[Cite as State v. Ramsey, 2011-Ohio-4184.]




                      IN THE COURT OF APPEALS OF OHIO
                          THIRD APPELLATE DISTRICT
                              MARION COUNTY




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                             CASE NO. 9-10-55

        v.

TERESA M. RAMSEY,                                       OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Marion County Common Pleas Court
                            Trial Court No. 10-CR-224

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                            Date of Decision: August 22, 2011




APPEARANCES:

        Kevin P. Collins for Appellant

        Brent W. Yager and David J. Stamolis for Appellee
Case No. 9-10-55



ROGERS, P.J.

       {¶1} Defendant-Appellant, Teresa Ramsey, appeals from the judgment of

the Court of Common Pleas of Marion County finding her guilty of operating a

vehicle under the influence and sentencing her to a two-year term of community

control with twenty-nine sanctions. On appeal, Ramsey contends that the trial

court erred in denying her motion to suppress, that the trial court erred in denying

her attorney’s motion to withdraw from representation, that the trial court erred in

assessing her court-appointed attorney’s fees, and that she received ineffective

assistance of counsel. Based on the following, we affirm in part and reverse in

part the trial court’s judgment.

       {¶2} In May 2010, the Marion County Grand Jury indicted Ramsey with a

single count of operating a vehicle under the influence a violation of R.C.

4511.19(A)(1)(a), with the sole specification that Ramsey had been convicted of

or pleaded guilty to three or more violations of R.C. 4511.19(A) or (B) or a similar

local statute within the last six years of the present offense, a felony of the fourth

degree.   The indictment arose as a result of a motorist notifying local law

enforcement, via telephone, of a driver possibly operating a vehicle under the

influence. Based on the motorist’s call an officer executed a traffic stop of the

vehicle, which was operated by Ramsey. As a result of the traffic stop the officer

determined that Ramsey was operating her vehicle under the influence.

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       {¶3} In that same month, Ramsey entered a plea of not guilty to the single

count in the indictment and filed an affidavit of indigency.       The trial court,

subsequently, appointed an attorney to represent Ramsey.

       {¶4} On August 3, 2010, Ramsey filed a motion to suppress, arguing that a

telephone call notifying law enforcement of a driver possibly operating a vehicle

under the influence does not result in reasonable articulable suspicion necessary to

initiate a traffic stop.

       {¶5} On August 9, 2010, the trial court held a hearing on Ramsey’s motion

to suppress and denied her motion.

       {¶6} On August 12, 2010, Ramsey appeared before the trial court for a

change of plea hearing. During the change of plea hearing the State presented a

recommended sentence of two-years of community control, a one hundred twenty

(120) day jail term, a $1,350.00 mandatory fine, and a three-year suspension of

Ramsey’s operator’s license. Change of Plea Hearing Tr., p. 32. In return, the

State would dismiss the sole specification. Prior to accepting Ramsey’s plea of

guilty the trial court conducted a thorough Crim.R. 11 colloquy. At the conclusion

of the Crim.R. 11 colloquy, Ramsey entered a plea of guilty to the single count of

the indictment, and the trial court accepted Ramsey’s plea of guilty. Pursuant to

the plea agreement the State moved to dismiss the specification, and the trial court

found the motion well taken.

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      {¶7} On September 8, 2010, Ramsey’s attorney filed a motion to withdraw,

stating, in pertinent part, that “(1) [Ramsey] no longer wishes to be represented by

said counsel, and (2) [Ramsey] wants new court appointed counsel to represent her

in this matter.” September 8, 2010, Motion to Withdraw.

      {¶8} On September 30, 2010, the matter proceeded to sentencing. Before

the trial court proceeded with sentencing, it first addressed Ramsey’s attorney’s

motion to withdraw from representation. After hearing testimony on the matter

the trial court denied Ramsey’s attorney’s motion to withdraw from

representation. Subsequently, the trial court proceeded with the sentencing

hearing. The trial court sentenced Ramsey, stating:

      IT IS THEREFORE ORDERED, ADJUDGED, AND
      DECREED that the Defendant, TERESA M. RAMSEY, is
      sentenced on:

      Count [One]: Operating a Vehicle Under the Influence [R.C.
      4511.19(A)(1)(a)], F4, to two (2) years of community control,
      subject to the general supervision of the Adult Probation
      Department.

October 12, 2010 Judgment Entry, p. 1. Appurtenant to Ramsey’s two-year term

of community control were twenty-nine sanctions including, inter alia, that she

serve one hundred twenty days in jail, pay court costs, pay a mandatory fine of

$1,350.00 to the State, and pay court-appointed attorney’s fees. The trial court

further ordered that Ramsey’s operator license be suspended for three (3) years.


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       {¶9} It is from this judgment Ramsey appeals, presenting the following

assignments of error for our review.

                            Assignment of Error No. I

       THE TRIAL COURT ERRED TO THE PREJUDICE OF THE
       DEFENDANT-APPELLANT BY DENYING HER MOTION
       TO SUPPRESS EVIDENCE.

                               Assignment of Error No. II

       THE TRIAL COURT ERRED TO THE PREJUDICE OF
       DEFENDANT-APPELLANT BY DENYING THE MOTION
       TO WITHDRAW FILED BY HER ATTORNEY.

                              Assignment of Error No. III

       THE TRIAL COURT ERRED TO THE PREJUDICE OF
       DEFENDANT-APPELLANT   BY   ASSESSING COURT
       APPOINTED ATTORNEY FEES AGAINST HER.

                           Assignment of Error No. IV

       DEFENDANT-APPELLANT RECEIVED PREJUDICIALLY
       INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION
       OF HIS (SIC) SIXTH AND FOURTEENTH AMENDMENT
       RIGHTS, AS WELL AS HIS (SIC) RIGHTS UNDER
       SECTION 10, ARTICLE I, (SIC) OHIO CONSTITUTION.

       {¶10} Due to the nature of Ramsey’s assignments of error, we will address

her first, second, and fourth assignments of error together and her third assignment

of error last.




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                        Assignments of Error Nos. I, II & IV

       {¶11} In her first, second, and fourth assignments of error, Ramsey

contends that the trial court erred in denying her motion to suppress, erred in

denying her attorney’s motion to withdraw from representation, and that she

received ineffective assistance of counsel, respectively.

       {¶12} In relation to the trial court’s denial of Ramsey’s motion to suppress,

the State contends that by virtue of her plea of guilty Ramsey has waived her right

to appeal the trial court’s denial of her motion to suppress. We agree. A guilty

plea waives all appealable orders except for a challenge as to whether the

defendant made a knowing, intelligent, and voluntary acceptance of the plea.

State v. Spates, 64 Ohio St.3d 269, 272, 1992-Ohio-130. In light of the forgoing,

we further find that Ramsey, by virtue of her plea of guilty, waived her right to

appeal her claim of ineffective assistance of counsel, and the trial court’s denial of

her attorney’s motion to withdraw from representation.

                           Denial of Motion to Suppress

       {¶13} This Court has previously held in State v. Kuhner, 154 Ohio App.3d

457, 797, 2003-Ohio-4631, ¶4:

       A plea of guilty is a complete admission of guilt. Crim.R.
       11(B)(1). A defendant who enters a plea of guilty waives the
       right to appeal all nonjurisdictional issues arising at prior stages
       of the proceedings, although the defendant may contest the
       constitutionality of the plea itself. Ross v. Common Pleas Court

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Case No. 9-10-55



      of Auglaize Cty. (1972), 30 Ohio St.2d 323, 285 N.E.2d 25. “Thus,
      by entering a guilty plea, a defendant waives the right to raise on
      appeal the propriety of a trial court’s suppression ruling.” State
      v. McQueeney, 148 Ohio App.3d 606, 774 N.E.2d 1228, 2002-
      Ohio-3731, ¶13.

Consequently, by virtue of pleading guilty, we find that Ramsey has waived her

right to appeal the trial court’s denial of her motion to suppress. See also State v.

Smith, 3d Dist. No. 1-04-06, 2004-Ohio-4004, ¶9.

                        Ineffective Assistance of Counsel

      {¶14} This Court has also previously held in State v. Streets, 3d Dist. No.

5-98-09, 1998 WL 682284, *2:

      A plea of guilty waives a claim of ineffective assistance of
      counsel, except to the extent the defects complained of caused the
      plea to be less than knowing and voluntary. State v. Barnett
      (1991), 73 Ohio App.3d 244, 249, 596 N.E. 2d 1101. If a
      defendant can demonstrate that he [or she] received ineffective
      assistance of counsel in entering his [or her] guilty plea and that
      but for that ineffective assistance he [or she] would have
      proceeded to trial, then we would be required to reverse a
      defendant’s sentence and remand the matter to the trial court to
      allow the defendant to withdraw his [or her] plea. State v.
      Freeman (July 3, 1997), Shelby App. Nos. 17-96-18 and 17-96-19,
      unreported, citing Hill v. Lockhart (1985), 474 U.S. 52, 106 S.Ct.
      366, 88 L.Ed.2d 203. The defendant bears the burden of proof in
      demonstrating ineffective assistance of counsel. State v. Smith
      (1985), 17 Ohio St.3d 98, 477 N.E.2d 1128.

See also, State v. Jackson, 3d Dist. No. 1-98-78, 1999 WL 253236; State v.

Kitzler, 3d Dist. No. 16-02-06, 2002-Ohio-5253, ¶¶12-13.



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      {¶15} On appeal, Ramsey contends that she received ineffective assistance

of counsel because her attorney failed to explain the proceedings to her, was not

accessible, and did not provide meaningful advice. Ramsey, however, does not

claim that her attorney’s alleged ineffective assistance affected the voluntary and

knowing nature of her plea. Consequently, Ramsey’s fourth assignment of error is

outside our scope of review on appeal.

                    Motion to Withdraw from Representation

      {¶16} In Ramsey’s second assignment of error, she contends that the trial

court erred in denying her attorney’s motion to withdraw from representation.

Absent evidence in the record demonstrating a connection between the trial court’s

denial of an attorney’s motion to withdraw from representation and the

voluntariness and knowingness of appellant’s plea of guilty, denial of such a

motion will not affect whether the appellant knowingly, intelligently, and

voluntarily entered a plea. Here, Ramsey neither contends that the trial court’s

denial of her attorney’s motion to withdraw from representation affected her plea

nor does she present any evidence to support the same. Consequently, Ramsey’s

second assignment of error is outside our scope of review on appeal.

      {¶17} Accordingly, we overrule Ramsey’s first, second, and fourth

assignments of error.



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                           Assignment of Error No. III

      {¶18} In her third assignment of error, Ramsey contends that the trial court

erred in ordering her to pay court-appointed attorney’s fees. Specifically, Ramsey

contends that the trial court failed to make an “affirmative determination” as to

whether she was financially capable of paying court-appointed attorney’s fees.

We agree.

      {¶19} R.C. 2941.51(D) provides the following pertinent provision

concerning court-appointed attorney’s fees: “ * * * if the person represented has,

or reasonably may be expected to have, the means to meet some part of the cost of

the services rendered to the person, the person shall pay the county an amount that

the person reasonably can be expected to pay.” This Court has previously stated,

however, that:

      [A]n indigent defendant may properly be required to pay his
      attorney fees only after the court makes an affirmative
      determination on the record in the form of a journal entry, that
      the defendant has, or reasonably may be expected to have, the
      means to pay all or some part of the cost of the legal services
      rendered to him. The court must then enter a separate civil
      judgment for the attorney fees or any part thereof that the court
      finds the defendant has the ability to repay.

State v. Johnson, 3d Dist. No. 16-03-09, 2004-Ohio-1513, ¶50, quoting City of

Galion v. Martin, 3d Dist. No. 3-91-06, 1991 WL 261835. The trial court sub

judice failed to make an affirmative finding of Ramsey’s present or future ability


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to pay court-appointed attorney’s fees in its sentencing journal entry; and

therefore, the trial court erred in assessing court-appointed attorney’s fees.

Consequently, we must remand this matter for resentencing in accordance with the

procedures adopted by this Court in City of Galion v. Martin and its progeny.

       {¶20} Accordingly, we sustain Ramsey’s third assignment of error.

       {¶21} In addition to Ramsey’s assignments of error, we, sua sponte, address

plain error in Ramsey’s sentencing. In order to have plain error under Crim.R.

52(B) there must be an error, the error must be an “obvious” defect in the trial

proceedings, and the error must have affected “substantial rights.” State v. Barnes,

94 Ohio St.3d 21, 27, 2002-Ohio-68. Plain error is to be used “with the utmost

caution, under exceptional circumstances and only to prevent a manifest

miscarriage of justice.” Id. Plain error exists only in the event that it can be said

that “but for the error, the outcome of the trial would clearly have been otherwise.”

State v. Biros, 78 Ohio St.3d 426, 431, 1997-Ohio-204; see State v. Johnson, 3d

Dist. No. 2-98-39, 1999-Ohio-825.

       {¶22} As it stands now, the record reflects that Ramsey has been convicted

of a felony of the fourth degree, pursuant to R.C. 4511.19(G)(1)(d), and sentenced

accordingly. See October 12, 2010 Judgment Entry, p. 1. This is plain error.

During the change of plea hearing the State moved to dismiss the sole

specification to the single count of operating a vehicle under the influence. The

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trial court found the motion well taken, and memorialized the dismissal in its

October 12, 2010 judgment entry. Despite having memorialized the dismissal in

its October 12, 2010 judgment entry, the trial court failed to adjust the level of

offense Ramsey would be guilty of in the absence of the specification. The effect

of the dismissal drops Ramsey’s offense from a felony of the fourth degree to a

misdemeanor of the first degree.      Compare R.C. 4511.19(G)(1)(d) with R.C.

4511.19(G)(1)(a). Accordingly, Ramsey entered a plea of guilty to a misdemeanor

of the first degree, and the trial court should have sentenced her pursuant to R.C.

4511.19(G)(1)(a).

       {¶23} In light of this error, we remand this matter for resentencing in

accordance with R.C. 4511.19(G)(1)(a).

       {¶24} Having found no error prejudicial to Ramsey herein, in the

particulars assigned and argued in the first, second, and fourth assignments of

error, but having found error prejudicial to the appellant, in the particulars

assigned and argued in the third assignment of error, as well as plain error in her

sentencing, we affirm in part, and reverse in part, the judgment of the trial court,

and remand for further proceedings consistent with this opinion.

                                                       Judgment Affirmed in Part,
                                                            Reversed in Part, and
                                                                Cause Remanded
SHAW and PRESTON, J.J., concur.
/jlr

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