STATE OF OHIO, PLAINTIFF-APPELLEE vs. JOHN MCGRAW, DEFENDANT-APPELLANT
No. 96606
Court of Appeals of Ohio EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA
July 17, 2012
[Cite as State v. McGraw, 2012-Ohio-3247.]
JOURNAL ENTRY AND OPINION; JUDGMENT: APPLICATION DENIED; Cuyahoga County Common Pleas Court Case No. CR-534815 Application for Reopening Motion No. 452942
John A. McGraw, pro se
Inmate No. 600-404
Lorain Correctional Institution
2075 South Avon-Belden Road
Grafton, Ohio 44044
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
Mark J. Mahoney
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} On March 6, 2012, the applicant, John McGraw, pursuant to
Procedural and Factual Background
{¶2} In March 2010, the grand jury indicted McGraw on three counts of aggravated murder with death penalty specifications, one count of kidnapping, one count of aggravated burglary, and two counts of failure to comply with order or signal of police. On the fourth day of jury selection, McGraw and the state entered into a plea agreement. The state dismissed all the capital specifications for Count 1, aggravated
{¶3} During the plea hearing, the trial judge confirmed that McGraw had fully discussed the plea with both his attorneys and that he understood the plea. The judge specifically asked McGraw whether he understood all the charges against him, and McGraw answered, “Yes.” (Tr. 9.) The judge further inquired whether McGraw felt impaired by his medications or post-traumatic stress, and McGraw answered, “No, your Honor.”1 (Tr. 10.) The trial judge again asked whether McGraw understood his position, what was happening, and whether he was going forward knowingly and voluntarily. McGraw answered, “Yes, your Honor.” (Tr. 11.) Pursuant to
{¶4} On March 30, 2011, McGraw, pro se, successfully moved for a delayed appeal, and this court appointed counsel for McGraw. On May 25, 2011, McGraw filed
{¶5} This court affirmed holding that the sentence was not contrary to law or an abuse of discretion and that this court did not have jurisdiction over the denial of the motion to withdraw the guilty plea because it was not properly appealed. State v. McGraw, 8th Dist. No. 96606, 2012-Ohio-174. McGraw now brings his application to reopen.
Legal Analysis
{¶6} In order to establish a claim of ineffective assistance of appellate counsel, the applicant must demonstrate that counsel‘s performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), cert. denied, 497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d 768 (1990); State v. Reed, 74 Ohio St.3d 534, 1996-Ohio-21, 660 N.E.2d 456. To establish prejudice, the applicant must show that but for the unreasonable error there is a reasonable probability that the results of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. A court need not
{¶7} In the present case, McGraw cannot establish prejudice. He first argues that his appellate counsel was deficient for not properly appealing the denial of his motion to withdraw the guilty plea so that this court never reached the merits of the argument. Assuming arguendo that appellate counsel was ineffective, McGraw cannot show that the results of the proceedings would have been different by obtaining a reversal.
{¶8}
{¶9} In the present case, McGraw failed to sustain his burden of establishing a manifest injustice. He only made vague and indefinite assertions about misrepresentations by his counsel. He did not state what those misrepresentations were or how they misled him. He asserted that he has “documents that my attorney used to coerce me into pleading guilty,” but did not attach them to his motion. Weighing these assertions against a favorable plea agreement for McGraw that avoided the death penalty,
{¶10} McGraw‘s second argument is that his plea was not knowing, intelligent, and voluntary, because the judge did not advise him of the nature of the charges against him. This argument is not persuasive. During the plea hearing, McGraw‘s attorney stated that they had fully discussed the case with him. McGraw represented to the judge that he understood the charges, and the judge stated the charges and their possible penalties. A trial judge need not give a detailed recitation of the elements of each charge or possible affirmative defenses during the plea hearing. State v. Swift, 86 Ohio App.3d 407, 621 N.E.2d 513 (11th Dist.1993); and State v. Reynolds, 40 Ohio St.3d 334, 533 N.E.2d 342 (1988). Indeed, “[w]here a defendant affirmatively represents to the court that he understands the charge to which he is pleading, * * * such defendant should not then be heard to claim on appeal that he did not in fact understand the nature of the charge.” State v. Hood, 8th Dist. No. 75214, 1999 WL 1204860 (Dec. 16, 1999).
{¶11} Accordingly, this court denies the application to reopen.
MARY J. BOYLE, PRESIDING JUDGE
LARRY A. JONES, SR., J., and
COLLEEN CONWAY COONEY, J., CONCUR