STATE OF OHIO v. MOHAMMAD MUSLEH
No. 105305
Court of Appeals of Ohio, Eighth Appellate District, County of Cuyahoga
October 12, 2017
[Cite as State v. Musleh, 2017-Ohio-8166.]
E.A. Gallagher, P.J., McCormack, J., and Celebrezze, J.
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-16-606844-A RELEASED AND JOURNALIZED: October 12, 2017
Fernando Mack
1220 West 6th Street, Suite 203
Cleveland, Ohio 44113
Edward F. Borkowski, Jr.
P.O. Box 609151
Cleveland, Ohio 44109
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
BY: Amanda M. Hall
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, P.J.:
Factual and Procedural Background
{¶2} On June 20, 2016, Musleh was working at a convenience store owned by his mother when two agents of the Ohio Department of Public Safety arrived to conduct a routine inspection. Because the store had licenses to sell alcohol and tobacco, the premises were subject to Ohio Department of Public Safety inspections. During the course of the inspection, the agents found a “sawed-off” shotgun hidden in the wall behind the counter of the premises. Musleh claimed that the gun was not his and that someone had left it behind after he or she had attempted to rob the store.
{¶3} On June 21, 2016, a Cuyahoga County Grand Jury indicted Musleh on one count of unlawful possession of a dangerous ordnance in violation of
{¶4} On September 27, 2016, Musleh filed a motion to suppress on the ground that the search of the wall behind the counter was an unconstitutional warrantless search.
{¶5} On October 24, 2016, Musleh agreed to plead no contest to one count of unlawful possession of a dangerous ordnance as alleged in the indictment. After the terms of the plea were stated on the record, the trial judge proceeded with the plea colloquy.
{¶6} In response to the trial judge‘s preliminary questions, Musleh indicated that he was a United States citizen, was 48 years old, had attended some college and was not under the influence of any drugs or alcohol. The trial judge advised Musleh of his constitutional rights and confirmed that he understood the rights he would be waiving by entering a no contest plea. The trial judge identified the offense to which Musleh would be pleading no contest and the potential maximum penalties associated with the charge, i.e., 6 to 12 months in prison, a fine up to $2,500 and forfeiture of the sawed-off shotgun, explained the consequences of violating community control sanctions and postrelease control, if imposed and confirmed that Musleh understood all of this. Musleh indicated that no threats or promises had been made to him to induce him to change his plea and
{¶7} After a brief recitation of the facts by the state, the trial court found that Musleh entered his no contest plea “knowingly, voluntarily, and with a full understanding of [his] rights.” The trial court accepted Musleh‘s plea, found Musleh guilty of the offense and referred the matter for preparation of a presentence investigation report. A sentencing hearing was scheduled for the following month.
{¶8} On November 25, 2016 — three days before the scheduled sentencing hearing — Musleh filed a motion to withdraw his plea.1 He asserted that he “mistakenly, under duress” pled to a crime he did not commit and that he should be permitted to withdraw his plea to correct “an extreme and manifest injustice.” Specifically, he claimed that, at the time he entered his plea, he was “under extreme duress,” his “judgment was impaired * * * due to depression,” he was “not thinking clearly” and he was “worried about [how] his family * * * would survive if he was incarcerated.” As such, he argued his plea was not made voluntarily. No affidavits or other evidence was submitted with the motion.
{¶9} Immediately prior to the scheduled sentencing hearing, the trial court held a hearing on Musleh‘s motion to withdraw his plea. After considering arguments from the
{¶10} Musleh appealed his conviction, raising the following three assignments of error for review:
ASSIGNMENT OF ERROR NO. I:
The trial court erred by not informing appellant of the effect of a no contest plea.
ASSIGNMENT OF ERROR NO. II:
The trial court abused its discretion by denying Appellant‘s pre-sentence motion to withdraw his no contest plea.
ASSIGNMENT OF ERROR NO. III:
Appellant‘s counsel was ineffective.
{¶11} For ease of discussion, we address Musleh‘s assignments of error out of order.
Law and Analysis
{¶12} In his first assignment of error, Musleh contends that his no contest plea was not made knowingly, intelligently and voluntarily and should be vacated because the trial court did not inform Musleh of the effect of his no contest plea prior to accepting his plea. Musleh‘s argument is meritless.
Compliance with Crim.R. 11(C)(2)(b) — Effect of No Contest Plea
- Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
- Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
- Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant‘s favor, and to require the state to prove the defendant‘s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.
{¶14} If a trial court fails to “literally comply with
{¶15} Generally, the “failure to comply with nonconstitutional rights will not invalidate a plea unless the defendant thereby suffered prejudice.” State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 12. However, as the court explained in Clark, if the trial court fails to substantially comply with a requirement of
{¶16} The effect of a no contest plea is set forth in
The plea of no contest is not an admission of defendant‘s guilt, but is an admission of the truth of the facts alleged in the indictment, information, or
complaint, and the plea or admission shall not be used against the defendant in any subsequent civil or criminal proceeding.
See also State v. Jones, 116 Ohio St.3d 211, 2007-Ohio-6093, 877 N.E.2d 677, ¶ 25 (“to satisfy the requirement of informing a defendant of the effect of a plea, a trial court must inform the defendant of the appropriate language under
{¶17} In this case, Musleh argues that no showing of prejudice was required to invalidate his plea because the trial court completely failed to advise him of the effect of his no contest plea under
{¶18} First,
{¶19} Musleh also argues that we should vacate his no contest plea based on State v. Jones, 2d Dist. Montgomery No. 25688, 2014-Ohio-5574. In Jones, the Second District vacated a defendant‘s plea without a showing of prejudice after determining that the trial court completely failed to comply with the effect-of-plea requirement in
{¶20} The “primary goal” of the plea advisement under
{¶21} In State v. Durkin, 7th Dist. Mahoning No. 13 MA 36, 2014-Ohio-2247, the Seventh District held that the trial court partially complied with the effect-of-plea requirement under
Well, if you‘re pleading no contest, you are saying that you are not contesting these charges. You are allowing me to find that you‘re guilty of all four theft charges without going through a trial and being proven guilty. So for each of these four charges you‘re giving up your right to have a trial, you‘re giving up your right to be proven guilty by proof beyond a reasonable doubt, you‘re giving up your right to confront all of the evidence that the Prosecutor have to present against you, you‘re giving up your right to cross-examine all of the witnesses who would be called to testify against you, you‘re giving up your right to require any witnesses that you may have to come in here and testify on your behalf, you‘re giving up your right to continued representation by counsel through whatever trial proceeds there would be and you‘re giving up your right not testify at your trial if you didn‘t want to.
{¶22} Similarly, in this case, although the trial judge did not recite the language of
{¶23} The record reflects that Musleh was both advised of the “essence” of his no contest plea, i.e., that he was permitting the trial court to find him guilty without the opportunity to present a defense, and the negative effects of his no contest plea, i.e., that “he could be found guilty without going through a trial and that he would be waiving all of his Constitutional trial rights.” Ramey, 2014-Ohio-2345, at ¶ 19; see also State v. Lazazzera, 7th Dist. Mahoning No. 12 MA 170, 2013-Ohio-2547, ¶ 17-20 (trial court
{¶24} Moreover, there has been no showing that Musleh suffered any prejudice as a result of the trial court‘s failure to fully comply with
Ineffective Assistance of Counsel
{¶25} In his third assignment of error, Musleh contends his plea should be vacated because he was denied ineffective assistance of counsel. Musleh contends his trial counsel was ineffective because he (1) advised Musleh to enter a no contest plea “which provided him with no benefit” and (2) abandoned his motion to suppress prior to the plea hearing.
{¶26} To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate: (1) deficient performance by counsel, i.e., that counsel‘s performance fell
{¶27} When considering whether trial counsel‘s representation amounts to a deficient performance, “a court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance.” Id. at 689. Thus, “the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. Musleh has not met his burden in this case.
No Benefit from Plea
{¶28} Musleh contends that his trial counsel provided ineffective assistance by advising him to enter a no contest plea from which he received “no benefit at all” and that “[h]ad he known the result would have been the same if he had gone to trial,” he would not have entered the plea. Musleh asserts that pursuant to
{¶29} Further, even if Musleh did not receive a reduced sentence by pleading no contest, we do not agree that Musleh received nothing of value in exchange for his no contest plea. As a result of the plea, there was no trial. There are a number of reasons a defendant may choose to enter a no contest or guilty plea instead of going to trial besides a possible reduction in sentence. For example, a defendant may want to take responsibility for his crime, a defendant may wish to avoid the attention of a public trial or a defendant may simply want the case to be over and spare himself (and perhaps also his family) the time and stress of going through a trial.
Failure to Pursue Motion to Suppress
{¶31} The failure to file or pursue a motion to suppress does not automatically constitute ineffective assistance of counsel. See, e.g., State v. Moon, 8th Dist. Cuyahoga No. 101972, 2015-Ohio-1550, ¶ 28; State v. Taylor, 4th Dist. Washington No. 07CA11, 2008-Ohio-482, ¶ 9, citing State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000). To establish ineffective assistance of counsel for failure to pursue a motion to suppress, a defendant must prove that there was a basis to suppress the evidence in question and that there was a reasonable probability both that a motion to suppress would have been successful if pursued and that suppression of the challenged evidence would have changed the outcome of the case. See, e.g., State v. Madden, 4th Dist. Adams No. 09CA883, 2010-Ohio-176, ¶ 19; Taylor at ¶ 9; State v. Brooks, 11th Dist. Lake No. 2011-L-049, 2013-Ohio-58, ¶ 57; State v. Grimes, 8th Dist. Cuyahoga No. 94827, 2011-Ohio-4406, ¶ 30. Counsel is not required to pursue a motion to suppress if doing so would be a futile act. See, e.g., State v. Armstrong, 8th Dist. Cuyahoga No. 103088, 2016-Ohio-2627, ¶ 30; Moon at ¶ 28 (“Even if some evidence in the record supports a motion to suppress, counsel is still considered effective if counsel could reasonably have decided that filing a motion to suppress would have been a futile act.“), quoting State v. Suarez, 12th Dist. Warren No. CA2014-02-035, 2015-Ohio-64, ¶ 13. “If case law indicates the motion would not have been granted, then counsel cannot be considered
{¶32} Musleh contends that there was a “legitimate basis to suppress the firearm” that served as the basis of the charge against him because the gun was found inside a wall and the investigators lacked a “reasonable suspicion of criminal activity” necessary to search inside closed places at the time they found the gun. However, as the state points out, Musleh did not own the store; he was only an employee. Further, it is unclear from the record exactly where the gun was found or how the agents discovered the gun during their search. “To challenge the admission of evidence found during a warrantless search, a defendant must have a legitimate expectation of privacy in the premises searched.” State v. Martin, Slip Opinion No. 2017-Ohio-7556, ¶ 79, citing Rakas v. Illinois, 439 U.S. 128, 130, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), fn. 1, and Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998); see also State v. Dennis, 79 Ohio St.3d 421, 426, 683 N.E.2d 1096 (1997) (“A defendant bears the burden of proving not only that a search was illegal, but also that he had a legitimate expectation of privacy in the area searched.“); State v. Lumbus, 2016-Ohio-380, 59 N.E.3d 580, ¶ 72 (8th Dist.); State v. Davis, 80 Ohio App.3d 277, 284, 609 N.E.2d 174 (8th Dist.1992) (“‘In order to challenge a search or seizure on Fourth Amendment grounds, a defendant must possess a legitimate expectation of privacy in the area searched, and the burden is upon the defendant to prove facts sufficient to establish such an expectation.‘“), quoting State v. Steele, 2 Ohio App.3d 105, 107, 109, 440 N.E.2d 1353 (8th Dist.1981).
Motion to Withdraw Guilty Plea
{¶34} In his second assignment of error, Musleh contends that the trial court abused its discretion in denying his presentence motion to withdraw his no contest plea because (1) his trial counsel was ineffective, (2) the trial court failed to inform Musleh of the effect of his no contest plea and (3) Musleh was not given a “full hearing” on his motion to withdraw his plea.
{¶35} In general, “a presentence motion to withdraw a guilty plea should be freely and liberally granted.” State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). However, even before the trial court imposes a sentence, a defendant does not have an “absolute right” to withdraw a plea. Id. at paragraph one of the syllabus. Before ruling on a presentence motion to withdraw a plea, the trial court must, therefore, conduct a hearing to determine whether there is a reasonable and legitimate basis for withdrawal of the plea. Xie at paragraph one of the syllabus. A mere change of heart regarding a plea is an insufficient justification for the withdrawal of a no contest or guilty plea. See, e.g., State v. Shaw, 8th Dist. Cuyahoga No. 102802, 2016-Ohio-923, ¶ 7.
{¶37} In State v. Peterseim, 68 Ohio App.2d 211, 214, 428 N.E.2d 863 (8th Dist.1980), this court held that a trial court does not abuse its discretion in denying a presentence motion to withdraw a plea where the record reflects: (1) the defendant is represented by highly competent counsel; (2) the defendant was afforded a full hearing, pursuant to
{¶38} In subsequent cases, this court identified additional factors to be considered in evaluating a defendant‘s request to withdraw a plea, including: (1) whether the motion was made in a reasonable time; (2) whether the motion states specific reasons for withdrawal; (3) whether the defendant understood the nature of the charges and the possible penalties and (4) whether the defendant was perhaps not guilty
{¶39} Applying these factors in this case, we find no abuse of discretion by the trial court in denying Musleh‘s motion to withdraw his no contest plea. As explained above, we have already determined that Musleh‘s complaints regarding the trial court‘s failure to advise him of the effect of his no contest plea and alleged ineffective assistance of counsel are meritless. The record reflects that Musleh was represented by competent counsel, was afforded a full hearing pursuant to
{¶40} With respect to Musleh‘s claim that the trial court did not give him a “full hearing” on his motion to withdraw his plea, the scope of a hearing on a motion to withdraw a guilty plea is “dependent upon the facial validity of the motion itself.” State v. Wittine, 8th Dist. Cuyahoga No. 90747, 2008-Ohio-5745, ¶ 8; see also State v. Elliot, 8th Dist. Cuyahoga No. 103472, 2016-Ohio-2637, ¶ 26. “[B]old assertions without evidentiary support * * * should not merit the type of scrutiny that substantiated allegations would merit.” Wittine at ¶ 9, quoting State v. Hall, 8th Dist. Cuyahoga No. 55289, 1989 Ohio App. LEXIS 1602, *2-*3 (Apr. 27, 1989). “The motion to withdraw the plea must, at a minimum, make a prima facie showing of merit before the trial court need devote considerable time to it.” Wittine at ¶ 9, quoting Hall at *2.
{¶42} In his motion, Musleh argued that he should be permitted to withdraw his plea because he was innocent and had been “confused, depressed, and worried about his family” when he entered his plea. Musleh contends that the trial court failed to give due consideration to his motion because it “did not ask any questions of Musleh relative to the basis for his motion” and “simply sought to confirm the voluntariness of his plea.” However, in his motion to withdraw his plea, Musleh challenged only the voluntariness of his no contest plea; he did not contend that his no contest plea was not knowingly or intelligently made. Although Musleh claimed he was “confused,” he did not explain in the motion what gave rise to his confusion and pointed to nothing in the record that would suggest that his plea may have been the result of any confusion. Likewise, he put forth no facts or evidence supporting his claims of innocence and depression. “A defendant‘s protestations of innocence are not sufficient grounds for vacating a plea that was voluntarily, knowingly, and intelligently entered.” State v. Ortiz, 8th Dist. Cuyahoga No. 104689, 2017-Ohio-7400, ¶ 15, quoting State v. Hill, 8th Dist. Cuyahoga No. 99564, 2014-Ohio-26, ¶ 10. Similarly, the fact that a defendant may have felt “pressured” to enter a plea is not a sufficient basis to withdraw a plea in the absence of evidence of coercion. See, e.g., Shaw, 2016-Ohio-923, at ¶ 6-9.
{¶44} The record supports the trial court‘s conclusion that Musleh failed to demonstrate any basis for withdrawing his plea other than a change of heart, which was not a legitimate and reasonable basis for withdrawal of his plea. Accordingly, the trial court did not abuse its discretion in denying Musleh‘s motion to withdraw his no contest plea. Musleh‘s second assignment of error is overruled.
{¶45} Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
EILEEN A. GALLAGHER, PRESIDING JUDGE
TIM MCCORMACK, J., and FRANK D. CELEBREZZE, JR., J., CONCUR