[Cite as State v. Santiago, 2012-Ohio-3607.]




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

STATE OF OHIO                                      :
                                                   :     Appellate Case No. 2011-CA-29
        Plaintiff-Appellee                         :
                                                   :     Trial Court Case No. 10-CR-119
v.                                                 :
                                                   :
DAVID SANTIAGO, JR.                                :     (Criminal Appeal from
                                                   :     (Common Pleas Court)
        Defendant-Appellant                        :
                                                   :
                                                ...........

                                               OPINION

                              Rendered on the 10th day of August, 2012.

                                                ...........

ANTHONY E. KENDELL, Atty. Reg. #0067242, Miami County Prosecutor’s Office, 201
West Main Street, Miami County Safety Building, 201 West Main Street, Troy, Ohio 45373
      Attorney for Plaintiff-Appellee

D. ANDREW VENTERS, Atty. Reg. #0083246, Miller & Luring Co., LPA, 314 West Main
Street, Troy, Ohio 45373
        Attorney for Defendant-Appellant

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

HALL, J.

        {¶ 1}     We have previously outlined the facts and proceedings of this case as follows:

                 David Santiago Jr. was found guilty on his no-contest plea of trafficking
                                                                                      2


in drugs after the trial court overruled his motions to suppress evidence and to

withdraw his plea. Santiago appeals from his conviction.

        In the early morning hours of December 6, 2009, Santiago was stopped

in Troy after an officer saw him driving left of center. Based on his interaction

with the police officer, Jeff Kunkleman, Santiago was asked to perform field

sobriety tests, all of which he failed. He then submitted to a breath test, which

showed a blood alcohol level of .147. He was arrested for driving under the

influence.

        After placing Santiago in the cruiser, Kunkleman inventoried Santiago's

car before having it towed. Kunkleman opened Santiago's glove box using keys

that Santiago had thrown on the dash, and he found crack cocaine inside.

After he was informed of his rights, Santiago was interviewed by Kunkleman

and stated that the crack was his and that he “had gotten the crack * * * to try to

make a little extra money for the holidays.” Santiago denied that he used crack

or regularly sold it.

        Santiago was indicted for trafficking in drugs, in violation of R.C.

2925.03(A)(2) and 2925.03(C)(4)(e), and he pleaded not guilty. He filed a

motion to suppress all evidence against him on the grounds that his detention

and arrest had been illegal. After conducting a hearing, the trial court overruled

his motion to suppress. Santiago then changed his plea to no contest and was

found guilty. One day after entering his plea, however, he contacted his

attorney about withdrawing his plea. When this matter was raised with the

court at the sentencing hearing several weeks later, the court refused to allow
                                                                                          3


       Santiago to withdraw his plea, concluding that he had “simply had a change of

       heart and [was] attempting to delay the proceedings.”

State v Santiago, 195 Ohio App.3d 649, 2011 -Ohio-5292, 961 N.E.2d 264 (2d Dist.), ¶ 1-4

(footnote omitted).

       {¶ 2}    We overruled Santiago’s assignments of error challenging the trial court’s

denial of his motion to suppress evidence. However, our holding reversed the judgment of the

trial court and “remanded for consideration of Santiago’s pre-sentence motion to withdraw his

no contest plea.” Id at ¶ 68.

       {¶ 3}    Upon remand, an evidentiary hearing was conducted on November 3, 2011,

where Santiago was the only witness called. On November 7, 2011, the trial court issued a

nine-page written Decision/Judgment Entry (Doc. 34) that overruled the defendant’s request to

withdraw his guilty plea. Santiago appealed.

       {¶ 4}      On February 29, 2012, Santiago’s appellate counsel filed a brief pursuant to

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the

absence of any meritorious issues for our review. In the Anders brief, appellate counsel

recognized that this court previously had ruled on issues related to the overruling of the

defendant’s motion to suppress. Nonetheless, counsel did identify two potential assignments

of error relating to the remand and the trial court’s overruling of appellant’s motion to

withdraw his plea.

       {¶ 5}    We notified appellant that his counsel had filed an Anders brief and offered

appellant ample time to file a pro se brief. None has been received.

       {¶ 6}    The first potential assignment of error states: “The trial court abused its
                                                                                            4


discretion when it overruled Appellant’s motion to withdraw his plea.”

               “The term ‘abuse of discretion’ * * * implies that the court's attitude is

       unreasonable, arbitrary or unconscionable.” State v. Adams (1980), 62 Ohio

       St.2d 151, 157, 16 O.O.3d 169, 404 N.E.2d 144, citing Steiner v. Custer

       (1940), 137 Ohio St. 448, 19 O.O. 148, 31 N.E.2d 855. “Abuse of discretion”

       means “‘a discretion exercised to an end or purpose not justified by, and clearly

       against reason and evidence.’ 1 Bouv.Law Dict., Rawle's Third Revision, p. 94.

       * * * The term has been defined as ‘a view or action that no conscientious

       judge, acting intelligently, could honestly have taken.’” Wilms, 144 Ohio St. at

       624, 30 O.O. 220, 60 N.E.2d 308, quoting Long v. George (1937), 296 Mass.

       574, 579, 7 N.E.2d 149, quoting Davis v. Boston Elevated Ry. Co. (1920), 235

       Mass. 482, 502, 126 N.E. 841. Accord State ex rel. Shafer v. Ohio Turnpike

       Comm. (1953), 159 Ohio St. 581, 591, 50 O.O 465, 113 N.E.2d 14.

State v. Hancock, 108 Ohio St.3d 57, 2006–Ohio–160, 840 N.E.2d 1032, ¶ 130.

       {¶ 7}      We have reviewed the trial court’s written decision. It displays a full

consideration of this court’s remand, of the evidence presented at the hearing, and of the

applicable law. The record does not reveal anything to support an abuse of discretion

argument. We agree with counsel that this potential assignment of error does not have

arguable merit.

       {¶ 8}      The second potential assignment of error states: “The Appellant was denied

the effective assistance of counsel with respect to his motion to withdraw his plea.” 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,
                                                                                            5


prejudice arose from counsel's performance. Strickland v. Washington, 466 U.S. 668, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984). To show prejudice by counsel's deficient performance, the

defendant must affirmatively demonstrate to a reasonable probability that were it not for

counsel's errors, the result below would have been different. Id.; State v. Bradley, 42 Ohio

St.3d 136, 538 N.E.2d 373 (1989).

       {¶ 9}     Counsel below presented the defendant’s testimony, gave him the

opportunity to explain his reasons for asking to withdraw his plea, and forcefully argued to the

court that the plea should be withdrawn. There is simply nothing in the record to make a

non-frivolous argument concerning ineffective assistance of counsel. We agree with counsel

that an appeal based on this claim would have no arguable merit.

       {¶ 10}       We also carefully have reviewed the transcript and the record, and we have

conducted an independent review, as required by Anders. Our independent review reveals no

non-frivolous issues for appeal. Accordingly, the judgment of the Miami County Common

Pleas Court is affirmed.

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

FAIN and FROELICH, JJ., concur.

Copies mailed to:

Anthony E. Kendell
D. Andrew Venters
Hon. Christopher Gee
David Santiago, Jr.
