[Cite as State v. Alexander, 2016-Ohio-5707.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 103754



                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                            DERRICE M. ALEXANDER
                                                      DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-586418-A

        BEFORE:           McCormack, J., Jones, A.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED: September 8, 2016
ATTORNEY FOR APPELLANT

David P. Kraus
19333 Van Aken Blvd.
Suite 112
Cleveland, OH 44122


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Mahmoud S. Awadallah
Aleksandra B. Chojnacki
Assistant County Prosecutors
9th Floor, Justice Center
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:

         {¶1} Defendant-appellant Derrice Alexander appeals from the judgment of the

Cuyahoga County Court of Common Pleas that sentenced him to 30 years for involuntary

manslaughter, felonious assault, endangering children, domestic violence, having a

weapon while under disability, and improperly discharging into a habitation.            The

convictions stemmed from a shooting incident where Alexander fired a shot at his

girlfriend’s apartment during a heated argument and the bullet pierced the window and

struck their two-year-old son, killing him. Alexander pleaded guilty to six offenses.

Immediately before sentencing, he moved the court to withdraw his plea.     The trial court

denied his motion and sentenced him to the maximum end of the sentencing range

proposed in the plea agreement.   After a careful review of the record and applicable law,

we conclude the trial court did not abuse its discretion in denying Alexander’s motion to

withdraw his guilty plea and affirm his conviction.

         {¶2} In the early morning of June 10, 2014, Alexander, 24, and his girlfriend

Louise Dawson had an argument.        As the argument escalated, Alexander decided to

leave.    Before he left, he told her he needed to take his gun with him.         After he

retrieved the gun, Alexander and Dawson exchanged more heated words.         As Alexander

walked out of the apartment, he said to Dawson that he’s going to “shoot this bitch up.”

After exiting the apartment, Alexander again yelled to Dawson from outside:     “I got you,

bitch,” to which Dawson responded: “bitch, you ain’t got shit.” Dawson then saw

Alexander waving his gun around.     Soon after, he fired a shot at the front window.   The
bullet pierced the window and struck their two-year-old son, Derrice Alexander Jr., who

at that moment was coming down the stairs from upstairs. His son died later from

bleeding from the gun wound.

        {¶3} Alexander was subsequently indicted for six counts:                   murder, an

unclassified felony, endangering children, domestic violence,          felonious assault of

Louise Dawson, having a weapon while under disability, and improperly discharging into

a habitation.     The murder and felonious counts were accompanied with one- and

three-year firearm specifications, notice of prior conviction, and repeat violent offender

specifications.   The notice of prior conviction and repeat violent offender specification

stemmed from a 2011 attempted felonious assault and felonious assault conviction for

which Alexander served time but ultimately received a judicial release.

        {¶4} The prosecutor and Alexander’s counsel subsequently negotiated a plea

deal.   Under the plea agreement, Alexander would plead guilty to all charges in the

indictment except for murder, which would be reduced to involuntary manslaughter.

Further, there was a stipulation that none of the offenses were allied offenses.    Under the

terms of the plea agreement, the total term of prison for the six counts he pleaded guilty to

would range from 15 years to 30 years.     The court held a plea hearing and accepted the

guilty plea.

        {¶5} At the scheduled sentencing hearing a month later, Alexander’s counsel

orally moved the court to withdraw the guilty plea on Alexander’s behalf.             After a

hearing over the motion, the trial court denied it and the matter proceeded to sentencing.
The court sentenced Alexander to ten years for involuntary manslaughter; eight years for

felonious assault of Dawson; three years of firearm specifications each on those two

offenses; three years for endangering children; and three years for having weapons under

disability, all to be served consecutively.       The court also imposed six months on

domestic violence and two years on improperly discharging into a habitation, to be served

concurrently with the other counts.    Alexander now appeals.

       {¶6} On appeal, Alexander raises two assignments of error.             Under the first

assignment of error, he challenges the trial court’s denial of his presentence motion to

withdraw the guilty plea.

       {¶7} Crim.R. 32.1 governs withdrawals of guilty pleas. It states: “A motion to

withdraw a plea of guilty or no contest may be made only before sentence is imposed; but

to correct manifest injustice the court after sentence may set aside the judgment of

conviction and permit the defendant to withdraw his or her plea.”                Generally, a

presentence motion to withdraw a guilty plea should be freely granted. State v. Xie, 62

Ohio St.3d 521, 527, 584 N.E.2d 715 (1992). A defendant, however, does not have an

absolute right to withdraw a guilty plea prior to sentencing. The trial court is to hold a

hearing in order to determine whether there is a “reasonable and legitimate” basis for the

withdrawal of the plea. Id. The decision whether to grant or deny a motion to withdraw

a guilty plea is entirely within the sound discretion of the trial court, and we will not alter

the trial court's decision absent a showing of an abuse of that discretion. Xie at paragraph

two of the syllabus.
      {¶8} A trial court does not abuse its discretion in denying a motion to withdraw a

guilty plea where: (1) the defendant was represented by highly competent counsel; (2) the

defendant was afforded a full hearing pursuant to Crim.R. 11, before he entered the plea;

(3) the defendant was given a complete and impartial hearing on the motion to withdraw

the plea; and (4) the record reveals that the court gave full and fair consideration to the

plea withdrawal request.        State v. Stokes, 8th Dist. Cuyahoga No. 88939,

2007-Ohio-5063, ¶ 14, citing State v. Peterseim, 68 Ohio App.2d 211, 214, 428 N.E.2d

863 (8th Dist.1980). The courts have in addition considered factors such as whether the

motion was made timely; whether the motion states specific reasons for withdrawal;

whether the defendant understood the nature of the charges and the possible penalties;

and whether the defendant was perhaps not guilty or had a complete defense, or whether

the state would suffer prejudice if the defendant is allowed to withdraw the plea. State

v. Benson, 8th Dist. Cuyahoga No. 83718, 2004-Ohio-1677, ¶ 9; State v. Sellers, 10th

Dist. Franklin No. 07AP-76, 2007-Ohio-4523, ¶ 34.

      {¶9} Here, the record demonstrates that Alexander was represented by highly

competent counsel at his plea. Counsel negotiated a plea agreement that resulted in the

murder charge being reduced to involuntary manslaughter.        When asked by the trial

court at the plea hearing, Alexander confirmed he was satisfied with counsel’s

performance.   At the hearing over the motion to withdraw, the trial court emphasized it

found his counsel to be highly competent.
       {¶10} Next, our review of the plea hearing reflects that the trial court engaged

Alexander in a thorough colloquy under Crim.R. 11, explaining to Alexander each of the

constitutional rights he would be waiving by pleading guilty. The court described each

offense he was pleading guilty to and the penalties for each offense. At no time did

Alexander indicate he did not understand what he was advised of by the trial court.   The

trial court found that Alexander understood the nature of the charges, the effect of the

guilty plea, and the possible penalties, and that he made a knowing, intelligent, and

voluntary decision to enter the plea.

       {¶11}   When a trial court adheres to Crim.R. 11, a presumption is raised that a

plea is voluntarily entered. State v. Spence, 8th Dist. Cuyahoga No. 54880, 1989 Ohio

App. LEXIS 167, 2 (Jan. 19, 1989). The defendant seeking to withdraw the plea has the

burden of rebutting that presumption by demonstrating that the plea is infirm. State v.

Hall, 8th Dist. Cuyahoga No. 55289, 1989 Ohio App. LEXIS 1602 (Apr. 27, 1989).

Furthermore, the motion to withdraw a plea must first make a prima facie showing of

merit before the trial court need devote considerable time to it. Hall at 2, citing United

States v. Navarro-Flores, 628 F.2d 1178, 1183 (9th Cir.1980); United States v.

Dabdoub-Diaz, 599 F.2d 96, 100 (5th Cir.1979).          The scope of the hearing on a

defendant’s motion to withdraw a plea should reflect the substantive merit of the motion;

bold assertions without evidentiary support simply does not merit the scrutiny that

substantiated allegations would merit. Hall at 2-3.   The   scope of the hearing is within
the sound discretion of the trial court. State v. Bosby, 8th Dist. Cuyahoga No. 94466,

2011-Ohio-599, ¶ 10.

       {¶12} Here, when inquired of by the trial court as to the reason for his request to

withdraw the plea, Alexander was unable to articulate any specific reason for his request,

stating:

       I was asking to take back my plea because I feel as if it’s — the charges that

       I plead guilty to, some of the charges — I take full responsibility for what

       happened to my son, but the charges, the other charges, I feel as if I didn’t

       do.

(Emphasis added.)

       {¶13}   In response to Alexander’s vague denial of committing some of the

offenses, the trial court recalled its thorough Crim.R. 11 colloquy at the plea hearing and

noted that the plea agreement was the result of extensive plea negotiations between the

state and the defense.   Given that Alexander was unable to provide any reasonable and

legitimate basis for his withdrawal to rebut the presumption that his plea had been

knowing and voluntary, we find the hearing to be complete and impartial, reflective of the

motion’s relative merit, and conclude the trial court had given full and fair consideration

to Alexander’s request, in comport with the requirement of due process.           The first

assignment of error is overruled.

       {¶14}   Under the second assignment of error, Alexander claims he was denied the

Sixth Amendment right to counsel regarding his motion to withdraw his guilty plea.
To succeed on an ineffective assistance of counsel claim, Alexander must show that

counsel’s performance fell below an objective standard of reasonableness and the

deficient performance was prejudicial. Strickland v. Washington, 466 U.S. 668, 687,

104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A defendant can show prejudice only if there is

“a reasonable probability that, were it not for counsel’s errors, the result of the trial would

have been different.” State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989),

paragraph three of the syllabus.

       {¶15} Alexander argues that, because his counsel expressed a disagreement over

his interest to withdraw his guilty plea, he was essentially “abandoned” by counsel at the

hearing.   He claims that the “conflict of interest” between his counsel and him precluded

the trial court from denying his motion to withdraw.

       {¶16} Our review of the record reflects that immediately before his sentencing

hearing, Alexander’s counsel informed the court that Alexander wished to withdraw his

guilty plea, although he had advised Alexander against it. Counsel stated:

              Before he speaks, let me just indicate for the record, it was my
       intention to go forward with sentencing today. It was my intention to file a
       sentencing memorandum on his behalf. I was not able to do that because
       its contrary to this interest my client has expressed to me.
              In addition, Your Honor, I believe that my client has an interest in

       withdrawing his plea.       I have advised against that.      I wholeheartedly

       believe that he should not be withdrawing his plea today, and I hope that as

       I speak to you now he’s considering it and perhaps may not.

Later, counsel added:
              Judge, you know, so you are aware, I’m in a difficult position.     I

       don’t want to be in this dispute with my client. I don’t think that’s

       appropriate. I want to fight on his behalf. Your honor, I want — if the

       Court is not inclined to grant his motion for a trial and withdrawal of his

       plea, then I’d like to have a few minutes to get prepared to argue zealously

       on his behalf.

On this record, we do not find Alexander “abandoned” by counsel. State v. Drake, 8th

Dist. Cuyahoga No. 93761, 2010-Ohio-1065, ¶ 7 (although counsel expressed a

disagreement over whether the defendant should withdraw his guilty plea, counsel did not

abandon his client as counsel attended and participated in the hearing).

       {¶17} Furthermore, a defendant claiming his counsel fails to act on his request to

withdraw his plea is deemed to have received ineffective assistance of counsel only where

the possibility that he would have been allowed to withdraw the plea is not insubstantial.

State v. Strutton, 62 Ohio App.3d 248, 252, 575 N.E.2d 466 (2d Dist.1998).       See also

State v. Jones, 8th Dist. Cuyahoga Nos. 68284, 68285, 68286, 68287, 68288, 1995 Ohio

App. LEXIS 3463 (Aug. 24, 1995). In other words, where counsel disagrees with his

client’s wish to withdraw a plea, a defendant must demonstrate prejudice in order to

prevail on an ineffective-assistance-of-counsel claim.

       {¶18} Here, although counsel disagreed with Alexander’s attempt to withdraw the

guilty plea, counsel did move the court to withdraw the guilty plea on his client’s behalf

and also indicated to the court that he would zealously argue to support the motion.
More importantly, because Alexander could not articulate a reasonable or legitimate basis

for the withdrawal of his plea, there was little possibility that he would been allowed to

withdraw his plea.     Therefore,    Alexander fails to demonstrate that, but for his

counsel’s actions, the outcome of the hearing to withdraw the guilty plea would have been

different. Applying Strickland, we reject Alexander’s claim of ineffective assistance of

counsel. The second assignment of error is without merit.

      {¶19} 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. The defendant’s conviction having

been affirmed, any bail pending appeal 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.



____________________________________
TIM McCORMACK, JUDGE

LARRY A. JONES, SR., A.J., and
SEAN C. GALLAGHER, J., CONCUR
