COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 68284/68285/68286/68287/68288 STATE OF OHIO : : Plaintiff-appellee : : JOURNAL ENTRY vs. : and : OPINION EDWARD JONES : : Defendant-appellant : : : DATE OF ANNOUNCEMENT OF DECISION : AUGUST 24, 1995 CHARACTER OF PROCEEDING : Criminal appeal from : Court of Common Pleas : Case Nos. CR-237292, : CR-238679, CR-241090, : CR-245582, CR-246063 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor SHERRY F. McCREARY, Assistant Justice Center, Courts Tower 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: MICHAEL A. PARTLOW, ESQ. 1406 West Sixth Street Burgess Building, Suite 400 Cleveland, Ohio 44113 JAMES D. SWEENEY, P.J.: Petitioner-appellant Edward Jones appeals from the dismissal of his petition for post-conviction relief and raises the following assignment of error: THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION, TO THE PREJUDICE OF THE APPELLANT, BY DENYING THE APPELLANT'S PETITION FOR POST- CONVICTION RELIEF WITHOUT CONDUCTING AN EVIDENTIARY HEARING PURSUANT TO R.C. 2953.21(C). I. In CR-237292, Jones was indicted for felonious assault, in violation of R.C. 2903.11, with a firearm specification and two violence specifications. In CR-238679, Jones was indicted for drug trafficking, in violation of R.C. 2925.03. In CR-241090, Jones was indicted for aggravated murder, in violation of R.C. 2903.01, and felonious assault, in violation of R.C. 2903.11. In CR-245582, Jones was indicted for four counts of felonious assault, in violation of R.C. 2903.11, each with a firearm specification and an aggravated-felony specification, unlawful possession of a dangerous ordinance (automatic firearm), in violation of R.C. 2923.17, with a firearm specification and a violence specification, and having a - 3 - weapon while under a disability, in violation of R.C. 2923.13, with a firearm specification and a violence specification. In CR-246063, Jones was indicted for aggravated robbery, in violation of R.C. 2911.01, with a firearm specification, kidnapping, in violation of R.C. 2905.01, with a firearm specification, and having a weapon while under a disability, in violation of R.C. 2923.13, with a firearm specification. On the day set for trial, Jones pleaded guilty to the following offenses: in CR-237292, felonious assault, in violation of R.C. 2903.11, with a firearm specification and two violence specifications; in CR-238679, drug trafficking, in violation of R.C. 2925.03; in CR-241090, voluntary manslaughter, in violation of R.C. 2907.03; in CR-245582, felonious assault, in violation of R.C. 2903.11, with a firearm specification; and in CR-246063, aggravated robbery, in violation of R.C. 2911.01, with a firearm specification. The trial court dismissed the remaining offenses. During the guilty plea hearing, the following exchanges took place: THE COURT: I'm going to go through each of these with you, even though the prosecutor has also read them. The first count of the indictment reads that -- this is case 237292. It alleges that on October 19, 1988 in Cuyahoga County, that you did unlawfully, purposely, and knowingly cause serious physical harm to Johnny Isler and/or did knowingly cause or attempt to cause physical harm to Johnny Isler by means of a deadly weapon or dangerous - 4 - ordnance, to wit: A gun. And, it is further alleged that you had a firearm on or about your person or under your control while committing that offense; do you understand that? DEFENDANT: Yes. THE COURT: Now, that charge carries a minimum sentence of three, four, five, six, seven, or eight years. And, I have the authority to decide which of those numbers to choose. The penitentiary could thereafter keep you longer than that. They could keep you up to 15 years. In addition, I must impose a sentence of three years for the firearm, which you get no time off, no good time off on that. So, that the minimum sentence that I will impose is three years plus whatever further I add onto that. So, the minimum that you could get would be six years. And, I can fine you $7,500. The next case is possession of cocaine, which alleges that on March 26, 1989, that you did knowingly possess a controlled substance, that is cocaine, which is a Schedule II drug, in an amount equal to or exceeding the bulk amount, or less than three times the bulk amount. If you plead guilty to that charge, I would impose a sentence of one and a half or two years. But, I must impose at least 18 months. And, those 18 months will not be -- you will not be eligible for shock probation, shock parole, or any other reductions such as a furlough. - 5 - The next case is the voluntary manslaughter case, and that one is charged as I dictated previously, that on June 23rd, 1989, in Cuyahoga County, you did knowingly cause the death of Cedric Little while in a sudden fit of rage brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite you to using deadly force; do you understand that charge? DEFENDANT: Yes. THE COURT: And, in that case I can sentence you to a minimum sentence of five, six, seven, eight, nine, or ten years, an indefinite sentence, and keep you in prison for 25 years and fine you $10,000. Next case charges felonious assault. The charge reads identical to the charge that I read in case 237292, except the allegations that on October 20, 1989, the individual allegedly assaulted, Tyrone Tanker. It's alleged in that case that both you and Carl Pierce had a firearm on or about your person or under your control. The last case -- incidentally, the sentence there is the same that could be imposed in case 237292. And, the last case is 246063. The allegation there is that on October 18, 1989, in Cuyahoga County, that you did unlawfully in attempting to commit a theft offense or in fleeing immediately after such attempt or offense upon Phillip Morris, Jr., had a deadly weapon or dangerous ordnance, to wit: A gun on or about your person or - 6 - under your control. And, it's further alleged that that gun was a firearm. And, that's the specification, firearm specification. There, a minimum sentence imposed would be three years, for which I must -- it's a non-probationable offense. All of these offenses, with the exception of the possession of cocaine charge, they're all non- probationable. All these are non-probationable. You're not entitled to probation on any of these. Ironically, you could get probation on the voluntary manslaughter charge. But, all the rest of them are legally non-probationable. So, I must send you to the penitentiary on all these. So, in this last one, the aggravated robbery with the firearm, I would have to impose three years actual incarceration for the firearm plus the minimum of five, six, seven, eight, nine, ten years, aggravated robbery, under indefinite sentence in the penitentiary for 10 to 25 years, and possible $10,000 fine; do you understand that charge? DEFENDANT: Yes. THE COURT: Do you want to ask me any questions about any of these charges? DEFENDANT: No. THE COURT: Do you understand what they are? DEFENDANT: Yes. THE COURT: Okay. Now, I could add all of these together. I must add the - 7 - firearm specifications together. So, since there are three separate offenses with three separate three-year firearm charges, I have to give you nine years as a minimum actual incarceration, which you'll have to do every day of. Then, these other sentences could be added onto that, theoretically. I'm not saying I'm going to do that. I could give you 38 years in addition to the nine. I'm not saying I am going to do that, but I have the authority to give you 38 years in addition to the nine in the penitentiary, and could keep you there for a total of 82 years. * * * You want to ask me any questions about any of these cases? DEFENDANT: No. THE COURT: The prosecutor has promised to substantially reduce a number of these charges. Has anything else been promised to you to get you to plead guilty? DEFENDANT: No. THE COURT: Have you and Mr. Ryan had enough time to talk about these cases? DEFENDANT: Yes. THE COURT: Have you told him everything that you're aware of that could be important to your case? DEFENDANT: Yes. THE COURT: And, has he done what you asked him to do? DEFENDANT: Yes. - 8 - THE COURT: Are you satisfied with Mr. Ryan? DEFENDANT: Yes. THE COURT: So, if you plead guilty to the charges, will you be pleading guilty voluntarily? DEFENDANT: Yes. THE COURT: All right. Let's take the first charge, case 237292; it is a charge of felonious assault. Do you plead guilty or not guilty to that charge? DEFENDANT: Guilty. THE COURT: Say that again. DEFENDANT: Guilty. THE COURT: Do you admit or deny that you had a firearm? DEFENDANT: Yes. THE COURT: With respect to case 238679, that's the possession of cocaine charge. Do you plead guilty or not guilty to that charge? DEFENDANT: Guilty. THE COURT: And, with respect to 246063, which is a charge of aggravated robbery, do you plead guilty or not guilty to that charge? DEFENDANT: Guilty. THE COURT: And, you admit in that case that you also had a firearm? DEFENDANT: Yes. THE COURT: Okay. Now, let's take the cases, if I can, one at a time. - 9 - With respect to Johnny Isler [CR-237292], that occurred on October 19, 1988; you remember that incident? DEFENDANT: Yes. THE COURT: And, did you shoot at Johnny Isler? DEFENDANT: Yes. THE COURT: Did you hit him? DEFENDANT: Yes. THE COURT: Okay. With respect to case 238679, the charge of possession of cocaine; did you have cocaine in your possession? DEFENDANT: Yes. THE COURT: And, how much was that cocaine? DEFENDANT: About an ounce. THE COURT: About an ounce of cocaine? DEFENDANT: Yes. THE COURT: And, with respect to the voluntary manslaughter charge, did you run into Cedric Little with an automobile and kill him? DEFENDANT: Yes. THE COURT: How did that come about? DEFENDANT: I was going up the street, and he started throwing bottles and stuff. And, I tried to keep going, and I hit him. THE COURT: And, the State has some witnesses here that will testify to what? - 10 - MS. WHITE: Your Honor, we have in the courtroom today Rapheal Finley, Gary Wainwright, and Dwayne Taylor who were all present when the incident occurred. Rapheal Finley was on the motorcycle when this incident happened. The testimony would be, your Honor, that the defendant was driving this Ford Bronco, waiting for a couple of cars to pass. And, after the cars passed, sped up, and drove directly and hit the motorcycle with Cedric Little and Rapheal Finley. Rapheal was not hit. I believe he may have had a chance to get off the motorcycle to a certain extent. However, Cedric Little was killed as a result of this incident. He was pushed, he and the motorcycle were pushed up against the car with the Bronco going, you know, still pushing it into the car, with the Bronco pulling back, and then the motorcycle falling off. Cedric Little was dead. His heart -- I believe his heart was literally torn away from his aorta. THE COURT: That's the State's evidence. Do you have any dispute with that? DEFENDANT: No. THE COURT: Next charge -- there's another charge of felonious assault, that's upon Tyrone Tanker on October 20th. Again, did you shoot at Tyrone Tanker? DEFENDANT: Yes. THE COURT: Okay. And the last one is this charge of aggravated robbery upon Phillip Morris, Jr. What was that, a drug deal? - 11 - DEFENDANT: No. THE COURT: What happened there; did you try to take some money from him? DEFENDANT: No, I was there, but -- THE COURT: You didn't do it? DEFENDANT: No. THE COURT: But, this other -- Carl Pierce tried to take some money from him? DEFENDANT: Yes. THE COURT: And, were you there in the same -- was this -- did this occur in the automobile? DEFENDANT: Yes. THE COURT: And, what were you doing, driving the car? DEFENDANT: Yes. THE COURT: And, was this over getting some money from Phillip Morris for having to do with drugs? DEFENDANT: Yes. THE COURT: Okay. And, Carl Pierce had a gun? DEFENDANT: Yes. THE COURT: Okay. I will accept your plea of guilty to these charges. I will dismiss the felonious assault charge in case 241090 and all of the charges in case 245582, with the exception of the first count of the indictment you pled guilty to, and I will dismiss counts two and three, case 246063. *** - 12 - (Tr. 11-28). Several weeks after the guilty-plea hearing, the trial court sentenced Jones as follows: in CR-237292, three years actual incarceration and eight to fifteen years, consecutively; in CR- 238679, two years actual incarceration; in CR-241090, ten to twenty-five years; in CR-245582, three years actual incarceration and eight to fifteen years, consecutively; in CR-246063, three years actual incarceration and ten to twenty-five years, consecutively. The trial court further ordered that the sentences in the separate cases run consecutively. This court affirmed Jones's convictions in State v. Jones (Feb. 6, 1992), Cuyahoga App. No. 59607, unreported. Jones then filed a petition for post-conviction relief, arguing that he had received ineffective assistance of counsel. Jones attached his own affidavit and the affidavits of his father, mother, and two other relatives to his petition. Jones's affidavit provides, in part: 3. Said counsel informed me that my aggravated murder charge would be reduced to an involuntary manslaughter charge; 4. Said counsel assured me that I would not be sentenced to maximum consecutive terms on all cases and would receive light sentences which would be served concurrently with one another, including the gun specifications involved; * * * 6. In the process of persuading me to accept the proposed plea arrangements, said counsel indicated to me that the trial court was - 13 - directly involved in negotiating the terms of the plea arrangement and was really not giving me any choice about the matter; * * * 8. After the court proceeding in which I entered my guilty pleas, but prior to the court proceeding when I was sentenced, I became concerned about the amended charges and potential penalties, especially with regard to the charge of voluntary manslaughter which I had previously understood to be involuntary manslaughter, and contacted said counsel and instructed him to arrange for me to withdraw my guilty pleas and proceed to trial; 9. At that time, said counsel indicated to me that a Motion to Withdraw my guilty pleas would be futile, would provide me with no basis for appeal, and refused to pursue such a motion; * * * 11. After my sentencing proceeding, I instructed my said counsel to, once again, seek to withdraw my guilty pleas and at that time, my said counsel, once again, informed me that any such motion would be futile, would provide me with no basis for an appeal, and refused to do so; 12. I relied entirely upon my said counsel's advice in these proceedings and, had I been properly informed concerning the fashion in which the charges against me were to be amended, the potential sentences involved, and the fact that the trial court had not committed itself to any particular sentence prior to the actual sentencing proceeding, I would not have entered guilty pleas to the amended charges. 13. Subsequent to my incarceration, I wrote a letter to Attorney Ryan discussing my dissatisfaction with his performances and he responded in a letter wherein he did not deny these facts, a copy of which is attached hereto. - 14 - In his letter to Jones, attached to Jones's affidavit, Jones's trial counsel writes that he is unable to recall why Jones pleaded guilty. The affidavit of Jones's mother provides, in part: 1. On the date that my son's trial was to commence in the above referenced matter, his attorney, Daniel J. Ryan, approached me, along with other family members who were present at the courthouse, and indicated that my son had decided to take a plea bargain arrangement whereby my son would enter a guilty plea to certain charges, including a charge of involuntary manslaughter; 2. At the time of the aforementioned conversation with Attorney Ryan, my son had already entered guilty pleas to the amended charges; 3. Subsequently, on the date that my son was to be sentenced, Attorney Ryan told me, along with other family members who were present, that he had spoken to the trial judge and the trial judge had indicated he would be lenient due to my son's youth and would only sentence my son for one of the gun specifications, along with the other charges. Attorney Ryan also indicated that the sentencing would be "quick and routine"; * * * 5. After the sentencing hearing, Attorney Ryan indicated to me, as well as other family members who were present, as follows: "I don't know what happened. That wasn't supposed to happen. That is not what the judge said he was going to do." 6. After my son entered his guilty pleas, but before the sentencing hearing, I was involved in a three-way telephone conversation with my son and Attorney Ryan. In this conversation, my son indicated to Attorney Ryan that he would - 15 - like to withdraw his guilty plea. In response, Attorney Ryan stated that it would not be possible for my son to withdraw his guilty pleas at that time. Attorney Ryan stated: "Once you make it, that's it." The affidavits of Jones's father and the other relatives were substantially the same as the affidavit of Jones's mother but lacked the final paragraph. The state responded by filing a motion to dismiss, which the trial court granted. II. In his assignment of error, Jones contends that the trial court erred when it dismissed his petition for post-conviction relief without holding an evidentiary hearing. R.C. 2953.21 (A) and (C) provide: (A) Any person convicted of a criminal offense or adjudged delinquent claiming that there was such a denial or infringement of his rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, may file a petition at any time in the court which imposed sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. The petitioner may file such supporting affidavit and other documentary evidence as will support his claim for relief. (C) Before granting a hearing, the court shall determine whether there are substantive grounds for relief. In making such a determination, the court shall consider, in addition to the petition and supporting affidavits, all the files and records pertaining to the proceedings against the petitioner, including, but not - 16 - limited to, the indictment, the court's journal entries, the journalized records of the clerk of the court, and the court reporter's transcript. "A petition for post-conviction relief is subject to dismissal without a hearing when the record indicates that the petitioner is not entitled to relief and that the petitioner failed to submit evidentiary documents containing sufficient operative facts." State v. Scott (1989), 63 Ohio St.3d 304, 307; see, also, State v. Jackson (1980), 64 Ohio St.2d 107, syllabus. Jones argues that his guilty pleas were not entered knowingly and voluntarily because he received ineffective assistance of counsel when his trial counsel told him that the aggravated murder offense would be reduced to involuntary manslaughter, when it was actually reduced to voluntary manslaughter, and assured him that he would receive lenient sentences. State v. Xie (1992), 62 Ohio St.3d 521, 524, noted that: The Strickland test was applied to guilty pleas in Hill v. Lockhart (1985), 474 U.S. 52, 106 S.Ct. 366, 88 L.Ed.2d 203. "First, the defendant must show that counsel's performance was deficient." Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693; Hill, 474 U.S. at 57, 106 S.Ct. at 369, 88 L.Ed.2d at 209. Second, "the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty ***." Hill, 474 U.S. at 59, 106 S.Ct. at 370, 88 L.Ed.2d at 210; see Strickland, 466 U.S. at 687, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. Jones has failed to demonstrate prejudice. The trial court clearly informed him that the aggravated murder offense had been - 17 - reduced to voluntary manslaughter and that he could receive maximum sentences. See State v. Elliott (1993), 86 Ohio App.3d 792, 795- 796 (No prejudice from trial counsel's allegedly telling defendant that he would only receive three-year sentence when trial court informed defendant during guilty plea hearing that the potential sentence was more than three years). Jones also argues that he received ineffective assistance of counsel because his trial counsel refused to file a motion to withdraw the guilty plea, both before and after sentencing. A defendant receives ineffective assistance of counsel when his trial counsel "fails to act on his request to withdraw his plea when the possibility that he would have been allowed to withdraw his plea is not insubstantial." State v. Strutton (1988), 62 Ohio App.3d 248, 252. Crim.R. 32.1 provides: A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea. Although a motion to withdraw guilty pleas before sentencing should be "freely and liberally granted," no absolute right to withdraw a guilty plea exists. Xie, 62 Ohio St.3d at 527. When confronted with a motion to withdraw a guilty plea before sentencing, a trial court must hold a hearing to determine whether a reasonable and legitimate basis for withdrawal of the plea - 18 - exists. Id. We find that Jones has set forth no reasonable or legitimate basis for the withdrawal of his plea. A motion to withdraw a guilty plea made after sentencing may only be granted to cure a manifest injustice. See Crim.R. 32.1. We find that Jones has failed to demonstrate a manifest injustice. Accordingly, Jones's assignment of error is not well taken. Judgment affirmed. - 19 - 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 issue out of this Court directing the Cuyahoga County Court of Common Pleas 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. JOSEPH J. NAHRA, J. and AUGUST PRYATEL, J.* CONCUR PRESIDING JUDGE JAMES D. SWEENEY *SITTING BY ASSIGNMENT: August Pryatel, retired Judge of the Eighth Appellate District. N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, .