State v. Leeper

[Cite as State v. Leeper, 2023-Ohio-239.]
COURT OF APPEALS
TUSCARAWAS COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. W. Scott Gwin, P.J.
Plaintiff-Appellee Hon. William B. Hoffman, J.
Hon. John W. Wise, J.
-vs-
Case Nos. 2022 AP 05 0015, 2022 AP 05
0016 & 2022 AP 05 0017
RYAN M. LEEPER
Defendant-Appellant OPINION
CHARACTER OF PROCEEDINGS: Appeal from the Tuscarawas County Court
of Common Pleas, Case Nos. 2022 CR 01
0025, 2021 CR 03 0103 & 2021 CR 10
0320
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: January 27, 2023
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
RYAN STYER AARON KOVALCHIK
Tuscarawas County Prosecuting Attorney 116 Cleveland Avenue, N.W. – Ste. # 808
Canton, Ohio 44702
KRISTINE W. BEARD
Assistant Prosecuting Attorney
Tuscarawas County Prosecutors Office
125 E. High Avenue
New Philadelphia, Ohio 44663
Tuscarawas County, Case Nos. 2022 AP 05 0015, 2022 AP 05 0016 & 2
2022 AP 05 0017
Hoffman, J.
{¶1} In Tusc. App. Nos. 2022 AP 05 0015, 2022 AP 05 0016, and 2022 AP 05
0017, defendant-appellant Ryan M. Leeper appeals his convictions and sentence entered
by the Tuscarawas County Court of Common Pleas, after the trial court accepted his guilty
pleas and found him guilty in all three cases. Plaintiff-appellee is the state of Ohio.
STATEMENT OF THE CASE1
Tuscarawas County Court of Common Pleas Case No. 2021 CR 03 103
(“Leeper I”)
{¶2} On March 29, 2021, the Tuscarawas County Grand Jury indicted Appellant
on one count of aggravated possession of drugs, in violation of R.C. 2925.11(A) &
(C)(1)(b), a felony of the third degree; and one count of possession of drug abuse
instruments, in violation of R.C. 2925.12(A) & (C), a misdemeanor of the second degree.
Appellant appeared before the trial court for arraignment on April 26, 2021, and entered
a plea of not guilty to the Indictment. Appellant was released on his own recognizance.
{¶3} Appellant filed a motion to suppress on August 8, 2021. Therein, Appellant
moved the trial court to suppress all evidence obtained from the warrantless search of his
person. Appellant asserted the arresting officer did not have reasonable and articulable
suspicion or probable cause to stop the vehicle in which he was traveling.
{¶4} After multiple continuances, the trial court conducted a hearing on
Appellant’s motion to suppress on November 30, 2021. Via Judgment Entry filed
December 1, 2021, the trial court ordered the state to submit its memorandum in
opposition to Appellant’s motion to suppress on or before December 14, 2021, and
1A Statement of the Facts underlying Appellant’s convictions is not necessary to our disposition of this
Appeal.
Tuscarawas County, Case Nos. 2022 AP 05 0015, 2022 AP 05 0016 & 3
2022 AP 05 0017
Appellant to submit his memorandum in support on or before December 28, 2021. The
parties timely filed their respective memoranda. Via Judgment Entry filed January 14,
2022, the trial court denied Appellant’s motion to suppress. The matter was scheduled
for trial on March 16, 2022.
Tuscarawas County Court of Common Pleas Case No. 2021 CR 10 0320
(“Leeper II”)
{¶5} On October 29, 2021, the Tuscarawas County Grand Jury indicted
Appellant on one count of receiving stolen property, in violation of R.C. 2913.51(A) & (C),
a felony of the fourth degree. Appellant appeared before the trial court for arraignment
on November 29, 2021, and entered a plea of not guilty to the Indictment.
{¶6} The matter was scheduled for trial on March 2, 2022. Appellant failed to
appear for the final pretrial on March 1, 2022, and for trial the following day. The trial
court issued a warrant for Appellant’s arrest.
Tuscarawas County Court of Common Pleas Case No. 2022 CR 01 0025
(“Leeper III”)
{¶7} On January 28, 2022, the Tuscarawas County Grand Jury indicted
Appellant on one count of aggravated possession of drugs, in violation of R.C.
2925.11(C)(1)(a), a felony of the fifth degree; and one count of possession of drugs, in
violation of R.C. 2925.11(C)(2)(a), a misdemeanor of the first degree. Appellant appeared
before the trial court on February 22, 2022, and entered a plea of not guilty to the
Indictment. The trial court scheduled a pretrial for March 15, 2022.
Tuscarawas County, Case Nos. 2022 AP 05 0015, 2022 AP 05 0016 & 4
2022 AP 05 0017
Change of Plea – Leeper I, Leeper II, & Leeper III
{¶8} Appellant appeared before the trial court on March 8, 2022, withdrew his
original pleas of not guilty, and entered pleas of guilty to the Indictments in all three cases.
Following a Crim. R. 11 colloquy, the trial court accepted Appellant's pleas and found him
guilty. The trial court deferred sentencing pending a presentence investigative report. On
April 25, 2022, the trial court sentenced Appellant to an aggregate prison term of twenty-
four months. The trial court memorialized Appellant’s sentence via Sentencing Entry filed
April 26, 2022.
{¶9} It is from this entry Appellant appeals, raising the following assignments of
error:
I. APPELLANT’S CONSTITUTIONAL RIGHTS AS GUARANTEED
BY THE FOURTH AMENDMENT OF THE UNITED STATES
CONSTITUTION AND ARTICLE I SECTION 14 OF THE OHIO
CONSTITUTION WERE VIOLATED WHEN THE TRIAL COURT
OVERRULED THE MOTION TO SUPPRESS.
II. APPELLANT’S COUNSEL WAS INEFFECTIVE FOR ADVISING
APPELLANT TO ENTER A PLEA OF GUILTY, THUS WAIVING HIS RIGHT
TO APPEAL HIS SUPPRESSION ISSUE.
II
{¶10} For ease of discussion, we elect to address Appellant’s assignments of error
out of order. In his second assignment of error, Appellant raises a claim of ineffective
Tuscarawas County, Case Nos. 2022 AP 05 0015, 2022 AP 05 0016 & 5
2022 AP 05 0017
assistance of counsel. Specifically, Appellant contends trial counsel was ineffective for
failing to advise him a plea of guilty would waive his right to challenge the trial court’s
denial of his motion to suppress on appeal in Leeper I.
{¶11} To establish a claim of ineffective assistance of counsel, a defendant must
satisfy the two-pronged test in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct.
2052, 80 L.Ed.2d 674 (1984). Specifically, the defendant must establish: (1) his trial
counsel's performance was deficient; and (2) the deficient performance prejudiced him.
Id. at 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, supra at 688, 466 U.S. 668, 687, 104 S.Ct. 2052;
Bradley, supra at 142, 538 N.E.2d 373. When evaluating counsel's performance, a
reviewing court “must indulge in a strong presumption that counsel's conduct falls within
the wide range of reasonable professional assistance.” Strickland, supra at 689, 466 U.S.
668, 687, 104 S.Ct. 2052. The failure to make a showing of either deficient performance
or prejudice defeats a claim of ineffective assistance of counsel. Strickland at 697, 466
U.S. 668, 687, 104 S.Ct. 2052.
{¶12} A claim of ineffective assistance of counsel is waived by a guilty plea, except
to the extent the ineffective assistance of counsel caused the defendant's plea to be less
than knowing, intelligent and voluntary. State v. Williams, 8th Dist. Cuyahoga No. 100459,
2014-Ohio-3415, ¶ 11, citing State v. Spates, 64 Ohio St.3d 269, 272, 595 N.E.2d 351(1992), citing Tollett v. Henderson, supra. Where a defendant has entered a guilty plea,
he can prevail on an ineffective assistance of counsel claim only by demonstrating there
Tuscarawas County, Case Nos. 2022 AP 05 0015, 2022 AP 05 0016 & 6
2022 AP 05 0017
is a reasonable probability that but for counsel's deficient performance, he would not have
pled guilty to the offenses and would have insisted on going to trial. Williams, supra at ¶
11, citing State v. Xie, 62 Ohio St.3d 521, 524, 584 N.E.2d 715 (1992); and Hill v.
Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).
{¶13} The record is silent as to what advice defense counsel gave Appellant prior
to his pleas. The record does not reflect whether defense counsel discussed with
Appellant the difference between a plea of guilty and a plea of no contest, or whether
counsel advised Appellant a guilty plea would waive the right to appeal the denial of the
motion to suppress; therefore, Appellant is unable to demonstrate trial counsel’s
performance was deficient.
{¶14} Appellant’s second assignment of error is overruled.
I
{¶15} In his first assignment of error, Appellant asserts the trial court violated his
constitutional rights by overruling his motion to suppress in Leeper I.
{¶16} “[A] defendant who voluntarily, knowingly, and intelligently admits ‘in open
court that he is in fact guilty of the offense with which he is charged * * * may not thereafter
raise independent claims relating to the deprivation of constitutional rights that occurred
prior to the entry of the guilty plea.’” State v. Howard, 4th Dist. Scioto App. No. 16CA3762,
2017-Ohio-9392, 103 N.E.3d 108, ¶ 69, quoting Tollett v. Henderson, supra. Accordingly,
“a guilty plea waives the right to challenge on appeal a trial court's decision denying a
motion to suppress evidence.” Id., at ¶ 70, citing State v. Obermiller, 147 Ohio St.3d 175,
2016-Ohio-1594, 63 N.E.3d 93, ¶ 55.
Tuscarawas County, Case Nos. 2022 AP 05 0015, 2022 AP 05 0016 & 7
2022 AP 05 0017
{¶17} By entering his guilty pleas in this case, Appellant waived his right assert
any challenge to the trial court's ruling on his motion to suppress.
{¶18} Appellant’s first assignment of error is overruled.
{¶19} The judgment of the Tuscarawas County Court of Common Pleas is
affirmed.
By: Hoffman, J.
Gwin, P.J. and
Wise, John, J. concur