[Cite as State v. Baker , 2012-Ohio-2533.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY STATE OF OHIO : : Appellate Case No. 2011-CA-78 Plaintiff-Appellee : : Trial Court Ca se No. 2010-CR-774 v. : : CHRISTOPHER BAKER : (Criminal Appeal from : ( Common Pleas Court) Defendant-Appellant : :

. . . . . . . . . . . O P I N I O N Rendered on the 8th day of June, 2012.

. . . . . . . . . . . LISA M. FANNIN, Atty. Reg. #0082337, Clark County Prosecutor’s Office, 50 East Columbia Street, 4 th Floor, Post Office Box 1608, Springfield, Ohio 45501 Attorney for Plaintiff-Appellee GREGORY K. LIND, Atty. Reg. #0055227, One S outh Limestone Street , Ground Floor, Suite D, Springfield, Ohio 45502 Attorney for Defendant-Appellant

. . . . . . . . . . . . . FAIN, J. {¶ 1} Defendant-appellant, Ch ristopher Baker, appeals from his conviction and sentence for Aggravated Vehicular Assault following a plea of guilty. Baker contends that 2

 trial counsel was ineffective fo r failing to file a motion to suppress evidence. He further contends that the trial court erred by sentencing him to the maximum prison term of five years.

{¶ 2} We conclude that there is no evidence in this record to support a claim of ineffective assistance of counsel . We further find no abuse of discretion with regard to the sentence imposed. Accordingly, the judg ment of the trial court is Affirmed.

I. Course of Proceedings {¶ 3} In August 2010, Baker was driving a ve hicle when he struck and injured a child who had run into the street. Baker was indicted on one count of Aggravated Vehicular Assault, one count of Vehicula r Assault and two counts of Op erating a Motor Vehicle While Under the Influence of Alcohol or Drugs (“OVI ”). He entered a guilty plea to an amended count of Aggravated Vehicular Assault and to one count of OVI. 1 All remaining counts were dismissed. The tria l court sentenced Baker to five y ears in prison. From his conviction and sentence, he appeals.

II. Ineffective Assistance of Counsel Is Not Demonstrated on this Record {¶ 4} Baker’s First Assignment of Error states: {¶ 5} “THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL BECAUSE TRIAL COUNSEL FAILED TO FILE A MOTION TO SUPPRESS.”

1 The Aggravated Vehicular Assault charge was originally indicted as a felony of the second degree. However, as part of a plea agreement, the charge was reduced to a third-degree felony. 3

 {¶ 6} Baker contends that trial counsel should have filed a motion to suppress evidence of the results of a blood-alcohol test , which he argues “must be performed in accordance with OAC §3701-53-031.” Baker claims that counsel “did not explore the realm of issues surrounding the blood test[,]” and th at he was not “made aware of the possible evidentiary problems involving th e OAC.” He further contends that this failure rendered his plea ineffective as he was unable to make a knowing or voluntary decision whether to enter a plea of guilty. {¶ 7} In order to prevail on a claim of in effective assistance of counsel, a criminal defendant must show both deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 104 L.Ed.2d 2052 (1984); State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). Trial counsel is entitled to a strong presumption that his or her conduct falls within the wi de range of effective assistance. Id. To show ineffective assistance a defendant must demonstrate that counsel ’s representation fell below an objective standard of reasonabl eness and that the errors we re serious enough to create a reasonable probability that, but for the errors, the result of the trial would have been different. Id . “Entry of a guilty plea waives [the right to raise] ineffective assist ance of counsel claims except to the extent that couns el’s performance causes * * * the guilty plea to be less than knowing or voluntary.” State v. Kidd, 168 Ohio App.3d 382, 2006-Ohio-4008, 860 N.E.2d 138, ¶ 5 (2d Dist.). {¶ 8} In this case, the record is devoid of anything to suggest that Baker entered a less than knowing or voluntary plea. The plea colloquy was properly c onducted, and there is nothing in this record to support a claim th at the plea was made without knowledge of any 4

 issues surrounding the blood-alcohol test. If ther e are facts outside of th e record showing that Baker’s plea was not knowingly or voluntarily ente red into, and that his attorney’s actions caused such an unknowing or involuntary plea, the proper remedy lies in a petition for post-conviction relief pursuant to R.C. 2953.21. But the facts in this record indicate that Baker’s plea was knowing and voluntary. Accordin gly, the First Assignment of Error is overruled.

III. The Maximum Sentence Imposed by the Trial Court Was Neither Contrary to Law Nor an Abuse of Discretion {¶ 9} Baker’s Second Assignment of Error is as follows: {¶ 10} “THE TRIAL COURT ISSUED A MAXIMUM SENTENCE CONTRARY TO LAW OR ABUSED ITS DISCRETION WITH ITS SENTENCE.” {¶ 11} Baker contends that the trial court did not properly consider the factors regarding the seriousness of the offense or th e likelihood of recidivism when it imposed a five-year sentence. {¶ 12} The Supreme Court of Ohio has held that trial courts “have full discretion to impose a prison sentence within the statutory range and are no longer required to make findings or give their reasons for imposing maximum, consecutive, or more than the minimum
sentences.” State v. Kalish, 120 Ohio St.3d 23, 2008–Ohio–4912, 896 N.E.2d 124, ¶ 11, citing State v. Foster , 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶ 100. However, an appellate court must ensure that the trial court correctly followed all applicable rules and statutes when imposing the sentence. Id . If the trial court has done so, then the review of 5

 the imposition of sentencing is governed by the abuse-of-discretion standard. Id. {¶ 13} In this case, Baker cited the following as facts to be considered in mitigation of the sentence: (1) his young age of twenty-thr ee; (2) the lack of a j uvenile record; (3) an adult record of only one OVI conviction in 2007; (4) his acceptance of responsibility and his remorse; (5) the fact that he was not speeding and that the child ran out into the road unexpectedly; and (6) the fact that he stayed at the scene. He contends that the trial court did not adequately consider these facts when determining the sentence. {¶ 14} However, as the State noted, Baker ha d a prior OVI conviction and no driver’s license at the time of the offense. Furthermore, witnesses indicated that Baker had been driving erratically prior to the accident. There is also an indication in the record that he attempted to hide evidence that he had consumed alcohol prior to driving. The pre-sentence investigation report indicates that the victim, a child, was hit with enough force to throw his body on top of Baker’s vehicle. Finally, the vic tim suffered extensive injuries that required at least two surgeries. The victim, at the time of the sentencing, was still disabled and unable to walk due to permanent brain da mage caused by the impact. {¶ 15} The trial court made the following statement at the sentencing hearing: It appears to the Court that the mitigatin g factors that have been placed on the record today were considered by the State in making their offer to reduce the offense from a second degree felony to a third degr ee felony by dismissi ng the specification that the defendant was under a license su spension at the time of the offense. The defendant had a prior OVI convic tion a few years ago, and is still under the suspension arising from that case when this offense occurred. 6

 So you weren’t even supposed to be drivin g, Mr. Baker, given your suspension; and then on top of that you were driving while intoxicated. Blood alcohol level was .146. You struck a child, caused serious physical harm. In this case it appears that the serious physical harm carried a substantial risk of deat h. Fortunately, that was not the case. It appears as though the physical harm invol ved acute pain of such a duration as to result in substantial suffering, a nd it also appears that there is some permanent damage done to the victim, all of which could have been avoided had you simply obeyed the law to not drive without a license. Given the serious physical harm caused to the victim, the fact that you were driving without a license, and the fact that you have a prior conviction for OVI, the Court is going to impose a sentence of five years in the Ohio State Penitentiary. {¶ 16} There is nothing in this record that leads us to believe that the trial court did not properly consider the stated mitigating factors when imposing sentence. Likewise, we cannot say that the trial court did not consider th e relevant factors when consider ing the seriousness of the offense and the likelihood of recidivism wh en imposing sentencing. The fact that the trial court noted the seriousness of the injuries to the child as well as the fact that the trial court noted that Baker was operating a vehicle without a driv er’s license and while under a su spension for a prior OVI that occurred just three years prior to this accident reflect that the trial court did, in fact, consider the appropriate factors. {¶ 17} The five-year sentence the trial court imposed was neither contrary to law, nor an abuse of discretion. {¶ 18} The Second Assignment of Error is overruled. 7



IV. Conclusion {¶ 19} Both of Baker’s assignments of error having been overruled, the judgment of the trial court is Affirmed.

. . . . . . . . . . . . . DONOVAN and HALL, JJ., concur.

Copies mailed to: Lisa M. Fannin Gegory K. Lind Hon. Douglas M. Rastatter