STATE OF OHIO v. JOHN E. THOMAS
No. 103759
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
July 14, 2016
[Cite as State v. Thomas, 2016-Ohio-4961.]
BEFORE: E.A. Gallagher, P.J., E.T. Gallagher, J., and S. Gallagher, J.
JOURNAL ENTRY AND OPINION; JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: July 14, 2016
Robert L. Tobik
Chief Public Defender
BY: Cullen Sweeney
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Joan Bascone
Mary M. Dyczek
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
{¶1} Defendant-appellant John Thomas appeals the trial court‘s denial of his presentence motion to withdraw his guilty pleas, filed pro se while represented by counsel, without a hearing. For the reasons that follow, we affirm the trial court‘s judgment.
{¶2} On June 25, 2015, a Cuyahoga County Grand Jury indicted Thomas on seven counts: two counts of felonious assault of a peace officer in violation of
{¶3} Thomas continued driving until he reached his mother‘s residence. He then surrendered and was handcuffed and placed into custody. Thomas allegedly continued to resist arrest and refused to comply with officers’ demands to get into the police vehicle.
{¶4} On September 9, 2015, Thomas and the state reached a plea agreement. At the plea hearing, the state indicated that Thomas had agreed to plea guilty to an amended Count 1 (attempted felonious assault) that included both of the victims in Counts 1 and 2, Count 3 (failure to comply), Count 4 (vandalism), Count 5 (drug possession) and Count 6 (driving while under the influence). In exchange, the state agreed to dismiss the second felonious assault charge (Count 2) and the resisting arrest charge (Count 7). Defense counsel confirmed that these were the terms of the plea agreement.
{¶5} The trial judge then proceeded with the plea colloquy. She confirmed that Thomas was not under the influence of any substance that would impact his ability to understand the proceedings, that he understood what he would be pleading guilty to, that no threats or promises had been made to induce Thomas to enter a plea and that he was satisfied with the services provided by his counsel. The trial court advised Thomas of his constitutional rights and confirmed that Thоmas understood the rights he would be giving up by entering his guilty pleas. The trial judge specifically explained the amendment of Count 1, i.e., “bringing in the attempt statute” and adding Officer Russo as a named victim in that count, and the effect of that amendment, i.e., reducing the charge from a felony of the first degree to a felony of the second degree, and she outlined in detail the potential penalties Thomas would face by pleading guilty to each of the counts against
{¶6} After accepting Thomas’ guilty pleas, the trial court referred the case for a presentence investigation report, a mitigation of penalty report and a TASC evaluation. A sentencing hearing was scheduled for the following month.
{¶7} On September 23, 2015, Thomas filed, pro se (1) a “judicial notice,” (2) a motion to withdraw his guilty pleas pursuant to Crim.R. 32.1 and to dismiss and replace his appointed counsel and (3) a motion to “extend time for trial” to allow “new appointed counsel” sufficient time to prepare for a trial.
{¶8} In his “judicial notice,” Thomas indicated that he had “dismissed” his counsel “who no longer controls the defense.” He indicated that he would be filing a civil rights action alleging the use of excessive force by the Maple Heights Police Department and that he sought “[n]ew aрpointed counsel * * * who will aggressively defend and try this case.” In his motion to withdraw his guilty pleas and to dismiss and replace his appointed counsel, Thomas claimed that his guilty pleas were “based on a deceptive phony deal set up for [him] to be suckered into being sentenced to colossal amount of years contrary to phony promises claiming the opposite would occur.” He asserted that, when entering his guilty pleas, he was “under the semi-impression” that his pleas “would
{¶9} With respect to his motion to dismiss and replace appointed counsel, Thomas requested that his appointed counsel be replaced by another appointed attorney on the grounds that his appointed counsel was a former assistant county prosecutor, allegedly “deceived” Thomas as to what “his sentence may — could be, etc.” and allegedly agreed to various continuances without Thomas’ consent, “selling out [his] speedy trial rights.”
{¶10} Thomas later filed a pro se “discovery demand” and a pro se motion to dismiss Count 1, as amended, and “supplement” to his motion to withdraw his guilty pleas. Thomas argued that attempted felonious assault is not a valid offense under Ohio law and that, as such, the trial court erred in accepting his guilty plea to that chаrge.
{¶11} The sentencing hearing was held on October 15, 2015. Thomas was represented by his appointed counsel at the hearing. At the outset of the hearing, the trial court confirmed that it had received the presentence investigation report, the mitigation of penalty report and the TASC evaluation and identified all of the motions and other documents Thomas had filed pro se since the plea hearing.1 The trial court noted that
Thоmas was “present in court with his lawyer” and summarily denied all the motions Thomas had filed pro se. The trial court then proceeded with sentencing.
{¶12} Defense counsel addressed the court on Thomas’ behalf. He discussed Thomas’ background and the circumstances of the case and indicated that both were “fairly and accurately” reflected in the presentence investigation report and mitigation reрort. He also addressed Thomas’ pro se motions, indicating that he was “surprised” by the motions. As he explained:
We had several conversations about these charges. I certainly repeatedly told him they were very serious and that the consequences could have been serious. I never told him he was getting probation, 100 years, five years, two years, or one year.
I just indicated that, you know, he said he was accepting responsibility, and I said that that would certainly be looked upon favorably as it always is.
I read the presentence report and the mitigation report, and he pretty much tells them what he told me. So I don‘t know where all of this recent allegations and filings took place, but we discussed this at length. He gave me the impression that he understood what happened, that it was serious, and I said we would do thе best we can —
THE DEFENDANT: No.
[DEFENSE COUNSEL]: — under the circumstances. And, you know, certainly it was a very serious situation. * * *
{¶13} Thomas also spoke at the sentencing hearing, addressing both the charges to which he had pled guilty and the pro se motions he had filed, as follows:
Everything [defense counsel] said is wrong. This is my life, and I was under the influence, true enough, but I understood that what I did was wrong.
And I did file the motion because I was reading law books and it said Count 2 was never — was рut out, the revocation of the books, which was not
right. I didn‘t do what they all hyped it up to be. They assaulted me. Did nobody get hurt but me, and I served my time, you know. And we didn‘t really talk about, you know, the necessary strategy of this guilt here. I‘m being put to the test because, you know, I work hard out there and I don‘t hurt nobody and I didn‘t try to hurt no police. I didn‘t flee and elude. I just want to go home, you know.
I bumped their car, true enough, one car, not two cars, one police car, and I said my insurance would take care of it. They bruised my ribs and assaulted me and betrayed me while I was handcuffed and while I was complying to their demands. And I thought about it being in this jail for almost six months that I‘m tired of copping out to something that I didn‘t do, you know, and I‘m 49 years old and I want to have an opportunity and I don‘t want to go to jail for anything I didn‘t do.
I just don‘t know what to say, you know, I just, you know, hope that you feel the mеrcy, deferral of my plea, and I did redo this over again. * * *
{¶14} After hearing from Thomas and defense counsel, the trial court sentenced Thomas to an aggregate prison sentence of two years and nine months — two years on the attempted felonious assault charge, nine months on the failure to comply charge (to be served consecutively, as required by statute, to the sentence on the attemрted felonious assault charge), six months each on the vandalism and drug possession charges (to be served concurrently to the sentence on the felonious assault), and ten days in the county jail on the driving under influence charge (for which Thomas received credit for time served). The trial court also imposed a $525 fine and three years of mandatory postrelease control. The trial court indicated that this was “the lowest sentence I could have given you.”
The trial court erred and abused its discretion in denying appellant‘s pre-sentence motion to withdraw his plea and terminate counsel without holding a hearing on the motion.
Law and Analysis
{¶16} In his sole assignment of error, Thomas argues that the trial court erred in failing to conduct a heаring on his presentence motion to withdraw his guilty pleas.2 We disagree.
{¶17} In general, “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). Even before the trial court imposes a sentence, however, a defendant does not have an
{¶18} Therefore, before ruling on a presentence motion to withdraw a guilty plea, the trial court “must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea.” Xie at paragraph one of the syllabus. The scope of a hearing on a
{¶19} The trial court did not hear any argument on Thomas’ motion to withdraw his guilty pleas before denying the motion. Thomas asserts that because the trial court summarily denied his presentence motion to withdraw his guilty pleas without a hearing,
{¶20} In this case, however, Thomas filed his motion to withdraw his guilty pleas, pro se. Although a defendant has the right to counsel or the right to act pro se, a defendant does not have a right to “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, and State v. Thompson, 33 Ohio St.3d 1, 6-7, 514 N.E.2d 407 (1987). The right to сounsel and the right to act pro se “‘are independent of each other and may not be asserted simultaneously.‘” Mongo at ¶ 13, quoting Martin at paragraph one of the syllabus.
{¶21} When a criminal defendant is represented by counsel and there is no indication that defense counsel joins in the defendant‘s pro se motion or otherwise indicates a need for the relief sought by the defendant pro se, the trial court cannot properly consider the defendant‘s рro se motion. See, e.g., State v. Wyley, 8th Dist. Cuyahoga No. 102899, 2016-Ohio-1118, ¶ 9 (“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“), quoting State v. Davis, 10th Dist. Franklin No. 05AP-193, 2006-Ohio-5039, ¶ 12; State v. Pizzaro, 8th Dist. Cuyahoga No. 94849, 2011-Ohio-611, ¶ 7 (“One who is represented by counsel and who does not move the сourt to proceed pro se, may not ‘act as co-counsel on his own
{¶22} In this case, Thomas filed his motion to withdraw his guilty pleas while represented by counsel. There is nothing in the record to suggest that defense counsel joined in the motion or otherwise believed a basis existed for Thomas to withdraw his guilty pleas. Indeed, the purported grounds for the withdrawal of Thomas’ guilty pleas were contradicted by Thomas’ own statements at the plea hearing. While Thomas claimed, in his motion to withdraw his guilty pleas, that he had been “suckered” into pleading guilty based on “phony promises” regarding the sentences he would rеceive, at the plea hearing, Thomas stated that he understood what he would be pleading guilty to, that no threats or promises had been made to induce Thomas to enter his guilty pleas, that he understood the potential penalties that could result from his pleas and that he was satisfied with the services provided by his appointed counsel.
{¶23} Further, although Thomas filed a motion to dismiss and replace his aрpointed counsel in conjunction with his motion to withdraw his guilty pleas, indicating that he did not want his appointed counsel to continue to represent him, he did not ask to
{¶25} Judgment affirmed.
It is ordered that appellee recover from appellant the costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure.
EILEEN A. GALLAGHER, PRESIDING JUDGE
EILEEN T. GALLAGHER, J., and
SEAN C. GALLAGHER, J., CONCUR
Notes
“An indigent defendant‘s right to counsel does not extend to counsel of the defendant‘s choice.” State v. Chavez, 8th Dist. Cuyahoga No. 99436, 2013-Ohio-4700, ¶ 39, quoting Thurston v. Maxwell, 3 Ohio St.2d 92, 93, 209 N.E.2d 204 (1965). “To discharge a court-appointed attorney, a defendant must show ‘a breakdown in the attorney-client relationship of such a magnitude as to jeopardize a defendant‘s rights to effective assistance of counsel.‘” State v. Coleman, 37 Ohio St.3d 286, 292, 525 N.E.2d 792 (1988), quoting People v. Robles, 2 Cal.3d 205, 215, 85 Cal.Rptr. 166, 466 P.2d 710 (1970).
Where, “during the course of a trial for a serious crime,” a defendant questions the effectiveness and adequacy of his or her assigned counsel, “it is the duty of the triаl judge to inquire into the complaint and make such inquiry a part of the record.” State v. Deal, 17 Ohio St.2d 17, 244 N.E.2d 742 (1969), syllabus. “The defendant bears the burden of announcing the grounds for a motion for appointment of new counsel. If the defendant alleges facts which, if true, would require relief, the trial court must inquire into the defendant‘s complaint and make the inquiry part of the record.” State v. Hawkins, 8th Dist. Cuyahoga No. 91930, 2009-Ohio-4388, ¶ 51-52, quoting State v. Carter, 128 Ohio App.3d 419, 423, 715 N.E.2d 223 (4th Dist.1998). However, this “limited judicial duty” arises “only if the allegations are sufficiently speсific; vague or general objections do not trigger the duty to investigate further.” State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, ¶ 68 quoting State v. Carter, 128 Ohio App.3d 419, 423, 715 N.E.2d 223 (4th Dist.1998); Hawkins at ¶ 53-54, 61 (although “the better practice would have been for the trial court to conduct a minimal inquiry regarding [defendant‘s] concerns” so as to “permit[] the trial court to quickly dispose of any nonmeritorious claims” and create “a more complete record on appeal,” the trial court did not err by not conducting such an inquiry where defendant‘s request for new counsel was a general allegation and he did not allege specific facts that would require the appointment of new counsel). Thomas does not contend in his brief that the allegations giving rise to his motion to dismiss and replace appointed counsel were sufficient to warrant an inquiry from the trial court in this case and counsel made no such showing when the issue was argued, for the first time, during oral argument.