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State v. Durrette

Court of Appeals of Ohio, Eighth District, Cuyahoga

August 24, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
BRANDON TYRONE DURRETTE DEFENDANT-APPELLANT

         Criminal 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 Courthouse Square.

          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, J.

          JOURNAL ENTRY AND OPINION

          FRANK D. CELEBREZZE, JR., JUDGE.

         {¶1} 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.

         I. Factual and Procedural History

         {¶2} 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.

         {¶3} On December 17, 2015, the trial court held a sentencing hearing during which appellant was sentenced in both criminal cases.[1] 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 concurrently.

         {¶4} 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.

         {¶5} 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.

         {¶6} 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 448].
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 injustice.

         For ease of discussion, we will address appellant's assignments of error out of order.

         II. Law and Analysis A. Guilty Pleas

         {¶7} Appellant's first, third, and fifth assignments of error relate to his guilty pleas.

         1. Knowingly, Intelligently, and Voluntarily Entered

         {¶8} 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.

         {¶9} 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.

         {¶10} 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.

         {¶11} 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.

         {¶12} 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 ...


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