State v. Musleh
| Decision Date | 12 October 2017 |
| Docket Number | No. 105305,105305 |
| Citation | 2017 Ohio 8166 |
| Parties | STATE OF OHIO PLAINTIFF-APPELLEE v. MOHAMMAD MUSLEH DEFENDANT-APPELLANT |
| Court | Ohio Court of Appeals |
ATTORNEYS FOR APPELLANT
1220 West 6th Street, Suite 203
Cleveland, Ohio 44113
Edward F. Borkowski, Jr.
P.O. Box 609151
Cleveland, Ohio 44109
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant Mohammad Musleh appeals from his conviction after he pled no contest to one count of unlawful possession of a dangerous ordnance in violation of R.C. 2923.17(A). Musleh contends that the trial court did not comply with Crim.R. 11(C)(2)(b) in accepting his no contest plea and abused its discretion in denying his request to withdraw his plea. He also contends that he did not receive effective assistance of counsel based on counsel's recommendation that he enter a plea that allegedly offered no benefit and counsel's abandonment of a motion to suppress evidence. For the reasons that follow, we affirm the trial court's judgment.
{¶2} On June 20, 2016, Musleh was working at a convenience store owned by his mother when two agents of the Ohio Department of Public Safety arrived to conduct a routine inspection. Because the store had licenses to sell alcohol and tobacco, the premises were subject to Ohio Department of Public Safety inspections. During the course of the inspection, the agents found a "sawed-off" shotgun hidden in the wall behind the counter of the premises. Musleh claimed that the gun was not his and that someone had left it behind after he or she had attempted to rob the store.
{¶3} On June 21, 2016, a Cuyahoga County Grand Jury indicted Musleh on one count of unlawful possession of a dangerous ordnance in violation of R.C. 2923.17(A), a fifth-degree felony, with a forfeiture specification.
{¶4} On September 27, 2016, Musleh filed a motion to suppress on the ground that the search of the wall behind the counter was an unconstitutional warrantless search.Musleh argued that the search exceeded the scope of warrantless administrative inspections permitted under Ohio Adm.Code 4301.1-1-79, because the agents did not possess reasonable suspicion that Musleh had violated any liquor statutes. The state opposed the motion, asserting that Musleh lacked standing to challenge the search because he was not the owner of the premises and could not establish that he had any right to an expectation of privacy in the premises. The state also asserted that the search was constitutional.
{¶5} On October 24, 2016, Musleh agreed to plead no contest to one count of unlawful possession of a dangerous ordnance as alleged in the indictment. After the terms of the plea were stated on the record, the trial judge proceeded with the plea colloquy.
{¶6} In response to the trial judge's preliminary questions, Musleh indicated that he was a United States citizen, was 48 years old, had attended some college and was not under the influence of any drugs or alcohol. The trial judge advised Musleh of his constitutional rights and confirmed that he understood the rights he would be waiving by entering a no contest plea. The trial judge identified the offense to which Musleh would be pleading no contest and the potential maximum penalties associated with the charge, i.e., 6 to 12 months in prison, a fine up to $2,500 and forfeiture of the sawed-off shotgun, explained the consequences of violating community control sanctions and postrelease control, if imposed and confirmed that Musleh understood all of this. Musleh indicated that no threats or promises had been made to him to induce him to change his plea andstated that he was satisfied with the services rendered by his trial counsel. Both the defense and the state indicated that they were satisfied that the trial court had complied with Crim.R. 11.
{¶7} After a brief recitation of the facts by the state, the trial court found that Musleh entered his no contest plea "knowingly, voluntarily, and with a full understanding of [his] rights." The trial court accepted Musleh's plea, found Musleh guilty of the offense and referred the matter for preparation of a presentence investigation report. A sentencing hearing was scheduled for the following month.
{¶8} On November 25, 2016 — three days before the scheduled sentencing hearing — Musleh filed a motion to withdraw his plea.1 He asserted that he "mistakenly, under duress" pled to a crime he did not commit and that he should be permitted to withdraw his plea to correct "an extreme and manifest injustice." Specifically, he claimed that, at the time he entered his plea, he was "under extreme duress," his "judgment was impaired * * * due to depression," he was "not thinking clearly" and he was "worried about [how] his family * * * would survive if he was incarcerated." As such, he argued his plea was not made voluntarily. No affidavits or other evidence was submitted with the motion.
{¶9} Immediately prior to the scheduled sentencing hearing, the trial court held a hearing on Musleh's motion to withdraw his plea. After considering arguments from thestate and defense counsel and questioning Musleh regarding his plea, the trial court denied the motion, concluding that Musleh "had not given * * * a legal reason why it should be withdrawn" and had shown nothing more than a "change of heart," which was not a sufficient basis upon which to withdraw his plea. The trial court sentenced Musleh to one year of community control sanctions and 20 hours of community service.
{¶10} Musleh appealed his conviction, raising the following three assignments of error for review:
{¶11} For ease of discussion ,we address Musleh's assignments of error out of order.
{¶12} In his first assignment of error, Musleh contends that his no contest plea was not made knowingly, intelligently and voluntarily and should be vacated because the trial court did not inform Musleh of the effect of his no contest plea prior to accepting his plea. Musleh's argument is meritless.
{¶13} State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996); see also State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 7. To that end, Crim.R. 11 sets forth certain constitutional and procedural requirements with which a trial court must comply prior to accepting a guilty or no contest plea. Under Crim.R. 11(C)(2), the trial court shall not accept a guilty or no contest plea in a felony case without personally addressing the defendant and doing all of the following:
Whether the trial court accepted a plea in compliance with Crim.R. 11(C)(2) is subject to de novo review, based on the totality of the circumstances. State v. Jackson, 8th Dist. Cuyahoga No. 99985, 2014-Ohio-706, ¶ 6; see also State v. Tutt, 2015-Ohio-5145, 54 N.E.3d 619, ¶ 13 (8th Dist.) (), quoting State v. Spock, 8th Dist. Cuyahoga No. 99950, 2014-Ohio-606, ¶ 7.
{¶14} If a trial court fails to "literally comply with Crim.R. 11," a reviewing court "must engage in a multitiered analysis to determine whether the trial judge failed to explain the defendant's constitutional or nonconstitutional rights and, if there was a failure, to determine the significance of the failure and the appropriate remedy." State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462, ¶ 30. The trial court must strictly comply with those provisions of Crim.R. 11(C)(2) that relate to the waiver of constitutional rights. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, at syllabus. As to the nonconstitutional aspects of Crim.R. 11(C)(2), which includes a defendant's right to be informed of and understand the effect of a no contest plea, substantial compliance is required. Veney at ¶ 14; State v. Mason, 8th Dist. Cuyahoga No. 104533, 2017-Ohio-7065, ¶ 36; State v. Petitto, 8th Dist. Cuyahoga...
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