[Cite as State v. Miranda, 2013-Ohio-5109.]

                             IN THE COURT OF APPEALS OF OHIO

                                  TENTH APPELLATE DISTRICT



State of Ohio,                                   :

                 Plaintiff-Appellee,             :          No. 13AP-271
                                                         (C.P.C. No. 11CR-02-687)
v.                                               :
                                                       (REGULAR CALENDAR)
Luis A. Miranda,                                 :

                 Defendant-Appellant.            :




                                         D E C I S I O N

                                   Rendered on November 19, 2013


                 Ron O'Brien, Prosecuting Attorney, and Seth L. Gilbert, for
                 appellee.

                 Luis A. Miranda, pro se.

                  APPEAL from the Franklin County Court of Common Pleas.

BROWN, J.
        {¶ 1} This is an appeal by defendant-appellant, Luis A. Miranda, from a judgment
of the Franklin County Court of Common Pleas denying his motion to withdraw a guilty
plea.
        {¶ 2} On February 4, 2011, appellant was indicted on one count of engaging in a
pattern of corrupt activity, in violation of R.C. 2923.32, three counts of trafficking in
marijuana, in violation of R.C. 2925.03, and three counts of possession of marijuana, in
violation of R.C. 2925.11. Also named in the indictment were Hector Martinez, Arnaldo
Miranda, and Jermaine Howell.
No. 13AP-271                                                                              2


       {¶ 3} On April 18, 2011, appellant filed a "motion to suppress GPS tracking device
surveillance and derivative evidence." In the accompanying memorandum in support,
appellant argued that police officers had placed a GPS tracking device on a Honda pickup
truck operated by appellant and others, and that the officers had failed to obtain a warrant
authorizing the placement of the device. On May 11, 2011, the state filed a memorandum
contra the motion to suppress, citing State v. Johnson, 190 Ohio App.3d 750, 2010-Ohio-
5808 (12th Dist.), vacated by State v. Johnson, 131 Ohio St.3d 301, 2012-Ohio-975, for the
proposition that a law enforcement officer need not obtain a warrant to observe via a GPS
device where a driver chooses to drive. The trial court subsequently denied appellant's
motion to suppress.
       {¶ 4} On July 25, 2011, appellant entered a guilty plea to one count of trafficking
in marijuana. The trial court sentenced appellant by entry filed July 26, 2011, and the
court entered a nolle prosequi as to the remaining six counts.
       {¶ 5} On August 20, 2012, appellant filed a pro se "motion for reconsideration
due to newly interpreted law." Specifically, appellant cited the recent United States
Supreme Court decision in United States v. Jones, 132 S.Ct. 945, 949 (2012), in which the
Supreme Court held that the government's installation of a GPS device on a defendant's
vehicle, and its use of that device to monitor the vehicle's movements, constitutes a
"search."
       {¶ 6} On September 24, 2012, the state filed a memorandum contra appellant's
motion in which the state argued in part that, regardless of what the merits of appellant's
claim would now be under Jones, the search was lawful at the time it occurred. In its
memorandum, the state further argued that appellant "could have preserved his Fourth
Amendment objection either by going to trial or pleading no contest (assuming the
prosecutor would have agreed to a no contest plea) and then argued the merits of his
Fourth Amendment claim on direct appeal." By journal entry filed November 29, 2012,
the trial court denied appellant's motion for reconsideration of judgment.
       {¶ 7} On December 13, 2012, appellant filed a pro se motion to withdraw guilty
plea, asserting ineffective assistance of counsel. More specifically, appellant alleged that
his counsel failed to inform him that a no contest plea would have preserved for appeal
the issue whether the trial court erred in denying his pre-trial motion to suppress GPS
No. 13AP-271                                                                              3


tracking device surveillance. In his memorandum in support, appellant relied upon the
state's argument, in its memorandum contra appellant's motion for reconsideration, that
appellant could have preserved his Fourth Amendment objection by pleading no contest
and arguing the merits of the Fourth Amendment claim on appeal. On January 7, 2013,
the state filed a memorandum contra appellant's motion. By decision and entry filed
March 1, 2013, the trial court denied appellant's motion to withdraw guilty plea.
       {¶ 8} On appeal, appellant sets forth the following assignment of error for this
court's review:
               The trial court abused it's discretion in not holding a hearing
               on appellant's motion to withdraw his guilty plea.

       {¶ 9} Under his single assignment of error, appellant asserts the trial court erred
in denying his motion to withdraw guilty plea without holding a hearing. Appellant
contends that, had he entered a plea of no contest and preserved his right to appeal, his
conviction would have ultimately been reversed based upon the Supreme Court's decision
in Jones. Appellant maintains he has met his burden of demonstrating prejudice based
upon his counsel's failure to advise him with regard to preserving the Fourth Amendment
GPS search warrant issue.
       {¶ 10} Crim.R. 32.1 states: "A motion to withdraw a plea of guilty or no contest
may be made only before sentence is imposed; but to correct manifest injustice the court
after sentence may set aside the judgment of conviction and permit the defendant to
withdraw his or her plea." A motion by a defendant seeking to withdraw a guilty plea
pursuant to Crim.R. 32.1 "is addressed to the sound discretion of the trial court." State v.
Smith, 49 Ohio St.2d 261 (1977), paragraph two of the syllabus. Thus, an appellate court
will not reverse the denial of a motion to withdraw a guilty plea unless that decision was
unreasonable, arbitrary or unconscionable. State v. Gordon, 10th Dist. No. 03AP-490,
2003-Ohio-6558, ¶ 5, citing State v. Newland, 113 Ohio App.3d 832, 838 (4th Dist.1996).
       {¶ 11} A trial court is not automatically required to conduct a hearing on a post-
sentence motion to withdraw a guilty plea. State v. Barrett, 10th Dist. No. 11AP-375,
2011-Ohio-4986, ¶ 9. Rather, "[a] hearing must only be held if the facts alleged by the
defendant, accepted as true, would require that the defendant be allowed to withdraw the
plea." Id. See also State v. Vincent, 4th Dist. No. 03CA2713, 2003-Ohio-3998, ¶ 10 ("a
No. 13AP-271                                                                               4


trial court need only conduct an evidentiary hearing when the facts, as alleged by the
defendant, indicate a manifest injustice would occur if the plea was allowed to stand").
       {¶ 12} Under Ohio law, "[i]neffective assistance of counsel can constitute manifest
injustice sufficient to allow the post-sentence withdrawal of a guilty plea." State v.
Dalton, 153 Ohio App.3d 286, 2003-Ohio-3813, ¶ 18 (10th Dist), citing State v. Lake, 1oth
Dist. No. 95APA07-847 (Mar. 28, 1996). In order to prevail on a claim of ineffective
assistance of counsel as applied to the plea process, an appellant must show (1) "that
counsel's performance was deficient" and (2) "that there is a reasonable probability that,
but for counsel's errors, he would not have entered his plea." State v. Bird, 81 Ohio St.3d
582, 585 (1998).
       {¶ 13} In support of his argument that trial counsel did not advise him regarding a
no contest plea, appellant points to a letter he attached to a motion to supplement the
record filed with the trial court as part of his motion to withdraw. The letter, addressed to
appellant and signed by his trial counsel, states in part:
               Please excuse the delay in responding to your letter. The
               Assistant Prosecuting Attorney * * * made it very clear to me
               that a plea of guilty to one count of trafficking in marijuana
               was a condition of the offer to dismiss the remaining charges.
               This was consistent with the policy of the Franklin County
               Prosecutor's Office that if a defendant wishes to plead no
               contest, he must do so to all counts of the indictment.

               In your case, there was a strong likelihood of a significantly
               longer prison term if you pled no contest to all counts of the
               indictment. The entire purpose of the plea bargain was to
               avoid this risk.

               Keep in mind that if you are permitted to withdraw your guilty
               plea, all of the dismissed counts of the indictment would be
               reinstated. It is by no means certain that the ruling in United
               States v. Jones, 132 S.Ct. 1533 (2012) applies to police
               conduct occurring before the case was decided. See United
               States v. Pineda-Moreno, 688 F.3d 1087, 1090-91 (9th Cir.
               2012) (refusing to apply Jones retroactively).

       {¶ 14} The state argues that the above letter proffered by appellant indicates the
prosecutor was unwilling to agree to a no contest plea to a single trafficking count. The
No. 13AP-271                                                                                5


state further contends there is no evidence in the record that the prosecutor ever extended
an offer for a no contest plea to the entire indictment.
       {¶ 15} In general, in order to demonstrate that his counsel was ineffective for
permitting him to enter a guilty plea, appellant must show: (1) the state would have
agreed to a no contest plea on the same terms, (2) appellant's counsel failed to advise him
that a no contest plea (in contrast to a guilty plea) would preserve the suppression issue
on appeal, and (3) had appellant been so advised, he would have rejected the plea offer.
State v. McGlown, 2d Dist. No. 25434, 2013-Ohio-2762, ¶ 17.
       {¶ 16} The trial court, in denying the motion to withdraw guilty plea, found that
appellant "proceeded in July 2011 knowing exactly what he was doing. There were risks,
and rewards, among his various choices but he did not really have an opportunity to
obtain the same rewards from a 'no contest' plea that he obtained from his 'guilty' plea."
The court noted that appellant, by entering a guilty plea, "eliminated exposure to multiple
charges (six were nolled) in this very serious case in which [appellant] was part of a highly
organized drug dealing group," and that appellant "knew that he could proceed to trial,
but that had he gone forward with trial and lost the court might have imposed a much
more lengthy sentence instead due to multiple crimes, rather than merely eight years in
prison for one charge."
       {¶ 17} The trial court also found that the letter submitted by appellant
"undermines" his argument that he could have bargained for a favorable no contest plea.
Specifically, the court noted: "Attorney Belli says in the letter that the prosecuting
attorney back in July 2011 would only accept a 'guilty' plea, not a 'no contest' plea, in
exchange for dismissal of the six remaining criminal charges. That was standard policy of
the Prosecutor's Office." (Emphasis sic.) Thus, the court concluded, appellant's
"supposition that had he known more he could have bargained for a 'no contest' plea
otherwise on the same terms as his 'guilty' plea simply has no factual basis."
       {¶ 18} The record supports the trial court's determination that there is no factual
basis for appellant's assumption he could have bargained for reduced charges in exchange
for a no contest plea. As noted by the trial court, the letter from trial counsel, submitted
as part of appellant's motion, undermines this claim. In light of the favorable terms he
received, including the nolle prosequi of six counts, appellant's assertion that his counsel's
No. 13AP-271                                                                                6


performance was deficient is without merit. See State v. James, 1st Dist. No. C-040376,
2006-Ohio-2478, ¶ 67 (rejecting defendant's claim that trial counsel's performance was
deficient in failing to advise him to plead no contest rather than guilty since guilty pleas
with agreed sentences would foreclose his right to appeal trial court's denial of
suppression motion; nothing in record supported defendant's assumption state would
have agreed to reduced charges in exchange for no contest pleas rather than guilty pleas).
       {¶ 19} Further, appellant cannot demonstrate deficiency as a result of trial
counsel's failure to anticipate, in 2011, the United States Supreme Court's 2012 ruling in
Jones. In general, trial counsel is not ineffective in "failing to be clairvoyant" about how a
court might ultimately rule on a legal issue. State v. Wallace, 1st Dist. No. C-77227
(Feb. 15, 1978). At the time of appellant's plea (July 2011), the law was unsettled as to
whether the use of GPS tracking devices constituted a search. In 2010, the 12th District
Court of Appeals held in Johnson that GPS surveillance of a defendant during a criminal
investigation did not constitute a search or seizure under the Fourth Amendment. The
court in Johnson relied in part on similar rulings by federal courts. See Johnson at ¶ 26,
citing United States v. Pineda-Moreno, 591 F.3d 1212, 1215 (9th Cir.2010) (upholding
warrantless placement of GPS device on defendant's vehicle on the basis such placement
did not constitute a "search"); United States v. Marquez, 605 F.3d 604, 610 (8th
Cir.2010) (holding that, under the Fourth Amendment, police not required to obtain a
warrant to place a GPS tracking device on truck defendant drove in order to record its
travels).
       {¶ 20} Federal courts have also declined to find deficient performance by defense
counsel in failing to anticipate the Supreme Court's decision in Jones. See Ricks v. United
States, D.C.Md. No. WDQ-12-1368 (Oct. 10, 2013) (trial counsel not ineffective for
advising Ricks, five months before Jones was decided, that he could not successfully
challenge GPS evidence and recommending that he accept a more favorable plea
agreement resulting in the government dismissing two counts against him); United States
v. Jesus-Nunez, M.D.Pa. No. 1:10-CR-017-01 (Jan. 25, 2013) ("Attorney * * * could not be
expected to predict that future case law would find that the use of warrantless GPS
evidence, such as the type used here, violated the Fourth Amendment"); United States v.
Drayton, Kan.App. No. 13-3148 (Oct. 9, 2013) (considering, at the time of defendant's
No. 13AP-271                                                                                              7


arrest, that the majority of circuit courts that addressed the issue held that no warrant was
required for a GPS device, counsel's decision not to file a motion to suppress "was not
'objectively unreasonable.'        That the Supreme Court ultimately reached the opposite
conclusion in United States v. Jones * * * more than one year after Drayton's plea, does
not render counsel's performance 'objectively unreasonable' ").1
        {¶ 21} Based upon the foregoing, the trial court did not abuse its discretion in
denying appellant's motion to withdraw his guilty plea because of ineffective assistance of
counsel. Further, because appellant cannot demonstrate that withdrawal of the plea is
necessary to correct a manifest injustice, the trial court did not err in deciding the motion
without first conducting an evidentiary hearing. State v. Buck, 9th Dist. No. 04CA008516,
2005-Ohio-2810, ¶ 14, quoting State v. Russ, 8th Dist. No. 81580, 2003-Ohio-1001, ¶ 12
("An evidentiary hearing on a post-sentence motion to withdraw a guilty plea is not
required if the 'record indicates that the movant is not entitled to relief and the movant
has failed to submit evidentiary documents sufficient to demonstrate a manifest
injustice.' ").
        {¶ 22} Based upon the foregoing, appellant's single assignment of error is
overruled, and the judgment of the Franklin County Court of Common Pleas is hereby
affirmed.
                                                                                   Judgment affirmed.

                             O'GRADY and McCORMAC, JJ., concur.

                  McCORMAC, J., retired of the Tenth Appellate District,
                  assigned to active duty under authority of the Ohio
                  Constitution, Article IV, Section 6(C).

                                  ______________________




1 Courts have also determined that the holding in Jones is not retroactively applicable to a conviction that

has become final. See, e.g., State v. Kelly, 12th Dist. No. CA2013-01-020, 2013-Ohio-3675, ¶ 24 (defendant
not entitled to retroactive application of Jones; "It is well-established that a new judicial ruling may be
applied only to cases that are pending on the announcement date").
