[Cite as State v. Copley, 2018-Ohio-1506.]


                 Court of Appeals of Ohio
                                   EIGHTH APPELLATE DISTRICT
                                      COUNTY OF CUYAHOGA


                                  JOURNAL ENTRY AND OPINION
                                          No. 106053



                                              STATE OF OHIO

                                                  PLAINTIFF-APPELLEE

                                                   vs.

                                             GREGORY COPLEY

                                                  DEFENDANT-APPELLANT




                                               JUDGMENT:
                                                AFFIRMED



                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-16-612252-A

        BEFORE: Blackmon, J., Boyle, P.J., and Laster Mays, J.

        RELEASED AND JOURNALIZED:                   April 19, 2018
ATTORNEY FOR APPELLANT

Edward M. Heindel
400 Terminal Tower
50 Public Square
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Timothy Troup
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
PATRICIA ANN BLACKMON, J.:

       {¶1}    Defendant-appellant, Gregory Copley (“Copley”), appeals from the denial of his

motion to vacate his no contest plea to aggravated robbery and other offenses. He assigns the

following errors for our review:

       I.      The trial court erred when it denied Copley’s pre-sentence motion to
               withdraw his no contest pleas.

       II.     The trial court erred when it denied Copley’s motion to disqualify
               appointed counsel.

       III.    Copley was denied his right to effective assistance of counsel as

               guaranteed to him by the Sixth Amendment to U.S. Constitution, and

               Article 1, Section 10 of the Ohio Constitution.

       {¶2}    Having reviewed the record and pertinent law, we affirm the trial court’s decision.

 The apposite facts follow.

       {¶3}    Copley, Alijah Lee (“Lee”), and Charles Summers (“Summers”), were indicted in

connection with the December 5, 2016 armed robbery at Rascal House Pizza in Euclid, Ohio.

As is relevant herein, Copley was charged with aggravated robbery, robbery, kidnapping,

attempted safecracking, receiving stolen property, two counts of carrying a concealed weapon,

improperly handling firearms in a motor vehicle, and having a weapon while under disability.

The offenses of violence also contained one-year and three-year firearm specifications and a

notice of prior conviction alleging that Copley was convicted of robbery in 2010.             The

safecracking charge also contained firearm specifications.

       {¶4}    Counsel was assigned to represent Copley.           He obtained discovery and

supplemental discovery.       Thereafter, on March 21, 2017, Copley pled no contest to the

indictment. His trial counsel stated that he had discussed “the facts and circumstances” to
Copley and “based upon the State of Ohio’s offer here, we have no choice but to enter a no

contest plea.” The court conducted a Crim.R. 11 colloquy that included the potential sentence

for each offense, and also explained that by entering a no contest plea, the court could proceed

directly to sentencing. The prosecuting attorney stated as follows on the record:

       [T]he case essentially involves three codefendants. Mr. Copley and Alijah Lee

       entered the Rascal House Pizza out in Euclid. They brandished firearms. They

       came through a side door, brandished firearms. A victim named Dwight Knipe,

       the manager of the store, was seated in the office. The gun was pointed at him at

       which point he fell out of his chair. He was basically backed into a corner clearly

       looking for a means of escape. He did not find a means of escape. This was

       captured on video. Also Dwight Knipe made statements to the police. He was

       ordered to open the safe. The safe was on a time lock, so he was unable to open

       the safe. He tried to call the owner of the store to get the code for the safe and

       was unsuccessful in that. Another employee followed the two defendants as they

       fled to a car driven by Charles Summers. That car then was intercepted by Euclid

       police.   They ended up turning the wrong way down an off ramp onto the

       Shoreway there where they were apprehended. When the police searched the car,

       they found the latex gloves, the clothing, the cell phones, and they also found two

       firearms underneath the front passenger seat.

       {¶5} Defense counsel explained to the court that Copley was not the “quarterback” of the

offense, and that he confessed to police and apologized in a videotaped statement.

       {¶6} Shortly before sentencing, Copley filed pro se motions to vacate the no contest plea

and to disqualify his counsel. During a hearing on these issues, Copley stated that he did not
understand that he was pleading to all charges, and believed he faced six-to-nine years

imprisonment. At the time of the hearing, defendant’s trial counsel was in a domestic relations

hearing and he sent another attorney to attend on his behalf. The trial court demanded that the

original defense counsel appear for the hearing, and he did so after a brief delay.

       {¶7} Defense counsel informed the court that the state’s pretrial position in the matter

was that it would amend the charges only if the defendant agreed to serve fourteen years of

imprisonment.    Defense counsel stated that, in his opinion, a no contest plea created the

possibility of Copley receiving a shorter sentence than that offered by the state. Additionally,

defense counsel stated that Copley had confessed and apologized to police, and due to the

evidence, which also included identification and “empirical evidence,” he believed that it would

be “impossible” to obtain a defense verdict. As a result, his “tactic” was to plead no contest.

       {¶8} The court stated that Copley was advised of the full range of penalties during the

plea and was not informed that he faced a maximum of nine years, in light of the numerous

charges and specifications. The court merged the convictions on Counts 3 and 4 into Count 1

and imposed a ten year term for the offense, plus a three-year firearm specification, for a total of

thirteen years of imprisonment. Copley assigns three errors that we shall address out of their

predesignated order.
                                     Ineffective Assistance

       {¶9} In his third assigned error, Copley argues that his trial counsel was ineffective for

advising him to plea no contest because this subjected him to the possibility of receiving a

fifty-year prison term. He maintains that his counsel was “not prepared to argue about the

merger of allied offenses,” and was unaware that the probation department could not find a

witness to the crime. He also complains that counsel did not appear for the final hearing until

ordered to do so.

       {¶10} We review a claim of ineffective assistance of counsel under a two-part test that

requires the defendant to demonstrate: (1) trial counsel’s performance fell below an objective

standard of reasonable representation; and (2) prejudice arose from the deficient performance.

State v. Bradley, 42 Ohio St.3d 136, 141-143, 538 N.E.2d 373 (1989), citing Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

       {¶11} In evaluating the alleged deficiencies in performance, our review is highly

deferential to counsel’s decisions as there is a strong presumption counsel’s conduct fell within

the wide range of reasonable professional assistance. Bradley at 142-143, citing Strickland at

689. Judicial scrutiny of counsel’s performance is to be highly deferential, and reviewing courts

are to refrain from second-guessing the strategic decisions of trial counsel. State v. Carter, 72

Ohio St.3d 545, 558, 651 N.E.2d 965 (1995). Debatable trial tactics generally do not constitute

a deprivation of effective counsel. State v. Dean, 146 Ohio St.3d 106, 2015-Ohio-4347, 54

N.E.3d 806, ¶ 278.

       {¶12} To show prejudice, a defendant must prove that the lawyer’s deficiency was so

serious that there is a reasonable probability the result of the proceeding would have been

different. Strickland at 694.
       {¶13} With regard to the issue of Copley’s potential exposure to a fifty-year sentence, the

significant question is whether legally correct sentencing information was provided. See State v.

Ingram, 8th Dist. Cuyahoga No. 89954, 2008-Ohio-3033, ¶ 18. Here, sentencing information

was provided, and in any event, the potential fifty-year sentence was not imposed, as Copley

received a significantly shorter term. Therefore, he cannot show prejudice from his claim about

potential exposure to the fifty-year sentence from the no contest plea.

       {¶14} As to the claim that counsel was not prepared to argue about the issue of merger,

the record discloses that defendant’s trial counsel flagged the issue of the merger of firearm

specifications for the court’s attention.   The record also indicates that after speaking with

defense counsel, the prosecuting attorney “agree[d] that Counts 2, 3 and 4 merge with Count 1

for purposes of sentencing.” From the record, there is no basis upon which to conclude that

defendant’s trial counsel committed an error on this issue.

       {¶15} With regard to the claim that defense counsel lacked information concerning the

witness that the probation department could not locate, the record indicates defense counsel

stated on the record that the employee could not be located. However, the state indicated that

the employee had been served with a subpoena but was too fearful to appear for the hearing.

Therefore, this issue was addressed below. In addition, the robbery was captured on video

surveillance, and the assailants were chased by another employee after the crime. They were

apprehended by police as they fled. Copley also confessed and apologized. Accordingly, there

is no showing that Copley has been prejudiced by the witness’s unavailability.

       {¶16} As to defense counsel’s late arrival to the hearing, we note that counsel’s late

arrival to a hearing is not ineffective assistance in the absence of prejudice. See State v. Dixon,

3rd Dist. Union No. 14-95-21, 1996 Ohio App. LEXIS 310 (Jan. 8, 1996). Here, the record
demonstrates that defense counsel was in a domestic relations hearing at the time of the final

hearing, and sent another attorney on his behalf. However, he appeared promptly when the court

summoned him. Later in the hearing, he secured the 13-year sentence that was the aim of his

strategy for the case. The record does not demonstrate prejudice from this issue.

        {¶17} The third assigned error is without merit.

                                    Motion to Disqualify Counsel

        {¶18} In his second assigned error, Copley complains that the trial court erred in failing to

investigate his motion to disqualify his appointed counsel. 1           In State v. Corbin, 8th Dist.

Cuyahoga No. 96484, 2011-Ohio-6628, ¶ 19, this court held:

        Ordinarily, when an indigent accused moves to disqualify his or her counsel, it is
        the duty of the trial court to inquire into the complaint and make it a part of the
        record. State v. Lozada, Cuyahoga App. No. 94902, 2011-Ohio-823, citing State
        v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48 ¶ 139. The
        inquiry need only be brief and minimal. Id.

        {¶19} In this case, the record indicates that Copley filed a pro se motion to disqualify his

attorney, and complained that he believed that he would receive six-to-nine years of

imprisonment. The court reiterated that all potential penalties were explained to Copley prior to

the plea. The record also indicates that Copley acknowledged that no promises were made to

him. Defense counsel stated that he believed that the absolute minimum term was six-to-nine

years. However, the court reminded the parties that this “is his second robbery.”

        {¶20} From the foregoing, the record demonstrates that the trial court held the requisite

inquiry. We find no prejudicial error.

                                 Motion to Vacate No Contest Plea


1
 When a trial court enters judgment without expressly determining a pending motion, the motion is impliedly
overruled. Maust v. Palmer, 94 Ohio App.3d 764, 769, 641 N.E.2d 818 (10th Dist.1994).
       {¶21} In his first assigned error, Copley argues that the trial court abused its discretion in

denying his motion to vacate his no contest plea. He argues that his no contest plea subjected

him to the possibility of receiving a fifty-year prison term, and the court did not give him a fair

hearing.

       {¶22} In State v. Peterseim, 68 Ohio App.2d 211, 214, 428 N.E.2d 863 (8th Dist.1980),

this court held that a trial court does not abuse its discretion in denying a presentence motion to

withdraw a plea where the record reflects: (1) the defendant is represented by highly competent

counsel; (2) the defendant was afforded a full hearing, pursuant to Crim.R. 11, before he entered

the plea; (3) the defendant was given a complete and impartial hearing on the motion to withdraw

the plea and (4) the trial court gave full and fair consideration to the plea withdrawal request. Id.

at paragraph three of the syllabus.
         {¶23} Additional factors also include: (1) whether the motion was made in a reasonable

time; (2) whether the motion states specific reasons for withdrawal; (3) whether the defendant

understood the nature of the charges and the possible penalties and (4) whether the defendant was

perhaps not guilty or had evidence of a plausible defense. State v. Musleh, 8th Dist. Cuyahoga

No. 105305, 2017-Ohio-8166, ¶ 38, citing State v. Calabrese, 8th Dist. Cuyahoga No. 104151,

2017-Ohio-7316, ¶ 12, and State v. Small, 8th Dist. Cuyahoga No. 104813, 2017-Ohio-110, ¶ 8.

         {¶24} In this case, we find no abuse of discretion. The record demonstrates that Copley

had very competent counsel, and was afforded a full Crim.R. 11 hearing before he entered the no

contest plea. From the record, it is clear that Copley was given thorough information about the

charges and penalties, and he stated that he understood. He also received a complete and

impartial hearing on the motion to withdraw the plea, and the trial court gave full and fair

consideration to the plea withdrawal request. The record also indicates that the case presented

many challenges from a defense standpoint and that the state’s best offer involved more prison

time than Copley actually received. In our view, the record suggests that Copley was fearful

about having pled to the entire indictment, and counsel’s tactic of pleading no contest to the

entire indictment, in hopes of obtaining a sentence that was more lenient than that offered by the

state.   Although we can appreciate the potential perils of this strategy, it was ultimately

successful and was not unreasonable herein. We find no abuse of discretion in connection with

the denial of the motion to vacate the plea.

         {¶25} The assigned error is without merit.

         {¶26} Judgment affirmed.

         It is ordered that appellee recover from appellant 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 common pleas

court to carry this judgment into execution. The defendant’s conviction having been affirmed,

any bail pending appeal is terminated.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.




PATRICIA ANN BLACKMON, JUDGE

MARY J. BOYLE, P.J., and
ANITA LASTER MAYS, J., CONCUR
