STATE OF OHIO v. QUASHAUN MOORE

On December 12, 2018, a Cuyahoga County Grand Jury indicted

Moore on five counts in Case No. CR-18-635068-E (“635068”) — one count of

engaging in a pattern of corrupt activity in violation of R.C. 2923.32(A)(1) and four

counts of receiving stolen motor vehicles in violation of R.C. 2913.51(A) — for crimes

committed between July 18, 2018 and October 30, 2018.

On January 11, 2019, a Cuyahoga County Grand Jury indicted Moore

on two counts in Case No. CR-19-636198-C (“636198”) — one count of aggravated

robbery in violation of R.C. 2911.01(A)(1) with one-year and three-year firearm

specifications and one count of having weapons while under disability in violation

of R.C. 2923.13(A)(2). The charges arose out of an August 6, 2018 incident in which

Moore and two codefendants robbed a victim at gunpoint while he was in the retail

store of a gas station. A codefendant pulled out a gun and pointed it at the victim as

Moore tackled the victim and took him to the ground. While Moore was struggling

with the victim on the ground, one codefendant kicked the victim and another

codefendant took a firearm from the victim, which he gave to Moore after Moore got

up and exited the store with the codefendants.1

On March 20, 2019, a Cuyahoga County Grand Jury indicted Moore

on five counts in Case No. CR-19-638207-A (“638207”) — one count of felonious

assault of a police officer in violation of R.C. 2903.11(A)(1); two counts of assault of

a police officer in violation of R.C. 2903.13(A); one count of obstructing official

business in violation of R.C. 2921.31(A) and one count of resisting arrest in violation

of R.C. 2921.33(B). The charges arose out of March 15, 2019 traffic stop involving a

vehicle that was travelling without lights. A police officer recognized Moore, who

was in the front passenger seat, as having an outstanding arrest warrant in

connection with the August 2018 aggravated robbery, and asked him to step out of

the vehicle. When police officers attempted to place handcuffs on Moore and take

him into custody, Moore resisted. In the confrontation that followed, one of the

officers sustained a deep cut to his left eye that bled heavily, requiring medical

treatment and resulting in permanent scarring. It was only after Moore was tasered

that he became compliant.

Moore initially pled not guilty to all charges and was assigned counsel.

In early April 2019, he retained new counsel. On April 3, 2019, Moore’s new defense

counsel filed a motion in all three cases, requesting that Moore be referred to the

psychiatric clinic for evaluation, pursuant to R.C. 2945.371, to determine (1) whether

1 The victim was killed several hours later in a separate incident. Moore was not

charged in that incident.

he was competent to stand trial and (2) whether he was he eligible for referral to the

court’s mental health docket (“motion for competency evaluation”). In support of

the motion, defense counsel stated simply: “Defense counsel has reason to believe

that Defendant may not be competent to stand trial and may be eligible for referral

to the mental health docket.” No explanation was provided in the motion as to why

defense counsel believed Moore may not be competent to stand trial. On April 10,

2019, the trial court granted the motion in part, without objection by the state, and

Moore was referred to the court psychiatric clinic for a competency evaluation.

The competency evaluation never occurred.2 At a pretrial conference

on June 4, 2019, defense counsel made an oral motion to withdraw the motion for a

competency evaluation on the ground that he no longer believed there was a need

for it. As he explained to the court:

[DEFENSE COUNSEL]: There’s one other issue I’d like to

address, your Honor, if you don’t mind. Previously I had asked the

Court for a competency and a mental health evaluation. That was

shortly after I met Mr. Moore and he elicited symptoms that I thought

might raise the issue of his competency to stand trial.

Since that time I’ve spent some time with him; I’m confident that

he understands the nature of these proceedings and * * * I’m confident

that he’s able to assist in his defense and I’m going to ask the Court to

withdraw that previously filed motion that he be referred for

competency and for referral for mental health.

2 Based on statements made by the trial court and Moore at the June 4, 2019

pretrial conference, there appears to have been a dispute as to why the evaluation never

occurred. The trial judge stated that she had received a doctor’s note indicating that

Moore was scheduled for evaluation on May 13, 2019, but that he refused to be

transported to the court psychiatric clinic. Moore claimed that “[t]hey called me but they

never came and got me” for the evaluation.

The trial court granted defense counsel’s motion to withdraw the

motion for a competency evaluation. After several continuances, 636198 was set for

trial on July 10, 2019. Cases 638207 and 635068 were set for trial on September 3,

2019.

Plea Negotiations

On July 10, 2019 — the morning of trial in 636198 — the state set

forth, on the record, the terms of a “packaged” plea deal that the state had offered to

Moore to resolve all three cases. Moore informed the trial court that he did not

accept the state’s plea offer. The trial court advised Moore of the maximum potential

prison sentences Moore could receive on each count if he went to trial and was found

guilty. The trial court also explained to Moore how the state’s packaged plea offer

worked, i.e., that if Moore proceeded to trial in 636198, the plea offer would be

revoked as to all three cases. Moore indicated that he understood. After reviewing

this information with Moore, the trial judge asked Moore if he “need[ed] time to talk

to [his] lawyer about this.” Moore responded, “Yes,” and the trial judge took a recess

so that Moore could discuss the state’s plea offer with defense counsel.

After Moore spoke with counsel, the trial judge asked Moore what he

wanted to do. This exchange followed:

THE COURT: * * * So, Mr. Moore, now you had an opportunity

to talk to your lawyer about what you would like to do today. Your case

is set for trial today. What would you like to do?

THE DEFENDANT: It don’t matter at this point. I don’t care.

THE COURT: You have to say what you would like to do. You

can’t say it doesn’t matter, you don’t care. You have to respond to me.

Your one case is set for trial today, 636198. So if you would like to go

to trial today, you can, absolutely. * * *

[DEFENSE COUNSEL]: Your Honor, he has expressed some

dissatisfaction with my performance, so —

THE COURT: Well, [defense counsel] is your second lawyer.

Today is your trial date. I’ll go through everything that [defense

counsel] has done for you. He has filed a number of motions on your

behalf. There has been numerous pretrials. I believe there has been

numerous items of discovery that have been turned over on your behalf.

I think you may have even watched a video today? Did you see a video

today? You’re shaking your head yes?

THE DEFENDANT: Yes.

THE COURT: I don’t know however many — how many other

CDs or items of discovery have been turned over, but I know it’s been

voluminous because there have been so many pretrials. So you’re set

for trial today, and [defense counsel] is representing you. You retained

him. I don’t see any reason why he shouldn’t be representing you

today.

THE DEFENDANT: I don’t even know what is going on in the

case. I barely have — I have no discovery. Today was the first time I

saw some real discovery.

THE COURT: * * * Most of the discovery has been marked

counsel only. So that’s probably why you haven’t seen it. That’s what

the State has marked a number of items in discovery as counsel only,

which would mean you wouldn’t see it. Are there other videotapes?

[THE STATE]: Judge, the only other videotape pertaining to this

portion of Mr. Moore is his own video recorded statement.

* * *

THE COURT: Do you need to see your own videotaped

statement? Do you recall what you said in that?

THE DEFENDANT: No.

THE COURT: You don’t need to see that. So what else would

you like to see that you haven’t seen? You don’t need to see the

recorded statement.

THE DEFENDANT: I am only going to trial for the robbery case,

right?

THE COURT: That’s the only case set for trial today. But the

State has evaluated all of your cases for a potential plea. If you wanted

to resolve — you would only go to trial on one today, but if you wanted

to plead, you could plead on all 3 of them today. But if you go to trial

on the one, then there is no plea available on the other 2.

THE DEFENDANT: Go to trial on all of them, right?

THE COURT: You can go to trial on all of them if you want. It’s

up to you. It’s your choice.

Defense counsel then advised the court that Moore was asking him

“whether or not I can try for another plea deal.” Moore, defense counsel and the

state proceeded to engage in additional plea negotiations, ultimately reaching a

more favorable plea agreement that included additional terms Moore had

requested:

[DEFENSE COUNSEL]: So Mr. Moore is indicating to me if The

State of Ohio would be willing to dismiss 2 of the F4’s on receiving the

stolen properties, then he would be willing to enter into the plea

agreement, I guess.

* * *

[THE STATE]: * * * I’ll amend it to include all 4 of the victims

* * * in some way on 2 counts. I can do that.

* * *

THE COURT: So that’s in Case Number 635068. The State is

now indicating that they would dismiss 2 of those 4 receiving stolen

properties, which means that your potential prison sentence in that

case then would go from just receiving stolen properties from 6 to 3.

Take out 3 years. Instead of 9 as a potential, if you got the worst case

scenario, the worst case scenario would be 6. That’s in Case Number

635068. What would you like to do today?

THE DEFENDANT: I would like to take the plea deal.

The trial court then, once again, asked Moore whether he would like

“more time” to discuss the new plea offer with counsel. Moore indicated that he

would like to speak with counsel and the trial judge took another recess so that

Moore could discuss the new plea offer with counsel. After speaking with counsel,

Moore indicated that he was ready to proceed and accept the state’s new plea offer.

The state set forth the terms of the parties’ plea agreement on the

record and defense counsel confirmed that the state had accurately represented the

agreement. The trial court then proceeded with the plea colloquy.

The Plea Colloquy

In response to the trial judge’s preliminary questions, Moore

indicated that he was a 19-year-old United States citizen, that he could read and

write and that he had attended high school until his senior year but did not graduate.

Moore stated that he was not under the influence of any drugs, alcohol or medication

that would adversely affect his ability to understand what was happening and that

he did, in fact, understand what was happening in court that day.

The trial judge advised Moore of his constitutional rights and

confirmed that Moore understood the rights he would be waiving by entering his

guilty pleas. The trial judge then identified each count to which Moore would be

pleading guilty and outlined the potential penalties he faced on each of those counts.

Moore indicated that he understood.

Moore stated that no threats or promises had been made to him to

induce him to change his pleas other than what had been stated on the record in

open court, that he had received no promise of any particular sentence and that he

was satisfied with the services provided by defense counsel. The trial court found

that Moore understood the nature of the charges, the maximum penalties that could

be imposed and the effect of his guilty pleas and that Moore’s guilty pleas would be

made “knowingly, intelligently and voluntarily.”

Pursuant to the plea agreement, in 635068, Moore pled guilty to an

amended count of attempted engaging in a pattern of corrupt activity (reducing the

charge from a first-degree felony to a third-degree felony) and to two amended

counts of receiving stolen property.

In 636198, Moore pled guilty to one count of aggravated robbery as

charged with one-year and three-year firearm specifications, and in 638207, Moore

pled guilty to an amended count of attempted felonious assault on a police officer,

reducing the charge from a first-degree felony to a second-degree felony, and to one

count of resisting arrest. The trial court accepted his guilty pleas and, in accordance

with the plea agreement, dismissed the remaining counts.

After accepting Moore’s guilty pleas, the trial court referred Moore to

the Cuyahoga County Probation Department for a presentence investigation and

report (“PSI”) and to the court’s psychiatric clinic for a mitigation of penalty report.

The trial court scheduled a sentencing hearing for the following month.

On August 13, 2019, in 638207, Moore filed, pro se, a motion to

withdraw his guilty pleas. In the motion, Moore did not state a reason for seeking

to withdraw his guilty pleas. He simply recited the language of Crim.R. 32.1 and

stated that “defendant request[s] that the motion be granted in order to receive a

fair trial and a legitimate Pursuit of Justice.”

At the sentencing hearing on August 14, 2019, defense counsel

advised the court that Moore had informed him that he wanted to withdraw his

guilty pleas in all three cases. According to defense counsel, Moore told him that

“last week at some point,” he had sent a “letter” to the court requesting leave to

withdraw his guilty pleas, which was returned to him, and that he then sent another

“letter” to the court, which the court had not yet received. Defense counsel made an

oral motion to withdraw Moore’s guilty pleas in all three cases, joining in and

incorporating Moore’s pro se written motion. The trial court conducted a hearing

on the motion.

Defense counsel argued that Moore should be granted leave to

withdraw his guilty pleas because (1) Moore’s motion was filed within a reasonable

time, i.e., before sentencing, (2) Moore “could conceivably argue,” with respect to

the charges in 636198, that the video of the robbery does not “specifically identify”

him, (3) Moore may have had “a valid defense” to the charge of attempted felonious

assault of a police officer in 638207 because his conduct “constituted more of a

resisting arrest, more of a wrestling match than an [attempted] assault on a police

officer” and (4) although he believed that there were no errors in the Crim.R. 11

colloquy and that he competently represented Moore, fulfilling both his duties

“under the rules of ethics” and “to be a zealous advocate” on Moore’s behalf, Moore

“may disagree with that.”

Moore stated that on or around July 17, 2019, he had attempted to file

a motion to withdraw his guilty pleas but that it was returned to him because it

“didn’t have a heading on it.” He indicated that he corrected the error, “wrote it over

again” and sent the motion out a few days later for filing. Moore stated that he

believed he was denied effective assistance of counsel because defense counsel

“made me fear my consequences to make me say I was guilty so I receive a lesser

sentence.” Moore claimed that he did not recall stating, at the change-of-plea

hearing, that he had been satisfied with the services provided by defense counsel.

The trial judge asserted that it was “never brought to my attention

that you were having issues with your lawyer.” Moore disputed this and claimed

that he had, in fact, raised his dissatisfaction with counsel’s performance during the

July 10, 2019 hearing. The trial judge indicated that she did not have the transcript

of the July 10, 2019 hearing and Moore did not submit provide a copy of the

transcript to the trial court in support of his motion.

After hearing from Moore, defense counsel and the state, and

confirming that Moore had no additional evidence or arguments he wished to

submit in support of his motion, the trial court denied Moore’s motion to withdraw

his guilty pleas, explaining its reasoning as follows:

So * * * Criminal Rule 32.1, permits a defendant to file a

presentence motion to withdraw his plea. Although a pretrial motion

to withdraw the guilty plea is generally to be freely allowed and treated

with — treated with liberality by the trial court, the decision to grant or

deny such a motion is, nevertheless, within the sound discretion of the

trial court.

Moreover, a defendant who enters a guilty plea has no right to

withdraw it. To prevail on a motion to withdraw a guilty plea, a

defendant must provide a reasonable and legitimate reason for

withdrawing his guilty plea. * * * [D]etermining whether the

defendant’s reason is reasonable and legitimate also lies within the trial

court’s sound discretion.

And the trial court does not abuse its discretion in denying a

motion to withdraw a guilty plea when the following three elements are

present: One, the defendant was represented by competent counsel.

Two, the trial court provided the defendant with a full hearing before

entering the guilty plea. And three, the trial court provided the

defendant with a full hearing on the motion to withdraw his guilty plea

and considered the defendant’s arguments in support of his motion to

withdraw his guilty plea.

So we are here today on a full hearing on the motion to withdraw

the plea, which is why I just asked if there was any further — anything

further that the defendant would like to provide in support of his

motion. And I’d also like to indicate that the motion is a pro se motion

to withdraw his plea. * * *

Now as I said earlier, I do not have a copy of the transcript,

although my recollection of the plea was that the defendant indicated

— or never indicated that he was not satisfied with his lawyer, nor

indicated that he did not want to enter into a plea. And as I said, I don’t

have a copy of that transcript, but I don’t recall any issues or any

hesitation upon the defendant in going forward with the plea.



* * *

I believe that * * * Mr. Moore is represented by highly competent

counsel.

* * *

Also in looking at the factors that the court must consider, and

obviously, as I’ve already stated, I’m giving a full hearing on this. * * *

And as I have stated, I don’t have a copy of the transcript. However, I

do recall the defendant never stating that he was not satisfied with his

counsel, that there were issues regarding him taking a plea or any

hesitation with him in taking a plea. So there was a full hearing.

And we’re here on a full hearing today on his motion to withdraw

the plea.

And that was pursuant to Criminal Rule 11 when the defendant

was afforded a full hearing prior to taking a plea.

So based on that, I don’t believe that the defendant has satisfied

his burden in having this court permit him to withdraw his pleas. So I

am going to deny your motion.

The trial court then proceeded with the sentencing hearing. At the

sentencing hearing, Moore acknowledged what he had done, apologized to the

victims and his family for his actions and extended prayers to the police officer he

had harmed and the family of the victim of the aggravated robbery. With respect to

the robbery, however, he asserted that he was not the only person at fault in the

situation, explaining that the robbery was in response to a prior altercation with the

victim:

You have to see it from both sides. It wasn’t just like going in,

just attacking a person if you didn’t do nothing. He allegedly had a gun

on him. He robbed me for a punk $20, $20 two days before. He kept

pulling a gun on me every time I went to the store. * * *

And this time I caught him. I’m not saying it was a good thing.

I’m not saying it was the best thing to do. It was better than me pulling

out a gun and shooting him. * * *

I don’t think I’m innocent. I don’t think I should get a slap on the

wrist because I know what I did. But you should know what your son

was doing, too. He wasn’t just all goody two shoes. Do you know what

I’m saying? * * * But I did wrong. So I can’t say I didn’t do.

After considering the PSI and mitigation of penalty report, viewing

videos of defendant’s conduct related to 636198 (the aggravated robbery case) and

638207 (the case involving the attempted felonious assault of a police officer and

resisting arrest), photographs related to the officer’s injuries in 638207 and hearing

from the state, the mother of the aggravated robbery victim, defense counsel and

Moore, the trial court sentenced Moore to an aggregate prison term of 18 years as

follows:

● In 635068, the trial court sentenced Moore to a total of three

years in prison: three years on the attempted engaging in a

pattern of corrupt activity count and 18 months on each of counts

of receiving stolen property, to be served concurrently with each

other but consecutively to the sentences imposed in 636198 and

638207.



● In 636198, the trial court merged the two firearm specifications

for sentencing and sentenced Moore to a total of eight years in

prison: three years on the firearm specification, which was to be

served prior to and consecutive to a five-year sentence on the

aggravated robbery count, to be served consecutively to the

sentences imposed in 635068 and 638207.



● In 638207, the trial court merged the attempted felonious

assault of a police officer count and resisting arrest count for

purposes of sentencing and the state elected to sentence Moore

on the attempted felonious assault count. The trial court

sentenced Moore to seven years in prison on the attempted

felonious assault count, to be served consecutively to the

sentences imposed in 635068 and 636198.

At the sentencing hearing, the trial court made findings in support of

the imposition of consecutive sentences and set forth these findings in its sentencing

journal entries in each of the cases as follows:

The court imposes prison terms consecutively finding that consecutive

service is necessary to protect the public from future crime or to punish

defendant; that the consecutive sentences are not disproportionate to

the seriousness of defendant’s conduct and to the danger defendant

poses to the public; and that, at least two of the multiple offenses were

committed in this case as part of one or more courses of conduct, and

the harm caused by said multiple offenses 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

defendant’s conduct, or defendant’s history of criminal conduct

demonstrates that consecutive sentences are necessary to protect the

public from future crime by defendant.



Moore appealed, raising four assignments of error for review:

First Assignment of Error: Trial counsel was ineffective when it

withdrew appellant’s pretrial motion for competency and mental

health evaluation.

Second Assignment of Error: The trial court committed reversible

error when it failed to hold a competency hearing prior to appellant

being required to go forward with trial and then prior to accepting his

guilty plea.



Third Assignment of Error: The trial court erred and abused its

discretion when it denied appellant’s pre-sentence motion to withdraw

his guilty plea.

Fourth Assignment of Error: The trial court erred when it failed to

make the necessary findings required prior to imposing consecutive

sentences on the oral record at the time of sentencing and consecutive

sentences are not supported by the record.

Law and Analysis

Failure to Hold Competency Hearing Prior to Accepting Guilty

Pleas

Moore’s first and second assignments of error are interrelated. For

ease of discussion, we address his second assignment of error first.

In his second assignment of error, Moore contends that the trial court

erred in failing to hold a competency hearing, pursuant to R.C. 2945.37(B), prior to

accepting his guilty pleas. Moore contends that because defense counsel raised the

issue of his competency before trial the trial court was required to hold a hearing on

his competency before proceeding to trial or accepting his guilty pleas. Moore also

contends that defense counsel’s withdrawal of his motion for a competency

evaluation did not relieve the court of its obligation to conduct a competency

hearing.

The conviction of a defendant who is not competent to enter a plea

violates due process of law. State v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391,

819 N.E.2d 215, ¶ 155, citing Drope v. Missouri, 420 U.S. 162, 171, 95 S.Ct. 896, 43

L.Ed.2d 103 (1975) (“It has long been accepted that a person [who] lacks the capacity

to understand the nature and object of the proceedings against him, to consult with

counsel, and to assist in preparing his defense may not be subjected to a trial.”), and

State v. Berry, 72 Ohio St.3d 354, 359, 650 N.E.2d 433 (1995) (“Fundamental

principles of due process require that a criminal defendant who is legally

incompetent shall not be subjected to trial.”). The competence required to enter a

guilty plea is the same as the competence required to stand trial. State v. Minifee,

8th Dist. Cuyahoga No. 108331, 2019-Ohio-4464, ¶ 12, citing State v. Mink, 101 Ohio

St.3d 350, 2004-Ohio-1580, 805 N.E.2d 1064, ¶ 57; State v. Montgomery, 148 Ohio

St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, ¶ 56. The defendant must have

“‘sufficient present ability to consult with his lawyer with a reasonable degree of

rational understanding’” and must have “‘a rational as well as factual understanding

of the proceedings against him.’” Montgomery at ¶ 56, quoting Dusky v. United

States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960); Minifee at ¶ 12.

R.C. 2945.37 and 2945.371 set forth procedures for a trial court to

follow in conducting competency evaluations and making competency

determinations. A defendant is presumed to be competent unless it is demonstrated

by a preponderance of the evidence that the defendant is incapable of understanding

the nature and objective of the proceedings against him or her or of assisting in his

or her defense. R.C. 2945.37(G); see also State v. Were, 118 Ohio St.3d 448, 2008-

Ohio-2762, 890 N.E.2d 263, ¶ 45 (“A defendant is presumed to be competent to

stand trial, and the burden is on the defendant to prove by a preponderance of the

evidence that he is not competent.”); State v. Collins, 4th Dist. Lawrence No.

18CA11, 2019-Ohio-3428, ¶ 8 (“‘[I]n the absence of evidence to the contrary, a

criminal defendant is rebuttably presumed competent to enter a guilty plea.’”),

quoting State v. Pigge, 4th Dist. Ross No. 09CA3136, 2010-Ohio-6541, ¶ 28.

Pursuant to R.C. 2945.37(B), if the court, prosecutor or defense raises

the issue of a defendant’s competence to stand trial before trial has commenced, “the

court shall hold a hearing on the issue.” R.C. 2945.371(A) provides that “[i]f the

issue of a defendant’s competence to stand trial is raised * * * the court may order

one or more evaluations of the defendant’s present mental condition.” The court

must hold a competency hearing within 30 days after the competency issue is raised,

unless the defendant has been referred for evaluation, in which case, the court shall

conduct the hearing within ten days after the filing of the report of the evaluation.

R.C. 2945.37(C). A hearing may be continued for good cause. Id.

The right to a competency hearing is constitutionally guaranteed only

where the record contains “sufficient indicia of incompetence,” “such that an inquiry

into the defendant’s competence is necessary to ensure the defendant’s right to a fair

trial.” Berry, 72 Ohio St.3d at 359, 650 N.E.2d 433; see also Minifee, 2019-Ohio4464, at ¶ 15.

In this case, defense counsel requested a competency evaluation in

April 2019 shortly after he was retained by Moore. No request was specifically made

for a competency hearing. The trial court granted defense counsel’s motion for a

competency evaluation, but it never occurred. Two months later, after spending

time with Moore, defense counsel withdrew the request, indicating that it was now

clear to defense counsel that Moore understood the nature and objective of the

proceedings and was able to assist in his defense. After withdrawing the request,

the issue of Moore’s mental state was not raised again until his appeal.

Although R.C. 2945.37(B) states the court “shall” hold a competency

hearing if a competency issue is raised before trial, as this court has recognized, a

competency issue “can be waived” and “a hearing is not required in all situations.”

Minifee, 2019-Ohio-4464, at ¶ 14; State v. Smith, 8th Dist. Cuyahoga No. 95505,

2011-Ohio-2400, ¶ 5. A competency hearing is required only where a competency

issue is “raised and maintained.” (Emphasis added.) Minifee at ¶ 14; Smith at ¶ 5.

Furthermore, even where a request for a competency evaluation is

properly raised and maintained, “‘the failure to hold a mandatory competency

hearing is harmless error where the record fails to reveal sufficient indicia of

incompetency.’” State v. McNeir, 8th Dist. Cuyahoga No. 105417, 2018-Ohio-91,

¶ 24, 27, quoting State v. Bock, 28 Ohio St.3d 108, 110, 502 N.E.2d 1016 (1986).

In this case, because the issue of Moore’s competency was not

maintained and there is nothing in the record to suggest that Moore exhibited any

outward signs of incompetency, the trial court did not err in failing to hold a

competency hearing. See, e.g., McNeir at ¶ 26 (where defense counsel “disputed

[defendant’s] incompetency allegation by detailing their previous meetings with

him” and, after speaking to his attorneys, defendant did not maintain his request for

a competency evaluation, “informing the court that he was actually upset with the

plea bargain and was trying to get a better deal,” the trial court was not required to

hold a competency hearing because the issue as to defendant’s competency “was not

properly maintained and, therefore, not properly before the trial court”).

Moore contends that the mitigation of penalty report prepared for use

in his sentencing hearing revealed “mental health issues” that should have been

reviewed by a mental health professional to determine his competency and that

Moore “was also possibly denied necessary medications which could have assisted

him in aiding in his own defense and making proper legal decisions.”

The mitigation of penalty report indicates that Moore had been placed

in “special education/learning disability classes” in middle school and high school,

that he had a history of substance abuse, including marijuana, cocaine, stimulants,

opioids and anxiolytics and that he likely suffered from an untreated depressive

disorder and drug dependence. However, simply because Moore may have suffered

from a mental disorder or a learning disability and may have benefited from

medication to treat his condition, does not mean he was not competent to enter a

guilty plea.

A trial court may not find a defendant incompetent to stand trial or

plead guilty solely because he suffers from a mental illness or a learning or

intellectual disability. State v. McMillan, 2017-Ohio-8872, 100 N.E.3d 1222, ¶ 29

(8th Dist.), citing State v. Calabrese, 8th Dist. Cuyahoga No. 104151, 2017-Ohio7316, ¶ 16. A defendant suffering from an emotional or mental disability or a

learning disability may still possess the ability to understand the charges and

proceedings against him or her and be able to assist in his or her defense. See, e.g.,

State v. Vrabel, 99 Ohio St.3d 184, 2003-Ohio-3193, 790 N.E.2d 303, ¶ 29

(“‘Incompetency must not be equated with mere mental or emotional instability or

even with outright insanity. A defendant may be emotionally disturbed or even

psychotic and still be capable of understanding the charges against him and of

assisting his counsel.’”), quoting Bock, 28 Ohio St.3d at 110, 502 N.E.2d 1016 (1986);

State v. Hawkins, 8th Dist. Cuyahoga No. 108057, 2019-Ohio-4162, ¶ 17 (“‘[A]

defendant’s emotional or mental instability does not establish incompetence for the

purpose of negating a plea, which was otherwise voluntarily, knowingly, and

intelligently made.’”), quoting State v. Prettyman, 8th Dist. Cuyahoga No. 79291,

2002 Ohio App. LEXIS 1112, 4-5 (Mar. 14, 2002); State v. Walker, 8th Dist.

Cuyahoga No. 65794, 1994 Ohio App. LEXIS 4450, 5 (Sept. 29, 1994) (“A defendant

may be mentally unstable and still be capable of understanding the charges against

him and entering a plea in a knowing, intelligent, and voluntary manner.”); State v.

Swift, 86 Ohio App.3d 407, 411, 621 N.E.2d 513 (11th Dist.1993) (defendant

suffering from depression was competent to enter guilty plea). The test for

competency focuses entirely on the defendant’s ability to understand the meaning

of the proceedings against him and his ability to assist in his own defense, which can

be satisfied regardless of the defendant’s mental status or IQ. McMillan at ¶ 29.

The record contains no “indicia of incompetence” on the part of

Moore. There is nothing to suggest that any mental condition or learning disability

Moore may have had (or the consequences of any prior drug use or abuse) precluded

him from understanding the nature and objective of the proceedings against him, in

assisting in his defense or in otherwise entering knowing, intelligent and voluntary

guilty pleas.

To the contrary, the record is replete with evidence that Moore was

competent to enter and, in fact, entered knowing, intelligent and voluntary guilty

pleas. Our review of the transcript from the change-of-plea hearing shows that

Moore had an understanding of the criminal proceedings against him and was

assisting in his defense. During the months these cases were pending, the trial court

had numerous opportunities to observe and interact with Moore. The record reflects

that, throughout the proceedings, Moore asked reasonable, informed questions of

the trial judge and provided reasonable, informed responses to inquiries by the trial

judge that exhibited Moore’s understanding of the legal process, the charges against

him and the consequences of his guilty pleas.

Moore also actively participated in the plea negotiations, essentially

negotiating his own plea agreement. We find nothing in the transcript that suggests

Moore was experiencing any cognitive difficulties that impacted his understanding

of the nature and objective of the proceedings against him or that inhibited his

ability to assist in his defense at the time he entered his guilty pleas. There is no

indication that Moore was under the influence of any drugs at the time he entered

his guilty pleas and Moore specifically denied that he was under the influence of any

drugs, alcohol or medication that would adversely affect his ability to understand

what was happening or would affect his ability to enter into a plea at the time he

entered his guilty pleas. Accordingly, we find no reversible error in the trial court’s

failure to hold a competency hearing before accepting Moore’s guilty pleas. Cf. State

v. Antill, 7th Dist. Belmont No. 12 BE 3, 2013-Ohio-2265, ¶ 49-50 (trial court did

not err in failing to hold a competency hearing because defendant never specifically

requested a competency hearing and, after filing a motion for a psychological

evaluation, he did not raise the issue of his mental state again until his appeal); State

v. Almashni, 8th Dist. Cuyahoga No. 92237, 2010-Ohio-898, ¶ 11-14 (any error in

the trial court’s failure to hold a competency hearing after a competency evaluation

had been ordered was harmless where record did not contain sufficient indicia of

incompetence).

Moore’s second assignment of error is overruled.

Ineffective Assistance of Counsel

In Moore’s first assignment of error, he argues that he was denied

effective assistance of counsel due to defense counsel’s withdrawal of his pretrial

motion for a competency evaluation. Moore contends that the mitigation of penalty

report prepared for use in his sentencing hearing revealed “mental health issues”

that should have been reviewed by a mental health professional to determine his

competency. He further contends that he was prejudiced by defense counsel’s

withdrawal of the motion because (1) there is “a possibility” that Moore was not

competent and, therefore, did enter his guilty pleas knowingly, intelligently and

voluntarily, (2) that Moore was “possibly denied necessary medications” that “could

have assisted him in aiding in his own defense and making proper legal decisions”

and (3) that Moore was denied “a possible opportunity to enter the mental health

court.”

A criminal defendant has the right to effective assistance of counsel.

Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). The Sixth Amendment to the United States Constitution guarantees a

defendant the effective assistance of counsel at all “‘“critical stages of a criminal

proceeding,” including when he enters a guilty plea.’” State v. Romero, 156 Ohio

St.3d 468, 2019-Ohio-1839, 129 N.E.3d 404, ¶ 14, quoting Lee v. United States,

__U.S.__, 137 S.Ct. 1958, 1964, 198 L.Ed.2d 476 (2017), quoting Lafler v. Cooper,

566 U.S. 156, 165, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012); Hill v. Lockhart, 474 U.S.

52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985).

As a general matter, to establish ineffective assistance of counsel, a

defendant must demonstrate: (1) deficient performance by counsel, i.e., that

counsel’s performance fell below an objective standard of reasonable

representation, and (2) that counsel’s errors prejudiced the defendant, i.e., a

reasonable probability that but for counsel’s errors, the outcome would have been

different. Strickland at 687-688, 694; State v. Bradley, 42 Ohio St.3d 136, 538

N.E.2d 373 (1989), paragraphs two and three of the syllabus; see also State v. Ford,

158 Ohio St.3d 139, 2019-Ohio-4539, 140 N.E.3d 616, ¶ 391 (“Reversal of a

conviction for ineffective assistance of counsel requires that the defendant show,

first, that counsel’s performance was deficient and second, that the deficient

performance prejudiced the defendant so as to deprive the defendant of a fair trial.”).

“Reasonable probability” is “probability sufficient to undermine confidence in the

outcome.” Strickland at 694.

However, a claim of ineffective assistance of counsel is waived by a

guilty plea, except to the extent that the ineffective assistance of counsel caused the

defendant’s plea to be less than knowing, intelligent and voluntary. State v.

Williams, 8th Dist. Cuyahoga No. 100459, 2014-Ohio-3415, ¶ 11, citing State v.

Spates, 64 Ohio St.3d 269, 272, 595 N.E.2d 351 (1992). Accordingly, where a

defendant has entered a guilty plea, the defendant can prevail on an ineffective

assistance of counsel claim only by demonstrating that there is a reasonable

probability that, but for counsel’s deficient performance, he would not have pled

guilty to the offenses at issue and would have insisted on going to trial. State v.

Vinson, 2016-Ohio-7604, 73 N.E.3d 1025, ¶ 30 (8th Dist.); State v. Xie, 62 Ohio

St.3d 521, 524, 584 N.E.2d 715 (1992); Hill, 474 U.S. at 59, 106 S.Ct. 366, 88 L.Ed.2d

203.

In Ohio, every properly licensed attorney is presumed to be

competent. State v. Black, 8th Dist. Cuyahoga No. 108001, 2019-Ohio-4977, ¶ 35,

citing State v. Smith, 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). Thus, in

evaluating counsel’s performance on a claim of ineffective assistance of counsel, the

court must give great deference to counsel’s performance and “indulge a strong

presumption” that counsel’s performance “falls within the wide range of reasonable

professional assistance.” Strickland at 689; see also State v. Powell, 2019-Ohio4345, 134 N.E.3d 1270, ¶ 69 (8th Dist.) (“‘A reviewing court will strongly presume

that counsel rendered adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment.’”), quoting State v. Pawlak, 8th Dist.

Cuyahoga No. 99555, 2014-Ohio-2175, ¶ 69.3

3 Further, counsel has an ethical obligation not to assert an issue unless there is a

good faith basis for doing so. See Prof.Cond.R. 3.1 (“A lawyer shall not bring or defend a

proceeding, or assert or controvert an issue in a proceeding, unless there is a basis in law

and fact for doing so that is not frivolous, which includes a good faith argument for an

extension, modification, or reversal of existing law.”); cf. State v. Anderson, 8th Dist.

As detailed above, there is no evidence in the record from which it

could be found that Moore was incompetent at the time he entered his guilty pleas.

Moore has not shown that defense counsel was deficient in withdrawing his motion

for a competency evaluation or that he could have possibly been prejudiced by

defense counsel’s withdrawal of the motion. See, e.g., Hawkins, 2019-Ohio-4162, at

¶ 30-32 (“Absent indicia of incompetence,” defendant could establish that defense

counsel’s failure to request a competency hearing fell below an objective standard of

reasonable representation or would create a reasonable probability of a different

outcome; defendant’s argument that a competency hearing would have resulted in

a transfer of his case to the mental health docket and would have led to a different

sentence than the one imposed was “pure speculation” that could not support

ineffective assistance of counsel claim).

Moore’s first assignment of error is overruled.

Denial of Presentence Motion to Withdraw Guilty Pleas

In his third assignment of error, Moore contends that the trial court

erred and abused its discretion by denying his presentence motion to withdraw his

guilty pleas. Moore claims that due to his “youth and inexperience with the adult

criminal justice system, his learning disability, drug dependency, and mental health

diagnosis,” he “entered the guilty pleas against his will and with little understanding



Cuyahoga No. 103490, 2016-Ohio-3323, ¶ 2 (observing that counsel’s representation to

the court that an argument cannot be made in good faith is entitled to deference). There

is nothing in the record to suggest that Moore opposed defense counsel’s withdrawal of

the motion.

as to what was occurring or what options/defenses he might have had,” that he had

“a true lack of knowledge regarding the evidence and the application of facts to law

in regard to his guilt or innocence” and that the trial court abused its discretion in

denying his motion to withdraw his guilty pleas without giving “full and fair

consideration” to these issues.

We review a trial court’s ruling on a presentence motion to withdraw

a guilty plea for an abuse of discretion. Xie, 62 Ohio St.3d at 526, 584 N.E.2d 715.

Unless it is shown that the trial court acted unreasonably, arbitrarily or

unconscionably in denying a defendant’s motion to withdraw a plea, there is no

abuse of discretion and the trial court’s decision must be affirmed. See, e.g., State

v. Musleh, 8th Dist. Cuyahoga No. 105305, 2017-Ohio-8166, ¶ 36, citing Blakemore

v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983), and Xie at 527.

In general, “a presentence motion to withdraw a guilty plea should be

freely and liberally granted.” Xie at 527. However, even before the trial court

imposes a sentence, a defendant does not have an “absolute right” to withdraw a

plea. Id. at paragraph one of the syllabus. Before ruling on a presentence motion to

withdraw a plea, the trial court must conduct a hearing to determine whether there

is a reasonable and legitimate basis for withdrawal of the plea. Id. At the hearing,

the defendant is entitled to “‘full and fair consideration’” of his or her motion. State

v. Hines, 8th Dist. Cuyahoga No. 108326, 2020-Ohio-663, ¶ 8, quoting State v.

Peterseim, 68 Ohio App.2d 211, 428 N.E.2d 863 (8th Dist.1980). It is “‘within the

sound discretion of the trial court’” to determine whether circumstances exist that

warrant withdrawal of the guilty plea. Xie at 526, quoting Barker v. United States,

579 F.2d 1219, 1223 (10th Cir.1978). A mere “change of heart” is not enough to

justify withdrawal of a guilty plea. See, e.g., Musleh at ¶ 35; State v. Shaw, 8th Dist.

Cuyahoga No. 102802, 2016-Ohio-923, ¶ 6.

Ohio courts have identified a list of nonexhaustive factors for trial

courts to consider when deciding a presentence motion to withdraw a plea. See, e.g.,

State v. Walcot, 8th Dist. Cuyahoga No. 99477, 2013-Ohio-4041, ¶ 19. Those factors

include: (1) whether the motion was made in a reasonable time; (2) whether the

motion states specific reasons for withdrawal; (3) whether the defendant

understood the nature of the charges and the possible penalties, (4) whether the

defendant was perhaps not guilty or had a complete defense and (5) whether the

state would be prejudiced by the withdrawal of the plea. Hines at ¶ 10; State v.

Bradley, 8th Dist. Cuyahoga No. 108294, 2020-Ohio-30, ¶ 4; State v. Heisa, 8th

Dist. Cuyahoga No. 101877, 2015-Ohio-2269, ¶ 19.

A trial court does not abuse its discretion in denying a presentence

motion to withdraw a guilty plea where: (1) the defendant is represented by highly

competent counsel, (2) the defendant was afforded a full hearing, pursuant to

Crim.R. 11, before he or she entered his plea, (3) after the motion to withdraw is

filed, the defendant is given a complete and impartial hearing on the motion and (4)

the record reveals that the court gave full and fair consideration to the plea

withdrawal request (the “Peterseim factors”). Peterseim, 68 Ohio App.2d 211, 428

N.E.2d 863, at paragraph three of the syllabus; see also State v. Armstrong, 8th

Dist. Cuyahoga No. 103088, 2016-Ohio-2627, ¶ 17. On the record before us, we

cannot say that the trial court abused its discretion in denying Moore’s motion to

withdraw his guilty pleas.

As an initial matter, we note that although Moore argues on appeal

that the trial court abused its discretion in denying Moore’s motion without “fully

and fairly” considering: (1) Moore’s alleged lack of understanding “as to what was

occurring or what options/defenses he might have had” and (2) his “mental health

issues,” neither of these was argued as a basis for withdrawal of Moore’s guilty pleas

below. As such, they cannot support reversal of the trial court’s decision here. “‘[A]

party cannot present new arguments for the first time on appeal that were not raised

below, and a trial court cannot be said to have abused its discretion by failing to

consider arguments that were never presented to it.’” State v. Luton, 8th Dist.

Cuyahoga No. 106754, 2018-Ohio-4708, ¶ 65, quoting State v. D.K., 8th Dist.

Cuyahoga No. 106539, 2018-Ohio-2522, ¶ 17; see also State v. Pratts, 8th Dist.

Cuyahoga No. 104235, 2016-Ohio-8053, ¶ 43 (“A party may not raise for the first

time on appeal an argument that could have been raised below.”).

As detailed above, Moore’s pro se motion — filed only in 638207 one

day before the sentencing hearing and five weeks after Moore had entered his guilty

pleas — did not identify any specific reason for seeking to withdraw his guilty pleas.

Moore argued at the hearing that he should be permitted to withdraw his guilty pleas

because “[defense counsel] made me fear my consequences to make me say I was

guilty so I receive a lesser sentence.” In arguing his oral motion at the sentencing

hearing, defense counsel focused on the fact that, with respect to the charges in

636198, Moore “could conceivably argue” that the video of the robbery did not

“specifically identify” him and that, with respect to the charges in 638207, Moore

may have had “a valid defense” to the charge of attempted felonious assault of a

police officer because his conduct “constituted more of a resisting arrest, more of a

wrestling match” than attempted felonious assault on a police officer.

Turning first to Moore’s claim that his guilty pleas were the product

of defense counsel “ma[king]” him “fear [the] consequences” of going to trial, we

note that the uncertainty associated with going to trial and the “fear” of being found

guilty of, and sentenced on, more offenses (or more serious offenses) than the

defendant would have been convicted of had he or she accepted a plea agreement is

a motivation that underlies virtually all guilty pleas. The fact that a defendant may

have felt “pressured” to enter a plea is not a sufficient basis upon which to withdraw

a plea in the absence of evidence of coercion. See, e.g., Musleh, 2017-Ohio-8166, at

¶ 42, citing Shaw, 2016-Ohio-923, at ¶ 6-9. Defense counsel’s expression of opinion

regarding the strength of the state’s case, his or her explanation of the worst case

scenario or other possible sentencing scenarios if the defendant were to go to trial

and lose and defense counsel’s recommendation regarding whether to accept a plea

deal “does not amount to coercion” or duress sufficient to justify withdrawal of a

guilty plea; “it is merely evidence of * * * defense counsel doing his job.” Walcot,

2013-Ohio-4041, at ¶ 24; see also State v. Martre, 3d Dist. Allen No. 1-18-61, 2019-

Ohio-2072, ¶ 15 (“simply stating the projected outcome of a trial based upon the

evidence * * * is not necessarily duress”).

Further, the record contains nothing to support Moore’s assertion

that defense counsel pressured him to accept the state’s plea offer. To the contrary,

the record shows that Moore freely rejected the state’s initial plea offer and accepted

a different plea offer only after the state agreed to specific terms Moore requested.

Moore has not claimed that he was threatened in any way by defense counsel, that

he was promised anything he did not receive in exchange for his guilty pleas by

defense counsel or that defense counsel (or anyone else) provided him with

incomplete or inaccurate information with regard to the offenses with which he was

charged, the sentences for those offenses or the evidence in support of the state’s

case against him.

Although at the outset July 10, 2019 hearing, Moore appeared to be

upset and frustrated, stating that he did not “care” whether or not he went to trial

because he did not know what was going on in the case and had been given “no

discovery” aside from viewing a videotape of the robbery, the record reflects that this

issue was resolved by the time Moore entered his guilty pleas.

In response to Moore’s concerns, the trial court identified the actions

defense counsel had taken on Moore’s behalf, including filing numerous motions,

attending pretrial conferences and obtaining and reviewing voluminous discovery

materials. The trial court further explained that most of the discovery produced by

the state had been marked “counsel only” and, therefore, could not be provided to

Moore for review. Although the trial court advised Moore that he was entitled to

review his own recorded statement to police, Moore indicated that he did not need

to see it. After explaining to Moore his limited access to the discovery materials

produced by the state, the trial judge asked Moore, “What else would you like to see

that you haven’t seen?” Moore did not answer the trial judge. Instead, Moore

made inquiries regarding the case set for trial that day, then turned his attention

to state’s plea offer and the negotiation of a new plea deal that included specific

terms Moore had requested. When asked at the change-of-plea hearing whether he

was “satisfied with the services of [his] lawyer,” Moore responded unequivocally,

“Yes.”

Although Moore initially pled not guilty to the charges against him,

he has not claimed that he did not commit any of the charges to which he ultimately

pled guilty and has not shown that he had “evidence of a plausible defense” that

could have otherwise reasonably supported a not guilty verdict. Although defense

counsel argued below that the video recording of the robbery did not “specifically

identify” Moore, the record reflects that Moore admitted to police officers that he

was the person depicted in the video. Further, the fact that Moore’s conduct giving

rise to the charges in 638207 may have, in defense counsel’s view, “constituted more

of a resisting arrest, more of a wrestling match than an assault on a police officer,”

it would not have constituted “a valid defense” to an attempted felonious assault

charge. There is no evidence in the record that Moore ever contended that he was

not responsible for the injuries to the police officer.

Considering the Peterseim factors, we note that the trial court found

that Moore was represented by experienced, “highly competent” counsel based on

the trial judge’s prior experience with defense counsel in other trials and her

knowledge of defense counsel’s reputation and experience in criminal defense

matters generally, including handling “numerous appeals.” Moore has not

challenged defense counsel’s credentials on appeal.

The record reflects that Moore was afforded a full hearing, in

compliance with Crim.R. 11, before he entered his guilty pleas and that Moore

understood all of the charges against him and the possible penalties prior to entering

his guilty pleas. Moore does not dispute that the trial court’s plea colloquy fully

complied with Crim.R. 11.

The record further reflects that the trial court gave Moore a complete

and impartial hearing on his presentence motion to withdraw his guilty pleas, and

gave full and fair consideration to the arguments raised by Moore and defense

counsel in support of the motion. The trial court gave Moore and defense counsel

every opportunity to put forth all arguments and to submit all evidence they wished

to present in support of the motion before ruling on Moore’s motion to withdraw his

guilty pleas. Throughout the hearing, the trial judge repeatedly asked Moore and

defense counsel if there was “[a]nything else that you would like to say?,” if there

was “any further argument on behalf of the defendant” and “if there was anything

further that the defendant would like to provide in support of his motion?”

We acknowledge that there are cases in which this court and others

have held that the trial court abused its discretion in denying a presentence motion

to withdraw a guilty plea based, in part, on the principle that presentence motions

to withdraw a guilty plea should be freely and liberally granted. However, those

cases are readily distinguishable on their facts. In such cases, there is generally a

showing of a failure to comply with one or more of the Peterseim factors; a showing

of confusion, misinformation or misunderstanding regarding some material aspect

of the proceedings, plea or penalty on the part of the defendant; evidence to support

a claim of innocence of, or a defense to, the charges at issue; evidence of duress or

coercion beyond that associated with the stress of a looming trial and/or a showing

of a lack of communication, some other issue with defense counsel’s representation

of the defendant or a deficiency in the plea colloquy that calls into question the

knowing, intelligent and voluntary nature of the defendant’s guilty plea — none of

which is present here. Compare, e.g., Hines, 2020-Ohio-663, ¶ 6-19 (trial court

abused its discretion in denying defendant’s presentence motion to withdraw his

guilty plea where defendant took “immediate steps” to withdraw his plea, including

dismissing his original counsel, hiring new counsel, filing a motion to withdraw and

moving to postpone his sentencing; defendant filed an affidavit asserting his

innocence and the record was “at best” “unclear as to his innocence or guilt” and the

record showed confusion and a lack of understanding by defendant regarding his

plea, supporting his claim that he was “blindsided by the events of the change-ofplea hearing” due, in part, to a lack of communication with counsel); State v.

Shivers, 2016-Ohio-1378, 63 N.E.3d 517, ¶ 7-16 (8th Dist.) (trial court abused its

discretion in denying defendant’s presentence motion to withdraw his guilty plea

where the state failed to produce videotaped interviews in violation of Crim.R. 16(B),

precluding defendant from analyzing the statements he and a potential witness

made to police and “hampering [defendant’s] ability to enter an intelligent plea”);

State v. Worley, 8th Dist. Cuyahoga No. 95003, 2011-Ohio-1680, ¶ 29-36 (trial court

abused its discretion by failing to give full and fair consideration to defendant’s

motion to withdraw his guilty plea where defendant “was not granted a fair

opportunity to support the basis of his motion” and trial court’s decision was “based

on the court’s factual error relating to the pertinent procedural history” of the case);

State v. Lacey, 8th Dist. Cuyahoga No. 78448, 2001 Ohio App. LEXIS 3714, 4-8

(Aug. 23, 2001) (trial court abused its discretion in denying motion to withdraw

guilty plea where defendant had previously submitted an affidavit and a letter to the

judge detailing facts in support of her claim that defense counsel had forced her to

plead guilty and there was no indication in the record that the trial court considered

this claim or gave defendant or counsel an opportunity to present evidence, make a

statement or participate in the hearing on the motion). Moore has not cited a single

case in which a trial court was found to have abused its discretion in denying a

presentence motion to withdraw a guilty plea under circumstances similar to this

case.

We find no abuse of discretion in the trial court’s decision that the

circumstances of this case did not justify granting Moore’s motion to withdraw his

guilty pleas. The record supports the trial court’s conclusion that Moore failed to

demonstrate a legitimate and reasonable basis for withdrawing his guilty pleas.

Accordingly, Moore’s third assignment of error is overruled.

Imposition of Consecutive Sentences

In his fourth and final assignment of error, Moore contends that his

consecutive sentences should be vacated because they were “contrary to law” and

“not supported by the record.”

There are two ways a defendant can challenge consecutive sentences

on appeal. State v. Tidmore, 8th Dist. Cuyahoga No. 107369, 2019-Ohio-1529, ¶ 15;

State v. Johnson, 8th Dist. Cuyahoga No. 102449, 2016-Ohio-1536, ¶ 7. First, the

defendant can argue that consecutive sentences are contrary to law because the trial

court failed to make the findings required by R.C. 2929.14(C)(4). See R.C.

2953.08(G)(2)(b). Second, the defendant can argue that the record clearly and

convincingly does not support the findings made under R.C. 2929.14(C)(4). See R.C.

2953.08(G)(2)(a). Moore raises both arguments here.

To impose consecutive sentences, a trial court must find that (1)

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

punish the offender, (2) consecutive sentences are not disproportionate to the

seriousness of the offender’s conduct and to the danger the offender poses to the

public and (3) at least one of the following applies:

(a) The offender committed one or more of the multiple offenses while

the offender was awaiting trial or sentencing, was under a sanction

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the

Revised Code, or was under postrelease control for a prior offense.

(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.

R.C. 2929.14(C)(4).

The trial court must make the requisite findings in support of the

imposition of consecutive sentences at the sentencing hearing and incorporate those

findings into its sentencing journal entry. State v. Bonnell, 140 Ohio St.3d 209,

2014-Ohio-3177, 16 N.E.3d 659, syllabus.

Moore does not dispute that the trial court set forth the necessary

findings for the imposition of consecutive sentences both at the sentencing hearing

and in its sentencing journal entries. However, he contends that the trial court only

“recit[ed]” the “necessary ‘buzz’ words” and failed to “make” the required findings

for the imposition of consecutive sentences “on the oral record.” The record reflects

otherwise.

To make the requisite “findings” under the statute, “‘the [trial] court

must note that it engaged in the analysis’ and that it ‘has considered the statutory

criteria and specifie[d] which of the given bases warrants its decision.’” Id. at ¶ 26,

quoting State v. Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999). “[A]s

long as the reviewing court can discern that the trial court engaged in the correct

analysis and can determine that the record contains evidence to support the

findings, consecutive sentences should be upheld.” Id. at ¶ 29. When considering

whether the trial court has made the requisite findings, an appellate court must view

the trial court’s statements on the record “in their entirety.” See, e.g., State v.

Blevins, 2017-Ohio-4444, 93 N.E.3d 246, ¶ 21, 23, 25 (8th Dist.).

In this case, the trial court found at the sentencing hearing that (1)

consecutive sentences were necessary to protect the community from future crime

and to punish Moore, R.C. 2929.14(C)(4), (2) consecutive sentences were not

disproportionate to the seriousness of Moore’s conduct and to the danger he poses

to the public, id., (3) 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 Moore’s conduct, R.C. 2929.14(C)(4)(b), and (4) Moore’s “lengthy

criminal history” shows that consecutive sentences are necessary to protect the

public, R.C. 2929.14(C)(4)(c). The trial court’s consecutive sentence findings were

also incorporated in the sentencing journal entries for each case.

The transcript from the sentencing hearing shows that the trial court

made these findings after considering Moore’s lengthy history of committing crimes

of violence. The trial court detailed Moore’s extensive juvenile record, including:

delinquency adjudications for participating in a criminal gang or engaging in a

pattern of corrupt activity, kidnapping, felonious assault and aggravated riot in

2014; delinquency adjudications for burglary, receiving stolen property, theft,

criminal damaging or endangering and obstructing official business in 2017 and

delinquency adjudications for carrying a concealed weapon and receiving stolen

property in 2018 — along with Moore’s conduct in the three cases at issue, beginning

shortly after he turned 18. In reviewing Moore’s criminal history, the trial court

specifically noted its concern regarding Moore’s pattern of increasingly violent

criminal behavior:

Well, I first looked at your record. And you’re very, very young,

as you know, as we all know. And so looking at your record takes me

back to juvenile court, as you don’t have any adult offenses.

* * *

And so your criminal history is not great.

And it consists of crimes of violence. And it’s very difficult

listening to the facts of the cases that you have here in front of me today,

as it’s more violence[.]

* * *

So it’s concerning to me the number of cases that you have before

me and looking at your record. And so much violence in all of these

cases.

So in considering all the relevant, seriousness and recidivism

factors, and [e]nsuring that the public is protected from [future] crime

and that you are punished, you are not amenable to community control

23 sanctions. You’re also are not amenable to community control

sanctions because you pled guilty to mandatory prison. So I am going

to impose a prison sentence.

And I have to take into consideration your history and the facts

of the cases that you have in front of me. And as I’ve already said, there

is so much violence. And whatever issue you say you had with the

victim in the aggravated robbery offense, the way to resolve the issue is

not to attack him the way that you did, which I’m sure you know that.

But you let your anger control your actions.

It is clear that from a review of the transcript of the sentencing

hearing in its entirety that, in setting forth its findings in support of the imposition

of consecutive sentences, the trial court was not merely reciting “buzz words.” The

record shows that the trial court’s consecutive sentence findings were the result of a

thorough, carefully considered analysis regarding whether consecutive sentences

were necessary to protect the public and punish Moore in light of the seriousness of

the offenses, Moore’s age, history and background, the harm caused by Moore and

the danger he poses to the public. The trial court complied with its obligations under

R.C. 2929.14(C)(4).

Moore also argues that his consecutive sentences should be vacated

because the imposition of consecutive sentences is not supported by the record.

Specifically, he contends that (1) “[t]he public would be protected from future crime

by [Moore] if he were required to serve a single sentence or otherwise receive mental

health treatment,” (2) consecutive sentences were disproportionate to the

seriousness of Moore’s conduct and the harm caused by Moore because Moore was

19 years old “with no prior adult criminal history,” “had mental health problems,

learning disabilities, drug addiction and was raised in a tough environment” and

“his direct acts were not violent” and (3) “[a] single prison sentence would meet the

princip[les] and purposes of felony sentencing” because Moore was “a young man

[who] could be rehabilitated with a single sentence and be released as a completely

different person.” Once again, we disagree.

An appellate court “may increase, reduce, or otherwise modify a

sentence” or it “may vacate the sentence and remand the matter to the sentencing

court for resentencing” if it “clearly and convincingly finds” that “the record does not

support the sentencing court’s findings” under R.C. 2929.14(C)(4). R.C.

2953.08(G)(2). “‘Clear and convincing evidence is that measure or degree of proof

* * * which will produce in the mind of the trier of facts a firm belief or conviction as

to the facts sought to be established.’” State v. Franklin, 8th Dist. Cuyahoga No.

107482, 2019-Ohio-3760, ¶ 29, quoting Cross v. Ledford, 161 Ohio St. 469, 120

N.E.2d 118 (1954), paragraph three of the syllabus. It is “an extremely deferential

standard of review.” State v. Venes, 2013-Ohio-1891, 992 N.E.2d 453, ¶ 21 (8th

Dist.).

There is nothing in the record before us that leads us to conclude that

any of the trial court’s findings in support of the imposition consecutive sentences

are clearly and convincingly unsupported by the record. Accordingly, we overrule

Moore’s fourth assignment of error.

Judgment affirmed.