Opinion
CASE NO. 9-16-10
12-27-2016
STATE OF OHIO, PLAINTIFF-APPELLEE, v. IAN L. CONLEY, DEFENDANT-APPELLANT.
APPEARANCES: Nathan D. Witkin for Appellant Kevin P. Collins for Appellee
OPINION
Appeal from Marion County Common Pleas Court
Trial Court No. 15-CR-159
Judgment Affirmed
APPEARANCES:
Nathan D. Witkin for Appellant Kevin P. Collins for Appellee PRESTON, J.
{¶1} Defendant-appellant, Ian L. Conley ("Conley"), appeals the November 20, 2015 judgment entry of sentence of the Marion County Court of Common Pleas following his plea of guilty to one count of possession of cocaine. On appeal, Conley argues that his guilty plea was not made knowingly, intelligently, and voluntarily due to ineffective assistance of counsel. For the reasons that follow, we affirm.
{¶2} On April 23, 2015, the Marion County Grand Jury indicted Conley on: Count One of possession of heroin in violation of R.C. 2925.11(A), (C)(6), a second-degree felony; Count Two of possession of cocaine in violation of R.C. 2925.11(A), (C)(4), a first-degree felony; Count Three of trafficking in heroin in violation of R.C. 2525.03(A)(1), (C)(6), a fifth-degree felony; and Count Four of trafficking in cocaine in violation of R.C. 2925.03(A)(1), (C)(4), a fifth-degree felony. (Doc. No. 1). On April 27, 2015, Conley entered pleas of not guilty to the counts of the indictment. (See Doc. No. 5).
{¶3} On June 15, 2015, Conley filed a motion to suppress evidence and a "motion for disclosure of identity of the informant." (Doc. Nos. 21, 22). On July 1 and August 5, 2015, the State filed responses to Conley's "motion for disclosure of identity of the informant" and motion to suppress evidence, respectively. (Doc. Nos. 27, 37). The trial court held a hearing on Conley's motions on August 6, 2015. (Aug. 6, 2015 Tr. at 1). The trial court overruled Conley's motion to suppress evidence and overruled as moot Conley's "motion for disclosure of identity of the informant." (Id. at 96); (Doc. No. 39).
{¶4} Meanwhile, on August 5, 2015, the State filed a motion to dismiss Counts Three and Four of the indictment. (Doc. No. 36). On August 6, 2015, the trial court granted the State's motion and dismissed Counts Three and Four of the indictment. (Doc. No. 38).
{¶5} On October 20, 2015, pursuant to a negotiated plea agreement, Conley pled guilty to Count Two of the indictment "in exchange for" the State agreeing to a dismissal of Count One of the indictment. (Oct. 20, 2015 Tr. at 1-2). The parties did not reach agreement regarding sentencing. (Id.). The trial court accepted Conley's plea of guilty to Count Two of the indictment and entered a nolle prosequi to Count One, with Counts Three and Four having been dismissed previously. (Id. at 8); (Doc. No. 53).
{¶6} The trial court sentenced Conley on November 13, 2015. (Nov. 13, 2015 Tr. at 1-9). On November 20, 2015, the trial court filed its judgment entry of sentence. (Doc. No. 60).
{¶7} On March 10, 2016, Conley, pro se, filed a notice of appeal. (Doc. No. 63). Conley, now represented by counsel, raises two assignments of error for our review, which we consider together.
This court granted Conley's motion for leave to file a delayed appeal under App.R. 5.
Assignment of Error No. I
Appellant's guilty plea was not entered into knowly [sic] and voluntarily due to ineffective assistance of counsel.
Assignment of Error No. II
Appellant was denied his Sixth Amendment right to counsel due to the ineffective assistance of trial counsel.
{¶8} In his assignments of error, Conley argues that his plea of guilty was not made knowingly and voluntarily because he "desired to appeal the trial court's ruling on the suppression motion," but "his trial counsel did not inform him that a plea of guilty would preclude appellate review of the motion to suppress." (Appellant's Brief at 3-4). According to Conley, during plea negotiations, his "trial counsel advised [him] to enter a guilty plea rather than a no contest plea." (Id. at 2). This, Conley argues, amounted to deficient performance by his trial counsel that prejudiced him because "had he known that the guilty plea would limit appellate review, he would not have pled guilty and would have proceeded to trial." (Id. at 4).
{¶9} A defendant asserting a claim of ineffective assistance of counsel must establish: (1) the counsel's performance was deficient or unreasonable under the circumstances; and (2) the deficient performance prejudiced the defendant. State v. Kole, 92 Ohio St.3d 303, 306 (2001), citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052 (1984). To show counsel's conduct was deficient or unreasonable, the defendant must overcome the presumption that counsel provided competent representation and must show that counsel's actions were not trial strategies prompted by reasonable professional judgment. Strickland at 687. Counsel is entitled to a strong presumption that all decisions fall within the wide range of reasonable professional assistance. State v. Sallie, 81 Ohio St.3d 673, 675 (1998). Prejudice results when "'there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.'" State v. Bradley, 42 Ohio St.3d 136, 142 (1989), quoting Strickland at 694. "'A reasonable probability is a probability sufficient to undermine confidence in the outcome.'" Id., quoting Strickland at 694.
{¶10} "All guilty pleas must be made knowingly, voluntarily, and intelligently." State v. Moll, 3d Dist. Defiance Nos. 4-14-17 and 4-14-18, 2015-Ohio-926, ¶ 9, citing State v. Engle, 74 Ohio St.3d 525, 527 (1996). "A claim of ineffective assistance of counsel is waived by a guilty plea, unless the counsel's conduct affected the voluntary nature of the plea." State v. Haskell, 3d Dist. Seneca No. 13-14-42, 2015-Ohio-1885, ¶ 7, citing State v. Mata, 3d Dist. Allen No. 1-04-54, 2004-Ohio-6669, ¶ 13, citing State v. Spates, 64 Ohio St.3d 269, 272 (1992). To prevail on a claim of ineffective assistance of counsel in the context of a guilty plea, a defendant must show that (1) counsel's performance was deficient, and (2) there is a reasonable probability that, but for counsel's errors, the defendant would not have pled guilty. State v. Xie, 62 Ohio St.3d 521, 524 (1992), citing Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366 (1985) and Strickland at 687.
{¶11} We begin by pointing out that Conley does not argue that the trial court failed to satisfy its Crim.R. 11 obligations in its colloquy with him at the change-of-plea hearing. Indeed, at the change-of-plea hearing, the trial court explained to Conley the rights that he waives by pleading guilty. (Oct. 20, 2016 Tr. at 2-8). Conley indicated at the change-of-plea hearing that his trial counsel explained to him the consequences of entering a guilty plea and that Conley had confidence in the advice his trial counsel gave him. (Id. at 3). Nevertheless, in this appeal, Conley argues that his guilty plea was not made knowingly, voluntarily, and intelligently because his trial counsel failed to inform him that, by pleading guilty, he would not be able to appeal the trial court's decision concerning his motion to suppress evidence. Accordingly, we will address whether Conley's trial counsel performed deficiently, and, if so, whether Conley would have not pled guilty but for that deficient performance.
{¶12} We conclude that Conley failed to satisfy his burden of demonstrating ineffective assistance of counsel. At least one appellate district in Ohio, in applying Strickland's two-part test to arguments such as the one Conley makes in this appeal, "require[s] a defendant to establish the following when arguing that counsel was ineffective for allowing the defendant to plead guilty, as opposed to no contest: (1) the State would have agreed to a no-contest plea on the same terms; (2) counsel failed to advise the defendant that a no-contest plea, in contradistinction to a guilty plea, would preserve the pretrial issue for appeal; and (3) had defendant been so advised, the defendant would have rejected the plea offer." State v. Frazier, 2d Dist. Montgomery Nos. 26495 and 26496, 2016-Ohio-727, ¶ 82, citing State v. McGlown, 2d Dist. Montgomery No. 25434, 2013-Ohio-2762, ¶ 17. See also McGlown at ¶ 14, citing Strickland, 466 U.S. 668, 104 S.Ct. 2052. The record fails to establish any of these facts.
{¶13} First, there is no evidence in the record that the State would have agreed to a no-contest plea on the same terms. See State v. Corpening, 11th Dist. Ashtabula No. 2011-A-0005 and 2011-A-0006, 2011-Ohio-6002, ¶ 41 ("Mr. Corpening claims his counsel should have had him enter a 'no contest' plea in order to preserve the suppression issue on appeal. Yet, he has offered no evidence that a 'no contest' plea was ever an option in the plea negotiations, or, if it was, he would have received similar favorable terms in exchange for that plea."). Indeed, the transcript of the change-of-plea hearing reveals that—in the words of Conley's trial counsel—Conley agreed to plead guilty to Count Two "in exchange for" dismissal of Count One. (Oct. 20, 2015 Tr. at 2). Also, the written plea agreement indicates that Conley's plea of guilty to Count Two was "in consideration of" dismissal of Count One. (Doc. No. 53). See Frazier at ¶ 83 ("The plea form indicates that Frazier voluntarily agreed to plead guilty to having weapons while under disability, in exchange for which the State agreed to dismiss the charge of carrying a concealed weapon * * *."). As a result of the plea agreement, Conley's maximum possible sentence was capped at 11 years. See McGlown at ¶ 16 ("As a result of the plea agreement, [the defendant's] sentence was capped at four years. That was substantial consideration for her plea."). In short, Conley "does not cite to anything in the record regarding the possibility of a no contest plea." Frazier at ¶ 83.
{¶14} Second, there is no evidence in the record that Conley's trial counsel failed to advise him that a no-contest plea, in contradistinction to a guilty plea, would preserve the suppression-of-evidence issue for appeal. Conley concedes that the record contains no reference to the advice he received from his trial counsel concerning his plea. (See Appellant's Brief at 4). See State v. Jacobson, 4th Dist. Adams No. 01CA730, 2003-Ohio-1201, ¶ 15 ("Because the record is silent on this issue, Jacobson's assertion that trial counsel did not inform him that a guilty plea would waive his right to appeal the trial court's decision on his motion to suppress has to rely on evidence outside the record. In a direct appeal, we cannot consider such matters * * *."). Therefore, we have nothing but Conley's conclusory and self-serving statements concerning the advice he received from his trial counsel, and these statements cannot satisfy his burden of overcoming "the strong presumption that his trial counsel acted reasonably." Jacobson at ¶ 15. See also Frazier at ¶ 83 ("The mere fact that the defendant's guilty plea waived the ability to challenge pretrial rulings does not, without more, demonstrate deficient performance by counsel.").
{¶15} For the reasons above, Conley failed to demonstrate that his trial counsel's performance was deficient. See Corpening at ¶ 41 ("Given this record, we discern no deficiency in counsel's performance in negotiating a plea bargain to eliminate the risk of Mr. Corpening's receiving a longer sentence after trial, in light of the uncertainty of a reversal of the trial court's denial of the motion to suppress."); State v. Wilson, 6th Dist. Lucas No. L-04-1264, 2006-Ohio-468, ¶ 24 ("Trial counsel's inability to sell the prosecution a one-sided deal is not indicative of ineffective assistance of counsel."). Accordingly, we need not address the prejudice prong of the ineffective-assistance-of-counsel test—namely, whether there is a reasonable probability that, but for counsel's errors, the defendant would have rejected the plea offer and not pled guilty. Nevertheless, Conley has cited nothing in the record indicating that, but for his trial counsel's allegedly deficient performance, he would have rejected the plea offer and not pled guilty. See Corpening at ¶ 42-43.
{¶16} We hold that Conley has not demonstrated that he received ineffective assistance of counsel. Accordingly, we further hold that Conley has not demonstrated that his guilty plea was not knowing, voluntary, and intelligent.
{¶17} Conley's assignments of error are overruled.
{¶18} Having found no error prejudicial to the appellant herein in the particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed SHAW, P.J. and WILLAMOWSKI, J., concur.