State v. Whaley

[Cite as State v. Whaley, 2021-Ohio-1434.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2020-CA-15
:
v. : Trial Court Case Nos. 2019-CR-158,
: 2019-CR-387, 2019-CR-543
PHILLIP A. WHALEY :
: (Criminal Appeal from
Defendant-Appellant : Common Pleas Court)
:
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OPINION
Rendered on the 23rd day of April, 2021.
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IAN RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
LUCAS W. WILDER, Atty. Reg. No. 0074057, P.O. Box 574, Dayton, Ohio 45409
Attorney for Defendant-Appellant
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WELBAUM, J.
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{¶ 1} Defendant-appellant, Phillip A. Whaley, appeals from his conviction in the
Clark County Court of Common Pleas after pleading guilty to one count of counterfeiting
and two counts of aggravated possession of drugs. On October 6, 2020, Whaley’s
appellate counsel filed a brief under the authority of Anders v. California, 386 U.S. 738,
87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the absence of any issues with arguable
merit for appeal. On October 16, 2020, this court notified Whaley that his counsel had
found no meritorious claims for appeal and granted him 60 days to file a pro se brief
assigning any errors. On December 18, 2020, Whaley filed a pro se brief alleging that
his trial counsel provided him with ineffective assistance by failing to accurately advise
him of the terms of the State’s plea offer and by refusing to file a motion to withdraw his
guilty plea on his behalf. The State thereafter filed a brief responding Whaley’s
ineffective assistance claim.
{¶ 2} For the reasons outlined below, we find that Whaley’s ineffective assistance
claims lack arguable merit. Furthermore, after conducting an independent review of the
record as required by Anders, we find that there are no issues with arguable merit for
Whaley to advance on appeal. Therefore, the judgments of the trial court will be
affirmed.
Facts and Course of Proceedings
{¶ 3} Between March and August 2019, Whaley was indicted for several offenses
in three separate cases in the Clark County Court of Common Pleas: Case Nos. 2019-
CR-158, 2019-CR-543, and 2019-CR-387. This appeal concerns each of these three
cases.
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{¶ 4} In Case No. 2019-CR-158, Whaley was charged with one fifth-degree-felony
count of aggravated possession of drugs, one fifth-degree-felony count of possession of
cocaine, and one third-degree-felony count of tampering with evidence. The charges
arose after Whaley left a bag containing several smaller plastic baggies of
methamphetamine and cocaine inside a police cruiser. The record indicates that Whaley
had been sitting inside the police cruiser to keep warm while law enforcement officers
processed the scene of a traffic accident involving Whaley. After Whaley exited the
police cruiser, an officer discovered the bag of drugs on the floor of the cruiser in the area
where Whaley had been sitting.
{¶ 5} In Case No. 2019-CR-543, Whaley was charged with two fifth-degree-felony
counts of aggravated possession of drugs. The charges arose from a traffic stop of a
stolen vehicle driven by Whaley. During the stop, law enforcement officers searched the
vehicle and discovered fentanyl and amphetamine behind one of the vehicle’s seats and
behind the console.
{¶ 6} In Case No. 2019-CR-387, Whaley was charged with one fourth-degree-
felony count of counterfeiting. The charge arose after Whaley used two counterfeit $100
bills to pay for merchandise and to make change at a Speedway gas station in Springfield,
Ohio.
{¶ 7} On November 14, 2019, Whaley pled guilty to aggravated possession of
drugs (methamphetamine) in Case No. 2019-CR-158 and to counterfeiting in Case No.
2019-CR-387. In exchange for Whaley’s guilty plea to aggravated possession of drugs,
the State agreed to dismiss the charges for possession of cocaine and tampering with
evidence in Case No. 2019-CR-158. The State also agreed to a presentence
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investigation (“PSI”) and to remain silent at sentencing. In exchange for Whaley’s guilty
plea to counterfeiting in Case No. 2019-CR-387, the State likewise agreed to a PSI and
to remain silent at sentencing. As part of the plea agreement, Whaley also agreed to
pay restitution to Speedway.
{¶ 8} On February 25, 2019, Whaley pled guilty to aggravated possession of drugs
(fentanyl) in Case No. 2019-CR-543. In exchange for his guilty plea, the State agreed
to dismiss the second charge for aggravated possession of drugs in that case. The State
also agreed to a PSI and to dismiss a related charge for receiving stolen property in Clark
C.P. No. 2019-CR-395.
{¶ 9} On February 27, 2019, the trial court sentenced Whaley to 18 months in
prison for counterfeiting in Case No. 2019-CR-387. The trial court also sentenced
Whaley to nine months in prison for each of the aggravated possession of drug offenses
in Case Nos. 2019-CR-158 and 2019-CR-543. The trial court ordered the two nine-
month prison terms to be served concurrently to one another and consecutively to the 18-
month prison term.
{¶ 10} The trial court also sentenced Whaley to serve 12 months in prison for
committing a felony while he was on post-release control for a prior felony offense. The
trial court ordered the 12-month sentence to be served prior and consecutive to all the
other sentences, for a total, aggregate term of 39 months in prison. The trial court further
ordered Whaley to pay court costs and $200 in restitution to Speedway.
{¶ 11} Whaley now appeals from his convictions. As previously noted, Whaley’s
appellate counsel filed an Anders brief asserting the absence of any issues with arguable
merit for appeal. Counsel did not raise any potential assignments of error in his Anders
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brief. Whaley, however, filed a pro se brief raising a single assignment of error.
Therefore, we will first review Whaley’s pro se assignment of error and then conduct an
independent review of the record as required by Anders.
Standard of Review
{¶ 12} In Anders cases, we are charged with conducting an independent review of
the record “to determine whether any issues involving potentially reversible error that are
raised by appellate counsel or by a defendant in his pro se brief are ‘wholly frivolous.’ ”
State v. Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 7, quoting Anders,
386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493. An issue is wholly frivolous if it lacks
arguable merit, meaning that “on the facts and law involved, no responsible contention
can be made that it offers a basis for reversal.” Id. at ¶ 8, citing State v. Pullen, 2d Dist.
Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. If we find that any issue—whether
presented by appellate counsel, presented by the appellant, or found through an
independent analysis—is not wholly frivolous, we must appoint different appellate counsel
to represent the appellant. Id. at ¶ 7, citing Pullen.
Pro Se Assignment of Error
{¶ 13} Under his sole assignment of error, Whaley contends that his trial counsel
provided ineffective assistance with regard to his guilty plea to counterfeiting. To support
this claim, Whaley argues that his trial counsel led him to believe that he was only
pleading guilty to the two charges for aggravated possession of drugs in Case Nos. 2019-
CR-158 and 2019-CR-543, and that counsel failed to advise him that he was also pleading
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guilty to counterfeiting in Case No. 2019-CR-387. Whaley also claims that his trial
counsel provided ineffective assistance by refusing to file a motion to withdraw the guilty
plea based on: (1) Whaley’s alleged misunderstanding of the plea agreement; and (2)
Whaley allegedly being under the influence during the plea proceedings.
{¶ 14} In order to succeed on an ineffective assistance claim, a defendant must
establish: (1) his trial counsel’s performance was deficient; and (2) the deficient
performance prejudiced him. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984), paragraph two of the syllabus; State v. Bradley, 42 Ohio St.3d
136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. To establish deficient
performance, a defendant must show that his trial counsel’s performance fell below an
objective standard of reasonable representation. Strickland at 688; Bradley at 142. To
establish prejudice, a defendant must show that there is “a reasonable probability that,
but for counsel’s errors, the proceeding’s result would have been different.” State v.
Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204, citing Strickland at
687-688 and Bradley at paragraph two of the syllabus. The failure to make a showing of
either deficient performance or prejudice defeats a claim of ineffective assistance of
counsel. Strickland at 697.
{¶ 15} A guilty plea “waives the right to allege ineffective assistance of counsel,
except to the extent that the errors caused the plea to be less than knowing and
voluntary.” State v. Hurtado, 2d Dist. Montgomery No. 26892, 2017-Ohio-1465, ¶ 11,
citing State v. Spates, 64 Ohio St.3d 269, 595 N.E.2d 351 (1992). Therefore, to prevail
on a claim of ineffective assistance of counsel after pleading guilty, a defendant must
show that: (1) counsel’s advice was not within the range of competence demanded of
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attorneys in criminal cases; and (2) but for counsel’s errors, there was a reasonable
probability that the defendant would not have pleaded guilty, but would have insisted on
going to trial. (Citations omitted.) State v. Olsen, 2d Dist. Montgomery No. 28011,
2019-Ohio-568, ¶ 10.
{¶ 16} In this case, Whaley’s ineffective assistance claim is based on Whaley’s
alleged communications, or lack thereof, with his trial counsel. A claim that concerns a
defendant’s communications with his trial counsel “presents a matter outside the record.”
State v. Harris, 2d Dist. Montgomery No. 27179, 2017-Ohio-9052, ¶ 19. It is well
established that “[a] claim of ineffective assistance of counsel cannot be asserted on
direct appeal if it relies on matters outside the record.” Id., citing State v. Thomas, 2d
Dist. Montgomery No. 26907, 2017-Ohio–5501, ¶ 28. We have also explained that “a
claim of lack of communication between a defendant and his trial counsel is not one that
can be borne out by the record.” (Emphasis added.) State v. Watters, 2016-Ohio-8083,
76 N.E.3d 723, ¶ 27 (2d Dist.). Accord State v. Olds, 2d Dist. Miami No. 2019-CA-9,
2020-Ohio-1528, ¶ 11; State v. Lawson, 2020-Ohio-6852, __ N.E.3d __, ¶ 106 (2d Dist.).
Therefore, an ineffective assistance claim asserting lack of communication also “relies
upon information necessarily outside the record, and is therefore not an issue we can
review on direct appeal.” Id.{¶ 17} Here, we cannot determine from the record what communications may have
transpired between Whaley and his trial counsel regarding the plea agreement and
Whaley’s alleged request to file a motion to withdraw his guilty plea. Because Whaley’s
ineffective assistance claim is based on matters outside the record, the claim is not
reviewable on direct appeal and thus lacks arguable merit.
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Conclusion
{¶ 18} In addition to reviewing Whaley’s pro se assignment of error, we have
performed our duty under Anders to conduct an independent review of the record. After
doing so, we have found no issues with arguable merit for Whaley to advance on appeal.
Therefore, we affirm the judgments of the trial court and grant appellate counsel’s request
to withdraw from representation.
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TUCKER, P.J. and DONOVAN, J., concur.
Copies sent to:
Ian Richardson
Lucas W. Wilder
Phillip A. Whaley
Hon. Richard J. O’Neill