[Cite as State v. Willis,

.]

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,

, 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,

.

{¶ 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,

,

,

(1984). “Judicial scrutiny of counsel’s performance must be highly deferential.” State v.

Bradley,

,

(1989), quoting

.

{¶ 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,

,

,

, citing

.

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

5. counsel’s errors, he would not have pleaded guilty and would have insisted on going to

trial.’” State v. Ketterer,

,

,

, ¶ 89,

quoting Hill v. Lockhart,

,

,

(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.”

. 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. ___,

,

(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.”

. 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.”

.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.”

. 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.

. 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.

;

; 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,

,

,

(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.

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,

, ¶ 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,

,

(1985), quoting Strickland,

,

,

. “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,

. 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,

, ¶ 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.”

.

{¶ 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,

,

(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,

,

(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.”

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.

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.

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.

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,

. An appellate court rules on assignments

of error only, and cannot address mere arguments.

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.