STATE OF OHIO v. WILLIAM T. BROWN
Aрpellate Case Nos. 26945, 26947, 26948, 27249, 27250, 27251, 27419, 27420, 27421
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY
December 22, 2017
2017-Ohio-9225
Trial Court Case Nos. 2014-CR-3632, 2014-CR-1637, 2014-CR-1721 (Criminal Appeal from Common Pleas Court)
Rendered on the 22nd day of December, 2017.
MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, Montgomery County Prosecutor‘s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee
ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, 120 West Second Street, Suite 706, Dayton, Ohio 45402 Attorney for Defendant-Appellant
{¶ 1} Defendant-appellant, William T. Brown, appeals from his convictions in Case No. 2014 CR 01637, Case No. 2014 CR 01721 and Case No. 2014 CR 03632, in each of which he pleaded guilty to two or more charges in lieu of a trial. Brown argues that the trial court erred by accepting his pleas, and again by overruling his subsequent motions to withdraw pursuant to
I. Facts and Procedural History
{¶ 2} In Case No. 2014 CR 01637, a Montgomery County grand jury issued an indictment against Brown on May 29, 2014, charging him with one count of aggravated robbery in violation of
{¶ 3} In Case No. 2014 CR 01721, a Montgomery County grand jury issued an indictment against Brown on June 12, 2014, charging him with one count of aggravated robbery in violation of
{¶ 4} In Case No. 2014 CR 03632, a Montgomery County grand jury issued an
{¶ 5} At his final pretrial heаring on October 9, 2015, Brown and the State informed the court that they had reached a plea agreement in the foregoing three cases. Id. at 3-6. The court discussed the agreement with Brown as required by
{¶ 6} On October 21, 2015, Brown appeared for sentencing. Before the hearing began, Brown notified his counsel that he wanted to withdraw his рleas, at least in part on the basis of certain alleged deficiencies in counsel‘s performance. Id. at 23-24. Counsel informed the court, but the court nevertheless proceeded to sentence Brown because he had not yet filed a motion pursuant to
{¶ 7} On October 23, 2015, Brown filed motions to withdraw his pleas in all three cases, and his trial attorney sought leave to withdraw as counsel. In a pair of decisions entered on October 29, 2015, the court overruled Brown‘s motions, allowed his trial attorney to withdraw, and appointed substitute counsel. Brown then submitted a second series оf motions to withdraw his pleas on November 17, 2015. The court held a hearing on December 7, 2015, and in a decision filed two days later, it again overruled Brown‘s motions to withdraw. In considering Brown‘s motions, the court applied “the presentencing withdrawal standard” because it had been notified before sentencing that he wanted to withdraw his pleas. Decision Overruling Def.‘s Mot. to Withdraw Guilty Plea 4, Dec. 22, 2016.2
II. Analysis
{¶ 8} Assignment of Error Number One:
THE TRIAL COURT ERRED BY OVERRULING BROWN‘S MOTION TO WITHDRAW HIS GUILTY PLEAS.
{¶ 9} In this assignmеnt of error, Brown argues that he “had two legitimate and
{¶ 10} A “presentence motion to withdraw a guilty plea should be freely and liberally granted,” although “a defendant does not have an absolute right to withdraw a plea prior to sentencing.” State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). Instead, after conducting a hearing on the motion, the trial court must “determine whether [the defendant] has a reasonable and legitimate basis” for the withdrawal, rаther than “[a] mere change of heart.” Id.; State v. Lambros, 44 Ohio App.3d 102, 103, 541 N.E.2d 632 (8th Dist.1988). Some of the factors that a trial court may weigh in considering a presentence motion to withdraw a plea are the following:
- whether the state will be prejudiced ***,
- the representation afforded to the defendant by counsel,
- the extent of the
Crim.R. 11 plea hearing, - the extent of the hearing on the motion to withdraw,
- whether the trial court gave full and fair consideration to the motion,
- whether the timing of the motion was reasonable,
- the reasons for the motion,
whether the defendant understood the nature of the charges and potential sentences, [and] - whether the accused was pеrhaps not guilty or had a complete defense to the charge [or charges].3
(Citations omitted.) State v. Cuthbertson, 139 Ohio App.3d 895, 898-899, 746 N.E.2d 197 (7th Dist.2000), citing State v. Thomas, 7th Dist. Mahoning Nos. 96 CA 223, 96 CA 225 & 96 CA 226, 1998 WL 934645 (Dec. 17, 1998), and State v. Fish, 104 Ohio App.3d 236, 240, 661 N.E.2d 788 (1st Dist.1995); see also State v. Askew, 2d Dist. Montgomery No. 20110, 2005-Ohio-4026, ¶¶ 10-11, quoting Cuthbertson, 139 Ohio App.3d at 898-899. Absent “an abuse of discretion on the part of the trial court,” its decision on a presentence motion to withdraw “must be affirmed.” Xie, 62 Ohio St.3d at 527; State v. Donaldson, 2d Dist. Greene No. 06 CA 110, 2007-Ohio-5756, ¶ 6.
{¶ 11} A “trial court abuses its discretion when it makes a decision that is unreasonable, unconscionable, or arbitrary.” State v. Darmond, 135 Ohio St.3d 343, 2013-Ohio-966, 986 N.E.2d 971, ¶ 34, citing State v. Adams, 62 Ohio St.2d 151, 157, 404 N.E.2d 144 (1980). Appellate review under this standard “is deferеntial and does not permit [the] appellate court to simply substitute its judgment for that of the trial court.” Darmond, 2013-Ohio-966, ¶ 34, citing State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, ¶ 14. Hence, we will not usually find an “abuse of discretion in denying a pre-sentence motion to withdraw a guilty plea” in a case in which “(1) the [defendant] is represented by highly competent counsel, (2) the [defendant is] afforded a
{¶ 12} In its evaluation of Brown‘s motion to withdraw, the trial court individually weighed eight of the factors listed in the Cuthbertson opinion as part of its analysis.4 Decision Overruling Def.‘s Mot. to Withdraw Guilty Plea 4-15. It found that: (1) the State would be prejudiced were Brown allowed to withdraw his pleas, but not enough to justify overruling Brown‘s motion; (2) Brown received “competent legal counsel” at all relevant times; (3) Brown “was afforded a full and extensive hearing in accordance with
{¶ 13} Here, as noted, Brown directs his arguments to the second and seventh factors, contеnding that his trial counsel improperly withheld discovery materials from him and that he did not understand key provisions of his plea agreement with the State.
{¶ 14} Although Brown‘s trial counsel acknowledged that he did not provide Brown with copies of all discovery materials, counsel testified that he discussеd the materials with Brown and refrained from providing copies only because the “majority of the discovery, [to his] understanding, was ‘for counsel[‘s] eyes only.‘” Tr. of Hr‘g on Def.‘s Mot. to Withdraw 21-23, Dec. 7, 2015. The trial court accepted counsel‘s account, which Brown‘s own testimony at least partly corroborates. See id. at 6-8.
{¶ 15} Regarding Brown‘s understanding of the terms of the plea agreement, the trial court determined that he “fully understood the nature of the charges, and [the] penalties [for] his offenses.” Decision Overruling Def.‘s Mot. to Withdraw Guilty Plea 15. Brown testified at the hearing on his motions to withdraw that, before he entered into the plea agreement, his counsel told him that “if [he] took the deal for 24 [to] life, the judge could still [sentence him to] 20 years flat.” Tr. of Hr‘g on Def.‘s Mot. to Withdraw 5. Even standing alone, this tеstimony supports the trial court‘s determination—it demonstrates that despite hoping to be sentenced to 20 years without a life tail, Brown was nonetheless aware that he was entering into an agreement calling for a recommended sentence of 24 years to life. For that matter, he had the following exchange with the court during his plea hearing on October 9, 2015:
THE COURT: And if my math is correct, it looks like this is going to be a 24 year to [l]ife sentence. Is that your understanding?
BROWN: Yes, sir.
Tr. of Plea Hr‘g 6.
{¶ 17} Assignment of Error Number Two:
BROWN DID NOT WAIVE HIS RIGHT TO APPEAL KNOWINGLY AND VOLUNTARILY.
{¶ 18} In his second assignment of error, Brown argues that the “record does not demonstrate that [he] made a knowing and voluntary waiver of his right to appeal” because: (1) the plea forms make no “reference to a waiver of his right to appeal“; and (2) at his plea hearing, he “was never specifically asked, as a separate matter, if he waived” this right. Appellant‘s Br. 9. We find that Brown‘s argument lacks merit.
{¶ 19} At his plea hearing, the State read the agreement into the record, noting that as “part of [the] agreement, [Brown] would agree to waive all rights to appeal that
THE COURT: Do you understand, sir, that a guilty plea, it is a complete admission of your guilt[,] and you‘re giving up your rights to appeal any pretrial rulings in all of these cases---
BROWN: Yes, sir.
THE COURT: ---do you understand that?
BROWN: Yes, sir.
(Emphasis added.) Id. at 12-13. As the transcript of Brown‘s plea hearing indicates, Brown did not agree to a blanket waiver of his right to appeal, but instead, he agreed to waive his right to appeal only to the extent allowed “by lаw,” which the court explained as a waiver of his right to appeal “any pretrial rulings” in Case Nos. 2014 CR 01637, 2014 CR 01721 and 2014 CR 03632.
{¶ 20} By “entering a voluntary guilty plea while represented by competent counsel, [a defendant] waive[s] his right to appeal all nonjurisdictional defects in prior stages of the proceedings.” (Citation omitted.) State v. Guerra, 2d Dist. Miami No. 2015-CA-28, 2016-Ohio-5647, ¶ 9; see also
{¶ 21} Assignment of Error Number Three:
BROWN‘S PLEAS WERE NOT MADE KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY.
{¶ 22} In his third assignment of error, Brown reasons that because “he did not waive his right to appeal knowingly and voluntarily, [whereas] the State and [the court] believed his waiver of his right to appeal was part of the bargained for exchange, [he] could not have entered his pleas knowingly, intelligently and voluntarily.” Appellant‘s Br. 10. As we have observed, however, Brown waived his right to appeal certain issues by operation of law when he entered into the plea agreement, and no warning to this effect was required by
{¶ 23} Assignment of Error Number Four:
THE TRIAL COURT ERRED IN ORDERING BROWN TO PAY RESTITUTION IN CASE 2014 CR 03632.
{¶ 24} In his fourth assignment of error, Brown charges the trial court with “abus[ing] [its] discretion [by] imposing restitution in the amount of $5,598.14,” without considering his ability to pay, as part of his sentence in Case No. 2014 CR 03632. Appellant‘s Br. 11. We find that the court did not err by ordering Brown to pay restitution.5
[it] may base the amount of restitution it orders on an amount recommended by the victim, the offender, a presentence investigation report, estimates or receipts indicating the cost of repairing or replacing property, and other information, provided that the amount the court orders as restitution shall not exceed the amount of the economic loss suffered by the victim as a direct and proximate result of the commission of the offense.
Id.
{¶ 26} Brown pleaded guilty, among other things, to one count of felony murder in Case No. 2014 CR 03632. At his sentencing on October 21, 2015, the court informed him that it had “reviewed the presentence investigation report,” and finding “that [he had] either the present or future ability to pay,” ordered him to “pay restitution * * * for [the victim‘s] funeral expenses in the amount of $5,598.14.” Id. at 31.
{¶ 27} Here, Brown argues that the court‘s restitution order in Case No. 2014 CR 03632 should be reversed because “there was nothing in the [presentence investigation] that indicates [he] will have the ability to pay [the amount ordered], and [because] his ability to pay was not discussed at [his] sentencing hearing.” Appellant‘s Br. 11. Yet,
{¶ 28} We find no evidence in the record of Casе No. 2014 CR 03632 to suggest that the trial court‘s order of restitution is clearly and convincingly contrary to law. As a result, Brown‘s fourth assignment of error is overruled.
{¶ 29} Assignment of Error Number Five:
THE TRIAL COURT ERRED IN ORDERING TO [sic] PAY COURT
COSTS.
{¶ 30} Brown contends in his final assignment of error that the trial court further “abused [its] discretion [by] overruling [his] motion to waive the imposition of court costs.” Appellant‘s Br. 12.
III. Conclusion
{¶ 31} We find that Brown‘s assignments of error lack merit. Therefore, we affirm Brown‘s convictions in Case No. 2014 CR 01637, Case No. 2014 CR 01721 and Case No. 2014 CR 03632; the trial court‘s decision overruling Brown‘s motions to withdraw his pleas; and the trial court‘s decisions overruling Brown‘s motions for waiver of the imposition of financial sanctions and court costs.
HALL, P.J. and DONOVAN, J., concur.
Mathias H. Heck, Jr.
Heather N. Jans
Robert Alan Brenner
Hon. Dennis J. Adkins