[Cite as State v. Williams,

.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY

State of Ohio Court of Appeals Nos. L-15-1259 L-15-1260 Appellee Trial Court Nos. CR0201501530 v. CR0201501819

Shaquille Williams DECISION AND JUDGMENT

Appellant Decided: July 8, 2016

*****

Julia R. Bates, Lucas County Prosecuting Attorney, and Matthew D. Simko, Assistant Prosecuting Attorney, for appellee.

Karin L. Coble, for appellant.

*****

PIETRYKOWSKI, J.

{¶ 1} Appellant, Shaquille Williams, appeals from two September 28, 2015

judgments journalized in two separate criminal actions following the acceptance of guilty

pleas. The appeals have been consolidated. In the first case, he was charged with

violating R.C. 2921.331(B) and (C)(5)(a)(ii), failure to comply with the order of a police officer, a third-degree felony. In the second case, he was charged with two counts of

violating R.C. 2911.01(A)(1), aggravated robbery, a first-degree felony with firearm and

criminal gang specifications, and one count of participating in a criminal gang, a

violation of R.C. 2923.42(A) and (B), a second-degree felony. Pursuant to a plea

agreement, the charges in the second case were reduced to robbery, with a firearm

specification, a violation of R.C. 2911.02(A)(3) and (B) and 2941.145, and one count of

participating in a criminal gang.

{¶ 2} The court sentenced appellant to a one-year term of imprisonment on the

failure to comply offense (to be served first) and 18 months of imprisonment for each of

the robbery convictions and 4 years imprisonment for the participating in a criminal gang

conviction. All the terms of imprisonment were ordered to be served consecutively to

each other. Appellant asserts the following assignments of error on appeal:

Assignment of Error One: The trial court erred when it refused to

allow appellant to withdraw his plea before sentencing.

Assignment of Error Two: Clear and convincing evidence supports

reversing appellant’s consecutive sentences.

{¶ 3} Several delays of the trial of these cases arose. The state sought continuances

because of the unavailability of the officer who could identify appellant in the failure to

comply case. The state sought to join the two cases for trial. There was a possibility of an

additional indictment against appellant for another robbery. Appellant filed a pro se

motion seeking funds for expert assistance, a private investigator, and a reenactment team,

2. which his appointed counsel did not recommend. The state also moved for a continuance

of the case involving the robbery charges because appellant had produced a statement

signed by his co-defendant exonerating appellant.

{¶ 4} On the date set for trial, the state moved for a continuance and also placed

on the record the plea agreement offered about a week prior to the hearing. The plea

agreement provided that appellant would plead guilty to the charges of failure to comply

and there would be a jointly-recommend sentence of a one-year term of imprisonment to

be served consecutive to any sentence imposed in the second case. As to the second case,

the plea agreement provided appellant would enter a guilty plea to two counts of the

lesser included offense of robbery and one count of participating in a criminal gang. The

jointly-recommended sentence would be a maximum of 17 years imprisonment, with

three years mandatory.

{¶ 5} The state alleged the facts it could prove as follows. Appellant was part of a

criminal gang from 2010 to 2015, and the gang was engaged in criminal activity. In

February 2015, appellant entered business establishments to survey the scene prior to the

planned robberies. Afterward, an accomplice entered the store and use a gun to demand

money. Appellant also acted as the getaway driver. Appellant was identified from

camera recordings. The prosecution had additional information which would lead to a

third robbery charge based on a DVD-recorded, verbal statement by a co-defendant

implicating appellant. However, the same co-defendant also provided a written statement

exonerating appellant. Because of additional information obtained, the state was

3. prepared to add an additional aggravated robbery charge if appellant did not accept the

plea. The state also alleged that it could prove appellant failed to comply with the order

of a police officer to stop a motor vehicle for a traffic violation in March 2015.

{¶ 6} Appellant’s attorney stated he had not yet shown appellant the DVD of his

co-defendant’s statement implicating appellant. Appellant’s attorney sought time to

discuss the plea with appellant in light of the potential new charges. The prosecution

offered to hold the plea agreement open for an additional five days. The court called a

recess to give appellant the opportunity to discuss the plea with his counsel. After

consulting with his attorney during a nearly two-hour recess, appellant decided to enter a

guilty plea in each case at the time of the hearing.

{¶ 7} The trial court immediately conducted a thorough Crim.R. 11 plea hearing.

The trial court addressed appellant personally and appellant stated he was prepared to

enter guilty pleas. Appellant acknowledged he was clearheaded and able to understand

what was happening. The trial court confirmed appellant’s appearance, demeanor, and

responses indicated he was not under the influence or incapacitated. Appellant’s attorney

also agreed that appellant was clear and making his own decisions. Appellant indicated

that he and his attorney discussed the matter thoroughly and appellant was satisfied with

his representation and advice. Appellant acknowledged he understood the effect of the

guilty pleas and the penalties which could be imposed. The trial court explained

postrelease control and the rights and privileges appellant would be foregoing by entering

guilty pleas. At the end of the hearing, appellant stated that he was entering the guilty

4. pleas voluntarily “[b]ecause I’m, um --because I did it. I own up to it.” The trial court

then accepted the pleas.

{¶ 8} However, at the beginning of the sentencing hearing held two days later on

August 19, 2015, appellant indicated to his attorney a desire to withdraw his prior guilty

pleas. Because the attorney was not notified ahead of time, he asked for the case to be

continued so a written motion could be filed. On August 27, 2015, appellant filed a

written motion to withdraw his plea in both cases. He asserted that he was confused and

overwhelmed at the time he entered the pleas, he did not fully understand the

consequences of entering the pleas, and he had numerous defenses he wished to assert.

Appellant asserted the state would not be prejudiced by withdrawal of the plea because

only two days had passed.

{¶ 9} On September 18, 2015, appellant sought a continuance so he could retain

private counsel. The court gave appellant one week to retain counsel or the appointed

counsel would continue representing appellant. After appellant failed to obtain retained

counsel by the date scheduled by the court, the court conducted a hearing on appellant’s

motion to withdraw his guilty pleas and denied it. Appellant was then sentenced.

{¶ 10} In his first assignment of error, appellant argues that the trial court erred by

denying his motion to withdraw his guilty pleas when the motions were made prior to

sentencing.

{¶ 11} There is no absolute right to withdraw a guilty plea after conviction, but

prior to sentencing, State v. Xie,

,

(1992), paragraph

5. one of the syllabus. The matter is left to the sound discretion of the trial court who is in

the better position to evaluate both the motivation of the defendant in pleading guilty and

the credibility and weight to be given to the reasons for seeking to withdraw the plea.

at paragraph two of the syllabus. While appellant informed the court that he wished to

withdraw the pleas only two days after he had entered his pleas, other factors can weigh

in favor of denying the motion even though it was timely made. State v. Goings, 6th

Dist. Lucas No. L-13-1103,

, ¶ 15.

{¶ 12} An appellate court will not reverse the trial court’s denial of the motion

unless the defendant can establish that the trial court abused its discretion.

.

An abuse of discretion standard requires a finding that the trial court committed “more

than an error of law or of judgment; it implies that the court’s attitude is unreasonable,

arbitrary or unconscionable * * *.” State v. Adams,

,

(1980).

{¶ 13} Crim.R. 32.1 gives no criteria for determining when withdrawal of a plea is

justified. However, the Ohio Supreme Court has held that “a presentence motion to

withdraw a guilty plea should be freely and liberally granted.”

. Appellate

courts evaluate the trial court’s decision based upon the following considerations:

(1) whether the state will be prejudiced by withdrawal; (2) the

representation afforded to the defendant by counsel; (3) the extent of the

Crim.R. 11 plea hearing; (4) the extent of the hearing on the motion to

withdraw; (5) whether the trial court gave full and fair consideration to the

6. motion; (6) whether the timing of the motion was reasonable; (7) the

reasons for the motion; (8) whether the defendant understood the nature of

the charges and potential sentences; and (9) whether the accused was

perhaps not guilty or had a complete defense to the charge. State v.

Murphy,

,

,

(6th Dist.), quoting State v. Griffin,

,

(2001).

A change of heart is an insufficient reason to permit withdrawal of the plea. State v.

Locher, 4th Dist. Scioto No. 11CA3414,

; State v. Lawhorn, 6th

Dist. Lucas No. L-08-1153,

, ¶ 23 (citations omitted).

{¶ 14} The trial court did not indicate in its decision the basis for denying the

motions to withdraw the pleas. Appellant argues that without a written basis, the trial

court’s judgments cannot be reviewed and weighs in favor of finding an abuse of

discretion. We disagree. While a written explanation of the court’s reasoning is always

helpful, it is not necessary or required by law. There is sufficient evidence in the record

upon which we can determine if denial of the motion was the result of an abuse of

discretion.

{¶ 15} The hearing on the motion to withdraw was very thorough. Appellant

asserted that he was seeking to withdraw the pleas because he was “confused,

overwhelmed and unable to think clearly.” He asserts on appeal the threat of additional

felony charges pressed him to enter guilty pleas. Our review of the record indicates,

7. however, that the plea negotiations had been ongoing for some time and appellant did not

have to enter his plea on August 17, 2015. He was given time to discuss the matter with

counsel at that time and could have delayed his decision for several days. While the

threat of additional indictments may have motivated appellant to consider the plea

agreements, there is no evidence in the record that appellant was unduly burdened or

compelled to make a quick decision.

{¶ 16} Appellant also asserts he had “various” defenses and a claim of innocence.

The only defenses his attorney asserted were a claim of innocence in the first case and

attacking the credibility of a witness in the second case. In the first case, the officer

involved was able to identify appellant as the driver of the vehicle involved. While

appellant’s counsel specifically addressed the exculpatory statement of a co-defendant in

the second case, the state also had a witness who could identify appellant and other

evidence implicating appellant. The state also had an expert witness for the gang

participation charge.

{¶ 17} Appellant argued the competency of his counsel was questionable since

appellant had to file a pro se motion for investigatory funds on August 17, 2015.

Appointed counsel stated, however, that no further investigation was necessary and

counsel had not subpoenaed any witnesses to appear for trial. Appellant has not

identified what facts further investigation might confirm or reveal. Appellant also

asserted that the attorney-client relationship had broken down because appellant was

seeking to retain private counsel. The trial court gave appellant additional time to retain

8. new counsel, but appellant was unable to do so. Appellant had been forewarned by the

court that if private counsel was not retained by September 25, 2015, his appointed

counsel would remain counsel of record.

{¶ 18} The state argued it would be prejudiced by having to try the case due to the

nature of the gang connection and the difficulty in obtaining witnesses willing to testify

against appellant. Appellant argued that the two-day gap from the entry of the plea to

sentencing would not have altered any aspect of the state’s ability to prosecute the case.

However, we agree with the prosecution that there is prejudice where the prosecution

must reinstate its case that it believed was resolved and for a second time convince

witnesses to testify. An accomplice had already been sentenced and there was no longer

leverage the state could use to make the accomplice testify against appellant.

{¶ 19} After consideration of the facts presented at the hearing the trial court

denied the motion to withdraw the guilty pleas. In light of the facts presented, we cannot

find that appellant has shown the trial court abused its discretion. There was evidence

that appellant was given ample opportunity to consider his plea. Appellant failed to

present any justification for withdrawing the pleas other than a change of heart. The

court even allowed appellant time to retain counsel, but he failed to do so. Appellant

failed to present any significant defense that would justify withdrawal of the pleas. The

state would be prejudiced by the withdrawal of the pleas. Therefore, we find appellant’s

first assignment of error not well-taken.

9. {¶ 20} In his second assignment of error, appellant argues that clear and

convincing evidence supports reversing appellant’s consecutive sentences.

{¶ 21} Appellant jointly agreed to the imposition of a one-year sentence in the

failure to comply case and that it would run consecutive to the sentence imposed in the

second case. He acknowledges that he cannot challenge the first sentence. However, he

argues that the imposition of consecutive sentences for the robbery convictions in the

second case was not supported by the evidence.

{¶ 22} At the sentencing hearing, the trial court stated:

consecutive sentences are necessary to fulfill the purposes of 2929.11 and

2929.14 and * * * to protect the public from future crime, to punish the

offender and that they’re not disproportionate to the seriousness of the

offender’s conduct and the danger offender poses. The court further finds

that the harm caused was great or unusual, that no single prison term is

adequate and the defendant’s criminal history requires consecutive

sentences.

{¶ 23} In the sentencing judgment, the trial court found consecutive six-year terms

of imprisonment were:

necessary to protect the public from future crime or to punish the offender

and are not disproportionate to the seriousness of the offender’s conduct

and to the danger the offender poses to the public. The court further finds

the harm caused was great or unusual such that no single prison term is

10. adequate, and the defendant’s criminal history demonstrates that

consecutive sentences are necessary to protect the public, * * *.

{¶ 24} Appellant argues the trial court did not link any of these findings to the

facts in evidence. The sentencing court was not required to do so. State v. Bonnell,

,

,

, paragraph one of the syllabus.

However, in our review of the sentence, we can reverse a sentence imposing consecutive

sentences if we find by clear and convincing evidence that the record does not support the

trial court’s statutory findings. R.C. 2953.08(G)(2)(a); State v. Belew,

,

,

(Lanzinger, J., dissenting); State v. Jury, 6th

Dist. Erie No. E-14-100,

; State v. Kay, 2d Dist. Montgomery No.

26344,

. Clear and convincing evidence “is more than a mere

‘preponderance of the evidence,’ but not to the extent of such certainty as is required

‘beyond a reasonable doubt’ in criminal cases, and which will produce in the mind of the

trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v.

Ledford,

,

(1954), paragraph three of the syllabus.

{¶ 25} Appellant argues that the finding of “great or unusual harm,” is

unsupported by the record because a robbery is not “unusual” and there was no “great

harm” caused. Appellant did not have a gun, no person was physically harmed, and there

was no property damage. Furthermore, because the court did not impose maximum,

concurrent prison terms, the court must not have considered the offenses as causing great

11. or unusual harm. He also contends consecutive sentences were also unnecessary to

punish appellant.

{¶ 26} Before imposing consecutive sentences, the trial court must find that

consecutive sentences are “necessary to protect the public from future crime or to punish

the offender and that consecutive sentences are not disproportionate to the seriousness of

the offender’s conduct and to the danger the offender poses to the public,” and that one of

the circumstances listed at R.C. 2929.14(C)(4)(a), (b), (c) existed. R.C. 2929.14(C)(4).

In the case before us, the court found both subsections (b) and (c) existed:

(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.

{¶ 27} There must be actual evidence of, not the potential for, “great or unusual”

harm in evidence to support the finding. State v. Eager, 3d Dist. Henry No. 7-15-02,

(Rogers, P.J., dissenting); State v. Hale, 3d Dist. No. 9-13-17,

,

, ¶ 45 (Rogers, J., concurring in part and dissenting in part);

State v. Bruce, 4th Dist. Washington No. 02CA51,

, ¶ 20 (applying R.C.

12. 2929.14(E)(4), effective April 7, 2003, predecessor to R.C. 2929.14(C)(4)). However,

when a guilty plea is involved, there are no facts in evidence and the determination must

be derived from the statement of what facts the prosecution would have proven if the case

had gone to trial.

{¶ 28} At the sentencing hearing, the prosecution sought a substantial sentence for

the robbery and criminal gang convictions. The state had evidence appellant had

previously admitted to being a member of a gang while in detention as a juvenile for

aggravated robbery, which was also the result of gang activity. The state emphasized the

gang connection was significant because it was difficult to prosecute appellant when

other gang members would assist appellant by intimidating witnesses. Because the

crimes occurred in the neighborhood where the gang still operates, witnesses were

reluctant to testify.

{¶ 29} Therefore, we find that there was evidence upon which the court have

concluded that the offenses in this case caused great and unusual harm because of the

gang connection and a single term would not adequately reflect the seriousness of

appellant’s conduct. Accord, State v. Oliver, 7th Dist. Mahoning No. 12 MA 212, 2015-

Ohio-2684, ¶ 37. Therefore, we find appellant’s second assignment of error not well-

taken.

13. {¶ 30} Having found the trial court did not commit error prejudicial to appellant

and that substantial justice has been done, the judgment of the Lucas County Court of

Common Pleas is affirmed. Appellant is ordered to pay the costs of this appeal pursuant

to App.R. 24.

Judgment affirmed.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Mark L. Pietrykowski, J. _______________________________ JUDGE Arlene Singer, J. _______________________________ James D. Jensen, P.J. JUDGE CONCUR. _______________________________ JUDGE

This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.sconet.state.oh.us/rod/newpdf/?source=6.

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