[Cite as State v. Hearns, 2023-Ohio-653.]

COURT OF APPEALS

DELAWARE COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO JUDGES:

Hon. W. Scott Gwin, P.J.

 Plaintiff-Appellee Hon. William B. Hoffman, J.

Hon. Craig R. Baldwin, J.

-vsCase No. 22 CAC 06 0051

NICOLE HEARNS 

 Defendant-Appellant O P I N I O N

CHARACTER OF PROCEEDINGS: Appeal from the Delaware Municipal 

Court, Case No. 21TRC03400

JUDGMENT: Affirmed

DATE OF JUDGMENT ENTRY: March 3, 2023

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

AMELIA BEAN-DeFLUMER TODD A. WORKMAN

City Prosecutor 35 North Sandusky Street

Delaware, Ohio 43015

TYLER A. SANDERS

Assistant City Prosecutor

70 North Union Street

Delaware, Ohio 43015
Delaware County, Case No. 22 CAC 06 0051 2

Hoffman, J.

{¶1} Defendant-appellant Nicole Hearns1 appeals the judgment entered by the 

Delaware Municipal Court convicting him following his pleas of guilty to operating a motor 

vehicle while intoxicated (R.C. 4511.19(A)(1)(a)) and driving under suspension (R.C. 

4510.14), and sentencing him to an aggregate term of 60 days in jail. Plaintiff-appellee 

is the state of Ohio.

STATEMENT OF THE FACTS AND CASE

{¶2} On April 8, 2021, the Genoa County Police Department in Delaware County, 

Ohio, received calls from witnesses stating a vehicle had crossed over the center line 

multiple times, almost hitting oncoming traffic. Officers located the vehicle in question, 

which was driven by Appellant. They noted Appellant had glassy, bloodshot eyes, and 

they could smell the odor of alcohol. Appellant’s speech was slurred. When asked if he 

had been drinking, Appellant responded he had a beer, but needed to go to work. 

{¶3} When checking Appellant’s driver’s license, officers discovered he was 

under an ALS suspension. Police conducted field sobriety tests. Appellant exhibited six 

out of six clues of intoxication on the horizontal gaze nystagmus test, six clues on the 

walk and turn test, and two clues on the one-legged stand. The result of Appellant’s 

breath test was .202 weight of alcohol per 210 liters of his breath.

{¶4} Appellant was charged with operating a motor vehicle while intoxicated, 

driving with a prohibited breath alcohol content, and driving under suspension.

1 On June 2, 2022, the trial court granted the State’s motion to amend Appellant’s name on the complaint 

to Robert Larry Hearns. However, the notice of appeal and other documents filed in this Court state 

Appellant’s name as Nicole Hearns. While we will maintain the caption on the case as submitted to this 

Court, we will refer to Appellant using the pronouns he/him, as the parties did in their briefs.
Delaware County, Case No. 22 CAC 06 0051 3

{¶5} The case was originally set for a change of plea hearing on June 15, 2021. 

Appellant failed to appear, and a bench warrant was issued. Appellant was arrested on 

the warrant on June 2, 2022.

{¶6} Appellant appeared for a change of plea hearing on June 3, 2022. Appellant 

was represented by the public defender’s office throughout the proceedings; however, 

the attorney who appeared on his behalf at the change of plea hearing in 2022 was not 

the same attorney who had previously represented him in 2021.

{¶7} At the start of the hearing, counsel for Appellant discussed the plea offer 

with the prosecutor. The prosecutor stated the offer was for Appellant to plead guilty to 

the operating a motor vehicle while intoxicated charge and the driving under suspension 

charge. The prosecutor further noted several prior offenses, including a prior out-of-state 

operating a vehicle while intoxicated conviction. At this point, counsel asked for his 

microphone to be muted so he could talk to Appellant and let him know what he was 

facing if he entered a guilty plea. 

{¶8} After discussing the matter with Appellant, counsel represented to the trial 

court Appellant would like to take the deal. The trial court informed Appellant because of 

the prior out-of-state conviction, the trial court would sentence Appellant according to the 

penalties applicable to a second offense. Appellant asked what that meant. The trial 

court explained the sentencing implications of a second offense, and offered counsel 

more time to research the out-of-state conviction. Counsel asked for a moment to “let 

him [Appellant] know real quickly” what the out-of-state conviction meant. Tr. 9. Counsel 

then indicated Appellant wanted to proceed with the plea. 
Delaware County, Case No. 22 CAC 06 0051 4

{¶9} The trial court explained the penalties for a second offense, and Appellant 

indicated he understood. Appellant indicated he wanted to enter a guilty plea, with an 

understanding of the potential penalties. Appellant entered pleas of guilty to operating a 

vehicle while intoxicated and driving under suspension, and was convicted upon his 

pleas. The State dismissed the charge of operating a vehicle with a prohibited breath 

alcohol content. The trial court sentenced Appellant to 180 days in jail for operating a 

vehicle while intoxicated, with 135 days suspended. The trial court sentenced Appellant 

to 180 days in jail for driving under suspension with 165 days suspended, to be served 

consecutively, for an aggregate jail term of 60 days.

{¶10} It is from the June 3, 2022 judgment of the trial court Appellant prosecutes 

his appeal, assigning as error:

THE DEFENDANT’S RIGHT TO EFFECTIVE ASSISTANCE OF 

COUNSEL GUARNATEED UNDER SECTION 10, ARTICLE I OF THE 

OHIO CONSTITUTION, AND SIXTH AND FOURTEENTH AMENDMENTS 

TO THE UNITED STATES CONSTITUTION WAS VIOLATED BY 

COUNSEL’S FAILURE TO ADEQUATELY KEEP DEFENDANT 

APPRISED OF HIS CASE, AND FAILURE TO ADEQUATELY PREPARE.

{¶11} Appellant argues his trial counsel was ineffective by failing to inform him of 

plea offers made by the State and failing to research his criminal background prior to the 

start of the plea hearing, and counsel was not aware of the sentencing possibilities at the 

hearing.
Delaware County, Case No. 22 CAC 06 0051 5

{¶12} A properly licensed attorney is presumed competent. State v. Hamblin, 37 

Ohio St.3d 153, 524 N.E.2d 476 (1988). Therefore, in order to prevail on a claim of 

ineffective assistance of counsel, Appellant must show counsel's performance fell below 

an objective standard of reasonable representation and but for counsel’s error, the result 

of the proceedings would have been different. 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). In other words, Appellant must show counsel’s conduct so undermined the 

proper functioning of the adversarial process that the trial cannot be relied upon as having 

produced a just result. Id. 

{¶13} A claim of ineffective assistance of counsel is waived by a guilty plea, except 

to the extent the ineffective assistance of counsel caused the defendant's plea to be less 

than knowing, intelligent and voluntary. State v. Williams, 8th Dist. Cuyahoga No. 100459, 

2014-Ohio-3415, ¶ 11, citing State v. Spates, 64 Ohio St.3d 269, 272, 595 N.E.2d 351 

(1992). Where a defendant has entered a guilty plea, he can prevail on an ineffective 

assistance of counsel claim only by demonstrating there is a reasonable probability that 

but for counsel's deficient performance, he would not have pled guilty to the offenses and 

would have insisted on going to trial. Williams, supra at ¶ 11, citing State v. Xie, 62 Ohio 

St.3d 521, 524, 584 N.E.2d 715 (1992); and Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 

88 L.Ed.2d 203 (1985).

{¶14} Appellant has not demonstrated but for the alleged deficient performance 

of counsel, he would not have entered a guilty plea and would have insisted on going to 

trial. The record demonstrates upon Appellant’s arrest on the warrant nearly a year after 

the originally-schedule plea hearing, new counsel from the public defender’s office 
Delaware County, Case No. 22 CAC 06 0051 6

represented Appellant. The new plea hearing was scheduled one day after Appellant 

was arrested on the warrant. While counsel may not have been fully prepared when he 

arrived at the hearing, it is apparent from the record Appellant’s counsel, the prosecutor, 

and the trial court worked together to ensure the plea was knowing, voluntary, and 

intelligent. Counsel for Appellant ascertained the terms of the plea offer from the State 

at the outset of the hearing, and asked for time off the record to confer with Appellant. 

{¶15} The trial court explained to Appellant the implications of his prior out-of-state 

conviction and offered counsel additional time to research the issue. After a second offthe-record discussion with Appellant, counsel indicated Appellant wanted to proceed with 

the plea. The trial court clearly explained the potential penalties which flowed from the 

instant offense being treated as a second offense because of the out-of-state prior 

conviction. Appellant indicated he understood the penalties, and indicated he wanted to 

enter a plea of guilty. As noted by trial counsel, Appellant intended to “fall on his sword.” 

Tr. 14.

{¶16} Based on the record before this Court, we find Appellant has not 

demonstrated a reasonable probability he would not have entered a plea of guilty and 

would have insisted on going to trial in the absence of his alleged deficient performance 

by counsel. We find the record demonstrates although counsel was a last-minute 

substitute for Appellant’s prior attorney, Appellant’s plea was knowingly, voluntarily, and 

intelligently entered, with full knowledge of the sentencing implications of the prior 

conviction.
Delaware County, Case No. 22 CAC 06 0051 7

{¶17} The assignment of error is overruled. The judgment of the Delaware 

Municipal Court is affirmed.

By: Hoffman, J.

Gwin, P.J. and

Baldwin, J. concur