State v. AlexanderState v. Alexander
ADAM J. ARNOLD, Attorney for Appellant
OPINION
I. Facts and Course of Proceedings
{¶ 2} On March 9, 2021, Alexander was indicted by a Montgomery County grand jury on two counts of murder, two counts of felonious assault, and one count of tampering with evidence related to the death of Jermaine Lewis in October 2020. The murder and felonious assault counts contained firearm specifications. Lucas Wilder was appointed as trial counsel for Alexander. After a series of continuances and rulings on motions, a trial was scheduled for November 15, 2021.
{¶ 3} On November 10, 2021, the State filed a “Notice of Intent to Use Statements Pursuant to Forfeiture by Wrongdoing and Evidence Showing Such Forfeiture by Wrongdoing.” The trial court held a hearing to determine whether Alexander had engaged in wrongdoing. Ultimately, the trial court found that Alexander had engaged in wrongdoing that caused the unavailability of three key witnesses for trial. Therefore, the trial court found that Alexander had forfeited his rights to confront witnesses and raise objections to evidence. Alexander‘s improper contact with witnesses also led to a re-indictment on bribery and obstruction charges. At Alexander‘s request, and over the State‘s objection, the court rescheduled the trial for January 2022.
{¶ 4} On January 11, 2022, Alexander entered into a plea agreement with the State. In return for pleading guilty to involuntary manslaughter, tampering with evidence,
{¶ 5} On January 28, 2022, prior to sentencing, Alexander‘s trial counsel filed a motion to withdraw as counsel, which was granted. Ben Swift was appointed as new counsel for Alexander. On February 15, 2022, Swift filed a motion to withdraw Alexander‘s guilty plea. A hearing on the motion was held on March 25, 2022.
{¶ 6} Alexander testified first at the hearing. Alexander testified that his original trial counsel, Wilder, had visited him in jail approximately ten times during the course of his representation and had provided him with the discovery packet. March 25, 2022 Hearing Transcript, 141-142. According to Alexander, he eventually wanted to replace Wilder with another attorney and told Wilder this several times, but Wilder told him that
{¶ 7} Alexander testified that he was the one who came up with offering a plea deal to the State totaling 23 years of imprisonment. Id. at 152. He felt like he had no choice but to plea because he could not fire Wilder. Id. at 163-169. Although he understood that he would get 23 years in prison, Alexander testified that he had not understand the mandatory time. Id. at 154. Alexander did not tell the trial court that he was confused. Id. at 155. On cross-examination, Alexander conceded that he knew that he would be getting 23 years in prison and that he had been able to do some legal research before he made the plea offer to the State. Id. at 166, 168-170.
{¶ 8} Attorney Wilder testified next at the hearing. According to Wilder, he had had a good relationship with Alexander and had visited him at least 20 times in jail and sent him approximately 100 emails. Id. at 181-182. Wilder recalled Alexander looking into hiring a private attorney, but Alexander‘s family could not come up with sufficient money to do so. Id. at 183. Wilder did not believe communication had ever deteriorated to the point of warranting his withdrawal as trial counsel, and he had never told Alexander that he could not get new trial counsel. Further, Alexander never told Wilder that he did not want Wilder as his attorney. Id. at 182, 193. Wilder explained the gun specifications
{¶ 9} Detective Troy Dexter also testified at the hearing. Detective Dexter worked for the Butler Township Police Department. He documented Alexander‘s attempts to communicate with witnesses and stated that he had been able to serve subpoenas on only one of three trial witnesses. Id. at 200-204.
{¶ 10} At the conclusion of the hearing, the trial court found Wilder more credible than Alexander and orally overruled Alexander‘s motion to withdraw his plea. The trial court memorialized this decision in a March 28, 2022 entry. The trial court sentenced Alexander to a total of 23 years in prison. Alexander filed a timely notice of appeal.
II. The Trial Court Did Not Abuse Its Discretion in Denying Alexander‘s Motion to Withdraw His Guilty Plea
{¶ 11} Alexander‘s two assignments of error are interrelated and will be addressed together. The assignments of error are as follows:
THE TRIAL COURT ERRED IN APPLYING AN ELEVATED STANDARD TO THE MOTION TO WITHDRAW PLEA.
THE TRIAL COURT‘S APPLICATION OF THE HIGHER STANDARD IN THE WITHDRAW OF PLEA HEARING WAS NOT HARMLESS ERROR.
{¶ 12} We review decisions on motions to withdraw a guilty plea for an abuse of
{¶ 13}
{¶ 14} Generally, “a presentence motion to withdraw a guilty plea should be freely and liberally granted.” State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). However, a “defendant does not have an absolute right to withdraw a plea prior to sentencing.” Id. “Even under the more lenient pre-sentence standard, a defendant must show a ‘reasonable and legitimate basis for the withdrawal of the plea.’ ” State v. Williamson, 2d Dist. Montgomery No. 21965, 2008-Ohio-4727, ¶ 13, quoting Xie at 527. “A change of heart is not enough,” and a trial court‘s finding regarding a defendant‘s true motivation is entitled to deference. Id. at ¶ 13.
{¶ 16} When a defendant discovers before sentencing the particular sentence a trial court intends to impose, we have held that a pre-sentence motion to vacate his plea ordinarily should be treated as a post-sentence motion. This is so because a defendant cannot test the sentencing waters and then move to vacate his plea just before sentencing if he receives an unpleasant surprise. State v. Wallen, 2d Dist. Montgomery No. 21688, 2007-Ohio-2129, ¶ 22. We also have recognized, however, that this reasoning does not apply to agreed sentences. “Where a sentence is agreed to as part of a plea bargain, and the trial court has indicated that it is joining in the agreement, there has been no ‘unpleasant surprise’ to the defendant after ‘testing the sentencing waters,’ which is the rationale for the stricter standard for a post-sentence motion to withdraw a plea.” Id. Therefore, when a defendant files a pre-sentence motion to vacate a plea entered as part of a plea deal with an agreed sentence, the motion still should be treated as a pre-sentence motion and judged under the more lenient standard. Id.
{¶ 17} The trial court construed Alexander‘s motion as a post-sentence motion and applied the manifest injustice standard. Alexander contends that the trial court should
{¶ 18} Identifying the trial court‘s error, however, does not end our analysis. In evaluating whether a trial court has abused its discretion in overruling a pre-sentence motion to withdraw a plea, we review the following nine factors: 1) whether the accused is represented by highly competent counsel; 2) whether the accused was given a full
{¶ 19} Although it ultimately applied the manifest injustice standard to Alexander‘s motion to withdraw, the trial court also conducted the analysis of the nine factors involved in the pre-sentence standard. At the hearing on the motion to withdraw, the trial court
{¶ 20} Based on a review of the record before us and the nine factors in Miller, we conclude that the trial court did not abuse its discretion in denying Alexander‘s motion to withdraw his guilty plea. Alexander was represented by highly competent counsel and did not express any dissatisfaction with counsel at the plea hearing. Alexander was given a full
{¶ 21} We acknowledge that Alexander testified at the motion hearing about feeling pressured into entering into a plea deal because he believed that Wilder was not
{¶ 22} The trial court was not persuaded by Alexander‘s contentions that he had been unhappy with his trial counsel and that he had not understood the mandatory nature of his sentence when he entered his plea. Rather, Alexander‘s motion appeared to be based on a change of heart rather than a reasonable and legitimate basis for withdrawing his plea. The second assignment of error is overruled.
III. Conclusion
{¶ 23} The trial court did not abuse its discretion in denying Alexander‘s motion to withdraw his guilty plea. The judgment of the trial court is affirmed.
TUCKER, P.J. and WELBAUM, J., concur.