State v. WilliamsState v. Williams
{¶ 1} Defendant-appellant, Kenna Williams (“Williams”), apрeals from his convictions and sentence. He raises the following assignments of error for appeal:
- The trial court erred in denying Williams’s pre-sentence motion to withdraw his guilty plea without a hearing.
- The trial court erred in imposing consecutive sentences which were not supported by the record.
- The trial court erred in imposing both a prison tеrm and a no-contact order.
{¶ 2} After careful review of the record and relevant case law, we affirm in part, reverse in part, and remand for the trial court to vacate the no-contact order imposed as part of Williams’s sentence.
I. Procedural and Factual History
{¶ 3} In June 2019, Williams was named in a 13-count indictment, charging him with aggravated burglary in violation of
{¶ 4} The indictment stemmed from three separate incidents occurring in April and May of 2019. With respect to Counts 1-5, the state alleged that on April 12, 2019, Williams arrived at the home of his ex-girlfriend, J.B., and knocked on her front door. When J.B. opened the door, Williams pushed his way inside and proceeded to strangle J.B. while demanding to know who else was inside the home. Williams subsequently punched J.B., destroyed her telephone, and took her credit card and identification card from her purse. (Tr. 32-33.)
{¶ 5} Counts 6-11 alleged that during the early hours of May 6, 2019, J.B. and her grandmother heard gunshots outside her grandmother’s home. J.B. also began receiving phone calls from an unknown number. When she answered her phone, she recognized Williams’s voice. Williams asked J.B. to provide him with the name of the person she was dating. During a phone call that occurred after the gun shots were heard, Williams stated to J.B. “You hear that? I got something for you if you don’t give me his name.” (Tr. 33.) Williams also threatened to shоot J.B.’s grandmother and brother.
{¶ 6} Counts 12 and 13 alleged that on May 7, 2019, Williams continued his harassing behavior by repeatedly calling J.B.’s phone. He left threatening messages, expressing that he would “burn her up and her seven-year old son and will shoot them.” (Tr. 34.)
{¶ 7} On the day set for trial, Williams expressed that he intended to accept a proposed plea agreement with the state and withdraw his previously entered pleas of not guilty. Following a
{¶ 8} Prior to sentencing, Williams filed a pro se motion to withdraw his guilty plea pursuant to
{¶ 9} In October 2019, Williams appeared for sentencing with his appointed counsel. Although the trial court denied Williams’s oral request for a сontinuance to “look over his motion for discovery,” the trial court proceeded with sentencing without addressing Williams’s pro se motion to withdraw. Upon hearing from the victim and Williams, the trial court sentenced Williams to an aggregate five-year prison term. In formulating the sentence, the trial court ordered the 12-month
{¶ 10} Williams now appеals from his convictions and sentence.
II. Law and Analysis
A. Presentence Motion to Withdraw Guilty Plea
{¶ 11} In his first assignment of error, Williams argues the trial court erred in denying his presentence motion to withdraw his guilty plea without a hearing.
{¶ 12} A motion to withdraw a guilty plea is governed by
A motion to withdraw a plea of guilty or no contest may be made only before sentencing is imposed; but to correct manifest injustice the court after sentencing may set aside the judgment of сonviction and permit the defendant to withdraw his or her plea.
{¶ 13} A defendant, however, does not have an absolute right to withdraw his plea prior to sentencing, and it is within the sound discretion of the trial court to determine what circumstances justify the granting of any such motion. State v. Westley, 8th Dist. Cuyahoga No. 97650, 2012-Ohio-3571, ¶ 7, citing State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992).
{¶ 14} Ordinarily, the trial court must conduct a hearing prior to ruling on a motion to withdraw to determine whether there is a reasonable and legitimate basis
{¶ 15} It is well established 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 bоth, simultaneously, or ‘hybrid representation.’” State v. Powell, 8th Dist. Cuyahoga No. 107006, 2019-Ohio-346, ¶ 16, citing State v. Mongo, 8th Dist. Cuyahoga No. 100926, 2015-Ohio-1139, ¶ 13. Where a represented defendant makes an oral pro se motion to withdraw his guilty plea, the trial court can refuse to entertain such motion. State v. Hill, 8th Dist. Cuyahoga No. 107290, 2019-Ohio-1647, ¶ 12. Here, there is nothing in the record indicating that counsel joined Williams’s pro se oral motion or otherwise believed that a basis existed for Williams to withdraw his guilty plea. Powell at ¶ 18. As a result, had the trial court entertained Williams’s pro se oral motion while he was simultaneously represented by appointed counsel, this would have effectively constituted hybrid representation in violation of the established law. Mongo at id.
{¶ 16} Moreover, we are unpersuaded by Williams’s contention that the record reflects that he intended to proceеd with his case pro se and without the assistance of counsel. Relying on this court’s decision in State v. Thomas, 8th Dist. Cuyahoga No. 103759, 2016-Ohio-4961, Williams maintains that trial courts are required to entertain pro se motions to withdraw where the defendant reveals to the court that “he [or she] is no longer interested in the services of assigned counsel.”
{¶ 17} After careful consideration, we find no merit to Williams’s reliance on Thomas. In this case, the record does not reveal that Williams moved the court to proceed pro se. Nor did Williams indicate that he did not wish to proceed without the rеpresentation of appointed counsel. Although Williams’s motion to withdraw expressed dissatisfaction with defense counsel’s performance during the plea proceedings, he did not request to represent himself and, in fact, proceeded with legal representation during the sentencing hearing. Contrary to Williams’s position
B. Consecutive Sentences
{¶ 18} In his second assignment of error, Williams argues the trial court erred by imposing consecutive sentences that are not supported by the record.
{¶ 19} We review felony sentences under the standard set forth in
{¶ 20}
(a) The offender committed one or more of the multiplе offenses while the offender was awaiting trial or sentencing, was under a sanction imposed pursuant to section
(b) At least two of the multiple offenses were committed as part of one or more courses of conduct, and the harm caused by two or more of the multiple offenses so committed was so great or unusual that no single prison term for any of the offenses committed as part of any of the courses of conduct adequately reflects the seriousness of the offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that consecutive sentences are necessary to protect the public from future crime by the offender.
{¶ 21} Conformity with
{¶ 22} In this case, the trial court made the fоllowing findings when imposing consecutive sentences:
This is not very good behavior, you know that. This young lady, the relationship that you were in, you heard how it has affected her, and her son, and how she feels this has affected her.
* * *
I look at the seriousness factors. There is clearly the injury. The victim’s psychological and mental condition is huge. I also look at the viсtim talking about how this has psychologically affected her and her family. The other seriousness factor is that this relationship with the victim facilitated this offense. Those are all serious factors this court has to look at.
You gave me a half-hearted “I’m sorry.” You know your PSI says you didn’t do it, you’re getting railroaded. But you came before me here, and you stoоd up and acknowledged that you did wrong, you shouldn’t have done it, and you accepted responsibility for what you did.
Then it comes to the fact I have to look at your criminal record. When I do that, I look at that you plead guilty in December of 2004 to drug trafficking * * * where you went to jail for 30 days. You had some menacing cases in Cleveland Municipal Court that wеre dismissed. You had a probation violation in Putnam County for simple possession. You had a statutory rape case in 2007 out of Putnam County where you served 12 years in prison. You were released in 2019, and in 2019 you picked up this case.
* * *
I believe consecutive sentences are necessary to protect you protect the public and to punish yоu. It’s not disproportionate. And I find the harm is so great or unusual a single term does not adequately reflect the seriousness of the conduct. And your criminal history shows that consecutive terms are needed to protect the public.
(Tr. 49-51.)
{¶ 23} On appeal, Williams does not dispute that the trial court made the necessary findings for imposing consecutive sentenсes under
{¶ 24} After reviewing the record, we cannot say that the record clearly and convincingly does not support the trial court’s findings under
{¶ 25} Because the trial court made the requisite findings during the sentencing hearing under
{¶ 26} Williams’s second assignment of error is overruled.
C. No-Contact Order
{¶ 27} In his third assignment of error, Williams argues the trial court erred as a matter of law by imposing an order of no contact with the victim. Williams contends that because he wаs sentenced to a term of imprisonment, the trial court had no authority to impose a no-contact order.
{¶ 28} In State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d 512, the Ohio Supreme Court held that a trial court cannot impose a prison term and a no-contact order for the same felony offense. Id. at ¶ 32. The court reasoned that a no-contact order is a community-control sanction, and for felony offenses, Ohio’s statutory scheme makes it clear that prison terms and community-control sanctions are alternative sanctions. Thus, a court must impose either a community-control sanction or a prison term for an offense, but cannot impose both. Id.; see also State v. Stafford, 8th Dist. Cuyahoga No. 104276, 2016-Ohio-5635, ¶ 10.
{¶ 29} In this case, the trial court stated at the conclusion of the sentencing hearing that Williams was to have “no contact whatsoever with [the victim], her family, or her friends.” (Tr. 52.) We agree with Williams’s assertion that the trial
{¶ 30} Williams’s third assignment of error is sustained. Pursuant to
{¶ 31} Judgment affirmed in part, reversed in part, and remanded.
It is ordered that appellant and appellee split 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 common pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to
EILEEN T. GALLAGHER, JUDGE
SEAN C. GALLAGHER, P.J., and
LARRY A. JONES, SR., J., CONCUR