Statev.Talbert

COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTYApr 23, 2015
Case No. 14CA11 (Ohio Ct. App. 2015)
Case No. 14CA112015 Ohio 1964

Case No. 14CA11

04-23-2015

STATE OF OHIO, Plaintiff-Appellee, v. TAWANNA L. TALBERT, Defendant-Appellant.

APPEARANCES: COUNSEL FOR APPELLANT: Gene Meadows, 538 Sixth Street, Portsmouth, Ohio 45662


DECISION AND JUDGMENT ENTRY APPEARANCES: COUNSEL FOR APPELLANT: Gene Meadows, 538 Sixth Street, Portsmouth, Ohio 45662 CRIMINAL APPEAL FROM COMMON PLEAS COURT
ABELE, J.


Different counsel represented appellant during the trial court proceedings. Neither the State nor appellant pro se entered an appearance in this appeal.

{¶ 1} Tawanna L. Talbert, defendant below and appellant herein, appeals from Lawrence County Common Pleas Court judgments of conviction and sentence for (1) three counts of complicity to commit burglary in violation of R.C. 2923.03 and R.C. 2911.12(A)(1), and (2) burglary in violation of R.C. 2911.12(A)(1).

{¶ 2} Appellant's counsel has advised us that he has reviewed the record and can discern the existence of no meritorious issue to pursue on appeal. Thus, pursuant to Anders v. California (1967), 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, counsel requests, and we hereby grant, leave to withdraw. Counsel does, however, suggest that the following "potential" assignment of error may warrant review:

"THE DEFENDANT-APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF HER SIXTH AMENDMENT CONSTITUTIONAL RIGHT BY NOT BEING ADVISED TO ENTER A NOT [sic] CONTEST PLEA."


{¶ 3}
On July 21, 2013, the Lawrence County Grand Jury returned an indictment that charged appellant with the above mentioned offenses. She initially pled not guilty, but later pled guilty. The trial court accepted her new pleas and found her guilty of those offenses. On March 10, 2014, the trial court sentenced appellant to serve a cumulative total of twelve years in prison. This appeal followed.

{¶ 4} Counsel posits a potential assignment of error that appellant received ineffective assistance from trial counsel because counsel should have advised appellant to plead no contest, rather than guilty, to "preserve the . . . right to appeal the decision of the trial court."

{¶ 5} It is well-settled that defendants have a right to counsel, which includes a right to the effective assistance from counsel. McCann v. Richardson, 397 U.S. 759, 770, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970); State v. Lytle 4th Dist. Ross App. No. 96CA2182, 1997 WL 118069 (Mar. 10, 1997). To establish constitutionally ineffective assistance of counsel, a defendant must show that (1) counsel's performance was deficient, and (2) such deficient performance prejudiced the defense and deprived the defendant of a fair trial. Strickland v. Washington 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); also see State v. Issa, 93 Ohio St.3d 49, 67, 752 N.E.2d 904 (2001). Both prongs of the Strickland test need not be analyzed, however, if the claim of ineffective assistance can be resolved under one. State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000). To establish the latter element, i.e. the existence of prejudice, a defendant must show that a reasonable probability exists that, but for counsel's alleged error, the result of the trial would have been different. State v. White, 82 Ohio St.3d 16, 23, 693 N.E.2d 772 (1998); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373, at paragraph three of the syllabus (1989).

{¶ 6} Appellate counsel suggests that trial counsel should have advised appellant to plead "no contest" to preserve the right to appeal the trial court's decision. Although counsel does not specify the particular trial court decision to which he refers, we presume he intends the decision that overruled a motion to suppress evidence. However, even if we assume, arguendo, that trial counsel erred by so advising his client, the error does not rise to a level of constitutionally ineffective assistance without a showing of prejudice. In the case sub judice, this requires appellant to show that the trial court's decision on her motion to suppress would have been overturned on appeal. Appellate counsel, however, does not make this argument and, even if he had, we are not persuaded of its efficacy. The suppression hearing transcript shows that trial counsel agreed to limit the motion to "constitutionality of the statement taken by law enforcement of the defendant." Lawrence County Sheriff's Department Detective Aaron Bollinger testified that before he began to interview appellant, he "advised her [of her] Miranda Rights and obtained a signed waiver of rights form." Later during the hearing, the witness confirmed that he did not question appellant prior to advising her of "Miranda warnings." The defense did not present evidence in rebuttal.

{¶ 7} In ruling on a motion to suppress evidence, a trial court assumes the role of trier of fact and resolves factual questions, as well as evaluates witness credibility. State v. Cutright, 4th Dist. Ross No. 14CA3442, 2015-Ohio-374, at ¶11; State v. Roar, Pike No. 13CA842, 2014-Ohio-5214, at ¶9. Here, the trial court apparently found Detective Bollinger's uncontroverted testimony to be credible, and we should not second-guess on appeal the trial court's resolution of factual issues.

{¶ 8} Thus, assuming that appellate counsel refers to an appeal of the trial court's "decision" on the motion to suppress, we are not persuaded the result would have been otherwise had the decision been preserved for appeal. Consequently, appellant did not demonstrate prejudice, and cannot establish constitutionally ineffective assistance of trial counsel, again assuming that counsel actually erred in the first place.

{¶ 9} We also note that although no recitation of a plea agreement appears in the record, during the March 5, 2014 sentencing hearing defense counsel mentioned that, in consideration of appellant's cooperation, the State "agreed not to oppose judicial release after eight years." It may well be that counsel advised appellant to enter a guilty plea in exchange for such a guarantee, rather than risk the State's guarantee if his client chose to plead no contest. This matter falls within the purview of a trial counsel's strategic decision during the course of representation. Generally, appellate courts do not second-guess those decisions when raised on ineffective assistance of counsel claims. See State v. Waters, 4th Dist. Vinton No. 13CA693, 2014-Ohio-3109, at ¶21; State v. Knauff, 4th Dist. Adams No. 13CA976, 2014-Ohio-308, at ¶25; State v. Betts, 4th Dist. Pickaway No. 03CA25, 2005-Ohio-2913, at ¶15.

{¶ 10} Our task under Anders is to determine whether any nonfrivolous issues exist for appeal. State v. Christian, 11th Dist. Trumbull No. 2013-T-0055, 2014-Ohio-4882, at ¶9; State v. Eggers, 2nd Dist. Clarke No. 11CA48, 2012-Ohio-2967, at ¶13; In re Unrue, 113 Ohio App.3d 844, 846-847, 682 N.E.2d 686 (Stephenson, J. Concurring). Having considered the potential error that appellate counsel assigned, and after we conducted our own review, we find no meritorious or nonfrivolous issues in this case. Accordingly, we hereby affirm the trial court's judgment.

JUDGMENT AFFIRMED.

JUDGMENT ENTRY

It is ordered that the judgment be affirmed and appellee to recover of appellant 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, it is continued for a period of sixty days upon the bail previously posted. The purpose of said stay is to allow appellant to file with the Ohio Supreme Court an application for a stay during the pendency of the proceedings in that court. The stay as herein continued will terminate at the expiration of the sixty day period.

The stay will also terminate if appellant fails to file a notice of appeal with the Ohio Supreme Court in the forty-five day period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Ohio Supreme Court. Additionally, if the Ohio Supreme Court dismisses the appeal prior to the expiration of said sixty 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.

Hoover, P.J. & McFarland, A.J.: Concur in Judgment & Opinion

For the Court

BY:/s/_________


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 commences from the date of filing with the clerk.