2019-Ohio-1243.]




                           COURT OF APPEALS OF OHIO

                          EIGHTH APPELLATE DISTRICT
                             COUNTY OF CUYAHOGA

STATE OF OHIO,                               :

               Plaintiff-Appellee,           :
                                                             Nos. 107254 and 107873
               v.                            :

ANTONIO T. BRADLEY,                          :

               Defendant-Appellant.          :


                            JOURNAL ENTRY AND OPINION

               JUDGMENT: AFFIRMED
               RELEASED AND JOURNALIZED: April 4, 2019


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                            Case No. CR- 17-622208-A


                                     Appearances:

               Mary Catherine Corrigan and Bret Jordan, Jordan &
               Sidoti L.L.P., for appellant.

               Michael C. O’Malley, Cuyahoga County Prosecutor,
               Brian D. Kraft, Assistant County Prosecutor, for appellee.


ANITA LASTER MAYS, J.:

                   In this consolidated appeal, defendant-appellant Antonio T. Bradley

appeals the 21-year prison sentence imposed as the result of a guilty plea to multiple

charges. This court remanded the initial appeal to the trial court to allow Bradley to

move for a plea withdrawal. The motion was denied. The second appeal challenges
the denial of the motion to withdraw the guilty plea and has been consolidated with

the pending appeal. We affirm the trial court’s judgment.

I.    FACTS AND PROCEDURAL HISTORY

              On October 7, 2017, a witness contacted police to report that

individuals driving a minivan committed a “smash and grab” theft of an ATM

machine at a Marathon Gas Station in Broadview Heights, Ohio. Police located the

vehicle and a high-speed chase ensued for approximately eight miles until Bradley,

the driver of the minivan, lost control and crashed into a telephone pole in

Middleburg Heights, Ohio. Bradley and one passenger attempted to flee. The two

remaining passengers were killed. Police discovered the ATM in the minivan.

              On October 17, 2017, Bradley was indicted on 10 criminal counts

including two counts of involuntary manslaughter. On March 29, 2018, Bradley

pleaded guilty to:

      Count 1 — involuntary manslaughter, a first-degree felony, in violation
      of R.C. 2903.04(A);

      Count 2 — aggravated vehicular homicide, a third-degree felony, in
      violation of R.C. 2903.06(A)(2), amended from involuntary
      manslaughter, a first-degree felony, in violation of R.C. 2903.04(A);

      Count 5 — failure to comply, a third-degree felony, in violation of
      R.C. 2921.331(B);

      Count 6 — breaking and entering, a fifth-degree felony, in violation of
      R.C. 2911.13(A);

      Count 8 — safecracking, a fourth-degree felony, in violation of
      R.C. 2911.31(A): and
      Count 10 - receiving stolen property of a motor vehicle, a fourth-degree
      felony, in violation of R.C. 2913.51(A).

              On May 2, 2018, Bradley was sentenced on the following counts to:

      Count 1 — 11 years;
      Count 2 — 5 years;
      Count 5 — 3 years;
      Count 6 — 12 months;
      Count 8 — 18 months; and
      Count 10 — 18 months.

The sentences for Counts 1, 2, 5, and 6 were run consecutively to one another and

Counts 8 and 10 were run concurrent to the other counts. The total term of

incarceration is 20 years.

              Bradley appealed his sentence and this court remanded the appeal to

the trial court for the sole purpose of ruling on a pending motion to withdraw

Bradley’s guilty plea. The trial court denied Bradley’s motion, and the appeal of that

denial was consolidated with the pending appeal.

II.   ASSIGNMENTS OF ERROR

              Bradley offers four assignments of error:

      I.     Appellant Received Ineffective Assistance of Counsel in
             Violation of His Sixth Amendment Right to Counsel.

      II.    The Trial Court Erred by Imposing Consecutive Sentences.

      III.   The Trial Court Erred by Denying the Appellant’s Motion to
             Withdraw His Guilty Plea.

      IV.    The Trial Court Abused its Discretion in Failing to Hold a
             Hearing on Appellant’s Motion to Withdraw Guilty Plea.
III.   DISCUSSION

               We address Bradley=s assignments of error out of order, reserving the

first assigned error for last.

       A.     Second Assignment of Error — Whether the Trial Court
              Erred by Imposing Consecutive Sentences

               Bradley argues that the trial court failed to engage in a proper analysis

and that the record does not support a finding that consecutive sentences were

appropriate. We disagree.

               Our review of felony sentences is guided by R.C. 2953.08(G)(2).

State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, & 1, 21-22.

       Under R.C. 2953.08(G)(2), an appellate court may vacate the
       imposition of consecutive sentences where it “clearly and convincingly”
       finds that (1) the record does not support the trial court’s findings
       under R.C. 2929.14(C)(4) or (2) the sentence is “otherwise contrary to
       law.” R.C. 2953.08(G)(2). If a trial court fails to make the findings
       required under R.C. 2929.14(C)(4), the imposition of consecutive
       sentences is contrary to law. State v. Bonnell, 140 Ohio St.3d 209,
       2014-Ohio-3177, 16 N.E.3d 659, & 37; State v. Primm, 8th Dist.
       Cuyahoga No. 103548, 2016-Ohio-5237, & 66, citing State v. Balbi, 8th
       Dist. Cuyahoga No. 102321, 2015-Ohio-4075, & 4.

State v. Morris, 2016-Ohio-7614, 73 N.E.3d 1010, & 24 (8th Dist.).

               The Ohio Supreme Court held that a trial court is required to “make

three statutory findings” “in order to impose consecutive prison terms for

convictions of multiple offenses.” State v. Beasley, 153 Ohio St.3d 497,

2018-Ohio-493, 108 N.E.3d 1028, & 252, citing R.C. 2929.14(C) and State v.

Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, & 37.
               First, a trial court must find that consecutive sentences are “necessary

to protect the public or to punish the offender. R.C. 2929.14(C)(4).”     Id. at & 252.

Second, a trial court must find that “consecutive sentences are not disproportionate

to the seriousness of the offender=s conduct and to the danger that the offender

poses to the public.” Id. The third requirement is that the trial court make one of

the findings set forth in R.C. 2929.14(C)(4)(a). Id. The findings must be set forth

on the record at the sentencing hearing as well as in the sentencing entry. Id. at &

253, citing Bonnell at & 37.

               The findings required by R.C. 2929.14(C)(4)(a-c) are as follows:

      (a)    The offender committed one or more of the multiple offenses
             while the offender was awaiting trial or sentencing, was under a
             sanction imposed pursuant to section 2929.16, 2929.17, or
             2929.18 of the Revised Code, or was under postrelease control
             for a prior offense.

      (b)    At least two of the multiple offenses were committed as part of
             one or more courses of conduct, and the harm caused by two or
             more of the multiple offenses so committed was so great or
             unusual that no single prison term for any of the offenses
             committed as part of any of the courses of conduct adequately
             reflects the seriousness of the offender=s conduct.

      (c)    The offender=s history of criminal conduct demonstrates that
             consecutive sentences are necessary to protect the public from
             future crime by the offender.

               The parties agreed that none of the counts would merge. At the

sentencing hearing, Bradley advised the court that he was 20 years of age with no

criminal history, had a small son and a child on the way. Additionally, Bradley stated

that he worked at Walmart to support his son.
              Bradley expressed his remorse and said that the three passengers

were like brothers. Bradley and his friends feared for their lives when the police

began their pursuit through Broadview Heights and neighboring suburbs in light of

the widespread publicity of questionable police shootings of suspects. His friends

urged him to get to Cleveland before stopping the vehicle. Bradley also stated that

he has mental health issues.

              Bradley=s mother, aunt, and uncle spoke on his behalf and urged

leniency, saying that all of the families had been hurt by the incident. The family of

the decedents also spoke about their loss.

              The trial court said:

      So being in the vehicle and being involved in the crime that started this
      is when the bad decisions started and then, as you said, you made a bad
      decision when you left the scene. And then as soon as you saw the
      police officer, your vehicle, you driving it, accelled [sic] to 110 miles per
      hour.

      That’s not an accident. When you classify it as being an accident — it’s
      not an accident. It’s a crime. Your actions of accelling [sic] to that
      speed in an area where you could have hurt many more people, but your
      actions caused the death of your two friends. It’s not an accident,
      driving 110 miles per hour. It’s a crime, what you did.

      One individual was ejected, one died on impact. You took off running.
      You say that you looked back to see what the situation was but you
      didn’t even help them. From what I’m reading you took off running so
      that the police couldn’t catch you. You didn’t stay there to wait to see
      how your friends were doing, to check on them. You left. You left them
      there to die just so that you wouldn’t get in trouble. That’s not an
      accident. And now, as I said, because of what you did, two lives are
      gone.

      I’m sure you are hurting. It sounds to me like you were very close to
      them. They were almost your brothers. But you didn’t need to do what
      you did. Because you didn’t want to get caught. You had no
      consideration as to the other lives in your vehicle. You made sure you
      were fine, you got out of the car, and you took off running. Looked back
      to see what was going on. Did you even know that one of your friends
      was ejected? * * *

      As I said, this isn’t an accident; this is a crime. You may not have had
      it in your head that you intended to kill these individuals, that you were
      going to kill them; however, your actions would only amount to
      someone dying. Driving that speed in that area just so you could get
      away.

(Tr. 45-57.)

      I find that a consecutive prison sentence is necessary to protect the
      community and to punish you and it=s not disproportionate. I find that
      the harm is so great or unusual that a single term does not adequately
      reflect the seriousness of your conduct.

      There were two lives lost, two young lives lost as a result of your
      conduct, and I don=t see what could be more serious, require more of
      a sentence as a result of two lives being lost. I find that any less of a
      sentence would demean and minimize the seriousness of your conduct
      and minimize the lives that were lost in the situation.

      In addition to that, I also find that a consecutive sentence is necessary
      because at least two of the multiple offenses were committed as part of
      one or more courses of conduct and the harm caused by two or more of
      the multiple offenses committed was so great or unusual that no single
      prison term for any of the offenses committed as part of any of the
      courses of conduct adequately reflects the seriousness of your conduct.

      As I said, you accelerated your vehicle, with three other individuals in
      that car, at a high rate of speed knowing that the result could be loss of
      life. In addition to that, once you did crash the vehicle you took off
      running. You didn’t even stay there to help these individuals who you
      caused their lives to be lost or to check to see if they were okay. For
      those reasons a consecutive prison sentence is necessary.

(Tr. 60-61.)
              The sentencing entry provides:

      The court imposes prison terms consecutively finding that consecutive
      service is necessary to protect the public from future crime or to punish
      defendant; that the consecutive sentences are not disproportionate to
      the seriousness of defendant=s conduct and to the danger defendant
      poses to the public; and that, at least two of the multiple offenses were
      committed in this case as part of one or more courses of conduct, and
      the harm caused by said multiple offenses was so great or unusual that
      no single prison term for any of the offenses committed as part of any
      of the courses of conduct adequately reflects the seriousness of
      defendant’s conduct.

Journal entry No. 103652610, p. 1-2 (May 8, 2018).

              The record reflects that the trial court addressed the requisite

elements at the sentencing hearing and properly journalized the findings. The

second assignment of error lacks merit.

      B.    Third Assignment of Error — Whether the Trial Court
            Erred by Denying the Appellant’s Motion to Withdraw
            Guilty Pleas

      C.    Fourth Assignment of Error — Whether the Trial Court
            Abused its Discretion in Failing to Hold a Hearing on
            the Appellant’s Motion to Withdraw Guilty Plea

              Bradley advances in his third and fourth assigned errors that the trial

court erred by denying his motion to withdraw his guilty plea and by failing to hold

a hearing on the motion. He argues that withdrawal is required because he relied

on counsel=s promise that he would receive an 11-year sentence rendering his plea

unknowing, involuntary, and unintelligently made. We combine those errors for

analysis.
               A motion to withdraw a guilty plea is governed by the standards set

forth in Crim.R. 32.1, which provides that “[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.” State v. Xie, 62 Ohio St.3d 521,

527, 584 N.E.2d 715 (1992).

               The decision to grant or deny a Crim.R. 32.1 motion is committed to

the sound discretion of the trial court. State v. Smith, 49 Ohio St.2d 261, 264, 361

N.E.2d 1324 (1977), at paragraph two of the syllabus. We will not reverse a trial

court’s decision absent an abuse of discretion. Id., citing Xie at 527. A trial court

abuses its discretion when its judgment is unreasonable, arbitrary, or

unconscionable.      State v. Armstrong, 8th Dist. Cuyahoga No. 101961,

2015-Ohio-3343, citing Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d

1140 (1983).

               Bradley first argues that his guilty plea was not knowingly,

intelligently, or voluntarily made because his attorney told him that he would only

receive an 11-year sentence on the felonious assault charge. The plea colloquy was

extremely thorough and Bradley stated that he was pleased with the services of his

attorney. (Tr. 14.) The trial court explained the impact of the merger waiver for the

counts, “[s]o you=re agreeing [that Counts 1 and 2] are non-allied offenses so you

can be sentenced on both of them.” Bradley responded that he understood.
               The trial court next proceeded to explain the minimum and

maximum prison sentence and fine for each count and, each time, Bradley said that

he understood.

      Court:      All right. Now, based on all of the counts that you’re going
                  to be pleading guilty to, I have to inform you of the
                  maximum potential prison sentence that you could
                  receive under the plea agreement. When I add up all of
                  the time that you could receive on all of the counts that
                  you’re pleading guilty to, if you received a maximum
                  consecutive prison sentence, then you are looking at what
                  I’ve added up to be 23 years. Is that what you add up?

      State:      That is correct, Your Honor.

      Court:      Is that what you add up, [Counsel].

      Counsel:    Yes, Your Honor.

      Court:      So do you understand that?

      Bradley:    Yes, Your Honor.

      Court:      Okay. So is there — are you having an issue? What’s the
                  issue?

      Counsel:    I’m sorry?

      Court:      What’s the issue over there? I see that he’s talking.

      Counsel:    No, the — the sentence is a little intimidating, that’s all.

      Court:      So do you have an issue? Do you understand what your
                  maximum potential prison sentence is?

      Bradley:    Yes, Your Honor.

      Court:      Okay. So do you have any questions about that?

      Bradley:    No, Your Honor.
(Tr. 21-22.)

               The trial court also inquired, “[d]o you understand that there is no

promise of a particular sentence.” Bradley responded, “Yes, Your Honor.” (Tr. 28.)

               At the May 7, 2018 post-sentence hearing held to advise Bradley of

his appellate rights, the following exchange took place:

      Bradley:     I would like to take my plea back.

      Court:       All right. Well, you can talk to your lawyer about that.
                   Okay?

      Bradley:     He told me that 11 years is the maximum I can get.

      Counsel:     Never, ever, ever happened.

      Bradley:     I told him multiple times I did not want to take this.

      Counsel:      I never, ever promised you that.

      Bradley:     Yes, you did.

      Counsel:     I did not.

      Bradley:     Yes, he did, Your Honor.

      Counsel:     I said I was trying for that. I never said you were going to
                   get that. Never, ever, ever. Not now, not ever. I don’t do
                   that.

      Court:       All right. So that=s an issue that you would have to
                   address later. Okay?

      Bradley:     Yes, Your Honor.

(Tr. 65-66.)

               Bradley argued in the motion to withdraw that his plea was not

knowingly, intelligently, and voluntarily made. Bradley=s accompanying affidavit
provided that he had not been advised of his potential defenses or reviewed

discovery in the case.

               Bradley also claimed in the motion that he was misled by his counsel,

not by the trial court, rendering his counsel=s assistance ineffective. He also averred

that he was not familiar with the court system because he had no prior criminal

offenses and that he was not aware that some of the offenses for which he was

convicted were allied offenses. In spite of the plea colloquy, Bradley also stated that

he did not understand that all of the convictions, and not just Counts 1 and 2 as

stated during the colloquy, could result in consecutive sentences. In essence, he

claims that he did not understand to what he agreed.

               The transcript of the plea colloquy and the appeal advisement hearing

reflects some degree of conflict between Bradley and his counsel regarding his

sentence and withdrawal of the plea. Counsel admitted on the record that he told

Bradley that he was trying to get an 11-year sentence but said he never promised it.

Bradley argued he did not understand because he has never been involved with the

criminal justice system. We find that the record does not support that Bradley was

promised an 11-year sentence.

               Bradley also argues that the court should have conducted a hearing

on his motion to withdraw his guilty plea and that his plea should be vacated as a

result. “A postconviction Crim.R. 32.1 motion to withdraw a guilty plea should be

granted, only in extraordinary cases, to correct a manifest injustice.” Crim.R. 32.1.;

State v. Smith, 49 Ohio St.2d 261, 264, 361 N.E.2d 1324 (1977). The “manifest
injustice” standard is an extremely high standard, which permits the withdrawal of

a guilty plea only in extraordinary cases. Id. at 264.

               A hearing is not mandatory in a postconviction motion to withdraw a

guilty plea. State v. Tucker, 8th Dist. Cuyahoga No. 90799, 2008- Ohio- 5746, & 23.

A “trial court’s decision to deny the motion without a hearing is granted great

deference.     State   v. Woods, 8th Dist. No. 84993, 2005-Ohio-3425.”

Richmond Hts. v. McEllen, 8th Dist. Cuyahoga No. 99281, 2013-Ohio-3151, ¶ 9. It

is well within the trial court’s discretion to deny Bradley’s motion to withdraw his

guilty plea. According to the record, his plea was not induced by the court or by his

attorney. The trial judge explained to Bradley several times what the minimum and

maximum sentences were for his convictions.

               The court thoroughly explained the plea deal and Bradley responded

affirmatively to the trial court’s repeatedly asking him if he understood and agreed.

The trial court also asked Bradley whether he had any questions about the plea

agreement. Bradley said he understood the terms and that he agreed to everything

the trial court said. Bradley also stated that he was satisfied with defense counsel.

There is no indication in the record that a manifest injustice occurred during his

plea. For this reason, we overrule Bradley=s third and fourth assignments of error.

      D.     First Assignment of Error — Whether the Trial Court
             Received Ineffective Assistance of Counsel in Violation of His
             Sixth Amendment Right to Counsel

               It is Bradley=s burden to prove that counsel was ineffective. State v.

Hudson, 8th Dist. Cuyahoga No. 96435, 2011-Ohio-6272, & 23, citing State v. Smith,
17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). A guilty plea waives a claim for

ineffective assistance of counsel

       “unless the ineffective assistance caused the guilty plea to be
       involuntary.” State v. Hicks, 8th Dist. No. 90804, 2008 Ohio 6284,
       &24. To prove a claim of ineffective assistance of counsel after having
       pleaded guilty, a defendant “must demonstrate that there is a
       reasonable probability that, but for counsel=s errors, [he] would not
       have pled guilty and would have insisted on going to trial.” State v.
       Szakacs, 8th Dist. No. 92230, 2009 Ohio 5480, &15, citing Hill v.
       Lockhart, 474 U.S. 52, 58-59, 106 S.Ct 366, 88 L.Ed.2d 203 (1985).

Id. at & 24.

               Bradley stated on the record that his attorney told him that he would

receive an 11-year sentence. Bradley’s counsel responded that he only said that he

was seeking an 11-year sentence for Bradley.

               The trial court explained in meticulous detail the possible penalty for

each offense and the aggregate possible penalty that Bradley could receive. Bradley

also responded that no threats or promises had been made to induce him to enter

into his plea and that he was pleased with his counsel=s performance. The record

does not support the assertion of a deficient performance by counsel that, but for

counsel’s errors, he would not have pled guilty and would have insisted on going to

trial. Id. See also State v. Simmons, 8th Dist. Cuyahoga No. 94982, 2010-Ohio-

6188, ¶ 13-14, citing State v. Blatnik, 17 Ohio App.3d 201, 202-203, 478 N.E.2d 1016

(6th Dist.1984) (counsel’s speculation of the type of sentence that will be imposed

does not necessarily constitute manifest injustice in the face of an adequate
explanation on the record). Therefore, Bradley=s first assignment of error is

overruled.

IV.   CONCLUSION

              The trial court’s judgment is 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 of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending 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.


_____________________________
ANITA LASTER MAYS, JUDGE

SEAN C. GALLAGHER, P.J., and
EILEEN A. GALLGHER, J., CONCUR
