[Cite as State v. Porter, 2016-Ohio-5832.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 103185




                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                  ROBERT M. PORTER
                                                    DEFENDANT-APPELLANT




                       JUDGMENT:
   AFFIRMED IN PART, REVERSED IN PART, AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-585728-A

        BEFORE: Laster Mays, J., Kilbane, P.J., and Boyle, J.

        RELEASED AND JOURNALIZED: September 15, 2016
                               -i-
ATTORNEY FOR APPELLANT

Christopher R. Fortunato
13363 Madison Avenue
Lakewood, Ohio 44107


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By:    Gregory J. Ochocki
       Kevin R. Filiatraut
Assistant County Prosecutors
Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

       {¶1} Defendant-appellant, Robert M. Porter (“Porter”), appeals his guilty plea and

sentence and asks this court to remand to the trial court ordering it to vacate his sentence

and plea.   After review of the record, we affirm in part, reverse in part, and remand to

the trial court for resentencing.

I.     Facts

       {¶2} Porter was indicted in Cuyahoga C.P. No. CR-14-585728 on the following

eight counts for the armed robbery and murder of Curtis Marks (“Marks”).

       Count 1:       Participating in a Criminal Gang, in violation of
                      R.C. 2923.42(A), a second-degree felony, with one- and
                      three-year firearm specifications;

       Count 2:       Aggravated Murder, in violation of R.C. 2903.01 (A), an
                      unclassified felony, with one- and three-year firearm
                      specifications and a criminal gang activity specification;

       Count 3:       Aggravated Murder, in violation of R.C. 2903.01(B), an
                      unclassified felony, with one- and three-year firearm
                      specifications and a criminal gang activity specification;

       Count 4:       Aggravated Robbery, in violation of R.C. 2911.01(A)(1), a
                      first-degree felony, with one- and three-year firearm
                      specifications and a criminal gang activity specification;

       Count 5:       Murder, in violation of R.C. 2903.01(B), an unclassified
                      felony, with one- and three-year firearm specifications and a
                      criminal gang activity specification;

       Count 6:       Felonious Assault, in violation of R.C. 2903.11(A)(1), a
                      second-degree felony, with one- and three-year firearm
                     specifications and a criminal gang activity specification;

       Count 7:      Kidnapping, in violation of R.C. 2905.01(A)(2), a first-
                     degree felony, with one- and three-year firearm specifications
                     and a criminal gang activity specification; and

       Count 8:      Having Weapons Under Disability, in violation of
                     R.C. 2923.13(A)(2), a third-degree felony, with one- and
                     three-year firearm specifications.

       {¶3} On August 27, 2014, the first day of trial, Porter agreed to plead guilty to

Count 3, an amended charge of involuntary manslaughter in violation of R.C. 2903.04, a

first-degree felony with a three-year firearm specification; and Count 4, aggravated

robbery in violation of R.C. 2911.01, a first-degree felony. The one-year firearm

specification and criminal gang activity specification on Count 3 would be dismissed

along with all specifications on Count 4. The remaining counts would be nolled. The

parties agreed that the sentencing range for this plea would be from 10 to 20 years

incarceration, and that Porter would have to testify against his codefendant, Julius

Webster (“Webster”).

       {¶4} The trial court conducted a plea hearing pursuant to Crim.R. 11, advising

Porter of his rights and ensuring that Porter’s plea was made knowingly, intelligently, and

voluntarily.   Porter assured the court that he understood the plea.        The trial court

informed Porter that because he was still on community control, it could affect his

sentencing. (Tr. 10 and 11.) Porter was on community control in Cuyahoga C.P. No.

11-CR-548804. Porter stated that he understood. When the trial court completed its

plea colloquy, Porter pleaded guilty to the amended charges.
       {¶5} In January 2015, Webster’s trial began and Porter refused to testify. On

February 2, 2015, Porter filed a motion to withdraw his guilty plea. On February 19,

2015, the trial court conducted a hearing on Porter’s motion to withdraw his guilty plea.

Porter testified that he had been threatened by Webster because of his decision to testify

against Webster as part of his plea deal.        (Tr. 48.)     Porter testified that he was

concerned for the safety of his family, including his child, because threats had been made

against them. (Tr. 62.)

       {¶6} Porter was also concerned that he would have to testify about his relationship

with the police department as a confidential informant.      (Tr. 38 - 40.)   The officer that

Porter worked with told him that their relationship could be discovered during Porter’s

testimony and that it could threaten Porter and his family’s safety. Id. Porter testified

that he was unaware that his relationship with the police department would be discovered

during his testimony at the Webster trial. (Tr. 63.)

       {¶7} In addition to being fearful, Porter testified that he was innocent of the

charges and should not have pleaded guilty. (Tr. 64.) Porter stated that he wanted to

still testify against Webster, but change his plea to not guilty. Id.   The state argued that

Porter’s plea was made knowingly and voluntarily.       (Tr. 71.)   The trial court overruled

the motion on March 3, 2015, and proceeded to sentence Porter.

       {¶8}    The trial court sentenced Porter to ten years incarceration for involuntary

manslaughter plus three years for the firearm specification.    Porter was also sentenced to

seven years for aggravated robbery.       The sentences were run consecutively for an
aggregate of 20 years imprisonment.        The trial court also ordered five years of

mandatory postrelease control. Porter was on community control in Cuyahoga C.P. No.

CR-11-548804.     Porter was sentence to four years incarceration for violating his

community control, to be served consecutively to Cuyahoga C.P. No. CR-14-585728, for

an aggregate of 24 years imprisonment.    Porter filed this timely appeal and assigns three

assignments of error for our review.

      I.    The trial court abused its discretion when it overruled the appellant’s
      motion to withdraw his plea.

      II.    The trial court abused its discretion when it sentenced the appellant
      to an addition term of incarceration in Cuyahoga C.P. No. 548804
      additional to the instant case, when the appellant was not advised of such an
      additional time during his change of plea.

      III. The appellant did not receive effective assistance of counsel who did
      not advise the appellant about serving any time of incarceration beyond 20
      years in violation of the Due Process Clause of the Fourteenth Amendment
      of the United States Constitution and Article I, Section 10 of the Ohio
      Constitution.

II.   Withdrawing a Guilty Plea

      A.     Standard of Review

      {¶9} We reviewed the denial of a motion to withdraw a guilty plea under an abuse

of discretion standard. “For us to find an abuse of discretion in this case, we must find

more than an error of judgment.        We must find that the trial court’s ruling was

unreasonable, arbitrary or unconscionable.” State v. Xie, 62 Ohio St.3d 521, 527, 584

N.E.2d 715 (1992).

      A motion to withdraw a guilty plea is governed by the standards set forth in
      Crim.R. 32.1: 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. Zaslov, 8th Dist. Cuyahoga No. 95470, 2011-Ohio-2786, ¶ 7.

       {¶10} “The general rule is that motions to withdraw guilty pleas before sentencing

are to be freely and liberally allowed.” Id. at ¶ 8.      “However, a defendant does not

have an absolute right to withdraw a guilty plea prior to sentencing.” Xie at 526.       “In

ruling on a presentence motion to withdraw a plea, the court must conduct a hearing and

decide whether there is a reasonable and legitimate basis for withdrawal of the plea.” Id.

at 527. “The decision to grant or deny such a motion is within the sound discretion of

the trial court.” Id.

       B.     Law and Analysis

       {¶11} In Porter’s first assignment of error, he argues that the trial court abused its

discretion when it overruled his motion to withdraw his plea.

       A trial court does not abuse its discretion in overruling a motion to
       withdraw: (1) where the accused is represented by highly competent
       counsel, (2) where 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) where the record reveals that the court gave full and fair
       consideration to the plea withdrawal request.

State v. Gibson, 8th Dist. Cuyahoga No. 102704, 2015-Ohio-5258, ¶ 7, citing State v.

Peterseim, 68 Ohio App.2d 211, 214, 428 N.E.2d 863 (8th Dist.1980).

       {¶12} In addition to the four factors listed upon, this court has expanded the

factors to include: (5) whether the court gave full and fair consideration to the motion;
(6) whether the motion was made in a reasonable time; (7) whether the motion states

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

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

had a complete defense.          State v. Robinson, 8th Dist. Cuyahoga No. 89651,

2008-Ohio-4866, ¶ 23.

        {¶13}   In this case, Porter did not contest the first three factors of the Peterseim

test.   The record reveals that Porter was represented by highly competent counsel; that

he was afforded a full hearing, pursuant to Crim.R. 11, before he entered his plea and that

Porter was afforded a complete and impartial hearing on the motion.           Porter, however,

argues that the fourth factor was not satisfied. Porter contends that the court did not give

full and fair consideration to the plea withdrawal request because the court considered the

timing of the request versus the fear Porter felt for him and his family’s safety. The

motion was filed five months after Porter’s plea was entered.

        {¶14} The trial court disagreed with Porter’s assertion and stated,

        You reached an agreement with the state of Ohio in this matter to cooperate
        and at that point you reached the point of no return. There is no turning
        back from that. And I know that’s a pill that’s hard to swallow. You had
        to do what you were supposed to do and you didn’t do it. And for
        whatever reasons, I’m not going to get into whatever reasons. We had a
        hearing in this matter. I did not find that your reasons were credible and,
        therefore, I did not allow you to withdraw the guilty plea.

(Tr. 101.)

        {¶15} Porter testified at the motion hearing that he was scared for his and his

family’s safety, he still wanted to testify against Webster.     He stated, “I said I’ll still
testify against Julius Webster, but I want to withdraw my plea.”         (Tr. 65.)   The trial

court did not abuse its discretion in overruling the motion to withdraw the guilty plea

because Porter did not provide a legitimate and reasonable basis for the withdrawal of the

plea.     Therefore, Porter’s first assignment of error is overruled.

II.      Sentencing in CR-11-548804

         A.     Standard of Review

         {¶16} The Ohio Supreme Court, in State v. Marcum, Slip Opinion

No. 2016-Ohio-1002, addresses the standard of review that appellate courts must apply

when reviewing felony sentences. Applying the plain language of R.C. 2953.08(G)(2),

the Ohio Supreme Court determined that an appellate court need not apply the test set out

in State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124.           Marcum at ¶

1.    An appellate court may vacate or modify a felony sentence on appeal only if it

determines by clear and convincing evidence that the record does not support the trial

court’s finding under relevant statutes or that the sentence is otherwise contrary to law.

Id.     The court held that appellate courts may not apply the abuse of discretion standard in

sentencing-term challenges. Id. at ¶ 10.

         {¶17} Clear and convincing evidence is that measure or degree of proof which is

more then a mere “preponderance of the evidence,” but not to the extent of such certainty

as is required “beyond a reasonable doubt” in criminal cases, and that will produce in the

mind of the trier of facts a firm belief or conviction as to the facts sought to be

established. Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph
three of the syllabus.   Marcum at ¶ 22. “Contrary to law means that it is unlawful or is

in violation of a legal regulation or a legal statute.”    The Law Dictionary, Featuring

Black’s     Law     Dictionary     Free     Online     Legal     Dictionary     2nd      Ed.,

http://thelawdictionary.org/contrary-to-law/ (accessed July 28, 2016).

       B.       Law and Analysis

       {¶18} In Porter’s second assignment of error, he contends that the trial court

abused its discretion when it sentenced him to an additional term of incarceration in

CR-11-548804, additionally to the instant case, when Porter was not advised of such an

additional time during his change of plea.       This issue was modified in appellant’s

supplement brief. Porter’s second assignment of error as amended contends that the trial

court’s sentencing of appellant to four years for three offenses is contrary to law under

R.C. 2953.08(G). Porter contends that the trial court failed to notify him that if he

violated his community control sanctions, he could be sent to prison for that stated

amount of time. According to the journal entry from CR-11-548804, the trial judge

advised Porter that if he violated his supervision, “the parole board may impose a prison

term as apart of the sentence of up to one-half of the stated prison term originally imposed

upon” Porter.

       If the sentencing court determines at the sentencing hearing that a
       community control sanction should be imposed and the court is not
       prohibited from imposing a community control sanction, the court shall
       impose a community control sanction. The court shall notify the offender
       that, if the conditions of the sanction are violated, if the offender commits a
       violation of any law, or if the offender leaves this state without the
       permission of the court or the offender’s probation officer, the court may
       impose a longer time under the same sanction, may impose a more
      restrictive sanction, or may impose a prison term on the offender and shall
      indicate the specific prison term that may be imposed as a sanction for the
      violation, as selected by the court from the range of prison terms for the
      offense pursuant to section 2929.14 of the Revised Code.

R.C. 2929.19(B)(4).

      Having established that the statutory scheme envisions the sentencing
      hearing itself as the time when the notification must be given, we next
      consider what language the trial court should use. By choosing the word
      “specific” in R.C. 2929.19(B)(4) to describe the notification that a trial
      judge must give when sentencing an offender to community control, the
      General Assembly has made clear that the judge shall, in straightforward
      and affirmative language, inform the offender at the sentencing hearing that
      the trial court will impose a definite term of imprisonment of a fixed
      number of months or years, such as “twelve months’ incarceration,” if the
      conditions are violated. To comply with the literal terms of the statute, the
      judge should not simply notify the offender that if the community control
      conditions are violated, he or she will receive “the maximum,” or a range,
      such as “six to twelve months,” or some other indefinite term, such as “up
      to 12 months.” The judge is required to notify the offender of the “specific”
      term the offender faces for violating community control.

State v. Brooks, 103 Ohio St.3d 134, 2004-Ohio-4746, 814 N.E.2d 837, ¶ 19.

      {¶19} Because the trial court judge did not state a specific prison term, but rather

stated “violation of the terms and conditions may result in more restrictive sanctions as

approved by law.   * * * [p]arole board may impose a prison term as part of the sentence

of up to one-half of stated prison term originally imposed upon the offender,” the court

did not strictly comply with R.C. 2929.19(B)(4).

      “While we recognize the statutory complexities that have caused some
      courts to reject a strict-compliance view of R.C. 2929.19(B)(4) as overly
      literal, we cannot accept a substantial-compliance interpretation.” Id. at ¶
      24. The General Assembly has explicitly set forth the specific prison term
      requirement and has used the word shall to indicate the mandatory nature of
      the provision. What the statute requires is clear, although reasonable
      minds could differ on how important this requirement is in the grand
       scheme of R.C. Chapter 2929. We will not interpret such a clear statute to
       mean anything other than what it unmistakably states. See Comer, 99
       Ohio St.3d 463, 2003-Ohio-4165, 793 N.E.2d 473, at ¶ 20 (when the intent
       of a statute is clear, it must be enforced as written). To do so would be to
       rewrite a statute that is clear on its face.

Id.

       {¶20} “Our interpretation squares with a dominant purpose of current sentencing

procedures, truth in sentencing, which aims to eliminate indefinite sentences in favor of

specific terms, to increase certainty and predictability in sentencing.” Id. at ¶ 25.    See

Woods v. Telb, 89 Ohio St.3d 504, 508, 733 N.E.2d 1103 (2000).

       The General Assembly has entrusted considerable discretion to trial judges
       who sentence community control violators under R.C. 2929.15(B), thus
       seeming to downplay definiteness in sentencing due to the unpredictability
       of what a violation might be. Despite that discretion, R.C. 2929.19(B)(4)’s
       specific term requirement is clear on its face, and the General Assembly’s
       direction that, at the time of the initial sentencing to community control, the
       offender should be informed of the definite prison term that awaits if
       community control is violated is totally consistent with the overall scheme
       of R.C. Chapter 2929.

Brooks at ¶ 25.

       {¶21} Like in this case “a recurrent scenario involves a trial court that gave notice

to the offender under R.C. 2929.19(B)(5) that the trial court would impose ‘up to’ a

certain number of months or years for a violation.” Id. at ¶ 26. See, e.g., State v.

Grodhaus, 144 Ohio App.3d 615, 2001-Ohio-2511, 761 N.E.2d 80 (4th Dist.) (trial court

failed to comply with R.C. 2929.19(B)(4) when court warned offender it would impose “a

prison term of up to five years” for a violation of community control); State v. Housley,

12th Dist. Clermont No. CA2002-07-060, 2003-Ohio-2223 (adequate compliance found
when trial court informed the offender it could impose any term up to the five-year

maximum). However,

       as discussed above, this notice was ineffective because it did not occur at
       the sentencing hearing, but under the court of appeals’ general approach to
       the certified issue, that court would surely have found the same statement
       sufficient to comply with R.C. 2929.19(B)(5) if it had occurred at the
       sentencing hearing.

Brooks at ¶ 26.

       {¶22} “We determine that because R.C. 2929.19(B)(4) is so clear in requiring that

the offender be notified of the specific term that awaits a violation of community control,

the above scenarios simply stray too far from the statutory text to constitute compliance.”

 Id. at ¶ 27.   “In reviewing the cases, we note that much of the difficulty in complying

with R.C. 2929.19(B)(5) has occurred as judges adapt to the new sentencing procedures.”

 Id. at ¶ 28.     “While community control is similar to the former concept of probation,

there are significant differences between the two.” Id. “These differences require a trial

judge imposing community control to focus with special care on the relevant statutes and

not to approach it as a form of probation.” Id.

       {¶23} For all the foregoing reasons, we hold that pursuant to R.C. 2929.19(B)(5)

and 2929.15(B), a trial court sentencing an offender to a community control sanction

must, at the time of the sentencing, notify the offender of the specific prison term that

may be imposed for a violation of the conditions of the sanction, as a prerequisite to

imposing a prison term on the offender for a subsequent violation.           Id. at ¶ 29.
Therefore, we vacate Porter’s additional sentence of four years and remand to the trial

court for resentencing.

III.   Ineffective Assistance of Counsel

       A.     Standard of Review

       {¶24} In order to substantiate a claim of ineffective assistance of counsel, the

appellant must show that:   (1) counsel’s performance was deficient; and (2) the deficient

performance prejudiced the defendant so as to deprive him of a fair trial. State v.

Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, citing Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).             Judicial

scrutiny of defense counsel’s performance must be highly deferential. Strickland at 689.

 In Ohio, there is a presumption that a properly licensed attorney is competent. State v.

Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999).

       B.     Law and Analysis

       {¶25} In Porter’s third assignment of error, he argues that he did not receive

effective assistance of counsel who did not advise the appellant about serving any time of

incarceration beyond 20 years.

       First, a court will determine whether there has been a substantial violation
       of any of defense counsel’s essential duties to his client. When making this
       inquiry, the court will presume that licensed counsel has performed in an
       ethical and competent manner. Second, the court must determine whether
       the defense was prejudiced by counsel’s ineffectiveness. Prejudice requires
       a showing to a reasonable probability that, but for counsel’s unprofessional
       errors, the result of the proceeding would have been different.
(Internal citations omitted.)     State v. Bankston, 8th Dist. Cuyahoga No. 92777,

2010-Ohio-1576, ¶ 55.

       {¶26} Porter was advised, during his previous sentencing hearing for Cuyahoga

C.P. No. CR-11-548804, that if he violated his community control sanctions, he would be

sentenced to additional time of incarceration for the violation.       In this case when he

pleaded guilty, he violated his community control sanctions.             Therefore, he was

sentenced to additional time of incarceration.    His attorney did not need to advise Porter

of that because Porter already was aware that he could be sentenced to additional time.

However, if the attorney was mistaken or did not know Porter would receive additional

time, Porter still does not have a claim for ineffective assistance of counsel.   “A lawyer’s

mistaken prediction about the likelihood of a particular outcome after correctly advising

the client of the legal possibilities is insufficient to demonstrate ineffective assistance of

counsel.” State v. Mays, 174 Ohio App.3d 681, 2008-Ohio-128, 884 N.E.2d 607, ¶ 10

(8th Dist.).   “A defendant cannot succeed on a motion to withdraw a plea based on

erroneous advice when defendant states that no promises were made in exchange for the

plea and when the possibility of jail is explained.” Westlake v. Barringer, 8th Dist.

Cuyahoga No. 73774, 1998 Ohio App. LEXIS 6242 (Dec. 24, 1998).                    During the

sentencing, the trial court asked Porter if he had any additional comments in regards to his

probation case, and he replied “no.”     (Tr. 104 and 105.)    If Porter thought his attorney

lied to him about the time he would be sentenced to, he could have brought it up to the

judge at that point. He chose not too. Porter’s third assignment of error is overruled.
       {¶27} Therefore, we affirm in part, reverse in part, and remand to the trial court for

resentencing.

       It is ordered that the appellee and appellant split costs herein taxed.

       The court finds that 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.



________________________________________
ANITA LASTER MAYS, JUDGE

MARY EILEEN KILBANE, P.J., and
MARY J. BOYLE, J., CONCUR
