[Cite as State v. Bunn, 2021-Ohio-2413.]

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT 

MAHONING COUNTY

STATE OF OHIO, 

Plaintiff-Appellee, 

v. 

JERMAINE BUNN JR., 

Defendant-Appellant.

 

OPINION AND JUDGMENT ENTRY 

Case No. 20 MA 0094 

 

Criminal Appeal from the 

Court of Common Pleas of Mahoning County, Ohio 

Case No. 19 CR 843 

BEFORE: 

Carol Ann Robb, Cheryl L. Waite, David A. D’Apolito, Judges. 

JUDGMENT: 

Affirmed. 

Atty. Paul J. Gains, Mahoning County Prosecutor, Atty. Ralph M. Rivera, Assistant

Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503,

for Plaintiff-Appellee and

Atty. Rachel Cerni, Cerni Law, LLC, 3685 Stutz Drive, Suite 100, Canfield, Ohio 44406 

for Defendant-Appellant. 
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Case No. 20 MA 0094

 

Dated: June 7, 2021 

 

Robb, J. 

{¶1} Defendant-Appellant Jermaine C. Bunn appeals the decision of the 

Mahoning County Common Pleas Court denying his motion to withdraw a guilty plea. He 

contends the trial court abused its discretion in weighing the factors relevant to a 

presentence plea withdrawal. He also claims counsel rendered ineffective assistance by 

not fully presenting the matter of the co-defendant’s plea to the trial court. For the 

following reasons, the trial court's judgment is affirmed. 

STATEMENT OF THE CASE 

{¶2} On October 17, 2019, Appellant was indicted with the offense of having a 

weapon while under disability for knowingly acquiring, having, carrying, or using a firearm 

after a 2017 conviction of aggravated drug possession. See R.C. 2923.13(A)(3). The 

offense was a third-degree felony. 

{¶3} In the same indictment, Appellant was jointly charged, along with Elizabeth 

Martel-Velazquez, with the offense of improperly handling a firearm in a motor vehicle for 

knowingly transporting or having a loaded firearm in a motor vehicle in such a manner 

that the firearm was accessible to the operator or passenger without leaving the vehicle. 

See R.C. 2923.16(B). This offense was a fourth-degree felony. 

{¶4} Discovery was provided to the defense, which included the jail calls of both 

defendants and the police report (which was also attached to the original municipal court 

complaint). The jury trial was set for December 2, 2019. At the pretrial on November 18, 

2019, the co-defendant pled guilty, Appellant waived his speedy trial rights, and the jury 

trial was continued. Due to the unavailability of his original attorney, Appellant was 

appointed a new attorney, who appeared at the pretrial with him and secured a lower 

bond. (11/20/19 J.E.). 

{¶5} In January 2020, the defense filed a motion to suppress setting forth factual 

background and arguments on the stop, the extension of the detention, and the search of 

the vehicle. The state’s response argued the stop was valid and the smell of marijuana 
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along with the passenger’s admission justified the extension of the detention and the 

search of the vehicle under Supreme Court precedent. 

{¶6} The parties recited the facts related to the stop and initial detention: the 

officer observed illegal window tint on a vehicle which failed to signal sufficiently in 

advance of a turn; he ran the license plate and discovered the owner was wanted on a 

warrant from another state; he stopped the vehicle and learned Appellant was driving but 

was not the owner with the warrant; when the officer communicated with Appellant he 

detected a strong odor of fresh marijuana, the passenger announced she had just smoked 

marijuana and her “roach” was in the ashtray; the officer checked Appellant’s status in 

the computer system; and Appellant was detained in handcuffs in the back of the police 

car so the officer could search the car for the marijuana discussed by the passenger, who 

was detained by a newly-arrived officer. 

{¶7} Prompted by the marijuana smell and the passenger’s admission, the 

searching officer opened the driver’s door and then: he immediately noticed a pistol 

magazine in a “map pocket” (by the driver’s feet); the 17-round magazine contained 16 

rounds; the passenger said there was a gun in the glove compartment; the officer found 

the gun with the muzzle pointing toward the front of the car and the grip facing to the right, 

as if it was placed there by a person on the left using their right hand; the gun was loaded 

with one round in the chamber; and the round matched those in the magazine. 

{¶8} After Miranda rights were read, the passenger reported she did not know 

the gun was in the glove compartment until she went to retrieve the car’s registration for 

the officer. Appellant reported that he never saw the magazine or firearm and the car 

belonged to the passenger’s uncle. 

{¶9} On the day set for the suppression hearing, Appellant signed a plea 

agreement setting forth his decision to plead guilty to the charge of having a weapon while 

under disability. In exchange, the state dismissed the improper handling of a firearm in a 

motor vehicle charge. The state also agreed to recommend twelve months in prison (from 

a maximum of 36 months), leaving Appellant free to argue for a lesser sentence. 

{¶10} The court accepted the plea at the March 10, 2020 plea hearing. A 

presentence investigation was ordered, and sentencing was set for April 14, 2020, which 
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the parties then agreed to reset for May 27, 2020. On May 22, the parties agreed to 

continue the sentencing hearing until July 6, 2020 (due to the pandemic). 

{¶11} Appellant failed to appear for the July 6 sentencing, and a bench warrant 

was issued for his arrest. Appellant was arrested on a new charge on July 11, 2020. 

Sentencing was set for July 16, but the court granted a continuance on defense counsel’s 

indication that Appellant wished to file a plea withdrawal motion. (7/17/20 J.E.). 

{¶12} Appellant’s motion to withdraw the guilty plea was filed on July 24, 2020. 

The motion said Appellant “is professing his innocence and arguing that he did not 

knowingly, intelligently, and voluntarily enter his guilty plea.” The motion also pointed out 

that the firearm “was in the possession of another party, and that person accepted 

responsibility.” 

{¶13} The state filed a memorandum in opposition which reviewed each factor 

relevant to a plea withdrawal and argued the balancing of the factors weighed against the 

motion. The state submitted the transcript of the plea hearing for the trial court’s review. 

{¶14} On August 6, 2020, the court heard the plea withdrawal motion. Defense 

counsel said Appellant believed he poorly advised him to take the plea. Counsel 

disclosed, however, that he advised Appellant to take the case to trial. He wondered if 

Appellant confused their discussion on the unfavorable chances of the suppression 

motion with their discussion on the favorable chances at trial. (Mot.Tr. 5-8, 14). Defense 

counsel emphasized the co-defendant took responsibility for possession and ownership 

of the firearm. (Mot.Tr. 3, 8). 

{¶15} Appellant told the court he did not have a clear understanding of what 

counsel was recommending but also said: “Although it was all up to me, it was all up to 

me to decide where I wanted to go with this.” (Mot.Tr. 13). Appellant suggested he 

recently realized it made no sense to plead guilty to being in possession of a firearm when 

he had no knowledge of the gun’s presence in the vehicle and someone else took 

ownership and responsibility for the gun. (Mot.Tr. 13, 16, 20). He also said he was 

innocent. (Mot.Tr. 21). 

{¶16} Appellant reminded the court that he denied being under the influence of 

drugs or alcohol at the plea hearing; he then claimed he had been “on psych meds given 

to me in the county jail.” (Mot.Tr. 15). He acknowledged he had prior felony charges and 
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pleas and was familiar with plea bargaining. (Mot.Tr. 21-22). He said he missed the 

sentencing hearing because he was mistaken on the new date. (Mot.Tr. 25). Appellant 

did not inform his attorney of any desire to withdraw the plea until after he was arrested 

for a new charge on July 11, 2020; he suggested he did not initiate his plea withdrawal 

motion earlier because he thought the courts were closed. (Mot.Tr. 8, 26-27). 

{¶17} The court denied Appellant’s motion for plea withdrawal after making 

findings on the factors: Appellant was represented by highly competent counsel; the 

hearing transcript showed the plea colloquy complied with Crim.R. 11; there was no 

indication he was under the influence of a medication which would affect his 

understanding; he understood the nature of the charges and sentencing ranges; he had 

a similar charge in the past; he was provided a full hearing on the withdrawal motion; the 

withdrawal factors were fully considered; Appellant’s reasons were considered; the 

magazine’s location by Appellant’s feet and the gun placement in the glove compartment 

was suggestive of Appellant’s possession; another person taking responsibility for 

improper handling was not a complete defense to Appellant’s offense; the state was not 

prejudiced (except as to time, which would not outweigh Appellant’s rights); and the 

motion was recently filed (but would not be rejected as untimely). (Mot.Tr. 31-35). 

{¶18} The trial court’s decision was memorialized in an August 7, 2020 judgment 

entry wherein the trial court concluded there was no reasonable and legitimate basis to 

allow Appellant to withdraw his plea upon the court’s consideration of the plea withdrawal 

factors. After denying the motion, the court proceeded with the sentencing hearing. The 

state withdrew the recommendation of twelve months due to Appellant’s failure to appear 

at the prior sentencing hearing and his commission of a new offense. (Sent.Tr. 36). The 

court nevertheless sentenced Appellant to twelve months in prison. (Sent.Tr. 41-42); 

(8/7/20 J.E.). Appellant filed a timely notice of appeal. 

ASSIGNMENT OF ERROR ONE: PLEA WITHDRAWAL 

{¶19} Appellant sets forth two assignments of error, the first of which contends: 

 “The Trial Court erred in overruling Defendant-Appellant’s Motion to Withdraw his 

Plea.” 

{¶20} A plea withdrawal motion is permitted by Crim.R. 32.1, which states a 

motion to withdraw a guilty plea can only be made prior to sentencing unless there is a 
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manifest injustice. Although a presentence plea withdrawal motion “should be freely and 

liberally granted,” a defendant does not have an absolute right to withdraw a guilty plea 

merely because he made the motion prior to the imposition of sentence. State v. Xie, 62 

Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). There must be a reasonable and legitimate 

basis for a plea withdrawal. Id. 

{¶21} The decision on a plea withdrawal motion lies within the sound discretion of 

the trial court and will not be disturbed by a reviewing court absent an abuse of discretion. 

Id. A mere error in judgment is not an abuse of discretion; rather, we can reverse only if 

the denial of the plea withdrawal motion was unreasonable, arbitrary, or unconscionable. 

Id. The good faith, credibility, and weight of the movant's assertions in support of a Crim.R 

32.1 motion are primarily questions for the trial court, including the defendant’s motive for 

pleading guilty. Id. at 525. 

{¶22} This court has adopted a non-exclusive list of factors to be weighed in 

reviewing a decision on a presentence plea withdrawal motion: (1) the representation 

provided by defense counsel; (2) the defendant's understanding of the nature of the 

charges and the potential sentence; (3) the extent of the plea hearing; (4) the extent of 

the plea withdrawal hearing; (5) whether the trial court gave full and fair consideration to 

the motion; (6) the reasons for the motion; (7) whether the accused was perhaps not guilty 

or had a complete defense to the charge; (8) whether the timing of the motion was 

reasonable; and (9) whether the state would be prejudiced by withdrawal. State v. Morris, 

7th Dist. Mahoning No. 13 MA 19, 2014-Ohio-882, ¶ 21, citing State v. Fish, 104 Ohio 

App.3d 236, 240, 661 N.E.2d 788 (1st Dist.1995). 

{¶23} As the list is not exhaustive, a court can find other factors relevant as well. 

Morris, 7th Dist. No. 131 MA 19 at ¶ 22. “For instance, the length of time between the 

charges and the plea and the various occurrences on the docket prior to the plea are also 

relevant considerations that can support a determination that there existed thoughtful 

consideration of the plea and the ramifications of it versus taking the case to trial.” Id., 

citing State v. Lundy, 7th Dist. Mahoning No. 07MA82, 2008-Ohio-1535, ¶ 23. Since the 

evaluation involves the trial court's discretionary weighing of the factors, no one factor is 

conclusive. Morris, 7th Dist. No. 131 MA 19 at ¶ 22, citing State v. Leasure, 7th Dist. 
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Belmont No. 01BA42, 2002-Ohio-5019, ¶ 19. We proceed to review the factors in light of 

the particular circumstances in this case. 

{¶24} First, the record establishes Appellant received competent representation. 

The court pointed to counsel’s 27 years of practice and said he was highly competent. 

Counsel negotiated a plea involving the dismissal of the one of the charges and secured 

a recommendation of twelve months from the state, when the maximum on the remaining 

offense was thirty-six months. Counsel advised Appellant they could present a strong 

case to a jury, but Appellant made the choice to accept the plea. (A further argument on 

counsel’s representation is made in the second assignment of error, which we incorporate 

here as well.) 

{¶25} Second, Appellant understood the nature of the charges and the potential 

sentence. At the plea hearing, Appellant said he knew he was charged with the offense 

of having a weapon while under disability and what that meant. The court nonetheless 

noted the state was essentially alleging he had a prior felony conviction that prohibited 

him from being in possession of a firearm, and Appellant said he had no question on the 

elements of the offense. (Plea Tr. 6). As to the penalties, Appellant said he understood 

the offense was a felony of the third degree subject to a sentence of 9, 12, 18, 24, or 36 

months in prison and a fine of $10,000 and the court was not bound by the 

recommendation of the state or defense counsel. (Plea Tr. 7-8). Appellant also said he 

understood he could be placed on post-release control for up to three years and the 

ramifications explained by the court (about a violation or a new offense). (Plea Tr. 9-10). 

{¶26} The written plea agreement additionally explained the penalties he faced 

upon pleading guilty and showed the improper handling of a firearm in a motor vehicle 

charge was being dismissed while he was pleading guilty to the offense of having a 

weapon while under disability. Appellant knew he was still being charged for the firearm 

offense, notwithstanding his claim that he did not own or possess it. At the plea 

withdrawal hearing, he did not specifically argue he did not understand the charge but 

argued the plea made no sense if he did not possess the gun. 

{¶27} Third, Appellant's counsel acknowledged there was no issue with the extent 

of the Crim.R. 11 hearing. In determining Appellant understood the nature of the charges 

and the penalty, the court complied with Crim.R. 11(C)(2)(a). The court also advised the 
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Case No. 20 MA 0094

guilty plea was a complete admission to the charge and the court could proceed 

immediately to sentencing in compliance with Crim.R. 11(C)(2)(b). The court fully 

explained each of the constitutional rights Appellant would be waiving, and Appellant said 

he understood each of those rights as required by Crim.R. 11(C)(2)(c). (Plea Tr. 11-15). 

{¶28} Fourth, Appellant takes no issue with the extent of the plea withdrawal 

hearing. The trial court even continued the sentencing hearing (set after Appellant was 

arrested) upon defense counsel’s notice that Appellant wished to file the plea withdrawal 

motion. Appellant had an abundance of time to prepare for the plea withdrawal hearing. 

The hearing was unrestricted, and no limits were placed on Appellant's ability to present 

his case for the plea withdrawal. Appellant clearly received a full and fair plea withdrawal 

hearing. 

{¶29} Fifth, the trial court gave full and fair consideration to Appellant's motion. 

This is evidenced by the extent of the hearing just discussed, the court’s observation at 

the hearing that it researched this district’s case law, and the trial court’s verbal review of 

the applicable factors (as set forth in our Statement of the Case supra). The trial court 

also noted its review of the factors in the judgment entry denying Appellant’s motion. 

{¶30} Sixth, the reasons for the motion were not compelling. Appellant suggested 

he lacked an understanding of counsel’s recommendation to proceed to trial. Yet, as he 

recognized, the decision was his to make. He also indicated “he was going over the facts 

of the case” and realized that he should not have pled guilty if he did not possess the gun. 

(Mot.Tr. 13). Appellant suggested his failure to properly consider the situation may have 

been because he was on “psych meds” prescribed by the jail. (Mot.Tr. 15). However, 

the trial court found there was no indication Appellant was under the influence of anything 

that would affect his understanding of the charge and the evidence against him. The 

court also reviewed the facts surrounding the discovery of the gun which were seen as 

incriminating as to the element of Appellant’s possession of the gun. The trial court could 

properly use its first-hand observations and discretion to find Appellant’s claim lacked 

credibility. Xie, 62 Ohio St.3d at 525. 

{¶31} We note plea discussions occurred in this case at other pretrials before the 

plea hearing. Furthermore, the trial court pointed out Appellant had prior convictions, 

including for improperly handling a firearm in a motor vehicle, and had been through the 
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plea-bargaining process in the past. There were also suggestions the actual motive for 

seeking plea withdrawal was Appellant’s realization that his intended sentencing 

arguments for community control may no longer be successful because he missed the 

sentencing hearing and was arrested for a new crime thereafter. (This also allowed the 

state to withdraw its recommendation of only one year in prison, which was never binding 

on the trial court in any event.) The good faith, credibility, and weight of the movant's 

assertions in support of a Crim.R 32.1 motion are primarily questions for the trial court. 

Xie, 62 Ohio St.3d at 525. The trial court could reasonably conclude that Appellant merely 

had a change of heart as to whether he should take his chances by allowing both charges 

to be presented to a jury, rather than proceeding with the plea agreement. 

{¶32} Seventh, Appellant claimed he was innocent and had a complete defense, 

emphasizing the co-defendant took responsibility for the firearm. The court did not find 

this constituted a complete defense. The court reiterated the facts which could be seen 

as incriminating Appellant, notwithstanding the lack of direct contact possession and the 

admission by the passenger as to the offense of improperly handling a firearm in a motor 

vehicle (a different offense than the one to which Appellant pled guilty). 

{¶33} As to statements on ownership, the state points out ownership was not an 

element of either offense. As to the possession arguments, the state points to law on 

constructive possession, circumstantial evidence, and joint possession. See, e.g., State 

v. Floyd, 7th Dist. Mahoning No. 18 MA 0106, 2019-Ohio-4878, ¶ 16-17, citing State v. 

Wolery, 46 Ohio St.2d 316, 332, 348 N.E.2d 351 (1976) (“Possession of stolen property 

may be individual or joint, actual or constructive.”). See also Maryland v. Pringle, 540 

U.S. 366, 371-373, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003) (finding it reasonable to infer 

multiple occupants of a vehicle exercised dominion and control over incriminating items). 

{¶34} Moreover, the co-defendant pled guilty to improper handling of a firearm in 

a vehicle under R.C. 2923.16(B), while Appellant received a dismissal of that charge and 

pled guilty to having a weapon while under disability under R.C. 2923.13(A)(3). It could 

be he did “knowingly acquire [or] have” the firearm in violation of R.C. 2923.13(A)(3), but 

it was the co-defendant’s fault it was transported while still loaded in violation of R.C. 

2923.16(B). As the state points out Appellant chose to plead guilty notwithstanding the 

co-defendant’s guilty plea months earlier. This was expressed as one of the reasons 
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Case No. 20 MA 0094

counsel believed the case should be taken to trial when advising Appellant he may not 

wish to accept the plea. See State v. Spivey, 81 Ohio St.3d 405, 416, 692 N.E.2d 151 

(1998) (plea withdrawal was unwarranted where the defendant knew of pending DNA 

tests when he entered his plea). 

{¶35} Appellant’s brief adds a contention that the stop was pretextual and the 

search was illegal, insinuating the plea should be withdrawn so he could obtain a 

suppression ruling. However, there was no indication this was a reason for the plea 

withdrawal below. As defense counsel suggested, the law was not favorable to the 

defense suppression position. “[W]here an officer has an articulable reasonable 

suspicion or probable cause to stop a motorist for any criminal violation, including a minor 

traffic violation, the stop is constitutionally valid regardless of the officer's underlying 

subjective intent or motivation for stopping the vehicle in question.” Dayton v. Erickson, 

76 Ohio St.3d 3, 11-12, 665 N.E.2d 1091 (1996). Besides the late turn signal, the 

windows were illegally tinted, and a citation was issued for that offense. 

{¶36} Then, as the officer was issuing the citation and ensuring Appellant was not 

the vehicle owner who was wanted in another state, a strong smell of fresh marijuana 

was noticed from inside the vehicle. “Once a law enforcement officer has probable cause 

to believe that a vehicle contains contraband, he or she may search a validly stopped 

motor vehicle based upon the well-established automobile exception to the warrant 

requirement.” State v. Moore, 90 Ohio St.3d 47, 734 N.E.2d 804 (2000) (smell of 

marijuana alone justified search of car). 

{¶37} Plus, the passenger specifically admitted she was smoking marijuana and 

indicated there was still evidence of the drug in the vehicle. Then, on opening the driver’s 

door for the valid drug search, he noticed a pistol magazine in easy reach of the driver; 

at this point, the passenger admitted there was a gun in the glove box. Furthermore, 

containers which could contain the substance can be searched where there is probable 

cause to search the vehicle for a substance. Wyoming v. Houghton, 526 U.S. 295, 301-

307, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999) (passenger's purse). 

{¶38} The probability of the suppression motion being granted was slight. 

Appellant chose to accept the plea offer and to withdraw the suppression motion, rather 
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than proceed on the suppression motion (containing arguments that are not as compelling 

as the brief suggests in a conclusory manner). 

{¶39} Eighth, the plea withdrawal motion was filed more than four months after 

Appellant’s plea was entered. We have opined that a plea withdrawal motion filed many 

weeks after a plea was entered and, on the day set for sentencing, “is a last minute motion 

practice that should be discouraged absent unusual circumstances.” State v. Grabe, 7th 

Dist. Mahoning No. 19 MA 0115, 2020-Ohio-4435, ¶ 23 (where the motion was filed on 

the day before the continued sentencing hearing, which was six weeks after the plea), 

citing Morris, 7th Dist. No. 131 MA 19 at ¶ 30 (where the motion was filed on the day of 

sentencing, six weeks after plea), citing Lundy, 7th Dist. No. 07MA82 at ¶ 22. Appellant’s 

sentencing hearing was continued multiple times. His motion was not filed until after he 

missed the sentencing hearing and committed a new offense. Although Appellant 

mentioned the pandemic and his uncertainty as to the courts being open, he was 

represented by counsel and did not contact counsel pending sentencing to raise his 

concerns about the plea.1

{¶40} Ninth, the state acknowledged the case against Appellant would not have 

been prejudiced by plea withdrawal; the state’s only prejudice from withdrawal was the 

time and money to bring the case through a suppression hearing and trial which it thought 

had been avoided. Again, no one factor is dispositive; lack of prejudice to the state’s case 

is merely one factor. See Morris, 7th Dist. No. 131 MA 19 at ¶ 22; State v. LaBooth, 7th 

Dist. Mahoning No. 15 MA 0044, 2017-Ohio-1262, ¶ 9 (“the state's failure to allege 

prejudice does not require that a motion to withdraw must be granted”). 

{¶41} Considering the totality of the facts and circumstances, the trial court did not 

abuse its discretion in denying Appellant’s motion to withdraw his guilty plea. The 

decision was studied and not arbitrary, there was no indication the decision was 

unconscionable, and the trial court’s weighing of the various factors as balancing in favor 

 

1 On the timing of the motion, we note the trial court said, “despite the fact that it was recently filed, I’ll make 

a finding that it was filed timely because I don’t want Mr. Bunn not to have the opportunity for due process 

and ability to argue his concern, his motion.” Contrary to the implications of this statement, the 

reasonableness of the timing of the motion is just one factor; a finding that it was unreasonable in timing 

would not have precluded Appellant from presenting his arguments. It may be the trial court merely meant 

the motion was still being construed as a pre-sentence motion even though it was filed after he missed 

sentencing (and not subject to the post-sentence manifest injustice standard). 
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of the state was not unreasonable. The trial court was entitled to exercise its sound 

discretion to deny appellant's presentence plea withdrawal motion by concluding there 

was not a reasonable and legitimate basis for the motion. This assignment of error is 

overruled. 

ASSIGNMENT OF ERROR TWO: INEFFECTIVE ASSISTANCE 

{¶42} Appellant’s second assignment of error alleges: 

 “Defendant’s Counsel was ineffective for failing to submit exculpatory evidence to 

the trial court in the form of the guilty plea of Elizabeth Martel-Velazquez on November 

20, 2019 to improper handling of a firearm in case 2019 CR 843a.” 

{¶43} A claim of ineffective assistance of counsel requires a showing of both 

deficient performance and resulting prejudice. Strickland v. Washington, 466 U.S. 668, 

687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). If the performance was not deficient, then 

there is no need to review for prejudice and vice versa. State v. Madrigal, 87 Ohio St.3d 

378, 389, 721 N.E.2d 52 (2000). 

{¶44} To show deficient performance, the defendant must show counsel’s 

representation fell below an objective standard of reasonableness. State v. Bradley, 42 

Ohio St.3d 136, 142, 538 N.E.2d 373 (1989), citing Strickland, 466 U.S. at 687-689. Our 

review is highly deferential to counsel's decisions as there is a strong presumption the 

conduct fell within the wide range of what would be considered reasonable professional 

assistance. Id. There are “countless ways to provide effective assistance in any given 

case.” Id. 

{¶45} On the prejudice prong, a lawyer's errors must be so serious that there is a 

reasonable probability the result of the proceedings would have been different. State v. 

Carter, 72 Ohio St.3d 545, 558, 651 N.E.2d 965 (1995). Lesser tests of prejudice have 

been rejected: “It is not enough for the defendant to show that the errors had some 

conceivable effect on the outcome of the proceeding.” Bradley, 42 Ohio St.3d at 142, fn. 

1, quoting Strickland, 466 U.S. at 693. Prejudice from defective representation justifies 

reversal only where the results were unreliable, or the proceeding was fundamentally 

unfair due to the performance of trial counsel. Carter, 72 Ohio St.3d at 558, citing 

Lockhart v. Fretwell, 506 U.S. 364, 369, 113 S.Ct. 838, 122 L.Ed.2d 180 (1993). 
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{¶46} There is no indication counsel erred by failing to submit a copy of the 

judgment entry evidencing the co-defendant’s plea, wherein she pled guilty to improper 

handling of a firearm in a motor vehicle. Appellant was jointly indicted with the codefendant for the offense of improper handling of a firearm in a motor vehicle (and he was 

additionally charged with having a weapon while under disability). The co-defendant 

entered a plea before this trial judge at the November 18, 2019 pre-trial, two weeks before 

the original date of the joint trial. In the written plea withdrawal motion, counsel advised 

the court that one of the reasons Appellant wished to withdraw his plea was because the 

firearm “which gave rise to this charge, was in the possession of another party, and that 

person accepted responsibility.” 

{¶47} At the plea withdrawal hearing two weeks later, defense counsel began by 

saying he would “refresh [the judge’s] memory” and then pointed out that “the codefendant in this case has taken responsibility for the possession and ownership” of the 

weapon that was discovered in the car. (Mot.Tr. 3). Counsel later said, “So I’ve already 

indicated to you that there’s another person taking responsibility * * * [as to] possession 

of the weapon.” (Mot.Tr. 8). In speaking of his prior advice to Appellant before the March 

10, 2020 plea, defense counsel mentioned “laying out the other codefendant as the 

culpable part[y].” (Mot.Tr. 14). In personally addressing the court, Appellant said one 

reason he wished to withdraw his plea was due to “the fact that somebody else took 

ownership and responsibility for this weapon.” (Mot.Tr. 20). 

{¶48} The court discussed this topic with Appellant at this point and in its 

concluding review of the plea withdrawal factors. (Mot.Tr. 20, 33-34). There is no 

indication the presentation of the court’s own entry accepting the jointly indicted codefendant’s plea was necessary for proper representation under the circumstances. This 

was not a serious error falling below reasonable representation. And, there was no 

reasonable probability the submission of the entries on the co-defendant’s plea would 

have altered the trial court’s decision denying Appellant’s plea withdrawal motion. The 

court appeared aware of all the surrounding circumstances. 

{¶49} As for any suggestion in the brief that counsel rendered ineffective 

assistance because Appellant was not informed the co-defendant pled guilty and thus did 

not know she could provide testimony in his favor, this is not the impression gained from 
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the record. As the state points out, the co-defendant pled guilty four months before 

Appellant pled guilty. At Appellant’s plea hearing, trial court advised him before accepting 

his plea that he had the right to confront and cross-examine witnesses called by the state 

at trial and he had the right to subpoena witnesses by compulsory process and thereby 

force them to attend the trial and provide testimony on his behalf. (Plea. Tr. 13). 

{¶50} At the plea withdrawal hearing, Appellant said, “I just wanted to state the 

fact that somebody else took ownership and responsibility for this weapon” at which point 

the court interjected by saying, “Okay.” Appellant then finished his thought by saying, “I 

didn’t have any knowledge of.” It appears Appellant was merely repeating his claim that 

he had no knowledge of the firearm; it does not appear he was saying he had no 

knowledge of his co-defendant’s plea. In fact, he then clarified, “So that should exclude 

me because I didn’t have any knowledge of this firearm.” (Mot.Tr. 20). 

{¶51} Even if he had claimed a lack of knowledge of the co-defendant’s plea, the 

trial court could have rejected such claim as lacking in credibility. Xie, 62 Ohio St.3d at 

525. As noted, Appellant and his co-defendant were scheduled for a joint trial; the trial 

was continued after they appeared for the pretrial, at which time the co-defendant pled 

guilty while Appellant waived his speedy trial rights and received a reduced bond. 

Counsel’s statements at the plea withdrawal hearing indicate they considered the codefendant’s plea in evaluating the state’s plea offer. 

{¶52} In any case, the record contains no indication Appellant was unaware the 

co-defendant pled guilty (to improper handling of a firearm in a motor vehicle) four months 

before he pled guilty (to having a weapon while under disability). Deficient performance 

is not apparent in the record. This assignment of error is overruled. 

{¶53} For the foregoing reasons, the trial court’s judgment is affirmed. 

Waite, J., concurs. 

D’Apolito, J., concurs. 
[Cite as State v. Bunn, 2021-Ohio-2413.]

 

 

For the reasons stated in the Opinion rendered herein, the assignments of error

are overruled and it is the final judgment and order of this Court that the judgment of the

Court of Common Pleas of Mahoning County, Ohio, is affirmed. Costs waived. 

A certified copy of this opinion and judgment entry shall constitute the mandate in 

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a 

certified copy be sent by the clerk to the trial court to carry this judgment into execution. 

 

NOTICE TO COUNSEL 

This document constitutes a final judgment entry.