STATE OF OHIO v. DESMOND TAYLOR
Appellate Case No. 27542
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
December 8, 2017
[Cite as State v. Taylor, 2017-Ohio-8913.]
Trial Court Case No. 2004-CR-2771 (Criminal Appeal from Common Pleas Court)
Rendered on the 8th day of December, 2017.
MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
DESMOND TAYLOR, Inmate No. 499-249, Warren Correctional Institution, P.O. Box 120, Lebanon, Ohio 45036 Defendant-Appellant-Pro Se
WELBAUM, J.
I. Facts and Course of Proceedings
{¶ 2} On August 11, 2004, an indictment was filed, accusing Taylor of the following offenses: (1) the murder of Sharice Allen, as a proximate result of committing or attempting to commit felonious assault; (2) felonious assault (serious harm) of Allen; and (3) felonious assault (deadly weapon) of Allen. These offenses allegedly occurred on August 1, 2004, and the indictment was filed to initiate Case No. 2004 CR 02771 in Montgomery County Common Pleas Court.
{¶ 3} Previously, on June 21, 2004, an indictment had been filed accusing Taylor of the felonious assault of April Turner. This indictment was filed to initiate Case No. 2004 CR 01799 in Montgomery County Common Pleas Court.
{¶ 4} The case before us involves the charges in Case No. 2004 CR 02771. In that case, trial counsel entered an appearance on Taylor’s behalf, and Taylor pled not guilty to the charges. Ultimately, Taylor pled guilty to all the charges in the indictment, and the trial court sentenced him on August 4, 2005, to fifteen years to life on the murder charge, and to five years on each of the other two charges. These sentences were to
{¶ 5} Taylor did not appeal from his conviction and sentence. However, on October 3, 2006, Taylor filed a motion to withdraw his guilty pleas pursuant to
{¶ 6} Upon considering the matter, we concluded that the trial court originally had properly advised Taylor of the sentence he faced, and that Taylor “failed to demonstrate that he was the victim of a manifest injustice.” Id. at ¶ 12. We, therefore, affirmed the judgment overruling the motion to withdraw the plea. Id.
{¶ 7} Subsequently, on December 18, 2013, Taylor filed pro se motions to withdraw his guilty pleas in both cases, i.e., Case Nos. 2004 CR 02771 and 2004 CR 01799. See State v. Taylor, 2d Dist. Montgomery No. 26500, 2015-Ohio-3510, ¶ 4. This time, Taylor alleged that the trial court had violated his due process rights by failing to make sure that he understood the nature of the charges before accepting the guilty pleas. Id. In addition, Taylor argued that his sentence was void because the court failed to tell him that he was subject to mandatory post-release control for the felonious assault charges. Id.
{¶ 8} Regarding the due process argument, the trial court held that Taylor had
{¶ 9} Concerning post-release control, the trial court agreed that it had erred in imposing five years of post-release control rather than three years. However, because Taylor had already served the time imposed for the felonious assault convictions, the court found that it could not alter his sentence. The court did order, nunc pro tunc, that Taylor would not be required to serve any post-release control for the assault convictions. Id. at ¶ 6.
{¶ 10} On appeal, we concluded that the trial court did not abuse its discretion in overruling the motion to withdraw the guilty pleas because Taylor failed to demonstrate that a manifest injustice had occurred. Taylor, 2d Dist. Montgomery No. 26500, 2015-Ohio-3510, at ¶ 14. We agreed that the only remedy for the trial court’s error was to vacate the part of the sentence imposing post-release control. Id. at ¶ 13. Taylor did not raise, and we did not specifically address, Taylor’s argument in the trial court about his awareness of the nature of the charges. However, we did state that the trial court had “thoroughly reviewed the plea colloquy that took place on July 11, 2005 and [the trial court] determined that ‘the record shows that the State and the Court detailed the nature of the charges several times during the plea hearing.’ ” Id. at ¶ 5. We further observed that the trial court “concluded that ‘it is clear on the record that Defendant was properly informed as to the nature of the charges against him before entering his guilty pleas.’ ” Id.
{¶ 12} Several months after the Supreme Court of Ohio rejected his appeal, Taylor filed another motion in the trial court. This motion asked the court to vacate Taylor’s judgment of conviction and sentence as contrary to statute and void ab initio. Taylor also asked for an evidentiary hearing and findings of fact and conclusions of law.
{¶ 13} As before, Taylor argued that felonious assault and murder are allied offenses and should have been merged for sentencing. The trial court overruled this motion on January 6, 2017. Taylor did not appeal from the trial court’s judgment.
{¶ 14} Subsequently, on January 31, 2017, Taylor filed a third motion to withdraw his guilty plea pursuant to
{¶ 15} Another individual, Kisun Taylor, stated that Taylor’s attorney told her and Griffith that Taylor was going to receive 15 years in prison – 10 years for involuntary manslaughter, and five years for felonious assault, for a total of 15 years in prison, not 15 years to life. As a result, Kisun Taylor convinced Taylor to plead guilty, thinking his
{¶ 16} The State did not respond to the motion to withdraw the guilty plea. On March 16, 2017, the trial court overruled Taylor’s motion. The court concluded, based on the two prior motions to withdraw the plea, that the current motion was barred by res judicata. In addition, the court found that Taylor had failed, again, to demonstrate manifest injustice. Taylor timely appealed from the trial court’s decision.
II. Alleged Ineffective Assistance of Counsel
{¶ 17} Although Taylor’s brief discusses one assignment of error, he did not specify the content of his assignment of error. We agree with the State that Taylor’s assignment of error is properly construed as follows:
The Trial Court Erred in Denying Taylor’s Post-Sentence Motion to Withdraw His Guilty Plea.
{¶ 18} Under this assignment of error, Taylor contends that he had a constitutional right to effective assistance during plea bargaining, that he is entitled to rely on forms of prejudice other than deprivation of a fair trial, and that he was prejudiced by receiving a longer sentence than would have been imposed absent his attorney’s deficient performance.
{¶ 19} In connection with withdrawal of guilty pleas,
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.
{¶ 21} We agree with Taylor that manifest injustice sufficient to allow post-sentence withdrawal of guilty pleas may be established by ineffective assistance of counsel. See, e.g., State v. Dalton, 153 Ohio App.3d 286, 2003-Ohio-3813, 793 N.E.2d 509, ¶ 18 (10th Dist.); State v. Banks, 2d Dist. Montgomery No. 25188, 2013-Ohio-2116, ¶ 9; State v. Nawman, 2d Dist. Clark No. 2016-CA-43, 2017-Ohio-7344, ¶ 12; and State v. Xie, 62 Ohio St.3d 521, 524, 584 N.E.2d 715 (1992) (Xie considered ineffective assistance of counsel and motion to withdraw plea prior to sentencing).
{¶ 22} Ineffective assistance of counsel is shown when “(1) trial counsel‘s performance was deficient; and (2) there is a reasonable probability that, but for counsel‘s errors, the defendant would not have entered a plea.” Wilson at ¶ 17, citing State v.
{¶ 23} Trial courts have sound discretion over motions to withdraw pleas, and they assess the “good faith, credibility and weight of the movant‘s assertions in support of the motion * * * .” Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324, at paragraph two of the syllabus. We, therefore, review for abuse of discretion, which requires us to find that the trial court‘s attitude was “unreasonable, arbitrary or unconscionable.” (Citations omitted.) State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). Furthermore, “undue delay between the occurrence of the alleged cause for withdrawal of a guilty plea and the filing of a motion under
{¶ 24} In the case before us, the trial court concluded that Taylor failed to establish manifest injustice, but did not make specific factual findings other than commenting, as it had before in response to Taylor’s motions to withdraw, that Taylor was properly advised of the nature of the charges. Our review of the record indicates that the trial court did not abuse its discretion in finding that Taylor failed to establish manifest injustice.
{¶ 25} Notably, Taylor did not file an affidavit supporting his motion to withdraw. His motion, however, claimed that the existence of a favorable plea bargain had been brought to his attention. Doc. #10, p. 2. One might infer from this statement that Taylor had only learned recently (more than 11 years after the guilty plea) of the alleged plea bargain. However, this assertion is belied by the affidavit of Taylor’s mother, who stated that she convinced Taylor to plead guilty in 2005, based on the representation of Taylor’s
{¶ 26} Furthermore, when Taylor pled to all the charges in the indictment, including murder, in July 2005, and was sentenced on those charges in August 2005, Taylor would have been aware that he was being sentenced for murder, not involuntary manslaughter, and that his sentence was 15 years to life, rather than a total of 15 years. To credit the affidavits that were submitted would require the trial court to believe that Taylor had not spoken with his mother in more than 11 years – a fact that defies belief. However, even if this were potentially true, a lack of communication for nearly 11 years was not mentioned in either affidavit filed in support of Taylor’s motion. Taylor, therefore, provided no reason for the undue delay in filing his motion. Accordingly, the trial court correctly concluded that Taylor failed to establish manifest injustice.
{¶ 27} The trial court also held that res judicata precluded Taylor’s motion to withdraw the guilty plea. We have held that “ ‘if a
{¶ 28} Accordingly, Taylor’s sole assignment of error is overruled.
III. Conclusion
{¶ 29} Taylor’s sole assignment of error having been overruled, the judgment of the trial court is affirmed.
DONOVAN, J. and TUCKER, J., concur.
Copies mailed to:
Mathias H. Heck, Jr.
Heather N. Jans
Desmond Taylor
Hon. Dennis J. Adkins