[Cite as State v. Luster, 2018-Ohio-4998.]




                              IN THE COURT OF APPEALS OF OHIO
                                 SECOND APPELLATE DISTRICT
                                       DARKE COUNTY

 STATE OF OHIO                                     :
                                                   :
          Plaintiff-Appellee                       :   Appellate Case No. 2018-CA-5
                                                   :
 v.                                                :   Trial Court Case No. 2018-CR-43
                                                   :
 ISHMEAL M. LUSTER                                 :   (Criminal Appeal from
                                                   :   Common Pleas Court)
          Defendant-Appellant                      :
                                                   :

                                              ...........

                                             OPINION

                          Rendered on the 14th day of December, 2018.

                                              ...........

DEBORAH S. QUIGLEY, Atty. Reg. No. 0055455, Assistant Prosecuting Attorney, Darke
County Prosecutor’s Office, 504 South Broadway Street, Greenville, Ohio 45331
      Attorney for Plaintiff-Appellee

KEVIN J. STOTTS, Atty. Reg. No. 0069830, 119 North West Street, Suite 101, Lima,
Ohio 45801
      Attorney for Defendant-Appellant

                                             .............
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WELBAUM, P.J.

       {¶ 1} Defendant-Appellant, Ishmeal Luster, appeals from his conviction, which

followed Luster’s guilty plea to aggravated robbery and a firearm specification. Following

Luster’s plea, the trial court imposed sentences upon which the State and Luster had

agreed: three years for the aggravated robbery and a mandatory consecutive three-year

sentence for the firearm specification, for a total prison term of six-years.

       {¶ 2} In support of his appeal, Luster contends that he was prejudiced by the

ineffective assistance of trial counsel, who did not file any pretrial motions to exclude

evidence pertaining to the firearm specification or to dismiss the firearm specification.

       {¶ 3} We conclude that trial counsel did not render ineffective assistance of

counsel. Luster pled guilty to the charges, and in such situations, the right to claim

ineffective assistance of counsel is waived, other than defects that caused the plea to be

less than knowing and voluntary. There is no evidence in the record which demonstrates

that Luster’s plea was not knowingly, intelligently, and voluntary made. Accordingly, the

judgment of the trial court will be affirmed.



                               I. Facts and Course of Proceedings

       {¶ 4} In February 2018, an indictment was filed charging Luster with aggravated

robbery in violation of R.C. 2911.01(A)(1), in that Luster had a deadly weapon on or about

his person or under his control in attempting or committing a theft offense as defined in

R.C. 2913.01, or in fleeing immediately afterward, and that Luster either displayed the

weapon, brandished it, indicated that he possessed the weapon, or used it. The charge

was a first degree felony and also included a firearm specification. The charge arose
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from a January 6, 2018 robbery at a Walgreen’s drugstore.

       {¶ 5} After Luster was arraigned, the court set a jury trial for May 15, 2018.

Subsequently, at the State’s request, the court consolidated Luster’s case with that of a

co-defendant, Antwan Thompson.

       {¶ 6} During an April 24, 2018 telephone conference, defense counsel told the

court about alleged interference with his representation by Luster’s family members, who

had retained him. At a pretrial conference held on April 30, 2018, the State presented a

plea offer to reduce the charge to robbery, a second-degree felony, with the firearm

specification remaining, and to jointly recommend three years in prison for the robbery

and three years for the firearm specification, for a total of six years in prison.

       {¶ 7} During the April 30, 2018 pretrial conference, defense counsel again

discussed issues about the scope of representation. According to defense counsel, the

latest issue concerned a motion to dismiss the firearm specification that Luster’s uncle

had mailed to counsel. The uncle had affixed counsel’s name and attorney registration

number to the motion and had “allud[ed]” to filing the motion himself if counsel did not.

Defense counsel told the court that he had not drafted or prepared such a motion and did

not authorize his name to be included. Transcript of April 30, 2018 Pretrial Proceeding,

pp. 5-6. At that time, the trial court advised Luster’s parents, who were present, of the

scope of defense counsel’s representation, i.e., that defense counsel represented only

Luster. Id. at pp. 6-11.

       {¶ 8} On May 1, 2018, Luster’s retained counsel filed a motion with the trial court

asking for an order that Luster’s uncle cease contact with counsel, due to the uncle’s

alleged harassment and intimidation. Counsel attached a number of documents to the
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motion, including text messages from the uncle and a “Motion to Dismiss Specification

Charge” that the uncle had drafted.

       {¶ 9} On the same day, defense counsel asked to withdraw from the case, claiming

that Luster’s family members, who had retained him, were dissatisfied with his

representation. The trial court denied the motion to withdraw on May 7, 2018, noting that

family members who had paid fees to defense counsel were not counsel’s clients and

that their opinions were immaterial. In addition, the court found that there had been no

proffer of a new retained attorney who sought to be substituted as counsel.

       {¶ 10} The jury trial began as scheduled on May 15, 2018. After the jury was

seated, the State indicated that Luster had not responded to the State’s plea offer, and

that the State would now offer its original proposal, which was that Luster plead guilty as

charged, including the firearm specification, and receive a recommendation and

agreement for a total prison sentence of six years. Transcript of Trial Proceedings, pp.

107-108. Defense counsel renewed his motion concerning the family’s intimidation, but

the court declined to intervene, noting that it could not intervene in situations involving

persons who were not parties. Id. at pp. 109-110.

       {¶ 11} After a lunch break during which Luster conferred with his counsel and

family, the parties informed the trial court that they had reached the following plea

agreement: (1) Luster would plead to the indictment as charged; and (2) the parties would

agree to and recommend a three-year prison term on the aggravated robbery charge and

a three-year term on the firearm specification, for a total of six years in prison. Id. at p.

115. After conducting a Crim. R. 11(C)(2) colloquy, the trial court found that Luster’s

plea was knowingly, intelligently, and voluntarily made, and that Luster had waived his
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trial rights. The trial court then accepted Luster’s guilty plea and sentenced him to the

mutually agreed upon and recommended sentences. Luster filed a timely appeal from

the trial court’s judgment.



                          II. Alleged Ineffective Assistance of Counsel

       {¶ 12} Luster’s sole assignment of error states that:

              Appellant Was Prejudiced by Being Denied Effective Assistance of

       Counsel Guaranteed by the Sixth and Fourteenth Amendments of the

       United States Constitution by Trial Counsel’s Failure to File Any Pre-Trial

       Motions to Dismiss the Firearm Specification Under R.C. 2941.145.

       {¶ 13} Under this assignment of error, Luster contends that trial counsel rendered

ineffective assistance by failing to file any pretrial motions either to exclude or suppress

the firearm as admissible evidence at trial or to dismiss the firearm specification. As

support for this argument, Luster claims that the record shows that two firearms were

seized by law enforcement from a motor vehicle after the robbery, and that “neither, when

seized, had any bullets ‘chambered’ or ready to fire.” Appellant’s Brief at p. 6. Based

on these alleged facts, Luster argues that trial counsel could have challenged the

admissibility of the firearms as evidence by asserting that the State could not prove that

the seized firearms were the actual firearms used in the robbery.

       {¶ 14} According to Luster, trial counsel could also have moved to dismiss the

firearm specification. Specifically, he argues that, in the absence of any evidence that

the firearms were used in the robbery, any testing of the firearms for operability would

have been moot and ineffectual. Finally, Luster contends that even if the State could
                                                                                          -6-


have overcome the filing of a motion to suppress evidence, the seized firearms did not fit

within the definition of a “firearm” in R.C. 2923.11(B), because the record demonstrated

that the firearms were technically unloaded and were not able to expel a projectile at the

time of the crime.

       {¶ 15} “Claims of ineffective assistance of trial counsel are reviewed under the

analysis set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d

674 (1984), and adopted by the Supreme Court of Ohio in State v. Bradley, 42 Ohio St.3d

136, 538 N.E.2d 373 (1989).” State v. Sewell, 2d Dist. Montgomery No. 27562, 2018-

Ohio-2027, ¶ 63. “Counsel's performance will not be deemed ineffective unless and until

counsel's performance is proved to have fallen below an objective standard of reasonable

representation and, in addition, prejudice arises from counsel's performance.”      Bradley

at paragraph two of the syllabus. In order to establish prejudice, “the defendant must

prove that there exists a reasonable probability that, were it not for counsel's errors, the

result of the trial would have been different.” Id. at paragraph three of the syllabus.

       {¶ 16} However, “[a] plea of guilty constitutes a complete admission of guilt.”

State v. Barnett, 73 Ohio App.3d 244, 248, 596 N.E.2d 1101 (2d Dist.1991), citing Crim.R.

11(B)(1).   Defendants who enter guilty pleas as part of a plea bargain waive all

appealable errors that may have occurred, “unless such errors are shown to have

precluded the defendant from entering a knowing and voluntary plea.” Id., citing State v.

Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991). Counsel’s failure “ ‘to provide advice

[which impairs the knowing and voluntary nature of the plea] may form the basis of a claim

of ineffective assistance of counsel, but absent such a claim it cannot serve the predicate

for setting aside a valid plea.’ ” (Parenthetical material in original.) Id., quoting United
                                                                                            -7-

States v. Broce, 488 U.S. 563, 574, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989). Accord

State v. McMahon, 2d Dist. Clark No. 2014-CA-98, 2015-Ohio-2878, ¶ 16.

       {¶ 17} Based on these principles, we have said that a guilty plea clearly “waives

the right to claim that the accused was prejudiced by constitutionally ineffective counsel,

except to the extent the defects complained of caused the plea to be less than knowing

and voluntary.” Barnett at 249. Accord State v. Bateman, 2d Dist. Clark No. 2012-CA-

29, 2013-Ohio-4235, ¶ 7; State v. Cordell, 2d Dist. Greene No. 2009-CA-57, 2010-Ohio-

5277, ¶ 12.

       {¶ 18} During the plea hearing, the trial court asked Luster if he understood the

charge against him, whether he understood what the firearm specification was, and

whether he knew the facts about the firearm specification. Luster answered yes to these

questions and to the other questions in the Rule 11(C)(2) colloquy. Before Lester signed

the plea form, he also indicated that he understood that “a guilty plea is a conclusion, first,

that you understand the law; second, you know your conduct so you can conclude that

you did violate the law.” Transcript of Trial Proceedings at p. 117. We have reviewed

the entire record, and we find that the trial court fully complied with all the requirements

of Crim.R. 11(C)(2).

       {¶ 19} Furthermore, the facts alleged in Luster’s brief are not in the record. “We

have stressed many times that ‘we cannot add new matters to the record and decide the

appeal based on those facts.’ ” State v. Owensby, 2d Dist. Montgomery No. 26247,

2015-Ohio-3054, ¶ 32, quoting State v. Jamison, 2d Dist. Montgomery No. 23211, 2010-

Ohio-965, ¶ 32, which in turn, cites State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500

(1978), paragraph one of the syllabus.
                                                                                    -8-


       {¶ 20} Based on the preceding discussion, Luster’s sole assignment of error is

without merit and is overruled.



                                      III. Conclusion

       {¶ 21} Luster’s sole assignment of error having been overruled, the judgment of

the trial court is affirmed.



                                   .............



HALL, J. and TUCKER, J., concur.



Copies sent to:

Deborah S. Quigley
Kevin J. Stotts
Hon. Jonathan P. Hein
