[Cite as State v. Erich, 2017-Ohio-8528.]


                                     IN THE COURT OF APPEALS

                                  ELEVENTH APPELLATE DISTRICT

                                     ASHTABULA COUNTY, OHIO


 STATE OF OHIO,                                  :        OPINION

                   Plaintiff-Appellee,           :
                                                          CASE NO. 2016-A-0056
          - vs -                                 :

 BRYAN M. ERICH,                                 :

                   Defendant-Appellant.          :


 Criminal Appeal from the Ashtabula County Court of Common Pleas.
 Case No. 2015 CR 00734.

 Judgment: Affirmed.


 Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
 Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
 44047-1092 (For Plaintiff-Appellee).

 Anna Markovich, 18975 Villaview Road, Suite 3, Cleveland, OH 44119 (For Defendant-
 Appellant).



TIMOTHY P. CANNON, J.

        {¶1}       Appellant, Bryan M. Erich, appeals from the judgment entry accepting a

guilty plea and imposing sentence, entered by the Ashtabula County Court of Common

Pleas on March 29, 2016. For the following reasons, the trial court’s judgment is affirmed.

        {¶2}       On December 30, 2015, appellant was indicted by the Ashtabula County

Grand Jury on four counts: Count 1, Illegal Assembly or Possession of Chemicals for the

Manufacture of Drugs, a second-degree felony in violation of R.C. 2925.041(A) and
(C)(2); Count 2, Possession of Heroin, a fourth-degree felony in violation of R.C.

2925.11(A) and (C)(6)(b); Count 3, Aggravated Possession of Drugs, a fifth-degree felony

in violation of R.C. 2925.11(A) and (C)(1)(a); and Count 4, Possessing Criminal Tools, a

fifth-degree felony in violation of R.C. 2923.24(A).

       {¶3}   Appellant was arraigned on February 19, 2016. He was appointed counsel

and entered a plea of not guilty to all four counts.

       {¶4}   On March 29, 2016, appellant entered into a plea agreement with appellee,

the state of Ohio. Appellant agreed to withdraw his not guilty plea. He entered a written

plea of guilty to Count 1 and Count 2; the state agreed to dismiss Count 3 and Count 4.

The parties also stipulated to a joint sentencing recommendation of five years in prison,

the minimum mandatory prison term on Count 1, and 12 months in prison on Count 2, to

be served concurrently with each other and with the sentences imposed by the Ashtabula

County Court of Common Pleas in two other cases: case No. 15-CR-664 and case No.

15-CR-419.

       {¶5}   At his plea and sentencing hearing, the trial court reviewed each page of

the plea agreement with appellant. The trial court accepted appellant’s guilty plea and

the stipulated joint sentencing recommendation; it ordered Counts 3 and 4 dismissed.

       {¶6}   The trial court entered judgment on March 29, 2016.

       {¶7}   On August 4, 2016, appellant filed a motion for leave to file a delayed appeal

from the March 29, 2016 judgment entry. This court denied the motion in State v. Erich,

11th Dist. Ashtabula No. 2016-A-0040, 2016-Ohio-7357.

       {¶8}   On August 4, 2016, appellant also filed a pro se motion to withdraw his guilty

plea pursuant to Crim.R. 32.1 and requested a hearing on the motion. On September 8,

2016, the trial court overruled the motion without hearing.

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      {¶9}    On September 20, 2016, appellant filed a second motion for leave to file a

delayed appeal from the trial court’s March 29, 2016 entry. This court granted appellant’s

motion on December 19, 2016.

      {¶10} Appellant asserts two assignments of error on appeal:

              [1.] The trial court abused its discretion in denying the defendant’s
              post-sentence motion to withdraw his guilty pleas without holding an
              evidentiary hearing.

              [2.] The defendant’s guilty pleas were not knowing and voluntary due
              to ineffective assistance of counsel.

      {¶11} Appellant’s first assignment of error pertains to the trial court’s denial of his

post-sentence motion to withdraw his guilty plea pursuant to Crim.R. 32.1. Appellant did

not file an appeal from the trial court’s September 8, 2016 judgment entry that overruled

the motion.

      {¶12} A trial court’s judgment of conviction is a final, appealable order when it sets

forth the fact of conviction, the sentence, the judge’s signature, and the time stamp

indicating the entry upon the journal by the clerk. State v. Lester, 130 Ohio St.3d 303,

2011-Ohio-5204, paragraph one of the syllabus (explaining Crim.R. 32(C) and modifying

State v. Baker, 119 Ohio St.3d 197, 2008-Ohio-3330). A trial court’s order denying a

post-sentence motion to withdraw a plea pursuant to Crim.R. 32.1 is also a final,

appealable order. State v. Damron, 4th Dist. Scioto No. 10CA3375, 2011-Ohio-165, ¶7,

citing State v. Kramer, 10th Dist. Franklin No. 03AP-633, 2004-Ohio-2646, ¶3-5.

      {¶13} Here, the trial court’s March 29, 2016 judgment of conviction and sentence

and its September 8, 2016 judgment overruling appellant’s post-sentence motion were

two separate final, appealable orders. Therefore, under App.R. 4(A), appellant had 30

days to file his notice of appeal from the trial court’s September 8, 2016 judgment entry.



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In the absence of a timely filed notice of appeal or motion for leave to file a delayed appeal

from the trial court’s September 8, 2016 entry, this court lacks jurisdiction to consider

appellant’s argument with regard to that judgment entry. See, e.g., State v. Olds, 11th

Dist. Ashtabula No. 2007-A-0066, 2012-Ohio-2890, ¶11.

       {¶14} Appellant’s first assignment of error is without merit.

       {¶15} In his second assignment of error, appellant argues he received ineffective

assistance of counsel.     Appellant alleges his trial counsel failed to file a motion to

suppress illegally obtained evidence and failed to adequately examine evidence prior to

advising him to enter into a plea agreement. Appellant maintains trial counsel’s deficient

representation precluded him from entering his plea knowingly, intelligently, and

voluntarily.

       {¶16} In order to prevail on an ineffective assistance of counsel claim, an appellant

must demonstrate that trial counsel’s performance fell “below an objective standard of

reasonable representation and, in addition, prejudice arises from counsel’s performance.”

State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph two of the syllabus (following

Strickland v. Washington, 466 U.S. 668 (1984)).

       {¶17} In the context of a conviction based on a guilty plea, an appellant must

demonstrate that (1) counsel’s performance was deficient and (2) but for counsel’s error,

there is a reasonable probability appellant would not have pleaded guilty. State v. Xie,

62 Ohio St.3d 521, 524 (1992), citing Strickland, supra, at 687 and Hill v. Lockhart, 474

U.S. 52, 57-59 (1985).

       {¶18} “A properly licensed attorney is presumed to be competent.”             State v.

Strong, 11th Dist. Ashtabula No. 2013-A-0003, 2013-Ohio-5189, ¶11, citing Strickland,

supra, at 688. “In order to rebut this presumption, the defendant must show the actions

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of counsel did not fall within a range of reasonable assistance.” Id., citing Strickland,

supra, at 689.

       {¶19} “[A] guilty plea ‘represents a break in the chain of events which has

preceded it in the criminal process.’” State v. Haynes, 11th Dist. Trumbull No. 93-T-4911,

1995 WL 237075, *1 (Mar. 3, 1995), quoting State v. Spates, 64 Ohio St.3d 269, 272

(1992). “[I]f a criminal defendant admits his guilt in open court, he waives the right to

challenge the propriety of any action taken by the court or counsel prior to that point in

the proceeding unless it affected the knowing and voluntary character of the plea.” Id.

Therefore, the defendant’s plea of guilty waives his or her right to assert an ineffective

assistance claim unless the defendant establishes counsel’s alleged errors affected the

knowing and voluntary nature of the plea. Id. at *2, citing State v. Barnett, 73 Ohio App.3d

244, 249 (2d Dist.1991).

       {¶20} Generally, a guilty plea is deemed to have been entered knowingly and

voluntarily if the record demonstrates the trial court complied with Crim.R. 11(C). See

State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶18. Crim.R. 11(C)(2) requires a

trial court to inform and determine whether the defendant understands (1) the nature of

the charge and the maximum penalty involved, and, if applicable, that the defendant is

not eligible for probation; (2) the effect of the plea; and (3) the constitutional rights being

waived by entering the plea.

       {¶21} Failure to file a motion to suppress does not amount to per se ineffective

assistance of counsel.      State v. Madrigal, 87 Ohio St.3d 378, 389 (2000), citing

Kimmelman v. Morrison, 477 U.S. 365, 384 (1986).             Instead, an appellant claiming

ineffective assistance due to failure to file a motion to suppress must demonstrate through

evidence in the record that there was a reasonable probability the result of the proceeding

                                              5
would have been different if the motion had been filed. State v. Walker, 11th Dist. Lake

No. 2009-L-155, 2010-Ohio-4695, ¶15 (citation omitted). “‘Where the record contains no

evidence which would justify the filing of a motion to suppress, the appellant has not met

his burden of proving that his attorney violated an essential duty by failing to file the

motion.’” State v. Tibbetts, 92 Ohio St.3d 146, 166 (2001), quoting State v. Gibson, 69

Ohio App.2d 91, 95 (8th Dist.1980).

      {¶22} In support of his claim that there were reasonable grounds to file a motion

to suppress, appellant argues the evidence against him was seized without a warrant,

and the circumstances surrounding the seizure did not meet an exception to the warrant

requirement.

      {¶23} The only limited facts of record are part of the plea and sentencing

transcript. Appellant explained that United States Marshals came into the house where

appellant and his fiancé were staying. The prosecutor explained the Marshals were

looking for a fugitive, arrived at the location where appellant was staying, and found two

bags in the home, which were identified as belonging to appellant. Those bags were

found to contain the components for manufacturing methamphetamine.

      {¶24} Nothing in the record before us supports appellant’s contention that the two

bags were improperly seized. Furthermore, establishing this fact would require proof

outside the record. “When affidavits or other proof outside the record are necessary to

support an ineffective assistance claim, * * * it is not appropriate for consideration on

direct appeal.” State v. Zupancic, 9th Dist. Wayne No. 12CA0065, 2013-Ohio-3072, ¶4,

citing Madrigal, supra, at 390-391; see also State v. Robinson, 11th Dist. Lake No. 98-L-

164, 2000 WL 1121806, *2 (Aug. 4, 2000). Because nothing in the record suggests the




                                            6
evidence was illegally obtained, appellant has failed to meet his burden of establishing

reasonable grounds existed for filing a motion to suppress.

       {¶25} Appellant further alleges trial counsel was ineffective because she failed to

“specifically request the results of the laboratory tests verifying the alleged amount of

heroin and did not share them with the defendant prior to advising him of a plea

agreement.”

       {¶26} Appellant’s trial counsel requested discovery in accordance with Crim.R.

16.   The request included “all laboratory and hospital reports” and “[a]ny evidence

favorable to the defendant and material to guilt or punishment.” The record does not

reflect whether counsel received the results of laboratory tests verifying the alleged

amount of heroin, what the results were, or any evidence of whether counsel shared the

information with appellant. Appellant’s allegation requires proof de hors the record and,

therefore, cannot be considered on appeal.

       {¶27} Appellant has failed to demonstrate trial counsel’s assistance fell below an

objective standard of reasonable representation. Appellant has also failed to demonstrate

that he was prejudiced by these alleged errors.

       {¶28} There is no evidence in the record to demonstrate trial counsel’s

representation precluded appellant from entering his plea knowingly and voluntarily. At

the plea and sentencing hearing, the trial court reviewed each page of appellant’s plea

agreement with him. Appellant stated he was able to read and write the English language,

that he was not under the influence of drugs or alcohol, and that he was not entering into

the plea agreement due to any threats or any promises other than those contained in the

plea agreement. Appellant also agreed he was satisfied with trial counsel, that she

answered all of his questions, and that she did everything appellant requested of her that

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she was legally and ethically permitted to do. Appellant also stated he had discussed the

plea agreement with counsel. The trial court explained the rights appellant would be

waiving by pleading guilty, the nature of the charges and possible penalties, and the effect

of entering a guilty plea to the charges.

       {¶29} Further, appellant received a benefit from his plea agreement. The trial

court dismissed Counts 3 and 4, and appellant received the minimum mandatory

sentence on Count 1 to be served concurrently with the sentence imposed on Count 2

and the sentences in two other cases. This result is precisely what both parties to the

plea agreement were attempting to accomplish. Therefore, the record demonstrates

appellant’s plea was entered knowingly and voluntarily.

       {¶30} Appellant’s second assignment of error is without merit.

       {¶31} For the foregoing reasons, the judgment of the Ashtabula County Court of

Common Pleas is affirmed.



DIANE V. GRENDELL, J., concurs,

COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.


                                 ____________________


COLLEEN MARY O’TOOLE, J., concurs with a Concurring Opinion.

       {¶32} I concur with the majority’s well-reasoned opinion.

       {¶33} I write separately to note that had appellant filed an amended notice of

appeal, or a motion for leave to file a delayed appeal under App.R. 5(A), this court may

have considered appellant’s first assignment of error.

       {¶34} Given appellant’s failure to do either, I concur.

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