State v. Davis , 2021 Ohio 4015 ( 2021 )

[Cite as State v. Davis, 2021-Ohio-4015.]
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, 159 Ohio St.3d 82, 2019-Ohio-5206,
147 N.E.3d 623, ¶ 15, citing State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324(1977), paragraph two of the syllabus, and State v. Francis, 104 Ohio St.3d 490,
2004-Ohio-6894, 820 N.E.2d 355, ¶ 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, 158 Ohio St.3d 139, 2019-Ohio-4539,
140 N.E.3d 616, ¶ 106, citing Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87,
482 N.E.2d 1248 (1985), citing State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d
144 (1980). A decision is unreasonable when “‘no sound reasoning process * * *
would support that decision.’” Id., quoting AAAA Ents., Inc. v. River Place
Community Urban Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597(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, 159 Ohio St.3d 82, 2019-Ohio-5206, 147 N.E.3d 623, at ¶ 14, quoting State
ex rel. Schneider v. Kreiner, 83 Ohio St.3d 203, 208, 699 N.E.2d 83 (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, 2017-Ohio-1049, ¶ 30, quoting State v. Hamilton, 8th Dist. Cuyahoga No.
90141, 2008-Ohio-455, ¶ 8.
“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, 2021-Ohio-440, ¶ 12; 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, 2016-Ohio-5239, ¶ 22.”
State v. Said, 8th Dist. Cuyahoga Nos. 110090 and 110288, 2021-Ohio-3360, ¶ 16,
quoting State v. Houk, 8th Dist. Cuyahoga No. 110115, 2021-Ohio-2107, ¶ 15.
“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, 2021-Ohio-2584, ¶ 20, citing State v. Norman, 8th Dist. Cuyahoga No.
105218, 2018-Ohio-2929, ¶ 16, and State v. Vihtelic, 8th Dist. Cuyahoga No. 105381,
2017-Ohio-5818, ¶ 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. Id. 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, 2011-Ohio-1685, ¶ 22; State v. Lawston, 8th Dist. Cuyahoga No. 80828,
2002-Ohio-6498, ¶ 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, 141 Ohio St.3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 258,
quoting State v. Barnes, 94 Ohio St.3d 21, 24, 759 N.E.2d 1240 (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, 2020-Ohio-1606, ¶ 16. 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, 2019-Ohio-4099,
¶ 103.
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, 2011-Ohio-1685,
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, 2019-Ohio-3101,
¶ 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, 54 Ohio St.2d
402, 377 N.E.2d 500 (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, 134 Ohio St.3d 350,
2012-Ohio-5636, 982 N.E.2d 684, ¶ 19. 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, 582 U.S. ___, 137 S.Ct. 1958, 1964, 198 L.Ed.2d 476 (2017), quoting
Lafler v. Cooper, 566 U.S. 156, 165, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012); Hill v.
Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (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, 466 U.S. 668, 687-688, 694,
104 S.Ct. 2052, 80 L.E.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538
N.E.2d 373 (1989), paragraphs two and three of the syllabus. “Reasonable
probability” is “probability sufficient to undermine confidence in the outcome.”
Strickland at 694.
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, 2016-Ohio-7604, 73 N.E.3d 1025, ¶ 30 (8th Dist.); State v.
Williams, 8th Dist. Cuyahoga No. 100459, 2014-Ohio-3415, ¶ 11. 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, 62 Ohio St.3d 521, 524, 584
N.E.2d 715 (1992); Hill at 58-59.
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, 2019-Ohio-4977, 149 N.E.3d 1132, ¶ 35 (8th Dist.),
citing State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (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.” Strickland at 689; see State
v. Powell, 2019-Ohio-4345, 134 N.E.3d 1270, ¶ 69 (8th Dist.), quoting State v.
Pawlak, 8th Dist. Cuyahoga No. 99555, 2014-Ohio-2175, ¶ 69 (“‘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, 1996
Ohio App. LEXIS 1873, 5 (May 9, 1996), citing State v. Clayton, 62 Ohio St.2d 45,
49, 402 N.E.2d 1189 (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, 1995 Ohio App. LEXIS 2853, 7 (July 6, 1995), citing State v.
Brown, 38 Ohio St.3d 305, 319, 528 N.E.2d 523 (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, 2018-Ohio-1200, ¶ 17. Such factors include “the benefits
associated with the plea, the possible punishments involved, the weight of the
evidence against the defendant.” Id. 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, 159 Ohio
St.3d 82, 2019-Ohio-5206, 147 N.E.3d 623, at ¶ 15, quoting Smith, 49 Ohio St.2d at
264, 361 N.E.2d 1324, and Oksanen v. United States, 362 F.2d 74, 79 (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,
2021-Ohio-1298, ¶ 24 (three years); State v. Heise, 8th Dist. Cuyahoga Nos. 108286
and 108776, 2020-Ohio-662, ¶ 37 (two years); State v. Ladson, 8th Dist. Cuyahoga
No. 102914, 2015-Ohio-5266, ¶ 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, 2017-Ohio-1049,
at ¶ 30, quoting Hamilton, 8th Dist. Cuyahoga No. 90141, 2008-Ohio-455, at ¶ 8.
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, 2021-Ohio-3360, at ¶ 37, citing Houk, 8th Dist.
Cuyahoga No. 110115, 2021-Ohio-2107, at ¶ 38, Ritchie at ¶ 17, 24, and Vihtelic, 8th
Dist. Cuyahoga No. 105381, 2017-Ohio-5818, 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