State v. DavidsonState v. Davidson
For Plaintiff-Appellee
GERALD V. ANDERSON, II
27 North Fifth Street
P.O. Box 189
Zanesville, OH 43702-0189
For Defendant-Appellant
JIMMY DAVIDSON, Pro Se
Inmate No. A723-635
Noble Correctional Institution
15708 McConnelsville Road
Caldwell, OH 43724
{¶ 1} Defendant-Appellant, Jimmy Davidson, appeals the February 6, 2017 judgment entry of the Court of Common Pleas of Muskingum County, Ohio, denying his motion to withdraw his guilty plea. Plaintiff-Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶ 2} On July 29, 2015, the Muskingum County Grand Jury indicted appellant on three counts of trafficking in drugs (cocaine) in violation of
{¶ 3} On January 11, 2016, appellant pled guilty to two of the trafficking counts, one a felony in the first degree and one a felony in the third degree, and one of the corrupting counts, a felony in the second degree. By entry filed March 3, 2016, the trial court sentenced appellant to an aggregate term of four years in prison.
{¶ 4} On February 2, 2017, appellant filed a pro se motion to withdraw his guilty plea, claiming his counsel created a manifest injustice in his case because there was no evidence that the weight of the actual cocaine met the statutory threshold for enhancement. By journal entry filed February 6, 2017, the trial court denied the motion.
{¶ 5} Appellant filed an appeal and this matter is now before this court for consideration. Assignments of error are as follows:
I
{¶ 6} “APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL DUE TO DEFENSE COUNSEL‘S ERRONEOUS ADVICE THAT HE ENTER GUILTY PLEAS TO ENHANCED-DEGREE FELONIES FOR TRAFFICKING IN DRUGS
II
{¶ 7} “THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT DENIED APPELLANT[‘S] MOTION TO WITHDRAW HIS GUILTY PLEA WHEN A CLEAR MANIFEST INJUSTICE HAD BEEN SHOWN BY THE RECORD AND DOCUMENTATION.”
I
{¶ 8} In his first assignment of error, appellant claims his trial counsel was ineffective by giving him erroneous advice regarding his guilty pleas. We disagree.
{¶ 9} The standard this issue must be measured against is set out in State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus. Appellant must establish the following:
2. Counsel‘s performance will not be deemed ineffective unless and until counsel‘s performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel‘s performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2 O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)
3. To show that a defendant has been prejudiced by counsel‘s deficient performance, the defendant must prove that there exists a
reasonable probability that, were it not for counsel‘s errors, the result of the trial would have been different.
{¶ 10} Appellant was charged with three counts of trafficking in drugs, two counts of corrupting another with drugs, and two counts of possession of drugs. He pled guilty to two of the trafficking counts, one in the first degree (exceeds twenty-seven grams but less than one hundred grams) and one in the third degree (exceeds ten grams but less than twenty grams), and one of the corrupting counts, a felony in the second degree. Three offenses in the second degree and one offense in the fifth degree were dismissed. By entry filed March 3, 2016, the trial court sentenced appellant to concurrent sentences for an aggregate term of four years in prison.
{¶ 11} Appellant argues his trial counsel “failed to appraised (sic) him of the correct statutory weight thresholds of the trafficking in drugs offenses in
{¶ 12} In support of his argument, appellant cites the case of State v. Gonzales, ___ Ohio St.3d ___, 2016-Ohio-8319, ___ N.E.3d ___ (“Gonzales I“), ¶ 22, wherein the Supreme Court of Ohio held: “[I]n prosecuting cocaine-possession offenses under
{¶ 14} While the Gonzales cases involved possession offenses under
{¶ 15} Appellant pled guilty on January 11, 2016. The opinion in Gonzales I was filed on December 23, 2016, over eleven months after appellant‘s plea. Appellant‘s trial counsel did not have the benefit of the Gonzales I opinion when he counseled appellant on the plea. Furthermore, as noted, the Gonzales I opinion was reversed on reconsideration.
{¶ 16} Appellant also seems to make a specious argument that he was prejudiced when he received a five year prison term on his second degree felony offense (corrupting another with drugs). Appellant‘s Brief at 7. A review of the trial court‘s March 3, 2016 sentencing entry indicates appellant received a four year term which was ordered to be served concurrently with the other sentences, including the other four year term for trafficking.
In the absence of a transcript, “this court must presume the regularity of the hearing.” State v. Smith, 11th Dist. No. 2007-T-0076, 2008-Ohio-1501, ¶ 20. Where the transcript of the guilty plea hearing is not available, a reviewing court “cannot adequately determine whether appellant fully understood the sentencing consequences of his guilty plea, or what effect the alleged misinformation would have had on his guilty plea,” and therefore the court “cannot conclude that a manifest injustice has occurred.” State v. Mack, 11th Dist. No. 2005-P-0033, 2006-Ohio-1694, ¶ 19.
{¶ 18} Upon review, we do not find any ineffective assistance of counsel.
{¶ 19} Assignment of Error I is denied.
II
{¶ 20} In his second assignment of error, appellant claims the trial court erred in denying his motion to withdraw his guilty pleas. We disagree.
{¶ 21}
{¶ 22} In State v. Minkner, 2d Dist. Champaign No. 2009 CA 16, 2009-Ohio-5625, ¶ 25, our brethren from the Second District explained “manifest injustice” as follows:
A defendant who files a post-sentence motion to withdraw his guilty plea thus bears the burden of establishing a “manifest injustice.” State v. Smith (1977), 49 Ohio St.2d 261, paragraph one of the syllabus; State v. Milbrandt, Champaign App. No. 2007-CA-3, 2008-Ohio-761, at ¶ 8. A manifest injustice has been defined as “a clear or openly unjust act” that involves “extraordinary circumstances.” State v. Stewart, Greene App. No. 2003-CA-28, 2004-Ohio-3574, at ¶ 6. “[A] ‘manifest injustice’ comprehends a fundamental flaw in the path of justice so extraordinary that the defendant could not have sought redress from the resulting prejudice through another form of application reasonably available to him or her.” State v. Hartzell (Aug. 20, 1999), Montgomery App. No. 17499. ”
Crim.R. 32.1 requires a defendant making a postsentence motion to withdraw a plea to demonstrate manifest injustice because it is designed ‘to discourage a defendant from pleading guilty to test the weight ofpotential reprisal, and later withdraw the plea if the sentence was unexpectedly severe.’ ” State v. Boswell, 121 Ohio St.3d 575, 2009-Ohio-1577, at ¶ 9, quoting State v. Caraballo (1985), 17 Ohio St.3d 66, 67.
{¶ 23} “Manifest injustice” relates to some “fundamental flaw in the proceedings which result in a miscarriage of justice or is inconsistent with the demands of due process.” State v. Wooden, 10th Dist. Franklin No. 03AP-368, 2004-Ohio-588, ¶ 10, quoting State v. Hall, 10th Dist. Franklin No. 03AP-433, 2003-Ohio-6939, ¶ 12.
{¶ 24} Appellant‘s arguments herein are the same arguments addressed in Assignment of Error I: “he was given incorrect legal advice by retained counsel and not appraised (sic) of ineffective assistance of counsel when counsel did not make Appellant aware of the correct statutory weight thresholds of the drug possession offenses in
{¶ 25} Based upon our opinion in Assignment of Error I, we reject the arguments under this assignment of error.
{¶ 26} Appellant also argues the trial court should have held a hearing on his motion to withdraw his guilty pleas. As stated by this court in State v. Walsh, 5th Dist. Licking No. 14-CA-110, 2015-Ohio-4135, ¶ 24:
A trial court is not automatically required to hold a hearing on a post-sentence motion to withdraw a guilty plea. State v. Spivakov, 10th Dist. No. 13AP-32, 2013-Ohio-3343. A hearing must only be held if the
facts alleged by the defendant, accepted as true, would require that the defendant be allowed to withdraw the plea. State v. Harris, 5th Dist. Coshocton No. 2013CA0013, 2014-Ohio-2633. Generally, a self-serving affidavit or statement is insufficient to demonstrate manifest injustice. State v. Aleshire, 5th Dist. Licking No. 2011-CA-73, 2012-Ohio-16. Further, a hearing is not required if the record indicates that the movant is not entitled to relief and the movant has failed to submit evidentiary documents sufficient to demonstrate a manifest injustice. State v. Cargill, 9th Dist. Summit No. 27590, 27011, 2015-Ohio-661.
{¶ 27} In the absence of a transcript of the plea hearing, and because the allegations made in the motion to withdraw were insufficient to demonstrate a manifest injustice, we find the trial court did not abuse its discretion in ruling on the motion without conducting a hearing. Smith, supra, 49 Ohio St.2d 261.
{¶ 28} Upon review, we find the trial court did not abuse its discretion in denying appellant‘s motion to withdraw his guilty pleas.
{¶ 29} Assignment of Error II is denied.
By Wise, Earle, J.
Hoffman, P.J. and
Wise, John, J. concur.
EEW/sg 410