Stаte of Ohio, Plaintiff-Appellee, v. Bradford S. Davic, Defendant-Appellant.
No. 19AP-579 (C.P.C. No. 10CR-6766)
IN THE COURT OF APPEALS OF OHIO TENTH APPELLATE DISTRICT
January 21, 2121
[Cite as State v. Davic, 2021-Ohio-131.]
KLATT, J.
(REGULAR CALENDAR)
D E C I S I O N
Rendered on January 21, 2121
On brief: [G. Gary Tyack], Prosecuting Attorney, and Seth L. Gilbert, for appellee.
On brief: Bradford S. Davic, pro se.
APPEAL from the Franklin County Court of Common
KLATT, J.
{¶ 1} Defendant-appellant, Bradford S. Davic, appeals from a judgment of the Franklin County Court of Common Pleas denying his “Motion to Vacate Void Plea Agreement.” For the following reasons, we affirm.
{¶ 2} This court has reviewed appellant‘s case in four prior decisions authored by four different judges. See State v. Davic, 10th Dist. No. 11AP-555, 2012-Ohio-952 (”Davic I“), appeal not accepted, 132 Ohio St.3d 1482, 2012-Ohio-3334; State v. Davic, 10th Dist. No. 15AP-1000, 2016-Ohio-4883 (”Davic II“), appeal not accepted, 147 Ohio St.3d 1508, 2017-Ohio-261; State v. Davic, 10th Dist. No. 17AP-354 (Dec. 26, 2017) (memorandum decision) (”Davic III“); State v. Davic, 10th Dist. No. 18AP-569, 2019-Ohio-1320 (”Davic IV“), appeal not accepted, 156 Ohio St.3d 1478, 2019-Ohio-3148. From these decisions, we extract the pertinent factual and procedural history of this case.
{¶ 3} On April 13, 2011, appellant pled guilty to four counts of rape, оne count of importuning, and one count of gross sexual imposition. The guilty plea arose from a sexual encounter appellant arranged with a 12-year-old girl. Based on his plea, the trial court sentenced appellant to ten years to life on each of the four rape counts, eight years on the importuning count, and five years on the gross sexual imposition count. The court ordered the sentences for the four rape counts to be served consecutively to each other and concurrently to the sentences on the importuning and gross sexual imposition counts. Because the rape victim was less than 13 years old, the sentence on each of the rape counts carried a lifetime of incarceration. Appellant‘s aggregate sentence was 40 years to life. The trial court memorialized its judgment and sentence on May 24, 2011.
{¶ 4} Appellant, through counsel, timely appealed his conviction and sentence, arguing that (1) his guilty plea was not entered knowingly, voluntarily, and intelligently because he misunderstood the terms of the plea agreement regarding his sentence, and (2) the trial court abused its discretion by imposing consecutive sentences on the rape counts. This court rejected both arguments, concluding that appellant failed to establish that he did not understand the sentence he was facing when the trial court accepted his guilty plea and that the trial court did not abuse its discretion in failing to merge the rape offenses. Davic I at ¶ 7-11.
{¶ 6} Meanwhile, on August 6, 2015, appellant, pro se, moved for resentencing, arguing that his sentence was void because the trial court failed to advise him at the sentencing hearing that he would be (1) classified a Tier III sex offender, and (2) subject to mandatory post-release control. The trial court denied the motion; аppellant appealed. This court affirmed, finding that because the trial court properly advised appellant of those matters, his sentence was not void. Davic II at ¶ 5, 19, 24.
{¶ 7} On April 26, 2017, the trial court denied appellant‘s November 2014 motion to correct the judgment entry. Appellant appealed, arguing that the judgment entry was never properly journalized because it failed to include his Tier III sex offender classification and, as a result, the entry was not a final appealable order. Therefore, argued appellant, this court lacked jurisdiction to consider his appeal in Davic I. We acknowledged that the trial court did not expressly journalize appellant‘s sex offender classification; however, we concluded that because appellant had been notified of said classification at the sentencing hearing, the failure to journalize it was not a substantive error. As such, the order was final and correctible by nunc pro tunc entry. Davic III at ¶ 9-18. We further noted the trial court‘s inaccurate statement in the judgment entry that appellant had been notified of his sex offender classification during the plea hearing, when, in fact, the first mention of the classification occurred at sentencing. Id. at ¶ 19. We fоund the error to be harmless given appellant‘s failure to allege that he would not have entered into the plea agreement but for the trial court‘s failure to provide him with notification at the plea hearing. However, we remanded the matter to the trial court to issue a nunc pro tunc sentеncing entry to accurately reflect appellant‘s classification as a Tier III sex offender and remove the inaccurate statement that the trial court advised him of that classification during the plea hearing. Id. at ¶ 22.
{¶ 8} The trial court issued a nunc pro tunc entry in accordance with our remand оrder. On May 24, 2018, appellant filed a pro se motion asserting that the original judgment entry of May 24, 2011 was not a final appealable order because the trial court failed to impose separate sex offender classifications and terms of post-release control on each of the counts for which he was convicted. Following the trial court‘s denial of that motion, appellant argued on appeal that res judicata was inapplicable because the trial court‘s errors rendered the original judgment entry void, making our decisions in Davic I, II, and III legally invalid. This court found no error in the trial court‘s blanket notifications regarding the sex offender classification and post-release control. We further found “[appellant‘s] judgment of conviction is not void in whole or in part and thus there is no effect to the validity of our prior appellate judgments concerning his sentence.” Davic IV at ¶ 16.
{¶ 9} On April 2, 2019, appellant, pro se, filed in the trial court the motion that is the subject of the present appeal. In this filing, captioned as “Motion to Vacate Void Plea Agreement,” appellant claimed that his plea agreement was void because the trial court failed to advise him at the plea hеaring that he would be (1) sentenced to consecutive prison terms on the rape counts, (2) classified as a Tier III sex offender, and (3) subject to five years’
{¶ 10} Appellant appeals and advances the following nine assignments of error for our review:
[I]. The trial erred in construing Davic‘s Mоtion to Vacate Void Plea Agreement as a motion to withdraw his plea, and denying the motion on that basis, in violation of his Due Process protections under the Fifth and Fourteenth Amendments to the U.S. Constitution and Article I, Section § 10 of the Ohio Constitution.
[II]. Where the trial court failed to inform Davic that the four counts оf rape to which he would plead guilty carried mandatory consecutive sentences pursuant to
R.C. 2971.03(E) , his plea was not entered knowingly, intelligently, and voluntarily, which violated his Due Process protections under the Fifth and Fourteenth Amendments to the U.S. Constitution and Article I, Section § 10 of the Ohio Constitution.[III]. Where the trial court failed to inform Davic that one of the consequences of his pleading guilty would be lifetime registration as a Tier III sex offender, his plea was not entered knowingly, intelligently, and voluntarily, which violated his Due Process protections under the Fifth and Fourteenth Amendments to the U.S. Constitution and Article I, Section § 10 of thе Ohio Constitution.
[IV]. Where the trial court failed to personally inform Davic that one of the consequences of his pleading guilty would be a mandatory five-year term of post-release control, his plea was not entered knowingly, intelligently, and voluntarily, which violated his Due Process protections under thе Fifth and Fourteenth Amendments to the U.S. Constitution and Article I, Section § 10 of the Ohio Constitution.
[V]. The trial court erred in finding Davic‘s guilty plea to be voidable, not void, violating Davic‘s Due Process protections under the Fifth and Fourteenth Amendments to the U.S. Constitution and Article I, Section § 10 of the Ohio Constitution.
[VI]. Davic‘s plea agreement did not constitute a valid, enforceable contract, in violation of his Due Process protections under the Fifth and Fourteenth Amendments to the U.S. Constitution and Article I, Section § 10 of the Ohio Constitution.
[VII]. The trial court erred in using res judicata to deny Davic‘s Motion to Vacate Void Plea Agreement, violating his Due Process protections under the Fifth and Fourteenth Amendments to the U.S. Constitution and Article I, Section § 10 of the Ohio Constitution.
[VIII]. Davic received ineffective assistance of trial counsel in violation of the Sixth Amendment to the U.S. Constitution and Article I, Section § 10 of the Ohio Constitution.
[IX]. The trial court erred in dismissing Davic‘s Motion tо Vacate Void Plea Agreement without first holding an evidentiary hearing, violating his Due Process protections under the Fourteenth Amendment to the U.S. Constitution and
Article I, Section § 10 of the Ohio Constitution.
{¶ 11} Appellant‘s first assignment of error contends that the trial court erred in construing his “Motion to Vacate Void Plea Agreement” as a
{¶ 12} Appellant having acknowledged the trial court‘s proper characterization of his motion as a
” ‘Manifest injustice relates to some fundamental flaw in thе proceedings which result[s] in a miscarriage of justice or is inconsistent with the demands of due process.’ ” Id. at ¶ 6, quoting Williams at ¶ 5. Under the manifest injustice standard, a post-sentence motion to withdraw a guilty plea is available only in extraordinary circumstances. State v. Honaker, 10th Dist. No. 04AP-146, 2004-Ohio-6256, ¶ 7, citing State v. Smith, 49 Ohio St.2d 261, 264 (1977).
{¶ 13} A
{¶ 14} However, an appellate court reviews questions of law, including whether a trial court has subjеct-matter jurisdiction to consider a motion to withdraw a guilty plea, under a de novo standard. State v. West, 10th Dist. No. 15AP-858, 2016-Ohio-7864, ¶ 23. Moreover, an appellate court may sua sponte review a trial court‘s jurisdiction to entertain a motion to withdraw a plea. State v. Vild, 8th Dist. No. 87742, 2007-Ohio-987, ¶ 12.
{¶ 15} Appellant‘s second through ninth assignments of error are interrelated and will be considered together. In them, appellant asserts that the trial court committed various errors related to the denial of his motion to withdraw his guilty plea. For the following reasons, we conclude that the trial court lacked subject-matter jurisdiction to consider appellant‘s motion.
{¶ 16} The Supreme Court of Ohio has determined that ”
{¶ 17} In his reply brief, appellant acknowledges Special Prosecutors, but argues that it does not apply to his case.
{¶ 18} Moreover, the premise underlying appellant‘s jurisdictional argument, i.e., that his guilty plea was void because the trial court failed to comply with the
{¶ 19} Secondly, appellant claims that the holding in Special Prosecutors “was overturned, or at least amended, in State v. Davis, 131 Ohio St. 3d 1 (2011).” (Appellant‘s Reply Brief at 7.) In State v. Davis, 131 Ohio St.3d 1 (2011), the Supreme Court of Ohio stated that “the holding in Special Prosecutors does not bar the trial court‘s jurisdiction over posttrial motions permitted by the Ohio Rules of Criminal Procedure. These motions provide a safety net for defendants who have reasonable grounds to challenge their convictions and sentences.” Id. at ¶ 37. Appellant seizes upon this language in arguing, without сitation to any authority, that “there is no reason the holding would not apply equally to a
{¶ 20} As appellant acknowledges, Davis involved a post-trial, post-appeal motion for a nеw trial under
{¶ 21} We further note that the Supreme Court of Ohio decided Davis prior to our decision in Enyart, wherein, as previously mentioned, we applied Special Prosecutors in concluding that a trial court lacks jurisdiction to consider a
{¶ 22} Given the discussion in Dixon, the Enyart court‘s reliance on Special Prosecutors and failure to extend Davis to
{¶ 23} As mentioned above, this court affirmed appellant‘s conviction and sentence on direct appeal. Davic I. In light of the decision of the Supreme Court in Special Prosecutors and the decision of this court in Enyart, the trial court did not have jurisdiction over appellant‘s motion to withdraw his guilty plea because this сourt previously affirmed appellant‘s conviction and sentence based on that plea.
{¶ 24} For the foregoing reasons, we find that the trial court did not err in denying appellant‘s motion to withdraw his guilty plea, albeit for reasons different than those articulated by the trial court. Appellant‘s second through ninth assignments of error are overruled.
{¶ 25} Appellant‘s first assignment of error having been withdrawn, and his second through ninth assignments of error having been overruled, we hereby affirm the judgment of the Franklin County Court of Common Pleas.
Judgment affirmed.
BROWN and BEATTY BLUNT, JJ., concur.