State v. Nisley , 2014 Ohio 1137 ( 2014 )

[Cite as State v. Nisley, 2014-Ohio-1137.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 5-13-25
v.
NATHAN A. NISLEY, OPINION
DEFENDANT-APPELLANT.
Appeal from Hancock County Common Pleas Court
Trial Court No. 2013-CR-139
Judgment Affirmed
Date of Decision: March 24, 2014
APPEARANCES:
Scott B. Johnson for Appellant
Mark C. Miller and Alex K. Treece for Appellee
Case No. 5-13-25
SHAW, J.
{¶1} Defendant-Appellant Nathan Nisley (“Nisley”) appeals the September
6, 2013, judgment of the Hancock County Common Pleas Court sentencing Nisley
to serve ten months in prison after Nisley pled guilty to the charges of Possession
of Criminal Tools in violation of R.C. 2923.24(A), a felony of the fifth degree, and
Attempted Aggravated Possession of Drugs in violation of R.C. 2923.02(A) and
R.C. 2925.11(A), a first degree misdemeanor. On appeal, Nisley argues that the
trial court erred by denying his presentence motions which he contends
collectively constituted a motion to withdraw his guilty plea, that the trial court
erred by denying his motion for a psychological evaluation prior to the sentencing
hearing and that he was denied effective assistance of counsel. For the reasons
that follow, we affirm the trial court’s judgment.
{¶2} The facts relevant to this appeal are as follows. On June 24, 2013,
Nisley was the driver of a vehicle that was stopped at a red light two cars in front
of an officer in his patrol car.1 The officer observed Nisley “rapidly accelerate
through the red light and almost strike a black Toyota that was in the process of
turning left in the intersection.” The officer then conducted a traffic stop,
recognizing Nisley from previous interactions.
1
These facts are taken from the presentence investigation report.
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{¶3} According to the officer, Nisley became very nervous and shaky and
talked rapidly. The officer explained that he was aware of a recent traffic stop
where drugs had been located on Nisley. Ultimately Nisely gave voluntary
consent for the officer to search his vehicle.
{¶4} Upon searching the vehicle, the officer located a “Yoo-hoo” beverage
can. The officer stated that when he picked up the Yoo-hoo can, it felt heavier
than it should have been. Further investigation by the officer showed that the top
of the can unscrewed and that there was a prescription bottle inside the can, which
contained a white powder wrapped up in a coffee filter. Underneath the bottle was
a plastic package containing pink pills. Nisley admitted to the officer that the pills
were Percocet and that the unknown powder was “crystal.”
{¶5} On June 25, 2013, Nisley was indicted for Possession of a Schedule II
Controlled Substance, specifically, Oxycodone Hydrochloride, in violation of R.C.
2925.11(A), a felony of the fifth degree, and Possession of Criminal Tools in
violation of R.C. 2923.24(A), a felony of the fifth degree. (Doc. 1).
{¶6} On July 3, 2013, Nisley was arraigned and pled not guilty to the
charges against him. (Doc. 7).
{¶7} On July 15, 2013, a change of plea hearing took place in this matter.2
Pursuant to plea negotiations, the State asked the trial court to amend the first
2
At this hearing, Nisley pleaded guilty in two separate cases: 2012-CR-281 and 2013-CR-139. Only
2013-CR-139 is the subject of this appeal.
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count of the indictment, Possession of Controlled Substance, to Attempted
Aggravated Possession of Drugs in violation of R.C. 2923.02(A) and R.C.
2925.11(A), a misdemeanor of the first degree. The remaining count of
Possession of Criminal Tools was left as indicted.
{¶8} The trial court then had the following exchange with Nisley:
Q: Did you review both plea agreements?
A: I did.
Q: Did you discuss them both with [your defense counsel]?
A: We did.
Q: Do you have any questions about what they say at this point?
A: None.
Q: All right. Is anybody trying to force you into this decision
this morning?
A: None. [sic]
Q: Has anybody made you any promises as to the outcome of
your case?
A: None.
Q: As a matter of fact, I thought I heard [the State] say, and I
wanted to confirm that with you, that there is not a sentencing
agreement between the parties. So each would come in and
argue what they believe the appropriate sentence should be.
A: Yes.
***
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Q: Mr. Nisley, do you currently take any medicine?
A: I ain’t taking none, no. Triaxodome and heart pills that
don’t work.
Q: Okay, but you’re not taking anything at this time?
A: No.
Q: Do you have anything whatsoever in your system that would
make it difficult for you to understand our proceedings today?
A: Not drugs wise.
Q: All right, what would make it difficult then?
A: Pain.
Q: You’re in pain.
A: Oh, yes. Severe pain.
Q: What kind of pain are you in?
A: Muscular. Migraine to be exact.
Q: I understand. I know people that suffer from that. Are you
in a position today where it’s so difficult, the pain is so great you
can’t proceed?
A: That’s everyday [sic], sir. But I still move on.
Q: Okay. My question is, today. Is the pain too great for you to
proceed?
A: No. We can move on.
Q: And if it becomes a time during the proceedings where it is,
would you let me know then?
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A: I will.
THE COURT: And I would also note for the record, Mr.
McMahon, so far Mr. Nisley has answered each and every one of
my questions appropriately. So it appears to me we can
proceed. But only he would know if the pain became so severe,
because those things are subjective. If he let’s [sic] me know
we’ll stop the proceedings.
[NISLEY’S COUNSEL]: For the record, Your Honor, my
conversation with him earlier this morning went very smoothly.
I had no doubt to his ability to proceed.
***
Q: Let’s talk then if the Court allows the amendment [to the
indictment] what the penalty could be. Under Ohio law for a
misdemeanor of the first degree, do you understand that I could
send you to the Hancock County Jail for up to 180 days?3
A: Yes.
Q: That I could fine you up to $1,000.
A: Yes.
Q: That I could order that you pay court costs.
A: Yes.
Q: Do you understand that the Court has the right to impose
none of it, part of it, or all of those two sentences that I spoke of?
A: Yes.
3
This initial conversation between Nisley and the trial court was regarding the charge of Attempted
Aggravated Possession of Drugs in violation of R.C. 2923.02(A) and R.C. 2925.11(A) in Nisley’s other
case. The State similarly amended possession charges in both that case and the case before us. This
discussion regarding the penalty for the Attempted Aggravated Possession of Drugs charge is referred to
later in the same hearing when the trial court discusses the penalty for that offense.
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Q: That I also have the authority, if I were to impose some of
that time, to suspend it and place you on a term of probation or
community control for up to 5 years.
A: Yes.
***
Q: Now Mr. Nisley, if the Court were to permit the amendment
to the first charge, first count in case 2013-CR-139 would then
become a misdemeanor of a first degree and the penalties we just
spoke of in the previous case imposed there. Do you understand
that?
A: Yes.
Q: However, if count two remains a felony, do you understand
that there’s a distinction there. The two cases we talked about
so far I mentioned jail only. So any incarceration would be of a
local nature only.
A: Yes.
Q: * * * [I]n count two, there is the possibility of a prison term.
So let’s review that. Do you understand the minimum sentence
there is 6 months and the maximum is 12 months in prison?
A: I do.
Q: Do you understand that I could fine you up to $2,500 in that
instance?
A: Yes.
Q: That I could also order that you pay court costs?
A: Yes.
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[A discussion of post-release control and the possibility of
community control was then had].
***
Q: One final area that I want to discuss with you that relates to
all three of these cases, that is -- two cases, three counts I should
say. If you offer pleas of guilty either to the original or to the
amended forms of the offenses, do you understand that you are
giving up your right to a trial?
A: Yes.
Q: As you sit here right now here in court I’ve not made a
finding. That means you still have the presumption of
innocence. So if you did wish to go to trial I want to make sure
you understand that it’s clear that the burden rests with the
State of Ohio to prove your guilt in each of these cases.
A: Yes.
Q: And that’s beyond a reasonable doubt. You have no burden.
They have the burden.
A: Yes.
Q: That [your trial counsel] would have the right to act as your
advocate in concert with you at your trial and he would be
authorized, for example, to make arguments, challenge evidence,
cross examine all the State’s witnesses, issue subpoenas, if
necessary, to compel the attendance of witnesses for your
defense. Do you understand that?
A: Yes.
Q: You cannot be forced to testify against yourself, nor may
your silence be used against you?
A: Yes.
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Q: And at trial it can take one of two forms. It could either be a
jury trial or a court trial. If we were to proceed on the felonies
then we would impanel twelve jurors. If for some reason we
might proceed on felonies and mixed with misdemeanors and
tried misdemeanors, the law says they can be tried to eight
people.
However, the important note in Ohio to discuss is that
whether it be a misdemeanor trial to eight or a felony trial to
twelve, in Ohio all of the jurors have to agree that you’re guilty
before you could be convicted.
A: Yes.
Q: Now, you’re giving up those rights, Mr. Nisley?
A: Yes.
(Jul. 15, 2013 Tr. at 7-10, 12-20).
{¶9} Nisley then asked to speak with his trial counsel in private and the trial
court went off the record. When the court came back on the record, Nisley
indicated that he was ready to proceed and subsequently signed a written plea
agreement in open court. (Doc. 16). Nisley also stated that he was “satisfied with
[his] attorney’s legal advice and counsel[.]” (Jul. 15, 2013 Tr. at 18). The trial
court found that Nisley made a “knowing, voluntary, and intelligent decision to
withdraw his plea of not guilty and to the amended charge tender a plea of guilty.”
(Id. at 23-24).
{¶10} Both parties asked for a presentence investigation report (“PSI”), and
sentencing was scheduled for August 28, 2013. However, on August 28, Nisley
became “violent” during the course of the sentencing hearing. (Sept. 4, 2013 Tr.
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at 4). Throughout the hearing Nisley was “profane” and “disruptive” and the trial
court declined to sentence him at that time. (Id.) Further, the trial court noted:
I am convinced that Mr. Nisley intentionally disrupt[ed] the
proceedings as he does not wish to be sentenced in these matters.
As I understand it, he was reasonably calm on his way over to
the proceedings last week. Became disruptive while in court.
I’ve been further advised on his way back he was literally
laughing about what occurred, suggesting he was able to
accomplish his goal of disrupting the proceeding and not
proceeding to sentencing.
So I don’t believe it’s an issue of competence or mental
illness necessarily, although he has shown difficulties in the past.
* * * But what I observed in my assessment is that it was not
mental illness, but his intentional conduct which gave rise to the
necessity of continuing those proceedings.
(Id. at 5-6).
{¶11} On September 4, 2013, Nisley filed a number of pro se motions with
the trial court. He filed a motion for “request of medical care and evalution [sic]”
stating that he was in so much physical pain that it was causing “mental status”
problems. (Doc. 23). Nisley also filed a “conflict of interest” motion, alleging
that his trial counsel did not have his best interests in mind and that his attorney
was refusing to hospitalize him for his pain. (Doc. 28). Nisley also asked the
court to discharge his second court appointed attorney. (Id.) Nisley’s other
motions consisted of a “motion for contenuce [sic],” “change of venue,” “request
for charges,” and a “conflict of interest” between himself and the trial court judge.
(Docs. 24-27).
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{¶12} A second sentencing hearing was also held on September 4, 2013.
At the hearing, the trial court first addressed the motions Nisley filed. As to
Nisley’s request for medical care, the trial court made a copy of the motion and
directed the Sheriff to address Nisley’s concerns. Further, the Deputy Sheriff
stated that Nisley was getting his medical concerns addressed by the jail’s medical
staff and that he has a physician and nurse4 who regularly visit with Nisley.
{¶13} As to the motions for “conflict of interest” the trial court, Nisely, and
Nisley’s defense counsel had the following relevant discussion:
Defense Counsel: Your Honor, I just generally discussed this
with [Nisley]. He never gave me a bases [sic] as to why he
thought there was a conflict of interest. He keeps using the term
conflict of interest when I don’t really think that’s the legal term
he needs to use. I don’t have any position on this. I would just
defer to [Nisley].
Trial Court: Mr. Nisley?
Nisley: Well, really seems like my attorney Bozo over here, is
brown nosing you. And the Prosecutor apparently is looking up
to you. I feel like you have a conflict due to the fact that
basically we’ve seen each other a little bit. This is what, the
third time I’m standing before you? * * *
I just really don’t feel like my counsel is helping. I think
you two are too good [of] friends for me to be getting a fair
sentence and a fair plea bargain. [My defense counsel] did state
that if I did not make a plea bargain with the 159 case, 13-CR-
159 case, that I was going to get a lot of time. Like 18 months or
something on two F5’s and two M1’s. I think that’s a little hefty.
And he stated that your position was that we have to make an
4
While in custody, Nisley allegedly spit on a nurse who was trying to give Nisley his medications. This
incident resulted in more criminal charges being filed against Nisley.
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example because of the jail being involved. And I think you’re
just too close to this.
***
Trial Court: Well I don’t believe I’ve ever told your counsel or
the State of Ohio that I was going to demand a particular
sentence. That’s not my practice. * * *
More importantly, and as [the State] points out, there is a
specific, very specific statutory procedure that requires an
affidavit of disqualification be filed with the Chief Justice of the
Ohio Supreme Court.
(Sept. 4, 2013 at 17-19). The trial judge then declined to recuse himself.
{¶14} Regarding the performance of his trial counsel, Nisley stated:
Mainly there’s [a] separate issue that go [sic] along with it,
though. Mentioned in there is [trial counsel] is not doing his job
for me. I didn’t mind when I was making the plea bargain. I
was satisfied at that timeframe. But if you remember, I did
bring up the medication issue. You asked me if I was in so much
pain that we should not continue. I felt so, but [trial counsel]
told me to shut up and just go through it.
(Id. at 20-21). The State then stated that Nisley’s trial counsel has fought
zealously, that it had not observed any unprofessional conduct, and that it did not
believe removal would be appropriate. The trial court then denied Nisley’s
request to remove his second court appointed counsel and denied Nisley’s
remaining motions.
{¶15} The trial court then proceeded to sentencing. Ultimately the court
found that, in this case, the Attempted Aggravated Possession of Drugs and
Possession of Criminal Tools were allied offenses of similar import, and that they
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should be merged for purposes of sentencing. (Doc. 30). The court directed the
State to elect which offense it wanted to proceed with for the purposes of
sentencing, and the State selected the fifth degree felony Possession of Criminal
Tools charge. Nisley was then sentenced to serve ten months in prison and to pay
court costs in the matter. (Id.) On September 6, 2013, the trial court filed a
judgment entry, journalizing Nisley’s conviction and sentence. (Id.)
{¶16} It is from this judgment that Nisley appeals, asserting the following
assignments of error for our review.
ASSIGNMENT OF ERROR 1
THE TRIAL COURT ERRED IN DENYING DEFENDANT’S
PRESENTENCE MOTIONS WHICH COLLECTIVELY
CONSTITUED A WITHDRAWAL OF HIS GUILTY PLEA IN
THAT HIS PLEA WAS NOT VOLUNTARY OR KNOWING
IN THAT HE WAS IN SEVERE PAIN WHICH AFFECTED
HIS JUDGMENT AND THE ABILITY TO UNDERSTAND
WHAT HE WAS DOING.
ASSIGNMENT OF ERROR 2
THE TRIAL COURT ERRED IN DENYING THE
DEFENDANT’S MOTION FOR A SECOND
PSYCHOLOGICAL EVALUATION PRIOR TO THE
SENTENCING HEARING.
ASSIGNMENT OF ERROR 3
THE COUNSEL FOR THE DEFENDANT PROVIDED
INEFFECTIVE ASSISTANCE OF COUNSEL.
First Assignment of Error
{¶17} In his first assignment of error, Nisley argues, in a convoluted
manner, that collectively all his presentence motions constituted a motion to
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withdraw his guilty plea and that he should have been allowed to withdraw his
guilty plea due to the fact he was in so much pain at the time of the change of plea
hearing, it rendered his plea involuntary. We disagree.
{¶18} Crim.R. 32.1 provides in pertinent part that “[a] motion to withdraw
a plea of guilty or no contest may be made only before sentence is imposed; but to
correct manifest injustice the court after sentence may set aside the judgment of
conviction and permit the defendant to withdraw his or her plea.” While the
general rule is that motions to withdraw guilty pleas, made before sentencing, are
to be freely granted, the right to withdraw a guilty plea is not absolute. State v.
Xie, 62 Ohio St.3d 521 (1992), paragraph one of the syllabus. The trial court
must conduct a hearing to determine whether there is a reasonable and legitimate
basis for the withdrawal of the plea. Id. The decision to grant or deny a motion to
withdraw a guilty plea is within the sound discretion of the trial and will not be
disturbed on appeal, absent an abuse of discretion. Id. at paragraph two of the
syllabus. A trial court will be found to have abused its discretion when its
decision is contrary to law, unreasonable, not supported by the evidence, or
grossly unsound. State v. Boles, 187 Ohio App.3d 345, 2010-Ohio-278, ¶ 16-18
(2d Dist.).
{¶19} There are several factors that have been delineated by this and other
courts to assist in our review of the trial court’s determination to grant or deny a
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motion to withdraw a guilty plea, including: (1) whether the State will be
prejudiced by withdrawal; (2) the representation afforded to the defendant by
counsel; (3) the extent of the Crim.R. 11 hearing; (4) the extent of the hearing on
the motion to withdraw; (5) whether the trial court gave full and fair consideration
of the motion; (6) whether the timing of the motion was reasonable; (7) the
reasons for the motion; (8) whether the defendant understood the nature of the
charges and potential sentences; and (9) whether the accused was perhaps not
guilty or had a complete defense to the charge. State v. Prince, 3d Dist. Auglaize
No. 2-12-07, 2012-Ohio-4111, ¶ 22; State v. Lefler. 3d Dist. Hardin No. 6-07-22,
2008-Ohio-3057, ¶ 11; State v. Fish, 104 Ohio App.3d 236, 240 (1st Dist.1995).
{¶20} Initially, we must note that we do not find that Nisley’s presentence
motions, viewed together, constituted a motion to withdraw his guilty plea. None
of Nisley’s presentence motions specifically asked the court to withdraw his guilty
plea. In addition, Nisley had a court appointed attorney who never filed, or was
asked to file, a motion to withdraw a guilty plea. Moreover, the State correctly
points out that throughout the entire proceedings, Nisley cited the Ohio Revised
Code, case law, the Rules of Criminal Procedure, and the United States
Constitution. It is apparent from the record that despite Nisley’s eccentric
behaviors he had a better understanding of the legal system than most defendants.
Thus, if Nisley wanted to withdraw his guilty plea, it seems very likely that he
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would have filed a motion to withdraw, or at a bare minimum, specifically stated
that he wanted to withdraw his guilty plea in one of the presentence motions he
did file with the court. Nevertheless, even if we were to accept that all of Nisley’s
motions collectively constituted a motion to withdraw his guilty plea, we cannot
find that the trial court abused its discretion in denying Nisley’s motions.
{¶21} The record reveals that Nisley was afforded a full hearing, pursuant
to Crim.R. 11, before he entered his guilty plea. In fact, on appeal Nisley does not
argue that the trial court did not follow Crim.R. 11 when conducting his change of
plea hearing. While Nisley did mention that he was in pain due to a severe
migraine, the trial court repeatedly asked Nisley if he was okay to proceed with
the hearing.
Q: What kind of pain are you in?
A: Muscular. Migraine to be exact.
Q: I understand. I know people that suffer from that. Are you
in a position today where it’s so difficult, the pain is so great you
can’t proceed?
A: That’s everyday [sic], sir. But I still move on.
Q: Okay. My question is, today. Is the pain too great for you to
proceed?
A: No. We can move on.
Q: And if it becomes a time during the proceedings where it is,
would you let me know then?
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A: I will.
Q: And I would also note for the record, [defense counsel], so
far Mr. Nisley has answered each and every one of my questions
appropriately. So it appears to me we can proceed. But only he
would know if the pain became so severe, because those things are
subjective. If he let’s [sic] me know we’ll stop the proceedings.
(Emphasis added.) (Jul. 15, 2013 Tr. at 9-10). Nisley never mentioned the pain
again and never asked the court to stop the proceedings due to his pain.
{¶22} Nisley was also afforded a full, impartial hearing on his presentence
motions. Further, he was represented by a highly competent counsel. The record
indicates that the State’s original plea offer was not acceptable to Nisley, as Nisley
was concerned with having convictions for “felony drug possessions” and how
they would impact his ability to receive welfare benefits. (Sept. 4, 2013 Tr. at 22).
Trial counsel then negotiated the reduction of the possession charge to a
misdemeanor offense. (Id. at 23).
{¶23} Nisley argues that the trial court abused its discretion by denying his
motions because the State would not have been prejudiced if he would have been
able to withdraw his guilty plea. However, Nisley’s change of plea hearing
occurred on July 15, 2013, and his presentence motions were not filed until
September 4, 2013. Thus, Nisley waited over a month and a half before filing his
motions. Further, Nisley also disrupted his first sentencing hearing and the trial
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court had to continue the hearing to a later date. Looking at the entire record, it
appears that Nisley was purposefully trying to delay resolution of his case.
{¶24} Nisley also contends that the trial court erred because he was
“challenging his [guilty] plea because he was not guilty.” (Appellant’s Br., at 14).
On appeal Nisley asserts that the Yoo-Hoo container could conceal legal things,
and thus could have been found not to be a criminal tool. Although Nisley asserts
his innocence on appeal, at the time of the change of plea hearing, the trial court
asked if Nisley understood that he would be admitting to the offense of attempted
possession of drugs, and Nisley said he understood. Further, it appears from the
PSI Nisley admitted at the time of the traffic stop that the Yoo-Hoo container
contained Percocet pills and a powder Nisley identified as “crystal.”
{¶25} Since Nisley was afforded a full hearing pursuant to Crim.R. 11, was
given a hearing on his presentence motions, and was represented by competent
counsel, we cannot say the trial court abused its discretion when denying Nisley’s
presentence motions. See State v. Sylvester, 2d Dist. Montgomery No. 22289,
2008-Ohio-2901, ¶ 19 (finding that the trial court did not abuse its discretion in
denying defendant’s motion to withdraw a guilty plea when: (1) accused was
represented by competent counsel; (2) accused was afforded a full hearing
pursuant to Crim.R. 11 before pleading guilty; (3) accused was given a complete
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and impartial hearing on his motion to withdraw a guilty plea; and (4) the trial
court gave its full and fair consideration to the plea withdrawal request).
{¶26} Accordingly, Nisley’s first assignment of error is overruled.
Second Assignment of Error
{¶27} In his second assignment of error, Nisley argues that the trial court
erred in denying his request for a psychological evaluation prior to sentencing.
We disagree.
{¶28} Pursuant to R.C. 2945.37(B):
In a criminal action in a court of common pleas * * * the court,
prosecutor, or defense may raise the issue of the defendant’s
competence to stand trial. If the issue is raised before trial has
commenced, the court shall hold a hearing on the issue as
provided in this section. If the issue is raised after the trial has
commenced, the court shall hold a hearing on the issue only for
good cause shown or on the court’s own motion.
Further, a defendant is presumed to be competent and it is the defendant’s burden
to prove, by a preponderance of the evidence, that because of his present mental
state, he is incompetent to stand trial. R.C. 2945.37(G). If the issue of the
defendant’s competence is raised, “the court may order one or more evaluations of
the defendant’s present mental condition * * *.” (Emphasis added.) R.C.
2945.37(A). Thus, the wording of the statute indicates that it is within the
discretion of the trial court to order a competency evaluation. State v. Bailey, 90
Ohio App.3d 58, 67 (11th Dist.1992).
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{¶29} We find no abuse of discretion in the trial court’s refusal to order a
competency evaluation. In the record before us, it is clear that Nisley had recently
undergone a competency evaluation in the case that was heard simultaneously
with this one at the plea hearing and for sentencing purposes. Although Nisley
argues that he was in so much pain that it affected his mental status, we cannot
find any evidence in the record to support this conclusion. Nisley and the trial
court had intelligent conversations and Nisley never acted as though he did not
understand the nature of the proceedings or the charges against him while in front
of the trial court. Furthermore, the trial court stated at the sentencing hearing that
it believed Nisley was intentionally disrupting the proceedings.
{¶30} It was Nisley’s burden to establish that he was incompetent by a
preponderance of the evidence. We cannot find that he met this burden, and
therefore, the trial court did not abuse its discretion by denying Nisley’s request
for a competency evaluation.
{¶31} Accordingly, we overrule Nisley’s second assignment of error.
Third Assignment of Error
{¶32} In his third assignment of error, Nisley argues that he was denied
effective assistance of counsel. We disagree.
{¶33} “A guilty plea waives all appealable orders except for a challenge as
to whether the defendant made a knowing, intelligent, and voluntary acceptance of
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the plea.” State v. Ramsey, 3d Dist. Marion No. 9-10-55, 2012-Ohio-134, ¶ 15,
citing State v. Spates, 64 Ohio St.3d 269, 272 (1992). Thus, in order to prove that
Nisley received ineffective assistance of counsel, he must show that: (1) his trial
counsel’s performance was deficient; and (2) that but for his trial counsel’s
deficiencies, there is a reasonable probability that he would not have pleaded
guilty. Xie, 62 Ohio St.3d at 524.
{¶34} At Nisley’s change of plea hearing, the trial court specifically asked
him whether he was “satisfied with [his] attorney’s legal advice and counsel” and
Nisley replied that he was. (Jul. 15, 2013 Tr. at 18). Nisley also answered
affirmatively that his trial counsel had gone over and explained the plea agreement
with him. (Id. at 7). Nisley repeated these statements to the trial court at his
sentencing hearing wherein he stated that he was “satisfied” with his trial counsel
at the time of his change of plea hearing. (Sept. 4, 2013 Tr. at 21). Further, we
note that Nisley entered a plea as part of a negotiated plea agreement, wherein the
State agreed to reduce one of the felony charges against Nisley to a misdemeanor.
{¶35} Nisley alleges that his trial counsel “told him that he must take the
plea offer, else he would get larger sentences in other pending cases.”
(Appellant’s Br. at 17). Nisley also contends that his trial counsel told him to
“shut up and just go through it” after he complained to his counsel about the pain
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he was in. (Sept. 4, 2013 Tr., p. 21). Besides Nisley’s self-serving statements,
there is no evidence that Nisley’s trial counsel actually said these things to Nisley.
{¶36} Therefore, we find Nisley’s allegation that his trial counsel somehow
forced him to enter a guilty plea is unsupported by the record in this case.
Accordingly, we overrule Nisley’s third assignment of error.
{¶37} For the foregoing reasons Nisley’s assignments of error are overruled
and the judgment of the Hancock County Common Pleas Court is affirmed.
Judgment Affirmed
ROGERS and PRESTON, J.J., concur.
/jlr
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