State v. ResendizState v. Resendiz
George A. Katchmer, 28 North Wilkinson Street, Dayton, Ohio 45401, for defendant-appellant
O P I N I O N
HENDRICKSON, J.
{¶1} Defendant-appellant, Sergio Resendiz, appeals a decision of the Preble County Court of Common Pleas denying a post-sentence motion to withdraw his guilty pleas. For the reasons outlined below, we affirm the decision of the trial court.
{¶2} On September 16, 2005, Trooper Shaun Smart of the Ohio State Highway Patrol observed an SUV following a semi-truck too closely on U.S. Interstate 70. After observing additional lane violations, Tpr. Smart initiated a traffic stop. The trooper
{¶3} During the search, Tpr. Smart discovered an electronically-controlled hidden compartment housed in the dashboard area. This compartment contained approximately 2,000 grams of a substance later determined to be cocaine and 2 grams of a substance later determined to be methamphetamine. The compartment also contained $5,600 in U.S. currency, a .380 semi-automatic handgun, and five rounds of ammunition.
{¶4} Appellant was indicted on one count of possession of cocaine in violation of
{¶5} Pursuant to a plea agreement, appellant pled guilty to the charge of possession of cocaine and two specifications, as well as the charge of having weapons while under disability. The remaining charges were dismissed. In August 2008, the trial court sentenced appellant to an agreed four-year term of incarceration.
{¶6} In February 2009, appellant moved to withdraw his guilty pleas pursuant to
{¶7} The trial court considered appellant‘s motion to withdraw his plеas on written memoranda in lieu of holding a hearing. In a decision rendered March 27, 2009, the court denied the motion. Appellant timely appeals, raising two assignments of error.
{¶8} Assignment of Error No. 1:
{¶9} “A PLEA THAT IS NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY ENTERED MUST BE VACATED.”
{¶10} On appeal, appellant revisits the arguments propounded in his motion to withdraw his guilty pleas. Appellant maintains that defensе counsel never discussed trial strategy with him, failed to file a motion to suppress the evidence obtained from the traffic stop, and never discussed the option of a motion to suppress with him. Appellant, whose native language is Spanish, also insists that he was unable to understand the interpreter provided during court proceedings. As a result of these issues, appellant concludes that his plea was not made knowingly, intelligently, and voluntarily.
{¶11} Due process requires that a guilty plea be made knowingly, intelligently, and voluntarily. State v. Engle, 74 Ohio St.3d 525, 527, 1996-Ohio-179. Under
{¶12} Typically, a self-serving affidavit offered by the movant in support of a motion to withdraw a plea is insufficient to demonstrate manifest injustice. State v. Heath, Warren App. No. CA2006-03-036, 2006-Ohio-7045, ¶9. The good faith, credibility, and weight of the movant‘s assertions attending the motion are matters to be resolved by the trial court. Id., quoting Smith at 264.
{¶13} The decision to grant or deny a post-sentence motion to withdraw a guilty plea is within the sound discretion of the trial court. Id. Therefore, an appellate court will not reverse the trial court‘s decision absent an abuse of discretion. State v. Xie (1992), 62 Ohio St.3d 521, 526. An abuse of discretion connotes more than an error of law or judgment; it implies that the court‘s attitude is arbitrary, unreasonable, or unconscionable. Id. at 527, citing State v. Adams (1980), 62 Ohio St.2d 151, 157.
{¶14} First we address appellant‘s contention that his plea was not made knowingly, intelligently, or voluntarily because defense counsel failed to file a motion to suppress and did not discuss such a motion with him. Appellant insists that a motion to suppress should have been filed because it was unreasonable for Tpr. Smart to detain him longer than necessary to issue a traffic citation. Appellant reasons that the trooper did not have a reasonably articulable suspicion of illegal activity beyond the traffic violations which would have justified his continued detention.
{¶15} After reviewing the record, we find appellant‘s argument that the stop was unlawfully prolonged to be without merit. The record indicates that appellant was stopped for following too closely, a valid traffic infraction. Approximately nine minutes elapsed between the initial stop of the vehicle and the alert by the drug dog. This period
{¶16} Furthermore, we find that Tpr. Smart encountered facts during his investigation into thе traffic infraction which gave rise to a reasonably articulable suspicion that appellant was engaged in criminal activity. As stated, Tpr. Smart questioned appellant and his wife upon initiating the stop. The trooper observed that appellant and his wife were both extremely nervous. Appellant advised Tpr. Smart that he and his wife were en route from Oklahoma to visit his parents in Columbus, Ohio. This was contradicted by his wife‘s assertions that they were traveling to visit friends and were not traveling to visit family. These inconsistent explanations further aroused Tpr. Smart‘s suspicions. When viewed in conjunction with the extreme nervousnеss of appellant and his wife and Tpr. Smart‘s extensive experience in drug interdiction, it was reasonable for the trooper to infer that appellant may have been engaged in criminal activity. See, e.g., State v. Hernandez, Preble App. No. CA2006-10-022, 2007-Ohio-5190, ¶19. Furthermore, a lawfully detained vehicle may be subjected to a canine sniff of the vehiсle‘s exterior even in the absence of a reasonable suspicion of drug-related activity. Bolden at ¶18.
{¶17} In view of the facts and circumstances of this case, we find that appellant did not carry his burden to show that the post-sentence withdrawal of his plea was necessary to correct manifest injusticе resulting from defense counsel‘s failure to file a suppression motion. Smith, 49 Ohio St.2d at paragraph one of the syllabus. Such an omission did not amount to a fundamental flaw in the proceedings that resulted in a miscarriage of justice or offended due process. Taylor, 2009-Ohio-924 at ¶12.
{¶19} “Where a criminаl defendant does not speak English, constitutional guarantees of due process and equal protection require that the criminal defendant hears the proceedings in a language that he understands.” State v. Boshko (2000), 139 Ohio App.3d 827, 833.
{¶20} The trial court must substantially comply with
{¶21} A review of the transcript for the plea hearing reveals that the trial court substantially complied with the requirements of
{¶22} The passage of time is another factor which weakens appellant‘s argument. “An undue delay between the occurrence of the alleged cause for withdrawal of a guilty plea and the filing of a motion under
{¶23} As a result of the foregoing analysis, we find that appellant did not carry his burden to show that the post-sentence withdrawal of his plea was necessary to correct manifest injustice resulting from his alleged inability to understand the court interpretеr. Id. at paragraph one of the syllabus.
{¶24} Having disposed of appellant‘s arguments, we conclude that the trial court did not abuse its discretion in denying appellant‘s motion to withdraw his guilty plea. Appellant‘s first assignment of error is overruled.
{¶26} “THE TRIAL COURT ERRED IN DENYING APPELLANT‘S MOTION TO WITHDRAW PLEA SINCE HE WOULD NOT HAVE ENTERED THIS PLEA BUT FOR THE INEFFECTIVENESS OF COUNSEL.”
{¶27} Appellant contends that he suffered ineffective assistance of counsel due to defense counsel‘s failure to file a motion to suppress or to discuss this option with him. This omission, according to appellant, resulted in his plea being less than knowing and voluntary and prejudiced him to the extent that he was unable to exercise his right to challenge the evidence against him.
{¶28} This court has recognized that ineffеctive assistance of counsel is a proper basis for seeking post-sentence withdrawal of a guilty plea. State v. Degaro, Butler App. No. CA2008-09-227, 2009-Ohio-2966, ¶12. To determine whether counsel‘s performance constitutes ineffective assistance, the movant must show that (1) his counsel‘s actions fell below an objective standard of reasоnableness, and (2) he was prejudiced as a result. Heath, 2006-Ohio-7045 at ¶8.
{¶29} As stated, appellant bases his ineffective assistance claim on defense counsel‘s failure to file a motion to suppress. We note that such an omission does not constitute per se ineffective assistance of counsel. State v. Madrigal, 87 Ohio St.3d 378, 389, 2000-Ohio-448. Rather, the fаilure to file a motion to suppress amounts to ineffective assistance only when the record demonstrates that the motion would have been successful if made. State v. Brown, Warren App. No. CA2002-03-026, 2002-Ohio-5455, ¶11. Even where there is some evidence in the record to support a motion to suppress, we presume that trial counsel was effеctive if counsel could have reasonably decided that filing a suppression motion would have been a futile act. Id.
{¶30} In addressing appellant‘s first assignment of error, we concluded that the
{¶31} During discovery, the state disclosed its intent to use a copy of the video from Tpr. Smart‘s dashboard camera which depicted the entire traffic stop. The state‘s discovery response prоvided that the video could be viewed by contacting the prosecutor‘s office. Appellant and his counsel also had access to witness statements, police reports, and a lab analysis of the drugs. With this evidence at its disposal, and considering the facts of the case, defense counsel would have been able to ascertain that the record did not favor filing a motion to suppress.
{¶32} Defense counsel‘s decision not to file a suppression motion is further bolstered by the effect such a motion would have had on the negotiated plea. The Preble County Prosecutor‘s Office has а policy which provides that all settlement offers are revoked if a suppression motion is pursued. While we do not necessarily condone this policy, defense counsel‘s decision to forego a motion to suppress in view of this policy can reasonably be presumed to be a stratеgic act. State v. Phillips, 74 Ohio St.3d 72, 85, 1995-Ohio-171.
{¶33} Finally, we observe that appellant was facing a mandatory ten-year sentence if convicted as charged. Pursuant to the plea agreement, he was sentenced to an agreed term of four years instead. In view of the facts of the case, appellant‘s avoidance of six years in prison can hardly be deemed prejudicial.
{¶35} Judgment affirmed.
YOUNG, P.J., and RINGLAND, J., concur.