STATE OF OHIO v. JAMES DAVNER
Nos. 104745 and 105144
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
December 7, 2017
[Cite as State v. Davner, 2017-Ohio-8862.]
BEFORE: E.A. Gallagher, P.J., E.T. Gallagher, J., and Boyle, J.
JOURNAL ENTRY AND OPINION; JUDGMENT: REVERSED; REMANDED; Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-15-602142-A
Joseph V. Pagano
P.O. Box 16869
Rocky River, Ohio 44116
Robert H. Williams
21430 Lorain Road
Fairview Park, Ohio 44126
ATTORNEYS FOR APPELLEE
Michael C. O‘Malley
Cuyahoga County Prosecutor
BY: Gregory J. Ochocki
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} In this consolidated appeal, defendant-appellant James Davner appeals from (1) the judgment of conviction (Appeal No. 104745) and (2) the trial court‘s denial of his postsentence motion to withdraw his guilty pleas (Appeal No. 105144), after he pled guilty to one count of felonious assault, one count of abduction and one count of gross sexual imposition. Davner contends that his guilty pleas were induced by the ineffective assistance of his trial counsel and were not knowingly, intelligently and voluntarily made. He also contends that his aggregate six-year, ten-month sentence was not clearly and convincingly supported by the record. For the reasons that follow, we reverse the trial court‘s judgment, vacate Davner‘s guilty pleas and remand the case for further proceedings.
Factual and Procedural Background1
{¶2} On December 18, 2015, K.H. filed a complaint in the Lyndhurst Municipal Court alleging that Davner had sexually assaulted her. K.H. alleged that she and her boyfriend had been drinking with Davner the evening of November 21, 2015, and that while she was in the bathroom, intoxicated and vomiting, Davner raped her. Davner originally told police that he had never had any sexual contact with K.H. After DNA test results came back indicating that his semen was found on K.H., Davner admitted having
{¶3} Davner retained attorney Daniel Margolis (“Margolis“) to represent him. Davner testified that when he first learned of the sexual assault allegations against him, he researched criminal defense attorneys on the internet. He gave his wife, Laurel, attorney Margolis’ name and number and asked her to call him “if anything were to happen.” Davner testified that he selected Margolis because “[h]e had very good reviews on his website.”
{¶4} Davner was arrested at his home on December 18, 2015. After Davner was arrested, Laurel contacted Margolis. She paid him $1,000 to represent Davner in the municipal court proceedings and to get a bond set. Laurel testified that she gave Margolis the telephone numbers for K.H.‘s boyfriend and the boyfriend‘s mother and showed him several social media postings K.H. and K.H.‘s boyfriend had made that Laurel contended contradicted with what they alleged had occurred. Laurel testified that Margolis told her that he would hire an investigator. Davner was thereafter released on bond.
{¶5} On January 4, 2016, a Cuyahoga County Grand Jury indicted Davner on two counts of rape, one count of kidnapping with a sexual motivation specification and two counts of gross sexual imposition arising out of Davner‘s alleged sexual assault of K.H.
{¶6} On January 11, 2016, Davner met with Margolis at his office and signed a fee agreement, agreeing to pay Margolis an additional $20,000 to represent him on the
{¶7} Davner claimed that the meeting he had with Margolis in January 2016 was the only time he “really met with” Margolis to discuss his case. He stated that his only other interactions with Margolis were a couple of email messages forwarding discovery materials, brief text messages and telephone calls and a couple minutes conversing with Margolis before and after pretrial conferences. Davner testified that he called Margolis “maybe once a week” to get an update regarding “what‘s going on,” “what he‘s doing with the case” but that he rarely got a call back. He testified that when he did so, it would be “very brief,” i.e., that Margolis would simply say, “[n]othing is going on,” “waiting for discovery” or “I‘ll see you at the next pretrial.” Davner testified that he repеatedly told Margolis that he was innocent and that he wanted to go to trial and did not want to plea.
{¶8} On January 20, 2016, Margolis submitted a written demand for discovery pursuant to
{¶9} Davner appeared for each of the eight pretrials held in the case. He testified that, at each of the pretrial conferences, Margolis would greet Davner, let him know he was there, then go into the back for an hour or two while Davner waited in the waiting room. When he returned, Margolis would generally say something to the effect of “this was routine” or “still waiting for discovery” or if something had been received in discovery, what it was. He stated that Margolis forwarded him certain discovery materials, including the police report, a recording of the 911 call and the victim‘s medical records, but that Margolis never reviewed them with Davner. Davner testified that when he would ask Margolis how the discovery materials impacted his case, he “never really got a direct answer on anything.” He testified that Margolis would simply respond, “it‘s a coin flip” or “it‘s up in the air.” When Davner asked Margolis if he could come talk to him about the case, Margolis responded that there was nothing to discuss.
{¶10} Margolis disputed Davner‘s characterization of their interactions. He denied that he told the Davners he would hire an investigator and stated that there were no
{¶11} Margolis denied that Davner demanded that the case go to trial. He testified that Davner‘s “frequent demand” was for the case to be dismissed, but that that “abated somewhat as the case dragged on.” He stated that “[w]e didn‘t go to trial because [Davner] didn‘t want to go to trial.” Margolis testified that if the case were to have been tried, Davner would have had to pay him another $7,000 under the fee agreement and that that “never even came up * * * because of the overwhelming weight of the evidence against Mr. Davner.”
{¶12} In May 2016, Davner took a polygraph test in the hopes of convincing the prosecutor to drop the charges against him. On May 11, 2016, Margolis said he would
{¶13} Margolis did not meet with Davner in preparation for trial. He did not file any motions in limine, submit a witness or exhibit list or otherwise prepare to try the case on May 24. On the afternoon of May 23, Davner texted Margolis and asked him whether he should still appear in court the following morning since Margolis had not heard back from the prosecutor. He also inquired about the ten subpoenas that were listed on the docket. Margolis stated that he was “[s]till waiting on the prosecutor” and told Davner to listen to the 911 tape again. Margolis stated that “t]he jury will hear this. It will probably be the first thing they hear” and indicаted that it was “problematic.” The two men exchanged several telephone calls that evening. With respect to whether the trial was going forward, Davner testified that Margolis told him, “Just be there and we‘ll see what goes on with it.”
{¶14} Davner testified that when he appeared for trial the following morning, he expected that nothing would happen and that everything would be pushed back, as it had in the past, because the prosecutor had not appeared at the last pretrial conference.
{¶15} The state made no plea offers until the morning of trial. Nevertheless, Margolis testified that he did not prepare for trial because he believed Davner would enter a plea: “There was not going to be a trial so I didn‘t do anything to prepare.” He could not recall when he first talked to Davner about a possible plea but claimed that it was “certainly * * * before April 25.” He testified that he also spoke with Davner about a possible plea on May 17, 2016, advising him that “the evidence was very strong against him” and that “he was looking at a high risk/high reward kind of situation” if the case went to trial. Margolis stated that he and the prosecutor “had been talking about a plea bargain for some time, and Mr. Davner knew that and approved of that.” He testified that if there had been no plea agreement, he planned to request a reasonable continuance to adequately prepare for trial. There is nothing in the record that indicates that he communicated this plan to Davner. Davner denied having previously discussed any possible pleas with Margolis.
{¶16} Although trial was scheduled to begin at 9:00 a.m. on May 24, 2016, Margolis did not arrive at the courthouse until 9:44 a.m. He testified that “[i]t‘s not uncommon and it‘s regrettable, but it did happen.” After he spoke with the prosecutor, Margolis handed Davner an index card on which he had jotted down two plea offers he received from the state. The index card listed the offense levels, tier levels and the titles
{¶17} Davner denied that Margolis explained the offenses to which he would be pleading guilty. Davner testified that Margolis told him that he had to decide between the two plea offers because if he went to trial he would lose and would go to prison for a
{¶18} After Margolis left Davner alone to consider the plea offers, Davner called his mother, his wife and his employer. He called his employer to find out if he could keep his job if he went to prison for six months. He called his mother, Daniela Davner, and told her he needed to piсk from two plea options and asked for her advice as to what he should do. Daniela testified Davner was “very upset” and that he could only talk for a few minutes because “he had to pick right then.” Daniela suggested he consult with another attorney. Davner testified that when Margolis came back to see what he had decided, he asked if he could get another attorney. Margolis said that “it would not help.”
{¶19} Davner then called his wife, Laurel. He testified that he asked her to conduct a “Google” search to determine the meaning of felonious assault, abduction and gross sexual imposition and the difference between a Tier I and Tier III sex offender. Laurel testified that she received a “frantic call” from Davner, asking her to “Google” two potential plea offers he had just received because he did not understand what the offenses
{¶20} At 10:22 a.m. Margolis texted Davner “[t]he deals are not changing.” At 11:13 a.m., Davner replied, “Just 10 more min and I‘ll have [an] answer.”
{¶21} Davner testified that while he was on the phone with Laurel, Margolis came back and told him “the prosecutor is ready” and “[t]hey want an answer.” Davner stated that he asked Margolis how much time he could have to decide and that he replied that Davner needed to “make a decision now.” Davner told Margolis which of the plea options he had selected and communicated his selection to the prosecutor.
{¶22} Under the terms of the plea agreement, Davner would plead guilty to an amended count of felonious assault in violation of
{¶23} Davner testified that he decided which plea offer to accept based on the length of time he would have to register as a sex offender, i.e., under one plea offer he
{¶24} At 11:28 a.m., Davner texted Margolis and asked if he could “ask about me going less often to CSR [court-supervised release]?” Margolis responded, “Yes.” Davner testified that he inquired about CSR because he thought that he would be sentenced to probation. At 12:24 p.m. Margolis texted Davner, “Come into the courtroom.” Davner turned off his phone and went into the courtroom.
{¶25} After the state and Margolis set forth the terms of the plea agreement on the record, the trial judge proceeded with the plea colloquy. In response to the trial judge‘s preliminary questions, Davner indicated that he was a citizen, had a driver‘s license, was 30 years оld, had a bachelor‘s degree in mechanical engineering, could read and write, was not under the influence of any drugs, alcohol or medication and understood what was happening in court that day.
{¶26} The trial judge advised Davner of his constitutional rights and confirmed that he understood the rights he would be waiving by entering his guilty pleas. The trial judge identified each of the offenses to which Davner would be pleading guilty, outlined the penalties he faced on each count, including the maximum prison sentence for each offense, and confirmed that Davner understood the potential penalties associated with each count. With respect to the potential sentences Davner could receive, the trial judge indicated as follows:
THE COURT: All right. Now, in advising you of the possible penalties under Count 1 as it‘s amended, you are looking at a potential prison
THE DEFENDANT: Yes, Your Honor.
* * *
THE COURT: Okay. In Count 3 as it‘s amended to a felony of the third degree, you are looking at a potential maximum prison sentence of anywhere from 9, 12, 18, 24, 30, up to 36 months.
THE DEFENDANT: Yes, Your Honor.
THE COURT: And Count 4, a felony of the fourth degree, anywhere from 6 to 18 months.
THE DEFENDANT: Yes, Your Honor.
* * *
THE COURT: And that you are agreeing that for purposes of merger, that none of these counts will merge for purposes of sentencing. So what that means is that you will be sentenced on each count and your maximum potential prison sentence could be 12-and-a-half years, if you received a maximum sentence and it was run consecutive. So your sentence on each of these counts based on an agreement that they do not merge, your maximum consecutive sentence could be 12-and-a-half years in prison; do you understand that?
THE DEFENDANT: Yes, Your Honor.
* * *
[DEFENSE COUNSEL]: Yes, Your Honor. But just for clarification, the Court could also run his sentences concurrent —
THE COURT: Correct.
[DEFENSE COUNSEL]: — if he is sentenced to prison.
THE COURT: That‘s correct. But I advised him of the maximum potential sentence that he could face.
[DEFENSE COUNSEL]: Absolutely.
THE COURT: So that‘s why I‘m telling him 12-and-a-half years, but there is a minimum sentence which would be two years. Okay. So do you understand?
THE DEFENDANT: Yes, Your Honor.
* * *
THE COURT: * * * [N]one of these charges that you‘re pleading guilty to as they‘ve been аmended are mandatory prison time; just Count 1, as I have already explained is a presumption in favor of prison. So you could also be placed under a community control sentence for up to five years, but if you violate the terms of the sentence, you could receive a more restrictive sentence, including prison time; do you understand?
THE DEFENDANT: Yes, Your Honor.
{¶27} Davner confirmed that no threats or promises had been made to him to induce him to change his pleas other than what had been stated on the record, he stated that he understood that there was no promise of a particular sentence and he indicated that he was satisfied with the services rendered by his trial counsel.
{¶28} The trial judge found that Davner had been informed of his constitutional rights, that he understood “the nature of the charges, the effect of a plea and the maximum penalties which may be imposed” and that his guilty pleas would be made knowingly, intelligently and voluntarily.
{¶29} Davner entered his guilty pleas to one count of felonious assault, one count of abduction and one count of gross sexual imposition pursuant to the plea agreement, and the remaining counts were nolled. The trial judge accepted his guilty pleas and
{¶30} Davner, Margolis, the victim‘s boyfriend and the state spoke at the June 20, 2016 sentencing hearing. After considering those statements and reviewing the PSI, the letters submitted by Davner‘s wife and parents and a report from Davner‘s therapist, the trial court sentenced Davner to six years on the felonious assault count, three years on the abduction count and ten months on the gross sexual imposition count. The sentences on the felonious assault and abduction counts were to run concurrently to one another but consecutive to the sentence imposed on the gross sexual imposition count, resulting in an aggregate prison sentence of six years and ten months. The trial court properly advised Davner of postrelease control, ordered payment оf court costs and classified Davner as a Tier I sex offender. On June 23, 2016, the trial court entered its sentencing journal entry.
{¶31} On July 19, 2016, Davner filed (1) a motion to withdraw his guilty pleas and (2) a direct appeal of the judgment of conviction. On August 1, 2016, this court remanded the matter for consideration of Davner‘s motion to withdraw his guilty pleas.
{¶32} In his motion to withdraw his guilty pleas, Davner argued that his guilty pleas were invalid because he did not enter them knowingly, intelligently and voluntarily or with the effective assistance of counsel. He claimed that Margolis had pressured him into entering guilty pleas because he was not prepared to try the case and that his guilty pleas were based on misinformation regarding his likely sentence and eligibility for judicial release. The state opposed the motion, arguing that Davner could not
{¶33} On October 11, 2016, after consideration of Davner‘s motion to withdraw his guilty pleas, the state‘s brief in opрosition, the evidence and arguments presented at the evidentiary hearing and the post-hearing briefs, the trial court denied Davner‘s motion. The trial court did not explain its reasoning in denying the motion.
{¶34} Davner appealed the trial court‘s order denying his motion to withdraw his guilty pleas. In this consolidated appeal, he raises the following assignments of error for review:
ASSIGNMENT OF ERROR NO. I:
The trial court erred by denying appellant‘s motion to withdraw his guilty plea.
ASSIGNMENT OF ERROR NO. II:
Appellant‘s sentence is clearly and convincingly not supported by the record and is contrary to law.
Law and Analysis
{¶35} In his first assignment of error, Davner contends that his guilty pleas were induced by the ineffective assistance of his trial counsel and were not knowingly, intelligently and voluntarily made, resulting in manifest injustice. He argues that the trial court should have permitted him to withdraw his guilty pleas because Margolis was
Motion to Withdraw Guilty Plea
{¶36} A motion to withdraw a guilty plea is governed by
{¶37} The determination of whether the defendant has demonstrated manifest injustice is within the sound discretion of the trial court. Vinson at ¶ 42, citing Smith at paragraph two of the syllabus. Accordingly, we will not reverse a trial court‘s ruling on
Ineffective Assistance of Counsel
{¶38} Ineffective assistance of counsel can constitute a manifest injustice warranting a withdrawal of a guilty plea. See, e.g., State v. Montgomery, 8th Dist. Cuyahoga No. 103398, 2016-Ohio-2943, ¶ 4. However, where a defendant enters a guilty plea, he or she waives ineffective assistance of counsel except to the extent that the ineffective assistance of counsel caused the defendant‘s plea to be less than knowing, intelligent and voluntary. Vinson at ¶ 30; State v. Williams, 8th Dist. Cuyahoga No. 100459, 2014-Ohio-3415, ¶ 11. Thus, where a defendant has entered a guilty plea, a defendant can prevail on a claim of ineffective assistance of counsel only by demonstrating (1) deficient performance by counsel, i.e., that counsel‘s performance fell below an objective standard of reasonable representation, that caused his guilty plea to be less than knowing, intelligent and voluntary and (2) that there is a reasonable probability that, but for counsel‘s deficient performance, the defendant would not have pled guilty to the offenses at issue and would have, instead, insisted on going to trial. Williams at ¶ 11, citing State v. Xie, 62 Ohio St.3d 521, 524, 584 N.E.2d 715 (1992), and Hill v. Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); see also Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the
syllabus. A “reasonable probability” is a “probability sufficient to undermine confidence in the outcome.” Strickland at 694.Requirement that Guilty Pleas be Made Knowingly, Intelligently and Voluntarily
{|39} “When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of the plea unconstitutional under both the United States Constitution and the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996); see also State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, 7. As the Ohio Supreme Court explained in State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893 N.E.2d 462:
A сriminal defendant‘s choice to enter a plea of guilty or no contest is a serious decision. The benefit to a defendant of agreeing to plead guilty is the elimination of the risk of receiving a longer sentence after trial. But, by agreeing to plead guilty, the defendant loses several constitutional rights. * * * The exchange of certainty for some of the most fundamental protections in the criminal justice system will not be permitted unless the defendant is fully informed of the consequences of his or her plea. Thus, unless a plea is knowingly, intelligently, and voluntarily made, it is invalid.
Id. at 25.
{|40} Whether a guilty plea was entered into knowingly, intelligently and voluntarily is based on the totality of the circumstances. See, e.g., State v. Sojourney, 8th Dist. Cuyahoga No. 92087, 2009-Ohio-5353, 14; State v. Lockhart, 8th Dist. Cuyahoga No. 90754, 2009-Ohio-2395, 6.
The Plea Colloquy
- Determining that the defendant is making the plea voluntarily, with understanding of the nature of the charges and of the maximum penalty involved, and, if applicable, that the defendant is not eligible for probation or for the imposition of community control sanctions at the sentencing hearing.
- Informing the defendant of and determining that the defendant understands the effect of the plea of guilty or no contest, and that the court, upon acceptance of the plea, may proceed with judgment and sentence.
- Informing the defendant and determining that the defendant understands that by the plea the defendant is waiving the rights to jury trial, to confront witnesses against him or her, to have compulsory process for obtaining witnesses in the defendant‘s favor, and to require the state to prove the defendant‘s guilt beyond a reasonable doubt at a trial at which the defendant cannot be compelled to testify against himself or herself.
The purpose of
{|42} The trial court must strictly comply with those provisions of
{|43} “[T]here is no easy or exact way” to determine a defendant‘s subjective understanding. State v. Cardona, 8th Dist. Cuyahoga No. 75556, 1999 Ohio App. LEXIS 6064, *12 (Dec. 16, 1999), citing State v. Carter, 60 Ohio St.2d 34, 38, 396 N.E.2d 757 (1979). However, if a defendant “receives the proper information, then we can ordinarily assume that he understands that information.” Cardona at *12, quoting Carter at 38. A defendant may learn of information not relayed to him by the trial court
{|44} When a trial court complies with
{|45} Here, there is no disputе that the trial court fully complied with
Understanding of Nature of the Offenses and the Effect and Consequences of Guilty Pleas
{|46} In this case, during the plea colloquy, the trial court identified the offenses to which Davner would be pleading guilty and confirmed with Davner that these were the offenses to which he was agreeing to plead. The trial court also identified the potential penalties associated with each offense. The trial court did not, however, explain the
{|47} A trial court is not necessarily required to explain the elements of each offense to the defendant or to specifically ask the defendant if he or she understands the charges. See, e.g., State v. Reeves, 8th Dist. Cuyahoga No. 100560, 2014-Ohio-3497, 12; State v. Minifee, 8th Dist. Cuyahoga No. 99202, 2013-Ohio-3146, 14. A trial
{|48} Likewise,
{|49} Although the trial judge did not explicitly inform Davner that his guilty pleas operated as a complete admission of his guilt to the charges at issue, she did inform Davner that, by entering his guilty pleas, he was giving up his right to have the state prove his guilt and that the trial court could proceed directly with judgment and sentencing after he entered his guilty pleas. Davner indicated that he understood this.
{|51} At the evidentiary hearing, Davner testified that although he had not been physically threatened to change his pleas, given the short time period he was given to decide whether to accept a plea offer, he did, in fact, feel threatened; he just “didn‘t realize it was a threat at the time.” He further testified that he “was so distressed by everything, by [Margolis] giving me so short of a time to make a decision that * * * it was kind of like a blur.” When asked if he understood the judge‘s questions, Davner replied, “[T]hey came out in English and I understood what they were, but what did they mean to me, like it didn‘t really mean anything to me.” Davner testified that he did not ask Margolis if he could withdraw his guilty pleas prior to sentencing because he “didn‘t even know that was an option.”
Counsel‘s Inaccurate Prediction of Davner‘s Sentence
{|52} Davner also argues that his pleas were not knowingly, intelligently and voluntarily entered because they were based on Margolis’ representation that if Davner accepted one of the state‘s plea offers, he would “most likely” receive probation or, under
{|53} Margolis vehemently denied that he ever told Davner that it was most likely he would receive probation. However, even assuming that Margolis had done so, an attorney‘s mere inaccurate prediction of a defendant‘s sentence does not constitute ineffective assistance of counsel sufficient to negate a guilty plea:
“A good faith but erroneous prediction of sentence by defense counsel does not render the plea involuntary. Where the representations made by defense counsel were hopeful, good faith estimates, not promises, the fact that defendant may have had expectations of leniency is not sufficient, absent evidence that the government induced such expeсtation, to justify withdrawal of the plea.”
Vinson, 2016-Ohio-7604, 73 N.E.3d 1025, at 32, quoting State v. Sally, 10th Dist. Franklin No. 80AP-850, 1981 Ohio App. LEXIS 10295, *10-11 (June 11, 1981); see also State v. Longo, 4 Ohio App.3d 136, 139-140, 446 N.E.2d 1145 (8th Dist.1982) (counsel‘s error in “predict[ing] a sentencing result based on an educated judgment” that “did not pan out” did not render his assistance ineffective); State v. Mays, 174 Ohio App.3d 681, 2008-Ohio-128, 884 N.E.2d 607, 10 (8th Dist.) (“A lawyer‘s mistaken prediction about the likelihood of a particular outcome after correctly advising the client of the legal possibilities is insufficient to demonstrate ineffective assistance of counsel.“); State v. McMichael, 10th Dist. Franklin Nos. 11AP-1042, 11AP-1043 and 11AP-1044, 2012-Ohio-3166, 31 (counsel‘s “mere inaccurate prediction of a sentence does not
{|54} Davner has not shown that, in advising Davner that he was likely to receive a sentence ranging from probation to two or three years, Margolis did anything more than provide Davner with an “educated guess” as to what his sentence might be in light of the relevant facts and circumstances, including Davner‘s lack of any significant criminal history. Furthermore, the record reflects that Davner entered his guilty pleas with full knowledge of the potential sentences he could receive. The trial court informed Davner of the potential sentencing range on each of the counts to which he was pleading guilty and further explained that, based on his agreement that the counts would not merge for sentencing, he could receive a potential maximum aggregate sentence of 12 and a half years — if he were to receive a maximum sentence on each offense and the sentences were to be run consecutively. Davner indicated that he understood this. Further, in reviewing the potential sentencing range associated with the felonious assault count, the trial court advised Davner that there was a “presumption of prison” as to that count. Davner indicated that he understood this as well. Accordingly, Davner was not denied effective assistance of counsel and his pleas were not rendered unknowing, unintelligent or involuntary based solely on his trial сounsel‘s faulty prediction of his sentences. See Vinson, 2016-Ohio-7604, 73 N.E.3d 1025, at 31-35.
Counsel‘s Failure to Provide Complete Information Regarding Judicial Release
{|56} Davner argues that although the trial judge informed him of the potential maximum sentences could he could receive during the plea colloquy, he did not understand, based on his attorney‘s prior representations regarding judicial release, that if he were to receive a sentence of five or more years, he would not be eligible for judicial release until after he served five years of that sentence. Here, there is evidence in the record to support Davner‘s claim that Margolis failed to provide him with complete, accurate legal advice regarding his eligibility for judicial release before he entered his guilty pleas. Davner testified that Margolis informed him that he would be eligible for judicial release after serving six months of his sentence but did not explain that, if he received a sentence that was five years or longer, he would not be eligible for judicial release until after he served five years of his sentence. The state presented no evidence disputing this claim — Margolis did not testify as to what he told Davner regarding judicial release — and there is nothing in the record to suggest that Davner was ever informed that if he received a sentence longer than that predicted by counsel, i.e., if he were to be sentenced to five years or more, he would not be eligible for judicial release until after he served five years of his sentence.
Counsel‘s Lack of Preparation for Trial
{|58} Davner also argues that he was coerced into accepting one of the plea deals offered by the state due to his counsel‘s failure to prepare for trial. In this case, although no plea offers had yet been extended, Margolis admitted that he was not prepared to try the case on the scheduled trial date and had not asked for a continuance. Where, as here, counsel has admitted that he is not prepared for trial, courts have upheld claims of ineffective assistance of counsel. See, e.g., State v. Biggers, 118 Ohio App.3d 788, 790-791, 694 N.E.2d 108 (10th Dist.1997) (defendant received ineffective assistance of counsel whеre the record established that defense counsel “had done little or nothing in the four months during which he had been assigned to the case” and at the start of trial, asked for a continuance because he “admitted unequivocally that he was not prepared to go to trial“). While Margolis stated that he would have asked for a continuance if Davner had rejected the state‘s plea offers, such that his lack of preparation would not have prejudiced Davner, there was no guarantee that the trial court would have granted a continuance. The trial court had already continued the trial date once.
Conclusion
{|60} Davner‘s first assignment of error is sustained. We reverse the trial court‘s judgment, vacate his guilty pleas and remand the case for further proceedings.
{|61} Based on our resolution of Davner‘s first assignment of error, his second assignment of error is moot.
{|62} Judgment reversed; case remanded.
It is ordered that appellant recover from appellee the 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
EILEEN A. GALLAGHER, PRESIDING JUDGE
MARY J. BOYLE, J., CONCURS;
EILEEN T. GALLAGHER, J., DISSENTS
EILEEN T. GALLAGHER, J., DISSENTING:
{|63} I respectfully dissent from the majority‘s finding that Davner‘s plea was not knowingly, intelligently, and voluntarily made.
{|64} I recognize that this court has previously held that a guilty plea may be invalid where the defendant is given misinformation regarding judicial release. State v. Williams, 8th Dist. Cuyahoga Nos. 104078 and 104849, 2017-Ohio-2650; State v. Ealom, 8th Dist. Cuyahoga No. 91455, 2009-Ohio-1365; See also State v. Persons, 4th Dist. Meigs No. 02CA6, 2003-Ohio-4213. However, I do not find Williams, Ealom, or Persons to be applicable to the facts of this case. In Williams, Ealom, and Persons, the inaccurate misstatements of law that caused the defendants to believe that they were eligible for judicial release occurred on the record during the plea proceedings. In addition, in each case, the trial court contributed to the defendant‘s misunderstanding by making its own inaccurate statements on the record.
{|66} Under these circumstances, it is my belief that the majority‘s holding improperly relies on Davner‘s self-serving testimony and conversations that are not part of this record. As this court has held, “[a] self-serving affidavit by the moving party is generally insufficient to demonstrate manifest injustice.” Richmond Hts. v. McEllen, 8th Dist. Cuyahoga No. 99281, 2013-Ohio-3151, 14, citing State v. Simmons, 8th Dist. Cuyahoga No. 91062, 2009-Ohio-2028, 30. See also State v. Yearby, 8th Dist. Cuyahoga No. 79000, 2002 Ohio App. LEXIS 199 (Jan. 24, 2002) (When a defendant asserts that his guilty plea was involuntary, “a record reflecting compliance with
{|67} In this case, the trial court engaged in a comprehensive
{|68} For the foregoing reasons, I would find that Davner has not presented credible evidence that he was induced to enter a guilty plea based on trial counsel‘s erroneous representations as to the applicable law. Accordingly, I would affirm the trial court‘s judgment denying Davner‘s motion to withdraw his guilty plea.