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State v. Lask

Court of Appeals of Ohio, Fourth District, Adams

June 28, 2019

STATE OF OHIO, Plaintiff-Appellee,
v.
RICHARD LASK, Defendant-Appellant.

          Steven R. Adams, The Law Offices of Steven R. Adams, L.L.C., Cincinnati, Ohio, for appellant.

          David Kelley, Adams County Prosecutor, and Kris D. Blanton, Adams County Assistant Prosecutor, West Union, Ohio, for appellee.

          DECISION AND JUDGMENT ENTRY

          Michael D. Hess, Judge.

         {¶1} After the trial court denied in part his motion to suppress, Richard Lask pleaded guilty to possession of marihuana and the trial court convicted him of that offense. On appeal, Lask maintains the trial court erred when it ruled on his motion and when it refused to accept a no contest plea, which would have preserved his right to appeal the suppression decision. Alternatively, he asserts his guilty plea did preserve the right to appeal the suppression decision, and if it did not, his plea was not knowing and we must give him the opportunity to withdraw it.

         {¶2} Lask admits the record does not contain the purported discussion about a no contest plea, so to the extent he asserts the court erred by refusing to accept such a plea, we must presume the validity of the proceedings below and reject his argument. However, the record demonstrates the court incorrectly told Lask that his guilty plea preserved his right to appeal the suppression decision, and but for that incorrect information, Lask would not have pleaded guilty. Because Lask did not enter his plea knowingly and intelligently, we reverse the trial court's judgment and remand for further proceedings consistent with this decision.

         I. FACTS

         {¶3} The Adams County grand jury indicted Lask on one count of possession of marihuana in violation of R.C. 2925.11(A), a second-degree felony that pursuant to R.C. 2925.11(C)(3)(g) and former R.C. 2929.14(A)(2), required a mandatory prison term of eight years because the amount of the drug involved equaled or exceeded 40, 000 grams. Lask pleaded not guilty and moved to suppress evidence. The court granted in part and denied in part the motion.

         {¶4} Subsequently, Lask pleaded guilty to an amended count of possession of marihuana in violation of R.C. 2925.11(A), a second-degree felony that pursuant to R.C. 2925.11(C)(3)(f), required a "mandatory prison term of five, six, seven, or eight years" because the amount of the drug involved equaled or exceeded 20, 000 grams but was less than 40, 000 grams. The parties jointly recommended the minimum mandatory five-year sentence. During the change of plea hearing, the assistant prosecutor stated: "It's my understanding that the defense would also like to put in the record that they would reserve the right to appeal the motion to suppress decision by this Court even though this is a guilty plea, the State understands that if that was the case." The following exchange occurred:

THE COURT: * * * I just want to make for the record I don't think a plea of guilt denies the defendant the right to appeal the decision of the Court on the motion to deny the motion to suppress. I think it's still very much a viable issue because there is not a final appealable order yet on any conviction. I just wanted to get in for the record there has been so many suggestions of appeal in this case, and I'm fine with that.
[ASSISTANT PROSECUTOR]: The only reason I address that is because that was discussed I think before and it was not placed in the paper work and I think both sides wanted to make sure it was clear and I don't think there is any issue there.
THE COURT: Okay. Well, I agree. [Defense counsel, ] is that your understanding of the stated results of the plea negotiations?
[DEFENSE COUNSEL]: It is, Your Honor, and to be clear it's my understanding that when pleading guilty the defendant will waive his right to appeal a motion to suppress ruling unless it's specifically stated on the record or in the paper work that he reserves that right, and that is why it was brought up.
THE COURT: Okay.

         Later, the trial court reiterated that after pleading guilty, Lask would "keep the right to appeal the decisions of this Court" and his right to appeal "wouldn't be limited to just the ruling on the motion to suppress, it could be on anything that this Court has ruled upon in this case." The trial court accepted the guilty ...


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