State v. Shurelds

[Cite as State v. Shurelds, 2021-Ohio-1560.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-20-35
v.
MARQUAVIUS D. SHURELDS, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court
Trial Court No. CR 2019 0044
Judgment Affirmed in Part, Reversed in Part, and Cause Remanded
Date of Decision: May 3, 2021
APPEARANCES:
William T. Cramer for Appellant
Jana E. Emerick for Appellee
Case No. 1-20-35
SHAW, J.
{¶1} Defendant-appellant, Marquavius Shurelds (“Shurelds”), brings this
appeal from the August 10, 2020 judgment of the Allen County Common Pleas
Court sentencing him to an aggregate thirty-nine years in prison after Shurelds
entered no contest pleas to, and was convicted of, two counts of kidnapping in
violation of R.C. 2905.01(A)(2), both felonies of the first degree, and one count of
aggravated robbery in violation of R.C. 2911.01(A)(1), a felony of the first degree.
All three convictions contained three-year firearm specifications pursuant to R.C.
2941.145. On appeal, he argues that law enforcement improperly coerced the
statement of a witness, that the trial court erred by denying Shurelds’ requests for a
continuance made near the trial date, that his no contest pleas were not entered
knowingly, intelligently, and voluntarily, that the trial court erred by denying his
presentence motion to withdraw his no contest pleas, that the trial court failed to
make the appropriate statutory findings to impose consecutive sentences at the
sentencing hearing, and that the trial court erred by imposing consecutive sentences
on all three firearm specifications.
Background
{¶2} On December 2, 2018, around 8:15 pm, D.W. was driving her vehicle
with her infant son inside to visit her son’s father, A.W., in order to pick up some
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clothes for Christmas.1 When D.W. arrived at the designated address, she parked
next to a white SUV, which A.W. had included in his description. D.W. assumed
A.W. was in the white SUV since an interior light was on and a person was inside;
however, when she got out of her vehicle and opened the door to the SUV she found
Shurelds, aka “Bra Bra.”
{¶3} Shurelds told D.W. that the father of her child was inside the nearby
apartment and that D.W. should follow Shurelds inside as well. D.W. declined, and
returned to her vehicle. After a few minutes, D.W. became impatient and got back
into the SUV and started moving bags of clothing to her vehicle. While she was
moving the clothes, Shurelds “attacked from behind” and dragged her into the
apartment, leaving D.W.’s son in her car.
{¶4} Inside the apartment, D.W. saw the father of her child on the floor
motionless, bleeding “profusely” from what she would later learn was a stab wound.
Shurelds threw D.W. on a couch, covered her head with a blanket, and threatened
to kill her. Shurelds had two guns in his possession. There were two other
individuals present inside the apartment along with Shurelds: Kiarris Laws, who
also possessed multiple firearms, and Lamont Jones, the tenant of the apartment.
1
The opening line in appellant’s brief states that the presentence investigation contains the only detailed
recitation of facts in this case due to the fact that the case was resolved via no contest pleas; however, the
majority of the facts contained herein are taken from a sworn affidavit of a police officer attached to the
original complaint, or other motions and filings made throughout the pendency of this case.
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{¶5} D.W. was concerned about her child, so Laws went outside to D.W.’s
vehicle and brought the child in. The child was crying and the men demanded that
D.W. get the child under control.
{¶6} D.W. stated that the men were acting together, demanding money and
drugs. Following the demands, A.W. was forced to give a key to another residence
to Lamont Jones. Jones left the apartment and returned with some money, but
Shurelds was upset about the amount, and the lack of accompanying drugs.
{¶7} After some calls were made to learn where A.W. purportedly kept his
drugs, the assailants learned that A.W. might have a stash of drugs at his sister’s
residence. D.W. made contact with A.W.’s sister and arranged to get the drugs.
Shurelds then made D.W. and her son get into D.W.’s vehicle at gunpoint to drive
to the residence of A.W.’s sister. D.W. secured her son in his seat, then Shurelds
sat in the back of the vehicle with a gun held on D.W. During the drive, Shurelds
told D.W. that he had shot someone in the face a few weeks prior, and that he would
harm D.W. and/or her son if necessary. D.W. drove Shurelds to the designated
residence and they picked up a closed package, which D.W. believed had drugs in
it.
{¶8} Afterward, Shurelds brought D.W. and her son back to the original
apartment and Shurelds spoke with the other two men about what should be done
with D.W., A.W., and the child. Laws, Shurelds’ accomplice, suggested killing the
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victims but Lamont Jones argued against it. The assailants ultimately allowed D.W.
to leave with her son and A.W., though she was told to take A.W. to a Van Wert
hospital rather than a Lima hospital so local police would not learn where the
incident occurred.
{¶9} On February 14, 2019, Shurelds was indicted for three counts of
felonious assault in violation of R.C. 2903.11(A)(2), all felonies of the second
degree (counts one through three, respectively), three counts of kidnapping in
violation of R.C. 2905.01(A)(2), all felonies of the first degree (counts four through
six, respectively), and one count of aggravated robbery in violation of R.C.
2911.01(A)(1), a felony of the first degree (count seven). All seven counts of the
indictment contained three-year firearm specifications pursuant to R.C.
2941.145(A). Shurelds initially entered pleas of not guilty to the charges.
{¶10} Due to indigency, Shurelds had an attorney appointed to represent him
and the case was assigned for trial on April 16, 2019. On March 19, 2019, the State
filed a motion to consolidate this case with another Allen County Common Pleas
Court case against Shurelds wherein Shurelds allegedly shot a man in the face on
September 5, 2018.2 The cases were ultimately consolidated.
{¶11} On March 28, 2019, Shurelds retained counsel and waived his speedy
trial rights. The trial date was also vacated to an uncertain date in the future so the
2
This is the same incident that Shurelds purportedly used to threaten D.W. with while driving to pick up the
“package.”
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newly retained defense counsel could prepare and file any necessary pretrial
motions.
{¶12} On April 9, 2019, Shurelds filed a “Motion to Suppress and/or
Exclude,” seeking to prevent the state from introducing the testimony or recorded
interview of the alleged victim A.W. Shurelds argued that the recorded interview
showed that the detective used unreasonable, coercive tactics in an attempt to get
A.W. to make statements that were contrary to A.W.’s original medical reports from
the hospital, wherein A.W. stated that a woman had stabbed him in the leg. (Doc
No. 87). On May 9, 2019, the State filed a response arguing, inter alia, that the
detective’s tactics were not unreasonable and even if they were A.W. did not provide
any statement whatsoever in the interview regarding the incident in question.
{¶13} A hearing was held on the suppression motion on May 16, 2019. The
parties orally argued the matter and submitted the recorded interview of A.W. to the
trial court for review. On May 29, 2019, the trial court filed an entry overruling the
suppression motion.
{¶14} After the suppression motion was denied, Shurelds’ jury trial was
assigned for November 19, 2019; however, on October 29, 2019, Shurelds filed a
motion to continue the trial date so the defense could seek, inter alia, a medical
expert. The State was not opposed to the continuance, so the trial was continued
until March 3, 2020.
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{¶15} On January 9, 2020, Shurelds’ retained counsel filed a motion to
withdraw, citing a significant deficit on outstanding bills in the amount of “several
thousand dollars.” Defense counsel indicated that he would continue to represent
Shurelds in the case if the deficit was satisfied. A hearing was held on the matter
and retained counsel was permitted to withdraw when the deficit was not cured.
{¶16} Shurelds was again determined to be indigent and a state public
defender was appointed to represent him. After new counsel was appointed for
Shurelds, the March 2020 trial date was vacated and trial was rescheduled for June
23, 2020, to give Shurelds’ state public defender time to prepare.
{¶17} On June 4, 2020, less than three weeks before the trial was scheduled
to begin, Shurelds filed a motion to continue the trial arguing, inter alia, that
COVID-19 restrictions had prevented investigators from speaking with some
potential defense witnesses. On June 10, 2020, the trial court held a hearing on the
motion for a continuance. At the hearing, the State objected to a continuance,
arguing, inter alia, that it was bringing a key witness from Utah who would be
unavailable for up to eighteen months if the trial was not held on the scheduled date.
{¶18} The trial court ultimately denied Shurelds’ request for a continuance,
stating that the case had been pending for well over a year, that Shurelds had
multiple defense attorneys who had worked diligently, that the case had been
continued multiple times, and that Shurelds had never provided any list of witnesses.
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However, pursuant to agreement of the parties, the instant case was severed from
the other case against Shurelds that had been previously joined for purposes of trial.
{¶19} On June 19, 2020, on a Friday afternoon the week before the scheduled
trial, a newly retained attorney filed a notice of appearance on Shurelds’ behalf, and
the new attorney requested a continuance of the June 23, 2020, trial date. The trial
court held a hearing on June 22, 2020, the day before the trial was scheduled to
begin via electronic means. At the hearing, the counsel that Shurelds attempted to
retain stated that he had not yet spoken to Shurelds at all and that he would withdraw
from the case if a continuance was not granted because he would need at least a
month or two to be ready for trial. Shurelds’ public defender stated that he would
be ready for trial, but he noted that there was a difference of opinion on how the
case should be tried between himself and Shurelds. The state again objected to a
continuance for reasons previously expressed; however, the state also introduced
jail-house phone calls into evidence wherein Shurelds could be heard telling an
individual that he needed to get a new attorney to get his trial date pushed back.
Following the hearing, the trial court filed a written entry denying Shurelds’ request
for a continuance and denying his request to substitute his counsel.
{¶20} On June 23, 2020, a pool of jurors was present for the beginning of
Shurelds’ trial. However, the parties negotiated a plea agreement wherein Shurelds
agreed to plead no contest to felonious assault in counts one and two of the
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indictment, along with the attached firearm specifications, kidnapping in counts four
and five, along with the firearm specifications, and aggravated robbery in count
seven, with the firearm specification. In exchange, the state agreed to dismiss
counts three and six and the accompanying specifications. The agreement was
reduced to writing and signed.
{¶21} The trial court held a Crim.R. 11 hearing wherein the agreement was
recited to the court. The trial court then determined that Shurelds was entering his
no contest pleas knowingly, intelligently, and voluntarily. His pleas were accepted
and he was found guilty. Sentencing was set for a later date.
{¶22} On July 8, 2020, Shurelds filed a motion to withdraw his no contest
pleas, arguing that he was under duress when he entered his pleas because he was
not comfortable going to trial with his current counsel as evidenced by having
retained another attorney and through his desire to preserve his appellate rights via
the no contest plea. Shurelds also filed a handwritten motion to withdraw his pleas
claiming that his attorney promised him that if he entered his pleas he could get
under fifteen years in prison.
{¶23} The trial court held a hearing on the motion to withdraw to determine
if there was a reasonable and legitimate basis for withdrawal. Shurelds provided
brief testimony as to why he felt he was under duress at the time of the plea hearing.
After analyzing all the requisite factors, the trial court determined that there was no
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reasonable and legitimate basis for a plea withdrawal and Shurelds’ motion was
denied.
{¶24} On August 10, 2020, the matter proceeded to sentencing. The trial
court found that count one—felonious assault—and count four—kidnapping—
related to the same victim merged for purposes of sentencing, and that count two—
felonious assault—and count five—kidnapping—related to the same victim merged
for purposes of sentencing. The state elected to proceed to sentencing on counts
four and five, the kidnapping charges (along with the unmerged aggravated robbery
in count seven). Shurelds was ordered to serve eleven years in prison on count four,
eleven years in prison on count five, and eight years in prison on count seven. He
was also ordered to serve three-year prison terms on all three of the firearm
specifications. All of the sentences were ordered to be served consecutively in this
matter. A judgment entry memorializing Shurelds’ sentence was filed the same date
the sentencing hearing was held. It is from this judgment that Shurelds appeals,
asserting the following assignments of error for our review.
Assignment of Error No. 1
Appellant’s federal and state due process rights to a fair trial were
violated by law enforcement’s abusive and coercive interview of a
witness.
Assignment of Error No. 2
Appellant’s federal and state due process rights to present a
defense with counsel were violated by the trial court’s denial of a
motion to continue trial.
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Assignment of Error No. 3
Appellant’s federal and state due process rights to the assistance
of counsel of choice were violated when the trial [court] refused
to grant a continuance to allow retained counsel to prepare for
trial.
Assignment of Error No. 4
Appellant’s no contest pleas were not entered voluntarily.
Assignment of Error No. 5
The trial court erred by denying appellant’s pre-sentence motion
to withdraw his no-contest pleas.
Assignment of Error No. 6
The trial court failed to make the statutory findings required to
impose consecutive sentences.
Assignment of Error No. 7
The trial court erred by imposing a mandatory consecutive
sentence on a third firearm specification.
First Assignment of Error
{¶25} In his first assignment of error, Shurelds argues that the trial court
erred by denying his motion to suppress/request to exclude the testimony of A.W.
He contends that law enforcement used improperly coercive tactics in A.W.’s
interview in this matter, and that these coercive tactics “destroyed” A.W.’s
credibility as a potential witness for either party, violating Shurelds’ right to a fair
trial.
Standard of Review
{¶26} A suppression motion is a device used to eliminate evidence from a
criminal trial that has been secured illegally in violation of the Fourth, Fifth, or Sixth
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Amendment. State v. French, 72 Ohio St.3d 446, 449, 1995-Ohio-32. Although
Shurelds’ original motion was styled, in part, as a suppression motion, the state
argued that his motion to preclude the testimony of A.W. was actually a motion in
limine. The purpose of a motion in limine is to avoid the introduction of matters at
trial that are irrelevant, inadmissible, and prejudicial. Id. A ruling on a motion in
limine “reflects the court’s anticipated treatment of an evidentiary issue at trial and,
as such, is a tentative, interlocutory, precautionary ruling” subject to change given
context in trial. Id. at 450.
{¶27} Generally, a trial court’s ruling on a motion in limine does not preserve
for review any error the trial court may have made on the motion; rather, any
claimed error must be preserved at trial by an objection, proffer, or ruling on the
record. State v. Harris, 12th Dist. Butler No. CA2007-11-280, 2008-Ohio-4504, ¶
27. There are some instances where the denial of a motion in limine is the functional
equivalent of a suppression motion, which would preserve it for appellate review.
See State v. Shalash, 12th Dist. Warren No. CA2014-12-146, 2015-Ohio-3836, ¶ 38
(stating how a motion in limine can be the functional equivalent of a suppression
motion in certain circumstances).
{¶28} We question whether this case presents one where the denial of the
motion in limine was the functional equivalent of a suppression motion, especially
given that the matter involved the prospective statement of a witness and not the
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defendant, and where no statement incriminating to Shurelds was ever obtained
during the encounter with the police. Nevertheless, if we were to treat the trial
court’s decision denying the motion in limine as a motion to suppress, and if we
determined that denial of the motion in limine was preserved by the no contest plea
we apply the same standard of review as we would for a suppression motion.
Shalash at ¶ 42 citing State v. Johnston, 2d Dist. Montgomery No. 26016, 2015-
Ohio-450, ¶ 27.
{¶29} Therefore, treating Shurelds’ motion as a suppression motion purely
in the interests of justice in view of the seriousness of the instant charges,
“[a]ppellate review of a decision on a motion to suppress presents a mixed question
of law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003–Ohio–5372, ¶ 8. At
a suppression hearing, the trial court assumes the role of trier of fact and, as such, is
in the best position to evaluate the evidence and the credibility of witnesses. Id.citing State v. Mills, 62 Ohio St.3d 357, 366 (1992). When reviewing a motion to
suppress, “an appellate court must accept the trial court’s findings of fact if they are
supported by competent, credible evidence.” Burnside at ¶ 8 citing State v. Fanning,
1 Ohio St.3d 19 (1982). With respect to the trial court’s conclusions of law,
however, our standard of review is de novo, and we must independently determine
whether the facts satisfy the applicable legal standard. Id. citing State v. McNamara,
124 Ohio App.3d 706 (4th Dist.1997). Finally, to the extent that Shurelds argues
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on appeal that the trial court erred and should have dismissed the case altogether
due to coercive police tactics, we would also review that legal decision de novo.
See, e.g., State v. Preztak, 8th Dist. Cuyahoga No. 91244, 2009-Ohio-621, ¶ 10.
Argument and Analysis
{¶30} A.W., the father of D.W.’s child, was one of the alleged victims in this
matter. When D.W. first saw A.W. on the evening in question, December 2, 2018,
A.W. was on the floor of the apartment D.W. had been dragged into, bleeding
“profusely” from a stab wound. When the incident ended and the victims3 were
allowed to leave, D.W. took A.W. to a hospital in Van Wert. A.W. allegedly told
hospital personnel that he had been stabbed by a girl or another girlfriend.
{¶31} A.W. was not interviewed by police regarding the matter in question
until December 28, 2018. At the time of his interview, A.W. had been arrested on
unrelated matters. A.W.’s interview was conducted by Detective Steve
Stechschulte. The interview was recorded and introduced into evidence at a hearing
on the matter. In its entirety, the recording lasted approximately fifteen minutes.
{¶32} In Detective Stechschulte’s initial interaction with A.W. on the video,
it is evident that A.W. believes that the detective is present to talk to A.W. about
A.W.’s recent arrest, particularly since A.W. is incarcerated because of the charges.
3
One of Shurelds’ attorneys presented the argument early in the proceedings of this case that he felt the
evidence might show that A.W. was not actually a victim in this matter and that A.W. had been stabbed in
self-defense while trying to enter the apartment of Lamont Jones. Regardless, no similar claims were made
that D.W. or her son were not victims in this matter.
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However, Detective Stechschulte states that he does not want to talk about any of
the unrelated charges against A.W.; rather, he wants to talk to A.W. as a victim of
the incident with Shurelds, aka “Bra Bra.” Detective Stechschulte clarified that he
did not care if A.W. did any jail time on the other charges. Detective Stechschulte
stated that A.W. was one of the victims in the Shurelds matter and he admonished
A.W. to tell the truth.
{¶33} A.W. stated that he did not know anything about being stabbed at the
residence on the evening in question. He maintained this story even when Detective
Stechschulte stated that they had A.W.’s blood/DNA to prove A.W. was at the
apartment. Further, Detective Stechschulte stated that he had talked to “Lamont,”
another one of the men present during the incident. A.W. responded that he just
wanted to get his prison/jail time out of the way for the current charges. He claimed
that he did not know what D.W. had gotten herself into on the evening in question,
and when he was confronted with what happened to D.W. that night he responded,
“that’s crazy.”
{¶34} When A.W. repeatedly avoided questions about the incident,
Detective Stechschulte claimed—or threatened, according to Shurelds—that A.W.
could be charged with contempt, obstruction, or perjury. After he was told this,
A.W. said he was going to get an expensive Columbus lawyer. Following some
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arguing, Detective Stechschulte also told A.W. that he did not have a Fifth
Amendment right in this matter because he was the victim.
{¶35} Detective Stechschulte told A.W. to think about his child, who was
also part of the incident. Detective Stechschulte and A.W. argued, with A.W. again
mentioning his current charges. At one point, A.W. told Detective Stechschulte to
“shut the fuck up.” In response to repeated questions about being stabbed and about
the night in question, A.W. continued to respond that he was incarcerated and that
he did not know anything about any other incident other than the incidents he was
charged with. A.W. stated that the incident that he knew “nothing” about in this
matter was going to get “taken care of” in a manner that was “correct.”
{¶36} Detective Stechschulte also confronted A.W. with the fact that A.W.
used a false name at the Van Wert hospital. Detective Stechschulte told A.W. he
could be charged with federal identity theft. He also told A.W. that a judge would
remember his lack of cooperation when A.W. was sentenced on his current charges.
A.W. called Detective Stechschulte a “clown” and stated that he had already
provided for his children by leaving them with houses. Detective Stechschulte
threatened that he might take those houses as well. At one point Detective
Stechschulte told A.W. that he would “fuck [A.W.] as hard as [he] want[s].”
{¶37} The interview ended, with the interaction between A.W. and Detective
Stechschulte lasting approximately thirteen and a half minutes. After Detective
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Stechschulte left the interview room, A.W. can be heard stating something to
himself about how Detective Stechschulte had not tried to work out a deal with him.
A.W. refers to Detective Stechschulte as a “clown” again.
{¶38} The trial court characterized A.W. as “obstreperous” in the interview,
and stated that A.W. “acted like the whole situation was a joke.” (Doc. No. 116).
{¶39} Shurelds filed a motion to suppress or exclude A.W.’s testimony,
claiming that the interview was so coercive and so outrageous that it had impeded
any potential evidence that A.W. could present at trial, particularly if it was
favorable to the defense. In support, Shurelds noted that A.W.’s initial story
regarding the stabbing to hospital workers was that a girl had stabbed him, not
implicating Shurelds, thus A.W. could have been an important witness for the
defense. In addition, Shurelds argued that the threats of numerous charges and
threats of financial sanctions against A.W. “destroyed” any potential he had as a
witness.
{¶40} Shurelds cited cases that he felt were similar to his situation wherein
it was determined that a witness’s testimony was coerced to such a degree that the
credibility of that witness’s testimony was destroyed. See State v. Bradley, 1st Dist.
Hamilton No. C-940543, 1995 WL 356284; State v. Asher, 112 Ohio App.3d 646,
650 (1st Dist.1996). The trial court analyzed those cases and found them
distinguishable, reasoning as follows.
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[Detective] Stechschulte was no[t] overly coercive and in fact, did
not compel [A.W.] to testify. From the very beginning, even at the
hospital, [A.W.] said he knew nothing about what happened or
how he got stabbed. While this Court does not condone
Stechschulte’s language, he did not seem to faze [A.W.]. [A.W.]
offered no evidence to Stechschulte. There was not [sic] threat to
[A.W.] that if he said anything different than what he said before,
he would be arrested and charged with perjury like in Bradley.
[A.W.] had not sworn out an affidavit before being interviewed.
According to the incident report from Van Wert, [A.W.] told the
Van Wert police that the incident happened in Van Wert, but
refused to answer any other questions. Stechschulte did not
coerce any testimony from [A.W.]. [A.W.] did not appear to be
afraid of Stechschulte’s threats of additional charges. In fact,
[A.W.] seemed to brush the threats off with smiles and laughs,
seeming to not take the situation serious.
Based on what [A.W.] said and refused to say during his
interviews with Van Wert police and with Stechschulte and his
demeanor and attitude towards Stechschulte, the Court cannot
anticipate what [A.W.] might or might not say if called as a
witness in the trial in this case. During both interviews (with Van
Wert and Stechschulte) [A.W.] said he knew nothing about what
happened. He was glib and confident in his answers. [A.W.] did
not ever appear to be intimidated by Stechschulte. The Court
cannot find, based on the evidence presented that Stechschulte’s
interview method, while not exemplary, presented fundamental
unfairness to defendant.
(Doc. No. 116).4
{¶41} In our own review of the matter, we agree with the trial court. A
review of the interview establishes that A.W. expected to be offered some type of
4
We note that the trial court had access to the electronic discovery in this matter, and both parties encouraged
the trial court to consider the discovery in making its decision on the motion. That discovery is not in the
record before us.
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deal related to his current charges, or at least to talk about his current charges, and
when the focus of the interview was related to the Shurelds incident, A.W. claimed
he did not know anything and did not want to talk about it. A.W. did not reveal any
information related to the incident in question.
{¶42} As the trial court stated, Detective Stechschulte did make threats of
other possible charges against A.W., but those threats did not result in A.W.
providing a story, let alone changing his story or making any statements contrary to
what he had made before. As the trial court noted, there is no way to tell what
A.W.’s testimony regarding the incident in question may or may not be at trial,
regardless of the propriety of Detective Stechschulte’s tactics. The latter point going
directly to our concern expressed earlier as to why a mere pre-trial in limine matter
is generally preserved only after it is introduced at trial and not upon a no contest
plea.
{¶43} More specifically, this distinction renders this case unlike the case of
State v. Bradley, supra, wherein the First District Court of Appeals was presented
with an alleged victim who had initially filed a complaint claiming that her husband
harmed her. Before the case went to trial, the alleged victim signed an affidavit
recanting her earlier version of events. When the case proceeded to trial, the
prosecutor asked the trial court to advise the alleged victim of her rights. The trial
court told the alleged victim that if she said anything different than what was in the
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affidavit, she would be arrested “now and charged with perjury.” Bradley at * 1.
Afterward the alleged victim was told she had the right not to say anything to
incriminate herself, but she was not advised of her right to counsel. The alleged
victim went on to testify, essentially consistent with her initial complaint.
{¶44} In Bradley, the First District Court of Appeals determined that the trial
court and prosecutor had coerced actual testimony at trial from the complaining
witness because the remarks “went beyond permissible admonitions and rose to the
level of intimidation.” Bradley at * 1. The First District held that this violated the
defendant’s right to a fair trial. Similarly, in State v. Asher, supra, which Shurelds
cites on appeal, the First District determined that coercing a witness’s testimony by
the prosecutor or by the trial court violated a defendant’s right to a fair trial.
{¶45} Notably, in both Bradley and Asher, the purported coercion was not
done by a detective, as is alleged in this case. Moreover, in both cases critical and
damaging testimony—and the only testimony linking the defendant to any crime—
was presented through the coerced witness. Here, A.W. was never “coerced” into
making any statement at all, let alone a statement that was the sole basis for a
conviction at trial. Thus this case is entirely unlike those cited by Shurelds and the
cases Shurelds cites have no bearing on the current case.
{¶46} Furthermore, it is important to emphasize that due process guarantees
a criminal defendant the right to establish a defense by presenting his own witnesses.
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“Merely warning a defense witness of the consequences of perjury [or contempt or
other crimes] does not, in and of itself, violate a defendant’s due process rights.”
State v. Harrison, 1st Dist. Hamilton No. C-150642, 2016-Ohio-7579, ¶ 6, citing
United States v. Pierce, 62 F.3d 818, 832 (6th Cir.1995). But a defendant’s rights
may be violated by unnecessarily strong admonitions against perjury that are aimed
at discouraging a defense witness from testifying. Id.; Webb v. Texas, 409 U.S. 95,
93 S.Ct. 351 (1972). To establish such a violation, the defendant must show that
the admonition substantially interfered with the witness’s free and voluntary choice
to testify. Pierce at 833; United States v. Foster, 128 F.3d 949, 953 (6th Cir.1997).
{¶47} Shurelds has provided us with no indication that any admonitions or
“threats” substantially interfered with A.W.’s statements, let alone a decision to
testify. For all of these reasons, even under a de novo review, we cannot find that
Shurelds was denied his right to due process, or that the trial court erred by denying
his suppression motion/motion to exclude/motion to dismiss. Therefore, his first
assignment of error is overruled.
Second Assignment of Error
{¶48} In his second assignment of error, Shurelds argues that the trial court
erred by denying his June 4, 2020, motion to continue the trial. Again, we question
the extent to which a continuance issue is preserved following a plea of no contest.
However, for the reasons stated earlier, and because the continuance issue in the
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third assignment of error indirectly involves the right to counsel, we elect to address
the second and third assignments of error purely in the interests of justice.
Standard of Review
{¶49} “An appellate court must not reverse the denial of a continuance unless
there has been an abuse of discretion.” State v. Unger, 67 Ohio St.2d 65, 67 (1981);
State v. Ames, 3d Dist. Allen No. 1-19-02, 2019-Ohio-2632, ¶ 29. An abuse of
discretion is a decision that is unreasonable, arbitrary, or unconscionable.
Blakemore v. Blakemore, 5 Ohio St.3d 217, 219 (1983).
Analysis
{¶50} The Supreme Court of Ohio has recognized that, “[t]here are no
mechanical tests for deciding when a denial of a continuance is so arbitrary as to
violate due process. The answer must be found in the circumstances present in
every case, particularly in the reasons presented to the trial judge at the time the
request is denied.” Unger at 67, quoting Ungar v. Sarafite, 376 U.S. 575, 589
(1964). “Weighed against any potential prejudice to a defendant are concerns such
as a court’s right to control its own docket and the public’s interest in the prompt
and efficient dispatch of justice.” Id.{¶51} The Supreme Court of Ohio identified a number of factors that a trial
court should consider when evaluating a motion for a continuance, which include
(1) the length of the delay requested; (2) whether other continuances have been
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requested and received; (3) the inconvenience to litigants, witnesses, opposing
counsel and the court; (4) whether the requested delay is for legitimate reasons or
whether it is dilatory, purposeful, or contrived; (5) whether the defendant
contributed to the circumstance which gives rise to the request for a continuance;
and (6) other relevant factors, depending on the unique facts of each case. Id. at 67-
68.
{¶52} In this case, on June 4, 2020, Shurelds filed a motion to continue the
June 23, 2020 trial date. The trial court held a hearing on the motion on June 10,
2020, and ultimately denied the motion after conducting the following analysis.
This case has been pending since February 14, 2019 when the
indictment was returned. The trial was first scheduled for March
12, 2019 with court-appointed attorney Greg Donohue
representing defendant. Later, defendant hired attorney Kenneth
Rexford in March 2019 and the trial was continued to November
19, 2019. Defendant subsequently moved for another continuance
of the trial and the trial was rescheduled for March 3, 2020.
Attorney Rexford was granted leave to withdraw in January 2020
and the Court appointed Attorney Kirk McVay from the state
public defender’s office. Upon Mr. McVay’s appearance the trial
was continued again to the present date of June 23, 2020.
Defendant wants to continue it once again due to the difficulties
in preparation caused by COVID-19. The record shows the many
motions and court hearings that have occurred in this case. All
counsel representing defendant have worked diligently.
What is missing from the file is a list of witnesses for defendant,
other than responses that any witness named by the state could be
a witness for the defense. Now the defendant apparently is having
difficulty talking face to face with a couple potential witnesses:
Betty Cotton, whose name appears in the state’s discovery and
someone nicknamed “Tone’” [sic] who might be Cotton’s
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boyfriend. According to the discovery, Cotton and her boyfriend
were allegedly involved in giving a package to one of the victims
in this case, [D.W.]. Defendant says it is important to his defense
to talk face-to-face with these two potential witnesses because they
would have information bearing on [D.W.]’s credibility.
Interesting to wonder how defendant knows these two will have
helpful information if defendant has never spoken to the
witnesses.
After consideration of the reasons the defendant wants this case
continued, the late hour of the fling [sic] of the motion, the
arguments of counsel for and against the motion, the history of
this case, including the previous continuances that can be charged
to defendant, that three attorneys for defendant could have talked
to these witnesses over the last year and a half, even before
COVID-19, and because defendant has been in jail for nearly one
and a half years, the court hereby ORDERS that defendant’s
motion for a continuance is DENIED.
(Doc. No. 259).
{¶53} Shurelds now contends on appeal that the trial court did not give
proper “deference” to the preparation concerns of his attorney when deciding his
motion for a continuance. Further, he argues that not all the delays in this case were
attributable to Shurelds, as it took time for this case to be joined with the other
criminal case against Shurelds (the case that was later severed) and there was,
Shurelds claims, “discovery intransigence” on behalf of the state resulting in
defense attorneys filing motions to compel.
{¶54} However, a review of the trial court’s decision illustrates a careful
analysis of many factors in this case. In its analysis, the trial court summarized the
history of the delays, including the delays that were caused by Shurelds and his
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representation. The trial court analyzed the purported reasons for the newly
requested continuance and noted the late “hour” of the filing for another
continuance.
{¶55} In addition to what the trial court found, we would also point out that
at the hearing on the motion for a continuance the trial court was also made aware
by the state that one of the state’s witnesses was being brought in from Utah for the
June 23, 2020, trial date. Further, the trial court had already heard the case against
Shurelds’ co-defendant.5 As the victim in this case had testified in the case of
Shurelds’ co-defendant, she wanted to get Shurelds’ case completed as well. In
addition to these factors, the trial court noted the difficulty in rescheduling the trial
yet again, particularly in light of COVID restrictions. See Unger at 67.
{¶56} In sum, the trial court conducted a thorough analysis of the request for
a continuance, addressing the Unger factors. Importantly, a trial court is not even
explicitly required to outline the Unger factors when denying a continuance. State
v. Colley, 4th Dist. Scioto No. 09CA3323, 2010-Ohio-4834, ¶ 20. Nevertheless,
given all the factors involved and the trial court’s careful consideration, we cannot
find that the trial court abused its discretion by denying Shurelds’ June 4, 2020,
request for a continuance. Therefore his second assignment of error is overruled.
Third Assignment of Error
5
Shurelds’ co-defendant, Kiarris Laws, was convicted and sentenced to an aggregate 54-years in prison. He
appealed to this Court and his appeal was denied. State v. Laws, 3d Dist. Allen No. 1-20-10, 2021-Ohio-166.
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{¶57} In his third assignment of error, Shurelds argues that the trial court
violated his right to have the counsel of his choice by denying the June 19, 2020
request for a continuance made by the counsel he attempted to retain that same date.
He argues that the denial of this continuance effectively denied him the counsel of
his choice.
Relevant Authority6
{¶58} “An indigent defendant does not have a right to choose a particular
attorney; rather, such a defendant ‘has the right to professionally competent,
effective representation.’ ” State v. Stein, 3d Dist. Allen No. 10-17-13, 2018-Ohio-
2345, ¶ 20, quoting State v. Evans, 153 Ohio App.3d 226, 2003-Ohio-3475, ¶ 30
(7th Dist.), citing State v. Murphy, 91 Ohio St.3d 516, 523 (noting that an indigent
defendant must show “good cause” to warrant substitution of counsel). Whether
counsel is court-appointed or privately-retained the Sixth Amendment’s (as
incorporated by the Fourteenth Amendment) guarantees that an individual is entitled
to “ ‘[c]ompetent representation[, but it] does not include the right to develop and
share a “meaningful attorney-client relationship” with one's attorney.’ ” Id.,quoting State v. Gordon, 149 Ohio App.3d 237, 2002-Ohio-2761, ¶ 12 (1st
Dist.); see also Murphy at 523, citing Morris v. Slappy, 461 U.S. 1, 13 (1983)
(noting that no court could possibly guarantee that a defendant would develop the
6
To the extent this assignment of error challenges the trial court’s denial of the June 19, 2020, request for a
continuance, the same standard of review from the previous assignment of error applies.
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kind of rapport that would constitute a “meaningful attorney-client relationship”
whether the attorney is privately-retained or provided by the public).
{¶59} “In order for the court to discharge a court-appointed attorney, ‘the
defendant must show a breakdown in the attorney-client relationship of such
magnitude as to jeopardize the defendant’s right to effective assistance of counsel.’
” Id., quoting State v. Henness, 79 Ohio St.3d 53, 65 (1997), quoting State v.
Coleman, 37 Ohio St.3d 286 (1988), paragraph four of the syllabus. While a person
with sufficient financial resources can effectively choose a particular attorney
privately-retaining them for their specific case and conceptually discharge them and
seek to substitute new privately-retained counsel when there is the perception of or
the actual absence of rapport, this right to counsel of one’s choosing is not without
limitation. “[T]he right to counsel must be balanced against the trial court’s
authority to control its docket, as well as its awareness that a ‘demand for counsel
may be utilized as a way to delay the proceedings or trifle with the court.’ ” State
v. Baskins, 3d Dist. Allen No. 1-18-23, 2019-Ohio-2071, ¶ 10 quoting United States
v. Krzyske, 836 F.2d 1013, 1017 (6th Cir.1988), and citing State v. Lawson, 8th Dist.
Cuyahoga No. 97018, 2012-Ohio-1050, ¶ 24.
Analysis
{¶60} After the trial court denied Shurelds’ request for a continuance at the
June 10, 2020 hearing discussed in the second assignment of error, defense counsel
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asked for a recess. When court reconvened after that recess, defense counsel stated
that Shurelds had expressed his intention to retain counsel to represent him further
in the matter.
{¶61} The trial court stated that was “fine” but for the time being the court-
appointed counsel remained counsel “unless and until new counsel appears. I’ll
continue to appoint you on the earlier representation when [prior counsel] got off
the case [because] Mr. Shurelds didn’t have the money to hire an attorney. So,
court-appointed counsel will remain on the case.” (June 10, 2020, Tr. at 15). The
trial court added that if Shurelds had money to retain counsel, that was fine but
“[t]he trial is still set for June 23rd.” (Id.) Defense counsel acknowledged the
court’s ruling and indicated that he would keep preparing for trial.
{¶62} On Friday afternoon June 19, 2020, a new attorney filed a notice of
appearance and a request for a continuance of the June 23, 2020, trial date. Due to
the late filing, and the pending trial date, the trial court held an electronic hearing
on the matter via Zoom on June 22, 2020. All parties were in attendance including
Shurelds, his appointed counsel, and the attorney that Shurelds was attempting to
substitute for his appointed counsel.
{¶63} The trial court noted that since the last hearing subpoenas had been
filed, so it had to be determined whether the newly retained counsel would be
permitted to substitute for appointed counsel and whether a continuance would be
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granted to allow substitute counsel time to prepare. The proposed substitute counsel
stated that he had actually not spoken to Shurelds about the case at all yet and that
he would need at least a month or two to prepare for trial. However, he stated he
could not be prepared for trial on June 23, 2020, so if a continuance was not granted
he would withdraw because it would not make any sense to go forward representing
Shurelds.
{¶64} The state expressed indifference to Shurelds’ request for substitution
of counsel but the state adamantly objected to a continuance due to a witness having
already been driven in from Utah for trial. In addition, the state argued that Shurelds
was simply trying to delay his trial. In support of this accusation, the state presented
two jailhouse calls from Shurelds. In one, made June 17, 2020, Shurelds stated that
he needed to get money to get to a lawyer so he did not have to go to trial on
Tuesday. On the second call, Shurelds specifically stated that he wanted to get his
“shit pushed back,” referring to the trial.
{¶65} Shurelds then made a statement at the June 22, 2020 hearing that he
felt the trial court had said at the June 10, 2020, hearing that if Shurelds retained
counsel the trial would get continued. He stated that he did not feel comfortable
going to trial with his current attorney. The trial court responded by stating that at
the prior hearing the trial court stated it was fine if Shurelds hired another attorney
but the trial was scheduled for June 23, 2020.
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{¶66} Shurelds then reiterated that he did not feel comfortable with his
current attorney because his current attorney had not subpoenaed the witnesses
Shurelds wanted and the appointed attorney had not spoken with Shurelds since the
prior hearing. Shurelds’ appointed attorney stated that he was prepared to go to
trial, but he noted that there were “extreme differences” of opinion between
Shurelds and his counsel about how the case should be tried.
{¶67} The trial court took the matter under advisement then issued a seven-
page entry denying Shurelds’ request for substitution of counsel and his request for
a continuance. In its entry, the trial court specifically analyzed all of the Unger
factors, noting such things as the late filing of the motion, that there was no
indication of a complete communication breakdown between Shurelds and his
appointed attorney, that the proposed new attorney had never spoken to Shurelds,
that a witness had been brought from Utah and housed at public expense for the
trial, that Shurelds’ co-defendant had been tried and convicted by a jury in 2019,
and that there was a level of inconvenience to the court and it’s crowded docket,
particularly in light of COVID-19. In addition, the trial court noted the recorded
jail-house phone calls from Shurelds wherein he wanted to get his case continued.
Factoring in all these things, the trial court stated it carefully considered the request
for substitution of counsel and the request for a continuance, but they were
ultimately denied.
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{¶68} Shurelds contends on appeal that the trial court’s decision improperly
denied him the counsel of his choice. He claims that he had no motive to actually
delay the trial so the trial court’s finding that his request was essentially not in good-
faith was erroneous. Further, he renews his arguments related to a continuance from
the prior assignment of error, claiming that many of the prior delays in this case
were largely out of his control.
{¶69} Contrary to Shurelds’ arguments, the trial court issued a thorough and
lengthy entry denying his request for substitution of counsel and his request for a
continuance. The trial court analyzed all of the Unger factors mentioned in the prior
assignment of error, and noted many factors weighing against Shurelds. While
Shurelds feels that the trial court placed too much emphasis on the fact that it seemed
his request was made in bad-faith due to what was stated on the jail-house calls, the
calls themselves are damaging as Shurelds specifically states he wants to get his
trial pushed back. A trial court could find this a dilatory tactic. See State v. Baskins,
3d Dist. Allen No. 1-18-23, 2019-Ohio-2071, ¶ 10. Moreover, although on appeal
Shurelds claims that there was no clear “benefit” to him in getting the trial date
pushed back, the state had brought a witness in from Utah and the state noted that
the witness would potentially be unavailable for a significant period of time.
{¶70} Furthermore, Shurelds did not demonstrate a complete breakdown in
communications with his attorney; rather, there appeared to be a disagreement
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between how the case should be tried, which is not enough to establish a breakdown
in communication. See State v. Ames, 3d Dist. Allen No. 1-19-02, 2019-Ohio-2632,
¶ 25. In addition, the timing of the motion was extremely late in the process,
particularly given the amount of time the case had been pending. Baskins, supra, at
¶ 10.
{¶71} In sum, the trial court’s thorough analysis and measured consideration
of Shurelds’ motion establish that there was no error here, let alone an abuse of
discretion. For all of these reasons, Shurelds’ third assignment of error is overruled.
Fourth Assignment of Error
{¶72} In his fourth assignment of error, Shurelds argues that his no contest
pleas were not entered knowingly, intelligently, and voluntarily.
Standard of Review
{¶73} “Because a no-contest or guilty plea involves a waiver of
constitutional rights, a defendant’s decision to enter a plea must be knowing,
intelligent, and voluntary.” State v. Dangler, 162 Ohio St.3d 1, 2020-Ohio-2765, ¶
10, citing Parke v. Raley, 506 U.S. 20, 28-29, 113 S.Ct. 517 (1992); State v. Clark,
119 Ohio St.3d 239, 2008-Ohio-3748, ¶ 25; see State v. Engle, 74 Ohio St.3d 525,
527 (1996). “If the plea was not made knowingly, intelligently, and voluntarily,
enforcement of that plea is unconstitutional.” Dangler at ¶ 10.
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{¶74} Criminal Rule 11(C)(2) outlines the procedures for trial courts to
follow when accepting pleas in felony cases. It reads as follows.
(2) In felony cases the court may refuse to accept a plea of guilty
or a plea of no contest, and shall not accept a plea of guilty or no
contest without first addressing the defendant personally and
doing all of the following:
(a) Determining that the defendant is making the plea
voluntarily, with understanding of the nature of the charges and
of the maximum penalty involved, and if applicable, that the
defendant is not eligible for probation or for the imposition of
community control sanctions at the sentencing hearing.
(b) Informing the defendant of and determining that the
defendant understands the effect of the plea of guilty or no
contest, and that the court, upon acceptance of the plea, may
proceed with judgment and sentence.
(c) Informing the defendant and determining that the defendant
understands that by the plea the defendant is waiving the rights
to jury trial, to confront witnesses against him or her, to have
compulsory process for obtaining witnesses in the defendant’s
favor, and to require the state to prove the defendant’s guilt
beyond a reasonable doubt at a trial at which the defendant
cannot be compelled to testify against himself or herself.
{¶75} Criminal Rule 11 “ ‘ensures an adequate record on review by requiring
the trial court to personally inform the defendant of his rights and the consequences
of his plea and determine if the plea is understandingly and voluntarily made.’ ”
Dangler at ¶ 11, quoting State v. Stone, 43 Ohio St.2d 163, 168 (1975). The
Supreme Court of Ohio has recently reaffirmed that “our focus in reviewing pleas
has not been on whether the trial judge has ‘[incanted] the precise verbiage’ of the
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rule, State v. Stewart, 51 Ohio St.2d 86, 92, 364 N.E.2d 1163 (1977), but on whether
the dialogue between the court and the defendant demonstrates that the defendant
understood the consequences of his plea[.]” Dangler at ¶ 12 citing State v. Veney,
120 Ohio St.3d 176, 2008-Ohio-5200, ¶¶ 15-16.
{¶76} “When a criminal defendant seeks to have his conviction reversed on
appeal, the traditional rule is that he must establish that an error occurred in the trial-
court proceedings and that he was prejudiced by that error.” Dangler at ¶ 13 citing
State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, ¶ 14-15; Crim.R. 52. Generally,
to demonstrate prejudice, a defendant would have to establish that “that his plea
would not have otherwise been made.” Dangler at ¶ 24.
{¶77} There are limited exceptions to the prejudice requirement in the
criminal-plea context. “When a trial court fails to explain the constitutional rights
that a defendant waives by pleading guilty or no contest, we presume that the plea
was entered involuntarily and unknowingly, and no showing of prejudice is
required.” Dangler at ¶ 14 citing State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-
3748, at ¶ 31; State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, at syllabus. The
“constitutional” rights are set forth in Crim.R. 11(C)(2)(c) above. See Dangler at ¶
14. When a trial court fails to fully cover “nonconstitutional” rights in Crim.R. 11,
“a defendant must affirmatively show prejudice to invalidate a plea.” Dangler at ¶
14, citing Clark at ¶ 17. The Supreme Court of Ohio recognized one other exception
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to the prejudice requirement: “a trial court’s complete failure to comply with a
portion of Crim.R. 11(C) eliminates the defendant’s burden to show prejudice.”
(Emphasis sic.) Dangler at ¶ 15, citing State v. Sarkozy, 117 Ohio St.3d 86, 2008-
Ohio-509, ¶ 22.
{¶78} “Aside from these two exceptions, the traditional rule continues to
apply: a defendant is not entitled to have his plea vacated unless he demonstrates he
was prejudiced by a failure of the trial court to comply with the provisions of
Crim.R. 11(C).” Dangler at ¶ 16, citing State v. Nero, 56 Ohio St.3d 106, 108
(1990). “The test for prejudice is ‘whether the plea would have otherwise been
made.’ ” Dangler at ¶ 16, quoting Nero.
Analysis
{¶79} In this case Shurelds does not contend that the trial court’s Crim.R. 11
dialogue was deficient in any manner. In fact, the record reflects a thorough
dialogue at the plea hearing compliant with Crim.R. 11. However, Shurelds argues
that when the trial court denied his requests for continuances and his request for
substitution of counsel, Shurelds was put in an “impossible” position.
{¶80} Contrary to Shurelds’ argument, the Crim.R. 11 dialogue established
that Shurelds was aware of all the constitutional and non-constitutional rights he
was waving when entering his pleas. He repeatedly expressed that he understood
what he was doing, that he was satisfied with his attorney, that he did not need more
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time to think about the situation, and that he was not promised anything other than
what had been stated in the written plea agreement. He was notified that a jury pool
was present and that the parties were ready to proceed to a trial if Shurelds desired
to have one.
{¶81} Simply put, there is nothing in the record that establishes that
Shurelds’ pleas were anything other than knowing, intelligent, and voluntary under
the Supreme Court of Ohio’s holding in Dangler. Shurelds has also not
demonstrated any prejudice or that his plea would not have otherwise been made
other than through self-serving statements. See State v. Blair, 3d Dist. Paulding No.
11-20-01, 2021-Ohio-266, ¶ 18. For these reasons, his fourth assignment of error is
overruled.
Fifth Assignment of Error
{¶82} In his fifth assignment of error, Shurelds argues that the trial court
erred by denying his presentence motion to withdraw his no contest pleas.
Legal Standard
{¶83} A motion to withdraw a no contest plea is governed by Crim.R. 32.1,
which reads,
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.
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While “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.” State v. Xie, 62 Ohio St.3d 521, 527 (1992).
{¶84} “A trial court must conduct a hearing to determine whether there is a
reasonable and legitimate basis for the withdrawal of the plea.” Xie, paragraph one
of the syllabus.
Some of the factors that are weighed in considering the trial
court’s decision on a presentence motion to withdraw a plea are
as follows: (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 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. Griffin (2001), 141 Ohio App.3d 551, 554, 752 N.E.2d 310 [(7th
Dist.)].
State v. Lane, 3d Dist. Allen No. 1-10-10, 2010-Ohio-4819, ¶ 21. “None of the
factors is determinative on its own and there may be numerous additional aspects
‘weighed’ in each case.” State v. North, 3d Dist. Logan No. 8-14-18, 2015-Ohio-
720, ¶ 16.
{¶85} “The decision to grant or deny a motion to withdraw a guilty plea is
within the sound discretion of the trial [court] and will not be disturbed on appeal,
absent an abuse of discretion.” State v. Peacock, 3d Dist. Seneca No. 13-13-42,
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2014-Ohio-1571, ¶ 26. When the abuse of discretion standard applies, an appellate
court is not to substitute its judgment for that of the trial court. State v. Thompson,
3d Dist. Henry No. 7-16-10, 2017-Ohio-792, ¶ 11.
Analysis
{¶86} On appeal, Shurelds argues that an analysis of the factors listed above
actually weighs in favor of granting his motion to withdraw. He contends that his
motion to withdraw was timely, that the state would not have been prejudiced, that
the record established he was not satisfied with his representation, that he never
admitted guilt, and that he felt he had a defense to the charges based on attacking
the credibility of the state’s witnesses. Further, Shurelds contends that the denial of
his requests for continuances denied him the ability to “run down vital witnesses,”
denied him the counsel of his choice, and that he was facing an impending jury trial
with an attorney he did not trust.
{¶87} The trial court held a hearing on Shurelds’ motion to withdraw his
pleas. Shurelds provided brief testimony at the hearing stating that he attempted to
terminate his attorney in early June because he did not think his attorney was going
to do his best to represent him and his attorney had not subpoenaed the witnesses
that Shurelds felt were important. Further, he claimed that he was told that if he
went to trial he would get “sixty-four years” but he was told if he did not go to trial
he would get “way under that.” (Aug. 4, 2020, Tr. at 8).
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{¶88} Following the hearing on the motion to withdraw, the trial court took
the matter under advisement then issued an eight page written entry denying
Shurelds’ motion. In the entry, the trial court noted that the motion was timely. The
trial court stated there was some prejudice to the state if the motion to withdraw was
granted based on the one witness that had been brought in from Utah, and his
potential unavailability for up to eighteen months going forward. Nevertheless, the
trial court determined that this factor alone did not merit denying Shurelds’ motion.
{¶89} The trial court analyzed other factors, including the fact that Shurelds
was represented by a competent, state public defender, that Shurelds entered his
pleas on the date of trial after meeting repeatedly with his attorney and after being
advised he could have a trial and that he could have the trial court subpoena
witnesses. The trial court noted that there was no demonstration of a breakdown of
communications between Shurelds and the state public defender; rather there was a
difference in trial strategies. Further, the trial court emphasized that there was no
credible evidence that the attorney induced Shurelds to enter his pleas and that while
Shurelds professed innocence in his motion to withdraw, he did not do so at the plea
hearing. In fact, the trial court stated that Shurelds expressed no evidence of
confusion at the plea hearing. Ultimately, the trial court stated,
The determination of the instant motion boils down to defendant’s
self-serving contention that if the Court would have allowed him
to change counsel less than a week before trial and continue the
trial, defendant would not have entered the pleas. But the totality
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of the evidence, even liberally viewed, does not support this
contention, especially where defendant knowingly and voluntarily
waived his right to present witnesses and ask the Court to compel
witnesses to testify for him (Plea Transcript p. 20).
(Doc. No. 291).
{¶90} In our review of the trial court’s determination to deny Shurelds’
motion to withdraw his pleas, we find that Shurelds has not established “a
reasonable and legitimate basis for withdraw” of his pleas. Importantly,
“ ‘A change of heart or mistaken belief about the plea is not a reasonable basis
requiring a trial court to permit the defendant to withdraw the plea.’ ” State v. Lane,
3d Dist. Van Wert No. 15-12-13, 2013-Ohio-1497, ¶ 20, quoting State v. Hoke, 4th
Dist. No. 10CA32, 2011–Ohio–1221, ¶ 13; State v. Prince, 3d Dist. No. 2–12–07,
2012–Ohio–4111, ¶ 22; see also State v. Brooks, 10th Dist. No. 02AP–44, 2002–
Ohio–5794, ¶ 51 (stating “[a] defendant's change of heart or mistaken belief about
the guilty plea or expected sentence does not constitute a legitimate basis that
requires the trial court to permit the defendant to withdraw the guilty plea”).
{¶91} Analyzing the factors listed above, the state did indicate that it would
be prejudiced to some degree in this matter, Shurelds expressed no issues with his
counsel’s representation when entering his no contest pleas, and Shurelds’
appointed counsel indicated he was prepared to go to trial. Further, as discussed in
the previous assignment of error, the Crim.R. 11 plea hearing was fully compliant
with applicable authority, Shurelds was given a hearing on the motion to withdraw,
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and the trial court gave full and fair consideration to the motion to withdraw as
evidenced through the hearing and through the written entry on the matter. These
issues all weigh in favor of the trial court’s denial of Shurelds’ motion. Lane, supra,
at ¶ 20, citing State v. Staton, 3d Dist. No. 4-11-06, 2011-Ohio-4889, ¶ 4.
{¶92} Nevertheless, Shurelds motion was timely; however his claim of
innocence is entirely specious and contrary to Shurelds’ statements at the plea
hearing wherein he did not contest the allegations in the indictment. Moreover, the
plea hearing made clear that Shurelds was aware of the nature of the charges and
potential sentences, and his claim to have a complete defense to the charge is not
established.
{¶93} When weighing the factors outlined above, we cannot find that the trial
court abused its discretion by denying Shurelds’ motion to withdraw his pleas. The
only factor clearly weighing in Shurelds favor was the timing of the motion. In fact,
there were several factors weighing significantly against him, thus based on the
record before us we cannot find that the trial court abused its discretion.7 Therefore
Shurelds’ fifth assignment of error is overruled.
7
Shurelds made claims that he felt the trial court, the prosecutor, and the lead detective were biased against
him due to an incident years prior to the case sub judice. We see no indication of bias in the record before
us and no indication that Shurelds’ pleas were anything other than voluntary. Shurelds had the opportunity
to try his case to a jury, which would have made the determination regarding his guilt or innocence, yet he
elected not to do so.
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Sixth Assignment of Error
{¶94} In his sixth assignment of error, Shurelds argues that the trial court
failed to make the statutory findings necessary to impose consecutive sentences at
the sentencing hearing, even though the appropriate findings were made in the
judgment entry.
Standard of Review
{¶95} Under R.C. 2953.08(G)(2), an appellate court will reverse a sentence
“only if it determines by clear and convincing evidence that the record does not
support the trial court’s findings under relevant statutes or that the sentence is
otherwise contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002,
¶ 1. Clear and convincing evidence is that “ ‘which will produce in the mind of the
trier of facts a firm belief or conviction as to the facts sought to be established.’ ”
Id. at ¶ 22, quoting Cross v. Ledford, 161 Ohio St. 469 (1954), paragraph three of
the syllabus.
Relevant Authority
{¶96} Pursuant to R.C. 2929.14(C)(4), in order to impose consecutive
sentences, a trial court must find on the record 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
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conduct and to the danger the offender poses to the public.” Accord State v. Grate,
--- Ohio St.3d ---, 2020-Ohio-5584, ¶ 205. A trial court must then also find that at
least one or more of the aggravating factors in R.C. 2929.14(C)(4)(a) through (c)
are present. Those factors include,
(a) The offender committed one or more of the multiple offenses
while the offender was awaiting trial or sentencing, was under a
sanction imposed pursuant to section 2929.16, 2929.17, or 2929.18
of the Revised Code, or was under post-release control for a prior
offense.
(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.
{¶97} In State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, ¶ 37, the
Supreme Court of Ohio held that a trial court must make the requisite statutory
findings before imposing consecutive sentences “at the sentencing hearing and
incorporate its findings into its sentencing entry, but it has no obligation to state
reasons to support its findings.”
Analysis
{¶98} There is no dispute in this case that the trial court made all the
appropriate consecutive sentencing findings in its final judgment entry. However,
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Shurelds argues that the trial court failed to make all of the required consecutive
sentences findings at the sentencing hearing, thus this case must be reversed and
remanded for resentencing. The state counters by arguing that while the trial court
did not use the precise talismanic language of the statute at the sentencing hearing
like it did in its final judgment entry, the trial court had engaged in a consecutive
sentences analysis on the record that supported the imposition of consecutive
sentences in this matter.
{¶99} At the sentencing hearing, the trial court stated the following with
regard to consecutive sentences.
With respect to whether consecutive or concurrent, in looking at
the totality of the circumstances and what all occurred, and how
it occurred, and how the victims especially in the Kidnappings
were treated, the Court is going to order that Counts Four, Five,
and Seven will be ordered to be served consecutive to each other.
(Aug. 10, 2020, Tr. at 19). The trial court’s judgment entry on the matter then
emphasized that the trial court was finding that the aggravating factor was R.C.
2929.14(C)(4)(b) regarding multiple offenses and great or unusual harm.
{¶100} It is clear after a review of the trial court’s statement regarding
consecutive sentences that the trial court did not recite the “talismanic words” of the
statute. The “talismanic” words are not required, if preferred, but it must be evident
from the trial court’s analysis that the specific statutory findings have been made.
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{¶101} We have previously held that where a trial court fails to clearly make
the requisite consecutive sentence findings at either the sentencing hearing or in its
judgment entry of sentence, pursuant to Bonnell, the case must be reversed and
remanded for resentencing so that the appropriate findings can be made. State v.
Kammeyer, 3d Dist. Seneca No. 13-19-48, 2020-Ohio-3842, ¶ 69. The specific,
necessary statutory findings are not evident in the trial court’s statement.
Importantly, we are not concluding that consecutive sentences are unsupported in
this matter; rather, we are merely holding consistent with our own precedent that
the appropriate findings must be clearly made in order to impose consecutive
sentences. Therefore, Shurelds’ sixth assignment of error is sustained.
Seventh Assignment of Error
{¶102} In his seventh assignment of error, Shurelds argues that the trial court
“erroneously believed that it must impose[] a third firearm specification and must
do so consecutively.”
Analysis8
{¶103} Revised Code 2929.14(B)(1)(g) discusses the imposition of multiple
consecutive prison terms for multiple firearm specifications. It reads as follows.
(g) If an offender is convicted of or pleads guilty to two or more
felonies, if one or more of those felonies are aggravated murder,
murder, attempted aggravated murder, attempted murder,
aggravated robbery, felonious assault, or rape, and if the offender
8
As this assignment of error deals with sentencing, the same standard of review applied in the sixth
assignment of error is applicable here.
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is convicted of or pleads guilty to a specification of the type
described under division (B)(1)(a) of this section in connection
with two or more of the felonies, the sentencing court shall impose
on the offender the prison term specified under division (B)(1)(a)
of this section for each of the two most serious specifications of
which the offender is convicted or to which the offender pleads
guilty and, in its discretion, also may impose on the offender the
prison term specified under that division for any or all of the
remaining specifications.
{¶104} Here, Shurelds was convicted of aggravated robbery with a firearm
specification and two other felonies, invoking the preceding statute. At the
sentencing hearing, the trial court sentenced Shurelds to serve three years on all
three of the firearm specifications. The trial court then stated, “the Court also then
will exercise its discretion under that statute and order that the three firearm
specifications that are consecutive to their respective counts are also going to be
consecutive.” (Aug. 10, 2020, Tr. at 20).
{¶105} Prior to the trial court’s invocation of the sentence, which reflects
that it exercised discretion in imposing the third consecutive sentence for the firearm
specification, defense counsel noted that the trial court had discretion on the matter.
The trial court also referenced its discretion on the matter in prior hearings,
including at the plea hearing. (June 23, 2020, Tr. at 10).
{¶106} Thus the record reflects that the trial court was aware that it had to
run two of the firearm specifications consecutively, and that it had discretion to run
the third firearm specification consecutively. State v. James, 8th Dist. Cuyahoga
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No. 102604, 2015-Ohio-4987, ¶ 41. As a result, we fundamentally disagree with
Shurelds’ premise that the trial court “erroneously believed” that it had to impose a
prison term on the third firearm specification as it is contrary to what actually
occurred. However, as Shurelds case is being remanded for resentencing, we
overrule this assignment of error as moot since it will need to be addressed again at
resentencing.
Conclusion
{¶107} For the foregoing reasons Shurelds’ first, second, third, fourth, fifth,
and seventh assignments of error are overruled, and his sixth assignment of error is
sustained. The judgment and sentence of the Allen County Common Pleas Court is
affirmed in part and reversed in part, and this case is remanded for further
proceedings.
Judgment Affirmed in Part,
Reversed in Part, and
Cause Remanded
ZIMMERMAN and MILLER, J.J., concur.
/jlr
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