State v. Shivers ( 2016 )

[Cite as State v. Shivers, 2016-Ohio-1378.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103056
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DORJAN SHIVERS
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED, VACATED
AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-584116-A
BEFORE: E.A. Gallagher, P.J., Kilbane, J., and McCormack, J.
RELEASED AND JOURNALIZED: March 31, 2016
ATTORNEYS FOR APPELLANT
Myron P. Watson
614 W. Superior Avenue
Suite No. 1144
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Kevin R. Filiatraut
Christopher D. Schroeder
Assistant Prosecuting Attorneys
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, P.J.:
{¶1} This case came to be heard upon the accelerated calendar pursuant to App.R.
11.1 and Loc.R. 11.1. Defendant-appellant Dorjan Shivers appeals his conviction
following a guilty plea. For the following reasons, we reverse and remand.
Facts and Procedural Background
{¶2} In April 2014, Shivers was charged in a seven-count indictment resulting
from encounters with two female victims on two separate dates. Shivers was charged
with two counts of rape and one count of kidnapping arising from an incident that
occurred on May 18, 2013, in Counts 1 through 3 in addition to two counts of rape, one
count of gross sexual imposition and one count of kidnapping arising from an incident
that occurred on January 11, 2013. Each of the charges included a sexually violent
predator specification and both kidnapping charges included a sexual motivation
specification.
{¶3} On March 11, 2015, Shivers pleaded guilty to kidnapping as amended in
Count 3 and felonious assault as amended in Count 7. Pursuant to the plea agreement, the
sexual motivation specifications and the sexually violent predator specifications were
deleted and the remaining counts were nolled.
{¶4} Prior to sentencing, Shivers retained new counsel and filed a motion to
withdraw his guilty pleas. In support of his motion, Shivers attached his own affidavit
as well as that of a potential witness, Chris White. Shivers claimed that he did not have
the capacity to understand the consequences of his plea due to medication he had been on
at the time of the plea hearing, that his prior counsel failed to effectively assist in his
defense and interview potential witnesses and that he has always maintained his
innocence and, in a supplemental motion to withdraw his guilty plea, Shivers attached an
affidavit of another potential witness, Juran Hill. In his motion, Shivers claimed that he
was not aware of videotaped police interviews of White and himself. He claimed that
the interviews, unbeknownst to him, contained exculpatory information. He also
asserted that his prior counsel never interviewed Juran Hill, a potential witness and the
trial court failed to inform Shivers that his guilty plea would be a complete admission of
guilt.
{¶5} On May 18, 2015, the trial court conducted a hearing on Shivers’ motion to
withdraw his guilty plea. Shivers offered as exhibits the transcript from the plea hearing
and the newly obtained videotaped interrogations of Shivers and White. Shivers argued
that he did not have an opportunity to review the videotaped police interviews prior to
entering his plea because the videos were not provided to his counsel by the state. The
state conceded this discovery violation but argued that Shivers suffered no harm because
he was provided written summaries of the interviews within police reports.
{¶6} The trial court denied Shivers’ motion to withdraw and sentenced him to
concurrent prison terms of four years. Shivers appeals arguing that the trial court erred
and abused its discretion when it denied his motion to vacate his guilty plea.
Law and Analysis
I. Withdrawal of a Guilty Plea
{¶7} The withdrawal of a guilty plea is governed by Crim.R. 32.1, that states:
A motion to withdraw a plea of guilty or no contest 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.
{¶8} The Ohio Supreme Court has held the following regarding presentence
motions to withdraw guilty pleas:
Even though the general rule is that motions to withdraw guilty pleas before
sentencing are to be freely allowed and treated with liberality, * * * still the
decision thereon is within the sound discretion of the trial court. * * * Thus,
unless it is shown that the trial court acted unjustly or unfairly, there is no
abuse of discretion. * * * One who enters a guilty plea has no right to
withdraw it. It is within the sound discretion of the trial court to determine
what circumstances justify granting such a motion. * * *
State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992), quoting Barker v. United States,
579 F.2d 1219 (10th Cir.1978).
{¶9} Accordingly, this court reviews a trial court’s ruling on a presentence motion
to withdraw a guilty plea under an abuse of discretion standard. Xie. This court has held
that a trial court’s denial of a presentence motion to withdraw is not an abuse of
discretion when the record reflects: (1) the defendant is represented by highly competent
counsel, (2) the accused was afforded a full hearing, pursuant to Crim.R. 11, before he
entered the plea, (3) after the motion to withdraw is filed, the accused is given a complete
and impartial hearing on the motion, and (4) the court gives full and fair consideration to
the plea withdrawal request. State v. Peterseim, 68 Ohio App.2d 211, 214, 428 N.E.2d
863 (8th Dist.1980).
{¶10} We have additionally considered factors such as whether the motion was
made timely; whether the motion states specific reasons for withdrawal; whether the
defendant understood the nature of the charges and the possible penalties; whether the
defendant was perhaps not guilty or had a complete defense; whether the state would
suffer prejudice if the defendant is allowed to withdraw the plea. State v. Benson, 8th
Dist. Cuyahoga No. 83718, 2004-Ohio-1677, ¶ 9; State v. Sellers, 10th Dist. Franklin No.
07AP-76, 2007-Ohio-4523, ¶ 34. This list “is not exhaustive, and other factors will appear
to trial and appellate courts depending upon the merits of each individual case.” State v.
Fish, 104 Ohio App.3d 236, 240, 661 N.E.2d 788 (1st Dist.1995).
{¶11} In this instance, there is no dispute that the state failed to turn over
videotaped statements made to the Mayfield Heights Police Department by the appellant
and witness Chris White. Crim.R. 16(B) provides, in relevant part:
Upon receipt of a written demand for discovery by the defendant, and except as
provided in division (C), (D), (E), (F), or (J) of this rule, the prosecuting attorney
shall provide copies or photographs, or permit counsel for the defendant to copy or
photograph, the following items related to the particular case indictment,
information, or complaint, and which are material to the preparation of a defense,
or are intended for use by the prosecuting attorney as evidence at the trial, or were
obtained from or belong to the defendant, within the possession of, or reasonably
available to the state, subject to the provisions of this rule: * * *
(1) Any written or recorded statement by the defendant * * *
***
(5) Any evidence favorable to the defendant and material to guilt or punishment;
***
(7) Any written or recorded statement by a witness in the state’s case-in-chief, or
that it reasonably anticipates calling as a witness in rebuttal.
{¶12} Courts have long recognized that disclosure of a defendant’s statements is
critical to the defendant’s preparation for trial and formulation of an appropriate defense
strategy. Among other things, evidence of a defendant’s statements may assist a
defendant in making an informed decision about whether to accept a plea, whether to
waive a jury trial or whether to testify in his or her own defense. See, e.g., State v.
Tomblin, 3 Ohio App.3d 17, 18, 443 N.E.2d 529 (1st Dist.1981) (“[W]here a defendant *
* * has filed a motion for discovery of any written or recorded statements made by him,
the prosecuting attorney has a duty to permit such discovery. The specter of the
prosecution’s failure to permit a defendant’s inspection of his statement is that if a
defendant does not know or remember what is contained in his statement, he can not
knowingly and intelligently decide whether or not to take the witness stand and thus to
put his credibility in issue.”); State v. Haddix, 12th Dist. Warren No. CA2011-07-075,
2012-Ohio-2687, ¶ 38 (“The purpose of discovery [under Crim.R. 16] is twofold: to allow
a defendant to make an intelligent plea, and to ensure the defendant a fair trial by
alleviating surprise.”).
{¶13} As the Ohio Supreme Court stated in State v. Moore, 40 Ohio St.3d 63, 531
N.E.2d 691 (1988):
[A] defendant is entitled to discovery of relevant written or recorded
statements made by him, and it is not within the province of the state to
determine, and then to provide, only that which the state believes to be
relevant to the defense. To permit such conduct would serve to undermine
the purpose of the discovery rule and impinge on the defendant’s right to a
fair trial.
Id. at 68; see also State v. Pagan, 8th Dist. Cuyahoga No. 97268, 2012-Ohio-2197, ¶ 36
(“It is not the state’s role to determine whether the statement is material to the case or not.
*** Strong enforcement of [Crim.R. 16(B)(1)] the rule is required because the purpose
of the rule is to remove the element of gamesmanship from the trial.”).
{¶14} The state argues that the violation of Crim.R. 16(B) should be ignored
because appellant received “summaries” of the police interviews. We find this a hollow,
insufficient excuse, particularly in light of the fact that the record indicates that more than
two hours of recorded interviews were summarized in less than three pages of reports.
Furthermore, we do not subscribe to the theory that the full breadth and context of a video
recorded interview can fairly be distilled into a three page, written summary. Crim.R.
16(B) would appear to support this conclusion.
{¶15} Finally, we note that at the hearing on the motion to withdraw the state
shifted the blame to the police department for the failure to disclose the videotaped
interviews, asserting that neither the state nor the defense was aware of their existence.
However, under our prior authority this fact does not absolve the state from culpability
because the prosecutor is responsible for knowing what is in the police file. State v.
Russell, 8th Dist. Cuyahoga No. 94345, 2011-Ohio-592, ¶ 37; State v. Benford, 9th Dist.
Summit No. 25298, 2011-Ohio-564, ¶ 10; State v. Wiles, 59 Ohio St.3d 71, 78, 571
N.E.2d 97 (1991).
{¶16} In this instance, the state plainly failed to comply with Crim.R. 16(B),
precluding appellant from analyzing the statements he and Chris White made to police
and hampering his ability to enter an intelligent plea. In White’s interview, he stated
that he was in the room during portions of a sexual encounter between appellant and one
of the victims. White maintained that the victim was not drunk and the sexual activity
appeared to be consensual. Furthermore, the affidavits of appellant, White and another
purported witness, Juran Hill, uniformly assert that appellant’s original trial counsel
neglected to interview witnesses who interacted with one of the alleged victims during the
relevant events of this case. On these facts, and considering that presentence motions to
withdraw guilty pleas are to be freely allowed and treated liberally, we find that the trial
court abused its discretion in denying Shivers’ motion.
{¶17} Shivers’ sole assignment of error is sustained.
{¶18} The judgment of the trial court is reversed, sentence vacated and case
remanded to the lower court for further proceedings consistent with this opinion.
It is ordered that appellant recover from appellee the 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.
_______________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE
MARY EILEEN KILBANE, J., CONCURS;
TIM McCORMACK, J., DISSENTS
TIM McCORMACK, J., DISSENTING:
{¶19} For the reasons that follow, I respectfully dissent.
{¶20} Crim.R. 32.1 governs withdrawals of guilty pleas and provides as follows: “A
motion to withdraw a plea of guilty or no contest 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.” Generally, a presentence motion to
withdraw a guilty plea should be freely granted. State v. Xie, 62 Ohio St.3d 521, 527, 584
N.E.2d 715 (1992). It is well established, however, that a defendant does not have an absolute
right to withdraw a guilty plea prior to sentencing. The trial court must, therefore, hold a hearing
in order to determine whether there is a “reasonable and legitimate basis for the withdrawal of
the plea.” Id.{¶21} The decision whether to grant or deny a motion to withdraw a guilty plea is entirely
within the sound discretion of the trial court, and we will not alter the trial court’s decision
absent a showing of an abuse of that discretion. Xie at paragraph two of the syllabus; State v.
Peterseim, 68 Ohio App.2d 211, 428 N.E.2d 863 (8th Dist.1980), syllabus. “‘Unless it is
shown that the trial court acted unjustly or unfairly, there is no abuse of discretion.’” Peterseim
at 213, 214, quoting Barker v. United States, 579 F.2d 1219, 1223 (10th Cir.1978).
{¶22} A trial court does not abuse its discretion in denying a motion to withdraw a
guilty plea where the following occurs: (1) the accused is represented by highly
competent counsel; (2) the accused was afforded a full hearing, pursuant to Crim.R. 11,
before he entered the plea; (3) when, after the motion to withdraw is filed, the accused is
given a complete and impartial hearing on the motion; and (4) the record reveals that the
court gave full and fair consideration to the plea withdrawal request. Peterseim at
paragraph three of the syllabus. Additional factors this court has considered include
whether the motion was made in a reasonable time; whether the motion states specific
reasons for withdrawal; whether the accused understood the nature of the charges and the
possible penalties; and whether the accused was perhaps not guilty or had a complete
defense. Benson, 8th Dist. Cuyahoga No. 83178, 2004-Ohio-1677, at ¶ 8, 9.
{¶23} Here, the record demonstrates that Shivers was represented by highly
competent counsel throughout his entire case. Shivers was initially represented by
appointed counsel and then Shivers subsequently retained counsel, who negotiated the
plea agreement. At the plea hearing, the court noted that it has “known [counsel] for a
long time” and counsel is “a very good lawyer.” Prior to pleading, Shivers
acknowledged that he was satisfied with the legal services provided by his attorney.
And prior to denying Shivers’s motion, the court noted that it considered the fact that
Shivers had been represented by “very well-respected attorneys,” noting in particular that
one of the attorneys had, in fact, been retained. Moreover, it is well-settled that a
properly licensed attorney practicing in this state is presumed to be competent. State v.
Creed, 8th Dist. Cuyahoga No. 97317, 2012-Ohio-2627, ¶ 11.
{¶24} The record further shows that Shivers was afforded a full Crim.R. 11 hearing
before he entered his plea and he understood the nature of the charges and the possible penalties.
Under Crim.R. 11(C), prior to accepting a guilty plea in a felony case, the trial court must
conduct an oral dialogue with the defendant to ensure the following: that the plea is voluntary,
with the understanding of the nature of the charges and the maximum penalty involved and, if
applicable, that the defendant is not eligible for community control sanctions; that the defendant
understands the effect of his or her plea; and that the defendant understands the constitutional
rights he or she waives by pleading guilty, including the rights to jury trial, to confront witnesses
against him or her, to have compulsory process for obtaining witnesses in the defendant’s favor,
and to require the state to prove the defendant’s guilt beyond a reasonable doubt at a trial at
which the defendant cannot be compelled to testify against himself or herself. Crim.R.
11(C)(2)(a)-(c); see, e.g., State v. Hussing, 8th Dist. Cuyahoga No. 97972, 2012-Ohio-4938, ¶
18.
{¶25} Strict compliance is required if the appellant raises a violation of a constitutional
right delineated in Crim.R. 11(C)(2)(c). When the trial court fails to explain the constitutional
rights set forth in Crim.R. 11(C)(2)(c), it is presumed the plea was entered involuntarily and
unknowingly and therefore invalid. State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893
N.E.2d 462, ¶ 31.
{¶26} When the appellant raises a violation of a nonconstitutional right, however,
found in Crim.R. 11(C)(2)(a) and (b), we look for substantial compliance. State v.
Joachim, 8th Dist. Cuyahoga No. 90616, 2008-Ohio-4876, ¶ 8. For example, if the trial
court imperfectly explained nonconstitutional matters such as the effect of the plea, a
substantial-compliance standard applies. Clark at ¶ 31. “Under this standard, a slight
deviation from the text of the rule is permissible; so long as the totality of the
circumstances indicates that ‘the defendant subjectively understands the implications of
his plea and the rights he is waiving,’ the plea may be upheld.” Id., quoting State v.
Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).
{¶27} When the trial court does not substantially comply with Crim.R. 11 with
regard to a nonconstitutional right, reviewing courts must determine whether the trial
court partially complied or completely failed to comply with the rule. If the trial court
partially complied, the plea may be vacated only if the defendant demonstrates a
prejudicial effect. Clark at ¶ 32. The test for prejudice is “whether the plea would
have otherwise been made.” Nero at 108.
{¶28} Here, prior to accepting Shivers’s plea, the trial court engaged in a Crim.R.
11 colloquy. The court explained to Shivers his constitutional rights to a trial, to
confront witnesses, to present evidence and witness testimony, and to remain silent during
trial. The court also asked Shivers several times if he understood his options, to which
Shivers replied in the affirmative. The court reminded Shivers that if he did not
understand something or needed to confer at any point with his attorney, to let the court
know, and it would “make sure that happens.” The court also advised Shivers about the
possible penalties, including the maximum sentence. The court discussed the parties’
agreement of a prison term and the possibility of judicial release. Shivers indicated that
he understood. Shivers also advised the court that there had been no threats or promises
made, other than what was put on the record.
{¶29} Defense counsel advised the court that Shivers was on medication for the
extraction of his wisdom teeth the day before the hearing. Despite the medication,
however, Shivers advised the court that he was “thinking clearly.” When the court
asked Shivers if there were any lasting effects from the medication, he replied, “No, your
Honor.” The court continued with its colloquy:
Court: You are currently under the influence. We talked about that.
Are you currently under the influence of any drugs or
alcohol or medication, anything that would either prevent you
from understanding what is happening here today or prevent
you from entering a plea?
Shivers: I understand what’s going on.
Court: But anything about the medications that you’re taking that
would prevent you from entering a plea either?
Shivers: No, your Honor.
{¶30} Finally, prior to accepting Shivers’s guilty plea, the court provided Shivers
with an additional opportunity to ask any questions Shivers may have about the
proceedings or his rights, stating, “Sometimes guys in your shoes, as soon as they walk
out of court, turn to their lawyer and [say], hey, man, what the heck just happened in
there. I don’t understand anything that judge was talking about.” The court then
inquired, “Do you think you have a clear understanding of what we talked about here,
your maximum penalties and obligations?” Shivers replied, “Yes, your Honor.”
Moreover, the transcript is devoid of any evidence of confusion or misunderstanding.
{¶31} I would therefore find, in light of the above, that the record shows that
Shivers fully understood the nature of the charges and was able to make a knowing,
voluntary, and intelligent decision regarding whether to plead guilty, despite having taken
medication.
{¶32} I would also find that the trial court substantially complied with explaining
the effects of Shivers’s plea, i.e. that his plea was a complete admission of guilt.
{¶33} A defendant’s right to be informed that a guilty plea is a complete admission
of guilt is a nonconstitutional right and is reviewed under the substantial compliance
standard. State v. Cola, 8th Dist. Cuyahoga No. 99336, 2013-Ohio-3252, ¶ 6. And
where a defendant does not assert his innocence at the plea colloquy, he is presumed to
understand that a guilty plea is a complete admission of guilt. State v. Lee, 8th Dist.
Cuyahoga No. 99796, 2014-Ohio-205, ¶ 8, citing State v. Griggs, 103 Ohio St.3d 85,
2004-Ohio-4415, 814 N.E.2d 51, syllabus.
{¶34} In light of the foregoing record, I would find that Shivers subjectively
understood that his guilty plea to kidnapping and felonious assault was a complete
admission of his guilt. Moreover, there is no evidence that Shivers asserted actual
innocence any time during the plea colloquy. Shivers is therefore presumed to have
understood that he completely admitted his guilt.
{¶35} Additionally, even if the court failed to substantially comply, Shivers has
failed to demonstrate that he was prejudiced by the court’s failure to explicitly advise him
of the effect of his plea. And unless a defendant asserts actual innocence, the “court’s
failure to inform the defendant of the effect of his guilty plea as required by Crim.R. 11 is
presumed not to be prejudicial.” Griggs at syllabus.
{¶36} My review of the record also shows that the motion to withdraw the guilty
plea was made in a reasonable time, the motion stated specific reasons for withdrawal,
and the trial court carefully considered the motion in a complete and impartial hearing.
{¶37} At the withdrawal hearing, the court heard from defense counsel, who
alleged that Shivers has always maintained his innocence, he was induced into a plea
agreement because he did not know the effects of the plea, and he was under the influence
of medication during the plea. Counsel also alleged that Shivers’s former counsel was
deficient because he did not fully discuss the case with Shivers, he did not interview
witnesses who had potentially exculpatory testimony, and he did not divulge to Shivers
that there were two videotaped interviews — of Shivers and a potential witness — that
potentially contained exculpatory evidence.
{¶38} Following argument by defense counsel, the state explained that the
videotaped interviews were reduced to written summaries that were offered to the defense
upon initial discovery. The state provided that the summaries do not include any detail
that is not already included in the police report that was made available in discovery prior
to the plea. The state further provided that the alleged potential witnesses identified in
Shivers’s affidavits, Chris White and Juran Hill, are Shivers’s friends. Therefore, the
content of their testimony would have been available to Shivers at any time. The state
also noted that Shivers failed to identify anything in the videos that would prove new to
the defense:
With regard to the Christopher White interview, I’m looking at the
summary which defense has had since last June where, clearly if you read
this, you can tell Christopher White attempted to give evidence which
would help the defendant to the Mayfield Heights police department.
Specifically when he said that the alleged victim of that incident he is
talking about, he heard her moaning and heard her say it felt good.
They’re not telling you anything from these interviews that’s different than
what they knew in the police report at the time of the plea and at the time
this case discovery was commenced. * * * [T]hey are making no specific
references as to how those interviews are different [than] these summaries
that they already had.
{¶39} Rather, at the hearing, Shivers stressed the fact that the interviews are
“extensive” and they “cannot be summarized in one or two pages.” He provided that the
content of both interviews taken together equaled two hours. He also stated that the
summaries cannot “make up for the existence of actual evidence.”
{¶40} Prior to making a ruling, the court noted that it reviewed Shivers’s motion
and supplemental motion, as well as the transcript of the plea hearing. It provided
Shivers an opportunity to address the court; however, Shivers declined. The court then
noted that it considered the fact that Shivers had two highly competent attorneys represent
him prior to the hearing on the motion to withdraw, one of which Shivers had retained.
The court also noted that it had a “lengthy conversation about judicial release,” Shivers’s
pain medication, and his possible sentence:
[Prior defense counsel] made a representation he thought you were thinking
clearly. I asked you if you had any lasting effects and you said no. I
believe I asked you twice more * * * [and] you indicated you understood
what was going on. So I think that that was not a factor at all here.
We talked about the recommended sentence. We went over all your
possibilities at that point in time. I asked you if you had any questions a
number of times with respect to sentences and possibilities * * *, gave you
several opportunities to ask me any questions about anything at all.
* * * I asked you on multiple occasions * * * if you understood. * * * And
you indicated [on] at least 16 occasions that you, in fact, under[stood] * * *.
{¶41} The court further considered the affidavits attached to Shivers’s motion to
withdraw. It determined that they contained nothing indicative of “any new evidence of
any plausible defense.” The court noted, once again, that Shivers had highly competent
representation. The court then provided the parties with an opportunity to present
additional evidence. In response, the defense offered the plea transcript and the two
videotaped interrogations. Shivers provided no additional evidence or witness
testimony. Nor did he offer any specific statements from the interviews that constituted
new or exculpatory evidence that had not been previously documented in the interview
summaries.
{¶42} In light of the foregoing record, I would find that the trial court conducted a
complete and impartial hearing on Shivers’s motion to withdraw his guilty plea and gave
full and fair consideration to his plea withdrawal request. It considered the statements
from counsel and the entire record, and it provided defense counsel an opportunity to
provide additional evidence.
{¶43} I agree with the majority that the prosecutor had a duty to provide the
videotaped interviews to defense counsel in a timely manner and the prosecutor is
responsible for knowing what is in the police file. I also agree with the majority that the
defense should not be expected to rely solely on the prosecutor’s summaries of the
videotaped interviews.
{¶44} However, in this case, there is no evidence in the record that the prosecutor’s
failure to disclose the videotaped interviews was a wilful violation of Crim.R. 16. It appears,
rather, that the state inadvertently failed to turn over the videotapes because, for a period of time,
it had no knowledge of them. Furthermore, Shivers has failed to demonstrate specifically how
the interviews would have assisted in his defense or how he was prejudiced by not having
evidence purportedly contained in the interviews. See Pagan, 8th Dist. Cuyahoga No. 97268,
2012-Ohio-2197, at ¶ 37, citing State v. Parson, 6 Ohio St.3d 442, 445, 453 N.E.2d 689 (1983)
(In determining the appropriate sanctions for a discovery violation, the trial court considers
whether the prosecution’s violation was wilful, whether the undisclosed statement would have
benefitted the defense, or whether the accused was prejudiced.). In fact, Shivers fails to
specifically identify any exculpatory evidence contained in the interviews that was not
previously contained in the police report or the summaries. And when provided with the
opportunity to do so by the trial court, Shivers offered only the transcript of the plea and the
interviews in their entirety as exhibits. Shivers did not extricate particular exculpatory
statements from the interviews or present the testimony of either Chris White or Juran Hill for
the trial court to consider. It is not the state’s burden, nor is it the trial court’s role, to discern
what evidence is exculpatory or would have benefitted the defense, or the evidence of which
prior counsel was, or was not, aware.
{¶45} Accordingly, having established the relevant factors in reviewing a trial
court’s denial of a presentence motion to withdraw a guilty plea, and having found no
evidence that the trial court acted unjustly or unfairly, I cannot say that the trial court
abused its discretion in denying Shivers’s motion to withdraw his plea. I would
therefore affirm the judgment of the trial court.