[Cite as State v. Herbert, 2019-Ohio-5092.]

IN THE COURT OF APPEALS OF OHIO 

SEVENTH APPELLATE DISTRICT 

JEFFERSON COUNTY

STATE OF OHIO, 

Plaintiff-Appellee, 

v. 

HAKEEN CORTEZ HERBERT aka HAKEEM CORTEZ HERBERT, 

Defendant-Appellant.

 

OPINION AND JUDGMENT ENTRY 

Case No. 19 JE 0003 

 

Criminal Appeal from the 

Court of Common Pleas of Jefferson County, Ohio 

Case No. 18 CR 124 A 

BEFORE: 

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

JUDGMENT: 

Affirmed. 

Atty. Jane M. Hanlin, Jefferson County Prosecutor, Jefferson County Justice Center, 

16001 State Route 7, Steubenville, Ohio 43952, for Plaintiff-Appellee. 

Atty. Adam V. Buente, The Law Office of Adam V. Buente, LLC, 841 Boardman-Poland 

Road, Suite 307, Boardman, Ohio 44512, for Defendant-Appellant. 

 
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Case No. 19 JE 0003

Dated: December 9, 2019 

 

WAITE, P.J. 

{¶1} Appellant Hakeen (also referred to as “Hakeem”) C. Herbert appeals a 

January 23, 2019 Jefferson County Common Pleas Court judgment entry convicting him 

of three counts of having weapons while under disability. Appellant argues that the trial 

court failed to notify him of his right to appeal during the Crim.R. 11 plea colloquy. 

Appellant also argues that his trial counsel was ineffective for failing to file a motion to 

suppress evidence seized pursuant to a search warrant. For the reasons provided, 

Appellant’s arguments are without merit and the judgment of the trial court is affirmed. 

Factual and Procedural History 

{¶2} The Jefferson County Drug Taskforce (“taskforce”) began investigating drug 

activity at a residence located on Claire Avenue in Steubenville. (1/18/19 Hrg., p. 20.) 

During the course of the investigation, officers received information from a confidential 

informant who apparently saw Appellant’s codefendants, Richard Wilson and John Sharp, 

trafficking drugs at the residence. 

{¶3} During the same time frame, the taskforce began investigating Appellant, 

Wilson, Sharp, and Lester Donte Jordan after videos were found on various social media 

platforms showing the men with firearms. (1/18/19 Hrg. Tr., p. 21.) At least one video 

was posted to Facebook and at least one video was posted to Snapchat. It is unclear 

who originally uploaded these videos. Regardless, Appellant and his codefendants were 

each “tagged” in the social media posts. The videos showed Appellant and his 

codefendants firing weapons while in Fernwood State Park in Steubenville. At the time, 

Appellant was under a weapons disability stemming from two prior felony convictions, 
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Case No. 19 JE 0003

Jefferson County case number 16-CR-164 and Linn County, Illinois case number IA057015J. 

{¶4} On June 18, 2018, the taskforce obtained and executed a search warrant 

at the Claire Ave. residence. While the record is not entirely clear as to who owns the 

house, it appears that Appellant lived there at the time of the search. During the search, 

members of the taskforce seized the following firearms: one AR-15 Tactical 556 rifle, one 

FNX Tactical .45 caliber pistol, one Glock 27 .40 caliber pistol, and a “Sig Saur” pistol. 

The taskforce also seized $1,020 and $10,698.50. It is unclear why the two amounts are 

separately listed, as it appears that all monies were seized during the same search. At 

some point thereafter, Appellant admitted to Detective Jason Hanlin that he knew the 

weapons were inside the house and where they were located, however, he claimed that 

they belong to his codefendant, Jordan, who is not under a weapons disability. (1/18/19 

Hrg. Tr., p. 22.) Appellant also informed Det. Hanlin where Jordan purchased the 

weapons. 

{¶5} On August 15, 2018, Appellant was indicted on one count of trafficking in 

drugs (heroin), in violation of R.C. 2925.03(A)(1), (C)(6)(c), a felony of the fourth degree, 

with two forfeiture specifications pertaining to the $1,020 and $10,698 seized by law 

enforcement; four counts of having weapons while under disability in violation of R.C. 

2923.13(A)(3), felonies of the third degree; and one count of receiving stolen property, a 

violation of R.C. 2913.51(A), a felony of the fourth degree. The “Sig Saur” pistol is also 

the basis of the receiving stolen property charge. Appellant’s codefendants were also 

charged with various crimes within the indictment. 
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Case No. 19 JE 0003

{¶6} On January 18, 2019, Appellant pleaded no contest to three counts of 

having weapons while under disability (the AR-15, FNX pistol, and Glock). The state 

dismissed the other weapons charge pertaining to the “Sig Saur” pistol, the drug 

trafficking charge, and the receiving stolen property charge. (1/18/19 Amended 

Indictment.) At the plea hearing, the state presented evidence regarding the social media 

videos and Appellant’s statements to Det. Hanlin, and introduced two photographs 

showing Appellant holding firearms. (1/18/19 Hrg. Tr., p. 22.) According to the state, the 

photographs were taken inside the basement of the Claire Ave. residence. Appellant’s 

face and tattoos are visible in the photographs. In each photograph, Appellant can clearly 

be seen holding a firearm, including one photograph where he pointed the firearm’s laser 

at the camera. 

{¶7} Following the trial court’s acceptance of Appellant’s no contest plea, the 

court immediately proceeded to sentencing. The court accepted the joint 

recommendation and sentenced Appellant to thirty months of incarceration on each 

count, to run concurrently. The court credited Appellant with 215 days served. Although 

the drug trafficking charge was dismissed, Appellant agreed to waive any interest in the 

money and firearms seized by the taskforce. It is from this entry that Appellant timely 

appeals. 

ASSIGNMENT OF ERROR NO. 1 

The Trial Court Failed to Advise Appellant of His Right to Appeal, a 

Constitutional Error That Requires Vacation of the Sentence and a Remand 

to the Trail [sic] Court for Further Proceedings. 
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Case No. 19 JE 0003

{¶8} Appellant contends that the trial court failed to advise him of his right to an 

appeal at the plea hearing. Appellant claims that a defendant’s right to appeal is a 

constitutional right for purposes of Crim.R. 11, thus he need not demonstrate prejudice. 

In the event that this Court finds that the right is nonconstitutional, he argues that prejudice 

is evident from the restrictions placed on his ability to appeal issues involving a motion to 

suppress. 

{¶9} In response, the state explains that the advisement of a defendant’s 

appellate rights falls under Crim.R. 32, and is irrelevant to a Crim.R. 11 analysis. 

Pursuant to Crim.R. 32, Appellant must demonstrate prejudice resulting from the trial 

court’s failure to advise Appellant. The state contends that the case cited by Appellant is 

contrary to his position and supports the state’s argument that Appellant cannot 

demonstrate prejudice because he did file a timely appeal in this matter. See State v. 

Finch, 5th Dist. Licking No. 11 CA 6, 2011-Ohio-4273. 

{¶10} Appellant exhibits some confusion, here, as he has meshed the concepts 

of Crim.R. 11 and Crim.R. 32. Although Appellant uses the terms and principles of the 

rules interchangeably, they address wholly different concepts. Crim.R. 11 details the 

advisements that must be given to a defendant at a plea hearing, whereas Crim.R. 32 

provides the advisements that must be made to a defendant at a sentencing hearing. The 

advisements necessary at a Crim.R. 11 plea hearing involve the rights that the defendant 

waives as a result of his plea. The advisements given at the sentencing hearing pertain 

to the rights a defendant maintains regarding his sentence and subsequent appeal. 

{¶11} In his confusion, Appellant argues that the advisement of a defendant’s right 

to appeal is a part of the advisements of constitutional rights made pursuant to Crim.R. 
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Case No. 19 JE 0003

11(C). However, the Ohio Supreme Court and all twelve Ohio appellate districts have 

expressly limited the advisements of constitutional rights to the five rights found within 

Crim.R. 11(C)(2)(c), which include: the right to a jury trial, the right to confront one’s 

accusers, the privilege against self-incrimination, and the right to require the state to prove 

all elements beyond a reasonable doubt. See State v. Veney, 120 Ohio St.3d 176, 2008-

Ohio-5200, 897 N.E.2d 621; State v. Green, 1st Dist. Hamilton No. C-170477, 2019-Ohio1428; State v. Davis, 2d Dist. Clark No. 2018-CA-49, 2019-Ohio-1904; State v. Norville, 

3d Dist. Seneca No. 13-18-26, 2018-Ohio-5220; State v. Willison, 4th Dist. Athens No. 

18CA18, 2019-Ohio-220; State v. Shaw, 5th Dist. Muskingum No. CT2018-0054, 2019-

Ohio-2387; State v. Anderson, 6th Dist. Lucas No. L-18-1110, 2019-Ohio-1915; State v. 

Howell, 7th Dist. Monroe No. 17 MO 0018, 2019-Ohio-1806; State v. Gossett, 8th Dist. 

Cuyahoga No. 107871, 2019-Ohio-3284; State v. Conley, 9th Dist. Lorain No. 

18CA011314, 2019-Ohio-2763; State v. Haddad, 2017-Ohio-1290, 88 N.E.3d 556 (10th 

Dist.); State Knezeak, 11th Dist. Ashtabula No. 2018-A-0093, 2019-Ohio-3056; State v. 

Martin, 12th Dist. Warren No. CA2018-09-105, 2019-Ohio-2792. 

{¶12} As earlier discussed, the advisement of a defendant’s appellate rights is 

made pursuant to Crim.R. 32. Crim.R. 32(B)(3) provides: 

If a right to appeal or a right to seek leave to appeal applies under division 

(B)(1) or (B)(2) of this rule, the court also shall advise the defendant of all 

of the following: 

(a) That if the defendant is unable to pay the cost of an appeal, the 

defendant has the right to appeal without payment; 
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Case No. 19 JE 0003

(b) That if the defendant is unable to obtain counsel for an appeal, counsel 

will be appointed without cost; 

(c) That if the defendant is unable to pay the costs of documents necessary 

to an appeal, the documents will be provided without cost; 

(d) That the defendant has a right to have a notice of appeal timely filed on 

his or her behalf. 

{¶13} As noted by the state, the case relied on by Appellant supports the state’s 

position. The Finch court held that the right to an appeal of a criminal conviction is not a 

constitutional right for purposes of Crim.R. 11. Instead, it is an advisement arising from 

the requirements of Crim.R. 32. The court explained: “the right to appeal does not arise 

until sentencing. It is not a requirement to be performed prior to the acceptance of a plea 

and has no bearing on whether the plea was knowingly, intelligently or voluntarily made.” 

Id. at ¶ 26. 

{¶14} That said, Appellant is correct that the trial court failed to advise him at 

sentencing of his right to have an appeal filed on his behalf. However, all twelve Ohio 

appellate districts hold that this error is harmless where the defendant either files a timely 

appeal or the court of appeals accepts a delayed appeal. See State v. Joiner, 1st Dist. 

Hamilton No.C-840784, 1985 WL 8916 (July 3, 1985); State v. Fulton, 2d Dist. Clark No. 

2002-CA-62, 2003-Ohio-1556, reversed on other grounds; State v. Miller, 3d Dist. Putnam 

No. 12-10-13, 2011-Ohio-1459; State v. Thompson, 4th Dist. Washington Nos. 10CA5, 

10CA13, 2012-Ohio-3188; State v. Fryer, 2015-Ohio-4573, 48 N.E.3d 962 (5th Dist.); 

State v. Miller, 2017-Ohio-670, 85 N.E.3d 475 (6th Dist.); State v. McElroy, 7th Dist. 
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Case No. 19 JE 0003

Mahoning No. 99 C.A. 70, 2000 WL 1486761 (Sept. 22, 2000); State v. Nix, 8th Dist. 

Cuyahoga No. 106894, 2018-Ohio-4702, reopened on other grounds; State v. Moore, 9th 

Dist. Lorain No. 15CA010753, 2017-Ohio-7546, vacated on other grounds; State v. D.H., 

10th Dist. Franklin No. 15AP-525, 2015-Ohio-5281; State v. Antoine, 11th Dist. Portage 

No. 2018-P-0009, 2019-Ohio-414; State v. Abrams, 12th Dist. Clermont Nos. CA2017-

03-018, CA2017-03-019, 2017-Ohio-8536. 

{¶15} Appellant has filed a timely appeal in this matter and appointed counsel filed 

a merit brief on his behalf. In accordance with established Ohio law, the trial court’s failure 

to advise Appellant of his right to appeal is harmless. 

{¶16} Appellant’s first assignment of error is without merit and is overruled. 

ASSIGNMENT OF ERROR NO. 2 

Trial Counsel Was Ineffective in Not Filing a Motion to Suppress All 

Evidence Obtained as a Result of an Unconstitutionally General Warrant 

Allowing a Search of “All Persons.” 

{¶17} Appellant argues that his trial counsel was ineffective for failing to file a 

motion to suppress evidence obtained pursuant to “an unconstitutionally general” search 

warrant. (Appellant’s Brf., p. 9.) According to Appellant, the language of the search 

warrant permitted law enforcement to search “any person suspected to be involved in 

drug activity or concealing any of the listed evidence on their person.” (Appellant’s Brf., 

p. 10.) Appellant contends that such language is overly broad pursuant to State v. Kinney, 

83 Ohio St.3d 85, 698 N.E.2d 49 (1998). Appellant asserts that he informed the trial court 
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Case No. 19 JE 0003

at his plea hearing that he had reservations regarding his counsel’s failure to file a motion 

to suppress and appeared to be confused regarding the issue. 

{¶18} The state responds that, although Appellant initially indicated that he 

wanted a motion to suppress filed, he unequivocally stated at the plea hearing that he no 

longer wished to file the motion and would rather accept the terms of the negotiated plea 

agreement. The trial court questioned Appellant on the issue and confirmed that he 

desired to accept the negotiated plea agreement in lieu of filing a motion to suppress. 

{¶19} The test for ineffective assistance of counsel is two-part: whether trial 

counsel's performance was deficient and, if so, whether the deficiency resulted in 

prejudice. State v. White, 7th Dist. Jefferson No. 13 JE 33, 2014-Ohio-4153, ¶ 18, citing 

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. 

Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 107. In order to prove 

prejudice, “[t]he defendant must show that there is a reasonable probability that, but for 

counsel's unprofessional errors, the result of the proceeding would have been different. 

A reasonable probability is a probability sufficient to undermine confidence in the 

outcome.” State v. Lyons, 7th Dist. Belmont No. 14 BE 28, 2015-Ohio-3325, ¶ 11, citing 

Strickland at 694. The appellant must affirmatively prove the alleged prejudice occurred. 

Strickland at 693. 

{¶20} Because an appellant must satisfy both Strickland prongs, if one prong is 

not met, an appellate court need not address the remaining prong. Id. at 697. The 

appellant bears the burden of proof on the issue of counsel's effectiveness, and in Ohio, 

a licensed attorney is presumed competent. State v. Carter, 7th Dist. Columbiana No. 
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Case No. 19 JE 0003

2000-CO-32, 2001 WL 741571 (June 29, 2001), citing State v. Calhoun, 86 Ohio St.3d 

279, 289, 714 N.E.2d 905 (1999). 

{¶21} As a threshold issue, the search warrant in this case, which Appellant 

quotes in his brief, is not part of the appellate record. Hence, we cannot confirm the 

accuracy of the quoted passage within Appellant’s brief. Importantly, because the search 

warrant is de hors the record, we cannot consider it on appeal. Even if Appellant could 

demonstrate that the failure to file a motion to suppress in this matter amounted to 

deficient performance, he cannot demonstrate prejudice. 

{¶22} It appears Appellant believes the guns seized by means of the warrant 

should not have been used as evidence. Again, prejudice can only be shown where 

“there is a reasonable probability that, but for counsel's unprofessional errors, the result 

of the proceeding would have been different.” Lyons, at ¶ 11. The state introduced a 

plethora of admissible evidence in this matter against Appellant, even if a motion to 

suppress the weapons would have been successful. The state introduced some of the 

records in two cases, one from Jefferson County and another from Linn County, Illinois, 

to show that Appellant was under a weapons disability. The state admitted two 

photographs into evidence during the plea hearing, which are a part of the appellate 

record. The photographs show Appellant holding firearms while inside the basement of 

the Claire Ave. residence. Appellant’s face and tattoos are clearly visible in the 

photographs. It is also clear from the photographs that Appellant is holding a firearm. In 

fact, in one photograph, he is shown pointing a firearm with the firearm’s laser aimed at 

the camera. These facts alone are sufficient to result in conviction. 
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Case No. 19 JE 0003

{¶23} The state additionally presented evidence of Appellant’s statements to Det. 

Hanlin that he was aware firearms were inside the residence and that he knew where 

those weapons were located. The state also possessed and was prepared to admit into 

evidence several videos of Appellant holding and firing several firearms. Even without 

the seized firearms, there is ample evidence to convict Appellant of having weapons while 

under disability. 

{¶24} Regardless, Appellant clearly and unequivocally stated at the plea hearing 

that, while he originally wanted to file a motion to suppress, he would rather accept the 

negotiated plea agreement. The following conversation occurred between Appellant and 

the trial court at the plea hearing: 

THE COURT: Is there anything he’s -- is there anything that you think ought 

to be done that’s not yet done, like talk to a witness, file a motion, explain 

something to you, anything at all? 

[APPELLANT]: I did want a motion filed at first but -- 

THE COURT: Excuse me? 

[APPELLANT]: At first I did want a motion filed till we came to this 

agreement. 

THE COURT: Okay. Well, what happened to that? I mean, are you good 

that that didn’t happen or -- 
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Case No. 19 JE 0003

[APPELLANT]: Like I just rather do the plea of no contest and take the 30 

months. 

(1/18/19 Hrg. Tr., p. 18.) 

{¶25} It is clear from this passage that Appellant preferred to accept the 

agreement reached by the parties and no longer wished to pursue a motion to suppress. 

In addition to the court’s questioning of Appellant, it also questioned his counsel regarding 

the matter. 

THE COURT: What motion did he want filed? 

[COUNSEL]: Your Honor, it was my understanding from our conversations 

that we originally talked about a possible motion to suppress based off the 

search warrant. 

THE COURT: But there had to be some grounds for that. Were there any? 

[COUNSEL]: My client and myself discussed that matter at length. I went 

over some caselaw that he had found, that I had found and I explained to 

him the differences in the matter and that I felt it was baseless at -- at that 

time. 

THE COURT: Okay. Are you good with that? 

[APPELLANT]: Yes, sir. 

(1/18/19 Hrg. Tr., pp. 18-19.) 
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Case No. 19 JE 0003

{¶26} This record demonstrates that trial counsel reviewed the research Appellant 

had apparently conducted with him and provided him with his own research showing that 

a motion to suppress would have been baseless in this case. Counsel also explained to 

Appellant the difference between his case and those he found in his research. Appellant 

confirmed to the court that this conversation occurred and that he was satisfied with the 

discussion. Further, Appellant clearly expressed his desire to accept the negotiated plea 

agreement and forgo the filing of a motion to suppress. 

{¶27} We note that Appellant faced a significant prison sentence if convicted of all 

charged counts, because the maximum punishment was three years of incarceration for 

each weapons disability charge and eighteen months each for the drug trafficking and 

receiving stolen property charges. With the benefit of the jointly recommended sentence, 

Appellant is serving only two and one-half years. This total sentence represents three 

counts of weapons disability and is less than the maximum possible penalty for one single 

count of a weapons disability. Appellant faced three additional charges which were 

dismissed pursuant to the plea agreement. This record shows that Appellant received a 

significantly reduced sentence. 

{¶28} Based on the record, Appellant fails both prongs of the Strickland test. 

Appellant made an informed decision to forgo filing a motion to suppress. Additionally, 

he cannot demonstrate prejudice. Appellant’s second assignment of error is without merit 

and is overruled. 

Conclusion 

{¶29} Appellant argues that the trial court failed to notify him of his appellate rights 

during the plea colloquy. Appellant also argues that his trial counsel was ineffective for 
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Case No. 19 JE 0003

failing to file a motion to suppress. Pursuant to caselaw, Appellant cannot demonstrate 

prejudice as to the trial court’s failure to notify him at sentencing of his appellate rights 

because he filed a timely appeal. Additionally, Appellant determined that he would rather 

accept the terms of a negotiated plea agreement than file a motion to suppress. Again, 

Appellant cannot demonstrate prejudice. Accordingly, Appellant’s arguments are without 

merit and the judgment of the trial court is affirmed. 

Robb, J., concurs. 

D’Apolito, J., concurs. 
[Cite as State v. Herbert, 2019-Ohio-5092.]

 

 

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 Jefferson 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.