COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA No. 71977 STATE OF OHIO Plaintiff-appellee JOURNAL ENTRY vs. AND KATHRYN YOUNG OPINION Defendant-appellant DATE OF ANNOUNCEMENT December 18, 1997 OF DECISION CHARACTER OF PROCEEDINGS Criminal appeal from Court of Common Pleas Case No. CR-342989B JUDGMENT AFFIRMED DATE OF JOURNALIZATION APPEARANCES: For plaintiff-appellee: For defendant-appellant: ROBERT T. GLICKMAN, ESQ. JAMES R. WILLIS, ESQ. Assistant County Prosecutor Courthouse Square Bldg. 8th Floor, Justice Center 310 Lakeside Avenue, #595 1200 Ontario Street Cleveland, OH 44113 Cleveland, OH 44113 - 2 - PATTON, J. Defendant-appellant Kathryn Young ( defendant ) was arrested for drug trafficking. She made a plea arrangement with the state, agreeing to plead guilty to carrying a concealed weapon, possession of criminal tools, drug trafficking, and drug abuse in exchange for nolling the remaining charges against her. Defendant was represented by counsel at the time she entered her plea. Before accepting defendant's guilty plea, the court explained her rights to her. The court explained defendant had the right to change her mind and have the case proceed to trial. The court discussed with defendant the possible sentences and penalties she faced as a result of entering a guilty plea. On four separate occasions, once by the prosecutor, twice by the court, and once by defense counsel, defendant was notified that as a consequence of pleading guilty she was forfeiting any interest she had in her truck, which had been confiscated by the police. Defendant indicated to the court that she understood she was relinquishing any interest she had in her truck and waiving her Crim.R. 11 rights. Subsequently, defendant pleaded guilty to a charge of complicity in the commission of trafficking in cocaine, pursuant to R.C. 2923.03 and 2925.03. At sentencing, defendant informed the court that she wanted to withdraw her previously entered plea. Her basis for withdrawing her plea was that her attorney told her she would have to forfeit her truck to stay out of jail. The court conducted a hearing on - 3 - the matter and defendant took the witness stand. On direct examination the following discourse occurred: Q. In agreeing to forfeit this particular truck to the State, how did that come about? A. Well, my attorney said that that's what I should do, and if I didn't do that, that I would be looking at jail time; that they could put me in jail; that there was no question about it. I didn't understand the laws of forfeiture. He explained to me that I was looking at jail time. Q. Unless you gave up the truck? A. Yeah, that would be what I'd have to do, forfeit my truck. Q. Did he explain to you that based on the charges that you faced, that the likelihood was that you would not be sent to jail even if you were convicted? Did he tell you that? A. He never discussed that. * * * Q. In all, how long did you talk to your attorney in preparation for defending and entering the guilty plea in this case? A. On that particular day? Q. Yes. A. Five to ten minutes. * * * Q. And you were told about five to ten minutes before you entered your guilty plea, if I understand your evidence, that you had to give up that truck in order to stay out of jail? A. Yes. He told me that I would probably go to jail. It was clear that jail was very much an option, that there was a very, very good chance that I would go to jail, and that I should plead guilty to complicity, admit that I knew what my husband did, when I really didn't. And I told him I wasn't comfortable - 4 - doing that, but he said I should plead. And I said, `What about my truck?' And he said, `You will get it back.' On cross-examination, defendant admitted she was aware that her truck was subject to forfeiture when she was indicted. She also testified she was aware that the state filed a motion to have the truck forfeited. In addition, defendant stated the court explained all her rights and the possibility of forfeiture. Lastly, defendant testified that her attorney explained to her before she entered her plea and before their conversation immedi- ately preceding the entering of her plea that she would not get her truck back. After hearing and reviewing all the evidence the trial court denied defendant's motion to vacate her plea. She timely appealed to this court and now presents two assignments of error. For her first assignment of error defendant states as follows: THE TRIAL COURT ERRED WHEN IT DENIED THE APPELLANT'S MOTION TO VACATE THE PLEA OF GUILTY. Defendant argues her plea was not knowingly or voluntarily entered because she would not have pleaded guilty if she had known she would have succeeded on a motion to suppress. In support of this allegation defendant claims there was no probable cause for her arrest and the ensuing search was illegal. Defendant also contends she received ineffective assistance of counsel. She claims her trial attorney failed to have meaningful discussions with her regarding potential defenses and failed to take the case to trial. - 5 - The state maintains defendant offered no evidence that her plea was not entered voluntarily or knowingly. The state argues the court scrupulously adhered to Crim.R. 11 and thus defendant had no legitimate reason to withdraw her plea. The burden of proving that a facially voluntary and knowing plea was tainted by some manifest injustice which must be corrected rests with the defendant. State v. Caraballo (1985), 17 Ohio St.3d 66, 67. The decision to allow a defendant to withdraw a guilty plea is left to the sound discretion of the trial court and may be reversed on appeal only where the trial court abused its discre- tion. State v. Xie (1992), 62 Ohio St.3d 521, 525-527. In Xie, the Supreme Court upheld the trial court's decision to deny a request to withdraw a guilty plea and stated: The trial court is in a better position to evaluate the motivation behind the guilty plea than is an appellate court which is only reviewing a record of the hearing *** we defer to the judgment of the trial court, because `the good faith, credibility and weight of the movant's assertion in support of the motion are matters to be resolved by that court.' Id. at 525, citing State v. Smith (1977), 49 Ohio St.2d 261, 264. In the present case, the trial court held an in-court hearing to determine defendant's motion to withdraw her plea. The trial court gave defendant, through counsel, an opportunity to present argument and evidence in support of her request. Defendant submitted an affidavit and testified on her behalf. The transcript of both the plea hearing and motion to withdraw indicates defendant - 6 - was fully advised that entering a plea of guilty could result in a forfeiture of her truck and the imposition of a jail sentence. At all times, defendant explicitly stated she understood the conse- quences of pleading guilty. The trial court also asked defendant if she was coerced or threatened into pleading guilty and she responded in the negative. Defendant testified further that she graduated from high school and attended college for three years. Defendant claims her plea was not knowingly or voluntarily entered because trial counsel did not advise her that she would have prevailed on a motion to suppress because there was no probable cause for her arrest and the search of her truck was illegal. There is nothing in the record other than defendant's self-serving affidavit and testimony to support her claim. The transcript from the plea hearing indicates defendant entered her plea knowingly and voluntarily. Moreover, there is no evidence that a manifest injustice occurred and we defer to the decision of the trial court, which is in the best position to judge the good faith, weight, and credibility of defendant's assertions. Defendant also argues she received ineffective assistance of counsel because trial counsel did not have meaningful discussions with her regarding the forfeiture of her truck and trial counsel did not take the case to trial. If defendant can demonstrate that she received ineffective assistance of counsel in entering her guilty plea and that but for that ineffective assistance she would have proceeded to trial, then this court would be required to reverse defendant's sentence and - 7 - remand this matter to the trial court to allow defendant to withdraw her plea. Hill v. Lockhart (1985), 474 U.S. 52. A failure by counsel to provide advice (which impairs the knowing and voluntary nature of the plea) may form the basis of a claim of ineffective assistance of counsel, but absent such a claim it cannot serve the predicate for setting aside a valid plea. State v. Barnett (1991), 73 Ohio App.3d 244, 248. In reviewing a claim for ineffective assistance of counsel at the pleading stage, a court must apply the two prong test of Strickland v. Washington (1984), 466 U.S. 668. This test was reiterated in Xie where the Supreme Court of Ohio stated that a defendant must first show that counsel's performance was deficient, and then show that but for counsel's errors, he would not have pleaded guilty. Xie, supra, at 524. (Quoting Hill, 474 U.S. at 59). Defendant bears the burden of proof in demonstrating ineffective assistance of counsel. State v. Smith (1985), 17 Ohio St.3d 98. Since defendant's conversations with trial counsel are beyond the scope of the record on appeal, this court cannot review her claim's validity. See Barnett, supra, 73 Ohio App.3d 244, 249; State v. Houston (November 14, 1996), Cuyahoga App. No. 70270, unreported. However, the record indicates that trial counsel was present at defendant's arraignment hearing and defendant met with trial counsel at his office and had several phone conversations with him prior to the plea hearing. Additionally, defendant testified at the motion hearing that trial counsel informed her - 8 - before the plea hearing she would not get her truck back. Also, she was told on four separate occasions during the plea hearing that her truck was subject to forfeiture. It is inconceivable that defendant was not informed that she was going to forfeit her truck in consideration of these facts or that she did not have meaningful discussions with trial counsel. Regarding defendant's claim that trial counsel should have proceeded to trial, we also believe after a review of the evidence this argument is without merit. Defendant and her husband were stopped on a street at 6:30 a.m. Defendant drove the truck, then sat in the truck and waited while husband exited the truck and allegedly sold drugs to an undercover police officer. After being arrested, the police searched defendant's truck and recovered a handgun, $45 in cash which the police had previously used as purchase money for the drugs, and two clips of ammunition. A search of defendant revealed she was in possession of a crack pipe. In addition, her husband, who was present during the drug sale and arrested, was charged with violating the aggravated drug statue. Based on this evidence we believe trial counsel neither erred in not proceeding to trial nor performed deficiently. Accordingly, defendant's first assignment of error is overruled. Defendant's second assignment of error states as follows: THE FORFEITURE DECREE ENTERED HEREIN VIOLATED THE EXCESSIVE FINE CLAUSE OF THE EIGHTH AMENDMENT. In this assignment of error defendant repeats her claim that trial counsel gave her ineffective assistance of counsel, but here - 9 - she bases her argument on trial counsel not advising her of the requirement of the law that for a forfeiture to be proper there must be a `nexus' between the vehicle involved and some specific criminal activity. The state argues this issue is waived on appeal because defendant did not raise it in the trial court. However, even if this issue was raised it fails because forfeiture does not violate the Eight Amendment. Also, there was a sufficient nexus between the truck and drug sale. The truck was the mode of transportation for defendant and husband, defendant was in the truck during the purchase, crack cocaine was found in the glove compartment, and a handgun was found on the passenger's seat of the truck. The state is correct defendant did not raise the constitution- ality of the forfeiture in the trial court. Therefore, this argument need not be addressed by this court. State v. Awan (1986), 22 Ohio St.3d 120, syllabus. Accordingly, defendant's second assignment of error is overruled. Judgment affirmed. - 10 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. DAVID T. MATIA, P.J. PORTER, J., CONCUR. JUDGE JOHN T. PATTON N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with suppoting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the .