[Cite as State v. Davis, 2017-Ohio-7323.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 105137



                                       STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                     RODERICK DAVIS
                                                      DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                    Case No. CR-16-603623-A

        BEFORE:           McCormack, P.J., E.T. Gallagher, J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: August 24, 2017
ATTORNEY FOR APPELLANT

James J. Hofelich
614 W. Superior Ave., Suite 1310
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Andrew F. Rogalski
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, P.J.:

        {¶1} Defendant-appellant Roderick Davis appeals from his conviction following

a guilty plea to one count of kidnapping. For the reasons that follow, we affirm.

        {¶2} Davis was charged in a three-count indictment:             Count 1 — rape in

violation of R.C. 2907.02(A)(1)(b); Count 2 — gross sexual imposition in violation of

R.C. 2907.05(A)(4); and Count 3 — kidnapping in violation of R.C. 2905.01(A)(4), with

a sexual motivation specification.    The charges stem from an incident that occurred in

January 2016 and involved a ten-year-old child.

        {¶3} Davis initially entered a plea of not guilty to the charges.     In response to

Davis’s concern with his appointed counsel and appointed counsel’s request to withdraw

from the matter, the trial court assigned new counsel.     Thereafter, with the assistance of

new counsel, Davis withdrew his previously entered not guilty plea and pleaded guilty to

amended Count 3, kidnapping, without the sexual motivation specification. In exchange

for the guilty plea, the state agreed to nolle the remaining charges.

        {¶4} After engaging in a Crim.R. 11 plea colloquy with Davis and advising

Davis of the terms of the plea agreement and the rights he was waiving, the trial court

accepted his guilty plea, finding that it was knowingly, intelligently, and voluntarily

made.    The court found Davis guilty and ordered a presentence investigation report.

On a later date, the court determined that Davis had not overcome the presumption of

prison and it sentenced Davis to seven years imprisonment.
       {¶5} Davis now appeals. In two assignments of error, Davis claims he was

denied the effective assistance of counsel and the trial court abused its discretion by

inquiring into the parties’ pretrial negotiations for sentencing purposes.

       {¶6} With respect to Davis’s first claim, he argues that trial counsel was

ineffective in not properly advising him of the elements of kidnapping, and had he been

properly advised, it is “unlikely” he would have entered the plea agreement.     In support,

he refers to two statements in the record: trial counsel’s assertion that his client “would

never agree to plead to any type of sexual offense” and Davis’s statement after receiving

his sentence that “[t]his is a big misunderstanding of how everything went down.”

       {¶7} In order to establish a claim of ineffective assistance of counsel, the

defendant must show that his trial counsel’s performance was deficient in some aspect of

his representation and that deficiency prejudiced his defense. Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, our scrutiny of

an attorney’s representation must be highly deferential, and we must indulge “a strong

presumption that counsel’s conduct falls within the range of reasonable professional

assistance.” Id. at 689.

       {¶8} In proving ineffective assistance in the context of a guilty plea, the

defendant must demonstrate that there is a reasonable probability that, but for counsel’s

errors, he would not have pleaded guilty and he would have insisted on going to trial.

State v. Wright, 8th Dist. Cuyahoga No. 104134, 2016-Ohio-7493, ¶ 5. In analyzing

prejudice in a plea, the court must consider all of the factors that surround the decision to
plead, including the benefits associated with a plea and the possible punishments

involved.   Id.; see also State v. Strong, 11th Dist. Ashtabula No. 2013-A-0003,

2013-Ohio-5189, ¶ 19.

       {¶9} Generally, a guilty plea waives all appealable errors that may have occurred

in the trial court, including a claim of ineffective assistance of counsel, unless the errors

precluded the defendant from knowingly, intelligently, and voluntarily entering a guilty

plea. State v. Davis, 8th Dist. Cuyahoga No. 103764, 2016-Ohio-7222, ¶ 23, citing State

v. Geraci, 8th Dist. Cuyahoga Nos. 101946 and 101947, 2015-Ohio-2699, ¶ 14.

Therefore, a guilty plea waives the right to claim ineffective assistance of counsel “except

to the extent that the defect or ineffective assistance caused [the accused’s] guilty plea to

be less than knowing, intelligent and voluntary.” State v. Vihtelic, 8th Dist. Cuyahoga

No. 105381, 2017-Ohio-5818, ¶ 14.

       {¶10} Here, we find nothing in the record that demonstrates trial counsel’s

deficient performance or counsel’s failure to provide advice that would impair the

knowing, intelligent, and voluntary nature of Davis’s plea.

       {¶11} We note, initially, that trial counsel’s statement at sentencing that his client

“would never agree to plead to any type of sexual offense” does not demonstrate that trial

counsel failed to properly advise Davis of the elements of kidnapping.        Rather, when

taken in context at sentencing, this statement   supports the factual basis for the plea and

Davis’s rationale in pleading guilty to the amended kidnapping charge.
       {¶12} At the sentencing hearing, the state summarized the facts of the case.

Davis, who was in a relationship with the victim’s grandmother, was caring for the victim

while the grandmother was working.      The prosecutor stated that, according to the victim,

on one January morning when the victim was getting ready for school, Davis was lying on

the bed, grabbed the child by the arm, “flipped her up onto the bed * * *, pulled her

bottoms down and with his hand and fingers touched her vaginal area * * * [and] his

fingers went inside her vagina.”   The state also advised the court that Davis had reported

to the detective that he did, in fact, “flip” the child onto the bed, but he only pinched her

buttocks.   In response to this statement, defense counsel explained to the court, “in

pulling her up on the bed, he pled to a kidnapping. No sexually-related offense, Judge.”

       {¶13} Thereafter, the court noted that, given the facts and circumstances of the

case, the plea to a kidnapping charge was “unusual.”      In an effort to clarify matters for

family members, the court inquired about the plea:

       Court:        Now, it’s my understanding that at the time of the plea in this
                     case, the state offered the defendant the option of pleading to
                     a sexually-related crime, gross sexual imposition, which is a
                     lesser felony than * * * a kidnapping charge. Is that correct?

       Prosecutor:   Yes. I believe it would have been a high-tier felony of the
                     third degree, * * * which would have been a possible penalty
                     of one to five years in addition to the [sexual offender]
                     registration requirement. * * * [T]he stumbling block for the
                     plea at that time was the registration requirements.

                     So an Option B was later given the defendant to plea to,
                     which in order for us to remove any crime that would have
                     registration requirements, we would have to have the felony
                     level go up two levels. There would have to be the
                     presumption of prison.
                      So now we have kidnapping 3 to 11 years with no registration
                      requirement that exposes the defendant to greater prison
                      sentence but takes away the sexual [offender] registration
                      requirements, your Honor.

                      ***

       Defense
       Counsel:       Judge, * * * we did have conversations and my client would
                      never agree to plead to any type of sexual offense. I, in turn,
                      [tried] on several different occasions * * * to get something
                      other than a sexually-related offense and this was the ultimate
                      goal, ultimate plea, that [the prosecutor’s office] would
                      authorize.

       Court:         * * * I don’t usually make that statement or inquire about that,

                      but I think * * * this is an unusual situation, but I think it’s

                      also, you know, perhaps helpful to some family members who

                      may or may not appreciate how sometimes plea agreements

                      are reached or why they’re reached or what the impact of

                      those decisions are.

       {¶14} Defense counsel’s statement, therefore, taken in context of the foregoing

discussion, explains why Davis pleaded guilty to the amended kidnapping charge. The

statement does not support Davis’s assertion on appeal that trial counsel failed to properly

advise him of the elements of kidnapping. And this exchange, in fact, demonstrates that

Davis made an informed decision to avoid the risks of trial and thus avoid the possibility

of a conviction for a sexually related offense.   Davis, therefore, benefitted from the plea

agreement.      By pleading guilty to the amended kidnapping charge, Davis successfully
avoided a potentially significantly longer prison term as well as the attendant sexual

offender registration requirements.

       {¶15} Additionally, although Davis stated after receiving his sentence that “this is

a big misunderstanding,” this comment, alone, in light of the record before us, does not

demonstrate that Davis would not have pleaded guilty.       The record shows that the court

conducted a thorough Crim.R. 11 colloquy and Davis’s guilty plea was, in fact,

knowingly, intelligently, and voluntarily made.

       {¶16} At the plea hearing, the court ensured that Davis was not under the influence

of any drugs or medication that would impair his understanding of the proceedings, and it

inquired of his education. Thereafter, the court advised Davis of his constitutional rights

and explained the charge to which he was pleading guilty, the maximum penalty of the

charge, and the effect of his plea.   Davis repeatedly indicated that he understood.    The

court inquired whether there had been any threats, promises, or inducements made in an

effort to cause Davis to enter his plea, to which Davis replied in the negative.

       {¶17} The court also advised Davis that the kidnapping charge is a felony of the

first degree and therefore carries a presumption of prison.          The court specifically

explained to Davis that this presumption means “in all probability, you will be going to

prison for a period of time of at least three years up to eleven years,” unless Davis or his

counsel “convinces [the court] that [Davis] should not go to prison.” The court stated

that if Davis overcomes the presumption of prison, then the court can place Davis on

probation, which he further explained. Davis informed the court that he understood the
court’s explanations and indicated that he had no questions regarding “the possible

consequences” of his plea.

       {¶18} Furthermore, the court inquired whether Davis was satisfied with his

counsel during the plea process, to which Davis replied, “Yes, I am.”   Finally, there is no

indication in the record that Davis expressed hesitation at any time during the plea

hearing.

       {¶19} In light of the foregoing, we find that the record does not support Davis’s

claim that defense counsel was ineffective during his plea hearing.     Rather, the record

reflects that Davis understood the nature of the charge and the plea proceedings, as well

as the benefits associated with the plea, and he knowingly and voluntarily pleaded guilty

to the amended kidnapping charge.

       {¶20} Davis’s first assignment of error is overruled.

       {¶21} Davis also claims that the trial court abused its discretion when it inquired

into the parties’ pretrial negotiations for purposes of sentencing, noting the exchange

outlined above. In support, he cites to State v. Jabbaar, 2013-Ohio-1655, 991 N.E.2d

290 (8th Dist.).

       {¶22} Jabbaar, however, addresses concerns regarding a trial judge’s alleged

participation in plea negotiations.    In that case, the defendant argued that the trial

judge’s discussion of the evidence and the penalties attached to the counts, along with the

judge’s direct recommendation that Jabbaar “should consider a plea,” had a coercive

effect that rendered Jabbaar’s plea involuntary. Id. at ¶ 24.   While acknowledging that
a trial judge’s participation in plea negotiations is “not the preferred practice and that, in

some instances, the trial judge’s comments raise concern,” we stated that a judge’s

comments must not be considered in isolation; rather, “‘we consider the record in its

entirety to determine the voluntariness of the guilty plea.’” Id. at ¶ 29, citing State v.

Finroy, 10th Dist. Franklin No. 09AP-795, 2010-Ohio-2067, ¶ 7. In so considering the

judge’s comments in light of the entire record in that case, including the Crim.R. 11

colloquy, we found Jabbaar’s plea to have been voluntarily made. Jabbaar at ¶ 35.

        {¶23} Here, there is no evidence of the trial judge’s active participation in Davis’s

plea negotiations. Rather, the judge’s sole inquiry into the plea negotiations was made

after Davis entered his plea, and this inquiry was made for explanatory purposes.       Prior

to imposing sentence, the judge asked about the prosecutor’s offer of a lesser felony

charge of gross sexual imposition. When the judge inquired, he explained that the

information might be helpful to the family members present at the hearing, in light of the

unusual nature of the plea and the fact that family “may not appreciate how sometimes

plea agreements are reached or why they’re reached or what the impact of those decisions

are.”   The judge then stated, “[a]nd whatever other family members believe or don’t

believe or whatever was said by whom to others as to what occurred, the clear fact is that

Mr. Davis pled guilty to kidnapping.”

        {¶24} These comments do not amount to the court’s participation in plea

negotiations, and they could not have affected the voluntariness of Davis’s plea, because

they were made at sentencing, after Davis had already pleaded guilty to the kidnapping
charge.   And to the extent that Davis claims the comments improperly affected the

sentence the court imposed, there is no evidence in the record supporting such a claim.

       {¶25} We therefore find nothing improper regarding the trial judge’s isolated

inquiry into the parties’ plea negotiations prior to imposing sentence in this matter.

       {¶26} Davis’s second assignment of error is overruled.

       {¶27} Judgment affirmed.

       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

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

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



________________________________________
TIM McCORMACK, PRESIDING JUDGE

EILEEN T. GALLAGHER, J., and
SEAN C. GALLAGHER, J., CONCUR
