State v. Alexander , 2023 Ohio 21 ( 2023 )

[Cite as State v. Alexander, 2023-Ohio-21.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 29465
:
v. : Trial Court Case No. 2021 CR 00643
:
DAJAHNN P. ALEXANDER : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:
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OPINION
Rendered on January 6, 2023
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MATHIAS H. HECK, JR., by RICKY L. MURRAY, Attorney for Appellee
ADAM J. ARNOLD, Attorney for Appellant
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LEWIS, J.
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{¶ 1} Defendant-Appellant Dajahnn P. Alexander appeals from his convictions for
involuntary manslaughter, tampering with evidence, and bribery. For the following
reasons, we affirm the judgment of the trial court.
I. Facts and Course of Proceedings
{¶ 2} On March 9, 2021, Alexander was indicted by a Montgomery County grand
jury on two counts of murder, two counts of felonious assault, and one count of tampering
with evidence related to the death of Jermaine Lewis in October 2020. The murder and
felonious assault counts contained firearm specifications. Lucas Wilder was appointed
as trial counsel for Alexander. After a series of continuances and rulings on motions, a
trial was scheduled for November 15, 2021.
{¶ 3} On November 10, 2021, the State filed a “Notice of Intent to Use Statements
Pursuant to Forfeiture by Wrongdoing and Evidence Showing Such Forfeiture by
Wrongdoing.” The trial court held a hearing to determine whether Alexander had
engaged in wrongdoing. Ultimately, the trial court found that Alexander had engaged in
wrongdoing that caused the unavailability of three key witnesses for trial. Therefore, the
trial court found that Alexander had forfeited his rights to confront witnesses and raise
objections to evidence. Alexander’s improper contact with witnesses also led to a re-
indictment on bribery and obstruction charges. At Alexander’s request, and over the
State’s objection, the court rescheduled the trial for January 2022.
{¶ 4} On January 11, 2022, Alexander entered into a plea agreement with the
State. In return for pleading guilty to involuntary manslaughter, tampering with evidence,
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and bribery, the State agreed to drop the other counts. The parties agreed to a prison
sentence of 23 years, and Alexander promised that he would not seek judicial release.
After a plea colloquy, Alexander entered a guilty plea, and the trial court found him guilty
of the three charges. The next day, Alexander appeared before the trial court again to
allow the parties to correct the plea form that was signed the previous day. The trial
court explained to Alexander that it had made a misstatement during the plea colloquy
regarding whether the prison term for the offense of involuntary manslaughter was
mandatory by law. According to the trial court, Alexander normally would be eligible for
community control sanctions for that particular offense. Pursuant to the plea agreement,
however, the parties agreed that prison would be imposed rather than community control
sanctions. This correction was made on the plea form and, after consulting with counsel,
Alexander signed the revised form and ratified his guilty plea. The matter was then
scheduled for sentencing.
{¶ 5} On January 28, 2022, prior to sentencing, Alexander’s trial counsel filed a
motion to withdraw as counsel, which was granted. Ben Swift was appointed as new
counsel for Alexander. On February 15, 2022, Swift filed a motion to withdraw
Alexander’s guilty plea. A hearing on the motion was held on March 25, 2022.
{¶ 6} Alexander testified first at the hearing. Alexander testified that his original
trial counsel, Wilder, had visited him in jail approximately ten times during the course of
his representation and had provided him with the discovery packet. March 25, 2022
Hearing Transcript, 141-142. According to Alexander, he eventually wanted to replace
Wilder with another attorney and told Wilder this several times, but Wilder told him that
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Alexander could not take him off his case unless Alexander found and paid for a private
practice attorney. Id. at 143-145, 151. Alexander believed that Wilder was not working
well enough for him and that Wilder was giving Alexander different advice than Wilder
was giving Alexander’s family. Id. at 143-144. Alexander and his family hoped to hire
a private attorney, but neither Alexander nor his family had enough money to hire him.
Id. at 145.
{¶ 7} Alexander testified that he was the one who came up with offering a plea deal
to the State totaling 23 years of imprisonment. Id. at 152. He felt like he had no choice
but to plea because he could not fire Wilder. Id. at 163-169. Although he understood
that he would get 23 years in prison, Alexander testified that he had not understand the
mandatory time. Id. at 154. Alexander did not tell the trial court that he was confused.
Id. at 155. On cross-examination, Alexander conceded that he knew that he would be
getting 23 years in prison and that he had been able to do some legal research before he
made the plea offer to the State. Id. at 166, 168-170.
{¶ 8} Attorney Wilder testified next at the hearing. According to Wilder, he had
had a good relationship with Alexander and had visited him at least 20 times in jail and
sent him approximately 100 emails. Id. at 181-182. Wilder recalled Alexander looking
into hiring a private attorney, but Alexander’s family could not come up with sufficient
money to do so. Id. at 183. Wilder did not believe communication had ever deteriorated
to the point of warranting his withdrawal as trial counsel, and he had never told Alexander
that he could not get new trial counsel. Further, Alexander never told Wilder that he did
not want Wilder as his attorney. Id. at 182, 193. Wilder explained the gun specifications
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to Alexander. The gun specifications needed to be done the way they were in order to
get to the 23 years that Alexander desired. Id. at 184-186. Alexander never expressed
any confusion to Wilder about the terms of the guilty plea. Id. at 198-199.
{¶ 9} Detective Troy Dexter also testified at the hearing. Detective Dexter worked
for the Butler Township Police Department. He documented Alexander’s attempts to
communicate with witnesses and stated that he had been able to serve subpoenas on
only one of three trial witnesses. Id. at 200-204.
{¶ 10} At the conclusion of the hearing, the trial court found Wilder more credible
than Alexander and orally overruled Alexander’s motion to withdraw his plea. The trial
court memorialized this decision in a March 28, 2022 entry. The trial court sentenced
Alexander to a total of 23 years in prison. Alexander filed a timely notice of appeal.
II. The Trial Court Did Not Abuse Its Discretion in Denying Alexander’s Motion to
Withdraw His Guilty Plea
{¶ 11} Alexander’s two assignments of error are interrelated and will be addressed
together. The assignments of error are as follows:
THE TRIAL COURT ERRED IN APPLYING AN ELEVATED
STANDARD TO THE MOTION TO WITHDRAW PLEA.
THE TRIAL COURT’S APPLICATION OF THE HIGHER
STANDARD IN THE WITHDRAW OF PLEA HEARING WAS NOT
HARMLESS ERROR.
{¶ 12} We review decisions on motions to withdraw a guilty plea for an abuse of
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discretion. State v. Greenlee, 2d Dist. Montgomery Nos. 28467, 28468, 2020-Ohio-
2957, ¶ 11. Abuse of discretion has been defined as an attitude that is “unreasonable,
arbitrary or unconscionable.” AAAA Ents., Inc. v. River Place Community Urban
Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). “It is to be
expected that most instances of abuse of discretion will result in decisions that are simply
unreasonable, rather than decisions that are unconscionable or arbitrary.” Id. “A
decision is unreasonable if there is no sound reasoning process that would support that
decision.” Id.{¶ 13} Crim.R. 32.1 governs withdrawals of guilty pleas and provides that “[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.” Based on
the language of Crim.R. 32.1, differing tests have developed based on whether the motion
to withdraw a plea is made before or after sentencing.
{¶ 14} 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).
However, a “defendant does not have an absolute right to withdraw a plea prior to
sentencing.” Id. “Even under the more lenient pre-sentence standard, a defendant
must show a ‘reasonable and legitimate basis for the withdrawal of the plea.’ ” State v.
Williamson, 2d Dist. Montgomery No. 21965, 2008-Ohio-4727, ¶ 13, quoting Xie at 527.
“A change of heart is not enough,” and a trial court's finding regarding a defendant's true
motivation is entitled to deference. Id. at ¶ 13.
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{¶ 15} If the motion to withdraw a guilty plea was made post-sentence, however,
the defendant instead bears the higher burden of establishing a manifest injustice. State
v. Harris, 2d Dist. Montgomery No. 19013, 2002-Ohio-2278, ¶ 7, citing State v. Smith, 49
Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus. A post-
sentence motion to withdraw a guilty plea is allowable only in extraordinary cases.
State v. Kongkeo, 8th Dist. Cuyahoga No. 96691, 2012-Ohio-356, ¶ 2, citing Smith at
264.
{¶ 16} When a defendant discovers before sentencing the particular sentence a
trial court intends to impose, we have held that a pre-sentence motion to vacate his plea
ordinarily should be treated as a post-sentence motion. This is so because a defendant
cannot test the sentencing waters and then move to vacate his plea just before sentencing
if he receives an unpleasant surprise. State v. Wallen, 2d Dist. Montgomery No. 21688,
2007-Ohio-2129, ¶ 22. We also have recognized, however, that this reasoning does not
apply to agreed sentences. “Where a sentence is agreed to as part of a plea bargain,
and the trial court has indicated that it is joining in the agreement, there has been no
‘unpleasant surprise’ to the defendant after ‘testing the sentencing waters,’ which is the
rationale for the stricter standard for a post-sentence motion to withdraw a plea.” Id.Therefore, when a defendant files a pre-sentence motion to vacate a plea entered as part
of a plea deal with an agreed sentence, the motion still should be treated as a pre-
sentence motion and judged under the more lenient standard. Id.{¶ 17} The trial court construed Alexander’s motion as a post-sentence motion and
applied the manifest injustice standard. Alexander contends that the trial court should
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have instead applied the pre-sentence, more liberal standard to his motion. The State
concedes that the trial court applied the incorrect standard. The State’s concession is
consistent with our precedent. See State v. Waters, 2d Dist. Montgomery No. 29346,
2022-Ohio-3166, ¶ 12, citing State v. Simpson, 2d Dist. Montgomery No. 24266, 2011-
Ohio-6181, ¶ 8-10.
{¶ 18} Identifying the trial court’s error, however, does not end our analysis. In
evaluating whether a trial court has abused its discretion in overruling a pre-sentence
motion to withdraw a plea, we review the following nine factors: 1) whether the accused
is represented by highly competent counsel; 2) whether the accused was given a full
Crim.R. 11 hearing before entering the plea; 3) whether a full hearing was held on the
motion; 4) whether the trial court gave full and fair consideration to the motion; 5) whether
the motion was made within a reasonable time; 6) whether the motion sets out specific
reasons for the withdrawal; 7) whether the accused understood the nature of the charges
and possible penalties; 8) whether the accused was perhaps not guilty of or had a
complete defense to the charge or charges; and 9) whether the state is prejudiced by
withdrawal of the plea. State v. Miller, 2d Dist. Montgomery No. 29039, 2021-Ohio-2606,
¶ 15. “Consideration of these factors involves a balancing test and no single factor is
dispositive.” Id. at ¶ 16, citing State v. Massey, 2d Dist. Champaign No. 2015-CA-1,
2015-Ohio-4711, ¶ 11.
{¶ 19} Although it ultimately applied the manifest injustice standard to Alexander’s
motion to withdraw, the trial court also conducted the analysis of the nine factors involved
in the pre-sentence standard. At the hearing on the motion to withdraw, the trial court
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discussed the nine factors and found that only the timeliness of the motion (factor 5)
weighed in favor of allowing Alexander to withdraw his plea. Hearing Transcript, p. 210-
215. The court reiterated this finding in its written order overruling Alexander’s motion.
The trial court also found that Alexander had “failed to present any reasonable or
legitimate basis for withdrawing his plea[.]” March 28, 2022 Decision, p. 2. The court
concluded that Alexander’s prior counsel had been highly competent and that Alexander
had been given a full plea colloquy hearing prior to entering this plea. Id.{¶ 20} Based on a review of the record before us and the nine factors in Miller, we
conclude that the trial court did not abuse its discretion in denying Alexander’s motion to
withdraw his guilty plea. Alexander was represented by highly competent counsel and
did not express any dissatisfaction with counsel at the plea hearing. Alexander was
given a full Crim.R. 11 hearing before entering the plea. Further, a full hearing was held
on Alexander’s motion to withdraw his guilty plea and the trial court gave full and fair
consideration to the motion. Alexander’s motion was made within a reasonable time, but
his motion did not set out specific reasons for the withdrawal. At the hearing on his
motion, Alexander confirmed that he was the one who came up with the plea offer of 23
years in prison. Alexander did not express any confusion to the trial court about whether
he understood the nature of the charges and possible penalties. Finally, the State
arguably would have been prejudiced by a withdrawal of the plea due to the improper
communications Alexander had with key witnesses.
{¶ 21} We acknowledge that Alexander testified at the motion hearing about
feeling pressured into entering into a plea deal because he believed that Wilder was not
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working well enough for him and about Wilder’s telling him that no new counsel could be
appointed to replace Wilder. But Wilder’s testimony contradicted this testimony. The
trial court chose to credit Wilder’s testimony over Alexander’s. March 25, 2022 Hearing
Transcript, p. 211-212. Because the trier of fact sees and hears the witnesses at trial,
we must defer to the factfinder's decisions whether, and to what extent, to credit the
testimony of particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288,
1997 WL 476684, *4 (Aug. 22, 1997).
{¶ 22} The trial court was not persuaded by Alexander’s contentions that he had
been unhappy with his trial counsel and that he had not understood the mandatory nature
of his sentence when he entered his plea. Rather, Alexander’s motion appeared to be
based on a change of heart rather than a reasonable and legitimate basis for withdrawing
his plea. The second assignment of error is overruled.
III. Conclusion
{¶ 23} The trial court did not abuse its discretion in denying Alexander’s motion to
withdraw his guilty plea. The judgment of the trial court is affirmed.
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TUCKER, P.J. and WELBAUM, J., concur.