Court of Appeals of Ohio, Eighth District, Cuyahoga
Appeal from the Cuyahoga County Court of Common Pleas Case
Nos. CR-15-595754-A and CR-15-600742-A
ATTORNEYS FOR APPELLANT Mark Stanton Cuyahoga County Public
Defender BY: Erika B. Cunliffe Assistant Public Defender
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor BY: Edward R. Fadel Assistant Prosecuting
Attorney The Justice Center.
BEFORE: Celebrezze, J., E.T. Gallagher, P.J., and Blackmon,
JOURNAL ENTRY AND OPINION
D. CELEBREZZE, JR., JUDGE.
Defendant-appellant, Brandon Durrette
("appellant"), brings this appeal challenging his
convictions and sentences for various counts in two separate
cases. Specifically, appellant argues that his guilty pleas
were not knowingly, voluntarily, and intelligently entered,
his trial counsel provided ineffective assistance, the trial
court's sentence is contrary to law, and the trial court
abused its discretion by denying his postsentence motion to
withdraw his guilty pleas. After a thorough review of the
record and law, this court affirms.
Factual and Procedural History
Appellant pled guilty in two separate cases to crimes related
to a string of armed robberies in the Tremont neighborhood of
Cleveland. First, in Cuyahoga C.P. No. CR-15-595754-A,
appellant pled guilty to eight counts of aggravated robbery,
two counts of felonious assault, six counts of having weapons
while under disability, two drug trafficking counts, one drug
possession count, one count of misusing a credit card, and
one count of receiving stolen property. Furthermore,
appellant pled guilty to ten one-year firearm specifications.
Second, in Cuyahoga C.P. No. CR-15-600742-A, appellant pled
guilty to two counts of aggravated robbery, both of which
contained one-year firearm specifications, and one count of
having weapons while under disability.
On December 17, 2015, the trial court held a sentencing
hearing during which appellant was sentenced in both criminal
cases. In CR-15-595754-A, the trial court
sentenced appellant to an aggregate 25-year prison term. In
CR-15-600742-A, the trial court sentenced appellant to an
aggregate 5-year prison term. The trial court ordered
appellant's sentences in the two cases to run
On January 26, 2016, appellant filed an appeal challenging
his guilty pleas and the trial court's sentence. This
court granted appellant's motion to remand the matter to
the trial court so that he would have an opportunity to file
a motion to vacate his guilty pleas.
Appellant filed a motion to vacate his guilty pleas on
September 7, 2016. The trial court denied appellant's
motion to vacate his guilty pleas on December 1, 2016.
Appellant assigns five errors for review:
I. [Appellant's] plea was not knowingly and intelligently
entered because the plea was largely induced by the
State's offer to delete specifications subsequently found
to violate the State and Federal Constitutions in State
v. Hand, [149 Ohio St.3d 94');">149 Ohio St.3d 94, 2016-Ohio-5504, 73 N.E.3d
II. The sentence imposed is contrary to law because it fails
to comply with the purposes of the Ohio Sentencing Statutes.
III. [Appellant's] guilty plea is invalid because he did
not enter it knowingly, intelligently, and voluntarily.
IV. [Appellant] received ineffective assistance of counsel in
connection with his guilty plea.
V. The trial court abused its discretion by failing to allow
[appellant] to withdraw his guilty plea where the evidence he
submitted in support of the motion established a manifest
ease of discussion, we will address appellant's
assignments of error out of order.
Law and Analysis A. Guilty Pleas
Appellant's first, third, and fifth assignments of error
relate to his guilty pleas.
Knowingly, Intelligently, and Voluntarily Entered
In his first assignment of error, appellant argues that his
guilty pleas were not knowingly, intelligently, and
voluntarily entered because the state induced him to enter
the pleas by deleting the underlying notice of prior
conviction specifications that should not have been charged
in the indictment pursuant to Hand.
In Hand, the Ohio Supreme Court held that it
"is a violation of due process to treat a juvenile
adjudication as the equivalent of an adult conviction for
purposes of enhancing a penalty for a later crime."
Id. . at ¶ 1. The court explained,
[t]reating a juvenile adjudication as an adult conviction to
enhance a sentence for a later crime is inconsistent with
Ohio's system for juveniles, which is predicated on the
fact that children are not as culpable for their acts as
adults and should be rehabilitated rather than punished. It
is widely recognized that juveniles are more vulnerable to
outside pressures, including the pressure to admit to an
offense. Under [Apprendi v. New Jersey, 530 U.S.
466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)], using a prior
conviction to enhance a sentence does not violate the
constitutional right to due process, because the prior
process involved the right to a jury trial. Juveniles,
however, are not afforded the right to a jury trial. Quite
simply, a juvenile adjudication is not a conviction of a
crime and should not be treated as one.
Hand at ¶ 38.
In the instant matter, appellant essentially argues that he
bargained for nothing and received no benefit from the plea
agreements because the notice of prior conviction
specifications that the state agreed to delete should not
have been charged against him in the first place.
Appellant's argument is unsupported by the record.
Initially, we note that appellant was indicted in
CR-15-595754-A on June 4, 2015, and pled guilty on November
17, 2015. Appellant was charged in an information in
CR-15-600742-A on November 9, 2015, and pled guilty on
December 10, 2015. Appellant was sentenced in both cases on
December 17, 2015. The Ohio Supreme Court's decision in
Hand, however, was not issued until August 25, 2016.
Thus, the notice of prior conviction specifications were
valid and constitutional when appellant was charged, during
pretrial proceedings and plea negotiations, when appellant
pled guilty, and when he was sentenced.
Additionally, we find that the deletion of the notice of
prior conviction specifications was not the only benefit that
appellant received from the plea agreements. In
CR-15-595754-A, the state also agreed to dismiss one count of
aggravated robbery, one count of having weapons while under
disability, nine counts of kidnapping, and the three-year
firearm specifications charged in Counts 1, 2, 4-7, 9-12,
14-19, 21, 22, 25, and ...