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

JUDGMENT: Affirmed.

Atty. Jane M. Hanlin, Jefferson County Prosecutor, Jefferson County Justice Center, 16001 State Route 7, Steubenville, Ohio 43952, for Plaintiff-A ppellee. Atty. Adam V. Buente , The Law Office of Adam V. Buente, LLC, 841 Boardman-Poland Road, Suite 307, Boardman, Ohio 44512, for Defendant-Appellan t

.– 2 –

Case No. 19 JE 0003 Dated: December 9, 2019

WAITE, P.J. {¶1} Appellant Hakeen (also referred to as “Hakeem”) C. Herbert appe als a January 23, 2019 Jefferson County Common Pleas Court judgment e ntry convicting him of three counts of having weapons while under disability. Appe llant argues that the trial court failed to notify him of his right to appeal during the Cr im.R. 11 plea colloquy. Appellant also argues that his trial counsel was ineffective fo r 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 investi gating drug activity at a residence located on Claire Avenue in Steubenvill e. (1/18/19 Hrg., p. 20.) During the course of the investigation, officers received infor mation 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 A ppellant, 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 Sna pchat. It is unclear who originally uploaded these videos. Regardless, Appellant an d his codefendants were each “tagged” in the social media posts. The videos showed App ellant and his codefendants firing weapons while in Fernwood State Park in Ste ubenville. At the time, Appellant was under a weapons disability stemming from two prio r felony convictions,– 3 –

Case No. 19 JE 0003 Jefferson County case number 16-CR-164 and Linn County, Illinoi s 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 pisto l, 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 du ring the same search. At some point thereafter, Appellant admitted to Detective Jason Ha nlin that he knew the weapons were inside the house and where they were located, howe ver, he claimed that they belong to his codefendant, Jordan, who is not under a weap ons disability. (1/18/19 Hrg. Tr., p. 22.) Appellant also informed Det. Hanlin where Jo rdan purchased the
weapons. {¶5} On August 15, 2018, Appellant was indicted on one count of traf ficking 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 disabili ty in violation of R.C. 2923.13(A)(3), felonies of the third degree; and one count of r eceiving stolen property, a violation of R.C. 2913.51(A), a felony of the fourth degree. T he “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.– 4 –

Case No. 19 JE 0003 {¶6} On January 18, 2019, Appellant pleaded no contest to three coun ts of having weapons while under disability (the AR-15, FNX pistol, a nd 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 introduce d 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. r esidence. Appellant’s face and tattoos are visible in the photographs. In each photo graph, Appellant can clearly be seen holding a firearm, including one photograph where he po inted the firearm’s laser at the camera. {¶7} Following the trial court’s acceptance of Appellant’s no contes t plea, the court immediately proceeded to sentencing. The court accepted the joint recommendation and sentenced Appellant to thirty months of inca rceration 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 en try that Appellant timely appeals. ASSIGNMENT OF ERROR NO. 1
The Trial Court Failed to Advise Appellant of His Right to Appe al, a Constitutional Error That Requires Vacation of the Sentence and a Remand to the Trail [sic] Court for Further Proceedings.– 5 –

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 n ot demonstrate prejudice. In the event that this Court finds that the right is nonconstit utional, he argues that prejudice is evident from the restrictions placed on his ability to appea l issues involving a motion to
suppress. {¶9} In response, the state explains that the advisement of a defend ant’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 re sulting from the trial court’s failure to advise Appellant. The state contends that t he 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 th is 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 c oncepts of Crim.R. 11 and Crim.R. 32. Although Appellant uses the term s 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 s entencing 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 def endant’s right to appeal is a part of the advisements of constitutional rights made pursuant to Crim.R.– 6 –

Case No. 19 JE 0003 11(C). However, the Ohio Supreme Court and all twelve Ohio app ellate districts have expressly limited the advisements of constitutional rights to t he 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 rig ht 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 appe al, the defendant has the right to appeal without payment;– 7 –

Case No. 19 JE 0003 (b) That if the defendant is unable to obtain counsel for an a ppeal, counsel will be appointed without cost;
(c) That if the defendant is unable to pay the costs of docume nts 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 no t a constitutional right for purposes of Crim.R. 11. Instead, it i s an advisement arising from the requirements of Crim.R. 32. The court explained: “the rig ht to appeal does not arise until sentencing. It is not a requirement to be performed prio r to the acceptance of a plea and has no bearing on whether the plea was knowingly, intellige ntly 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.– 8 –

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 g rounds; 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 appointe d counsel filed a merit brief on his behalf. In accordance with established Oh io 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 o verruled. ASSIGNMENT OF ERROR NO. 2
Trial Counsel Was Ineffective in Not Filing a Motion to Suppres s 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 fai ling to file a motion to suppress evidence obtained pursuant to “an unconstitu tionally general” search warrant. (Appellant’s Brf., p. 9.) According to Appellant, th e language of the search warrant permitted law enforcement to search “any person suspect ed 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– 9 –

Case No. 19 JE 0003 at his plea hearing that he had reservations regarding his coun sel’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 t he plea hearing that he no longer wished to file the motion and would rather accept the te rms of the negotiated plea agreement. The trial court questioned Appellant on the issue a nd confirmed that he desired to accept the negotiated plea agreement in lieu of fili ng a motion to suppress. {¶19} The test for ineffective assistance of counsel is two-part: wh ether trial counsel's performance was deficient and, if so, whether the def iciency resulted in prejudice . State v. White , 7th Dist. Jefferson No. 13 JE 33, 2014-Ohio-4153, ¶ 18, citin g 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 reasonabl e probability that, but for counsel's unprofessional errors, the result of the proceeding w ould have been different. A reasonable probability is a p robability sufficient to undermi ne 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 pr ejudice 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 pron g. Id . at 697. The appellant bears the burden of proof on the issue of counsel's e ffectiveness, and in Ohio, a licensed attorney is presumed competent. State v. Carter , 7th Dist. Columbiana No.– 10 –

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 Ap pellant quotes in his brief, is not part of the appellate record. Henc e, we cannot confirm the accuracy of the quoted passage within Appellant’s brief. Impor tantly, 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 th is matter amounted to deficient performance, he cannot demonstrate prejudice. {¶22} It appears Appellant believes the guns seized by means of the w arrant should not have been used as evidence. Again, prejudice can on ly be shown where “there is a reasonable probab ility that, but for counsel's unpr ofessional 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 Appellan t, even if a motion to suppress the weapons would have been successful. The state int roduced some of the records in two cases, one from Jefferson County and another fro m Linn County, Illinois, to show that Appellant was under a weapons disability. The sta te 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 cl early visible in the photographs. It is also clear from the photographs that Appell ant is holding a firearm. In fact, in one photograph, he is shown pointing a firearm with th e firearm’s laser aimed at the camera. These facts alone are sufficient to result in conv iction.– 11 –

Case No. 19 JE 0003 {¶23} The state additionally presented evidence of Appellant’s statem ents 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 p repared to admit into evidence several videos of Appellant holding and firing several firearms. Even without the seized firearms, there is ample evidence to convict Appella nt of having weapons while under disability. {¶24} Regardless, Appellant clearly and unequivocally stated at the p lea 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 yo u 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 t o this agreement.
THE COURT: Okay. Well, what happened to that? I mean, are you good that that didn’t happen or --– 12 –

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 accep t 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 qu estioned his counsel regarding the matter.

THE COURT: What motion did he want filed?
[COUNSEL]: Your Honor, it was my underst anding from our conversations that we originally talked about a possible motion to suppress b ased off the search warrant.
THE COURT: But there had to be some grounds for that. Were th ere any?
[COUNSEL]: My client and myself discussed that matter at lengt h. I went over some caselaw that he had found, that I had found and I exp lained to him the differences in the matter and that I felt it was basele ss at -- at that time.
THE COURT: Okay. Are you good with that?
[APPELLANT]: Yes, sir.
(1/18/19 Hrg. Tr., pp. 18-19.)– 13 –

Case No. 19 JE 0003 {¶26} This record demonstrates that trial counsel reviewed the resear ch 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. Co unsel 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 c onvicted 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 joi ntly recommended sentence, Appellant is serving only two and one-half years. This total s entence represents three counts of weapons disability and is less than the maximum possi ble penalty for one single count of a weapons disability. Appellant faced three additiona l charges which were dismissed pursuant to the plea agreement. This record shows th at 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 h is appellate rights during the plea colloquy. Appellant also argues that his trial counsel was ineffective for– 14 –

Case No. 19 JE 0003 failing to file a motion to suppress. Pursuant to caselaw, App ellant cannot demonstrate prejudice as to the trial court’s failure to notify him at sent encing of his appellate rights because he filed a timely appeal. Additionally, Appellant dete rmined that he would rather accept the terms of a negotiated plea agreement than file a mot ion 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 assi gnments of error are overruled and it is the final judgment and order of this Co urt that the judgment of the Court of Common Pleas of Jeffe rson County, Ohio, is affirme d. Costs 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 Proc edure. It is ordered that a certified copy be sent by the clerk to the trial court to car ry this judgment into execution.

NOTICE TO COUNSEL This document constitutes a final judgment entry.