[Cite as State v. Whaley , 2021-Ohio-1434.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO Plaintiff-Appellee

v. PHILLIP A. WHALEY Defendant-Appellant : : : : : : : : : : Appellate Case No. 2020-CA-15 Trial Court Case Nos. 2019-CR-158, 2019-CR-387, 2019-CR-543 (Criminal Appeal from Common Pleas Court)

. . . . . . . . . . . O P I N I O N Rendered on the 23rd day of April, 2021.

. . . . . . . . . . . IAN RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting A ttorney, Clark County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502 Attorney for Plaintiff-Appellee LUCAS W. WILDER, Atty. Reg. No. 0074057, P.O. Box 574, Dayton, Ohio 45409 Attorney for Defendant-Appellant

. . . . . . . . . . . . .

WELBAUM, J.-2- {¶ 1} Defendant-appellant, Phillip A. Whaley, appeals from his convic tion in the Clark County Court of Common Pleas after pleading guilty to one count of counterfeiting and two counts of aggravated possession of drugs. On October 6 , 2020, Whaley’s appellate counsel filed a brief under the authority of Anders v. California , 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), asserting the absence of any issues with arguable merit for appeal. On October 16, 2020, this court notified Wha ley that his counsel had found no meritorious claims for appeal and granted him 60 days to file a pro se brief assigning any errors. On December 18, 2020, Whaley filed a pro se brief alleging that his trial counsel provided him with ineffective assistance by f ailing to accurately advise him of the terms of the State’s plea offer and by refusing to f ile a motion to withdraw his guilty plea on his behalf. The State thereafter filed a brief responding Whaley’s

ineffective assistance claim. {¶ 2} For the reasons outlined below, we find that Whaley’s ineffecti ve assistance claims lack arguable merit. Furthermore, after conducting an i ndependent review of the record as required by Anders , we find that there are no issues with arguable merit for Whaley to advance on appeal. Therefore, the judgments of the t rial court will be

affirmed.

Facts and Course of Proceedings {¶ 3} Between March and August 2019, Whaley was indicted for several offenses in three separate cases in the Clark County Court of Common Ple as: Case Nos. 2019- CR-158, 2019-CR-543, and 2019-CR-387. This appeal concerns eac h of these three

cases.-3- {¶ 4} In Case No. 2019-CR-158, Whaley was charged with one fifth-degr ee-felony count of aggravated possession of drugs, one fifth-degree-felon y count of possession of cocaine, and one third-degree-felony count of tampering with ev idence. The charges arose after Whaley left a bag containing several smaller plasti c baggies of methamphetamine and cocaine inside a police cruiser. The recor d indicates that Whaley had been sitting inside the police cruiser to keep warm while l aw enforcement officers processed the scene of a traffic accident involving Whaley. Af ter Whaley exited the police cruiser, an officer discovered the bag of drugs on the f loor of the cruiser in the area where Whaley had been sitting. {¶ 5} In Case No. 2019-CR-543, Whaley was charged with two fifth-degr ee-felony counts of aggravated possession of drugs. The charges arose fr om a traffic stop of a stolen vehicle driven by Whaley. During the stop, law enforcem ent officers searched the vehicle and discovered fentanyl and amphetamine behind one of t he vehicle’s seats and

behind the console. {¶ 6} In Case No. 2019-CR-387, Whaley was charged with one fourth-deg reefelony count of counterfeiting. The charge arose after Whaley used two counterfeit $100 bills to pay for merch andise and to make c hange a t a Speedway g as station in Springfield,

Ohio. {¶ 7} On November 14, 2019, Whaley pled guilty to aggravated possessi on of drugs (methamphetamine) in Case No. 2019-CR-158 and to counterf eiting in Case No. 2019-CR-387. In exchange for Whaley’s guilty plea to aggravate d possession of drugs, the State agreed to dismiss the charges for possession of cocai ne and tampering with evidence in Case No. 2019-CR-158. The State also agreed to a p resentence-4- investigation (“PSI”) and to remain silent at sentencing. In e xchange for Whaley’s guilty plea to counterfeiting in Case No. 2019-CR-387, the State likew ise agreed to a PSI and to remain silent at sentencing. As part of the plea agreement, Whaley also agreed to pay restitution to Speedway. {¶ 8} On February 25, 2019, Whaley pled guilty to aggravated possessi on of drugs (fentanyl) in Case No. 2019-CR-543. In exchange for his guilty plea, the State agreed to dismiss the second charge for aggravated possession of drugs in that case. The State also agreed to a PSI and to dismiss a related charge for receiv ing stolen property in Clark

C.P. No. 2019-CR-395. {¶ 9} On February 27, 2019, the trial court sentenced Whaley to 18 mo nths in prison for counterfeiting in Case No. 2019-CR-387. The trial c ourt also sentenced Whaley to nine months in prison for each of the aggravated poss ession of drug offenses

in Case Nos. 2019-CR-158 and 2019-CR-543. The trial court orde red the two ninemonth prison terms to be served concurrently to one another and consecutively to the 18- month prison term. {¶ 10} The trial court also sentenced Whaley to serve 12 months in pri son for committing a felony while he was on post-release control for a prior felony offense. The trial court ordered the 12-month sentence to be served prior an d consecutive to all the other sentences, for a total, aggregate term of 39 months in pr ison. The trial court further ordered Whaley to pay court costs and $200 in restitution to Sp eedway. {¶ 11} Whaley now appeals from his convictions. As previously noted, Whaley’s appellate counsel filed an Anders brief asserting the absence of any issues with arguable merit for appeal. Counsel did n ot raise any potential assignme nts of error in his Anders-5- brief. Whaley, however, filed a pro se brief raising a single assignment of error. Therefore, we will first review Whaley’s pro se assignment of e rror and then conduct an independent review of the record as required by Anders

.

Standard of Review {¶ 12} In Anders cases, we are charged with conducting an independent review of the record “to determine whether any issues involving potential ly reversible error that are raised by appellate counsel or by a defendant in his pro se bri ef are ‘wholly frivolous.’ ” State v. Marbury , 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 7, quoting Anders , 386 U.S. at 744, 87 S.Ct. 1396, 18 L.Ed.2d 493. An issue is wh olly frivolous if it lacks arguable merit, meaning that “on the facts and law involved, no responsible contention

can be made that it offers a basis for reversal.” Id. at ¶ 8, citing State v. Pullen , 2d Dist. Montgomery No. 19232, 2002-Ohio-6788, ¶ 4. If we find that any issue—whether presented by appellate counsel, presented by the appellant, or found through an independent analysis—is not wholly frivolous, we must appoint d ifferent appellate counsel to represent the appellant. Id . at ¶ 7, citing Pullen

.

Pro Se Assignment of Error {¶ 13} Under his sole assignment of error, Whaley contends that his tr ial counsel provided ineffective assistance with regard to his guilty plea to counterfeiting. To support this claim, Whaley argues that his trial counsel led him to bel ieve that he was only pleading guilty to the two charges for aggravated possession of drugs in Case Nos. 2019- CR-158 and 2019-CR-543, and that counsel failed to advise him t hat he was also pleading-6- guilty to counterfeiting in Case No. 2019-CR-387. Whaley also claims that his trial counsel provided ineffective assistance by refusing to file a m otion to withdraw the guilty plea based on: (1) Whaley’s alleged misunderstanding of the ple a agreement; and (2) Whaley allegedly being under the influence during the plea proc eedings. {¶ 14} In order to succeed on an ineffective assistance claim, a defen dant must establish: (1) his trial counsel’s performance was deficient; a nd (2) the deficient performance prejudiced him. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), paragraph two of the syllabus; State v. Bradley , 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus. To establish deficient performance, a defendant must show that his trial counsel’s per formance fell below an objective standard of reasonable representation. Strickland at 688; Bradley at 142. To establish prejudice, a defendant must show that there is “a rea sonable probability that, but for counsel’s errors, the proceeding’s result would have be en different.” State v.

Hale , 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 204, ci ting Strickland at

687-688 and Bradley at paragraph two of the syllabus. The failure to make a showi ng of either deficient performance or prejudice defeats a claim of in effective assistance of

counsel. Strickland at 697. {¶ 15} A guilty plea “waives the right to allege ineffective assistanc e of counsel, except to the extent that the errors caused the plea to be less than knowing and voluntary.” State v. Hurtado , 2d Dist. Montgomery No. 26892, 2017-Ohio-1465, ¶ 11, citing State v. Spates , 64 Ohio St.3d 269, 595 N.E.2d 351 (1992). Therefore, to prev ail on a claim of ineffective assistance of counsel after pleading guilty, a defendant must show that: (1) counsel’s advice was not within the range of com petence demanded of-7- attorneys in criminal cases; and (2) but for counsel’s errors, there was a reasonable probability that the defendant would not have pleaded guilty, b ut would have insisted on going to trial. (Citations omitted.) State v. Olsen , 2d Dist. Montgomery No. 28011, 2019-Ohio-568, ¶ 10. {¶ 16} In this case, Whaley’s ineffective assistance claim is based on Whaley’s alleged communications, or lack thereof, with his trial counsel . A claim that concerns a defendant’s communications with his trial counsel “presents a m atter outside the record.”

State v. Harris , 2d Dist. Montgomery No. 27179, 2017-Ohio-9052, ¶ 19. It is w ell established that “[a] claim of ineffective assistance of counse l cannot be asserted on direct appeal if it relies on matters outside the record.” Id ., citing State v. Thomas , 2d Dist. Montgomery No. 26907, 2017-Ohio–5501, ¶ 28. We have also explained that “a

claim of lack of communication between a defendant and his trial counsel is not one that can be borne out by the record.” (Emphasis added.) State v. Watters , 2016-Ohio-8083, 76 N.E.3d 723, ¶ 27 (2d Dist.). Accord State v. Olds , 2d Dist. Miami No. 2019-CA-9, 2020-Ohio-1528, ¶ 11; State v. Lawson , 2020-Ohio-6852, __ N.E.3d __, ¶ 106 (2d Dist.). Therefore, an ineffective assist ance claim asserting lack of co mmunication also “relies upon information necessarily outside the record, and is therefo re not an issue we can review on direct appeal.” Id

. {¶ 17} Here, we cannot determine from the record what communications m ay have transpired between Whaley and his trial counsel regarding the p lea agreement and Whaley’s alleged request to file a motion to withdraw his guilt y plea. Because Whaley’s

ineffective assistance claim is based on matters outside the re cord, the claim is not reviewable on direct appeal and thus lacks arguable merit.-8-

Conclusion {¶ 18} In addition to reviewing Whaley’s pro se assignment of error, w e have performed our duty under Anders to conduct an independent review of the record. After doing so, we have found no issues with arguable merit for Whale y to advance on appeal. Therefore, we affirm the judgments of the trial court and grant appellate counsel’s request to withdraw from representation.

. . . . . . . . . . . . .

TUCKER, P.J. and DONOVAN, J., concur.

Copies sent to:

Ian Richardson Lucas W. Wilder Phillip A. Whaley Hon. Richard J. O’Neill