[Cite as State v. Chase , 2021-Ohio-1006.]

IN THE COURT OF APPEALS ELEVENTH APPELLATE DISTRICT LAKE COUNTY, OHIO

STATE OF OHIO, : O P I N I O N Plaintiff-Appellee, : CASE NOS. 2020-L-070 - vs - : 2020-L-071 RICHARD A. CHASE, JR., : Defendant-Appellant. :
Criminal Appeals from the Lake County Court of Common Pleas, Ca se Nos. 2018 CR 001302 and 2018 CR 000996. Jud g ment: Affirmed.

Charles E. Coulson , Lake County Prosecutor, Teri Daniel and Jennifer A. McGee , Assistant Prosecutors, Lake County Administration Building, 105 Main Street, P.O. Box 490, Painesville, Ohio 44077 ( For Plaintiff-Appellee )

. Stephen J. Futterer, Willoughby Professional Building, 38052 Euclid Avenue, #105, Willou g hb y , Ohio 44094 ( For Defendant-Appellant )

.

THOMAS R. WRIGHT, J. {¶1} Appellant, Richard A. Chase, Jr., challenges his concurrent pri son sentences of one year for aggravated possession of drugs, a fel ony of the fifth degree, and five years for aggravated possession of drugs, a felony of the second degree, after pleading guilty to both offenses. We affirm. {¶2} The first offense occurred on September 18, 2018, when Chase wa s stopped in Mentor for an unilluminated license plate. Chase wa s arrested for driving2 under suspension. Officers then did an inventory search of the car and found a glass methamphetamine pipe and a disguised soda can containing 0.26 g rams of methamphetamine. {¶3} The second charge stemmed from an October 11, 2018 incident. C hase called police because someone had broken into his work van. Up on arrival, police saw the man responsible for the break-in throw something into the v an. Officers arrested the suspect, and with Chase’s consent, they searched the van and fo und two scales, $565 in cash, a dollar bill with white powder on it, a glass smoking pi pe with residue, and 27.66 grams of methamphetamine. {¶4} Sentencing was set for July 2, 2019. On July 1, 2019, Chase mo ved for a three-week continuance because he was recovering from injuries sustained in a motorcycle accident. Sentencing was rescheduled for August 19, 2019, but Chase failed to appear, and the court issued a warrant for his arrest. Chas e was subsequently arrested at his home, and sentence was imposed November 6, 2019. {¶5} Chase’s first of three assigned errors asserts: {¶6} “[1.] The trial court erred in its sentence of defendant-appell ant in that clear and convincing evidence in the record shows that the trial cour t did not properly weigh the principles and purposes of felony sentencing in R.C. 2929.1 1 or the seriousness and recidivism factors in R.C. 2929.12.” {¶7} Chase argues that the trial court did not properly consider the factors and considerations in R.C. 2929.11 and R.C. 2929.12 when it sentenc ed him to five years in prison on the second charge of aggravated possession, improperl y used his nonappearance at his sentencing hearing against him, failed to consider his drug3 dependence, and incorrectly found he lacked remorse. Chase fur ther argues that his criminal history did not support a five-year sentence. {¶8} R.C. 2929.11 and 2929.12 require the sentencing court to consid er certain factors when imposing a felony sentence but do not mandate judi cial fact-finding. State v. Foster , 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 42. “‘A s ilent record raises the presumption that a trial court considered the factors conta ined in R.C. 2929.12.’” State v. Sheffey , 11th Dist. Ashtabula No. 2016-A-0075, 2017-Ohio-5634, ¶ 14, q uoting State v. Adams , 37 Ohio St.3d 295, 525 N.E.2d 1361 (1988), paragraph three of the syllabus. {¶9} Moreover, the Ohio Supreme Court very recently held that “[n]ot hing in R.C. 2953.08(G)(2) permits an appellate court to independently weigh the evidence in the record and substitute its judgment for that of the trial court concerning the sentence that best reflects compliance with R.C. 2929.11 and 2929.12.” State v. Jones , __ Ohio.St.3d __, 2020-Ohio-6729, __ N.E.3d __, ¶ 42. “R.C. 2953.08(G)(2)(b) * * * does not provide a basis for an appellate court to modify or vacate a sentence bas ed on its view that the sentence is not supported by the record under R.C. 2929.11 and 2929.12.” (Emphasis added.) Id. at ¶ 39. {¶10} Given the holding in Jones , we cannot review whether Chase’s sentence is supported by the record under R.C. 2929.11 and 2929.12. We wil l address Chase’s argument to the limited extent that Chase claims (1) the trial court’s explicit findings lack support in the record, and (2) the trial court explicitly relie d on facts that it was precluded from considering by law. See Jones at ¶ 47-49 (Fischer, J., concurring).4 {¶11} First, Chase argues the trial court improperly used his nonappe arance against him and did not reasonably make inquiry as to why he di d not appear for sentencing. Contrary to Chase’s argument, nonappearance for co urt-ordered hearings is a proper factor for a trial court to consider when imposing an individual felony sentence. See R.C. 2929.12 (in addition to considering the factors set forth in the divisions of this statute, the sentencing court may consider any other facts that are relevant to achieving the purposes and principles of felony sentencing); see also State v. Stouffer , 11th Dist. Lake No. 2015-L-032, 2015-Ohio-4637, ¶ 16-17; State v. Anderson , 1st Dist. Hamilton No. C-030449, 2004-Ohio-760, ¶ 15. {¶12} Further, Chase’s trial counsel moved for a three-week continuan ce due to Chase’s accident and injuries. That continuance was granted, a nd no secondary motion was made. Chase failed to appear after being granted his reque sted continuance to heal from his injuries and provided no reason for his failure to app ear despite having the opportunity to do so. Inquiry was not required. {¶13} Next, Chase argues the court erred when it stated that Chase fa ils to acknowledge and deal with his drug abuse problem. {¶14} The court stated at the sentencing hearing: JUDGE: * * * [T]here are factors that make the offense more ser ious. Certainly the amount is above the minimum needed in order to achieve the felony of the second degree. * * * Defendant has no t responded favorably to previously imposed sanctions. Alcohol an d drug abuse may be related to the offense and the offender denie s a problem or refuses to contend with the problem. * * * And the a mount involved here is more than just using, it’s a trafficking amoun t. {¶15} Chase points our attention to his presentence questionnaire whe re he admits to using methamphetamine to cope with the death of his d aughter; his urinalysis5 at the presentence referral that is positive for marijuana; sev eral assessments and diagnoses indicating he suffers from substance abuse issues and methamphetamine use disorder; and statements by his mother at sentencing. {¶16} In a presentence investigation report, however, Chase acknowled ges he abuses alcohol, cocaine, methamphetamine, and marijuana but den ies that he needs substance abuse treatment. {¶17} Additionally, Chase argues that the trial court erred when it c onsidered the amount of drugs he possessed in determining his sentence becaus e the weight of methamphetamine was already considered when he was charged with a second degree felony. He argues this cr eates a “double-whammy.” {¶18} However, the court did not consider the amount of the drug in i solation but in response to Chase’s claim that the large quantity of methamp hetamine he possessed was for personal use. The court did not believe this claim and instead found his possession was more serious in light of the amount, the scales, and the large quantity of cash found with it. Additionally, trial courts are permitted t o consider the weight of drugs seized in determining the seriousness of the offense. See State v. Hull , 11th Dist. No. 2016-L-035, 2017-Ohio-157, 77 N.E.3d 484, ¶ 42; State v. Miller , 11th Dist. Lake No. 2018-L-133, 2019-Ohio-2290, ¶ 26. Accordingly, Chase’s argumen t that the court could not consider the weight of the dr ug in sentencing lacks merit. {¶19} Chase next contends that the court’s statement regarding his la ck of acknowledgement of his drug problem was used to prove he is not genuinely remorseful. However, the trial court made no finding that Chase was not rem orseful.6 {¶20} Finally, Chase argues that his criminal history does not suppor t a five-year prison term and that the trial court erred when it considered h is juvenile record. {¶21} While weighing the R.C. 2929.12 recidivism factors the trial co urt stated: JUDGE: In terms of recidivism, the Defendant does have a crimin al history, and history of delinquency adjudications. As a juveni le it includes theft felony five; another theft, habitually truant; n o operator’s license; curfew violations; underage possession of cigarettes; another theft. As an adult receiving stolen proper ty in ’99; another receiving stolen property in 2000; criminal mischief in 2001; disorderly conduct fighting in 2002; open container in ’06; att empted possession of cocaine in ’07; disorderly conduct, littering, du mping rubbish in ’15 * * *. {¶22} Chase cites State v. Hand in support of his argument that the court improperly used his juvenile criminal record to enhance his pri son term beyond a mandatory minimum sentence in violation of the Due Process Clau ses of Article I, Section 16 of the Ohio Constitution and the Fourteenth Amendment to the United States Constitution. State v. Hand , 149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d 448. In Hand , the Ohio Supreme concluded that R.C. 2901.08(A), which requir es a juvenile adjudication be treated as a previous conviction for charging a nd sentencing purposes, is unconstitutional and violates the right to due process. Id . at paragraph one of the syllabus. However, Hand does not preclude a trial court from considering a defendant’s juvenile record when reviewing the likelihood of recidivism und er R.C. 2929.12. The Court noted this distinction, explaining: “[T]here is a signifi cant difference between allowing a trial judge to consider an adjudication during adult sentencing and requiring a mandatory prison term to be imposed because of it.” Id. at ¶ 20. See also State v. McBride , 11th Dist. Trumbull No. 2017-T-0050, 2017-Ohio-9349, ¶ 12 (“ Nothing in Hand prohibits a trial court from considering a defendant’s prior criminal history, including his7 juvenile delinquency adjudications, when considering and weighi ng the recidivism factors in R.C. 2929.12.” (Emphasis sic.)). Therefore, Chase’s argumen t relying on Hand lacks merit. {¶23} Regarding his adult convictions, Chase argues the trial court s ummarized his criminal record in an “unreasonable damaging description.” However, Chase does not establish that the trial court did anything other than accu rately recite his prior convictions. That is not unreasonable, and that it was damagin g is not error but a function of Chase’s past transgressions. {¶24} Thus, all of his arguments under his first assigned error lack merit and are overruled. {¶25} Chase’s second assigned error contends: {¶26} “[2.] The trial court erred in requiring defendant-appellant to waive his Sixth Amendment Right to Counsel in the Written Plea Agreement in the plea hearing; and in the trial court’s subsequent Order Denying Motion for Appointme nt of Counsel; in violation of the Sixth and Fourteenth Amendments of the United States Con stitution.” {¶27} In his second assignment of error, Chase advances two arguments : first, that the trial court erred when it required him to waive his co nstitutional right to counsel at his change of plea hearing; and second, that the trial court erred when it denied him appointment of counsel in violation of his constitutional right s to counsel and due process. {¶28} “‘Before accepting a guilty or no-contest plea, the court must make the determinations and give the warnings required by Crim.R. 11(C)( 2)(a) and (b) and notify the defendant of the constitutional rights listed in Crim.R. 11 (C)(2)(c).’” State v. Gensert , 11th Dist. Trumbull No. 2015-T-0084, 2016-Ohio-1163, 61 N.E.3d 636, ¶ 11, quoting8 State v. Veney , 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 13. A trial court’s compliance with Crim.R. 11(C) is reviewed for substantial compliance as to the nonconstitutional rights and for strict compliance as to the co nstitutional rights. Id. at ¶ 12-14. While advising him of his Crim.R. 11(C)(2)(c) rights, t he court asked: JUDGE : Do you understand that if you were not pleading guilty today you would always be represented throughout this case by an attorney, even if you could no longer afford counsel? Counsel w ould be appointed by the court, paid for by the taxpayers, free to y ou? RICHARD CHASE: Yes, sir. * * * JUDGE: Do you voluntarily give up all the rights that I just ex plained to you, and wish to have this Court accept your plea of guilty * * *? RICHARD CHASE: Yes, sir. {¶29} Chase argues that this exchange amounted to the trial court req uiring him to waive his right to counsel. However, this was merely an adv isement that Chase had the right to be represented throughout trial if he were not ple ading guilty and that counsel would be provided to him. {¶30} Moreover, Chase was represented by counsel throughout his plea and sentencing. And Chase acknowledged this representation at his plea hearing: JUDGE: Have you had enough time to discuss what you’re doing in these cases with your attorney? RICHARD CHASE: Yes, sir. * * * JUDGE: Has your attorney done everything you’ve asked him to do for you in these cases? RICHARD CHASE: Yes, sir.9 {¶31} Thus, Chase was both represented by counsel throughout the proc eedings, and he was not required to waive this right. {¶32} Next, Chase argues that the trial court erred when it failed to advise him of his right to appeal and his right to appointed appellate counse l. As he argues, Chase was not advised of his right to appeal at his sentencing hearing. However, “[c]ourts have held that ‘[w]here a defendant has been convicted following a guilty or no contest plea, the court is not constitutionally required to advise the defendant of his appeal rights.’” State v. Perkins , 11th Dist. Trumbull No. 2018-T-0012, 2018-Ohio-5335, ¶ 19, qu oting State v. Houston , 6th Dist. Erie No. E-03-059, 2004-Ohio-6462, ¶ 8; accord State v. Lowe , 2d Dist. Clark No. 2016-CA-18, 2017-Ohio-27, ¶ 9. Moreover, Chase was p ermitted to file a delayed appeal and was appointed counsel to represent him. The refore, even if the court erred, Chase suffered no prejudice as a result. Perkins at ¶ 19 (finding no reversible error because appellant suffered no prejudice from the trial court’s alleged error). {¶33} Finally, Chase argues the trial court erred when it denied his June 18, 2020 motion for appointment of counsel. However, this court had alr eady granted Chase’s motion for leave to file a delayed appeal and advised him to fi le a motion for appointment of counsel. And we subsequently appointed appellate counsel. Therefore, Chase was not denied the right to counsel, and his second assigned error lacks merit. {¶34} Chase’s third and final assigned error claims he was denied the effective assistance of trial counsel: {¶35} “[3.] The Defendant-Appellant’s Counsel’s performance was defic ient which prejudiced the defendant-appellant and resulted in an unreliabl e and fundamentally unfair outcome of the proceedings.”10 {¶36} Chase argues that trial counsel was ineffective because he negl ected to file a motion to suppress the evidence seized in the second charge. He contends that the police officer’s search of his van exceeded the scope of consen t when the officer searched inside his toolbox and that his attorney should have m oved to suppress the evidence. {¶37} To prevail on a claim for ineffective assistance of counsel, an appellant must demonstrate (1) his counsel was deficient in some aspect of his representation, and (2) there is a reasonable probability, w ere it not for counsel’s er rors, the result of the proceedings would have been different. State v. Hope , 2019-Ohio-2174, 137 N.E.3d 549, ¶ 88 (11th Dist.), citing Strickland v. Washington , 466 U.S. 668, 669, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). {¶38} In Ohio, every properly licensed attorney is presumed to be com petent, and a defendant bears the burden of proving otherwise. Hope at ¶ 89, citing State v. Smith , 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). “Counsel’s perf ormance will not be deemed ineffective unless and until counsel’s performance is pr oved to have fallen below an objective standard of reasonable representation and, in addi tion, prejudice arises from counsel’s performance.” State v. Bradley , 42 Ohio St.3d 136, 142, 538 N .E.2d 373 (1989). Prejudice is establish ed by “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.” Strickland at 694. {¶39} “[A] guilty plea ‘represents a break in the chain of events whi ch has preceded it in the criminal process.’” State v. Haynes, 11th Dist. Trumbull No. 93-T-4911,11 1995 WL 237075, *1 (Mar. 3, 1995), quoting State v. Spates, 64 Ohio St.3d 269, 272, 595 N.E.2d 351 (1992). “[l]f a criminal defendant admits his guilt in open court, he waives the right to challenge the propriety of any action taken by the cou rt or counsel prior to that point in the proceeding unless it affected the knowing and volu ntary character of the plea.” Id. {¶40} Thus, a plea of guilty waives a defendant’s right to assert an ineffective assistance claim unless it is shown that counsel’s errors affec ted the knowing and voluntary nature of the plea. Haynes at *2, citing State v. Barnett , 73 Ohio App.3d 244, 249, 596 N.E.2d 1101 (2d Dist.1991). {¶41} Here, Chase waived indictment and pleaded guilty to the second- degree felony charge that resulted from the search of his van. He has failed to show that any alleged ineffective assistance affected the knowing, intelligen t, or voluntary nature of his plea, and therefore his third assigned error is without merit. {¶42} Accordingly, the trial court’s decision is affirmed.

MARY JANE TRAPP, P.J., MATT LYNCH, J.,

concur.