State v. Sloan

[Cite as State v. Sloan, 2022-Ohio-1930.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
LAWRENCE COUNTY
STATE OF OHIO, :
Plaintiff-Appellee, : CASE NO. 20CA06
v. :
MARCUS SLOAN, : DECISION AND JUDGMENT ENTRY
Defendant-Appellant. :
_________________________________________________________________
APPEARANCES:
Brian M. Cremeans, Ironton, Ohio, for appellant.1
Brigham M. Anderson, Lawrence County Prosecuting Attorney, Ironton,
Ohio, for appellee.2
___________________________________________________________________
CRIMINAL APPEAL FROM COMMON PLEAS COURT
DATE JOURNALIZED:5-31-22
ABELE, J.
{¶1} This is an appeal from a Lawrence County Common Pleas
Court judgment of conviction and sentence. Marcus Sloan, defendant
below and appellant herein, pleaded guilty to one count of
receiving stolen property, one count of improperly handling a
1
Different counsel represented appellant during the trial
court proceedings.
2
Appellee did not file a brief or enter an appearance in this
appeal. Pursuant to App.R. 18(C), as a consequence of the failure
of an appellee to file a brief, an appellate court may accept the
appellant’s statement of facts and issues as correct and reverse
the trial court’s judgment.
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firearm in a motor vehicle and one count of obstructing justice.
Appellant assigns two errors for review:
FIRST ASSIGNMENT OF ERROR:
“APPELLANT MARCUS SLOAN RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY FAILED
TO OBJECT AND PROCEEDED TO GO FORWARD WITH THE
BURDEN OF PROOF THAT IS CLEARLY DESIGNATED TO
THE STATE OF OHIO IN SUPPRESSION HEARINGS.”
SECOND ASSIGNMENT OF ERROR:
“APPELLANT MARCUS SLOAN RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL WHEN HIS ATTORNEY ALLOWED
HIM TO ENTER A PLEA OF GUILTY, INSTEAD OF A NO
CONTEST PLEA, TO THE CHARGES, WHEN HIS ATTORNEY
HAD SPOKEN WITH THE APPELLANT AND APPELLANT HAD
INDICATED HIS INTENT TO APPEAL THE TRIAL
COURT’S RULING ON THE MOTION TO SUPPRESS.”
{¶2} On February 27, 2019, in Case Number 19CR73 a Lawrence
County Grand Jury returned an indictment that charged appellant
with one count of receiving stolen property in violation of R.C.
2913.51(A)(C) and one count of improper handling of a firearm in a
motor vehicle in violation of R.C. 2923.16(B), both fourth-degree
felonies. On December 17, 2019, in Case Number 19CR510 a Lawrence
County Grand Jury returned an indictment that charged appellant
with one count of obstructing justice in violation of R.C.
2921.32(A)(2)(4)(5), a third-degree felony.
{¶3} Appellant filed a motion to suppress evidence in both
cases and challenged the basis for the traffic stop. At the
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suppression hearing, Ohio State Highway Patrol Trooper Bransen Barr
testified that on January 25, 2019, he assisted a drug interdiction
effort and observed appellant make an exaggerated left turn that
constituted a marked lane violation. Barr then followed appellant
and noticed “a couple other * * * lane violations.” Barr
subsequently stopped appellant’s vehicle.
{¶4} After extensive testimony and Trooper Barr’s dashcam
video, the trial court denied appellant’s motion to suppress. The
court concluded that two marked lane violations occurred, and one
violated the “wide turn statute,” R.C. 4511.36(A)(2). The court
further concluded that probable cause justified the stop based on
appellant’s failure to square into the turn in violation of R.C.
4511.36 and State v. Petty, 2019-Ohio-4241, 134 N.E.3d 222 (4th
Dist.).
{¶5} On March 11, 2020, appellant agreed to plead guilty to
receiving stolen property, improperly handling a firearm in a motor
vehicle, and obstructing justice. At the change of plea hearing,
the trial court noted that the state, defense counsel and appellant
negotiated the plea, including the recommended sentence. The court
further asked appellant if he understood that a guilty plea waived
his right to a jury trial, right not to testify against himself,
right to confront witnesses, right to compulsory process, and right
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to require the state to prove his guilt beyond a reasonable doubt.
Appellant responded affirmatively. The court then reviewed the
maximum penalties and informed appellant that (1) the third-degree
felony is subject to a 36-month prison term and a $10,000 fine, and
(2) fourth-degree felonies are subject to an 18-month prison term
and a $5,000 fine. The court also addressed post-release control.
{¶6} Consequently, in Case No. 19CR73 the trial court
sentenced appellant to serve (1) 18 months in prison on the
receiving stolen property charge, (2) 18 months in prison on the
improper handling of a firearm in a motor vehicle charge, to be
served concurrently, and (3) a three-year post-release control
term. The court further ordered appellant to pay costs and return
the firearm to its rightful owner. In 19CR10, the trial court
sentenced appellant to serve (1) three-years in prison,
concurrently with the sentence in 19CR73 [for a total three-year
term], and (2) a three year post-release control term. The court
further ordered appellant to pay costs. Important to note,
however, is that during the trial court’s exchange with the
parties, appellant’s counsel indicated that “even though this is a
negotiated plea, we do * * * wish to pursue some appellate issues.”
This appeal followed.
{¶7} For ease of discussion, we first address appellant’s
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second assignment of error. Appellant contends that he received
ineffective assistance of counsel when his attorney allowed him to
enter a guilty plea when counsel and the court had become aware
that appellant indicated his desire to appeal the trial court’s
ruling on his motion to suppress evidence. The Sixth Amendment to
the United States Constitution, and Article I, Section 10 of the
Ohio Constitution, provide that defendants in all criminal
proceedings shall have the assistance of counsel for their defense.
The United States Supreme Court has generally interpreted this
provision to mean that a criminal defendant is entitled to the
“reasonably effective assistance” of counsel. Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
To establish an ineffective assistance of counsel claim, a
defendant must show (1) counsel's deficient performance, and (2)
the deficient performance prejudiced the defense and deprived the
defendant of a fair trial. Id. at 687. Courts need not analyze
both Strickland test prongs if a claim can be resolved under one
prong. See State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d
52 (2000).
{¶8} “ ‘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
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unconstitutional under both the United States Constitution and the
Ohio Constitution.’ ” State v. Veney, 120 Ohio St.3d 176, 2008-
Ohio-5200, 897 N.E.2d 621, ¶ 7, quoting State v. Engle, 74 Ohio
St.3d 525, 527, 660 N.E.2d 450 (1996); accord State v. Montgomery,
148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶ 40; State v.
Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, 953 N.E.2d 826, ¶ 9.
“It is the trial court's duty, therefore, to ensure that a
defendant ‘has a full understanding of what the plea connotes and
of its consequence.’ ” Montgomery at ¶ 40, quoting Boykin v.
Alabama, 395 U.S. 238, 244, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969);
State v. Conley, 4th Dist. Adams No. 19CA1091, 2019-Ohio-4172, ¶
34; State v. Lindsey, 4th Dist. Washington Nos. 20CA26, 20CA27,
20CA28, & 20CA29, 2021-Ohio-2613, ¶ 10. “In determining whether a
guilty * * * plea was entered knowingly, intelligently, and
voluntarily, an appellate court examines the totality of the
circumstances through a de novo review of the record to ensure that
the trial court complied with constitutional and procedural
safeguards.” State v. Willison, 4th Dist. Athens No. 18CA18, 2019-
Ohio-220, ¶ 11.
{¶9} In general, a guilty plea is a complete admission of a
defendant’s guilt. Crim. R. 11(B)(1); State v. Shafer, 4th Dist.
Adams No. 17CA1047, 2018-Ohio-214, ¶ 21; State v. Lask, 4th Dist.
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Adams No. 18CA1081, 2019-Ohio-2753, ¶ 10. Thus, when a defendant
voluntarily, knowingly, and intelligently enters a guilty plea with
the assistance of counsel, the defendant “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. Obermiller, 147 Ohio St.3d 175, 2016-Ohio-1594, 63 N.E.3d 98, ¶
44. In accordance with the foregoing, this court has held that a
defendant’s guilty plea waives the right to appeal the denial of a
motion to suppress evidence. State v. Woods, 4th Dist. Lawrence
No. 18CA10, 2018-Ohio-5460, ¶ 12-14; State v. Spangler, 4th Dist.
Lawrence No. 16CA1, 2016-Ohio-8583, ¶ 17; State v. Johnson, 4th
Dist. Hocking No. 14CA16, 2015-Ohio-854, ¶ 4-6; Lask at ¶ 11. See
also State v. Beasley, 152 Ohio St.3d 470, 2018-Ohio-16, 97 N.E.3d
474, ¶ 15 (A “valid guilty plea by a counseled defendant, however,
generally waives the right to appeal all prior nonjurisdictional
defects, including the denial of a motion to suppress”). However,
because a no contest plea does not preclude a defendant from
appealing a trial court’s ruling on a pretrial motion, see Crim.R.
12(I), and because in the case sub judice appellant expressed his
desire to appeal the denial of his suppression motion, appellant
contends that trial counsel should have instructed appellant to
enter a no contest plea rather than a guilty plea. We agree.
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{¶10} In State v. Lask, supra, this court held that a defendant
did not enter a knowing and intelligent guilty plea because the
defendant received incorrect information about his right to appeal
the trial court’s decision on a motion to suppress. Lask at ¶ 2.
“Ohio courts, including the Supreme Court of Ohio, ‘have held that
a plea is not entered knowingly and intelligently where it is
premised on the mistaken impression that a trial court’s decision
is appealable.’ ” Id. at ¶ 9 State v. Felts, 4th Dist. Ross No.
13CA3407, 2014-Ohio-2378, ¶ 19 (plea predicated on erroneous belief
could appeal trial court’s denial of motion in limine), citing
Engle, 74 Ohio St.3d at 527-528, 660 N.E.2d 450; Buggs at ¶ 10;
State v. Brown, 9th Dist. Summit No. 25103, 2010-Ohio-3387, ¶ 8,
and State v. Lewis, 164 Ohio App.3d 318, 2005-Ohio-5921, 842 N.E.2d
113, ¶ 10 (10th Dist.).
{¶11} Recently, in State v. Buggs, 4th Dist. Scioto No.
20CA3913, 2021-Ohio-39, the record showed that the defendant
believed he could plead guilty and appeal speedy trial issues.
This Court concluded, “Buggs entered a guilty plea rather than a no
contest plea, so contrary to the statements of the trial court and
the intent of Buggs, he forfeited his right to appeal the denial of
his motion for discharge on speedy trial grounds.” Id. at ¶ 9.
{¶12} Like the defendants in Lask and Buggs, appellant in the
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case sub judice entered his guilty plea with the belief that he
could nevertheless pursue an appeal. The sentencing hearing
transcript reveals:
COURT: You have the right to appeal this decision. * * *
So, at this time, I’m gonna ask that you consult with
[defense counsel] and he will let the Court know if you
wish to exercise your right of appeal in this case.
DEFENSE: Your Honor, uh, I’ve already talked to my client,
we would wish to uh, even though this is a negotiated plea,
uh, we do wish to pursue some appellate issues.
Because appellant did desire to appeal the trial court’s
denial of his suppression motion, appellant should have entered a
no contest plea rather than a guilty plea. Thus, as in Lask and
Buggs, we conclude that appellant did not knowingly or
intelligently enter his guilty plea.
{¶13} Therefore, based upon the foregoing reasons, we sustain
appellant’s assignment of error, reverse the trial court’s judgment
and remand this matter to allow appellant to withdraw his guilty
plea. The court may conduct further proceedings consistent with
this opinion. Because this decision renders moot the remaining
assignment of error, we will not address it. App.R. 12(A)(1)(c).
Furthermore, our ruling should not be considered in any manner
whatsoever as a comment on the merits of the underlying motion to
suppress evidence.
JUDGMENT REVERSED AND THIS CAUSE
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REMANDED FOR PROCEEDINGS
CONSISTENT WITH THIS OPINION.
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JUDGMENT ENTRY
It is ordered that the judgment be reversed and this cause
remanded for further proceedings consistent with this opinion.
Appellant shall recover of appellee 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 Lawrence County Common Pleas Court to carry this
judgment into execution.
If a stay of execution of sentence and release upon bail has
been previously granted by the trial court or this court, it is
temporarily continued for a period not to exceed 60 days upon the
bail previously posted. The purpose of a continued stay is to
allow appellant to file with the Supreme Court of Ohio an
application for a stay during the pendency of the proceedings in
that court. If a stay is continued by this entry, it will
terminate at the earlier of the expiration of the 60-day period, or
the failure of the appellant to file a notice of appeal with the
Supreme Court of Ohio in the 45-day appeal period pursuant to Rule
II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio.
Additionally, if the Supreme Court of Ohio dismisses the appeal
prior to expiration of 60 days, the stay will terminate as of the
date of such dismissal.
A certified copy of this entry shall constitute that mandate
pursuant to Rule 27 of the Rules of Appellate Procedure.
Smith, P.J. & Hess, J.: Concur in Judgment & Opinion
For the Court
BY:_____________________________
Peter B. Abele, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a
final judgment entry and the time period for further appeal
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commences from the date of filing with the clerk.