State v. Cole

2025 Ohio 675

• Court: Ohio Court of Appeals
• Decided: February 28, 2025
• Docket: 30194
• Status: Published

Opinion

[Cite as State v. Cole, 2025-Ohio-675.]

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

STATE OF OHIO : : Appellee : C.A. No. 30194 : v. : Trial Court Case No. 2024 CR 00663 : MELQUAN E. COLE : (Criminal Appeal from Common Pleas : Court) Appellant : :

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OPINION

Rendered on February 28, 2025

J. DAVID TURNER, Attorney for Appellant

TRISTAN D. DIEGEL, Attorney for Appellee

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TUCKER, J.

{¶ 1} Melquan E. Cole appeals from his conviction following a guilty plea to one

count of failure to comply with an order or signal of a police officer, a third-degree felony.

{¶ 2} Cole argues that various acts of ineffective assistance of counsel rendered

his guilty plea invalid. For the reasons set forth below, we conclude that he has not

demonstrated any ineffective assistance of counsel adversely affecting the validity of his -2-

plea. Accordingly, the trial court’s judgment will be affirmed.

I. Background

{¶ 3} A grand jury indicted Cole on charges of failure to comply with an order or

signal of a police officer, a third-degree felony, and aggravated drug possession, a fifth-

degree felony. Cole later pled guilty to failure to comply in exchange for dismissal of the

drug charge. During a Crim.R. 11 hearing, the trial court accepted the plea and made a

finding of guilt. It later imposed a 24-month prison sentence. This appeal followed.

II. Analysis

{¶ 4} Cole’s sole assignment of error states:

COLE RECEIVED INEFFECTIVE ASSSITANCE OF COUNSEL WHICH

CAUSED HIS PLEA TO BE LESS THAN KNOWING AND VOLUNTARY.

{¶ 5} Cole alleges ineffective assistance of counsel based on his attorney’s failure

to provide him with discovery, advise him of the elements of third-degree felony failure to

comply, or explain the difference between third-degree and fourth-degree felony failure

to comply. Cole contends his attorney’s failure to do these things constituted deficient

performance that deprived him of his ability to enter a knowing and voluntary guilty plea.

He also argues that prejudice exists because he would not have entered a guilty plea if

his attorney had provided the foregoing information.

{¶ 6} We review alleged instances of ineffective assistance of counsel under the

two-part analysis found in Strickland v. Washington, 466 U.S. 668 (1984), which the Ohio

Supreme Court adopted in State v. Bradley, 42 Ohio St.3d 136 (1989). To prevail on an

ineffective-assistance claim, a defendant must show that trial counsel rendered deficient -3-

performance and that counsel’s deficient performance prejudiced him. Strickland at

paragraph two of the syllabus; Bradley at paragraph two of the syllabus. “A plea of guilty

waives any claim that the accused was prejudiced by ineffective assistance of trial

counsel, except to the extent that the ineffectiveness alleged may have caused the guilty

plea to be less than knowing, intelligent, and voluntary.” State v. Stivender, 2011-Ohio-

247, ¶ 15 (2d. Dist.).

{¶ 7} Upon review, we see no ineffective assistance of counsel affecting the

validity of Cole’s guilty plea. The record does not reflect whether defense counsel shared

any discovery with him, advised him of the elements of the offense to which he pled guilty,

or explained the difference between third-degree and fourth-degree felony failure to

comply. Off-the-record events or conversations will not support an ineffective-assistance

claim on direct appeal. State v. King, 2024-Ohio-4705, ¶ 10 (2d Dist.), citing State v.

McElrath, 2024-Ohio-2475, ¶ 21 (2d Dist.); see also State v. Jordan, 2021-Ohio-2332,

¶ 24 (2d Dist.), citing State v. Qualls, 2015-Ohio-2182, ¶ 15 (2d Dist.) (“[T]he record does

not reveal what discovery defense counsel shared with Jordan or what counsel told him

regarding a guilty plea . . . Because these arguments rely on information outside the

record, they are not cognizable on direct appeal.”).

{¶ 8} Cole suggests that the relatively short time between his arraignment and

guilty plea supports an inference that his attorney failed to do the things about which he

complains. We disagree. Cole was arraigned and given appointed counsel on April 16,

2024. He entered his guilty plea on April 30, 2024. This two-week period was not

insufficient for defense counsel to have met with Cole, shared any available discovery, -4-

and discussed the charges. Cole cites nothing demonstrating otherwise.

{¶ 9} Regarding Cole’s knowledge of the elements of the offense to which he pled

guilty, we note too that he was informed of the elements during his plea hearing. Cole

indicated his understanding and did not ask any questions.

{¶ 10} Finally, as for the distinction between third-degree and fourth-degree felony

failure to comply, Cole cites United States v. Broce, 488 U.S. 563, 574 (1989), for the

general proposition that “[a] failure by counsel to provide advice may form the basis of a

claim of ineffective assistance of counsel[.]” But we see no reason why defense counsel

would have needed to advise Cole about the distinction between third-degree and fourth-

degree felony failure to comply.

{¶ 11} Cole was charged with failure to comply as a third-degree felony because

his conduct caused a substantial risk of serious physical harm to persons or property. At

the time of his offense, failure to comply was a fourth-degree felony if committed while

fleeing immediately after the commission of a felony. But Cole’s indictment did not charge

him with failure to comply while fleeing after committing a felony. It charged him only with

causing a substantial risk of serious physical harm to persons or property, which made

the offense a third-degree felony.

{¶ 12} We are unpersuaded that an attorney provides deficient representation by

failing to explain or distinguish uncharged offenses, particularly where the record contains

no evidence that they apply to the defendant. Regardless, as we explained above, the

record does not reveal what, if anything, defense counsel told Cole about the difference

between failure to comply as a third-degree and fourth-degree felony. Therefore, he -5-

cannot demonstrate ineffective assistance of counsel on direct appeal.

III. Conclusion

{¶ 13} Cole’s assignment of error is overruled, and the judgment of the

Montgomery County Common Pleas Court is affirmed.

EPLEY, P.J. and HUFFMAN, J., concur.