[Cite as State v. Davis, 2011-Ohio-2514.]




          Court of Appeals of Ohio
                                 EIGHTH APPELLATE DISTRICT
                                    COUNTY OF CUYAHOGA



                            JOURNAL ENTRY AND OPINION
                                     No. 95016



                                     STATE OF OHIO
                                              PLAINTIFF-APPELLEE

                                               vs.

                                   ALBERT D. DAVIS
                                              DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                Criminal Appeal from the
                          Cuyahoga County Court of Common Pleas
                                       2
                                Case No. CR-533246

          BEFORE:       Blackmon, P.J., Stewart, J., and Sweeney, J.

          RELEASED AND JOURNALIZED:                  May 26, 2011


                                        -i-

ATTORNEY FOR APPELLANT

Robert A. Dixon
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103

ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

By: W. Mona Scott
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113




PATRICIA ANN BLACKMON, P.J.:

      {¶ 1} Appellant Albert D. Davis appeals the trial court’s denial of his

post-sentence motion to withdraw his guilty pleas and assigns the following

error for our review:

      “The appellant’s plea of guilty must be vacated as it was
      not entered with full advice of the consequences as
                                      3
      required by Crim.R. 11 and the Due Process Clause of the
      Constitution of the United States.”

      {¶ 2} Having reviewed the record and pertinent law, we affirm the trial

court’s decision. The apposite facts follow.

      {¶ 3} On January 25, 2010, the Cuyahoga County Grand Jury indicted

Davis on one count of failure to comply with an order or signal of a police

officer; a risk of serious physical harm specification was attached. The grand

jury also indicted Davis on two counts of assault of a peace officer and one

count of resisting arrest. On January 28, 2010, Davis pleaded not guilty at his

arraignment, several pretrials were conducted, and the matter was

subsequently scheduled for trial.

      {¶ 4} On March 24, 2010, the date scheduled for trial, after an

agreement with the state, Davis withdrew his not guilty pleas, and pleaded

guilty to failure to comply with an order or signal of a police officer, that

included the risk of serious physical harm specification. Davis also pleaded

guilty to one count of assault of a peace officer, and the state dismissed the

remaining two charges.

      {¶ 5} On April 19, 2010, the trial court sentenced Davis to a prison

term of two years for failure to comply with an order or signal of a police

officer and one year for assault on a peace officer. The trial court ordered
                                       4
consecutive sentences for a total of three years imprisonment. In addition,

the trial court suspended Davis’s driver’s license for life.

      {¶ 6} On April 22, 2010, Davis filed a pro se motion to withdraw his

guilty pleas, which the trial court denied, and Davis now appeals.

                 Post-Sentence Withdrawal of Guilty Plea

      {¶ 7} In the sole assigned error, Davis argues his guilty pleas were not

knowingly, intelligently, and voluntarily made, because the trial court failed

to advise him that the imposition of the mandatory lifetime driver’s license

suspension could result in him not having occupational driving privileges.

      {¶ 8} Preliminarily, we note that the instant appeal involves a

post-sentence motion to withdraw a guilty plea.        Pursuant to Crim.R. 32. 1,

the trial court can set aside a judgment of conviction after it imposes

sentence, and may allow the defendant to withdraw his or her plea, only “to

correct a manifest injustice.”      State v. Bell, Cuyahoga App. No. 87727,

2007-Ohio-3276, citing State v. Smith (1977), 49 Ohio St.2d 261, 264, 361

N.E.2d 1324. The individual seeking vacation of the plea bears the burden of

establishing the existence of a “manifest injustice.” Id., paragraph one of

syllabus.

      {¶ 9} “Manifest injustice” is an extremely high standard that permits

the court to allow a plea withdrawal only in “extraordinary cases.” State v.
                                      5

Malone, Cuyahoga App. No. 91439, 2009-Ohio-1364, citing State v. Herrera,

3d Dist. No. 1-01-126, 2001-Ohio-2341. A manifest injustice is defined as a

“clear or openly unjust act.” State ex rel. Schneider v. Kreiner, 83 Ohio St.3d

203, 208, 1998-Ohio-271, 699 N.E.2d 83. Other courts have referred to it as

“an extraordinary and fundamental flaw in the plea proceeding .” State v.

Lintner, 7th Dist. No. 732, 2001-Ohio-3360; State v. Wheeler, 2d Dist. No.

18717, 2002-Ohio-284.

      {¶ 10} A post-sentence motion to vacate a guilty plea is addressed to the

sound discretion of the trial court and an appellate court’s review of a trial

court’s denial of a post-sentence motion to withdraw a guilty plea is limited to

a determination of whether the trial court abused its discretion. State v.

Blatnik (1984), 17 Ohio App.3d 201, 202, 478 N.E.2d 1016. The term “abuse

of discretion” connotes more than an error of law or judgment; it implies that

the court’s decision is unreasonable, arbitrary or unconscionable. Blakemore

v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450 N.E.2d 1140. Absent an

abuse of discretion on the part of the trial court in making the ruling, its

decision must be affirmed. State v. Xie (1992), 62 Ohio St.3d 521, 527, 584

N.E.2d 715.

      {¶ 11} We have found no evidence that a manifest injustice occurred.

The record indicates that the trial court fully informed Davis of his
                                      6
constitutional rights and made sure that he was knowingly waiving those

rights. The trial court sufficiently apprised Davis of the charges to which he

pled and the attendant penalties.

      {¶ 12} Nonetheless, Davis asserts that his guilty pleas were rendered

unknowingly and involuntarily by the fact that the trial court did not advise

him that he faced the possibility that he would be denied occupational driving

privileges upon his release from prison. We are not persuaded.

      {¶ 13} The underlying purpose of Crim.R. 11(C) is to convey certain

information to a defendant so that he or she can make a voluntary and

intelligent decision regarding whether to plead guilty. State v. Ballard (1981),

66 Ohio St.2d 473, 479-480, 423 N.E.2d 115. The standard for reviewing

whether the trial court accepted a plea in compliance with Crim.R. 11(C) is a

de novo standard of review. State v. Cardwell, Cuyahoga App. No. 92796,

2009-Ohio-6827, ¶26, citing State v. Stewart (1977), 51 Ohio St.2d 86, 364

N.E.2d 1163.    It requires an appellate court to review the totality of the

circumstances and determine whether the plea hearing was in compliance

with Crim.R. 11(C). Id.

      {¶ 14} Crim.R. 11(C)(2) provides in pertinent part that in felony cases

the court may refuse to accept and shall not accept a plea of guilty without

first addressing the defendant personally and doing all of the following:
                                      7
      “(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.”

      {¶ 15} A trial court must strictly comply with the Crim.R. 11(C)(2)(c)

requirements that relate to the waiver of constitutional rights. State v. Veney,

120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶18. Under the more

stringent standard for constitutionally protected rights, a trial court’s

acceptance of a guilty plea will be affirmed only if the trial court engaged in

meaningful dialogue with the defendant which, in substance, explained the

pertinent constitutional rights “in a manner reasonably intelligible to that

defendant.” Ballard, paragraph two of the syllabus.

      {¶ 16} With respect to the nonconstitutional requirements of Crim.R. 11,

set forth in Crim.R. 11(C)(2)(a) and (b), reviewing courts consider whether
                                      8

there was substantial compliance with the rule. Veney at ¶14-17. “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 (1990), 56 Ohio St.3d 106, 108, 564 N.E.2d 474;

Stewart, 51 Ohio St.2d 86. “[I]f it appears from the record that the defendant

appreciated the effect of his plea and his waiver of rights in spite of the trial

court’s error, there is still substantial compliance.” State v. Caplinger (1995),

105 Ohio App.3d 567, 572, 664 N.E.2d 959.

      {¶ 17} Further, a defendant must show prejudice before a plea will be

vacated for a trial court’s error involving Crim.R. 11(C) procedure when

nonconstitutional aspects of the colloquy are at issue. Veney, 120 Ohio St.3d

at ¶17. The test for prejudice is whether the plea would have otherwise been

made. Id.; see, also, State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893

N.E.2d 462.

      {¶ 18} In the instant case, despite Davis’s present assertions, a review of

the record indicates a textbook adherence to the requirements of Crim.R. 11.

 At the plea hearing, the state set forth the charge, maximum penalty, and

plea discussions on the record. The trial court engaged Davis in a Crim.R. 11

colloquy.     During the colloquy, Davis affirmatively expressed that he
                                     9
understood his rights, and that he understood he was giving up those rights

by entering a guilty plea.

      {¶ 19} Davis also affirmatively expressed that he understood the nature

of the charge and the maximum penalty the court could impose including that

he could go to prison for up to five years. In addition, Davis indicated he was

not under the influence of drugs, alcohol, or medication that affected his

judgment. Further, Davis stated that no threats or promises had been made

to induce his plea and that he was satisfied with his representation.

      {¶ 20} Finally,   pertinent to Davis’s post-sentence assertions, the

following exchange took place:

      “The Court:        In this matter there’s also a mandatory driver’s
                         license suspension. And my understanding is
                         that you previously had a conviction under this
                         section in Case 449998 with [another trial
                         judge] in 2004.

      The Defendant: Yes.

      The Court:         Do you recall that?

      The Defendant: Yes, sir.

      The Court:         That would mean then by law that you would
                         have a Class 1 mandatory driver’s license
                         suspension; do you understand that?

      The Defendant: Yes.” Tr. 17.
                                         10
         {¶ 21} Here, the above excerpt and the record as a whole, fail to

establish how the alleged lack of information, regarding the possibility of

Davis being denied occupational driving privileges upon his release from

prison, prejudiced him in any way.         Further, despite given the opportunity

to inquire about occupational driving privileges, Davis inquired about

consecutive sentences, but made no inquiry about occupational driving

privileges.

         {¶ 22} Finally, Davis’s defense counsel indicated that he had discussed

the consequences of the mandatory lifetime driver’s license suspension with

Davis and that Davis understood. Tr. 9. Thus, Davis has failed to establish

any prejudice resulting from the alleged lack of information.        Consequently,

the trial court did not abuse its discretion in denying his post-sentence motion

to withdraw his guilty pleas.        Accordingly, we overrule the sole assigned

error.

         Judgment affirmed.

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

         The court finds there were reasonable grounds for this appeal.

         It is ordered that a special mandate be sent to said court to carry this

judgment into execution. The defendant’s conviction having been affirmed,
                                    11
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.




PATRICIA ANN BLACKMON, PRESIDING JUDGE

MELODY J. STEWART, J., and
JAMES J. SWEENEY, J., CONCUR
