[Cite as State v. Davidson, 2017-Ohio-1505.]


                                       COURT OF APPEALS
                                   MUSKINGUM COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT



STATE OF OHIO                                  :    JUDGES:
                                               :    Hon. William B. Hoffman, P.J.
        Plaintiff-Appellee                     :    Hon. John W. Wise, J.
                                               :    Hon. Earle E. Wise, Jr., J.
-vs-                                           :
                                               :
JIMMY JOE DAVIDSON                             :    Case No. CT2017-0014
                                               :
        Defendant-Appellant                    :    OPINION




CHARACTER OF PROCEEDING:                            Appeal from the Court of Common
                                                    Pleas, Case No. CR2015-0229




JUDGMENT:                                           Affirmed




DATE OF JUDGMENT:                                   April 21, 2017




APPEARANCES:

For Plaintiff-Appellee                              For Defendant-Appellant

GERALD V. ANDERSON, II                              JIMMY DAVIDSON, Pro Se
27 North Fifth Street                               Inmate No. A723-635
P.O. Box 189                                        Noble Correctional Institution
Zanesville, OH 43702-0189                           15708 McConnelsville Road
                                                    Caldwell, OH 43724
Muskingum County, Case No. CT2017-0014                                                  2

Wise, Earle, J.

       {¶ 1} Defendant-Appellant, Jimmy Davidson, appeals the February 6, 2017

judgment entry of the Court of Common Pleas of Muskingum County, Ohio, denying his

motion to withdraw his guilty plea. Plaintiff-Appellee is the state of Ohio.

                         FACTS AND PROCEDURAL HISTORY

       {¶ 2} On July 29, 2015, the Muskingum County Grand Jury indicted appellant

on three counts of trafficking in drugs (cocaine) in violation of R.C. 2925.03, two counts

of corrupting another with drugs in violation of R.C. 2925.02, and two counts of

possession of drugs (cocaine and Hydrocodone) in violation of R.C. 2925.11.

       {¶ 3} On January 11, 2016, appellant pled guilty to two of the trafficking counts,

one a felony in the first degree and one a felony in the third degree, and one of the

corrupting counts, a felony in the second degree. By entry filed March 3, 2016, the trial

court sentenced appellant to an aggregate term of four years in prison.

       {¶ 4} On February 2, 2017, appellant filed a pro se motion to withdraw his guilty

plea, claiming his counsel created a manifest injustice in his case because there was no

evidence that the weight of the actual cocaine met the statutory threshold for

enhancement. By journal entry filed February 6, 2017, the trial court denied the motion.

       {¶ 5} Appellant filed an appeal and this matter is now before this court for

consideration. Assignments of error are as follows:

                                              I

       {¶ 6} "APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF

COUNSEL DUE TO DEFENSE COUNSEL'S ERRONEOUS ADVICE THAT HE ENTER

GUILTY PLEAS TO ENHANCED-DEGREE FELONIES FOR TRAFFICKING IN DRUGS
Muskingum County, Case No. CT2017-0014                                                3


(COCAINE) BASED ON GROSS WEIGHT THAT INCLUDED OTHER MATERIAL,

INSTEAD OF THE WEIGHT OF ACTUAL COCAINE, IN VIOLATION OF HIS RIGHT

TO DUE PROCESS."

                                            II

      {¶ 7} "THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT

DENIED APPELLANT['S] MOTION TO WITHDRAW HIS GUILTY PLEA WHEN A

CLEAR MANIFEST INJUSTICE HAD BEEN SHOWN BY THE RECORD AND

DOCUMENTATION."

                                            I

      {¶ 8} In his first assignment of error, appellant claims his trial counsel was

ineffective by giving him erroneous advice regarding his guilty pleas. We disagree.

      {¶ 9} The standard this issue must be measured against is set out in State v.

Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the

syllabus. Appellant must establish the following:



             2. Counsel's performance will not be deemed ineffective unless and

      until counsel's performance is proved to have fallen below an objective

      standard of reasonable representation and, in addition, prejudice arises

      from counsel's performance. (State v. Lytle [1976], 48 Ohio St.2d 391, 2

      O.O.3d 495, 358 N.E.2d 623; Strickland v. Washington [1984], 466 U.S.

      668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)

             3. To show that a defendant has been prejudiced by counsel's

      deficient performance, the defendant must prove that there exists a
Muskingum County, Case No. CT2017-0014                                                    4


       reasonable probability that, were it not for counsel's errors, the result of

       the trial would have been different.



       {¶ 10} Appellant was charged with three counts of trafficking in drugs, two counts

of corrupting another with drugs, and two counts of possession of drugs. He pled guilty

to two of the trafficking counts, one in the first degree (exceeds twenty-seven grams but

less than one hundred grams) and one in the third degree (exceeds ten grams but less

than twenty grams), and one of the corrupting counts, a felony in the second degree.

Three offenses in the second degree and one offense in the fifth degree were

dismissed.    By entry filed March 3, 2016, the trial court sentenced appellant to

concurrent sentences for an aggregate term of four years in prison.

       {¶ 11} Appellant argues his trial counsel "failed to appraised (sic) him of the

correct statutory weight thresholds of the trafficking in drugs offenses in R.C.

2925.03(C)(4), thus advised him to enter guilty pleas to first and third degree felony

trafficking in cocaine when it was a fifth degree trafficking in cocaine offense Appellant

committed." Appellant's Brief at 5. Appellant argues evidence was not presented to

establish the weight of the actual cocaine met the statutory threshold for enhancement.

       {¶ 12} In support of his argument, appellant cites the case of State v. Gonzales,

___ Ohio St.3d ___, 2016-Ohio-8319, ___ N.E.3d ___ ("Gonzales I"), ¶ 22, wherein the

Supreme Court of Ohio held: "[I]n prosecuting cocaine-possession offenses under R.C.

2925.11(C)(4)(b) through (f) involving mixed substances, the state must prove that the

weight of the actual cocaine, excluding the weight of any filler materials, meets the

statutory threshold."
Muskingum County, Case No. CT2017-0014                                                  5


       {¶ 13} However, upon reconsideration, the Supreme Court of Ohio reversed itself

and held: "Giving effect to the statute as a whole and to the intent of the legislature as

expressed in the words of the statute, we conclude that the applicable offense level for

cocaine possession under R.C. 2925.11(C)(4) is determined by the total weight of the

drug involved, including any fillers that are part of the usable drug." State v. Gonzales,

___ Ohio St.3d ___, 2017-Ohio-777, ___ N.E.3d ___ ("Gonzales II").

       {¶ 14} While the Gonzales cases involved possession offenses under R.C.

2925.11, this case involved trafficking offenses under R.C. 2925.03, although we note

the initial "degree of felony language" in each corresponding subsection (C)(4) is

similar.

       {¶ 15} Appellant pled guilty on January 11, 2016. The opinion in Gonzales I was

filed on December 23, 2016, over eleven months after appellant's plea. Appellant's trial

counsel did not have the benefit of the Gonzales I opinion when he counseled appellant

on the plea.       Furthermore, as noted, the Gonzales I opinion was reversed on

reconsideration.

       {¶ 16} Appellant also seems to make a specious argument that he was

prejudiced when he received a five year prison term on his second degree felony

offense (corrupting another with drugs). Appellant's Brief at 7. A review of the trial

court's March 3, 2016 sentencing entry indicates appellant received a four year term

which was ordered to be served concurrently with the other sentences, including the

other four year term for trafficking.
Muskingum County, Case No. CT2017-0014                                                  6


      {¶ 17} In addition, we do not have a transcript of the plea hearing for our review.

As stated by our brethren from the Tenth District in State v. Rembert, 10th Dist. Franklin

Nos. 16AP-543 and 16AP-544, 2017-Ohio-1173, ¶ 13:



             In the absence of a transcript, "this court must presume the

      regularity of the hearing." State v. Smith, 11th Dist. No. 2007-T-0076,

      2008-Ohio-1501, ¶ 20. Where the transcript of the guilty plea hearing is

      not available, a reviewing court "cannot adequately determine whether

      appellant fully understood the sentencing consequences of his guilty plea,

      or what effect the alleged misinformation would have had on his guilty

      plea," and therefore the court "cannot conclude that a manifest injustice

      has occurred." State v. Mack, 11th Dist. No. 2005-P-0033, 2006-Ohio-

      1694, ¶ 19.



      {¶ 18} Upon review, we do not find any ineffective assistance of counsel.

      {¶ 19} Assignment of Error I is denied.

                                            II

      {¶ 20} In his second assignment of error, appellant claims the trial court erred in

denying his motion to withdraw his guilty pleas. We disagree.

      {¶ 21} Crim.R. 32.1 governs withdrawal of guilty plea and states "[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." The right to withdraw
Muskingum County, Case No. CT2017-0014                                                 7


a plea is not absolute and a trial court's decision on the issue is governed by the abuse

of discretion standard. State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977). In

order to find an abuse of discretion, we must determine the trial court's decision was

unreasonable, arbitrary or unconscionable and not merely an error of law or judgment.

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

       {¶ 22} In State v. Minkner, 2d Dist. Champaign No. 2009 CA 16, 2009-Ohio-

5625, ¶ 25, our brethren from the Second District explained "manifest injustice" as

follows:



             A defendant who files a post-sentence motion to withdraw his guilty

       plea thus bears the burden of establishing a "manifest injustice." State v.

       Smith (1977), 49 Ohio St.2d 261, paragraph one of the syllabus; State v.

       Milbrandt, Champaign App. No. 2007-CA-3, 2008-Ohio-761, at ¶ 8. A

       manifest injustice has been defined as "a clear or openly unjust act" that

       involves "extraordinary circumstances."   State v. Stewart, Greene App.

       No. 2003-CA-28, 2004-Ohio-3574, at ¶ 6.           "[A] 'manifest injustice'

       comprehends a fundamental flaw in the path of justice so extraordinary

       that the defendant could not have sought redress from the resulting

       prejudice through another form of application reasonably available to him

       or her." State v. Hartzell (Aug. 20, 1999), Montgomery App. No. 17499.

       "Crim.R. 32.1 requires a defendant making a postsentence motion to

       withdraw a plea to demonstrate manifest injustice because it is designed

       'to discourage a defendant from pleading guilty to test the weight of
Muskingum County, Case No. CT2017-0014                                                 8


       potential reprisal, and later withdraw the plea if the sentence was

       unexpectedly severe.' " State v. Boswell, 121 Ohio St.3d 575, 2009-Ohio-

       1577, at ¶ 9, quoting State v. Caraballo (1985), 17 Ohio St.3d 66, 67.



       {¶ 23} "Manifest injustice" relates to some "fundamental flaw in the proceedings

which result in a miscarriage of justice or is inconsistent with the demands of due

process." State v. Wooden, 10th Dist. Franklin No. 03AP-368, 2004-Ohio-588, ¶ 10,

quoting State v. Hall, 10th Dist. Franklin No. 03AP-433, 2003-Ohio-6939, ¶ 12.

       {¶ 24} Appellant's arguments herein are the same arguments addressed in

Assignment of Error I: "he was given incorrect legal advice by retained counsel and not

appraised (sic) of ineffective assistance of counsel when counsel did not make

Appellant aware of the correct statutory weight thresholds of the drug possession

offenses in R.C. 2925.03(C)(4) and the subsequent penalty which accompanied the

charge." Appellant's Brief at 9.

       {¶ 25} Based upon our opinion in Assignment of Error I, we reject the arguments

under this assignment of error.

       {¶ 26} Appellant also argues the trial court should have held a hearing on his

motion to withdraw his guilty pleas. As stated by this court in State v. Walsh, 5th Dist.

Licking No. 14-CA-110, 2015-Ohio-4135, ¶ 24:



              A trial court is not automatically required to hold a hearing on a

       post-sentence motion to withdraw a guilty plea. State v. Spivakov, 10th

       Dist. No. 13AP-32, 2013-Ohio-3343. A hearing must only be held if the
Muskingum County, Case No. CT2017-0014                                                  9


       facts alleged by the defendant, accepted as true, would require that the

       defendant be allowed to withdraw the plea.        State v. Harris, 5th Dist.

       Coshocton No. 2013CA0013, 2014-Ohio-2633. Generally, a self-serving

       affidavit or statement is insufficient to demonstrate manifest injustice.

       State v. Aleshire, 5th Dist. Licking No. 2011-CA-73, 2012-Ohio-16.

       Further, a hearing is not required if the record indicates that the movant is

       not entitled to relief and the movant has failed to submit evidentiary

       documents sufficient to demonstrate a manifest injustice. State v. Cargill,

       9th Dist. Summit No. 27590, 27011, 2015-Ohio-661.



       {¶ 27} In the absence of a transcript of the plea hearing, and because the

allegations made in the motion to withdraw were insufficient to demonstrate a manifest

injustice, we find the trial court did not abuse its discretion in ruling on the motion

without conducting a hearing. Smith, supra, 49 Ohio St.2d 261.

       {¶ 28} Upon review, we find the trial court did not abuse its discretion in denying

appellant's motion to withdraw his guilty pleas.

       {¶ 29} Assignment of Error II is denied.
Muskingum County, Case No. CT2017-0014                                       10


      {¶ 30} The judgment of the Court of Common Pleas of Muskingum County, Ohio

is hereby affirmed.

By Wise, Earle, J.

Hoffman, P.J. and

Wise, John, J. concur.




EEW/sg 410
