[Cite as State v. Collins, 2017-Ohio-4371.]



                                      IN THE COURT OF APPEALS

                            TWELFTH APPELLATE DISTRICT OF OHIO

                                              PREBLE COUNTY




STATE OF OHIO,                                      :
                                                          CASE NO. CA2016-09-009
        Plaintiff-Appellee,                         :
                                                                OPINION
                                                    :            6/19/2017
    - vs -
                                                    :

ARNON C. COLLINS, Jr.,                              :

        Defendant-Appellant.                        :



       CRIMINAL APPEAL FROM PREBLE COUNTY COURT OF COMMON PLEAS
                            Case No. 15CR11802



Martin P. Votel, Preble County Prosecuting Attorney, Gractia S. Manning, Preble County
Courthouse, 101 East Main Street, Eaton, Ohio 45320, for plaintiff-appellee

Kirsten Knight, P.O. Box 137, Germantown, Ohio 45327, for defendant-appellant



        S. POWELL, J.

        {¶ 1} Defendant-appellant, Arnon C. Collins, Jr., appeals from his conviction in the

Preble County Court of Common Pleas after he pled no contest to a variety of drug charges

and failing to comply with an order or signal of a police officer. For the reasons outlined

below, we affirm.

        {¶ 2} On August 3, 2015, the Preble County Grand Jury returned a four-count

indictment charging Collins with illegal manufacture of drugs in violation of R.C. 2925.04(A), a
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second-degree felony, illegal assembly or possession of chemicals for the manufacture of

drugs in violation of R.C. 2925.041(A), a third-degree felony, failure to comply with an order

or signal of a police officer in violation of R.C. 2921.331(B), also a third-degree felony, and

illegal use or possession of drug paraphernalia in violation of R.C. 2925.14(C)(1), a fourth-

degree misdemeanor. Although contained in the original complaint filed with the Eaton

Municipal Court, an additional aggravated possession of drugs charge in violation of R.C.

2925.11(A)(C)(1)(b), then charged as a third-degree felony, was inadvertently left off the

indictment.

       {¶ 3} According to the original complaint filed in this matter, the charges stemmed

from the events occurring on July 14, 2015. On that date, Deputy Shane Hatfield of the

Preble County Sheriff's Office was traveling northbound on Jordan Road located within

Preble County when he noticed Collins driving a motorcycle southbound on that same road.

Knowing that Collins had three active felony warrants for his arrest in Montgomery County,

Deputy Hatfield turned his cruiser around and began pursuit of Collins with both his lights and

siren activated. Collins did not stop and a high-speed chase ensued with speeds reaching

approximately 80 miles per hour.

       {¶ 4} After turning off Jordan Road onto Enterprise Road, the chain broke on Collins'

motorcycle, which caused Collins to abandon the motorcycle and continue his attempt to

escape from Deputy Hatfield on foot. During this time, Deputy Hatfield observed Collins

wearing a black backpack. Deputy Hatfield eventually caught up with Collins and placed him

under arrest. Deputy Hatfield then conducted a search of Collins incident to his arrest and

discovered within the black backpack approximately five grams of "wet," recently made,

methamphetamine, as well as a glass smoking pipe with burn marks, marijuana, a variety of

unidentified pills, a digital scale, and a cell phone.

       {¶ 5} Following Collins' arrest, Deputy Hatfield and Detective Robert Schneider
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responded to Collins' residence located at 4371 Jordan Road, Lewisburg, Preble County,

Ohio. Once there, the complaint indicates Deputy Hatfield and Detective Schneider received

consent to search the property from Collins' parents.

       {¶ 6} Upon searching the property, Deputy Hatfield and Detective Schneider located

Collins' vehicle parked behind a barn, which, upon looking through the windows, Deputy

Hatfield could see in plain view several items associated with the manufacture of

methamphetamine. A search warrant was then obtained that resulted in additional items

associated with the manufacture of methamphetamine being discovered. It is undisputed

that Deputy Hatfield's warrant affidavit stated that he, Deputy Brad Moore, and Detective

Schneider, responded to the Collins residence where they then "received consent to search

the property from Collins' mother[.]"

       {¶ 7} On August 4, 2015, Attorney Brian Muenchenbach ("Attorney Muenchenbach")

entered his appearance as Collins' trial counsel. Approximately three weeks later, on August

27, 2015, the state faxed Attorney Muenchenbach a plea offer asking Collins to plead guilty

to illegal assembly or possession of chemicals for the manufacture of drugs in violation of

R.C. 2925.041(A), a third-degree felony that carried a mandatory five-year prison term due to

Collins prior drug convictions. In exchange for Collins' guilty plea to this single charge, the

state agreed to dismiss the remaining charges in the indictment. The plea offer further

stated, in pertinent part, the following:

              The original indictment did not contain the F3 Aggravated
              Possession of Drugs count contained in the original complaint.
              The State has received a lab report that makes possession of
              meth an F1 with a mandatory 11 year prison term. Therefore,
              should the Defendant not accept the agreed 5 year prison term,
              the State will supersede the indictment at October's grand jury[.]

The plea offer also specifically stated that the offer was to expire one month later on

September 28, 2015. The deadline to accept the plea offer was later extended to October 2,


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2015.

        {¶ 8} On October 2, 2015, contrary to Attorney Muenchenbach's advice, Collins

rejected the state's plea offer. As Attorney Muenchenbach later testified, "we had a long

conversation about it, and we decided that, Mr. Collins decided that he was going to take his

chances with the suppression, and decided to reject the offer at that point." As a result, and

just as the state said it would, on October 5, 2015, the Preble County Grand Jury returned a

superseding indictment that included an additional charge of aggravated possession of drugs

in violation of R.C. 2925.11(A), a first-degree felony that included a major drug offender

specification under R.C. 2941.1410(A), a charge that carried a mandatory 11-year prison

term.

        {¶ 9} On January 29, 2016, Collins filed a motion to suppress. Thereafter, on

February 23, 2016, Collins filed a supplemental motion to suppress and a motion for a

hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674 (1978) (hereinafter,

"Franks hearing") that challenged the credibility of Deputy Hatfield's warrant affidavit.

Attached to Collins' motion requesting a Franks hearing was an affidavit from his mother that

stated she had not given Deputy Hatfield or Detective Schneider consent to search "the

property" as alleged by Deputy Hatfield. Rather, the affidavit submitted by Collins' mother

indicated she had merely consented to Deputy Hatfield and Detective Schneider's request to

"look around" Collins' bedroom, and that, when Deputy Hatfield and Detective Schneider tried

to search "additional areas of the home," she "told the officers no, they could not look [at]

additional places." After holding a hearing on both motions, the trial court denied Collins'

motion to suppress and motion for a Franks hearing in separate entries issued on April 15,

2016 and April 20, 2016, respectively.

        {¶ 10} On May 2, 2016, Attorney Muenchenbach filed a motion to withdraw as Collins'

trial counsel. In support of that motion, Attorney Muenchenbach stated the following:
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              Defendant claims that Counsel did not properly and clearly
              advise Defendant regarding a plea offer that was made by the
              State and subsequently rejected by Defendant. Moreover,
              Defendant claims that Counsel did not clearly advise him of the
              ramifications of rejection [sic] the plea offer, and the pending
              superseding indictment. Counsel states that this allegation is
              false.

       {¶ 11} On May 4, 2016, after holding a brief hearing on the matter, the trial court

granted Attorney Muenchenbach's motion to withdraw as Collins' trial counsel and appointed

Attorney Seth Cantwell ("Attorney Cantwell") in his place.

       {¶ 12} On June 17, 2016, Collins, through his newly appointed counsel Attorney

Cantwell, filed a motion to compel the state to reinstate its previous plea offer since Collins

"did not fully understand the terms of the offer[.]" After holding a hearing on the matter,

wherein the trial court heard testimony from both Attorney Muenchenbach and Collins, the

trial court denied Collins' motion. In so holding, the trial court determined that Attorney

Muenchenbach's testimony regarding his representation of Collins during the plea

negotiations was credible and that any confusion on the behalf of Collins was not the result of

any deficient performance on the part of Attorney Muenchenbach.

       {¶ 13} Specifically, as noted by the trial court, Attorney Muenchenbach advised Collins

of the terms of plea offer shortly after it was received from the state, notified Collins that the

offer would have to be accepted before October 2, 2015, and advised Collins that he should

accept the plea offer, but that the decision to accept the state's offer was ultimately Collins'

decision to make. The trial court also found Attorney Muenchenbach had spent an hour

visiting Collins in jail on October 1, 2015, the day before the state's deadline to accept the

plea offer expired, during which time the plea offer and the potential consequences for

rejecting the state's offer "were thoroughly discussed."

       {¶ 14} On September 12, 2016, Collins entered a no contest plea to all then pending

charges. Accepting Collins' plea, the trial court found Collins guilty and subsequently
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sentenced him to an aggregate mandatory term of 12 years in prison. The trial court also

ordered Collins to serve a mandatory five-year term of postrelease control. Collins now

appeals from his conviction, raising two assignments of error for review.

       {¶ 15} Assignment of Error No. 1:

       {¶ 16} THE TRIAL COURT ERRED WHEN IT FAILED TO SUSTAIN APPELLANT'S

FRANKS MOTION.

       {¶ 17} In his first assignment of error, Collins argues the trial court erred by not

granting his motion for a Franks hearing. We disagree.

       {¶ 18} In Franks, the United States Supreme Court held that if a "substantial

preliminary showing that a false statement knowingly and intentionally, or with reckless

disregard for the truth, was included by the affiant in the warrant affidavit, and if the allegedly

false statement is necessary to the finding of probable cause, the Fourth Amendment

requires that a hearing be held at the defendant's request." Id., 438 U.S. 154, at 155-156, 98

S.Ct. 2674. This creates a two-part test the defendant must meet in order to be entitled to a

Franks hearing. Specifically, the defendant (1) must make a "substantial" preliminary

showing that the affiant made a false statement either knowingly or with reckless disregard

for the truth; and, additionally, (2) prove the allegedly false statement was necessary to the

finding of probable cause. State v. Sekse, 12th Dist. Preble No. CA2015-07-015, 2016-Ohio-

2779, ¶ 9.

       {¶ 19} This court reviews a trial court's decision to deny a request for a Franks hearing

under a clear error standard. Id. at ¶ 12. "A finding is 'clearly erroneous' when although

there is evidence to support it, the reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been committed." State v. Bryant, 5th Dist.

Holmes Nos. 10CA019 and 10CA020, 2011-Ohio-3353, ¶ 24. When reviewing a trial court's

decision to deny a request for a Franks hearing, this court gives deference to the trial court's
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resolution of factual questions and the determination of witness credibility for it is the trial

court, as the trier of fact, that is in the best position to resolve these matters. Sekse at ¶ 12-

13.

       {¶ 20} Collins argues the trial court erred by not conducting a Franks hearing since his

mother provided an affidavit to the trial court wherein she claimed she had only consented to

Deputy Hatfield and Detective Schneider's request to "look around" Collins' bedroom, and

2that, when Deputy Hatfield and Detective Schneider tried to search "additional areas of the

home," she "told the officers no, they could not look [at] additional places." In contrast, the

warrant affidavit prepared by Deputy Hatfield stated that Collins' mother gave him, Deputy

Moore, and Detective Schneider, consent to search "the property," which eventually led them

to Collins' vehicle that contained various items commonly associated with the manufacture of

methamphetamine in plain view when Deputy Hatfield looked through the vehicle's windows.

       {¶ 21} After a thorough review of the record, we find that even if this court were to

assume that Collins was able to make a "substantial" preliminary showing that Deputy

Hatfield made a false statement regarding the scope of consent given from Collins' mother

either knowingly or with reckless disregard for the truth as required under the first prong of

the two-part Franks test, just as the trial court found, there is still more than enough evidence

contained within Deputy Hatfield's warrant affidavit to establish probable cause justifying the

issuance of the search warrant of the entire Collins property, up to and including Collins'

vehicle.

       {¶ 22} For instance, Deputy Hatfield's warrant affidavit states (1) both he and

Detective Schneider had recently received several tips and other intelligence that Collins had

been seen manufacturing methamphetamine at his home, including information from a

neighbor who suspected Collins of making methamphetamine from the back of his car; (2)

Collins had a long criminal history that included convictions for illegal manufacture of drugs,
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attempted illegal assembly of chemicals for the manufacture of drugs, and aggravated

possession of drugs; (3) four days earlier, when attempting to serve a warrant for Collins'

arrest, Deputy Hatfield smelled a slight odor of anhydrous ammonia, a precursor of

methamphetamine production, emanating from a large trash can at the rear of the home; (4)

Collins had purchased Sudafed 12 times (and had been denied an additional four times) over

the previous four months; and, (5) Collins had just been arrested and found to be in

possession of 4.9 grams of "wet" methamphetamine indicating the drug was only recently

made. Deputy Hatfield further averred that, based on his training and experience, drug

traffickers and drug manufacturers "frequently conceal and transport narcotics in motor

vehicles," thereby making it necessary to search any motor vehicle located on the property.

       {¶ 23} In light of the foregoing, and based on the totality of the circumstances, even

when ignoring the alleged false statement regarding the scope of the consent given by

Collins' mother, as well as the various items observed in Collins' vehicle associating him with

the manufacture of methamphetamine, Deputy Hatfield's affidavit provided the trial court with

a sufficient basis for concluding probable cause existed to justify issuing the search warrant

at issue. As this court has stated previously, in determining the sufficiency of probable cause

in an affidavit submitted in support of a search warrant, the task of the issuing judge is simply

to make a practical, common-sense decision whether, given all the circumstances set forth in

the affidavit before him, including the veracity and basis of knowledge of persons supplying

hearsay information, there is a fair probability that contraband or evidence of a crime will be

found in a particular place. State v. Redelman, 12th Dist. Clinton No. CA2012-04-010, 2013-

Ohio-657, ¶ 38; State v. George, 45 Ohio St.3d 325 (1989), paragraph one of the syllabus;

Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317 (1983). That is certainly the case here.

Therefore, because we find no clear error in the trial court's decision to deny Collins' request

for a Franks hearing, Collins' first assignment of error is without merit and overruled.
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       {¶ 24} Assignment of Error No. 2:

       {¶ 25} THE TRIAL COURT ERRED WHEN IT FAILED TO COMPEL THE STATE TO

REINSTATE THE ORIGINAL PLEA OFFER.

       {¶ 26} In his second assignment of error, Collins argues the trial court erred by

denying his motion to compel the state to reinstate its previous plea offer since he received

ineffective assistance of counsel from Attorney Muenchenbach during plea negotiations with

the state. We again disagree.

       {¶ 27} The parties agree that this assignment of error is governed by the United States

Supreme Court's decision in Lafler v. Cooper, 566 U.S. 156, 132 S.Ct. 1376 (2012). In that

case, the Supreme Court held that prejudice may arise if a defendant's trial counsel's

deficient performance during plea negotiations with the state caused the defendant to reject a

plea offer that would have resulted in a lower sentence.            Id. at 163.    Under such

circumstances, where trial counsel actually provides a defendant with a deficient

performance during plea negotiations, the correct remedy is to order the state to reoffer the

previously rejected plea offer. Id. at 174.

       {¶ 28} In this case, however, after holding a hearing on the matter, the trial court found

Collins' original trial counsel, Attorney Muenchenbach, did not provide Collins with a deficient

performance during plea negotiations since Attorney Muenchenbach advised Collins of the

terms of plea offer shortly after it was received from the state, notified Collins that the offer

would have to be accepted before October 2, 2015, the deadline imposed by the state, and

advised Collins he should accept the plea offer, but that the decision to accept the state's

offer was ultimately Collins' decision to make. The trial court also found that Attorney

Muenchenbach spent an hour visiting Collins in jail on October 1, 2015, the day before the

state's deadline to accept the plea offer, during which time the offer and the potential

consequences for rejecting the offer "were thoroughly discussed." Nevertheless, against the
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advice of attorney Muenchenbach, Collins decided to reject the state's plea offer and instead

file a motion to suppress and a motion for a Franks hearing.

       {¶ 29} After a thorough review of the record, we find no error in the trial court's

decision to deny Collins' request to compel the state to reinstate its previous plea offer.

While Collins testified that he was confused about the plea deal offered by the state, just as

the trial court found, any confusion was not the result of any deficient performance on the

part of Attorney Muenchenbach. Rather, as the record reveals, and as discussed above,

Attorney Muenchenbach notified Collins of the terms of the state's plea offer and the deadline

to accept the plea offer. Attorney Muenchenbach further advised Collins to accept the plea

offer, but that the decision was ultimately Collins' decision to make. Collins, against the

advice of attorney Muenchenbach, rejected the plea offer. As the trial court stated, "[i]n the

end, he made his choice."      We agree.     Therefore, because Attorney Muenchenbach

performance during plea negotiations was not deficient, it simply cannot be said that Collins

suffered any resulting prejudice that would necessitate requiring the state to reoffer its

previously rejected plea deal. Accordingly, because we find no error in the trial court's

decision to deny Collins' request to compel the state to reinstate its previous plea offer,

Collins' second assignment of error is also without merit and overruled.

       {¶ 30} Judgment affirmed.


       HENDRICKSON, P.J., and RINGLAND, J., concur.




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