[Cite as State v. Miller,

.]

IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT HANCOCK COUNTY

STATE OF OHIO, CASE NO. 5-20-15 PLAINTIFF-APPELLEE,

v.

MARCUS P. MILLER, JR., OPINION

DEFENDANT-APPELLANT.

Appeal from Hancock County Common Pleas Court Trial Court No. 2019 CR 280

Judgment Affirmed

Date of Decision: November 23, 2020

APPEARANCES:

Michael H. Stahl for Appellant

Steven M. Powell for Appellee Case No. 5-20-15

WILLAMOWSKI, J.

{¶1} Defendant-appellant Marcus P. Miller, Jr. (“Miller”) appeals the

judgment of the Hancock County Court of Common Pleas, alleging (1) that the trial

court erred by denying his motion to withdraw his guilty plea and (2) that he was

denied his right to the effective assistance of counsel. For the reasons set forth

below, the judgment of the trial court is affirmed.

Facts and Procedural History

{¶2} On October 22, 2018, a confidential informant made arrangements to

purchase methamphetamines from Mike Campbell (“Campbell”) as part of a

controlled buy operation that was undertaken in coordination with the police. PSI.

The controlled buy was set to occur in the parking lot of a local Family Dollar. PSI.

At 1:45 P.M., the confidential informant went to the Family Dollar parking lot and

entered into a vehicle where Campbell and Miller were waiting for him. PSI. In

exchange for $200.00, the confidential informant received a 3.61-gram compound

that contained methamphetamines. PSI. On June 25, 2019, Miller was indicted on

one count of aggravated trafficking in drugs in violation of R.C. 2925.03(A). Doc.

1. This was a felony of the third degree. Doc. 3. On July 12, 2019, Miller pled not

guilty to this charge. Doc. 7.

{¶3} On January 6, 2020, Miller appeared before the trial court at a change

of plea hearing. January 6 Tr. 3. Miller withdrew his prior plea of not guilty. Doc.

51. He then pled guilty to the amended charge of one count of attempted aggravated

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trafficking in drugs in violation of R.C. 2925.03(A), 2923.02(A). Doc. 51. This

was a felony of the fourth degree. Doc. 51. The trial court accepted Miller’s guilty

plea. Doc. 60. Miller was then released on bond. February 13 Tr. 3. At that time,

Miller told the bond officer that he intended to withdraw his guilty plea and

indicated that he had only pled guilty so that he could get released on bond. Id. at

8. The bond officer noted this in the bond log. Id. at 7.

{¶4} On February 13, 2020, Miller appeared for his sentencing hearing and

made a verbal motion to withdraw his guilty plea. February 13 Tr. 6. Defense

counsel explained Miller’s reasons for wanting to withdraw his guilty pleas as

follows:

[I]n this alleged incident, there are allegedly three people inside a vehicle engaging in a drug transaction. One of the three people * * * has since deceased, possibly from an overdose on drugs. Then there is the person accused of this [Miller], and then there is a confidential informant. We have reason to believe that [the] confidential informant has been and will be less than cooperative with the State of Ohio.

February 13 Tr. 6. However, defense counsel further explained that

this [was] information that was made available to us before the plea. We advised the State of Ohio of such. And that was, I think, one of the reasons for evidentiary concerns for the plea deal to be engaged in, reducing the felony three to a felony four, significantly minimizing my client’s exposure to a maximum penalty of 36 months, to now a potential 18 months in prison, minus credit for any time he has served.

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Id. at 6-7. Defense counsel also indicated that Miller had pled guilty so that he could

be released on bond, seek out the confidential informant, and “verify whether the

confidential informant would testify against [him] * * *.” Id. at 13.

{¶5} The State noted that Miller had not filed a motion to withdraw his guilty

plea before his sentencing hearing. February 13 Tr. 8, 10. However, the State did

confirm the representations of the defense counsel regarding the plea negotiations,

saying that it was

correct that part of the plea negotiations, or reasons for the State’s offer had to do with an uncooperative confidential informant, another deceased potential witness, and other evidentiary concerns and factors. This was part of the give and take of the plea agreement, if you will, and part of a joint sentencing recommendation.

Id. at 9. The State further noted that the trial court had engaged in “a very extensive

Rule 11 colloquy” when Miller had pled guilty. Id. at 10. The State asserted that

“there [was] no lawful reason why this knowing, intelligent and voluntary plea * *

* should not proceed forward.” Id.

{¶6} After hearing the arguments of the parties, the trial court then evaluated

the circumstances of this case under the appropriate factors. February 13 Tr. 17-22,

citing State v. Ferdinandsen, 3d Dist. Hancock No. 5-16-08,

.

The trial court then denied Miller’s motion to withdraw his guilty plea and

proceeded to sentencing. Id. at 22. On February 25, 2020, the trial court issued its

judgment entry of sentencing. Doc. 67.

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{¶7} The appellant filed his notice of appeal on March 10, 2020. Doc. 73.

On appeal, Miller raises the following two assignments of error:

First Assignment of Error

The trial court’s decision to deny Mr. Miller’s motion to withdraw his plea was arbitrary, and as such was made in error.

Second Assignment of Error

Mr. Miller’s counsel provided ineffective assistance of counsel by failing to investigate the claims made by Mr. Miller and failing to request additional time within which to file a written motion to withdraw.

First Assignment of Error

{¶8} Miller argues that the trial court erred and abused its discretion in

denying his motion to withdraw his guilty plea.

Legal Standard

{¶9} “A motion to withdraw a guilty plea is governed by Crim.R. 32.1 * *

*.” State v. Bush, 3d Dist. Union No. 14-2000-44,

, ¶ 10. Under

Crim.R. 32.1,

A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.

Crim.R. 32.1. While “a presentence motion to withdraw a guilty plea should be

freely and liberally granted[,] * * * a defendant does not have an absolute right to

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withdraw a plea prior to sentencing.” State v. Xie,

,

(1992).

{¶10} “A trial court must conduct a hearing to determine whether there is a

reasonable and legitimate basis for the withdrawal of the plea.” Xie, paragraph one

of the syllabus.

Some of the factors that are weighed in considering the trial court’s decision on a presentence motion to withdraw a plea are as follows: (1) whether the state will be prejudiced by withdrawal; (2) the representation afforded to the defendant by counsel; (3) the extent of the Crim.R. 11 plea hearing; (4) the extent of the hearing on the motion to withdraw; (5) whether the trial court gave full and fair consideration to the motion; (6) whether the timing of the motion was reasonable; (7) the reasons for the motion; (8) whether the defendant understood the nature of the charges and potential sentences; and (9) whether the accused was perhaps not guilty or had a complete defense to the charge. State v. Griffin (2001),

,

[7th Dist.].

State v. Lane, 3d Dist. Allen No. 1-10-10,

. “None of the

factors is determinative on its own and there may be numerous additional aspects

‘weighed’ in each case.” State v. North, 3d Dist. Logan No. 8-14-18, 2015-Ohio-

720, ¶ 16.

{¶11} “The decision to grant or deny a motion to withdraw a guilty plea is

within the sound discretion of the trial and will not be disturbed on appeal, absent

an abuse of discretion.” State v. Peacock, 3d Dist. Seneca No. 13-13-42, 2014-

Ohio-1571, ¶ 26. An abuse of discretion is not merely an error of judgment. State

v. Sullivan,

, [

], ¶ 20 (3d Dist.). Rather, an abuse of

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discretion is present where the trial court’s decision was arbitrary, unreasonable, or

capricious. State v. Howton, 3d Dist. Allen No. 1-16-35,

.

When the abuse of discretion standard applies, an appellate court is not to substitute

its judgment for that of the trial court. State v. Thompson,

,

, ¶ 11 (3d Dist.).

Legal Analysis

{¶12} In this case, the trial court considered the circumstances of this case

under the nine factors that are to guide the determination of whether to grant or deny

a motion to withdraw a guilty plea. We will consider the trial court’s findings under

each of these factors. First, as to whether the State would be prejudiced, the trial

court determined that the impact on the State would be negligible. February 13 Tr.

18. The trial court pointed to the fact that the prosecution “still had issues about

whether the CI would testify.”

{¶13} Second, as to the defendant’s representation by counsel, the trial court

noted that Miller had “not indicated * * * that he believe[d defense counsel’s]

representation [was] ineffective, subpar, inadequate in any way.” February 13 Tr.

18. The trial court further found that defense counsel was “competent” in his

practice.

Third, as to the extent of the Crim.R. 11 plea hearing, the record

indicates that the trial court conducted a thorough Crim.R. 11 colloquy before

accepting Miller’s guilty plea. Id. at 19. See January 6 Tr. 17-48.

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{¶14} Fourth, as to the extent of the hearing on the motion to withdraw the

guilty plea, the trial court offered both the State and the Defense “the opportunity to

present any additional evidence or argument” on the matter of withdrawing the plea.

February 13 Tr. 19. However, “the Defendant, the defense counsel, State * * * all

indicated that they had no additional information to present to the Court.” Id. at 20.

Fifth, the record indicates that the trial court gave adequate consideration to this

motion to withdraw. The trial court heard the statements and arguments of defense

counsel and the prosecutor. Id. at 8, 12, 14. Further, the trial court considered the

circumstances of this case under each of the nine applicable factors. Id. at 17-22.

See

.

{¶15} Sixth, the trial court determined that the timing of the motion was

“unreasonable.” February 13 Tr. 20. While Miller told the bond officer that he was

going to withdraw his guilty plea upon his release from jail, he did not inform

defense counsel of this intention or ask his attorney to file a motion to withdraw his

guilty plea with the trial court.

Further, the motion to withdraw was made orally

at the sentencing hearing. Id. at 8. No motion was filed with the trial court prior to

the sentencing hearing.

{¶16} Seventh, the basis of the motion to withdraw was the fact that the

confidential informant may not cooperate as a witness for the State. February 13

Tr. 21. However, the trial court noted that the State and the Defense were aware of

this fact before the plea agreement was entered. Id. at 6, 9. Defense counsel and

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the prosecutor indicated that the lack of cooperation from the confidential informant

influenced the plea negotiations and was a reason that Miller received a reduced

charge in exchange for pleading guilty. Id.

{¶17} Eighth, the trial court determined that Miller understood the nature of

the charges and the potential sentences. February 13 Tr. 21. During the Crim.R. 11

colloquy at the change of plea hearing, the trial court gave an extensive explanation

of the charges against Miller and the potential penalties that he could receive.

January 6 Tr. 15, 22-25, 27-40. In response, Miller stated that he had reviewed the

various options before him with his attorney and understood the matters discussed

during the colloquy. Id. at 21, 46.

{¶18} Ninth, no additional information that tended to establish a potential

complete defense or show that Miller was not guilty was presented at the hearing on

this motion. February 13 Tr. 21. The fact that the confidential informant was not

fully complying with the prosecution could potentially pose issues for the State if

this case were to proceed to trial. However, the lack of cooperation from the

confidential informant is not a complete defense to the charge and is not, in and of

itself, an indication that Miller is not guilty of the charged offense. Id. at 21.

{¶19} Having considered the circumstances of this case under the nine

applicable factors, the trial court concluded that Miller did not have a reasonable

and legitimate basis for withdrawing his guilty plea. After reviewing the evidence

in the record, we do not find any indication that the trial court abused its discretion

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in reaching this determination and in denying Miller’s motion to withdraw his guilty

plea. Thus, Miller’s first assignment of error is overruled.

Second Assignment of Error

{¶20} Miller argues that he was denied his right to the effective assistance of

counsel because his defense counsel failed to fully investigate whether the

confidential informant was willing to cooperate with the State as a witness.

Legal Standard

{¶21} “Under Ohio law, ‘a properly licensed attorney is presumed to carry

out his duties in a competent manner.’” State v. Harvey, 3d Dist. Marion No. 9-19-

34,

, quoting State v. Gee, 3d Dist. Putnam No. 12-92-9,

(July 22, 1993). For this reason, the appellant has the burden of proving

that he or she was denied the right to the effective assistance of counsel. State v.

Brown, 3d Dist. Hancock No. 5-17-19,

. “In order to prove an

ineffective assistance of counsel claim, the appellant must carry the burden of

establishing (1) that his or her counsel’s performance was deficient and (2) that this

deficient performance prejudiced the defendant.” State v. McWay, 3d Dist. Allen

No. 1-17-42,

, quoting Strickland v. Washington,

,

,

(1984).

{¶22} In order to establish deficient performance, the appellant must

demonstrate that trial “counsel made errors so serious that counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment.”

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, quoting

. Generally, “[a] claim of

ineffective assistance of counsel is waived by a guilty plea * * *.” State v. Pettaway,

3d Dist. Seneca No. 13-14-20,

. However, an ineffective

assistance of counsel claim may still exist if the alleged deficient performance

“resulted in * * * [the appellant’s] plea not being voluntary or intelligent.”

{¶23} In order to establish prejudice, “the defendant must show a reasonable

probability that, but for counsel’s errors, the result of the proceeding would have

been different.” State v. Davis, 3d Dist. Seneca No. 13-16-30,

, quoting State v. Bibbs,

,

, ¶ 13 (3d Dist.). Thus,

“[t]o establish prejudice when ineffective assistance of counsel relates to a guilty

plea, a defendant must show there is a reasonable probability that but for counsel’s

deficient or unreasonable performance the defendant would not have pled guilty.

State v. Brown, 3d Dist. Union No. 14-08-11,

. If the appellant

does not establish one of these two prongs, the appellate court does not need to

consider the facts of the case under the other prong of the test. State v. Baker, 3d

Dist. Allen No. 1-17-61,

, citing State v. Walker, 2016-Ohio-

3499,

, ¶ 20 (3d Dist.).

{¶24} As a general matter, the representation of a defendant “carries with it

a burden to investigate.” State v. Bradley,

,

(1989).

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[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.

(examining a situation in which the appellant alleged defense counsel was

ineffective for failing to interview the State’s witnesses), quoting

. See also State v. Hartman,

,

, ¶ 54 (2d Dist.)

(holding “that defense counsel has an obligation to conduct a reasonable pre-trial

investigation sufficient to develop appropriate defense strategies.”).

Legal Analysis

{¶25} In this case, the record indicates that Miller’s defense counsel was

aware of the issues that the State was having with the confidential informant as a

witness. February 13 Tr. 6-7. Further, according to both parties, the issues the State

was having with the confidential informant factored into the plea negotiations and

were part of the reason Miller was able to secure a reduction of the charge against

him in exchange for pleading guilty. Id. at 6-7, 9. Given that defense counsel

already knew about the issues that the State was having with this confidential

informant, Miller has not explained the value of any further investigation into this

matter or how this alleged failure to investigate further was objectively

unreasonable. See State v. Hercutt, 12th Dist. Butler No. CA94-05-108,

, *1 (Oct. 24, 1994).

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{¶26} After examining the materials in the record, we conclude that Miller

has not established that his defense counsel’s performance was deficient. See

. Further, Miller also did not establish that he would not have

pled guilty if his defense counsel had engaged in further investigation of this matter.

Thus, he has not carried the burden of proving that he was denied his right to the

effective assistance of counsel. Miller’s second assignment of error is overruled.

Conclusion

{¶27} Having found no error prejudicial to the appellant in the particulars

assigned and argued, the judgment of the Hancock County Court of Common Pleas

is affirmed.

Judgment Affirmed

SHAW P.J. and ZIMMERMAN J., concur.

/hls

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