[Cite as State v. Daver, 2017-Ohio-8862.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                   Nos. 104745 and 105144




                                      STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                      JAMES DAVNER
                                                    DEFENDANT-APPELLANT




                                      JUDGMENT:
                                  REVERSED; REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-15-602142-A

        BEFORE: E.A. Gallagher, P.J., E.T. Gallagher, J., and Boyle, J.

        RELEASED AND JOURNALIZED: December 7, 2017
ATTORNEYS FOR APPELLANT

Joseph V. Pagano
P.O. Box 16869
Rocky River, Ohio 44116
Robert H. Williams
21430 Lorain Road
Fairview Park, Ohio 44126


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Gregory J. Ochocki
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, P.J.:

       {¶1} In this consolidated appeal, defendant-appellant James Davner appeals from

(1) the judgment of conviction (Appeal No. 104745) and (2) the trial court’s denial of his

postsentence motion to withdraw his guilty pleas (Appeal No. 105144), after he pled

guilty to one count of felonious assault, one count of abduction and one count of gross

sexual imposition. Davner contends that his guilty pleas were induced by the ineffective

assistance of his trial counsel and were not knowingly, intelligently and voluntarily made.

 He also contends that his aggregate six-year, ten-month sentence was not clearly and

convincingly supported by the record. For the reasons that follow, we reverse the trial

court’s judgment, vacate Davner’s guilty pleas and remand the case for further

proceedings.

       Factual and Procedural Background1

       {¶2} On December 18, 2015, K.H. filed a complaint in the Lyndhurst Municipal

Court alleging that Davner had sexually assaulted her. K.H. alleged that she and her

boyfriend had been drinking with Davner the evening of November 21, 2015, and that

while she was in the bathroom, intoxicated and vomiting, Davner raped her. Davner

originally told police that he had never had any sexual contact with K.H. After DNA test

results came back indicating that his semen was found on K.H., Davner admitted having




       1
        The statement of facts set forth herein is based on the testimony presented at the hearing on
Davner’s motion to withdraw his guilty pleas, discussed infra.
to sex with K.H. but claimed that it was consensual. With the exception of an OVI and

several minor traffic offenses, Davner had no prior criminal history.

        {¶3} Davner retained attorney Daniel Margolis (“Margolis”) to represent him.

Davner testified that when he first learned of the sexual assault allegations against him, he

researched criminal defense attorneys on the internet. He gave his wife, Laurel, attorney

Margolis’ name and number and asked her to call him “if anything were to happen.”

Davner testified that he selected Margolis because “[h]e had very good reviews on his

website.”

        {¶4} Davner was arrested at his home on December 18, 2015. After Davner was

arrested, Laurel contacted Margolis. She paid him $1,000 to represent Davner in the

municipal court proceedings and to get a bond set.          Laurel testified that she gave

Margolis the telephone numbers for K.H.’s boyfriend and the boyfriend’s mother and

showed him several social media postings K.H. and K.H.’s boyfriend had made that

Laurel contended contradicted with what they alleged had occurred. Laurel testified that

Margolis told her that he would hire an investigator. Davner was thereafter released on

bond.

        {¶5} On January 4, 2016, a Cuyahoga County Grand Jury indicted Davner on two

counts of rape, one count of kidnapping with a sexual motivation specification and two

counts of gross sexual imposition arising out of Davner’s alleged sexual assault of K.H.

        {¶6} On January 11, 2016, Davner met with Margolis at his office and signed a

fee agreement, agreeing to pay Margolis an additional $20,000 to represent him on the
“pretrial portions of the criminal charge.”     Under the terms of the fee agreement,

Margolis would receive an additional $1,000 per day if the case went to trial. Davner

paid Margolis $2,000 and Davner’s parents paid the $18,000 balance. Davner testified

that Margolis told him he would hire an investigator and asked Davner to email him a

statement detailing what had occurred on the night of the alleged assault.         Davner

prepared a statement and emailed it to Margolis a few days later. On January 20, 2016,

Davner was arraigned, his bond was continued, and he was placed on court-supervised

release.

       {¶7} Davner claimed that the meeting he had with Margolis in January 2016 was

the only time he “really met with” Margolis to discuss his case. He stated that his only

other interactions with Margolis were a couple of email messages forwarding discovery

materials, brief text messages and telephone calls and a couple minutes conversing with

Margolis before and after pretrial conferences. Davner testified that he called Margolis

“maybe once a week” to get an update regarding “what’s going on,” “what he’s doing

with the case” but that he rarely got a call back. He testified that when he did so, it

would be “very brief,” i.e., that Margolis would simply say, “[n]othing is going on,”

“waiting for discovery” or “I’ll see you at the next pretrial.” Davner testified that he

repeatedly told Margolis that he was innocent and that he wanted to go to trial and did not

want to plea.

       {¶8} On January 20, 2016, Margolis submitted a written demand for discovery

pursuant to Crim.R. 16 to the state. On January 25, 2016, the state provided initial
responses to Davner’s discovery request and filed its own written demand for discovery.

The state filed supplemental discovery responses on April 14, 2016 and May 13, 2016.

From January 28, 2016 to May 18, 2016, the trial court conducted eight pretrial

conferences. Trial was originally set for April 25, 2016 but was continued to May 24,

2016 “to complete discovery.”       Margolis never responded to the state’s discovery

request, never filed any motions, never interviewed any witnesses and never hired an

investigator.

       {¶9} Davner appeared for each of the eight pretrials held in the case. He testified

that, at each of the pretrial conferences, Margolis would greet Davner, let him know he

was there, then go into the back for an hour or two while Davner waited in the waiting

room. When he returned, Margolis would generally say something to the effect of “this

was routine” or “still waiting for discovery” or if something had been received in

discovery, what it was.     He stated that Margolis forwarded him certain discovery

materials, including the police report, a recording of the 911 call and the victim’s medical

records, but that Margolis never reviewed them with Davner. Davner testified that when

he would ask Margolis how the discovery materials impacted his case, he “never really

got a direct answer on anything.” He testified that Margolis would simply respond, “it’s

a coin flip” or “it’s up in the air.” When Davner asked Margolis if he could come talk to

him about the case, Margolis responded that there was nothing to discuss.

       {¶10}    Margolis disputed Davner’s characterization of their interactions.       He

denied that he told the Davners he would hire an investigator and stated that there were no
witnesses who would have been helpful to Davner to interview.                 He testified that,

whenever he received any discovery materials from the state, he provided copies to

Davner, if permitted, or read them to him and “explain[ed] what was going on.” He

testified that he had “face-to-face” meetings with Davner at each of the pretrial

conferences, emailed Davner multiple times and regularly communicated with Davner by

phone and text. 2       He testified that there were multiple pretrial conference and

continuances due to difficulties in getting medical records from the state and that he did

not respond to the state’s discovery request for “tactical reasons.”

       {¶11} Margolis denied that Davner demanded that the case go to trial.                  He

testified that Davner’s “frequent demand” was for the case to be dismissed, but that that

“abated somewhat as the case dragged on.” He stated that “[w]e didn’t go to trial

because [Davner] didn’t want to go to trial.” Margolis testified that if the case were to

have been tried, Davner would have had to pay him another $7,000 under the fee

agreement and that that “never even came up * * * because of the overwhelming weight

of the evidence against Mr. Davner.”

       {¶12} In May 2016, Davner took a polygraph test in the hopes of convincing the

prosecutor to drop the charges against him. On May 11, 2016, Margolis said he would


       2
         Margolis testified that, during the course of his representation of Davner, he spoke with
Davner on the phone 36 times for a total of four hours and 21 minutes and exchanged 192 texts with
him. An exhibit listing the texts that were exchanged between Margolis and Davner was introduced
into evidence. The exhibit shows that more than 160 texts were exchanged between December 28,
2015 and May 24, 2016, when Davner entered his guilty pleas. However, most of these exchanges
were brief and involved logistics or scheduling issues. No call log or phone records were
introduced.
forward the results to the prosecutor. At the May 18, 2016 pretrial — the last pretrial

scheduled before the May 24, 2016 trial date — the prosecutor did not appear. The

following day, Davner texted Margolis and asked whether he had heard from the

prosecutor. Margolis responded that he had not and would let Davner know when he

heard from him. In the week following the May 18, 2016 pretrial conference, the state

issued ten trial subpoenas.

       {¶13} Margolis did not meet with Davner in preparation for trial. He did not file

any motions in limine, submit a witness or exhibit list or otherwise prepare to try the case

on May 24. On the afternoon of May 23, Davner texted Margolis and asked him whether

he should still appear in court the following morning since Margolis had not heard back

from the prosecutor. He also inquired about the ten subpoenas that were listed on the

docket. Margolis stated that he was “[s]till waiting on the prosecutor” and told Davner

to listen to the 911 tape again. Margolis stated that “t]he jury will hear this. It will

probably be the first thing they hear” and indicated that it was “problematic.” The two

men exchanged several telephone calls that evening. With respect to whether the trial

was going forward, Davner testified that Margolis told him, “Just be there and we’ll see

what goes on with it.”

       {¶14} Davner testified that when he appeared for trial the following morning, he

expected that nothing would happen and that everything would be pushed back, as it had

in the past, because the prosecutor had not appeared at the last pretrial conference.
Davner testified that had he been aware that the case was going to trial, he would have

worn a suit and would have brought his family members with him.

       {¶15} The state made no plea offers until the morning of trial. Nevertheless,

Margolis testified that he did not prepare for trial because he believed Davner would enter

a plea: “There was not going to be a trial so I didn’t do anything to prepare.” He could

not recall when he first talked to Davner about a possible plea but claimed that it was

“certainly * * * before April 25.” He testified that he also spoke with Davner about a

possible plea on May 17, 2016, advising him that “the evidence was very strong against

him” and that “he was looking at a high risk/high reward kind of situation” if the case

went to trial. Margolis stated that he and the prosecutor “had been talking about a plea

bargain for some time, and Mr. Davner knew that and approved of that.” He testified

that if there had been no plea agreement, he planned to request a reasonable continuance

to adequately prepare for trial. There is nothing in the record that indicates that he

communicated this plan to Davner. Davner denied having previously discussed any

possible pleas with Margolis.

       {¶16} Although trial was scheduled to begin at 9:00 a.m. on May 24, 2016,

Margolis did not arrive at the courthouse until 9:44 a.m. He testified that “[i]t’s not

uncommon and it’s regrettable, but it did happen.” After he spoke with the prosecutor,

Margolis handed Davner an index card on which he had jotted down two plea offers he

received from the state. The index card listed the offense levels, tier levels and the titles
of the offenses that were “on the table.”3 Margolis testified that he “presented [Davner]

with his options,” explained the charges, the “import and pros and cons of each of those

options,” “the difference between Tier I and Tier III” and the “possible sentences that

were applicable to each option”4 and then left him alone to decide what to do.                    He

further testified that he told Davner that “given the weight of the evidence I thought * * *

he should strongly consider a plea” but that, “at the end of the day,” it was Davner’s

decision and “I do what my client requests in terms of making that decision.” Davner

testified that he received the plea offers at “about 11:00 a.m.” and was given

approximately 20 or 30 minutes to decide what to do. Margolis testified that he came

back to Davner with the two plea offers by 9:50 or 9:55 a.m. and that Davner had “much

more” than 30 minutes, i.e., perhaps         an hour-and-a-half or more, to make a decision.

Margolis did not ask for a continuance to allow Davner additional time to consider the

plea offers.

       {¶17} Davner denied that Margolis explained the offenses to which he would be

pleading guilty. Davner testified that Margolis told him that he had to decide between

the two plea offers because if he went to trial he would lose and would go to prison for a



         Although the index card was admitted as an exhibit at the hearing, it was not included in the
       3


record forwarded to this court on appeal. Accordingly, we do not know exactly what information
was communicated to Davner on the index card or the specifics of the other plea offer Davner chose
not to accept.
       4
        Margolis was not asked to explain, and, therefore, did not testify regarding exactly what he
told Davner about the two plea offers and the potential consequences of accepting one of the plea
offers.
long time, i.e., “like 8 to 10 years.” Davner indicated that when Margolis handed him the

index card, he explained that if Davner accepted one of the plea offers, he would, “most

likely,” get probation or, under the “worst-case scenario,” would get a two- or three-year

sentence and be out on judicial release in six months. Davner testified that it was his

understanding that he would receive the same sentence under either plea option.

Margolis denied telling Davner that he would “most likely” receive probation if he

accepted one of the plea offers.

         {¶18} After Margolis left Davner alone to consider the plea offers, Davner called

his mother, his wife and his employer. He called his employer to find out if he could

keep his job if he went to prison for six months. He called his mother, Daniela Davner,

and told her he needed to pick from two plea options and asked for her advice as to what

he should do. Daniela testified Davner was “very upset” and that he could only talk for a

few minutes because “he had to pick right then.” Daniela suggested he consult with

another attorney. Davner testified that when Margolis came back to see what he had

decided, he asked if he could get another attorney. Margolis said that “it would not

help.”

         {¶19} Davner then called his wife, Laurel. He testified that he asked her to

conduct a “Google” search to determine the meaning of felonious assault, abduction and

gross sexual imposition and the difference between a Tier I and Tier III sex offender.

Laurel testified that she received a “frantic call” from Davner, asking her to “Google” two

potential plea offers he had just received because he did not understand what the offenses
were, what it meant to register as a sex offender or what impact accepting one of the plea

offers would have on his job or degree. She indicated that Davner was “very stressed,”

“confused” and “frustrated with his attorney.” Before she could conduct the research he

requested, Davner told her that he had to get off the phone. Laurel was not able to give

him any advice as to what she thought he should do.

      {¶20} At 10:22 a.m. Margolis texted Davner “[t]he deals are not changing.” At

11:13 a.m., Davner replied, “Just 10 more min and I’ll have [an] answer.”

      {¶21} Davner testified that while he was on the phone with Laurel, Margolis

came back and told him “the prosecutor is ready” and “[t]hey want an answer.” Davner

stated that he asked Margolis how much time he could have to decide and that he replied

that Davner needed to “make a decision now.” Davner told Margolis which of the plea

options he had selected and communicated his selection to the prosecutor.

      {¶22} Under the terms of the plea agreement, Davner would plead guilty to an

amended count of felonious assault in violation of R.C. 2903.11(A)(1), an amended count

of abduction in violation of R.C. 2905.02(A)(1) (removing the sexual motivation

specification), one count of gross sexual imposition in violation of R.C. 2907.05(A)(1)

and the remaining counts would be nolled. It was also agreed that the counts did not

merge for sentencing.

      {¶23} Davner testified that he decided which plea offer to accept based on the

length of time he would have to register as a sex offender, i.e., under one plea offer he
would have had to register as a sex offender once a year for 15 years, under the other plea

offer, he would have had to register every 90 days for life.

       {¶24} At 11:28 a.m., Davner texted Margolis and asked if he could “ask about me

going less often to CSR [court-supervised release]?” Margolis responded, “Yes.”

Davner testified that he inquired about CSR because he thought that he would be

sentenced to probation.     At 12:24 p.m.      Margolis texted Davner, “Come into the

courtroom.” Davner turned off his phone and went into the courtroom.

       {¶25} After the state and Margolis set forth the terms of the plea agreement on

the record, the trial judge proceeded with the plea colloquy. In response to the trial

judge’s preliminary questions, Davner indicated that he was a citizen, had a driver’s

license, was 30 years old, had a bachelor’s degree in mechanical engineering, could read

and write, was not under the influence of any drugs, alcohol or medication and

understood what was happening in court that day.

       {¶26} The trial judge advised Davner of his constitutional rights and confirmed

that he understood the rights he would be waiving by entering his guilty pleas. The trial

judge identified each of the offenses to which Davner would be pleading guilty, outlined

the penalties he faced on each count, including the maximum prison sentence for each

offense, and confirmed that Davner understood the potential penalties associated with

each count. With respect to the potential sentences Davner could receive, the trial judge

indicated as follows:

       THE COURT: All right. Now, in advising you of the possible penalties
       under Count 1 as it’s amended, you are looking at a potential prison
sentence where there’s a presumption in favor of prison of anywhere from
two to eight years; do you understand that?

THE DEFENDANT: Yes, Your Honor.

***

THE COURT: Okay. In Count 3 as it’s amended to a felony of the third
degree, you are looking at a potential maximum prison sentence of
anywhere from 9, 12, 18, 24, 30, up to 36 months.

THE DEFENDANT: Yes, Your Honor.

THE COURT: And Count 4, a felony of the fourth degree, anywhere from 6
to 18 months.

THE DEFENDANT: Yes, Your Honor.

***

THE COURT: And that you are agreeing that for purposes of merger, that
none of these counts will merge for purposes of sentencing. So what that
means is that you will be sentenced on each count and your maximum
potential prison sentence could be 12-and-a-half years, if you received a
maximum sentence and it was run consecutive. So your sentence on each
of these counts based on an agreement that they do not merge, your
maximum consecutive sentence could be 12-and-a-half years in prison; do
you understand that?

THE DEFENDANT: Yes, Your Honor.

***

[DEFENSE COUNSEL]: Yes, Your Honor. But just for clarification, the
Court could also run his sentences concurrent —

THE COURT: Correct.

[DEFENSE COUNSEL]: — if he is sentenced to prison.

THE COURT: That’s correct. But I advised him of the maximum
potential sentence that he could face.
       [DEFENSE COUNSEL]: Absolutely.

       THE COURT: So that’s why I’m telling him 12-and-a-half years, but
       there is a minimum sentence which would be two years. Okay. So do
       you understand?

       THE DEFENDANT: Yes, Your Honor.

       ***

       THE COURT: * * * [N]one of these charges that you’re pleading guilty to
       as they’ve been amended are mandatory prison time; just Count 1, as I have
       already explained is a presumption in favor of prison. So you could also
       be placed under a community control sentence for up to five years, but if
       you violate the terms of the sentence, you could receive a more restrictive
       sentence, including prison time; do you understand?

       THE DEFENDANT: Yes, Your Honor.

       {¶27} Davner confirmed that no threats or promises had been made to him to

induce him to change his pleas other than what had been stated on the record, he stated

that he understood that there was no promise of a particular sentence and he indicated that

he was satisfied with the services rendered by his trial counsel.

       {¶28} The trial judge found that Davner had been informed of his constitutional

rights, that he understood “the nature of the charges, the effect of a plea and the

maximum penalties which may be imposed” and that his guilty pleas would be made

knowingly, intelligently and voluntarily.

       {¶29} Davner entered his guilty pleas to one count of felonious assault, one count

of abduction and one count of gross sexual imposition pursuant to the plea agreement,

and the remaining counts were nolled. The trial judge accepted his guilty pleas and
referred the matter for a presentence investigation report. A sentencing hearing was

scheduled for the following month.

       {¶30} Davner, Margolis, the victim’s boyfriend and the state spoke at the June

20, 2016 sentencing hearing. After considering those statements and reviewing the PSI,

the letters submitted by Davner’s wife and parents and a report from Davner’s therapist,

the trial court sentenced Davner to six years on the felonious assault count, three years on

the abduction count and ten months on the gross sexual imposition count. The sentences

on the felonious assault and abduction counts were to run concurrently to one another but

consecutive to the sentence imposed on the gross sexual imposition count, resulting in an

aggregate prison sentence of six years and ten months. The trial court properly advised

Davner of postrelease control, ordered payment of court costs and classified Davner as a

Tier I sex offender. On June 23, 2016, the trial court entered its sentencing journal entry.

       {¶31} On July 19, 2016, Davner filed (1) a motion to withdraw his guilty pleas and

(2) a direct appeal of the judgment of conviction.        On August 1, 2016, this court

remanded the matter for consideration of Davner’s motion to withdraw his guilty pleas.

       {¶32} In his motion to withdraw his guilty pleas, Davner argued that his guilty

pleas were invalid because he did not enter them knowingly, intelligently and voluntarily

or with the effective assistance of counsel. He claimed that Margolis had pressured him

into entering guilty pleas because he was not prepared to try the case and that his guilty

pleas were based on misinformation regarding his likely sentence and eligibility for

judicial release.   The state opposed the motion, arguing that Davner could not
demonstrate manifest injustice. The trial court held an evidentiary hearing on the motion

(the “evidentiary hearing”). 5       Davner, Laurel, Daniela and Margolis testified at the

hearing.

       {¶33} On October 11, 2016, after consideration of Davner’s motion to withdraw

his guilty pleas, the state’s brief in opposition, the evidence and arguments presented at

the evidentiary hearing and the post-hearing briefs, the trial court denied Davner’s

motion. The trial court did not explain its reasoning in denying the motion.

       {¶34} Davner appealed the trial court’s order denying his motion to withdraw his

guilty pleas. In this consolidated appeal, he raises the following assignments of error for

review:

       ASSIGNMENT OF ERROR NO. I:
       The trial court erred by denying appellant’s motion to withdraw his guilty
       plea.

       ASSIGNMENT OF ERROR NO. II:
       Appellant’s sentence is clearly and convincingly not supported by the
       record and is contrary to law.

       Law and Analysis

       {¶35} In his first assignment of error, Davner contends that his guilty pleas were

induced by the ineffective assistance of his trial counsel and were not knowingly,

intelligently and voluntarily made, resulting in manifest injustice. He argues that the trial

court should have permitted him to withdraw his guilty pleas because Margolis was


       5
           The hearing was conducted over parts of three days, August 29, September 1 and September
2, 2016.
“totally unprepared for trial” and failed to “fully and properly advise [Davner] regarding

the consequences of his plea.”            Specifically, Davner contends that Margolis misled

Davner regarding the sentence he would receive if he pled guilty and gave him inaccurate

or incomplete information regarding judicial release. He also contends that Margolis

failed to properly explain each plea option and the ramifications of his agreement, as a

condition of Davner’s pleas, that the counts to which he pled guilty would not merge for

purposes of sentencing. Davner asserts that the trial court’s denial of his motion to

withdraw his guilty pleas was arbitrary and contrary to the facts developed at the

evidentiary hearing.

        Motion to Withdraw Guilty Plea

        {¶36} A motion to withdraw a guilty plea is governed by Crim.R. 32.1. Crim.R.

32.1 provides: “A motion to withdraw a plea of guilty 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.”

Accordingly, a defendant who seeks to withdraw a guilty plea after sentence has been

imposed must demonstrate “manifest injustice.”6 State v. Smith, 49 Ohio St.2d 261, 361


        6
           Davner argues, in the alternative, that because the trial court failed to advise him of his
appellate rights at the sentencing hearing, his sentence was void and his request to withdraw his guilty
pleas should have been evaluated under the more liberal standard applied to presentencing motions to
withdraw guilty pleas. Davner did not raise this issue below. Rather, he argued that the trial court
should grant his motion to withdraw his guilty pleas “to correct manifest injustice.” An issue not
raised in the trial court forfeits all but plain error. Further, a party is not entitled to take advantage of
an error that he or she invited or induced. See, e.g., State v. Dawson, 8th Dist. Cuyahoga No.
104509, 2017-Ohio-965, ¶ 38.
        Even if we were to consider the issue, however, we would find no error. As this court has
N.E.2d 1324 (1977), paragraph one of the syllabus.                 Manifest injustice is a “clear or

openly unjust act,” State ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d

83 (1998), that is evidenced by “‘an extraordinary and fundamental flaw in the plea

proceeding,’” State v. McElroy, 8th Dist. Cuyahoga Nos. 104639, 104640 and 104641,

2017-Ohio-1049, ¶ 30, quoting State v. Hamilton, 8th Dist. Cuyahoga No. 90141,

2008-Ohio-455, ¶ 8; see also State v. Vinson, 2016-Ohio-7604, 73 N.E.3d 1025, ¶ 41 (8th

Dist.); State v. Stovall, 8th Dist. Cuyahoga No. 104787, 2017-Ohio-2661, ¶ 17

(“‘Manifest injustice relates to some fundamental flaw in the proceedings which result[s]

in a miscarriage       of justice or is inconsistent with the demands of due process.’”),

quoting State v. Williams, 10th Dist. Franklin No. 03AP-1214, 2004-Ohio-6123, ¶ 5.

Thus, postsentence withdrawal of a guilty plea is permitted “only in extraordinary cases.”

 State v. Rodriguez, 8th Dist. Cuyahoga No. 103640, 2016-Ohio-5239, ¶ 22.

        {¶37} The determination of whether the defendant has demonstrated manifest

injustice is within the sound discretion of the trial court. Vinson at ¶ 42, citing Smith at

paragraph two of the syllabus.         Accordingly, we will not reverse a trial court’s ruling on


previously held, a trial court’s failure to advise a defendant of his or her appellate rights at sentencing
renders the sentence voidable,not void. See, e.g., State v. Gum, 8th Dist. Cuyahoga No. 101496,
2015-Ohio-1539, ¶ 8. Where the trial court fails to advise a defendant of his appellate rights at
sentencing, the remedy is to have the trial court reenter the judgment of conviction against the
defendant, thereby reinstating the time within which the defendant may file a notice of appeal
pursuant to App.R. 4(A). See State v. Gum, 8th Dist. Cuyahoga No. 100156, 2014-Ohio-401, ¶ 5.
Following his sentencing, Davner retained appellate counsel who timely filed a notice of appeal.
The trial court’s failure to advise Davner of his appellate rights at sentencing is, therefore, harmless
error. See, e.g., State v. Bauldwin, 8th Dist. Cuyahoga No. 96703, 2011-Ohio-6435, ¶ 15 (“any
error in failing to inform appellant of his appellate rights under Crim.R. 32(B) was harmless because
he was able to effect a timely appeal through counsel and has not shown any prejudice”).
a postsentence motion to withdraw a guilty plea unless the court abused its discretion.

Id.

       Ineffective Assistance of Counsel

       {¶38}    Ineffective assistance of counsel can constitute a manifest injustice

warranting a withdrawal of a guilty plea. See, e.g., State v. Montgomery, 8th Dist.

Cuyahoga No. 103398, 2016-Ohio-2943, ¶ 4.          However, where a defendant enters a

guilty plea, he or she waives ineffective assistance of counsel except to the extent that the

ineffective assistance of counsel caused the defendant’s plea to be less than knowing,

intelligent and voluntary. Vinson at ¶ 30; State v. Williams, 8th Dist. Cuyahoga No.

100459, 2014-Ohio-3415, ¶ 11.       Thus, where a defendant has entered a guilty plea, a

defendant can prevail on a claim of ineffective assistance of counsel only by

demonstrating (1) deficient performance by counsel, i.e., that counsel’s performance fell

below an objective standard of reasonable representation, that caused his guilty plea to be

less than knowing, intelligent and voluntary and (2) that there is a reasonable probability

that, but for counsel’s deficient performance,the defendant would not have pled guilty to

the offenses at issue and would have, instead, insisted on going to trial. Williams at ¶

11, citing State v. Xie, 62 Ohio St.3d 521, 524, 584 N.E.2d 715 (1992), and Hill v.

Lockhart, 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); see also Strickland v.

Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the
syllabus.      A “reasonable probability” is a “probability sufficient to undermine

confidence in the outcome.” Strickland at 694.

       Requirement that Guilty Pleas be Made Knowingly, Intelligently and

       Voluntarily

       {¶39} “When a defendant enters a plea in a criminal case, the plea must be made

knowingly, intelligently, and voluntarily.      Failure on any of those points renders

enforcement of the plea unconstitutional under both the United States Constitution and

the Ohio Constitution.” State v. Engle, 74 Ohio St.3d 525, 527, 660 N.E.2d 450 (1996);

see also State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 7. As

the Ohio Supreme Court explained in State v. Clark, 119 Ohio St.3d 239,

2008-Ohio-3748, 893 N.E.2d 462:

       A criminal defendant’s choice to enter a plea of guilty or no contest is a
       serious decision. The benefit to a defendant of agreeing to plead guilty is
       the elimination of the risk of receiving a longer sentence after trial. But,
       by agreeing to plead guilty, the defendant loses several constitutional rights.
        * * * The exchange of certainty for some of the most fundamental
       protections in the criminal justice system will not be permitted unless the
       defendant is fully informed of the consequences of his or her plea. Thus,
       unless a plea is knowingly, intelligently, and voluntarily made, it is invalid.

Id. at ¶ 25.

       {¶40} Whether a guilty plea was entered into knowingly, intelligently and

voluntarily is based on the totality of the circumstances.    See, e.g., State v. Sojourney,

8th Dist. Cuyahoga No. 92087, 2009-Ohio-5353, ¶ 14; State v. Lockhart, 8th Dist.

Cuyahoga No. 90754, 2009-Ohio-2395, ¶ 6.

       The Plea Colloquy
       {¶41} In considering whether a criminal defendant knowingly, intelligently and

voluntarily entered a guilty plea, we first review the record to determine whether the trial

court complied with Crim.R. 11(C). State v. Kelley, 57 Ohio St.3d 127, 128, 566 N.E.2d

658 (1991). Crim.R. 11(C) sets forth certain constitutional and procedural requirements

with which the trial court must comply prior to accepting a guilty plea. Under Crim.R.

11(C)(2), the trial court shall not accept a guilty plea in a felony case without personally

addressing the defendant and doing all of the following:

       (a) Determining that the defendant is making the plea voluntarily, with
       understanding of the nature of the charges and of the 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, 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.

The purpose of Crim.R. 11(C) is “‘to convey to the defendant certain information so that

he [or she] can make a voluntary and intelligent decision whether to plead guilty.’” State

v. Woodall, 8th Dist. Cuyahoga No. 102823, 2016-Ohio-294, ¶ 12, quoting State v.

Ballard, 66 Ohio St.2d 473, 479-480, 423 N.E.2d 115 (1981).

       {¶42} The trial court must strictly comply with those provisions of Crim.R.

11(C)(2) that relate to the waiver of constitutional rights.   Veney, 120 Ohio St.3d 176,
2008-Ohio-5200, 897 N.E.2d 621, at syllabus. As to the nonconstitutional aspects of

Crim.R. 11(C)(2), which includes a defendant’s right to have an understanding of the “the

nature of the charges” and “the maximum penalty involved” and to be informed of and

understand the effect of a guilty plea, substantial compliance is required. Veney at ¶ 14;

State v. Moore, 8th Dist. Cuyahoga No. 101658, 2015-Ohio-1026, ¶ 12; State v. Petitto,

8th Dist. Cuyahoga No. 95276, 2011-Ohio-2391, ¶ 6, 9. “Substantial compliance means

that under the totality of the circumstances the defendant subjectively understands the

implicationsof his plea and the rights he is waiving.”   State v. Nero, 56 Ohio St.3d 106,

108, 564 N.E.2d 474 (1990). If a trial court fails to substantially comply with one of the

nonconstitutional aspects of Crim.R. 11(C)(2), a determination must be made as to

whether the trial court partially complied or completely failed to comply the requirement

at issue. Clark, 119 Ohio St.3d 239, 2008-Ohio-2748, 893 N.E.2d 462, ¶ 32. If the

trial court partially complied, the plea is properly vacated only if the defendant

demonstrates prejudice. Id. If the trial court completely failed to comply, the plea

must be vacated; a showing of prejudice is not required. Id.

       {¶43}     “[T]here is no easy or exact way” to determine a defendant’s subjective

understanding.     State v. Cardona, 8th Dist. Cuyahoga No. 75556, 1999 Ohio App.

LEXIS 6064, *12 (Dec. 16, 1999), citing State v. Carter, 60 Ohio St.2d 34, 38, 396

N.E.2d 757 (1979).     However, if a defendant “‘receives the proper information, then we

can ordinarily assume that he understands that information.’”     Cardona at *12, quoting

Carter at 38. A defendant may learn of information not relayed to him by the trial court
from other sources, such as his attorney. State v. Rogers, 8th Dist. Cuyahoga No.

103227, 2016-Ohio-1382, ¶ 18, citing State v. McCown, 8th Dist. Cuyahoga No. 69683,

1996 Ohio App. LEXIS 4801, *19 (Oct. 31, 1996).

       {¶44} When a trial court complies with Crim.R. 11(C)(2) in accepting a plea, there

is a presumption that the defendant’s plea was knowingly, intelligently and voluntarily

made. See, e.g., State v. Alexander, 8th Dist. Cuyahoga No. 103754, 2016-Ohio-5707, ¶

11; State v. Murray, 12th Dist. Brown No. CA2015-12-029, 2016-Ohio-4994, ¶ 20. A

defendant seeking to withdraw the plea has the burden of rebutting that presumption by

demonstrating that the plea is infirm. Alexander at ¶ 11, citing State v. Hall, 8th Dist.

Cuyahoga No. 55289, 1989 Ohio App. LEXIS 1602 (Apr. 27, 1989).

       {¶45} Here, there is no dispute that the trial court fully complied with Crim.R.

11(C)(2) with respect to Davner’s constitutional rights. At issue in this case is whether,

due to the alleged ineffective assistance of counsel, Davner’s pleas were made under

duress and whether Davner lacked a sufficient understanding of the nature of the

offenses, the penalties he could receive and the effect and consequences of his guilty

pleas for his pleas to have been entered knowingly, intelligently and voluntarily.

       Understanding of Nature of the Offenses and the Effect and Consequences of
       Guilty Pleas

       {¶46} In this case, during the plea colloquy, the trial court identified the offenses

to which Davner would be pleading guilty and confirmed with Davner that these were the

offenses to which he was agreeing to plead. The trial court also identified the potential

penalties associated with each offense. The trial court did not, however, explain the
offenses to Davner or otherwise ensure that he had an understanding of what those

offenses entailed. Two of the three offenses to which Davner pled guilty — felonious

assault and abduction — were amended counts not part of the original indictment.

Although Margolis testified at the evidentiary hearing that he explained the charges to

Davner, Davner denied this and claimed that he did not have an understanding of the

offenses before he entered his guilty pleas. There is nothing in the transcript from the

plea hearing that indicates that the trial court, Margolis, the state (or anyone else)

explained the nature of the charges to Davner before he entered his guilty pleas or

specifically informed Davner that his guilty pleas operate as “a complete admission” of

his guilt. Crim.R. 11(B)(1). Margolis advised the court that he had “gone over” with

Davner “his constitutional rights that he would be waiving by entering a plea” and the sex

offender registration obligations and also advised the court that he believed that Davner’s

plea would be “knowingly, voluntarily and intelligently made,” but he did not mention

anything about having explained to Davner what the state would have had to prove to

convict him of the offenses to which he would be pleading guilty. The trial court did not

ask Davner whether he understood the nature of the charges or the effect of his guilty

pleas and did not ask whether he had any questions generally.

      {¶47} A trial court is not necessarily required to explain the elements of each

offense to the defendant or to specifically ask the defendant if he or she understands the

charges. See, e.g., State v. Reeves, 8th Dist. Cuyahoga No. 100560, 2014-Ohio-3497, ¶

12; State v. Minifee, 8th Dist. Cuyahoga No. 99202, 2013-Ohio-3146, ¶ 14. A trial
court’s determination that a defendant understands the charge can be based on the totality

of the surrounding circumstances.    Id.   Further, the trial court may presume that defense

counsel informed the defendant of the nature of the charges, absent an indication to the

contrary. See, e.g., State v. Philpott, 8th Dist. Cuyahoga No. 74392, 2000 Ohio App.

LEXIS 5849, *8-9 (Dec. 14, 2000). In this case, there is an indication to the contrary.

       {¶48} Likewise, Crim.R. 11(C)(2)(b) does not require a verbatim statement or

“rote recitation” that a guilty plea operates as a complete admission of the defendant’s

guilt to comply with the rule. See, e.g., State v. McCollins, 8th Dist. Cuyahoga No.

87182, 2006-Ohio-4886, ¶ 9; State v. Mallon, 11th Dist. Trumbull No. 98-T-0032, 1999

Ohio App. LEXIS 6131, *13-14 (Dec. 17, 1999). Further, “[a] defendant who has

entered a guilty plea without asserting actual innocence is presumed to understand that he

has completely admitted his guilt.” State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415,

814 N.E.2d 51, syllabus; Reeves at ¶ 12 “In such circumstances, a 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.

       {¶49} Although the trial judge did not explicitly inform Davner that his guilty

pleas operated as a complete admission of his guilt to the charges at issue, she did inform

Davner that, by entering his guilty pleas, he was giving up his right to have the state prove

his guilt and that the trial court could proceed directly with judgment and sentencing after

he entered his guilty pleas. Davner indicated that he understood this.
       {¶50} Davner did not claim he was innocent at the plea hearing, he did not ask any

questions at the plea hearing and there is nothing else in the transcript from the plea

hearing that suggests that Davner was confused or under any type of duress prior to

entering his guilty pleas.     At the plea hearing, Davner confirmed that no threats or

promises had been made to him to induce him to change his pleas, stated that he

understood that there was no promise of a particular sentence and indicated that he was

satisfied with the services rendered by his trial counsel.

       {¶51} At the evidentiary hearing, Davner testified that although he had not been

physically threatened to change his pleas, given the short time period he was given to

decide whether to accept a plea offer, he did, in fact, feel threatened; he just “didn’t

realize it was a threat at the time.” He further testified that he “was so distressed by

everything, by [Margolis] giving me so short of a time to make a decision that * * * it was

kind of like a blur.” When asked if he understood the judge’s questions, Davner replied,

“[T]hey came out in English and I understood what they were, but what did they mean to

me, like it didn’t really mean anything to me.” Davner testified that he did not ask

Margolis if he could withdraw his guilty pleas prior to sentencing because he “didn’t even

know that was an option.”

       Counsel’s Inaccurate Prediction of Davner’s Sentence

       {¶52} Davner also argues that his pleas were not knowingly, intelligently and

voluntarily entered because they were based on Margolis’ representation that if Davner

accepted one of the state’s plea offers, he would “most likely” receive probation or, under
the “worst-case scenario,” would receive a two- or three-year sentence and would be out

on judicial release in six months. He contends that were it not for this “false advice,” he

would not have entered his guilty pleas.

       {¶53}    Margolis vehemently denied that he ever told Davner that it was most

likely he would receive probation. However, even assuming that Margolis had done so, an

attorney’s mere inaccurate prediction of a defendant’s sentence does not constitute

ineffective assistance of counsel sufficient to negate a guilty plea:

       “A good faith but erroneous prediction of sentence by defense counsel does
       not render the plea involuntary. Where the representations made by
       defense counsel were hopeful, good faith estimates, not promises, the fact
       that defendant may have had expectations of leniency is not sufficient,
       absent evidence that the government induced such expectation, to justify
       withdrawal ofthe plea.”

Vinson, 2016-Ohio-7604, 73 N.E.3d 1025, at ¶ 32, quoting State v. Sally, 10th Dist.

Franklin No. 80AP-850, 1981 Ohio App. LEXIS 10295, *10-11 (June 11, 1981); see also

State v. Longo, 4 Ohio App.3d 136, 139-140, 446 N.E.2d 1145 (8th Dist.1982) (counsel’s

error in “predict[ing] a sentencing result based on an educated judgment” that “did not

pan out” did not render his assistance ineffective); State v. Mays, 174 Ohio App.3d 681,

2008-Ohio-128, 884 N.E.2d 607, ¶ 10 (8th Dist.) (“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.

McMichael, 10th Dist. Franklin Nos. 11AP-1042, 11AP-1043 and 11AP-1044,

2012-Ohio-3166, ¶ 31 (counsel’s “‘mere inaccurate prediction of a sentence does not
demonstrate the deficiency component of an ineffective assistance of counsel claim’”),

quoting State v. Glass, 10th Dist. Franklin No. 04AP-967, 2006-Ohio-229, ¶ 34.

      {¶54} Davner has not shown that, in advising Davner that he was likely to receive

a sentence ranging from probation to two or three years, Margolis did anything more than

provide Davner with an “educated guess” as to what his sentence might be in light of the

relevant facts and circumstances, including Davner’s lack of any significant criminal

history. Furthermore, the record reflects that Davner entered his guilty pleas with full

knowledge of the potential sentences he could receive.   The trial court informed Davner

of the potential sentencing range on each of the counts to which he was pleading guilty

and further explained that, based on his agreement that the counts would not merge for

sentencing, he could receive a potential maximum aggregate sentence of 12 and a half

years — if he were to receive a maximum sentence on each offense and the sentences

were to be run consecutively.    Davner indicated that he understood this.     Further, in

reviewing the potential sentencing range associated with the felonious assault count, the

trial court advised Davner that there was a “presumption of prison” as to that count.

Davner indicated that he understood this as well.   Accordingly, Davner was not denied

effective assistance of counsel and his pleas were not rendered unknowing, unintelligent

or involuntary based solely on his trial counsel’s faulty prediction of his sentences. See

Vinson, 2016-Ohio-7604, 73 N.E.3d 1025, at ¶ 31-35.

      Counsel’s Failure to Provide Complete Information Regarding Judicial
      Release
       {¶55} Davner’s argument with respect to the information — or lack of information

— he allegedly received from Margolis regarding his eligibility for judicial release,

however, presents a slightly different issue. A defendant does not enter a knowing,

intelligent or voluntary guilty plea if the plea is premised on incorrect legal advice. See,

e.g., Engle, 74 Ohio St.3d at 527-528, 660 N.E.2d 450.

       {¶56} Davner argues that although the trial judge informed him of the potential

maximum sentences could he could receive during the plea colloquy, he did not

understand, based on his attorney’s prior representations regarding judicial release, that if

he were to receive a sentence of five or more years, he would not be eligible for judicial

release until after he served five years of that sentence. Here, there is evidence in the

record to support Davner’s claim that Margolis failed to provide him with complete,

accurate legal advice regarding his eligibility for judicial release before he entered his

guilty pleas. Davner testified that Margolis informed him that he would be eligible for

judicial release after serving six months of his sentence but did not explain that, if he

received a sentence that was five years or longer, he would not be eligible for judicial

release until after he served five years of his sentence. The state presented no evidence

disputing this claim — Margolis did not testify as to what he told Davner regarding

judicial release — and there is nothing in the record to suggest that Davner was ever

informed that if he received a sentence longer than that predicted by counsel, i.e., if he

were to be sentenced to five years or more, he would not be eligible for judicial release

until after he served five years of his sentence.
       {¶57} As this court has stated, “it is well settled that a guilty plea may be

invalidated where the defendant is given misinformation regarding judicial release.”

State v. Williams, 8th Dist. Cuyahoga Nos. 104078 and 104849, 2017-Ohio-2650, ¶ 15,

citing State v. Ealom, 8th Dist. Cuyahoga No. 91455, 2009-Ohio-1365. The state points

out that, in these cases (and others cited by Davner), it was the trial court that gave the

defendant inaccurate information regarding judicial release during the plea hearing — not

trial counsel. Here, the trial court did not mention judicial release at the plea hearing.7

Regardless of whether it is the trial court or trial counsel who provides inaccurate

information regarding judicial release, when an erroneous understanding of the applicable

law induces a defendant’s guilty plea, the plea generally is not entered knowingly and

intelligently. See Engle at 527-528; Williams at ¶ 15 (“if a defendant is induced to enter

a guilty plea by erroneous representations as to the applicable law, the plea has not been

entered knowingly and intelligently, but the defendant must demonstrate prejudice

resulting from the erroneous representation, i.e., that but for erroneous information, the

plea would not have been made”); see also State v. Persons, 4th Dist. Meigs No. 02CA6,

2003-Ohio-4213, ¶ 11-16 (defendant’s guilty pleas were void where trial counsel did not

correctly advise defendant as to his eligibility for judicial release, which was a material

term of plea agreement, and the trial court and the state’s misunderstanding of


       7
         Unless incorporated into a plea agreement, the trial court is under no
obligation to inform a defendant regarding his eligibility for judicial release at the
plea hearing. If, however, it does so, and the defendant relies on that information
to his prejudice in entering a guilty plea, the information must be accurate. See,
e.g., Williams at ¶ 15; State v. Oliver, 6th Dist. Sandusky No. S-10-040, 2011-Ohio-5305, ¶ 12.
defendant’s eligibility for judicial release further compounded the error).             Davner

presented credible evidence establishing a reasonable probability that but for counsel’s

incomplete advisements regarding judicial release he would not have entered his guilty

pleas.

         Counsel’s Lack of Preparation for Trial

         {¶58} Davner also argues that he was coerced into accepting one of the plea deals

offered by the state due to his counsel’s failure to prepare for trial.   In this case, although

no plea offers had yet been extended, Margolis admitted that he was not prepared to try

the case on the scheduled trial date and had not asked for a continuance.      Where, as here,

counsel has admitted that he is not prepared for trial, courts have upheld claims of

ineffective assistance of counsel. See, e.g., State v. Biggers, 118 Ohio App.3d 788,

790-791, 694 N.E.2d 108 (10th Dist.1997) (defendant received ineffective assistance of

counsel where the record established that defense counsel “had done little or nothing in

the four months during which he had been assigned to the case” and at the start of trial,

asked for a continuance because he “admitted unequivocally that he was not prepared to

go to trial”).   While Margolis stated that he would have asked for a continuance if

Davner had rejected the state’s plea offers, such that his lack of preparation would not

have prejudiced Davner, there was no guarantee that the trial court would have granted a

continuance.     The trial court had already continued the trial date once.



         Conclusion
       {¶59} Following a thorough review of the record, considering the unique facts and

totality of the circumstances in this case, including: the limited time frame in which

Davner was given to consider the state’s plea offers; the incomplete information Davner

received from counsel regarding judicial release; Davner’s demonstrated lack of a full

and complete understanding, prior to the plea hearing, of the offenses to which he would

be pleading guilty and the consequences of his guilty pleas; the limited information

Davner received regarding the nature of the offenses and the effect of his guilty pleas at

the plea hearing; counsel’s admission that he was not prepared to try the case if Davner

rejected the state’s plea offers and Davner’s testimony that, but for this confluence of

events, he would not have entered his guilty pleas, we conclude that (1) Davner did not

knowingly, intelligently and voluntarily enter his guilty pleas, (2) withdrawal of his guilty

pleas is necessary to correct manifest injustice and (3) the trial court, therefore, abused its

discretion in denying Davner’s motion to withdraw his guilty pleas.

       {¶60} Davner’s first assignment of error is sustained. We reverse the trial court’s

judgment, vacate his guilty pleas and remand the case for further proceedings.

       {¶61} Based on our resolution of Davner’s first assignment of error, his second

assignment of error is moot.

       {¶62}    Judgment reversed; case remanded.

       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 Cuyahoga

County Court of Common Pleas 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 J. BOYLE, J., CONCURS;
EILEEN T. GALLAGHER, J., DISSENTS


EILEEN T. GALLAGHER, J., DISSENTING:

      {¶63} I respectfully dissent from the majority’s finding that Davner’s plea was

not knowingly, intelligently, and voluntarily made.

      {¶64} I recognize that this court has previously held that a guilty plea may be

invalid where the defendant is given misinformation regarding judicial release. State v.

Williams, 8th Dist. Cuyahoga Nos. 104078 and 104849, 2017-Ohio-2650; State v. Ealom,

8th Dist. Cuyahoga No. 91455, 2009-Ohio-1365; See also State v. Persons, 4th Dist.

Meigs No. 02CA6, 2003-Ohio-4213.         However, I do not find Williams, Ealom, or

Persons to be applicable to the facts of this case. In Williams, Ealom, and Persons, the

inaccurate misstatements of law that caused the defendants to believe that they were

eligible for judicial release occurred on the record during the plea proceedings. In

addition, in each case, the trial court contributed to the defendant’s misunderstanding by

making its own inaccurate statements on the record.
       {¶65} After careful review of the transcript, it is evident that no misstatement of

law occurred on the record in this case. In addition, the trial court did not misadvise

Davner about his eligibility for judicial release during the plea hearing. Thus, unlike the

facts addressed in Williams, Ealom, and Persons, the alleged misrepresentation of

Davner’s eligibility for judicial release occurred during a private conversation between

Davner and counsel.

       {¶66} Under these circumstances, it is my belief that the majority’s holding

improperly relies on Davner’s self-serving testimony and conversations that are not part

of this record. As this court has held, “[a] self-serving affidavit by the moving party is

generally insufficient to demonstrate manifest injustice.” Richmond Hts. v. McEllen, 8th

Dist. Cuyahoga No. 99281, 2013-Ohio-3151, ¶ 14, citing State v. Simmons, 8th Dist.

Cuyahoga No. 91062, 2009-Ohio-2028, ¶ 30.             See also State v. Yearby, 8th Dist.

Cuyahoga No. 79000, 2002 Ohio App. LEXIS 199 (Jan. 24, 2002) (When a defendant

asserts that his guilty plea was involuntary, “a record reflecting compliance with Crim.R.

11 has greater probative value than a petitioner’s self-serving affidavit.”).

       {¶67} In this case, the trial court engaged in a comprehensive Crim.R. 11 colloquy

with Davner, and a fair reading of the record does not permit me to conclude that he

entered his plea less than freely and voluntarily and with full knowledge of the

ramifications of his plea.     Moreover, the trial court held an extensive hearing on

Davner’s motion to withdraw his guilty plea. During the hearing, defense counsel was

questioned at length about the alleged representations he made to Davner about his
eligibility for judicial release. Under oath, defense counsel adamantly denied advising

Davner that the “worst [prison term] he would get would be 30 days” based on his

eligibility for judicial release. While Davner offered testimony to the contrary, “the trial

court is in the best position to assess the credibility of the defendant’s assertions.” State

v. Hunter, 8th Dist. Cuyahoga No. 99472, 2013-Ohio-5022, ¶ 18. Thus, I would defer to

the trial court’s assessment of credibility.

       {¶68} For the foregoing reasons, I would find that Davner has not presented
credible evidence that he was induced to enter a guilty plea based on trial counsel’s
erroneous representations as to the applicable law. Accordingly, I would affirm the trial
court’s judgment denying Davner’s motion to withdraw his guilty plea.
