State v. BrantleyState v. Brantley
JUDGMENT: AFFIRMED
Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-527516 and CR-528800
RELEASED AND JOURNALIZED: October 28, 2010
Derek Brantley, II, pro se
1797 Karen Drive
Euclid, Ohio 44117
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
BY: Marcus L. Wainwright
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} Defendant-appellant, Derek Brantley II, appeals his convictions and sentence. After a thоrough review of the record and pertinent case law, we affirm.
{¶ 2} Appellant was indicted on drug offenses in two separate cases. In CR-527516, he was indicted in a four-count indictment on one count of drug trafficking, one count of drug possession, one count of possessing criminal tools, and one count of endangering children. In CR-528800, he was indicted in a four-count indictment on one count of drug possession, one count
{¶ 3} On November 23, 2009, appellant entered voluntary pleas in both cases as part of a plea deal. In CR-527516, he pled guilty to drug trafficking with forfeiture and juvenile specifications. In CR-528800, he pled guilty to drug trafficking with juvenile, schoolyard, and forfeiture specifications.1 The remaining counts were nolled.
{¶ 4} On December 14, 2009, appellant, acting pro se, filed a “motion tо withdraw plea via forfeiture objection at 11/23/09 change of plea hearing.” No hearing was held on this motion, and the trial court proceeded to sentencing on December 17, 2009.
{¶ 5} In CR-527516, appellant was sеntenced to four years. In CR-528800, he received an eight-year sentence. These sentences were to run concurrently to one another for an aggregate sentence of eight years. Appellant was also ordered to forfeit several items of property and was ordered to pay fines and court costs.
{¶ 6} Subsequent to the sentencing hearing, the trial court issued an entry denying appellant‘s motion to withdraw his guilty plea. This appeal followed wherein appellant argues that 1) the trial court erred in denying his motion to withdraw his guilty plea without holding a hearing, 2) the trial
Law and Analysis
Motion to Withdraw Guilty Plea
{¶ 7} In his first assignment of error, appellant argues that the trial court erred in denying his presentence motion to withdraw his guilty plea without holding a hearing. The decision of a trial court to grant or deny a motion to withdraw a guilty plеa is reviewed using an abuse of discretion standard. State v. Van Dyke, Lorain App. No. 02CA008204, 2003-Ohio-4788, ¶7, citing State v. Peterseim (1980), 68 Ohio App.2d 211, 428 N.E.2d 863, paragraph two of the syllabus. To constitute an abuse of discretion, the ruling must be more than legal error; it must be unreasonable, arbitrary, or unconscionablе. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140.
{¶ 8}
{¶ 9} The record before us is devoid of a transcript of the plea and sentencing hearings. Nonetheless, a review of the record does reveal that the trial court failed to hold any hearing on appellant‘s motion to withdraw his guilty plea. Although a court is ordinarily required to hold a hearing on a presentence motion to withdraw a guilty plea, “the scope of a hearing on an appellant‘s motion to withdraw his guilty plea should reflect the substantive merits of the motion. * * * ‘Hence, bold assertions without evidentiary support simply should not merit the typе of scrutiny that substantiated allegations would merit. The scope of the hearing is within the sound discretion of the trial judge, subject to our review for an abuse of that discretion.‘” State v. Irizarry, Cuyahoga App. No. 93352, 2010-Ohio-3868, ¶16-17, quoting State v. Smith (Dec. 10, 1992), Cuyahoga App. No. 61464.
{¶ 10} In his motion to withdraw, appellant argued that he did not understand exactly what property he was forfeiting as a result of his guilty plea. He specifically challenged the forfeiture of a 2003 Chevy Tahoe. In his motion, appellant argued that “the recоrd will clearly show Defendant
{¶ 11} In order for appellant‘s motion to have merit, he would have to show that he was mistaken with regard to forfeiting the property and that this mistake prejudiced him. Appellant asserted both in his motion to withdraw and in his merit brief on appeal that he does not own, nor has he evеr owned, the 2003 Chevy Tahoe. Based on this assertion, appellant had no actual ownership interest to forfeit, and his agreement to forfeit that interest will not prejudice him in any way. Based on this lack of prеjudice and appellant‘s failure to provide us with a copy of the lower court transcript, we cannot find that the trial court abused its discretion in failing to hold a hearing on appellant‘s motion to withdraw his guilty plea and in ultimately denying that motion. Appellant‘s first assignment of error is overruled.
Costs and Fines
{¶ 12} In his second assignment of error, appellant argues that the trial court erred in imposing costs and fines after he had filed an affidavit of indigency.
{¶ 13} “Ohio law does not prohibit a court from imposing a fine on an indigent defendant. State v. Roark, Cuyahoga App. No. 84992, 2005-Ohio-1980. Except for violations ‘of any provisions of Chapter 2925., 3719., or 4729. of the Revised Code,’ a sentencing сourt is not barred by statute from imposing a fine upon an indigent person. See
{¶ 14} Appellant argues that the trial cоurt failed to discuss his financial status or ability to pay at the sentencing hearing. Despite this assertion, appellant has failed to provide this court with a copy of the sentencing transcript, thus we must presume regularity in the proceedings. State v. Smith, Cuyahoga App. No. 94063, 2010-Ohio-3512, ¶11. Because we have no transcript of the sentencing hearing, we must presume that the trial court properly considered appellant‘s ability to pay the fines and court сosts imposed. Appellant has failed to demonstrate that the trial court abused its discretion. His second assignment of error is overruled.
{¶ 15} In his third assignment of error, appellant argues that the trial court failed to follow the procedures set forth in
Ineffective Assistance of Counsel
{¶ 16} In his fourth assignment of error, appellant argues that he was denied the effective assistance of counsel. In order to substantiate a claim of ineffective assistance of counsel, the appellant is required to demonstrate that: 1) the performance of defense counsel was seriously flawed and deficient; and 2) the result of appellant‘s trial or legal proceeding would have been different had defense counsel provided рroper representation. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Brooks (1986), 25 Ohio St.3d 144, 495 N.E.2d 407.
{¶ 18} Appellant also argues that his counsel was ineffective for failing to make an objection at sentencing pursuant to Oregon v. Ice (2009), 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517. According to appellant, Ice required the triаl court to state its reasons for imposing maximum sentences. In State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, ¶100, the Ohio Supreme Court held that trial courts were no longer required to make findings when “imposing maximum, consecutive, or more than the minimum sentences.” This cоurt has acknowledged the holding in Ice, but we have repeatedly held that until the Ohio Supreme Court overrules its holding in Foster, Foster remains binding on this court and will be applied. State v. Cooper, Cuyahoga App. No. 92911, 2010-Ohio-4106, ¶32. We cannot find that appellant‘s counsel was deficient for failing to object on the basis of Ice when such an objection would have been unsuccessful.
{¶ 19} Because this court has consistently refused to apply the holding in Ice, and appellant failed to provide a transcript of the lower court
Conclusion
{¶ 20} The trial court did not abuse its discretion in denying appellant‘s motion to withdraw his guilty plea without a hearing when appellant did not make a meritorious argument that would, if found to be true, entitle him to relief. The trial court acted within its discretion when it ordered appellant to pay fines and court costs, and it followed the required statutоry procedures in ordering the forfeiture of appellant‘s property. Finally, appellant has failed to demonstrate any facts suggesting his counsel was deficient, and thus we cannot find that he was denied the effective assistance of counsel.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeаl.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. The defendant‘s conviction having been affirmed, any bail pending apрeal is terminated. Case remanded to the 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.
FRANK D. CELEBREZZE, JR., JUDGE
KENNETH A. ROCCO, P.J., and
MARY J. BOYLE, J., CONCUR