The Akron Legal News

Court rules Speedway thief knowingly entered guilty plea

ANNIE YAMSON
Special to the Legal News
Published: August 4, 2015

A panel of three judges in the 2nd District Court of Appeals recently ruled that a defendant’s counsel was not ineffective during the prosecution of a robbery case.

Appealing from the judgment of the Clark County Court of Common Pleas, Danny Storck challenged his conviction on one count of aggravated robbery with a deadly weapon.

Case summary states that Storck entered a Speedway gas station in Springfield on Feb. 24, 2014, brandished a knife and forced the gas station employee to get behind the counter while Storck took money from the register.

Storck fled, but shortly thereafter was apprehended by Springfield Police Offer Meredith Freeman.

When he was taken into custody, Storck was found to be in possession of a black pocket knife.

On March 3, 2014 Storck was indicted on one count of aggravated robbery. Although he pleaded not guilty at his arraignment, Storck eventually entered into an agreement with the state and entered a guilty plea to the single count of aggravated robbery.

The trial court imposed an agreed-upon sentence of seven years in prison.

In his challenge to that judgment on appeal, Storck claimed that he was denied the effective assistance of counsel.

According to him, his attorney was deficient for failing to inform him of the lesser-included offense of robbery before advising him to plead guilty to aggravated robbery.

Had his case gone to a jury, Storck contended that it would have received the instruction on the lesser-included offense that the result of the proceedings against him would have been different.

Therefore, Storck argued that his guilty plea was not entered knowingly, intelligently or voluntarily.

“A claim of ineffective assistance of counsel requires both a showing that trial counsel’s representation fell below an objective standard of reasonableness and that the defendant was prejudiced as a result,” Judge Mary Donovan wrote on behalf of the court of appeals. “A reviewing court must indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.”

The appellate panel noted that a guilty plea generally waives the right to allege ineffective assistance of counsel except to the extent that the errors caused the plea to be less than knowing and voluntary.

In order to determine whether there was an issue with Storck’s admission of guilt, the court of appeals consulted the transcript of the plea hearing.

According to that record, the state began the hearing by stating that it was agree to a seven-year prison sentence in exchange for Storck’s plea.

It then proceeded to lay out the facts of the case: “On or about Feb. 24, 2014, at the Speedway located ... (in) Springfield, Clark County, Ohio, the defendant, Danny Storck, entered said store, took the employee at knifepoint behind the counter and forcibly took money from the register.”

When asked if that was the defense’s understanding of the facts and the agreement, Storck’s attorney answered that that was “a fair and accurate recitation” and then indicated that Storck would be changing his plea to guilty.

The court then asked Storck if that was what he wanted to do and Storck answered affirmatively.

It then inquired whether Storck understood the what exactly he was admitting by pleading guilty.

“The nature of the offense to which you are pleading guilty is that ... you did in attempting or committing a theft offense have a deadly weapon on or about your person or under you control and you displayed the weapon and used the weapon,” the trial court stated. “Do you understand the nature of your offense?”

Again, Storck answered in the affirmative.

The trial court concluded by ensuring that Storck knew the rights that he was waiving before accepting the plea.

The court of appeals pointed out that Storck was informed of the facts underlying the charge against him, the maximum sentence he faced and the constitutional rights he waived by foregoing a trial.

“Storck acknowledged that he had discussed his case with his attorney, including the elements of the offenses with which he was charged and his potential defenses,” Donovan wrote. “Storck stated that his attorney had gone over the plea form with him and that he was satisfied with his attorney’s representation.”

The court of appeals held that the record did not demonstrate in any way that Storck’s guilty plea was not knowingly, intelligently or voluntarily entered.

“Significantly, Storck acknowledged that he committed aggravated robbery with a deadly weapon, to wit: that he entered said store, took the employee at knife point behind the counter and forcibly took money from the register,” Donovan wrote, noting that, unlike robbery, aggravated robbery requires that a defendant display or brandish a deadly weapon.

The appellate panel found that Storck never expressed confusion regarding any of the information during his plea colloquy and he did not express displeasure with the performance of his attorney.

“Simply put, the record is devoid of any evidence supporting the defendant’s ineffective assistance of counsel claim because there are no facts in the record which even remotely establish that his trial counsel’s alleged failure to advise him of the lesser-included offense of robbery had any effect on his decision to plead guilty,” Donovan wrote, also noting that a jury would not have necessarily been instructed on robbery if the case went to trial.

The appellate panel concluded by noting that Storck does have another potential avenue for relief and, though it did not advise him to do it, it strongly suggested that Storck may want to file a postconviction motion to withdraw his guilty plea based on his counsel’s failure to advise him of the lesser-included offense.

“Storck’s sole assignment of error having been overruled, the judgment of the trial court is affirmed,” Donovan concluded.

Presiding Judge Jeffrey Froelich and Judge Jeffrey Welbaum concurred.

The case is cited State v. Storck, 2015-Ohio-2880.

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