State v. Musleh, 2017 Ohio 8166

Background

On June 20, 2016, Ohio Dept. of Public Safety agents inspected a convenience store and found a sawed-off shotgun hidden in the wall behind the counter; Musleh (an employee) denied ownership.
Musleh was indicted for unlawful possession of a dangerous ordnance (R.C. 2923.17(A)), a fifth-degree felony, with forfeiture specification.
Musleh moved to suppress the gun arguing the administrative inspection exceeded scope; the State argued lack of standing and constitutionality.
On October 24, 2016, Musleh pled no contest after a plea colloquy; the court accepted the plea and scheduled sentencing.
Three days before sentencing Musleh moved to withdraw his plea claiming duress, depression, confusion, and innocence; the trial court held a hearing, denied the motion, and imposed community control.
Musleh appealed, raising: (1) Crim.R. 11(C)(2)(b) error for not being advised of the effect of a no contest plea; (2) abuse of discretion in denying plea withdrawal; and (3) ineffective assistance of counsel.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court failed to comply with Crim.R. 11(C)(2)(b) by not informing defendant of the effect of a no-contest plea	State: colloquy covered nature of charge, penalties, rights waived; substantial/partial compliance adequate	Musleh: court did not inform him of the effect of a no-contest plea and thus there was complete noncompliance requiring vacatur	Court: Partial compliance; defendant did not assert innocence and was presumed to understand effect; no prejudice shown — assignment overruled
Whether trial counsel provided ineffective assistance by advising plea that conferred no benefit	State: counsel’s advice may be reasonable trial strategy to avoid risk of incarceration and nontrial burdens	Musleh: plea offered no sentencing benefit; would have gone to trial if he’d known	Court: No deficient performance shown; plea avoided trial burden and potential incarceration; no prejudice established — assignment overruled
Whether counsel was ineffective for abandoning the suppression motion	State: defendant lacked standing and record lacks facts showing a legitimate expectation of privacy; suppression likely futile	Musleh: agents lacked reasonable suspicion to search inside closed places and gun should be suppressed	Court: Musleh failed to show reasonable probability a suppression motion would succeed or change outcome — assignment overruled
Whether the trial court abused its discretion by denying the presentence motion to withdraw plea	State: motion was vague, filed late, lacked evidentiary support, and asserted only change of heart	Musleh: plea involuntary due to duress/depression; insufficient hearing	Court: No abuse of discretion — defendant had competent counsel, valid Crim.R. 11 colloquy, hearing occurred, and motives deemed change of heart; denial affirmed

Key Cases Cited

Engle v. Isaac, 74 Ohio St.3d 525 (1996) (pleas must be knowing, intelligent, voluntary)
Veney v. Wong, 120 Ohio St.3d 176 (2008) (distinguishes strict vs. substantial compliance under Crim.R. 11)
Clark v. State, 119 Ohio St.3d 239 (2008) (multitiered analysis for Crim.R. 11 failures; partial vs. complete compliance)
Griggs v. State, 103 Ohio St.3d 85 (2004) (presumption that a defendant who pleads guilty without asserting innocence understands effect of plea)
Nero v. State, 56 Ohio St.3d 106 (1990) (substantial compliance standard and prejudice requirement for nonconstitutional advisements)
Xie v. State, 62 Ohio St.3d 521 (1992) (presentence withdrawal of plea should be freely allowed but not absolute; trial court discretion)
Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance of counsel)
Bradley v. State, 42 Ohio St.3d 136 (1989) (applies Strickland standard in Ohio)
Rakas v. Illinois, 439 U.S. 128 (1978) (defendant must show legitimate expectation of privacy to challenge a search)
Minnesota v. Carter, 525 U.S. 83 (1998) (limits on expectation-of-privacy showing)