State v. Freeman , 2018 Ohio 2293 ( 2018 )


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  • [Cite as State v. Freeman , 2018-Ohio-2293.]
    Court of Appeals of Ohio
    EIGHTH APPELLATE DISTRICT
    COUNTY OF CUYAHOGA
    JOURNAL ENTRY AND OPINION
    No. 106144
    STATE OF OHIO
    PLAINTIFF-APPELLEE
    vs.
    ANTHONY FREEMAN
    DEFENDANT-APPELLANT
    JUDGMENT:
    AFFIRMED
    Criminal Appeal from the
    Cuyahoga County Court of Common Pleas
    Case No. CR-17-616848-A
    BEFORE: E.A. Gallagher, A.J., Kilbane, J., and McCormack, J.
    RELEASED AND JOURNALIZED: June 14, 2018
    ATTORNEYS FOR APPELLANT
    Mark A. Stanton
    Cuyahoga County Public Defender
    BY: Jeffrey Gamso
    Assistant Public Defender
    310 Lakeside Ave., Suite 200
    Cleveland, Ohio 44113
    ATTORNEYS FOR APPELLEE
    Michael C. O’Malley
    Cuyahoga County Prosecutor
    BY: Holly Welsh
    Assistant Prosecuting Attorney
    The Justice Center, 9th Floor
    1200 Ontario Street
    Cleveland, Ohio 44113
    EILEEN A. GALLAGHER, A.J.:
    {¶1}    Defendant-appellant Anthony Freeman appeals his convictions for promoting
    prostitution and failure to provide notice of change of address entered in the Cuyahoga County
    Court of Common Pleas.       Freeman also appeals the denial of his motion to withdraw his guilty
    pleas. We affirm.
    Factual and Procedural Background
    {¶2} In 2017 Freeman was charged with two counts of promoting prostitution, failure to
    provide notice of change of address, drug trafficking and drug possession. The case proceeded
    to a plea hearing where appellant plead guilty to one count of promoting prostitution and failure
    to provide notice of change of address. The remaining counts were nolled.
    {¶3} At sentencing, the trial court imposed 18-month prison terms on both counts and
    ordered the counts to be served consecutively. After the trial court informed Freeman of his
    sentence he stated:
    This is not what I really agreed to. Is it possible that I can take back my plea? I
    want to take this all the way to trial. It’s not what I did. That is not what I did.
    {¶4} The trial court informed Freeman that he could not withdraw his plea because
    sentencing had already taken place. Freeman then asserted that he had asked his attorney how
    much prison time he would be sentenced to and if he could take back his plea prior to sentencing.
    Freeman claimed that his attorney would not tell him.        Freeman’s attorney stated that he did
    not know what the court’s sentencing decision would be prior to sentencing and the trial court
    agreed, explaining that the court had not decided upon a sentence until after hearing from the
    parties during the sentencing hearing.    The trial court also noted that Freeman had failed to raise
    the issue of retracting his plea prior to the sentencing hearing.
    {¶5} The trial court denied Freeman’s motion to vacate his plea.
    Law and Analysis
    I. Consideration of R.C. 2929.12 Factors
    {¶6} In his first assignment of error, Freeman argues that the trial court failed to consider
    the seriousness and recidivism factors in R.C. 2929.12 when imposing his sentences.
    {¶7} A sentence is contrary to law if the sentence falls outside the statutory range for the
    particular degree of offense or the trial court failed to consider the purposes and principles of
    felony sentencing set forth in R.C. 2929.11 and the seriousness and recidivism factors set forth in
    R.C. 2929.12. State v. Hinton, 8th Dist. Cuyahoga No. 102710, 2015-Ohio-4907, ¶ 10, citing
    State v. Smith, 8th Dist. Cuyahoga No. 100206, 2014-Ohio-1520, ¶ 13.
    {¶8} Freeman does not dispute that his sentences were within the relevant statutory
    ranges for his offenses. The trial court’s sentencing journal entry provides, in relevant part,
    “[t]he court considered all required factors of the law.” This court has consistently held this
    statement to be sufficient to find that a sentencing court considered the purposes and principles
    of felony sentencing set forth in R.C. 2929.11 and the seriousness and recidivism factors in R.C.
    2929.12. State v. Wright, 8th Dist. Cuyahoga No. 106175, 2018-Ohio-965, ¶ 19, citing State v.
    Keith, 8th Dist. Cuyahoga Nos. 103413 and 103414, 2016-Ohio-5234, ¶ 11.
    {¶9} Furthermore, the record reflects that the trial court did, in fact, consider all the
    relevant R.C. 2929.11 and 2929.12 sentencing factors.          The trial court noted that it had
    reviewed the presentence investigation report ordered in this case, the record and the statements
    made at sentencing.    Before imposing sentence, the court stated on the record that it had
    considered the seriousness and recidivism factors relevant to the case pursuant to R.C. 2929.12.
    {¶10} The court then discussed in detail the seriousness and recidivism factors relevant to
    this case.   The court noted that in this case Freeman had supplied two women with heroin in
    exchange for their acquiescence to prostituting themselves.       The court noted that the offense
    caused psychological, emotional and physical harm and there was nothing in the record
    indicating that Freeman’s conduct was less serious. The court noted that all the evidence in the
    record indicated that recidivism was likely.     Freeman had been evaluated by the probation
    department and found to have a high risk of recidivism.       The court then set forth Freeman’s
    lengthy felony history dating back to 1977, including multiple prior convictions for promoting
    prostitution.
    {¶11} Freeman’s first assignment of error is overruled.
    II. The Motion to Withdraw the Pleas
    {¶12} In his second assignment of error, Freeman argues that the trial court erred in
    denying his motion to withdraw his pleas.
    {¶13} Motions to withdraw guilty pleas are governed by Crim.R. 32.1 which provides: “A
    motion to withdraw a plea of guilty may be made only before sentence is imposed; but to correct
    manifest injustice the court after sentence may set aside the judgment of conviction and permit
    the defendant to withdraw his or her plea.” Accordingly, if a defendant seeks to withdraw a guilty
    plea after sentence has been imposed, he or she must demonstrate “manifest injustice.” State v.
    Smith, 
    49 Ohio St. 2d 261
    , 
    361 N.E.2d 1324
    (1977), paragraph one of the syllabus.
    {¶14} Manifest injustice is a “clear or openly unjust act,” State ex rel. Schneider v.
    Kreiner, 
    83 Ohio St. 3d 203
    , 208, 1998-Ohio-271, 
    699 N.E.2d 83
    , that is “‘evidenced by ‘an
    extraordinary and fundamental flaw in the plea proceeding,”’ State v. McElroy, 8th Dist.
    Cuyahoga Nos. 104639, 104640 and 104641, 2017-Ohio-1049, ¶ 30, quoting State v. Hamilton,
    8th Dist. Cuyahoga No. 90141, 2008-Ohio-455, ¶ 8; see also State v. Stovall, 8th Dist. Cuyahoga
    No. 104787, 2017-Ohio-2661, ¶ 17 (“‘Manifest injustice relates to some fundamental flaw in the
    proceedings which result[s] in a miscarriage of justice or is inconsistent with the demands of due
    process.’”), quoting State v. Williams, 10th Dist. Franklin No. 03AP-1214, 2004-Ohio-6123, ¶ 5.
    The determination of whether the defendant has demonstrated manifest injustice is within the
    sound discretion of the trial court. State v. Vinson, 2016-Ohio-7604, 
    73 N.E.3d 1025
    , ¶ 42 (8th
    Dist.), citing Smith at paragraph two of the syllabus. We will not reverse a trial court’s ruling on
    a postsentence motion to withdraw a guilty plea unless the court abused its discretion. 
    Id. To constitute
    an abuse of discretion, the trial court’s decision must be unreasonable, arbitrary or
    unconscionable. Blakemore v. Blakemore, 
    5 Ohio St. 3d 217
    , 219, 
    450 N.E.2d 1140
    (1983).
    {¶15} In this instance, appellant claims that the manifest injustice he suffered was
    ineffective assistance of counsel.   Under certain circumstances, ineffective assistance of counsel
    can constitute a manifest injustice warranting withdrawal of a guilty plea. See, e.g., State v.
    Montgomery, 8th Dist. Cuyahoga No. 103398, 2016-Ohio-2943, ¶ 4. However, where a
    defendant enters a guilty plea, he or she waives a claim of ineffective assistance of counsel
    except to the extent that the ineffective assistance of counsel caused the defendant’s plea to be
    less than knowing, intelligent and voluntary. Vinson at ¶ 30; State v. Williams, 8th Dist.
    Cuyahoga No. 100459, 2014-Ohio-3415, ¶ 11. A defendant who has entered a guilty plea can
    prevail on a claim of ineffective assistance of counsel only by demonstrating (1) deficient
    performance by counsel, i.e., that counsel’s performance fell below an objective standard of
    reasonable representation that caused the defendant’s guilty plea to be less than knowing,
    intelligent and voluntary and (2) that there is a reasonable probability that, but for counsel’s
    deficient performance, the defendant would not have pled guilty to the offenses at issue and
    would have, instead, insisted on going to trial. Williams at ¶ 11, citing State v. Xie, 
    62 Ohio St. 3d 521
    , 524, 
    584 N.E.2d 715
    (1992); see also Strickland v. Washington, 
    466 U.S. 668
    , 687-688,
    694, 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984); State v. Bradley, 
    42 Ohio St. 3d 136
    , 
    538 N.E.2d 373
    (1989), paragraphs two and three of the syllabus. A “reasonable probability” is a “probability
    sufficient to undermine confidence in the outcome.” Strickland at 694.
    {¶16} In this instance, Freeman has presented no argument that the claimed ineffective
    assistance of counsel caused his pleas to be less than knowing, intelligent and voluntary.      The
    alleged ineffective assistance cited by Freeman occurred after Freeman had already entered a
    plea. Freeman has advanced no argument to suggest his plea was invalid. Therefore, we find
    no abuse of discretion on the part of the trial court in denying his postsentence motion to
    withdraw his guilty plea.
    {¶17} Freeman’s second assignment of error is overruled
    III. Hearing on the Motion to Withdraw the Plea
    {¶18} In his third assignment of error, Freeman argues that the trial court erred by failing
    to hold an evidentiary hearing before denying his motion to withdraw his pleas.
    {¶19} A trial court is not automatically required to hold a hearing on a postsentence
    motion to withdraw a guilty plea. State v. Chandler, 10th Dist. Franklin No. 13AP-452,
    2013-Ohio-4671, ¶ 7. A hearing is required only if the facts alleged by the defendant, accepted as
    true, would require that the defendant be allowed to withdraw the plea. Id.;     State v. Rodriguez,
    8th Dist. Cuyahoga No. 103640, 2016-Ohio-5239, ¶ 23. An evidentiary hearing on a postsentence
    motion to withdraw a guilty plea is generally not required if “the record indicates that the movant
    is not entitled to relief and the movant has failed to submit evidentiary documents sufficient to
    demonstrate a manifest injustice.” State v. Russ, 8th Dist. Cuyahoga No. 81580,
    2003-Ohio-1001, ¶ 12. The trial court’s decision whether to hold a hearing on a postsentence
    motion to withdraw a guilty plea is reviewed for abuse of discretion. See, e.g., State v. Rice, 2d
    Dist. Montgomery No. 27045, 2017-Ohio-122, ¶ 10; State v. Bruce, 10th Dist. Franklin No.
    16AP-31, 2016-Ohio-7132, ¶ 7-8.
    {¶20} The trial court was not obligated to hold a hearing in the present case because
    Freeman failed to allege facts that would have required the court to allow him to withdraw his
    plea.
    {¶21} Freeman’s third assignment of error is overruled.
    IV. Ineffective Assistance of Counsel
    {¶22} In this fourth assignment of error, Freeman argues he was denied effective
    assistance of counsel during his sentencing hearing.
    {¶23} An ineffective assistance of counsel claim will lie only when it is shown that the
    performance of defense counsel was seriously flawed and deficient, and the result of the
    defendant’s trial or legal proceeding would have been different had defense counsel provided
    proper representation. Strickland v. Washington, 
    466 U.S. 668
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984).
    {¶24} Freeman argues that his counsel failed to “educate the court” on the complexities
    of “newly enacted HB 86” regarding R.C. 2929.12. We begin by noting that H.B. 86 did not
    introduce any amendments to the text of R.C. 2929.12. Furthermore, we find no evidence in the
    record indicating that Freeman’s counsel at the time of sentencing in 2017 needed to educate the
    trial court on 2011 amendments to the sentencing law. As discussed in Freeman’s second
    assignment of error, the trial court was aware of the relevant sentencing considerations under
    R.C. 2929.12 and discussed at length the nature and seriousness of the offenses at issue as well as
    Freeman’s high risk for recidivism.
    {¶25} Freeman further argues that his counsel failed to advocate on his behalf at
    sentencing. We find no merit to Freeman’s argument. At sentencing, counsel conceded that
    Freeman had an “extensive criminal history” but argued that most of his recent convictions were
    nonviolent offenses. Freeman’s counsel also noted that he was employed at the time of the
    offenses and had taken advantage of drug and alcohol programs during the time he was
    incarcerated in the county jail.
    {¶26} Freeman’s arguments that his counsel was ineffective for failing to present further
    arguments that his risk of recidivism was low or that his conduct was less serious are not
    supported by the record.      The record reflects that Freeman’s recidivism risk is high.    In his
    own words at sentencing Freeman stated, “I been goin’ to jail half my life.” The state noted that
    Freeman had been released from a prior prison term only two months before he committed the
    present offenses. In regard to the seriousness of his offense, the state explained that it had
    obtained statements from two victims who were “pimped out” by Freeman through an
    arrangement whereby he supplied them with heroin and he collected the money they obtained
    from prostitution. One of the victims reported that Freeman started injecting her with heroin
    causing her to be further addicted to the drug and leading her to continue engaging in prostitution
    to obtain it. We find no evidence of ineffective assistance of counsel on this record.
    {¶27} Freeman’s fourth assignment of error is overruled.
    V. Consecutive Sentences
    {¶28} In his fifth assignment of error, Freeman argues that his sentence is contrary to law
    and the trial court erred in imposing consecutive sentences.
    {¶29} Under R.C. 2953.08, an appellate court may overturn the imposition of consecutive
    sentences where upon its review, it clearly and convincingly finds that the record does not
    support the sentencing court’s findings under R.C. 2929.14(C)(4), or the sentence is otherwise
    contrary to law. State v. Lunder, 8th Dist. Cuyahoga No. 101223, 2014-Ohio-5341, ¶ 10, citing
    R.C. 2953.08(G)(2)(a)-(b).
    {¶30} R.C. 2929.14(C)(4) states:
    If multiple prison terms are imposed on an offender for convictions of multiple
    offenses, the court may require the offender to serve the prison terms
    consecutively if the court finds that the consecutive service is 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 if the court also finds any of the
    following:
    (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
    post-release 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.
    {¶31} A trial court is required to make the findings described above at the sentencing
    hearing and incorporate its findings into its sentencing journal entry. State v. Hendricks, 8th Dist.
    Cuyahoga No. 101864, 2015-Ohio-2268, ¶ 12, citing State v. Bonnell, 
    140 Ohio St. 3d 209
    ,
    2014-Ohio-3177, 
    16 N.E.3d 659
    , ¶ 1.
    {¶32} Freeman does not dispute that the trial court made the required findings but instead
    argues that the findings are not supported by the record. Freeman argues that the trial court’s
    decision to impose consecutive sentences was contrary to law in that it was excessive and beyond
    what was necessary to protect the public, incapacitate him, deter him from committing future
    crime and rehabilitate him. The sole reasoning offered by Freeman to support his conclusion
    that consecutive sentences were unnecessary and excessive in this instance is that he is 60 years
    old.
    {¶33} We find no merit to Freeman’s argument. As set forth above, the state detailed
    the serious conduct at issue in this case including Freeman’s use of heroin addiction to facilitate
    his prostitution business.   Freeman committed the present offenses a mere two months after
    being released from prison. The presentence investigation report confirms the trial court’s
    finding that Freeman has an “extensive criminal history.” The record supports the trial court’s
    findings under R.C. 2929.14(C)(4).
    {¶34} Freeman’s fifth assignment of error is overruled.
    {¶35} The judgment of the trial court is affirmed.
    It is ordered that appellee recover from appellant the costs herein taxed.
    The court finds that 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. The defendant’s conviction having been affirmed,
    any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence.
    A certified copy of this entry shall constitute the mandate pursuant to
    Rule 27 of the Rules of Appellate Procedure.
    _____________________________________________________
    EILEEN A. GALLAGHER, ADMINISTRATIVE JUDGE
    MARY EILEEN KILBANE, J., and
    TIM McCORMACK, J., CONCUR
    

Document Info

Docket Number: 106144

Citation Numbers: 2018 Ohio 2293

Judges: Gallagher

Filed Date: 6/14/2018

Precedential Status: Precedential

Modified Date: 6/14/2018