[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. 0095900, Assistant 

Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, 

Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422

 Attorney for Plaintiff-Appellee 

 

BRYAN K. PENICK, Atty. Reg. No. 0071489 and KAITLYN C. MEEKS, Atty. 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 conviction for 

involuntary manslaughter. Grieco claims her plea of guilty was not voluntarily entered. 

She further contends the trial court erred in sentencing. Because the record fails to 

support Grieco’s assertions, we affirm the judgment of the trial 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 deputies responded to a 

home on Clagget Drive following a report of a shooting. When they 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 the 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 violence in 

violation of R.C. 2919.25(B), one count of involuntary manslaughter 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 August 2018, the trial court 

denied a motion by Grieco for new appointed counsel. 

{¶ 4} Following a period of discovery, Grieco and the State entered into a plea 

agreement which provided that Grieco would enter pleas of guilty to the charges of 

domestic violence and involuntary manslaughter. In exchange, the State agreed to 

dismiss the reckless homicide charge and all of the firearm specifications. 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 court merged the two 

offenses and imposed an eight-year prison sentence for involuntary 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 MOTION TO APPOINT NEW COUNSEL. 

{¶ 7} Grieco asserts the trial court’s denial of her motion for new counsel resulted 

in the entry of an involuntary plea of guilty.1

{¶ 8} An indigent defendant is entitled to competent, effective representation 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 counsel for an indigent 

defendant, a trial court does not have a duty to allow the defendant to choose her attorney. 

Id. Therefore, to justify the appointment of new counsel, a defendant is required to 

“demonstrate a breakdown in the attorney-client relationship of such magnitude as to 

jeopardize defendant's Sixth Amendment right to effective assistance 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 warrant 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 hostility, tension, and personal conflicts 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 the case progressed, 

counsel “pushed” her to “take a deal,” despite her stated desire to “fight” the charges. 

New Counsel Tr. p. 3. She informed the trial court that she felt counsel had a 

“predetermined bias[ ]” concerning how the case should be resolved. Id. at p. 4. In 

support of her claim, she faulted counsel for not filing a rebuttal memorandum following 

a motion to suppress hearing and for his failure to file a motion 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 his 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 examination of the grand jury 

witness during that hearing. Counsel also filed motions to suppress 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 “exhaustive crossexamination of the witnesses” during the hearing. Tr. p. 12. Counsel additionally filed 

a post-hearing memorandum, which the trial court described as extremely detailed and 
-5- 

specific. Finally, the trial court found that, as is the custom in Montgomery County, the 

State had provided open discovery, which included all exculpatory 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 apprised of the proceedings. 

Indeed, the record demonstrates, and the trial court found, that counsel’s representation 

was exemplary. We cannot conclude that counsel’s advice to accept 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 performance 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 record 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 to 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, and 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 knowing, voluntary, and 

intelligent, the trial court must engage the defendant in a colloquy 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 court may not accept a 
-6- 

guilty plea without first addressing the defendant personally and: 

(a) Determining that the defendant is making the plea voluntarily, with 

understanding of the nature of the charges and of the maximum penalty 

involved, and if applicable, that the defendant is not eligible for probation or 

for the imposition of community control sanctions at the sentencing hearing. 

(b) Informing the defendant of and determining that the defendant 

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 sentence. 

(c) Informing the defendant and determining that the defendant understands 

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

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

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 requirements 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 as well as the possible 

penalties and the issues regarding merger of the offenses for sentencing. The trial court 
-7- 

properly informed her as to the presumption of prison and the findings required to 

overcome that presumption. The trial court informed Grieco that 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 appropriately informed Grieco of 

the constitutional rights she was waiving. The court then ensured that she was entering 

into the plea voluntarily and of her own free will. Quite importantly, 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 scheduled 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 she felt counsel would not 

adequately represent her at trial or that, as a result, she believed she had no choice but 

to enter the plea.2 Her history with criminal proceedings, as outlined below, indicates 

she is familiar with the criminal justice system, including her rights thereunder and the 

types of actions defense counsel may take. The trial court conducted an exemplary 

Crim.R. 11 colloquy and the record affirms the voluntary and knowing 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 trial court's best effort to elicit a 

guilty plea untainted by Gordon's dissatisfaction with his attorney's efforts, Gordon told 

the court no less than five times that he was pleading guilty only because he believed that 

to be his only alternative.”) 
-8- 

Therefore, we conclude the record simply does not support Grieco’s claim that she 

entered the plea due to pressure from her attorney or because she 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 imposing an excessive 

sentence. 

{¶ 20} When reviewing felony sentences, “[t]he appellate court's standard for 

review is not whether the sentencing court abused its discretion.” 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 whether the trial court had clear 

and convincing evidence to support its findings, but rather, whether we clearly and 

convincingly find that the record fails to support the trial court'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. 2929.11 or 2929.12, the 

Supreme Court of Ohio has determined the same standard of review 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 where the trial 

court “considers the principles and purposes of R.C. 2929.11, as well as the factors listed 

in R.C. 2929.12, properly imposes postrelease control, and sentences 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 community control sanctions (1) would 

adequately punish the offender and protect the public from future crime, and (2) would 

 

3 Clear and convincing evidence is that measure or degree of proof 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 required to overcome the 

presumption of prison. Grieco contends, however, that the record sufficiently rebutted 

the presumption. Specifically, she contends that she showed remorse 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 court 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 the factors set forth in R.C. 

2929.12. Also, the court notified Grieco that she would be subject to five years of postrelease control and of the consequences for violation of post-release control. The 

sentence imposed by the trial court also fell within the permissible statutory range of three 

to eleven years. Thus, we find no basis for concluding that the 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 considered the sentencing 

memorandum filed by Grieco, the information provided at the hearing, the presentence 

investigation report, the 911 call made by Grieco, a letter from 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 statements of the victim’s family 

members. 

{¶ 25} The court expressed concern over a 2004 misdemeanor domestic violence 
-11-

conviction, stating that it found the underlying facts of that offense “particularly disturbing.” 

Tr. p. 147. According to the record, Grieco threatened her “intimate partner” with a long 

gun and ultimately stabbed him three times, causing “significant harm.” Sentencing Tr. 

p. 148. The offense was originally charged as felonious assault but, with the agreement 

of the victim, was reduced to a first-degree misdemeanor. 

{¶ 26} The presentence investigation report also showed that Grieco was 

convicted of driving under the influence in 2001 and was sentenced to probation. In 

2003, she was convicted of misdemeanor theft, originally charged 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 offense was originally charged 

as operating a vehicle under the influence. Grieco was sentenced to jail, but the 

sentence was suspended and she was placed on probation. In 2006 and 2010, Grieco 

was convicted of driving while intoxicated and received suspended jail sentences and 

probation in both cases. She was convicted of possession of marijuana in 2011, for 

which she was fined. Finally, in 2015, Grieco was convicted of misdemeanor drug 

abuse, misdemeanor obstructing official business and misdemeanor driving under the 

influence for which she was given another suspended jail sentence. It was clear from 

this criminal history that probation had not sufficiently prevented 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 and 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 regarding 

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 accidentally 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 of the shotgun revealed 

that it had a malfunction which made it harder to fire than normal, belying the claim of an 

accidental discharge. Thus, the trial court was entitled to disregard Grieco’s claim of 

accident, as the physical evidence indicated she was not engaged 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, neither of which correspond 

to the physical evidence. 

{¶ 30} After a thorough review of the record, including the trial court's underlying 

findings in support of the sentence, we find no error in the trial court's decision to sentence 

Grieco to prison rather than to community control. The sentence 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 judgment 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