[Cite as State v. Daviduk, 2019-Ohio-1132.]




             IN THE COURT OF APPEALS OF OHIO
                             SEVENTH APPELLATE DISTRICT
                                 MAHONING COUNTY

                                          STATE OF OHIO,

                                          Plaintiff-Appellee,

                                                  v.

                                      JONATHON DAVIDUK,

                                       Defendant-Appellant.


                        OPINION AND JUDGMENT ENTRY
                                         Case No.17 MA 0167


                                   Criminal Appeal from the
                       Court of Commom Pleas of Mahoning County, Ohio
                                     Case No.17 CR 420

                                         BEFORE:
                David A. D’Apolito, Cheryl L. Waite, Carol Ann Robb, Judges.


                                         JUDGMENT:
                            Affirmed; Remand for Nunc Pro Tunc Entry


 Atty. Paul J. Gains, Mahoning County Prosecutor and Atty. Ralph M. Rivera, Assistant
 Prosecuting Attorney, 21 West Boardman Street, 6th Floor, Youngstown, Ohio 44503,
 for Appellee and


 Atty. Jennifer Simon, 4410 Market Street, Youngstown, Ohio 44512, for Appellant.
                                                                                        –2–


                                 Dated: March 25, 2019


 D’APOLITO, J.

       {¶1}    Appellant Jonathon Daviduk appeals the judgment entry of the Mahoning
County Court of Common Pleas denying his motion to withdraw his guilty plea. Having
reviewed the record, we find that Appellant’s plea was voluntarily entered, the trial court
did not abuse its discretion in overruling the motion, and Appellant has failed to
demonstrate ineffective assistance of counsel. Accordingly, the judgment of the trial court
is affirmed.

                             Facts and Procedural History

       {¶2}    On May 25, 2017, Appellant was indicted for one count of Aggravated
Robbery, in violation of R.C. 2911.01(A)(1)(C), a felony of the first degree; one count of
Robbery, in violation of R.C. 2911.01(A)(2)(B), a felony of the second degree; and one
count of Kidnapping, in violation of R.C. 2905.01(A)(2)(C), a felony of the second degree.
He signed a waiver of speedy trial rights on June 29, 2017 and trial was scheduled for
July 31, 2017, then continued to August 28, 2017. On August 25, 2017, the trial court
was notified that a plea agreement had been reached.
       {¶3}    At the plea hearing on August 28, 2017, Appellant announced that he
wanted to go to trial and requested new counsel. Appellant subsequently withdrew the
request for new counsel and the trial was scheduled to begin the following day. Plea
negotiations resumed prior to the commencement of trial on August 29, 2017, and
Appellant decided once again that he wanted to accept the state’s plea offer.
       {¶4}    At the beginning of the plea hearing on August 29, 2017, the trial court
inquired: “So what’s different today from yesterday?” Appellant responded:

       Well, I was being stupid. I want to apologize to you for the way I was acting.
       It was – I got a daughter that’s on the way, that I didn’t want to spend the
       rest of my life in prison on this. I would rather take the deal and raise my
       daughter when she’s born.




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(8/29/17 Tr. 2).
       {¶5}   The trial court explained the rigorous demands of conducting a trial,
including the preparation of evidence and argument by counsel, the subpoenaing of
witnesses, and the summoning of jurors.          After acknowledging that counsel, the
witnesses, and the prospective jurors were present at the courthouse and ready to
proceed, the trial court stated, “This is not something where it’s a ping pong game. This
is where you gotta [sic] make up your mind. Whether you like it or not. That’s the bottom
line. And once you make up your mind, we all have to live with it.” (Id. at 3).
       {¶6}   Next, the trial court addressed Appellant’s previous concerns regarding his
trial counsel. The trial court asked, “Yesterday you indicated that you wanted to get a
different lawyer and that you were unhappy. I just want to make sure that you’re not just
saying that. Are you completely satisfied with his legal representation and advice?”
Appellant responded, “I am, Your Honor.” (Id. at 6-7).
       {¶7}   In the colloquy that followed, the trial court informed Appellant of the rights
he was waiving as a result of his guilty plea, and then reviewed the entire written plea
agreement on the record. Appellant testified that he had previously reviewed the plea
agreement with his counsel. Appellant waived all of his trial and appellate rights and
entered guilty pleas to the charge of robbery and the amended charge of attempted
kidnapping, in violation of R.C. 2923.02 and 2905.01(A)(2)(C). The trial court accepted
Appellant’s pleas and found him guilty of the foregoing charges. The sentencing hearing
was scheduled for October 30, 2017.
       {¶8}   On September 27, 2017, Appellant filed a pro se motion pursuant to Brady
v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) which was overruled as
moot by the trial court on October 23, 2017. In his motion, Appellant sought information
pertaining to the codefendants and witnesses in the case.
       {¶9}   On October 30, 2017, prior to the commencement of the sentencing
hearing, Appellant’s trial counsel filed a motion to withdraw guilty plea. Attached to the
motion was a copy of a handwritten letter from Appellant to trial counsel, dated October
12, 2017, which reads, in its entirety, “I’m just informing you that I’m taking back my plea
and would like to go to trial I’m done being stuck in here for something someone else did
I also did a motion for Brady Material thank you have a nice day.”



Case No. 17 MA 0167
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       {¶10} The trial court converted the sentencing hearing into a motion hearing and
heard oral argument on the motion to withdraw plea. Appellant restated the substance of
his letter to trial counsel at the hearing – that he was not guilty of the crimes and did not
want to waste years of his life in prison for the criminal behavior of others.
       {¶11} The state provided the following summary of the evidence that would be
offered at trial. Surveillance video captured Appellant and his codefendants entering a
Burger King restaurant through the “drive-thru” window, which had been left open by a
Burger King employee, who was complicit in the crime.            Appellant was found at a
residence located within a few miles of the crime scene and clothing was found in the
residence that matched the clothing worn by one of the perpetrators that evening.
Further, one of Appellant’s codefendants had identified him as one of the perpetrators in
his proffer, and another codefendant confirmed his involvement in the crime. The state
argued that it would suffer prejudice if the motion to withdraw were granted, because one
of the codefendants had already been sentenced.
       {¶12} Citing our decision in State v. Cuthbertson, 139 Ohio App.3d 895, 898-899,
2000-Ohio-2638, 746 N.E.2d 197 (7th Dist.2000), the trial court observed that the timing
of the motion was unreasonable because more than a month had passed since the plea
hearing, and, further, that the state would suffer prejudice, because a witness for the
prosecution had already been sentenced. (10/30/17 Tr. 17). The trial court opined that
Appellant’s plea colloquy had been thorough and his trial counsel had provided exemplary
representation.   The trial court tersely concluded that Appellant filed the motion to
withdraw plea simply because he “[didn’t] want to go to jail.” (Id. at 18). The trial court
further found that no evidence of Appellant’s innocence had been offered at the hearing.
Because Appellant had fully understood the elements of the crimes, the evidence that
would be offered against him at trial, and the potential sentence prior to entering his plea,
the trial court overruled the motion to withdraw and proceeded to sentencing.

                                         Analysis

       {¶13} Appellant asserts three assignments of error, each challenging the validity
of his plea:




Case No. 17 MA 0167
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                              First Assignment of Error:

      Appellant’s plea of guilty was not knowingly, voluntarily and/or intelligently
      made.

      {¶14} Guilty pleas are governed by Crim.R. 11. The notice requirements for non-
constitutional rights incorporated in Rule 11 are subject to a substantial compliance
analysis, which looks to the totality of the circumstances to ascertain whether the
defendant subjectively understood the implications of his plea and the rights he waived.
State v. Rudai, 7th Dist. No. 18 BE 0002, 2018-Ohio-4464, citing State v. Nero, 56 Ohio
St.3d 106, 108, 564 N.E.2d 474 (1990); State v. Stewart, 51 Ohio St.2d 86, 93, 364 N.E.2d
1163 (1977). Strict compliance is required when notifying the defendant of constitutional
rights incorporated in Rule 11. State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130,
953 N.E.2d 826, ¶ 15, citing State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897
N.E.2d 621, ¶ 18.
      {¶15} A review of the record demonstrates that the trial court engaged in a
required colloquy with Appellant regarding the nature of the charges against him, as well
as the rights he was waiving as a part of his plea. Appellant specifically acknowledged
that his plea was “freely and voluntarily made,” and that he wanted to “waive all of [his]
trial and appellate rights and go ahead with [the] plea.” (8/29/17 Tr. 14). Appellant never
expressed any equivocation to cast doubt on the voluntariness of his plea at the plea
hearing.
       {¶16} Nonetheless, Appellant contends that his “lack of criminal history, combined
with his youth, quick pace at which the case was forced to proceed, evidence of
reluctance to enter into a plea, concerns with the legal representation that was being
provided to him and statements made by the Court prior to Appellant entering his plea
give cause to believe the plea was not made knowingly, voluntarily and intelligently but
rather entered into under pressure.” (Appellant Brf. 7). However, an examination of the
record reveals that Appellant’s argument is unfounded.
       {¶17} First, there is no evidence in the record that the matter was forced to
proceed at a quick pace. Appellant was indicted on May 15, 2017. He failed to appear
at a status conference on June 19, 2017 and a bench warrant was issued for his arrest.


Case No. 17 MA 0167
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He was held without bond for the remainder of the pretrial period. He signed a waiver of
speedy trial rights on June 29, 2017 and trial was scheduled for July 31, 2017, then
continued to August 29, 2017. Contrary to his argument, Appellant had ample time to
consider the maximum possible sentences should he be convicted, and the considerable
reduction in his sentence should he enter a guilty plea.
       {¶18} Turning to Appellant’s “evidence of reluctance,” the trial court specifically
asked Appellant to explain his decision to enter into a plea agreement with the state one
day after he had expressed an unwillingness to plead and dissatisfaction with his counsel.
Appellant was given ample opportunity to express his reservations, but, instead, he
apologized to the trial court and articulated a thoughtful and compelling reason for
accepting the plea deal.
       {¶19} Based upon the record, the trial court complied with Crim.R. 11 before
accepting Appellant’s plea, and there is no evidence in the record that suggests
Appellant’s plea was involuntary. Accordingly, we find that the first assignment of error
is meritless.

                              Second Assignment of Error:

       The trial court committed plain error by refusing to allow Appellant to
       withdraw his plea of guilty.

       {¶20} Criminal Rule 32.1 provides: “A motion to withdraw a plea of guilty or no
contest may be made only before sentence is imposed; but to correct manifest injustice
the court after sentence may set aside the judgment of conviction and permit the
defendant to withdraw his or her plea.” A motion made pursuant to Crim.R. 32.1 is
addressed to the sound discretion of the trial court, and the good faith, credibility and
weight of the movant’s assertions in support of the motion are matters to be resolved by
that court. State v. Reed, 7th Dist. No. 04 MA 236, 2005-Ohio-2925, ¶ 7.
       {¶21} In State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992), the Ohio
Supreme Court set forth the burden of proof and the standard of review for a motion to
withdraw plea prior to sentencing:

       We agree that a presentence motion to withdraw a guilty plea should be


Case No. 17 MA 0167
                                                                                         –7–


        freely and liberally granted. Nevertheless, it must be recognized that a
        defendant does not have an absolute right to withdraw a plea prior to
        sentencing. Therefore, the trial court must conduct a hearing to determine
        whether there is a reasonable and legitimate basis for the withdrawal of the
        plea. In this case, the trial court held such a hearing, at which it carefully
        considered Xie's motion and all the circumstances surrounding the entering
        of the plea. Absent an abuse of discretion on the part of the trial court in
        making the ruling, its decision must be affirmed. For us to find an abuse of
        discretion in this case, we must find more than an error of judgment. We
        must find that the trial court's ruling was “unreasonable, arbitrary or
        unconscionable.” State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 3d
        169, 173, 404 N.E.2d 144, 149.

        {¶22} In State v. Cuthbertson, 7th Dist. No. 98CA133, 139 Ohio App.3d 895,
2000-Ohio-2638, 746 N.E.2d 197, we articulated the factors to be considered when
determining whether a trial court abused its discretion in overruling a motion to withdraw
plea:   (1) whether a withdrawal will result in prejudice to the prosecution; (2) the
representation afforded to the defendant by counsel; (3) the extent of the hearing
conducted by Crim.R. 11; (4) the extent of the hearing on the motion to withdraw; (5) the
amount of consideration given to the motion by the court; (6) the timing of the motion; (7)
the reasons given for the withdrawal; (8) the defendant’s understanding of the charges
and penalties; and (9) the existence of a meritorious defense. Id. at 898-899, citing State
v. Thomas, 7th Dist. Nos. 96 C.A. 223, 96 C.A. 225, 96 C.A. 226, 1998 WL 934645, *4.
No one of these factors is conclusive. Cuthbertson at 899.
        {¶23} Based on the transcript of the October 30th hearing, the trial court
thoughtfully analyzed each relevant factor in evaluating the motion to withdraw his guilty
plea. Further, Appellant was given ample opportunity to articulate his reasons for seeking
to withdraw his plea. As a consequence, we find that the hearing was sufficient and that
the trial court gave full and fair consideration to the motion. Accordingly, we conclude
that the trial court did not abuse its discretion when it overruled the motion to withdraw
plea, and that Appellant’s second assignment of error has no merit.
                                   Third Assignment of Error:


Case No. 17 MA 0167
                                                                                      –8–


       Appellant was prejudiced and deprived of the effective assistance of trial counsel
       in violation of Appellant’s rights under the Fifth, Sixth, and Fourteenth Amendments
       to the United States Constitution, and Sections 10 and 16, Article 1 of the Ohio
       Constitution.

       {¶24} To prove a claim of ineffective assistance of counsel, the defendant must
show that counsel’s performance was deficient, that is, his performance fell below an
objective standard of reasonableness, and this deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 684, 104 S.Ct. 2052 (1984). Appellant
argues that his counsel was ineffective because the motion to withdraw his guilty plea
was not filed until the day of the sentencing hearing, despite the fact that Appellant’s
handwritten letter was dated October 12, 2017. Appellant further argues that trial counsel
did not vigorously argue the motion.
       {¶25} With respect to the timing of the motion, the trial court observed:

       This is a month after the plea was entered, and the world has turned. One
       of the defendants was already sentenced. That’s one of the cooperating
       defendants who would give testimony against this defendant, whose
       testimony may now be unavailable because of the fact that his sentence
       has already been put into execution.

(Id. at 17).
       {¶26} Appellant’s handwritten letter attached to the motion to withdraw the guilty
plea was dated October 12, 2017. Appellant contends that, if trial counsel had filed the
motion immediately upon receiving Appellant’s letter, then the trial court would have
granted the motion to withdraw.
       {¶27} Appellant’s argument fails for two reasons.          First, the trial court’s
determination that the timing of the motion was unreasonable was based on the fact that
a month had passed since the plea was entered. Assuming arguendo that trial counsel
filed the motion the day after he received Appellant’s letter, the motion would still have
been filed more than a month after the plea agreement was executed. Second, the trial
court reasoned that the state suffered prejudice because one of the codefendants had



Case No. 17 MA 0167
                                                                                         –9–


already been sentenced in the interim between Appellant’s guilty plea and sentencing.
Appellant argues that, had trial counsel timely filed a motion to withdraw, the state could
have continued the codefendant’s sentencing hearing until the motion to withdraw the
guilty plea could be heard. This assertion is speculative at best, because the record is
silent as to the date that the codefendant was sentenced.
       {¶28} Next, Appellant asserts that “little, if any, argument was given in support of
the Motion [to withdraw the plea].” (Appellant Brf. 12). Appellant was given ample
opportunity to explain the reasons supporting his motion. Furthermore, the motion to
withdraw the plea raises the same arguments Appellant raises here, namely that his
“judgment was impaired when he entered his guilty plea to emotions of fear and panic,”
and as a result his plea was not knowingly, voluntarily, or intelligently made. (10/30/17
Motion 2). Appellant predicates his argument on the fact that he chose not to enter the
plea and requested new counsel one day prior to the execution of the plea agreement.
However, Appellant’s decision to enter his guilty pleas on August 29, 2017 was fully
explained in the record.
       {¶29} Having reviewed the record, we find that Appellant has failed to show that
counsel’s performance fell below an objective standard of reasonable advocacy or that
Appellant suffered any prejudice. As a consequence, we further find that Appellant’s third
assignment of error is meritless.
       {¶30} Finally, we address sua sponte an error not raised by Appellant that
nevertheless affects his substantial rights. See Crim.R. 52(B). At the sentencing hearing,
the trial court imposed a four-year sentence for Appellant’s robbery conviction and a
three-year sentence for his attempted kidnapping conviction, to be served concurrently.
(Id. 29-30). In the judgment entry, the trial court imposed a four-year term of imprisonment
for each crime, to be served concurrently. (11/3/17 JE).
       {¶31} Crim.R. 43(A) provides that “the defendant must be physically present at
every stage of the criminal proceeding and trial, including * * * the imposition of sentence.”
Because a defendant is required to be present when sentence is imposed, it constitutes
reversible error for the trial court to impose a sentence in its judgment entry different than
the sentence announced at the sentencing hearing in defendant's presence. State v.
Williams, 7th Dist. No. 11 MA 131, 2012-Ohio-6277, ¶ 53.



Case No. 17 MA 0167
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       {¶32} If there exists a variance between the sentence pronounced in open court
and the sentence imposed by a court’s judgment entry, a remand for resentencing is
required. State v. Reinthaler, 7th Dist. No. 16 MA 0170, 2018-Ohio-2483, ¶ 9. Crim.R.
36 provides that “[c]lerical mistakes in judgments, orders, or other parts of the record, and
errors in the record arising from oversight or omission, may be corrected by the court at
any time.” Accordingly, this matter must be remanded so that the trial court can enter a
nunc pro tunc entry reflecting the sentence imposed at the sentencing hearing. Id. at ¶
16, State v. Tesack, 7th Dist. No. 15 JE 4, 2015-Ohio-5601, ¶ 18.

                                        Conclusion

       {¶33} In summary, we find that Appellant’s plea was freely and voluntarily entered,
and, accordingly, the judgment of the trial court with regard to Appellant’s motion to
withdraw his plea is affirmed. However, this cause is remanded for a nunc pro tunc order
memorializing the sentence imposed at the sentencing hearing.




Waite, P.J., concurs.

Robb, J., concurs.




Case No. 17 MA 0167
[Cite as State v. Daviduk, 2019-Ohio-1132.]




                                        Affirmed
         For the reasons stated in the Opinion rendered herein, the assignments of error
 are overruled and it is the final judgment and order of this Court that the judgment of
 the Court of Common Pleas of Mahoning County, Ohio, is affirmed, but remanded for
 nunc pro tunc order for sentencing. Costs are waived.
         A certified copy of this opinion and judgment entry shall constitute the mandate
 in this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that
 a certified copy be sent by the clerk to the trial court to carry this judgment into
 execution.




                                        NOTICE TO COUNSEL

         This document constitutes a final judgment entry.
