STATE OF OHIO, Plaintiff-Appellee -vs- BRANDON DAVIS, Defendant-Appellant
Case No. 15CA6
COURT OF APPEALS RICHLAND COUNTY, OHIO FIFTH APPELLATE DISTRICT
December 10, 2015
[Cite as State v. Davis, 2015-Ohio-5196.]
Hon. W. Scott Gwin, P.J., Hon. Patricia A. Delaney, J., Hon. Craig R. Baldwin, J.
CHARACTER OF PROCEEDING: Appeal from the Richland County Court of Common Pleas, Case No. 2014CR07040. JUDGMENT: AFFIRMED.
For Plaintiff-Appellee: BAMBI COUCH PAGE, RICHLAND CO. PROSECUTOR, 38 South Park St., Mansfield, OH 44902
For Defendant-Appellant: JEFFREY P. URICH, P.O. Box 1977, Westerville, OH 43086
{¶1} Appellant Brandon Davis appeals from the January 6, 2015 Sentencing Entry of the Richland County Court of Common Pleas. Appellee is the state of Ohio.
FACTS AND PROCEDURAL HISTORY
{¶2} The following facts are adduced from the trial court record, including the criminal complaint, affidavit, and police report filed in the Mansfield Municipal Court prior to bindover to the Richland County Court of Common Pleas.
{¶3} On October 11, 2014, officers were dispatched to a residential address in Mansfield, Ohio, where they found the victim with blood on her shirt and a bloody nose. The victim and appellant have children together. The victim told police she and appellant argued over photos she found on his phone. Appellant had been drinking.
{¶4} Appellant pushed the victim and punched her in the face. When her 9-year-old son attempted to intervene, appellant pushed him onto a couch and threatened to “kick [his] ass.” The victim attempted to lock herself in the bathroom but appellant knocked the door off the hinges. Police photographed the victim‘s apparent physical injuries.
{¶5} The affidavit accompanying the criminal complaint states in part, “[Appellant] was convicted of Menacing M-4, where the Victim was a family or household member in 2008. (2008CRB05450). A felony Domestic Violence warrant was typed for [appellant], which was served on him at [the Richland County Sheriff‘s Office].”
{¶7} The charge was subsequently amended to menacing, a misdemeanor of the fourth degree pursuant to City of Mansfield Ordinance No. 537.06, and appellant entered a plea of guilty to the amended charge on February 3, 2009.
{¶8} In the case sub judice, appellant waived his right to a preliminary hearing in municipal court and was bound over to the Court of Common Pleas. On November 6, 2014, he was charged by indictment with one count of domestic violence, a felony of the fourth degree pursuant to
{¶9} Three days later, appellant filed a Motion to Vacate Plea stating his prior conviction was not a domestic violence offense because the victim in the 2008 case was not a “family or household member,” therefore the offense in the instant case
{¶10} Appellant appeared before the trial court on January 5, 2015. The trial court overruled his motion to withdraw his guilty plea and sentenced appellant to a 4-year term of community control.
{¶11} Appellant now appeals from the trial court‘s Sentencing Entry of January 6, 2015 and incorporates the trial court‘s Judgment Entry of January 6, 2015 overruling his motion to withdraw his guilty plea.
{¶12} Appellant raises two assignments of error:
ASSIGNMENTS OF ERROR
{¶13} “I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED THE RESENTENCE MOTION TO VACATE GUILTY PLEA FILED BY DEFENDANT WHEN THERE WAS A FAIR AND JUST REASON FOR VACATING SAID PLEA.”
{¶14} “II. TRIAL COUNSEL FOR DEFENDANT WAS INEFFECTIVE AND VIOLATED HIS 6TH AMENDMENT RIGHT TO EFFECTIVE COUNSEL AND FAIR TRIAL BY FAILING TO VERIFY, PRIOR TO DEFENDANT‘S CHANGE OF PLEA HEARING, WHETHER THERE WAS A SUFFICIENT PREDICATE OFFENSE TO
ANALYSIS
I.
{¶15} In his first assignment of error, appellant argues the trial court should have allowed him to withdraw his guilty plea. We disagree.
{¶16}
{¶17} The trial court‘s decision to grant or deny a motion to withdraw a guilty plea is vested within the sound discretion of the court, and will not be reversed by an appellate court unless the trial court abused its discretion. Xie, supra, at paragraph two of the syllabus. In order to find an abuse of discretion, the reviewing court must determine that the trial court‘s decision was unreasonable, arbitrary, or unconscionable and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).
{¶19} In reviewing a trial court‘s decision regarding a motion to withdraw a guilty plea, the court in State v. Fish set forth a non-exhaustive list of factors to be weighed. 104 Ohio App.3d 236, 240, 661 N.E.2d 788 (1st Dist.1995). These factors include: (1) whether the prosecution would be prejudiced if the plea was vacated; (2) whether the accused was represented by highly competent counsel; (3) whether the accused was given a full
{¶20} In the instant case, appellant moved to withdraw his guilty plea in a summary motion stating, “[Appellant‘s] prior misdemeanor was not a Domestic Violence because the victim did not constitute as a family member (sic) under
{¶21}
(D)(1) Whoever violates [
R.C. 2919.25 ] is guilty of domestic violence, and the court shall sentence the offender as provided in divisions (D)(2) to (6) of this section.(2) Except as otherwise provided in divisions (D)(3) to (5) of this section, a violation of division (C) of this section is a misdemeanor of the fourth degree, and a violation of division (A) or (B) of this section is a misdemeanor of the first degree.
(3) Except as otherwise provided in division (D)(4) of this section, if the offender previously has pleaded guilty to or been convicted of domestic violence, a violation of an existing or former municipal ordinance or law of this or any other state or the United States that is substantially similar to domestic violence, a violation of section
2903.14 ,2909.06 ,2909.07 ,2911. 12 ,2911.211 , or2919.22 of theRevised Code if the victim of the violation was a family or household member at the time of the violation, a violation of an existing or former municipal ordinance or law of this or anyother state or the United States that is substantially similar to any of those sections if the victim of the violation was a family or household member at the time of the commission of the violation, or any offense of violence if the victim of the offense was a family or household member at the time of the commission of the offense, a violation of division (A) or (B) of this section is a felony of the fourth degree * * *. (Emphasis added.)
{¶22} In this case, appellant‘s prior conviction is of menacing, a violation of Mansfield Codified Ordinance 537.06. Although the record and the parties’ arguments are devoid of the text of this ordinance, it states:
(a) No person shall knowingly cause another to believe that the offender will cause physical harm to the person or property of the other person, the other person‘s unborn, or a member of the other person‘s immediate family. In addition to any other basis for the other person‘s belief that the offender will cause physical harm to the person or property of the other person, the other person‘s unborn, or a member of the other person‘s immediately family, the other person‘s belief may be based on words or conduct of the offender that are directed at or identify a corporation, association or other organization that employs the other person or to which the other person belongs.
(b) Whoever violates this section is guilty of menacing. Except as otherwise provided in this subsection (b), menacing is a
misdemeanor of the fourth degree. If the victim of the offense is an officer or employee of a public children services agency or a private child placing agency and the offense relates to the officer‘s or employee‘s performance or anticipated performance of official responsibilities or duties, or, if the offender previously has been convicted of or pleaded guilty to an offense of violence, the victim of that prior offense was an officer or employee of a public children services agency or private child placing agency, and that prior offense related to the officer‘s or employee‘s performance or anticipated performance of official responsibilities or duties, menacing is a felony and shall be prosecuted under appropriate State law. (c) As used in this section, “organization” includes an entity that is a governmental employer. (
ORC 2903.22 )
{¶23} The ordinance is thus identical to the wording of
{¶24} In the instant case, appellant does not indicate which of the Fish factors should have led the trial court to allow him to withdraw his plea. In fact, appellant acknowledges “[t]here is no indication that [appellant] was proclaiming his innocence of the offense—rather the issue was solely whether there was a sufficient factual basis (relating to the predicate offense) as to whether the domestic violence offense should have been charged as a misdemeanor instead of a felony.” (Appellant‘s brief, 4.) The evidence before the court at the hearing on appellant‘s motion to withdraw his plea consisted of the police report of the 2008 incident stating “The victim and the suspect lived together for three years.” The victim in the 2008 case is also the victim in the instant case. No additional evidence was taken to prove or disprove this statement, and we note appellant pled guilty to the amended charge of menacing and did not appeal from that conviction.
{¶26} Appellant makes no further claim that any of the Fish factors are present. Because appellant‘s argument regarding the underlying menacing conviction is without merit, the trial court did not abuse its discretion in refusing to permit appellant to withdraw his plea of guilty.
{¶27} Appellant‘s first assignment of error is overruled.
II.
{¶28} In his second assignment of error, appellant argues he received ineffective assistance of counsel because trial counsel did not sufficiently investigate the circumstances of the underlying menacing conviction. We disagree.
{¶29} To succeed on a claim of ineffectiveness, a defendant must satisfy a two-prong test. Initially, a defendant must show that trial counsel acted incompetently. See, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such claims, “a court must indulge a strong presumption that counsel‘s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action ‘might
{¶30} “There are countless ways to provide effective assistance in any given case. Even the best criminal defense attorneys would not defend a particular client in the same way.” Strickland, 466 U.S. at 689. The question is whether counsel acted “outside the wide range of professionally competent assistance.” Id. at 690.
{¶31} Even if a defendant shows that counsel was incompetent, the defendant must then satisfy the second prong of the Strickland test. Under this “actual prejudice” prong, the defendant must show that “there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. We have previously found an ineffective assistance claim is cognizable in regard to an attorney‘s performance in connection with a presentence
{¶32} Appellant argues trial counsel was ineffective in failing to raise the “family or household member” issue with regard to the menacing conviction. As we have noted, the victim is the same victim in both cases. The parties have children together. The 2008 police report indicates at that point the parties had lived together for three years and the earlier offense was originally charged as domestic violence. Appellant has not revealed what evidence supports his allegation the same victim was not a “family or household member” in 2008.
{¶33} Additionally, in light of our decision supra that the menacing conviction does enhance the level of the instant offense, counsel did not err in failing to raise the
{¶34} Appellant argues he was prejudiced because had counsel investigated the menacing conviction, the instant offense would be a misdemeanor and not a felony. The record does not support appellant‘s argument, which we have already determined is without merit. Counsel is not required to raise arguments without merit simply for the sake of placing them on the record to avoid a charge of ineffective assistance of counsel. See, State v. Robinson, 108 Ohio App.3d 428, 433, 670 N.E.2d 1077, 1080 (3rd Dist.1996). Nor does counsel‘s failure to raise weak arguments create a genuine issue of ineffective assistance. See, State v. Allen, 77 Ohio St.3d 172, 173, 672 N.E.2d 638, 639 (1996).
{¶36} Appellant‘s second assignment of error is overruled.
CONCLUSION
{¶37} Appellant‘s two assignments of error are overruled and the judgment of the Richland County Court of Common Pleas is affirmed.
By: Delaney, J. and
Gwin, P.J.
Baldwin, J., concur.