State v. Willis

[Cite as State v. Willis, 2017-Ohio-8924.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
WOOD COUNTY
State of Ohio Court of Appeals No. WD-16-048
Appellee Trial Court No. 2015CR0549
v.
Christopher S. Willis DECISION AND JUDGMENT
Appellant Decided: December 8, 2017
*****
Paul A. Dobson, Wood County Prosecuting Attorney, and
David T. Harold, Assistant Prosecuting Attorney, for appellee.
Edward J. Stechschulte, for appellant.
*****
MAYLE, J.
{¶ 1} Appellant, Christopher Willis, appeals the September 27, 2016 judgment of
the Wood County Court of Common Pleas sentencing him to community control for three
misdemeanor convictions. For the following reasons, we affirm.
I. Background and Facts
{¶ 2} On December 12, 2015, two deputies from the Wood County Sheriff’s
Office found a car stopped in the middle of the road. Willis was passed out in the front
passenger seat. The deputies could not wake him, so they broke the car window to
remove Willis from the vehicle. They also called an EMS squad to examine Willis. In
the ambulance, Willis flailed around and kicked the deputies. Because of the smell of
alcoholic beverages about Willis’s person, the deputies obtained a warrant to draw
Willis’s blood; the results showed that Willis’s blood alcohol level was over the legal
limit.
{¶ 3} On January 7, 2016, Willis was indicted on four charges: two counts of
assault in violation of R.C. 2903.13(A) and (C)(5), both fourth-degree felonies; driving
under OVI suspension in violation of R.C. 4510.14(A) and (B)(1), a first-degree
misdemeanor; and operating a vehicle under the influence of alcohol or drugs in violation
of R.C. 4511.19(A)(1)(a) and (G)(1)(a), a first-degree misdemeanor.
{¶ 4} On September 27, 2016, after multiple pretrials, several motions, and two
changes of counsel, Willis agreed to plead guilty to the OVI charge and two amended
charges of assault in violation of R.C. 2903.13,1 both first-degree misdemeanors. The
state asked the court to dismiss the driving under suspension charge.
{¶ 5} During the plea hearing, the court asked the prosecutor and defense counsel
what agreement they had reached and confirmed with Willis that the terms conformed to
1
The trial court’s judgment entry does not specify the subsection of the assault statute
under which Willis pleaded guilty.
2.
his understanding of the plea agreement. After the state told the court the factual basis
for the guilty pleas, the court asked “And, Mr. Willis, is that what happened?” Willis
replied, “Yes, Your Honor.” The court and defense counsel then engaged in the
following exchange:
THE COURT: And, again, based upon those facts your plea to
Counts 1 and 2 as amended is?
[DEFENSE COUNSEL]: Guilty, Your Honor.
THE COURT: And as to Count 4?
[DEFENSE COUNSEL]: Guilty, Your Honor.
THE COURT: All right. We would accept those pleas and based
upon the set of facts find the defendant guilty at this time of Assault in
Counts 1 and 2, and OVI in Count 4.
{¶ 6} The court proceeded directly to sentencing. It sentenced Willis to 180 days
in jail for each assault charge and 6 months in jail for the OVI charge. The court
suspended the jail sentences and placed Willis on a three-year term of community
control. The court also imposed a six-month driver’s license suspension. Willis appeals
from this decision, raising three assignments of error:
Assignment of Error No. 1: The trial court erred in denying
Appellant’s Motion to Dismiss on statutory speedy trial grounds[.]
Assignment of Error No. 2: Appellant’s trial counsel deprived
Appellant of his rights to a fair trial, the effective assistance of counsel, and
due process of law as guaranteed by the Fifth, Sixth, and Fourteenth
3.
Amendments to the United States Constitution and comparable provisions
of the Ohio Constitution.
Assignment of Error No. 3: An Administrative License Suspension
becomes punitive upon sentencing and must be vacated or it subjects
Appellant to double jeopardy[.]
II. Law and Analysis
A. The Trial Court’s Denial of Willis’s Motion to Dismiss
{¶ 7} In his first assignment of error, Willis argues that the trial court erred in
denying his motion to dismiss on speedy trial grounds. In response, the state argues that
Willis waived review of this alleged error by pleading guilty. We agree. “A defendant
who enters a guilty plea while represented by competent counsel waives any non-
jurisdictional defects in earlier stages of the proceedings.” State v. Minniefield, 6th Dist.
Erie No. E-00-040, 2001 Ohio App. LEXIS 3139, 4 (July 13, 2001). An objection based
upon a claimed denial of a statutory right to speedy trial is a “non-jurisdictional defect”
that is waived by entering a guilty plea. State v. Hall, 6th Dist. Ottawa No. OT-16-026,
2017-Ohio-2577, ¶ 15.
{¶ 8} Accordingly, Willis’s first assignment of error is not well-taken.
B. Ineffective Assistance of Counsel
{¶ 9} In his second assignment of error, Willis claims that he received ineffective
assistance of counsel because: (1) his trial counsel failed to file a motion to suppress the
results of Willis’s blood draw and his statements made to law enforcement, and (2) his
trial counsel filed a written plea of not guilty by reason of insanity (“NGRI”) and a
4.
motion for competency evaluation without Willis’s knowledge or consent, and then failed
to withdraw the NGRI plea in a timely manner, all of which tolled speedy trial time and
prevented dismissal on speedy trial grounds. In response, the state argues that Willis’s
guilty plea waived review of the alleged ineffective assistance of trial counsel.
{¶ 10} In his reply, Willis claims that the state misunderstands his arguments. He
asserts that while it is generally true that a guilty plea waives any non-jurisdictional
defects during the earlier stages of the proceeding, the general rule is not applicable
because he claims that but for the ineffective assistance of counsel, he would not have
entered the guilty plea.
{¶ 11} In order to prevail on a claim of ineffective assistance of counsel, an
appellant must show that counsel’s conduct so undermined the proper functioning of the
adversarial process that the trial court cannot be relied on as having produced a just
result. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). “Judicial scrutiny of counsel’s performance must be highly deferential.” State v.
Bradley, 42 Ohio St.3d 136, 142, 538 N.E.2d 373 (1989), quoting Strickland at 689.
{¶ 12} To establish ineffective assistance of counsel, an appellant must show “(1)
deficient performance of counsel, i.e., performance falling below an objective standard of
reasonable representation, and (2) prejudice, i.e., 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.
In order to satisfy the “prejudice” element for an ineffective-assistance claim following a
guilty plea, “‘the defendant must show that there is a reasonable probability that, but for
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counsel’s errors, he would not have pleaded guilty and would have insisted on going to
trial.’” State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 89,
quoting Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).
{¶ 13} “In many guilty plea cases, the ‘prejudice’ inquiry will closely resemble the
inquiry engaged in by courts reviewing ineffective-assistance challenges to convictions
obtained through trial.” Hill at 59. As the United States Supreme Court recently
recognized, “defendants obviously weigh their prospects at trial in deciding whether to
accept a plea.” Lee v. United States, ___ U.S. ___, 137 S.Ct. 1958, 1966, 198 L.Ed.2d
476 (2017). Thus, “when the defendant’s decision about going to trial turns on his
prospects of success and those are affected by the attorney’s error—for instance, where a
defendant alleges that his lawyer should have but did not seek to suppress an improperly
obtained confession”—the defendant must show that “he would have been better off
going to trial.” Id. at 1965. In other words, “[w]here an attorney error allegedly affects
how a trial would have played out, [courts should] analyze that error’s effects on a
defendant’s decisionmaking [sic] by making a prediction of the likely trial outcome.” Id.
at 1967, fn. 3.2
2
In Lee, the United States Supreme Court also clarified that it is “neither necessary nor
appropriate” for the court to consider whether the defendant would have been successful
at trial where “the error is one that is not alleged to be pertinent to a trial outcome, but is
instead alleged to have affected a defendant’s understanding of the consequences of his
guilty plea.” 137 S.Ct. at 1967, fn. 3. For example, in Lee, the “determinative issue” in
the defendant’s decision to plead guilty was counsel’s incorrect advice that he would not
be deported. Both the district court and the federal court of appeals found that the
defendant was not prejudiced by counsel’s improper advice about the deportation
consequences of his guilty plea because he “almost certainly” would have been found
guilty at trial given the “overwhelming evidence” of his guilt. Id. at 1964. The Supreme
6.
{¶ 14} Here, Willis claims that but for his counsel’s ineffective assistance, he
would not have pleaded guilty and would have insisted on going to trial. Accordingly,
Willis must first demonstrate that his counsel’s performance was, in fact, deficient. If he
satisfies that threshold burden, Willis must then demonstrate that there is a “reasonable
probability” that he would have succeeded at trial but for counsel’s errors. Lee at 1967,
fn. 3; Strickland at 687-88; Ketterer at ¶ 89.
{¶ 15} Willis contends that trial counsel was ineffective for two reasons. First, he
claims that counsel should have filed a motion to suppress the results of his blood draw
and statements that he made to police officers. Willis argues that the police officers’
body camera video demonstrates that they lacked probable cause to obtain a warrant to
draw his blood, and he claims that the video also shows that the officers obtained his
statements in violation of Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d
694 (1966). There is, however, no such video in the record. The only information in the
record regarding the events on December 12, 2015, are the facts recited by the
prosecutor—and agreed to by Willis—at the plea hearing. And nothing in the state’s
recitation of facts indicates that the officers lacked probable cause for the blood draw or
questioned Willis in violation of Miranda. Accordingly, we find that trial counsel was
not deficient for failing to file a motion to suppress. State v. Gott, 6th Dist. Lucas No. L-
Court reversed, holding that in the “unusual circumstances” of that case, the defendant
established that he would have gone to trial but for his counsel’s advice because trial was
the only option with the possibility, however remote, of avoiding deportation. Id. at 1967-
1968. Here, Willis alleges errors that would have been pertinent to a trial outcome; he does
not allege any errors that would have affected his understanding of the consequences of his
guilty plea.
7.
14-1066, 2015-Ohio-917, ¶ 28 (to prove ineffective assistance due to counsel’s failure to
file a motion to suppress, the record must support both a finding that the motion would
have been granted and a finding that the absence of the motion prejudiced the appellant’s
case).
{¶ 16} Willis also claims that his attorneys were ineffective because they raised an
NGRI defense and filed a motion for competency evaluation without his consent, which
tolled speedy trial time. Counsel is “strongly presumed” to have rendered adequate
assistance and “the defendant must overcome the presumption that, under the
circumstances, the challenged action ‘might be considered sound trial strategy.’” State v.
Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985), quoting Strickland, 466 U.S. at
694-695, 104 S.Ct. 2052, 80 L.Ed.2d 674. “Generally, the decision regarding which
defense to pursue at trial is a matter of trial strategy, and trial strategy decisions are not a
basis of a finding of ineffective assistance of counsel.” State v. Dover, 2d Dist. Clark No.
2013-CA-58, 2015-Ohio-4785, ¶ 10. Even debatable strategic and tactical decisions
cannot form the basis of a claim of ineffective assistance of counsel. State v. Grissom,
6th Dist. Erie No. E-08-008, 2009-Ohio-2603, ¶ 22.
{¶ 17} Willis does not offer any evidence or argument to overcome the “strong
presumption” that his attorneys’ decisions to pursue an NGRI defense and to move for a
competency evaluation were matters of sound trial strategy, other than to complain that
these decisions tolled his speedy trial time. But that is not enough to support an
ineffective-assistance claim. Given that such actions always toll the speedy trial clock,
we assume that counsel knows the law and weighs the pros and cons of all plausible
8.
options before making tactical decisions such as pursuing an insanity defense or seeking
a competency evaluation. “[S]trategic choices made after thorough investigation of law
and facts relevant to plausible options are virtually unchallengeable.” Strickland at 690.
{¶ 18} Moreover, it is immaterial that counsel took various actions that tolled
speedy trial time without Willis’s consent. “[A] defendant’s statutory right to a speedy
trial may be waived, with or without the defendant’s consent, by the defendant’s
counsel.” State v. King, 70 Ohio St.3d 158, 160, 637 N.E.2d 903 (1994). Accordingly,
we find that counsel was not deficient for pursuing an insanity defense or moving for a
competency evaluation.
{¶ 19} Willis’s second assignment of error is, therefore, not well-taken.
C. The Administrative License Suspension
{¶ 20} In Willis’s third assignment of error, he argues that the trial court erred by
failing to terminate the administrative license suspension (“ALS”) imposed on him at the
time of his OVI arrest, and that his double jeopardy rights were therefore violated when
the trial court sentenced him on the OVI charge to a six-month license suspension. The
state counters that the record does not support Willis’s contention that the ALS extended
beyond his OVI sentencing. Rather, the record shows that the trial court properly notified
the Ohio Bureau of Motor Vehicles (“BMV”) that Willis had been sentenced on the OVI
charge, and it was then incumbent upon the BMV to terminate the ALS as of the date of
Willis’s sentencing. We agree.
{¶ 21} Ohio’s implied consent statute, R.C. 4511.191, authorizes immediate “on-
the-spot” suspensions of driving privileges at the time of an OVI arrest. State v.
9.
Gustafson, 76 Ohio St.3d 425, 431, 668 N.E.2d 435 (1996). Acting on behalf of the
BMV, an arresting officer must impose an ALS on a motorist who either “(1) refuses,
upon the officer’s request, to perform a chemical test to determine blood, breath or urine
alcohol content, or (2) takes the test, but ‘fails’ it, i.e., registers a blood, breath or urine
alcohol content exceeding statutory limits.” Id. The duration of the ALS ranges from 90
days (for a first-time offender who “fails” a chemical test) to five years (for an offender
who refuses testing and who has refused testing on more than three occasions in the
preceding ten years). R.C. 4511.191(B), (C).
{¶ 22} An ALS and an OVI prosecution that arise from the same arrest are
considered separate proceedings for double jeopardy purposes. Gustafson at paragraph
two of the syllabus. Although an ALS is initially a remedial measure, it becomes
punitive in nature upon the defendant’s conviction and sentencing for an OVI offense.
Id. at paragraph three of the syllabus. Thus, maintaining an ALS after an OVI conviction
violates the Double Jeopardy Clauses of the Fifth Amendment to the United States
Constitution and Article I, Section 10 of the Ohio Constitution. Id. at paragraph four of
the syllabus. Accordingly, the trial court has the judicial power to order termination of an
ALS at the time of a defendant’s OVI sentencing. Id. at paragraph five of the syllabus.
The BMV is required to terminate the ALS upon notification from the trial court of the
defendant’s conviction. R.C. 4511.191(B)(2).
{¶ 23} Here, Willis refused the blood alcohol test. His blood was eventually
drawn pursuant to a warrant, and the test results showed a prohibited amount of alcohol.
Accordingly, under R.C. 4511.191(B)(1) Willis received an ALS as of the time of his
10.
OVI arrest on December 12, 2016. On September 27, 2016, the trial court sentenced
Willis on the OVI charge, suspended his driver’s license for six months, and sent a report
of Willis’s conviction to the BMV. Under R.C. 4511.191(B)(2), the BMV was required
to terminate the ALS upon receipt of that notice from the trial court.
{¶ 24} There is no evidence in the record that the BMV failed to terminate the
ALS as required by statute. Rather, Willis seems to argue that the trial court erred by
failing to include a statement in its judgment entry that the ALS was terminated. He does
not cite to any authority to support this proposition, nor did we find any. Because the
record shows that the trial court properly reported Willis’s OVI conviction to the BMV,
Willis’s third assignment of error is not well-taken.
D. Plea Hearing
{¶ 25} Finally, we note that in Willis’s reply brief he argues for the first time that
his guilty plea was not knowing and voluntary because the trial court did not comply with
Crim.R. 11 before accepting his plea.
{¶ 26} Under App.R. 12(A)(1)(b), an appellate court must determine an appeal
based on the assignments of error set forth in the briefs. State v. Roberson, 6th Dist.
Lucas No. L-16-1131, 2017-Ohio-4339, ¶ 103. An appellate court rules on assignments
of error only, and cannot address mere arguments. Id. Accordingly, given that Willis did
not assign as error the trial court’s purported failure to comply with Crim.R. 11, we will
not address this issue.
III. Conclusion
11.
{¶ 27} For the foregoing reasons, the September 27, 2016 judgment of the Wood
County Court of Common Pleas is affirmed. Willis is ordered to pay the costs of this
appeal pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
Christine E. Mayle, J. JUDGE
CONCUR.
_______________________________
JUDGE
12.