[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 

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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) 

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O P I N I O N 

Rendered on the 23rd day of April, 2021. 

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IAN RICHARDSON, Atty. Reg. No. 0100124, Assistant Prosecuting Attorney, 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 

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WELBAUM, J. 
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{¶ 1} Defendant-appellant, Phillip A. Whaley, appeals from his conviction 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 Whaley 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 failing to accurately advise 

him of the terms of the State’s plea offer and by refusing to file 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 ineffective assistance 

claims lack arguable merit. Furthermore, after conducting an independent 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 trial 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 Pleas: Case Nos. 2019-

CR-158, 2019-CR-543, and 2019-CR-387. This appeal concerns each of these three 

cases. 
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{¶ 4} In Case No. 2019-CR-158, Whaley was charged with one fifth-degree-felony 

count of aggravated possession of drugs, one fifth-degree-felony count of possession of 

cocaine, and one third-degree-felony count of tampering with evidence. The charges 

arose after Whaley left a bag containing several smaller plastic baggies of 

methamphetamine and cocaine inside a police cruiser. The record indicates that Whaley 

had been sitting inside the police cruiser to keep warm while law enforcement officers 

processed the scene of a traffic accident involving Whaley. After Whaley exited the 

police cruiser, an officer discovered the bag of drugs on the floor of the cruiser in the area 

where Whaley had been sitting. 

{¶ 5} In Case No. 2019-CR-543, Whaley was charged with two fifth-degree-felony 

counts of aggravated possession of drugs. The charges arose from a traffic stop of a 

stolen vehicle driven by Whaley. During the stop, law enforcement officers searched the 

vehicle and discovered fentanyl and amphetamine behind one of the vehicle’s seats and 

behind the console. 

{¶ 6} In Case No. 2019-CR-387, Whaley was charged with one fourth-degreefelony count of counterfeiting. The charge arose after Whaley used two counterfeit $100 

bills to pay for merchandise and to make change at a Speedway gas station in Springfield, 

Ohio. 

{¶ 7} On November 14, 2019, Whaley pled guilty to aggravated possession of 

drugs (methamphetamine) in Case No. 2019-CR-158 and to counterfeiting in Case No. 

2019-CR-387. In exchange for Whaley’s guilty plea to aggravated possession of drugs, 

the State agreed to dismiss the charges for possession of cocaine and tampering with 

evidence in Case No. 2019-CR-158. The State also agreed to a presentence 
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investigation (“PSI”) and to remain silent at sentencing. In exchange for Whaley’s guilty 

plea to counterfeiting in Case No. 2019-CR-387, the State likewise 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 possession 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 receiving stolen property in Clark 

C.P. No. 2019-CR-395. 

{¶ 9} On February 27, 2019, the trial court sentenced Whaley to 18 months in 

prison for counterfeiting in Case No. 2019-CR-387. The trial court also sentenced 

Whaley to nine months in prison for each of the aggravated possession of drug offenses 

in Case Nos. 2019-CR-158 and 2019-CR-543. The trial court ordered 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 prison 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 and consecutive to all the 

other sentences, for a total, aggregate term of 39 months in prison. The trial court further 

ordered Whaley to pay court costs and $200 in restitution to Speedway. 

{¶ 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 not raise any potential assignments of error in his Anders 
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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 error 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 potentially reversible error that are 

raised by appellate counsel or by a defendant in his pro se brief 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 wholly 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 different 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 trial 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 believe 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 that he was also pleading 
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guilty to counterfeiting in Case No. 2019-CR-387. Whaley also claims that his trial 

counsel provided ineffective assistance by refusing to file a motion to withdraw the guilty 

plea based on: (1) Whaley’s alleged misunderstanding of the plea agreement; and (2) 

Whaley allegedly being under the influence during the plea proceedings. 

{¶ 14} In order to succeed on an ineffective assistance claim, a defendant must 

establish: (1) his trial counsel’s performance was deficient; and (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 performance 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 reasonable probability that, 

but for counsel’s errors, the proceeding’s result would have been different.” State v. 

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

687-688 and Bradley at paragraph two of the syllabus. The failure to make a showing of 

either deficient performance or prejudice defeats a claim of ineffective assistance of 

counsel. Strickland at 697. 

{¶ 15} A guilty plea “waives the right to allege ineffective assistance 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 prevail 

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 competence demanded of 
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attorneys in criminal cases; and (2) but for counsel’s errors, there was a reasonable 

probability that the defendant would not have pleaded guilty, but 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 matter outside the record.” 

State v. Harris, 2d Dist. Montgomery No. 27179, 2017-Ohio-9052, ¶ 19. It is well 

established that “[a] claim of ineffective assistance of counsel 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 assistance claim asserting lack of communication also “relies 

upon information necessarily outside the record, and is therefore not an issue we can 

review on direct appeal.” Id. 

{¶ 17} Here, we cannot determine from the record what communications may have 

transpired between Whaley and his trial counsel regarding the plea agreement and 

Whaley’s alleged request to file a motion to withdraw his guilty plea. Because Whaley’s 

ineffective assistance claim is based on matters outside the record, the claim is not 

reviewable on direct appeal and thus lacks arguable merit. 
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Conclusion 

{¶ 18} In addition to reviewing Whaley’s pro se assignment of error, we 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 Whaley to advance on appeal. 

Therefore, we affirm the judgments of the trial court and grant appellate counsel’s request 

to withdraw from representation. 

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

Copies sent to: 

Ian Richardson 

Lucas W. Wilder 

Phillip A. Whaley 

Hon. Richard J. O’Neill