[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, Cher y l L. Waite, David A. D’Apolito, Jud g es.

JUDGMENT: Affirmed.

A tty. Paul J. Gains, Mahoning County Prosecutor , Atty. Ralph M. Rivera, Assistan t Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Young stown, Ohio 44503, for Plaintiff-Appellee and

A tt y

. Rachel Cerni, Cerni Law, LLC, 3685 Stutz Driv e, Suite 100, Canfield, Ohio 4 4406 for Defendant-Appellant.– 2 –

Case No. 20 MA 0094 Dated: June 7, 2021

Robb, J.

{¶1} Defendant-Appellant Jermaine C. Bunn appeals the decision of th e Mahoning County Common Pleas Court denying his motion to withdr aw 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 i neffective assistance by not fully presenting the matter of the co-defendant’s plea to t he 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 wi th Elizabeth Martel-Velazquez, with the offense of improperly handling a fir earm in a motor vehicle for knowingly transporting or having a loaded firearm in a motor ve hicle in such a manner that the firearm was accessible to the operator or passenger wi thout 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 th e original municipal court complaint). The jury trial was set for December 2, 2019. At t he 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 dete ntion, and the search of the vehicle. The state’s response argued the stop was valid an d the smell of marijuana– 3 –

Case No. 20 MA 0094 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 d etention: 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 communicat ed with Appellant he detected a strong odor of fresh marijuana, the passenger announ ced she had just smoked marijuana and her “roach” was in the ashtray; the officer check ed 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 discu ssed 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 immedi ately 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 compart ment; the officer found the gun with the muzzle pointing toward the front of the car an d the grip facing to the right, as if it was placed there by a person on the left using their r ight hand; the gun was loaded with one round in the chamber; and the round matched those in t he 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 cha rge of having a weapon while under disability. In exchange, the state dismissed the imprope r handling of a firearm in a motor vehicle charge. The state also agreed to recommend twelv e 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 f or April 14, 2020, which– 4 –

Case No. 20 MA 0094 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 ben ch warrant was issued for his arrest. Appellant was arrested on a new cha rge on July 11, 2020. Sentencing was set for July 16, but the court granted a continu ance on defense counsel’s indication that Appellant wished to file a plea withdrawal moti on. (7/17/20 J.E.). {¶12} Appellant’s motion to withdraw the guilty plea was filed on Jul y 24, 2020. The motion said Appellant “is professing his innocence and argu ing 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 t hat 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 f actors 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 t he 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 pos session 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 u p to me, it was all up to me to decide where I wanted to go with this.” (Mot.Tr. 13). A ppellant 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 so meone 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 inf luence of drugs or alcohol at the plea hearing; he then claimed he had be en “on psych meds given to me in the county jail.” (Mot.Tr. 15). He acknowledged he h ad prior felony charges and– 5 –

Case No. 20 MA 0094 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. (M ot.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 init iate 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 m aking findings on the factors: Appellant was represented by highly c ompetent 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 wou ld affect his understanding; he understood the nature of the charges and sent encing 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 w ere considered; the magazine’s location by Appellant’s feet and the gun placement i n the glove compartment was suggestive of Appellant’s possession; another person taking responsibility for improper handling was not a complete defense to Appellant’s off ense; the state was not prejudiced (except as to time, which would not outweigh Appella nt’s rights); and the motion was recently filed (but would not be rejected as untimel y). (Mot.Tr. 31-35). {¶18} The trial court’s decision was memorialized in an August 7, 202 0 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 considera tion of the plea withdrawal factors. After denying the motion, the court proceeded with th e sentencing hearing. The state withdrew the recommendation of twelve months due to Appel lant’s failure to appear at the prior sentencing hearing and his commission of a new off ense. (Sent.Tr. 36). The court nevertheless sentenced Appellant to twelve months in pris on. (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 whi ch contends: “The Trial Court erred in overruling Defendant-Appellant’s Mot ion to Withdraw his

Plea.” {¶20} A plea withdrawal motion is permitted by Crim.R. 32.1, which st ates a motion to withdraw a guilty plea can only be made prior to sent encing unless there is a– 6 –

Case No. 20 MA 0094 manifest injustice. Although a presentence plea withdrawal mot ion “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 se ntence. State v. Xie , 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). There must be a re asonable 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; rathe r, we can reverse only if the denial of the plea withdrawal motion was unreasonable, arbi trary, or unconscionable.

Id. The good faith, credibility, and weight of the movant's asser tions in support of a Crim.R 32.1 motion are primarily questions for the trial court, includ ing the defendant’s motive for pleading guilty. Id. at 525. {¶22} This court has adopted a non-exclusive list of factors to be we ighed 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 f ull and fair consideration to the motion; (6) the reasons for the motion; (7) whether the acc used 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 wi thdrawal. 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 r elevant as well.

Morris , 7th Dist. No. 131 MA 19 at ¶ 22. “For instance, the length o f 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 t here existed thoughtful consideration of the plea and the ramifications of it versus ta king the case to trial.” Id.

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

Case No. 20 MA 0094 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 repr esentation. 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 maxi mum 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 ple a. (A further argument on counsel’s representation is made in the second assignment of er ror, 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 c harged 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 h e had no question on the elements of the offense. (Plea Tr. 6). As to the penalties, A ppellant said he understood the offense was a felony of the third degree subject to a sente nce of 9, 12, 18, 24, or 36 months in prison and a fine of $10,000 and the court was not bo und 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 ne w 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 fire arm 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 bei ng charged for the firearm offense, notwithstanding his claim that he did not own or posse ss it. At the plea withdrawal hearing, he did not specifically argue he did not un derstand 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– 8 –

Case No. 20 MA 0094 guilty plea was a complete admission to the charge and the cour t 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 wi thdrawal hearing. The trial court even continued the sentencing hearing (set after Appellant was arrested) upon defense counsel’s notice that Appellant wished t o 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 Appe llant'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 Appe llant'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 th e trial court’s verbal review of the applicable factors (as set forth in our Statement of the Ca se supra). The trial court also noted its review of the factors in the judgment entry deny ing Appellant’s motion. {¶30} Sixth, the reasons for the motion were not compelling. Appella nt suggested he lacked an understanding of counsel’s recommendation to proce ed to trial. Yet, as he recognized, the decision was his to make. He also indicated “h e was going over the facts of the case” and realized that he should not have pled guilty i f he did not possess the gun. (Mot.Tr. 13). Appellant suggested his failure to properly cons ider the situation may have been because he was on “psych meds” prescribed by the jail. (M ot.Tr. 15). However, the trial court found there was no indication Appellant was und er the influence of anything that would affect his understanding of the charge and the evide nce 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 th e 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 pretria ls before the plea hearing. Furthermore, the trial court pointed out Appella nt had prior convictions, including for improperly handling a firearm in a motor vehicle, and had been through the– 9 –

Case No. 20 MA 0094 plea-bargaining process in the past. There were also suggestio ns the actual motive for seeking plea withdrawal was Appellant’s realization that his in tended sentencing arguments for community control may no longer be successful bec ause 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 que stions for the trial court.

Xie , 62 Ohio St.3d at 525. The trial court could reasonably concl ude 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 d efense, emphasizing the co-defendant took responsibility for the firear m. 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 hand ling a firearm in a motor vehicle (a different offense than the one to which Appellant pl ed guilty). {¶33} As to statements on ownership, the state points out ownership w as not an element of either offense. As to the possession arguments, the state points to law on constructive possession, circumstantial evidence, and joint pos session. See, e.g., State v. Floyd , 7th Dist. Mahoning No. 18 MA 0106, 2019-Ohio-4878, ¶ 16-17, c iting 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) (findi ng 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 dis missal 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 violatio n 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 g uilty notwithstanding the co-defendant’s guilty plea months earlier. This was expressed as one of the reasons– 10 –

Case No. 20 MA 0094 counsel believed the case should be taken to trial when advisin g 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 kne w of pending DNA tests when he entered his plea). {¶35} Appellant’s brief adds a contention that the stop was pretextua l 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 no t favorable to the defense suppression position. “[W]here an officer has an artic ulable reasonable suspicion or probable cause to stop a motorist for any criminal violation, including a minor traffic violation, the stop is constitutionally valid regardles s of the officer's underlying subjective intent or motivation for stopping the vehicle in que stion.” Dayton v. Erickson

, 76 Ohio St.3d 3, 11-12, 665 N.E.2d 1091 (1996). Besides the la te turn signal, the windows were illegally tinted, and a citation was issued for th at offense. {¶36} Then, as the officer was issuing the citation and ensuring Appe llant was not the vehicle owner who was wanted in another state, a strong sme ll of fresh marijuana

was noticed from inside the vehicle. “Once a law enforcement o fficer has probable cause to believe that a vehicle contains contraband, he or she may se arch a validly stopped motor vehicle based upon the well-established automobile except ion 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 marij uana 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 gl ove box. Furthermore,

containers which could contain the substance can be searched wh ere 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 sli ght. Appellant chose to accept the plea offer and to withdraw the su ppression motion, rather– 11 –

Case No. 20 MA 0094 than proceed on the suppression motion (containing arguments th at are not as compelling as the brief suggests in a conclusory manner). {¶39} Eighth, the plea withdrawal motion was filed more than four mon ths after Appellant’s plea was entered. We have opined that a plea withd rawal motion filed many weeks after a plea was entered and, on the day set for sentenci ng, “is a last minute motion practice that should be discouraged absent unusual circumstance s.” 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 o n 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 wa s not filed until after he missed the sentencing hearing and committed a new offense. Alt hough Appellant mentioned the pandemic and his uncertainty as to the courts bei ng open, he was represented by counsel and did not contact counsel pending sent encing 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 gr anted”). {¶41} Considering the totality of the facts and circumstances, the tr ial 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 f actors as balancing in favor

1 On the timing of the motion, we note the trial court said, “de spite the fact that it was recently filed, I’ll make a finding that it was filed timely because I don’t want Mr. Bun n 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 argument s. It may be the trial court merely meant the motion was still being construed as a pre-sentence motion e ven though it was filed after he missed sentencing (and not subject to the post-sentence manifest injus tice standard).– 12 –

Case No. 20 MA 0094 of the state was not unreasonable. The trial court was entitle d to exercise its sound discretion to deny appellant's presentence plea withdrawal moti on 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 exc ulpatory evidence to the trial court in the form of the guilty plea of Elizabeth Mar tel-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 reasonablene ss. 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 th at 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 tha t 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 jus tifies reversal only where the results were unreliable, or the proceed ing 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).– 13 –

Case No. 20 MA 0094 {¶46} There is no indication counsel erred by failing to submit a cop y 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 jointl y 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 disabilit y). 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 with drawal 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 possess ion and ownership” of the weapon that was discovered in the car. (Mot.Tr. 3). Counsel l ater said, “So I’ve already indicated to you that there’s another person taking responsibil ity * * * [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 fo r 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 re presentation . 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 ple a withdrawal motion. The court appeared aware of all the surrounding circumstances. {¶49} As for any suggestion in the brief that counsel rendered ineffe ctive 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– 14 –

Case No. 20 MA 0094 the record. As the state points out, the co-defendant pled gui lty four months before Appellant pled guilty. At Appellant’s plea hearing, trial cour t advised him before accepting his plea that he had the right to confront and cross-examine wi tnesses called by the state at trial and he had the right to subpoena witnesses by compulso ry process and thereby force them to attend the trial and provide testimony on his beh alf. (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 t his weapon” at which point the court interjected by saying, “Okay.” Appellant then finish ed 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 s aying he had no knowledge of his co-defendant’s plea. In fact, he then clarifi ed, “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 credib ility. Xie , 62 Ohio St.3d at 525. As noted, Appellant and his co-defendant were scheduled f or a joint trial; the trial was continued after they appeared for the pretrial, at which ti me the co-defendant pled guilty while Appellant waived his speedy trial rights and recei ved a reduced bond. Counsel’s statements at the plea withdrawal hearing indicate th ey considered the codefendant’s plea in evaluating the state’s plea offer. {¶52} In any case, the record contains no indication Appellant was un aware 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 disabilit y). Deficient performance is not apparent in the record. This assignment of error is ove rruled. {¶53} For the foregoing reasons, the trial court’s judgment is affirm ed.

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 assi gnments of erro r are overruled and it is the final judgment and order of this Co urt that the judgment of the

Court of Common Pleas of Mahoni ng County, Ohio, is affirmed. C osts waived. A certified copy of this opinion and judgment entry shall const itute the mandate in this case pursuant to Rule 27 of the Rules of Appellate Procedu re. 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.