State v. Smith , 2024 Ohio 5280 ( 2024 )

[Cite as State v. Smith, 2024-Ohio-5280.]
IN THE COURT OF APPEALS OF OHIO
SEVENTH APPELLATE DISTRICT
NOBLE COUNTY
STATE OF OHIO,
Plaintiff-Appellee,
v.
EDWARD T. SMITH,
Defendant-Appellant.
OPINION AND JUDGMENT ENTRY
Case No. 23 NO 0512
Criminal Appeal from the
Court of Common Pleas of Noble County, Ohio
Case No. 222-2045
BEFORE:
Cheryl L. Waite, Mark A. Hanni, Katelyn Dickey, Judges.
JUDGMENT:
Affirmed.
Atty. Dave Yost, Ohio Attorney General and Atty. Andrea K. Boyd, Assistant Ohio
General, for Plaintiff-Appellee
Atty. Wesley A. Johnston, for Defendant-Appellant
Dated: October 29, 2024
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WAITE, J.
{¶1} Appellant Edward Smith appeals an October 30, 2023 judgment entry of the
Noble County Court of Common Pleas convicting him on multiple counts of violating two
protection orders and improperly handling a firearm in a motor vehicle. Appellant
challenges a motion to suppress ruling, the validity of his no contest plea, and the
effectiveness of his trial counsel. For the following reasons, Appellant’s arguments are
without merit and the judgment of the trial court is affirmed.
Factual and Procedural History
{¶2} The initial victim in this matter was Nicole Coil, Washington County
Prosecutor. However, none of the eventual charges Appellant faced involved Coil,
directly. Instead, his charged offenses were rooted in drug and weapon possession.
{¶3} Appellant has a lengthy criminal history which led to his familiarity and
contact with Prosecutor Coil and several police officers. Appellant did not think favorably
of the prosecutor or the police officers, and he had conveyed his sentiments to them.
{¶4} Appellant began a practice of interacting with these individuals through
social media, particularly Facebook. Appellant used his own Facebook account to contact
Detective Ryan Huffman, and sent what Det. Huffman characterized as harassing and
threatening correspondence. Appellant obtained a photograph of Det. Huffman with his
wife and children, and posted it on his own account. Det. Huffman viewed this as
harassment and threatening behavior. Appellant also sent Det. Huffman’s wife a social
media message, claiming that he intended to take legal action against Det. Huffman after
his recent arrest resulted in a dismissal of the charged offense.
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{¶5} Appellant also had dealings with Prosecutor Coil, and made untruthful
statements about her during a court hearing. Sometime thereafter, Det. Huffman noticed
a Facebook page in the name of Prosecutor Coil which used a photograph of Prosecutor
Coil that had been posted to her campaign Facebook account. One post on the new
account stated: “all I cared about was convictions, and it did not matter if the person was
innocent or guilty.” (Exh. B.) This post appeared to be from the prosecutor. There was
no indication on the page or post that it was a parody, or that it was not directly maintained
and controlled by Prosecutor Coil. When Det. Huffman informed Prosecutor Coil of the
duplicate page, she took legal action to discover its owner.
{¶6} On August 13, 2021, a search warrant regarding the duplicate account was
obtained and served on Facebook. From this warrant, investigators learned the page had
been created on August 12, 2021 and deactivated or deleted the following day. The
warrant uncovered two IP addresses that were associated with Appellant. This led police
to focus their attention on him and his lengthy criminal history, which revealed “an
ususually high number of menacing arrests and convictions.” (Appellee’s Brf., p. 2.)
{¶7} Investigators then obtained a search warrant for Appellant’s residence, to
search for, and seize, electronic devices and data storage that could contain evidence
linking Appellant to the Facebook posts, as these formed the alleged offense at the time.
The warrant was executed on October 14, 2021. It led to the discovery, not only of the
relevant devices, but also marijuana, drug paraphernalia, and a firearm. The marijuana
was in plain view when the warrant was executed and Appellant conceded that he had
more of the drug in the house, and offered to lead police to its location. However, officers
decided it was more prudent to obtain a second warrant, instead, particularly due to the
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overwhelming odor of marijuana in the house. In addition, officers noticed a firearm
attached to a magnetic holder next to the steering wheel of Appellant’s truck, which was
parked in the driveway. In the request for the second warrant, the officers sought to
search for drugs and firearms. After execution of this warrant, officers were able to seize
the weapon and discovered it was loaded with a magazine.
{¶8} As a result, on May 16, 2022, Appellant was indicted on: one count of
violating a protection order, a felony of the third degree in violation of R.C. 2919.27 with
an attenuated firearm specification in violation of R.C. 2941.141(A); one count of
improperly handling a firearm in a motor vehicle, a felony of the fourth degree in violation
of R.C. 2923.16; and one count of violating a protection order, a misdemeanor in violation
of R.C. 2919.27. Appellant was not charged with any crime directly relating to the
duplicative Facebook account. Appellant had been subject to two prior civil stalking
protection orders which were in effect at the time the firearm was discovered, leading to
the charge regarding violation of the order(s).
{¶9} After several delays, including delay caused by withdrawal of Appellant’s
counsel due to Appellant’s behavior, and delay caused when newly appointed counsel
sought a continuance to evaluate the case, counsel filed an unsuccessful motion to
suppress and an unsuccessful motion to dismiss the firearm charges based on Second
Amendment grounds.
{¶10} On October 27, 2023, Appellant pleaded no contest to all of the offenses as
charged within the indictment, except for the firearm specification attached to count one,
which the state agreed to dismiss. Prior to actually entering his plea, Appellant orally
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moved to dismiss the entire case based on speedy trial grounds, and raised a motion to
dismiss based on First Amendment grounds. Both oral motions were overruled.
{¶11} Over the state’s objection, the court sentenced Appellant to one year of
unsupervised, non-reporting probation. The court’s later judgment entry specified that
the probation was to terminate on October 27, 2024.
{¶12} Apparently, Appellant violated the terms of his probation. On January 2,
2024, the state filed a motion to revoke probation after discovering Appellant posted a
photograph to his Facebook page that showed him in possession of a firearm. After
learning that Appellant was no longer a resident of the State of Ohio, the state withdrew
its motion.
ASSIGNMENT OF ERROR NO. 1
The trial court improperly denied the Appellant’s motion to suppress.
{¶13} Appellant first challenges the court’s denial of his motion to suppress.
Appellant’s arguments, here and throughout his brief, are disjointed and confusing, but it
appears that Appellant takes issue with two of the three search warrants in this case: one
issued on October 13, 2021 (the “technology warrant”) and one on October 14, 2021 (the
“contraband warrant”). We note that Appellant does not challenge the original search
warrant, which was served on Facebook. As Appellant does not raise any challenge to
this original warrant, he has waived any challenge to the warrant and the information that
was obtained when it was served.
{¶14} The second warrant, the technology warrant, was obtained in order to
search Appellant’s home for purposes of retrieving media storage devices related to the
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duplicate Facebook account. The contraband warrant, the third warrant, focused on
Appellant’s vehicle. While the technology warrant was obtained on October 13th, officers
did not execute the search until the next day, October 14th. During execution of this
warrant, officers discovered contraband and obtained the third warrant. Again, both
warrants were executed on the same date, although they were obtained one day apart.
{¶15} A motion to suppress presents mixed issues of law and fact. State v. Lake,
2003-Ohio-332, ¶ 12 (7th Dist.), citing State v. Jedd, 146 Ohio App.3d 167, 171 (4th Dist.
2001). If a trial court's findings of fact are supported by competent credible evidence, an
appellate court must accept them. Id. The appellate court must then determine whether
the trial court's decision met the applicable legal standard. Id.{¶16} “The Fourth Amendment to the United States Constitution and Section 14,
Article I of the Ohio Constitution secure an individual's right to be free from unreasonable
searches and seizures and require warrants to be particular and supported by probable
cause.” State v. Telshaw, 2011-Ohio-3373, ¶ 12 (7th Dist.).
{¶17} “In order for a search or seizure to be lawful, there must be probable cause
to believe evidence of criminal activity will be found and the search or seizure must be
executed pursuant to a warrant, unless an exception to the warrant requirement exists.”
State v. Smith, 2023-Ohio-3587, ¶ 31, (7th Dist.), citing State v. Ward, 2011-Ohio-3183,
¶ 33 (7th Dist.).
In determining the sufficiency of probable cause in an affidavit
submitted for a search warrant, a trial judge or magistrate must make a
practical, common-sense decision whether, given all the circumstances set
forth in the affidavit, including the veracity and basis of knowledge of
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persons supplying hearsay information, there is a fair probability that
contraband or evidence of a crime will be found in a particular place.
State v. Hilliard, 2022-Ohio-2849, ¶ 16 (7th Dist.), citing State v. Quin, 2021-Ohio-4205,
¶ 8 (5th Dist.); State v. George, 45 Ohio St.3d 325 (1980), at paragraph one of the
syllabus; Illinois v. Gates, 462 U.S. 213, 238-239 (1983).
{¶18} “When oral testimony is not offered in support of a search-warrant affidavit,
the magistrate determines the sufficiency by ‘evaluating only [the facts alleged within] the
four corners of the affidavit and [applying] an objective reasonableness standard.’ ”
Hilliard at ¶ 17. State v. Castagnola, 2015-Ohio-1565, ¶ 39, citing United States v.
Richards, 659 F.3d 527, 559, fn. 11 (6th Cir. 2011), (Moore, J., concurring in judgment
only); United States v. Weaver, 99 F.3d 1372, 1378 (6th Cir. 1996).
{¶19} “[I]t is clear that ‘only the probability, and not a prima facie showing, of
criminal activity is the standard of probable cause.’ ” (Emphasis deleted.) Hilliard at ¶ 19,
citing State v. George, 45 Ohio St.3d 325, 329 (1989), citing Spinelli v. United States, 393
U.S. 410, 419 (1969).
The task of the issuing magistrate is simply to make a practical,
common-sense decision whether, given all the circumstances set forth in
the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of
persons supplying hearsay information, there is a fair probability that
contraband or evidence of a crime will be found in a particular place.
George at 329, citing Gates, supra.Case No. 23 NO 0512
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{¶20} The Ohio Supreme Court has cautioned reviewing courts that the standard
of review is not de novo, but instead, courts are to conduct a review of whether the issuing
magistrate or judge had a “ ‘substantial basis for . . . concluding’ that probable cause
existed.” Hilliard at ¶ 19, citing George at 329.
October 13, 2021 Technology Warrant
{¶21} Appellant challenges both the lack of particularity and nexus of the warrant.
Appellant also argues that his behavior in creating what he calls a parody Facebook page
is protected by First Amendment speech that cannot form the basis for probable cause.
{¶22} Beginning with the lack of particularity, Appellant argues that the warrant is
overbroad, as it authorized a search for all “devices capable of sharing data.” However,
the warrant specifically linked only a single device, his cell phone, to the offense. This
leads to his nexus argument, where he contends that no facts were adduced as to why
officers believed that evidence would be found on devices other than the cell phone.
{¶23} An affidavit for this search warrant was filled out by Detective Alyssa Dolly.
That affidavit stated, in relevant part: “on August 25, 2021 I received the content for this
account from Facebook Inc. I reviewed the account in an attempt to identify who opened
the account. The account was activated on August 12, 2021 and deactivated on August
13, 2021. The device used to open the account was an iPhone 12.” (Affidavit for Search
Warrant.)
{¶24} Appellant’s argument ignores the fact that while one device was used to
open the Facebook account, any device could have been used to access or post to that
account. At the time the warrant was issued, Appellant’s phone was his only known
device, and was of interest due to its role in creating the page. However, investigators
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were not just interested in the page’s creation, they were also interested in the subsequent
posting activity on the account. Thus, they sought any device that could have been used
to access this page, in order to determine if any other device Appellant used contained
any information related to the account.
{¶25} Appellant next contends that the account was a parody page, which is
protected speech under the First Amendment. He argues that protected speech cannot
form the basis of probable cause.
{¶26} The right to freedom of speech is governed by the First Amendment to the
United States Constitution and applies to the states through the Fourteenth Amendment.
“Congress shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech, or of the press; or the right of
the people peaceably to assemble, and to petition the Government for a redress of
grievances.” U.S. Const., amend. I. In addition, the Ohio Constitution affords freedom of
speech:
Every citizen may freely speak, write, and publish his sentiments on
all subjects, being responsible for the abuse of the right; and no law shall
be passed to restrain or abridge the liberty of speech, or of the press. In all
criminal prosecutions for libel, the truth may be given in evidence to the jury,
and if it shall appear to the jury, that the matter charged as libelous is true,
and was published with good motives, and for justifiable ends, the party
shall be acquitted.
Ohio Const., article I, § 11.
Case No. 23 NO 0512
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{¶27} The Ohio Supreme Court has held that “the free speech guarantees
accorded by the Ohio Constitution are no broader than the First Amendment, and that the
First Amendment is the proper basis for interpretation of Section 11, Article I of the Ohio
Constitution.” State v. Adams, 2004-Ohio-3199, ¶ 15 (7th Dist.), citing Eastwood Mall,
Inc. v. Slanco, 68 Ohio St.3d 221, 222 (1994); State ex rel. Rear Door Bookstore v. Tenth
Dist. Court of Appeals, 63 Ohio St.3d 354, 362-363 (1992).
{¶28} However, as Appellant concedes, the First Amendment is not absolute.
Some forms of speech may be regulated, “i.e., threatening words, obscene speech,
fighting words, speech that interferes with the rights of others, speech that creates a clear
and present danger, and defamatory speech.” State v. Plants, 2010-Ohio-2930, ¶ 46 (5th
Dist.).
{¶29} The state described Appellant’s statements, here, (Facebook posts and
messages, as well as the account as a whole) as defamatory. While Appellant claims
that the account was meant as a parody, there is no indication or label designating the
page in this fashion. In fact, it is apparent that the page was meant as an impersonation
of the prosecuting attorney.
{¶30} Defamatory speech is not protected by the First Amendment. The post,
which looks like it was originated by Prosecutor Coil, appears to be intended to make her
seem unwilling to serve in her elected position in an ethical manner, thus could certainly
be seen as defamatory. Because there is no evidence demonstrating the page was
meant as parody and the post appears defamatory, there is no support for his argument
that in creating the page and its posts Appellant was engaged in protected speech.
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{¶31} Appellant also raises arguments related to the search itself. Appellant
claims that Det. Dolly conveyed to him that one of the charges being pursued was identity
theft, however, the warrant only listed the offense of telecommunication harassment.
While Appellant challenges that the elements of neither offense was met, these
arguments are irrelevant to the validity of a search warrant, which is based on probable
cause.
{¶32} The record demonstrates that the October 13, 2021 technology search
warrant is supported by adequate probable cause and established with sufficient
particularity the items relevant to the offenses then at issue.
October 14, 2021 Contraband Warrant
{¶33} Appellant also challenges the scope of the contraband warrant. He
contends that officers’ discovery of a small amount of marijuana does not justify a search
of the entire house. Appellant also argues that the officers did not have the right to view
the interior of his vehicle, despite the fact that it was parked in his driveway and the firearm
was in plain sight. Appellant contends that the automobile exception to the warrant
requirement does not apply to a vehicle found on curtilage, and the warrant only permitted
a search of the house. Appellant urges that the gun was located in a dash holster, which
is a permissible way to store an unloaded firearm in a vehicle. He also maintains that
even though the firearm was loaded, the officers would not have been able to determine
if it was loaded simply by viewing the gun through the window.
{¶34} As earlier stated, this warrant was issued only after the discovery of
marijuana and the firearm during the search of Appellant’s home pursuant to the
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technology warrant. The discovery of these items resulted in police seeking and obtaining
another search warrant, specifically aimed at drugs, drug paraphernalia, or firearms.
{¶35} During the execution of the technology warrant, police officers immediately
smelled the odor of marijuana. The strength of the odor was significant, leading one
officer to remark to the others that “the house smells like a marijuana grow.” (Motion to
Suppress Hrg., p. 52.) Officers also observed marijuana in plain sight near one of the
computers, which was located in a home office. Appellant conceded that he had more
marijuana in the house and offered to show officers its location. Detective Brent McKee
decided it was necessary to secure an additional search warrant.
{¶36} While recreational marijuana is now legal to some extent in Ohio, it was not
at the time of this search. Despite the fact that medical marijuana was legal at this time,
we have previously held “[t]he fact that illegal marijuana and legal forms of hemp have
the same odor is irrelevant so long as some forms of marijuana remain illegal.” State v.
Withrow, 2022-Ohio-2850, ¶ 19 (7th Dist.). Thus, evidence of the odor of marijuana
sufficiently formed probable cause in this case.
{¶37} During the original technology search, officers also spotted a firearm in
Appellant’s truck, which was parked in the driveway. Appellant had been seen driving
this truck. When officers walked past the truck, they could see the firearm mounted in a
magnetic holster near the steering wheel. While officers could not immediately tell
whether it was loaded, when they recovered the firearm pursuant to the warrant it was
loaded with a magazine.
{¶38} It is important to note that officers did not attempt to seize the weapon
pursuant to the plain view exception to the warrant requirement. Instead, observation of
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the firearm was used as probable cause to obtain a search warrant. Contrary to
Appellant’s arguments, police officers executed a valid warrant to search the house by
means of the technology warrant. Officers were able to view the firearm by merely
walking past the truck, and they obtained a second warrant to search both the house and
truck for drugs and guns. As to Appellant’s contention that police officers could not tell if
the weapon was loaded by merely looking through the window, we again repeat that
officers need only probable cause, not definite proof, in order to secure a search warrant.
{¶39} Based on this record, both search warrants were properly supported and
issued in this matter. Appellant’s first assignment of error is without merit and is overruled.
ASSIGNMENT OF ERROR NO. 2
The trial court improperly denied his Motion to Dismiss, the underlying
predicate criminal charge against the Defendant in this case, i.e Improperly
Handling Firearms in a Motor Vehicle in violation of R.C. 2923.16, F-4 is
unconstitutional under the Second Amendment of the United States
Constitution and therefore that charge, as well as the companion charges
of Violating a Protection Order in violation of R.C. 2919.27, F-3, M-1, which
are themselves predicated upon the Improperly Handling Firearms in a
Motor Vehicle charge[.]
ASSIGNMENT OF ERROR NO. 5
Appellant’s motion to dismiss based on speedy trial violations was
impro[er;y [sic] dismisse [sic][.]
Case No. 23 NO 0512
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{¶40} On April 14, 2023, Appellant’s counsel filed a motion to suppress based on
Second Amendment grounds. The motion is based on a recent case arising out of the
United State Supreme Court, New York State Rifle & Pistol Assn., Inc. v. Bruen, 597 U.S.
1 (2022). Bruen targeted a New York statute which provided that possessing a firearm
without a license, inside or outside of one’s home, constituted a criminal offense. Id. at
1. The statue further provided that in order to carry a firearm, an individual must obtain a
license, if proper cause (as defined within the statute) could be established. The Bruen
Court struck down the statute and in so doing created a new standard:
[W]hen the Second Amendment's plain text covers an individual's
conduct, the Constitution presumptively protects that conduct. To justify its
regulation, the government may not simply posit that the regulation
promotes an important interest. Rather, the government must demonstrate
that the regulation is consistent with this Nation's historical tradition of
firearm regulation. Only if a firearm regulation is consistent with this
Nation's historical tradition may a court conclude that the individual's
conduct falls outside the Second Amendment's “unqualified command.”
Konigsberg v. State Bar of Cal., 366 U.S. 36, 50, n. 10, 81 S.Ct. 997, 6
L.Ed.2d 105 (1961).
Id. at 2126.
{¶41} Here, Appellant’s rights guaranteed by the Second Amendment had been
limited, due to a previous conviction for a domestic violence offense. The United States
Supreme Court and two Ohio appellate districts have recently addressed similar cases.
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{¶42} The United States Supreme Court answered the question of whether a
domestic violence restraining order that includes a prohibition on firearms runs afoul of
the Second Amendment in light of Bruen. The Court found that it did not in United States
v. Rahimi, 144 S.Ct. 1889, 1898 (2024). The Court ultimately held that “when a restraining
order contains a finding that an individual poses a credible threat to the physical safety of
an intimate partner, that individual may consistent with the Second Amendment be
banned from possessing firearms while the order is in effect.” Id. at 1896. The Court
explained that the Second Amendment, like all rights, is not absolute. Id. And,
historically, “[s]ince the founding, our Nation's firearm laws have included provisions
preventing individuals who threaten physical harm to others from misusing firearms. Id.
{¶43} In Ohio, the Third District found that, under Bruen, R.C. 2929.141(A) is
constitutional and is consistent with the Nation’s historical treatment of firearm
regulations. State v. Jones, 2024-Ohio-2959, ¶ 22 (3rd Dist.). While R.C. 2929.141(A)
is not identical to the statute used to obtain Appellant’s restraining order, it is similar. R.C.
2929.141(A) provides an enhancement to an offense where it is committed while the
offender possesses a firearm. Id. at ¶ 22. The Jones Court explained that nationally,
there is a history of allowing sentence enhancements where an offender possessed a
firearm while committing an offense. Id. The Court explained that “[c]ritically, ‘the people’
whose right to bear arms is protected by the Second Amendment are the ‘law-abiding,’
responsible citizens, not those who would violate the nation's laws.’ ” Id., quoting United
States v. Love, 647 F.Supp.3d 664, 670 (N.D. Ind. 2022); Bruen at 32.
{¶44} The Fifth District addressed another similar statute, R.C. 2929.13(A)(2) the
weapons disability statute, in State v. Windland, 2024-Ohio-1827 (5th Dist.). In finding
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the statute did not run afoul of the Second Amendment, the Court relied on a plethora of
federal cases which upheld firearm restrictions preventing individuals who are viewed as
dangerous from possessing a firearm. Id. at ¶ 19.
{¶45} Based on all of the above, the trial court appropriately determined there was
no Second Amendment issue raised here, and properly denied Appellant’s motion to
dismiss his gun charges.
{¶46} Next, Appellant challenges the court’s denial of his motion to dismiss based
on speedy trial grounds. Appellant contends that when the trial court fails to provide the
parties with an official speedy trial count, the matter must be dismissed. There is neither
statutory nor caselaw support for this proposition. The law in Ohio is very clear: the court
or either party may invoke speedy trial concerns when they have conducted the
appropriate speedy trial analysis, which involves counting the days that have passed
since the arrest after deducting any appropriately tolled time.
{¶47} Review of a trial court's decision regarding a motion to dismiss based on a
violation of the speedy trial provisions involves a mixed question of law and fact. State v.
High, 143 Ohio App.3d 232 (7th Dist. 2001), citing State v. McDonald, 1999 WL 476253(7th Dist. June 30, 1999). The trial court's findings of fact are given deference if supported
by competent, credible evidence. Id. However, a reviewing court must independently
review whether the trial court properly applied the law to the facts of the case. Id.Additionally, an appellate court must strictly construe the relevant statutes against the
state. Id., citing Brecksville v. Cook, 75 Ohio St.3d 53, 57 (1996).
{¶48} A criminal defendant must be brought to trial within the time frame provided
by the statute. State v. Singer, 50 Ohio St.2d 103, 105 (1977); see also State v. Cutcher,
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56 Ohio St.2d 383, 384 (1978). As the general assembly recognized that some degree
of flexibility is necessary, extensions are provided based on certain circumstances which
are referred to as “tolling events.” State v. Lee, 48 Ohio St.2d 208, 209. R.C. 2945.72
contains an exhaustive list of events and circumstances that extend the speedy trial
limitations.
{¶49} In accordance with R.C. 2945.72(A)-(I) the speedy trial time frame is
extended for any period of time where the defendant: is unavailable for hearing or trial; is
mentally or physically incompetent to stand trial; lacks counsel; causes delay by neglect
or improper acts; files a motion, proceeding, or other action; seeks removal or change of
venue; has his or her trial stayed due to a statutory requirement or order of another court;
has his or her own motion for continuance granted and when any period of reasonable
continuance is granted other than on defendant's own motion; files an appeal.
{¶50} Appellant urges that it is impossible to determine a speedy trial violation
without the aid of the trial court deciding what filing or action constitutes a tolling event.
Appellant is mistaken. And while the state appears to assert that the clock begins to run
when the case is filed, the established law in Ohio provides that the speedy trial clock
begins to run the day after a defendant is arrested. State v. Brown, 2005-Ohio-2939 (7th
Dist.). The exact date of Appellant’s arrest is not readily apparent from this record.
However, a warrant for his arrest was issued on May 16, 2022 and a bond hearing was
held the next day. Thus, we will use this date to begin our analysis.
{¶51} Appellant was allowed a recognizance bond on May 17, 2022, thus the triple
count provision does not apply and Appellant needed to be brought to trial within 270
days of arrest. On June 27, 2022, Appellant’s counsel filed a request for discovery. A
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defendant's discovery request tolls the speedy trial clock. State v. Helms, 2015-Ohio-
1708, ¶ 20 (7th Dist.), citing State v. Brown, 2002-Ohio-7040, ¶ 26. The state completed
discovery on July 27, 2022. At this point, 41 days are attributed to the speedy trial
calculation and the clock began to run again on July 28, 2022.
{¶52} On August 22, 2022, Appellant’s counsel filed a motion to withdraw based
on a conflict with Appellant. Up to this point, 66 days are attributed to the speedy trial
clock. The appointment of new counsel due to a conflict with a defendant is a reasonable
basis to continue a trial and is a tolling event. State v. Christian, 2014-Ohio-2590, ¶ 11
(7th Dist.). While the clock would ordinarily begin to again run after the appointment of
new counsel, Appellant’s new counsel filed a continuance the day he was appointed, and
the matter was continued until October 13, 2022. Thus, the clock resumed running on
October 13, 2022. Appellant’s counsel then sought leave to file a motion to suppress, but
had not yet prepared such a motion. It is unclear whether merely seeking leave to file an
unprepared motion would toll speedy trial time in this case. If the time is not tolled, 66
days had lapsed on the clock as of October 13, 2022 and would not toll until March 13,
2023, when counsel actually filed the motion to suppress, at which time there were 119
days on the speedy trial clock. On April 14, 2023, Appellant filed a motion dismiss, which
again tolled the clock.
{¶53} The clock resumed on August 28, 2023, when the court denied all pending
motions. Appellant raised his oral motion to dismiss based on speedy trial grounds on
the same date as the plea hearing, October 27, 2023. At this point, at most 180 days had
passed. Again, this count is less if the court decided that time was tolled immediately
upon filing for leave to file a motion to suppress, instead of the date on which the motion
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was actually filed. Based on this record, the court properly overruled the motion to dismiss
based on speedy trial grounds.
{¶54} Accordingly, Appellant’s second and fifth assignments of error are without
merit and are overruled.
ASSIGNMENT OF ERROR NO. 3
The Trial Court Failed to Strictly Comply with Rule 11 Consitutional [sic]
Requirements when taking plea.
{¶55} Again, we note that Appellant’s arguments are not clear. He seems to
challenge whether the trial court properly found him guilty, and whether the court referred
to the indictment at the plea hearing.
{¶56} A review of the plea hearing transcript reveals that the court used the word
“indictment” at least fifteen times, and repeatedly addressed the specific offenses
contained within that indictment multiple times.
{¶57} When determining guilt, the court stated at the hearing: “I’m going to upon
those pleas find you guilty and I’m going to impose the sentence that I promised.” (Plea
Hrg., p. 21.)
{¶58} Appellant pleaded no contest to violating a protection order, a felony of the
third degree, improperly handling a firearm in a motor vehicle, a felony of the fourth
degree, and violating a protection order, a misdemeanor of the first degree.
{¶59} While the state contends that providing a factual basis on which to base
guilt is not a requirement of Crim.R. 11, this is not entirely accurate. We have previously
acknowledged that where a defendant pleads no contest to a misdemeanor offense, that
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plea “may not be the basis for a finding of guilt without an explanation of circumstances
that includes a statement of the facts which support all of the essential elements of the
offenses. However, a criminal defendant may waive the right to an explanation of
circumstances when pleading guilty.” (Internal citations omitted.) State v. Howell, 2005-
Ohio-2927 (7th Dist.).
{¶60} However, where a criminal defendant pleads no contest to a felony charge,
no factual basis need be established when accepting the plea. State v. LaRosa, 2021-
Ohio-4060, fn. 1. There is no clear determination of whether the recitation of facts must
be given where there is a mix of felony and misdemeanor cases involved in the plea.
Neither party addresses this scenario.
{¶61} It is apparent from this record that Appellant was well aware of the facts
supporting his conviction, here. The trial court addressed these throughout its discussion
with Appellant. Also, we note that of the three offenses, two were felonies. We cannot
find error in the trial court’s acceptance of the plea nor in its decision to find Appellant
guilty following his no contest pleas. As such, Appellant’s third assignment of error is
without merit and is overruled.
ASSIGNMENT OF ERROR NO. 4
Appellant was denied effective Assistaqnce [sic] of Counsel as Guaranteed
by Section 10, Article 1, of the Ohio Constitution and The Sixth And
Fourteenth Amendment of the United States Constitution.
{¶62} The test for an ineffective assistance of counsel claim is two-part: whether
trial counsel's performance was deficient and, if so, whether the deficiency resulted in
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prejudice. State v. White, 2014-Ohio-4153, ¶ 18 (7th Dist.), citing Strickland v.
Washington, 466 U.S. 668 (1984); State v. Williams, 2003-Ohio-4396, ¶ 107.
{¶63} In order to prove prejudice, “[t]he defendant must show that there is a
reasonable probability that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” State v. Lyons, 2015-Ohio-3325, ¶ 11 (7th
Dist.), citing Strickland at 694. The appellant must affirmatively prove the alleged
prejudice occurred. Id. at 693.
{¶64} As both prongs are necessary, if one prong of the Strickland test is not met,
an appellate court need not address the remaining prong. Id. at 697. The appellant bears
the burden of proof on the issue of counsel's effectiveness, and in Ohio, a licensed
attorney is presumed competent. State v. Carter, 2001 WL 741571 (7th Dist. June 29,
2001), citing State v. Calhoun, 86 Ohio St.3d 279, 289, (1999).
{¶65} “When a claim for ineffective assistance of counsel is made based on failure
to file an objection or a motion, the appellant must demonstrate that the objection or
motion had a reasonable probability of success.” State v. Rowbotham, 2022-Ohio-926,
¶ 56, (7th Dist.), citing State v. Saffell, 2020-Ohio-7022, ¶ 51 (7th Dist.). “If the objection
or motion would not have been successful, then the appellant cannot prevail on the
ineffective assistance of counsel claim.” Id., citing State v. Adkins, 2005-Ohio-2577, ¶ 14
(4th Dist.)
{¶66} Appellant has failed to provide any substantive argument to support this
alleged error. While he cites to counsel’s failure to file a motion to dismiss and believes
that the indictment failed to prove his guilt “on its face,” he does not develop these
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arguments in a manner that would allow this Court to review his arguments. For instance,
although he contends that his counsel should have a filed a motion to dismiss on the
basis that he is not prohibited from possessing a firearm, he must prove that such motion
could have been successful if asserted. Because he fails to develop this argument, we
cannot review whether it would have had merit if raised. Again, there is evidence in the
record that Appellant was subject to a restraining order prohibiting him from possessing
firearms. Appellant’s trial counsel did file a motion to dismiss on similar grounds, which
was denied. As to the argument regarding the indictment, again, Appellant raises no
specific argument as to any deficiencies within the indictment. Our review has uncovered
no apparent deficiencies in his indictment.
{¶67} Finally, Appellant claims to have been pressured into taking a plea, but
offers no supporting facts in regard to this assertion. As discussed by the state, the
possibility of a plea agreement arose during a September 28, 2023 status conference. At
this time, the parties informed the court that they were close to resolving the matter
through a plea agreement. Appellant’s counsel informed the court that he had been
communicating with Appellant regarding the agreement, but that he needed more time to
adequately inform Appellant of its provisions and to answer his questions. Appellant
entered his no contest plea on October 27, 2023. From this, it does not appear Appellant
was in any way pressured into a plea. Instead, it seems that his counsel undertook great
effort to inform Appellant and ensure he understood the agreement.
{¶68} As such, Appellant’s fourth assignment of error is without merit and is
overruled.
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Conclusion
{¶69} Appellant challenges rulings on motions to suppress, the validity of his no
contest plea, and the effectiveness of his trial counsel. For the reasons provided,
Appellant’s arguments are without merit and the judgment of the trial court is affirmed.
Hanni, J. concurs.
Dickey, J. concurs.
Case No. 23 NO 0512
[Cite as State v. Smith, 2024-Ohio-5280.]
For the reasons stated in the Opinion rendered herein, Appellant’s assignments of
error are overruled and it is the final judgment and order of this Court that the judgment
of the Court of Common Pleas of Noble County, Ohio, is affirmed. Costs waived.
A certified copy of this opinion and judgment entry shall constitute the mandate in
this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a
certified copy be sent by the clerk to the trial court to carry this judgment into execution.
NOTICE TO COUNSEL
This document constitutes a final judgment entry.