State v. Philpot , 2022 Ohio 1499 ( 2022 )

[Cite as State v. Philpot, 2022-Ohio-1499.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
No. 110828
v. :
ADOLPHUS PHILPOT, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: May 5, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-21-658357-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kristen L. Hatcher, Assistant Prosecuting
Attorney, for appellee.
Mary Catherine Corrigan and Britt Newman, for
appellant.
MARY J. BOYLE, J.:
Defendant-appellant, Adolphus Philpot (“Philpot”), appeals his guilty
plea and sentence for felonious assault and having weapons while under disability
(“HWWUD”). For the reasons set forth below, we affirm the trial court’s judgment.
In April 2021, Philpot was charged with two counts of felonious
assault (Counts 1 and 2) and one count of HWWUD (Count 3).1 Each of the felonious
assault counts carried one- and three-year firearm specifications. On the day of trial,
July 1, 2021, plaintiff-appellee, the state of Ohio, offered Philpot two plea options.
The trial court gave Philpot additional time, off the record, to discuss the options
before proceeding with trial.
When the matter resumed on the record, the state explained that
there was an oversight in the plea agreement regarding the HWWUD count, which
was not included in either plea option. Defense counsel for Philpot explained to the
court that he confirmed with the state that Philpot accepted option 1, which was
pleading guilty to felonious assault (Count 2), with a one-year firearm specification,
and the remaining specification and all other counts would be dismissed. Then,
before the matter was to resume on the record again, he was advised that an
additional count was added to the plea, the HWWUD. The trial court stated:
Well, let me say this; I almost never get involved in plea bargaining, and
I will acknowledge that any time you’re admitting to a crime, any crime,
there is — it’s a disadvantage to you. You have a record of a felony
conviction. So acknowledging that and generally being reluctant to
insert myself into the plea bargaining, what if I say this; I don’t know if
Mr. Philpot has a plea bargain what his sentence will be — sentences,
there’s more than one charge, but I will say if he pled to a felonious
assault that had a firearm spec prison is mandatory. What if there’s an
understanding that if he is sent to prison on a weapons under disability
that it would be; A, equal to or less time than on the felonious and; B,
concurrent?
1 Philpot’s bond was revoked on June 24, 2021, after evidence at a hearing revealed
that Philpot violated the conditions of his bond by calling the victim and offering money
to drop the accusations against him.
(Tr. 38, July 1, 2021.)
The trial court then gave Philpot time to discuss the matter with
defense counsel off the record. When the matter resumed on the record, defense
counsel indicated that Philpot accepted the plea agreement with the addition of the
HWWUD count. The trial court then proceeded with the Crim.R. 11 plea colloquy,
and Philpot pled guilty to an amended count of felonious assault (Count 2), with a
one-year firearm specification attached, and HWWUD (Count 3). The remaining
count and firearm specifications were dismissed. At the court’s suggestion, both
parties agreed for the court to use a previous presentence investigation report from
2015 for Philpot.
On July 23, 2021, Philpot filed a presentence motion to withdraw his
guilty plea. The trial court held a hearing on the matter on August 5, 2021. Philpot
argued that he felt coerced to accept the plea agreement because the state changed
the plea after he communicated to the state that he would accept it. As a result,
Philpot claimed he was in a “very pressured situation” and did not have ample time
to do a “cost-benefit analysis.” The state acknowledged that there was some
confusion regarding the plea at the time, but Philpot did proceed through the
Crim.R. 11 colloquy without raising that concern and the trial court complied with
Crim.R. 11. The court denied the motion, finding that while “the question of what to
do about the weapons under disability charge was apparently not resolved between
the parties before we went on the record that hearing, [the issue] was adequately
addressed during the change of plea hearing.” As a result, the court found that “the
guilty plea was knowingly and voluntarily made.”
Before the court could proceed directly to sentencing, Philpot
indicated he was unsatisfied with defense counsel’s representation and would like
new assigned counsel. Philpot stated that he was dissatisfied because he just
received discovery. When the trial court inquired further, Philpot stated that
defense counsel had advised what he learned but did not give him actual copies of
documents until the day of the hearing. Philpot also stated that he felt rushed in
taking the plea but did acknowledge that he had a thorough conversation with the
court about his plea and sentence. The trial court stated that the criminal rules were
followed, and Philpot was given the proper advisements. The court further stated to
Philpot that it did not “remember you ever telling me you didn’t understand what
was going on or that you were too rushed[.]” (Tr. 95, Aug. 5, 2021.). After giving
defense counsel an opportunity to speak, the trial court denied the motion.
The matter then proceeded to sentencing on August 31, 2021. The
trial court sentenced Philpot to one year in prison on the firearm specification, to be
served prior and consecutive to the felonious assault charge (Count 2). The trial
court sentenced Philpot to an indefinite sentence of three to four-and-one-half years
pursuant to the Reagan Tokes Law on felonious assault, a second-degree felony. The
trial court imposed a sentence of 24 months on HWWUD (Count 3), a third-degree
felony, to be served concurrently with the sentence on Count 2.
Philpot now appeals, raising the following four assignments of error
for our review, which shall be discussed together where appropriate.
First Assignment of Error: The trial court abused its discretion when it
failed to grant [Philpot’s] pre-sentence motion to withdraw plea.
Second Assignment of Error: The trial court violated the [Philpot’s]
Sixth Amendment rights to the effective assistance of counsel when it
failed to grant a substitution of assigned counsel.
Third Assignment of Error: Trial counsel was ineffective for failing to
object to the imposition of the Reagan Tokes tail.
Fourth Assignment of Error: The trial court erred by imposing an
unconstitutional sentence pursuant to the Reagan Tokes Act.
Presentence Motion to Withdraw Plea
In the first assignment of error, Philpot argues the trial court abused
its discretion when it denied his presentence motion to withdraw his guilty plea.
Under Crim.R. 32.1, a criminal defendant may move to withdraw a
guilty plea before sentence is imposed. Generally, “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). A defendant, however, “does not have an
absolute right to withdraw a plea prior to sentencing.” Id. at paragraph one of the
syllabus. “[T]he trial court must conduct a hearing to determine whether there is a
reasonable and legitimate basis for the withdrawal of the plea.” Id.Appellate courts review a trial court’s ruling on a presentence motion
to withdraw a guilty plea for an abuse of discretion. Id. at paragraph two of the
syllabus. An abuse of discretion occurs when the trial court’s ruling was
‘“unreasonable, arbitrary or unconscionable.’” Id., quoting State v. Adams, 62 Ohio
St.2d 151, 157, 404 N.E.2d 144 (1980).
This court has held that a trial court’s denial of a presentence motion
to withdraw is not an abuse of discretion when the record reflects: (1) the defendant
is represented by highly competent counsel; (2) the accused was afforded a full
hearing, pursuant to Crim.R. 11, before he entered the plea; (3) after the motion to
withdraw is filed, the accused is given a complete and impartial hearing on the
motion; and (4) the court gives full and fair consideration to the plea withdrawal
request. State v. Peterseim, 68 Ohio App.2d 211, 214, 428 N.E.2d 863 (8th
Dist.1980).
In addition to the Peterseim factors, Ohio courts have recognized a
nonexhaustive list of additional factors, which trial courts should also consider when
deciding a presentence motion to withdraw a plea. State v. Walcot, 8th Dist.
Cuyahoga No. 99477, 2013-Ohio-4041, ¶ 19. These factors include whether: (5) the
state will be prejudiced by the withdrawal; (6) the motion was made timely; (7) the
motion states specific reasons for withdrawal; (8) the defendant understood the
nature of the charges and the possible penalties; and (9) whether the defendant was
perhaps not guilty or had a complete defense. Id., citing State v. Fish, 104 Ohio
App.3d 236, 240, 661 N.E.2d 788 (1st Dist.1995); State v. Moore, 8th Dist. Cuyahoga
No. 98132, 2012-Ohio-5734. “A mere change of heart regarding the guilty plea and
the possible sentence is not a legitimate basis for the withdrawal of a plea.” State v.
Westley, 8th Dist. Cuyahoga No. 97650, 2012-Ohio-3571, ¶ 7, citing State v. Drake,
73 Ohio App.3d 640, 645, 598 N.E. 2d 115 (8th Dist.1991); State v. Lambros, 44
Ohio App.3d 102, 103, 541 N.E.2d 632 (8th Dist.1988).
With regard to the Peterseim factors, Philpot argues that he was not
represented by “highly competent counsel” because the plea offers changed by
adding an additional third-degree felony, he had not sufficiently reviewed the
discovery or viewed the video with defense counsel, and defense counsel indicated
that he would file a sentencing memorandum and never did. Philpot also argues
that while the trial court asked the proper questions during his plea colloquy, the
court should have ceased the plea hearing once Philpot advised that he could not
read and had untreated mental health issues. He further argues the trial court did
not give him full and fair consideration of his motion.
After reviewing the record in the instant case, we find that the trial
court did not abuse its discretion in denying Philpot’s presentence motion to
withdraw his guilty plea. Although Philpot claims he was not represented by highly
competent counsel, defense counsel negotiated a plea that deleted a three-year
firearm specification, reducing his mandatory sentence by two years and dismissed
the other felonious assault count and accompanying firearm specifications. During
the plea colloquy, Philpot indicated that he was satisfied with counsel and the plea
agreement with the state. Philpot did not protest when the trial court asked his plea
on the felonious assault count. While it is concerning that HWWUD was not
included in the state’s initial two plea options, the record reveals that the trial court
afforded Philpot time to discuss this with his counsel off the record, he agreed to
continue with the plea, and the trial court comported completely with a proper
Crim.R. 11 hearing.
The record further demonstrates that Philpot was properly advised of
the rights he was waiving and the potential sentences, including that there was a
mandatory prison sentence. The trial court explained to Philpot that a not-guilty
verdict at trial may be possible and asked if he wanted the trial or the plea bargain.
Philpot did not object when the trial court asked his plea on the felonious assault
count. Rather, he replied that he wanted the plea deal. “A trial court’s adherence to
Crim.R. 11 raises a presumption that a plea is voluntarily entered.” State v.
Abercrombie, 8th Dist. Cuyahoga No. 108147, 2019-Ohio-4786, ¶ 12, citing State v.
McKissick, 8th Dist. Cuyahoga No. 105607, 2018-Ohio-282, ¶ 23.
Additionally, the record demonstrates that Philpot was given an
impartial hearing on his motion to withdraw, and the trial court gave his motion full
and fair consideration. At the hearing, Philpot personally addressed the court and
indicated that he did not see his discovery and he felt pressured to accept the plea.
The trial court noted that Philpot’s motion was one sentence and did not state any
reason for the withdrawal. The trial court denied the motion, finding that the guilty
plea was knowingly and voluntarily made. The trial court acknowledged that “the
question of what to do about the weapons under disability charge was apparently
not resolved between the parties before we went on the record that hearing, but I
also find that it was adequately addressed during the change of plea hearing.” (Tr.
88, Aug. 5, 2021.)
At his sentencing hearing, Philpot was able to personally address the
withdrawal of his plea for a second time. Philpot indicated to the court that he
reviewed discovery and his concern was that the federal agents had not recovered
the gun used during the execution of a search warrant, which he believed to be
evidence in his favor. While a claim of innocence is a factor to be weighed in
considering a motion to withdraw a plea, it alone does not mandate the granting of
such a motion. Westley, 8th Dist. Cuyahoga No. 97650, 2012-Ohio-3571, at ¶ 7.
Indeed, “[w]hen faced with this claim, ‘the trial judge must determine whether the
claim of innocence is anything more than the defendant’s change of heart about the
plea agreement.’” Id., quoting State v. Kramer, 7th Dist. Mahoning No. 01-C.A.-
107, 2002-Ohio-4176, ¶ 58.
Philpot failed to explain why the plea was not otherwise knowingly,
intelligently, and voluntarily made. His reasons amount to nothing more than a
change of heart, given that Philpot’s reasons for withdrawing his plea were not
raised during the plea hearing, including any objection to the plea because he could
not read and had untreated mental health issues. Therefore, based on the foregoing,
we cannot say the trial court abused its discretion when it denied Philpot’s motion.
Accordingly, the first assignment of error is overruled.
Substitution of Counsel
In the second assignment of error, Philpot argues he was denied his
right to effective assistance of counsel when the trial court did not grant his request
for substitution of assigned counsel. Philpot claims there was a breakdown in
communications between himself and defense counsel. He further claims that
defense counsel stated he would file a sentencing memorandum and failed to do so.
Appellate courts review a trial court’s decision whether to remove
court-appointed counsel for an abuse of discretion. State v. Pendergrass, 8th Dist.
Cuyahoga No. 104332, 2017-Ohio-2752, ¶ 15. The defendant bears the burden of
demonstrating proper grounds for the appointment of new counsel. State v.
Patterson, 8th Dist. Cuyahoga No. 100086, 2014-Ohio-1621, ¶ 18. Defendant’s right
to counsel ‘“does not extend to counsel of the defendant’s choice.”’ Id. at ¶ 20,
quoting Thurston v. Maxwell, 3 Ohio St.2d 92, 93, 209 N.E.2d 204 (1965). Rather,
in order for the court to discharge a court-appointed attorney, the defendant must
demonstrate ‘“a breakdown in the attorney-client relationship of such magnitude as
to jeopardize a defendant’s right to effective assistance of counsel.’” State v.
Coleman, 37 Ohio St.3d 286, 292, 525 N.E.2d 792 (1988), quoting People v. Robles,
2 Cal.3d 205, 215, 85 Cal.Rptr. 166, 466 P.2d 710 (1970). Specifically, Philpot must
show “a conflict of interest, a complete breakdown in communication or an
irreconcilable conflict * * * lead[ing] to an apparently unjust [result].” State v.
Pruitt, 18 Ohio App.3d 50, 57, 480 N.E.2d 499 (8th Dist.1984).
The Ohio Supreme Court has recognized that while personality
conflicts between an attorney and a client may exist, a change in appointed counsel
is not justified in cases where the conflict did not interfere with the preparation or
presentation of a competent defense. State v. Henness, 79 Ohio St.3d 53, 65-66, 679
N.E.2d 686 (1997); see also State v. Gordon, 149 Ohio App.3d 237, 2002-Ohio-2761,
776 N.E.2d 1135, ¶ 12 (1st Dist.).
In the instant case, defense counsel advised the court, after it denied
Philpot’s motion to withdraw his plea and prior to sentencing, that Philpot was
dissatisfied with defense counsel’s representation and would like new assigned
counsel. Philpot was dissatisfied because he just received paper discovery.2 When
the trial court inquired further, Philpot admitted that defense counsel had advised
what he learned but did not give him actual copies of documents until the day of the
hearing. Philpot did not point out any inconsistency in what he learned and what
the paper discovery revealed. Philpot also stated that he felt rushed in taking the
plea but did acknowledge that he had a thorough conversation with the court about
his plea and sentence. The trial court stated that the criminal rules were followed,
and it did not “remember you ever telling me you didn’t understand what was going
on or that you were too rushed[.]” (Tr. 95, Aug. 5, 2021.)
Based on the foregoing, we cannot find that there was a complete
breakdown in communication or an irreconcilable conflict because the record
demonstrates that Philpot wanted substitute counsel only after the trial court denied
his motion to withdraw his plea and was about to proceed to sentencing.
2The record reveals that defense counsel filed discovery and appeared at Philpot’s
bond revocation hearing.
With regard to the sentencing memorandum, defense counsel
indicated to the court that he would file a sentencing memorandum but ultimately
did not do so. This court has stated that
[w]e are aware of no authority for the proposition that defense counsel
must file a sentencing memorandum[.] Crim.R. 32(A) requires the
court, at the time of sentencing, to afford both defense counsel and the
prosecuting attorney “an opportunity to speak.” * * * The manner in
which defense counsel can “speak” on sentencing matters is undefined
and left to the judgment of defense counsel as a matter of strategy.
State v. Collier, 8th Dist. Cuyahoga No. 95572, 2011-Ohio-2791, ¶ 4.
While defense counsel did not speak at sentencing because of
Philpot’s motion for substitute counsel, Philpot did speak on his own behalf,
reasserting the reasons that he wanted to withdraw his plea.3 Prior to imposing its
sentence, the trial court stated:
Mr. Philpot, I want you to know that in imposing the following
sentences, I have taken into account everything that I know about you
and about your case, which is actually a considerable amount of
information. It includes what was said at the bond hearing when [the
victim] testified one time, certainly includes what’s been said at the
change of plea hearing, and what has been put on the oral record today.
It also includes consideration of the old presentence report, as I
mentioned, just to get a sense of your social, academic and criminal
history. Finally, Mr. Philpot, I’ve taken into account the sentencing
laws of Chapter 2929 of the Ohio Revised Code.
(Tr. 118-119, Aug. 31, 2021.)
The trial court then imposed a sentence of one year on the firearm
specification to be served prior and consecutive to the three years in prison on the
3Prior to Philpot addressing the court, the trial court, at defense counsel’s request,
went off the record so that defense counsel could advise Philpot about the legal
implications of making statements on the record when he is representing himself.
felonious assault. We note that this sentence is one year more than the minimum
term and the trial court’s sentence on HWWUD count was ordered to be served
concurrent to the felonious assault count. At the plea hearing, Philpot indicated that
he understood that he was subject to a mandatory prison term of up to two to eight
years for felonious assault.
In light of the foregoing, Philpot has failed to demonstrate a complete
breakdown in communication with defense counsel and how defense counsel’s
failure to file a sentencing memorandum led to an apparently unjust result.
Therefore, we find that the trial court did not abuse its discretion when it denied
Philpot’s motion for new, assigned counsel.
Accordingly, the second assignment of error is overruled.
Effective Assistance of Counsel and Reagan Tokes
In the third assignment of error, Philpot argues trial counsel was
ineffective for failing to object to the constitutionality of the imposition of the
Reagan Tokes tail. He contends that if he knew defense counsel needed to object to
the indefinite sentence or else waive the issue for appeal, he would have proceeded
to trial. In the fourth assignment of error, Philpot argues that the Reagan Tokes Act
is unconstitutional.
To establish ineffective assistance of counsel, Philpot must
demonstrate that (1) counsel’s performance was deficient and (2) the deficient
performance prejudiced the defendant so as to deprive him of a fair trial. State v.
Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 98, citing
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984). The failure to prove either prong of this two-part test makes it unnecessary
for a court to consider the other prong. State v. Madrigal, 87 Ohio St.3d 378, 389,
721 N.E.2d 52 (2000), citing Strickland at 697.
A review of the record in the instant case reveals defense counsel did
not object to the imposition of an indefinite sentence under the Reagan Tokes Act.
We recognize that this court has declined to address constitutional challenges to the
Reagan Tokes Act when defendants did not object to their sentences or otherwise
raise the constitutionality of the Act at their sentencing hearing. See State v.
Jenkins, 8th Dist. Cuyahoga No. 109323, 2021-Ohio-123, ¶ 20-24; State v. White,
8th Dist. Cuyahoga No. 109652, 2021-Ohio-126, ¶ 6-11. Here, however, defense
counsel’s failure to object did not prejudice the defendant so as to deprive him of a
fair trial because this court recently found the Reagan Tokes Act to be constitutional
in our en banc decision in State v. Delvallie, 8th Dist. Cuyahoga No. 109315, 2022-
Ohio-470. Therefore, Philpot cannot show prejudice even if we assume deficient
performance.
Accordingly, the third and fourth assignments of error are overruled.
Judgment is 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. The defendant’s
conviction having been affirmed, any bail pending 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.
_________________________
MARY J. BOYLE, JUDGE
SEAN C. GALLAGHER, A.J., and
EILEEN T. GALLAGHER, J., CONCUR
N.B. Judge Eileen T. Gallagher joined the dissent by Judge Lisa B. Forbes in
Delvallie and would have found that R.C. 2967.271(C) and (D) of the Reagan Tokes
Law are unconstitutional.