IN THE SUPREME COURT OF OHIO

STATE OF OHIO CASE NO.

Plaintiff-Appellee, C.A. No. 08C^00^

vs.

NATHAN CURTIS

T.C. No. 06CR0628

Defendant-Appellant.

^r

ON APPEAL FROM THE COURT OF APPEALS

FOR THE SECOND JUDICIAL APPELLATE DISTRICT OF OHIO

GREENE COUNTY, OHIO

APPELLANT'S MEMORANDUM IN SUPPORTOF SUPREME COURT JURISDICTION

JON PAUL RION of ELIZABETH ELLISRION, RION & RION, L.P.A., INC. Prosecuting AttorneyRegistration No. 0067020 Registration No. 0074332P.O. Box 10126 61 GreeneStreet130 W. Second St., Suite 2150 Xenia, OH 45385Dayton, Ohio 45402(937) 223-9133 (937) 562-5250

Attorney for Defendant-Appellant Attorney for Plaintiff-Appellee

CI:ERKOF(GpIR1PI SUP-RtEME 0QVRif 8F2NpNm j

TABLE OF CONTENTS

CITES PAGE(S)

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

WHY THIS COURT SHOULD GRANT LEAVE TO APPEAL . . . . . . . . . . . . I . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

PROPOSITION OF LAW ..................................................... 7

WHEN A DEFENDANT MOVES TO WITHDRAW HIS OR HER PLEAAFTER SENTENCE HAS BEEN IMPOSED, A TRIAL COURT ABUSESITS DISCRETION IN DENYING THAT REQUEST, WHEN THERECORD SHOWS THAT COUNSEL WAS NOT HIGHLY COMPETENT,AND WHEN THE RECORD ALSO REVEALS THAT THE TRIALCOURT DID NOT GIVE FULL AND FAIR CONSIDERATION TO THE

REQUEST

Authorities cited (in the order in which they appear in the brief):

State v. Smith ....... ..........................................................8(1977) 49 Ohio St.2d 261

State v. Xie ....... ........................................................... 8(1992) 62 Ohio St.3d 521

State v. Peterseim ....................................................... 8(1980) 68 Ohio App.2d 211

State v. Barnett ............................................................:..8

(1991) 73 Ohio App.3d 244

State v. Gondor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8(2006) 112 Ohio St.3d 377

Brady v. United States . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8(1970) 397 U.S. 742, 748

Johnson v. Zerbst ............................................................. 9

(1938) 304 U.S. 458, 464

State v. Bowen . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9(1977) 52 Ohio St.2d 27

Skilton v. Perry Local Sch. Dist. Bd. Of Educ . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . 10(2004) 102 Ohio St.3d 173

Trutried Service Co. v. Gene Hager, et. al . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10(1997) 118 Ohio App.3d 78

Glickman v. Coakley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . 10(1984) 22 Ohio App.3d 49

Mth Real Estate, LLC v. Hotel Innovations, Inc . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .(Sep. 28, 2007) Montgomery App. No. 21729, 2007-Ohio-5183

10, 11

Kimmelman v. Morrison . . . . . . . . . . . . . . . . . . . . . . . . : . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12(1986) 477 U.S. 365

Murray v. Carrier ............................................................ 12(1986) 477 U.S. 478

State v. Bradley ............................................................. 12(1989) 42 Ohio St. 3d 136

State v. Martin .........................:.................................... 12(1987) 37 Ohio App.3d 213

Strickland v. Washington . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . : . 13(1984) 466 U.S. 668

State v. Yates . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13(2006) 166 Ohio App.3d 19

State v. McQuerter . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13(May 9, 1997) Montgomery App. No. 15902, 1997 Ohio App Lexis 2618

CONCLUSION ......... ............. . ....................................15

CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

11

WHY LEAVE TO APPEAL SHOULD BE GRANTED

It commonly occurs that a defendant who, having once entered a guilty or no contest plea,

then reconsiders that decision and moves the trial court to allow a withdrawal of that plea. This

Court has stated that a trial court's decision denying that request should be reviewed under an

abuse of discretion standard. In this case, the trial court denied the plea withdrawal request after

first conducting a hearing. On a general level, the issue presented by this appeal is twofold: 1) did

the trial court err in its implicit finding that trial counsel was effective, and 2) did the trial court

give fair and full consideration to the plea withdrawal request?

It is well known that the majority of criminal cases do not go to trial, but instead are

resolved tlirougb guilty or no contest pleas. It is also true that many defendants later seek to

withdraw those pleas. In 1980, an appellate court set out a four-part test for determining when a

trial court commits an abuse of discretion in denying a plea withdrawal request. State v.

Peterseim (1980) 68 Ohio App.2d 211, 428 N.E.2d 863. While that test has routinely been

applied by the intermediate appellate courts of this state (see, State v. Rosemark (1996) 116 Ohio

App.3d 306, 688 N.E.2d 22, and the appellate opinion in this case), Appellant has found no case

in which this Court has either embraced, applied, or refuted that test. By accepting jurisdiction in

this case, this Court could first of all either approve or disapprove of the Peterseim four part test.

(Appellant believes that the Peterseim test is actually flawed. For one thing, it is probably

incorrect to call it a "test," when in reality it should be denominated a series of four factors that a

court should contemplate when making its decision. In addition, one of the four factors - that the

defendant was "represented by highly competent counsel," - is not really a valid criteria since the

1

decision about whether an attorney is ineffective should be based on his or her acts with respect

to the particular hearing and not about his or her reputation or standing in the community.) And if

this Court chose to adopt that test, it could also provide needed guidance to the lower courts

about how to apply this often-used analysis.

This case presents another issue of statewide concern and constitutional dimension. As

will be discussed in more detail below, Appellant entered a guilty plea with the understanding

that he would receive a certain sentence if he fulfilled certain agreements with the local Drug

Task Force. The evidence showed that Appellant did provide information and spend time

working with the Task Force, that Appellant was subsequently jailed for a bond violation [he

failed a drug test] arising out of his work with the Task Force, and the defense evidence showed

that Appellant could not comply with the terms of the plea agreement because of that

incarceration. The appellate court faulted Appellant for using drugs and thereby causing his

incarceration, which meant that he could also not comply with the terms of the plea agreement.

(Appellate opinion, p. 10.) Appellant disagrees with that conclusion.

People often violate the terms of their bail, but incarceration is not necessarily the only

outcome of such an event. Appellant believes that the nature of the plea agreement in this case

places far too much discretion in the hands of the Drug Task Force. Here, Appellant agreed to

make three "buys" for the task force. His testimony showed that he was unable to do that because

of his incarceration, but that he did expend efforts in attempting substantial compliance with the

terms of his contract. Appellant asserts that it is fundamentally unfair to allow the task force,

without any oversight, to determine if a particular defendant complies with the terms of a plea

bargain. Further, Appellant was placed in a situation where if he did not continue smoking

2

marijuana with these people, they would have known or feared that he was working with law

enforcement. By granting jurisdiction in this case, this Court can also explore this common

problem.

STATEMENT OF THE CASE

An indichnent filed on October 20, 2006 charged Appellant as follows: count one -

felonious assault (R.C. 2903.11 (A)(2)); count 2- kidnapping (R.C. 2905.01 (A)(3)); count 3 -

aggravated assault (R.C. 2903.12(A)(1)); count 4- abduction (R.C. 2905.02(A)(2)). All of the

charges also carried a firearm specification. On July 9, 2007, and pursuant to a negotiated plea,

Appellant entered guilty pleas to one count of felonious assault and one count of attempted

kidnapping.

The trial court imposed sentence on September 5, 2007. At that time, the court sentenced

Appellant to two consecutive terms of eight years each, for a total of 16 years. On October 15,

2007, Appellant filed a motion to vacate the plea and/or a petition for post-conviction relief. That

motion was heard on January 2 and January 18, 2008. On March 3, 2008 the trial court denied

the motion. From that decision and judgment, Appellant appealed to the Court of Appeals for

Greene County. On October 31, 2008, the appellate court issued its opinion affirming the

judgment.

This Memorandum and Notice of Appeal follow.

STATEMENT OF FACTS

When Appellant entered his guilty pleas, the trial court advised him that he could serve as

much as 16 years in prison as a result of those pleas. (TR 22.) However, there was another

understanding that underpinned the plea. During the colloquy the defense attorney mentioned this

3

other agreement. That agreement called for Appellant to cooperate with the Drug Task Force. If

Appellant fulfilled that "obligation," he would receive a four-year prison sentence, with a further

recommendation for judicial release after one year. (TR 42.) This further agreement was "not in

writing for obvious reasons." (TR 42.)

Appellant testified. He said that he trusted his trial counsel, and that in the course of his

representation they became friends. (TR 10.) At the start of the attomey's representation he

promised Appellant that he could secure a plea deal where Appellant would serve only two years

in prison. (TR 9, 12.) At about the time they were to enter a plea, the attorney told Appellant that

the two year plea deal had become six years. Because of that change, the trial attomey postponed

the plea. (TR 12, 33-35.) After that, the attorney negotiated another agreement, where, so long as

Appellant cooperated with the Drug Task Force, Appellant would receive a four-year sentence

and, assuming that he remained out of trouble while in prison, would be judicially released after

serving oneyear. (TR 12713.)

Appellant also testified that his understanding of the contract with the Drug Task Force

was that he did not have to do anything that would endanger his family; he did not have to

provide information about family or friends; he would have to make no controlled buys; and the

Task Force would set him up in an apartment, which they did not do. (TR 47.) Appellant said

that he did in fact cooperate with the Drug Task Force. Even before entering the plea he met with

them and provided some information in a two-hour meeting. (TR 54.) In that meeting or at other

times, Appellant told the Task Force who supplied him with marijuana. They recorded

conversations between him and a drug supplier named Gerster. He provided information about

someone named Reno (or someone from Reno), and other persons named Chad, Giuliani, Tyrone

4

Gunn, Reese and Hank. However, the Task Force officers seemed only to care about the

information on Giuliani. (TR 56-58, 65.) On another occasion, Appellant tried to set up a deal

with Derrick Beverly for the Task Force. (TR 64.) In August Appellant rode in a car with Task

Force members and pointed out Giuliani's house. (TR 58.) One time Appellant.called the Task

Force to report a pending drug deal at Giuliani's; however, the Task Force never acted on that

tip. (TR 60.)

With respect to the tip on Mr. Gerster, Appellant gave Gerster his car in exchange for a

potential hundred pounds of marijuana. Appellant complained because the Task Force made no

effort to monitor that deal. (TR 60-63.) Appellant also said that he phoned the Task Force every

day, until he was jailed as a result of the revoked bond. (TR 70.) Shortly after the Gerster "non-

deal," Appellant's bail was revoked aiid he was jailed due to having tested positive for marijuana

in his urine. (TR 62-63, 66.)

The trial attorney also testified. He denied ever promising that he could secure a two-year

"deal" for Appellant. At most, they discussed this idea and the attorney seemed to think that this

was something he could possibly secure. (TR 77-78.) The attomey also confirmed that when they

arrived at court to enter the plea, he learned that the offer was now six years. The lawyer

continued the plea proceedings because Appellant was unhappy with that possibility. (TR 78.)

The final offer, and the one that was agreed upon, was a four-year prison sentence with

judicial release after one year. This deal presupposed that Appellant would cooperate with the

Drug Task Force. (TR 81.) The attorney said that he went over the contract with Appellant prior

to the plea. (TR 81.) When it came time for the actual sentencing, the attomey told Appellant's

family that he guessed that Appellant's sentence would be between 4 and 6 years. (TR 94-95.)

The attorney testified further that he was unaware of the details of how Appellant and the

Task Force were talking to each other. However, he did become involved during the Gerster deal

when Appellant gave Gerster his car. (TR 100.) The attorney also made calls to the Task Force

after Appellant's bond was revoked. He sought help in getting Appellant out of jail so that he

could continue to cooperate. (TR 101, 114.) It was only at the sentencing that the attorney learned

that the Task Force believed that Appellant had not complied with the terms of the contract. (TR

105.) He believed that the bond violation and subsequent jailing "substantially impaired"

Appellant's ability to fulfill the agreement. (TR 110.)

Bruce May, a representative from the Task Force, also testified. He said that Appellant

had not complied at all with the contract. Part of the agreement called for Appellant to make at

least three drug buys, each of which would be at least three times the bulk amount. Moreover, the

terms of the agreement stated that these buys would result in felony charges being lodged.

Appellant made no buys. (TR 118-119.) (May did admit that Appellant supplied the names of at

least three individuals, but he stated further that no felony convictions resulted.) (TR 125.)

Another part of the contract called for Appellant to make daily calls to the Task Force. May

testified that Appellant made these calls only about half of the time. (TR 119.)

As for deal where Appellant gave his car to the dealer, May testified that the government

agents were unable to contact Appellant to set up the negotiation. (TR 123.) May also said that

Jelani Tucker (Giuliani?) had been arrested before the Task Force even spoke with Appellant.

(TR 126.)

May did admit that the Task Force debriefed Appellant at around the time of the plea, and

that at a later date he rode in a car with their agents for a few hours, showing drug locations. (TR

6

127.) As for the three individuals Appellant was supposed to provide information on, these were

individuals that Appellant had specified. Later, Appellant wanted to provide information on other

people. (TR 139.)

Tiffany Caldwell, the mother of Appellant's son, also testified. She said that she heard

Appellant provide his attorney with the names of Tyrone Guinn and Derrick Beverly. The

attorney told Appellant that this information would mean that the four-year sentence with release

after one year was secure. (TR 144-146.) This witness also provided newspaper articles showing

that both Guinn and Derrick had been arrested. (TR 149.)

Appellant testified again after Bruce May. Appellant contradicted May's testimony in

several respects. At the initial meeting, May told Appellant that it would be about two weeks

before the Task Force could meet with him again. (Thus, the next meeting, according to

Appellant, would not be until around July 26. He was arrested on the bond violation about a

month later, on August 28 or August 29.) (TR 161.) Appellant also stated that notwithstanding

the contract specification that he had to make three buys, May told him otherwise. May said that

as long as Appellant provided information that resulted in three felony arrests, that would be

good enough. (TR 171.) Finally, Appellant stated that Derrick Beverly is facing a first-degree

felony trafficking charge. (TR 162.)

PROPOSITION OF LAW

WHEN A DEFENDANT MOVES TO WITHDRAW HIS OR HER PLEA AFTERSENTENCE HAS BEEN IMPOSED, A TRIAL COURT ABUSES ITSDISCRETION IN DENYING THAT REQUEST, WHEN THE RECORD SHOWSTHAT COUNSEL WAS NOT HIGHLY COMPETENT, AND WHEN THERECORD ALSO REVEALS THAT THE TRIAL COURT DID NOT GIVE FULLAND FAIR CONSIDERATION TO THE REQUEST.

7

The decision to grant or deny a plea withdrawal request lies within the sound discretion of

the trial court. State v. Smith (1977) 49 Ohio St.2d 261, 361 N.E.2d 1324. An abuse of discretion

occurs when the trial court's decision is "unreasonable, arbitrary or unconscionable." State v. Xie

(1992) 62 Ohio St.3d 521, 527, 584 N.E.2d 715. Further, an abuse of discretion occurs when the

record reveals that the trial court failed to give full and fair consideration to the plea withdrawal

request. State v. Peterseim (1980) 68 Ohio App.2d 211, 428 N.E.2d 863, third syllabus. When a

defendant who has already been sentenced seeks to withdraw his or her guilty plea, the defendant

must establish manifest injustice. State v. Barnett (1991) 73 Ohio App.3d 244, 596 N.E.2d 1101;

Crim. R. 32.1. The standard of review for a postconviction proceeding that alleges ineffective

assistance of counsel is the same - whether the trial court committed an abuse of discretion in

denying the petition. State v. Gondor (2006) 112 Ohio St.3d 377, 2006-Ohio-6676, 860 N.E.2d

77.

A reviewing court will consider four factors when determining whether there has been an

abuse of discretion. No abuse of discretion occurs when: 1) the accused is represented by highly

competent counsel, 2) he or she is afforded a full and fair hearing before entering the plea, 3)

after the motion to withdraw is filed, the accused is given a complete and impartial hearing on

the motion, and 4) the record reveals that the court gave full and fair consideration to the plea

withdrawal request. State v. Peterseim, supra, second syllabus.

If a defendant establishes that he or she entered a plea involuntarily, that will be sufficient

to establish manifest injustice. "Waivers of constitutional rights ... must be knowing, intelligent

acts done with sufficient awareness of the relevant circumstances and likely consequences."

Brady v. United States (1970) 397 U.S. 742, 748, 90 S. Ct. 1463, 25 L. Ed.2d 747. Therefore,

8

"courts indulge every reasonable presumption against the waiver of fundamental constitutional

rights." Johnson v. Zerbst (1938) 304 U.S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461. A guilty

plea is entered voluntarily only if the defendant fully understatids the consequences of it. State v.

Bowen (1977) 52 Ohio St.2d 27, 28, 368 N.E.2d 843.

Appellant maintains that the trial court in this case committed an abuse of discretion

when it denied his request to vacate the guilty plea. One of the Peterseim factors implicated here

is whether the trial court gave full and fair consideration to the plea withdrawal request.

Appellant believes that here the trial court did not do that.

The record shows that Appellant's attorney negotiated a "deal" whereby Appellant would

be sentenced to four years in prison and released after one, so long as he "cooperated" with the

Drug Task Force. That "cooperation" was placed in writing. Appellant agreed in a written

contract that he would negotiate at least three drug buys. Both the prosecution and deferise

evidence showed that Appellant did not meet the terms of that contract. However, Appellant

provided evidence that at least two people he had given the Task Force information on had since

been jailed.

Appellant entered the guilty pleas on July 9, 2007. However, he was arrested and jailed in

late August, less than two months later, because his bond had been revoked. His urine had tested

positive for marijuana. (TR 62-66, 161.) Appellant's attorney contacted the Task Force about this

situation, urging them to help obtain Appellant's release so that he could continue to cooperate

and thereby fulfill the terms of his contract. (TR 101, 114.) But that request fell on deaf ears. The

attorney believed that Appellant's jailing "substantially impaired" his ability to comply with the

agreement terms. (TR 110.)

9

Thus, Appellant submits that the trial court in this case erred when it impliedly held he

had violated the terms of a contract that Appellant could not perform due to the fact that he was

in jail, and that it erred in not finding that he had substantially complied with its terms to warrant

allowing him the benefit of his previous bargain.

"Contracts are susceptible of the defense of impossibility." Skilton v. Perry Local Sch.

Dist. Bd. OfEduc. (2004) 102 Ohio St.3d 173, 175, 2004-Ohio-2239, 807 N.E.2d 919.

"Impossibility of perfonnance occurs where after the contract is entered into, an unforseen [sic. ]

event arises rendering impossible the performance of one of the contracting parties." Trutried

Service Co. v. Gene Hager, et. al. (1997) 118 Ohio App.3d 78, 88, 691 N.E.2d 1112. "Absent

contrary contractual terms, either party can avoid an agreement when governmental activity

renders its perfonnance impossible or illegal." Glickman v. Coakley (1984) 22 Ohio App.3d 49,

52, 488 N.E.2d 906. "To assert the doctrine of impossibility of performance, a party must show

that an unforeseeable event occurred, that the non-occurrence of the event was a basic

assumption underlying the agreement, and that the event rendered performance impracticable."

Mth Real Estate, LLC v. Hotel Innovations, Inc. (Sep. 28, 2007) Montgomery App. No. 21729,

2007-Ohio-5183, ¶ 20.

Here, Appellant submits that this record shows that it was impossible for him to comply

with the terms of his contract with the Drug Task Force because he was incarcerated and unable

to fulfill its terms. Even the representative from the Task Force acknowledged that Appellant

made efforts to comply. He participated in a "debriefing" initially and provided them with names

of three individuals. And later, Appellant sought to provide names of further individuals. (TR

125, 139.) Appellant also rode around with the Task Force members one day and showed them

10

locations where drug activity occurred. (TR 127.) Appellant provided the names of several

people he had provided information on, and he also presented two newspaper articles showing

that two of those individuals had been arrested. (TR 149.) So even though Appellant may not

have satisfied the exact terms of the agreement, he clearly expended sincere effort to provide

information.

But it is also a fact that Appellant could provide no information once he was incarcerated.

Thus, he submits that the trial court failed to factor in that it was "impossible" for him to fulfill

the contract's terms. The jailing was an "unforeseeable event." The assumption underlying the

contract was that Appellant would not be jailed and thus free to participate in providing

information on drug transactions. And clearly, the incarceration made it "impracticable" for him

to complete the contract's terms. Mth Real Estate, LLC v. Hotel Innovations, Inc., supra.

Appellant believes the trial court simply failed to consider that it was impossible for him

to comply with the contract's terms. He also maintains that his trial attorney was ineffective for

failing to raise this impossibility defense to the court. Again, at the hearing on the motion to

withdraw the plea, the attorney stated that he thought that the fact that Appellant was jailed was a

reason why he was unable to comply with the terms of the agreement. (TR 110.) Moreover, at the

time Appellant was jailed, the attorney called the Task Force and pointed out to them that

appellant could not fulfill the terms of the agreement so long as he was in jail. (TR 101, 114.)

But the attorney never raised this "impossibility" defense either by way of a motion or by

11

pointing it out to the court at the sentencing hearing.' Appellant submits that his trial lawyer was

ineffective for failing to do so.

"The essence of an ineffective assistance claim is that counsel's unprofessional errors so

upset the adversarial balance between defense and prosecution that the trial was rendered unfair

and the verdict rendered suspect." Kimmelrnan v. Morrison (1986) 477 U.S. 365, 374, 106 S. Ct.

2574, 91 L. Ed.2d 305. Even counsel's isolated error, when sufficiently egregious and

prejudicial, will result in ineffective assistance to his or her client. Murray v. Carrier (1986) 477

U.S. 478, 496, 106 S. Ct. 2639, 91 L. Ed.2d 397.

In evaluating an ineffective assistance claim, a court must apply a two-part test. First, the

defendant must show that his or her attorney was in fact ineffective; i.e., that the attorney

substantially violatedan essential duty to the client. State v. Bradley (1989) 42 Ohio St. 3d 136,

141, 538 N.E:2d 373. Second, the defendant must then show prejudice as a result of that

violation of duty. Id. When both parts of the test are met, reversal is required. State v. Martin

(1987) 37 Ohio App.3d 213, 525 N.E.2d 521.

The Ohio "two part" test is essentially the same as the federal test. State v. Bradley, supra

42 Ohio St. 3d at p. 142.

1 In its opinion, the appellate court found that "impossibility of performance" component of thisargument was meritless because, first of all, trial counsel did not raise it in the trial court and, secondly,this defense has no application in a motion to withdraw a plea or a motion for postconviction relief(Appellate opinion, p. 10.) Appellant disagrees. That trial counsel did not raise this "defense" below isthe substance of the ineffective assistance of counsel claim. Second, while Appellant may have spoken interms of impossibility of performance with respect to contract law, the overarching idea is that it isfundamentally unfair, and thus a violation of the due process clause of the State and federal constitutions,to require a defendant to meet the terms of an agreement when it is impossible for the defendant tocomply with those terms.

12

"First, the defendant mast show that counsel's performance was deficient. This requiresshowing that counsel made errors so serious that counsel was not functioning as `counsel'guaranteed the defendant by the Sixth Amendment. Second, the defendant must show thedeficient performance prejudiced the defense. This requires showing that counsel's errorswere so serious as to deprive defendant of a fair trial, a trial whose result is unreliable."Strickland v. Washington (1984) 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed.2d 674.

In order to show prejudice, the second prong of the test, the defendant must show a

reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding

would have been different. A reasonable probability is a probability sufficient to undermine

confidence in the outcome. Id., 466 U.S. at p. 694.

As shown previously, it was "impossible" for Appellant to comply with the terms of his

contract with the Drug Task Force. And his attorney seemed to have recognized this. However,

the trial attorney seemed not to recognize that there was anything to be done about it. He never

cited the court to the law of impossibility vis a vis contracts. Nor did he raise the issue as a due

process violation.

The failure to file a meritorious motion to suppress constitutes ineffective assistance of

counsel. State v. Yates (2006) 166 Ohio App.3d 19, 2006-Ohio-1424, 848 N.E.2d 917. And the

failure to present a meritorious defense at trial can also constitute ineffective assistance. State v.

McQuerter (May 9, 1997) Montgomery App. No. 15902, 1997 Ohio App Lexis 2618. Here,

Appellant had a meritorious defense to the allegation that he failed to comply with the terms of

his plea agreement. Because of his incarceration, it was impossible for him to comply with those

terms. But counsel failed to let the trial court know about this defense.

Accordingly, the trial court erred when it denied the petition below. The trial court should

have recognized the impossibility defense, and defense counsel was ineffective for failing to

13

point it out. Appellant therefore contends that he has shown "manifest injustice," and that the

trial court should have allowed him to vacate his guilty plea. In accepting jurisdiction over this

case, this Court can examine the manner in which defendants engage in such contracts with law

enforcement agencies, the allowable terms of these contracts, when certain defenses may come

into play, and advise attorneys and law enforcement on how to even out the bargaining power of

each party to the contract as well as the power to determine compliance.

Appellant further believes that the lower court abused its discretion in not fully delving

into the issue of the personal relationship that had developed between Appellaint and his attorney

as a basis for finding that Appellant was not represented by the "highly competent counsel"

contemplated by Peterseim. As written in Appellant's jurisdictional statement, some courts have

tended to look at an attorney's reputation in the community rather than closely examining his

performance in a particular case in determining whether he was highly competent for Peterseim

purposes. Appellant herein argues that the friendship that had evolved between Appellant and

his attorney over the course of the representation reduced the effectiveness of the representation.

It clouded Appellant's judgment by making him more willing to believe whatever his counsel

told him, and to believe in his counsel's ability to secure minimal time for him in a plea

agreement. Appellant lost the usual detached objectivity with which the client judges his

counsel's performance and makes decision about how to proceed. Because his counsel did not

ensure that this relationship did not evolve as it had, it rendered his representation, as it related to

this case, less than effective. This case gives this Court the ability to examine the attorney-client

relationship and give guidance to both attomeys and their clients on the acceptable bounds of that.

relationship.

14

CONCLUSION

For the reasons stated in the foregoing memorandum, Appellant asks this Court to accept

jurisdiction in this case.

G ^ \

JO L RIONRION, ON & RION, L.P.A., INC.

CERTIFICATE OF SERVICE

I, the undersigned, do hereby certify that a copy of the foregoing was forwarded to theoffice of Elizabeth Ellis, 61 Greene Street, Xenia, OH 45385, on the same day of filing.

JON Ij)LUL RION ofRION, RION & RION, L.P.A., INC.

15

IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO

STATE OF OHIO

Plaintiff-Appellee : C.A. CASE NO. 2008 CA 22

V. : T.C. NO. 2006 CR 0628

NATHAN CURTIS, JR. FINAL ENTRY

Defendant-Appellant

Pursuant to the opinion of this court rendered on the 31st day of

October , 2008, the judgment of the trial court is affirmed.

Costs to be paid as stated in App.R. 24.

aWILLIAM H. WOLFF, JR., Presi

THOMAS J

E. D0NOVAN, Judge

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

2

Copies mailed to:

Elizabeth A. EllisAssistant Prosecutor61 Greene StreetXenia, Ohio 45385

Jon Paul Rion130 W. Second StreetP,O.Box10126Dayton, Ohio 45402

Hon. Stephen A. WolaverCommon Pleas Court45 N. Detroit StreetXenia, Ohio 45385

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO

STATE OF OHIO

Plaintiff-Appellee : C.A. CASE NO. 2008 CA 22

V.

NATHAN CURTIS, JR..

Defendant-Appellarit

T.C. NO. 2006 CR 0628

(Criminal Appeal from.Common Pleas Court)

OPINION

Rendered on the 31' day of October , 2008.

ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Assistant Prosecutor, 61 Greene Street,Xenia, Ohio 45385

Attorney for Plaintiff-Appellee

JON PAUL RION, Atty. Reg. No. 0067020, 130 W. Second Street, P. O. Box 10126,Dayton, Ohio 45402

Attorney for Defendant-Appellant

DONOVAN, J.

This matter is before the Court on the Notice.ofAppeal of Nathan Curtis, filed March

26, 2008. On August 4, 2006, Curtis shot Ronald Wakefield once in each leg after taking

him to a remote area, because Wakefield allegedly stole 25 pounds of marijuana from

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

Curtis. On July 9, 2007, Curtis pled guilty to one count of felonious assault, in violation of

R.C. 2903.11(A)(2), a felony of the second degree, and to one amended count of

attempted kidnaping, in violation of R.C. 2923.02 and R.C. 2905.01(A)(3), also a felony of

the second degree. The State dismissed gun specifications on the above offenses, and

it also dismissed one count of aggravated assault, with a gun specification, and one count

of abduction, with a gun specification, in exchange for Curtis' pleas.

Curtis and the State further agreed that Curtis would cooperatewith theA.C.E. Drug

Task Force. According to counsel for Curtis at Curtis' plea hearing, "The position of the

State is that if Mr. Curtis fulfills his obligation, that the recommendation would be for a four-

year sentence with a further recommendation of judicial release after 12 months. """and

obviously his behavior with the Drug Task Force and during the 12-month period of time

he's in prison will be determinative of the Court's position. But, that is not in writing for

obvious reasons." The State indicated its agreement with Curtis' summary.

The court then advised Curtis as follows: "It is important for you to understand the

maximum penalties that could be imposed in regard to the charges to which you are

pleading. I am going to advise you that the maximum prison sentence that the court could

impose is 16 years and the maximum fine is $30,000.00 or both. Do you understand that?"

Curtis indicated his understanding.

The Petition to Enter Plea Form that Curtis signed and initialed provides in

paragraph 10, "My lawyer has informed me that the maximum punishment which the law

provides for the offense(s) charged in the indictment/ information is 16 years of

imprisonment * ."

The trial court further instructed Curtis as follows: "I want you to fill out your

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3

questionnaire for the Probation Department, see that it gets into the hands of the Probation

Department as promptly as you can, see to it that an interview is set up with the Probation

Department and present yourself with a positive attitude during that interview, being clean,

sober, law-abiding between now and the time that occurs."

The trial court sentenced Curtis on September 5, 2007. On that date, Curtis was

already in jail, having tested positive for marijuana in the course of a urinalysis conducted

by the Probation Department. Before imposing sentence, the court indicated that Curtis'

lawyer did an outstanding job on Curtis' behalf, noting, "there's limitations to what an

attorney can do, and what I'm about to address is what you've done and what you haven't

done." The court then noted that Curtis failed to timely appear at the Probation

Department for his interview until his attorney contacted him and urged him to go. Curtis

finally appeared on his "own time" without his questionnaire. The court noted, "When the

interview took place, it was the clear impression of the Probation Officer who conducted

this interview that you showed no remorse over the incident. Your position was that the

victim in this case, Mr. Wakefield, stole a substantial amount of marijuana from you, being

25 pounds. You knew where the victim was. You went to argue with him and you took him

to the country and you shot him." The trial court noted that Curtis indicated to the

Probation Officer that he was currently selling marijuana, and that Curtis tested positive

for marijuana and was currently in jail for that offense. The court noted that Curtis was 26

years old and his record contained 13 probation violations and a commitment to

Department of Youth Services. The trial court then sentenced Curtis to.eight years for

felonious assault and eight years for attempted kidnaping, to be served consecutively, for

a total term of 16 years. Curtis filed a motion to stay judgment, which the court overruled

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

4

on October 8, 2007, noting, "Defendant is an extremely dangerous and unremorseful

violent drug dealer."

On October 15, 2007, Curtis filed a"Motion to Vacate Plea and for Postconviction

Relief," arguing ineffective assistance of counsel. According to Curtis' Motion, "had

counsel correctly explained the relevant law and the possible sentences, he would not

have chosen the guilty plea with a potential 16-year term of imprisonment." Attached to

the Motion is Curtis' Affidavit. The trial court held a hearing on the Motion on January 2 and

18, 2008, and overruled it. At the hearing, Curtis, his attorney, Bruce May, Director of the

Greene County Agencies for Combined Enforcement, and Tiffany Caldwell, with whom

Curtis has a son, testified.

At the hearing, Curtis testified as follows:

"The whole time I was out, even when I had my plea bargain, [counsel] told me I

was going to be doing two years, over to April. Then I was supposed to go to trial July the

12th. Then he comes and tells me that they're trying to give me six years. Then he comes

with another deal, saying if I go ahead and cooperate with the State that I'll have a four-

year plea bargain with a deal of one year, that I'll do one year and I will be released after

one year and I will be on probation.

W W W

"He told me the only way I wouldn't get out in one year was if I was getting in any

type of trouble inside the penitentiary. Even when we came to Court and the Prosecution

reqiaested a 16-year sentence he told me - - he said that's the Prosecution's job to say that

because the victim's family was sitting here in the Courtroom.

"So the whole time I never had no - - there was no type of legal representation that

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

5

told me it was even possible for me to get 16 years. The only thing I had to do was not

worry about anything, no PSI packet. I wasn't going to be drug tested by the Probation

Department downstairs. My agreement solely consisted of my cooperation with the Drug

Task Force, in which I did do everything I was supposed to do."

Regarding his obligations to the Task Force, Curtis testified, "When I made my plea

with the Task Force, they told me, one, I didn't have to do anything that would endanger

my family. Two, I didn't have to talk about none of my friends nor my family in anything

that I was going to do to cooperate with them. And, three, they told me I didn't have to

make no controlled buys. They said that I knew - they felt that I knew plenty of information,

that the information that I gave them would be substantial enough. And, four, that they

were supposed to set me up with an apartment in Bayberry Cove, which they never did,

for me to lure people there to buy drugs or convey any type of drug activity."

Bruce May testified that Curtis agreed "to make multiple purchases of illicit.drugs

from at least three separate individuals supplying illicit drugs to the greater Greene County

area. All purchases of drugs must be of weights equaling at least three times bulk for that

specific drug. These purchases of illicit drugs must result in felony charges that will be

approved by the Greene County Prosecutor's Office." May testified that Curtis did not

complete any buys but that he "countered the efforts to have those buys come to fruition

from potential Defendants." He also.stated, Curtis "was asked to maintain daily contact

with the Controlling Detectives and over 50 percent of the times he was not available or

would not call them during the contract."

Counsel for Curtis testified regarding his lengthy plea negotiations on Curtis' behalf.

Counsel stated that he went over the plea form and the potential maximum sentence with

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

6

Curtis, and that, following the State's final offer, he told Curtis he would receive four years

in prison, "[i]f he.followed through with what he was supposed to do" with the Task Force.

Counsel described Curtis' sentence as follows: "it wasn't a stipulated four years. It was

four years with no opposition or an agreed judicial release after one year, assuming all the

other normal circumstances, no violations in the institution, so on and so forth." Counsel

stated that the prosecutor indicated to him at sentencing that the State was going to ask

for the maximum sentence, and that he predicted that Curtis would receive a four to six

year sentence. Defense counsel was asked if he informed Curtis that "the State always

asks for the maximum sentence and the Judge is going to give you four," and counsel

responded, "I don't believe that I informed him of what the Judge was going to give him."

When asked if he promised Curtis that his sentence would be within the range of four to

six years, he responded, "No. It was sort of out of my hands at that point." According to

defense counsel, Curtis "knew what the potentials were. Ultimately the potential turned

into a reality." Counsel stated that he was unaware that the State considered the contract

breached until the day of sentencing. According to counsel, "the bond violation

substantially impaired Nathan's.ability to successfully complete what he could do."

The trial court determined that Curtis was not credible and "beyond a reasonable

doubt [found] Defendantwas specifically advised of the maximum sentence he could have

received by entering a plea of guilty to the charges before his plea was accepted, contrary

to the assertion made as the basis of his motion." The court further found Curtis "failed to

overcome the presumption that his counsel's conduct falls within the wide range of

reasonable professional assistance." The court determined that May's testimony was

credible, and, "[u]sing simple contract considerations, the Defendant is not entitled to

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

7

.receive the benefit of the plea bargain for his failure of consideration to fulfill the contract

in any way." The court concluded that Curtis' sentence was "not improper based upon no

fulfillrrient, or even partial fulfillment of the contract."

Curtis asserts one assignment of error as follows:

"THE TRIAL COURT COMMITTED AN ABUSE OF DISCRETION BY DENYING

THE MOTION TO VACATE THE GUILTY PLEA/POSTCONVICTION PETITION."

Curtis argues that his plea was involuntary because he did not understand the

consequences thereof, resulting in a manifest injustice. Further, according to Curtis, the

trial court "erred when it impliedly held he had violated the terms of a contract that

Appellant could not perform due to the fact that he was in jail," and that his attorney "was

ineffective for failing to raise this impossibility defense to the court." Curtis argues that the

trial court did not give full and fair consideration to his request to withdraw his plea.

"Under Crim.R. 32.1, a defendantwho files a post-sentence motion to withdraw [his]

guilty plea bears the burden of establishing a'manifest injustice.' (Internal citation omitted).

*^* A manifest injustice has been defined as 'a clear or openly unjust act' that involves

'extraordinary circumstances.' (Internal citation omitted). We apply an abuse-of-discretion

standard to a trial court's decision on a motion to withdraw a guilty plea."

Xenia v. Jones, Greene App. No. 07-CA-104, 2008-Ohio-4733, ¶ 6. "A trial court does hdt

abuse its discretion in overruling a motion to withdraw: (1) where the accused is

represented by highly competent counsel, (2) where the accused was afforded a full

hearing, pursuant to Crim.R. 11; before he entered his plea, (3) when, after the motion to

withdraw is filed, the accused is given a complete and impartial hearing on the motion, and

(4) where the record reveals that the court gave full and fair consideration to the plea

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

8

withdrawal request." State v. Peterseim (1980), 68 Ohio App.2d 211, 428 N.E.2d 863,

syllabus.

"A change of heart because a defendant has learned what his expected sentence

will be is not sufficient reason to grant a post-sentencing motion to withdraw a guilty plea."

State v. Sylvester, Montgomery App. No. 22289, 2008-Ohio-2901:

"'A post conviction proceeding is not an appeal of a criminal conviction, but rather,

a collateral civil attack on the judgment."' State v. Gondor(2006), 112 Ohio St.3d 377, 860

N.E.2d 77, 2006-Ohio-6679, ¶48. (Internal citation omitted). "In the interest of providing

finality to judgments of conviction, courts construe the post-conviction relief allowed under

R.C. 2953.21(A)(1) narrowly. (Internal citation omitted). Further, when a trial court rules

on a petition for post-conviction relief after a hearing, an appellate courtwill give deference

to the trial court's findings of fact." Id., ¶ 47. °[A] trial court's decision granting or denying

a postconviction petition filed pursuantto R.C. 2953.21 should be upheld absent an abuse

of discretion; a reviewing court should not overrule the trial court's finding on a petition for

postconviction relief that is supported by competent and credible evidence." Id., ¶ 58.

"We reviewthe alleged instances of ineffective assistance of trial counsel underthe

two prong analysis set forth in Strickland v. Washington (1984), 466 U.S.,668, 104 S.Ct.

2052, 80 L.Ed.2d 674, and adopted by the Supreme Court of Ohio in State v. Bradley

(1989), 42 Ohio St.3d 136, 538 N.E.2d M. Pursuant,to those cases, trial counsel is

entitled to, a strong presumption that his or her conduct falls within the wide range of

reasonable assistance. Strickland, 466 U.S. at 688. To reverse a conviction based on

ineffective assistance of counsel, it must be demonstrated that trial counsel's conduct fell

below an objective standard of reasonableness and that his errors were serious enough

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

9

to create a reasonable probability that, but for the errors, the result of the trial would have

been different. Id. Hindsight is not permitted to distort the assessment of what was

reasonable in light of counsel's perspective at the time, and a debatable decision

concerning trial strategy cannot form the basis of a finding of ineffective assistance of

counsel." (Internal citation oi-nitted). State v. Mitchell, Montgomery App. No. 21957, 2008-

Ohio-493.

Having thoroughly reviewed the record, we conclude that Curtis, as noted bythe trial

court, was represented by highly competent counsel, that the trial court complied with

Crim:R. 11 prior to accepting Curtis' plea, that Curtis received a complete hearing on his

motion to withdraw his plea, and that the trial court fully considered his request to withdraw

his plea. We further conclude, as the State asserts, that Curtis sought to change his plea,

after he received the maximum sentence, merely due to a change of heart. The following

exchange occurred at the hearing on Curtis' motion:

"Q. Mr. Curtis, if you had gotten four years and with the recommendation of judicial

release after one year, that final deal that [counsel] offered you or that [counsel] said was

on the table, would you have beeh satisfied with that?

"A. Yes.

"Q. We wouldn't be here today. That's fair to say, isn't it?

"A. Definitely fair to.say."

Giving deference to the trial court's findings of fact, we agree with the trial court that

Curtis was fully informed, by both the court and his attorney, that the court could impose

a maximum sentence of 16 years, and accordingly, Curtis' plea was not involuntary. We

further agree that Curtis breached his contract with the Task Force, and for these reasons,

. THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT

10

his sentence is not improper.

Finally, Curtis' argument that his counsel was ineffective for failing to assert the

affirmative defense of impossibility is wholly without merit. "'Impossibility of performance

is an affirmative defense to a breach of contract claim. Impossibility of performance occurs

where, after the contract is entered into, an unforseen event arises rendering impossible

the performance of one of the contracting parties."' Hiatt v. Giles, Darke App. No. 1662,

2005-Ohio-6536, ¶ 34. (Internal citation omitted). First, Curtis did not make this argument

below, it is waived but for plain error, and we see no plain error. Further, the defense of

impossibility has no application to Curtis' motion to vacate his plea and for postconviction

relief. Also, Curtis failed to comply with the terms of the contract even before he was

arrested; he hampered the detectives' efforts and failed to stay in contact with them. Even

if the defense somehow applied, as the State asserts, Curtis' bond revocation and any

resultant impossibility of performance was entirelyforseeable when Curtis used marijuana,

and Curtis' ability to perform was not subject to an "unforseen event." In other words, had

counsel for Curtis asserted the affirmative defense of impossibility, the outcome of the

hearing on Curtis' motion would not have been otherwise.

There being no manifest injustice and no abuse of discretion, Curtis' sole

assignment of error is overruled. Judgment affirmed.

WOLFF, P.J. and GRADY, J., concur.

Copies mailed to:

Elizabeth A. EllisJon Paul RionHon. Stephen A. Wolaver

THE COURT OF APPEALS OF OHIOSECOND APPELLATE DISTRICT