State v. Musleh , 2017 Ohio 8166 ( 2017 )

[Cite as State v. Musleh, 2017-Ohio-8166.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105305
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
MOHAMMAD MUSLEH
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-16-606844-A
BEFORE: E.A. Gallagher, P.J., McCormack, J., and Celebrezze, J.
RELEASED AND JOURNALIZED: October 12, 2017
ATTORNEYS FOR APPELLANT
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.:
{¶1} Defendant-appellant Mohammad Musleh appeals from his conviction after
he pled no contest to one count of unlawful possession of a dangerous ordnance in
violation of R.C. 2923.17(A). Musleh contends that the trial court did not comply with
Crim.R. 11(C)(2)(b) in accepting his no contest plea and abused its discretion in denying
his request to withdraw his plea. He also contends that he did not receive effective
assistance of counsel based on counsel’s recommendation that he enter a plea that
allegedly offered no benefit and counsel’s abandonment of a motion to suppress evidence.
For the reasons that follow, we affirm the trial court’s judgment.
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 R.C. 2923.17(A), a
fifth-degree felony, with a forfeiture specification.
{¶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.
Musleh argued that the search exceeded the scope of warrantless administrative
inspections permitted under Ohio Adm.Code 4301.1-1-79, because the agents did not
possess reasonable suspicion that Musleh had violated any liquor statutes. The state
opposed the motion, asserting that Musleh lacked standing to challenge the search
because he was not the owner of the premises and could not establish that he had any
right to an expectation of privacy in the premises. The state also asserted that the search
was constitutional.
{¶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
stated that he was satisfied with the services rendered by his trial counsel. Both the
defense and the state indicated that they were satisfied that the trial court had complied
with Crim.R. 11.
{¶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
1
Although Musleh had entered a no contest plea, the motion to withdraw the plea erroneously
refers to Musleh’s plea as a guilty plea.
state and defense counsel and questioning Musleh regarding his plea, the trial court
denied the motion, concluding that Musleh “had not given * * * a legal reason why it
should be withdrawn” and had shown nothing more than a “change of heart,” which was
not a sufficient basis upon which to withdraw his plea. The trial court sentenced
Musleh to one year of community control sanctions and 20 hours of community service.
{¶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
{¶13} “When a defendant enters a plea in a criminal case, the plea must be made
knowingly, intelligently, and voluntarily. Failure on any of those points renders
enforcement of the plea unconstitutional under both the United States Constitution and
the Ohio Constitution.” State v. Engle, 74 Ohio St. 3d 525, 527, 660 N.E.2d 450 (1996);
see also State v. Veney, 120 Ohio St. 3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 7. To
that end, Crim.R. 11 sets forth certain constitutional and procedural requirements with
which a trial court must comply prior to accepting a guilty or no contest plea. Under
Crim.R. 11(C)(2), the trial court shall not accept a guilty or no contest plea in a felony
case without personally addressing the defendant and doing all of the following:
(a) 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.
(b) 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.
(c) 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.
Whether the trial court accepted a plea in compliance with Crim.R. 11(C)(2) is subject to
de novo review, based on the totality of the circumstances. State v. Jackson, 8th Dist.
Cuyahoga No. 99985, 2014-Ohio-706, ¶ 6; see also State v. Tutt, 2015-Ohio-5145, 54
N.E.3d 619, ¶ 13 (8th Dist.) (“In considering whether a plea was entered knowingly,
intelligently and voluntarily, ‘an appellate court examines the totality of the circumstances
through a de novo review of the record.”), quoting State v. Spock, 8th Dist. Cuyahoga No.
99950, 2014-Ohio-606, ¶ 7.
{¶14} If a trial court fails to “literally comply with Crim.R. 11,” a reviewing court
“must engage in a multitiered analysis to determine whether the trial judge failed to
explain the defendant’s constitutional or nonconstitutional rights and, if there was a
failure, to determine the significance of the failure and the appropriate remedy.” State v.
Clark, 119 Ohio St. 3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 30. The trial court must
strictly comply with those provisions of Crim.R. 11(C)(2) that relate to the waiver of
constitutional rights. Veney, 120 Ohio St. 3d 176, 2008-Ohio-5200, 897 N.E.2d 621, at
syllabus. As to the nonconstitutional aspects of Crim.R. 11(C)(2), which includes a
defendant’s right to be informed of and understand the effect of a no contest plea,
substantial compliance is required. Veney at ¶ 14; State v. Mason, 8th Dist. Cuyahoga
No. 104533, 2017-Ohio-7065, ¶ 36; State v. Petitto, 8th Dist. Cuyahoga No. 95276,
2011-Ohio-2391, ¶ 6. Under the substantial compliance standard, “a slight deviation
from the text of the rule is permissible,” provided that, “under the totality of the
circumstances,” “the defendant subjectively understands the implicationsof his plea and
the rights he is waiving.” Clark at ¶ 31; State v. Nero, 56 Ohio St. 3d 106, 108, 564
N.E.2d 474 (1990).
{¶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 Crim.R.
11(C)(2)(a) or (b) relating to a nonconstitutional right, then it must make a further
determination as to whether the trial court “partially complied” or “completely failed” to
comply with the requirement. Clark at ¶ 32. If the trial court partially complied with a
requirement of Crim.R. 11(C)(2) relating to a nonconstitutional right, a defendant’s plea
is properly vacated only if the defendant demonstrates prejudice, i.e., that the plea would
not otherwise have been made. Id.; Griggs at ¶ 12; Nero at 108. If the trial court
completely failed to comply, the plea must be vacated; a showing of prejudice is not
required. Clark at ¶ 32 (“‘ A complete failure to comply with the rule does not implicate
an analysis of prejudice.’”), quoting State v. Sarkozy, 117 Ohio St. 3d 86, 2008-Ohio-509,
881 N.E.2d 1224, ¶ 22.
{¶16} The effect of a no contest plea is set forth in Crim.R. 11(B)(2), which
states:
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 Crim.R. 11(B)”).
{¶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 Crim.R. 11(C)(2)(b). He further contends that the Ohio
Supreme Court’s decision in Clark and this court’s decisions in State v. Tutt, 54 N.E.3d
619, 2015-Ohio-5145 (8th Dist.), and State v. Tokar, 8th Dist. Cuyahoga No. 91941,
2009-Ohio-4369, cannot be reconciled with this court’s decisions in State v. Simonoski,
8th Dist. Cuyahoga No. 98496, 2013-Ohio-1031, and State v. Anglen, 8th Dist. Cuyahoga
No. 102022, 2015-Ohio-4070, in which he contends the court went directly into a
prejudice analysis, rejecting the defendant’s challenge to his or her pleas under Crim.R.
11(C)(2)(b) without first determining whether the trial court had at least partially
complied with the requirement that a defendant be informed of and understand the effect
of a no contest plea. We disagree.
{¶18} First, Crim.R. 11(C)(2)(b) requires that a defendant be informed of and
understand the effect of a no contest or guilty plea; it does not require a “rote recitation”
of the language of Crim.R. 11(B)(2).2 See, e.g., State v. Mallon, 11th Dist. Trumbull
2
We note, however, that “‘[l]iteral compliance withCrim.R. 11, in all respects, remains
No. 98-T-0032, 1999 Ohio App. LEXIS 6131, *13-*14 (Dec. 17, 1999). Second, with
respect to a defendant’s right to be informed of and understand the effect of a no contest
or guilty plea – unlike other nonconstitutional aspects of Crim.R. 11(C)(2) — it is
presumed that a defendant who has entered a no contest or guilty plea without asserting
actual innocence understands the effects of his or her plea. In Griggs, the Ohio Supreme
Court held that “[a] defendant who has entered a guilty plea without asserting actual
innocence is presumed to understand that he has completely admitted his guilt.” Griggs,
103 Ohio St. 3d 85, 2004-Ohio-4415, 814 N.E.2d 51, at syllabus. Applying Griggs, this
court has extended that presumption to no contest pleas as well. See, e.g., Anglen at ¶
12, quoting State v. Mays, 8th Dist. Cuyahoga No. 99150, 2013-Ohio-4031, ¶ 12 (“‘[A]
defendant who has entered a guilty or no contest plea without asserting actual innocence
is presumed to understand the effect of the plea * * *.’”) (emphasis added), citing Griggs
at syllabus; see also Simonoski, at ¶ 12. In Simonoski and Anglen, the defendants did
not assert their “actual innocence” when they entered their pleas or otherwise suggest that
they did not understand that their no contest pleas would constitute an admission of the
truth of the facts alleged in the indictment. Although the trial court erred in not
specifically informing the defendants of the effect of their pleas by stating the effect of
their pleas as set forth in Crim.R. 11(B)(2) on the record, the presumption that those
preferable to inexact plea hearing recitations.’ * * * The best way to ensure that pleas are entered
knowingly and voluntarily is to simply follow the requirements of Crim.R. 11 when deciding whether
to accept a plea agreement.” Clark, 119 Ohio St. 3d 239, 2008-Ohio-3748, 893 N.E.2d 462, at ¶ 29,
quoting Griggs, 103 Ohio St. 3d 85, 2004-Ohio-4415, 814 N.E.2d 51, at ¶ 19, fn. 2.
defendants had an understanding of the effect of their pleas applied. As such, there was
no “complete failure” to comply with the nonconstitutional effect-of-plea requirement
under Crim.R. 11(C)(2)(b). See Simonoski at ¶ 8-14 (concluding that the defendant
“subjectively understood the effects of his plea” and that “even if the court failed to
substantially comply with explaining the effects of his plea, [he] still has to prove he was
prejudiced by the court’s failure”); Anglen at ¶ 11-13; see also State v. Semenchuk, 8th
Dist. Cuyahoga No. 102636, 2015-Ohio-5408, ¶ 14 (stating that in Simonoski the panel
determined that there was partial compliance and that the defendant was therefore
required to demonstrate prejudice to vacate his plea).
{¶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 Crim.R.
11(C)(2)(b). Id. at ¶ 5, 15. In that case, the state conceded that the trial court did not
inform the defendant of the effect of his no contest plea but argued that the defendant
subjectively understood the effect of his plea because the trial court had explained the
maximum potential sentence the defendant could receive and the rights he was waiving
upon entering his plea. Id. at ¶ 14. The court rejected the state’s argument, reasoning
that the effect-of-plea requirement “cannot be met simply by the informing the defendant
of the maximum sentence and the right to a jury trial” and concluding that “[u]nder the
facts and circumstances” of that case, the defendant’s plea was not knowingly,
intelligently and voluntarily entered. Id. at ¶ 5, 14. The Jones opinion does not indicate
specifically what advisements were made to the defendant at the plea hearing in that case
and did not apply the presumption in Griggs. As such, we believe it is distinguishable
from this case.
{¶20} The “primary goal” of the plea advisement under Crim.R. 11(C)(2)(b) is “to
ensure that the offender is aware of all potential adverse effects of the plea.” State v.
Ramey, 7th Dist. Mahoning No. 13 MA 64, 2014-Ohio-2345, ¶ 19. Further, “‘[t]he
essence of the “no contest” plea, is that the accused cannot be heard in defense.’” State
v. Sanders, 8th Dist. Cuyahoga No. 97120, 2012-Ohio-1540, ¶ 46, quoting State ex rel.
Stern v. Mascio, 75 Ohio St. 3d 422, 662 N.E.2d 370 (1996).
{¶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 Crim.R. 11(C)(2)(b) where the trial court gave the following
advisement concerning the effect of the defendant’s no contest plea:
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.
Id. at ¶ 16-18.
{¶22} Similarly, in this case, although the trial judge did not recite the language of
Crim.R. 11(B)(2), she did inform Musleh of the nature of the charge at issue, the potential
penalties he faced and the constitutional rights he was giving up by pleading no contest to
the charge in the indictment, including his right to a jury or bench trial, his right to
continued representation by counsel through trial, his right to compel witness testimony
on his behalf, his right to confront and cross-examine any witnesses that would be called
to testify against him and his right not to testify at his trial if he chose not to do so. The
trial judge further advised Musleh that by entering his no contest plea, he was giving up
his right to have “the State of Ohio prove [his] guilt by evidence beyond a reasonable
doubt” at trial. The state indicated, when “outlin[ing]” the no contest plea at the request
of the trial judge at the outset of the plea hearing, that it was “incorporat[ing] all the facts
and allegations and statements in Count 1” of the indictment. Musleh stated that he
understood the offense to which he was pleading no contest and all the rights he was
waiving by pleading no contest.
{¶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
partially complied with effect-of-plea requirement where trial judge informed defendant
“[i]f you are pleading no contest, you are saying that you are not contesting this charge so
you are allowing me to find that you are guilty of it without going through a trial and
being proven guilty” and defendant indicated that he understood). Musleh was
represented by counsel at the plea hearing, he did not assert his innocence at the plea
hearing and there is nothing in the record that suggests that Musleh was confused or did
not understand that his no contest plea was an admission of the truth of the facts alleged
in the indictment. There is no claim that the trial judge gave him any misinformation
regarding the effect of the no contest plea. The trial judge gave Musleh the opportunity
to ask questions before taking his plea and Musleh indicated that he had no questions
regarding his rights, the charges, the penalties “or anything that is being done here today.”
Accordingly, on the record before us, considering the presumption that applies and the
totality of the circumstances, we find that the trial court at least partially complied with
the effect-of-plea requirement under Crim.R. 11(C)(2)(b).
{¶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 Crim.R. 11(C)(2)(b). Where, as
here, a defendant enters a guilty or no contest plea without asserting actual innocence, a
defendant is presumed to understand the effect of the plea such that a trial court’s failure
to inform the defendant of the effect of his plea is presumed not to be prejudicial. See,
e.g., Anglen, 2015-Ohio-4070, at ¶ 12; Mays, 2013-Ohio-4031, at ¶ 12; Griggs, 103 Ohio
St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, at syllabus. Musleh has not even argued —
much less demonstrated — that he was prejudiced by the trial court’s failure to fully
comply with Crim.R. 11(C)(2)(b), i.e., that but for the trial court’s failure to more fully
inform him of the effects of his no contest plea, he would not have entered his no contest
plea. See Nero, 56 Ohio St. 3d at 108, 564 N.E.2d 474. Nor is any prejudice apparent
on the record before us. As stated above, Musleh did not assert his innocence at the plea
hearing; therefore, we presume that he understood that his no contest plea was an
admission of the truth of the facts alleged in the indictment. Even if Musleh did not
know that his no contest plea could not be used against him in any subsequent civil or
criminal proceeding, any failure to advise Musleh of this fact could not be prejudicial
because this rule “inures to his benefit.” See Mays at ¶ 13; see also Ramey at ¶ 19
(observing that “[i]f a person is not advised of a potential beneficial effect of the plea, it
is difficult to imagine a scenario where such a defendant sustains any prejudice for such a
failure”). Accordingly, we overrule Musleh’s first assignment of error.
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
below an objective standard of reasonable representation and (2) that counsel’s errors
prejudiced the defendant, i.e., a reasonable probability that but for counsel’s errors, the
result of the trial would have been different. Strickland v. Washington, 466 U.S. 668,
687-688, 694, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984); State v. Bradley, 42 Ohio St. 3d
136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. “Reasonable
probability” is “probability sufficient to undermine confidence in the outcome.”
Strickland at 694.
{¶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.” 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 R.C. 2929.13(B)(1)(a), he
could not have gone to prison for the offense to which he pled no contest and thus he had
“nothing to lose by going to trial.” However, he also acknowledges that a trial court has
discretion to impose a prison term where R.C. 2929.13(B)(1)(b)(i) applies — i.e., “the
offender committed the offense while having a firearm on or about the offender’s person
or under the offender’s control” — and that in State v. Torres, 8th Dist. Cuyahoga No.
104905, 2017-Ohio-938, this court recently applied R.C. 2929.13(B)(1)(b)(i) where a
defendant pled guilty to a charge of carrying a concealed weapon. We need not decide
whether R.C. 2929.13(B)(1)(b)(i) would apply in this case. At the plea hearing, both the
state and trial court indicated that the offense at issue was “punishable by 6 to 12 months
in prison.” Even assuming trial counsel advised Musleh to enter a no contest plea,3
Musleh has not overcome the presumption that trial counsel’s advice was sound strategy
to avoid a trial that could possibly lead to incarceration.
{¶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
3
There is nothing in the record regarding any advice or recommendation trial counsel
allegedly provided to Musleh with respect to entering a no contest plea. To the extent Musleh’s
claim of ineffective assistance of counsel is based upon purported, off-the-record conversations he had
with his trial counsel, the record does not provide this court with any basis upon which we can
determine whether counsel was ineffective.
{¶30} Musleh also contends that his trial counsel was ineffective because he failed
to pursue Musleh’s 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
ineffective for failing to prosecute it.’” Brooks at ¶ 57, quoting State v. Gaines, 11th
Dist. Lake Nos. 2006-L-059 and 2006-L-060, 2007-Ohio-1375, ¶17.
{¶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).
{¶33} Musleh has not identified any facts or law that would support a finding
that he had a legitimate expectation of privacy in the premises and area searched.
Accordingly, Musleh has not established that his motion to suppress was likely to be
successful or that he was otherwise prejudiced by his counsel’s failure to actively pursue
that motion before Musleh entered his no contest plea. Musleh’s third assignment of
error is overruled.
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.
{¶36} It is within the “sound discretion of the trial court”whether circumstances
exist that warrant withdrawal of a defendant’s guilty or no contest plea. Xie at 527.
Accordingly, we review a trial court’s denial of a motion to withdraw a plea under an
abuse of discretion standard. Id.; State v. Johnson, 8th Dist. Cuyahoga No. 83350,
2004-Ohio-2012, ¶ 34. Unless it is shown that the trial court acted unreasonably,
arbitrarily or unconscionably in denying a defendant’s motion to withdraw a plea, there is
no abuse of discretion and the trial court’s decision must be affirmed. See Blakemore v.
Blakemore, 5 Ohio St. 3d 217, 219, 450 N.E.2d 1140 (1983); Xie at 527.
{¶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 Crim.R. 11, before he entered the plea; (3) the defendant was given a
complete and impartial hearing on the motion to withdraw the plea and (4) the trial court
gave full and fair consideration to the plea withdrawal request. Id. at paragraph three of
the syllabus.
{¶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
or had evidence of a plausible defense. See, e.g., State v. Calabrese, 8th Dist. Cuyahoga
No. 104151, 2017-Ohio-7316, ¶ 12; State v. Small, 8th Dist. Cuyahoga No. 104813,
2017-Ohio-110, ¶ 8.
{¶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 Crim.R. 11(C) prior to entering his no
contest plea and understood the charge to which he pled no contest and the potential
penalties associated with his plea.
{¶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.
{¶41} Musleh’s motion to withdraw his plea was filed a month after the plea and
three days before the scheduled sentencing hearing. It consists of little more than vague
assertions and lacks any evidentiary support.
{¶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 pleas 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.
{¶43} Based on the record before us, we find that the trial court gave full and fair
consideration to Musleh’s motion to withdraw his no contest plea. Before ruling on the
motion, the court heard argument from defense counsel and the state and then questioned
Musleh regarding the basis for his motion, confirming that he had been informed of and
understood the charge to which he pled no contest, the potential penalties and his
constitutional rights. The trial court further confirmed that no threats or promises had
induced his plea and that Musleh had indicated that he was entering his plea voluntarily
and of his own free will. We must defer to the trial court’s judgment in evaluating the
“‘good faith, credibility and weight’” of Musleh’s motivation and assertions in entering
and attempting to withdraw his plea. See Xie, 62 Ohio St. 3d 521, 525, 584 N.E.2d 715,
quoting State v. Smith, 49 Ohio St. 2d 261, 361 N.E.2d 1324 (1977).
{¶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.
A certified copy of this entry shall constitute the mandate pursuant to
Rule 27 of the Rules of Appellate Procedure.
_______________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE
TIM McCORMACK, J., and
FRANK D. CELEBREZZE, JR., J., CONCUR