[Cite as State v. Grieco , 2020-Ohio-6956.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO Plaintiff-Appellee

v. JESSICA L. GRIECO Defendant-Appellant : : : : : : : : : : Appellate Case No. 28542

Trial Court Case No. 2017-CR-889 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 30th day of December, 2020.

. . . . . . . . . . . MATHIAS H. HECK, JR., by SARAH E. HUTNIK, Atty. Reg. No. 009590 0, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Ap pellate Division, Montgomery County Courts Building, 301 West Third Street, Dayto n, Ohio 45422 Attorney for Plaintiff-Appellee BRYAN K. PENICK, Atty. Reg. No. 0071489 and KAITLYN C. MEEKS, A tty. Reg. No. 0098949, 40 North Main Street, Suite 1900, Dayton, Ohio 45423 Attorneys for Defendant-Appellant

. . . . . . . . . . . . . TUCKER, P.J.-2- {¶ 1} Defendant-appellant Jessica L. Grieco appeals from her convicti on for involuntary manslaughter. Grieco claims her plea of guilty was not voluntarily entered. She further contends the trial court erred in sentencing. Beca use the record fails to support Grieco’s assertions, we affirm the judgment of the tria l court.

I. Facts and Procedural History {¶ 2} This case arises from the March 2017 shooting death of Grieco’s fiancé, Peter Underwood. On that date, Montgomery County Sheriff’s dep uties responded to a home on Clagget Drive following a report of a shooting. When t hey arrived on the scene, the deputies observed Underwood lying on the floor on his back. They also observed Grieco “kneeling next to [him] with her hands on top of a towel on top of his chest.” Suppression Tr. p. 14. The deputies observed a large hole in t he middle of Underwood’s chest. They began chest compressions until medics arrived and pronounced Underwood dead. A shotgun was observed and taken into evidence

. {¶ 3} In July 2017, Grieco was indicted on one count of domestic viol ence in violation of R.C. 2919.25(B), one count of involuntary manslaug hter in violation of R.C. 2903.04(A), and one count of reckless homicide in violation of R.C. 2903.041(A). All three counts carried attendant firearm specifications. In Augu st 2018, the trial court denied a motion by Grieco for new appointed counsel. {¶ 4} Following a period of discovery, Grieco and the State entered i nto a plea agreement which provided that Grieco would enter pleas of guilt y to the charges of domestic violence and involuntary manslaughter. In exchange, t he State agreed to dismiss the reckless homicide charge and all of the firearm spe cifications. No agreement-3- was reached regarding sentencing. On October 22, 2018, Grieco entered a guilty plea. A sentencing hearing was conducted on November 29, 2018. The c ourt merged the two offenses and imposed an eight-year prison sentence for involunt ary manslaughter. {¶ 5} Grieco appeals.

II. Grieco’s Guilty Plea {¶ 6} The first assignment of error states as follows:

APPELLANT’S PLEA OF GUILTY WAS NOT VOLUNTARY WHEN THE

TRIAL COURT DENIED HER MOT ION TO APPOINT NEW COUNSEL. {¶ 7} Grieco asserts the trial court’s denial of her motion for new c ounsel resulted in the entry of an involuntary plea of guilty. 1 {¶ 8} An indigent defendant is entitled to competent, effective repre sentation from an appointed attorney. State v. Gordon , 149 Ohio App.3d 237, 2002-Ohio-2761, 776 N.E.2d 1135, ¶ 11 (8th Dist.). However, when appointing counse l for an indigent defendant, a trial court does not have a duty to allow the defe ndant to choose her attorney.

Id. Therefore, to justify the appointment of new counsel, a defen dant is required to “demonstrate a breakdown in the attorney-client relationship of such magnitude as to jeopardize defendant's Sixth Amendment right to effective assis tance of counsel.” State

v. Coleman , 2d Dist. Montgomery No. 19862, 2004-Ohio-1305, ¶ 24, citing State v.

Coleman , 37 Ohio St.3d 286, 292, 525 N.E.2d 792 (1988). “Disagreement between the attorney and client over trial tactics and strategy does not wa rrant a substitution of

1 The record reveals Grieco was assigned counsel at the onset of this case. However, that attorney withdrew from the case in September 2017.-4- counsel. Moreover, mere hostilit y, tension, and personal confl icts between attorney and

client do not constitute a total breakdown in communication if those problems do not interfere with the preparation and presentation of a defense.” (Citations omitted.) Id. at ¶ 25. {¶ 9} A hearing was conducted on August 15, 2018, during which Grieco expressed concern that counsel was biased against her and thus was not providing adequate representation. Specifically, she claimed that, as th e case progressed, counsel “pushed” her to “take a deal,” despite her stated desir e to “fight” the charges. New Counsel Tr. p. 3. She informed the trial court that she fe lt counsel had a “predetermined bias[ ]” concerning how the case should be resol ved. Id. at p. 4. In support of her claim, she faulted counsel for not filing a rebu ttal memorandum following a motion to suppress hearing and for his failure to file a moti on seeking all exculpatory evidence in the State’s possession. {¶ 10} The trial court noted that counsel was appointed on October 2, 2017 and that he obtained the full discovery packet within two days of h is appointment. By the end of October, counsel had filed a motion regarding the grand jury proceedings and a motion seeking a handwriting expert. The court noted that it had held a hearing regarding the grand jury concerns and that counsel conducted a thorough exami nation of the grand jury witness during that hearing. Counsel also filed motions to sup press and for the appointment of a private investigator. The court further noted that counsel’s motion to suppress was thoroughly briefed and that counsel conducted “exh austive crossexamination of the witnesses” during the hearing. Tr. p. 12. Counsel additionally filed a post-hearing memorandum, which the trial court described as e xtremely detailed and-5- specific. Finally, the trial court found that, as is the custo m in Montgomery County, the State had provided open discovery, which included all exculpato ry material. {¶ 11} On this record, Grieco has failed to demonstrate a significant breakdown in the attorney-client relationship. There was no allegation that counsel failed to meet with Grieco to discuss the case or that counsel failed to keep her a pprised of the proceedings. Indeed, the record demonstrates, and the trial court found, tha t counsel’s representation was exemplary. We cannot conclude that counsel’s advice to acc ept a negotiated plea

demonstrated counsel’s bias or a lack of effective assistance. We find no basis to disagree with the trial court’s assessment of counsel’s perform ance or the status of the attorney-client relationship. {¶ 12} In short, we find no abuse of discretion regarding to the trial court’s denial of Grieco’s motion for the appointment of new counsel, as the r ecord does not demonstrate that her relationship with counsel had deteriorated to the point that she was

denied the effective assistance of counsel. {¶ 13} We next turn to Grieco’s claim that the trial court’s refusal t o appoint new counsel resulted in an involuntary plea. In order to “satisfy the requirements of due process, a plea of guilty * * * must be knowing, intelligent, a nd voluntary, and the record must affirmatively demonstrate” as much. State v. Chessman , 2d Dist. Greene No. 03- CA-100, 2006-Ohio-835, ¶ 15, citing Boykin v. Alabama , 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969). To ensure that a defendant's plea is knowi ng, voluntary, and intelligent, the trial court must engage the defendant in a col loquy sufficient to satisfy the requirements of Crim.R. 11(C). State v. Clark , 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 25-26. Crim.R. 11(C)(2) provides the trial c ourt may not accept a-6- guilty plea without first addressing the defendant personally a nd: (a) Determining that the defendant is making the plea voluntari ly, with understanding of the nature of the charges and of the maximum p enalty involved, and if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the senten cing hearing. (b) Informing the defendant of and determining that the defenda nt understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sent ence. (c) Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury tr ial, to confront witnesses against him or her, to have compulsory process for ob taining witnesses in the defendant's favor, and to require the state to prove the defendant's guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself. {¶ 14} Grieco does not challenge the trial court's adherence to the re quirements of Crim.R. 11, except to argue the failure to appoint new counsel caused her to feel pressured to accept the plea agreement and thereby “perverted” the purpose of the rule. She argues that “[b]eing forced to proceed with an attorney she believed would not vigorously defend her at trial left [her] with no choice other than to plead guilty.” {¶ 15} The record demonstrates that, prior to accepting Grieco’s plea, the trial court fully advised her in accordance with the requirements of Crim.R. 11. Grieco affirmatively stated she understood the nature of the charges a s well as the possible penalties and the issues regarding merger of the offenses for s entencing. The trial court-7- properly informed her as to the presumption of prison and the f indings required to overcome that presumption. The trial court informed Grieco tha t she would be subject to five years of post-release control and of the penalties for violation thereof, including the effect of committing a new felony. The trial court also approp riately informed Grieco of the constitutional rights she was waiving. The court then ensu red that she was entering into the plea voluntarily and of her own free will. Quite impo rtantly, Grieco affirmatively stated that defense counsel had not pressured her into entering the plea. {¶ 16} We note that the plea occurred seven days prior to the schedule d trial date and more than two months after Grieco made the request for new counsel. At no time between the denial of her request and the entry of her plea did Grieco express continued dissatisfaction with counsel’s representation. As noted, when entering her plea, Grieco affirmatively stated that she felt no pressure from counsel to accept the plea. Notably, she did not make any claim to the trial court indicating that s he felt counsel would not adequately represent her at trial or that, as a result, she bel ieved she had no choice but to enter the plea. 2 Her history with criminal proceedings, as outlined below, ind icates she is familiar with the criminal justice system, including her rights thereunder and the types of actions defense counsel may take. The trial court con ducted an exemplary Crim.R. 11 colloquy and the record affirms the voluntary and kn owing nature of her plea.

2 Contrast State v. Gordon , 149 Ohio App.3d 237, 2002-Ohio-2761, 776 N.E.2d 1135, ¶ 16 1st Dist.) (guilty plea overturned when, “despite the tria l court's best effort to elicit a guilty plea untainted by Gordon's dissatisfaction with his atto rney's efforts, Gordon told the court no less than five times that he was pleading guilty o nly because he believed that to be his only alternative.”)-8- Therefore, we conclude the record simply does not support Griec o’s claim that she entered the plea due to pressure from her attorney or because s he felt she had no

alternative. {¶ 17} Because Grieco has failed to demonstrate any error by the trial court regarding the denial of new counsel or the taking of her plea, the first assignment of error

is overruled.

III. Grieco’s Sentence {¶ 18} The second assignment of error asserted by Grieco is as follows : THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT SENTENCED

MS. GRIECO TO AN EIGHT-YEAR PRISON SENTENCE. {¶ 19} Grieco asserts the trial court abused its discretion by imposin g an excessive

sentence. {¶ 20} When reviewing felony sentences, “[t]he appellate court's stand ard for review is not whether the sentencing court abused its discretio n.” R.C. 2953.08(G)(2). Instead, a reviewing court may “increase, reduce, or otherwise modify a sentence only when it clearly and convincingly finds that the sentence is (1) contrary to law or (2) unsupported by the record.” State v. Brandenburg , 146 Ohio St.3d 221, 2016-Ohio2970, ¶ 1, citing State v. Marcum , 146 Ohio St.3d 516, 2016-Ohio-1002, ¶ 7. “This is a very deferential standard of review, as the question is not whe ther the trial court had clear and convincing evidence to support its findings, but rather, wh ether we clearly and convincingly find that the record fails to support the trial co urt's findings.” (Citations-9- omitted.) State v. Cochran , 2d Dist. Clark No. 2016-CA-33, 2017-Ohio-217, ¶ 7. 3 Additionally, although R.C. 2953.08(G) does not mention R.C. 29 29.11 or 2929.12, the Supreme Court of Ohio has determined the same standard of revie w applies to findings made under those statutes, stating, “it is fully consistent for appellate courts to review those sentences that are imposed solely after consideration of the factors in R.C. 2929.11 and 2929.12 under a standard that is equally deferential to the sentencing court,” meaning that “an appellate court may vacate or modify any sentence that is not clearly and convincingly contrary to law only if the appellate court finds by clear and convincing evidence that the record does not support the sentence”. Marcum at ¶ 23. {¶ 21} A sentence is not clearly and convincingly contrary to law wher e the trial court “considers the principles and purposes of R.C. 2929.11, a s well as the factors listed in R.C. 2929.12, properly imposes postrelease control, and sent ences the defendant within the permissible statutory range.” State v. Julious , 12th Dist. Butler No. CA2015- 12-224, 2016-Ohio-4822, ¶ 8; State v. Haddad , 10th Dist. Franklin No. 16AP-459, 2017- Ohio-1290, ¶ 19, citing State v. Gore , 10th Dist. Franklin No. 15AP-686, 2016-Ohio-7667, ¶ 8. {¶ 22} We begin by noting that Grieco was convicted of a first-degree felony which carried a presumption of a prison sentence. R.C. 2929.13(D). The presumption may be rebutted if the trial court finds the imposition of communit y control sanctions (1) would adequately punish the offender and protect the public from futu re crime, and (2) would

3 Clear and convincing evidence is that measure or degree of proo f which will produce in the mind of the trier of fact a firm belief or conviction as to the facts sought to be established. Cross v. Ledford , 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.-10- not demean the seriousness of the offense. R.C. 2929.13(D)(2). The trial court stated that, based upon the record, it could not make the findings req uired to overcome the presumption of prison. Grieco contends, however, that the reco rd sufficiently rebutted the presumption. Specifically, she contends that she showed re morse for what she deemed an accident and that her lack of a prior felony criminal record militated against a prison sentence. She thus asserts that the trial court should have imposed community control sanctions. In the alternative, she asserts that the co urt abused its discretion by imposing more than a minimum prison term. {¶ 23} The record demonstrates the trial court considered the purposes and principles of sentencing set forth in R.C. 2929.11 as well as t he factors set forth in R.C. 2929.12. Also, the court notified Grieco that she would be sub ject to five years of postrelease control and of the consequences for violation of post-r elease control. The sentence imposed by the trial court also fell within the permis sible statutory range of three to eleven years. Thus, we find no basis for concluding that th e sentence imposed was contrary to law. {¶ 24} Further, the record supported the sentence imposed by the trial court. Prior to imposing sentence, the court noted that it had conside red the sentencing memorandum filed by Grieco, the information provided at the hea ring, the presentence investigation report, the 911 call made by Grieco, a letter fro m Grieco, a letter in support of Grieco, a certificate of graduation from the Y.E.S. Program, a victim impact statement written by the victim’s parents, and the separate written state ments of the victim’s family

members. {¶ 25} The court expressed concern over a 2004 misdemeanor domestic vi olence-11- conviction, stating that it found the underlying facts of that offense “particularly disturbing.” Tr. p. 147. According to the record, Grieco threatened her “in timate partner” with a long gun and ultimately stabbed him three times, causing “significan t harm.” Sentencing Tr. p. 148. The offense was originally charged as felonious assaul t but, with the agreement of the victim, was reduced to a first-degree misdemeanor. {¶ 26} The presentence investigation report also showed that Grieco wa s convicted of driving under the influence in 2001 and was senten ced to probation. In 2003, she was convicted of misdemeanor theft, originally charge d as a felony, for which she received probation. She was sentenced to 180 days in jail for the 2004 domestic violence conviction, but the sentence was suspended and she was placed on probation. Grieco was convicted of reckless operation in 2005; that offens e was originally charged as operating a vehicle under the influence. Grieco was sentenc ed to jail, but the sentence was suspended and she was placed on probation. In 200 6 and 2010, Grieco was convicted of driving while intoxicated and received suspend ed jail sentences and probation in both cases. She was convicted of possession of ma rijuana in 2011, for which she was fined. Finally, in 2015, Grieco was convicted of misdemeanor drug abuse, misdemeanor obstructing official business and misdemeano r driving under the influence for which she was given another suspended jail senten ce. It was clear from this criminal history that probation had not sufficiently preve nted Grieco from committing

additional offenses. {¶ 27} As previously noted, Grieco insisted the shooting of Underwood was an accident. According to Grieco, Underwood had been depressed an d suicidal. She claimed that, earlier on the day of the shooting, she had taken a rope from him after he-12- threatened to hang himself. She further claimed that she later attempted to remove a shotgun from the home in order to protect him. {¶ 28} However, the record indicates that Grieco was not forthcoming r egarding the circumstances of the offense, as she provided two different versions of the events. On the taped recording of her 911 call, she claimed that she ac cidentally discharged the gun while attempted to unload it. However, Grieco informed the responding deputies that she and Underwood had been struggling over a shotgun when the gun accidentally discharged. She later gave a videotaped interview in which she once again claimed that she had been trying to unload the shotgun when it accidentally fired. {¶ 29} The physical evidence indicated that Underwood was not in close proximity with Grieco when the gun discharged. Further, an examination o f the shotgun revealed

that it had a malfunction which made it harder to fire than nor mal, belying the claim of an accidental discharge. Thus, the trial court was entitled to di sregard Grieco’s claim of accident, as the physical evidence indicated she was not engage d in a struggle with Underwood when the gun discharged and that the gun was damaged in a manner that made an accidental discharge unlikely. Additionally, Grieco’s claim of remorse was belied by the fact that she gave two accounts of the event, nei ther of which correspond to the physical evidence. {¶ 30} After a thorough review of the record, including the trial cour t's underlying findings in support of the sentence, we find no error in the tr ial court's decision to sentence Grieco to prison rather than to community control. The sentenc e was not contrary to law and was supported by the record. Thus, Grieco’s assignment of error lacks merit. {¶ 31} The second assignment of error is overruled.-13-

IV. Conclusion {¶ 32} Both of Grieco’s assignments of error being overruled, the judg ment of the

trial court is affirmed.

. . . . . . . . . . . . .

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

Copies sent to: Mathias H. Heck, Jr. Sarah E. Hutnik Bryan K. Penick Kaitlyn C. Meeks Hon. Mary E. Montgomery