[Cite as State v. Relf, 2013-Ohio-2089.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                   Nos. 98798 and 98799




                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                           JAMIL RELF
                                                     DEFENDANT-APPELLANT




                                           JUDGMENT:
                                            AFFIRMED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                               Case Nos. CR-554305 and CR-554764

        BEFORE: Keough, J., Stewart, A.J., and Rocco, J.

        RELEASED AND JOURNALIZED:                    May 23, 2013
ATTORNEY FOR APPELLANT

Katrice McCrae
5403 Detroit Avenue
Cleveland, Ohio 44102

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
By: Holly Welsh
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, J.:

          {¶1} Defendant-appellant, Jamil Relf, appeals from the trial court’s judgment

denying his presentence motion to withdraw his plea. Finding no merit to the appeal, we

affirm.

                                      I. Background

          {¶2} Relf was indicted in Case No. CR-554305 on (1) two counts of aggravated

robbery, each with one- and three-year firearm specifications, and         notice of prior

conviction and repeat violent offender specifications; (2) one count of petty theft; (3) two

counts of felonious assault, each with one- and three year firearm specifications, and

notice of prior conviction and repeat violent offender specifications; and (4) one count of

having a weapon while under a disability.

          {¶3} In Case No. CR-554764, Relf was indicted on (1) one count of attempted

murder, with one- and three-year firearm specifications, and notice of prior conviction

and repeat violent offender specifications; (2) two counts of felonious assault, with one-

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

offender specifications; and (3) one count of having a weapon under disability.

          {¶4}   At a plea hearing on February 29, 2012, Relf, represented by assigned

counsel, entered guilty pleas as follows: in Case No. CR-554305, one count of aggravated

robbery with three-year firearm and notice of prior conviction specifications, and one
count of having a weapon while under a disability; in Case No. CR-554764, one count of

felonious assault with three-year firearm and notice of prior conviction specifications, and

one count of having a weapon while under a disability. The remaining counts and

specifications were nolled.

       {¶5} On March 9, 2012, prior to sentencing, counsel filed a motion to withdraw

the plea. In addition, counsel filed a motion to withdraw as counsel due to irreconcilable

differences with Relf. On March 20, 2012, the trial court assigned new counsel.

       {¶6} On April 30, 2012, upon the recommendation of the court psychiatric clinic,

the trial court referred Relf for a 20-day inpatient competency evaluation. Subsequently,

on June 28, 2012, the parties stipulated to a report from Northcoast Behavioral Healthcare

finding Relf competent to stand trial, and the court set the matter for a hearing on Relf’s

motion to withdraw his plea.

       {¶7} At the hearing, counsel for Relf argued that the motion should be granted

because Relf had told him that he was innocent of the charges, he only gave the answers

at the plea hearing that his lawyer had advised him to give, and his mother had pressured

him to take the plea.

       {¶8}   Defense counsel, the prosecutor, and the trial judge then asked Relf

questions about his recollection and understanding of the plea hearing. Relf testified that

he remembered the judge explaining the charges and possible penalties, as well as the

rights he was waiving by pleading guilty. He testified that he also remembered telling
the judge that he understood his rights and did not have any questions about the plea

proceedings, and that he had not been threatened or promised anything to take the plea.

       {¶9} The court denied Relf’s motion to withdraw his plea and proceeded to

sentencing. Counsel for Relf asked the court to take into consideration at sentencing that

Relf was only 21 years old and had a serious substance abuse problem, and counsel’s

belief, based on his contacts with Relf, that “he’s fairly low functioning from a cognitive

standpoint.”

       {¶10} The trial court sentenced Relf to an aggregate term of ten years incarceration

in each case. In ordering the sentences to be served concurrently, the trial judge stated,

“[t]he only reason I’m showing you any kind of leniency, and I do think it’s leniency, is

because I do believe you do have a lower cognitive functioning than the average person.”



                                       II. Analysis

       {¶11} In his first assignment of error, Relf argues that the trial court abused its

discretion in denying his motion to withdraw his plea. Relf contends that the trial court

should have granted his motion because presentence motions to withdraw are to be freely

granted and, in light of his low cognitive abilities, the trial court erred in relying on his

testimony that he understood his rights when he waived them and pleaded guilty.

       {¶12} Under Crim.R. 32.1, “[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.”

       {¶13} 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). It

is well established, however, that “[a] defendant does not have an absolute right to

withdraw a guilty plea prior to sentencing. A trial court must conduct a hearing to

determine whether there is a reasonable legitimate basis for the withdrawal of the plea.”

Id. at paragraph one of the syllabus.

       {¶14} The decision to grant or deny a motion to withdraw is within the trial court’s

discretion. Id. at paragraph two of the syllabus. Absent an abuse of discretion, the trial

court’s decision must be affirmed. Id. at 527. An abuse of discretion requires a finding

that the trial court’s decision was unreasonable, arbitrary, or unconscionable. Blakemore

v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983). This court has held that

       [i]t is not an abuse of discretion to deny a presentence motion to withdraw a
       guilty plea when a defendant: (1) is represented by competent counsel; (2) is
       given a full Crim.R. 11 hearing before entering a plea; and (3) is given a
       hearing on the motion to withdraw that plea during which the court
       considers the defendant’s arguments in support of the motion.

State v. Bridges, 8th Dist. No. 87633, 2006-Ohio-6280, ¶ 5; see also State v. Peterseim,

68 Ohio App.2d 211, 428 N.E.2d 863 (8th Dist.1980), paragraph three of the syllabus.

       {¶15} Our review of the record demonstrates that Relf was represented by

competent counsel throughout the proceedings. Additionally, prior to entering his plea,

he was given a full Crim.R. 11 hearing at which the court went to great lengths to ensure
that his plea was made knowingly, voluntarily, and intelligently. The record also reflects

that Relf was given a full and impartial hearing on his motion to withdraw his plea. At

this hearing, the court again made extensive inquiry of Relf to determine whether there

was any basis for withdrawing his plea. The record reflects, as the court determined, that

Relf understood the rights he was waiving in entering his plea and the effect of his waiver

of those rights.

       {¶16} Relf’s argument that the trial court could not rely on his representations

about his understanding of his rights and his waiver of those rights due to his low

cognitive ability is without merit. Low cognitive abilities do not necessarily render an

individual incapable of understanding the proceedings against them. State v. Bays, 2d

Dist. No. 95-CA-118, 1998 Ohio App LEXIS 227 (Jan. 30, 1998). Here, the totality of

the record does not support Relf’s claim that he did not possess sufficient mental capacity

to know, understand, and voluntarily waive his rights. He gave responsive answers

during both the plea hearing and the hearing on his motion to withdraw his plea, and there

is nothing in the record to indicate that he could not process and understand the questions

asked of him. Despite Relf’s claim otherwise, the record reflects that he understood his

rights and the effect of his waiver of those rights. As the prosecutor argued, Relf’s

attempt to withdraw his plea was due to nothing more than a change of heart.

Accordingly, the trial court did not abuse its discretion in denying the motion.

       {¶17} The first assignment of error is therefore overruled.
       {¶18} In his second assignment of error, Relf contends that both his original and

subsequent counsel were ineffective so as to deny him his constitutional right to effective

assistance of counsel. He contends that his original lawyer was ineffective because he

told Relf what to say even though he did not want to plead guilty. He contends that his

subsequent lawyer was ineffective because he did not supplement the motion to withdraw

filed by the original lawyer and did not call any witnesses at the hearing. Relf argues

that his subsequent counsel was also ineffective because counsel allowed him to testify at

the hearing on the motion to withdraw his plea and did not argue that Relf’s cognitive

delays affected his ability to understand the proceedings.

       {¶19} To establish ineffective assistance of counsel, a defendant must demonstrate

that counsel’s performance fell below an objective standard of reasonable performance

and that he was prejudiced by that deficient performance, such that, but for counsel’s

error, the result of the proceedings would have been different. Strickland v. Washington,

466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Sanders, 94 Ohio

St.3d 150, 151, 2002-Ohio-350, 761 N.E.2d 18. A reviewing court will strongly presume

that counsel rendered adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment. State v. Bradley, 42 Ohio St.3d 136, 538

N.E.2d 373 (1989).

       {¶20} Relf’s arguments have no merit.         There is nothing in the record that

substantiates Relf’s claim that he was coached and/or coerced to plead guilty by his

original counsel even though he did not want to. Instead, the record of the plea hearing
demonstrates that there was an extensive Crim.R. 11 colloquy between the judge and Relf

during which Relf was given every opportunity to ask questions and indicate that he did

not understand the proceedings. With respect to subsequent counsel, our review of the

record demonstrates that counsel adequately argued the motion to withdraw, despite not

calling any witnesses. Furthermore, counsel properly allowed Relf to testify about his

understanding of the plea proceedings in an attempt to demonstrate that his plea was not

knowingly, voluntarily, or intelligently made. And finally, the court was aware of Relf’s

cognitive abilities.    At the hearing on the motion to withdraw, the court had a

competency report in which Relf was deemed competent to stand trial. The court also

inquired fully of Relf regarding his understanding of the plea proceedings. And the trial

judge’s comment at sentencing that she was showing Relf leniency because of his low

cognitive ability demonstrated that the court was well aware of Relf’s intellectual

function. Thus, counsel was not ineffective for not arguing that Relf’s cognitive delay

made it impossible for him to enter a knowing, intelligent, and voluntary plea.

         {¶21} The second assignment of error is therefore overruled.

         {¶22} 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 out of this court directing the common

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




KATHLEEN ANN KEOUGH, JUDGE

MELODY J. STEWART, A.J., and
KENNETH A. ROCCO, J., CONCUR
