[Cite as State v. Davis,
2024-Ohio-5275.]
COURT OF APPEALS
RICHLAND COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO JUDGES:
Hon. John W. Wise, P.J.
Plaintiff-Appellee Hon. Craig R. Baldwin, J.
Hon. Andrew J. King, J.
-vsCase No. 2024 CA 0002
DAISHAUN DAVIS
Defendant-Appellant OPINION
CHARACTER OF PROCEEDING: Criminal Appeal from the Court of Common
Pleas, Case No. 2023 CR 0478R
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: November 4, 2024
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JODIE M. SCHUMACHER TODD W. BARSTOW
PROSECUTING ATTORNEY 261 West Johnstown Road
MEGAN HOBART Suite 204
ASSISTANT PROSECUTOR Columbus, Ohio 43230
38 South Park Street
Mansfield, Ohio 44902
Richland County, Case No. 2024 CA 0002 2
Wise, P. J.
{¶1} Appellant, Daishuan Davis, appeals his conviction of one count of having
weapons under disability based on fugitive from justice status. Appellee is the State of
Ohio.
FACTS AND PROCEDURAL BACKGROUND
{¶2} On June 28, 2023, Officer Blake Bammann of the City of Mansfield Police
Department filed a complaint charging appellant Daishuan Davis with having weapons
under disability, a violation of R.C. 2903.13(A)(1) [F3].
{¶3} As grounds for the charge, Officer Bammann alleged that Davis had an
active warrant out of the Mansfield Police Department and when he approached Davis to
make an arrest based on the active warrant, Davis ran and was caught behind the
residence. Davis was in possession of a loaded .38 caliber Smith & Wesson Victory
revolver in his waistband. Complaint and Affidavit filed June 27, 2023. Probable cause
was found at a preliminary hearing, and the case was bound over to the Richland County
Common Pleas Court.
{¶4} The August 23, 2023 term of the Richland County Grand Jury indicted Davis
on three counts: to wit: Count One, Having Weapons under Disability, with a forfeiture
specification of a Smith & Wesson revolver [F3]; Count Two, Using Weapons while
intoxicated with a forfeiture specification [M1]; and, Count Three, Obstructing Official
Business [M2].
{¶5} Relevant here, Count One states:
Daishuan Davis, on or about the 26th day of June, 2023 at the county
of Richland aforesaid, did knowingly acquire, have, carry, or use a firearm
Richland County, Case No. 2024 CA 00002 3
or dangerous ordnance and he is a fugitive from justice in violation of Ohio
Revised Code Section 2923.13(A)(1), 2923.13(B), Having Weapons While
Under Disability, a felony of the third degree.
{¶6} Davis pled not guilty at his arraignment and counsel was appointed to
represent him. Davis filed a request for discovery, and the state responded with
documents delivered via web portal. Response to Defendant’s Request for Discovery,
Sept. 1, 2023.1
{¶7} Defendant’s counsel filed no pre-trial motions challenging the indictment.
{¶8} On November 8, 2023, Davis appeared before the trial court and changed
his plea to all of the charges from not guilty to no contest. The following exchange took
place at the plea hearing:
[COURT]: I think, Attorney Dilts, the plan was to plead to the
charge, plead no contest, and then he could appeal any issues if he so
desires. And I was looking at community control for him so long as he
continues to behave between now and his sentencing date. Is that your
understanding?
[DILTS]: Yes, Your Honor. As the Court is well aware, this is
one where his disability was an unknown disability to him. He had not been
served with any documentation. In fact, a warrant had been issued on a
summons that had never been served. So, I mean, that was our
1 While the response shows that a Bill of Particulars was attached to court filing and
delivered via web portal, no Bill of Particulars is in the record.
Richland County, Case No. 2024 CA 00002 4
understanding, is that he should have had at least some sort of notice, and
that’s why he wanted to plead no contest.
[COURT]: Okay.
[DILTS]: But we do acknowledge that, yes, he had the firearm in
his possession, although he didn’t know that was a crime. Tr. Plea, at 8-9.
{¶9} The trial court then stated the particulars of the charges:
[COURT]: They say on June 26th, 2023, the Mansfield Police
Department saw you at 100 Blymer Avenue in Mansfield. I guess the police
knew about the warrant. They said you did flee. They chased you, caught
you, and you had a loaded revolver in your waistband. So when you plead
no contest, you’re telling me that, yeah, you had the weapon. At the time,
they say you were intoxicated, you had been drinking or something of that
nature, and when they told you to stop, you ran. Is that all correct?
[DAVIS]: Well, I had the weapon.
[COURT] Okay. All right. So I guess, Attorney Dilts, he would
stipulate that at least to the finding for the no-contest plea?
[DILTS]: Yes. Tr. Plea at 10.
.. .
[COURT]: How do you plead to the three charges?
[DAVIS]: No contest.
Tr. Plea at 12.
{¶10} Davis signed a Crim.R. 11 Judgment Entry that same date acknowledging
his plea of no contest to the three indicted charges. Judgment Entry, Nov. 9, 2023.
Richland County, Case No. 2024 CA 00002 5
{¶11} The appellant returned to the trial court for sentencing on November 23,
2023.
[COURT]: Attorney Dilts, thoughts on his case?
[DILTS]: Your Honor, as the Court knows, we allowed him to do
a no-contest plea so he could decide whether or not he wanted to take up
the issue because he was unaware of the warrant. And I believe everybody
knows that is not a falsehood. I mean, he has never been served, he has
never been told. So that was the reason for the no-contest plea. Tr.
Sentencing at 13-14.
{¶12} Appellant was sentenced to 36 months of community control and if he
violates, a prison sentence of 36 months with post release control. Tr. Sentencing at 15,
Sentencing Entry, Nov. 30, 2023.
{¶13} On January 12, 2024, appellant was appointed counsel by the trial court to
represent him in an appeal. Judgment Entry, Appointment of Counsel, Jan. 12, 2024.
{¶14} Appellant was granted leave to file a delayed appeal by this Court.
{¶15} Appellant appeals his conviction of weapons under disability and alleges
one assignment of error:
ASSIGNMENT OF ERROR
{¶16} “I. APPELLANT’S TRIAL COUNSEL WAS INEFFECTIVE, THEREBY
DENYING HIM HIS RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL, AS
GUARANTEED BY THE UNITED STATES AND OHIO CONSTITUTIONS. (T. 11/8/23;
R. ENTRY 11/30/23) “
Richland County, Case No. 2024 CA 00002 6
{¶17} In his sole assignment of error, appellant claims that his trial counsel was
ineffective in failing to challenge the charge of weapons under disability. We agree.
Ineffective Assistance of Counsel Claim in Plea Process
{¶18} In this case, Davis contends that his trial counsel was ineffective in advising
him to plead no contest in order to preserve his appeal of the “fugitive from justice”
component of the weapons under disability charge. We review this claim under an abuse
of discretion standard.
{¶19} When a defendant alleges ineffective assistance of counsel arising from the
plea process, the defendant must meet the now familiar two-prong test set out in
Strickland v. Washington, 466 U.S. 668 (1984). State vs. Romero,
2019-Ohio-1839, ¶
14.
{¶20} First, the defendant must show that counsel’s performance was deficient.
Second, the defendant must demonstrate prejudice resulting from counsel’s deficient
performance. “The defendant can show prejudice by demonstrating a reasonable
probability that, but for counsel’s errors, he would not have pleaded guilty and would have
insisted on going to trial.” Id. at ¶ 16, quoting Hill v. Lockhart, 474 U.S. 52 (1985); State
v. Xie,
62 Ohio St.3d 521.
{¶21} The state argues that because Davis acknowledges that his plea was
knowing, voluntary and intelligent, he waived his claim that counsel was ineffective. But
whether the plea was entered knowingly and voluntarily is not the correct legal analysis.
{¶22} Counsel’s duty to provide competent advice during plea proceedings arises
from the constitutional guarantees afforded by the Sixth Amendment right to counsel, not
the constitutional guarantee of due process. “The focus is on counsel’s deficient
Richland County, Case No. 2024 CA 00002 7
performance and the prejudice arising from that deficiency.” State v. Romero, supra, at
¶18.
Effect of No Contest Plea
{¶23} A no-contest plea differs from a guilty plea and “does not preclude a
defendant from asserting upon appeal that the trial court prejudicially erred in ruling on a
pretrial motion, including a pretrial motion to suppress evidence.” Crim.R. 12(l), State v.
Beasley, 2018-Ohio-16, ¶ 15. Under Crim.R. 12(C)(2), a trial court may judge before trial
whether an indictment is defective. State v. Parker,
2023-Ohio-2127, ¶ 19 (5th Dist.).
{¶24} A plea of no-contest, however, is an admission to the truth of the facts
contained in the indictment. State v. Bird, 1998-Ohio-606, syllabus (“Where the
indictment, information, or complaint contains sufficient allegations to state a felony
offense and the defendant pleads no contest, the court must find the defendant guilty of
the charged offense. (State ex rel. Stern v. Mascio (1996),
75 Ohio St.3d 422, 425,
662
N.E.2d 370, 373, followed.”).
{¶25} By pleading no-contest, Davis relieved the state from proving the elements
of weapons from disability as a fugitive from justice. The burden rests on the state to
prove beyond a reasonable doubt that a defendant qualified as a fugitive from justice. In
re: J.T., 2014-Ohio-5062 ¶ 22 (1st Dist.).
Davis meets the deficient-performance prong of Strickland
{¶26} Under the first prong of Strickland, we consider whether Davis’ trial counsel
satisfied his duty to advise his client about the effect of a no-contest plea.
Richland County, Case No. 2024 CA 00002 8
{¶27} To meet his advice obligation, it was necessary for Davis’ trial counsel to
determine the law regarding a no-contest plea and what it preserved and did not preserve
for appeal.
{¶28} The record demonstrates that defense counsel was under the mistaken
impression that by pleading no-contest, Davis was preserving his right to appeal the
circumstances of his status as a fugitive from justice.
{¶29} Instead of providing correct and succinct advice, Davis’ trial counsel gave
him the false assurance that a no-contest plea would preserve his right to challenge the
charge of weapons under disability.
{¶30} Accordingly, we find that the deficient performance prong of Strickland was
satisfied.
Davis meets the second prong of Strickland
{¶31} Under the second prong of Strickland, Davis must show that “there is a
reasonable probability that, but for counsel’s errors, he would not have pleaded no-
contest, and would have insisted on going to trial.” State v. Romero, supra, at ¶ 28.
{¶32} In order to consider whether prejudice resulted from trial counsel’s advice
to enter a no contest plea, we must look to the case law defining a fugitive from justice.
{¶33} R.C. 2923.13(A)(1) describes the crime of having weapons while under
disability and states:
Unless relieved from disability under operation of law or legal
process, no person shall knowingly acquire, have, carry, or use any firearm
or dangerous ordnance if . . . [t]he person is a fugitive from justice.
Richland County, Case No. 2024 CA 00002 9
{¶34} This Court has defined a fugitive from justice in State v. Hall, 2005-Ohio-
167:
A fugitive from justice is a person who (1) is suspected of or has been
convicted of a crime; (2) is sought by the jurisdiction so that he may be
subjected to its criminal system and (3) has left the jurisdiction and is found
within the boundaries of another. ¶ 14 citing State v. Adkins, 80 Ohio App.
3d 817, 821 (9th Dist., 1992).
{¶35} In this case, the record contains a complaint and affidavit filed by a police
officer from the City of Mansfield that forms the basis for the felony weapons under
disability charge. That complaint and affidavit state it was based on an active warrant
from Mansfield Police Department.
{¶36} Based on that information, Davis does not meet the definition of fugitive
from justice. The record establishes that Davis did not flee the jurisdiction and was not
found within the boundaries of another. The prior warrant was from Mansfield Police
Department and Davis was found in Mansfield in the same jurisdiction from which the
warrant was issued when he was arrested as a fugitive from justice.2
{¶37} In State v. Parker, 2023-Ohio-2127, (5th Dist.), this court affirmed the trial
court’s granting a motion to dismiss an indictment on a charge of weapons under disability
based on fugitive from justice.
2The Eighth District Court of Appeals in State v. March,
2019-Ohio-2001 (8th Dist.) has
held that the fugitive from justice component of weapons under disability requires that
defendant have knowledge that he is being sought by police in connection with the
offense. Our Court has not yet made that part of the definition.
Richland County, Case No. 2024 CA 00002 10
{¶38} The defendant was charged with weapons under disability. Her fugitive
status was based on a warrant out of Portage County. The state offered nothing in terms
of why the warrant was issued, when it was issued, or in connection with what charge.
{¶39} The defendant filed a motion to dismiss under Crim. R. 12(C)(2) alleging
that the defendant’s conduct was constitutionally protected under the Second
Amendment and New York State Rifle & Pistol Association Inc. v. Bruen, 142 S. Ct. 2111,
2126 (2022).
{¶40} The trial court granted defendant’s motion to dismiss the indictment and the
state appealed.
{¶41} This Court affirmed the decision of the trial court saying:
The statement of facts in support of the felony complaint states in
pertinent part, ‘Dispatch advised the Officer that Parker had an active
warrant for possession out of Portage County. Parker admitted she was
aware of the warrant and consented to a search of her vehicle.’ This
identical statement is repeated in appellant’s bill of particular filed June 9,
2022. We are left to ask what is an ‘active warrant for possession out of
Portage County?’ The trial court found, and we agree, that appellant did
not establish that an active warrant for possession out of Portage County
supports restrictions on appellee’s Second Amendment right such that the
statutes as applied to her are consistent with the Nation’s historical tradition
of firearm regulation. Id. at ¶ 33.
{¶42} In short, the case law from this Court does not support Davis’ charge of
weapons under disability based on fugitive status. “In fact, we are unaware of any case
Richland County, Case No. 2024 CA 00002 11
where the simple existence of a warrant justified a conclusion that the defendant qualified
as a fugitive from justice.” In re. J.H., 2022-Ohio-3987, ¶ 12 (1st Dist.).
{¶43} In this case, we find that the second prong of Strickland has been met. Trial
counsel’s failure to accurately advise Davis that a no-contest plea did not protect his ability
to appeal the weapons under disability charge prejudiced his ability to receive a fair and
reliable trial.
{¶44} Appellant’s assignment of error is sustained.
CONCLUSION
{¶45} For the reasons stated, the judgment of the Court of Common Pleas of
Richland County, Ohio is reversed and the cause is remanded to the court to allow Davis
to enter a new plea to the charge of weapons under disability.
{¶46} Judgment reversed and cause remanded.
By: Wise, P. J.
Baldwin, J., concurs.
King, J., concurs separately.
JWW/kt 1018
Richland County, Case No. 2024 CA 00002 12
Judge King concurs separately,
{¶ 47} I join the court's opinion and judgment in full. I write separately, as I did in
State v. Jenkins, 2024-Ohio-1094 (5th Dist.), to address some of the lurking issues with
this section of the statute in light of the new rule announced in New York State Rifle and
Pistol Association, Inc. v. Bruen,
597 U.S. 1 (2022). I see at least three issues that trial
courts will need to consider when facing a challenge under R.C. 2923.13(A)(1).
{¶ 48} First, a trial court must be careful to make a proper record when accepting
a plea under R.C. 2923.13. In two of our previous cases, we reviewed a Second
Amendment challenge after a no contest plea but following a motion to dismiss. State v.
Skaggs, 2024-Ohio-4781 (5th Dist.) (King, J., dissenting); State v. Striblin, 2024-Ohio-
2142 (5th Dist.). Those reviews were straightforward because Crim.R. 12(I) allows us to
consider the denial of motions on appeal. Here, we reverse because of ineffective
assistance of counsel.
{¶ 49} Beyond these situations, trial courts should take special care anytime the
right to keep and bear firearms is implicated. Among the reasons is Supreme Court
precedent that allows Second Amendment challenges to the constitutionality of the
statute to proceed even after a guilty plea. Class v. United States, 583 U.S. 174 (2018).
{¶ 50} In Class, the defendant pleaded guilty under 40 U.S.C. 5104(e)(1) for
having a firearm in his vehicle which was parked on U.S. Capitol Grounds. Before
pleading guilty, he made both a due process claim and a Second Amendment challenge.
At its most basic, his claim was he lacked fair notice that firearms were banned where he
parked. He appealed to the D.C. Circuit which held he could not appeal those claims after
pleading guilty.
Richland County, Case No. 2024 CA 00002 13
{¶ 51} The Supreme Court reversed the D.C. Circuit, re-affirming the Menna-
Blackledge doctrine.3 The doctrine allows constitutional challenges to proceed on appeal
after a guilty plea if, judged on the face of the record, a successful claim would extinguish
the government's power to prosecute the case. Class at 179. Although Class dealt with a
federal prosecution, both Menna and Blackledge originated with state prosecutions,
demonstrating the rule applies to state prosecutions.
{¶ 52} The Menna-Blackledge doctrine is not an issue that often comes up for state
trial courts. But with its clear connection to the Second Amendment, courts should ensure
it makes a proper record to sustain the conviction—even after a guilty plea. Whether or
not a guilty plea would terminate claims under state law is beside the point under Menna-
Blackledge. This issue dovetails with my second point. Bruen, as a matter of federal
constitutional law, puts the burden on the state to show the challenged regulation is
consistent with our nation's tradition of firearm regulations. Striblin, 2024-Ohio-2141, at ¶
23 (5th Dist.), citing Bruen,
142 S.Ct. 2111, 2126. In Ohio, we usually apply the standard
that a challenger must demonstrate beyond a reasonable doubt the statute is
unconstitutional. State v. Noling,
2013-Ohio-1764, ¶ 25. In contrast, this challenge under
a federal right brings with it the standard of review established by the Supreme Court of
the United States—not our usual state imposed standard.
{¶ 53} A possible reason for this federally mandated standard is because prior to
Bruen, the Supreme Court's Second Amendment precedent was largely ignored by lower
courts. Nino Monea, State Constitutional Rights to Bear Arms Ten Years After
Heller/McDonald, 82 U.Pitt.L.Rev. 2021 (2021) (the author reviewed 800 state court
3Menna v. New York, 423 U.S. 61 (1975); Blackledge v. Perry,
417 U.S. 21 (1974).
Richland County, Case No. 2024 CA 00002 14
decisions and found little impact); Ruben & Blocher, From Theory to Doctrine: An
Empirical Analysis of the Right to Keep and Bear Arms After Heller,
67 Duke L.J. 1433,
1475 (2018) (finding only about an 8% success rate of challengers in the federal appellate
circuits). If that was indeed a reason for the rule the Supreme Court supplied in Bruen,
then we should take special care to adhere to it. Irrespective of the reason, Article VI of
the United States Constitution requires state judges to afford federal law a superior
function over state law. This necessarily means we must hold the state to its burden. So,
the state must ensure that the record properly reflects it discharged its obligation to carry
the burden in order to be successful on appeal.
{¶ 54} Finally, I have concerns about whether our prior precedent can be
maintained after Bruen. Before turning to our standard, the issue not before us today is
whether section (A)(1) is constitutional, and that question deserves a full briefing on that
subject before issuing a ruling. But a brief examination is in order. The recent case of
United States v. Rahimi, 602 U.S. ___,
144 S.Ct. 1889 (2024), revolved around the
principal that emerged from the "going armed laws." There are at least similarities
between section (A)(1) and the principal undergirding Rahimi, which might be enough to
sustain it.
{¶ 55} But one obvious distinction is that the statutory scheme in Rahimi provided
for notice and an opportunity to be heard prior to a judicial determination that would disarm
the person in question. R.C. 2923.13(A)(2), (3), and (5) provides for such a judicial
determination before a person can be disarmed. See Skaggs, 2024-Ohio-4781, ¶ 57 (5th
Dist.) (King, J., dissenting). Today we need not reach the question of whether absence of
a judicial determination may be fatal to R.C. 2923.13(A)(1). But, if nothing else, to deprive
Richland County, Case No. 2024 CA 00002 15
someone of their constitutional right, we must be sure that person has fair notice. And
that is the thrust of my point here.
{¶ 56} In writing for the court, Judge Wise cites to Hall, which discussed our
standard. As I see it, now that the right to keep and bear arms is properly understood as
an individual right protected by the federal constitution, we must ensure that people
whose right is impaired by legislation receive fair notice before a criminal prosecution.
See e.g., Snyder v. United States, ___ U.S. ___, 144 S.Ct. 1947 (2024) (the Supreme
Court discussed at length the need for fair notice in criminal statutes) and State v. Collier,
62 Ohio St. 3d 267, 270 (1991).
{¶ 57} The problem with our current standard is illustrated by this case: it imposes
criminal liability without ensuring fair notice to the defendant. In contrast to our rule, other
districts have adopted constructions of section (A)(1) that require a showing that a
defendant knew or should have known of the defendant's fugitive status. State v. March,
2019-Ohio-2001, ¶ 21 (8th Dist.); State v. Cherry,
2007-Ohio-2133, ¶ 21 (2d Dist.); see
also In re J.H.,
2022-Ohio-3987, ¶ 11 (1st Dist.). Because the result today does not
require us to overrule our current precedent, I join in full. But I maintain doubt our present
standard can be maintained.
