State v. Devine
| Decision Date | 04 February 2019 |
| Docket Number | No. 17 CO 0013,17 CO 0013 |
| Citation | 2019 Ohio 778,132 N.E.3d 161 |
| Parties | STATE of Ohio, Plaintiff-Appellee, v. Phillip T. DEVINE, Defendant-Appellant. |
| Court | Ohio Court of Appeals |
Atty. Robert Herron, Columbiana County Prosecutor, Atty. Megan L. Bickerton, Assistant Prosecuting Attorney, 105 South Market Street, Lisbon, Ohio 44432, for Plaintiff-Appellee and
Atty. Rhys B. Cartwright-Jones, Atty Edward A. Czopur 42 N. Phelps Street, Youngstown, Ohio 44503, for Defendant-Appellant.
BEFORE: Carol Ann Robb, Gene Donofrio, Kathleen Bartlett, Judges.
OPINION AND JUDGMENT ENTRY
{¶1} Defendant-Appellant Phillip Devine appeals the decisions of the Columbiana County Common Pleas Court convicting him after a guilty plea to a drug charge and thereafter denying a post-sentence motion to withdraw his plea. In setting forth a speedy trial issue, Appellant alleges the court must look back to the date of his arrest on federal charges, which he claims arose from the same facts as this case. He argues the failure to consider the speedy trial issue using the date of his federal arrest constituted ineffective assistance of counsel and plain error. For the following reasons, the judgment of conviction and the judgment denying plea withdrawal are affirmed.
{¶2} On September 15, 2016, a secret indictment was issued by the grand jury in Columbiana County charging Appellant with two drug counts occurring on August 11, 2014. The first count alleged he knowingly manufactured or engaged in part of the production of methamphetamine (meth) in violation R.C. 2925.04(A), a felony of the second degree. The second count alleged he knowingly assembled or possessed a chemical that may be used to manufacture meth with intent to manufacture meth, a felony of the third degree in violation of R.C. 2925.041(A).
{¶3} On September 28, 2016, the indictment was served, and Appellant was arrested. He was incarcerated until October 21, 2016, when bond was modified. The day before his release, he filed requests for discovery and a bill of particulars. The state responded on November 17, 2016. The bill of particulars addressed the first count by explaining: during the execution of a search warrant at a named address in Leetonia, where Appellant was present and residing, agents located seven "one pot methamphetamine cooks," eight acid generators, lye, and lighter fluid. This evidence was repeated for the second count with the addition of "cut open lithium batteries."
{¶4} On November 30, 2016, Appellant moved for a continuance of the December jury trial date due to his inpatient treatment at a substance abuse facility. Before the new trial date, Appellant was granted another continuance. Trial was reset for March 6, 2017, but on this date, the court canceled the trial due to Appellant's decision to change his plea and reset the case for a plea hearing.
{¶5} At the March 10, 2017 plea hearing, Appellant pled guilty to the third-degree felony in count two in exchange for the dismissal of the second-degree felony in count one. The state agreed to recommend a sentence of 24 months (where the maximum was 36 months). In addition to signing a written plea agreement, Appellant signed a response to the court wherein he answered affirmatively when asked: "Do you fully realize that, by your offer to plead guilty, you surrender the right to challenge everything that happened before you offered to plead guilty?" A statement to this effect was also contained in a written judicial advice to the defendant, which Appellant agreed he understood. (Tr. 7). Appellant additionally said he understood he was giving up all his constitutional rights in connection with this case and waiving the right to challenge any violations of his rights. (Plea Tr. 13-14). Upon accepting the guilty plea, the court ordered a presentence investigation (PSI).
{¶6} At sentencing, defense counsel posited: Appellant did not make meth as alleged in the count being dismissed; he bought Sudafed for others to use for meth-making; they provided him with heroin in return; and this was a means for him to support his former drug habit. (Sent.Tr. 3-4). In exercising his allocution right, Appellant said he "got raided" in August 2014; he also remarked, "the first time this case got brought up with the federal side that – I thought that, you know, perhaps like it was over with." (Sent.Tr. 8-9). In discussing Appellant's criminal history, it was noted Appellant was complying with his federal probation which began in June 2016. As to the federal case, defense counsel stated: (Sent.Tr. 2-3).
{¶7} The court commented that the federal and state cases involved different drugs: the state case involved meth, while the federal case involved a conspiracy to possess heroin with an intent to distribute it. (Sent.Tr. 10). The court sentenced Appellant to 24 months in prison. Appellant filed a timely notice of appeal from the June 6, 2017 sentencing entry. Appellant's newly-appointed counsel filed a no merit brief and motion to withdraw. Appellant then retained counsel. In February 2018, Appellant's new attorney filed a brief and sought a limited remand to allow the trial court to rule on Appellant's motion to withdraw the guilty plea. On March 8, 2018, this court granted a limited remand. Our entry ruled Appellant could amend his notice of appeal and supplement the record and his brief if necessary.
{¶8} Appellant's motion to withdraw the guilty plea claimed his speedy trial rights were violated as time started accruing when he was arrested on the federal charge because the state charge arose from the same facts which were known by the state at the time. The motion set forth a claim of ineffective assistance of counsel in the failure to raise this issue or present facts establishing the original arrest date and claimed the trial court lacked jurisdiction due to the issue. He attached the return on an arrest warrant issued in U.S. v. Devine , N.D. Ohio 4:16CR047, showing he was arrested on Feb. 17, 2016 for conspiracy involving possession with intent to distribute heroin and for using a telephone to facilitate drug trafficking. He also attached the June 30, 2016 federal sentencing entry showing he was sentenced to probation after pleading guilty to the heroin conspiracy count.
{¶9} A supplemental brief in support of plea withdrawal was filed with leave of the trial court. Appellant attached the February 10, 2016 federal indictment showing he was indicted on the heroin conspiracy charge along with three co-defendants for events taking place between May and August of 2014; the indictment contained multiple excerpts from text messages and phone calls related to heroin distribution collected during the federal investigation. He also attached a Columbiana County Drug Task Force incident report, received in discovery, which demonstrated: the DEA executed a search warrant at Appellant's residence on August 11, 2014; a meth lab was discovered; and the drug task force and fire department were called to the scene.
{¶10} On June 13, 2018, the trial court denied Appellant's motion to withdraw his guilty plea. The court disagreed with Appellant's contention that the pertinent date was the February 17, 2016 date of arrest on the federal charges and found the pertinent date in this case was the September 28, 2016 arrest on the state indictment filed on September 14, 2016. The court opined the nexus with the federal case was not dispositive, observing how the federal indictment arose out of a heroin distribution conspiracy but the state indictment arose out of the discovery of meth (facts different from the earlier federal indictment).
{¶11} On July 2, 2018, this court returned the case to the active docket, amended the notice of appeal to include the trial court's June 13, 2018 judgment entry, and noted Appellant's ability to file a supplemental brief. Appellant replied by opining rebriefing was unnecessary, and the state thereafter filed its brief.
ASSIGNMENTS OF ERROR: SPEEDY TRIAL
{¶12} Appellant's brief sets forth two assignments of error:
{¶13} "Upon motion made at or prior to the commencement of trial , a person charged with an offense shall be discharged if he is not brought to trial within the time required by sections 2945.71 and 2945.72 of the Revised Code." R.C. 2945.73(B)(2) (emphasis added). Appellant did not file a motion prior to pleading guilty. Even where a motion is filed, a defendant who pleads guilty waives the right to challenge his conviction on statutory speedy trial grounds. State v. Kelley , 57 Ohio St.3d 127, 130, 566 N.E.2d 658 (1991), citing Montpelier v. Greeno , 25 Ohio St.3d 170, 495 N.E.2d 581 (1986) and Partsch v. Haskins , 175 Ohio St. 139, 141, 191 N.E.2d 922 (1963). While speedy trial Montpelier , 25 Ohio St.3d at 171-172, 495 N.E.2d 581 ().
{¶14} Notwithstanding this waiver by guilty plea, a defendant can raise issues on appeal that "are shown to have precluded the defendant from voluntarily entering into his or her plea pursuant to the dictates of Crim.R. 11 * * *." Kelle...
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...was arrested on June 23, 2017. The day of arrest is not utilized in the count of days for speedy trial purposes. State v. Devine , 2019-Ohio-778, 132 N.E.3d 161, ¶ 20 (7th Dist.), citing State v. Adams , 144 Ohio St.3d 429, 2015-Ohio-3954, 45 N.E.3d 127, fn. 7. A person charged with a felon......