STATE OF OHIO, PLAINTIFF-APPELLEE vs. ADRIAN MADDOX, DEFENDANT-APPELLANT
No. 96885
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
RELEASED AND JOURNALIZED: February 9, 2012
[Cite as State v. Maddox, 2012-Ohio-478.]
BEFORE: S. Gallagher, P.J., Rocco, J., and Keough, J.
JUDGMENT: AFFIRMED. Criminal Appeal from the Cuyahoga County Court of Common Pleas, Case No. CR-545799
Brett M. Mancino
Janik L.L.P.
9200 South Hills Boulevard
Suite 300
Cleveland, OH 44147-3521
Also listed:
Adrian Maddox, pro se
Inmate No. 601-191
Marion Correctional Institution
P.O. Box 57
Marion, OH 43301
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: James Hofelich
Assistant Prosecuting Attorney
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, OH 44113
JOURNAL ENTRY AND OPINION
SEAN C. GALLAGHER, P.J.:
{¶ 1} This cause came to be heard upon the accelerated calendar pursuant to
{¶ 2} Defendant-appellant Adrian Maddox appeals his conviction in Cuyahoga County C.P. No. CR-545799 for one count of vandalism in violation of
{¶ 3} On December 25, 2010, Maddox threw a rock through the window of a delicatessen, ransacked the store causing damage to the owner‘s property, and stole less than $500 worth of tobacco products.
{¶ 4} Maddox was indicted on one count of vandalism for causing damage to the delicatessen‘s property needed to engage in business, one count for breaking and entering with the intent to commit a theft offense, and one count for theft of property worth less than $500. Maddox pleaded guilty to the vandalism and breaking and entering charges. The state nolled the remaining theft charge. Prior to his sentencing hearing, but after securing a reduced bond and posting bail, Maddox filed a pro se motion to withdraw his guilty plea. At all times Maddox was represented by appointed counsel. At the sentencing hearing, the trial court heard arguments on Maddox‘s pro se motion, denied the motion, and sentenced Maddox to an aggregate two-year term of imprisonment. Maddox timely appealed his conviction, raising five assignments of error, which provide the following:
I. Maddox‘s offenses are allied offenses of similar import and should have been merged into a single conviction. Ohio‘s merger law, Maddox‘s right to due process, and his double jeopardy right against cumulative punishments for the same offense were violated.
II. Maddox‘s guilty plea was not made knowingly, voluntarily, and intelligently, and, as a result, the court‘s acceptance of that plea was in violation of Maddox‘s constitutional rights and
Criminal Rule 11 .III. [Maddox‘s] defense counsel was ineffective for not raising the issues of allied offenses of similar import, [and] also was ineffective for not acting on Maddox‘s request to withdraw his plea before sentencing.
IV. The trial court abused its discretion in refusing to allow Maddox to withdraw his guilty plea.
V. The trial judge was biased and therefore denied Maddox due process of law.
We will combine any overlapping arguments.
Allied Offenses
{¶ 5} The record reflects that Maddox never raised or affirmatively waived the issue of merger in the trial court and therefore has waived all but plain error on appeal. State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶ 31. “Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.”
(A) Where the same conduct by defendant can be construed to constitute two or more allied offenses of similar import, the indictment or information may contain counts for all such offenses, but the defendant may be convicted of only one.
(B) Where the defendant‘s conduct constitutes two or more offenses of dissimilar import, or where his conduct results in two or more offenses of the same or similar kind committed separately or with a separate animus as to each, the indictment or information may contain counts for all such offenses, and the defendant may be convicted of all of them.
In State v. Johnson, 128 Ohio St.3d 153, 2010-Ohio-6314, 942 N.E.2d 1061, the Supreme Court established, through a two-tiered test, that the conduct of the accused must be considered when determining whether offenses are allied offenses of similar import subject to merger. The first inquiry focuses on whether it is possible to commit multiple offenses with the same conduct. Johnson at ¶ 48. If the offenses “correspond to such a degree that the conduct of the defendant constituting commission of one offense constitutes commission of the other, then the offenses are of similar import.” (Emphasis added.) Id. It is not necessary that both crimes are always committed by the same conduct, only whether it is possible for the defendant‘s conduct to result in the commission of both offenses. Id. If it is possible to commit both offenses with the same conduct, then courts must look at the “state of mind” of the offender to determine if the offender acted with a separate animus or purpose in committing two or more offenses. Id.
{¶ 8} Maddox argues that the only damage to the store was the broken window that fell in on the scale the store owners needed to operate the business. In his pro se motion to withdraw his plea, Maddox claimed that the damage to the window and scale only cost $800 and the window and the scale were damaged through the process of breaking and entering. Maddox argues the window he forced open fell on and caused the damage to the scale. The state counters by stating that the delicatessen was “ransacked,” causing almost $3,000 of damage to the owner‘s store.
{¶ 9} Maddox was charged with a violation of
{¶ 10} The state argued that several thousand dollars of damage, including the damage to the scale, was caused after Maddox forcibly entered the premises. Even if the scale was indeed damaged by the falling window caused by Maddox‘s entry into the delicatessen, Maddox‘s conduct of breaking the window could not have resulted in the commission of both offenses; i.e., the act of breaking into the store alone could not cause the $3,000 damage to the rest of the store underlying the vandalism charge in this case. In fact, Maddox himself argues the damage to the scale and window only cost $800. Maddox never addresses the rest of the damage to the store, and we must therefore overrule his first assignment of error. Maddox‘s ineffective assistance of counsel argument based on the merger issue is likewise overruled.
Presentence Motion to Vacate Plea
{¶ 11} Maddox next challenges the trial court‘s decision to deny his presentence motion to vacate his plea. His arguments are without merit.
{¶ 12}
{¶ 13} “A trial court does not abuse its discretion in overruling a motion to withdraw: (1) where the accused is represented by highly competent counsel, (2) where the accused was afforded a full hearing, pursuant to
{¶ 14} In respect to the second factor above, “[w]hen a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily.” State v. Engle, 74 Ohio St.3d 525, 527, 1996-Ohio-179, 660 N.E.2d 450. The standard of review for determining whether a plea was knowing, intelligent, and voluntary within the meaning of
{¶ 15} In this case, the trial court held a hearing to determine the reasonableness of Maddox‘s pro se motion to vacate his plea and thoroughly considered the arguments advanced. Maddox, represented by counsel at all times, claimed he would not have pleaded guilty to the vandalism and breaking and entering charges had he known they were allied offenses.
{¶ 16} At the plea hearing, the trial court conducted a thorough colloquy detailing Maddox‘s rights, ensuring he understood those rights, and informing him of the potential penalties of the breaking and entering and vandalism charges. More specifically, Maddox acknowledged that he could face up to one year of imprisonment for each count of his plea. The allied offense issue is a sentencing issue, which of course does not preclude the defendant and the state from stipulating to the facts that can be used to determine whether the offenses
{¶ 17} Because the trial court strictly adhered to the mandates of
Judicial Bias
{¶ 18} Finally, Maddox argues that the trial court‘s statement during the sentencing hearing directed at Maddox constitutes judicial bias. Specifically, the trial court stated during the sentencing hearing that “you [Maddox] scare me.” Maddox cites State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 937 N.E.2d 97, for the proposition that
opinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge. Id., citing Liteky v. United States, 510 U.S. 540, 555, 114 S.Ct. 1147, 127 L.Ed.2d 474 (1994).
{¶ 20} The record indicates that the court‘s comment was based on the facts and circumstances gleaned from the course of Maddox‘s trial proceedings. The comment also does not demonstrate a deep-seated favoritism or antagonism that made fair judgment impossible. In fact, the comment merely reflects the court‘s attention to Maddox‘s extensive criminal history and proclivity to deceive the court. Accordingly, no judicial bias was demonstrated, and Maddox‘s fifth assignment of error is overruled.
{¶ 21} The decision of the trial court is affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. Case remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to
SEAN C. GALLAGHER, PRESIDING JUDGE
KENNETH A. ROCCO, J., and
KATHLEEN ANN KEOUGH, J., CONCUR