[Cite as State v. Banks, 2019-Ohio-1770.]

                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                    :

                 Plaintiff-Appellee,              :
                                                             No. 107346
                 v.                               :

JAMES BANKS,                                     :

                 Defendant-Appellant.             :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: May 9, 2019


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-17-619509-A


                                            Appearances:

                 Patituce & Associates, L.L.C., Joseph C. Patituce,
                 Catherine Meehan, and Megan Patituce, for appellant.

                 Michael C. O’Malley, Prosecuting Attorney, Ashley
                 Kilbane, and Jennifer Meyer, Assistant Prosecuting
                 Attorney, for appellee.


PATRICIA ANN BLACKMON, J.:

                   James Banks (“Banks”) appeals the trial court’s denial of his motion

to withdraw plea and his 14-year prison sentence, and assigns the following errors

for our review:
      I.     The trial court erred in denying Defendant’s Motion to Withdraw
             his Plea.

      II.    The trial court erred in failing to merge Defendant’s Felonious
             Assault and Aggravated Robbery convictions for the purposes of
             sentencing.

      III.   Trial counsel’s failure to argue that Defendant’s convictions for
             Felonious Assault and Aggravated Robbery merged for the
             purposes of sentencing constituted ineffective assistance of
             counsel for which Defendant suffered irreparable prejudice.

              Having reviewed the record and pertinent law, we affirm the trial

court’s judgment. The apposite facts follow.

              On the evening of February 17, 2017, two men with guns approached

a car parked in a driveway in Maple Heights. Two people were in the vehicle

smoking cigarettes. One of the men pistol whipped the female victim, then walked

to the other side of the car and shot the male victim in the leg. The two men then

stole the car. Two days later, Banks was seen driving the stolen car, and a police

chase ensued. Banks ultimately crashed the stolen car, and the police arrested him.

The victims subsequently identified Banks in a lineup as the man who assaulted,

shot, and robbed them.

              On February 13, 2018, Banks pled guilty to felonious assault in

violation of R.C. 2903.11(A)(1), a second-degree felony, with a three-year firearm

specification; aggravated robbery in violation of R.C. 2911.01(A)(1), a first-degree

felony, with a three-year firearm specification; grand theft in violation of R.C.

2913.01(A)(1), a fourth-degree felony; and having a weapon while under disability

in violation of R.C. 2923.13(A)(2), a third-degree felony.
              On March 7, 2018, Banks filed a motion to withdraw guilty plea. The

court held a hearing and denied Banks’s motion on March 13, 2018. On June 5,

2018, the court sentenced Banks to five years in prison for the felonious assault,

three years in prison for the aggravated robbery, and three years in prison for each

of the two gun specifications, all to run consecutively. In total, the court sentenced

Banks to 14 years in prison.

Motion to Withdraw Guilty Plea

              Generally, motions to withdraw guilty pleas filed before sentencing

are to be freely and liberally granted. State v. Xie, 62 Ohio St.3d 521, 527, 584

N.E.2d 715 (1992). See also Crim.R. 32.1.

      “However, a defendant does not have an absolute right to withdraw a
      guilty plea prior to sentencing. In ruling on a presentence motion to
      withdraw a plea, the court must conduct a hearing and decide whether
      there is a reasonable and legitimate basis for withdrawal of the plea.
      The decision to grant or deny such a motion is within the sound
      discretion of the trial court and will not be reversed absent an abuse of
      discretion.”

(Citations omitted.) State v. Armstrong, 8th Dist. Cuyahoga No. 103088, 2016-

Ohio-2627, ¶ 16.

              A trial court does not abuse its discretion in denying a motion to

withdraw a guilty plea under the following circumstances: (1) the defendant is

“represented by highly competent counsel”; (2) the defendant is afforded a full

Crim.R. 11 hearing before entering his or her plea; (3) the defendant “is given a

complete and impartial hearing” on his or her motion to withdraw plea; and (4) “the

record reveals that the court gave full and fair consideration to the plea withdrawal
request.” State v. Peterseim, 68 Ohio App.2d 211, 428 N.E.2d 863 (8th Dist.1980),

paragraph three of the syllabus.

               This court has set forth additional factors to consider when reviewing

motions to withdraw guilty pleas, including whether: “(1) the motion was made in

a reasonable time; (2) the motion stated specific reasons for withdrawal; (3) the

record shows that the defendant understood the nature of the charges and possible

penalties; and (4) the defendant had evidence of a plausible defense.” State v. Heisa,

8th Dist. Cuyahoga No. 101877, 2015-Ohio-2269, ¶ 19.

               In the case at hand, it is undisputed that Banks filed his motion to

withdraw guilty plea before he was sentenced. In the motion, Banks argued that he

has “mental issues,” including “PTSD[,] depression and mood swings,” was referred

to the psychiatric clinic for an evaluation, and “entered the plea not fully

understanding the proceedings.” Banks also argued that he “believes he is innocent

of the charges and that the method of identification [of him] was improper and in

violation of his constitutional rights.” Specifically, Banks alleged that “the police

officer conducted an improper photographic line-up by bringing pictures to the

home of the alleged victim or victims. Defendant, who lived closed [sic] to where

the incident occurred, had been known and seen in the area but was not responsible

for the crimes charged in this case * * *.”

               At the plea hearing, Banks’s September 15, 2017 competency

evaluation was stipulated to by the parties and introduced into evidence. This report

found that Banks “is capable of understanding the nature and objective of the
proceedings against him and of adequately assisting in his defense.” The parties also

stipulated to the admission of a letter from the court psychiatric clinic stating that

there was no evidence that Banks had “a severe mental illness or defect” and that

Banks “denied committing the alleged offenses.”

              The court asked Banks’s counsel if he shared the state’s plea offer with

Banks. Counsel replied, “Yes, I have, your Honor. He’s indicated to me he wants to

go forward with trial.” The court asked Banks if this was true. Banks replied, “Yes.”

              After a recess, the court went back on the record, indicating that a plea

deal had been reached in this case. The state explained the plea to the court in

Banks’s presence. Banks’s counsel indicated that he discussed the terms of the plea,

the evidence against him, and the potential penalties with Banks, and Banks was

prepared to plead guilty. The court asked Banks if he had any questions, to which

Banks replied, “I can’t get a bench trial?” Asked what he wanted to do, Banks stated,

“I don’t know. They just told me this stuff like 20 minutes ago.” Banks then stated

that he understood the plea and he will “take” it.        The court then stated the

following:

      All right. We’re going to take this slowly, okay, to make sure you
      understand, all right?

      Now, one other thing that I need you to make sure that you’re aware of,
      Mr. Banks, you have to answer out loud. And you have to answer loudly
      enough so that both our court reporter and I can hear you, okay,
      because the court reporter is taking a complete record of what we’re
      saying, all right?

              Banks stated that he understood. The court then held a plea hearing

pursuant to Crim.R. 11, in which Banks stated that he understood the nature of the
offenses to which he was pleading guilty, the constitutional rights he was giving up

by pleading guilty, and the maximum penalty that he was facing. Pursuant to

Crim.R. 11(C)(2)(a), a court may not accept a guilty plea without “[d]etermining that

the defendant is making the plea voluntarily, with understanding of the nature of

the charges and of the maximum penalty involved * * *.”

               Banks indicated that he was satisfied with the representation

provided by his counsel. At this February 13, 2018 hearing, Banks pled guilty to:

felonious assault in violation of R.C. 2903.11(A)(1), a second-degree felony, with a

three-year firearm specification; aggravated robbery in violation of R.C.

2911.01(A)(1), a first-degree felony, with a three-year firearm specification; grand

theft in violation of R.C. 2913.02(A)(1), a fourth-degree felony; and having a weapon

while under disability in violation of R.C. 2923.13(A)(2), a third-degree felony.

               On March 7, 2018, Banks filed a motion to withdraw his guilty plea.

On March 13, 2018, the court held a hearing on Banks’s motion, at which Banks was

represented by newly retained counsel; however, the attorney who represented him

at his plea hearing was also present in the courtroom. Newly retained counsel

argued that, although the court complied with Crim.R. 11 when accepting Banks’s

plea, Banks should be permitted to withdraw this plea, because he maintained his

innocence, as noted in the competency evaluation, and alleged that “he had very

little contact” with his previous attorney.

               Banks’s former attorney testified that he has been a criminal defense

lawyer since 1990 and before that he was a prosecutor for seven-and-a-half years.
The attorney recalled that Banks “did not cooperate” when he was referred for a

“psych report.” This attorney indicated that he spent time with Banks reviewing the

state’s case against him and he represented Banks in juvenile court at the probable

cause and bindover hearing in this case. One of the victims in this case testified in

juvenile court, and the attorney noted that Banks was aware that this witness would

testify again if Banks went to trial. Additionally, the attorney spent time with

Banks’s mother discussing the case. This attorney stated, “So in my opinion, it

wasn’t about me spending a hundred hours with him preparing him for this because

we had already been through it.” The attorney noted that Banks had access to all of

the discovery that was exchanged between the parties, as well as the transcript from

the proceedings in juvenile court.

               At the hearing on Banks’s motion to withdraw his plea, the court ruled

as follows: “I don’t see that there’s any basis to actually vacate that plea given the

information adduced at this hearing, the transcript, and the case law that governs

these motions to vacate the plea prior to sentencing. With that said, the motion to

vacate the plea is denied.”

               Upon review, we find the following regarding the factors courts

should consider when ruling on a motion to withdraw a guilty plea as stated in

Peterseim, 68 Ohio App.2d 211, 428 N.E.2d 863 and Heisa, 8th Dist. Cuyahoga No.

101877, 2015-Ohio-2269: Banks stipulated that the court complied with Crim.R. 11

at his plea hearing. Evidence in the record shows that Banks was represented by

competent counsel. The court held a hearing on Banks’s motion to withdraw his
guilty plea. The court gave full and fair consideration to the motion prior to denying

it. Banks filed the motion within a reasonable time — approximately three weeks —

after pleading guilty. In the motion, Banks argued that he did not understand the

plea proceedings because of “his mental condition”; he “had very little contact with

his attorney”; and the police “conducted an improper photographic line-up.”1 The

record shows that Banks understood the nature of the charges and possible

penalties, particularly because the court took things “slowly” to make sure that he

comprehended what was occurring.          Other than a fleeting and unsupported

reference to an allegedly improper photographic lineup, there is no evidence in the

record of Banks having a plausible defense.

              We cannot say that the court abused its discretion in denying Banks’s

motion to withdraw his guilty plea, and his first assigned error is overruled.

Allied Offenses

              We review a trial court=s R.C. 2941.25 allied offenses determination

under a de novo standard. State v. Williams, 134 Ohio St.3d 482, 2012-Ohio-5699,

983 N.E.2d 1245, & 28. Pursuant to R.C. 2941.25(A), A[w]here the same conduct by

defendant can be construed to constitute two or more allied offenses of similar

import, * * * the defendant may be convicted of only one.@




      1 Banks’s allegation of an improper lineup was not argued during the motion
hearing in the trial court, nor is it raised on appeal. Therefore, we disregard this
argument.
              In State v. Ruff, 143 Ohio St.3d 114, 2015-Ohio-995, 34 N.E.3d 896,

& 30-31, the Ohio Supreme Court detailed the allied offenses analysis:

      Rather than compare the elements of two offenses to determine
      whether they are allied offenses of similar import, the analysis must
      focus on the defendant=s conduct to determine whether one or more
      convictions may result because an offense may be committed in a
      variety of ways and the offenses committed may have different import.
      No bright-line rule can govern every situation.

      As a practical matter, when determining whether offenses are allied
      offenses of similar import within the meaning of R.C. 2941.25, courts
      must ask three questions when defendant=s conduct supports multiple
      offenses: (1) Were the offenses dissimilar in import or significance? (2)
      Were they committed separately? And (3) Were they committed with
      separate animus or motivation? An affirmative answer to any of the
      above will permit separate convictions. The conduct, the animus, and
      the import must all be considered.

              In the case at hand, the plea was specifically structured so that the

felonious assault and the aggravated robbery charges each included both victims

with the understanding that they would not merge for the purposes of sentencing.

At the plea hearing, Banks’s attorney agreed that the aggravated robbery and

felonious assault charges would not merge.

              At the sentencing hearing, one of the victims testified that Banks

“pistol whipped my girlfriend in the face, shot me through my scrotum and both of

my legs and robbed me.” The prosecutor stated to the court that the felonious

assault and aggravated robbery would not merge for sentencing to account for the

“separate victims.” Defense counsel did not object to this statement. The Ohio

Supreme Court has held that “two or more offenses of dissimilar import exist within
the meaning of R.C. 2941.25(B) when the defendant’s conduct constitutes offenses

involving separate victims * * *.” Ruff at ¶ 23.

               Accordingly, the felonious assault and the aggravated robbery are not

allied offenses subject to merger under the facts of the case at hand. We find no

error with the court’s sentencing Banks separately on these counts, and his second

assigned error is overruled.

Ineffective Assistance of Counsel

               To succeed on a claim of ineffective assistance of counsel, a defendant

must establish that his or her attorney=s performance was deficient and that the

defendant was prejudiced by the deficient performance. Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). However, Aa court need not

determine whether counsel=s performance was deficient before examining the

prejudice suffered by the defendant as a result of the alleged deficiencies. The object

of an ineffectiveness claim is not to grade counsel=s performance.@ Id. at 697. See

also State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 3743 (1989).

               In the instant case, Banks argues that his “counsels’ failure to argue,

at any point, that the convictions for Felonious Assault and Aggravated Robbery

merge for the purposes of sentencing rendered the performance ineffective.” This

argument fails because, as explained in our analysis of Banks’s second assigned

error, his convictions for these two offenses do not merge based on the fact that there

were two victims of his crimes. Counsel was not ineffective in this regard, Banks
suffered no prejudice as a result of his counsel’s failure to raise this argument, and

Banks’s third and final assigned error is overruled.

               Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending 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.



PATRICIA ANN BLACKMON, JUDGE

KATHLEEN ANN KEOUGH, J., CONCURS;
MARY J. BOYLE, P.J., CONCURS IN
JUDGMENT ONLY
