[Cite as State v. Williamson, 2010-Ohio-5060.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT MARION COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 9-10-11
v.
DARIO WILLIAMSON aka CHAMP, OPINION
DEFENDANT-APPELLANT.
Appeal from Marion County Common Pleas Court Trial Court No. 08-CR-161
Judgment Affirmed
Date of Decision: October 18, 2010
APPEARANCES:
Kevin P. Collins for Appellant
Brent Yager for Appellee Case No. 9-10-11
SHAW, J.
{¶1} The defendant-appellant, Dario Williamson, aka Champ
(“Williamson”) appeals the January 19, 2010 judgment of the Common Pleas
Court of Marion County, Ohio, denying his motion to withdraw his guilty plea.
{¶2} The facts relevant to this appeal are as follows. On April 16, 2008,
Williamson was indicted on three counts: Count One, Aggravated Trafficking in
Drugs in violation of R.C. 2925.03(A)(1), (C)(1), a felony of the second degree;
Count Two, Aggravated Trafficking in Drugs within 100 feet of a juvenile or
within view of a juvenile in violation of R.C. 2925.03(A)(1), (C)(1), a felony of
the first degree; and Count Three, Trafficking in Cocaine within 100 feet of a
juvenile or within view of a juvenile in violation of R.C. 2925.03(A)(1), (C)(4), a
felony of the first degree. Count One specifically alleged that Williamson
did knowingly sell of offer to sell a controlled substance, and the drug involved in the violation is any compound, mixture, preparation, or substance included in schedule I or schedule II, with the exception of marihuana, cocaine, LSD, heroin, and hashish, and the amount of the drug involved equals or exceeds five times the bulk amount.
{¶3} Initially, Williamson entered pleas of not guilty as to each count, and
the matter proceeded to the discovery phase. The defendant requested a bill of
particulars, which was provided in July of 2008. As to Count One, the bill of
particulars stated,
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Defendant sold and offered to sell 100 doses of ecstasy, a Schedule I controlled substance for $850.00 to a confidential operative working under the supervision of officers with the MARMET Drug Task Force. The exchange of drugs for money took place on February 22, 2008 * * * at the BP Station on Detroit Avenue of I-75, Toledo, Ohio. The transaction was arranged in telephone conversations between the Defendant and the operative (initially in Marion) which took place on February 22, 2008[.]
The other two counts in the indictment were alleged to have arisen out of a
transaction occurring the following week in much the same manner as Count One.
In that transaction, Williamson was alleged to have sold and offered to sell
approximately twenty-seven grams of crack cocaine in addition to 100 doses of
ecstasy.
{¶4} On July 30, 2008, Williamson withdrew his previously tendered
pleas of not guilty on each count of the indictment and indicated that he wanted to
plead guilty to those same charges. In exchange, the State agreed to recommend
three years of imprisonment on each count with Counts One and Two to run
consecutively to one another but concurrently to Count Three for an aggregate
prison term of six years. The State also acknowledged that Williamson would be
requesting a pre-sentence investigation and asking the trial court to impose a lesser
sentence.
{¶5} The trial court proceeded to conduct a Crim.R. 11 plea colloquy with
Williamson, including advising him that Count One, a second degree felony,
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carried a potential penalty of two to eight years in prison and Counts Two and
Three, both first degree felonies, carried potential penalties of three to ten years.
The trial court also informed Williamson that the allegations in Count One were
that he “did knowingly sell or offer to sell a controlled substance, and the drug
involved in the violation is any compound, mixture, preparation, or substance
included in schedule I or schedule II * * * and the amount of the drug involved
equals or exceeds five times the bulk amount.” The trial court then had the
prosecutor recite for the record what the evidence would be if the matter
proceeded to trial. During this recitation, the prosecutor stated as to Count One,
the State would show that on February 22, 2008, the Defendant sold 100 doses of Ecstasy, which is a Schedule 1 drug to a confidential operative, an undercover officer, for $850.00. The actual sale itself took place at a BP station on Detroit Avenue off of I-75 in Toledo, Ohio, Lucas County, Ohio. However, the phone call setting up the transaction was between the confidential operative who was located in Marion, Ohio cooperating with MARMET Officers, and he phoned the Defendant who was located in Toledo. They then made arrangements to meet. * * *
(Plea Hrg., 7/30/08, at p. 10.) Williamson then pled guilty to all three offenses,
and the court accepted his pleas.
{¶6} Sentencing in this case occurred on September 11, 2008, and
Williamson was sentenced to three years on each count with Counts One and Two
being run consecutively to one another but concurrently to Count Three for an
aggregate sentence of six years, all of which were mandatory.
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{¶7} One year later, on September 11, 2009, Williamson filed a motion to
withdraw his guilty pleas on all three counts. The basis for Williamson’s motion
was that the lab results of the substance at issue in Count One revealed that the
substance Williamson sold was methamphetamine rather than ecstasy as alleged.
Williamson also asserted in his motion that the amount of methamphetamine that
was found would have resulted in a felony of the fifth degree rather than a second
degree felony as he was charged.
{¶8} A hearing was held on this motion on January 11, 2010. During the
hearing, Renee Potts, the prosecutor assigned to the case at the time of the pleas,
Tom Mathews, the defense attorney who represented Williamson at the time of his
pleas, and Williamson, himself, testified. A number of exhibits were also admitted
at the hearing. One exhibit, marked Defendant’s Exhibit 4, was a laboratory report
from the Bureau of Criminal Identification and Investigation (“BCI”). This report
indicated that it was prepared on April 15, 2008, by Scott Dobransky, whose
signature appeared on the document, and showed that the substances tested in
Williamson’s case totaled 31.9 grams of methamphetamine. It was also stamped
“Received April 30, 2008.” Potts testified that the stamp was made by the
prosecutor’s office and would indicate the date on which the office received the
report. She also testified that she did not recall seeing that report. However, she
went onto a BCI website that allowed prosecutors to download and print BCI
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reports and printed the same report, absent Dobransky’s signature, and provided
that in discovery to Mathews on July 11, 2008. This report was admitted as
State’s Exhibit 1. Nevertheless, Potts testified that she did not realize that the lab
results revealed that the substance at issue in Count One was methamphetamine
rather than ecstasy as charged.
{¶9} Mathews testified that his file in Williamson’s case contained a copy
of State’s Exhibit 1, the unsigned report from BCI that indicated the drugs at issue
were methamphetamine. Mathews further testified that he did not recall noticing
that the substance at issue in Count One was methamphetamine rather than ecstasy
or having discussions with the prosecutor or his client about this. Mathews also
testified that he did not know how much that would have meant to him even if he
had noticed because there was an offer to sell ecstasy and because of the
substantial prison time that his client was facing on all of three counts. Mathews
specifically testified,
With the other counts he was facing, and, you know, we got the minimum on all of ‘em, I would have still recommended, you know, that he accept the plea negotiations whether he would have wanted to do that I don’t know, I would have still – you know, in light of everything that’s been brought to my attention here today as far as what I would have told him to do wouldn’t have been any different than what he ended up doing.
(Motion Hrg., 1/11/10, at pp. 34-35.) Mathews further testified that his practice is
to make copies of whatever he receives from the prosecution and to give those
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documents to his clients, especially clients that are in jail, like Williamson was
during Mathews’ representation of him. However, Mathews was not able to
specifically recall doing that in Williamson’s case.
{¶10} Williamson testified that he received a copy of his indictment, a bill
of particulars in his case, and a discovery response from the State prior to entering
his pleas but that he never received any lab reports indicating what the substances
at issue were before entering his pleas. He also testified that his understanding of
the charges were that he was being accused of having sold ecstasy on two
occasions and crack cocaine on one occasion. Williamson further testified that he
was not allowed to take anything with him when he was transferred from the local
jail to prison and that a friend of his who was in jail with him took his discovery
materials that he had in his jail property to the friend’s attorney to review.
Williamson’s wife was then contacted by that attorney and asked to obtain copies
of a number of items from the Marion County Clerk of Courts. The attorney then
contacted Williamson and informed him that although he pled guilty to Count One
based upon selling and offering to sell ecstasy, the lab results showed that the
substance sold was actually methamphetamine.
{¶11} Williamson testified on direct examination that he would not have
entered pleas of guilty if he would have known the substance involved in Count
One was methamphetamine rather than ecstasy. Williamson also testified that his
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attorney at the time of the plea was attempting to strike a deal that would get
Williamson less prison time and that Count One would have been a lesser charge
if he would have been charged with selling methamphetamine versus ecstasy.
Thus, he explained during cross-examination that he believed that his attorney
could have negotiated a lesser sentence for him if he would have had a lesser
charge with which to bargain.
{¶12} The trial court took the matter under advisement, and on January 19,
2010, the trial court overruled Williamson’s motion. This appeal followed, and
Williamson now asserts one assignment of error.
THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-APPELLANT BY DENYING HIS MOTION TO WITHDRAW HIS GUILTY PLEA.
{¶13} Our review of this assignment of error begins by noting that an
appellate court will not disturb a trial court’s denial of a motion to withdraw a
guilty plea absent an abuse of discretion. State v. Nathan (1995), 99 Ohio App.3d
722, 725, 651 N.E.2d 1044, citing State v. Smith (1977), 49 Ohio St.2d 261, 361
N.E.2d 1324. Abuse of discretion “connotes more than an error of law or
judgment; it implies that the court’s attitude is unreasonable, arbitrary or
unconscionable.” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450
N.E.2d 1140. Indeed, “‘the result must be so palpably and grossly violative of fact
or logic that it evidences not the exercise of will but the perversity of will, not the
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exercise of judgment but the defiance of judgment, not the exercise of reason but
instead passion or bias.’” State v. Orwick, 153 Ohio App.3d 65, 2003-Ohio-2682,
790 N.E.2d 1238, quoting State v. Jenkins (1984), 15 Ohio St.3d 164, 222, 473
N.E.2d 264. Thus, a reviewing court may not simply substitute its judgment for
that of the trial court but must afford deference to the trial court’s decision.
Blakemore, 5 Ohio St.3d at 219, 450 N.E.2d 1140.
{¶14} Criminal Rule 32.1 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.” A motion to withdraw a plea
filed after a defendant is sentenced will be granted only to correct a manifest
injustice with the burden of establishing the existence of a manifest injustice being
placed upon the individual seeking vacation of the plea. Crim.R. 32.1; Smith, 49
Ohio St.2d at 264, 361 N.E.2d 1324. A manifest injustice is an exceptional defect
in the plea proceedings, State v. Vogelsong, 3rd Dist. No. 5-06-60, 2007-Ohio-
4935, ¶ 12, or a “ ‘clear or openly unjust act,’” State v. Walling, 3rd Dist. No. 17-
04-12, 2005-Ohio-428, ¶ 6, quoting State ex rel. Schneider v. Kreiner, 83 Ohio
St.3d 203, 208, 699 N.E.2d 83, 1998-Ohio-271. “Accordingly, a post-sentence
motion to withdraw a guilty plea is only granted in ‘extraordinary cases.’” State v.
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Driskill, 3rd Dist. Nos. 10-08-10, 10-08-11, 2009-Ohio-2100, ¶ 32, quoting Smith,
supra.
{¶15} Here, Williamson contends that the trial court abused its discretion
in overruling his motion to withdraw his guilty pleas because his pleas involved a
mistake of fact, prosecutorial misconduct, and ineffective assistance of counsel.
Each of these claims is based upon the fact that the lab report indicated the
substance at issue in Count One was methamphetamine rather than ecstasy. As
noted, Williamson, the prosecutor who handled Williamson’s plea, and
Williamson’s counsel during the plea each acknowledged that the lab report at
issue appeared to have been overlooked by all. Further, the transcript of the plea
hearing, including the prosecutor’s recitation of what the State intended to prove if
the case proceeded to trial, indicates that everyone involved was operating under
the assumption that the drug at issue in the first count was ecstasy rather than
methamphetamine. Thus, there is no dispute that there was a mistake of fact as to
the first count. Nevertheless, the burden was on Williamson to demonstrate that
his pleas on all three counts resulted in a manifest injustice.
{¶16} Ineffective assistance of counsel is a proper basis for seeking a post-
sentence withdrawal of a guilty plea. State v. Mays, 174 Ohio App.3d 681, 2008-
Ohio-128, 884 N.E.2d 607, ¶ 8. When an alleged error underlying a motion to
withdraw a guilty plea is the ineffective assistance of counsel, the defendant must
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show (1) that his counsel’s performance was deficient and (2) that there is a
reasonable probability that, but for counsel’s errors, he would not have pled guilty.
State v. Xie (1992), 62 Ohio St.3d 521, 524, 584 N.E.2d 715, citing Strickland v.
Washington (1984), 466 U.S. 668, 104 S.Ct. 2052. In addition, when alleging
prosecutorial misconduct, a defendant must show that the prosecution’s conduct
was improper and, if so, whether the conduct prejudicially affected the defendant’s
substantial rights. State v. Lott (1990), 51 Ohio St.3d 160, 165, 555 N.E.2d 293.
Necessary to both of these contentions is a showing of prejudice to the defendant.
{¶17} In presenting his motion to the trial court, Williamson asserted that
he should have been charged in the first count with a felony of the fourth or fifth
degree rather than a second degree felony based upon the fact that the drug he sold
was methamphetamine not ecstasy. The trial court found this assertion to be
inaccurate.
{¶18} Williamson was charged in Count One with aggravated trafficking in
drugs. Aggravated trafficking in drugs is committed when a person knowingly
sells or offers to sell any compound, mixture, preparation, or substance listed as a
schedule I or schedule II controlled substance. R.C. 2925.03(A)(1), (C)(1).
Ecstasy is a Schedule I controlled substance (hallucinogen). See R.C. 3719.41,
Schedule I (C). Thus, a person can violate R.C. 2925.03(A)(1), (C)(1) by merely
offering to sell ecstasy. See State v. Chandler, 109 Ohio St.3d 223, 2006-Ohio-
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2285, 846 N.E.2d 1234, ¶ 9. Generally, a violation of R.C. 2925.03(A)(1), (C)(1)
is a felony of the fourth degree. R.C. 2925.03(C)(1)(a). However, the type of
substance, its form, its weight, and whether the offense occurred in the vicinity of
a school or a juvenile can elevate the offense to a higher degree of felony and can
also affect the type of sentence an offender receives. See R.C. 2925.03(C)(1)(b-f).
{¶19} In this case, Williamson does not dispute that he offered to sell 100
doses of ecstasy. In fact, it was the offer he made from Toledo, Ohio, over the
telephone to sell ecstasy to an informant, who was on a phone in Marion, Ohio,
that led Marion County to pursue its prosecution of Williamson, even though the
actual sale occurred in Toledo. Given these undisputed facts, Williamson
committed the offense of aggravated trafficking in drugs as charged in Count One
once he offered to sell ecstasy to the informant. This is true regardless of what the
substance he sold turned out to be or even if no drugs were ever recovered. See
Chandler, supra; Garr v. Warden, Madison Corr. Inst., __ Ohio St.3d __, 2010-
Ohio-2449, __ N.E.2d __, ¶ 28.
{¶20} The question remains as to the appropriate level of offense and the
consequent penalty range for this offense. Williamson maintains that he would
have been guilty of merely a fourth or fifth degree felony if properly charged with
selling methamphetamine rather than a second degree felony as actually charged
in Count One based upon the allegation that he sold equal to or more than five
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times the bulk amount of a schedule I or schedule II controlled substance.1
Neither party disputes that the 100 unit doses of ecstasy Williamson admits he
offered to sell is more than five times the bulk amount of ecstasy, which
constitutes a second degree felony.2 However, because the drugs were recovered,
tested, and found to be methamphetamine, the penalty enhancement for ecstasy
does not apply and the level of felony must be determined by the true identity,
form, and weight of the substance. See Chandler, supra. As a result, Williamson
asserts that he should be allowed to withdraw his plea because the amount and
form of the methamphetamines that he sold constitutes a lesser degree of felony.
We disagree, as did the trial court.
{¶21} Methamphetamines are a schedule II controlled substance
(stimulant). R.C. 3719.41, Schedule II (C). The bulk amount for
methamphetamine depends upon its form. If it is in a final dosage form
manufactured by a person authorized to do so by federal law, its bulk amount is an
amount equal to or in excess of 120 grams “or thirty times the maximum daily
dose in the usual dose range specified in a standard pharmaceutical reference
manual[.]” R.C. 2925.01(D)(1)(f). If it is not in a final dosage form manufactured
1 In his written motion to the trial court, Williamson asserted that he would have been guilty of a fifth degree felony. However, the statutes referenced above have a minimum fourth degree felony classification. In short, there is no felony of the fifth degree for the sale or offer to sell of schedule I or schedule II drugs. See R.C. 2925.03(C)(1)(a-f). In any event, at the hearing, Williamson’s attorney asserted that the offense Williamson committed was a fourth degree felony. 2 Revised Code section 2925.01(D)(1)(c) defines the bulk amount of ecstasy, a schedule I hallucinogen, as, inter alia, equal to or in excess of ten unit doses.
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by a person authorized to do so by federal law, i.e. street form, the bulk amount is
equal to or in excess of three grams. R.C. 2925.01(D)(1)(g).
{¶22} In this case, the methamphetamines weighed 31.9 grams. Therefore,
if the methamphetamines sold by Williamson were in their final dosage form and
legally manufactured, then the amount he sold would constitute a felony of the
fourth degree. See R.C. 2925.03(C)(1)(a). However, if the methamphetamines
sold by Williamson were in street form, then the amount he sold would be more
than five times the bulk amount, i.e. fifteen grams, which would constitute a
felony of the second degree. See R.C. 2925.03(C)(1)(d). Accordingly, if charged
for the substance he actually sold and that substance was in a final dosage form
that was legally manufactured, Williamson could have been subjected to a
maximum prison term of only eighteen months rather than a potential maximum
prison term of eight years. See R.C. 2929.14(A)(2), (4).
{¶23} The only evidence before the trial court that described the
methamphetamine was the lab report. This report described the substance as
thirty-four light green tablets, forty-eight dark green tablets, and eighteen light
purple tablets. Nothing in this report indicates that the tablets had markings to
identify a federally authorized manufacturer or that the tablets were in a final
dosage form. Further, the generic description of these tablets does not readily
indicate that they were in final dosage form manufactured by a federally
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authorized manufacturer. Thus, Williamson failed to establish that his level of
offense would have been less than the level of offense for which he was charged.
In fact, the trial court found that the evidence presented was more indicative that
these tablets were a street form of methamphetamine, which would constitute a
felony of the second degree, thereby rendering any misidentification of the
substance harmless as both Count One and a “corrected” Count One would be
second degree felonies. In light of the evidence, we cannot find that the trial court
abused its discretion in reaching this conclusion.
{¶24} Moreover, the crux of the plea agreement was in the sentencing
recommendation of the prosecutor not in the felony level of the charges.
Specifically, none of the charges against Williamson was reduced to a lesser
degree of offense. Instead, the prosecution agreed to seek no more than six years
of imprisonment on the three counts as charged with the understanding that
Williamson would request a pre-sentence investigation and would be requesting a
lesser sentence than that recommended by the prosecution. At sentencing,
although the trial court was well within its discretion to sentence Williamson to a
lengthier term of imprisonment, i.e. twenty-eight years, the trial court elected to
honor the spirit of the plea agreement between the State and Williamson and
sentenced Williamson to the recommended six years. Notably, the trial court
could have potentially sentenced Williamson to an aggregate sentence of twenty
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years on Counts Two and Three alone, neither of which counts Williamson has
challenged as factually inaccurate. Further, even assuming arguendo that
Williamson had been indicted for a fourth degree felony in Count One as he
contends would have been proper, his possible aggregate sentence could still have
been much longer than six years as there would have been the potential for a
sentence of twenty-one years and six months in prison.
{¶25} Lastly, Williamson stated that his concern for the level of offense
was that his attorney could have used the lesser offense to negotiate a lesser
sentence. Yet, both the prosecutor who entered into the plea agreement and
Williamson’s attorney at the time he entered his plea testified that the degree of
the offense in Count One did not particularly matter in light of the totality of
Williamson’s charges, the strength of the State’s case, and the possible collective
penalty to which he was subjected. Rather, the six-year-sentence could have been
reached in a variety of ways given the number of charges and the fact that two of
the charges were first degree felonies. In fact, this would still be the case even if
Count One had been established to be only a fourth degree felony as Williamson
now argues. Thus, Williamson’s assertion that his attorney could have negotiated
a lesser sentence if Count One was a lesser charge is wholly speculative. In light
of the potential sentences facing Williamson both as charged and as he contends
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he should have been charged, Williamson has failed to demonstrate any prejudice
he suffered as a result of his pleas.
{¶26} In short, Williamson had the burden to establish the existence of a
manifest injustice in order for the trial court to grant his motion to withdraw his
pleas. The trial court found that he failed to do so. In so doing, the trial court
also relied on a number of factors provided in State v. Fish (1995), 104 Ohio
App.3d 236, 661 N.E.2d 788, paragraph two of the syllabus. These factors include
the potential prejudice to the State such as by the loss or destruction of the
evidence as a result of the delay in filing the motion to withdraw the plea, the
representation afforded to the defendant by counsel, the extent of the hearing
conducted pursuant to Crim.R. 11, the extent of the hearing on the motion to
withdraw, the amount of consideration given to the motion by the court, the timing
of the motion, the reasons given for withdrawal, the defendant’s understanding of
the charges and penalties, and the existence of a meritorious defense.
{¶27} Even though these are factors that are to be considered in a pre-
sentence motion to withdraw, see Fish, supra, the trial court specifically found in
this case that the State had destroyed the drugs and would not be able to present
the drugs if required to go to trial. The court also found that Williamson’s trial
counsel was experienced and competent, the Crim.R. 11 hearing was exhaustive
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and in-depth, and that Williamson was given ample opportunity to present his
position at a full hearing on his motion to withdraw.
{¶28} In sum, the trial court fully considered the motion to withdraw and
the materials submitted to it by Williamson and found that the motion was filed
more than a year after Williamson pled guilty, that Williamson’s reasons for
withdrawal were not well founded, that he understood the charges and penalties
against him, and that his only defense to the charges was that the degree of offense
should be less, which was not supported by the evidence. A review of the record
reveals that each of these findings was supported by the record.
{¶29} Given the evidence before the court, we do not find that the trial
court’s decision is so palpably and grossly violative of fact or logic that it
evidences not the exercise of will but the perversity of will, not the exercise of
judgment but the defiance of judgment, not the exercise of reason but instead
passion or bias, or exhibits any other characteristics which would constitute an
abuse of discretion. Therefore, the assignment of error is overruled, and the
judgment of the Common Pleas Court of Marion County, Ohio, is affirmed.
ROGERS and PRESTON, J.J., concur.
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