[Cite as State v. Fluhart, 2021-Ohio-2153.]

IN THE COURT OF APPEALS 

TWELFTH APPELLATE DISTRICT OF OHIO 

CLERMONT COUNTY 

STATE OF OHIO, 

 Appellee, 

 - vs - 

LYLE W. FLUHART, 

 Appellant. 

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CASE NO. CA2020-12-069 

O P I N I O N 

6/28/2021 

CRIMINAL APPEAL FROM CLERMONT COUNTY MUNICIPAL COURT 

Case No. 2020 CRB 1149 

Mark J. Tekulve, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South 

Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellee 

Amanda Kuhn, 7673 Kennesaw Drive, West Chester, Ohio 45069, for appellant 

 HENDRICKSON, J. 

{¶1} Appellant, Lyle Fluhart, appeals his convictions in the Clermont County 

Municipal Court following his no contest pleas to four counts of cruelty to companion 

animals and two counts of cruelty to animals. For the reasons detailed below, we affirm 

Fluhart's convictions. 

{¶2} In January 2020, dozens of animals were found in a state of neglect at 
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Fluhart's residence in Bethel, Ohio. According to the complaint, upon arrival, deputies with 

the Clermont County Sheriff's Department discovered that the inside and outside of the 

home were completely littered with bags of trash, empty cat litter containers, and horse 

feces. There were 11 German Shepherds inside the home in cages that were coated with 

dried feces and matted newspaper. There was no food, water, or any form of bedding. 

Many of the German Shepherds were extremely thin, weak, and near death. Two German 

Shepherds were found dead and decomposing. 

{¶3} On March 30, 2020, Fluhart was charged with 11 counts of cruelty to 

companion animals and six counts of cruelty to animals. Fluhart initially retained private 

counsel. The trial court set a $20,000 own recognizance bond with conditions that he report 

to the jail for fingerprinting and that he would not possess any companion animals or 

livestock. Fluhart subsequently requested that his counsel withdraw from the case on July 

24, 2020. The trial court granted the motion to withdraw and Fluhart proceeded pro se. 

Though Fluhart requested substitute counsel, the trial court found that Fluhart was not 

indigent and could employ his own counsel. 

{¶4} On September 18, 2020, the state moved to revoke Fluhart's bond, alleging 

that he violated the conditions of his bond by having a cat in his home. During the bail 

revocation hearing, Chief Dog Warden Milem testified that when he arrived at Fluhart's 

home, he knocked on the door, identified himself, and informed Fluhart that he had received 

an anonymous tip that he had a companion animal inside the home. As Chief Milem was 

explaining this, he saw a gray cat standing directly behind Fluhart. Chief Milem then told 

Fluhart that he needed to conduct a welfare check on the animals, but Fluhart told him to 

go away and slammed the door in his face. While still at the residence, Chief Milem noticed 

that several food and water bowls had been left out on Fluhart's front porch. Fluhart chose 

not to cross-examine Chief Milem but did present a procedural argument as to Chief Milem's 
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authority. Following the hearing, the trial court revoked Fluhart's bond, imposed a cash or 

professional bond, and Fluhart was then taken into custody. 

{¶5} On October 7, 2020, Fluhart appeared before the court for purposes of a plea. 

The trial court noted that Fluhart had since been reinterviewed by the public defender to 

determine his eligibility for representation as a result of his incarceration. Finding now that 

Fluhart was eligible for appointed counsel, the trial court appointed the public defender as 

his counsel. Since counsel had just been appointed, the trial court engaged in a colloquy 

with Fluhart to determine if he felt he had adequate time with his counsel to make a decision 

on the plea: 

THE COURT: Okay. First, I want to ask you, Mr. Fluhart, I 

just...[Fluhart's trial counsel] has just started representing you. 

[FLUHART]: Correct. 

THE COURT: Just today. So do you feel like you've had 

adequate discussions with her and adequate time to make that 

decision to enter into a plea? 

[FLUHART]: I, I would reckon with what's relevant, yes. 

THE COURT: Okay. Okay. Same to you, [Fluhart's trial 

counsel], do you feel like you were able to acquaint yourself with 

the case enough that you were able to properly advise Mr. 

Fluhart today? 

[FLUHART'S TRIAL COUNSEL]: Yeah, Judge, I do. And we did 

discuss that fact that certainly I have not been provided 

discovery and there is a lot of information that I don't have. And 

that all I would have to go on is our discussions and that he may 

not feel comfortable with that. But I think, I believe I answered 

any questions that he had about what we're doing today and I 

think he's okay to go forward. 

THE COURT: Okay. And, Mr. Fluhart, you understand that if 

you wanted more time to speak to your attorney about the 

charges, about the discovery, things of that nature, that the 

Court would provide with [sic] that time if you wanted it? 

[FLUHART]: I understand. 
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THE COURT: And know that it's your wish to go forward with 

the plea? 

[FLUHART]: Yes. 

{¶6} Thereafter, the trial court outlined the details of the plea agreement. The trial 

court went on to explain that, while it would consider the joint recommendation of sentencing 

of 60 days in jail of which 15 days would be converted to house arrest, it was not bound by 

the terms and the court had independent authority to impose a sanction. 

{¶7} The trial court then engaged in a colloquy with respect to Fluhart's plea of no 

contest. 

THE COURT: Okay, the pleas would be no contest, correct? 

[FLUHART'S TRIAL COUNSEL]: Correct. 

THE COURT: Okay. Mr. Fluhart, do you understand that pleas 

of no contest to these charges, it's eight charges correct? 

[THE STATE] Six. 

[FLUHART'S TRIAL COUNSEL]: Six. 

THE COURT: Six charges. Pleas of no contest to these six 

charges would not be admissions of guilt. They would be 

complete admissions to all the facts alleged in each complaint. 

And your pleas of no contest could not be used against you in 

any later civil or criminal proceeding. Do you understand that? 

[FLUHART]: Could you say that again? I'm trying to process all

of this. I'm having a hard time with it. 

THE COURT: That's okay, Mr. Fluhart. I'm just ex...now I'm just 

going to make sure you understand what's going on with the 

plea. 

* * * 

[FLUHART'S TRIAL COUNSEL]: Are we talking about the no 

contest, what that means? 

[FLUHART]: Right. 
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[FLUHART'S TRIAL COUNSEL]: Yeah. What I was suggesting 

that like if some, there would be a pursuit by say the animal 

(inaudible) for restitution. 

[FLUHART]: Oh, okay. All right, I do. 

[FLUHART'S TRIAL COUNSEL]: They can't use that. 

(Inaudible). 

[FLUHART]: Yes, Your Honor, I do. Yeah, I understand now. 

Yeah, all right. 

THE COURT: Okay, so after talking to [Fluhart's counsel]... 

[FLUHART'S TRIAL COUNSEL]: We did talk it through, Judge. 

THE COURT: ...you, you feel comfortable, you understand what 

a no contest plea is? 

[FLUHART]: Correct. 

THE COURT: Okay and you would be entering a no contest plea 

for each of those charges. 

[FLUHART]: Correct. 

THE COURT: Which means that it is not an admission of guilt 

but it is a complete admission to the facts alleged in each 

complaint. And it could not be used against you in a later civil 

or criminal proceeding. You understand that now? 

[FLUHART]: Correct. 

THE COURT: Okay and you understand on each charge, 

because they're each misdemeanors of the first degree. 

[PROSECUTOR]: The first counts, A through B [sic] are first 

degree counts. P and Q are second degree. 

THE COURT: A through D are misdemeanors of the first 

degree. Thank you. P and Q are misdemeanors of the second 

degree. On the charges, the A through D charges, A, B, C, and 

D, misdemeanors of the first degree, Mr. Fluhart, do you 

understand if I accept your no contest pleas and make guilty 

findings, on each charge I could sentence you to serve up to 

180 days in the Clermont County Jail. I could order that you pay 

a fine up to $1,000 on each charge. I could place you on 

community control. It could be up to five years. It could be 

reporting or non-reporting with a number of different conditions 
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you would have to fulfill. Do you understand those are all 

possible consequences of your plea? 

[FLUHART]: Yes, sir. 

THE COURT: Knowing those possible consequences is it still 

your wish to enter pleas of no contest to each of those four 

charges. 

[FLUHART]: I wish to carry on. Yes, sir. 

* * * 

THE COURT: Has anyone placed any pressure on you to enter 

any of those pleas? 

[FLUHART]: No. 

THE COURT: Okay. 

[FLUHART]: Not at all. 

THE COURT: Then, Mr. Fluhart, with respect to the charges, 

the P and Q charges, the cruelty to animals in violation of 

959.13(A)(4) of the Ohio Revised Code, those are 

misdemeanors of the second degree. On those cases if I accept 

your no contest pleas and make guilty findings on each I could 

order that you serve up to 90 days on the Clermont County ... 

in the Clermont County Jail. I could order that you pay a fine of 

up to $750 on each. And on each I could order that you serve 

five years, up to five years community control. It could be 

reporting or non-reporting with a number of different conditions 

you'd have to fulfill. Do you understand those are all possible 

consequences of your pleas of no contest to those two charges? 

[FLUHART]: No contest to that. Yes, sir. 

THE COURT: Knowing that, sir is it still your wish to enter pleas 

of no contest... 

[FLUHART]: Yes. 

THE COURT: ...to those two charges? 

[FLUHART]: Yes. 

THE COURT: Has anyone placed any pressure on you to enter 

either of those pleas? 
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[FLUHART]: No. 

THE COURT: And, Mr. Fluhart, I want you to be aware that I 

could run the sentences on these charges consecutively which 

would expose you to a possibility of, in municipal court the 

longest that a Judge could sentence you is 540 days in the 

Clermont County Jail. Do you understand that is a possibility?

[FLUHART]: Yes. 

THE COURT: Knowing that it's still your wish to enter those 

pleas of no contest? 

[FLUHART]: Yes. 

THE COURT: Okay. Then to the A charge that is 20 CRB 

1149(A), the charge of cruelty to companion animals in violation 

of section 959.131(B) of the Ohio Revised Code, a 

misdemeanor of the first degree, Mr. Fluhart, what is your plea? 

[FLUHART]: No contest 

THE COURT: I will accept your no contest plea. I find it was 

knowingly, voluntarily and intelligently entered by you. Would

you give me a reading of the facts on that case? 

{¶8} Thereafter, the state read a summary of the facts alleged in the complaint for 

each of the four charges for cruelty to a companion animal. After each count was read, the 

trial court asked Fluhart if the facts read into the record were true, which Fluhart affirmed 

were true. The state then also read a summary of facts for the two charges of cruelty to 

animals. Again, the trial court asked Fluhart to confirm whether the facts alleged by the 

state were true, which Fluhart responded by confirming the truth of the facts read by the 

state. Thereafter, the trial court announced that the facts were sufficient to find Fluhart 

guilty on all six counts. The trial court then ordered a presentence-investigative report 

("PSI"). 

{¶9} The record reflects that Fluhart was noncooperative in the process of 

completing the PSI by failing to provide his probation officer with the full report of a mental 

health assessment provided while he was in jail. According to the PSI, Fluhart suggested 
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that he would provide that information if granted reporting community control. During the 

interview process for the PSI, Fluhart claimed that he did not remember the instant offenses 

due to his declining physical health. He also refused to acknowledge the deprivation he 

placed on the animals. 

{¶10} During the sentencing hearing, Fluhart denied any intentional wrongdoing 

and, again, attributed the condition of his home and his care of the animals to his own 

physical limitations. In sentencing him, the trial court stated that it had considered the 

overriding purposes and principles of misdemeanor sentencing, as well as the information 

contained in the PSI. 

I turn to the instant case, the instant offense, it's the worse [sic] 

case of animal cruelty case I've ever seen during my time on the 

bench and before that as a prosecutor. The horses that were 

your horses had no room to walk because manure was piled up 

to their enclosure. They had no access to shelter because they

couldn't gain access into the barn. Their hooves were cracked. 

They had worm bellies. They had nothing to eat. They had no 

water to drink. You had dogs living in a basement with no light, 

no fresh air. You hadn't allowed them out of their cages for 

weeks. Those are German shepherds. They're smart dogs. 

They know what, they know exactly what's going on. It was 

putrid smelling. They were living on top of their own feces. They 

were malnourished with sores and matted hair. When two of 

them died you pulled them from their cages and let them rot in 

front of the other dogs. 

* * * 

When confronted with all this in the PSI and Officer Hickman 

asked you many questions you took absolutely no responsibility. 

You blame it all on your medical issues. You have selective 

amnesia. You remember in great detail certain things from that

period of time, including your medical conditions you blame all

of your ridiculous behavior on. But you don't remember torturing 

these dogs, leaving them to rot. I don't understand really how a 

grown man could treat another living creature the way you 

treated them. It made me question your mental health which is 

why I ordered the PSI. It's why I ordered an assessment through 

Greater Cincinnati Behavioral Health. And when I get the PSI I

hear that you won't sign the waiver for probation to review all of 

their recommendations. You're obstinate. You're not a good 
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candidate for probation. 

{¶11} After considering all the facts and circumstances, the trial court then imposed 

a cumulative jail term of 510 days in the Clermont County Jail. Fluhart now appeals, raising 

five assignments of error for review. 

{¶12} Assignment of Error No. 1: 

{¶13} THE TRIAL COURT ERRED IN FINDING MR. FLUHART GUILTY OF 

THREE COUNTS OF CRUELTY TO COMPANION ANIMALS PROHIBITIONS AND TWO 

COUNTS OF CRUELTY TO ANIMALS PROHIBITIONS WHERE MR. FLUHART NEVER 

FORMALLY TENDERED A PLEA TO THOSE COUNTS. 

{¶14} In his first assignment of error, Fluhart argues that his plea was deficient in 

that he did not actually plead no contest for three of the counts of cruelty to companion 

animals. Rather, focusing on a duplicative portion of the record, Fluhart alleges that he only 

pled no contest to one count of cruelty to companion animals, yet failed to or did not wish 

to enter into no contest pleas on the remaining three counts. We find Fluhart's argument is 

without merit. 

{¶15} "A trial court's obligations in accepting a plea depend upon the level of offense 

to which the defendant is pleading." State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 

¶ 6. The plea procedure for a misdemeanor case under Crim.R. 11 is much less elaborate 

than the procedure for a felony case. Cleveland v. Jaber, 8th Dist. Cuyahoga Nos. 103194 

and 103195, 2016-Ohio-1542, ¶ 23. Misdemeanor cases can involve "serious offenses" or 

"petty offenses." A "serious offense" is defined as an offense for which the penalty includes 

confinement for more than six months; a "petty offense" is defined as a misdemeanor 

offense other than a serious offense. Id., citing Crim.R. 2(C) and (D). Crim.R. 11(E) 

provides that for a "petty offense," the trial court "may refuse to accept a plea of guilty or no 

contest, and shall not accept such pleas without first informing the defendant of the effect 
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of the plea of guilty, no contest, and not guilty." 

{¶16} According to Crim.R. 11(B)(2), "[t]he plea of no contest is not an admission of 

defendant's guilt, but is an admission of the truth of the facts alleged in the indictment, 

information, or complaint, and the plea or admission shall not be used against the defendant 

in any subsequent civil or criminal proceeding." State v. Daly, 12th Dist. Clermont No. 

CA2015-06-054, 2015-Ohio-5034, ¶ 16; Cleveland v. O'Donnell, 8th Dist. Cuyahoga No. 

105597, 2018-Ohio-390, ¶ 11. 

{¶17} In this case, Fluhart was charged with first-and-second-degree misdemeanor 

offenses, subject to a maximum sentence of 180 days or 90 days, respectively. R.C. 

2929.24(A)(1); R.C. 2929.24(A)(2). Accordingly, Fluhart's offenses were "petty offenses," 

and Crim.R. 11 only obligated the trial court to inform appellant of the effect of his plea. 

Jones, at paragraph one of the syllabus. "To satisfy the requirement of informing a 

defendant of the effect of a plea, a trial court must inform the defendant of the appropriate 

language under Crim.R. 11(B)." Id., at paragraph two of the syllabus. 

{¶18} Upon review of the record, we find that Fluhart entered into valid no contest 

pleas to four counts of cruelty to companion animals and two counts of cruelty to animals 

and, further, that those pleas were entered knowingly, intelligently, and voluntarily. Though 

we acknowledge that the trial court was repetitious, giving rise to Fluhart's claim that he 

only entered a no contest plea as to one count, when the colloquy is considered in its 

entirety, the record reflects that Fluhart did, in fact, enter valid no contest pleas for all six 

counts. 

{¶19} In the present case, the trial court appropriately explained the consequences 

of a no contest plea. Fluhart asked some questions but following communication with his 

counsel and more explanation by the trial court, he affirmatively stated that he understood 

the consequences of a no contest plea. Fluhart indicated that he felt comfortable in entering 
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a no contest plea and that he wished to "carry on" in entering his no contest pleas to the 

four first-degree misdemeanor charges and, again, confirmed his desire to plead "no 

contest" to the second-degree misdemeanor charges. Fluhart advised that he did so 

willingly and that nobody had placed any pressure on him in entering those pleas. When 

the trial court reminded him that it could sentence him up to 540 days in jail, on all charges, 

Fluhart confirmed his desire to plead no contest. Though the trial court went on to address 

"Charge A," Fluhart's no contest plea was merely duplicative. There is no doubt that Fluhart 

intended to and, in fact, did plead no contest to all six of the charges of which he was 

ultimately convicted. Thereafter, the state read into evidence the factual basis for each 

offense, which Fluhart confirmed, for all six offenses, were true statements. After confirming 

the statement of facts, the trial court appropriately entered guilty findings for all six offenses. 

Accordingly, we find Fluhart's first assignment of error is without merit and is overruled. 

{¶20} Assignment of Error No. 2: 

{¶21} THE TRIAL COURT ERRED TO THE PREJUDICE OF MR. FLUHART IN 

SENTENCING HIM TO FIVE-HUNDRED AND TEN DAYS IN JAIL. 

{¶22} In his second assignment of error, Fluhart argues the trial court erred by 

sentencing him to 510 days in jail. In so doing, Fluhart acknowledges that the trial court 

was not bound by a plea agreement between him and the state, which would have been an 

agreed sentence of 60 days in jail with the last 15 days converted to house arrest. 

Nevertheless, Fluhart argues that the trial court abused its discretion in imposing the 510-

day sentence because of his lack of criminal record, age, low score for recidivism, and 

serious health problems that plague his life. We find Fluhart's argument to be without merit. 

{¶23} We review a trial court's sentence on a misdemeanor violation under an abuse 

of discretion standard. State v. Jezioro, 12th Dist. Warren No. CA2016-10-088, 2017-Ohio2587, ¶ 6. An abuse of discretion connotes more than an error in law or judgment; it implies 
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that the court's attitude is unreasonable, arbitrary, or unconscionable. State v. SanchezGarza, 12th Dist. Butler CA2016-02-036, 2017-Ohio-1234, ¶ 33. 

{¶24} Pursuant to R.C. 2929.21 and 2929.22, trial courts have broad discretion 

when determining what sentence is appropriate for each given misdemeanor case. State 

v. Kinsworthy, 12th Dist. Warren No. CA2013-06-060, 2014-Ohio-2238, ¶ 30. When 

determining the appropriate sentence, the trial court must be guided by the purposes of 

misdemeanor sentencing which are "to protect the public from future crime by the offender 

and others and to punish the offender." R.C. 2929.21(A). The trial court must also consider 

the factors listed in R.C. 2929.22(B)(1), including the nature and circumstances of the 

offense, and may consider any other factors that are relevant to achieving the purposes and 

principles of misdemeanor sentencing. R.C. 2929.22(B)(2). State v. Fisher, 12th Dist. 

Clermont No. CA2019-10-080, 2020-Ohio-3764, ¶ 11. 

{¶25} The trial court is not required to make consecutive sentence findings under 

R.C. 2929.14(C)(4) prior to ordering consecutive sentences for jail terms imposed for 

misdemeanor offenses. State v. Prickett, 12th Dist. Butler No. CA2017-01-010, 2017-Ohio8128, ¶ 24. That statute is instead reserved for circumstances where the trial court imposes 

consecutive sentences for prison terms imposed for felony offenses. State v. Henson, 12th 

Dist. Clermont No. CA2020-07-037, 2021-Ohio-38, ¶ 17. The trial court need only "specify" 

that the jail terms being imposed were to be served consecutively. Id. 

{¶26} After a thorough review of the record, we find no error in the trial court's 

decision to sentence Fluhart to serve 510 days in jail for the four first-degree misdemeanor 

offenses and two second-degree misdemeanor offenses.1 The sentence imposed for each 

offense falls within the statutory limits for first-and-second-degree misdemeanor offenses. 

1. Fluhart was sentenced to 110 days in jail for each first-degree misdemeanor offense. He was also 

sentenced to 40 days and 30 days, respectively, on each second-degree misdemeanor offense. 
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R.C. 2929.24(A)(1) (the maximum jail term a trial court can impose for a first-degree 

misdemeanor offense is 180 days); R.C. 2929.24(A)(2) (the maximum jail term a trial court 

can impose for a second-degree misdemeanor offense is 90 days). The trial court ordered 

that each term be served consecutively. 

{¶27} There is no affirmative indication that the trial court failed to consider the 

factors contained in R.C. 2929.21 and 2929.22 and therefore the trial court is presumed to 

have complied with both statutes prior to issuing its sentencing decision. Jezioro, 2017-

Ohio-2587 at ¶ 10. Moreover, the trial court specifically noted that it had considered the 

purposes of misdemeanor sentencing, which are to punish the defendant and protect the 

public. The trial court specifically addressed the severity of the offense as reason for 

imposing the sentence. In this case, the dogs had been left in their cages for long periods 

of time with no access to fresh air, light, or exercise. The cages were covered in feces and 

the dogs were malnourished with matted hair. When law enforcement arrived, the dogs 

had no food or water. Some dogs were so abused that they were unable to walk. Two 

dogs perished and were left to decompose in front of the surviving dogs. The horses found 

on Fluhart's property were very underweight, had no access to food or water, had cracked 

hooves, and had no access to shelter or exercise because their exits were blocked by 

manure. 

{¶28} Though Fluhart had a low risk to reoffend based solely on the ORAS score 

taken during the PSI, the trial court cited other factors in the record that indicated a likelihood 

of recidivism. For example, the record reflects that Fluhart demonstrated a clear resistance 

to authority. Fluhart had two conditions of bond: (1) be fingerprinted and (2) do not possess 

any companion animals or livestock. However, when Chief Milem went to inspect Fluhart's 

property, he discovered that Fluhart defied these orders by keeping a cat in the home and 

had put food and water on the front porch. When Chief Milem attempted to have Fluhart 
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account for the cat, Fluhart brazenly denied the existence of the cat and questioned the 

chief's authority. As correctly found by the trial court, there is nothing about Fluhart's actions 

and history that evince any confidence that he would respond favorably to community 

control. Though Fluhart cites mitigation and issues with his health and age, we find the 

record supports the trial court's sentencing decision. As a result, we find the trial court did 

not abuse its discretion in sentencing Fluhart to 510 days in jail. Fluhart's second 

assignment of error is overruled. 

{¶29} Assignment of Error No. 3: 

{¶30} COUNSEL WAS INEFFECTIVE FOR FAILING TO FILE A MOTIONS [sic] 

RELATING TO THE UNCONSTITUTIONALITY OF THE RAID UPON AND SEIZURE OF 

ANIMALS FROM MR. FLUHART'S HOME. 

{¶31} Assignment of Error No. 4: 

{¶32} COUNSEL WAS INEFFECTIVE FOR FAILING TO ADEQUATELY OBTAIN 

AND REVIEW DISCOVERY AND DISCUSS ALL ASPECTS OF THE CASE WITH MR. 

FLUHART THUS RENDERING HIS PLEA INVOLUNTARY. 

{¶33} Because they are interrelated we will address Fluhart's third and fourth 

assignments of error together. In his third and fourth assignments of error, Fluhart alleges 

that he received ineffective assistance of counsel because his trial counsel failed to file a 

motion relating to the raid of his home and also failed to obtain and review discovery and 

discuss the case more fully with him. We disagree. 

{¶34} 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 (1984). In the context of a no contest or guilty plea, prejudice will not be 
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found unless a defendant demonstrates there is a reasonable probability that, if not for 

counsel's errors, he would not have entered the plea. State v. Tribune, 12th Dist. Warren 

No. CA2016-04-027, 2017-Ohio-1407, ¶ 7; State v. Blair, 3d Dist. Paulding Nos. 11-20-01 

and 11-20-02, 2021-Ohio-266, ¶ 34. 

{¶35} As previously noted, Fluhart initially retained private counsel for his defense, 

but later requested that they withdraw from the representation. Fluhart was not eligible for 

appointed counsel until his bond was revoked. After he was reinterviewed by the public 

defender, he was appointed an attorney. Despite the new representation, Fluhart chose to 

proceed with his no contest plea at the October 7, 2020 hearing. As noted above, the trial 

court engaged in a lengthy colloquy with Fluhart to determine if he had adequate time with 

his counsel to decide on the plea. 

{¶36} This court has considered arguments alleging ineffective assistance of 

counsel in a similar setting. In Tribune, the record supported the defendant's claim that his 

attorney had not reviewed the evidence prior to his guilty plea. Tribune, 2017-Ohio-1407 

at ¶ 8. However, the reasons for that failure were fully provided in the record and did not 

support a claim of ineffective assistance of counsel. Id. As the record indicated, 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. Id. During the hearing, Tribune's trial counsel 

noted that he had not reviewed the state's evidence and had advised Tribune that there 

may be potential defenses to his case. Id. Still, Tribune proceeded with a guilty plea. Id. 

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 
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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. 

Id. Tribune did not attempt to withdraw his guilty plea and the matter proceeded to 

sentencing. Id. 

{¶37} This court found that the record did not support Tribune's claim of ineffective 

assistance. Id. at ¶ 9. In so doing, we noted that, "[w]hile 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." Id. That is, Tribune's counsel candidly 

admitted that he had not yet reviewed the evidence and had advised his client of the 

charges and potential defenses. Id. Still, the record reflected 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." Id. 
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{¶38} We believe the circumstances in this case are like those in Tribune and 

therefore conclude that Fluhart did not receive ineffective assistance of counsel. Here, the 

trial court understood that Fluhart had just been appointed counsel and therefore engaged 

in a colloquy to determine if he wished to continue with the plea. Fluhart confirmed that he 

wished to go forward with the plea and his trial counsel confirmed they had discussed the 

case even though she candidly admitted she had not yet been provided discovery and was 

missing information. The trial court then advised Fluhart that he would be provided more 

time with his counsel if he wished and Fluhart confirmed he understood. Fluhart then 

confirmed his desire to go forward with the plea. As in Tribune, we find Fluhart's decision 

to go forward with the plea was fully his own decision, untainted by ineffective assistance 

of counsel. Moreover, even if this case were unlike Tribune, we would still find that Fluhart's 

counsel was not ineffective. Fluhart's arguments concerning the motion to suppress are, at 

best, wildly speculative. We also note that Fluhart's counsel was able to negotiate a plea 

to six counts from the 17 original counts. There is simply no indication that Fluhart's counsel 

was deficient in the performance of her duties. As a result, we find Fluhart's trial counsel 

was not ineffective for failing to file a motion relating to the raid or by failing to obtain and 

review discovery and discuss the case more fully with Fluhart. Rather, the record reflects 

that Fluhart was advised that he could utilize his attorney's services more fully, but instead 

chose, by his own volition, to go forward with his no contest pleas. As a result, Fluhart's 

third and fourth assignments of error are overruled. 

{¶39} Assignment of Error No. 5: 

{¶40} COUNSEL WAS INEFFECTIVE FOR FAILING TO ADEQUATELY 

PRESENT MITIGATION ON BEHALF OF MR. FLUHART AT SENTENCING. 

{¶41} In his fifth assignment of error, Fluhart alleges his trial counsel was ineffective 

for failing to adequately present mitigation on his behalf during the sentencing hearing. We 
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find no merit to this argument. 

{¶42} As noted above, 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. Patrick, 

2016-Ohio-995 at ¶ 13. 

{¶43} Following review of the record, we find that Fluhart's trial counsel was not 

ineffective in her representation of Fluhart during the sentencing hearing. While Fluhart 

asserts that he would not have received such a long sentence but for his trial counsel failing 

to present better mitigation at the sentencing hearing, the record indicates otherwise. 

Fluhart's trial counsel advocated on his behalf and specifically addressed his deteriorating 

health in mitigation, including that he had several surgeries, blood poisoning, and several 

amputations. Fluhart's trial counsel also argued that Fluhart did not have an extensive 

criminal history and would comply with any conditions imposed by the court. Fluhart's 

counsel also addressed his alleged noncompliance with releasing his mental health 

assessments and explained that he would comply with any conditions imposed by the court. 

{¶44} Despite trial counsel's argument, the trial court noted several aggravating 

factors in this case and emphasized the horrendous conditions of the home and the harm 

to the animals. Appellant also violated the conditions of his bond by possessing an animal 

and refused to release information about his mental health for preparation of the PSI. The 

trial court's 510-day sentence was based upon full consideration of the purposes of 

misdemeanor sentencing and warranted based on the facts and circumstances of this case. 

In other words, Fluhart has not shown that the results of his sentence would have been 

different but for counsel's performance. See, e.g., State v. McIntosh, 12th Dist. Butler Nos. 

CA2006-03-051 and CA2006-10-282, CA2007-10-241, 2008-Ohio-5540, ¶ 41 ("even if 

counsel's failure to offer mitigating arguments amounted to deficiency under Strickland, we 
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are unable to say that [the defendant] was prejudiced because nothing on the record 

indicates that the trial court would have sentenced [him] any differently than it did had 

counsel offered mitigating circumstances"). As such, Fluhart did not receive ineffective 

assistance of counsel and his fifth assignment of error is hereby overruled. 

{¶45} Judgment affirmed. 

 

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