Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2005 CR 156.
Thomas L Sartini, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, Ashtabula County Courthouse, (For Plaintiff-Appellee).
Edward M. Heindel, (For Defendant-Appellant).
THOMAS R. WRIGHT, J.
(¶1} This appeal is from a final order in a criminal action before the Ashtabula County Court of Common Pleas. Appellant, Erie D. Derricoatte, contests the trial court's decision to deny his post-sentencing motion to withdraw his guilty plea to one charge of trafficking in cocaine. Essentially, he contends that his motion to withdraw should have been granted because his factual allegations were sufficient to demonstrate that he was denied effective assistance of trial counsel prior to entering the guilty plea.
(¶2} In July 2005, appellant was indicted on the following counts: (1) trafficking in cocaine within the vicinity of a school, a third-degree felony under R.C. 2925.03; (2) possession of cocaine, a fifth-degree felony under R.C. 2925.11; and (3) permitting drug abuse, a fifth-degree felony under R.C. 2925.13. The charges were predicated upon an incident in which appellant was present in his brother's home when it was the subject of a police raid. During the ensuing search of appellant's person, the police discovered a package of cocaine.
(¶3} Initially, appellant entered a not guilty plea to all three charges. While the case was pending, he asked his trial counsel whether there were any viable grounds for moving to suppress the incriminating evidence. According to appellant, counsel replied that such a motion would be of no benefit to him because he was arrested with cocaine in his possession.
(¶4} In December 2005, appellant and trial counsel negotiated a plea bargain with the state. Pursuant to its terms, the state amended the first count of the indictment to the lesser-included offense of trafficking in cocaine, a fourth-degree felony under R.C. 2925.03. Appellant then entered a guilty plea to the amended charge, and the other two counts in the indictment were dismissed.
(¶5} During the oral hearing on the guilty plea, appellant stated that he still did not believe that he had committed the offense of trafficking in cocaine. Therefore, it was agreed that appellant's admission of guilt would be deemed an Alford plea. At the close of the proceeding, the trial court accepted the Alford plea and found appellant guilty of the amended charge. Sentencing was then deferred until a presentencing investigation report could be produced.
(¶6} During the interim period, appellant was told that a motion to suppress had been granted in his brother's separate criminal action, thereby resulting in the dismissal of all charges against the brother. In light of this development, appellant asked his trial counsel whether he should move to withdraw his guilty plea on the grounds that he was entitled to the same relief as his brother. According to appellant, counsel indicated that it was too late to seek any relief because he had already entered the guilty plea.
(¶7} After the presentencing report was submitted in March 2006, the trial court sentenced appellant to two years of community control. Approximately 18 months later, appellant was accused of violating the terms of his community control. Following a new hearing in which appellant admitted the violations, the trial court terminated the community control and ordered him to serve a prison term of 15 months. No further proceedings were held in the underlying case while appellant was incarcerated.
(¶8} In May 2012, appellant filed a pro se motion to withdraw his guilty plea on the basis that he had been denied effective assistance of trial counsel. First, he argued that his plea was not made voluntarily because his counsel gave him improper advice as to the viability of a motion to suppress. Second, he asserted that his counsel's advice concerning the viability of a motion to withdraw the plea prior to sentencing was legally incorrect in light of the fact that the charges against his brother were dismissed. As the sole evidentiary material supporting his arguments, appellant attached his own affidavit to the motion.
(¶9} In its separate judgment overruling the motion to withdraw, the trial court emphasized that the materials in the record, such as appellant's written plea, supported the conclusion that his plea was made voluntarily. The court also held that appellant's affidavit was not entitled to significant weight because it was self-serving. Additionally, the court noted that appellant did not provide ...