State v. Davis

[Cite as State v. Davis, 

.]


                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                    :

                 Plaintiff-Appellee,              :
                                                             No. 110301
                 v.                               :

TORREZ T. DAVIS,                                  :

                 Defendant-Appellant.             :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: November 10, 2021


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-15-593330-A


                                            Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Callista Plemel, Assistant Prosecuting
                 Attorney, for appellee.

                 Mary Catherine Corrigan, for appellant.

MARY J. BOYLE, A.J.:

                   Defendant-appellant Torrez Davis appeals the trial court’s denial of

his postconviction motion to withdraw his guilty plea. He raises one assignment of

error for our review:
      The trial court abused its discretion in denying Davis’s motion without
      holding a hearing.

               Finding no merit to his assignment of error, we affirm the trial court’s

judgment.

I.   Facts and Procedural History

               This matter arose from the September 29, 2014 shooting death of

Darnell Phillips after a physical altercation between Phillips and Davis ended in

Davis’s discharging a firearm into a group of people at Arbor Park Village in

Cleveland.

               On February 24, 2015, Davis was indicted for one count of aggravated

murder in violation of R.C. 2903.01(A), an unclassified felony (Count 1); one count

of murder in violation of R.C. 2903.02(B), an unclassified felony (Count 2); one

count of felonious assault in violation of R.C. 2903.11(A)(1), a second-degree felony

(Count 3); four counts of felonious assault in violation of R.C. 2903.11(A)(2), all

second-degree felonies (Counts 4-7); one count of discharge of a firearm on or near

prohibited premises in violation of R.C. 2923.162(A)(3), a first-degree felony (Count

8); and one count of having weapons while under disability in violation of R.C.

2923.13(A)(2), a third-degree felony (Count 9). All counts except Count 9 included

one- and three-year firearm specifications pursuant to R.C. 2941.141(A) and

2941.145(A).

               At his February 27, 2015 arraignment, Davis pled not guilty to the

indictment and was assigned two attorneys. The parties exchanged discovery and

reached a plea agreement just before trial. On November 2, 2015, the day of trial,
Davis withdrew his former plea and entered guilty pleas to all counts as amended by

the plea agreement. In exchange for Davis’s guilty plea, the agreement reduced the

aggravated murder charge to voluntary manslaughter in violation of R.C.

2903.03(A), a first-degree felony, but retained the one- and three-year firearm

specifications (Count 1). The agreement retained one of the four counts of felonious

assault in violation of R.C. 2903.11(A)(2) and deleted the associated firearm

specifications (Count 4). The agreement also deleted the firearm specifications from

the sole count of discharge of a firearm on or near prohibited premises (Count 8).

Finally, the agreement retained the single count of having a weapon while under

disability (Count 9). All remaining counts and specifications were nolled. The

parties agreed to recommend a sentence of 18 years in prison without early release.

The trial court accepted the plea agreement.

              On November 5, 2015, the trial court accepted the parties’ proposed

sentence and sentenced Davis to an aggregate of 18 years in prison. The trial court

imposed 13 years for Count 1, as amended, which included 10 years for the

underlying offense and a 3-year firearm specification, to be served consecutively; 3

years for Counts 4 and 8, to be served concurrently with each other and

consecutively to the terms imposed in Count 1; and 2 years for Count 9, to be served

consecutively to the terms imposed in Counts 1, 4, and 8. The trial court advised

Davis regarding postrelease control, waived all costs and fines, and credited 267

days of time served.
               Nearly five years later, on June 15, 2020, Davis filed a motion to

withdraw his guilty plea pursuant to Crim.R. 32.1, in which Davis argued ineffective

assistance of counsel for failure to pursue a self-defense claim. In the motion, Davis

alleged that “[h]e was attacked at the park and while in fear for his life used a weapon

to defend himself.” Davis argued that his two trial counsel “fail[ed] to investigate”

and “advise [Davis] that he had an affirmative defense,” which “had [he] known …

he would not have entered into the plea agreement and instead proceeded to a jury

trial.”

               Davis attached to his motion three affidavits in support of his self-

defense claim. The first affidavit was sworn by Derralle Felder, who witnessed the

altercation between Phillips and Davis but did not witness the shooting. Specifically,

Felder averred that Phillips “punched” Davis, Davis “fell to the ground,” and Phillips

“stomped his back in.” Felder also averred that a “group had planned to jump

[Davis,] but only [Phillips] went through with it.” Felder’s affidavit identified several

people in Phillips’s group by first name or nickname: “Bookah,” “Bottle,” “Kayla,”

among others. Felder alleged that when the altercation between Phillips and Davis

started, another person in Phillips’s group struck Felder, knocking him to the

ground so that he “couldn’t get up,” and “[s]omeone dragged [Felder] into a car.”

Felder admitted that he “did not see shots fired or a gun” but was “[o]ne thousand

percent” sure that Phillips “hit [Davis] first and then stomped his back in.” Felder

alleged that he was never interviewed about what he saw.
               The remaining two affidavits were sworn by two of Davis’s boxing

coaches, Darryl Mercer and Darryl Timothy Rhoades, both of whom saw and spoke

with Davis at their boxing gym following the shooting. Mercer averred that Davis

“had bruises, his hair was messed up, [and] his shirt was torn” “and dirty.” Mercer

also averred that Davis “kept saying ‘they jumped me man, they jumped me’” and “‘I

thought they was gon [sic] to kill me.’” Like Felder, Mercer alleged that he was never

interviewed about what he had witnessed. Rhoades alleged that when he saw Davis

on the day of the shooting, his “clothes were ripped and torn,” “[h]e was covered in

bruises,” and he “had obviously been engaged in a physical altercation.”

               On January 20, 2021, the trial court denied the motion without a

hearing, finding this evidence insufficient to rebut the presumption that Davis

entered his guilty plea knowingly, voluntarily, and intelligently. The trial court

noted that the affidavits attached to the motion alleged facts that had occurred

before and after, but not during the shooting. The trial court also noted that the

motion’s evidence was incomplete because it failed to include affidavits of Davis or

either of his two defense counsel or a transcript of Davis’s plea showing that his plea

was uninformed or that the representation afforded Davis fell below an objective

standard of reasonableness resulting in prejudice to Davis.           The trial court

determined that the affidavits Davis attached to his motion were of “questionable

evidentiary value” considering nearly five years had elapsed between the shooting

and the motion.

               It is from this judgment that Davis now appeals.
II. Law and Analysis

              In his sole assignment of error, Davis contends that the trial court

abused its discretion in denying his postsentence motion to withdraw his guilty plea

as insufficient, incomplete, and untimely without first holding an evidentiary

hearing. Davis argues that he did not enter his plea knowingly and intelligently

because defense counsel failed to investigate and inform him of a potential self-

defense claim now supported by affidavits of witnesses to Davis’s physical

altercation with Phillips and Davis’s appearance thereafter.

              We review the denial of a postsentence motion to withdraw a guilty

plea for an abuse of discretion. State v. Straley, 

, 

,

, ¶ 15, citing State v. Smith, 

, 

(1977), paragraph two of the syllabus, and State v. Francis, 

,

, 

, ¶ 32. We likewise review a trial court’s decision

whether to hold a hearing on a postsentence motion to withdraw a guilty plea for an

abuse of discretion. See, e.g., State v. Grant, 8th Dist. Cuyahoga No. 107499, 2019-

Ohio-796, ¶ 13.

              A trial court abuses its discretion when its decision is unreasonable,

arbitrary, or unconscionable. State v. Ford, 

, 

,

, ¶ 106, citing Huffman v. Hair Surgeon, Inc., 

,

 (1985), citing State v. Adams, 

, 

 (1980). A decision is unreasonable when “‘no sound reasoning process …

would support that decision.’”     

 quoting AAAA Ents., Inc. v. River Place
Community Urban Redevelopment Corp., 

, 

(1990).

              “A motion to withdraw a plea of guilty … may be made only before

sentence is imposed; but to correct manifest injustice the court after sentence may

set aside the judgment of conviction and permit the defendant to withdraw his or

her plea.” Crim.R. 32.1. The defendant bears the burden of establishing the

existence of “manifest injustice.” Smith at paragraph one of the syllabus.

              “Manifest injustice” is defined as “‘a clear or openly unjust act,’”

Straley, 

, 

, 

, at ¶ 14, quoting State

ex rel. Schneider v. Kreiner, 

, 

 (1998).

Manifest injustice “is evidenced by ‘an extraordinary and fundamental flaw in the

plea proceeding.’” State v. McElroy, 8th Dist. Cuyahoga Nos. 104639, 104640, and

104641, 

, ¶ 30, quoting State v. Hamilton, 8th Dist. Cuyahoga No.

90141, 

.

      “A claim of manifest injustice must be supported by specific facts in the
      record or through affidavits submitted with the motion. See, e.g., State
      v. Darling, 8th Dist. Cuyahoga No. 109439, 

; State
      v. Geraci, 8th Dist. Cuyahoga Nos. 101946 and 101947, 2015-Ohio-
      2699, ¶ 10. Postsentence withdrawal of a guilty plea is permitted “‘only
      in extraordinary cases.’” [McElroy at ¶ 30], quoting State v. Rodriguez,
      8th Dist. Cuyahoga No. 103640, 

, ¶ 22.”

State v. Said, 8th Dist. Cuyahoga Nos. 110090 and 110288, 

, ¶ 16,

quoting State v. Houk, 8th Dist. Cuyahoga No. 110115, 

.

              “A trial court is not required to hold a hearing on every postsentence

motion to withdraw a guilty plea.” State v. Nicholson, 8th Dist. Cuyahoga No.
109762, 

, citing State v. Norman, 8th Dist. Cuyahoga No.

105218, 

, and State v. Vihtelic, 8th Dist. Cuyahoga No. 105381,

, ¶ 11. A hearing is required when the defendant alleges facts that,

if accepted as true, would require that the defendant be permitted to withdraw his

guilty plea. 

 When reviewing affidavits attached to the motion, the trial court

may, in the exercise of its discretion, judge credibility when deciding whether to

accept the affidavits as true statements of fact. State v. Knowles, 8th Dist. Cuyahoga

No. 95239, 

, ¶ 22; State v. Lawston, 8th Dist. Cuyahoga No. 80828,

, ¶ 29.

               Davis offers affidavit evidence to support the self-defense claim on

which he bases his motion to withdraw. The state argues that “these witnesses’

affidavits do not … establish operative facts rising to a successful claim of self-

defense.” We agree. Even if the facts alleged in the affidavits were accepted as true,

the affidavits do not entitle Davis to an evidentiary hearing. The affidavits do not

meet all the elements of Davis’s self-defense claim. To establish self-defense under

Ohio law at the time Davis entered his guilty plea, a defendant had to prove the

following elements:

      “(1) that the defendant was not at fault in creating the situation giving
      rise to the affray; (2) that the defendant had a bona fide belief that he
      was in imminent danger of death or great bodily harm and that his only
      means of escape from such danger was in the use of such force; and (3)
      that the defendant did not violate any duty to retreat or avoid the
      danger.”
State v. Thompson, 

, 

, 

,

quoting State v. Barnes, 

, 

 (2002).1

               In his affidavit, Felder averred that Phillips’s group had planned to

jump Davis, but only Phillips acted on the plan. Felder alleged that Phillips struck

Davis, Davis fell to the ground, and Phillips stomped on Davis’s back. Felder’s

affidavit meets the first element of self-defense by alleging that Phillips was the

initial aggressor, and Davis was not at fault in starting the fight. The affidavits of

Mercer and Rhoades alleged facts that suggest, but are insufficient to meet, the

second element of self-defense. Mercer and Rhoades alleged that when Davis

entered their boxing gym following the shooting, he appeared to be bruised and his

clothes were torn and dirty. Rhoades averred that Davis appeared to have been

involved in a recent physical altercation. Mercer averred that he heard Davis say,

“they jumped me man, they jumped me” and “I thought they was gon [sic] to kill

me.” Disregarding admissibility issues associated with Mercer’s recollection of what

Davis said, the averments of Mercer and Rhoades are insufficient to show that Davis

believed his only means of escape was to open fire on Phillips and his group.

Combined with Felder’s affidavit, Mercer’s and Rhoades’s affidavits are also




      1  In 2019, R.C. 2901.05 was amended to shift the burden from the defendant to the
prosecution to disprove any of the self-defense elements beyond a reasonable doubt.
State v. Jackson, 8th Dist. Cuyahoga No. 108493, 

. The amendment
does not apply retroactively. State v. Fisher, 8th Dist. Cuyahoga No. 108494, 2020-Ohio-
670, ¶ 24, fn. 2, citing State v. Koch, 2d Dist. Montgomery No. 28000, 

.
insufficient to show the defense’s third element, that Davis did not violate any duty

to retreat or avoid the danger.

              Conspicuously absent from the motion is Davis’s own affidavit, or an

affidavit of any other witness to the shooting, to support Davis’s self-defense claim.

Felder witnessed the physical altercation that led to the shooting but did not witness

the shooting. Felder stated that he was “[o]ne thousand percent” sure that Phillips

struck Davis first. However, Felder also admitted that he saw nothing more because

at the same time Phillips struck Davis, another in Phillips’s group struck Felder and

knocked him to the ground, after which someone in Felder’s group dragged him

away from the fray. Felder stated that he “did not see shots fired or a gun.” The

remaining two affidavits of Mercer and Rhoades add little because they only attest

to events after Davis entered their boxing gym following the shooting. Davis cannot

solely rely on testimony about events before and after the shooting when the defense

Davis asserts concerns the event of the shooting. The affidavits attached to Davis’s

motion do not support his claim of self-defense.

              The affidavits are also sworn by interested parties. Felder appeared

to be on Davis’s side of the altercation when it started because Felder was struck

shortly after Davis by someone in Phillips’s group. Mercer and Rhoades were

Davis’s boxing coaches. The trial court could have determined that these affidavits

lacked sufficient credibility to warrant an evidentiary hearing not only because the

affiants were not present during the shooting, but also because of the affiants’

relationship to Davis. See Knowles, 8th Dist. Cuyahoga No. 95239, 

,
at ¶ 23 (“[T]he trial court could properly find [the submitted] affidavits lacked

sufficient credibility to require a hearing because of the nature of the evidence

provided in these affidavits and the relationship between the affiants and [the

appellant].”)

                In his motion to withdraw, Davis also argues that his defense counsel

failed to inform him of the potential self-defense claim, which made his plea

unknowing and unintelligent.        However, the record does not support this

contention. Davis failed to provide a transcript of the change-of-plea hearing as part

of his motion, which precluded any meaningful review by the trial court of the

alleged Crim.R. 11 violations. State v. Kraatz, 8th Dist. Cuyahoga No. 103515, 2016-

Ohio-2640, ¶ 10; State v. Austin, 8th Dist. Cuyahoga No. 107872, 

,

¶ 21. Because the transcript was not before the trial court, the transcript is not part

of the record and cannot be reviewed for the first time on appeal. Appellate review

is limited to the record, and a reviewing court cannot add any new matter to the

record that was not part of the trial court’s proceedings or decide the appeal on the

basis of any new matter not before the trial court. State v. Ishmail, 

, 

 (1978), paragraph two of the syllabus. Without a transcript of

the change-of-plea hearing, we must presume regularity in the proceedings of the

trial court. Kraatz at ¶ 10; Austin at ¶ 22, citing State v. Raber, 

,

, 

. We therefore presume that the trial court

complied with Crim.R. 11 and that Davis entered his guilty plea knowingly,

intelligently, and voluntarily.
              Also, Davis has not shown that the representation he received from

his two attorneys was deficient or that his attorneys’ performance prejudiced him.

A criminal defendant has the right to effective assistance of counsel at “‘critical

stages of a criminal proceeding,’ including when he enters a guilty plea.” Lee v.

United States, 

, 

, 

 (2017), quoting

Lafler v. Cooper, 

, 

, 

 (2012); Hill v.

Lockhart, 

, 

, 

 (1985). To establish

ineffective assistance of counsel, a defendant must demonstrate (1) deficient

performance by counsel, i.e., that counsel’s performance fell below an objective

standard of reasonable representation; and (2) that counsel’s errors prejudiced the

defendant, i.e., a reasonable probability that but for counsel’s errors, the outcome

would have been different. Strickland v. Washington, 

,

, 

 (1984); State v. Bradley, 

, 

 (1989), paragraphs two and three of the syllabus.            “Reasonable

probability” is “probability sufficient to undermine confidence in the outcome.”

.

              When a defendant enters a guilty plea, he waives a claim of ineffective

assistance of counsel except to the extent that ineffective assistance of counsel

caused the defendant’s plea to be less than knowing, intelligent, and voluntary.

State v. Vinson, 

, 

, ¶ 30 (8th Dist.); State v.

Williams, 8th Dist. Cuyahoga No. 100459, 

. To prevail on an

ineffective assistance of counsel claim in such circumstances, the defendant must
show that he was prejudiced by demonstrating a reasonable probability that but for

counsel’s errors, he would not have pled guilty to the charged offenses and would

have instead insisted on going to trial. Houk, 8th Dist. Cuyahoga No. 110115, 2021-

Ohio-2107, at ¶ 20, citing Vinson at ¶ 30; State v. Xie, 

, 

 (1992); 

.

              In Ohio, every properly licensed attorney is presumed to be

competent, and a defendant claiming ineffective assistance of counsel bears the

burden of proof. State v. Black, 

, 

, ¶ 35 (8th Dist.),

citing State v. Smith, 

, 

 (1985). When

evaluating counsel’s performance on an ineffective assistance of counsel claim, the

court “must indulge a strong presumption” that counsel’s performance “falls within

the wide range of reasonable professional assistance.” 

; see State

v. Powell, 

, 

, ¶ 69 (8th Dist.), quoting State v.

Pawlak, 8th Dist. Cuyahoga No. 99555, 

 (“‘A reviewing court

will strongly presume that counsel rendered adequate assistance and made all

significant decisions in the exercise of reasonable professional judgment.’”).

              Apart from the affidavits Davis attached to his motion, the record

contains no other evidence recounting the events leading to Phillips’s death. Nor

does the record show that Davis informed his attorneys about Felder, Mercer, and

Rhoades or that his attorneys knew about these particular witnesses and simply

failed to interview them. See State v. Roberts, 8th Dist. Cuyahoga No. 69310, 

, 5 (May 9, 1996), citing State v. Clayton, 

, 

 (1980) (“[W]hen there is no demonstration that counsel failed

to research the facts or the law, or that he was ignorant of a crucial defense and

counsel makes a tactical choice, the reviewing court defers to counsel’s judgment in

the matter.”). As noted above, the affidavits attached to Davis’s motion do not

support a viable self-defense claim. Failure to assert an unviable defense does not

constitute ineffective assistance. See id. at 5-6; see also State v. Chambers, 8th Dist.

Cuyahoga No. 66962, 

, 7 (July 6, 1995), citing State v.

Brown, 

, 

 (1988) (“When defense counsel

chooses, for strategic reasons, not to pursue every possible trial tactic, he is not

violating an essential duty to his client.”).

               Moreover, nothing in the affidavits attached to Davis’s motion shows

that Davis was prejudiced by his plea. A prejudice inquiry requires analysis of

several factors supporting or rebutting the defendant’s contention that he would not

have entered the plea and insisted on going to trial. State v. Porter, 8th Dist.

Cuyahoga No. 106032, 

, ¶ 17. Such factors include “the benefits

associated with the plea, the possible punishments involved, the weight of the

evidence against the defendant.” 

 The plea agreement reduced the aggravated

murder charge to voluntary manslaughter. Had the matter been tried to a jury,

Davis would be facing life in prison. Instead, Davis’s two counsel negotiated a

definite term of 18 years in exchange for his guilty plea.

               Davis moved to withdraw his guilty plea nearly five years after his

conviction. Given this delay, the trial court concluded that affidavits attached to the
motion were of “questionable evidentiary value.” Crim.R. 32.1 does not provide an

express time limit for moving to withdraw a plea after a sentence is imposed.

However, “‘an undue delay between the occurrence of the alleged cause for

withdrawal and the filing of the motion is a factor adversely affecting the credibility

of the movant and militating against the granting of the motion.’” Straley, 

, 

, 

, at ¶ 15, quoting Smith, 

, 

, and Oksanen v. United States, 

 (8th Cir.1966).

               The nearly five-year delay between Davis’s sentencing and motion

adversely affects Davis’s credibility and militates against granting the requested

relief. This court has previously found no abuse of discretion following delays of the

same or shorter duration. See State v. Ritchie, 8th Dist. Cuyahoga No. 109493,

 (three years); State v. Heise, 8th Dist. Cuyahoga Nos. 108286

and 108776, 

 (two years); State v. Ladson, 8th Dist. Cuyahoga

No. 102914, 

, ¶ 8 (five years). Davis requested an evidentiary

hearing in part to explain his delay in filing the motion. However, Davis did not

need a hearing to explain the delay. He could have done so in the motion.

               To withdraw his guilty plea, Davis must show manifest injustice

“evidenced by ‘an extraordinary and fundamental flaw in the plea proceeding.’”

McElroy, 8th Dist. Cuyahoga Nos. 104639, 104640, and 104641, 

,

at ¶ 30, quoting Hamilton, 8th Dist. Cuyahoga No. 90141, 

.

Davis has not met this burden. Based upon the limited record before us, Davis failed

to demonstrate by specific facts in the record or the supporting affidavits attached
to his motion that he had a viable self-defense claim that would require an

evidentiary hearing on the motion. Davis has also failed to demonstrate that he

received ineffective assistance of counsel that caused his guilty plea to be

unknowing, unintelligent, and involuntary.     The trial court’s denial of Davis’s

motion as insufficient, incomplete, and untimely was not unreasonable, arbitrary,

or unconscionable. Accordingly, the trial court did not abuse its discretion in

denying Davis’s motion without an evidentiary hearing.         See Said, 8th Dist.

Cuyahoga Nos. 110090 and 110288, 

, at ¶ 37, citing Houk, 8th Dist.

Cuyahoga No. 110115, 

, Ritchie at ¶ 17, 24, and Vihtelic, 8th

Dist. Cuyahoga No. 105381, 

, at ¶ 11.

              Davis’s sole assignment of error is overruled.

              Judgment affirmed.

      It is ordered that appellee recover from appellant 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

common pleas court 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.



MARY J. BOYLE, ADMINISTRATIVE JUDGE

KATHLEEN ANN KEOUGH, J., and
EILEEN T. GALLAGHER, J., CONCUR