State v. Thomas , 2024 Ohio 2611 ( 2024 )

[Cite as State v. Thomas, 2024-Ohio-2611.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HARDIN COUNTY
STATE OF OHIO,
CASE NO. 6-23-15
PLAINTIFF-APPELLEE,
v.
ISA JAMAL THOMAS, OPINION
DEFENDANT-APPELLANT.
Appeal from Hardin County Common Pleas Court
Trial Court No. CRI 20232122
Judgment Affirmed
Date of Decision: July 8, 2024
APPEARANCES:
Howard A. Elliott for Appellant
Morgan Fish for Appellee
Case No. 6-23-15
MILLER, J.
{¶1} Defendant-appellant, Isa Jamal Thomas (“Thomas”), appeals the
September 29, 2023 judgment of sentence of the Hardin County Court of Common
Pleas. For the reasons that follow, we affirm.
{¶2} On July 12, 2023, Thomas was indicted on eleven drug-related charges,
including: Count One of aggravated possession of drugs in violation of R.C.
2925.11(A), (C)(1)(a), a fifth-degree felony; Count Seven of aggravated possession
of drugs in violation of R.C. 2925.11(A), (C)(1)(b), a third-degree felony; and Count
Eight of aggravated trafficking in drugs in violation of R.C. 2925.03(A)(1),
(C)(1)(c), a third-degree felony. At his initial appearance on July 26, 2023, Thomas
was appointed trial counsel and entered not guilty pleas.
{¶3} Thomas appeared for a change-of-plea hearing on September 5, 2023.
Pursuant to a negotiated-plea agreement, Thomas withdrew his not guilty pleas with
respect to Counts One, Seven, and Eight. At the request of the State, Count Seven
was amended from aggravated possession of drugs to attempted aggravated
possession of drugs in violation of R.C. 2923.02(A) and 2925.11(A), (C)(1)(b), a
fourth-degree felony. Thomas then entered guilty pleas to Counts One, Seven (as
amended), and Eight. In exchange, the State recommended dismissal of the
remaining counts. The trial court accepted Thomas’s plea and found him guilty of
Counts One, Seven (as amended), and Eight.
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{¶4} On September 27, 2023, Thomas appeared for sentencing. At the
commencement of the hearing, Thomas made an oral motion to withdraw his guilty
pleas. After hearing brief arguments, the trial court denied Thomas’s motion.
Thomas was then sentenced to 11 months in prison on Count One, 17 months in
prison on amended Count Seven, and 30 months in prison on Count Eight. Pursuant
to the joint-sentencing recommendation, the trial court ordered the sentences to be
served consecutively for an aggregate term of 58 months.1
{¶5} Thomas filed a timely notice of appeal.
First Assignment of Error
The Defendant/Appellant received ineffective assistance of
counsel in the trial court wherein [he] had been determined
indigent for purpose of securing counsel at the trial court level,
and counsel failed to file an affidavit of indigency to challenge the
mandatory fines upon a conviction of a felony three drug offense
where there appears to be reasonable likelihood that
Defendant/Appellant would be determined to be indigent, and as
such, the mandatory fine was improperly imposed and the matter
must be reversed and remanded to the trial court for further
proceedings.
{¶6} In his first assignment of error, Thomas argues his trial counsel was
ineffective for failing to file an affidavit of indigency with respect to the mandatory
fine. Thomas alleges his trial counsel failed to raise a challenge to the imposition
of the mandatory fine and that it is “certainly . . . [a] possibility” that the mandatory
1
In addition to the prison sentences, the court imposed discretionary fines for Count One and Seven as well
as a mandatory fine for Count Eight, albeit less than the statutory amount. Appellant challenges only the
imposition of the mandatory fine.
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fine would have been waived if it had been challenged. (Appellant’s Brief at 9).
For the reasons that follow, we disagree.
Relevant Law
{¶7} “In criminal proceedings, a defendant has the right to effective
assistance of counsel under both the United States and Ohio Constitutions.” State
v. Evick, 2020-Ohio-3072, ¶ 45 (12th Dist.). A defendant asserting a claim of
ineffective assistance of counsel must establish: (1) counsel’s performance was
deficient or unreasonable under the circumstances; and (2) the deficient
performance prejudiced the defendant. State v. Kole, 92 Ohio St.3d 303, 306 (2001),
citing Strickland v. Washington, 466 U.S. 668, 687 (1984). In order to show
counsel’s conduct was deficient or unreasonable, the defendant must overcome the
presumption that counsel provided competent representation and must show that
counsel’s actions were not trial strategies prompted by reasonable professional
judgment. Strickland at 689. Counsel is entitled to a strong presumption that all
decisions fall within the wide range of reasonable professional assistance. State v.
Sallie, 81 Ohio St.3d 673, 675 (1998). Tactical or strategic decisions, even if
unsuccessful, do not generally constitute ineffective assistance of counsel. State v.
Frazier, 61 Ohio St.3d 247, 255 (1991). Rather, the errors complained of must
amount to a substantial violation of counsel’s essential duties to his client. See State
v. Bradley, 42 Ohio St.3d 136, 141-142 (1989).
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{¶8} Prejudice results when “‘there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.’” Bradley at 142, quoting Strickland at 694. “‘A reasonable probability
is a probability sufficient to undermine confidence in the outcome.’” Id., quoting
Strickland at 694.
Analysis
{¶9} In support of his argument that his trial counsel was ineffective, Thomas
argues that his trial counsel failed to file an affidavit of indigency with respect to
the mandatory fine.
{¶10} This court has held that “[t]he failure to file an affidavit of indigency
prior to sentencing may constitute ineffective assistance of counsel if the record
shows a reasonable probability that the trial court would have found the defendant
indigent and relieved the defendant of the obligation to pay the fine had the affidavit
been filed.” State v. Elrod, 2016-Ohio-987, ¶ 8 (3d Dist.). However, our review of
the record does not support Thomas’s argument that a failure to file a written
affidavit of indigency resulted in the trial court ordering him to pay the mandatory
fine.
{¶11} At the sentencing hearing, Thomas’s trial counsel made an oral motion
requesting the trial court to waive the mandatory fine of $5,000.00, which the trial
court was required to impose pursuant to R.C. 2929.18(B)(1). In support of the
motion, Thomas’s counsel stated as follows:
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We would make an oral motion asking the Court to consider waiving
the mandatory fine of $5,000 in this case. Mr. Thomas is currently
incarcerated and has been so for 68 days. He’s been unemployed for
that time. He has no assets at this point. He did qualify for court-
appointed counsel.
The joint[ly] recommended sentence does reflect a future of
incarceration with the Ohio Department of Rehabilitation and
Corrections, so the likelihood that he is going to be able to produce
income to be able to pay that fine is pretty slim, Your Honor. He’s
going to have other court costs and costs of prosecution to be worrying
about other than the $5,000 mandatory fine. So we would ask the
Court to take that into consideration and waive that mandatory fine
for this defendant, Your Honor.
(Sept. 27, 2023 Tr. at 8-9).
{¶12} After imposing a prison term, the trial court addressed the mandatory
fine and stated:
You are not under any type of physical disability; however, you have
a great deal of prison time that you are facing. It’s the opinion of the
Court a $5,000 mandatory fine together with the other fines that I gave
you would be an undue hardship, so I’m not going to order the $5,000
mandatory fine. I’m going to cut that down to half of that, which is
2,500.
(Id. at 17-18).
{¶13} Accordingly, the record indicates that the trial court gave full
consideration to the oral motion to waive the fine and considered the totality of
Thomas’s circumstances and financial situation before ordering him to pay a portion
of the mandatory fine. Furthermore, based on that consideration, including the
impact that Thomas’s incarceration would have on his present and future ability to
pay, the trial court reduced the fine by half. Thus, based on our review of the record,
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we do not find that Thomas was prejudiced by his counsel’s failure to file a written
affidavit of indigency. See State v. Harrison, 2015-Ohio-1419, ¶ 95 (3d Dist.).
Therefore, Thomas has not established that he received ineffective assistance of trial
counsel.
{¶14} Thomas’s first assignment of error is overruled.
Second Assignment of Error
The trial court committed reversible error when it denied without
benefit of hearing or affording the Defendant the opportunity to
speak to Defendant’s motion for leave to withdraw his plea orally,
before the imposition of sentence.
{¶15} In his second assignment of error, Thomas argues that the trial court
abused its discretion by denying his presentence motion to withdraw his guilty plea.
{¶16} “The decision to grant or deny a presentence motion to withdraw a
guilty plea is within the sound discretion of the trial court.” State v. Xie, 62 Ohio
St.3d 521 (1992), paragraph two of the syllabus. “Therefore, appellate review of a
trial court’s decision to deny a presentence motion to withdraw a guilty plea is
limited to whether the trial court abused its discretion.” State v. Keehn, 2014-Ohio-
3872, ¶ 14 (3d Dist.). An abuse of discretion is more than a mere error in judgment;
it suggests that a decision is unreasonable, arbitrary, or unconscionable. State v.
Adams, 62 Ohio St.2d 151, 157-158 (1980). “When applying this standard, a
reviewing court may not simply substitute its judgment for that of the trial court.”
Keehn at ¶ 14, citing State v. Adams, 2009-Ohio-6863, ¶ 33 (3d Dist.).
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Case No. 6-23-15
{¶17} A motion to withdraw a guilty plea is governed by Crim.R. 32.1,
which provides:
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.
Although “a presentence motion to withdraw a guilty plea should be freely and
liberally granted[,] . . . a defendant does not have an absolute right to withdraw a
plea prior to sentencing.” Xie at 527.
{¶18} “A trial court must conduct a hearing to determine whether there is a
reasonable and legitimate basis for the withdrawal of the plea.” Id. at paragraph one
of the syllabus.
When reviewing a trial court’s denial of a presentence motion to
withdraw a guilty plea, this court considers several factors, including:
(1) whether the withdrawal will prejudice the prosecution; (2) the
representation afforded to the defendant by counsel; (3) the extent of
the hearing held pursuant to Crim.R. 11; (4) the extent of the hearing
on the motion to withdraw the plea; (5) whether the trial court gave
full and fair consideration of the motion; (6) whether the timing of the
motion was reasonable; (7) the stated 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 charges.
State v. Liles, 2019-Ohio-3029, ¶ 11 (3d Dist.). “None of the factors is
determinative on its own and there may be numerous additional aspects ‘weighed’
in each case.” State v. North, 2015-Ohio-720, ¶ 16 (3d Dist.).
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Case No. 6-23-15
{¶19} Thomas argues that, contrary to the trial court’s conclusion, the above-
listed factors weigh in favor of him withdrawing his guilty plea. After reviewing
the record, we disagree.
{¶20} At the commencement of the September 27, 2023 sentencing hearing,
the parties had the following conversation with the trial court:
[Trial counsel]: Your Honor, prior to the Court sentencing, my
client did communicate to me that he was
desirous of making an oral motion to the Court
asking that the Court consider allowing him to
withdraw his previously-tendered guilty pleas as
to . . . the three counts that were pled to on
September 5th of 2023, Your Honor.
He has indicated that he believes he was not
informed properly of the plea negotiations, that
he did not understand that he was agreeing to a
prison sentence. He believed that he was going
to be ordered to attend a drug treatment facility.
He also believes that because his bond was not
modified to a straight O-R bond without an
electronic monitor provision that that would also
negate any agreements that were placed on the
record on September 5th, Your Honor.
[Trial court]: Any response from the State?
[State]: Your Honor, I’m not really sure how Mr.
Thomas didn’t understand what the
recommendations were. The plea negotiations
were reduced to writing, which he executed and
signed. I believe the Court has the executed
copy. They were placed on the record. It’s
clearly marked that a prison term would be
imposed. The State actually was prepared to go
to sentencing that day and did request to do so, I
believe.
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As to bond, we had no agreement as to bond,
Your Honor, per the agreement. I know he did
indicate and ask that the bond be modified, and
the Court did put in a slight modification as to
that. I do not believe that there is any valid
reason. The Court had a thorough colloquy with
him regarding his rights that he was waiving, and
he made a knowing, intelligent, and voluntary
plea to those charges. This appears to be just a
case of buyer’s remorse, and I don’t really
foresee a reason to honor a withdraw of the plea
here on the day of sentencing, Your Honor.
[Trial court]: The Court will deny that motion. First of all, he
did sign the plea agreement. It is very explicit in
what the terms of the plea agreement was. He
told me when I asked that he read it. He told me
that he reviewed it with his attorney. He told me
that he understood. We also did the waiver of
rights and plea form in this case, which he signed
in open court after he tells me he read it and that
he reviewed it with his attorney and that he
understood it.
I asked him multiple times going through the
plea if he understood. I asked him multiple times
if he had further questions. I asked him multiple
times if he needed to stop, take a break, and ask
his attorney any questions. So it is not credible
to me that this gentleman – who, quite frankly, in
my conversations with him appears to be a fairly
intelligent man—it’s not credible to accept that
he did not understand what he was doing. He
may now no longer like what he was doing or
did, but certainly the record reflects that he had
every opportunity to inquire, to be informed, and
that he understood at the time exactly what he
was doing. So that motion will be denied.
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(Sept. 27, 2023 Tr. at 3-6). The trial court then proceeded to sentencing. When
viewing the record in light of the factors set forth above, we find that the trial court
did not abuse its discretion by denying Thomas’s motion to withdraw his guilty
pleas.
{¶21} No arguments were made with respect to the first factor, whether the
State would be prejudiced by the withdrawal of the guilty plea, other than the State’s
comment that it requested to proceed directly to sentencing at the change-of-plea
hearing.
{¶22} Second, although Thomas argues that his trial counsel was ineffective
for failing to file an affidavit of indigency, we addressed that concern in our analysis
of Thomas’s first assignment of error and found Thomas’s argument to be without
merit. Thomas makes no other arguments relating to trial counsel’s representation,
and our review of the record finds no indication that Thomas’s trial counsel was
ineffective.
{¶23} With respect to the third factor, the extent of the hearing pursuant to
Crim.R. 11, Thomas does not directly challenge the extent or sufficiency of the
change-of-plea hearing pursuant to Crim.R. 11. To the extent that Thomas argues
that he was not adequately informed that the joint recommendation included a term
of incarceration rather than programming at a drug-treatment facility, the record
belies his claim. At the change-of-plea hearing, the State recounted the parties’
agreement, including the jointly-recommended terms of incarceration. (Sept. 5,
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2023 Tr. at 4-5). Both Thomas and his trial counsel indicated that the agreement
proffered by the State was a correct statement of the parties’ agreement. (Id. at 6).
At one point during the change-of-plea hearing, Thomas indicated a desire to speak
to his trial counsel, which the trial court granted. (Id. at 7-9). At the conclusion of
his off-the-record conversation between Thomas and his trial counsel, Thomas
indicated that the conversation satisfied his concerns. (Id. at 9-10). Furthermore,
Thomas, his trial counsel, the State, and the judge signed the plea agreement after
the judge again addressed its contents. (Id. at 11-12). Notably, at this time, Thomas
once more affirmed that he had read the plea agreement and understood its contents.
(Id.).
{¶24} Regarding the fourth and fifth factors, although the trial court did not
postpone sentencing to conduct a separate hearing on Thomas’s oral motion, the
record indicates that the trial court, nonetheless, gave the motion full and fair
consideration. Given the argument made in the oral motion, the trial court was able
to quickly ascertain that the motion was without merit. In so doing, the trial court
noted Thomas’s statements acknowledging his understanding of the terms of the
parties’ joint recommendation.
{¶25} Next, the sixth factor, regarding the reasonableness of the timing of
the motion, weighs against Thomas. The motion was made at the commencement
of the sentencing hearing and, prior to that time Thomas made no request to
withdraw his plea or indicate his lack of understanding of the terms of the parties’
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jointly-recommended sentence. The timing of the motion, which was made just
prior to sentencing, is highly suspect and makes the motion appear frivolous.
{¶26} With respect to the seventh and eighth factors, Thomas’s stated reason
for the motion to withdraw his plea was his purported lack of understanding that the
jointly-recommended sentence included terms of incarceration rather than
substance-abuse treatment. However, as addressed in our discussion of the third
factor, Thomas’s argument is severely undermined by the record—namely, his
repeated assertions that he understood the plea agreement, which had also been
reduced to writing and which explicitly included terms of incarceration for each
offense.
{¶27} Finally, with respect to the ninth factor, Thomas makes no argument
that he was perhaps not guilty or had a complete defense to the charges. Notably,
Thomas admitted the veracity of the facts underlying his convictions and does not
attempt to challenge those admissions.
{¶28} After reviewing all the applicable factors, we conclude that the trial
court did not err by denying Thomas’s motion to withdraw his guilty plea.
Thomas’s second assignment of error is overruled.
Conclusion
{¶29} For the foregoing reasons, Thomas’s assignments of error are
overruled. Having found no error prejudicial to the appellant herein in the
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particulars assigned and argued, we affirm the judgment of the Hardin County Court
of Common Pleas.
Judgment Affirmed
WALDICK and ZIMMERMAN, J.J., concur.
/hls
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