[Cite as State v. Hampton, 2018-Ohio-1544.]




                            IN THE COURT OF APPEALS OF OHIO
                                SIXTH APPELLATE DISTRICT
                                       ERIE COUNTY


State of Ohio                                     Court of Appeals Nos. E-17-008
                                                                        E-17-009
        Appellee
                                                  Trial Court Nos. 2015-CR-0426
v.                                                                 2016-CR-0098

Prince E. Hampton                                 DECISION AND JUDGMENT

        Appellant                                 Decided: April 20, 2018

                                              *****

        Kevin J. Baxter, Erie County Prosecuting Attorney, and
        Martha S. Schultes, Assistant Prosecuting Attorney, for appellee.

        Geoffrey L. Oglesby and Danielle C. Kulik, for appellant.

                                              *****

        JENSEN, J.

        {¶ 1} This is a consolidated appeal from the judgments of the Erie County Court

of Common Pleas, following guilty pleas, convicting appellant, Prince Hamilton, of one

count of trafficking in cocaine in violation of R.C. 2925.03(A)(1) and (C)(4)(b), a felony

of the fourth degree, and one count of possession of cocaine in violation of R.C.
2925.11(A) and (C)(4)(f), a felony of the first degree, with a forfeiture specification. For

the reasons that follow, we affirm.

                          I. Facts and Procedural Background

       {¶ 2} On May 14, 2015, appellant was indicted in case No. 2015-CR-0148 on one

count of possession of cocaine in violation of R.C. 2925.11(A) and (C)(4)(c), a felony of

the third degree, and one count of preparation of cocaine for sale in violation of R.C.

2925.03(A)(2) and (C)(4)(d), a felony of the second degree. Then, on October 14, 2015,

appellant was indicted in case No. 2015-CR-0426 on one count of trafficking in cocaine

in violation of R.C. 2925.03(A)(1) and (C)(4)(a), a felony of the fifth degree, and two

counts of trafficking in cocaine in violation of R.C. 2925.03(A)(1) and (C)(4)(b), felonies

of the fourth degree. Appellant entered pleas of not guilty to the charges.

       {¶ 3} On October 28, 2015, appellant moved to join case Nos. 2015-CR-0148 and

2015-CR-0426. Appellant argued that the drug purchases that formed the basis of the

indictment in case No. 2015-CR-0426 led to the issuance of a search warrant, the

execution of which resulted in the charges in case No. 2015-CR-0148. Appellant further

argued that he was funding his own defense and that a single trial “is economic for

counsel,” would diminish the inconvenience to witnesses, and would conserve valuable

court resources, time, and court costs. The trial court granted appellant’s motion on

December 7, 2015.




2.
       {¶ 4} On February 1, 2016, appellant filed a motion to suppress in which he

argued that the evidence resulting from the execution of the search warrant should be

excluded because probable cause did not exist to support the search warrant.

       {¶ 5} Thereafter, on May 10, 2016, the Erie County Grand Jury entered a new

indictment against appellant in case No. 2016-CR-0098 on one count of possession of

cocaine in violation of R.C. 2925.11(A) and (C)(4)(f), a felony of the first degree, one

count of preparation of cocaine for sale in violation of R.C. 2925.03(A)(2) and (C)(4)(g),

a felony of the first degree, one count of aggravated possession of drugs in violation of

R.C. 2925.11(A) and (C)(1)(b), a felony of the third degree, and one count of aggravated

preparation of drugs for sale in violation of R.C. 2925.03(A)(2) and (C)(1)(c), a felony of

the second degree. Appellant entered an initial plea of not guilty to these charges.

       {¶ 6} On August 25, 2016, all three cases were called, and it was announced that

the state and appellant had reached a plea agreement. Appellant agreed to withdraw his

motion to suppress and any other pending motions, plead guilty in case No. 2015-CR-

0426 to one count of trafficking in cocaine in violation of R.C. 2925.03(A)(1) and

(C)(4)(b), a felony of the fourth degree, and plead guilty in case No. 2016-CR-0098 to

one count of possession of cocaine in violation of R.C. 2925.11(A) and (C)(4)(e) as

amended to remove the major drug offender specification, a felony of the first degree.

Appellant also agreed to plead guilty to forfeiture specifications totaling $14,448. In

exchange, the state agreed to dismiss all of the remaining counts. Further, the parties

agreed upon a recommended sentence of eight years in prison.




3.
       {¶ 7} The trial court then conducted a detailed Crim.R. 11 plea colloquy, and

accepted appellant’s plea of guilty. The court immediately proceeded to sentencing, and

ordered appellant to serve eight years in prison in case No. 2016-CR-0098, and ten

months in prison in case No. 2015-CR-0426, with those sentences to run concurrently for

a total prison term of eight years.

       {¶ 8} Subsequently, appellant moved to withdraw his guilty plea.1 Appellant

argued that his plea was not voluntarily made because he was uninformed of our decision

in State v. Gonzales, 6th Dist. Wood No. WD-13-086, 2015-Ohio-461, ¶ 47, in which we

held that, in prosecuting cocaine offenses under R.C. 2925.11(C)(4)(a) through (f), the

state “must prove that the weight of the actual cocaine possessed by the defendant met

the statutory threshold.” (Emphasis sic.) Thus, appellant concluded that he could not

have been found guilty of first-degree felony possession of cocaine. But see State v.

Gonzales, 150 Ohio St.3d 276, 2017-Ohio-777, 81 N.E.3d 419, ¶ 18 (reversing our

decision and holding that “the applicable offense level for cocaine possession under R.C.

2925.11(C)(4) is determined by the total weight of the drug involved, including any

fillers that are part of the usable drug”).

       {¶ 9} The trial court has not ruled on appellant’s postconviction motion to

withdraw his guilty plea because appellant also filed a motion for delayed appeal, which



1
  While the state’s response to appellant’s motion and appellant’s reply are in the record,
the original motion to withdraw the guilty plea is not. Nonetheless, we can glean
appellant’s arguments from the other filings.




4.
we granted, thereby divesting the trial court of jurisdiction to rule on the motion to

withdraw the guilty plea. See State v. Falin, 6th Dist. Wood No. WD-11-035, 2011-

Ohio-3408, ¶ 3 (“[Defendant’s] filing of a notice of appeal from his conviction and

sentence divested the trial court of jurisdiction to address his motion to withdraw his

plea.”).

                                 II. Assignments of Error

       {¶ 10} Appellant now presents four assignments of error for our review:

              I. The Defendant had ineffective assistance of counsel when

       Defendant’s counsel files a motion to join two distinct indictments creating

       a conflict of interest where there is a substantial risk that the lawyer’s

       ability to consider, recommend, or carry out an appropriate course of action

       for that client will be materially limited by the lawyer’s own personal

       interests.

              II. Defendant had ineffective assistance of counsel and the Court

       erred in accepting the defendant’s plea to Count I of Case No. 2016-CR-

       098.

              III. The trial court erred by not granting the defendant’s motion to

       withdraw his plea as the defendant’s plea was not done voluntarily and

       knowingly.




5.
              IV. Defendant’s plea was not voluntary as he was not informed of

       withdrawing his motion to suppress which dealt with the fundamental issue

       of probable cause.

                                       III. Analysis

       {¶ 11} In his first assignment of error, appellant argues that he received ineffective

assistance of counsel when counsel moved to join case Nos. 2015-CR-0148 and 2015-

CR-0426. Appellant contends that counsel was motivated by economic factors, which

created an impermissible conflict of interest because there was no strategic benefit to

trying the two cases together.

       {¶ 12} To prevail on a claim of ineffective assistance of counsel, appellant must

satisfy the two-prong test developed in Strickland v. Washington, 466 U.S. 668, 687, 104

S.Ct. 2052, 80 L.Ed.2d 674 (1984). That is, appellant must demonstrate that counsel’s

performance fell below an objective standard of reasonableness, and a reasonable

probability exists that, but for counsel’s error, the result of the proceedings would have

been different. Id. at 687-688, 694. “The object of an ineffectiveness claim is not to

grade counsel’s performance. If it is easier to dispose of an ineffectiveness claim on the

ground of lack of sufficient prejudice, which we expect will often be so, that course

should be followed.” Id. at 697.

       {¶ 13} We find that appellant has not demonstrated any prejudice from counsel’s

conduct. Appellant never went to trial on the five counts contained in case Nos. 2015-

CR-0148 and 2015-CR-0426. Rather, appellant pleaded guilty to one count of trafficking




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in cocaine in case No. 2015-CR-0426, and the remaining counts were dismissed. Further,

appellant does not point to any fact in the record showing that he would not have pleaded

guilty had the cases not been joined. Therefore, we hold that appellant has not satisfied

the second prong of the Strickland test, and his claim of ineffective assistance of counsel

must fail.

       {¶ 14} Accordingly, appellant’s first assignment of error is not well-taken.

       {¶ 15} In his second assignment of error, appellant argues that counsel was

ineffective for failing to inform appellant that he could not have been found guilty of the

count of possession of cocaine in violation of R.C. 2925.11(A) and (C)(4)(e) under our

decision in State v. Gonzales, 6th Dist. Wood No. WD-13-086, 2015-Ohio-461.

       {¶ 16} “In Ohio, a properly licensed attorney is presumed competent. * * * The

appellant bears the burden of proving that his trial counsel was ineffective.” (Internal

citations omitted.) State v. Hamblin, 37 Ohio St.3d 153, 155-156, 524 N.E.2d 476

(1988).

       {¶ 17} Here, we note that while appellant asserts that he could not have been

found guilty based on the weight of the cocaine, appellant does not identify anything in

the record showing that the weight of actual cocaine was under the statutory threshold in

light of our decision in Gonzales. Indeed, the indictment simply states that appellant “did

knowingly possess, use, or obtain, a Schedule II controlled substance in an amount

greater than or equal to 100 grams of Cocaine, to wit: 1,360.35 grams of Cocaine +/-

0.26 of a gram of Cocaine plus a trace amount of Cocaine.” Furthermore, appellant has




7.
not identified any fact in the record showing that he was not informed of our decision in

Gonzales. Therefore, we hold that appellant has failed to establish both that counsel’s

performance fell below an objective standard of reasonableness and that the result of the

proceedings would have been different but for the alleged error.

       {¶ 18} Accordingly, appellant’s second assignment of error is not well-taken.

       {¶ 19} In his third assignment of error, appellant argues that the trial court erred

by not granting his motion to withdraw his guilty plea. Appellant contends that he should

have been allowed to withdraw his plea because he was not informed of the nature of the

charges against him with an understanding of the law in relation to the facts. Again,

appellant references our decision in Gonzales in asserting that the state did not prove the

amount of the actual cocaine involved.

       {¶ 20} However, appellant’s motion to withdraw his guilty plea is not before us

because the trial court has not yet ruled on the motion. Therefore, this assignment of

error is premature.

       {¶ 21} Accordingly, appellant’s third assignment of error is not well-taken.

       {¶ 22} Finally, in his fourth assignment of error, appellant argues that his guilty

plea was not voluntary because he was not informed that his motion to suppress would be

withdrawn. We find that appellant’s argument is not supported by the record.

       {¶ 23} At the beginning of the plea hearing, the state discussed the pending motion

to suppress:




8.
              [Prosecutor]: Your Honor, first of all, we’re also here on 2015-CR-

       148. Counsel had filed a motion to suppress that was also scheduled for

       today. It’s my understanding that all motions by counsel will be withdrawn

       at this time before we proceed into the plea agreement.

              ***

              [Defense counsel]: Yeah, that’s correct, Your Honor, and for the

       148 case number I’d also – independently I’d stipulate to probable cause.

Then, after the state had read the plea agreement, defense counsel agreed and stated, “At

this time I am withdrawing all my motions that I filed in this matter.” The trial court then

engaged appellant in the Crim.R. 11 plea colloquy, culminating in the following

exchange:

              THE COURT: All right. Have you had enough time to discuss

       these matters with your lawyer?

              [Appellant]: Yes.

              THE COURT: Are you satisfied with his advice and counsel?

              [Appellant]: Yes.

              THE COURT: Is there anything here today that you do not

       understand?

              [Appellant]: No, I understand it all.




9.
        {¶ 24} Therefore, we hold that the record demonstrates that appellant was aware

that his motion to suppress was being withdrawn at the time that he entered his guilty

plea.

        {¶ 25} Accordingly, appellant’s fourth assignment of error is not well-taken.

                                      IV. Conclusion

        {¶ 26} For the foregoing reasons, the judgments of the Erie County Court of

Common Pleas are affirmed. Appellant is ordered to pay the costs of this appeal pursuant

to App.R. 24.


                                                                       Judgments affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                               _______________________________
                                                            JUDGE
James D. Jensen, J.
                                                _______________________________
Christine E. Mayle, P.J.                                    JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE

             This decision is subject to further editing by the Supreme Court of
        Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
             version are advised to visit the Ohio Supreme Court’s web site at:
                      http://www.supremecourt.ohio.gov/ROD/docs/.




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