[Cite as State v. Davis, 2015-Ohio-5196.]

COURT OF APPEALS 

RICHLAND COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO : JUDGES: 

 : 

 : Hon. W. Scott Gwin, P.J. 

 Plaintiff-Appellee : Hon. Patricia A. Delaney, J. 

 : Hon. Craig R. Baldwin, J. 

-vs- : 

 : Case No. 15CA6 

 : 

BRANDON DAVIS : 

 : 

 : 

 Defendant-Appellant : O P I N I O N 

CHARACTER OF PROCEEDING: Appeal from the Richland County Court 

of Common Pleas, Case No. 

2014CR07040 

JUDGMENT: AFFIRMED 

DATE OF JUDGMENT ENTRY: December 10, 2015 

APPEARANCES: 

For Plaintiff-Appellee: For Defendant-Appellant: 

 

BAMBI COUCH PAGE JEFFREY P. URICH 

RICHLAND CO. PROSECUTOR P.O. Box 1977 

38 South Park St. Westerville, OH 43086 

Mansfield, OH 44902 

 
Richland County, Case No. 15CA6 2 

Delaney, J. 

{¶1} Appellant Brandon Davis appeals from the January 6, 2015 Sentencing 

Entry of the Richland County Court of Common Pleas. Appellee is the state of Ohio. 

FACTS AND PROCEDURAL HISTORY 

{¶2} The following facts are adduced from the trial court record, including the 

criminal complaint, affidavit, and police report filed in the Mansfield Municipal Court prior 

to bindover to the Richland County Court of Common Pleas. 

{¶3} On October 11, 2014, officers were dispatched to a residential address in 

Mansfield, Ohio, where they found the victim with blood on her shirt and a bloody nose. 

The victim and appellant have children together. The victim told police she and 

appellant argued over photos she found on his phone. Appellant had been drinking. 

{¶4} Appellant pushed the victim and punched her in the face. When her 9-

year-old son attempted to intervene, appellant pushed him onto a couch and threatened 

to "kick [his] ass." The victim attempted to lock herself in the bathroom but appellant 

knocked the door off the hinges. Police photographed the victim's apparent physical 

injuries. 

{¶5} The affidavit accompanying the criminal complaint states in part, 

"[Appellant] was convicted of Menacing M-4, where the Victim was a family or 

household member in 2008. (2008CRB05450). A felony Domestic Violence warrant 

was typed for [appellant], which was served on him at [the Richland County Sheriff's 

Office]." 
Richland County, Case No. 15CA6 3 

{¶6} The file in the instant case contains a certified copy of the municipal court 

docket of case number 08CRB5450 indicating appellant was charged with domestic 

violence, a misdemeanor of the first degree pursuant to City of Mansfield Ordinance No. 

537.14 on November 23, 2008. The named victim in the complaint is the same victim in 

the instant case. 

{¶7} The charge was subsequently amended to menacing, a misdemeanor of 

the fourth degree pursuant to City of Mansfield Ordinance No. 537.06, and appellant 

entered a plea of guilty to the amended charge on February 3, 2009. 

{¶8} In the case sub judice, appellant waived his right to a preliminary hearing 

in municipal court and was bound over to the Court of Common Pleas. On November 6, 

2014, he was charged by indictment with one count of domestic violence, a felony of the 

fourth degree pursuant to R.C. 2919.25(A), "having been previously convicted of or 

pleaded guilty to one or more offenses of domestic violence or offenses of the type 

described in division (D)(3) of the Ohio Revised Code 2919.25 involving a person who 

was a family or household member at the time of the violation * * *." On December 15, 

2014, appellant appeared before the trial court, withdrew his previously-entered plea of 

not guilty, and entered a plea of guilty to one count of domestic violence as charged, a 

felony of the fourth degree. The trial court continued the matter for sentencing pending 

pre-sentence investigation. 

{¶9} Three days later, appellant filed a Motion to Vacate Plea stating his prior 

conviction was not a domestic violence offense because the victim in the 2008 case 

was not a “family or household member,” therefore the offense in the instant case 
Richland County, Case No. 15CA6 4 

should be a misdemeanor.1 Appellee responded with a motion in opposition stating the 

original offense in the predicate case was domestic violence against the same victim, 

although the offense was amended to menacing. Attached to appellee's motion in 

opposition is the police report of the 2008 incident describing the incident and stating in 

pertinent part, "The victim and the suspect lived together for three years." 

{¶10} Appellant appeared before the trial court on January 5, 2015. The trial 

court overruled his motion to withdraw his guilty plea and sentenced appellant to a 4-

year term of community control. 

{¶11} Appellant now appeals from the trial court's Sentencing Entry of January 

6, 2015 and incorporates the trial court's Judgment Entry of January 6, 2015 overruling 

his motion to withdraw his guilty plea. 

{¶12} Appellant raises two assignments of error: 

ASSIGNMENTS OF ERROR 

{¶13} "I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED 

THE RESENTENCE MOTION TO VACATE GUILTY PLEA FILED BY DEFENDANT 

WHEN THERE WAS A FAIR AND JUST REASON FOR VACATING SAID PLEA." 

{¶14} "II. TRIAL COUNSEL FOR DEFENDANT WAS INEFFECTIVE AND 

VIOLATED HIS 6TH AMENDMENT RIGHT TO EFFECTIVE COUNSEL AND FAIR 

TRIAL BY FAILING TO VERIFY, PRIOR TO DEFENDANT'S CHANGE OF PLEA 

HEARING, WHETHER THERE WAS A SUFFICIENT PREDICATE OFFENSE TO 

 

1 The police reports and affidavit in the instant case note appellant and the victim have 

children together, but the ages of the children are not in the record. Nor does the record 

reveal whether the 9-year-old involved in this instance of domestic violence was 

appellant’s child. 
Richland County, Case No. 15CA6 5 

ELEVATE THE DOMESTIC CHARGE PENDING AGAINST DEFENDANT FROM A 

MISDEMEANOR LEVEL TO A FELONY LEVEL." 

ANALYSIS 

I.

{¶15} In his first assignment of error, appellant argues the trial court should have 

allowed him to withdraw his guilty plea. We disagree. 

{¶16} Crim. R. 32.1 governs motions to withdraw guilty pleas and provides in 

pertinent part: “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.” A defendant does not have an absolute right to withdraw a guilty plea prior to 

sentencing, however; a trial court must conduct a hearing to determine whether there is 

a reasonable and legitimate basis for the withdrawal of the plea. State v. Hamilton, 5th 

Dist. Muskingum No. CT2008–0011, 2008–Ohio–6328, ¶ 32, citing State v. Xie, 62 Ohio 

St.3d 521, 584 N.E.2d 715 (1992), at paragraph one of the syllabus. 

{¶17} The trial court's decision to grant or deny a motion to withdraw a guilty 

plea is vested within the sound discretion of the court, and will not be reversed by an 

appellate court unless the trial court abused its discretion. Xie, supra, at paragraph two 

of the syllabus. In order to find an abuse of discretion, the reviewing court must 

determine that the trial court's decision was unreasonable, arbitrary, or unconscionable 

and not merely an error of law or judgment. Blakemore v. Blakemore, 5 Ohio St.3d 217, 

219, 450 N.E.2d 1140 (1983). 
Richland County, Case No. 15CA6 6 

{¶18} The good faith, credibility and weight of a defendant's assertions in 

support of a motion to withdraw guilty plea are matters to be resolved by the trial court, 

which is in a better position to evaluate the motivations behind a guilty plea than is an 

appellate court in reviewing a record of the hearing. Xie, supra, 62 Ohio St.3d at 525, 

citing State v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977). 

{¶19} In reviewing a trial court's decision regarding a motion to withdraw a guilty 

plea, the court in State v. Fish set forth a non-exhaustive list of factors to be weighed. 

104 Ohio App.3d 236, 240, 661 N.E.2d 788 (1st Dist.1995). These factors include: (1) 

whether the prosecution would be prejudiced if the plea was vacated; (2) whether the 

accused was represented by highly competent counsel; (3) whether the accused was 

given a full Crim.R. 11 hearing; (4) whether a full hearing was held on the motion; (5) 

whether the trial court gave full and fair consideration to the motion; (6) whether the 

motion was made within a reasonable time; (7) whether the motion set forth specific 

reasons for the withdrawal; (8) whether the accused understood the nature of the 

charges and possible penalties; and (9) whether the accused was possibly not guilty or 

had a complete defense to the crime. Id. In weighing the ninth factor, “the trial judge 

must determine whether the claim of innocence is anything more than the defendant's 

change of heart about the plea agreement.” State v. Davison, 5th Dist. Stark No. 2008–

CA–00082, 2008–Ohio–7037, ¶ 45, citing State v. Kramer, 7th Dist. Mahoning No. 01–

CA–107, 2002–Ohio–4176, ¶ 58. 

{¶20} In the instant case, appellant moved to withdraw his guilty plea in a 

summary motion stating, “[Appellant’s] prior misdemeanor was not a Domestic Violence 

because the victim did not constitute as a family member (sic) under ORC 2919.25 and 
Richland County, Case No. 15CA6 7 

therefore this case should be a misdemeanor. This information just came to Counsel’s 

attention.” Motion to Vacate Plea, Dec. 18, 2014. Subsequent oral argument on the 

motion focused on the status of appellant’s relationship with the victim at the time of the 

2008 offense; no evidence was taken but the trial court recited the 2008 police report 

stating that the victim and appellant had lived together for three years. 

{¶21} R.C. 2919.25(D) provides for enhancement of the degree of a domestic 

violence offense based upon a defendant’s prior convictions and states in pertinent part: 

 (D)(1) Whoever violates [R.C. 2919.25] is guilty of domestic 

violence, and the court shall sentence the offender as provided in 

divisions (D)(2) to (6) of this section. 

 (2) Except as otherwise provided in divisions (D)(3) to (5) of 

this section, a violation of division (C) of this section is a 

misdemeanor of the fourth degree, and a violation of division (A) or 

(B) of this section is a misdemeanor of the first degree. 

 (3) Except as otherwise provided in division (D)(4) of this 

section, if the offender previously has pleaded guilty to or been 

convicted of domestic violence, a violation of an existing or former 

municipal ordinance or law of this or any other state or the United 

States that is substantially similar to domestic violence, a violation 

of section 2903.14, 2909.06, 2909.07, 2911. 12, 2911.211, or 

2919.22 of the Revised Code if the victim of the violation was a 

family or household member at the time of the violation, a violation 

of an existing or former municipal ordinance or law of this or any 
Richland County, Case No. 15CA6 8 

other state or the United States that is substantially similar to any of 

those sections if the victim of the violation was a family or 

household member at the time of the commission of the violation, 

or any offense of violence if the victim of the offense was a 

family or household member at the time of the commission of 

the offense, a violation of division (A) or (B) of this section is a 

felony of the fourth degree * * *. (Emphasis added.) 

{¶22} In this case, appellant’s prior conviction is of menacing, a violation of 

Mansfield Codified Ordinance 537.06. Although the record and the parties’ arguments 

are devoid of the text of this ordinance, it states: 

 (a) No person shall knowingly cause another to believe that 

the offender will cause physical harm to the person or property of 

the other person, the other person’s unborn, or a member of the 

other person’s immediate family. In addition to any other basis for 

the other person’s belief that the offender will cause physical harm 

to the person or property of the other person, the other person’s 

unborn, or a member of the other person’s immediately family, the 

other person’s belief may be based on words or conduct of the 

offender that are directed at or identify a corporation, association or 

other organization that employs the other person or to which the 

other person belongs. 

 (b) Whoever violates this section is guilty of menacing. 

Except as otherwise provided in this subsection (b), menacing is a 
Richland County, Case No. 15CA6 9 

misdemeanor of the fourth degree. If the victim of the offense is an 

officer or employee of a public children services agency or a private 

child placing agency and the offense relates to the officer’s or 

employee’s performance or anticipated performance of official 

responsibilities or duties, or, if the offender previously has been 

convicted of or pleaded guilty to an offense of violence, the victim of 

that prior offense was an officer or employee of a public children 

services agency or private child placing agency, and that prior 

offense related to the officer’s or employee’s performance or 

anticipated performance of official responsibilities or duties, 

menacing is a felony and shall be prosecuted under appropriate 

State law. 

 (c) As used in this section, “organization” includes an entity 

that is a governmental employer. (ORC 2903.22) 

{¶23} The ordinance is thus identical to the wording of R.C. 2903.22, menacing.2 

Menacing pursuant to R.C. 2903.22 is defined as an “offense of violence” in R.C. 

 

2 R.C. 2903.22, menacing, states: 

(A) No person shall knowingly cause another to believe that the offender will 

cause physical harm to the person or property of the other person, the other person's 

unborn, or a member of the other person's immediate family. In addition to any other 

basis for the other person's belief that the offender will cause physical harm to the 

person or property of the other person, the other person's unborn, or a member of the 

other person's immediate family, the other person's belief may be based on words or 

conduct of the offender that are directed at or identify a corporation, association, or 

other organization that employs the other person or to which the other person belongs. 

(B) Whoever violates this section is guilty of menacing. Except as otherwise 

provided in this division, menacing is a misdemeanor of the fourth degree. If the victim 

of the offense is an officer or employee of a public children services agency or a private 

child placing agency and the offense relates to the officer's or employee's performance 
Richland County, Case No. 15CA6 10 

2901.01(A)(9)(a). A conviction of Mansfield Codified Ordinance 537.06 is thus a 

“municipal ordinance * * * that is substantially similar to any of those sections” which 

enhances the penalty level of a future domestic violence charge “if the victim of the 

violation was a family or household member at the time of the commission of the 

violation.” R.C. 2919.25(D)(1) and (D)(3). 

{¶24} In the instant case, appellant does not indicate which of the Fish factors 

should have led the trial court to allow him to withdraw his plea. In fact, appellant 

acknowledges “[t]here is no indication that [appellant] was proclaiming his innocence of 

the offense—rather the issue was solely whether there was a sufficient factual basis 

(relating to the predicate offense) as to whether the domestic violence offense should 

have been charged as a misdemeanor instead of a felony.” (Appellant’s brief, 4.) The 

evidence before the court at the hearing on appellant’s motion to withdraw his plea 

consisted of the police report of the 2008 incident stating “The victim and the suspect 

lived together for three years.” The victim in the 2008 case is also the victim in the 

instant case. No additional evidence was taken to prove or disprove this statement, and 

we note appellant pled guilty to the amended charge of menacing and did not appeal 

from that conviction. 

 

or anticipated performance of official responsibilities or duties, menacing is a 

misdemeanor of the first degree or, if the offender previously has been convicted of or 

pleaded guilty to an offense of violence, the victim of that prior offense was an officer or 

employee of a public children services agency or private child placing agency, and that 

prior offense related to the officer's or employee's performance or anticipated 

performance of official responsibilities or duties, a felony of the fourth degree. 

(C) As used in this section, “organization” includes an entity that is a 

governmental employer. 
Richland County, Case No. 15CA6 11 

{¶25} The evidence before the court in the instant case established the victim 

was a family or household member at the time of the 2008 offense. A “family or 

household member” includes a “person living as a spouse,” which is a person who is 

living or has lived with the offender in a common law marital relationship, who otherwise 

is cohabiting with the offender, or who otherwise has cohabited with the offender within 

five years prior to the date of the alleged commission of the act in question. R.C. 

2919.25(F)(2). 

{¶26} Appellant makes no further claim that any of the Fish factors are present. 

Because appellant’s argument regarding the underlying menacing conviction is without 

merit, the trial court did not abuse its discretion in refusing to permit appellant to 

withdraw his plea of guilty. 

{¶27} Appellant’s first assignment of error is overruled. 

II. 

{¶28} In his second assignment of error, appellant argues he received 

ineffective assistance of counsel because trial counsel did not sufficiently investigate the 

circumstances of the underlying menacing conviction. We disagree. 

{¶29} To succeed on a claim of ineffectiveness, a defendant must satisfy a twoprong test. Initially, a defendant must show that trial counsel acted incompetently. See, 

Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052 (1984). In assessing such 

claims, “a court must indulge a strong presumption that counsel's conduct falls within 

the wide range of reasonable professional assistance; that is, the defendant must 

overcome the presumption that, under the circumstances, the challenged action ‘might 
Richland County, Case No. 15CA6 12 

be considered sound trial strategy.’” Id. at 689, citing Michel v. Louisiana, 350 U.S. 91, 

101, 76 S.Ct. 158 (1955). 

{¶30} “There are countless ways to provide effective assistance in any given 

case. Even the best criminal defense attorneys would not defend a particular client in 

the same way.” Strickland, 466 U.S. at 689. The question is whether counsel acted 

“outside the wide range of professionally competent assistance.” Id. at 690. 

{¶31} Even if a defendant shows that counsel was incompetent, the defendant 

must then satisfy the second prong of the Strickland test. Under this “actual prejudice” 

prong, the defendant must show that “there is a reasonable probability that, but for 

counsel's unprofessional errors, the result of the proceeding would have been different.” 

Strickland, 466 U.S. at 694. We have previously found an ineffective assistance claim 

is cognizable in regard to an attorney's performance in connection with a presentence 

Crim.R. 32.1 motion. State v. Emerson, 5th Dist. Richland No. 14 CA 79, 2015-Ohio2121, ¶ 25. 

{¶32} Appellant argues trial counsel was ineffective in failing to raise the “family 

or household member” issue with regard to the menacing conviction. As we have 

noted, the victim is the same victim in both cases. The parties have children together. 

The 2008 police report indicates at that point the parties had lived together for three 

years and the earlier offense was originally charged as domestic violence. Appellant 

has not revealed what evidence supports his allegation the same victim was not a 

“family or household member” in 2008. 

{¶33} Additionally, in light of our decision supra that the menacing conviction 

does enhance the level of the instant offense, counsel did not err in failing to raise the 
Richland County, Case No. 15CA6 13 

argument sooner. When the potential argument came to trial counsel’s attention, the 

motion to withdraw guilty plea was filed. Entering a guilty plea waives all errors which 

may have occurred unless such errors prevented the defendant from entering a 

knowing and voluntary plea. State v. Cvijetinovic, 8th Dist. Cuyahoga No. 81534, 2005-

Ohio-380, at ¶ 9, citing Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 

274 (1969). However, “[t]he mere fact that, if not for the alleged ineffective assistance 

of counsel, the defendant would not have entered a guilty plea is not sufficient to 

establish the requisite connection between the guilty plea and the ineffective 

assistance.” State v. Siler, 11th Dist. Ashtabula No. 2010-A-0025, 2011-Ohio-2326, ¶ 

62, citing State v. Smith, 17 Ohio St.3d 98, 477 N.E.2d 1128. “Rather, ineffective 

assistance of trial counsel is found to have affected the validity of a guilty plea when it 

precluded a defendant from entering his plea knowingly and voluntarily.” State v. 

Dansby, 5th Dist. Tuscarawas Nos. 2009AP120065 and 2009AP120066, 2010–Ohio–

4538, ¶ 19. 

{¶34} Appellant argues he was prejudiced because had counsel investigated the 

menacing conviction, the instant offense would be a misdemeanor and not a felony. 

The record does not support appellant’s argument, which we have already determined 

is without merit. Counsel is not required to raise arguments without merit simply for the 

sake of placing them on the record to avoid a charge of ineffective assistance of 

counsel. See, State v. Robinson, 108 Ohio App.3d 428, 433, 670 N.E.2d 1077, 1080 

(3rd Dist.1996). Nor does counsel's failure to raise weak arguments create a genuine 

issue of ineffective assistance. See, State v. Allen, 77 Ohio St.3d 172, 173, 672 N.E.2d 

638, 639 (1996). 
Richland County, Case No. 15CA6 14 

{¶35} We do not find appellant has demonstrated any deficiency in trial 

counsel's representation which would make appellant’s plea involuntary. State v. 

Ybarra, 5th Dist. Licking No. 14-CA-8, 2014-Ohio-3485, ¶ 17-18. Appellant has not 

established that counsel erred, much less that any such error prevented the guilty plea 

from being knowing and voluntary. 

{¶36} Appellant’s second assignment of error is overruled. 

CONCLUSION 

{¶37} Appellant’s two assignments of error are overruled and the judgment of 

the Richland County Court of Common Pleas is affirmed. 

By: Delaney, J. and 

Gwin, P.J. 

Baldwin, J., concur.