. Butler No. 

CA2013-01-003, 2013-Ohio-4125, ¶ 8. In the present case, Tribune does not offer any 

evidence that the trial court would have found him indigent and unable to pay the fine had the 

affidavit been filed. Tribune's PSI was not included in the record on appeal and there is no 

evidence to suggest that he would otherwise be unable to pay the fine. While Tribune was 
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found indigent for purposes of appointed counsel, that is separate and distinct from a 

determination of being indigent for purposes of paying a mandatory fine. State v. Bolden, 

12th Dist. Preble No. CA2003-03-007, 2004-Ohio-184, ¶ 35. As there is no evidence before 

this court to suggest that the trial court would have found Tribune indigent and unable to pay 

the fine, we also fail to find ineffective assistance of counsel on this issue. 

{¶ 12} As a result, we find that Tribune did not receive ineffective assistance of 

counsel. Tribune's second assignment of error is without merit and hereby overruled. 

{¶ 13} Assignment of Error No. 3: 

{¶ 14} MR. TRIBUNE'S PLEA WAS NOT KNOWLINGLY [sic], INTELLIGENTLY, 

AND VOLUNTARILY MADE IN ACCORDANCE WITH CRIMINAL RULE 11 AND WAS 

THEREFORE UNCONSTITUTIONAL. 

{¶ 15} In his third assignment of error, Tribune argues that his guilty plea was not 

knowing, intelligent, or voluntary because neither he nor his trial counsel had the opportunity 

to review the state's evidence. We find no merit to Tribune's argument. 

{¶ 16} When a defendant enters a guilty plea in a criminal case, the plea must be 

knowingly, intelligently, and voluntarily made. State v. Butcher, 12th Dist. Butler No. CA2012-

10-206, 2013-Ohio-3081, ¶ 8. "Failure on any of those points renders enforcement of the 

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

State v. Payne, 12th Dist. Butler No. CA2015-12-219, 2016-Ohio-5470, ¶ 7. To ensure that a 

defendant's guilty plea is knowingly, intelligently and voluntarily made, the trial court must 

engage the defendant in a plea colloquy pursuant to Crim.R. 11(C). Id. 

{¶ 17} As relevant here, pursuant to Crim.R. 11(C)(2), the trial court may not accept a 

defendant's guilty plea without first addressing the defendant personally and: 

(a) Determining that the defendant is making the plea voluntarily, 

with understanding of the nature of the charges and of the 

maximum penalty involved, and if applicable, that the defendant 
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is not eligible for probation or for the imposition of community 

control sanctions at the sentencing hearing. 

(b) Informing the defendant of and determining that the 

defendant understands the effect of the plea of guilty or no 

contest, and that the court, upon acceptance of the plea, may 

proceed with judgment and sentence. 

(c) Informing the defendant and determining that the defendant 

understands that by the plea the defendant is waiving the rights 

to jury trial, to confront witnesses against him or her, to have 

compulsory process for obtaining witnesses in the defendant's 

favor, and to require the state to prove the defendant's guilt 

beyond a reasonable doubt at a trial at which the defendant 

cannot be compelled to testify against himself or herself. 

{¶ 18} A guilty plea is invalid if the trial court does not strictly comply with Crim.R. 

11(C)(2)(c), which requires the trial court to verify the defendant understands the 

constitutional rights he is waiving. State v. Shavers, 12th Dist. Butler No. CA2014-05-119, 

2015-Ohio-1485, ¶ 9. However, the trial court need only substantially comply with the 

nonconstitutional notifications required by Crim.R. 11(C)(2)(a) and (b). Id. Under the 

substantial compliance standard, the appellate court must review the totality of the 

circumstances surrounding the defendant's plea and determine whether the defendant 

subjectively understood the effects of his plea. State v. Givens, 12th Dist. Butler No. 

CA2014-02-047, 2015-Ohio-361, ¶ 12. 

{¶ 19} After a thorough review of the record, we find the record does not support 

Tribune's claim. The trial court conducted an appropriate Crim.R 11(C) plea colloquy before 

Tribune entered his guilty plea. While Tribune argues that his plea cannot be knowing, 

intelligent, or voluntary based on a failure to review evidence, for the reasons detailed in his 

second assignment of error, we decline to adopt Tribune's reasoning. As previously noted, 

the record supports a finding that Tribune entered his guilty plea with full awareness of the 

circumstances. Tribune's trial counsel indicated that he had not fully reviewed the evidence 

in the case, but advised that Tribune "felt that he committed the crime and he wants to get it 
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going as quickly as possible." The record reveals that Tribune was well aware of the offense 

to which he was pleading guilty, his twentieth such OVI offense, the effect of his plea, the 

rights he was waiving, and the fact that he faced a lengthy prison term as a result of his plea. 

Accordingly, we find appellant's guilty plea was knowing, intelligent, and voluntary. Tribune's 

third assignment of error is overruled. 

{¶ 20} Assignment of Error No. 1: 

{¶ 21} THE TRIAL COURT ERRED IN SENTENCING MR. TRIBUNE TO AN 

EXCESSIVE SENTENCE THAT WAS NOT SUPPORTED BY THE RECORD AND 

CONTRARY TO LAW. 

{¶ 22} In his first assignment of error, Tribune alleges that his eight-year prison 

sentence is excessive and contrary to law. We disagree. 

{¶ 23} This court reviews felony sentences pursuant to the standard of review set 

forth in R.C. 2953.08(G)(2) to determine whether the imposition of those sentences is clearly 

and convincingly contrary to law. State v. Julious, 12th Dist. Butler No. CA2015-12-224, 

2016-Ohio-4822, ¶ 8. Pursuant to that statute, an appellate court may modify or vacate a 

sentence only if, by clear and convincing evidence, that "the record does not support the trial 

court's findings under relevant statutes or that the sentence is otherwise contrary to law." 

State v. Harp, 12th Dist. Clermont No. CA2015-12-096, 2016-Ohio-4921, ¶ 7. A sentence is 

not clearly and convincingly contrary to law where the trial court considers the purposes and 

principles of sentencing as set forth in R.C. 2929.11, as well as the seriousness and 

recidivism factors listed in R.C. 2929.12, and sentences a defendant within the permissible 

statutory range. State v. Brandenburg, 12th Dist. Butler Nos. CA2014-10-201 and CA2014-

10-202, 2016-Ohio-4918, ¶ 9. 

{¶ 24} Tribune was convicted and sentenced for third-degree felony OVI in violation 

of R.C. 4511.19(A)(1)(h) and the accompanying specification under R.C. 2941.1413(A). The 
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trial court imposed the maximum sentence of five years for the repeat-offender specification, 

to be served prior to and consecutive to three years for the underlying OVI conviction. See 

State v. South, 144 Ohio St.3d 295, 2015-Ohio-3930, ¶ 1. 

{¶ 25} On appeal, Tribune argues that the trial court's sentence was unduly harsh and 

contrary to law. While acknowledging his prior criminal conduct, which includes 19 prior OVI 

convictions and an aggravated arson conviction, Tribune argues that his offense was "not the 

worst form of the offense." Tribune also states that he is remorseful for his actions and 

acknowledges that he is an alcoholic, which is a direct cause of his criminal conduct. 

{¶ 26} However, based on our review of the record, we find no error in the trial court's 

sentencing decision. The trial court properly considered all relevant sentencing factors 

including the purposes and principles of R.C. 2929.11, as well as the factors listed in R.C. 

2929.12, and the trial court's sentence was within the permissible statutory range for the 

offense. Though Tribune was cooperative throughout these proceedings and appears to 

show genuine remorse for his lifestyle choices, the trial court's decision to impose the 

maximum prison term was appropriate to protect the public and punish him for his offenses. 

Tribune has a lengthy criminal history and continues to pose a serious danger to the innocent 

public. Tribune's untreated alcoholism, 19 prior OVI convictions, and his continued 

commission of OVI offenses are considerations that support the trial court's decision. 

Accordingly, we find Tribune's sentence is not contrary to law and his first assignment of error 

is overruled. 

{¶ 27} Judgment affirmed. 

 S. POWELL, P.J., and PIPER, J., concur.