[Cite as State v. Davis, 2015-Ohio-5196.]


                                        COURT OF APPEALS
                                     RICHLAND COUNTY, OHIO
                                    FIFTH APPELLATE DISTRICT


STATE OF OHIO                                  :   JUDGES:
                                               :
                                               :   Hon. W. Scott Gwin, P.J.
       Plaintiff-Appellee                      :   Hon. Patricia A. Delaney, J.
                                               :   Hon. Craig R. Baldwin, J.
-vs-                                           :
                                               :   Case No. 15CA6
                                               :
BRANDON DAVIS                                  :
                                               :
                                               :
       Defendant-Appellant                     :   OPINION


CHARACTER OF PROCEEDING:                           Appeal from the Richland County Court
                                                   of Common Pleas, Case No.
                                                   2014CR07040



JUDGMENT:                                          AFFIRMED




DATE OF JUDGMENT ENTRY:                            December 10, 2015




APPEARANCES:

For Plaintiff-Appellee:                            For Defendant-Appellant:

BAMBI COUCH PAGE                                   JEFFREY P. URICH
RICHLAND CO. PROSECUTOR                            P.O. Box 1977
38 South Park St.                                  Westerville, OH 43086
Mansfield, OH 44902
Richland County, Case No. 15CA6                                                            2

Delaney, J.

       {¶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]."
Richland County, Case No. 15CA6                                                        3


       {¶6} The file in the instant case contains a certified copy of the municipal court

docket of case number 08CRB5450 indicating appellant was charged with domestic

violence, a misdemeanor of the first degree pursuant to City of Mansfield Ordinance No.

537.14 on November 23, 2008. The named victim in the complaint is the same victim in

the instant case.

       {¶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 R.C. 2919.25(A), "having been previously convicted of or

pleaded guilty to one or more offenses of domestic violence or offenses of the type

described in division (D)(3) of the Ohio Revised Code 2919.25 involving a person who

was a family or household member at the time of the violation * * *." On December 15,

2014, appellant appeared before the trial court, withdrew his previously-entered plea of

not guilty, and entered a plea of guilty to one count of domestic violence as charged, a

felony of the fourth degree. The trial court continued the matter for sentencing pending

pre-sentence investigation.

       {¶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
Richland County, Case No. 15CA6                                                          4


should be a misdemeanor.1 Appellee responded with a motion in opposition stating the

original offense in the predicate case was domestic violence against the same victim,

although the offense was amended to menacing.           Attached to appellee's motion in

opposition is the police report of the 2008 incident describing the incident and stating in

pertinent part, "The victim and the suspect lived together for three years."

       {¶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




1The police reports and affidavit in the instant case note appellant and the victim have
children together, but the ages of the children are not in the record. Nor does the record
reveal whether the 9-year-old involved in this instance of domestic violence was
appellant’s child.
Richland County, Case No. 15CA6                                                          5


ELEVATE THE DOMESTIC CHARGE PENDING AGAINST DEFENDANT FROM A

MISDEMEANOR LEVEL TO A FELONY LEVEL."

                                       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} Crim. R. 32.1 governs motions to withdraw guilty pleas and provides in

pertinent part: “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.” A defendant does not have an absolute right to withdraw a guilty plea prior to

sentencing, however; a trial court must conduct a hearing to determine whether there is

a reasonable and legitimate basis for the withdrawal of the plea. State v. Hamilton, 5th

Dist. Muskingum No. CT2008–0011, 2008–Ohio–6328, ¶ 32, citing State v. Xie, 62 Ohio

St.3d 521, 584 N.E.2d 715 (1992), at paragraph one of the syllabus.

       {¶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).
Richland County, Case No. 15CA6                                                         6


       {¶18} The good faith, credibility and weight of a defendant's assertions in

support of a motion to withdraw guilty plea are matters to be resolved by the trial court,

which is in a better position to evaluate the motivations behind a guilty plea than is an

appellate court in reviewing a record of the hearing. Xie, supra, 62 Ohio St.3d at 525,

citing State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977).

       {¶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 Crim.R. 11 hearing; (4) whether a full hearing was held on the motion; (5)

whether the trial court gave full and fair consideration to the motion; (6) whether the

motion was made within a reasonable time; (7) whether the motion set forth specific

reasons for the withdrawal; (8) whether the accused understood the nature of the

charges and possible penalties; and (9) whether the accused was possibly not guilty or

had a complete defense to the crime. Id. In weighing the ninth factor, “the trial judge

must determine whether the claim of innocence is anything more than the defendant's

change of heart about the plea agreement.” State v. Davison, 5th Dist. Stark No. 2008–

CA–00082, 2008–Ohio–7037, ¶ 45, citing State v. Kramer, 7th Dist. Mahoning No. 01–

CA–107, 2002–Ohio–4176, ¶ 58.

       {¶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 ORC 2919.25 and
Richland County, Case No. 15CA6                                                          7


therefore this case should be a misdemeanor. This information just came to Counsel’s

attention.” Motion to Vacate Plea, Dec. 18, 2014. Subsequent oral argument on the

motion focused on the status of appellant’s relationship with the victim at the time of the

2008 offense; no evidence was taken but the trial court recited the 2008 police report

stating that the victim and appellant had lived together for three years.

       {¶21} R.C. 2919.25(D) provides for enhancement of the degree of a domestic

violence offense based upon a defendant’s prior convictions and states in pertinent part:

                     (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, or

              2919.22 of the Revised 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 any
Richland County, Case No. 15CA6                                                          8


              other 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
Richland County, Case No. 15CA6                                                         9


             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 R.C. 2903.22, menacing.2

Menacing pursuant to R.C. 2903.22 is defined as an “offense of violence” in R.C.



2R.C. 2903.22, menacing, 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 immediate 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 division, 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
Richland County, Case No. 15CA6                                                          10


2901.01(A)(9)(a).   A conviction of Mansfield Codified Ordinance 537.06 is thus a

“municipal ordinance * * * that is substantially similar to any of those sections” which

enhances the penalty level of a future domestic violence charge “if the victim of the

violation was a family or household member at the time of the commission of the

violation.” R.C. 2919.25(D)(1) and (D)(3).

       {¶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.




or anticipated performance of official responsibilities or duties, menacing is a
misdemeanor of the first degree 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, a felony of the fourth degree.
      (C) As used in this section, “organization” includes an entity that is a
governmental employer.
Richland County, Case No. 15CA6                                                          11


       {¶25} The evidence before the court in the instant case established the victim

was a family or household member at the time of the 2008 offense.             A “family or

household member” includes a “person living as a spouse,” which is a person who is

living or has lived with the offender in a common law marital relationship, who otherwise

is cohabiting with the offender, or who otherwise has cohabited with the offender within

five years prior to the date of the alleged commission of the act in question. R.C.

2919.25(F)(2).

       {¶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
Richland County, Case No. 15CA6                                                         12

be considered sound trial strategy.’” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91,

101, 76 S.Ct. 158 (1955).

       {¶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

Crim.R. 32.1 motion. State v. Emerson, 5th Dist. Richland No. 14 CA 79, 2015-Ohio-

2121, ¶ 25.

       {¶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
Richland County, Case No. 15CA6                                                         13


argument sooner. When the potential argument came to trial counsel’s attention, the

motion to withdraw guilty plea was filed. Entering a guilty plea waives all errors which

may have occurred unless such errors prevented the defendant from entering a

knowing and voluntary plea. State v. Cvijetinovic, 8th Dist. Cuyahoga No. 81534, 2005-

Ohio-380, at ¶ 9, citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d

274 (1969). However, “[t]he mere fact that, if not for the alleged ineffective assistance

of counsel, the defendant would not have entered a guilty plea is not sufficient to

establish the requisite connection between the guilty plea and the ineffective

assistance.” State v. Siler, 11th Dist. Ashtabula No. 2010-A-0025, 2011-Ohio-2326, ¶

62, citing State v. Smith, 17 Ohio St.3d 98, 477 N.E.2d 1128. “Rather, ineffective

assistance of trial counsel is found to have affected the validity of a guilty plea when it

precluded a defendant from entering his plea knowingly and voluntarily.” State v.

Dansby, 5th Dist. Tuscarawas Nos. 2009AP120065 and 2009AP120066, 2010–Ohio–

4538, ¶ 19.

       {¶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).
Richland County, Case No. 15CA6                                                     14


       {¶35} We do not find appellant has demonstrated any deficiency in trial

counsel's representation which would make appellant’s plea involuntary.       State v.

Ybarra, 5th Dist. Licking No. 14-CA-8, 2014-Ohio-3485, ¶ 17-18. Appellant has not

established that counsel erred, much less that any such error prevented the guilty plea

from being knowing and voluntary.

       {¶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.
