[Cite as State v. Coles, 2015-Ohio-4159.]


                                        COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :   JUDGES:
                                               :
                                               :   Hon. William B. Hoffman, P.J.
       Plaintiff-Appellee                      :   Hon. Sheila G. Farmer, J.
                                               :   Hon. Patricia A. Delaney, J.
-vs-                                           :
                                               :   Case No. 15CAA010001
                                               :
ESHAWN M. COLES                                :
                                               :
                                               :
       Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Delaware County Court
                                                   of Common Pleas, Case No.
                                                   14CRI040158



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            October 2, 2015




APPEARANCES:

For Plaintiff-Appellee:                            For Defendant-Appellant:

CAROL HAMILTON O'BRIEN                             CHRISTOPHER J. BURCHINAL
DELAWARE CO. PROSECUTOR                            P.O. Box 412
BRIAN J. WALTER                                    Delaware, OH 43015
140 North Sandusky St.
Delaware, OH 43015
Delaware County, Case No. 15CAA010001                                                   2

Delaney, J.

       {¶1} Appellant Eshawn M. Coles appeals from the October 28, 2014

"Withdrawal of Former Pleas of Not Guilty to Indictment, Written Pleas of 'No Contest' to

the Indictment and Judgment Entry on 'No Contest' Pleas of the Delaware County Court

of Common Pleas. Appellee is the state of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶2} A statement of the facts underlying appellant's criminal conviction is not

necessary to our resolution of this appeal.

       {¶3} Appellant was charged by indictment with one count of trafficking in

cocaine pursuant to R.C. 2925.03(A)(2), a felony of the first degree [Count I], and one

count of possession of cocaine pursuant to R.C. 2925.11(A), also a felony of the first

degree [Count II]. Appellant entered pleas of not guilty and filed a motion to suppress

evidence obtained as a result of his traffic stop and arrest. Appellee filed a response in

opposition to the motion to suppress and a hearing was held on July 9, 2014. On July

28, 2014, the trial court overruled the motion to suppress by judgment entry.

       {¶4} On October 28, 2014, appellant withdrew his pleas of not guilty and

entered pleas of no contest to Counts I and II. The counts merged for sentencing

purposes and appellee elected to sentence on Count I.           On December 8, 2014,

appellant was sentenced to a prison term of four years on Count I. At sentencing,

defense trial counsel stated the following in pertinent part:

                     * * * *. And the reason there was a no contest plea was just

              to preserve his appellate rights.
Delaware County, Case No. 15CAA010001                                                   3


                       His former counsel had litigated a motion to suppress.       I

            reviewed it. Had I been involved in the case earlier on, and I talked

            to [appellant] about this, he would have followed my advice and

            entered a plea, accepted [appellee's] offer which I understand

            would have possibly got this down to the two-year mark.

                       He was under the mistaken understanding from his counsel

            that since [appellee] made that offer irrespective of the outcome of

            the suppression hearing, [appellee] could not pull that offer off the

            table.

                       I explained to him that's not the law, that's not the case and

            would not expect it to have the same offer after litigating the motion

            to suppress.

            * * * *.

            (T. 7-8).

      {¶5} Appellant now appeals from the judgment entry of his conviction and

sentence.

      {¶6} Appellant raises one assignment of error:

                                 ASSIGNMENT OF ERROR

      {¶7} "APPELLANT           ESHAWN M.        COLES WAS         GIVEN    INEFFECTIVE

ASSISTANCE OF COUNSEL IN VIOLATION OF HIS SIXTH AMENDMENT RIGHTS

WHEN HE WAS NOT FULLY ADVISED OF THE CONDITIONS OF A PLEA OFFER

MADE TO HIM."
Delaware County, Case No. 15CAA010001                                                   4


                                       ANALYSIS

       {¶8} In his sole assignment of error, appellant argues he received ineffective

assistance of defense trial counsel because he was not advised appellee's offer would

be rescinded if he proceeded with the suppression hearing.           Because appellant's

argument is supported by facts outside the record, we disagree and overrule his

assignment of error.

       {¶9} Appellant claims that prior to the suppression hearing, appellee made a

plea offer of a 2-year prison term. Appellant did not understand this offer would be

rescinded if the hearing took place and his original trial counsel failed to explain the

provisional nature of the offer.   Appellant argues, therefore, "[b]y not fully advising

[appellant] of his options, trial counsel permitted [appellant] to mistakenly believe that

there were no consequences to conducting a suppression hearing." (Brief, 5). The

suppression hearing proceeded; the motion was overruled; and appellant was ultimately

sentenced to a 4-year prison term. Therefore, he concludes, counsel was ineffective.

       {¶10} The record does not support appellant's argument.            He cites to the

conclusory statement of his replacement trial counsel at sentencing but this statement

does not establish the circumstances surrounding appellant's decision to enter the pleas

of no contest. Instead, appellant relies upon facts outside the record.

       {¶11} A claim requiring proof that exists outside of the trial record cannot

appropriately be considered on a direct appeal. State v. Hartman, 93 Ohio St.3d 274,

299, 754 N.E.2d 1150 (2001) (if establishing ineffective assistance of counsel requires

proof outside the record, then such claim is not appropriately considered on direct

appeal). We conclude appellant's argument is more appropriate for review in post-
Delaware County, Case No. 15CAA010001                                                 5


conviction proceedings than on direct appeal because the facts in support are outside

the record before us. See, State v. Lambert, 5th Dist. Richland No. 97-CA-34-2, 1999

WL 173966, *2 (Feb. 17, 1999); State v. Hamlett, 5th Dist. Richland No. 03 CA 34,

2004-Ohio-38, ¶ 11; State v. Lawless, 5th Dist. Muskingum No. CT2000-0037, 2002-

Ohio-3686, 2002 WL 1585846, *7, citing State v. Cooperrider, 4 Ohio St.3d 226, 228,

448 N.E.2d 452 (1983). Postconviction relief, rather than a direct appeal, is a means by

which a defendant may bring claims of constitutional violations based upon matters

outside the record. State v. Kreischer, 5th Dist. Perry No. 01-CA-04, 2002-Ohio-357,

2002 WL 106683, *3, citing State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967),

paragraphs four and nine of the syllabus.

      {¶12} Appellant's sole assignment of error is therefore overruled.

                                    CONCLUSION

      {¶13} Appellant's sole assignment of error is overruled and the judgment of the

Delaware County Court of Common Pleas is affirmed.

By: Delaney, J. and

Hoffman, P.J.

Farmer, J., concur.
