STATE OF OHIO, PLAINTIFF-APPELLEE, v. DERRICK L. MARTRE, DEFENDANT-APPELLANT.
CASE NO. 1-18-61
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
May 28, 2019
2019-Ohio-2072
ZIMMERMAN, P.J.
Appeal from Allen County Common Pleas Court Trial Court No. CR2017 0387 Judgment Affirmed
APPEARANCES:
F. Stephen Chamberlain for Appellant
Jana E. Emerick for Appellee
{¶1} Defendant-appellant, Derrick Martre (Martre), appeals the judgment entry of sentencing and sexual classification of the Allen County Court of Common Pleas. We affirm.
{¶2} On December 14, 2017, the Allen County Grand Jury indicted Martre on count one, gross sexual imposition, a violation of
{¶3} On, December 20, 2017, Martre was arraigned, and through his court appointed counsel, entered pleas of not guilty to all counts in the indictment.1 (Doc. No. 13). The State and Martre engaged in pre-trial negotiations.2
{¶5} On June 21, 2018, the trial court held a hearing regarding a correspondence it (the trial court) received from Martre which indicated that he had additional information that he felt the trial court should consider in regard to Martre‘s withdrawal of his plea.3 (June 21, 2018 Tr. at 1, 2); (Doc. No. 112). The trial court ordered the preparation of a transcript from the change of plea hearing.4 (Id. at 3).
{¶7} On August 21, 2018, the trial court sentenced Martre to an aggregate term of 12 years in prison.6 (August 21, 2018 Tr. at 20, 21); (Doc. Nos. 82, 115). The trial court filed its judgment entry of sentencing and sexual classification on August 21, 2018. (Doc. No. 82).
{¶8} Martre filed his notice of appeal on November 13, 2018 and raises two assignments of error for our review. (Doc. No. 88).
Assignment of Error No. I
The trial court committed error in failing to allow the defendant to withdraw his no-contest plea prior to sentencing. This violates a fundament right to trial pursuant to the Fourteenth Amendment of the United States Constitution and the Ohio Rules of Criminal Procedure.
Standard of Review
{¶10} Crim.R.32.1 provides that a defendant is permitted to file a pre-sentence motion to withdraw a no-contest plea. The general rule is that a trial court should freely grant such a motion. State v. Xie, 62 Ohio St.3d 521, 526, 584 N.E.2d 715 (1992); State v. Spivey, 81 Ohio St.3d 405, 415, 692 N.E.2d 151 (1998). However, defendants do not have an absolute right to withdrawal of a no-contest plea prior to sentencing. Xie, paragraph one of syllabus; Spivey at 415, 629 N.E.2d 151. Instead, a trial court must hold a hearing to determine whether a “reasonable and legitimate basis” exists to allow a defendant to withdraw that plea. Id.; Id.
Analysis
{¶12} We consider certain factors when reviewing a trial court‘s decision to grant or deny a pre-sentence motion to withdraw a plea. Those factors are: (1) whether the withdrawal will prejudice the prosecution; (2) the representation afforded the defendant by counsel; (3) the extent of the hearing held pursuant to Crim.R. 11; (4) the extent of the hearing on the motion to withdraw the plea; (5) whether the trial court gave full and fair consideration of the motion; (6) whether the timing of the motion was reasonable; (7) the stated reasons for the motion; (8)
{¶13} Our examination of the reasonable-and-legitimate-basis factors supports the trial court‘s decision to deny Martre‘s presentence motion to withdraw his no-contest plea. For the reasons that follow, we conclude that such decision of the trial court was not unreasonable, arbitrary, or unconscionable. That is, the trial court did not abuse its discretion by concluding that Martre was not entitled to withdraw his plea determining that the request was nothing more than a “change of heart.”
Factor One: Prejudice to the State
{¶14} Prejudice to the State is not presumed, and this factor, “is often classified as the most important factor in the balancing test.” State v. Cuthbertson, 139 Ohio App. 3d 895, 899 (7th Dist.2000), citing State v. Fish, 104 Ohio App.3d 236, 240 (1st Dist.1995), overruled on other grounds, State v. Sims, 1st Dist. Hamilton No. C-160856, 2017-Ohio-8379. Here, Martre argues that there was no prejudice to the State because his case was less than a year old and witnesses were available and cooperative. However, the State contends that the nature of sex cases
Factor Two: Representation Afforded to Defendant
{¶15} Martre argues that factor two weighs in his favor. We disagree. Martre asserts that his counsel‘s performance was deficient based upon his failure to communicate and argues that he was “duped” into pleading to the charges on the morning of the trial. The State contradicts this argument by highlighting counsel‘s presence at all hearings, his preparedness for those hearings (many of which were pre-trial negotiations), and the filing of various pre-trial motions some of which were successful. (See Doc. Nos. 8-10, 23, 70). In our review of the record and this factor, we are directed to Martre‘s change of plea hearing and the trial court‘s colloquy. During that hearing, Martre was asked directly about his communication with his counsel, their discussions relating to discovery and the projected outcome of a trial, and regarding his counsel‘s performance. (May 14, 2018 Tr. at 3, 4).
{¶16} We note the trial court characterized Martre‘s testimony as “colloquial.” (Doc. No. 73). Martre‘s counsel of record‘s advice “constitut[ed] nothing more than counsel‘s attempts to provide [Martre] with informed advice, to relay worst case scenarios to him, and to make recommendations to him on how to proceed.” Id., citing State v. Eberle, 12th Dist. Clermont No. CA2009-10-065, 2010-Ohio-3563, ¶ 57. Understanding how a jury would perceive a cell phone video of Martre touching the breasts of his 9-year-old live-in, ex-girlfriend‘s daughter where only his forearm is visible (with distinguishing and identifiable tattoo‘s
Factors Three & Eight: Extent of the Hearing held pursuant to Crim.R. 11 & Defendant‘s Understanding of the Nature of the Charges and Potential Sentences
{¶17} Martre concedes that the third and eighth factors do not weigh in his favor. For ease of discussion we will address those factors together, since, they relate to the change of plea hearing and Crim.R. 11 colloquy.
{¶18} The trial court conducted an appropriate change of plea hearing. (Id. at 1-27). At that hearing, the trial court engaged in a thorough Crim.R. 11 colloquy with Martre, informing him of all the rights he was waiving in pleading no-contest to the charges. (Id. at 2-20). Further, the trial court informed Martre that he was giving up his right to a jury trial, his right to confront witnesses, his right to subpoena witnesses to appear on his behalf, his privilege against self-incrimination, and the right to have the State prove all the elements of each offense beyond a reasonable doubt. (Id. at 17-19). Lastly, the trial court gave Martre a detailed explanation of the charges against him, the consequences of his plea to those charges, and ample opportunities to ask questions. (Id. at 5-17). We agree with Martre and conclude that the trial court provided Martre with a proper change of plea hearing making no error in its Crim.R. 11 colloquy or in assessing Martre‘s understanding of the nature
Factor Four: Extent of Motion to Withdraw Hearing
{¶19} Martre argues that counsel failed to conduct a comprehensive hearing on his motion to withdraw his plea. Martre specifies that his counsel did not obtain additional information through a subpoena or through an additional investigation. Conversely, the State argues that the defense was given a full evidentiary hearing on his request and Martre was able to testify on his own behalf. At the hearing Martre disclosed to the trial court the letters (from his recent ex-girlfriend) that formed the foundation of his plea withdrawal. Nevertheless, the trial court found those letters an insufficient basis to grant Martre‘s request because she (his recent ex-girlfriend) had no authority to impact the progression of the case in the manner stated. (Doc. No. 73).
{¶20} At the hearing, Martre also discussed the search warrant claiming it was not provided to him in discovery. However, Martre testified regarding the issues raised and the trial court found that the evidence submitted by Martre told a different story. (See July 18, 2018 Tr. at 1-26); (See Doc. No. 73). Specifically, Martre testified that he had known of the search warrants existence since May 25, 2017 when he was arrested in Toledo on a domestic violence charge. (Id. at 7-13); (PSI). The trial court is in the best position to evaluate the credibility of the
Factors Five & Seven: Trial Court‘s Full and Fair Consideration of the Motion & Stated Reasons for the Motion
{¶21} Martre concedes that the trial court considered the evidence put forth at the hearing to withdraw his plea. However, he argues that counsel‘s ineffective performance in the presentation of the evidence prevented the trial court from reviewing the issues at hand. The State argues that the defense had its discovery response since December 19, 2017 (and by Martre‘s own admission at the motion to withdraw plea hearing), and that Martre was aware of the search warrant‘s existence since May 25, 2017.8 (July 18, 2018 Tr. at 10-13). Martre also admitted that at the time of his no-contest plea, he was aware the search warrant existed and that the search warrant was noted in discovery; the very same discovery he asserted
{¶22} Seeing that his (back-door Brady violation) arguments were unsuccessful, Martre, then, adapts his argument regarding the non-existence of the search warrant in his discovery packet to focus on the lack of clarity regarding the dates listed on the search warrant alleging that the search warrant dates were dispositive to the instant case. We disagree with Martre‘s contention and conclude
Factor Six: Reasonableness of timing of the Motion
{¶23} Martre contends that his motion was timely. The State disagrees. We conclude that the motion to withdraw his plea was made timely. While the State highlights the actual filing date of the motion, we note that Martre almost immediately (and upon receipt of a letter from his recent ex-girlfriend) approached the trial court regarding withdrawal of his plea by letter.9 Upon becoming aware of the position of his client, counsel of record filed the motion to withdraw “guilty” plea within eight days. (June 14, 2019 Tr. at 1-6); (Doc. Nos. 70, 112). Martre maintained his position that he wanted to withdraw his no-contest plea (continuously) and until the second sentencing hearing during which he withdrew his pro se motions (one of which was a motion to withdraw his plea) and elected to proceed to sentencing. (June 21, 2018 Tr. at 1-5); (July 18, 2018 Tr. at 1-35);
Factor Nine: Whether the accused was perhaps not guilty or had a complete defense to the charges
{¶24} It is important to note that Martre never promoted his actual innocence or revealed a complete defense to his case (other than his challenge to the search warrant). And, in that regard, he never indicated the basis upon which he would file the motion to suppress the search warrant, and how that would operate as a barrier to a finding of guilt or a complete defense to the underlying charges. Interestingly, Martre admitted to inappropriately touching (his 9-year-old live-in ex-girlfriend‘s daughter) on two separate occasions in the presentence investigation report (“PSI“). (PSI). Notwithstanding his PSI admission, it is uncontroverted that Martre‘s forearm is identifiable (in the cell phone video) through his distinguishing tattoos. This factor weighs in favor of the State.
{¶25} Upon our review of the reasonable-and-legitimate-basis factors as to whether the trial court erred by denying Martre‘s motion to withdraw his plea, we conclude that the trial court did not abuse its discretion in denying such a request. Accordingly, Martre‘s first assignment of error is overruled.
Assignment of Error No. II
The trial counsel for the defendant was ineffective and therefore violated the defendant‘s right to effective assistance of counsel
Standard of Review
{¶26} In his second assignment of error, Martre argues that his counsel of record failed to see/read the search warrant or supporting affidavit from the Toledo Municipal Court referenced in the discovery documents, and therefore, failed to investigate potential suppression issues. Martre contends that the suppression issue would have operated as a complete defense.
{¶27} Normally, in order to prevail on a claim of ineffective assistance of counsel, an appellant must meet the test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). However, because this case involves a no-contest plea and a pre-sentence motion to withdraw that plea, there is a different two-prong analysis that is applied. Martre must first show that counsel‘s performance was deficient. Strickland at 687; State v. Xie, 62 Ohio St.3d 521, 524, 584 N.E.2d 715 (1992). If Martre is able to establish that his counsel‘s performance was deficient, his second hurdle is to make a showing there is a reasonable probability that, but for, counsel‘s errors, he would not have entered his guilty plea and would have instead chosen to go to trial. Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). See Xie at 524. Since “[l]icensed attorneys are presumed competent” it follows that Martre bears the burden of proof
Analysis
{¶28} Martre argues that counsel‘s failure to see/read the search warrant issued in Toledo and failure to investigate a suppression issue constituted ineffective assistance of counsel. We disagree.
{¶29} What Martre is arguing is that his defense counsel failed to investigate his claims entirely. “Defense counsel has a duty to investigate the circumstances of [Martre‘s] case and explore all matters relevant to the merits of the case [].” Goodwin v. Johnson, 632 F.3d 301, 318 (6th Cir.2011). Martre has the burden of demonstrating that his counsel rendered ineffective assistance by failing to conduct an adequate investigation. State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 104, (2011) citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 and State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶ 62. See State v. Herring, 142 Ohio St.3d 165, 2014-Ohio-5228, 28 N.E.3d 1217, ¶ 135 (death penalty vacated because of failure to conduct thorough and adequate mitigation investigation).
{¶30} There is no dispute here that counsel failed to see/read or investigate the suppression issue regarding the cellphone video. Martre‘s counsel admits he
{¶31} Martre must now establish prejudice. The prejudice inquiry in cases involving pleas resembles the inquiry engaged in by courts reviewing ineffective assistance of counsel as it relates to error alleged to have occurred during the course of a trial. Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). Meaning, Martre must be able to show that (had he been permitted to challenge the search warrant through counsel‘s investigation) his challenge would have been successful. Here, to successfully establish prejudice, Martre “must [make a] show[ing] that there [was] a reasonable probability that, but for [Martre‘s] counsel‘s errors he would not have pleaded [no contest] and would have insisted on going to trial.” Id.
{¶32} Even if Martre‘s counsel had seen/read the search warrant, there is nothing in the record by way of a proffer that the outcome of Martre‘s case would have been different. Assuming for the sake of argument that there was a defect in the search warrant and underlying affidavit (which has not been alleged here), and Martre‘s counsel did file the motion to suppress, Martre has still made no showing
{¶33} It is clear that Martre knew of the existence of the search warrant, and its underlying affidavit, for approximately one year prior to the attempt to withdraw his no-contest plea. (July 18, 2018 Tr. at 7-12). Specifically, Martre was detained in the Lucas County Jail on May 25, 2017 (on domestic violence charges) when he saw the search warrant (for the cellphone) which he alleged was dated May 28th or 29th. (Id. at 7-14); (PSI). Thus, it is reasonable to conclude that Martre was aware of alleged defect in the warrant at the time he entered his plea on May 14, 2018. He
{¶34} Moreover, Martre does not dispute that it was his forearm (with the distinguishing and identifiable tattoos) on his cell phone video touching his 9-year-old live-in ex-girlfriend‘s daughter‘s breasts. So, even if we were to disregard his admissions at both the change of plea hearing and in the PSI, there is sufficient evidence to convict him with the cellphone video alone. So, without being able to establish that the cellphone video would have been suppressed, Martre is not able to establish that his counsel‘s inactions amounted to prejudice so as to undermine his decision to enter the no-contest plea and forego a jury trial. Having concluded that Martre cannot establish the prejudice prong of ineffective assistance espoused in Hill, Martre‘s second assignment of error is overruled.
{¶35} 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 and WILLAMOWSKI, J.J., concur.
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