STATE OF OHIO v. ALAN HARRIS, JR.
C.A. CASE NO. 27179
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
December 15, 2017
2017-Ohio-9052
T.C. NO. 14-CR-820/2
Rendered on the 15th day of December, 2017.
ALICE B. PETERS, Atty. Rеg. No. 0093945, Assistant Prosecuting Attorney, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
CHRISTOPHER M. COOPER, Atty. Reg. No. 0028970, 3055 Cleveland Avenue, Columbus, Ohio 43224 Attorney for Defendant-Appellant
ALAN HARRIS, JR., Inmate #727124, Madison Correctional Institute, P. O. Box 740, London, Ohio 43140 Defendant-Appellant
{1} Alan Harris, Jr. appeals from a judgment of the Montgomery County Court of Common Pleas, which found him guilty on his guilty plea of possession of marijuana, and sentenced him to five years of imprisonment. Harris‘s appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), indicating that he has found no non-frivolous issues for appeal, and has asked to withdraw from the case. Counsel identified two potential assignments of error for review. We informed Harris that his attorney had filed an Anders brief on his behalf and granted him 60 days to file a pro se brief. Harris filed a pro se brief with four potential assignments оf error. The State has filed a brief in response to Harris‘s brief.
{2} For the following reasons, the judgment of the trial court will be affirmed.
{3} On March 14, 2014, Harris and two co-defendants were each indicted on one count of possession of marijuana (≥40,000g) and one count of trafficking in marijuana (≥40,000g), both felonies of the second degree. On April 28 and 30, 2014, Harris filed motions to suppress evidence. A hearing was held on his motiоns; the trial court subsequently overruled Harris‘s motions to suppress. The trial was set for March 8, 2016.
{4} On March 4, 2016, Harris entered a guilty plea to one count of possession of marijuana (≥20,000g but < 40,000g), which is also a felony оf the second degree and which was a “lesser included offense” of the one contained in the indictment; the count of trafficking in marijuana was dismissed. The parties agreed that Harris would serve a term of imprisonment of five to eight years, that he would be entitled to a five-year sentence if he cooperated with the State by testifying against his co-defendants, and that
{5} Before turning to counsel‘s and Harris‘s potential assignments of error, we note that, even though Hаrris has elected to file a pro se brief, we review this appeal in accordance with Anders and consider whether Harris‘s and his appellate counsel‘s potential assignments of error аre frivolous. In addition, we continue to have the obligation to review the entire record for any non-frivolous issues. Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988).
{6} Harris‘s appellate counsel raised two potential issues for review: (1) whether Harris waived his right to appeal the decisions on his pretrial motions by entering a guilty plea, and (2) whether the trial court erred by denying Harris‘s motions to suppress. In his first assignment of error, Harris also challenges the trial court‘s denial of his motions to suppress. In his second assignment, Harris argues that his rights to confront and cross-examine witnesses against him were violated by the use of out-of-court hearsay statements of one or more of his co-defendants in building the case against him.
{7} A plea of guilty is a complete admission of guilt. Consequently, a guilty plea waives all appealable errors, including a ruling on а motion to suppress, except to the extent that the errors precluded the defendant from knowingly, intelligently, and voluntarily entering his or her guilty plea. See, e.g., State v. Frazier, 2016-Ohio-727, 60 N.E.3d 633, ¶ 81 (2d Dist.); State v. Faulkner, 2d Dist. Champaign No. 2013-CA-43, 2015-Ohio-2059, ¶ 9; State v. Wheeler, 2d Dist. Montgomery No. 24112, 2011-Ohio-3423. We find nothing in the trial court‘s pretrial rulings or in the State‘s alleged violation of his right to confront witnesses against him that would have precluded Harris from knowingly, intelligently, and voluntarily entering his plea. As such, Harris waived these arguments when he entered his guilty plea.
{8} Harris‘s first and second assignments of error and the issues raised by Harris‘s counsel have no arguable merit.
{9} In his third assignment of error, Harris asserts that his sentence was contrary to law, because he was “under the assumption” that his plea to a lesser included offense meant that he was pleading to a felony of a lesser degree. In fact, both the offense with which he was charged and the offense to which he pled guilty were felonies of the second degree.
{10} “An offense may be a lesser included offense of another if (i) the offense carries a lesser penalty than the other; (ii) the greater offense cannot, as statutorily defined, *** be committed without the lesser offense, as statutorily defined, also being committed; and (iii) some element of the greater offense is not required to prove the commission of the lesser offense.” State v. Pope, 2d Dist. Montgomery No. 27231, 2017-Ohio-1308, ¶ 15, citing State v. Deem, 40 Ohio St.3d 205, 533 N.E.2d 294 (1988), paragraph three of the syllabus, as modified by State v. Evans, 122 Ohio St.3d 381, 2009-Ohio-2974, 911 N.E.2d 889, ¶ 25. The definition does not incorporate the degree(s) of the related offenses.
{11} Further, the prosecutor addressed this issue at the plea hearing. Shе
{12} Moreover, the pаrties’ agreement as to the sentence was not specifically related to the degree of the offense of which he was convicted; the potential sentence was described throughout the proceedings as five to eight years, which is within the sentencing range for a second-degree felony, and the trial court imposed a sentence of five years. (The sentence for рossession of marijuana of 40,000g or more is a mandatory eight years, the maximum allowable sentence for a second-degree felony.) See
{13} Harris relies on State v. Arnold, 2012-Ohio-5786, 984 N.E.2d 364 (2d Dist.), which involved the legislative revision of statutory provisions, specifically related to drug offenses involving crack cocaine and powder cocaine, and whether a defendаnt who was entitled to a lesser sentence under the revised statute, Am.Sub.H.B. No. 86, was also entitled to have the degree of the offense reduced. The issues in Arnold are not analogous to Harris‘s case, and the holding does not support a conclusion that Harris should have been sentenced to a felony of a lesser degree.
{14} The third assignment of error is frivolous.
{15} In his fourth assignment of error, Harris argues that he was denied the effectivе assistance of counsel. To establish ineffective assistance, a defendant must demonstrate both that trial counsel‘s conduct fell below an objective standard of reasonableness аnd that the errors were serious enough to create a reasonable probability that, but for the errors, the outcome of the case would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989).
{16} Harris identifies several alleged shortcomings of counsel which predated his plea: counsel‘s failure to give appropriate scrutiny to the inventories of the searches conducted by police; failure to рursue all pretrial motions to a decision from the court, after the court deemed them “trial matters“; failure to investigate the possibility of police misconduct; and failure to investigate the arrival of a second canine officer at the scene of the search, who had “invit[ed] himself.”
{17} As we discussed under his first and second assignments of error, a plea of guilty is a complete admission of guilt and waives all appealable errors, including a claim of ineffective assistance of counsel, except to the extent that the errors precluded
{18} Harris also contends that counsel did not inform him of the mandatory nature of his plea and inaccurately advised him that “he was going to receive 5 years and would be out in 3 for good behаvior.” Because his sentence was mandatory, Harris asserts that “no early release options [were] available” and that he was misinformed by counsel.
{19} Harris‘s claim about communications with his attorney presents a matter outside the record. A claim of ineffective assistance of counsel cannot be asserted on direct appeal if it relies on matters outside the recоrd. State v. Thomas, 2d Dist. Montgomery No. 26907, 2017-Ohio-5501, ¶ 28. (We note, however, that the record refutes Harris‘s claim insofar as he was informed by the court multiple times at the hearing that his sentence would be a mandatory five years, and Harris indicated that hе understood this fact.) Because any evidence upon which Harris would rely in support of this argument is outside the record, this claim of ineffective assistance of counsel is frivolous.
{20} The fourth assignment of error has no arguable merit.
{21} Having conducted an independent review of the entire record, we find no non-frivolous issues for appeal. The judgment of the trial court will be affirmed.
DONOVAN, J. and TUCKER, J., concur.
Alice B. Peters
Christopher M. Cooper
Alan Harris, Jr.
Hon. Michael W. Krumholtz