[Cite as State v. Henderson, 2016-Ohio-3480.]

IN THE COURT OF APPEALS OF OHIO 

SECOND APPELLATE DISTRICT 

 MONTGOMERY COUNTY 

STATE OF OHIO 

Plaintiff-Appellee 

v. 

DAVID P. HENDERSON 

Defendant-Appellant

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C.A. CASE NO. 26762 

T.C. NO. 14CR2931 

(Criminal Appeal from 

 Common Pleas Court) 

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O P I N I O N 

Rendered on the ___17th___ day of ____June____, 2016. 

. . . . . . . . . . . 

ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, 301 W. 

Third Street, 5th Floor, Dayton, Ohio 45422 

 Attorney for Plaintiff-Appellee 

 

MARSHALL G. LACHMAN, Atty. Reg. No. 0076791, 75 N. Pioneer Blvd., Springboro, 

Ohio 45066 

 Attorney for Defendant-Appellant 

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FROELICH, J. 

{¶ 1} David P. Henderson pled guilty in the Montgomery County Court of Common 

Pleas to murder, an unclassified felony; felonious assault (deadly weapon), a felony of 

the second degree; and discharge of a firearm on or near prohibited premises, a felony 

of the first degree. The trial court merged the felonious assault into the murder for 
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sentencing and imposed an agreed sentence of a mandatory 15 years to life for the 

murder and a mandatory term of 11 years for the discharge of a firearm offense; the 

sentences were ordered to be served concurrently. Henderson was also ordered to pay 

restitution of $500 and court costs. 

{¶ 2} Henderson’s appellate counsel filed a brief pursuant to Anders v. California, 

386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating that he had discovered 

no non-frivolous issues for appeal. By entry, we informed Henderson that his attorney 

had filed an Anders brief on his behalf and granted him 60 days from that date to file a 

pro se brief. No pro se brief has been filed. 

{¶ 3} We have conducted our independent review of the record pursuant to 

Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988), and we agree with 

appellate counsel that there are no non-frivolous issues for review. Accordingly, the trial 

court’s judgment will be affirmed. 

I. Factual and Procedural History 

{¶ 4} In September 2014, Henderson was indicted for (1) murder (proximate cause 

of felonious assault – deadly weapon); (2) murder (proximate cause of felonious assault 

– serious physical harm); (3) felonious assault (deadly weapon); (4) felonious assault 

(serious physical harm); and (5) discharge of a firearm on or near prohibited premises 

(public road or highway). Each offense included a firearm specification. All of the 

offenses related to the shooting of DeAngelo Dewberry, Henderson’s cousin, during the 

early morning hours of August 23, 2014. Responding officers found Dewberry lying in 

the middle of the street with a gunshot wound. Dewberry later died at the hospital. 

{¶ 5} Henderson’s trial counsel sought and received discovery from the State. 
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Henderson signed a waiver of his speedy trial rights on September 25, 2014. 

{¶ 6} Henderson’s counsel filed several pretrial motions. In December 2014, 

Henderson moved to suppress any eyewitness identifications; that motion was 

subsequently withdrawn. Henderson also filed a motion in limine to exclude the use of 

Dewberry’s statements, one of which identified Henderson as the shooter, as dying 

declarations; the trial court overruled the motion. Henderson also sought an order for 

the crime lab to test Dewberry’s clothing and shoes and Henderson’s vehicle for gun 

powder residue and to test a substance that fell out of Dewberry’s shoe. The trial court 

granted the motion for crime lab testing. 

{¶ 7} On May 7, 2015, Henderson pled guilty to one count of murder (count one), 

one count of felonious assault (count three), and discharge of a firearm on or near 

prohibited premises (count five). In exchange for the plea, the State agreed to dismiss 

all of the firearm specifications, and the additional counts of murder (count two) and 

felonious assault (court four). The State indicated that it agreed that the felonious 

assault and murder charges would merge for sentencing; the State would elect to have 

Henderson sentenced for murder. The parties further agreed that the sentences for 

murder and discharge of a firearm on or near prohibited premises would be served 

concurrently and that Henderson would receive a mandatory term of 15 years to life for 

the murder and a mandatory term of 11 years for discharge of a firearm on or near 

prohibited premises. 

{¶ 8} The court originally did not order a presentence investigation. However, 

after the issue of restitution was raised, a limited presentence investigation was 

conducted on that issue. At the beginning of the sentencing hearing, the parties agreed 
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that Henderson would pay $500 in restitution to Dewberry’s mother as part of his 

sentence. The court ordered Henderson to pay that amount of restitution and court costs 

and imposed, as agreed by the parties, concurrent sentences of 15 mandatory years to 

life in prison for the murder and 11 mandatory years for the discharge of a firearm offense; 

the 11-year sentence was mandatory due to a prior conviction in federal court. 

{¶ 9} The trial court issued a judgment entry on May 15, 2015. Henderson did not 

file a timely appeal. On July 14, 2015, Henderson moved for leave to file a delayed 

appeal, and we granted his motion. 

{¶ 10} In his Anders brief, Henderson’s appellate counsel raises three potential 

assignments of error: (1) that the trial court failed to comply with Crim.R. 11 in accepting 

Henderson’s plea, (2) that Henderson’s sentence was contrary to law or was an abuse of 

discretion, and (3) that Henderson was denied the effective assistance of counsel. 

II. Trial Court’s Compliance with Crim.R. 11 

{¶ 11} Henderson’s first potential assignment of error states: 

The Trial Court Failed to Comply with the Requirements of Criminal Rule 11 

in Accepting the Appellant’s Guilty Plea. 

{¶ 12} As an initial matter, we find that there are no non-frivolous issues related to 

the trial court’s rulings prior to his plea. A plea of guilty is a complete admission of guilt. 

E.g., State v. Faulkner, 2d Dist. Champaign No. 2013-CA-43, 2015-Ohio-2059, ¶ 9; State 

v. Wheeler, 2d Dist. Montgomery No. 24112, 2011-Ohio-3423, ¶ 3; Crim.R. 11(B)(1). 

Consequently, a guilty plea waives all appealable errors that may have occurred in the 

trial court, unless such errors precluded the defendant from knowingly, intelligently, and 

voluntarily entering his guilty plea. See, e.g., State v. Kelley, 57 Ohio St.3d 127, 566 
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N.E.2d 658 (1991), paragraph two of the syllabus; Wheeler at ¶ 3. We find nothing in 

the trial court’s pretrial rulings that would have precluded Henderson from making a 

knowing, intelligent, and voluntary plea. 

{¶ 13} Crim.R. 11(C)(2) requires the court to address the defendant personally and 

(a) determine that the defendant is making the plea voluntarily, with an understanding of 

the nature of the charges and the maximum penalty, and, if applicable, that the defendant 

is not eligible for probation or for the imposition of community control sanctions; (b) inform 

the defendant of and determine that the defendant understands the effect of the plea of 

guilty and that the court, upon acceptance of the plea, may proceed with judgment and 

sentencing; and (c) inform the defendant and determine that he or she understands that, 

by entering the plea, the defendant is waiving the rights to a jury trial, to confront 

witnesses against him or her, to have compulsory process for obtaining witnesses, and 

to require the State to prove guilt beyond a reasonable doubt at a trial at which he or she 

cannot be compelled to testify against himself or herself. State v. Brown, 2d Dist. 

Montgomery No. 21896, 2007-Ohio-6675, ¶ 3. 

{¶ 14} The Supreme Court of Ohio has urged trial courts to literally comply with 

Crim.R. 11. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 29. 

However, because Crim.R. 11(C)(2)(a) and (b) involve non-constitutional rights, the trial 

court need only substantially comply with those requirements. E.g., State v. Nero, 56 

Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). “Substantial compliance means that under 

the totality of the circumstances the defendant subjectively understands the implications 

of his plea and the rights he is waiving.” Id. In contrast, the trial court must strictly 

comply with Crim.R. 11(C)(2)(c), as it pertains to the waiver of federal constitutional rights. 
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Clark at ¶ 31. 

{¶ 15} Furthermore, when non-constitutional rights are at issue, a defendant who 

challenges his plea on the basis that it was not knowingly, intelligently, and voluntarily 

made generally must show a prejudicial effect. State v. Veney, 120 Ohio St.3d 176, 

2008-Ohio-5200, 897 N.E.2d 621, ¶ 17. Prejudice in this context means that the plea 

would otherwise not have been entered. Id. at ¶ 15. 

{¶ 16} Upon review of the transcript of the plea hearing, the trial court fully 

complied with the requirements of Crim.R. 11. The charges were read to Henderson, 

and Henderson indicated that he understood the nature of those charges. The trial court 

informed Henderson of the potential penalties for each offense, including that the 15-year 

portion of the murder sentence was mandatory (“you cannot get early release from the 

Court during that 15-year period”) and that the discharge of a firearm offense had a 

mandatory sentence due to Henderson’s prior conviction in federal court for possession 

of a firearm during a drug trafficking crime. The court explained to Henderson that the 

felonious assault offense would merge with murder, that he would not be sentenced on 

the felonious assault, and that his other two sentences would run concurrently. 

Henderson indicated that he understood all of this. 

{¶ 17} The trial court further informed Henderson that he would be required to 

serve five years of post-release control for the discharge of a firearm offense, but with 

regard to the murder, he would be placed on parole if he were released. Henderson was 

told that he could be on parole supervision for the rest of his life. The court explained 

the different consequences if he violated post-release control or parole supervision. 

Henderson indicated his understanding. 
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{¶ 18} The court told Henderson that “pleading guilty to these three charges means 

you’re completely admitting you are guilty” and that the court would find him guilty of the 

three charges. The court explained the constitutional rights that Henderson would be 

waiving by his guilty plea. The trial court also told Henderson that, by pleading guilty, he 

would be unable to appeal the trial court’s decision overruling his motion to exclude 

Dewberry’s statements as dying declarations. Henderson stated that he understood the 

rights he was giving up. 

{¶ 19} Henderson told the trial court that he was entering his plea voluntarily. He 

denied that anyone had pressured him or threatened him into entering the plea. 

Henderson was 31 years old at the time of the plea, and he stated that he was not on any 

medications. Henderson said that he had understood everything the trial court had said. 

At the conclusion of the discussion, Henderson stated that he was pleading guilty to 

Counts One (murder), Three (felonious assault), and Five (discharge of a firearm on or 

near a prohibited premises). The court accepted the pleas and found Henderson guilty. 

{¶ 20} We find no non-frivolous claim based on the trial court’s Crim.R. 11 plea 

hearing. 

III. Sentencing 

{¶ 21} Henderson’s second potential assignment of error states: 

The Sentence Imposed by the Trial Court was Contrary to Law or 

Constituted an Abuse of Discretion 

{¶ 22} Henderson’s appellate counsel raises, as a potential assignment of error, 

that Henderson’s sentence was contrary to law or an abuse of discretion. Because the 

trial court imposed an agreed sentence, we begin with whether Henderson is entitled to 
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appeal his sentence. 

{¶ 23} R.C. 2953.08(D)(1) provides that “[a] sentence imposed upon a defendant 

is not subject to review under this section if the sentence is authorized by law, has been 

recommended jointly by the defendant and the prosecution in the case, and is imposed 

by a sentencing judge.” R.C. 2953.08(D)(1). “A sentence is ‘authorized by law’ and is 

not appealable within the meaning of R.C. 2953.08(D)(1) only if it comports with all 

mandatory sentencing provisions.” State v. Underwood, 124 Ohio St.3d 365, 2010-

Ohio-1, 922 N.E.2d 923, paragraph two of the syllabus. 

{¶ 24} Henderson’s sentences for murder and discharge of a firearm on or near a 

prohibited premises were within their respective sentencing ranges, and both sentences 

were required to be mandatory pursuant to R.C. 2929.13(F). The sentences were jointly 

recommended by the parties. Because Henderson’s sentence was authorized by law 

and jointly recommended by the parties, R.C. 2953.08(D)(1) precludes us from reviewing 

the length of his sentences. 

{¶ 25} In addition, the trial court properly imposed post-release control for the 

discharge of a firearm offense and informed Henderson that he was subject to parole for 

the murder. The court informed Henderson of the consequences of violating postrelease control and parole supervision. The trial court ordered that Henderson pay $500 

in restitution, an agreed-upon amount, and court costs at both the sentencing hearing and 

in the judgment entry. Upon review of the sentencing hearing and the judgment entry, 

we find no arguable errors by the trial court relating to the imposition of Henderson’s 

sentence. 

{¶ 26} Appellant counsel notes that the trial court did not notify Henderson that he 
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had a right to appeal. However, assuming this were error, Henderson sought to file a 

delayed appeal, and his request was granted. We find no arguable claim that Henderson 

was prejudiced by the trial court’s failure to address Henderson’s right to appeal his 

conviction. 

{¶ 27} We agree with appellate counsel that there are no non-frivolous issues 

related to Henderson’s sentencing. 

IV. Ineffective Assistance of Counsel 

{¶ 28} Henderson’s third potential assignment of error states: 

Appellant was Denied his Constitutionally Guaranteed Right to Effective 

Assistance of Counsel. 

{¶ 29} To establish ineffective assistance of counsel, Henderson must 

demonstrate both that trial counsel’s conduct fell below an objective standard of 

reasonableness and that the errors were serious enough to create a reasonable 

probability that, but for the errors, the outcome of his case would have been different. 

See Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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 wide range of reasonable 

assistance. Strickland, 466 U.S. at 688, 104 S.Ct. 2052, 80 L.Ed.2d 674. Hindsight is 

not permitted to distort the assessment of what was reasonable in light of counsel’s 

perspective at the time, and a debatable decision concerning trial strategy cannot form 

the basis of a finding of ineffective assistance of counsel. State v. Cook, 65 Ohio St.3d 

516, 524-525, 605 N.E.2d 70 (1992); State v. Rucker, 2d Dist. Montgomery No. 24340, 

2012-Ohio-4860, ¶ 58. 
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{¶ 30} Appellant counsel states that the record “contains little to any issue of 

ineffective assistance of counsel.” The only matter counsel raises is Henderson’s 

agreement not to appeal the court’s pretrial ruling regarding the admissibility of 

statements by Dewberry. We find no ineffective assistance in this regard. The inability 

of Henderson to appeal the court’s pretrial ruling stemmed from the fact that Henderson 

entered a guilty, as opposed to no contest, plea. However, there is nothing in the record 

to suggest that the State would have agreed to a no contest plea, and defense counsel 

had successfully negotiated the dismissal of the firearm specifications and concurrent 

sentences. Moreover, at Henderson’s plea hearing, the court made clear to Henderson 

that he would not be permitted to appeal the pretrial ruling, and Henderson entered his 

plea with this understanding. 

{¶ 31} We agree with appellate counsel that the record does not support a claim 

of ineffective assistance of counsel. 

V. Conclusion 

{¶ 32} Having conducted our independent review of the record, we agree with 

appellate counsel that there are no non-frivolous issues for review. Accordingly, the trial 

court’s judgment will be affirmed. 

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DONOVAN, P.J. and WELBAUM, J., concur. 

Copies mailed to: 

Andrew T. French 

Marshall G. Lachman 

David P. Henderson 

Hon. Dennis J. Langer