State v. Tomcik

[Cite as State v. Tomcik, 2019-Ohio-1396.] STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF MEDINA ) STATE OF OHIO C.A. No. 18CA0079-M Appellee v. APPEAL FROM JUDGMENT ENTERED IN THE KATHLEEN TOMCIK MEDINA MUNICIPAL COURT COUNTY OF MEDINA, OHIO Appellant CASE No. 18TRC02423 DECISION AND JOURNAL ENTRY Dated: April 15, 2019 HENSAL, Judge. {¶1} Kathleen Tomcik appeals a judgment of the Medina Municipal Court that convicted and sentenced her for operating a vehicle under the influence and a judgment of that court that ordered her car forfeited. For the following reasons, this Court affirms. I. {¶2} Following a traffic stop, a police officer charged Ms. Tomcik with two counts of operating a vehicle under the influence (OVI). Before trial, Ms. Tomcik agreed to plead no contest to an amended OVI charge in exchange for the dismissal of the other count. In her pretrial agreement, Ms. Tomcik acknowledged that she had two prior OVI convictions. At sentencing, however, she argued that the court should sentence her as if she only had one prior OVI conviction because she did not have counsel in one of the cases. The municipal court rejected her argument because the plea agreement stated that she had two prior offenses. It 2 sentenced her to 30 days in jail. It also ordered her to forfeit the car she had been driving at the time of the offense. Ms. Tomcik has appealed, assigning two errors. II. ASSIGNMENT OF ERROR I THE APPELLANT RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL. {¶3} Ms. Tomcik argues that her trial counsel was ineffective. To prevail on a claim of ineffective assistance of counsel, Ms. Tomcik must show: (1) that counsel’s performance was deficient to the extent that “counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and (2) that there is a reasonable probability that, but for counsel’s deficient performance, the result of the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687, 694 (1984). A deficient performance is one that falls below an objective standard of reasonable representation. State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus. A court, however, “must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial strategy.’” Strickland at 689, quoting Michel v. Louisiana, 350 U.S. 91, 101 (1955). To establish prejudice, Ms. Tomcik must show that there exists a reasonable probability that, were it not for counsel’s errors, the result of the trial would have been different. Id. at 694. {¶4} Ms. Tomcik argues that her trial counsel failed to advise her that, if she admitted that she had two prior OVI offenses in her plea agreement, her car would be subject to forfeiture. See R.C. 4511.19(G)(1)(c)(v). She also argues that her counsel should have done a better job addressing the fact that ...

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