State of Ohio v. Bradford S. Davic

Columbus, OH - Criminal defense attorney represented Bradford S. Davic with four counts of rape, one count of importuning, and one count of gross sexual imposition.

On April 13, 2011, appellant pled guilty to four counts of rape, one count of

importuning, and one count of gross sexual imposition. The guilty plea arose from a sexual

encounter appellant arranged with a 12-year-old girl. Based on his plea, the trial court

sentenced appellant to ten years to life on each of the four rape counts, eight years on the

importuning count, and five years on the gross sexual imposition count. The court ordered

the sentences for the four rape counts to be served consecutively to each other and

concurrently to the sentences on the importuning and gross sexual imposition counts.

Because the rape victim was less than 13 years old, the sentence on each of the rape counts

carried a lifetime of incarceration. Appellant's aggregate sentence was 40 years to life. The

trial court memorialized its judgment and sentence on May 24, 2011.

{¶ 4} Appellant, through counsel, timely appealed his conviction and sentence,

arguing that (1) his guilty plea was not entered knowingly, voluntarily, and intelligently

because he misunderstood the terms of the plea agreement regarding his sentence, and

(2) the trial court abused its discretion by imposing consecutive sentences on the rape

counts. This court rejected both arguments, concluding that appellant failed to establish

that he did not understand the sentence he was facing when the trial court accepted his

guilty plea and that the trial court did not abuse its discretion in failing to merge the rape

offenses. Davic I at ¶ 7-11.

{¶ 5} In November 2014, appellant, pro se, filed a motion to correct the May 24,

2011 sentencing entry to accurately reflect that the trial court had not advised him at the

plea hearing that he would be classified as a Tier III sex offender. Resolution of that motion

languished until 2017 due to changes in the common pleas bench.

{¶ 6} Meanwhile, on August 6, 2015, appellant, pro se, moved for resentencing,

arguing that his sentence was void because the trial court failed to advise him at the

sentencing hearing that he would be (1) classified a Tier III sex offender, and (2) subject to

mandatory post-release control. The trial court denied the motion; appellant appealed.

This court affirmed, finding that because the trial court properly advised appellant of those

matters, his sentence was not void. Davic II at ¶ 5, 19, 24.

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{¶ 7} On April 26, 2017, the trial court denied appellant's November 2014 motion

to correct the judgment entry. Appellant appealed, arguing that the judgment entry was

never properly journalized because it failed to include his Tier III sex offender classification

and, as a result, the entry was not a final appealable order. Therefore, argued appellant,

this court lacked jurisdiction to consider his appeal in Davic I. We acknowledged that the

trial court did not expressly journalize appellant's sex offender classification; however, we

concluded that because appellant had been notified of said classification at the sentencing

hearing, the failure to journalize it was not a substantive error. As such, the order was final

and correctible by nunc pro tunc entry. Davic III at ¶ 9-18. We further noted the trial

court's inaccurate statement in the judgment entry that appellant had been notified of his

sex offender classification during the plea hearing, when, in fact, the first mention of the

classification occurred at sentencing. Id. at ¶ 19. We found the error to be harmless given

appellant's failure to allege that he would not have entered into the plea agreement but for

the trial court's failure to provide him with notification at the plea hearing. However, we

remanded the matter to the trial court to issue a nunc pro tunc sentencing entry to

accurately reflect appellant's classification as a Tier III sex offender and remove the

inaccurate statement that the trial court advised him of that classification during the plea

hearing. Id. at ¶ 22.

{¶ 8} The trial court issued a nunc pro tunc entry in accordance with our remand

order. On May 24, 2018, appellant filed a pro se motion asserting that the original

judgment entry of May 24, 2011 was not a final appealable order because the trial court

failed to impose separate sex offender classifications and terms of post-release control on

each of the counts for which he was convicted. Following the trial court's denial of that

motion, appellant argued on appeal that res judicata was inapplicable because the trial

court's errors rendered the original judgment entry void, making our decisions in Davic I,

II, and III legally invalid. This court found no error in the trial court's blanket notifications

regarding the sex offender classification and post-release control. We further found

"[appellant's] judgment of conviction is not void in whole or in part and thus there is no

effect to the validity of our prior appellate judgments concerning his sentence." Davic IV

at ¶ 16.

No. 19AP-579 4

{¶ 9} On April 2, 2019, appellant, pro se, filed in the trial court the motion that is

the subject of the present appeal. In this filing, captioned as "Motion to Vacate Void Plea

Agreement," appellant claimed that his plea agreement was void because the trial court

failed to advise him at the plea hearing that he would be (1) sentenced to consecutive prison

terms on the rape counts, (2) classified as a Tier III sex offender, and (3) subject to five

years' mandatory post-release control. In a decision and entry issued on August 1, 2019,

the trial court, construing appellant's motion as a Crim.R. 32.1 motion to withdraw his

guilty plea, denied said motion without holding a hearing. Specifically, the court found that

appellant's motion was barred by res judicata, was untimely, and failed to establish

manifest injustice.1

{¶ 10} Appellant appeals and advances the following nine assignments of error for

our review:

[I]. The trial erred in construing Davic's Motion to Vacate

Void Plea Agreement as a motion to withdraw his plea, and

denying the motion on that basis, in violation of his Due

Process protections under the Fifth and Fourteenth

Amendments to the U.S. Constitution and Article I, Section §

10 of the Ohio Constitution.

[II]. Where the trial court failed to inform Davic that the four

counts of rape to which he would plead guilty carried

mandatory consecutive sentences pursuant to R.C.

2971.03(E), his plea was not entered knowingly, intelligently,

and voluntarily, which violated his Due Process protections

under the Fifth and Fourteenth Amendments to the U.S.

Constitution and Article I, Section § 10 of the Ohio

Constitution.

[III]. Where the trial court failed to inform Davic that one of

the consequences of his pleading guilty would be lifetime

registration as a Tier III sex offender, his plea was not entered

knowingly, intelligently, and voluntarily, which violated his

Due Process protections under the Fifth and Fourteenth

Amendments to the U.S. Constitution and Article I, Section

§ 10 of the Ohio Constitution.

[IV]. Where the trial court failed to personally inform Davic

that one of the consequences of his pleading guilty would be a



1 In the same decision and entry, the trial court also denied appellant's April 11, 2019 motion for

resentencing. Appellant has not asserted error in that denial.

No. 19AP-579 5

mandatory five-year term of post-release control, his plea was

not entered knowingly, intelligently, and voluntarily, which

violated his Due Process protections under the Fifth and

Fourteenth Amendments to the U.S. Constitution and Article

I, Section § 10 of the Ohio Constitution.

[V]. The trial court erred in finding Davic's guilty plea to be

voidable, not void, violating Davic's Due Process protections

under the Fifth and Fourteenth Amendments to the U.S.

Constitution and Article I, Section § 10 of the Ohio

Constitution.

[VI]. Davic's plea agreement did not constitute a valid,

enforceable contract, in violation of his Due Process

protections under the Fifth and Fourteenth Amendments to

the U.S. Constitution and Article I, Section § 10 of the Ohio

Constitution.

[VII]. The trial court erred in using res judicata to deny

Davic's Motion to Vacate Void Plea Agreement, violating his

Due Process protections under the Fifth and Fourteenth

Amendments to the U.S. Constitution and Article I, Section

§ 10 of the Ohio Constitution.

[VIII]. Davic received ineffective assistance of trial counsel in

violation of the Sixth Amendment to the U.S. Constitution and

Article I, Section § 10 of the Ohio Constitution.

[IX]. The trial court erred in dismissing Davic's Motion to

Vacate Void Plea Agreement without first holding an

evidentiary hearing, violating his Due Process protections

under the Fourteenth Amendment to the U.S. Constitution

and Article I, Section § 10 of the Ohio Constitution.

{¶ 11} Appellant's first assignment of error contends that the trial court erred in

construing his "Motion to Vacate Void Plea Agreement" as a Crim.R. 32.1 motion to

withdraw a guilty plea. However, appellant asserts in his reply brief that he has withdrawn

this assignment of error. Accordingly, we need not address it.

{¶ 12} Appellant having acknowledged the trial court's proper characterization of

his motion as a Crim.R. 32.1 motion to withdraw a guilty plea, we set forth the applicable

standard of review. Crim.R. 32.1 permits a motion to withdraw a guilty plea " '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.' " State

No. 19AP-579 6

v. Lowe, 10th Dist. No. 14AP-481, 2015-Ohio-382, ¶ 6, quoting State v. Williams, 10th Dist.

No. 03AP-1214, 2004-Ohio-6123, ¶ 5. " 'Manifest injustice relates to some fundamental

flaw in the proceedings which result[s] in a miscarriage of justice or is inconsistent with the

demands of due process.' " Id. at ¶ 6, quoting Williams at ¶ 5. Under the manifest injustice

standard, a post-sentence motion to withdraw a guilty plea is available only in

extraordinary circumstances. State v. Honaker, 10th Dist. No. 04AP-146, 2004-Ohio6256, ¶ 7, citing State v. Smith, 49 Ohio St.2d 261, 264 (1977).

{¶ 13} A Crim.R. 32.1 motion is generally addressed to the sound discretion of the

trial court. Lowe at ¶ 7, citing Smith at paragraph two of the syllabus. Therefore, "an

appellate court will ordinarily not reverse a trial court's denial of a motion to withdraw a

guilty plea absent an abuse of discretion." Id., citing State v. Totten, 10th Dist. No. 05AP278, 2005-Ohio-6210, ¶ 5.

{¶ 14} However, an appellate court reviews questions of law, including whether a

trial court has subject-matter jurisdiction to consider a motion to withdraw a guilty plea,

under a de novo standard. State v. West, 10th Dist. No. 15AP-858, 2016-Ohio-7864, ¶ 23.

Moreover, an appellate court may sua sponte review a trial court's jurisdiction to entertain

a motion to withdraw a plea. State v. Vild, 8th Dist. No. 87742, 2007-Ohio-987, ¶ 12.

{¶ 15} Appellant's second through ninth assignments of error are interrelated and

will be considered together. In them, appellant asserts that the trial court committed

various errors related to the denial of his motion to withdraw his guilty plea. For the

following reasons, we conclude that the trial court lacked subject-matter jurisdiction to

consider appellant's motion.

{¶ 16} The Supreme Court of Ohio has determined that "Crim.R. 32.1 does not vest

jurisdiction in the trial court to maintain and determine a motion to withdraw [a] guilty

plea subsequent to an appeal and an affirmance by the appellate court." State ex. rel.

Special Prosecutors v. Judges, Court of Common Pleas, 55 Ohio St.2d 94, 97 (1978).

Intermediate appellate courts, including this court, have applied Special Prosecutors to

conclude that a trial court is without jurisdiction to consider a motion to withdraw a guilty

plea on manifest injustice grounds when an appellant's direct appeal of his or her conviction

has been affirmed. See State v. Enyart, 10th Dist. No. 17AP-507, 2018-Ohio-1071, ¶ 13-16

(citing cases).

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{¶ 17} In his reply brief, appellant acknowledges Special Prosecutors, but argues

that it does not apply to his case. First, appellant contends that this court's decision in

Davic I (his direct appeal) was a "nullity," as we lacked jurisdiction to consider that appeal.

(Appellant's Reply Brief at 6.) As noted above, this court in Davic IV rejected appellant's

jurisdictional argument, finding no merit to his contentions that our decisions in Davic I,

II, and III were legally invalid. Id. at ¶ 16.

{¶ 18} Moreover, the premise underlying appellant's jurisdictional argument, i.e.,

that his guilty plea was void because the trial court failed to comply with the Crim.R.

11(C)(2)(a) requirements for accepting that plea, is inapposite. In State v. Harper, __ Ohio

St.3d __, 2020-Ohio-2913, the Supreme Court of Ohio recalibrated the voidness doctrine,

holding that voidness arises only when a trial court lacks jurisdiction over the subjectmatter of the case or personal jurisdiction over the accused. Id. at ¶ 42. Here, appellant

was properly indicted for crimes committed in Franklin County. Because the Franklin

County Court of Common Pleas had personal and subject-matter jurisdiction over

appellant's plea and sentencing proceedings, the Supreme Court's holding in Harper

establishes that appellant's convictions, entered pursuant to his guilty plea, were not void.

{¶ 19} Secondly, appellant claims that the holding in Special Prosecutors "was

overturned, or at least amended, in State v. Davis, 131 Ohio St. 3d 1 (2011)." (Appellant's

Reply Brief at 7.) In State v. Davis, 131 Ohio St.3d 1 (2011), the Supreme Court of Ohio

stated that "the holding in Special Prosecutors does not bar the trial court's jurisdiction

over posttrial motions permitted by the Ohio Rules of Criminal Procedure. These motions

provide a safety net for defendants who have reasonable grounds to challenge their

convictions and sentences." Id. at ¶ 37. Appellant seizes upon this language in arguing,

without citation to any authority, that "there is no reason the holding would not apply

equally to a Crim.R. 32.1 motion to withdraw (or vacate) a guilty plea. Both are 'posttrial

motions permitted by the Ohio Rules of Criminal Procedure.' " (Appellant's Reply Brief at

7.)

{¶ 20} As appellant acknowledges, Davis involved a post-trial, post-appeal motion

for a new trial under Crim.R. 33 based upon newly discovered evidence and not a Crim.R.

32.1 motion to withdraw a guilty plea. Further, the characterization of a Crim.R. 32.1

motion as a "posttrial motion" for purposes of Davis was considered in State v. Dixon, 2d

No. 19AP-579 8

Dist. No. 2017-CA-80, 2019-Ohio-1385. There, the court noted that "Davis's impact on a

trial court's jurisdiction over a post-sentence, post-appeal plea-withdrawal motion is

subject to debate given that such a motion is not a 'posttrial motion' (because there is no

'trial' on a plea) and Special Prosecutors suggests a trial court lacks jurisdiction over a postappeal plea-withdrawal motion." Id. at ¶ 14, fn. 2.

{¶ 21} We further note that the Supreme Court of Ohio decided Davis prior to our

decision in Enyart, wherein, as previously mentioned, we applied Special Prosecutors in

concluding that a trial court lacks jurisdiction to consider a Crim.R. 32.1 motion to

withdraw a guilty plea on manifest injustice grounds following affirmance of a conviction

on direct appeal. Enyart, 10th Dist. No. 17AP-507, 2018-Ohio-1071, ¶ 13-16. Although this

court undoubtedly was aware of Davis when it decided Enyart, we did not apply the

language cited by appellant to encompass a Crim.R. 32.1 motion to withdraw a guilty plea.

{¶ 22} Given the discussion in Dixon, the Enyart court's reliance on Special

Prosecutors and failure to extend Davis to Crim.R. 32.1 motions to withdraw a guilty pleas,

and appellant's failure to provide this court with definitive authority extending Davis to

such motions, we decline appellant's invitation to do so here.

{¶ 23} As mentioned above, this court affirmed appellant's conviction and sentence

on direct appeal. Davic I. In light of the decision of the Supreme Court in Special

Prosecutors and the decision of this court in Enyart, the trial court did not have jurisdiction

over appellant's motion to withdraw his guilty plea because this court previously affirmed

appellant's conviction and sentence based on that plea.

{¶ 24} For the foregoing reasons, we find that the trial court did not err in denying

appellant's motion to withdraw his guilty plea, albeit for reasons different than those

articulated by the trial court. Appellant's second through ninth assignments of error are

overruled.

Appellant's first assignment of error having been withdrawn, and his second

through ninth assignments of error having been overruled, we hereby affirm the judgment of the Franklin County Court of Common Pleas.