STATE OF OHIO v. LAWRENCE E. RICE, JR.
Appellate Case No. 27045
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
January 13, 2017
2017-Ohio-122
Trial Court Case No. 2011-CR-3213 (Criminal Appeal from Common Pleas Court)
Rendered on the 13th day of January, 2017.
MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
JAY A. ADAMS, Atty. Reg. No. 0072135, 36 North Detroit Street, Suite 102, Xenia, Ohio 45385 Attorney for Defendant-Appellant
WELBAUM, J.
Facts and Course of Proceedings
{¶ 2} On September 23, 2011, the Montgomery County Grand Jury returned an indictment charging Rice with one count of possessing heroin in violation of
{¶ 3} Following his indictment, Rice, with the assistance of counsel, filed multiple motions to suppress arguing that the police lacked proper justification for stopping and searching his vehicle. Rice also sought to suppress any statements he made to police after his arrest and challenged the reliability of the open air canine sniff of his vehicle. The trial court held a hearing on Rice’s motion to suppress, which it subsequently denied on June 5, 2012.
{¶ 4} Thereafter, Rice entered a no contest plea to the possession of heroin charge in exchange for the State dismissing the other two charges for possessing marijuana and drug paraphernalia. After accepting his plea, on September 27, 2012, the trial court
{¶ 5} Rice appealed from his conviction challenging the trial court’s decision overruling his motion to suppress. Rice argued that his motion to suppress should have been granted because the police did not possess a reasonable, articulable suspicion to initiate a traffic stop of his vehicle. Rice also challenged the reliability of the open air canine sniff performed on his vehicle. On March 22, 2013, we issued an opinion affirming the trial court’s decision overruling Rice’s motion to suppress. State v. Rice, 2d Dist. Montgomery No. 25438, 2013-Ohio-1070.
{¶ 6} Over two and a half years later, on November 30, 2015, Rice filed a pro se motion to withdraw his no contest plea arguing that his plea was not knowingly and voluntarily entered because his trial counsel had rendered ineffective assistance in handling his motion to suppress. Specifically, Rice alleged that his trial counsel failed to fully investigate and explain the legal concept of probable cause and that such failure caused him to be uninformed at the time he entered his no contest plea. Rice also alleged that the trial court had a duty to investigate and explain the issue of probable cause to him. The State did not file a response to Rice’s motion.
{¶ 7} On February 5, 2016, the trial court issued a written decision overruling Rice’s motion to withdraw his no contest plea without holding a hearing. In overruling the motion, the trial court determined that Rice had failed to establish a manifest injustice warranting the withdrawal of his plea. Rice now appeals from that decision, raising one assignment of error for review.
{¶ 8} Rice’s sole assignment of error is as follows:
THE TRIAL COURT DENIED APPELLANT DUE PROCESS AND ERRED IN OVERRULING THE MOTION TO WITHDRAW PLEA WITHOUT A HEARING.
{¶ 9} Under his sole assignment of error, Rice contends that his plea withdrawal motion set forth issues warranting a hearing on the motion, and that the trial court erred in failing to hold such a hearing. We disagree.
{¶ 10} “We review a trial court’s ruling on a post-sentence motion to withdraw a plea and its decision whether to grant a hearing for an abuse of discretion.” State v. Tunstall, 2d Dist. Montgomery No. 23730, 2010-Ohio-4926, ¶ 9, citing Xenia v. Jones, 2d Dist. Greene No. 07-CA-104, 2008-Ohio-4733, ¶ 6. An abuse of discretion is the trial court’s “ ‘failure to exercise sound, reasonable, and legal decision-making.’ ” State v. Perkins, 2d Dist. Montgomery No. 24397, 2011-Ohio-5070, ¶ 16, quoting State v. Beechler, 2d Dist. Clark No. 09-CA-54, 2010-Ohio-1900, ¶ 62. (Other citation omitted.) “Absent an abuse of discretion on the part of the trial court in making the ruling, its decision must be affirmed.” State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992).
{¶ 11}
{¶ 12} It is well established that “ ‘[i]neffective assistance of counsel can constitute manifest injustice sufficient to allow the post-sentence withdrawal of [a] plea.’ ” State v. Banks, 2d Dist. Montgomery No. 25188, 2013-Ohio-2116, ¶ 9, quoting State v. Dalton, 153 Ohio App.3d 286, 2003-Ohio-3813, 793 N.E.2d 509, ¶ 18 (10th Dist.). To establish a claim of ineffective assistance of counsel, a defendant must satisfy the two-pronged test in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Specifically, the defendant must show that: (1) defense counsel’s performance was so deficient that he was not functioning as the counsel guaranteed under the Sixth Amendment to the United States Constitution; and (2) that defense counsel’s errors prejudiced the defendant. Id. at 687. With regards to a plea withdrawal motion, to demonstrate prejudice, the defendant must show that “there is a reasonable probability that, but for counsel’s errors, the defendant would not have entered a plea.” State v. Wilson, 2d Dist. Montgomery No. 26354, 2015-Ohio-1584, ¶ 17, citing Strickland. “The failure to make either showing defeats a claim of ineffectiveness of trial counsel. Strickland at 687.
{¶ 14} In this case, other than the bare assertion in his motion that trial counsel failed to fully investigate and explain the legal concept of probable cause, Rice offers nothing, not even a self-serving affidavit, to substantiate his claim that counsel failed in that regard. We also note that the motion to suppress filed by Rice’s trial counsel on October 6, 2011, which challenged the search and seizure of Rice’s vehicle, specifically recited the law as it relates to probable cause and argued that Rice’s seizure was without probable cause. This demonstrates that the issue of probable cause was known by Rice’s trial counsel and was not overlooked as Rice implies in his motion. We further note that Rice does not allege in his motion that he would not have pled no contest but for his counsel’s alleged failure with regards to investigating and explaining probable cause. Thus, Rice has not established either of the two prongs in Strickland that are
{¶ 15} Moreover, Rice’s allegations regarding his trial counsel’s explanation and investigation of probable cause, or lack thereof, rely on matters outside the record. This court has held that matters outside the record that allegedly corrupted the defendant’s choice to enter a guilty or no contest plea so as to render that plea less than knowing and voluntary, such as ineffective assistance provided by a defendant’s trial counsel, are proper grounds for post-conviction relief pursuant to
{¶ 16} As for Rice’s claim that the trial court failed to explain probable cause to him at the plea hearing, we note that Rice has provided no evidence of such a failure, as he did not file a transcript of the plea hearing with this court as required by
{¶ 17} Lastly, we note that Rice’s motion to withdraw his plea was filed over two and a half years after we affirmed his direct appeal and over three years after he was sentenced. “Although
{¶ 18} For the foregoing reasons, we find the trial court did not abuse its discretion in overruling Rice’s motion to withdraw his no contest plea without a hearing, as we agree that Rice failed to establish a reasonable likelihood that the withdrawal of his plea was necessary to correct a manifest injustice.
{¶ 19} Rice’s sole assignment of error is overruled.
Conclusion
{¶ 20} Having overruled Rice’s sole assignment of error, the judgment of the trial court is affirmed.
Copies mailed to:
Mathias H. Heck, Jr.
Andrew T. French
Jay A. Adams
Hon. Gregory F. Singer