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State v. Reese

Court of Appeals of Ohio, Fifth District, Muskingum

June 7, 2017

STATE OF OHIO, Plaintiff-Appellee
v.
DAYWON L. REESE, Defendant-Appellant

         Criminal appeal from the Muskingum County Court of Common Pleas, Case No. CR2015-0267.

          For: Plaintiff-Appellee MICHAEL HADDOX By GERALD V. ANDERSON II

          For: Defendant-Appellant DAYWON REESE

          JUDGES: Hon. Patricia A. Delaney, P.J. Hon. W. Scott Gwin, J. Hon. Craig R. Baldwin, J.

          OPINION

          Gwin, J.

         {¶1} Appellant appeals the February 28, 2017 judgment entry of the Muskingum County Court of Common Pleas denying his petition for post-conviction relief. Appellee is the State of Ohio.

         Facts & Procedural History

         {¶2} On January 15, 2016, appellant Daywon Reese entered a plea of guilty to one count of possession of drugs (cocaine), a felony of the first degree, in violation of R.C. 2925.11(A); three counts of possession of drugs (oxycodone), felonies of the fifth degree, in violation of R.C. 2925.11(A); one count of possession of drugs (alprazolam), a misdemeanor of the first degree, in violation of R.C. 2925.11(A); and one count of possession of drugs (marijuana), a misdemeanor of the fourth degree, in violation of R.C. 2925.11(A). The trial court sentenced appellant and issued a sentencing entry on February 25, 2016.

         {¶3} On February 14, 2017, appellant filed a motion to withdraw guilty plea pursuant to Criminal Rule 32, arguing he was denied effective assistance of counsel creating a manifest miscarriage of justice due to his counsel's erroneous advice that he enter guilty pleas to enhanced degree felonies for possession of cocaine based on gross weight that included other material instead of the weight of the actual cocaine. On February 24, 2017, appellant filed a petition for post-conviction relief pursuant to R.C. 2953.21 seeking to set aside his pleas as void, again arguing he was denied effective assistance of counsel that violated his right to counsel and right to due process due to his trial counsel's erroneous advice that he enter guilty pleas to enhanced-degree felonies for trafficking in cocaine based on gross weight that included other material instead of the weight of the actual cocaine.

         {¶4} The trial court denied his motion to withdraw on February 16, 2017. The trial court also denied his petition for post-conviction relief on February 28, 2017. Appellant filed appeals on each of these denials.

         {¶5} Appellant first appealed the trial court's denial of his motion to withdraw. In State v. Reese, 5th Dist. Muskingum No. CT2017-0015, 2017-Ohio-____, this Court overruled appellant's assignments of error and affirmed the trial court's denial of his motion to withdraw plea.

         {¶6} In this case, appellant appeals the February 28, 2017 judgment entry of the Muskingum County Court of Common Pleas and assigns the following as error:

         {¶7} "I. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL DUE TO DEFENSE COUNSEL'S ERRONEOUS ADVICE THAT HE ENTER GUILTY PLEAS TO ENHANCED-DEGREE FELONIES FOR POSSESSION OF DRUGS (COCAINE) BASED ON GROSS WEIGHT THAT INCLUDED OTHER MATERIAL, INSTEAD OF THE WEIGHT OF THE ACTUAL COCAINE, IN VIOLATION OF HIS RIGHT TO DUE PROCESS.

         {¶8} "II. THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION WHEN IT DENIED APPELLANT'S POST-CONVICTION RELIEF PETITION WITHOUT A HEARING WHEN THE COURT FILES, AND RECORD, ...


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