State v. Williams , 2016 Ohio 4905 ( 2016 )

[Cite as State v. Williams, 2016-Ohio-4905.]
IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY
State of Ohio Court of Appeals Nos. L-15-1259
L-15-1260
Appellee
Trial Court Nos. CR0201501530
v. CR0201501819
Shaquille Williams DECISION AND JUDGMENT
Appellant Decided: July 8, 2016
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and
Matthew D. Simko, Assistant Prosecuting Attorney, for appellee.
Karin L. Coble, for appellant.
*****
PIETRYKOWSKI, J.
{¶ 1} Appellant, Shaquille Williams, appeals from two September 28, 2015
judgments journalized in two separate criminal actions following the acceptance of guilty
pleas. The appeals have been consolidated. In the first case, he was charged with
violating R.C. 2921.331(B) and (C)(5)(a)(ii), failure to comply with the order of a police
officer, a third-degree felony. In the second case, he was charged with two counts of
violating R.C. 2911.01(A)(1), aggravated robbery, a first-degree felony with firearm and
criminal gang specifications, and one count of participating in a criminal gang, a
violation of R.C. 2923.42(A) and (B), a second-degree felony. Pursuant to a plea
agreement, the charges in the second case were reduced to robbery, with a firearm
specification, a violation of R.C. 2911.02(A)(3) and (B) and 2941.145, and one count of
participating in a criminal gang.
{¶ 2} The court sentenced appellant to a one-year term of imprisonment on the
failure to comply offense (to be served first) and 18 months of imprisonment for each of
the robbery convictions and 4 years imprisonment for the participating in a criminal gang
conviction. All the terms of imprisonment were ordered to be served consecutively to
each other. Appellant asserts the following assignments of error on appeal:
Assignment of Error One: The trial court erred when it refused to
allow appellant to withdraw his plea before sentencing.
Assignment of Error Two: Clear and convincing evidence supports
reversing appellant’s consecutive sentences.
{¶ 3} Several delays of the trial of these cases arose. The state sought continuances
because of the unavailability of the officer who could identify appellant in the failure to
comply case. The state sought to join the two cases for trial. There was a possibility of an
additional indictment against appellant for another robbery. Appellant filed a pro se
motion seeking funds for expert assistance, a private investigator, and a reenactment team,
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which his appointed counsel did not recommend. The state also moved for a continuance
of the case involving the robbery charges because appellant had produced a statement
signed by his co-defendant exonerating appellant.
{¶ 4} On the date set for trial, the state moved for a continuance and also placed
on the record the plea agreement offered about a week prior to the hearing. The plea
agreement provided that appellant would plead guilty to the charges of failure to comply
and there would be a jointly-recommend sentence of a one-year term of imprisonment to
be served consecutive to any sentence imposed in the second case. As to the second case,
the plea agreement provided appellant would enter a guilty plea to two counts of the
lesser included offense of robbery and one count of participating in a criminal gang. The
jointly-recommended sentence would be a maximum of 17 years imprisonment, with
three years mandatory.
{¶ 5} The state alleged the facts it could prove as follows. Appellant was part of a
criminal gang from 2010 to 2015, and the gang was engaged in criminal activity. In
February 2015, appellant entered business establishments to survey the scene prior to the
planned robberies. Afterward, an accomplice entered the store and use a gun to demand
money. Appellant also acted as the getaway driver. Appellant was identified from
camera recordings. The prosecution had additional information which would lead to a
third robbery charge based on a DVD-recorded, verbal statement by a co-defendant
implicating appellant. However, the same co-defendant also provided a written statement
exonerating appellant. Because of additional information obtained, the state was
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prepared to add an additional aggravated robbery charge if appellant did not accept the
plea. The state also alleged that it could prove appellant failed to comply with the order
of a police officer to stop a motor vehicle for a traffic violation in March 2015.
{¶ 6} Appellant’s attorney stated he had not yet shown appellant the DVD of his
co-defendant’s statement implicating appellant. Appellant’s attorney sought time to
discuss the plea with appellant in light of the potential new charges. The prosecution
offered to hold the plea agreement open for an additional five days. The court called a
recess to give appellant the opportunity to discuss the plea with his counsel. After
consulting with his attorney during a nearly two-hour recess, appellant decided to enter a
guilty plea in each case at the time of the hearing.
{¶ 7} The trial court immediately conducted a thorough Crim.R. 11 plea hearing.
The trial court addressed appellant personally and appellant stated he was prepared to
enter guilty pleas. Appellant acknowledged he was clearheaded and able to understand
what was happening. The trial court confirmed appellant’s appearance, demeanor, and
responses indicated he was not under the influence or incapacitated. Appellant’s attorney
also agreed that appellant was clear and making his own decisions. Appellant indicated
that he and his attorney discussed the matter thoroughly and appellant was satisfied with
his representation and advice. Appellant acknowledged he understood the effect of the
guilty pleas and the penalties which could be imposed. The trial court explained
postrelease control and the rights and privileges appellant would be foregoing by entering
guilty pleas. At the end of the hearing, appellant stated that he was entering the guilty
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pleas voluntarily “[b]ecause I’m, um --because I did it. I own up to it.” The trial court
then accepted the pleas.
{¶ 8} However, at the beginning of the sentencing hearing held two days later on
August 19, 2015, appellant indicated to his attorney a desire to withdraw his prior guilty
pleas. Because the attorney was not notified ahead of time, he asked for the case to be
continued so a written motion could be filed. On August 27, 2015, appellant filed a
written motion to withdraw his plea in both cases. He asserted that he was confused and
overwhelmed at the time he entered the pleas, he did not fully understand the
consequences of entering the pleas, and he had numerous defenses he wished to assert.
Appellant asserted the state would not be prejudiced by withdrawal of the plea because
only two days had passed.
{¶ 9} On September 18, 2015, appellant sought a continuance so he could retain
private counsel. The court gave appellant one week to retain counsel or the appointed
counsel would continue representing appellant. After appellant failed to obtain retained
counsel by the date scheduled by the court, the court conducted a hearing on appellant’s
motion to withdraw his guilty pleas and denied it. Appellant was then sentenced.
{¶ 10} In his first assignment of error, appellant argues that the trial court erred by
denying his motion to withdraw his guilty pleas when the motions were made prior to
sentencing.
{¶ 11} There is no absolute right to withdraw a guilty plea after conviction, but
prior to sentencing, State v. Xie, 62 Ohio St. 3d 521, 584 N.E.2d 715 (1992), paragraph
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one of the syllabus. The matter is left to the sound discretion of the trial court who is in
the better position to evaluate both the motivation of the defendant in pleading guilty and
the credibility and weight to be given to the reasons for seeking to withdraw the plea. Id.
at paragraph two of the syllabus. While appellant informed the court that he wished to
withdraw the pleas only two days after he had entered his pleas, other factors can weigh
in favor of denying the motion even though it was timely made. State v. Goings, 6th
Dist. Lucas No. L-13-1103, 2014-Ohio-2322, ¶ 15.
{¶ 12} An appellate court will not reverse the trial court’s denial of the motion
unless the defendant can establish that the trial court abused its discretion. Xie at 525.
An abuse of discretion standard requires a finding that the trial court committed “more
than an error of law or of judgment; it implies that the court’s attitude is unreasonable,
arbitrary or unconscionable * * *.” State v. Adams, 62 Ohio St. 2d 151, 157, 404 N.E.2d
144 (1980).
{¶ 13} Crim.R. 32.1 gives no criteria for determining when withdrawal of a plea is
justified. However, the Ohio Supreme Court has held that “a presentence motion to
withdraw a guilty plea should be freely and liberally granted.” Xie at 527. Appellate
courts evaluate the trial court’s decision based upon the following considerations:
(1) whether the state will be prejudiced by withdrawal; (2) the
representation afforded to the defendant by counsel; (3) the extent of the
Crim.R. 11 plea hearing; (4) the extent of the hearing on the motion to
withdraw; (5) whether the trial court gave full and fair consideration to the
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motion; (6) whether the timing of the motion was reasonable; (7) the
reasons for the motion; (8) whether the defendant understood the nature of
the charges and potential sentences; and (9) whether the accused was
perhaps not guilty or had a complete defense to the charge. State v.
Murphy, 176 Ohio App. 3d 345, 2008-Ohio-2382, 891 N.E.2d 1255, ¶ 39
(6th Dist.), quoting State v. Griffin, 141 Ohio App. 3d 551, 554, 752 N.E.2d
310 (2001).
A change of heart is an insufficient reason to permit withdrawal of the plea. State v.
Locher, 4th Dist. Scioto No. 11CA3414, 2012-Ohio-787, ¶ 11; State v. Lawhorn, 6th
Dist. Lucas No. L-08-1153, 2009-Ohio-3216, ¶ 23 (citations omitted).
{¶ 14} The trial court did not indicate in its decision the basis for denying the
motions to withdraw the pleas. Appellant argues that without a written basis, the trial
court’s judgments cannot be reviewed and weighs in favor of finding an abuse of
discretion. We disagree. While a written explanation of the court’s reasoning is always
helpful, it is not necessary or required by law. There is sufficient evidence in the record
upon which we can determine if denial of the motion was the result of an abuse of
discretion.
{¶ 15} The hearing on the motion to withdraw was very thorough. Appellant
asserted that he was seeking to withdraw the pleas because he was “confused,
overwhelmed and unable to think clearly.” He asserts on appeal the threat of additional
felony charges pressed him to enter guilty pleas. Our review of the record indicates,
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however, that the plea negotiations had been ongoing for some time and appellant did not
have to enter his plea on August 17, 2015. He was given time to discuss the matter with
counsel at that time and could have delayed his decision for several days. While the
threat of additional indictments may have motivated appellant to consider the plea
agreements, there is no evidence in the record that appellant was unduly burdened or
compelled to make a quick decision.
{¶ 16} Appellant also asserts he had “various” defenses and a claim of innocence.
The only defenses his attorney asserted were a claim of innocence in the first case and
attacking the credibility of a witness in the second case. In the first case, the officer
involved was able to identify appellant as the driver of the vehicle involved. While
appellant’s counsel specifically addressed the exculpatory statement of a co-defendant in
the second case, the state also had a witness who could identify appellant and other
evidence implicating appellant. The state also had an expert witness for the gang
participation charge.
{¶ 17} Appellant argued the competency of his counsel was questionable since
appellant had to file a pro se motion for investigatory funds on August 17, 2015.
Appointed counsel stated, however, that no further investigation was necessary and
counsel had not subpoenaed any witnesses to appear for trial. Appellant has not
identified what facts further investigation might confirm or reveal. Appellant also
asserted that the attorney-client relationship had broken down because appellant was
seeking to retain private counsel. The trial court gave appellant additional time to retain
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new counsel, but appellant was unable to do so. Appellant had been forewarned by the
court that if private counsel was not retained by September 25, 2015, his appointed
counsel would remain counsel of record.
{¶ 18} The state argued it would be prejudiced by having to try the case due to the
nature of the gang connection and the difficulty in obtaining witnesses willing to testify
against appellant. Appellant argued that the two-day gap from the entry of the plea to
sentencing would not have altered any aspect of the state’s ability to prosecute the case.
However, we agree with the prosecution that there is prejudice where the prosecution
must reinstate its case that it believed was resolved and for a second time convince
witnesses to testify. An accomplice had already been sentenced and there was no longer
leverage the state could use to make the accomplice testify against appellant.
{¶ 19} After consideration of the facts presented at the hearing the trial court
denied the motion to withdraw the guilty pleas. In light of the facts presented, we cannot
find that appellant has shown the trial court abused its discretion. There was evidence
that appellant was given ample opportunity to consider his plea. Appellant failed to
present any justification for withdrawing the pleas other than a change of heart. The
court even allowed appellant time to retain counsel, but he failed to do so. Appellant
failed to present any significant defense that would justify withdrawal of the pleas. The
state would be prejudiced by the withdrawal of the pleas. Therefore, we find appellant’s
first assignment of error not well-taken.
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{¶ 20} In his second assignment of error, appellant argues that clear and
convincing evidence supports reversing appellant’s consecutive sentences.
{¶ 21} Appellant jointly agreed to the imposition of a one-year sentence in the
failure to comply case and that it would run consecutive to the sentence imposed in the
second case. He acknowledges that he cannot challenge the first sentence. However, he
argues that the imposition of consecutive sentences for the robbery convictions in the
second case was not supported by the evidence.
{¶ 22} At the sentencing hearing, the trial court stated:
consecutive sentences are necessary to fulfill the purposes of 2929.11 and
2929.14 and * * * to protect the public from future crime, to punish the
offender and that they’re not disproportionate to the seriousness of the
offender’s conduct and the danger offender poses. The court further finds
that the harm caused was great or unusual, that no single prison term is
adequate and the defendant’s criminal history requires consecutive
sentences.
{¶ 23} In the sentencing judgment, the trial court found consecutive six-year terms
of imprisonment were:
necessary to protect the public from future crime or to punish the offender
and are not disproportionate to the seriousness of the offender’s conduct
and to the danger the offender poses to the public. The court further finds
the harm caused was great or unusual such that no single prison term is
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adequate, and the defendant’s criminal history demonstrates that
consecutive sentences are necessary to protect the public, * * *.
{¶ 24} Appellant argues the trial court did not link any of these findings to the
facts in evidence. The sentencing court was not required to do so. State v. Bonnell, 140
Ohio St. 3d 209, 2014-Ohio-3177, 16 N.E.3d 659, paragraph one of the syllabus.
However, in our review of the sentence, we can reverse a sentence imposing consecutive
sentences if we find by clear and convincing evidence that the record does not support the
trial court’s statutory findings. R.C. 2953.08(G)(2)(a); State v. Belew, 140 Ohio St. 3d
221, 2014-Ohio-2964, 17 N.E.3d 515, ¶ 12 (Lanzinger, J., dissenting); State v. Jury, 6th
Dist. Erie No. E-14-100, 2016-Ohio-2663, ¶ 70; State v. Kay, 2d Dist. Montgomery No.
26344, 2015-Ohio-4403, ¶ 15. Clear and convincing evidence “is more than a mere
‘preponderance of the evidence,’ but not to the extent of such certainty as is required
‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v.
Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954), paragraph three of the syllabus.
{¶ 25} Appellant argues that the finding of “great or unusual harm,” is
unsupported by the record because a robbery is not “unusual” and there was no “great
harm” caused. Appellant did not have a gun, no person was physically harmed, and there
was no property damage. Furthermore, because the court did not impose maximum,
concurrent prison terms, the court must not have considered the offenses as causing great
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or unusual harm. He also contends consecutive sentences were also unnecessary to
punish appellant.
{¶ 26} Before imposing consecutive sentences, the trial court must find that
consecutive sentences are “necessary to protect the public from future crime or to punish
the offender and that consecutive sentences are not disproportionate to the seriousness of
the offender’s conduct and to the danger the offender poses to the public,” and that one of
the circumstances listed at R.C. 2929.14(C)(4)(a), (b), (c) existed. R.C. 2929.14(C)(4).
In the case before us, the court found both subsections (b) and (c) existed:
(b) At least two of the multiple offenses were committed as part of
one or more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the courses
of conduct adequately reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future crime
by the offender.
{¶ 27} There must be actual evidence of, not the potential for, “great or unusual”
harm in evidence to support the finding. State v. Eager, 3d Dist. Henry No. 7-15-02,
2015-Ohio-3525, ¶ 29 (Rogers, P.J., dissenting); State v. Hale, 3d Dist. No. 9-13-17,
2014-Ohio-262, 7 N.E.3d 643, ¶ 45 (Rogers, J., concurring in part and dissenting in part);
State v. Bruce, 4th Dist. Washington No. 02CA51, 2003-Ohio-4081, ¶ 20 (applying R.C.
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2929.14(E)(4), effective April 7, 2003, predecessor to R.C. 2929.14(C)(4)). However,
when a guilty plea is involved, there are no facts in evidence and the determination must
be derived from the statement of what facts the prosecution would have proven if the case
had gone to trial.
{¶ 28} At the sentencing hearing, the prosecution sought a substantial sentence for
the robbery and criminal gang convictions. The state had evidence appellant had
previously admitted to being a member of a gang while in detention as a juvenile for
aggravated robbery, which was also the result of gang activity. The state emphasized the
gang connection was significant because it was difficult to prosecute appellant when
other gang members would assist appellant by intimidating witnesses. Because the
crimes occurred in the neighborhood where the gang still operates, witnesses were
reluctant to testify.
{¶ 29} Therefore, we find that there was evidence upon which the court have
concluded that the offenses in this case caused great and unusual harm because of the
gang connection and a single term would not adequately reflect the seriousness of
appellant’s conduct. Accord, State v. Oliver, 7th Dist. Mahoning No. 12 MA 212, 2015-
Ohio-2684, ¶ 37. Therefore, we find appellant’s second assignment of error not well-
taken.
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{¶ 30} Having found the trial court did not commit error prejudicial to appellant
and that substantial justice has been done, the judgment of the Lucas County Court of
Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant
to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________
JUDGE
Arlene Singer, J.
_______________________________
James D. Jensen, P.J. JUDGE
CONCUR.
_______________________________
JUDGE
This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.
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