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Date: 12-04-2020

Case Style:

STATE OF OHIO v. MARCUS P. MILLER, JR

Case Number: 5-20-15

Judge: John R. Willamowski

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

Plaintiff's Attorney: Steven M. Powell

Defendant's Attorney:


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Lima, OH - Criminal defense lawyer represented defendant Marcus P. Miller, Jr. with appealing 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.




{¶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
Case No. 5-20-15
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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.
Case No. 5-20-15
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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, 2016-Ohio-7172, ¶ 9.
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.
Case No. 5-20-15
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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, 2002-Ohio-6146, ¶ 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
Case No. 5-20-15
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withdraw a plea prior to sentencing.” State v. Xie, 62 Ohio St.3d 521, 527, 584
N.E.2d 715, 719 (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), 141 Ohio App.3d 551, 554, 752 N.E.2d 310 [7th
Dist.].
State v. Lane, 3d Dist. Allen No. 1-10-10, 2010-Ohio-4819, ¶ 21. “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-Ohio720, ¶ 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, 2017-Ohio-8937, [102 N.E.3d 86], ¶ 20 (3d Dist.). Rather, an abuse of
Case No. 5-20-15
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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, 2017-Ohio-4349, ¶ 23.
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, 2017-Ohio-792, 85
N.E.3d 1108, ¶ 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.” Id.
{¶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. Id. 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.
Case No. 5-20-15
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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 Lane, supra, at ¶ 21.
{¶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. Id. 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
Case No. 5-20-15
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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
Case No. 5-20-15
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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, 2020-Ohio-329, ¶ 57, quoting State v. Gee, 3d Dist. Putnam No. 12-92-9, 1993
WL 270995 (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, 2018-Ohio-899, ¶ 42. “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, 2018-Ohio-3618, ¶ 24, quoting Strickland v. Washington, 466 U.S.
668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (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.”
Case No. 5-20-15
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Howton, supra, at ¶ 35, quoting Strickland at 687. Generally, “[a] claim of
ineffective assistance of counsel is waived by a guilty plea * * *.” State v. Pettaway,
3d Dist. Seneca No. 13-14-20, 2015-Ohio-226, ¶ 12. 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.” Id.
{¶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, 2017-Ohio-2916, ¶
36, quoting State v. Bibbs, 2016-Ohio-8396, 78 N.E.3d 343, ¶ 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, 2008-Ohio-4649, ¶ 28. 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, 2018-Ohio-3431, ¶ 19, citing State v. Walker, 2016-Ohio3499, 66 N.E.3d 349, ¶ 20 (3d Dist.).
{¶24} As a general matter, the representation of a defendant “carries with it
a burden to investigate.” State v. Bradley, 42 Ohio St.3d 136, 146, 538 N.E.2d 373,
383 (1989).
Case No. 5-20-15
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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.
Id. (examining a situation in which the appellant alleged defense counsel was
ineffective for failing to interview the State’s witnesses), quoting Strickland, supra,
at 466. See also State v. Hartman, 2016-Ohio-2883, 64 N.E.3d 519, ¶ 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, 1994 WL
580218, *1 (Oct. 24, 1994).
Case No. 5-20-15
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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
Bradley, supra, at 146. 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

Outcome: 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.

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