State v. Rexroad , 2023 Ohio 356 ( 2023 )

[Cite as State v. Rexroad, 2023-Ohio-356.]
IN THE COURT OF APPEALS OF OHIO
FOURTH APPELLATE DISTRICT
SCIOTO COUNTY
STATE OF OHIO, :
: Case No. 21CA3972
Plaintiff-Appellee, :
:
v. : DECISION AND JUDGMENT
: ENTRY
MICHAEL L. REXROAD, :
: RELEASED: 01/31/2023
Defendant-Appellant. :
APPEARANCES:
Brian T. Goldberg, Cincinnati, Ohio, for appellant.
Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay S. Willis,
Assistant Scioto County Prosecutor, West Union, Ohio, for appellee.
Wilkin, J.
{¶1} This is an appeal from a Scioto County Court of Common Pleas
judgment of conviction in which the trial court accepted appellant, Michael L.
Rexroad’s, guilty plea to two counts of sexual battery, and one count of gross
sexual imposition. The trial court imposed the jointly recommended aggregate
prison term of 20 years. Rexroad first challenges the validity of his guilty plea
arguing the trial court failed to explain the nature of the charges and ascertain he
understood them. Rexroad second claims that the trial court abused its
discretion when it overruled his pro se, pre-sentence motion to withdraw his guilty
plea.
{¶2} We overrule Rexroad’s two assignments of error. The trial court
substantially complied with Crim.R. 11 in which it advised Rexroad of the nature
Scioto App. No. 21CA3972 2
of the charges. The totality of the circumstances demonstrate that Rexroad
understood the nature of the charges he pleaded guilty to. We, therefore,
conclude that Rexroad knowingly, intelligently and voluntarily entered his guilty
plea.
{¶3} With regard to Rexroad’s pro se motion to withdraw his plea, the trial
court entertained the hand-written, one-paragraph motion and conducted a full
hearing before denying the motion. The trial court was without authority to
conduct the hearing since Rexroad was represented by counsel, who did not join
the motion. It is well-established that a defendant is not entitled to hybrid
representation. Accordingly, we affirm Rexroad’s guilty plea and judgment of
conviction entry.
FACTS AND PROCEDURAL BACKGROUND
{¶4} Rexroad resided with the adoptive parents of the minor victims, C.D.
and M.D., for almost a decade and began assaulting the minor C.D. when she
was eight years old. In June 2020, an indictment was issued alleging Rexroad
committed 19 sexual offenses against the minor victims, who were under the age
of 13 years. Most of the charges were for rape, first-degree felonies in violation
of R.C. 2907.02(A)(1)(b).
{¶5} Rexroad initially pleaded not guilty to the charges, and several
hearings were held prior to Rexroad’s guilty plea in July 2021. The hearings
included an assessment on whether Rexroad was competent to stand trial and to
address the state’s request for closed circuit testimony of the victims at trial. The
competency hearing was held in August 2020, in which Dr. Emily Davis’ report
Scioto App. No. 21CA3972 3
was admitted as an exhibit. Dr. Davis conducted the evaluation and determined
Rexroad was competent to stand trial. Within Dr. Davis’ report, she indicates that
Rexroad correctly identified he was a defendant in the case, the charges against
him, the maximum penalty and understanding of the seriousness of the offenses,
and after some hesitation, offered some description of the conduct involved that
resulted in the charges. Based on Dr. Davis’ report, the trial court found Rexroad
competent to stand trial.
{¶6} At the January 2021 pre-trial hearing, the trial court explained the
seriousness of the offenses and that for the rape charges, the maximum penalty
was life imprisonment. Similarly, at the March 2021 pre-trial hearing, the trial
court informed Rexroad of the indicted charges, and at three intervals, explained
the maximum penalty he was facing due to the tender age of the two victims.
Rexroad stated he understood.
{¶7} In April 2021, a hearing was held pursuant to the state’s motion
requesting the victims to testify via closed circuit. The state presented the
testimony of four witnesses in support of its motion, including C.D.’s outpatient
therapist who treated C.D. for posttraumatic stress disorder. The therapist
indicated that the cause of the trauma was C.D. being raped by a family friend,
who was residing in her home since she was eight years old. C.D. identified the
family friend as “Rex.” C.D.’s other counselor also testified that she has
posttraumatic stress disorder as a result of childhood sexual abuse. The
principal at the victims school further indicated that C.D. revealed she was a
Scioto App. No. 21CA3972 4
victim of sexual assault, and that M.D. was less forthcoming of the abuse she
suffered.
{¶8} In July 2021, Rexroad signed a guilty plea form in which he
waive[s] the reading of the indictment, and * * * [f]ully understand[s]
these rights guaranteed me by the Constitution, I hereby waive them
in writing. I withdraw my former plea of not guilty and enter a plea of
guilty to the crime of: CT.2 Sexual Battery, * * *, being a felony of the
second degree. CT.3 Gross Sexual Imposition, * * *, being a felony
of the third degree. CT.9 Sexual Battery, * * *, being a felony of the
second degree as amended.
Rexroad also signed a document explaining the maximum penalty for the offense
of gross sexual imposition, a felony in the third degree, and a document
explaining the maximum penalty for the two offenses of sexual battery, felonies in
the second degree.
{¶9} On the same day as Rexroad signed the three documents, a plea
hearing was held. At the start of the hearing, the trial court observed an error in
the gross sexual imposition maximum penalty document that misstated the
mandatory postrelease control period. Due to the error, the trial court instructed
Rexroad’s counsel to re-review the document with him, and, if he wished to
proceed, to correct and initial it. The hearing proceeded with the state outlining
the plea agreement:
Your Honor, the State has offered that the Defendant would
enter a plea to Counts 2, 3, and 9. As to Count 2, the parties, I
believe, have agreed that we would amend the dates from January
1st, 2019 to March 1st, 2019. They are currently listed from January
to June. As to Count 2 and 3 - - as to Count 2, it is an eight year
mandatory prison term, as to Count 3 it is up to 60 months. The
State’s recommendation would be four years. And then as to Count
9, it would be amended to Sexual Battery under the same
subsections as Count 2. Count [] 3 deal with minor child M.D., date
of birth 12/24/2007, and Counts 2 and 3 it will be agreed to by the
Scioto App. No. 21CA3972 5
parties are separate animus and would run consecutively. Back to
Count 9, as to Count 9, we’ve agreed to amend that charge to Sexual
Battery under those same subsections as Count 2 as to minor victim
C.D., date of birth 9/27/2006. And we’ve also agreed to an
amendment of the dates as to January 1st, 2019 to March 1st, 2019.
{¶10} Rexroad’s counsel stated “[n]o objections to the amendments, and
we’ll stipulate to the periods of times as the Prosecutor has indicated.” The trial
court clarified that the parties are stipulating that Counts Two, Three and Nine
were committed with separate animus, to which Rexroad’s counsel agreed. At
this point, Rexroad informed the trial court he had difficulty hearing. He was
provided with a headphone set to assist him. The trial court then repeated what
had just occurred:
All right. Sir, what the Prosecutor has indicated, they made an
offer in this matter that they would amend the date range on Counts
2 and 3 to January 1st, 2019 to March 1st, 2019, which changes the
sentencing statute this would fall under. They would accept pleas of
guilty to both of those counts, 2, which is Sexual Battery, which is a
felony of the second degree, 3, which is Gross Sexual Imposition,
which is a felony of the third degree, and they would amend Count 9
to a charge of Sexual Battery, which would also be a felony of the
second degree. They’ve indicated that they’re - - the matter would be
set for sentencing on Monday, that the parties at that sentencing
would be jointly recommending that you receive eight years on Count
2, Sexual Battery, which is mandatory, 48 months on Count 3, Gross
Sexual Imposition, which is not mandatory, and eight years on
amended Count 9, Sexual Battery, which is a felony of the second
degree, which would be mandatory.
They’ve said that they’re agreement is also that these were
committed with a separate animus or a separate - -or crimes of
dissimilar import, which means that you would receive a sentence on
each of those three to run consecutively, for a sentence of 20 years,
with 16 of those years being mandatory. There would also be a
requirement that you register as a Tier III Sex Offender. That would
require you to - - upon your release from prison to register with the
sheriff of the county of your residence or employment or schooling
for the rest of your life, and you’d have to verify that address every
90 days with that sheriff.
Scioto App. No. 21CA3972 6
{¶11} Rexroad advised the trial court that that was his understanding of
the plea agreement. The following exchange between the court and Rexroad
then followed:
THE COURT: All right. And sir, do you understand that by proceeding
in this fashion that you’d be entering pleas of guilty to two counts of
Sexual Battery, felonies of the second degree, and one count of
Gross Sexual Imposition, a felony of the third degree?
DEFENDANT: Yes.
THE COURT: Do you understand that by entering a plea of guilty that
that would then allow me to proceed with sentencing in this matter?
DEFENDANT: Yes.
THE COURT: All right. Do you understand by entering pleas of guilty
to these charges that you’d be admitting the truth of these charges
and your guilt in committing these offenses? Do you understand
that?
DEFENDANT: Yes.
Rexroad also indicated that he understood that by pleading guilty to the three
counts, the state would dismiss the remaining charges. Rexroad further stated
that he understood that since this is a jointly recommended sentence he waives
the right to appeal his sentence.
{¶12} The trial court then questioned Rexroad if he had the opportunity to
review the waiver and maximum penalty documents with his counsel. To which
Rexroad informed the trial court that he had reviewed them, understood them,
and signed them. The colloquy continued with Rexroad advising the court that
he was not under the influence of any substances, graduated high school, was
honorably discharged from the Marines, and is a United States citizen. Next, the
trial court notified Rexroad of the constitutional rights he waives by pleading
guilty, to which Rexroad replied that he understood.
Scioto App. No. 21CA3972 7
{¶13} The trial court again explained the maximum penalty associated
with each offense and that for the sexual battery charges, they are second-
degree felonies with a maximum mandatory prison term of 8 years. As for the
gross sexual imposition offense, a third-degree felony, prison is not mandatory,
but, if prison is imposed, then the maximum term is 60 months. Rexroad
asserted that he understood the maximum prison terms associated with each
offense. Mandatory postrelease control is also part of Rexroad’s punishment,
and, so, the trial court advised him that it was mandatory for five years. Rexroad
stated that he understood that postrelease control was part of his sentence and
that he had to register as a sexual offender.
{¶14} After these notifications were relayed to Rexroad, the trial court
inquired if Rexroad wished to proceed. Rexroad affirmed that he still wished to
proceed with the plea and asserted that he wished to keep his signature on the
documents. The state placed on the record that it was amending the indictment
as to Count Nine, and Rexroad’s counsel stated he has no objection. The trial
court began reading the offenses but realized there was a clerical error in the
numbering of the statutory provision for sexual battery as amended in Count
Nine. The trial court requested that the document be corrected, re-reviewed by
Rexroad and his counsel, and Rexroad initial the correction. Following the
correction, the trial court recited the offenses to Rexroad:
Let’s do this again. Sir, as to Count 2 Sexual Battery, in
violation of Revised Code Section 2907.03(A)(5) and (B), said
offense a felony of the third degree, Count 3 Gross Sexual
Imposition, in violation of Revised Code Section 2907.05(A)(4) and
(C)(2), said offense a felony of the third degree, Count 9 as
amended, being charge of Sexual Battery, in violation of Revised
Scioto App. No. 21CA3972 8
Code Section 2907.03(A)(5) and (B), said offense a felony of the
second degree[.]
Rexroad then pleaded guilty to the three offenses pursuant to the plea
agreement.
{¶15} One day after pleading guilty, Rexroad filed a one-paragraph,
unsigned handwritten document asking to withdraw his plea. On July 26, 2021, a
combined motion to withdraw plea and sentencing hearing was held. At the start
of the hearing, the trial court recounted the procedural history of the case. The
trial court then stated that it received a handwritten letter in which Rexroad is
requesting to withdraw his plea. Both the state and Rexroad’s counsel indicated
they did not receive a copy of the letter. Rexroad’s counsel, however, was aware
of the letter after he reviewed the online docket and after speaking with Rexroad.
According to counsel, Rexroad has several reasons to withdraw his plea and one
of the reasons is a claim of tampering with evidence by the state in discovery.
Rexroad’s counsel then advised the trial court that “I have no good faith basis for
that argument and will not make it before the Court.” The reasons to withdraw
the plea were handwritten by Rexroad and he was asked to read them into the
record since his counsel had a hard time reading his writing:
I, Michael Rexroad, on July 25th, 2021, request to withdraw
my plea of guilty and instead go to trial for some of the following
reasons; one, I survived a year and a half in jail without signing a
time waiver and believe I have earned the right to have - -earned to
have that right returned to me. I feel that scare tactics were used to
influence my decision. As a 50 percent disabled veteran that fought
the state and the last year and a half after my injury, I requested I still
be allowed to continue to fight for my innocence. I apologize for
pulling the VA card, but I’m at my wits end. It has been brought to my
attention- -I prefer not to read the fifth one, Your Honor. If you could
take a look at it.
Scioto App. No. 21CA3972 9
***
It has been brought to my attention that I do not have to
convince 12 people of my innocence, only one - -or one that she is
faking, or one that she is lying, which would be easier if I had my
motion of discovery.
{¶16} After Rexroad presented the reasons for his request to withdraw his
plea, the trial court inquired of his counsel if he wished to present any evidence in
support of the motion. Counsel reiterated:
Your Honor, in good faith I cannot - -if - - argue on speedy trial
issues. Everything has been - - there’s been motions to continue. I
see no speedy trial issues. I will not put a - -forward a good faith basis
for that. Scare tactics, Your Honor, everything has been explained to
him in the court, consequences, I cannot - -there was no scare tactics
used. He’s weighingly (sic) and knowingly made the choice he made.
He - -we have went over and discussed the motion of discovery and
so - -
* * * So, I cannot put forward any good faith argument for a
motion to withdraw guilty plea.
The trial court then questioned counsel whether Rexroad wished to testify in
support of his motion, and counsel left the decision to Rexroad, who indicated
that he did. This is when the trial court advised Rexroad that if he testifies, the
state will be permitted to question him regarding these issues. Rexroad indicated
that he understood and was sworn in.
{¶17} Rexroad stated that the interrogation video provided in discovery
was not the complete video and that he was innocent of the offenses. During
cross-examination, Rexroad claimed he was coerced during his interrogation into
submitting the written statement admitted as State’s Exhibit 1, in which he
provided the date and the sexual act performed on the victims. Rexroad
acknowledged that the trial court advised him of his rights at the plea hearing,
and, at that time, indicated he was satisfied with his counsel’s representation. In
Scioto App. No. 21CA3972 10
response to the court’s questioning, Rexroad elaborated that “[f]rom the time of
filing the guilty plea and approximately 30 minutes later I had that change of
heart[.]”
{¶18} In rebuttal, the state presented the testimony of Detective Jodi
Conkel. The detective interviewed Rexroad twice and both were recorded. The
recordings are digital and were not tampered with. The detective denied
intimidating or coercing Rexroad, who is twice her size and a Marine.
{¶19} At the conclusion of the detective’s testimony, the state presented
an argument in support of denying Rexroad’s pro se motion to withdraw his plea,
but his counsel declined to present an argument in support of the motion. The
trial court noted that “I am going to find that this was a request filed by the
Defendant individually and not through counsel. This Court did choose to
proceed with a hearing on this matter despite that fact.” The trial court then
denied the motion finding there is no reasonable and legitimate basis to withdraw
the plea.
{¶20} In support of denying the motion, the trial court found that Rexroad
was afforded a full Crim.R. 11 hearing, understood the nature of the charges he
was pleading guilty to, and understood the possible penalties including the jointly
recommended sentence. The trial court also held that Rexroad failed to present
evidence supporting his innocence, and, that to the contrary, the state presented
his admission of committing the offenses. Further, the trial court determined that
Rexroad filed his motion based on a change of heart and did not find credible his
assertion that the interrogation recording was tampered with.
Scioto App. No. 21CA3972 11
{¶21} After denying the pro se motion to withdraw the plea, the trial court
proceeded to sentencing. Rexroad’s counsel requested that the trial court
impose the jointly recommended sentence. Rexroad did not make a statement
as to mitigation, but rather, requested that his interrogation video be copied and
shown to someone else. C.D. also addressed the trial court informing the court
that Rexroad is “very guilty” and had sex with her since she was eight years old.
After considering the sentencing statutory provisions, the trial court imposed the
jointly recommended sentence of 8 years as to Count One, 8 years as to the
amended Count Nine, and 48 months as to Count Three. The counts were
ordered to be served consecutively. Rexroad was advised of his Tier III sexual
offender classification and of the mandatory five-year postrelease control.
Rexroad’s judgment of conviction entry is now before us on appeal.
ASSIGNMENTS OF ERROR
I. THE TRIAL COURT ERRED TO THE PREJUDICE OF MR.
REXROAD BY ACCEPTING A PLEA OF GUILTY THAT WAS NOT
MADE KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY.
II. THE TRIAL COURT ERRED TO THE PREJUDICE OF MR.
REXROAD BY DENYING THE MOTION TO WITHDRAW HIS
PLEA OF GUILTY.
ASSIGNMENT OF ERROR I
{¶22} Rexroad argues his guilty plea is invalid because the trial court
failed to substantially comply with Crim.R. 11 before accepting his plea in which
the court failed to ensure Rexroad understood the nature of the charges against
him. During the plea colloquy, a statement of the facts establishing the criminal
charges was not read into the record and the trial court did not review the
Scioto App. No. 21CA3972 12
elements of the offenses. In addition, some of Rexroad’s responses during the
plea colloquy displayed hesitation. Rexroad thus maintains that his plea is
invalid and should be vacated.
{¶23} The state asserts that Rexroad’s plea should be affirmed as a
thorough change of plea hearing was held by the trial court. A statement of facts
was not presented at the plea hearing but there is no legal authority that a
statement is required before a guilty plea is accepted. The state declares that
Rexroad’s plea should be affirmed.
Law and Analysis
{¶24} “ ‘When a defendant enters a plea in a criminal case, the plea must
be knowingly, intelligently, and voluntarily. Failure on any of those points renders
enforcement of the plea unconstitutional under both the United States
Constitution and the Ohio Constitution.’ ” State v. Veney, 120 Ohio St.3d 176,
2008-Ohio-5200, 897 N.E.2d 621, ¶ 7, quoting State v. Engle, 74 Ohio St.3d 525,
527, 660 N.E.2d 450 (1996). To determine whether a guilty plea was entered
“knowingly, intelligently, and voluntarily, an appellate court examines the totality
of the circumstances through a de novo review of the record to ensure that the
trial court complied with constitutional and procedural safeguards.” State v.
Willison, 4th Dist. Athens No. 18CA18, 2019-Ohio-220, ¶ 11, citing State v.
Cooper, 4th Dist. Athens No. 11CA15, 2011-Ohio-6890, ¶ 35.
{¶25} “Crim.R. 11(C) governs the process that a trial court must use
before accepting a felony plea of guilty[.]” Veney at ¶ 8. The trial court must
address the defendant and strictly comply with the provisions in Crim.R.
Scioto App. No. 21CA3972 13
11(C)(2)(c) in which the court advises a defendant of all of the constitutional
rights he waives by pleading guilty. See Id. at syllabus; Crim.R. 11(C)(2).
Rexroad concedes that the trial court strictly complied with Crim.R. 11(C)(2)(c)
and advised him of the constitutional rights he waives by pleading guilty,
including the state’s burden to establish his guilt beyond a reasonable doubt, the
right to a jury trial, the right to confront the state’s witnesses, the right against
self-incrimination, and the right to compel witnesses to appear on his behalf.
(Brief page 3)
{¶26} Strict compliance is not the standard with regard to the
nonconstitutional notifications. Rather, “with respect to the nonconstitutional
notifications required by Crim.R. 11(C)(2)(a) and 11(C)(2)(b), substantial
compliance is sufficient.” Veney at ¶ 14, citing State v. Stewart, 51 Ohio St.2d
86, 364 N.E.2d 1163 (1977). “ ‘Substantial compliance means that under
the totality of the circumstances the defendant subjectively understands the
implications of his plea and the rights he is waiving.’ ” Id. at ¶ 15, quoting State
v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990).
{¶27} Pertinent to the issue here is the requirement that before accepting
a guilty plea, the trial court must address the defendant and determine
that the defendant is making the plea voluntarily, with understanding
of the nature of the charges and of the maximum penalty involved,
and if applicable, that the defendant is not eligible for probation or for
the imposition of community control sanctions at the sentencing
hearing.
Crim.R. 11(C)(2)(a).
{¶28} “Substantial compliance with Crim.R. 11(C)(2)(a) does not
Scioto App. No. 21CA3972 14
necessarily require a detailed recitation of the elements of a charge by the court.”
State v. Hurst, 5th Dist. No. CT2019-0053, 2020-Ohio-2754, ¶ 21, citing State v.
Wright, 4th Dist. Highland No. 94CA853, 1995 WL 368319 (June 19, 1995).
Additionally, there is no requirement for the trial court to “explain the elements of
the crime to the defendant at the time of the plea.” State v. Nicholson, 8th Dist.
No. 91652, 2009-Ohio-3592, ¶ 19.
“In order for a trial court to determine that a defendant is
making a plea with an understanding of the nature of the charge to
which he is entering a plea, it is not always necessary that the trial
court advise the defendant of the elements of the crime, or to
specifically ask the defendant if he understands the charge, so long
as the totality of the circumstances are such that the trial court is
warranted in making a determination that the defendant understands
the charge.” State v. Rainey, 3 Ohio App.3d 441, 442, 446 N.E.2d
188 (10th Dist.1982)
Hurst at ¶ 21.1
{¶29} The totality of the circumstances here demonstrate that Rexroad
was notified of the nature of the charges and he understood them. Rexroad’s
indictment as to Counts Two and Three specified the name of the offenses, listed
the applicable statutory provisions, the level of the felony, identified the victim,
and that the victim was under the age of 13 years. As for the amended Count
Nine, which tracked the same language as Count Two, Rexroad waived the
reading of the indictment. Rexroad was provided with a bill of particulars in
which it stated that Rexroad committed the offense of sexual battery, in violation
of R.C. 2907.03(A)(5), R.C. 2907.03(B)(3), a second-degree felony, in Count
1
We decline Rexroad’s assertion that we apply R.C. 2937.07 and require “an explanation of the
circumstances of the offense” before a trial court accepts a guilty plea. As Rexroad
acknowledges, R.C. 2937.07 applies only to misdemeanor offenses. Therefore, this statutory
provision is inapplicable as Rexroad pleaded guilty to felony charges.
Scioto App. No. 21CA3972 15
Two based on his act of engaging in sexual conduct with the minor M.D., with a
date of birth of 12/24/2007, who was less than 13 years of age. Similarly, the
state as to Count Three, informed Rexroad that he is charged with committing
gross sexual imposition, in violation of R.C. 2907.05(A)(4), R.C. 2907.05(C)(2), a
third-degree felony, for his conduct of having sexual contact with M.D., who was
less than 13 years old.
{¶30} Additionally, before signing the guilty plea form and the maximum
penalty documents, Rexroad through several hearings was advised that the
crimes are about his sexual assault of the two minors C.D. and M.D. The state’s
evidence of the criminal conduct included Rexroad’s handwritten admission.
{¶31} And then there are the guilty plea and maximum penalty documents.
Rexroad reviewed the documents with counsel, was questioned about them at
the plea hearing by the trial court, and, more than once, indicated he signed them
and wished to keep his signature on them. The documents identified each
offense Rexroad was pleading guilty to, including the name, the statutory
provisions, and the maximum penalty involved. Additionally, at the plea hearing,
the trial court had several exchanges with Rexroad advising him repeatedly of
the offenses he was pleading guilty to. Rexroad informed the trial court that he
understood and wished to proceed with the plea. See State v. Vialva, 8th Dist.
Cuyahoga No. 104199, 2017-Ohio-1279, ¶ 8 (The trial court substantially
complied with Crim.R. 11(C)(2)(a) in advising Vialva of the nature of the charges
where the trial court at the plea hearing stated the offense, the statutory code
section and the degree of the offense.)
Scioto App. No. 21CA3972 16
{¶32} Rexroad now construes his one response “I’m going to have to say,
yes” when questioned by the trial court if he wished to proceed as demonstrating
hesitation. We disagree. First, this response was in regard to the trial court
advising Rexroad that a jointly recommended sentence means he waives the
right to appeal the sentence:
THE COURT: All right. Mr. Rexroad, do you understand by doing it
in this fashion that you’d be waiving your right to appeal the sentence
that I’d give you?
THE DEFENDANT: I understand.
THE COURT: Is this what you want to do here today?
THE DEFENDANT: I’m going to have to say, yes.
Second, Rexroad provided similar responses that he does not challenge as a
demonstration of hesitation. Rexroad does not challenge his understanding that
by pleading guilty he waived the right to have the state prove his case beyond a
reasonable doubt and his right against self-incrimination. When questioned if he
understood he was waiving these rights, Rexroad responded: “I believe so, yes.”
Further, when asked if he had any questions, Rexroad answered “I don’t think
so.”
{¶33} We, therefore, conclude that the trial court substantially complied
with Crim.R. 11(C)(2)(a) in advising Rexroad of the nature of the charges.
Rexroad understood the nature of the charges when he pleaded guilty to the two
counts of sexual battery and one count of gross sexual imposition.
{¶34} Accordingly, we overrule Rexroad’s first assignment of error.
ASSIGNMENT OF ERROR II
{¶35} Rexroad argues that the trial court erred in denying his pro se, pre-
sentence motion to withdraw his guilty plea. Rexroad asserts that the trial court
Scioto App. No. 21CA3972 17
erred in several of its findings in support of its decision to deny his motion.
Specifically, Rexroad disagrees that he was afforded a full Crim.R. 11 hearing as
there was no reading of the facts and he appeared uncertain before pleading, as
previously argued in the first assignment of error. Rexroad reiterates that he did
not understand the nature of the charges against him. Similarly, Rexroad
disagrees that he was afforded a full hearing on his motion to withdraw since he
was not appointed new counsel after his counsel stated he was unable to put
forth a good faith argument in support of the motion. Rexroad proclaimed his
innocence prior to sentencing and presented potential defenses to the charges.
Finally, he argues that any prejudice to the state would have been trivial.
{¶36} The state, on the other hand, maintains that Rexroad was afforded a
full and informative plea colloquy and a full hearing on his motion to withdraw.
Rexroad admitted to the crimes and his handwritten statement was presented as
an exhibit at the motion to withdraw hearing. The trial court in evaluating
Rexroad’s motion to withdraw properly applied the relevant factors and its
decision should be affirmed.
Law and Analysis
{¶37} “In Ohio, a criminal defendant has the right to representation by
counsel or to proceed pro se with the assistance of standby counsel. However,
these two rights are independent of each other and may not be asserted
simultaneously.” State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816
N.E.2d 227, paragraph one of the syllabus. “Appellate courts have determined
that when counsel represents a criminal defendant, a trial court may not entertain
Scioto App. No. 21CA3972 18
a defendant’s pro se motion.” (Emphasis sic.) State v. James, 4th Dist. Ross No.
13CA3393, 2014-Ohio-1702, ¶ 13. Thus, “[w]hen a criminal defendant is
represented by counsel and counsel does not join in the defendant’s pro se
motion or otherwise indicate a need for the relief sought by the defendant pro se,
the trial court cannot properly consider the defendant’s pro se motion.” State v.
Smith, 1st Dist. Hamilton Nos. C-160836 and C-160837, 2017-Ohio-8558, ¶ 32.
{¶38} In the case at bar, Rexroad was represented by counsel. Yet, one
day after pleading guilty, Rexroad filed a pro se, one-paragraph motion to
withdraw his guilty plea. At the motion to withdraw hearing, Rexroad read into
the record several reasons he believed warranted granting his request to
withdraw his plea. Rexroad’s attorney did not join the motion and on multiple
occasions informed the trial court that he could not in good faith argue in support
of the motion. Rexroad testified in support of his motion, but was minimally
questioned by his counsel. Rexroad’s counsel declined to present a closing
argument in support of the motion to withdraw. Based on counsel’s failure to join
the motion, the trial court held that “this was a request filed by the Defendant
individually and not through counsel. This Court did choose to proceed with a
hearing on this matter despite that fact.”
{¶39} The trial court improperly considered Rexroad’s pro se motion to
withdraw his plea as he was represented by counsel who did not join the motion.2
Therefore, we cannot say that the trial court erred in denying his motion. See
State v. Lamb, 4th Dist. Scioto No. 17CA3796, 2018-Ohio-1405, ¶ 57 (Hybrid
2
Rexroad did not request new counsel or to represent himself in the case.
Scioto App. No. 21CA3972 19
representation is prohibited and because appellant’s counsel did not join or adopt
the pro se motions, “the trial court was not permitted to entertain the motions.”)
See also State v. Williams, 8th Dist. Cuyahoga No. 109972, 2021-Ohio-2032, ¶
15 (A trial court entertaining a defendant’s pro se motion to withdraw his plea
when the defendant is represented by counsel who declines to join the motion
constitutes “hybrid representation in violation of the established law.”)
{¶40} Accordingly, we overrule Rexroad’s second assignment of error.
CONCLUSION
{¶41} Having overruled Rexroad’s two assignments of error, we affirm the
trial court’s judgment entry of conviction.
JUDGMENT AFFIRMED.
Scioto App. No. 21CA3972 20
JUDGMENT ENTRY
It is ordered that the JUDGMENT IS AFFIRMED and that appellant shall
pay the costs.
The Court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this Court directing the
Scioto County Common Pleas Court to carry this judgment into execution.
IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL
HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS
COURT, it is temporarily continued for a period not to exceed 60 days upon the
bail previously posted. The purpose of a continued stay is to allow Appellant to
file with the Supreme Court of Ohio an application for a stay during the pendency
of proceedings in that court. If a stay is continued by this entry, it will terminate at
the earlier of the expiration of the 60-day period, or the failure of the Appellant to
file a notice of appeal with the Supreme Court of Ohio in the 45-day appeal
period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court
of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to
expiration of 60 days, the stay will terminate as of the date of such dismissal.
A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Smith, P.J. and Abele, J.: Concur in Judgment and Opinion.
For the Court,
BY: ____________________________
Kristy S. Wilkin, Judge
NOTICE TO COUNSEL
Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.