COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71097 STATE OF OHIO : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION ANDRE BOYNTON : : Defendant-Appellant : : DATE OF ANNOUNCEMENT AUGUST 14, 1997 OF DECISION: CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-323819 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCE: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS-JONES, ESQ. MICHAEL TROY WATSON, ESQ. Cuyahoga County Prosecutor REGINALD N. MAXTON, ESQ. A. STEVEN DEVER, ESQ. 400 Lincoln Building Assistant County Prosecutor 1367 East Sixth Street 8th Floor Justice Center Cleveland, Ohio 44114 1200 Ontario Street Cleveland, Ohio 44113 PATRICIA ANN BLACKMON, J.: Andre Boynton, defendant-appellant, appeals from the decision of the trial court convicting him of aggravated robbery upon his 2 guilty plea and sentencing him accordingly. Boynton assigns the following three errors for our review: I. THE TRIAL COURT ERRED IN FAILING TO ALLOW THE DEFENDANT/APPELLANT, ANDRE BOYNTON, A WITH- DRAWAL OF HIS GUILTY PLEA. II. THE TRIAL COURT ERRED IN DENYING THE DEFENDANT/APPELLANT'S MOTION TO WITHDRAW HIS GUILTY PLEA, AS THE COURT'S ACCEPTANCE OF THE GUILTY PLEA WAS AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE. III. THE TRIAL COURT ERRED IN FINDING DEFENDANT/ APPELLANT, ANDRE BOYNTON, GUILTY, WHEN IN FACT, HE WAS NOT GUILTY. THE FINDING OF GUILTY, BEING AGAINST THE OVERWHELMING MANIFEST WEIGHT OF THE EVIDENCE OF HIS INNOCENCE. DEFENDANT/APPELLANT ANDRE BOYNTON, WAS IN FACT, NOT GUILTY. Having reviewed the record and the legal arguments of the parties, we affirm the decision of the trial court. The apposite facts follow. On July 11, 1994, Gordon Armour shot and killed Christopher Wesby and robbed him of his watch. In Armour's company was Darol Bailey and Andre Boynton. Both Bailey and Armour implicated Boynton in the robbery-murder. They specifically stated Boynton was involved and drove his car containing weapons that were used in the murder. They stated that Boynton agreed to jacking people to obtain money to buy rims for his newly acquired car. On May 23, 1993, the State of Ohio ( State ) indicted Boynton for aggravated murder [R.C. 2903.01(A)] with felony murder specifications and firearm specifications; aggravated murder [R.C. 2903.01(B)], with felony murder specifications and firearm 3 specifications; aggravated robbery with firearm specifications; and receiving stolen property in connection with the death of Wesby. Boynton originally pleaded not guilty to the charges against him. On January 22, 1996, pursuant to a plea agreement, Boynton pled guilty to aggravated robbery. In response to substantial questioning by the trial court during the plea hearing, Boynton stated he understood the charge and that he was pleased with his attorney's, Mr. Tom Shaughnessy, Jr., representation. Also during the hearing, the following dialogue took place regarding the death penalty: Mr. Shaughnessy: I certainly wouldn't want to be the guy that advised him that it was not possible, your Honor, and then be standing next to him when it occurred. Anything is possible. The Court: Anything is possible. Mr. Shaughnessy: I do want him to know that that is a possibility, and that is how the State has indicted him. The Court: That's true. He has been indicted that way. The jury would have to consider that, might have to consider it. So, do you want to go ahead with this proceeding at this point, or do you want to go to trial on the case? The Defendant: I think I will go ahead and enter a guilty plea today. Seven days later on January 29, 1996, Boynton, under new counsel, filed a Motion to Withdraw Guilty Plea. An amended motion was filed on February 9, 1996. The trial court denied the motion ruling that there was no manifest injustice requiring withdrawal or change of plea. This appeal followed. 4 In his first assignment of error, Boynton argues he should have been allowed to withdraw his guilty plea because it was made only at the insistence of his counsel. Boynton claims he did not fully understand the circumstances and that his involuntary plea constitutes manifest injustice. A guilty plea is a complete admission of the defendant's guilt, which may be refused if the court determines it is involuntary or is made without full knowledge and understanding of the circumstances. See Criminal Rule 11. A defendant may attempt to change his guilty plea to not guilty, but only before he is sentenced. See. Crim. R. 32.1. [A] defendant seeking to withdraw a plea of guilty after sentence has the burden of establishing the 5 existence of manifest injustice. State v. Smith (1977), 49 Ohio St.2d 261 (citations omitted). It is within the sound discretion of the trial court to grant the motion. Id. This court must determine whether or not the trial court abused its discretion in this situation. Abuse of discretion indicates that the trial court's decision is unreasonable, arbitrary, or unconscionable. See State v. Fyffe (1990), 67 Ohio App.3d 608. Absent an abuse of discretion, the trial court's judgment cannot be disturbed on appeal. Id. The record before this court does not support Boynton's argument. He appeared in court, accepted the plea agreement, and informed the court that he was pleased with his lawyer's performance. In order to change a plea after sentencing, Boynton has to show a manifest injustice. He argues the manifest injustice occurred when his lawyer told him he would receive the death penalty. During the discussion at the hearing, his trial counsel said it was possible that he would receive the death penalty. The judge agreed that anything was possible. The reality is that if Boynton had gone to trial and had been found guilty, he was indeed faced with severe consequences because of the capital nature of the crime. By pleading to the robbery, he avoided those severe consequences. Consequently, we conclude the trial court did not abuse its discretion in denying his request to withdraw his plea; his first assignment of error is overruled. In his second assignment of error, Boynton argues the trial court's acceptance of his guilty plea is against the manifest 6 weight of the evidence. He argues the State is required to prove beyond a reasonable doubt all elements of the crime charged. He also states the trial court erred when it found him guilty. When there is no trial, due to defendant's admission of guilt, the trial court is not required, under the Ohio Rules of Criminal Procedure, to determine whether a factual basis exists to support the guilty plea prior to entering judgment on that plea. State v. Wood (1976), 48 Ohio App.2d 339, syllabus. A trial court does not [err] by entering a judgment of conviction upon a plea of guilty where the record of the guilty plea proceeding affirmatively demonstrates that: (1) the defendant was represented throughout the proceeding by counsel; (2) the trial court conducted a discussion with the defendant, apprising him of the nature of the charges and the minimum and maximum sentences for each offense, and determining the voluntariness of the submitted plea; and (3) the trial court *** orally inform[ed] the defendant of each of his rights, [to which the defendant said he understood.] State v. Billups (1979), 57 Ohio St.2d 31, syllabus. Boynton's second assignment of error is overruled. In his third assignment of error, Boynton argues ineffective assistance of counsel. He contends Mr. Shaughnessy was ill- prepared to go to trial -- he did not interview witnesses, issue subpoena, or file a Motion in Limine, therefore, he was deprived of a fair trial. Boynton states he would have proceeded to trial but for his counsel's insistence that he change his plea. These claims are unsupported by the facts. 7 In order to establish ineffective assistance of counsel, a defendant must demonstrate that his counsel's performance fell below an objective standard of reasonable representation and that there is a `reasonable probability' that he was prejudiced by that performance. State v. Cuttiford (1994), 93 Ohio App.3d 546, citing State v. Bradley (1989), 42 Ohio St.3d 136, 142-143, certiorari denied (1990), 497 U.S. 1011, 110 S.Ct. 3258. If defendant fails to establish either component he is not entitled to relief. It is not necessary to consider the components in a particular order. Id. at 143. We conclude Boynton does not meet either component. His counsel's performance was reasonable and was not prejudicial to Boynton. Mr. Shaughnessy could not interview any witnesses because the only witness, who could support Boynton's defense, could not be located. He could not be located because Boynton could not remember the person's last name. Furthermore, when Mr. Shaughnessy stated that Boynton could receive the death penalty if he did not change his plea to guilty, he qualified his statement. The trial court agreed with the qualified statement and Boynton pleaded guilty. Lastly, Boynton was not deprived of a fair trial. Boynton waived that right. Review of the proceedings demonstrates Boynton's waiver was voluntary and knowing. His third assignment of error is also overruled. Judgment affirmed. 8 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 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. JAMES D. SWEENEY, C.J., and PORTER, J., CONCUR. PATRICIA ANN BLACKMON JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the .