State v. BrantleyState v. Brantley
BEFORE: Celebrezze, J., Rocco, P.J., and Boyle, J.
RELEASED AND JOURNALIZED: November 24, 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
ON RECONSIDERATION1
FRANK D. CELEBREZZE, JR., J.:
{¶ 1} Defendant-appellant, Derek Brantley II, appeals his convictions and sentence. After a thorоugh 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
{¶ 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.2 The remaining counts were nolled.
{¶ 4} On December 14, 2009, appellant, acting pro se, filed a “motion to withdraw plea viа 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 sentenced 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 tо 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 appеal
Law and Analysis
Motion to Withdraw Guilty Plea
{¶ 7} In his first assignment of error, appellant arguеs 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 plea 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 unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 450 N.E.2d 1140.
{¶ 8}
{¶ 9} A review of the record reveals 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 presеntence 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 suрport simply should not merit the type 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 withdrаw, 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 record will clearly show Defendant
{¶ 11} In order for appellant‘s motion to hаve 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 ever 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 lаck of prejudice, 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 court is not barred by statute frоm imposing a fine upon an indigent person. See
Forfeiture
{¶ 14} In his third assignment of error, appellant argues that the trial court failed to follow the procedures set forth in
{¶ 15} In his fourth assignment of error, appellant argues that he was denied the effective assistаnce 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 proper 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.
{¶ 16} Appellant first arguеs that his counsel was ineffective in advising him to enter a voluntary guilty plea before receiving discovery responses from the state. A review of the record, however, reveals that appellant pled guilty to only two of the eight counts he was charged with. Although he was sentenced to eight years in prison, he could have faced a considerably harsher sentence had he been convicted under the indictments as charged.
{¶ 17} 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 trial 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
Conclusion
{¶ 18} 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. Appellant failed to object to the imposition of fines and costs, and therefore waived any argument that such fines and costs should not have been imposed. The trial court followed the required statutory 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 еffective 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 appeal.
A certified copy of this entry shall constitute the mandate pursuant to
FRANK D. CELEBREZZE, JR., JUDGE
KENNETH A. ROCCO, P.J., and
MARY J. BOYLE, J., CONCUR