State v. Thomas ( 2014 )


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  • [Cite as State v. Thomas, 
    2014-Ohio-4929
    .]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 101067
    STATE OF OHIO
    PLAINTIFF-APPELLEE
    vs.
    MOSES THOMAS
    DEFENDANT-APPELLANT
    JUDGMENT:
    AFFIRMED
    Criminal Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CR-13-574981-A
    BEFORE:         Blackmon, J., E.A. Gallagher, P.J., and E.T. Gallagher, J.
    RELEASED AND JOURNALIZED:                   November 6, 2014
    -i-
    ATTORNEY FOR APPELLANT
    John T. Castele
    Rockefeller Building, Suite 1310
    614 West Superior Avenue
    Cleveland, Ohio 44113
    ATTORNEYS FOR APPELLEE
    Timothy J. McGinty
    Cuyahoga County Prosecutor
    By: Brent C. Kirvel
    Assistant Prosecuting Attorney
    The Justice Center, 9th Floor
    1200 Ontario Street
    Cleveland, Ohio 44113
    PATRICIA ANN BLACKMON, J.:
    {¶1}    Appellant Moses Thomas appeals the trial court’s denial of his motion to
    withdraw his guilty plea and assigns the following errors for our review:
    I. The trial court erred by not holding a separate hearing to determine the merits of
    the defendant’s pre-sentence, oral motion to withdraw his plea pursuant to
    Crim.R. 32.1.
    II. The trial court erred by not holding a hearing to determine if aggravated murder
    and aggravated robbery were allied offenses of similar import.
    {¶2}    Having reviewed the record and pertinent law, we affirm the trial court’s decision.
    The apposite facts follow.
    {¶3}    On June 6, 2013, the Cuyahoga County Grand Jury indicted Thomas, along with
    three codefendants, for aggravated murder, aggravated burglary, aggravated robbery, kidnapping,
    theft, and having weapons while under disability. The one-and three-year firearm specification,
    notice of prior conviction, and repeat violent offender specifications were attached to several
    counts. On June 12, 2013, Thomas pleaded not guilty at his arraignment.
    {¶4}    On December 27, 2013, pursuant to a plea agreement with the state, Thomas
    pleaded guilty to one count of aggravated murder and one count of aggravated robbery with the
    attached one- and three-year firearm specifications. As a condition of the plea, Thomas agreed
    to testify truthfully if called to testify in the trials of his codefendants. In exchange for the pleas,
    the state dismissed the remaining charges.
    {¶5}    On February 25, 2014, Thomas appeared for sentencing. Prior to sentencing,
    Thomas, through counsel, indicated that he desired to withdraw his guilty pleas. After a brief
    discussion, wherein Thomas indicated that he believed he would be facing too much prison time,
    the trial court denied the request to withdraw the pleas.
    {¶6}    The trial court proceeded to sentence Thomas to 25 years to life consecutive to the
    three-year firearm specification for a total of 28 years on the aggravated murder charge. The
    trial court also sentenced Thomas to 11 years consecutive to the three-year firearm specification
    for a total of 14 years on the aggravated robbery charge. The trial court ordered that the
    sentences on each count be served concurrently for a total of 28 years.
    Withdrawal of Guilty Plea
    {¶7}    In the first assigned error, Thomas argues the trial court should have held a
    hearing to determine whether his request to withdraw his guilty plea was meritorious.
    {¶8}    Under Crim.R. 32.1, 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.
    {¶9}    In general, “a presentence motion to withdraw a guilty plea should be freely and
    liberally 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. A trial court must conduct a hearing to determine whether there is a
    reasonable legitimate basis for the withdrawal of the plea.” 
    Id.
     at paragraph one of the syllabus.
    {¶10} The decision to grant or deny a motion to withdraw is within the trial court’s
    discretion. 
    Id.
     at paragraph two of the syllabus. Absent an abuse of discretion, the trial court’s
    decision must be affirmed. Id. at 527. An abuse of discretion requires a finding that the trial
    court’s decision was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 
    5 Ohio St.3d 217
    , 219, 
    450 N.E.2d 1140
     (1983).
    {¶11} We have previously held that
    [i]t is not an abuse of discretion to deny a presentence motion to withdraw a guilty
    plea when a defendant: (1) is represented by competent counsel; (2) is given a full
    Crim.R. 11 hearing before entering a plea; and (3) is given a hearing on the
    motion to withdraw that plea during which the court considers the defendant’s
    arguments in support of the motion.
    State v. Bridges, 8th Dist. Cuyahoga No. 87633, 
    2006-Ohio-6280
    , ¶ 5; see also State v.
    Peterseim, 
    68 Ohio App.2d 211
    , 
    428 N.E.2d 863
     (8th Dist.1980), paragraph three of the syllabus.
    {¶12} After reviewing the instant matter, we find no abuse of discretion in the trial
    court’s denial of Thomas’s motion to withdraw his guilty plea.          On the morning of the
    sentencing hearing, the following exchange took place:
    The Court:            And we are here for purposes of
    sentencing. [Counsel]  it’s my
    understanding that you want to
    address the Court.
    [Counsel:]            Your Honor, I’ve taken the opportunity to
    speak to Mr. Thomas at length this morning.
    And Mr. Thomas has indicated to me that it
    is his desire to request that he be allowed to
    withdraw his plea.
    The Court:            All right. And what is the basis of that, Mr.
    Thomas? Why do you want to withdraw
    your plea?
    The Defendant:        I feel like it’s too much time.
    The Court:            All right. So is there any reason why you
    would withdraw your plea of guilty, other
    than that?
    The Defendant:        No, your Honor.
    The Court:            You were satisfied with your representation
    by [Counsel]; is that correct?
    The Defendant:        Yes, your Honor.
    The Court:          And when we went over the plea, you
    understood your rights, and the rights you
    were giving up by pleading guilty?
    The Defendant:      Yes, your Honor.
    The Court:          And you understood all the potential
    penalties? They were all explained to you?
    The Defendant:      Yes, your Honor.
    The Court:          All right. Anything else from the State?
    [The Prosecutor:]
    Judge, I’ve reviewed the case law recently, and similar
    circumstances, and I know that this Court’s vested with
    discretion here, and standards and abuse of discretion. It’s
    also been pointed out and reaffirmed recently by the Eighth
    District Court of Appeals that, quote, from yet even an
    earlier case, they’re quoting in the last case that I looked at
    being the Eighth District, quote, “Buyer’s remorse is not a
    reason to withdraw a plea.” And I believe that’s what —
    the only thing that’s going on right here is — falls under
    the umbrella of buyer’s remorse. I think the Court’s
    questions were appropriate regarding the — his beliefs and
    understanding at the time of the plea. And also the fact
    that there’s no other reason than the time associated with
    these particular charges, it’s a confession-based case.
    ***
    The Court:          [Counsel.]
    [Counsel:]          The only thing I would say on the record is
    the Eighth District Court of Appeals has
    consistently treated withdrawals of pleas
    prior to sentencing and after sentencing
    differently. And he has not been sentenced
    yet. The Court has not announced what it’s
    sentence is going to be, and I think that the
    Eighth District has viewed withdrawing the
    plea    more     favorably    under    those
    circumstances, so I would just add that for
    the record.
    The Court:              All right. After conducting a short hearing,
    I mean, I don’t believe there’s a basis to
    withdraw the plea. He was aware of his
    rights. He’s happy with the representation
    he received from a distinguished lawyer in
    the county. There were several pretrials
    involved here. He admitted his guilt at
    plea, and I believe to police officers, so I
    don’t believe there’s a basis — so I’m going
    to deny the request to withdraw the plea.
    Tr. 23-26.
    {¶13} Preliminarily, we note, the above excerpt from the sentencing hearing, as well as
    our review of the plea hearing, reveals that the trial court substantially complied with Crim.R.
    11(C)(2)(a).   We find that Thomas’s plea was knowingly, voluntarily, and intelligently made.
    {¶14} The record reveals that Thomas was represented by competent counsel, who, in the
    trial court’s opinion, was a distinguished lawyer in this county, and Thomas indicated that he
    was happy with the representation. As stated previously, our review indicated that the trial court
    substantially complied with Crim.R. 11(C)(2)(a) and the record indicates that Thomas was given
    a full Crim.R. 11 hearing before entering his plea.
    {¶15} In addition, despite Thomas’s assertion to the contrary, our review of the record
    demonstrates that the trial court gave Thomas a complete and impartial hearing on his
    presentence motion to withdraw his guilty plea. Here, Thomas’s sole reason for requesting that
    the trial court withdraw his plea was that he would be facing too much time. In denying the
    motion, the trial court indicated that the matter was significantly pretried and that Thomas
    admitted his guilt at the plea hearing and to the police.
    {¶16} Thus, Thomas’s change of heart or what the prosecutor characterized as “buyer’s
    remorse” was not sufficient to warrant the withdrawal of his guilty plea where, as here, the record
    supports the trial court’s finding that Thomas entered his plea voluntarily, knowingly, and
    intelligently. State v. Creed, 8th Dist. Cuyahoga No. 97317, 
    2012-Ohio-2627
    , ¶ 19.
    Accordingly, we overrule the first assigned error.
    Allied Offenses
    {¶17} In the second assigned error, Thomas argues the trial court erred by not conducting
    a hearing to determine whether aggravated robbery and aggravated murder were allied offenses
    of similar import.
    {¶18} Ohio courts have long used a two-prong test to determine whether multiple
    offenses should be considered allied offenses and merged. “The first prong looks to the import of
    the offenses and requires a comparison of their elements.” State v. Washington, 
    137 Ohio St.3d 427
    , 
    2013-Ohio-4982
    , 
    999 N.E.2d 661
    , ¶ 13. “If the elements ‘correspond to such a degree that
    the commission of one offense will result in the commission of the other,’ the offenses share a
    similar import.” 
    Id.,
     citing State v. Mitchell, 
    6 Ohio St.3d 416
    , 418, 
    453 N.E.2d 593
     (1983). “The
    second prong looks to the defendant’s conduct and requires a determination whether the offenses
    were committed separately or with a separate animus.” Washington at ¶ 13.
    {¶19} Over the years, confusion arose as to whether, under the first prong, the elements
    should be viewed in the abstract or in light of the particular facts of each case. In State v.
    Johnson, 
    128 Ohio St.3d 153
    , 
    2010-Ohio-6314
    , 
    942 N.E.2d 1061
    , the Supreme Court of Ohio
    overruled its prior decision and concluded that the defendant’s conduct must be considered in
    analyzing the first prong of the allied offenses analysis.
    {¶20} Although Johnson abandoned the abstract component of the first prong, it did not
    change the second prong, which has always required courts to determine whether the offenses
    “were committed separately or with a separate animus.” Washington at ¶ 12.
    {¶21} Regarding aggravated murder and aggravated robbery, before Johnson, the
    Supreme Court of Ohio had repeatedly rejected the double-jeopardy claim and held that
    aggravated murder is not an allied offense of similar import to an underlying aggravated robbery.
    State v. Coley, 
    93 Ohio St.3d 253
    , 264-265, 
    2001-Ohio-1340
    , 
    754 N.E.2d 1129
    , citing State v.
    Reynolds, 
    80 Ohio St.3d 670
    , 681, 
    1998-Ohio-171
    , 
    687 N.E.2d 1358
    ; State v. Smith, 
    80 Ohio St.3d 89
    , 117, 
    1997-Ohio-355
    , 
    684 N.E.2d 668
    .
    {¶22} Johnson, 
    128 Ohio St.3d 153
    , 
    2010-Ohio-6314
    , 
    942 N.E.2d 1061
    , which instructed
    the court to look to the defendant’s conduct in the particular case under the first prong, does not
    change the analysis.   Thomas shot his cousin execution style in the back of the head because of
    years of pent-up animus, hostility, and hidden rage, stemming from years of abuse that he was
    unable to confront his cousin about. Afterwards, while his cousin was laying in a pool of blood,
    Thomas went through the victim’s pockets and took his possessions.
    {¶23} Applying the first prong and considering his conduct, the two offenses do not
    correspond to such a degree that the commission of one offense will result in the commission of
    the other. Under the second prong, the two offenses were committed separately and with a
    separate animus. Therefore, the two offenses are not allied offenses subject to merger.
    {¶24} We note that, at the sentencing hearing, the trial court did not consider whether the
    two offenses were allied offenses subject to merger, and the defense counsel did not raise the
    issue. In State v. Rogers, 
    2013-Ohio-3235
    , 
    994 N.E.2d 499
    , conflict certified, 
    136 Ohio St.3d 1508
    , 
    2013-Ohio-4657
    , 
    995 N.E.2d 1212
    , an allied offenses issue existed regarding whether an
    offender who received the property of two or more persons in a single transaction may be
    convicted for more than one count of receiving stolen property. The trial court did not conduct a
    merger analysis, and the defense counsel failed to raise the issue. This court remanded the case
    to the trial court for a merger analysis, even though the defense counsel’s failure to raise the issue
    could have been construed as a waiver.
    {¶25} This case does not require a remand pursuant to Rogers. As Rogers itself noted,
    not every case involving multiple convictions with a silent record will require an allied-offenses
    determination by the trial court. Id. at ¶ 26. Rogers required a remand because a facial question of
    allied offenses existed, yet there was insufficient facts of the defendant’s actual conduct placed
    on the record for an appellate review. In contrast, here, the record plainly shows that Thomas’s
    two offenses are not allied offenses and, therefore, a remand is not warranted. Accordingly, we
    overrule the second assigned error.
    {¶26} Judgment affirmed.
    It is ordered that appellee recover of appellant costs herein taxed.
    The court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate be sent to said court to carry this judgment into
    execution.   The defendant’s conviction having been affirmed, any bail pending appeal is
    terminated. Case remanded to the trial court for execution of sentence.
    A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the
    Rules of Appellate Procedure.
    PATRICIA ANN BLACKMON, JUDGE
    EILEEN A. GALLAGHER, P.J., and
    EILEEN T. GALLAGHER, J., CONCUR
    

Document Info

Docket Number: 101067

Judges: Blackmon

Filed Date: 11/6/2014

Precedential Status: Precedential

Modified Date: 11/6/2014