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State v. Davis

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 22, 2018


          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-14-582057-B, CR-14-586437-A, CR-14-586870-A CR-14-587857-B, CR-14-590819-B, and CR-15-596537-A

          ATTORNEY FOR APPELLANT Thomas A. Rein

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor Frank Romeo Zeleznikar Marc Bullard Assistant County Prosecutors

          ALSO LISTED Michael Marbuery Davis #A683240

          BEFORE: Kilbane, J., Keough, P.J., and McCormack, J.



         {¶1} Upon review, this court sua sponte reconsiders its decision in this case. After reconsideration, the opinion as announced by this court on October 19, 2017, State v. Davis, 8th Dist. Cuyahoga No. 104574, 2017-Ohio-8222, is hereby vacated and substituted with this opinion.

         {¶2} Defendant-appellant, Michael Marbuery Davis ("Marbuery Davis"), appeals the trial court's denial of his motion to withdraw his guilty plea and his sentence for drug trafficking, possessing criminal tools, drug possession, attempted drug possession, and endangering children. For the reasons set forth below, we affirm in part, reverse in part, and remand for resentencing.

         {¶3} Between February 2014 and June 2015, Marbuery Davis was indicted in six cases for various drug trafficking related offenses. These cases proceeded before the same judge in the common pleas court. In April 2016, a pretrial was held and the state's plea offer to Marbuery Davis in each of the six cases were placed on the record. The state set forth the terms of each offer and the trial court advised Marbuery Davis that, based upon the plea offer, he would be facing a prison term anywhere from a minimum of 3 years to a maximum of 39 years. The trial court explained to Marbuery Davis that it does not discuss with the state or the defense its views on a defendant's sentence prior to sentencing. The matter was then continued so that Marbuery Davis could be evaluated by the court psychiatric clinic.

         {¶4} In May 2016, Marbuery Davis entered guilty pleas to numerous felony counts spanning the six cases. Before accepting Marbuery Davis's plea, the trial court explained on the record that the court psychiatrist had evaluated Marbuery Davis and determined that he was capable of understanding the nature of the proceedings against him. The trial court questioned Marbuery Davis:

THE COURT: Are you satisfied with the representation that you have received from [your attorney]?

         {¶5} The trial court went through the terms of the state's plea offer with Marbuery Davis, advising him of postrelease control and the mandatory driver's license suspension for each count of drug trafficking to which he pled guilty. The court explained, "there is a mandatory suspension of your driver's license which will be determined at sentencing. Minimum would be a six-month suspension, maximum would be five years."

         {¶6} The trial court then engaged in the Crim.R. 11 plea colloquy with Marbuery Davis. This exchange included, in relevant part:

THE COURT: All right. Now, two more questions, then we can take your plea. Have any threats been made to you to change your plea?
[MARBUERY DAVIS]: No, your Honor.
THE COURT: Have there been any promises made to you to get you to change your plea?
[MARBUERY DAVIS]: No, your Honor.

         {¶7} The trial court accepted Marbuery Davis's guilty pleas to eight counts of drug trafficking, four counts of possessing criminals tools, one count of endangering children, one count of attempted drug possession, and one count of drug possession.[2]

         {¶8} The trial court proceeded directly to sentencing. Prior to imposing a sentence, the trial court gave Marbuery Davis the opportunity to present any mitigating information on his own behalf. Marbuery Davis reiterated his guilt, stating:

Well, your Honor, I would like to say I'm guilty as charged * * * I'm ready and willing to accept my consequences.

         {¶9} The trial court sentenced Marbuery Davis to an aggregate prison term of 22 years and imposed mandatory fines on the applicable trafficking counts under R.C. 2929.18(B)(1), as well as court costs. Immediately upon hearing this sentence, Marbuery Davis requested his court-appointed attorney to move to withdraw the guilty pleas. The trial court gave Marbuery Davis the opportunity to address his request to withdraw his plea. Marbuery Davis told the trial court that his attorney had promised him that if he pled guilty he would receive only a three-year sentence. The state and Marbuery Davis's defense attorney reiterated to the trial court that there had been no agreed sentence and Marbuery Davis's defense attorney advised the trial court that he had not made any promises to Marbuery Davis. When further questioned by the trial court, Marbuery Davis alleged that he wasn't provided any discovery and denied that he was guilty of all the crimes to which he had just pled guilty. The trial court denied Marbuery Davis's motion to withdraw the guilty pleas, noting that he had answered negatively when questioned if any threats or promises had been made to him to induce his plea and had not mentioned any of these allegations prior to being sentenced.

         {¶10} The trial court then continued with sentencing. The trial court denied defense counsel's motion to waive fines and court costs, stating that no affidavit of indigence had been filed prior to sentencing. The trial court advised Marbuery Davis of postrelease control, appointed appellate counsel, and concluded the hearing. Notably, the trial court did not impose a suspension of Marbuery Davis's driver license.

         {¶11} On May 20, 2016, Marbuery Davis filed a pro se motion to withdraw his guilty plea, renewing his allegation that his attorney had promised he would receive a three-year sentence and further alleging that counsel had not allowed him to see discovery that had been designated "counsel only." The trial court filed its sentencing entry on May 23, 2016. It is from this sentencing entry that Marbuery Davis appeals.

         {¶12} On May 27, 2016, the trial court set a hearing on Marbuery Davis's pro se motion to withdraw his guilty plea and assigned him new counsel for purposes of that hearing. The hearing was held on June 22, 2016. Because of scheduling and the need to obtain evidence, the court continued the hearing, and ultimately concluded the hearing on October 5, 2016. Over the course of these hearings, the court heard testimony from Marbuery Davis, his girlfriend, Michelle Westover ("Westover"), and his former defense attorney. Westover often contacted Marbuery Davis's attorney by phone and text message and acted as an intermediary between Marbuery Davis and his attorney. For purposes of his former attorney's testimony, Marbuery Davis waived attorney-client privilege.

         {¶13} At the hearing, Marbuery Davis and Westover testified that the attorney had told them Marbuery Davis would get three years in an "off the record" deal with the state. Westover testified that, although she was not certain, she recalled her text messages with the attorney containing a promise of a three-year sentence. She explained that she could no longer recover these text messages because the phone on which she received them had broken, causing its memory to be erased.

         {¶14} The attorney testified that not long after being appointed to represent Marbuery Davis, he had presented to both his client and Westover what he understood to be a plea offer from the state that included a term of incarceration for all six cases "as low as three years." He further testified that this offer "didn't sit quite right with [him], " so he requested the offer be put on the record so that "everybody [would be] on the same page." The attorney testified that he made no promises that Marbuery Davis would receive a three-year sentence to either Marbuery Davis or Westover. He testified that he explained to both Marbuery Davis and Westover that sentencing was within the court's discretion, and he did not know how the court would ultimately sentence Marbuery Davis. Upon the trial court's request, the attorney produced his text messages with Westover. These text messages were consistent with his testimony that he never made any promise of a three-year sentence to Westover.

         {¶15} The attorney also denied that he had kept discovery from Marbuery Davis. He explained that, based upon his understanding of the "counsel only designation, he could not provide the discovery to his client, but rather had to describe the contents of the discovery to him. Marbuery Davis acknowledged that his attorney did discuss the state's discovery with him.

         {¶16} On February 7, 2017, the trial court, construing Marbuery Davis's motion to withdraw as a petition for postconviction relief, filed a "[n]otice * * * pursuant to [App.R. 6(A)]" with this court advising that it had determined that grounds existed to hold a hearing to determine if the court should grant Marbuery Davis's motion to withdraw his guilty plea. The trial court further advised that it became aware of the present appeal only after reviewing the docket in preparing its journal entry and opinion for Marbuery Davis's motion to withdraw his guilty plea. In this notice, the trial court explained that it would not file its ruling on the motion to withdraw until it received a response from this court.

         {¶17} On March 15, 2017, we remanded this matter to the trial court pursuant to App.R. 6(A), which states:

Whenever a trial court and an appellate court are exercising concurrent jurisdiction to review a judgment of conviction, and the trial court files a written determination that grounds exist for granting a petition for post-conviction relief, the trial court shall notify the parties and the appellate court of that determination. On such notification, or pursuant to a party's motion in the court of appeals, the appellate court may remand the case to the trial court.

         {¶18} Following our remand, the trial court denied Marbuery Davis's motion to withdraw his guilty pleas. In May 2017, Marbuery Davis moved to supplement the record to include the trial court's denial of his pro se motion to withdraw his guilty pleas. We granted Marbuery Davis's motion to supplement the record and ordered that he amend his appeal. We also granted the state's request to reopen briefing on these issues.

         {¶19} Appellate counsel raises the following six assignments of error on Marbuery Davis's behalf:

Assignment of Error One
The trial court erred in not allowing [Marbuery Davis] to withdraw his guilty plea.
Assignment of Error Two
The trial court erred by ordering [Marbuery Davis] to serve a consecutive sentence without making the appropriate findings ...

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