State v. CaverState v. Caver
JUDGMENT: AFFIRMED
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
T. Allan Regas
Assistant Prosecuting Attorney
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ATTORNEY FOR APPELLANT
Calvin Caver
Inmate No. 54496060
P.O. Box 8000
Bradford, PA 16701
N.B. This entry is an announcement of the court‘s decision. See
MARY EILEEN KILBANE, J.:
{¶2} Caver’s motions to withdraw guilty pleas were based on claims that he was denied the effective assistance of counsel in various aspects, and that the state breached a plea agreement. The state opposed both motions contending that Caver’s claims were barred by the doctrine of res judicata, and that Caver failed to demonstrate that he was entitled to the requested relief of vacating his pleas under
{¶3} The trial court, without conducting oral hearings on the motions, issued identical orders in each case on January 11, 2008, denying the motions.
{¶4} The only evidentiary material Caver attached to each motion was his own unsigned and unnotarized affidavit. The record also reveals that Caver did
{¶5} On January 25, 2008, Caver filed Notices of Appeal in both cases, challenging the January 11, 2008 orders denying his motions. Sua sponte, this court issued an order on September 15, 2008, consolidating both appeals for purposes of briefing, hearing, and disposition.
{¶6} The record reveals the following procedural history regarding the two cases involved in the instant appeal.
{¶7} A three-count indictment filed April 22, 1999, in CR-375260, alleged that on November 16, 1998, Caver violated
{¶8} On October 18, 1999, Caver entered a plea of guilty in case CR-375260 to one count of possession of drugs, in an amount greater than five grams but not exceeding 10 grams, in violation of
{¶9} “Defendant in court with counsel Ken Finley. Prosecuting Attorney Mark Mahoney present. Defendant was
{¶10} One day later, October 19, 1999, a five-count indictment was filed against Caver in case CR-382128, which alleged that on May 14, 1999, he violated
{¶11} At Caver’s request, several pretrials were held in CR-382128, regarding a plea bargain offered by the state. On December 17, 1999, the
{¶12} “Defendant in court with counsel Ken Finley. Prosecuting
{¶13} Attorney Jose Torres present. Defendant was advised of all constitutional rights and penalties. On recommendation of the prosecutor[,] count 3 amended by adding attempt. Defendant retracts former plea of not guilty and enters a plea of guilty to attempt possession of drugs[,]
{¶14} On December 7, 1999, Caver was also sentenced in Case No. CR-375260. The journal entry memorializing the sentencing hearing states as follows:
{¶15} “Defendant in court with counsel Ken Finley. On a former day in court, defendant plead guilty to possession of drugs five grams not exceeding 10 grams.
{¶16} Caver does not separately set forth assignments of error in his brief as required by
{¶17} Because the five “grounds” in Caver’s brief are related in law and fact, we will address them jointly. They provide as follows:
- Counsel was ineffective for failing to advise appellant of rights.
- Counsel was ineffective for failing to object to breach of plea.
- Counsel rendered ineffective assistance for failing to file appeal.
- The State’s breach of plea agreement constitutes reversible error.
- The court erred in denying appellant’s motion to withdraw guilty plea without holding an evidentiary hearing.
{¶18} Caver generally argues that the trial court erred when it denied his postsentence motions to withdraw his guilty pleas. However, we review postsentence motions to withdraw pleas upon an abuse-of-discretion standard. State v. Smith (1977), 49 Ohio St.2d 261. “The term ‘abuse of discretion’ connotes more than an error of law or judgment; it implies that the court‘s
{¶19}
{¶20} “A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.”
{¶21} Thus, Caver must demonstrate the existence of a manifest injustice. “Manifest injustice is an extremely high standard which permits the court to allow plea withdrawal only in extraordinary cases. A manifest injustice is defined as a clear or openly unjust act. Other courts have referred to it as an extraordinary and fundamental flaw in the plea proceeding.” State v. Hamilton, Cuyahoga App. No. 90141, 2008-Ohio-455. (Internal citations omitted.)
{¶22} Pursuant to
{¶23} Caver argues that the trial court erred in failing to provide him with an evidentiary hearing prior to ruling on the motion. However, “[a] trial court need not hold an evidentiary hearing on a post-sentence motion to withdraw a guilty plea if the record indicates the movant is not entitled to relief and the movant has failed to submit evidentiary documents sufficient to demonstrate a manifest injustice. But, a hearing on a post-sentence motion to withdraw a plea is required if the facts alleged by the defendant and accepted as true would require the court to permit that plea to be withdrawn.” State v. Mays, Cuyahoga App. No. 89362, 2008-Ohio-128. (Internal citations omitted.)
{¶24} In the instant cases presented in this consolidated appeal, Caver did not produce proper evidentiary documents sufficient to demonstrate manifest injustice. The trial court did not abuse its discretion in disregarding unsigned and unnotarized affidavits offered in support of his motions. The unsupported motions did not demonstrate “manifest injustice,” and therefore, the court did not err in denying them.
{¶25} Caver argued the following in his unsupported motions to withdraw his plea in each case: first, that his counsel failed to properly and adequately advise him of the fundamental constitutional rights which he gave up when he pleaded guilty and failed to ensure that he had a sufficient understanding of
{¶26} Pursuant to
{¶27} Upon a review of the record and relevant facts we affirm the trial court’s denial of Caver’s motion to withdraw pleas over eight years after he entered his pleas and was sentenced, and more than five years after he
Judgment affirmed.
It is ordered that appellee recover from appellant 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 common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
MARY EILEEN KILBANE, JUDGE
ANTHONY O. CALABRESE, JR., P.J., and PATRICIA A BLACKMON, J., CONCUR