COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 74641 STATE OF OHIO : ACCELERATED DOCKET : Plaintiff-Appellant : JOURNAL ENTRY : -vs- : AND : DANIEL FOX : OPINION : Defendant-Appellee : : PER CURIAM Date of Announcement of Decision: DECEMBER 17, 1998 Character of Proceeding: Civil appeal from Court of Common Pleas Case No. CR-266579 Judgment: Affirmed Date of Journalization: Appearances: For Plaintiff-Appellant: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor SALEH AWADALLAH, Assistant Prosecuting Attorney 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellee: JOHN FENLON, Assistant Ohio State Public Defender 8 East Long Street, 11th Fl. Columbus, Ohio 43215-2998 -2- PER CURIAM: This appeal is before the Court on the accelerated docket pursuant to App.R. 11.1 and Loc. App.R. 25. Plaintiff-appellant State of Ohio appeals from the trial court's order granting the defendant's petition for post-conviction relief (R.C. 2953.21). For the reasons set forth below, we affirm the judgment of the trial court. The defendant was indicted on May 30, 1991 for one count of aggravated robbery (R.C. 2911.01) with firearm and violence specifications and one count of theft (R.C. 2913.02) in his robbery of a jewelry store in Parma. When indicted, he was already in prison on an unrelated case. While a complaint against him was still pending before the Parma authorities and before his indictment, however, the defendant requested speedy disposition of the matter within 180 days pursuant to R.C. 2941.401. R.C. 2941.401 states in pertinent part: When a person has entered upon a term of imprisonment in a correctional institution of this state, and when during the continuance of the term of imprisonment there is pending in this state any untried indictment, information, or complaint against the prisoner, he shall be brought to trial within one hundred and eighty days after he causes to be delivered to the prosecuting attorney and the appropriate court in which the matter is pending, written notice of the place of his imprisonment and a request for a final disposition to be made of the matter ***. The written notice and request for final disposition shall be given or sent by the prisoner to the warden or superintendent having custody of him, who shall promptly forward it with the certificate to the -3- appropriate prosecuting attorney and court by registered or certified mail, return receipt requested. The warden or superintendent having custody of the prisoner shall promptly inform him in writing of the source and contents of any untried indictment, information, or complaint against him, concerning which the warden or superintendent has knowledge, and of his right to make a request for final disposition thereof. In the instant case, the defendant's request of April 15, 1991 was forwarded by the warden to the Parma Municipal Court and the Parma prosecutor instead of the Court of Common Pleas and County prosecutor. This was correct at the time because the complaint against him was pending in Parma and he had not yet been bound over to the Court of Common Pleas or indicted. The Parma prosecutor and Parma Municipal Court failed to forward defendant's request to the authorities in Cuyahoga County where he was eventually indicted on May 30, 1991. Defendant was without counsel until after the 180-day time period had expired. On November 26, 1991, newly appointed counsel filed a motion to dismiss the May 30, 1991 indictment with the Court of Common Pleas based on the violation of defendant's speedy trial rights. The trial court held a hearing on the motion and thereafter denied the motion on December 3, 1991 without opinion. According to the defendant, his attorney assured him that he could appeal the speedy trial issue and that in the meantime, he should plead guilty as his attorney could only appeal from a final order. Contemporaneous letters written by his attorney support this contention. The defendant, therefore, pled guilty to aggravated -4- robbery and the gun and violence specifications were nolled as well as the theft count. Defendant was sentenced to 5 to 25 years in prison. It should be noted that a no contest plea to the indictment would have preserved defendant's appellate rights on the speedy trial issue. State v. McCormick (1988), 41 Ohio App.3d 158, 159; State v. Middletown (1993), 85 Ohio App.3d 403, 406. The defendant then filed an appeal to this Court raising the argument that the trial court had denied his speedy trial rights. This Court affirmed the trial court's denial of defendant's motion to dismiss stating that by pleading guilty, the defendant waived his right to raise the speedy trial issue on appeal. State v. Fox (Oct. 22, 1992), Cuyahoga App. No. 63100, unreported. The defendant then appealed to the Ohio Supreme Court which declined jurisdiction. State v. Fox (March 24, 1993), 66 Ohio St.3d 1446. On September 3, 1996, the defendant filed a petition for post- conviction relief asking the trial court to set aside his guilty plea. Attached to the petition were copies of defense counsel's letters explaining to defendant that it was necessary for him to plead so that the speedy trial issue could be appealed. Defendant argued that the only reason he pled guilty was that his counsel assured him that he could appeal his speedy trial violation. A hearing on the petition was held on December 11, 1997. On June 3, 1998, the trial court filed its Findings of Fact and Conclusions of Law. It ordered the defendant's guilty plea vacated as defendant's plea was not knowingly or intelligently given since defendant mistakenly thought he could still appeal the speedy trial -5- issue after entering a guilty plea. Specifically, the trial court found: What makes this case unique is that it is not merely bald allegations by the Defendant of the misrepresentations of counsel, but there was [sic] contemporaneous letters written to Fox by his attorney, evidencing the same misstatement of law as the basis for the plea. Furthermore, Defense counsel took the stand at the hearing in this matter and reiterated the same advice. *** In reviewing the letters and the testimony adduced at the hearing, counsel clearly gave erroneous advice, in indicating to the client that his appeal rights would be preserved with the entry of a plea of guilty. Thus, this Court has concluded that due to the foregoing, the Defendant's plea at the time could not have been made knowingly and intelligently because the basis for the plea was a misrepresentation of the state of the law in effect at that time which the plea was to be given. It goes without saying that the issue confronting this Court would have been moot had the Defendant entered a plea of no contest. As was typical at that time, he would have to have plead no contest to the entire, unamended indictment. While the firearm specification would add 3 years to the time, it is questionable whether or not the additional charge of theft, when viewed through the more serious offense of aggravated robbery, would have had any impact on the sentencing. [Trial court opinion, June 3, 1998, at 2-4]. The State now appeals specifying two assignments of error. I. THE TRIAL COURT ERRED IN DETERMINING THAT APPELLEE DID NOT KNOWINGLY AND VOLUNTARILY WAIVE HIS CONSTITUTIONAL RIGHTS BY PLEADING GUILTY. Our standard of review was stated in State v. Burdette (May 16, 1996), Cuyahoga App. No. 69776, unreported at 4, in affirming a trial court's granting of a petition for post-conviction relief: -6- The trial court must consider the petition, as well as the entire record, to determine whether there are substantive grounds for relief. R.C. 2953.21(C). State v. Brook (March 10, 1994), Cuyahoga App. No. 65088, unreported. Absent an abuse of discretion, a reviewing court will not overrule a trial court's finding on a petition for post- conviction relief which is supported by competent, credible evidence. See State v. Stallings (July 15, 1993), Cuyahoga App. No. 63147, unreported. When a trial court rules on a petition for post-conviction relief after a hearing, an appellate court will give deference to the trial court's findings of fact. See State v. Jolly (June 24, 1993), Cuyahoga App. Nos. 62380 and 63212. The State argues that the trial court erred in setting aside the defendant's guilty plea because there was no reasonable probability that the result of the proceeding would have been different notwithstanding ineffective assistance of counsel. In other words, the State contends the defendant had to show that he would have proceeded to trial even if he had known a guilty plea would have waived his right to raise the speedy trial issue on appeal. At the post-conviction hearing, defendant said he would have pled no contest instead of guilty if he had known the consequences. However, he also said he would have proceeded to trial in order to preserve the issue for appeal. In determining whether there has been ineffective assistance of counsel upon entry of a guilty plea, the Ohio Supreme Court in State v. Xie (1992), 62 Ohio St.3d 521, 524, citing Hill v. Lockhart (1985), 474 U.S. 52 held: First, the defendant must show that counsel's performance was deficient. ***. Second, the defendant must show that there is a reasonable -7- probability that, but for counsel's errors, he would not have pleaded guilty ***. In Xie the Court of Appeals reversed the trial court's refusal to vacate the defendant's plea and found that the defendant's reliance on counsel's erroneous advice rendered his plea involuntary and unintelligent. The Ohio Supreme Court reversed the Court of Appeals' finding that the defendant had not satisfied the second prong of the test as defendant must show that he would not have pleaded guilty to the reduced charge if his attorney's advice had been correct. Id.525. The Supreme Court also stressed that the trial court was in a better position to evaluate the motivations behind the guilty plea than is an appellate court which is only reviewing the record of the hearing. In the case herein, the first prong of the test is conceded by the State. That is, the defendant's counsel gave defendant erroneous advice. The issue before us is whether the defendant was prejudiced by this erroneous advice. At the post-conviction hearing, defendant's prior trial counsel who had represented him at the time of the guilty plea took the stand. He stated as follows: *** I informed Mr. Fox that should he enter a plea, he would not be waiving his right to appeal the speedy trial provision. He told me that he would rather enter a plea to the entire indictment if it was going to have any adverse effect on his ability to appeal it or he would just as soon try it if it would have any adverse ability to appeal it. I informed him at that time that it was my belief that it did not. And based on that, we had some heated discussions in the back room. He was very -8- adamant that he did not want to do this if he could not appeal that provision, and I assured him that he could. (Tr. at 32). Counsel went on to state: Well, with hindsight, I wish I --- I wish I hadn't told Mr. Fox to enter that plea as he did. He was willing at the time to enter a plea to the entire indictment if it --- if it was not going to affect that. In hindsight, I wish that I had either tried the case or pled no contest to the entirety of the indictment against him. *** He would not have entered that plea if I had not advised him that it didn't have any effect. (Tr. at 37). The defendant then took the stand and testified as follows: *** I made it a point to be cautious enough to inform Mr. Sammons that if I did not retain my right to appeal, I would not enter a plea, period, and that I wanted to proceed to trial, and it didn't matter what the complications or what the specific sentence would be at the conclusion of that trial. I knew I would be found guilty. (Tr. 63). He went on to state that his attorney explained to him that he had to enter the guilty plea in order to appeal the speedy trial issue immediately, as a final order was needed. He stated that after the Ohio Supreme Court denied his appeal, he worked vigorously himself trying to pursue the matter. (Tr. 66). Finally, the State Public Defender's Office agreed to help him. He also admitted on cross-examination that if he could have entered a no contest plea with the full knowledge that the speedy trial issue -9- would be preserved, he would have done so if counsel so advised him. (Tr. 69-70). Based on the foregoing, there was credible evidence before the trial court that the defendant entered the plea only because he thought that the speedy trial issue was preserved for appeal and that no guilty plea would have been entered if he had known the issue would not have been preserved. The defendant and counsel both testified that had they known the issue would not have been preserved, they would have gone forward with a trial or accepted a no contest plea to the unamended indictment. Therefore, based on this record, it clearly appears that the outcome of the proceedings would have been different if the defendant had full knowledge of what he was doing by entering a guilty plea. We disagree with the dissent's argument that the defendant had to show that he would eventually prevail on the speedy trial issue in order to have the plea vacated. The Supreme Court in Xie, supra,only requires the defendant to prove he would not have pled guilty. We think it would be premature to address the speedy trial issue before the defendant has even had the opportunity to present the issue on appeal. In fact, the opportunity to argue the issue before this Court is why the defendant seeks to vacate the plea. As stressed by the Supreme Court in Xie, supra, we will not second guess the trial court's finding on this issue. Accordingly, we find no abuse of discretion in the trial court's ruling. Defendant's Assignment of Error I is overruled. II. THE TRIAL COURT ERRED AS A MATTER OF LAW IN APPLYING THE INCORRECT LEGAL STANDARD -10- GOVERNING THE APPLICABLE JUDICIAL STANDARD USED IN SETTING ASIDE APPELLEE'S POST-SENTENCE GUILTY PLEA. In its second assignment of error, the State argues that the trial court erred in applying the wrong judicial standard in setting aside the guilty plea. The trial court can grant a motion to withdraw a guilty plea, post-sentence, only if a manifest injustice has occurred. State v. Smith (1977), 42 Ohio St. 2d 261. According to the State, no manifest injustice occurred here as the defendant is not innocent of the charges to which he pled since he admitted he was the person that committed the crimes. Mistaken belief regarding the consequences of the plea, according to the State, do not constitute manifest injustice. The delay in bringing the petition, according to the State, also indicates no manifest injustice as it shows that defendant is not credible and that he would not have gone to trial even if well advised. First, the fact that defendant entered a guilty plea because he was repeatedly assured that his right to appeal the speedy trial issue was preserved, clearly shows that the plea was not entered intelligently or knowingly. By so pleading, he waived any right he had to appeal the speedy trial issue. The thwarting of his ability to raise a major substantive issue suggests a manifest injustice. Furthermore, although the plea was entered in 1991 and a petition not filed until 1996, the circumstances do not reveal this was undue delay. During that time frame, defendant appealed to this Court and to the Ohio Supreme Court. He then tried to pursue the matter on his own until the State Public Defender took up his -11- cause. The mere passage of time should not preclude the grant of relief in such circumstances. In this case, we do not find that the trial court abused its discretion. Its findings are supported by credible evidence. The defendant established substantive grounds entitling him to the relief granted. Defendant's Assignment of Error II is overruled. Judgment vacating the guilty plea is affirmed. The case is remanded for further proceedings consistent with this opinion. -12- It is ordered that appellee recover of appellant his 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 Court of Common Pleas to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. JAMES M. PORTER, PRESIDING JUDGE ANN DYKE, JUDGE TERRENCE O'DONNELL, JUDGE, DISSENTS (See dissenting opinion attached) 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 journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. 112, Section 2(A)(1). COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO.74641 STATE OF OHIO : : DISSENTING Plaintiff-Appellant : : OPINION v. : : DANIEL FOX : : Defendant-Appellee : DATE: DECEMBER 17, 1998 JUDGE TERRENCE O'DONNELL DISSENTING: The record in this case reflects that Detective Henry Franz signed a warrant for the arrest of Daniel Fox for charges arising out of a $4,000 jewelry robbery which occurred at gunpoint on February 4, 1991 at the Goldsmith jewelry store in Parma Heights, Ohio. At the time, Fox was serving a one-year sentence at the Van Mielder Halfway House in Mansfield, Ohio, for theft on a case arising out of Montgomery County. The clerk of the Parma Municipal Court processed a detainer on Fox pursuant to the warrant. Fox, in turn, having been advised of the detainer, requested early disposition of the matter pursuant to R.C. 2941.401. However, the Cuyahoga County Grand Jury indicted Fox on May 30, 1991, and the common pleas court then made an unsuccessful effort to serve Fox at the halfway house, because the certified mail was returned addressee unknown. The court then issued a capias for his arrest on June 19, 1991, issued another capias and sent a letter of -2- apprehension to Richfield County on June 28, 1991, issued another capias and sent a letter of detainer to the C.R.C. Orient on July 25, 1991, and ultimately ordered Fox returned for arraignment from the Warren Correctional Center on October 16, 1991. The file next reflects that defense attorney Albert Sammon appeared as counsel for Fox and filed a Motion for a Bill of Particulars and a Request for Evidence Notice on November 7, 1991, seven days prior to Fox's arraignment on November 14, 1991. On the same day as his arraignment, Judge William E. Mahon conducted a pre-trial and scheduled the matter for a motion hearing on November 26, 1991 at defense counsel Sammon's request. On November 26, 1991, Fox filed a Motion to Dismiss alleging denial of his speedy trial rights pursuant to R.C. 2941.401, which states: When a person has entered upon a term of imprisonment in a correctional institution of this state, and when during the continuance of the term of imprisonment there is pending in this state any untried indictment, information, or complaint against the prisoner, he shall be brought to trial within one hundred eighty days after he causes to be delivered to the prosecuting attorney and the appropriate court in which the matter is pending, written notice of the place of his imprisonment and a request for a final disposition to be made of the matter * * * . Contrary to these statutory directives, at no time did Fox ever cause to be delivered to the prosecuting attorney of Cuyahoga County or the common pleas court, the appropriate court in which the matter involving him had been pending, any written notice of the place of his imprisonment or a request for a final disposition of the case. The record here reflects five attempts by the Cuyahoga County Common Pleas Court to locate Fox in an effort to -3- adjudicate this matter. Fox's earlier notice to the Parma Municipal Court does not constitute statutory notice of the place of his imprisonment sent to the appropriate court, particularly where, as here, he failed to remain at the halfway house in Mansfield, necessitating a letter of apprehension be sent to the Richland County authorities and subsequent capias issuances. Following his guilty plea to aggravated robbery in exchange for the state's agreement to nolle charges relating to the gun specification and the theft count, Fox appealed his conviction, alleging court error in denying his speedy trial motion. Our court affirmed the conviction in State v. Fox (Oct. 22, 1992), Cuyahoga App. No. 63100, unreported, and the Ohio Supreme Court declined further review. Four years after our court affirmed his conviction, on September 3, 1996, Fox filed a petition for post-conviction relief alleging ineffective assistance of counsel claiming his defense counsel told him he would be able to appeal the denial of his motion to dismiss following his guilty plea. On June 3, 1998, following a hearing, the trial court vacated Fox's guilty plea, finding it could not have been made knowingly and intelligently because of the erroneous advice of counsel. My difference with the majority in this case lies in the analysis of the law and the content of the record regarding whether Fox demonstrated ineffective assistance of counsel. In State v. Xie (1992), 62 Ohio St.3d 521, the court addressed the claim of ineffective assistance of counsel where a defendant -4- sought to withdraw his guilty plea prior to sentencing, contending he would have chosen to go to trial if his attorney had properly advised him about parole eligibility. The court after referencing Strickland v. Washington, (1984), 466 U.S. 668, explained at 524: The Strickland test was applied to guilty pleas in Hill v. Lockhart (1985), 474 U.S. 52. * * * First, the defendant must show that counsel's performance was deficient. * * * Second, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty * * *. * * * . In Hill v. Lockhart (1985), 474 U.S. 52, the court explained the second prong of the Strickland test and stated at 59: The second, or prejudice, requirement, on the other hand, focuses on whether counsel's constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the prejudice requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. In State v. Xie (1992), supra, the Ohio Supreme Court determined that despite an affidavit from one of Xie's attorneys and despite the clearly incorrect advice given by Xie's defense counsel, in order to prove the second prong of the Strickland-Hill test, Xie needed to show that he would not have pleaded guilty to the reduced charge if his attorney's advice had been correct. See State v. Xie, supra, at 525. In that case, the trial court had denied Xie's request to withdraw his guilty plea prior to sentencing and on appeal, the Ohio Supreme Court deferred to the judgment of the trial court, found that the trial court did not abuse its discretion in denying Xie's motion, and determined that -5- despite incorrect legal advice, Xie entered an intelligent and voluntary plea. Here, in my view, Fox has not satisfied the second prong of the Strickland test. First, Fox received benefit from his plea: the elimination of the three-year period of actual incarceration consecutively imposed on the gun penalty, and the potentially consecutive sentence on the theft count when the state nolled those charges. Second, the record before our court does not establish a reasonable probability that the outcome of the plea proceeding would have been different: Fox freely admitted his guilt in open court, acknowledged his understanding that the offense was non- probationable, and never suggested at the time of the plea that he sought further appeal or intended to challenge the court's ruling on the speedy trial issue. Third, when the prosecutor asked Fox at the hearing held on his post-conviction motion whether he would have pleaded no contest to the entire indictment to preserve the speedy trial issue on appeal, Fox only replied that he would have relied on advice of counsel, but never said he would have pleaded no contest to the entire indictment. This response fails to demonstrate a reasonable probability that the result of the proceeding would have been different. Fourth, even if Fox would have pleaded no contest to the entire indictment including the theft charge and the gun specification, that outcome in reality would not be different from -6- that of the plea of guilty to the aggravated robbery. Hence, Fox, in my view has not demonstrated the outcome of the proceeding would have been different if counsel's advice had been correct. Thus, in accordance with Xie, supra, he fails to meet the second prong of the Strickland-Hill test to demonstrate ineffective assistance of counsel. Finally, in this regard, the only possible demonstration of a different outcome would be for Fox to demonstrate a reasonable probability of success on the speedy trial claim. Here, the record contains no such evidence. Rather, because the Cuyahoga County Common Pleas Court had issued a capias for Fox in connection with the detainer, the speedy trial time is tolled. See R.C. 2945.72. Accordingly, this becomes a further basis supporting the failure to demonstrate ineffective assistance of counsel as defined in the second prong of Strickland-Hill. I, therefore, believe this assignment of error is well taken. In its second assignment of error, the state implies that the trial court should have required Fox to show the existence of manifest injustice before granting his request to vacate his plea entered almost seven years earlier on December 18, 1991. Nowhere in the trial court's findings of fact and conclusions of law is any reference made either to Crim.R. 32.1 or to the burden of proof or to the manifest injustice standard. In State v. Xie, supra, the court there also considered this same issue and distinguished between a pre-sentence and a post- sentence withdrawal of a guilty plea. At 526, the court stated: -7- Thus, the rule gives a standard by which postsentence withdrawals of guilty pleas may be evaluated--the manifest injustice standard. However, the rule itself gives no guidelines for a trial court to use when ruling on a presentence motion to withdraw a guilty plea. In its analysis of the trial court's ruling on Xie's pre- sentence motion to withdraw his plea, the court concluded at 526: The trial court correctly stated that presentence motions to withdraw guilty pleas are within a trial court's discretion; nowhere does the trial court indicate that it was forcing Xie to show the existence of manifest injustice to be allowed to withdraw his guilty plea. There, the court applied the abuse of discretion standard and found no such abuse by the trial court. In this case, however, where Fox requested a six year post- sentence withdrawal of his guilty plea, not only did the trial court not make any reference to the manifest injustice standard in its ruling, but the majority opinion here concludes that the trial court did not abuse its discretion! I would determine here that absent evidence of manifest injustice, the trial court should not have permitted Fox to vacate his guilty plea. In Xie, supra, the court considered the issue of whether Xie's plea could have been intelligent and voluntary if based on misinformation of defense counsel. There, in analyzing the issue, the Supreme Court reviewed the record of the trial court at the time of the plea and concluded the trial court thoroughly advised Xie of his rights at the time of the plea. Here, the record reveals a scrupulous adherence to Crim.R. 11 at the time Fox entered his plea. Thus, I would conclude that despite the incorrect advice of counsel regarding the ability to -8- appeal a speedy trial denial following a guilty plea, Fox nonetheless knowingly, intelligently, and voluntarily entered his guilty plea. Accordingly, I believe this assignment of error is .