[Cite as State v. Shivers, 2016-Ohio-1378.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 103056




                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                     DORJAN SHIVERS
                                                    DEFENDANT-APPELLANT




                                       JUDGMENT:
                                    REVERSED, VACATED
                                      AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-584116-A

        BEFORE: E.A. Gallagher, P.J., Kilbane, J., and McCormack, J.

        RELEASED AND JOURNALIZED: March 31, 2016
ATTORNEYS FOR APPELLANT

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
EILEEN A. GALLAGHER, P.J.:

       {¶1} This case came to be heard upon the accelerated calendar pursuant to App.R.

11.1 and Loc.R. 11.1.       Defendant-appellant Dorjan Shivers appeals his conviction

following a guilty plea.   For the following reasons, we reverse and remand.

       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
at the time of the plea hearing, that his prior counsel failed to effectively assist in his

defense and interview potential witnesses and that he has always maintained his

innocence and, in a supplemental motion to withdraw his guilty plea, Shivers attached an

affidavit of another potential witness, Juran Hill. In his motion, Shivers claimed that he

was not aware of videotaped police interviews of White and himself.        He claimed that

the interviews, unbeknownst to him, contained exculpatory information.             He also

asserted that his prior counsel never interviewed Juran Hill, a potential witness and the

trial court failed to inform Shivers that his guilty plea would be a complete admission of

guilt.

         {¶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
       {¶7} The withdrawal of a guilty plea is governed by Crim.R. 32.1, that states:

       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 Crim.R. 11, before he

entered the plea, (3) after the motion to withdraw is filed, the accused is given a complete

and impartial hearing on the motion, and (4) the court gives full and fair consideration to

the plea withdrawal request. State v. Peterseim, 68 Ohio App.2d 211, 214, 428 N.E.2d

863 (8th Dist.1980).
      {¶10} We have additionally considered factors such as whether the motion was

made timely; whether the motion states specific reasons for withdrawal; whether the

defendant understood the nature of the charges and the possible penalties; whether the

defendant was perhaps not guilty or had a complete defense; whether the state would

suffer prejudice if the defendant is allowed to withdraw the plea. State v. Benson, 8th

Dist. Cuyahoga No. 83718, 2004-Ohio-1677, ¶ 9; State v. Sellers, 10th Dist. Franklin No.

07AP-76, 2007-Ohio-4523, ¶ 34. This list “is not exhaustive, and other factors will appear

to trial and appellate courts depending upon the merits of each individual case.” State v.

Fish, 104 Ohio App.3d 236, 240, 661 N.E.2d 788 (1st Dist.1995).

      {¶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. Crim.R. 16(B) provides, in relevant part:

      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, he 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 Crim.R. 16] is twofold: to allow

a defendant to make an intelligent plea, and to ensure the defendant a fair trial by

alleviating surprise.”).

       {¶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 [Crim.R. 16(B)(1)] the rule is required because the purpose

of the rule is to remove the element of gamesmanship from the trial.”).

       {¶14} The state argues that the violation of Crim.R. 16(B) should be ignored

because appellant received “summaries” of the police interviews.       We find this a hollow,

insufficient excuse, particularly in light of the fact that the record indicates that more than

two hours of recorded interviews were summarized in less than three pages of reports.

Furthermore, we do not subscribe to the theory that the full breadth and context of a video

recorded interview can fairly be distilled into a three page, written summary.        Crim.R.

16(B) would appear to support this conclusion.

       {¶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 absolve 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.
Summit No. 25298, 2011-Ohio-564, ¶ 10; State v. Wiles, 59 Ohio St.3d 71, 78, 571

N.E.2d 97 (1991).

       {¶16} In this instance, the state plainly failed to comply with Crim.R. 16(B),

precluding appellant from analyzing the statements he and Chris White made to police

and hampering his ability to enter an intelligent plea.    In White’s interview, he stated

that he was in the room during portions of a sexual encounter between appellant and one

of the victims. White maintained that the victim was not drunk and the sexual activity

appeared to be consensual.      Furthermore, the affidavits of appellant, White and another

purported witness, Juran Hill, uniformly assert that appellant’s original trial counsel

neglected to interview witnesses who interacted with one of the alleged victims during the

relevant events of this case.   On these facts, and considering that presentence motions to

withdraw guilty pleas are to be freely allowed and treated liberally, we find that the trial

court abused its discretion in denying Shivers’ motion.

       {¶17} Shivers’ sole assignment of error is sustained.

       {¶18} The judgment of the trial court is reversed, sentence vacated and 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
Rule 27 of the Rules of Appellate Procedure.




_______________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE

MARY EILEEN KILBANE, J., CONCURS;
TIM McCORMACK, J., DISSENTS


TIM McCORMACK, J., DISSENTING:

       {¶19} For the reasons that follow, I respectfully dissent.

       {¶20} Crim.R. 32.1 governs withdrawals of guilty pleas and provides as follows: “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.”        Generally, a presentence motion to

withdraw a guilty plea should be freely granted. State v. Xie, 62 Ohio St.3d 521, 527, 584

N.E.2d 715 (1992). It is well established, however, that a defendant does not have an absolute

right to withdraw a guilty plea prior to sentencing. The trial court must, therefore, hold a hearing

in order to determine whether there is a “reasonable and legitimate basis for the withdrawal of

the plea.” Id.

       {¶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
shown that the trial court acted unjustly or unfairly, there is no abuse of discretion.’”   Peterseim

at 213, 214, quoting Barker v. United States, 579 F.2d 1219, 1223 (10th Cir.1978).

       {¶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 Crim.R. 11,

before he entered the plea; (3) when, after the motion to withdraw is filed, the accused is

given a complete and impartial hearing on the motion; and (4) the record reveals that the

court gave full and fair consideration to the plea withdrawal request. Peterseim at

paragraph three of the syllabus. Additional factors this court has considered include

whether the motion was made in a reasonable time; whether the motion states specific

reasons for withdrawal; whether the accused understood the nature of the charges and the

possible penalties; and whether the accused was perhaps not guilty or had a complete

defense. Benson, 8th Dist. Cuyahoga No. 83178, 2004-Ohio-1677, at ¶ 8, 9.

       {¶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
one of the attorneys had, in fact, been retained.       Moreover, it is well-settled that a

properly licensed attorney practicing in this state is presumed to be competent. State v.

Creed, 8th Dist. Cuyahoga No. 97317, 2012-Ohio-2627, ¶ 11.

       {¶24} The record further shows that Shivers was afforded a full Crim.R. 11 hearing

before he entered his plea and he understood the nature of the charges and the possible penalties.

 Under Crim.R. 11(C), prior to accepting a guilty plea in a felony case, the trial court must

conduct an oral dialogue with the defendant to ensure the following: that the plea is voluntary,

with the understanding of the nature of the charges and the maximum penalty involved and, if

applicable, that the defendant is not eligible for community control sanctions; that the defendant

understands the effect of his or her plea; and that the defendant understands the constitutional

rights he or she waives by pleading guilty, including 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.              Crim.R.

11(C)(2)(a)-(c); see, e.g., State v. Hussing, 8th Dist. Cuyahoga No. 97972, 2012-Ohio-4938, ¶

18.

       {¶25} Strict compliance is required if the appellant raises a violation of a constitutional

right delineated in Crim.R. 11(C)(2)(c). When the trial court fails to explain the constitutional

rights set forth in Crim.R. 11(C)(2)(c), it is presumed the plea was entered involuntarily and

unknowingly and therefore invalid.     State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893

N.E.2d 462, ¶ 31.
      {¶26} When the appellant raises a violation of a nonconstitutional right, however,

found in Crim.R. 11(C)(2)(a) and (b), we look for substantial compliance.         State v.

Joachim, 8th Dist. Cuyahoga No. 90616, 2008-Ohio-4876, ¶ 8. For example, if the trial

court imperfectly explained nonconstitutional matters such as the effect of the plea, a

substantial-compliance standard applies. Clark at ¶ 31.    “Under this standard, a slight

deviation from the text of the rule is permissible; so long as the totality of the

circumstances indicates that ‘the defendant subjectively understands the implications of

his plea and the rights he is waiving,’ the plea may be upheld.” Id., quoting State v.

Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).

      {¶27} When the trial court does not substantially comply with Crim.R. 11 with

regard to a nonconstitutional right, reviewing courts must determine whether the trial

court partially complied or completely failed to comply with the rule.   If the trial court

partially complied, the plea may be vacated only if the defendant demonstrates a

prejudicial effect. Clark at ¶ 32.    The test for prejudice is “whether the plea would

have otherwise been made.” Nero at 108.

      {¶28} Here, prior to accepting Shivers’s plea, the trial court engaged in a Crim.R.

11 colloquy.   The court explained to Shivers his constitutional rights to a trial, to

confront witnesses, to present evidence and witness testimony, and to remain silent during

trial. The court also asked Shivers several times if he understood his options, to which

Shivers replied in the affirmative.    The court reminded Shivers that if he did not

understand something or needed to confer at any point with his attorney, to let the court
know, and it would “make sure that happens.”      The court also advised Shivers about the

possible penalties, including the maximum sentence. The court discussed the parties’

agreement of a prison term and the possibility of judicial release.   Shivers indicated that

he understood. Shivers also advised the court that there had been no threats or promises

made, other than what was put on the record.

       {¶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 advised 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
proceedings or his rights, stating, “Sometimes guys in your shoes, as soon as they walk

out of court, turn to their lawyer and [say], hey, man, what the heck just happened in

there.    I don’t understand anything that judge was talking about.”         The court then

inquired, “Do you think you have a clear understanding of what we talked about here,

your maximum penalties and obligations?”            Shivers replied, “Yes, your Honor.”

Moreover, the transcript is devoid of any evidence of confusion or misunderstanding.

         {¶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
admission of his guilt. Moreover, there is no evidence that Shivers asserted actual

innocence any time during the plea colloquy.        Shivers is therefore presumed to have

understood that he completely admitted his guilt.

       {¶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 Crim.R. 11 is

presumed not to be prejudicial.” Griggs at syllabus.

       {¶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
upon initial discovery. The state provided that the summaries do not include any detail

that is not already included in the police report that was made available in discovery prior

to the plea.   The state further provided that the alleged potential witnesses identified in

Shivers’s affidavits, Chris White and Juran Hill, are Shivers’s friends. Therefore, the

content of their testimony would have been available to Shivers at any time.      The state

also noted that Shivers failed to identify anything in the videos that would prove new 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 attempted 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 summaries

       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.”
       {¶40} Prior to making a ruling, the court noted that it reviewed Shivers’s motion

and supplemental motion, as well as the transcript of the plea hearing.          It provided

Shivers an opportunity to address the court; however, Shivers declined. The court then

noted that it considered the fact that Shivers had two highly competent attorneys represent

him prior to the hearing on the motion to withdraw, one of which Shivers had retained.

The court also noted that it had a “lengthy conversation about judicial release,” Shivers’s

pain medication, and his possible sentence:

       [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 considered 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
additional evidence.     In response, the defense offered the plea transcript and the two

videotaped interrogations.      Shivers provided no additional evidence or witness

testimony.   Nor did he offer any specific statements from the interviews that constituted

new or exculpatory evidence that had not been previously documented in the interview

summaries.

       {¶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 evidence.

       {¶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 violation of Crim.R. 16. It appears,

rather, that the state inadvertently failed to turn over the videotapes because, for a period of time,

it had no knowledge of them. Furthermore, Shivers has failed to demonstrate specifically how

the interviews would have assisted in his defense or how he was prejudiced by not having

evidence purportedly contained in the interviews. See Pagan, 8th Dist. Cuyahoga No. 97268,
2012-Ohio-2197, at ¶ 37, citing State v. Parson, 6 Ohio St.3d 442, 445, 453 N.E.2d 689 (1983)

(In determining the appropriate sanctions for a discovery violation, the trial court considers

whether the prosecution’s violation was wilful, whether the undisclosed statement would have

benefitted the defense, or whether the accused was prejudiced.).            In fact, Shivers fails to

specifically identify any exculpatory evidence contained in the interviews that was not

previously contained in the police report or the summaries. And when provided with the

opportunity to do so by the trial court, Shivers offered only the transcript of the plea and the

interviews in their entirety as exhibits.       Shivers did not extricate particular exculpatory

statements from the interviews or present the testimony of either Chris White or Juran Hill for

the trial court to consider. It is not the state’s burden, nor is it the trial court’s role, to discern

what evidence is exculpatory or would have benefitted the defense, or the evidence of which

prior counsel was, or was not, aware.

       {¶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.
