[Cite as State v. Davis, 2016-Ohio-7222.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103764
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
CURTIS DAVIS
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-588497-B
BEFORE: Celebrezze, J., Kilbane, P.J., and Blackmon, J.
RELEASED AND JOURNALIZED: October 6, 2016
ATTORNEY FOR APPELLANT
Kimberly K. Yoder
20525 Center Ridge Road
Suite 133
Rocky River, Ohio 44116
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Brian D. Kraft
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:
{¶1} Appellant, Curtis Davis, challenges his guilty pleas to one count of felonious
assault and one count of having weapons while under disability. He argues that when he
failed to fulfill his agreement to testify truthfully against a codefendant, the court erred in
accepting his pleas and sentencing him to a greater prison term than that specified in the
plea agreement. After a thorough review of the facts and law, this court affirms.
I. Factual and Procedural History
{¶2} In Cuyahoga C.P. No. CR-14-588497-B, appellant was charged in a
multicount indictment with attempted murder, felonious assault, aggravated menacing,
criminal trespass, and having weapons while under disability, with various firearm and
repeat violent offender specifications. Midway through trial, appellant agreed to plead
guilty to a second-degree felony violation of R.C. 2903.11(A)(1), felonious assault, with a
one-year firearm specification, and one third-degree felony violation of R.C.
2923.13(A)(2), having weapons while under disability. As part of the agreement, in
Cuyahoga C.P. No. CR-14-587284-A, appellant would also plead to one count of escape.
In exchange, the state would dismiss the other charges in the two cases. If appellant
testified truthfully in the trial of a codefendant, the state agreed to recommend a
three-year sentence. After a thorough Crim.R. 11 plea colloquy, appellant entered guilty
pleas and the matter was set for sentencing pending the codefendant’s trial.
{¶3} At the October 5, 2015 sentencing hearing, the state explained that appellant
refused to testify against the codefendant. The state then advocated for a sentence in
excess of the three years set forth in the agreement. However, the state acknowledged
that appellant and his family were threatened. The state indicated it had reviewed
recorded jail calls documenting the threats. The state asserted that this did not excuse
appellant from his promise to testify. It requested a sentence in the range of five to seven
years. Appellant’s attorney stated that appellant was beaten while in jail and highlighted
the threats that were made against him and his family if he testified against the
codefendant. The trial court imposed an aggregate ten-year prison sentence: a six-year
term of imprisonment for felonious assault served consecutive to the one-year firearm
specification, and consecutive to three years for having weapons while under disability.
The trial court imposed a sentence on the escape count in CR-14-587284-A to run
concurrent to the sentence in CR-14-588497-B.
{¶4} Appellant then filed the instant appeal from CR-14-588497-B only.
Appellant’s notice of appeal does not include CR-14-587284-A even though the plea
agreement covered this case as well. However, because of this court’s resolution of the
appeal, this court does not have to address the incongruity presented in such a situation.
Appellant now raises three assignments of error:
I. The trial court erred in not forewarning the defendant of the increased
sentence that could be imposed if the conditions of the negotiated plea
agreement were not met.
II. The trial court erred in not vacating defendant’s guilty plea prior to
sentencing when a condition of the negotiated plea agreement was not met.
III. Defendant’s counsel was ineffective for not moving the court to
withdraw defendant’s plea prior to sentencing when a condition of the
negotiated plea agreement was not met.
II. Law and Analysis
A. Crim.R. 11 Colloquy
{¶5} Appellant’s first assignment of error takes issue with the plea colloquy.
Specifically, appellant claims the trial court erred in not explaining that if appellant did
not testify, then he could be subjected to a sentence other than the one to which the state
conditionally agreed.
{¶6} Crim.R. 11 governs the colloquy that a trial court must engage in before
accepting pleas of guilty or no contest in a criminal case. For felony cases, Crim.R.
11(C) mandates that before a court may accept a plea of guilty or no contest, the court
must address the defendant and (1) determine that the defendant is making the plea
voluntarily, with understanding of the nature of the charges and of the maximum penalty
involved, (2) inform the defendant of and determine 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, and (3) inform the defendant and determine
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 the 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. Id.
{¶7} This court reviews the trial court’s colloquy differently depending on the type
of alleged violation of the rule. For constitutional rights set forth in Crim.R. 11(C)(2)(c),
the court must strictly comply in the information relayed. State v. Veney, 120 Ohio St.3d
176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 18. However, for nonconstitutional rights set
forth in Crim.R. 11(C)(2)(a) and (C)(2)(b), the court only has to substantially comply.
Veney at ¶ 14-16.
{¶8} In this assigned error, appellant claims the court did not inform him of the
penalties he faced in light of the agreed sentence offered by the state. This is a
nonconstitutional requirement, which this court reviews for substantial compliance and
requires a showing of prejudice. Id. at ¶ 17.
{¶9} Here, the trial court fully explained the range of penalties appellant faced for
each charge. The plea colloquy accurately reflected the penalties for second- and
third-degree felonies. The trial court also explained that even though there was an
agreed sentence, the trial court had discretion to impose that sentence. In essence, the
trial court informed appellant that it had discretion to craft any sentence allowed by law.
More is not required by the rule.
{¶10} This situation is similar to arguments raised about a requirement that a trial
court should inform a defendant about the possibility of consecutive sentences. This
court has previously held that Crim.R. 11 has no such requirement. State v. Slagle, 8th
Dist. Cuyahoga No. 87193, 2006-Ohio-4101, ¶ 6-7. Likewise, there is no requirement
that a court somehow further impress upon criminal defendants that they face penalties in
excess of an agreed sentence where the court fully explains the possible range of penalties
and the discretionary nature of a sentencing recommendation from the state.
{¶11} Appellant was aware that he could face a sentence other than the one agreed
to by the state and that a greater sentence could be imposed. Further, he understood that
the agreed three-year sentence was contingent upon appellant’s truthful testimony against
a codefendant. Appellant was well aware that if he failed to testify, he faced a greater
sentence. His attorney specifically stated appellant’s understanding of that fact at the
sentencing hearing as outlined in the ineffective assistance claim below.
{¶12} Therefore, this assigned error is overruled.
B. Failure to Vacate Pleas
{¶13} Appellant claims in his second assignment of error that rather than
sentencing him, the trial court should have sua sponte vacated his pleas.
{¶14} Appellant does not set forth any standard of review when arguing that his
sentencing hearing should not have gone forward. This court will review appellant’s
claim for plain error because appellant never attempted to withdraw his pleas or otherwise
stop the hearing from going forward. State v. Obermiller, Slip Opinion No.
2016-Ohio-1594, ¶ 62. Crim.R. 52(B) provides a court with authority to address an error
affecting a substantial right of a defendant although not brought to the trial court’s
attention. “To prevail under the plain-error standard, a defendant must show that an
error occurred, that it was obvious, and that it affected his substantial rights.” Id. at ¶ 62.
On review, a plain error should only be found “with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.” State
v. Long, 53 Ohio St.2d 91, 97, 372 N.E.2d 804 (1978).
{¶15} The Second District, faced with a motion to withdraw in a situation similar
to the present one, found that a trial court was not required to vacate a plea agreement
conditioned upon the defendant testifying against another when the defendant failed to
testify. State v. Lopez, 2d Dist. Greene No. 99-CA-120, 2000 Ohio App. LEXIS 4737, 3
(Oct. 13, 2000). There, the defendant, Lopez, decided before sentencing that he did not
wish to testify against another, and filed a motion to withdraw his plea. The trial court
denied the motion and sentenced the defendant to an aggregate term of imprisonment in
excess of the agreed sentence. The Second District held that Lopez was not entitled to
rescind the agreement based on his own willful breach:
A party to a contract who has voluntarily and without excuse refused to
perform cannot treat the contract as rescinded for default of the other party
subsequently occurring. Ashbrook v. Hite (1859), 9 Ohio St. 357. That is
precisely the case herein. Lopez, voluntarily and without excuse refused to
perform his promise to cooperate with respect to other prosecutions.
Subsequently, the State declined to honor its promise with respect to
sentencing. That does not entitle Lopez to rescission of the bargain.
Id. at 12. See also State v. Woyan, 4th Dist. Athens No. 96 CA 1772, 1997 Ohio App.
LEXIS 3182, 13 (July 21, 1997) (“we find the trial court did not abuse its discretion [in
denying the motion to withdraw his guilty plea and to enforce a plea agreement] by
finding that appellant failed to cooperate in good faith” because “[a]t the time appellant
entered his guilty plea, he was fully aware of the consequences of his failure to comply
with the plea agreement.”); State v. Story, 11th Dist. Ashtabula No. 2006-A-0085,
2007-Ohio-4959, ¶ 45 (“There is no dispute that Mr. Story breached the plea agreement
by not pleading guilty to ‘two out of three drug charges’ or the charge of aggravated
assault. Therefore, the state was not bound by its sentencing recommendation.”); State v.
Ready, 11th Dist. Lake No. 2001-L-150, 2002-Ohio-7138, ¶ 52 (“we conclude that it was
not inequitable to relieve the State, as the party aggrieved by appellant’s refusal to
perform his end of the bargain, of its promise with respect to sentencing, without
rescinding those aspects of the bargain that had already been performed[, the dismissal of
several charges].”).
{¶16} Another case from the Second District highlights the subtle differences that
must be considered in cases such as these. There,
the plea bargain included additional terms requiring that appellant testify in
exchange for a minimum sentence. Once appellant indicated his intention
not to comply with the terms of the agreement, the trial court had no
recourse but to either implement the minimum sentence as recommended by
the state and agreed to by the court or grant appellant’s motion to withdraw
and proceed to trial. However by denying appellant’s motion and then
refusing to adhere to the State’s recommendation for a minimum sentence,
the court unilaterally modified the terms of the agreement of which
appellant wanted no part. Such action clearly worked to the State’s
advantage and to appellant’s detriment in a retaliatory manner.
(Emphasis sic.) State v. Tooson, 2d Dist. Clark No. 2042, 1985 Ohio App. LEXIS 6779,
9 (Aug. 5, 1985). See also State v. Vari, 7th Dist. Mahoning No. 07-MA-142,
2010-Ohio-1300, ¶ 24 (“However, once the trial court enters into the plea agreement by
making a promise as the court did here, it becomes a party to the agreement and is bound
thereby.”). In the case currently before this court, the trial court did not agree to impose
any sentence. The trial court specifically informed appellant of the range of possible
penalties and that it was not bound by the state’s sentencing recommendation. It did not
enter into the plea bargaining process with an indication of a specific sentence.
{¶17} Another case is distinguishable based on timing. When a motion to
withdraw is filed immediately after the entrance of pleas of guilt with a sentencing
agreement contingent on testifying, the Tenth District has held that a court abuses its
discretion in denying the motion in certain circumstances. State v. Walton, 2 Ohio
App.3d 117, 440 N.E.2d 1225 (10th Dist.1981).
Where immediately after entering a guilty plea and plea bargain and prior to
sentencing the defendant makes a motion to withdraw his guilty plea
indicating an intent not to live up to a portion of the plea bargain, the trial
court abuses its discretion in both overruling the motion to withdraw and
refusing to abide by the state’s obligations under the plea bargain.
Id. at 119. This case does not address the fact that even where there is an agreed
sentence between the state and the defendant, the sentence is still within the discretion of
the trial court except where the court has indicated its acceptance of the agreed sentence
at the time of the plea, as was the case in Tooson.
{¶18} Appellant does not argue these cases, or any other in support of his second
assignment of error. Further, appellant does not attempt to distinguish the cases where a
trial court has informed defendants that the court retained discretion over their sentence
and imposed a greater sentence than that recommended by the state as part of the plea
agreement, whether a defendant violated the terms of the plea agreement or not.
{¶19} In cases such as Tooson and Vari, where the trial court interjects itself into
the plea bargaining process with promises of a certain sentence, then the court may not
deviate without giving the defendant an opportunity to withdraw the plea. Here, the trial
court did not make any promises regarding sentencing and specifically informed appellant
that the state’s conditional recommended sentence was not binding. Appellant was also
aware of the sentencing ranges he faced as explained by the court during the plea
colloquy. There was no basis for the trial court to sua sponte vacate the plea agreement
freely entered into by both parties. Therefore, there was no plain error here.
{¶20} Appellant’s second assignment of error is overruled.
C. Ineffective Assistance of Counsel
{¶21} Appellant claims his trial counsel rendered constitutionally deficient
assistance because counsel failed to file a motion to withdraw appellant’s guilty pleas
prior to sentencing when it was clear that appellant failed to fulfill a term of the plea
agreement.
{¶22} In order to establish a claim of ineffective assistance of counsel, the
defendant must show that his trial counsel’s performance fell below reasonable
representation and that deficient performance prejudiced his 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). This test is highly deferential to attorneys, and
reviewing courts afford “a strong presumption that counsel’s conduct falls within the
range of reasonable professional assistance.” Id. at 689. As such, a properly licensed
attorney is presumed to be competent and, therefore, a defendant claiming ineffective
assistance of counsel bears the burden of proof. State v. Smith, 17 Ohio St.3d 98, 100,
477 N.E.2d 1128 (1985).
{¶23} In the context of a guilty plea, defendants must demonstrate that there is a
reasonable probability that, but for counsel’s alleged errors, they would not have pled
guilty and they would have insisted on going to trial. State v. Wright, 8th Dist. Cuyahoga
No. 98345, 2013-Ohio-936, ¶ 12. Generally, a guilty plea waives all appealable errors
that may have occurred in the trial court, unless the errors precluded the defendant from
knowingly, intelligently, and voluntarily entering a guilty plea. State v. Geraci, 8th Dist.
Cuyahoga Nos. 101946 and 101947, 2015-Ohio-2699, ¶ 14. This waiver applies equally
to a claim of ineffective assistance of counsel. A claim of ineffective assistance of
counsel is therefore waived by a guilty plea, unless the ineffective assistance of counsel
precluded the defendant from knowingly, intelligently, and voluntarily entering a guilty
plea. Id.
{¶24} Here, appellant’s counsel did not render deficient performance. In the
midst of trial, after several witnesses testified to appellant’s involvement in a shooting,
appellant decided to enter guilty pleas in exchange for the dismissal of several serious
charges and an agreed sentence in exchange for his testimony against a codefendant.
During the sentencing hearing, appellant acknowledged that he failed to perform under
the plea agreement, but never indicated he wished to withdraw his pleas. At sentencing,
appellant’s attorney stated,
[appellant], at that time decided that he could [not] take a better sentence
and put his family at risk, and that was the reason why he chose not to
testify.
He recognizes that in doing so he subjected himself to more time,
substantially more time, but even under those circumstances, that’s the
choice that he made, and frankly, I understand them.
He knew what life he was living. He put himself in the situation
where he was at that level of risk. He knows that, but he had to make a
decision that was not what he intended at the time that he took the plea and
agreed to testify.
***
So, your honor, we recognize and accept, and [appellant] will accept
as well, that he has a greater price to pay today as a result of the choices that
he’s made, but your Honor, I would ask that you take into consideration the
circumstances and the impact that those threats had on him.
{¶25} The record indicates that appellant had full knowledge of the situation and
had discussions with his attorney about his options, and chose to go forward. It must be
noted that even without an agreed sentence, appellant’s attorney would be justified in
arguing in favor of moving forward with the very favorable plea deal rather than
subjecting appellant to the chance of being convicted of several more serious charges.
Therefore, appellant cannot demonstrate that he would have not entered his guilty pleas
had he been advised in the manner he asserts he should have been.
{¶26} Further, even if appellant’s attorney had filed a motion to withdraw his
pleas, the trial court was not required or likely to grant it based on appellant’s own
violation of the plea agreement. See, e.g., Ready, 11th Dist. Lake No. 2001-L-150,
2002-Ohio-7138, at ¶ 54 (“we conclude that the trial court did not abuse its discretion in
denying appellant’s motion to withdraw his guilty pleas as appellant did not establish that
the state had failed to abide by the terms of the plea agreement. Rather, it was appellant
who seemingly had a change of heart, which is insufficient justification to warrant the
granting of a motion to withdraw.”).
{¶27} Therefore, appellant has not demonstrated that his counsel was
constitutionally ineffective or that he was prejudiced by any deficient performance.
Appellant’s counsel was not constitutionally ineffective as argued by appellant. The
discussion had on the record indicates appellant understood his options and chose to
move forward with sentencing.
{¶28} Appellant’s third assignment of error is overruled.
III. Conclusion
{¶29} Appellant was informed of the possible penalties he faced by pleading
guilty. He further understood that the state’s three-year sentencing recommendation was
not binding on the trial court and was contingent on appellant testifying against his
codefendant. When appellant failed to testify, he understood that he faced a sentence
greater than that set forth in the plea agreement. Further, plain error did not exist when
the court proceeded to sentence appellant rather than vacating appellant’s pleas. Finally,
appellant’s counsel was not constitutionally ineffective as appellant asserts.
{¶30} Judgment affirmed.
It is ordered that appellee recover from appellant 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. The defendant’s convictions having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
FRANK D. CELEBREZZE, JR., JUDGE
MARY EILEEN KILBANE, P.J., and
PATRICIA ANN BLACKMON, J., CONCUR
State v. Davis
Combined Opinion