State v. Whaley
2021 Ohio 1434
Ohio Ct. App.2021Background
- Phillip A. Whaley was indicted in three Clark County cases for drug and counterfeiting offenses arising from (1) drugs left in a police cruiser, (2) drugs found in a stolen vehicle, and (3) use of two counterfeit $100 bills.
- Whaley pleaded guilty to aggravated possession (methamphetamine) in Case No. 2019-CR-158 and counterfeiting in Case No. 2019-CR-387 on November 14, 2019; the State dismissed several related charges and agreed to presentence investigations and to remain silent at sentencing.
- Whaley pleaded guilty to aggravated possession (fentanyl) in Case No. 2019-CR-543 on February 25, 2019; the State dismissed another drug count and a related receiving-stolen-property charge.
- Sentencing: 18 months for counterfeiting, concurrent nine-month terms for each aggravated-possession count (those two concurrent terms ordered consecutive to the 18-month term), plus a 12-month PRC revocation term to be served prior and consecutive to the others, for an aggregate 39-month prison term; restitution and costs were ordered.
- On appeal, appellate counsel filed an Anders brief asserting no arguable issues; Whaley filed a pro se brief alleging trial counsel was ineffective for (1) failing to advise him he was pleading guilty to counterfeiting and (2) refusing to file a motion to withdraw his plea because Whaley misunderstood the plea and was allegedly under the influence.
- The court reviewed Whaley’s pro se ineffective-assistance claim and independently reviewed the record under Anders and found the claim and any appeal issues to lack arguable merit; it affirmed the trial court and permitted appellate counsel to withdraw.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial counsel was ineffective re: guilty plea to counterfeiting and refusal to move to withdraw plea (based on alleged misunderstanding and intoxication) | The claim relies on out-of-record communications and the record shows no basis to find deficient performance or prejudice; such claims are not reviewable on direct appeal. | Counsel led Whaley to believe he was only pleading to drug charges, failed to advise about the counterfeiting plea, and refused to file a motion to withdraw; Whaley was allegedly under the influence during plea. | Claim lacks arguable merit because it depends on matters outside the record and therefore is not reviewable on direct appeal; independent Anders review found no meritorious issues and affirmed the convictions. |
Key Cases Cited
- Anders v. California, 386 U.S. 738 (1967) (procedure when appointed counsel finds appeal frivolous and court must independently review the record)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong test for ineffective assistance: deficient performance and prejudice)
- State v. Bradley, 42 Ohio St.3d 136 (1989) (Ohio adoption of Strickland standard)
- State v. Spates, 64 Ohio St.3d 269 (1992) (guilty plea waives ineffective-assistance claims except to the extent the plea was not knowing and voluntary)
- State v. Hale, 119 Ohio St.3d 118 (2008) (prejudice standard: reasonable probability the result would differ but for counsel’s errors)
- State v. Watters, 76 N.E.3d 723 (2016) (claims about lack of communication with counsel rest outside the record and are not reviewable on direct appeal)