State v. Gaddy , 2020 Ohio 430 ( 2020 )

[Cite as State v. Gaddy, 2020-Ohio-430.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-19-35
v.
GREGORY T. GADDY, JR., OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-19-36
v.
GREGORY T. GADDY, JR., OPINION
DEFENDANT-APPELLANT.
Appeals from Allen County Common Pleas Court
Trial Court Nos. CR2008 0056 and CR2018 0511
Judgments Affirmed
Date of Decision: February 10, 2020
APPEARANCES:
Linda Gabriele for Appellant
Jana E. Emerick for Appellee
Case Nos. 1-19-35, 1-19-36
SHAW, P.J.
{¶1} Defendant-appellant, Gregory T. Gaddy, Jr. (“Gaddy”), appeals the
May 28, 2019 judgment entries of sentencing issued by the Allen County Court of
Common Pleas journalizing his convictions in two cases. In the first case, Gaddy
entered a plea of guilty to one count of aggravated burglary with a firearm
specification, a felony of the first degree, and to one count of aggravated robbery
with a firearm specification, also a felony of the first degree. Upon finding that the
convictions merged, the trial court proceeded on the State’s election for a sentence
to be imposed on Gaddy’s conviction for aggravated burglary with a firearm
specification. The trial court sentenced Gaddy to ten years of non-mandatory prison
time for the first degree felony conviction and a mandatory three-year prison term
for the firearm specification, to be served consecutively. In the second case, Gaddy
entered a guilty plea to one count of failure to appear, a felony of the fourth degree.
The trial court sentenced Gaddy to eighteen months of non-mandatory prison time
to be served consecutive to the sentence imposed in the first case.1
{¶2} On appeal, Gaddy claims that the trial court erred in overruling his
presentence motions to withdraw his guilty plea filed in each case. Gaddy also
argues that the trial court erred in overruling his motion for substitution of counsel.
1
The two trial court cases were consolidated for purposes of appeal.
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Case Nos. 1-19-35, 1-19-36
Relevant Facts and Procedural History
{¶3} On February 14, 2008, Gaddy was indicted in case number CR2008
0056 on one count of aggravated burglary in violation of R.C. 2911.11(A)(2), a
felony of the first degree, with a firearm specification listed in R.C. 2945.145(A);
and one count of aggravated robbery in violation of R.C. 2911.01(A)(1), a felony of
the first degree, with a firearm specification listed in R.C. 2945.145(A). The
charges arose from an incident during which Gaddy and his half-brother were
alleged to have committed an armed home invasion in Lima, Ohio. During the
incident, a woman and her boyfriend were robbed at gunpoint, while the woman’s
child slept in a bedroom. The record indicates that Gaddy was re-indicted on the
above two counts by the Allen County Grand Jury on April 30, 2008.
{¶4} Over ten years later, on October 19, 2018, Gaddy entered pleas of not
guilty to the charges listed in the indictments in case number CR2008 0056.2
{¶5} On December 13, 2018, in case number CR2018 0511, the Allen
County Grand Jury returned a one count indictment against Gaddy alleging that he
failed to appear on March 1, 2008, as required by his recognizance bond in
connection with a felony charge. Specifically, the indictment charged Gaddy with
2
The record establishes that the lapse in time was due to Gaddy fleeing out of state while on bond and
awaiting sentencing in a 2007 felony drug case before he could be arraigned in case number CR2008 0056,
the home invasion case.
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Case Nos. 1-19-35, 1-19-36
failure to appear in violation of R.C. 2937.99(A),(B), a felony of the fourth degree.
Gaddy subsequently entered a plea of not guilty in case number CR2018 0511.
{¶6} Both cases proceeded to discovery and CR2008 0056, the home
invasion case, was scheduled for trial on April 2, 2019.
{¶7} On March 5, 2019, Gaddy filed a pro se motion for substitution of
counsel in CR2008 0056, requesting new appointed counsel and alleging ineffective
assistance of his currently-appointed counsel.
{¶8} On March 19, 2019, the trial court conducted a pre-trial hearing and
addressed Gaddy’s motion. Gaddy explained to the trial court that he and his
counsel “had a chance to talk” and he expressed that he did not “want to go forward
with the Motion.” (March 19, 2019 Tr. at 2). Gaddy orally withdrew his motion
for substitute counsel on the record. In addition to resolving this motion, the State
also placed on the record that it had offered a plea proposal, which Gaddy had
refused.
{¶9} On April 2 and 3, 2019, the trial court conducted a jury trial on the
aggravated burglary and aggravated robbery charges in case number CR2008 0056.
On the first day and a half of trial, the prosecution’s witnesses established that on
Monday, September 3, 2007, at approximately 1:30 a.m., in Lima, Ohio, Angela
Vanbuskirk and Deonco Howard were robbed at gunpoint by two unknown
intruders, who entered the home through the open back patio door. The intruders
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Case Nos. 1-19-35, 1-19-36
brandished firearms, forced the victims down on the floor, and stole Deonco’s wallet
and a small amount of money from Angela. During the course of the incident, one
of the intruders shot the other, apparently by accident, causing the injured intruder
to bleed all over the kitchen. After the robbery was complete, the intruders fled
from the home, but their escape was impeded by a high chain link fence. The
intruders dropped their guns on the ground while attempting to traverse the fence.
Angela called 9-1-1. Law enforcement officers responded and located Gaddy one
block from the home, lying in a neighbor’s yard suffering from an apparent gunshot
wound and bleeding profusely, unable to move. The two guns dropped by the
intruders were collected by police. Gaddy’s half-brother, Javin Mayo, was stopped
by law enforcement an hour later. Mayo had blood on his shoes and socks and was
in possession of one of the victim’s stolen wallet and I.D. along with approximately
a thousand dollars in cash.
{¶10} On the second day of trial, before the prosecution concluded the
presentation of the evidence in its case-in-chief, which would have included
evidence of DNA and ballistic testing results indicating that the a bullet removed
from Gaddy’s body matched the ballistics from one of the two recovered firearms
and that Gaddy’s DNA was found on both firearms, Gaddy decided to resolve the
charges in case numbers CR2008 0056 and CR2018 0511 in a plea agreement. As
a part of the negotiated plea, Gaddy agreed to plead guilty to the charges and
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specifications listed in the indictments in case numbers CR2008 0056 (first degree
felony aggravated burglary and aggravated robbery) and CR2018 0511 (fourth
degree felony failure to appear). The State also conceded that the aggravated
burglary and aggravated robbery charges in case number CR2008 0056 merged for
purposes of sentencing and reserved the right to be heard at sentencing. The trial
court proceeded to conduct a Crim.R. 11 colloquy with Gaddy and accepted
Gaddy’s guilty pleas in both cases. The cases were scheduled for sentencing
pending the completion of a presentencing investigation.
{¶11} On May 6, 2019, Gaddy, pro se, filed a presentence motion to
withdraw his guilty plea in case number CR2008 0056, the home invasion case,
asserting that he received ineffective assistance of counsel during the trial, which he
claimed resulted in him being “forced to ask for a plea deal.” (CR2008 0056 Doc.
No. 90 at 4).
{¶12} On May 16, 2019, with the assistance of newly appointed counsel,
Gaddy filed a motion to withdraw his guilty plea in CR2018 0511, asserting similar
grounds alleging inadequate representation by his prior trial counsel.
{¶13} On May 21, 2019, the trial court held a hearing on Gaddy’s motions
to withdraw his guilty pleas in both cases. Gaddy testified in support of his motions.
The trial court took the matter under advisement.
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Case Nos. 1-19-35, 1-19-36
{¶14} On May 22, 2019, the trial court issued a judgment entry overruling
Gaddy’s motions. The cases proceeded to sentencing on May 28, 2019. In case
number CR2008 0056 the trial court imposed ten years of non-mandatory prison
time for the aggravated burglary conviction and a mandatory three-year prison term
for the firearm specification, to be served consecutively. In case number CR2018
0511, the trial court imposed eighteen months of non-mandatory prison time for the
failure to appear conviction to be served consecutive to the sentence imposed in
CR2008 0056.
{¶15} It is from these judgment entries of sentencing that Gaddy now
appeals, asserting the following assignments of error.
ASSIGNMENT OF ERROR NO. 1
THE TRIAL COURT ABUSED ITS DISCRETION IN
DENYING THE DEFENDANT-APPELLANT’S MOTION TO
WITHDRAW HIS PLEA.
ASSIGNMENT OF ERROR NO. 2
THE TRIAL COURT ABUSED ITS DISCRETION IN
DENYING THE DEFENDANT-APPELLANT’S MOTION FOR
SUBSTITUTE COUNSEL.
First Assignment of Error
{¶16} In his first assignment of error, Gaddy argues that the trial court erred
when it overruled his motions to withdraw his guilty pleas in both case numbers
CR2008 0056 and CR2018 0511.
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Case Nos. 1-19-35, 1-19-36
Legal Standard
{¶17} A defendant may file a presentence motion to withdraw a guilty plea.
Crim.R. 32.1. Although a trial court should freely grant such a motion, the Supreme
Court of Ohio has held that a defendant does not maintain an absolute right to
withdraw his plea prior to sentencing. State v. Xie, 62 Ohio St. 3d 521, 526 (1992).
Instead, a trial court must hold a hearing to determine whether a “reasonable and
legitimate basis” exists for the withdrawal. Id. at paragraph one of the syllabus.
{¶18} When a presentence request to withdraw a guilty plea has been made
and denied, we consider several factors in reviewing a trial court’s decision was
proper, including: (1) whether the withdrawal will prejudice the prosecution; (2) the
representation afforded to the defendant by counsel; (3) the extent of the hearing
held pursuant to Crim.R. 11; (4) the extent of the hearing on the motion to withdraw
the plea; (5) whether the trial court gave full and fair consideration of the motion;
(6) whether the timing of the motion was reasonable; (7) the stated reasons for the
motion; (8) whether the defendant understood the nature of the charges and potential
sentences; and (9) whether the accused was perhaps not guilty or had a complete
defense to the charges. State v. Fischkelta, 3d Dist. Shelby No. 17-18-08, 2019-
Ohio-746, ¶ 11, citing State v. Lane, 3d Dist. Allen No. 1-10-10, 2010-Ohio-4819,
¶ 21, citing State v. Griffin, 141 Ohio App. 3d 551, 554 (7th Dist.2001). See also
State v. Fish, 104 Ohio App. 3d 236, 240 (1st Dist.1995). “None of the factors is
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Case Nos. 1-19-35, 1-19-36
determinative on its own and there may be numerous additional aspects ‘weighed’
in each case.” State v. North, 3d Dist. Logan No. 8-14-18, 2015-Ohio-720, ¶ 16,
citing Griffin at 554 and Fish at 240.
{¶19} Moreover, where a defendant challenges trial counsel’s performance
in connection with a plea, the defendant must meet the test for ineffective assistance
of counsel. Xie, 62 Ohio St. 3d at 524. This requires the defendant to demonstrate
that counsel’s performance was deficient, and that the deficient performance
prejudiced the defense. State v. Sergent, 3d Dist. Seneca No. 13-19-20, 2019-Ohio-
4717, ¶ 18, citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052
(1984). The defendant can establish the prejudice necessary for an ineffective
assistance of counsel claim only by demonstrating a reasonable probability that but
for counsel’s deficient performance, he would not have pleaded to the offense and
would have insisted on going to trial. State v. Williams, 8th Dist. Cuyahoga No.
100459, 2014-Ohio-3415, ¶ 11.
{¶20} It is within the sound discretion of the trial court to determine what
circumstances justify granting a presentence motion to withdraw a guilty plea. Xie
at paragraph two of the syllabus. Therefore, appellate review of a trial court’s
decision to deny a presentence motion to withdraw a guilty plea is limited to whether
the trial court abused its discretion. State v. Ferdinandsen, 3d Dist. Hancock No. 5-
16-08, 2016-Ohio-7172, ¶ 10, citing State v. Smith, 49 Ohio St. 2d 261, 361 (1977).
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An abuse of discretion implies that the trial court acted unreasonably, arbitrarily, or
unconscionably. State v. Adams, 62 Ohio St. 2d 151, 157-158 (1980). When
applying this standard, a reviewing court may not simply substitute its judgment for
that of the trial court. State v. Adams, 3d Dist. Defiance No. 4-09-16, 2009-Ohio-
6863, ¶ 33.
Discussion
{¶21} Initially, we note that the record reflects Gaddy was given a full
hearing in compliance with Crim.R. 11 before he entered his pleas. At the plea
hearing, the trial court inquired of Gaddy regarding whether he understood the
charges against him and the possible maximum penalties; Gaddy affirmed that he
understood. The trial court also advised Gaddy of the effect of his plea and of the
rights he was waiving by pleading guilty. Gaddy acknowledged that he understood
those rights, and stated that he was entering his guilty plea of his own free will. At
no point during the plea hearing did Gaddy indicate that his plea was anything other
than knowing, voluntary, and intelligent. Moreover, Gaddy never expressed
dissatisfaction with his trial counsel at the plea hearing.
{¶22} The record further demonstrates that the trial court gave Gaddy a
complete and impartial hearing on his presentence motions to withdraw his plea,
and gave full consideration to Gaddy’s testimony and the arguments raised by
substitute counsel in support of the motions. With regard to the failure to appear
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Case Nos. 1-19-35, 1-19-36
case, which did not go to trial but was resolved as part of the plea agreement, Gaddy
alleged that his trial counsel failed to collect hospital records pertaining to a medical
issue he suffered while incarcerated for a 2007 felony drug case. Gaddy speculated
that this evidence along with jail records would have demonstrated that he
committed the failure to appear offense out of fear of dying while incarcerated,
rather than simply “jumping bail.” (May 21, 2019 Plea Hrg. at 8). However, Gaddy
failed to offer any indication how these records would have justified the ten years
he remained outside the jurisdiction of Ohio before being located and arraigned on
the underlying home invasion charges.
{¶23} Gaddy also claimed that his trial counsel failed to share discovery with
him—specifically that the State had a 9-1-1 call from the victim and DNA testing
results from the crime scene. Gaddy argued that his lack of familiarity with the
prosecution’s evidence coupled with his dissatisfaction with his trial counsel’s
cross-examination of one of the victims led him to conclude that he no had choice
but to plead guilty to the aggravated burglary and aggravated robbery charges and
firearm specifications after the first day of trial rather than allowing the case to be
decided by a jury. Gaddy stated his pleas were tendered out of “pure emotion” to
avoid a longer prison term. (Id. at 9).
{¶24} However, on cross-examination, Gaddy admitted that trial counsel
shared the DNA results and other discovery evidence with him prior to trial. Gaddy
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Case Nos. 1-19-35, 1-19-36
nevertheless continued to express dissatisfaction with the chosen trial strategy and
tactics of trial counsel. Notably, the transcript from the first day and a half of trial
fails to substantiate Gaddy’s claims that his trial counsel’s performance was
deficient. Moreover, the record indicates that once Gaddy stated his desire to enter
into a plea agreement, trial counsel competently negotiated for a plea deal that
involved the State conceding to a merger of the offenses, which reduced Gaddy’s
maximum prison time exposure by half.
{¶25} As a result, we find that Gaddy has failed to establish that trial counsel
performed deficiently while representing him in this matter and thus has failed to
substantiate his ineffective assistance of counsel claim. Accordingly, we find no
abuse of discretion on the part of the trial court and we overrule the first assignment
of error.
Second Assignment of Error
{¶26} In his second assignment of error, Gaddy claims that the trial court
abused its discretion when it overruled his pro se motion for substitute counsel filed
approximately a month before the commencement of the trial in case number
CR2008 0056. As a point of clarity, we note the record reflects that the trial court
addressed Gaddy’s motion for new counsel at a pre-trial hearing on March 19, 2019.
At this hearing, Gaddy stated on the record that he no longer intended to proceed
with the motion. Specifically, the following transpired at the hearing:
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Case Nos. 1-19-35, 1-19-36
Trial Court: But, I did look it (the motion) over. I want to give
you the opportunity, if this is still how you want to go, well, you
can explain yourself. Is there anything you want to say in regard
to the Motion that you filed?
Gaddy: Well, me and [Defense Counsel] had a chance to talk and
I don’t want to go forward with the Motion.
Trial Court: Okay. So, you basically would withdraw this at this
time?
Gaddy: Yes, sir.
(March 19, 2019 Tr. at 2; Doc. No. 64).
{¶27} We recognize that at the hearing on his motions to withdraw his guilty
pleas, nearly two months later, Gaddy alluded to this prior motion for substitute
counsel in expressing his displeasure with his trial counsel’s performance
notwithstanding the fact that the record clearly reflects that Gaddy voluntarily
withdrew the motion at the March 19, 2019 hearing. Notably, new counsel was
appointed to Gaddy after he filed his motions to withdraw his guilty pleas based on
his allegations that his first trial counsel was ineffective on May 6, 2019. However,
after Gaddy withdrew the motion for substitute counsel, there was no motion
pending before the trial court.3 Accordingly, the record simply fails to support
3
On appeal, Gaddy makes reference to his statements at the May 21, 2019 hearing on his motions to withdraw
his pleas that he also requested substitute counsel in his 2007 drug case, case number CR2007 0325.
However, even though sentencing for that case, CR2007 0325, was handled at the same hearing as the other
two cases at issue on appeal, case number CR2007 0325 is not properly before us as no notice of appeal was
filed in that case. Therefore, our review consists only of the records of case numbers CR2008 0056 and
CR2018 0511.
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Case Nos. 1-19-35, 1-19-36
Gaddy’s claims that the trial court ever overruled his motion for substitute counsel,
let alone establishing the trial court committed error in this regard. For this reason,
the second assignment of error is overruled.
{¶28} Based on the foregoing, the assignments of error are overruled and
judgments of the trial court are affirmed.
Judgments Affirmed
PRESTON and ZIMMERMAN, J.J., concur.
/jlr
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