[Cite as State v. Simpson, 2021-Ohio-2700.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT

GREENE COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

DAVID L. SIMPSON 

Defendant-Appellant 

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Appellate Case No. 2020-CA-38 

Trial Court Case No. 2020-CR-609 

(Criminal Appeal from 

Common Pleas Court) 

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O P I N I O N 

Rendered on the 6th day of August, 2021. 

. . . . . . . . . . . 

MARCY A. VONDERWELL, Atty. Reg. No. 0078311, Assistant Prosecuting Attorney, 

Greene County Prosecutor’s Office, 61 Greene Street, Suite 200, Xenia, Ohio 45385

 Attorney for Plaintiff-Appellee 

 

JOE CLOUD, Atty. Reg. No. 0040301, 3973 Dayton-Xenia Road, Beavercreek, Ohio 

45432 

 Attorney for Defendant-Appellant 

 . . . . . . . . . . . . . 

TUCKER, P.J. 
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{¶ 1} Defendant-appellant, David L. Simpson, appeals from his convictions on one 

count of voluntary manslaughter, one count of felonious assault and one count of 

tampering with evidence. Simpson, who pleaded no contest to the charges, argues in 

three assignments of error that his pleas should be vacated because the trial court failed 

to fulfill its obligations under Crim.R. 11, and because his defense counsel failed to 

provide effective representation. We find that Simpson’s arguments have no merit, and 

therefore, the convictions are affirmed. 

I. Facts and Procedural History 

{¶ 2} Simpson beat his father to death with a fireplace implement on March 17, 

2018. In Greene C.P. No. 2018-CR-226, the State charged Simpson with one count of 

murder, in violation of R.C. 2903.02(B), and one count of felonious assault, in violation of 

R.C. 2903.11(A)(2). 

{¶ 3} Simpson’s defense counsel negotiated a plea agreement with the State, 

whereby the State agreed to dismiss the charges in Case No. 2018-CR-226 without 

prejudice and, instead, to charge Simpson in the instant case (Greene C.P. No. 2020-

CR-609) by way of a bill of information with one count of voluntary manslaughter, a firstdegree felony pursuant to R.C. 2903.03(A) and (C); one count of felonious assault, a 

second-degree felony pursuant to R.C. 2903.11(A)(2) and (D)(1)(a); and one count of 

tampering with evidence, a third-degree felony pursuant to R.C. 2921.12(A)(1) and (B). 

In return, Simpson agreed to enter pleas of no contest. 

{¶ 4} On September 17, 2020, the trial court held a hearing during which it 

accepted Simpson’s pleas, and on September 24, 2020, Simpson appeared before the 

court for sentencing. The trial court sentenced him to serve consecutive prison terms of 
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10 years for voluntary manslaughter and five years for felonious assault, along with a 

concurrent term of 36 months for tampering with evidence, resulting in an aggregate term 

of 15 years. Simpson timely filed a notice of appeal to this court on October 8, 2020. 

II. Analysis 

{¶ 5} We address Simpson’s first and second assignments of error together. For 

his first assignment of error, Simpson contends that: 

 THE TRIAL COURT ERRED AS A MATTER OF LAW AT THE PLEA 

HEARING WHEN IT FAILED TO COMPLY WITH [CRIM.R.] 11(C)(2) 

(a)[-](b) BECAUSE THE NO CONTEST PLEA OF THE DEFENDANT WAS 

NOT MADE KNOWINGLY, INTELLIGENTLY, FREELY, AND 

VOLUNTARILY[,] THEREBY DENYING THE DEFENDANT HIS RIGHTS 

TO DUE PROCESS GRANTED BY THE OHIO AND UNITED STATES 

CONSTITUTIONS. 

And for his second assignment of error, Simpson contends that: 

 THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED 

PLAIN ERROR AT THE PLEA HEARING WHEN IT FAILED TO COMPLY 

WITH [CRIM.R.] 11 BECAUSE THE NO CONTEST PLEA OF THE 

DEFENDANT WAS NOT MADE KNOWINGLY, INTELLIGENTLY, 

FREELY, AND VOLUNTARILY[,] THEREBY DENYING THE DEFENDANT 

HIS RIGHTS TO DUE PROCESS GRANTED BY THE OHIO AND UNITED 

STATES CONSTITUTIONS. 

{¶ 6} Simpson argues, first, that he did not knowingly and voluntarily enter his 

pleas of no contest “because he [mistakenly believed] that [his right to appeal] * * * 
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applied” not only to Case No. 2020-CR-609, but also to Case No. 2018-CR-226. 

Appellant’s Brief 4-5. He argues, second, that the trial court failed to fulfill its obligation 

to inform him that, by entering pleas of no contest in Case No. 2020-CR-609, he would 

“waive” his appellate rights in Case No. 2018-CR-226. Appellant’s Brief 8. In support 

of his arguments, Simpson has submitted an unauthenticated document that was not 

made a part of the record in either of the underlying cases; the State has objected to 

Simpson’s submission. Supplement to Appellant’s Brief 1-2, June 15, 2021; see

Appellee’s Brief 9-10. 

{¶ 7} To “satisfy the requirements of due process, a plea of guilty or no contest 

must be knowing, intelligent, and voluntary, and the record must affirmatively 

demonstrate” as much. State v. Chessman, 2d Dist. Greene No. 03CA100, 2006-Ohio835, ¶ 15, citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). 

A “plea must [therefore] be made with a full understanding of its consequences.” Id., 

citing State v. Bowen, 52 Ohio St.2d 27, 368 N.E.2d 843 (1977). Accordingly, “a ‘trial 

court must inform [a] defendant that he is waiving his privilege against compulsory selfincrimination, his right to a jury trial, his right to confront his accusers, and his right of 

compulsory process of witnesses.’ ” State v. Montgomery, 148 Ohio St.3d 347, 2016-

Ohio-5487, 71 N.E.3d 180, ¶ 41, quoting State v. Ballard, 66 Ohio St.2d 473, 423 N.E.2d 

115 (1981), paragraph one of the syllabus; see also Crim.R. 11(C)(2)(a)-(c). 

{¶ 8} A trial court’s compliance with the mandates of Crim.R. 11, “absent any 

indicia of coercion, creates a presumption that [a defendant’s] plea was knowing, 

intelligent, and voluntary.” (Citation omitted.) State v. Ogletree, 2d Dist. Montgomery 

No. 21995, 2008-Ohio-772, ¶ 7. Although “[l]iteral compliance with [the rule] is certainly 
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the preferred practice,” a plea need not be vacated if a “reviewing court determines that 

there was substantial compliance.” State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 

474 (1990), citing State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977). 

Substantial compliance “means that under the totality of the circumstances[,] the 

defendant subjectively underst[ood] the implications of his plea and the rights he [was] 

waiving.” (Citations omitted.) Id.

{¶ 9} Here, Simpson argues that his pleas should be vacated because he did not 

understand that he was waiving his right to appeal in Case No. 2018-CR-226, a case in 

which he and the State moved jointly for the dismissal of all charges against him without 

prejudice. Yet, as this court has already determined, the trial court’s dismissal of the 

charges in Case No. 2018-CR-226 “merely returned [Simpson] to the same position” in 

which he found himself before he was charged in that case. Decision and Entry 3, May 

3, 2021. The dismissal of the case, in other words, precluded the possibility of a verdict 

or final order from which Simpson could bring an appeal. Thus, Simpson did not waive 

his right to appeal in Case No. 2018-CR-226 by entering into a plea agreement with the 

State, because the execution of the agreement essentially rendered the case moot. 

{¶ 10} Furthermore, the trial court complied literally with the requirements of 

Crim.R. 11 before it accepted Simpson’s pleas at the hearing on September 17, 2020, 

giving rise to a presumption that Simpson entered the pleas intelligently, knowingly and 

voluntarily. Ogletree at ¶ 7; see also Crim.R. 11(C)(2); Transcript of Proceedings 5:22-

19:4, Sept. 17, 2020. Simpson has not provided any argument, citation to authority or 

evidence that would suffice to rebut this presumption. 

{¶ 11} In his brief, Simpson relies on an unauthenticated document that was not 
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made a part of the record of the instant case, or part of the record in Case No. 2018-CR226, to support his claim of having mistakenly believed that “ ‘by signing the no contest 

plea agreement[,] [he] could appeal * * * [C]ase [No. 2018-CR-226] and pr[o]cede to trial,’ 

” which he maintains “is the only reason [he] signed [the] agreement.’ ” Appellant’s Brief 

5, quoting Supplement to Appellant’s Brief 1-2. The State has objected to the document, 

and because it is outside the record, we decline to consider it. Even otherwise, 

Simpson’s assertion would strain credulity in light of his plea colloquy with the trial court, 

during which he repeatedly confirmed his understanding to the contrary. See Transcript 

of Proceedings 5:22-19:4. 

{¶ 12} The record demonstrates that the trial court complied literally with the 

requirements of Crim.R. 11 before it accepted Simpson’s pleas in Case No. 2020-CR609, and the transcript of the plea colloquy belies Simpson’s claim that he expected, even 

after entering his pleas, to have the right to proceed to trial and to commence an appeal 

in Case No. 2018-CR-226, in which he and the State moved jointly to dismiss all charges 

against him without prejudice, pursuant to their plea agreement. As a result, we hold 

that the trial court did not err by accepting Simpson’s pleas of no contest to the charges 

against him in Case No. 2020-CR-609. Simpson’s first and second assignments of error 

are overruled. 

{¶ 13} For his third assignment of error, Simpson contends that: 

 THE NO CONTEST PLEAS ENTERED BY THE DEFENDANT 

WERE NOT KNOWING, INTELLIGENT OR VOLUNTARY, OR FREELY 

GIVEN[,] DUE TO THE INEFFECTIVE ASSISTANCE OF COUNSEL. 

{¶ 14} Finally, Simpson argues that his defense counsel ineffectively “failed to 
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inform [him] that” he would “waiv[e] his appellate rights” in Case No. 2018-CR-226 by 

entering into the aforementioned plea agreement with the State. Appellant’s Brief 10. 

He also faults counsel for “fail[ing] to obtain a final judgment entry” in Case No. 2018-CR226, in which all charges against Simpson were dismissed without prejudice. Id.

{¶ 15} To prevail on a claim of “ineffective assistance of counsel, a defendant must 

satisfy the two-pronged test in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 

2052, 80 L.Ed.2d 674 (1984).” State v. Cardenas, 2016-Ohio-5537, 61 N.E.3d 20, ¶ 38 

(2d Dist.). The Strickland test requires a showing that: “(1) defense counsel’s 

performance was so deficient that [it did not fulfill the right to assistance of counsel] 

guaranteed under the Sixth Amendment to the United States Constitution; and (2) * * * 

defense counsel’s errors prejudiced the defendant.” Id., citing Strickland at 687. 

Judicial “scrutiny of counsel’s performance must be highly deferential,” so “a [reviewing] 

court must indulge a strong presumption that counsel’s conduct falls within the wide range 

of reasonable professional assistance * * *.” Strickland at 689, citing Michel v. Louisiana, 

350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955). To show prejudice, the defendant 

bears the burden to demonstrate “a reasonable probability that, but for counsel’s 

unprofessional errors, the result of [a given] proceeding would have been different.” Id.

at 694; State v. Southern, 2d Dist. Montgomery No. 27932, 2018-Ohio-4886, ¶ 47. A 

failure to make either showing defeats the claim. Cardenas at ¶ 38. 

{¶ 16} Simpson fails to make both of these showings. The transcript of Simpson’s 

plea colloquy strongly suggests that Simpson’s defense counsel did not offer advice 

premised on inaccurate statements of the law, and Simpson himself indicated that he was 

satisfied with the assistance he received. See Transcript of Proceedings 9. In the 
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unauthenticated supplement to Simpson’s brief, to which we referred in our analysis of 

the first assignment of error, Simpson attributes a series of dubious statements to 

counsel, but we reiterate that we decline to consider the document because it is not part 

of the record in the instant case or the record in Case No. 2018-CR-226. Even if the 

document were part of the record, many of the statements that Simpson attributes to 

counsel appear to be taken out of context or simply irrelevant. See Supplement to 

Appellant’s Brief 1. 

{¶ 17} Moreover, the charges against Simpson in Case No. 2018-CR-226 were 

dismissed without prejudice on a motion filed jointly by Simpson and the State. Simpson 

now faults his defense counsel for “fail[ing] to obtain a final judgment entry” in the case, 

yet we fail to see how counsel could have obtained a final judgment entry in the absence 

of any legal or factual issues to adjudicate. Appellant’s Brief 10. Counsel’s purported 

failure to obtain a judgment, then, could not have resulted in any prejudice to Simpson. 

{¶ 18} Simpson has not established that his defense counsel provided less than 

reasonably professional assistance, nor has he established that he was somehow 

prejudiced by counsel’s purported failure to obtain a final judgment in a case in which all 

charges against him were dismissed. Simpson’s third assignment of error is overruled. 

III. Conclusion 

{¶ 19} The trial court complied literally with the requirements of Crim.R. 11 during 

Simpson’s plea colloquy, and Simpson has not established that he did not enter his pleas 

intelligently, knowingly and voluntarily. Although Simpson claims that he did not 

understand that he would not have the right to appeal in a case in which all charges 

against him were dismissed without prejudice, the record indicates that he understood 
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the ramifications of entering his pleas. In addition, Simpson has not demonstrated that 

his defense counsel rendered ineffective assistance by failing to explain that he would not 

have the right to appeal in a case in which all charges against him were dismissed without 

prejudice. The record includes no evidence of counsel’s purported failure to explain, nor 

has Simpson shown that the purported failure to explain has resulted in any prejudice. 

Therefore, Simpson’s convictions are affirmed. 

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HALL, J. and EPLEY, J., concur. 

Copies sent to: 

Marcy A. Vonderwell 

Joe Cloud 

Hon. Michael A. Buckwalter