[Cite as State v. Thomas, 2016-Ohio-4961.]


                    Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 103759




                                     STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                    JOHN E. THOMAS
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                  Case No. CR-15-596270-A

        BEFORE: E.A. Gallagher, P.J., E.T. Gallagher, J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: July 14, 2016
ATTORNEYS FOR APPELLANT

Robert L. Tobik
Chief Public Defender
BY: Cullen Sweeney
310 Lakeside Avenue, Suite 200
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Joan Bascone
Mary M. Dyczek
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, P.J.:

       {¶1} Defendant-appellant John Thomas appeals the trial court’s denial of his

presentence motion to withdraw his guilty pleas, filed pro se while represented by

counsel, without a hearing. For the reasons that follow, we affirm the trial court’s

judgment.

       {¶2} On June 25, 2015, a Cuyahoga County Grand Jury indicted Thomas on

seven counts: two counts of felonious assault of a peace officer in violation of R.C.

2903.11(A)(1) and one count each of failure to comply, vandalism, drug possession,

driving while under the influence and resisting arrest. The charges arose out of a May

28, 2015 incident in which Maple Heights police officer, Michael Russo, attempted to

initiate a traffic stop of a vehicle Thomas was driving on Lee Road in Maple Heights.

Officer Russo activated the overhead lights and audible siren of his marked police vehicle

but Thomas failed to stop. During the course of the police pursuit that followed, Thomas

threw a baggie of marijuana out his car window, lost control of his vehicle striking

several trees, a utility pole and a marked police vehicle and allegedly traveled at a high

rate of speed, in reverse, towards Officer Russo and Maple Heights police sergeant

Joseph Mocsiran who avoided injury by taking cover behind Officer Russo’s police

vehicle.

       {¶3} Thomas continued driving until he reached his mother’s residence. He then

surrendered and was handcuffed and placed into custody. Thomas allegedly continued to

resist arrest and refused to comply with officers’ demands to get into the police vehicle.
After Thomas was pepper sprayed, he got into the police vehicle and was transported to

jail. A small glass vial of suspected marijuana soaked in PCP was found during a search

incident to Thomas’ arrest.

      {¶4} On September 9, 2015, Thomas and the state reached a plea agreement. At

the plea hearing, the state indicated that Thomas had agreed to plea guilty to an amended

Count 1 (attempted felonious assault) that included both of the victims in Counts 1 and 2,

Count 3 (failure to comply), Count 4 (vandalism), Count 5 (drug possession) and Count 6

(driving while under the influence). In exchange, the state agreed to dismiss the second

felonious assault charge (Count 2) and the resisting arrest charge (Count 7). Defense

counsel confirmed that these were the terms of the plea agreement.

      {¶5} The trial judge then proceeded with the plea colloquy. She confirmed that

Thomas was not under the influence of any substance that would impact his ability to

understand the proceedings, that he understood what he would be pleading guilty to, that

no threats or promises had been made to induce Thomas to enter a plea and that he was

satisfied with the services provided by his counsel. The trial court advised Thomas of his

constitutional rights and confirmed that Thomas understood the rights he would be giving

up by entering his guilty pleas. The trial judge specifically explained the amendment of

Count 1, i.e., “bringing in the attempt statute” and adding Officer Russo as a named

victim in that count, and the effect of that amendment, i.e., reducing the charge from a

felony of the first degree to a felony of the second degree, and she outlined in detail the

potential penalties Thomas would face by pleading guilty to each of the counts against
him. Thomas indicated that he understood the potential penalties that could be imposed

as a result of his pleas. The trial court then granted the state’s motion to amend Count 1

and Thomas entered guilty pleas to the amended Count 1 and Counts 3, 4, 5 and 6 in

accordance with the plea agreement. The trial court found that Thomas had entered his

pleas voluntarily and the remaining counts were nolled.

         {¶6} After accepting Thomas’ guilty pleas, the trial court referred the case for a

presentence investigation report, a mitigation of penalty report and a TASC evaluation.

A sentencing hearing was scheduled for the following month.

         {¶7} On September 23, 2015, Thomas filed, pro se (1) a “judicial notice,” (2) a

motion to withdraw his guilty pleas pursuant to Crim.R. 32.1 and to dismiss and replace

his appointed counsel and (3) a motion to “extend time for trial” to allow “new appointed

counsel” sufficient time to prepare for a trial.

         {¶8} In his “judicial notice,” Thomas indicated that he had “dismissed” his counsel

“who no longer controls the defense.” He indicated that he would be filing a civil rights

action alleging the use of excessive force by the Maple Heights Police Department and

that he sought “[n]ew appointed counsel * * * who will aggressively defend and try this

case.”    In his motion to withdraw his guilty pleas and to dismiss and replace his

appointed counsel, Thomas claimed that his guilty pleas were “based on a deceptive

phony deal set up for [him] to be suckered into being sentenced to colossal amount of

years contrary to phony promises claiming the opposite would occur.” He asserted that,

when entering his guilty pleas, he was “under the semi-impression” that his pleas “would
only require a 1-2 year likely prison term” and that he “now realizes he will likely get 5

[to] 10 — even 15 years or more.” He also claimed that based on the “grossly overblown

charges,” the “elements of crimes not fitting [the] facts,” his “reasonable viable defenses”

to the charges against him and the “amount of years [the] court ‘hinted’ at imposing that

could end his life in prison,” he was entitled to withdraw his guilty pleas.

       {¶9} With respect to his motion to dismiss and replace appointed counsel, Thomas

requested that his appointed counsel be replaced by another appointed attorney on the

grounds that his appointed counsel was a former assistant county prosecutor, allegedly

“deceived” Thomas as to what “his sentence may — could be, etc.” and allegedly agreed

to various continuances without Thomas’ consent, “selling out [his] speedy trial rights.”

       {¶10} Thomas later filed a pro se “discovery demand” and a pro se motion to

dismiss Count 1, as amended, and “supplement” to his motion to withdraw his guilty

pleas. Thomas argued that attempted felonious assault is not a valid offense under Ohio

law and that, as such, the trial court erred in accepting his guilty plea to that charge.

       {¶11} The sentencing hearing was held on October 15, 2015.                      Thomas was

represented by his appointed counsel at the hearing. At the outset of the hearing, the trial

court confirmed that it had received the presentence investigation report, the mitigation of

penalty report and the TASC evaluation and identified all of the motions and other

documents Thomas had filed pro se since the plea hearing.1 The trial court noted that


       1
         It is unclear from the record whether Thomas’ counsel was aware of the pro se filings prior to
the sentencing hearing.
Thomas was “present in court with his lawyer” and summarily denied all the motions

Thomas had filed pro se. The trial court then proceeded with sentencing.

      {¶12} Defense counsel addressed the court on Thomas’ behalf. He discussed

Thomas’ background and the circumstances of the case and indicated that both were

“fairly and accurately” reflected in the presentence investigation report and mitigation

report. He also addressed Thomas’ pro se motions, indicating that he was “surprised” by

the motions. As he explained:

      We had several conversations about these charges. I certainly repeatedly
      told him they were very serious and that the consequences could have been
      serious. I never told him he was getting probation, 100 years, five years,
      two years, or one year.

      I just indicated that, you know, he said he was accepting responsibility, and
      I said that that would certainly be looked upon favorably as it always is.

      I read the presentence report and the mitigation report, and he pretty much
      tells them what he told me. So I don’t know where all of this recent
      allegations and filings took place, but we discussed this at length. He gave
      me the impression that he understood what happened, that it was serious,
      and I said we would do the best we can —

      THE DEFENDANT: No.

      [DEFENSE COUNSEL]: — under the circumstances. And, you know,
      certainly it was a very serious situation. * * *

      {¶13} Thomas also spoke at the sentencing hearing, addressing both the charges to
which he had pled guilty and the pro se motions he had filed, as follows:

      Everything [defense counsel] said is wrong. This is my life, and I was
      under the influence, true enough, but I understood that what I did was
      wrong.

      And I did file the motion because I was reading law books and it said Count
      2 was never — was put out, the revocation of the books, which was not
      right. I didn’t do what they all hyped it up to be. They assaulted me. Did
      nobody get hurt but me, and I served my time, you know. And we didn’t
      really talk about, you know, the necessary strategy of this guilt here.

      I’m being put to the test because, you know, I work hard out there and I
      don’t hurt nobody and I didn’t try to hurt no police. I didn’t flee and elude.
       I just want to go home, you know.

      I bumped their car, true enough, one car, not two cars, one police car, and I
      said my insurance would take care of it. They bruised my ribs and
      assaulted me and betrayed me while I was handcuffed and while I was
      complying to their demands. And I thought about it being in this jail for
      almost six months that I’m tired of copping out to something that I didn’t
      do, you know, and I’m 49 years old and I want to have an opportunity and I
      don’t want to go to jail for anything I didn’t do.

      I just don’t know what to say, you know, I just, you know,
                    hope that you feel the mercy, deferral of my
                    plea, and I did redo this over again.  ***

      {¶14} After hearing from Thomas and defense counsel, the trial court sentenced

Thomas to an aggregate prison sentence of two years and nine months — two years on the

attempted felonious assault charge, nine months on the failure to comply charge (to be

served consecutively, as required by statute, to the sentence on the attempted felonious

assault charge), six months each on the vandalism and drug possession charges (to be

served concurrently to the sentence on the felonious assault), and ten days in the county

jail on the driving under influence charge (for which Thomas received credit for time

served).   The trial court also imposed a $525 fine and three years of mandatory

postrelease control. The trial court indicated that this was “the lowest sentence I could

have given you.”
       {¶15} Thomas appealed his convictions, raising the following assignment of error

for review:

       The trial court erred and abused its discretion in denying appellant’s

       pre-sentence motion to withdraw his plea and terminate counsel without

       holding a hearing on the motion.



       Law and Analysis

       {¶16} In his sole assignment of error, Thomas argues that the trial court erred in

failing to conduct a hearing on his presentence motion to withdraw his guilty pleas.2 We

disagree.

       {¶17} In general, “a presentence motion to withdraw a guilty plea should be freely

and liberally granted.” State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992).

Even before the trial court imposes a sentence, however, a defendant does not have an


       2
         Although in his assignment of error, Thomas asserts that the trial court
“erred and abused its discretion” in denying both his presentence motion to withdraw his
guilty pleas and his motion to “terminate counsel” without a hearing, in his brief, he argues only
that the trial court’s failure to hold a hearing on his motion to withdraw his guilty
pleas constitutes “reversible error.” He does not argue in his brief that the trial
court erred in denying his motion to dismiss and replace his appointed counsel or in
failing to hold a hearing on that motion. Accordingly, we are not required to
address the trial court’s denial of Thomas’ motion to dismiss and replace his
appointed counsel without a hearing on the motion. See App.R. 12(A)(2) (An
appellate court “may disregard an assignment of error presented for review if the
party raising it fails to identify in the record the error on which the assignment of
error is based or fails to argue the assignment separately in the brief, as required
under App.R. 16(A).”); see also App.R.16(A)(7) (requiring “[a]n argument containing
the contentions of the appellant with respect to each assignment of error presented
for review and the reasons in support of the contentions, with citations to the
authorities, statutes, and parts of the record on which appellant relies”).
“absolute right” to withdraw a guilty plea. Id. at paragraph one of the syllabus. A mere

change of heart regarding a guilty plea and possible sentence is an insufficient

justification for the withdrawal of a guilty plea. See, e.g., State v. Shaw, 8th Dist.

Cuyahoga No. 102802, 2016-Ohio-923, ¶ 7.

       {¶18} Therefore, before ruling on a presentence motion to withdraw a guilty plea,

the trial court “must conduct a hearing to determine whether there is a reasonable and

legitimate basis for the withdrawal of the plea.” Xie at paragraph one of the syllabus.

The scope of a hearing on a Crim.R. 32.1 motion to withdraw a guilty plea is “dependent

upon the facial validity of the motion itself.” State v. Wittine, 8th Dist. Cuyahoga No.

90747, 2008-Ohio-5745, ¶ 8; see also State v. Elliot, 8th Dist. Cuyahoga No. 103472,

2016-Ohio-2637, ¶ 26. “‘[B]old assertions without evidentiary support * * * should not

merit the type of scrutiny that substantiated allegations would merit.’” Wittine at ¶ 9,

quoting State v. Hall, 8th Dist. Cuyahoga No. 55289, 1989 Ohio App. LEXIS 1602

(Apr. 27, 1989). The decision to grant or deny a presentence motion to withdraw a guilty

plea is within the trial court’s discretion. Xie at paragraph two of the syllabus. “Absent

an abuse of discretion on the part of the trial court in making the ruling, its decision must

be affirmed.” Id. at 527.

       {¶19} The trial court did not hear any argument on Thomas’ motion to withdraw

his guilty pleas before denying the motion. Thomas asserts that because the trial court

summarily denied his presentence motion to withdraw his guilty pleas without a hearing,
we must reverse the judgment of the trial court and remand the matter for the trial court to

hold a hearing on the motion.

       {¶20} In this case, however, Thomas filed his motion to withdraw his guilty pleas,

pro se. Although a defendant has the right to counsel or the right to act pro se, a

defendant does not have a right to “hybrid representation.” State v. Mongo, 8th Dist.

Cuyahoga No. 100926, 2015-Ohio-1139, ¶ 13, citing State v. Martin, 103 Ohio St.3d 385,

2004-Ohio-5471, 816 N.E.2d 227, paragraph one of the syllabus, and State v. Thompson,

33 Ohio St.3d 1, 6-7, 514 N.E.2d 407 (1987). The right to counsel and the right to act

pro se “‘are independent of each other and may not be asserted simultaneously.’” Mongo

at ¶ 13, quoting Martin at paragraph one of the syllabus.

       {¶21} When a criminal defendant is represented by counsel and there is no

indication that defense counsel joins in the defendant’s pro se motion or otherwise

indicates a need for the relief sought by the defendant pro se, the trial court cannot

properly consider the defendant’s pro se motion. See, e.g., State v. Wyley, 8th Dist.

Cuyahoga No. 102899, 2016-Ohio-1118, ¶ 9 (“where a defendant, who is represented by

counsel, files pro se motions, ‘and there is no indication that defense counsel joins in

those motions or indicates a need for the relief sought by the defendant pro se,’ the pro se

motions are not proper and the trial court may strike them from the record”), quoting State

v. Davis, 10th Dist. Franklin No. 05AP-193, 2006-Ohio-5039, ¶ 12; State v. Pizzaro, 8th

Dist. Cuyahoga No. 94849, 2011-Ohio-611, ¶ 7 (“One who is represented by counsel and

who does not move the court to proceed pro se, may not ‘act as co-counsel on his own
behalf.’”), quoting State v. Greenleaf, 11th Dist. Portage No. 2005-P-0017,

2006-Ohio-4317, ¶ 70 (“Once appellant accepts counsel’s assistance and does not move

the court to proceed pro se, he may not ‘act as co-counsel on his own behalf.’”), quoting

Thompson at 6-7; State v. Washington, 8th Dist. Cuyahoga Nos. 96565 and 96568,

2012-Ohio-1531, ¶ 11 (“Because [defendant] chose to proceed with legal representation,

the court could not consider [his] motion to withdraw his plea, which his appointed

counsel did not agree with.”).

       {¶22} In this case, Thomas filed his motion to withdraw his guilty pleas while

represented by counsel. There is nothing in the record to suggest that defense counsel

joined in the motion or otherwise believed a basis existed for Thomas to withdraw his

guilty pleas. Indeed, the purported grounds for the withdrawal of Thomas’ guilty pleas

were contradicted by Thomas’ own statements at the plea hearing.          While Thomas

claimed, in his motion to withdraw his guilty pleas, that he had been “suckered” into

pleading guilty based on “phony promises” regarding the sentences he would receive, at

the plea hearing, Thomas stated that he understood what he would be pleading guilty to,

that no threats or promises had been made to induce Thomas to enter his guilty pleas, that

he understood the potential penalties that could result from his pleas and that he was

satisfied with the services provided by his appointed counsel.

       {¶23} Further, although Thomas filed a motion to dismiss and replace his

appointed counsel in conjunction with his motion to withdraw his guilty pleas, indicating

that he did not want his appointed counsel to continue to represent him, he did not ask to
proceed pro se. Rather, he sought to have new defense counsel appointed. As indicated

above, the trial court denied that motion, Thomas’ appointed counsel continued to

represent Thomas and spoke on his behalf at the sentencing hearing and Thomas has not

argued in his brief on appeal that the trial court’s denial of his motion to dismiss and

replace his appointed counsel (or to hold a hearing on the issue) was error.3




        “‘An indigent defendant’s right to counsel does not extend to counsel of the defendant’s
        3


choice.’” State v. Chavez, 8th Dist. Cuyahoga No. 99436, 2013-Ohio-4700, ¶ 39, quoting Thurston
v. Maxwell, 3 Ohio St.2d 92, 93, 209 N.E.2d 204 (1965). “To discharge a court-appointed attorney, a
defendant must show ‘a breakdown in the attorney-client relationship of such a magnitude as to
jeopardize a defendant’s rights to effective assistance of counsel.’” State v. Coleman, 37 Ohio St.3d
286, 292, 525 N.E.2d 792 (1988), quoting People v. Robles, 2 Cal.3d 205, 215, 85 Cal.Rptr. 166, 466
P.2d 710 (1970).

         Where, “during the course of a trial for a serious crime,” a defendant questions the
effectiveness and adequacy of his or her assigned counsel, “it is the duty of the trial judge to inquire
into the complaint and make such inquiry a part of the record.” State v. Deal, 17 Ohio St.2d 17, 244
N.E.2d 742 (1969), syllabus. “‘The defendant bears the burden of announcing the grounds for a
motion for appointment of new counsel. If the defendant alleges facts which, if true, would require
relief, the trial court must inquire into the defendant’s complaint and make the inquiry part of the
record.’” State v. Hawkins, 8th Dist. Cuyahoga No. 91930, 2009-Ohio-4388, ¶ 51-52, quoting State
v. Carter, 128 Ohio App.3d 419, 423, 715 N.E.2d 223 (4th Dist.1998). However, this “limited
judicial duty” arises “‘only if the allegations are sufficiently specific; vague or general objections do
not trigger the duty to investigate further.’” State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404,,
858 N.E.2d 1144, ¶ 68 quoting State v. Carter, 128 Ohio App.3d 419, 423, 715 N.E.2d 223 (4th
Dist.1998); Hawkins at ¶ 53-54, 61 (although “the better practice would have been for the trial
court to conduct a minimal inquiry regarding [defendant’s] concerns” so as to “permit[] the trial court
to quickly dispose of any nonmeritorious claims” and create “a more complete record on appeal,” the
trial court did not err by not conducting such an inquiry where defendant’s request for new counsel
was a general allegation and he did not allege specific facts that would require the appointment of
new counsel). Thomas does not contend in his brief that the allegations giving rise to his motion to
dismiss and replace appointed counsel were sufficient to warrant an inquiry from the trial court in this
case and counsel made no such showing when the issue was argued, for the first time, during oral
argument.
       {¶24} Had defense counsel filed a presentence motion to withdraw Thomas’

guilty pleas or joined in the pro se motion Thomas filed, some type of hearing would have

been required. See, e.g., Xie, 62 Ohio St.3d 521, 584 N.E.2d 715, at paragraph one of the

syllabus; Mongo, 2015-Ohio-1139, at ¶ 17, citing Wittine, 2008-Ohio-5745; Pizzaro,

2011-Ohio-611, at ¶ 8. However, because Thomas filed his motion to withdraw his

guilty pleas, pro se, while he was represented by counsel and the motion was not joined in

by defense counsel, the trial court properly refused to consider it. See, e.g., Mongo at ¶

17 (had trial court entertained defendant’s pro se motion to withdraw his guilty plea while

he was simultaneously being represented by assigned counsel, “this would have

effectively constituted hybrid representation in violation of the established law”); Pizzaro,

2011-Ohio-611, at ¶ 8-9 (denial of defendant’s pro se motion to withdraw guilty plea was

proper “since it was not properly before the court” where defendant was represented by

counsel and did not ask to proceed pro se); State v. Brown, 8th Dist. Cuyahoga No.

102549, 2015-Ohio-4764, ¶ 5-8 (trial court “did not have any obligation to consider”

defendant’s pro se motion to withdraw his guilty pleas claiming that his defense counsel

was ineffective and that he was “duped” into pleading guilty prior to sentencing where

defendant allowed his appointed counsel to continue to represent him); State v. Williams,

9th Dist. Lorain No. 11CA010026, 2012-Ohio-3417, ¶ 7-12 (where defendant, while

represented by counsel, filed a pro se motion to withdraw his no contest plea and to

appoint him new counsel, the trial court did not err in holding a hearing on defendant’s

motion to appoint new counsel, but declining to hear his motion to withdraw his plea).
Accordingly, the trial court did not err in denying Thomas’ pro se motion to withdraw his

guilty pleas without a hearing, and we overrule the sole assigned error.

       {¶25}   Judgment affirmed.

       It is ordered that appellee recover from appellant the 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 Cuyahoga

County Court of Common Pleas 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.


_______________________________________________
EILEEN A. GALLAGHER, PRESIDING JUDGE

EILEEN T. GALLAGHER, J., and
SEAN C. GALLAGHER, J., CONCUR
