State v. Smith

[Cite as State v. Smith, 2022-Ohio-3231.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
Nos. 111131, 111132,
v. : 111133, 111134, and
111135
LIONEL SMITH, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: September 15, 2022
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-21-659580-A, CR-21-655843-A, CR-21-656756-A,
CR-20-654988-A, and CR-21-659054-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Jasmine Jackson, Assistant Prosecuting
Attorney, for appellee.
Russell S. Bensing, for appellant.
EILEEN T. GALLAGHER, J.:
In this consolidated appeal, defendant-appellant, Lionel Smith (“Smith”),
appeals from the trial court’s judgment denying his presentence motion to withdraw
his guilty plea. He raises the following assignments of error for review:
1. The trial court erred in proceeding with a hearing on defendant’s
motion to withdraw a plea without providing counsel to defendant or
obtaining a knowing, intelligent, and voluntary waiver from defendant
of his right to counsel.
2. The modifications to sentencing for the first- and second-degree
felonies made by the Reagan Tokes Act violate the defendant’s right to
jury trial, as protected by the Fifth and Fourteenth Amendments to the
United States Constitution, and the separation of powers doctrine
embedded in the Ohio Constitution.
After careful review of the record and relevant case law, we affirm Smith’s
convictions and sentence.
I. Procedural and Factual History
In Cuyahoga C.P. No. CR-20-654988-A, Smith was named in a two-count
indictment, charging him with failure to comply in violation of R.C. 2921.331(B), with
a furthermore clause that Smith’s operation of a motor vehicle was a proximate cause
of serious physical harm to persons or property; and failure to comply in violation of
R.C. 2921.331(B), with a furthermore clause that Smith’s operation of a motor vehicle
caused a substantial risk of serious physical harm to persons or property.
In Cuyahoga C.P. No. CR-21-655843-A, Smith was named in an eight-
count indictment, charging him with three counts of drug trafficking in violation of
R.C. 2925.03(A)(2), with one-year firearm specifications and forfeiture specifications;
three counts of drug possession in violation of R.C. 2925.11(A), with one-year firearm
specifications and forfeiture specifications; and single counts of having weapons while
under disability in violation of R.C. 2923.13(A)(3) and receiving stolen property in
violation of R.C. 2913.51(A), with a one-year firearm specification.
In Cuyahoga C.P. No. CR-21-656756-A, Smith was named in a four-count
indictment, charging him with having weapons while under disability in violation of
R.C. 2923.13(A)(3), with a forfeiture specification; carrying a concealed weapon in
violation of R.C. 2923.12(A)(2), with a forfeiture specification; improperly handling a
firearm in a motor vehicle in violation of R.C. 2923.16(B), with a forfeiture
specification; and drug possession in violation of R.C. 2925.11(A).
In Cuyahoga C.P. No. CR-21-659054-A, Smith was named in a seven-
count indictment, charging him with three counts of drug trafficking in violation of
R.C. 2925.03(A)(2), with forfeiture specifications; three counts of drug possession in
violation of R.C. 2925.11(A), with forfeiture specifications; and a single count of
possessing criminal tools in violation of R.C. 2923.24(A), with a forfeiture
specification.
In Cuyahoga C.P. No. CR-21-659580-A, Smith was named in a five-count
indictment, charging him with three counts of felonious assault in violation of R.C.
2903.11(A)(2), with one, three, and five-year firearm specifications; and two counts of
improperly discharging into a habitation in violation of R.C. 2923.161(A)(1), with one,
three, and five-year firearm specifications.
In Cuyahoga C.P. No. CR-21-660449-A, Smith was named in a three-
count indictment, charging him with two counts of failure to comply in violation of
R.C. 2921.331(B), with a furthermore clause that Smith’s operation of a motor vehicle
caused a substantial risk of serious physical harm to persons or property; and a single
count of drug possession in violation of R.C. 2925.11(A).1
Following numerous pretrial hearings, Smith agreed to enter into a
negotiated plea with the state. At the joint-plea hearing, held on November 3, 2021,
the state outlined the terms of the packaged plea agreement and Smith confirmed his
understanding on the deal.
In Case No. CR-20-654988-A, Smith agreed to plead guilty to a single
count of attempted failure to comply in violation of R.C. 2923.02 and 2921.331(B), a
felony of the fourth degree. In Case No. CR-21-655843-A, Smith agreed to plead guilty
to two counts of drug trafficking in violation of R.C. 2925.03(A)(2), with forfeiture
specifications, felonies of the second degree, and a single count of receiving stolen
property in violation of R.C. 2913.51(A), a felony of the fourth degree. In Case No. CR-
21-656756-A, Smith agreed to plead guilty to single counts of having weapons while
under disability in violation of R.C. 2923.13(A)(3), with forfeiture specifications, a
felony of the third degree, and drug possession in violation of R.C. 2925.11(A), a felony
of the fifth degree. In Case No. CR-21-659054-A, Smith agreed to plead guilty to a
single count of drug possession in violation of R.C. 2925.11(A), with forfeiture
specifications, a felony of the fourth degree. In Case No. CR-21- 659580-A, Smith
agreed to plead guilty to single counts of felonious assault in violation of R.C.
1 In Appeal No. 111130, this court sua sponte dismissed the appeal for lack of a final,
appealable order. We recognized that a dismissal was necessary because the trial court
failed to impose a sentence on each count in Case No. CR-21-660449-A. Accordingly, Case
No. CR-21-660449-A is not presently before this court.
2903.11(A)(2), with a three-year firearm specification, a felony of the second degree,
and improper discharging of a firearm at or into a habitation or school in violation of
R.C. 2923.161(A)(1), a felony of the second degree. Finally, in Case No. CR-21-
660449-A, Smith agreed to plead guilty to single counts of failure to comply in
violation of R.C. 2921.331(B), a felony of the third degree, and drug possession in
violation of R.C. 2925.11(A), a felony of the fifth degree.
In exchange for Smith’s agreement to plead guilty to the foregoing
offenses and specifications, the remaining counts and specifications in each
indictment were nolled.
Following an extensive Crim.R. 11 colloquy, Smith withdrew his
previously entered pleas of not guilty and entered pleas of guilty in accordance with
the negotiated plea agreement. Satisfied that Smith’s pleas were knowingly,
voluntarily, and intelligently made, the trial court accepted Smith’s guilty pleas and
referred him to the county probation department for a presentence-investigation
report (“PSI”).
The matter proceeded to sentencing on November 29, 2021. At the
onset of the hearing, however, defense counsel advised the court that Smith wished to
withdraw his guilty pleas, stating:
[B]efore we get started I will indicate that in meeting with Mr. Smith
just before this hearing and reviewing the PSI he indicated that he
wants to make a motion to withdraw his plea. According to Rule 32.1
of the Ohio Rules of Criminal Procedure prior to sentencing the court
should grant such a motion liberally. In the event that the court were
to grant the motion to withdraw the plea, I would make a motion to
withdraw [as counsel]. I would indicate that I’ve reviewed the
discovery with Mr. Smith, I’ve reviewed his legal options. I’ve reviewed
the plea agreements when we were here on prior occasions and when
he ultimately entered the plea on November 3rd.
(Tr. 48.) Defense counsel further assured the court that he thoroughly advised
Smith of the strengths and weaknesses of his case, as well as the minimum and
maximum sentences he would be exposed to if the matter proceeded to a trial.
The trial court then heard from Smith, who indicated that he wished to
withdraw his pleas because he was “not in the right state of mind” at the time he
entered into the negotiated plea agreement. (Tr. 51.) Smith explained his position as
follows:
I took somebody else’s meds on the pod. And when I came in here and
took my plea agreement, I wasn’t understanding everything that there
was to be understood. And I was manipulated and coerced by my
lawyer to take my plea deal and he promised me I would get the
minimum sentence.
(Tr. 51.)
In response to Smith’s statements, defense counsel stated, in pertinent
part:
Your Honor, as I have a loyalty to my client, I’m not going to get into a
back and forth on the record. But I can indicate that there is no promise
of a minimum sentence before the plea, during the plea, or after the
plea. There’s no promise of a particular sentence. The court made that
clear. And as far as Mr. Smith taking any medication, there was no
indication to me in terms of orally or by my observations. So this is the
first time I’m hearing of this, respectfully.
(Tr. 52.)
In an abundance of caution, the trial court concluded that it was
necessary to afford Smith a hearing on the presentence motion to withdraw his guilty
pleas. Smith, however, expressed that he did not wish to provide testimony in support
of his motion, and defense counsel indicated that he did not wish to call his client to
the stand. The trial court then heard from the prosecutor, who summarized the
comprehensive nature of the plea negotiations and the efforts taken to ensure that
Smith was involved in the process and understood the implications of the package
plea agreement.
After careful consideration, the trial court denied Smith’s motion to
withdraw his guilty plea, stating, in pertinent part:
It’s hard to characterize this as anything more than the defendant
having cold feet on the morning of sentencing. He hasn’t filed a motion
or asked counsel to file a motion prior to today’s date. The court did
want to afford him the opportunity to have this hearing this morning
and gave him the opportunity to present any evidence that he wishes to
do so.
***
Looking at the non-exhaustive factors [under State v. Xie, 62 Ohio
St.3d 521, 527, 584 N.E.2d 715 (1992)], there is no specific reason for
the withdrawal, although defendant did mention in his statement that
he was coerced by counsel. The court does not see any coercion based
upon the many numerous conversations that counsel had with the
defendant. As to the medication, there is just no evidence whatsoever
as to that other than the defendant’s self-serving statements.
(Tr. 56-60.)
Upon denying Smith’s motion to withdraw, the court immediately
proceeded with sentencing. In Case No. CR-20-654988-A, the trial court suspended
Smith’s driver’s license for a period of 20 years and sentenced him to 17 months in
prison on the failure to comply offense.
In Case No. CR-21-655843-A, Smith was sentenced to six years in prison
on each drug trafficking offense, and 17 months in prison on the receiving stolen
property offense. Each sentence imposed in Case No. CR-21-655843-A was ordered
to run concurrently.
In Case No. CR-21-656756-A, Smith was sentenced to 30 months in
prison on the having weapons while under disability offense, and 10 months in prison
on the drug possession offense. Each sentence imposed in Case No. CR-21-656756-A
was ordered to run concurrently.
In Case No. CR-21-659054-A, Smith was sentenced to 13 months in
prison on the drug possession offense.
In Case No. CR-21-659580-A, Smith was sentenced to three years in
prison on the firearm specification to run prior and consecutive to a prison term of 7
to 13.5 years in prison on the qualifying felonious assault offense, and a prison term
of seven years on the improper discharge of a firearm into a habitation or school
offense. Each sentence imposed in Case No. CR-21-659580-A was ordered to run
concurrently.
In Case No. CR-21-660449-A, Smith was sentenced to 30 months in
prison on the failure to comply offense. The court did not impose a sentence on the
drug possession offense.
The sentences imposed in Case Nos. CR-20-654988-A, CR-21-656756-
A, and CR-21-659054-A were ordered to run concurrently with each other and the
sentences imposed in Case Nos. CR-21-659580-A, CR-21-660449-A, and CR-21-
655843-A. However, the aggregate sentences imposed in Case Nos. CR-21-659580-
A, CR-21-660449-A, and CR-21-655843-A were ordered to run consecutively with
each other. In the sentencing journal entry, the court clarified that the “total sentence
for all packaged plea cases is 18.5 years to 22 years [in prison] (3.5 years is 50% of the
7-year qualifying offense of felonious assault in CR-21-659580.).”
Smith now appeals from his convictions and sentences.
II. Law and Analysis
A. Denial of Right to Counsel
In his first assignment of error, Smith argues the trial court erred by
denying his motion to withdraw his guilty pleas without providing him with counsel,
and without obtaining a knowing, intelligent, and voluntary waiver of counsel. Smith
contends that he was effectively without counsel because his trial counsel elected not
to present an argument in support of his motion to withdraw and expressed that he
would withdraw as counsel if the motion were granted.
Crim.R. 32.1 governs withdrawals of guilty pleas and provides that “[a]
motion to withdraw a plea of guilty or no contest may be made only before sentence
is imposed; but to correct manifest injustice, the court after sentence may set aside
the judgment of conviction and permit the defendant to withdraw his or her plea.”
Generally, a presentence motion to withdraw a guilty plea should be freely and
liberally granted. Xie, 62 Ohio St.3d at 527, 584 N.E.2d 715 (1992). It is well
established, however, that a “defendant does not have an absolute right to withdraw
a guilty plea prior to sentencing. Therefore, a trial court must conduct a hearing in
order to determine whether there is a reasonable and legitimate basis for the
withdrawal of the plea.” Id.A trial court does not abuse its discretion in denying a motion to
withdraw a guilty plea where the following occurs: (1) the accused is represented by
competent counsel; (2) the accused was afforded a full hearing, pursuant to Crim.R.
11, before he entered the plea; (3) when, after the motion to withdraw is filed, the
accused is given a complete and impartial hearing on the motion; and (4) the record
reflects that the court gave full and fair consideration to the plea-withdrawal request.
State v. Peterseim, 68 Ohio App.2d 211, 428 N.E.2d 863 (8th Dist.1980), paragraph
three of the syllabus; State v. King, 8th Dist. Cuyahoga No. 106709, 2018-Ohio-4780,
¶ 13. Additional factors this court has considered include whether the motion was
made in a reasonable time; whether the motion states specific reasons for withdrawal;
whether the accused understood the nature of the charges and the possible penalties;
and whether the accused was perhaps not guilty or had a complete defense. King at
¶ 14, citing State v. Benson, 8th Dist. Cuyahoga No. 83178, 2004-Ohio-1677, ¶ 8-9.
The decision whether to grant or deny a motion to withdraw a guilty
plea is entirely within the sound discretion of the trial court, and we will not alter the
trial court’s decision absent a showing of an abuse of that discretion. Xie at paragraph
two of the syllabus; Peterseim at paragraph two of the syllabus. “‘[U]nless it is shown
that the trial court acted unjustly or unfairly, there is no abuse of discretion.’”
Peterseim at 213-214, quoting Barker v. United States, 579 F.2d 1219, 1223 (10th
Cir.1978).
On appeal, Smith does not directly challenge the merits of the trial
court’s judgment denying the motion to withdraw his guilty pleas. Rather, Smith
contends that the judgment must be vacated because he was not afforded counsel and
was required to represent himself without a determination that he was competent to
do so. Thus, Smith asks this court to reverse the trial court’s judgment and remand
the matter for the trial court
to determine whether Smith has the funds to retain counsel, to appoint
new counsel for him, or allow him to proceed pro se after advising him
of the perils of self-representation and receiving a knowing, intelligent,
and voluntary waiver of his right to counsel, and to thereafter conduct
a hearing on the motion to withdraw the plea.
Under the Sixth Amendment to the United States Constitution and
Article I, Section 10, of the Ohio Constitution, a criminal defendant who faces a
potential prison sentence has the right to assistance of counsel in his defense at all
“critical stages” of criminal proceedings. State v. Simmons, 8th Dist. Cuyahoga No.
103986, 2016-Ohio-7709, ¶ 11, citing State v. Tymcio, 42 Ohio St.2d 39, 325 N.E.2d
556 (1975), and United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149(1967). “Ohio courts have held that a criminal defendant has a right to counsel at a
hearing on a presentence motion to withdraw a guilty plea because such a hearing is
a critical stage of litigation.” Simmons at ¶ 12.
A defendant also has a “correlative right” to self-representation — to
proceed pro se — under the Sixth Amendment. Id. at ¶ 13. “However, in order to
proceed pro se, a defendant must knowingly, voluntarily, and intelligently waive the
Sixth Amendment right to counsel.” Id. at ¶ 14, citing State v. Moore, 2012-Ohio-
1958, 970 N.E.2d 1098 (8th Dist.). This principle is recognized in Crim.R. 44(A),
which states:
Where a defendant charged with a serious offense is unable to obtain
counsel, counsel shall be assigned to represent him at every stage of the
proceedings from his initial appearance before a court through appeal
as of right, unless the defendant, after being fully advised of his right to
assigned counsel, knowingly, intelligently, and voluntarily waives his
right to counsel.
For a defendant to knowingly, voluntarily, and intelligently waive the
right to counsel, “[t]he trial court must caution [the defendant] and warn of ‘the
dangers and disadvantages of self-representation, so that the record will establish that
he knows what he is doing and his choice is made with eyes open.’” Simmons at ¶ 14,
quoting Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
Additionally, the waiver must be made “‘with an apprehension of the nature of the
charges, the statutory offenses included within them, the range of allowable
punishments thereunder, possible defenses to the charges and circumstances in
mitigation thereof, and all other facts essential to a broad understanding of the whole
matter.’” State v. Gibson, 45 Ohio St.2d 366, 377, 345 N.E.2d 399 (1976), quoting Von
Moltke v. Gillies, 332 U.S. 708, 68 S.Ct. 316, 92 L.Ed. 309 (1948).
There is no “prescribed” language that a court must use to establish an
effective waiver; instead, “the information a defendant must possess to make an
intelligent election ‘depend[s] on a range of case-specific factors, including the
defendant’s education or sophistication, the complex or easily grasped nature of the
charge, and the stage of the proceeding.’” State v. Buchanan, 2017-Ohio-1361, 88
N.E.3d 686, ¶ 15 (8th Dist.), quoting State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-
6404, 858 N.E.2d 1144.
Unlike the circumstances confronted by this court in Simmons, the
record in this case reflects that Smith made no statement to suggest that he intended
to waive his right to counsel and proceed pro se. Nor is there any basis to conclude
that the trial court forced Smith to proceed pro se without adhering to the procedural
requirements described above. Rather, the record reflects that Smith was represented
by counsel during the entirety of the proceedings, including the plea hearing, the
motion to withdraw hearing, and the subsequent sentencing hearing. Despite his
representation at all critical stages of the proceedings, however, Smith orally
requested to withdraw his guilty pleas on his own motion.
It is well settled that a criminal defendant has the right to counsel or the
right to act pro se; however, a defendant does not have the right to both,
simultaneously, or “hybrid representation.” State v. Mongo, 8th Dist. Cuyahoga No.
100926, 2015-Ohio-1139, ¶ 13, citing State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-
5471, 816 N.E.2d 227, paragraph one of the syllabus; State v. Thompson, 33 Ohio
St.3d 1, 6-7, 514 N.E.2d 407 (1987). The right to counsel and the right to act pro se
“are independent of each other and may not be asserted simultaneously.” Martin at
paragraph one of the syllabus. Therefore, when a criminal defendant is represented
by counsel, a trial court may not entertain a pro se motion filed by the defendant.
State v. Washington, 8th Dist. Cuyahoga Nos. 96565 and 96568, 2012-Ohio-1531,
¶ 11. Moreover, where a defendant, who is represented by counsel, files pro se
motions, “and there is no indication that defense counsel joins in those motions or
indicates a need for the relief sought by the defendant pro se,” the pro se motions are
not proper and the trial court may strike them from the record. State v. Davis, 10th
Dist. Franklin No. 05AP-193, 2006-Ohio-5039, ¶ 12.
Applying the foregoing, this court has routinely held that a trial court
lacks the authority to entertain a defendant’s pro se motion to withdraw his or her
guilty plea when the defendant is represented by counsel. Mongo at ¶ 13 (finding the
trial court did not abuse its discretion in denying the defendant’s pro se motion to
withdraw where the defendant was represented by counsel); Washington at ¶ 11
(“Because [defendant] chose to proceed with legal representation, the court could not
consider [defendant]’s motion to withdraw his plea, which his appointed counsel did
not agree with”); State v. Pizzaro, 8th Dist. Cuyahoga No. 94849, 2011-Ohio-611, ¶ 9
(“Had the trial court entertained defendant’s pro se motion while defendant was
simultaneously being represented by appointed counsel, this would have effectively
constituted hybrid representation in violation of the established law.”); State v.
Hagar, 8th Dist. Cuyahoga No. 108317, 2020-Ohio-910, ¶ 29 (“[B]ecause Hagar was
represented by counsel, the court could not entertain his pro se motions to withdraw
his guilty plea.”); State v. Hill, 8th Dist. Cuyahoga No. 107290, 2019-Ohio-1647, ¶ 14
(“[W]hen a criminal defendant is represented by counsel, a trial court may not
entertain a pro se motion filed by the defendant.”); State v. Powell, 8th Dist. Cuyahoga
No. 107006, 2019-Ohio-346, ¶ 17; State v. Pames, 8th Dist. Cuyahoga No. 110647,
2022-Ohio-616, ¶ 32.
In this case, Smith orally sought to withdraw his guilty pleas at the onset
of the sentencing hearing. Defense counsel did not file a formal motion on Smith’s
behalf and there is no indication that counsel joined Smith in his motion or otherwise
believed that there were grounds for Smith to withdraw his guilty pleas. On this basis
alone, the trial court was entitled to strike Smith’s pro se motion without further
consideration.2 See State v. Jones, 8th Dist. Cuyahoga No. 107561, 2019-Ohio-2571,
¶ 30.
Nevertheless, the trial court determined that it was appropriate to
conduct a complete and impartial hearing in order to give full and fair consideration
to Smith’s plea-withdrawal request. In this regard, the trial court heard from each of
the parties and carefully assessed the relevant factors in determining whether
sufficient grounds supported Smith’s pro se motion. Ultimately, however, Smith
declined to testify in support of his factual allegations and no evidence was introduced
2 We recognize that Smith asks this court to reconsider its approach when assessing
“the concept of hybrid representation to motion practice, and in particular to motions to
withdraw.” Smith notes the difficult position defendants and defense attorneys are placed
in when motions to withdraw are predicated on defense counsel’s alleged coercion or
deficient performance. Smith states that “this court’s rulings on hybrid representation
and counsel’s duty to his client give counsel veto power over whether a court can even
entertain a client’s motion to withdraw a plea.”
Appellant’s position is not lost on this court. At this time, however, we decline to
ignore the clear precedent established in Mongo at ¶ 13; Washington at ¶ 11; Pizzaro, 8th
Dist. Cuyahoga No. 94849, 2011-Ohio-611 at ¶ 9; Hagar, 8th Dist. Cuyahoga No. 108317,
2020-Ohio-910 at ¶ 29; Hill, 8th Dist. Cuyahoga No. 107290, 2019-Ohio-1647 at ¶ 14;
Powell, 8th Dist. Cuyahoga No. 107006, 2019-Ohio-346 at ¶ 17; or Pames, 8th Dist.
Cuyahoga No. 110647, 2022-Ohio-616 at ¶ 32. Collectively, these decisions do not stand
for the proposition that defense attorneys are entitled to “veto” a defendant’s ability to
withdraw his or her plea where legitimate grounds exist merely because the motion is
predicated on the conduct or representations of counsel. To suggest otherwise presumes
ethical misconduct on behalf of the defense attorney and ignores the gatekeeping role of
the trial court.
in support of his claims. As a result, Smith failed to rebut the presumption that his
plea was knowingly and voluntarily entered, and the trial court properly characterized
his motion as being nothing more than a change of heart. See Powell, 8th Dist.
Cuyahoga No. 107006, 2019-Ohio-346 at ¶ 21 (“It is well established that a change of
heart is an insufficient basis for withdrawing a guilty plea.”). Under these
circumstances, the trial court did not abuse its discretion in concluding that no
reasonable and legitimate basis existed for Smith’s pro se motion to withdraw his
guilty plea.
Finally, we are unable to conclude that Smith was deprived of his
constitutional right to assistance of counsel during the motion to withdraw hearing.
Generally, to establish a violation of the right to counsel, the represented
individual must show that (1) counsel’ performance fell below an objective standard
of reasonable representation and (2) counsel’s errors prejudiced the individual, i.e., a
reasonable probability that but for counsel’s errors, the outcome would have been
different. Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989),
paragraphs two and three of the syllabus.
In United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d
657 (1984), the United States Supreme Court recognized a “narrow exception” to the
Strickland requirements when considering whether a criminal defendant was denied
his or her right to counsel under the Sixth Amendment. See State v. Lucas, 2020-
Ohio-1602, 154 N.E.3d 262, ¶ 36 (8th Dist.). The court held that there are certain
circumstances “that are so likely to prejudice the accused that the cost of litigating
their effect in a particular case is unjustified,” such that ineffectiveness and prejudice
are presumed and a denial of an accused’s Sixth Amendment right to counsel is found
“without inquiry into the actual conduct” of the proceedings. Cronic at 658-660.
These circumstances include (1) the complete denial of counsel, i.e., such as where
counsel is “totally absent, or prevented from assisting the accused during a critical
stage of the proceeding,” (2) circumstances where counsel “entirely fails” to subject
the state’s case to “meaningful adversarial testing,” (3) circumstances where counsel
“actively represented conflicting interests,” and (4) circumstances where “although
counsel is available to assist the accused,” “the likelihood that any lawyer, even a fully
competent one, could provide effective assistance is so small that a presumption of
prejudice is appropriate.” Id. at 658-660 and fn. 25, 28; see also Strickland at 692
(“Actual or constructive denial of the assistance of counsel altogether is legally
presumed to result in prejudice.”).
Applying the foregoing to the circumstances presented in this case, we
cannot say defense counsel “completely abdicate[d] his role as an advocate for his
client” merely because counsel expressed that he did not coerce Smith into accepting
the favorable terms of the negotiated plea agreement. See State v. Ray, 8th Dist.
Cuyahoga No. 107450, 2019-Ohio-1346, ¶ 26 (“Counsel has a duty to be candid.”).
While the statement could arguably be cited in support of a challenge to the adequacy
of counsel’s performance pursuant to Strickland, the statement, standing alone, does
not warrant a conclusion that Smith was “totally deprived of his right to counsel.” See
Lucas at ¶ 37-41. Here, Smith was represented by counsel at the time he appeared for
sentencing, and counsel remained present throughout the court’s assessment of
Smith’s request to withdraw his plea. Counsel outlined the comprehensive nature of
his plea negotiations with the state, as well as the discussions he engaged in with
Smith regarding the strengths and weakness of his case, and the minimum and
maximum penalties Smith would be exposed to if he proceeded to a trial. The fact the
trial court allowed Smith to speak on his own behalf did not mean he was
unrepresented. See State v. Goodwin, 2018-Ohio-4377, ¶ 20-21; citing State v. Gabel,
6th Dist. Sandusky No. S-14-038, et seq., 2015-Ohio-2803, ¶ 15, fn. 1. Defense counsel
answered all pertinent questions posed by the court while acknowledging his “duty of
loyalty” to Smith’s interests. (Tr. 51.) And, although counsel did not directly join in
Smith’s pro se motion, he sought a continuance for the purpose of obtaining
additional time “to put such a motion in writing for further consideration.” (Tr. 62.)
At no time did defense counsel withdraw as counsel. Rather, defense counsel
diligently continued his representation of Smith once the matter proceeded to
sentencing.
Based on the foregoing, we are unable to conclude that Smith was
denied his Sixth Amendment right to assistance of counsel. Smith was represented
by appointed counsel at every stage of the proceedings, including the portion of the
sentencing hearing wherein Smith chose to orally move to withdraw his guilty plea
based on an asserted dissatisfaction with his defense counsel.
Smith’s first assignment of error is overruled.
B. The Reagan Tokes Law
In his second assignment of error, Smith argues the trial court erred in
sentencing him under the Reagan Tokes Law, which became effective March 22, 2019.
He contends the Reagan Tokes Law is unconstitutional because it violates the
separation-of-powers doctrine and his constitutional right to a jury trial.
The question of whether the Reagan Tokes Law is constitutional was
decided in this court’s en banc opinion in State v. Delvallie, 2022-Ohio-470, 185
N.E.3d 536 (8th Dist.). There, this court found “that the Reagan Tokes Law, as
defined under R.C. 2901.011, is not unconstitutional,” and reaffirmed the principles
established in State v. Gamble, 2021-Ohio-1810, 173 N.E.3d 132 (8th Dist.); State v.
Simmons, 2021-Ohio-939, 169 N.E.3d 728 (8th Dist.); and State v. Wilburn, 2021-
Ohio-578, 168 N.E.3d 873 (8th Dist.). See Delvallie at ¶ 17. Because Smith does not
advance any novel argument left unaddressed by the Delvallie decision, we find the
constitutional challenges presented in this appeal are overruled.3
Smith’s sole assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
3 Neither party has raised any issues as to the imposed sentence and, therefore, any
determination as to the validity of the sentence is beyond the scope of this direct appeal.
State v. Harper, 160 Ohio St.3d 480, 2020-Ohio-2913, 159 N.E.3d 248, ¶ 26; State v.
Henderson, 161 Ohio St.3d 285, 2020-Ohio-4784, 162 N.E.3d 776, ¶ 27.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending is terminated. Case remanded to
the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
LISA B. FORBES, P.J., and
CORNELIUS J. O’SULLIVAN, JR., J., CONCUR
N.B. Judge Eileen T. Gallagher joined the dissent by Judge Lisa B. Forbes in
Delvallie and would have found that R.C. 2967.271(C) and (D) of the Reagan Tokes
Law are unconstitutional.
Judge Lisa B. Forbes is constrained to apply Delvallie. For a full explanation,
see State v. Delvallie, 2022-Ohio-470, 185 N.E.3d 536 (8th Dist.) (Forbes, J.,
dissenting).