STATE OF OHIO v. DORJAN SHIVERS
No. 103056
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
March 31, 2016
2016-Ohio-1378
JOURNAL ENTRY AND OPINION
BEFORE: E.A. Gallagher, P.J., Kilbane, J., and McCormack, J.
RELEASED AND JOURNALIZED: March 31, 2016
Myron P. Watson
614 W. Superior Avenue
Suite No. 1144
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Kevin R. Filiatraut
Christopher D. Schroeder
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} This case came to be heard upon the accelerated calendar pursuant to
Facts and Procedural Background
{¶2} In April 2014, Shivers was charged in a seven-count indictment resulting from encounters with two female victims on two separate dates. Shivers was charged with two counts of rape and one count of kidnapping arising from an incident that occurred on May 18, 2013, in Counts 1 through 3 in addition to two counts of rape, one count of gross sexual imposition and one count of kidnapping arising from an incident that occurred on January 11, 2013. Each of the charges included a sexually violent predator specification and both kidnapping charges included a sexual motivation specification.
{¶3} On March 11, 2015, Shivers pleaded guilty to kidnapping as amended in Count 3 and felonious assault as amended in Count 7. Pursuant to the plea agreement, the sexual motivation specifications and the sexually violent predator specifications were deleted and the remaining counts were nolled.
{¶4} Prior to sentencing, Shivers retained new counsel and filed a motion to withdraw his guilty pleas. In support of his motion, Shivers attached his own affidavit as well as that of a potential witness, Chris White. Shivers claimed that he did not have the capacity to understand the consequences of his plea due to medication he had been on
{¶5} On May 18, 2015, the trial court conducted a hearing on Shivers’ motion to withdraw his guilty plea. Shivers offered as exhibits the transcript from the plea hearing and the newly obtained videotaped interrogations of Shivers and White. Shivers argued that he did not have an opportunity to review the videotaped police interviews prior to entering his plea because the videos were not provided to his counsel by the state. The state conceded this discovery violation but argued that Shivers suffered no harm because he was provided written summaries of the interviews within police reports.
{¶6} The trial court denied Shivers’ motion to withdraw and sentenced him to concurrent prison terms of four years. Shivers appeals arguing that the trial court erred and abused its discretion when it denied his motion to vacate his guilty plea.
Law and Analysis
I. Withdrawal of a Guilty Plea
A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.
{¶8} The Ohio Supreme Court has held the following regarding presentence motions to withdraw guilty pleas:
Even though the general rule is that motions to withdraw guilty pleas before sentencing are to be freely allowed and treated with liberality, * * * still the decision thereon is within the sound discretion of the trial court. * * * Thus, unless it is shown that the trial court acted unjustly or unfairly, there is no abuse of discretion. * * * One who enters a guilty plea has no right to withdraw it. It is within the sound discretion of the trial court to determine what circumstances justify granting such a motion. * * *
State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992), quoting Barker v. United States, 579 F.2d 1219 (10th Cir.1978).
{¶9} Accordingly, this court reviews a trial court‘s ruling on a presentence motion to withdraw a guilty plea under an abuse of discretion standard. Xie. This court has held that a trial court‘s denial of a presentence motion to withdraw is not an abuse of discretion when the record reflects: (1) the defendant is represented by highly competent counsel, (2) the accused was afforded a full hearing, pursuant to
{¶11} In this instance, there is no dispute that the state failed to turn over videotaped statements made to the Mayfield Heights Police Department by the appellant and witness Chris White.
Upon receipt of a written demand for discovery by the defendant, and except as provided in division (C), (D), (E), (F), or (J) of this rule, the prosecuting attorney shall provide copies or photographs, or permit counsel for the defendant to copy or photograph, the following items related to the particular case indictment, information, or complaint, and which are material to the preparation of a defense, or are intended for use by the prosecuting attorney as evidence at the trial, or were obtained from or belong to the defendant, within the possession of, or reasonably available to the state, subject to the provisions of this rule: * * *
(1) Any written or recorded statement by the defendant * * *
* * *
(5) Any evidence favorable to the defendant and material to guilt or punishment;
* * *
(7) Any written or recorded statement by a witness in the state‘s case-in-chief, or that it reasonably anticipates calling as a witness in rebuttal.
{¶12} Courts have long recognized that disclosure of a defendant‘s statements is critical to the defendant‘s preparation for trial and formulation of an appropriate defense strategy. Among other things, evidence of a defendant‘s statements may assist a defendant in making an informed decision about whether to accept a plea, whether to waive a jury trial or whether to testify in his or her own defense. See, e.g., State v. Tomblin, 3 Ohio App.3d 17, 18, 443 N.E.2d 529 (1st Dist.1981) (“[W]here a defendant * * * has filed a motion for discovery of any written or recorded statements made by him, the prosecuting attorney has a duty to permit such discovery. The specter of the prosecution‘s failure to permit a defendant‘s inspection of his statement is that if a defendant does not know or remember what is contained in his statement, hе can not knowingly and intelligently decide whether or not to take the witness stand and thus to put his credibility in issue.“); State v. Haddix, 12th Dist. Warren No. CA2011-07-075, 2012-Ohio-2687, ¶ 38 (“The purpose of discovery [under
{¶13} As the Ohio Supreme Court stated in State v. Moore, 40 Ohio St.3d 63, 531 N.E.2d 691 (1988):
[A] defendant is entitled to discovery of relevant written or recorded statements made by him, and it is not within the province of the state to determine, and then to provide, only that which the state believes to be relevant to the defense. To permit such conduct would serve to undermine the purpose of the discovery rule and impinge on the defendant‘s right to a fair trial.
Id. at 68; see also State v. Pagan, 8th Dist. Cuyahoga No. 97268, 2012-Ohio-2197, ¶ 36 (“It is not the state‘s role to determine whether the statement is material to the case or not. * * * Strong enforcement of [
{¶14} The state argues that the violation of
{¶15} Finally, we note that at the hearing on the motion to withdraw the state shifted the blame to the police department for the failure to disclose the videotaped interviews, asserting that neither the state nor the defense was aware of their existence. However, under our prior authority this fact does not аbsolve the state from culpability because the prosecutor is responsible for knowing what is in the police file. State v. Russell, 8th Dist. Cuyahoga No. 94345, 2011-Ohio-592, ¶ 37; State v. Benford, 9th Dist.
{¶16} In this instance, the state plainly failed to comply with
{¶17} Shivers’ sole assignment of error is sustained.
{¶18} The judgment of the trial court is reversed, sentence vacated аnd case remanded to the lower court for further proceedings consistent with this opinion.
It is ordered that appellant recover from appellee the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
EILEEN A. GALLAGHER, PRESIDING JUDGE
MARY EILEEN KILBANE, J., CONCURS;
TIM McCORMACK, J., DISSENTS
STATE OF OHIO v. DORJAN SHIVERS
No. 103056
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
March 31, 2016
2016-Ohio-1378
{¶19} For the reasons that follow, I respectfully dissent.
{¶20}
{¶21} The decision whether to grant or deny a motion to withdraw a guilty plea is entirely within the sound discretion of the trial court, and we will not alter the trial court‘s decision absent a showing of an abuse of that discretion. Xie at paragraph two of the syllabus; State v. Peterseim, 68 Ohio App.2d 211, 428 N.E.2d 863 (8th Dist.1980), syllabus. “‘Unless it is
{¶22} A trial court does not abuse its discretion in denying a motion to withdraw a guilty plea where the following occurs: (1) the accused is represented by highly competent counsel; (2) the accused was afforded a full hearing, pursuant to
{¶23} Here, the record demonstrates that Shivers was represented by highly competent counsel throughout his entire case. Shivers was initially represented by appointed counsel and then Shivers subsequently retained counsel, who negotiated the plea agreement. At the plea hearing, the court noted that it has “known [counsel] for a long time” and counsel is “a very good lawyer.” Prior to pleading, Shivers acknowledged that he was satisfied with the legal services provided by his attorney. And prior to denying Shivers‘s motion, the court noted that it considered the fact that Shivers had been represented by “very well-respected attorneys,” noting in particular that
{¶24} The record further shows that Shivers was afforded a full
{¶25} Strict compliance is required if the appellant raises a violation of a constitutional right delineated in
{¶27} When the trial court does not substantially comply with
{¶28} Here, prior to accepting Shivers‘s plea, the trial court engaged in a
{¶29} Defense counsel advised the court that Shivers was on medication for the extraction of his wisdom teeth the day before the hearing. Despite the medication, however, Shivers аdvised the court that he was “thinking clearly.” When the court asked Shivers if there were any lasting effects from the medication, he replied, “No, your Honor.” The court continued with its colloquy:
Court: You are currently under the influence. We talked about that. Are you currently under the influence of any drugs or alcohol or medication, anything that would either prevent you from understanding what is happening here today or prevent you from entering a plea?
Shivers: I understand what‘s going on.
Court: But anything about the medications that you‘re taking that would prevent you from entering a plea either?
Shivers: No, your Honor.
{¶30} Finally, prior to accepting Shivers‘s guilty plea, the court provided Shivers with an additional opportunity to ask any questions Shivers may have about the
{¶31} I would therefore find, in light of the above, that the record shows that Shivers fully understood the nature of the charges and was able to make a knowing, voluntary, and intelligent decision regarding whether to plead guilty, despite having taken medication.
{¶32} I would also find that the trial court substantially complied with explaining the effects of Shivers‘s plea, i.e. that his plea was a complete admission of guilt.
{¶33} A defendant‘s right to be informed that a guilty plea is a complete admission of guilt is a nonconstitutional right and is reviewed under the substantial compliance standard. State v. Cola, 8th Dist. Cuyahoga No. 99336, 2013-Ohio-3252, ¶ 6. And where a defendant does not assert his innocence at the plea colloquy, he is presumed to understand that a guilty plea is a complete admission of guilt. State v. Lee, 8th Dist. Cuyahoga No. 99796, 2014-Ohio-205, ¶ 8, citing State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, syllabus.
{¶34} In light of the foregoing record, I would find that Shivers subjectively understood that his guilty plea to kidnapping and felonious assault was a complete
{¶35} Additionally, even if the court failed to substantially comply, Shivers has failed to demonstrate that he was prejudiced by the court‘s failure to explicitly advise him of the effect of his plea. And unless a defendant asserts actual innocence, the “court‘s failure to inform the defendant of the effect of his guilty plea as required by
{¶36} My review of the record also shows that the motion to withdraw the guilty plea was made in a reasonable time, the motion stated specific reasons for withdrawal, and the trial court carefully considered the motion in a complete and impartial hearing.
{¶37} At the withdrawal hearing, the court heard from defense counsel, who alleged that Shivers has always maintained his innocence, he was induced into a plea agreement because he did not know the effects of the plea, and he was under the influence of medication during the plea. Counsel also alleged that Shivers‘s former counsel was deficient because he did not fully discuss the case with Shivers, he did not interview witnesses who had potentially exculpatory testimony, and he did not divulge to Shivers that there were two videotaped interviews — of Shivers and a potential witness — that potentially contained exculpatory evidence.
{¶38} Following argument by defense counsel, the state explained that the videotaped interviews were reduced to written summaries that were offered to the defense
With regard to the Christopher White interview, I‘m looking at the summary which defense has had since last June where, clearly if you read this, you can tell Christopher White аttempted to give evidence which would help the defendant to the Mayfield Heights police department. Specifically when he said that the alleged victim of that incident he is talking about, he heard her moaning and heard her say it felt good.
They‘re not telling you anything from these interviews that‘s different than what they knew in the police report at the time of the plea and at the time this case discovery was commenced. * * * [T]hey are making no specific references as to how those interviews are different [than] these summаries that they already had.
{¶39} Rather, at the hearing, Shivers stressed the fact that the interviews are “extensive” and they “cannot be summarized in one or two pages.” He provided that the content of both interviews taken together equaled two hours. He also stated that the summaries cannot “make up for the existence of actual evidence.”
[Prior defense counsel] made a representation he thought you were thinking clearly. I asked you if you had any lasting effects and you said no. I believe I asked you twice more * * * [and] you indicated you understood what was going on. So I think that that was not a factor at all here. We talked about the recommended sentence. We went over all your possibilities at that point in time. I asked you if you had any questions a number of times with respect to sentences and possibilities * * *, gave you several opportunities to ask me any questions about anything at all. * * * I asked you on multiple occasions * * * if you understood. * * * And you indicated [on] at least 16 occasions that you, in fact, under[stood] * * *.
{¶41} The court further сonsidered the affidavits attached to Shivers‘s motion to withdraw. It determined that they contained nothing indicative of “any new evidence of any plausible defense.” The court noted, once again, that Shivers had highly competent representation. The court then provided the parties with an opportunity to present
{¶42} In light of the foregoing record, I would find that the trial court conducted a complete and impartial hearing on Shivers‘s motion to withdraw his guilty plea and gave full and fair consideration to his plea withdrawal request. It considered the statements from counsel and the entire record, and it provided defense counsel an opportunity to provide additional evidenсe.
{¶43} I agree with the majority that the prosecutor had a duty to provide the videotaped interviews to defense counsel in a timely manner and the prosecutor is responsible for knowing what is in the police file. I also agree with the majority that the defense should not be expected to rely solely on the prosecutor‘s summaries of the videotaped interviews.
{¶44} However, in this case, there is no evidence in the record that the prosecutor‘s failure to disclose the videotaped interviews was a wilful violatiоn of
{¶45} Accordingly, having established the relevant factors in reviewing a trial court‘s denial of a presentence motion to withdraw a guilty plea, and having found no evidence that the trial court acted unjustly or unfairly, I cannot say that the trial court abused its discretion in denying Shivers‘s motion to withdraw his plea. I would therefore affirm the judgment of the trial court.