[Cite as State v. Foster, 2018-Ohio-2191.]


                 Court of Appeals of Ohio
                                    EIGHTH APPELLATE DISTRICT
                                       COUNTY OF CUYAHOGA


                                   JOURNAL ENTRY AND OPINION
                                           No. 105931




                                             STATE OF OHIO

                                                        PLAINTIFF-APPELLEE

                                                  vs.

                                         RAYSHAWN FOSTER

                                                        DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED




                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-17-613685-A

        BEFORE: Celebrezze, J., E.A. Gallagher, A.J., and McCormack J.

        RELEASED AND JOURNALIZED: June 7, 2018
ATTORNEY FOR APPELLANT

Carmen P. Naso
Milton A. Kramer Law Clinic
11075 East Boulevard
Cleveland, Ohio 44106


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Brandon Piteo
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113




FRANK D. CELEBREZZE, JR., J.:

       {¶1} Defendant-appellant, Rayshawn Foster (“appellant”), brings this appeal challenging

his convictions for participating in a criminal gang, drug trafficking, and having a weapon while

under disability. Specifically, appellant argues that he was denied his constitutional right to the

effective assistance of counsel and that the trial court erred by denying his motion to withdraw

his guilty pleas. After a thorough review of the record and law, this court affirms.

                               I. Factual and Procedural History

       {¶2} On April 10, 2017, appellant pled guilty in two criminal cases. First, in Cuyahoga

C.P. No. CR-16-610468-D, appellant pled guilty to (1) criminal gang activity, a second-degree

felony in violation of R.C. 2923.42(A); (2) drug trafficking, a third-degree felony in violation of

R.C. 2925.03(A)(2) with a one-year firearm specification; (3) drug trafficking, a fifth-degree
felony in violation of R.C. 2925.03(A)(1); and (4) having weapons while under disability, a

third-degree felony in violation of R.C. 2923.13(A)(3) with forfeiture specifications. Second, in

Cuyahoga C.P. No. CR-17-613685-A, appellant pled guilty to having weapons while under

disability, a third-degree felony in violation of R.C. 2923.13(A)(3) with forfeiture specifications.

Pursuant to the plea agreement, the state recommended an aggregate eight-year prison sentence.

        {¶3} After the change of plea hearing, but before the sentencing hearing, appellant’s

appointed counsel passed away.            On April 24, 2017, the trial court assigned the public

defender’s office to represent appellant. The public defender filed a motion to withdraw as

counsel on May 5, 2017. The trial court granted the motion and assigned new counsel to

represent appellant on May 8, 2017.

        {¶4} The trial court held a sentencing hearing on May 24, 2017. Prior to the imposition

of sentence, appellant orally moved to withdraw his guilty pleas. After hearing arguments from

the parties, the trial court denied appellant’s motion. The trial court imposed an aggregate

11-year prison sentence and appointed appellate counsel to represent appellant.

        {¶5} On June 23, 2017, appellant filed the instant appeal challenging his convictions.1

Subsequently, appellant filed a disciplinary complaint against his appointed appellate counsel.

Appointed appellate counsel was served with the disciplinary complaint on February 6, 2018.

As a result, this court, sua sponte, granted appointed appellate counsel leave to withdraw and

appointed new counsel to represent appellant in this appeal. Appellant’s new counsel filed a

supplemental brief on March 30, 2018.

        {¶6} Appellant assigns two errors for review:


1
 In his notice of appeal, appellant appealed the trial court’s judgment entered in CR-17-613685-A. On April 27,
2018, appellant filed a motion to amend his notice of appeal to include the trial court’s judgment entered in
CR-16-610468-D, which this court granted.
       I. The trial court abused its discretion when it denied appellant a complete and
       impartial hearing on his motion to withdraw his plea.

       II. Appellant received ineffective assistance of counsel at sentencing.

                                      II. Law and Analysis

                              A. Motion to Withdraw Guilty Plea

       {¶7} In his first assignment of error, appellant argues that the trial court erred by denying

his request to withdraw his guilty plea.

       {¶8} Pursuant to Crim.R. 32.1, a criminal defendant may move to withdraw a previously

entered guilty plea. A motion to withdraw a guilty plea made prior to the imposition of sentence

is governed by a liberal standard that errs on the side of granting withdrawal. State v. Xie, 62

Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). However, “[a] defendant does not have an

absolute right to withdraw a guilty plea prior to sentencing.” Id. A defendant must demonstrate

a “reasonable and legitimate basis for the withdrawal of the plea.” Xie at id. “[D]espite the

more lenient standard applicable to [presentence] motions, an appellate court will only reverse a

denial of leave to withdraw when the trial court has abused its discretion.” State v. Peterseim,

68 Ohio App.2d 211, 213, 428 N.E.2d 863 (8th Dist.1980).

       {¶9} This court has developed a nonexhaustive set of criteria that can be examined in

determining whether a trial court abused its discretion in ruling on a motion to withdraw a plea.

       A trial court does not abuse its discretion in overruling a motion to withdraw: (1)
       where the accused is represented by highly competent counsel, (2) where the
       accused was afforded a full hearing, pursuant to Crim.R. 11, before he entered the
       plea, (3) when, after the motion to withdraw is filed, the accused is given a
       complete and impartial hearing on the motion, and (4) where the record reveals
       that the court gave full and fair consideration to the plea withdrawal request.

Peterseim at paragraph three of the syllabus.
       {¶10} In the instant matter, appellant challenges the trial court’s judgment denying his

motion to withdraw based on the first, third, and fourth Peterseim factors. Regarding the first

factor, appellant claims that his originally appointed attorney coerced him to plead guilty.

Appellant argues that his allegation of coercion calls into question whether he was represented by

highly competent counsel during the change of plea hearing. Appellant’s supplemental brief at

5.

       {¶11} After reviewing the record, we find no merit to appellant’s assertion that his

originally appointed attorney coerced him into pleading guilty. During the change of plea

hearing, the following exchange took place between the trial court and appellant:

       THE COURT: Has anyone, including your attorney, the prosecutor, or this Court
       made any promises, threats, or other inducements to you —

       [APPELLANT]: No.

       THE COURT: — to cause you to enter into this plea?

       [APPELLANT]: No.

(Emphasis added.) (Tr. 29-30.)

       {¶12} After the trial court reviewed the constitutional rights that appellant was waiving

by pleading guilty, the nature of the offenses, and the maximum penalties appellant could

receive, appellant confirmed again that “no one has made any threats or promises or other

inducements to [him] other than those that [were] heard on the record” during the change of plea

hearing. (Tr. 37-38.) After appellant formally tendered his guilty pleas, he confirmed on the

record that he voluntarily entered the guilty pleas and that the pleas were entered based on his

own free will and desire. (Tr. 40.) Finally, appellant confirmed that he was satisfied with the

representation he received from his originally appointed attorney. (Tr. 37.)
       {¶13} The record further reflects that appellant was represented by highly competent

counsel during the change of plea proceedings.             Appellant was originally indicted in

CR-16-610468-D with six felony offenses: a first-degree felony carrying a one-year firearm

specification, a second-degree felony, a third-degree felony, a fourth-degree felony, and two

fifth-degree felonies. Appellant was indicted in CR-17-613685-A with one third-degree felony.

Appellant’s attorney successfully negotiated a plea agreement under which the state amended a

first-degree felony to a felony of the third degree, nolled felonies of the fourth and fifth degree,

and agreed to recommend an aggregate eight-year prison sentence for both cases.

       {¶14} Appellant does not dispute the second factor. In his opening brief, appellant

stipulates that he had a full Crim.R. 11 hearing before entering the guilty plea.

       {¶15} Regarding the third and fourth factors, appellant argues that the trial court failed to

afford him a complete and impartial hearing on his motion to withdraw and that the trial court

failed to give his motion to withdraw full and fair consideration. We disagree.

       {¶16} The record reflects that the trial court held a fair and impartial hearing and gave

appellant’s plea withdrawal request full and fair consideration. Appellant was represented by

two attorneys during the sentencing hearing. The first attorney advised the trial court that

appellant informed him that he wishes to withdraw his guilty plea. (Tr. 44.) The second

attorney stated that he met with appellant on the day before the sentencing hearing and appellant

indicated that “he was unhappy with his plea, he wanted to withdraw it[.]” (Tr. 45.) The trial

court inquired about appellant’s basis for being displeased with the guilty plea.           One of

appellant’s attorneys asserted that the attorney originally appointed to represent appellant “forced

[appellant] to enter the plea[.]” (Tr. 45.)

       {¶17} The trial court confirmed that appellant wanted to withdraw his guilty plea on the
basis that he was forced to plead guilty. Thereafter, the trial court denied appellant’s motion to

withdraw the guilty plea, explaining,

        [w]e had quite a hearing on this case. I’m satisfied that all the requirements of
        [Crim.R.] 11 were there. [Appointed counsel] saw [appellant] numerous times.
        I’m sure he put that on the record. And [appellant] was in no way displeased or
        pressured into any plea and I am not going to use this opportunity to negate that
        plea.

(Tr. 46.)

        {¶18} The trial court gave the prosecutor an opportunity to address appellant’s request.

The prosecutor argued that appellant’s request was merely based on a change of heart.

Furthermore, the prosecutor argued that appellant was represented by highly competent counsel,

he was afforded a full Crim.R. 11 hearing, the motion was not made in a reasonable time, and

that appellant failed to state specific reasons for withdrawal, other than his “displeasure” with the

guilty plea.   The prosecution argued that appellant’s guilty plea was knowingly entered,

emphasizing that appellant pled guilty on April 10, 2017, five days after the proposed plea

agreement was placed on the record on April 5, and that appellant had a chance to confer with his

mother before he pled guilty.

        {¶19} The prosecutor advised the trial court that appellant’s recorded jail phone calls after

the change of plea hearing were reviewed and that the calls indicate that appellant had a change

of heart and was trying to get a better deal. The prosecutor described an April 23, 2017 phone

call during which “[appellant] was heard in a jail call discussing the pleas of his co-defendants.

He did state in this call that he feels like he’s going out like a sucker, I know we could have got

something lower, * * * [and] the search warrant was bogus[.]” (Tr. 52.) The prosecutor

described an April 24, 2017 phone call during which appellant stated,

        [c]all that public defender and tell him I’m taking my plea back. That eight years
       is not guaranteed. They are not about to take me away like this. You gonna feel
       dumb when I get 10 years. I’ve been wanting to take my plea back because it
       ain’t right, man. * * * I’m not copping out to that. Ya’ll about to take me away
       for 10 to 14 years. Ya’ll about to spend some money on me.

(Tr. 53.) The prosecutor described an April 25, 2017 phone call during which appellant stated,

“I’m about to take my plea back. I ain’t going out like that. * * * They stuck us with a

crazy-a[**] judge and she don’t play, so I’m not gonna take my chances.” (Tr. 54.) The

prosecution emphasized that appellant did not express dissatisfaction with counsel in any of these

phone calls, and that he merely appeared to have a change of heart.

       {¶20} After hearing the prosecution’s arguments, the trial court denied appellant’s motion

to withdraw his guilty plea, concluding,

       Mr. Foster, I’m sorry you’ve had a change of heart. You had excellent
       representation, you had numerous advisements from this Court including
       conversations with your family. Your plea was certainly knowingly, voluntarily
       and intelligently entered.

       The fact that you have a change of heart being in the jail probably hearing that this
       Court don’t play, I play very well, just not with the law and not with people’s
       lives.

(Tr. 55.) Accordingly, contrary to appellant’s assertions, the record reflects that the trial court

held a complete and impartial hearing on appellant’s motion to withdraw and gave the motion to

withdraw full and fair consideration.

       {¶21} This court has set forth additional factors that may be considered in reviewing a

trial court’s judgment on a motion to withdraw a guilty plea.         State v. Pannell, 8th Dist.

Cuyahoga No. 89352, 2008-Ohio-956, ¶ 13, citing State v. Benson, 8th Dist. Cuyahoga No.

83178, 2004-Ohio-1677. The additional factors include, 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, citing Pannell, citing Benson.

       {¶22} In the instant matter, regarding the first additional factor, appellant never filed a

motion to withdraw his guilty plea. Rather, appellant orally moved to withdraw the plea during

the sentencing hearing.

       {¶23} Regarding the second additional factor, appellant moved to withdraw his plea

because he was not happy with the plea and appointed counsel had forced him to plead guilty.

Regarding the third additional factor, the record reflects that appellant fully understood the nature

of the charges, the penalties, and the details of the plea agreement worked out with the state.

Finally, regarding the fourth additional factor, appellant failed to present evidence of a plausible

defense.

       {¶24} Based on the foregoing analysis, we cannot say that the trial court abused its

discretion in denying appellant’s motion to withdraw his guilty plea.              Appellant’s first

assignment of error is overruled.

                               B. Ineffective Assistance of Counsel

       {¶25} In his second assignment of error, appellant argues that he was denied his

constitutional right to effective assistance of counsel.

       {¶26} An ineffective assistance of counsel claim originates from the Sixth Amendment

guarantee of representation found in the United States Constitution.            This right requires

representation that meets a minimum standard of reasonableness. Strickland v. Washington, 466

U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Falling below such a standard is not

reversible error, however, where that failing does not result in prejudice to the defendant. Id. at

691. Appellant must demonstrate that counsel’s performance was deficient and that there is a
reasonable probability that the trial court’s sentence would have been different but for counsel’s

errors. Id. at 688; State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph three

of the syllabus.

         {¶27} Where one prong of this test is not satisfied, a reviewing court need not address the

other.      Bradley at 143, citing Strickland at 697.     A properly licensed attorney enjoys a

presumption of competence, and the person alleging ineffective assistance of counsel has the

burden of establishing the deficiency. State v. Hamblin, 37 Ohio St.3d 153, 155-156, 524

N.E.2d 476 (1988).

         {¶28} In the instant matter, appellant argues that his new attorney provided ineffective

assistance during the sentencing phase of the criminal proceedings. Appellant contends that his

new attorney’s failure to offer any mitigating evidence at sentencing constituted deficient

performance. He argues that he was prejudiced by counsel’s deficient performance because the

prosecution “was free to make unrebutted, unsupported claims” and the trial court sentenced him

to eleven years in prison, despite the fact that the prosecution recommended an eight-year prison

sentence. Appellant’s supplemental brief at 7.

         {¶29} Initially, we note that although appellant challenges counsel’s failure to speak in

mitigation at sentencing, he does not identify any specific mitigating factors that counsel could

have, but failed to present. Nevertheless, the record reflects that appellant’s counsel waived his

right to make a statement before the imposition of sentence in order to preserve appellant’s

appellate rights regarding the trial court’s denial of his request to withdraw his guilty plea.

Counsel did, however, ask the trial court to follow the recommended eight-year prison sentence.

(Tr. 57.)
       {¶30} Appellant waived his right to allocution and to address the court prior to the

imposition of sentence. Appellant confirmed that he “want[ed] to appeal.” (Tr. 58.)

       {¶31} The Ohio Supreme Court has held that “[t]he presentation of mitigating evidence is

a matter of trial strategy.” State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶

225. In this case, the record reflects that appellant’s counsel made a strategic decision — rather

than presenting mitigating evidence or arguing for a minimum sentence, counsel chose to

preserve appellant’s appellate rights in order to challenge the trial court’s denial of appellant’s

motion to withdraw his guilty pleas.           Counsel’s strategic decision was consistent with

appellant’s desire to file an appeal. Rather than allocuting or making a statement on his own

behalf, appellant confirmed that he wanted to file an appeal. Counsel could have reasonably

believed that offering mitigating evidence or advocating for a minimum sentence could have

affected appellant’s ability to challenge the knowing, intelligent, and voluntary nature of his

guilty pleas and the trial court’s judgment denying his motion to withdraw. Finally, even though

counsel did not present mitigating evidence, counsel did advocate for the recommended

eight-year prison sentence pursuant to the plea agreement.

       {¶32} Based on the foregoing analysis, we find no merit to appellant’s ineffective

assistance claim regarding counsel’s performance at sentencing. Appellant’s second assignment

of error is overruled.

                                           III. Conclusion

       {¶33} After thoroughly reviewing the record, we find that the trial court did not abuse its

discretion in denying appellant’s motion to withdraw his guilty plea and appellant was not denied

his constitutional right to the effective assistance of counsel.

       {¶34} Judgment affirmed.
       It is ordered that appellee recover of appellant costs herein taxed.

       The court finds 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.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the

Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

TIM McCORMACK, J., CONCURS;
EILEEN A. GALLAGHER, A.J., DISSENTS WITH SEPARATE OPINION


EILEEN A. GALLAGHER, A.J., DISSENTING:

       {¶35} I respectfully dissent from the majority opinion.

       {¶36} It is my opinion that the appellant was not given an opportunity by the trial court to

fully and fairly make his motion to withdraw his plea.

       {¶37} The records reflects that appellant’s originally assigned trial counsel died. On

April 25, 2017, the court assigned the Cuyahoga County Public Defender to represent the

appellant. On May 8, 2017, the court, on motion of the public defender, removed the public

defender as counsel due to a conflict and assigned other counsel. Said counsel, on that same

date, inexplicably filed a motion for a bill of particulars, a motion for discovery and demand for

discovery, generally considered pretrial motions even though appellant’s plea had been entered

and he was merely awaiting sentencing.

       {¶38} On May 24, 2017, appellant was before the court for sentencing with assigned

counsel as well as an attorney who had been retained by appellant’s family two days prior. The
attorney did have an opportunity to meet with appellant.

       {¶39} Retained counsel attempted to make a motion before the court but was, in essence,

foreclosed by the trial court from doing so.   The records reflects the following transpired:

       MR. MANCINO: Here’s the situation: The family called me, they came on
       Monday and wanted me to meet with him and I did meet with him yesterday. He
       said he was unhappy with his plea, he wanted to withdraw it and I haven’t had an
       opportunity * * *.

       THE COURT:        On what basis did he give you for this displeasure?

       MR. MANCINO: Well, he was forced to plea because whoever was appointed
       on the case, Mr. Kraus, apparently who is no longer here, cannot say anything, so
       it forced him to enter the plea in that case.

       THE COURT: That’s his basis?

       MR. MANCINO: That’s part of it. I haven’t had enough time to —

       THE COURT: Okay, so I’m denying his motion to withdraw his plea * * *.

       {¶40} Interestingly, the two assistant prosecuting attorneys who were then present for the

sentencing hearing, waxed eloquent for a total of nearly nine pages of the transcript in response

to the conversation had between retained counsel and the court.

       {¶41} As the trial court failed to afford appellant the time, the opportunity and a hearing

to fully move to withdraw his plea, I find that the court abused its discretion in denying what

apparently was going to be a motion to withdraw a plea.
