STATE OF OHIO, PLAINTIFF-APPELLEE vs. ALBERT D. DAVIS, DEFENDANT-APPELLANT
No. 95016
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
May 26, 2011
2011-Ohio-2514
Case No. CR-533246
RELEASED AND JOURNALIZED: May 26, 2011
ATTORNEY FOR APPELLANT
Robert A. Dixon
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: W. Mona Scott
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
JOURNAL ENTRY AND OPINION
PATRICIA ANN BLACKMON, P.J.:
{¶ 1} Appellant Albert D. Davis appeals the trial court‘s denial of his post-sentence motion to withdraw his guilty pleas and assigns the following error for our review:
“The appellant‘s plea of guilty must be vacated as it was not entered with full advice of the consequences as
required by Crim.R. 11 and the Due Process Clause of the Constitution of the United States.”
{¶ 2} Having reviewed the record and pertinent law, we affirm the trial court‘s decision. The apposite facts follow.
{¶ 3} On January 25, 2010, the Cuyahoga County Grаnd Jury indicted Davis on one count of failure to comply with an order or signal of a police officer; a risk of serious physical harm specification was attached. The grand jury also indicted Davis on two counts of assault of a peace officer and one count of resisting arrest. On January 28, 2010, Davis pleaded not guilty at his arraignment, several pretrials were conduсted, and the matter was subsequently scheduled for trial.
{¶ 4} On March 24, 2010, the date scheduled for trial, after an agreement with the state, Davis withdrew his not guilty pleas, and pleaded guilty to failure to comply with an order or signal of a police officer, that included the risk of serious physical harm specification. Davis also pleaded guilty to one count of assault of a peacе officer, and the state dismissed the remaining two charges.
{¶ 5} On April 19, 2010, the trial court sentenced Davis to a prison term of two years for failure to comply with an order or signal of a policе officer and one year for assault on a peace officer. The trial court ordered
{¶ 6} On April 22, 2010, Davis filed a pro se motion to withdraw his guilty pleas, which the trial court denied, and Davis now appeals.
Post-Sentence Withdrawal of Guilty Plea
{¶ 7} In the sole assigned error, Davis argues his guilty pleas were not knowingly, intelligently, and voluntarily made, because the trial court failed to advise him that the imposition of the mandatory lifetime driver‘s license suspension could result in him not having оccupational driving privileges.
{¶ 8} Preliminarily, we note that the instant appeal involves a post-sentence motion to withdraw a guilty plea. Pursuant to
{¶ 9} “Manifest injustice” is an extremely high standard that permits the court to allow a plea withdrawal only in “extraordinary casеs.” State v. Malone, Cuyahoga App. No. 91439, 2009-Ohio-1364, citing State v. Herrera, 3d Dist. No. 1-01-126, 2001-Ohio-2341. A manifest injustice is defined as a “clear or openly unjust act.” State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 1998-Ohio-271, 699 N.E.2d 83. Other courts have referred to it as “an extraordinary and fundamental flaw in the plea proceeding .” State v. Lintner, 7th Dist. No. 732, 2001-Ohio-3360; State v. Wheeler, 2d Dist. No. 18717, 2002-Ohio-284.
{¶ 10} A post-sentence motion to vacate a guilty plea is addressed to the sound discretion of the trial court and an appellate court‘s review of a trial court‘s denial of a post-sentence motion to withdraw a guilty plea is limited to a determination of whether the trial court abused its discretion. State v. Blatnik (1984), 17 Ohio App.3d 201, 202, 478 N.E.2d 1016. The term “abuse of discretion” connotes more than an error of law or judgment; it implies that the court‘s decision is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. Absent an abuse of discretion on the part of the trial court in making the ruling, its decision must be affirmed. State v. Xie (1992), 62 Ohio St.3d 521, 527, 584 N.E.2d 715.
{¶ 11} We have found no evidеnce that a manifest injustice occurred. The record indicates that the trial court fully informed Davis of his
{¶ 12} Nonetheless, Davis asserts that his guilty pleas were rendered unknowingly and involuntarily by the fact that the trial court did not advisе him that he faced the possibility that he would be denied occupational driving privileges upon his release from prison. We are not persuaded.
{¶ 13} The underlying purpose of
{¶ 14}
“(a) 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 eligiblе for probation or for the imposition of community control sanctions at the sentencing hearing.
“(b) 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.
“(c) 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 thе 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.”
{¶ 15} A trial court must strictly comply with the
{¶ 16} With respect to the nonconstitutional requirements of
{¶ 17} Further, a defendant must show prejudice before a plea will be vacated for a trial court‘s error involving
{¶ 18} In the instant case, despite Davis‘s present assertions, a review of the record indicates a textbook adherence to the requirements of
{¶ 19} Davis also affirmatively expressed that he understood the nature of the charge and the maximum penalty the court could impose including that he could go to prison for up to five years. In addition, Davis indicated he was not under the influencе of drugs, alcohol, or medication that affected his judgment. Further, Davis stated that no threats or promises had been made to induce his plea and that he was satisfied with his representation.
{¶ 20} Finаlly, pertinent to Davis‘s post-sentence assertions, the following exchange took place:
“The Court: In this matter there‘s also a mandatory driver‘s license suspension. And my understanding is that you prеviously had a conviction under this section in Case 449998 with [another trial judge] in 2004.
The Defendant: Yes.
The Court: Do you recall that?
The Defendant: Yes, sir.
The Court: That would mean then by law that you would have a Class 1 mandatory driver‘s license suspension; do you understand that?
The Defendant: Yes.” Tr. 17.
{¶ 22} Finally, Davis‘s defense counsel indicated that he had discussed the consequences of the mandatory lifetime driver‘s license suspension with Davis and that Davis understood. Tr. 9. Thus, Davis has failed to establish any prejudice resulting from the alleged lack of information. Consequently, the trial court did not abuse its discretion in denying his post-sentence motion to withdraw his guilty pleas. Accordingly, we overrule the sole assigned error.
Judgment affirmed.
It is ordered that appellee recover of appellant its costs herein taxed.
The court finds there were rеasonable grounds for this appeal.
It is ordered that a special mandate be sent to said court to carry this judgment into execution. The defendant‘s conviction having been affirmed,
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
PATRICIA ANN BLACKMON, PRESIDING JUDGE
MELODY J. STEWART, J., and JAMES J. SWEENEY, J., CONCUR