[Cite as State v. Morrison, 2018-Ohio-53.]



                               STATE OF OHIO, NOBLE COUNTY
                                  IN THE COURT OF APPEALS
                                        SEVENTH DISTRICT

STATE OF OHIO,                                   )
                                                 )
        PLAINTIFF-APPELLEE,                      )
                                                 )            CASE NO. 16 NO 0441
V.                                               )
                                                 )                    OPINION
JERAD M. MORRISON,                               )
                                                 )
        DEFENDANT-APPELLANT.                     )

CHARACTER OF PROCEEDINGS:                        Criminal Appeal from Court of Common
                                                 Pleas of Noble County, Ohio
                                                 Case No. 212-2047

JUDGMENT:                                        Affirmed

APPEARANCES:
For Plaintiff-Appellee                           Attorney James L. Peters
                                                 Prosecutor
                                                 101 N. Main St., Room 15
                                                 Woodsfield, Ohio 43793

For Defendant-Appellant                          Jerad Morrison, Pro-se
                                                 #679-173
                                                 Belmont Correctional Inst.
                                                 P.O. Box 540
                                                 St. Clairsville, Ohio 43950


JUDGES:

Hon. Gene Donofrio
Hon. Cheryl L. Waite
Hon. Carol Ann Robb


                                                 Dated:January 2, 2018
[Cite as State v. Morrison, 2018-Ohio-53.]
DONOFRIO, J.

        {¶1}     Defendant-appellant, Jerad Morrison, appeals the decision of the Noble
County Court of Common Pleas to deny his motion to vacate his sentence and
withdraw his guilty plea to one count of murder in violation of R.C. 2903.02(A), an
unclassified felony.
        {¶2}     Appellant was arrested and indicted for murder with a firearm
specification. Appellant initially entered a not guilty plea to the charge. Through plea
negotiations, plaintiff-appellee, the State of Ohio, dismissed the firearm specification
and appellant entered a guilty plea to the one count of murder. The court accepted
the plea negotiation and, on motion from the state without objection from appellant,
proceeded immediately to perform the Crim.R. 11 colloquy and then sentence
appellant.
        {¶3}     The facts regarding appellant’s colloquy are in dispute. The state
asserts that the trial court conducted the colloquy properly. Appellant asserts that the
trial court made confusing or contradictory statements between the colloquy and its
subsequent judgment entry. Specifically, appellant asserts that the sentencing
judgment entry stated he had the possibility of days of earned credit off of his
minimum sentence. However, appellant later learned from the Department of
Rehabilitation and Corrections that this was not true.
        {¶4}     After the colloquy, the trial court sentenced appellant to imprisonment
for life with the possibility of parole after fifteen years and 261 days of credit for time
served.
        {¶5}     Appellant then filed a motion for a delayed appeal seeking to overturn
his conviction in this Court. Appellant’s motion for a delayed appeal was granted and
appellant was appointed appellate counsel. However, appellant later filed a motion to
dismiss his appeal which this Court also granted.
        {¶6}     Appellant then filed a pro se motion to vacate his sentence and to
withdraw his guilty plea in the Noble County Court of Common Pleas. Appellant
argued that his sentence and guilty plea were void because he was not informed by
the trial court that he was ineligible for probation and because he was under the
                                                                                -2-


belief that he was eligible for days of earned credit off of his minimum sentence but
was later informed by the Ohio Department of Rehabilitation and Corrections that this
was not true.
       {¶7}     On December 6, 2016, the trial court denied appellant’s motion to
vacate his sentence and withdraw his guilty plea. Appellant timely filed this pro se
appeal on December 29, 2016. Appellant raises two assignments of error.
       {¶8}     Appellant’s first assignment of error states:

                THE TRIAL COURT ERRED TO THE PREJUDICE OF
       APPELLANT IN ITS ACCEPTANCE OF A GUILTY PLEA WHICH WAS
       NOT KNOWING, INTELLIGENT AND VOLUNTARY, IN VIOLATION
       OF APPELLANT’S DUE PROCESS RIGHTS UNDER THE FIFTH AND
       FOURTEENTH           AMENDMENTS          TO     THE      UNITED   STATES
       CONSTITUTION AND ARTICLE I, SECTION 16 OF THE OHIO
       CONSTITUTION.

       {¶9}     Appellant argues that he was not fully advised of the potential penalties
of his guilty plea to murder. Specifically, appellant argues that he was under the
impression that he was eligible to receive earned days of credit off of his minimum
sentence. In essence, appellant was under the impression he was eligible for early
release before his minimum sentence was served. However, appellant was later
informed after his guilty plea that this was not true which, he contends, renders his
guilty plea void.
       {¶10} Generally, a motion to withdraw a plea must be made prior to
sentencing. State v. Ortiz, 7th Dist. No. 15 MA 0023, 2016-Ohio-4813, ¶ 7. However,
a trial court is permitted to allow a defendant to withdraw his plea to correct a
manifest injustice. State v. Foose, 7th Dist. No. 11 MA 206, 2012-Ohio-6273, ¶ 4-6
citing Crim.R. 32.1. When a defendant seeks to withdraw a guilty plea after a
sentence has been imposed, he bears the burden of demonstrating the existence of
manifest injustice. Ortiz citing State v. Smith, 49 Ohio St.3d 261, 267, 477 N.E.2d 627
                                                                             -3-


(1977).
       {¶11} While the term manifest injustice has been variously defined, under
such standard, a post sentence withdrawal motion is allowable only in extraordinary
cases. Smith at 264 citing United States v. Semel, 347 F.2d 228 (4th Cir. 1965). The
standard rests upon practical considerations important to the proper administration of
justice and seeks to avoid the possibility of a defendant pleading guilty to test the
weight of potential punishment. Id. citing Kadwell v. United States, 315 F.2d 667, 670
(9th Cir. 1963).
       {¶12} The trial court’s decision to deny a motion to withdraw a guilty plea is
reviewed for an abuse of discretion. State v. Caraballo, 17 Ohio St.3d 66, 477 N.E.2d
627 (1985). Abuse of discretion implies that the court acted in an unreasonable,
arbitrary, or unconscionable manner. State v. Herring, 94 Ohio St. 3d 246, 2002-
Ohio-796, 762 N.E.2d 940.
       {¶13} Pursuant to Crim.R. 11(C)(2), the trial court, in felony cases, shall not
accept a guilty plea without first addressing the defendant personally and advising
him of the following:

       (a) Determining that the defendant is making the plea voluntarily, with
          understanding of the nature of the charges and of maximum penalty
          involved, and if applicable, that the defendant is not eligible for
          probation or for the imposition of community control sanctions at the
          sentencing hearing.
       (b) Informing the defendant of and determining that the defendant
          understands the effect of the plea of guilty or no contest, and that
          the court, upon acceptance of the plea, may proceed with judgment
          and sentence.
       (c) Informing the defendant and determining that the defendant
          understands that by the plea the defendant is waiving the rights to
          jury trial, to confront witnesses against him or her, to have
          compulsory process for obtaining witnesses in the defendant’s favor,
                                                                                  -4-


           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).
       {¶14} Appellant argues that he was under the impression that he was eligible
for days of earned credit off of his minimum sentence. Appellant points to the trial
court’s judgment entry dated April 8, 2013. Essentially, appellant contends that while
he understood he would be sent to prison for a minimum period of time, at all times,
he was under the impression he could be released before he served the minimum
sentence with earned days of credit. Appellant contends that this is a violation of
Crim.R. 11(C)(2).
       {¶15} A review of the change of plea/sentencing transcript shows that the
court advised appellant of the constitutional rights appellant would be waiving by
entering a guilty plea including: his right against self-incrimination, his right to a jury
trial, the right to confront and cross-examine witnesses against him, the right to
subpoena witnesses in his defense, and the right to have the prosecution prove its
case beyond a reasonable doubt. (Sent. Tr. 2-6). The transcript also shows that
appellant pled guilty voluntarily. (Sent. Tr. 4).
       {¶16} The trial court also made numerous references to a written three page
guilty plea that appellant confirmed he signed. (Sent Tr. 6). The written guilty plea
states that appellant was informed his maximum stated prison term was life, the
maximum fine he could receive was $15,000.00, and a prison term was mandatory.
Through the written guilty plea, appellant was informed of his potential maximum
penalty and, because appellant’s prison term was mandatory, he was ineligible for
probation or community corrections.
       {¶17} The trial court sentenced appellant to an indefinite term of imprisonment
between fifteen years and life. (Sent. Tr. 10). The transcript also shows that the trial
court gave appellant 261 days of time served as he was incarcerated since the day of
his arrest. (Sent. Tr. 10-11).
                                                                                  -5-


       {¶18} A trial court must strictly comply with Crim.R. 11(C)(2) regarding federal
constitutional rights, but need only substantially comply with the rule regarding non-
constitutional rights. State v. Abuhashish, 6th Dist. No. WD-07-048, 2008-Ohio-3849,
¶ 32 citing State v. Stewart, 51 Ohio St.2d 86, 364 N.E.2d 1163 (1977). Knowledge of
the minimum and maximum sentences is not constitutionally required, the test is
whether the plea would otherwise have been made. Stewart at 93 citing Kelleher v.
Henderson, 531 F.2d 78 (2nd Cir. 1976). In this case, the trial court informed
appellant of all of his constitutional rights and appellant was informed of his potential
maximum sentences and that a prison term was mandatory.
       {¶19} In the trial court’s sentencing entry dated April 8, 2013, the trial court
stated that it did advise appellant about the possibility of earned credit while in prison.
However, the change of plea/sentencing transcript does not reflect anything
regarding earned days of credit. It cannot be said that appellant relied on the trial
court’s statement in the April 8, 2013 judgment entry about a possibility of receiving
earned days of credit when appellant changed his plea from not guilty to guilty before
said judgment entry.
       {¶20} Furthermore, the sentencing entry states “Pursuant to § 2967.193 of the
Ohio Revised Code, the Court advised the Defendant as to the possibility of Earned
Credit while in prison.” However, R.C. 2967.193(C)(2) states no person confined in a
state correctional institution who is serving a prison term or a term of life
imprisonment for murder shall be awarded any days of credit. As appellant was
convicted of murder and sentenced to fifteen years to life imprisonment, appellant
was not eligible for earned credit.
       {¶21} Appellant received all of his proper advisements and was made aware
of his potential maximum penalties through his written guilty plea which the trial court
referenced to appellant multiple times. The trial court also did not mention earned
days of credit during the change of plea/sentencing hearing. Finally, the sentencing
entry merely stated a “possibility” of receiving earned credit, not a certainty. As this
occurred after the sentencing it could not have affected appellant’s plea.
                                                                              -6-


      {¶22} Accordingly, appellant’s first assignment of error lacks merit and is
overruled.
      {¶23} Appellant’s second assignment of error states:

             TRIAL COUNSEL WAS DEFICIENT IN HIS REPRESENTATION
      OF THE APPELLANT FOR PERMITTING THE APPELLANT TO
      ENTER A PLEA TO A CHARGE THAT HE WAS NOT FULLY AWARE
      OF THE PENALTIES INVOLVED AND TRIAL COUNSEL’S FAILURE
      TO CLARIFY WHETHER OR NOT APPELLANT COULD RECEIVE
      TIME OFF THE MINIMUM PART OF HIS SENTENCE AMOUNTED TO
      INEFFECTIVE ASSISTANCE OF COUNSEL.

      {¶24} Appellant argues his trial counsel was ineffective for two reasons. First,
appellant argues his trial counsel failed to inform him that he would have to serve the
full fifteen years. Second, appellant argues that his trial counsel erroneously advised
him to accept a plea agreement that would render him ineligible for earned credit.
Appellant contends that these render his trial counsel ineffective because his trial
counsel knew appellant was under the impression that he would be eligible for
earned credit.
      {¶25} When a convicted defendant complains of the ineffectiveness of
counsel’s assistance, the defendant must show that counsel’s representation fell
below an objective standard of reasonableness. State v. Sanders, 94 Ohio St. 3d
150, 2002-Ohio-350, 761 N.E.2d 18 citing Strickland v. Washington, 466 U.S. 668,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Furthermore, 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. Id. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. Id. Strickland charges
reviewing courts to apply a heavy measure of deference to counsel’s judgments and
to indulge a strong presumption that counsel’s conduct falls within a wide range of
reasonable professional assistance. Id.
                                                                                -7-


       {¶26} The state points out the Ohio Supreme Court’s decision in State v.
Jackson, 64 Ohio St.2d 107, 413 N.E.2d 819 (1980). In Jackson, the Court held that
the petitioner bears the initial burden in a post-conviction proceeding to submit
evidentiary documents containing sufficient operative facts to demonstrate the lack of
competent counsel and also that the defense was prejudiced by counsel’s
ineffectiveness. Id. at 111.
       {¶27} It is worth noting that appellant did submit evidentiary materials
attached to his brief. However, the materials he submitted are: the transcript of the
change of plea/sentencing hearing, the written guilty plea, and the trial court’s
judgment entry dated April 8, 2013. All of these are already in the record and have
been addressed above.
       {¶28} It is also worth noting that appellant was charged with one count of
murder in violation of R.C. 2903.02(A), an unclassified felony, with a firearm
specification pursuant to R.C 2941.145. Appellant was facing a minimum sentence of
fifteen years of incarceration for the murder charge with an additional mandatory
three years of incarceration for the firearm specification for a total of eighteen years.
Appellant’s trial counsel was able to obtain a plea agreement in which the
prosecution agreed to dismiss the firearm specification.
       {¶29} Moreover, the following excerpt was taken from the change of
plea/sentencing hearing transcript:

       Court: Now you’ve talked, you’ve conferred with Mr. Blakeslee
       [appellant’s trial counsel] about why we’re here today?
       Mr. Morrison: Yes sir.
       Court: Has Mr. Blakelsee explained to you the nature of the charge of
       murder, the elements, the things that the State would need to prove
       beyond a reasonable doubt before you could be convicted. The
       possible penalties associated with a conviction and then the possible
       pleas that you could enter. Have all those been explained to you by Mr.
       Blakeslee?
                                                                                -8-


       Mr. Morrison: Yes.
       Court: Do you desire any further explanation from the Court on any one
       of those matters?
       Mr. Morrison: No sir.

Sent. Tr. 2.
       {¶30} Appellant argues that his trial counsel failed to inform him fully of
various things concerning his plea agreement, including the fact that appellant would
have to serve a full fifteen years before being considered for parole and appellant’s
ineligibility to receive earned days of credit. However, the record contains no specific
facts concerning appellant’s allegations. Because the Strickland test requires a heavy
amount of deference to the actions of trial counsel, without specific facts in the record
which point to potential inadequacies of appellant’s trial counsel, it cannot be said
that appellant’s trial counsel’s assistance fell below an objective standard of
reasonableness.
       {¶31} Moreover, even if appellant’s trial counsel’s actions did fall below an
objective standard of reasonableness, there is no evidence in the record to indicate
that appellant was prejudiced by any action of his trial counsel.
       {¶32} Accordingly, appellant’s second assignment of error lacks merit and is
overruled.
       {¶33} For the reasons stated above, the trial court’s judgment is hereby
affirmed.
Waite, J., concurs

Robb, P.J., concurs
