         [Cite as State v. Andrews, 2012-Ohio-4664.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                    :    APPEAL NO. C-110735
                                                       TRIAL NO. B-0901344
        Plaintiff-Appellee,                       :

  vs.                                             :       O P I N I O N.

DEONDRE ANDREWS,                                  :

    Defendant-Appellant.                          :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed in Part, Sentence Vacated in Part,
                           and Cause Remanded

Date of Judgment Entry on Appeal: October 10, 2012


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott Heenan,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,

Wendy R. Calaway, for Defendant-Appellant.




Please note: This case has been removed from the accelerated calendar.
                     OHIO FIRST DISTRICT COURT OF APPEALS



J. H OWARD S UNDERMANN , Presiding Judge.

       {¶1}    Defendant-appellant Deondre Andrews appeals his conviction for

felonious assault with an accompanying firearm specification. In five assignments of

error, he challenges the overruling of his motion for new counsel, his motion for a

continuance to retain new counsel, and his motion to withdraw his guilty plea, the

effectiveness of his court-appointed counsel, and the trial court’s imposition of a

$10,000 fine and restitution.

       {¶2}    Because the trial court did not consider Andrews’s present and future

ability to pay the imposed fine and restitution, as mandated by R.C. 2929.19(B)(5),

we vacate his sentence as to the imposition of the fine and restitution, and remand

this case to the trial court for a hearing on the matter.     We affirm Andrews’s

conviction and sentence in all other respects.

                            I. Motion to Remove Counsel

       {¶3}    Andrews was indicted in March 2009 for aggravated burglary,

felonious assault, and having a weapon while under a disability. The aggravated-

burglary and felonious-assault charges were accompanied by firearm specifications.

Andrews’s case was set for trial in April 2010. When Andrews failed to appear, the

trial court issued a capias for his arrest, and granted a motion by Andrews’s court-

appointed attorney to withdraw as Andrews’s counsel.

       {¶4}    In August 2010, when Andrews was back in custody, the trial court

appointed new counsel to represent him. In January 2011, Andrews told the court

that he was unhappy with his court-appointed counsel and asked the court to appoint

another attorney to represent him. Following a hearing on the matter, the court

concluded that Andrews had failed to establish good cause sufficient to warrant the

substitution of counsel and denied his request.



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                                     II. Guilty Plea

       {¶5}    On April 14, 2011, Andrews withdrew his not-guilty pleas and

pleaded guilty to felonious assault and an accompanying firearm specification. In

exchange, the state dismissed the remaining charges and firearm specifications, and

recommended that Andrews serve four years in prison for felonious assault

consecutive to a three-year prison term for the firearm specification, for an aggregate

sentence of seven years in prison.    The trial court accepted Andrews’s guilty plea in

conformity with Crim.R. 11, and continued the case for preparation of a victim-impact

statement and sentencing.

                            III. Motion to Withdraw Guilty Plea

       {¶6}    On April 19, 2011, the day of his sentencing hearing, Andrews’s court-

appointed counsel told the court that Andrews had just informed her that he had

retained counsel and that he wanted to withdraw his guilty plea. The trial court

addressed Andrews directly, inquiring into his reasons for seeking withdrawal of his

guilty plea. Andrews told the court that he was unhappy with his court-appointed

counsel and that he had hired a private attorney.

       {¶7}    When the trial court asked Andrews why he was unhappy with his

court appointed counsel, Andrews told the court that counsel had represented to him

“that she was able to do certain things and she wasn’t able to do [them].” The court

reminded Andrews that he had entered his guilty plea two weeks before and asked

him what had changed since then. Andrews told the court that he didn’t want to be

sentenced for something that he did not do.

       {¶8}    When the trial court inquired further, Andrews stated that his

appointed counsel had “told [him] she could probably beat the agg[ravated] burglary,

but she said she couldn’t beat the felonious assault, and then all that. She said she



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didn’t really feel like going through the situation again anyway.”       The court then

replied, “Okay, so she advised you of all that and you entered the plea anyway,

right?” Andrews responded, “Yes.” The court then replied, “Okay. So now what’s

happened?” Andrews replied, “I’m still not satisfied with that.” The trial court then

responded, “Well you were satisfied before. Why are you not satisfied now?” Andrews

said, “I just told you why.” The court then replied, “That makes no sense to me.”

       {¶9}    The trial court then asked Andrews about the attorney he claimed to

have retained, specifically inquiring if this attorney was presently in court.

Andrews’s court-appointed counsel told the court that another attorney had been

present in court earlier that morning, but had left. The trial court asked Andrews for

the attorney’s contact information and recessed court.

       {¶10}   Following the recess, the trial court stated on the record that it had

attempted to contact the named attorney, but that he had not answered the trial

court’s telephone calls. The court further noted that the attorney had not placed of

record anything showing his retention by Andrews. Moreover, the trial court stated

that Andrews’s sentencing hearing had been set for 9 a.m. and it was now three

minutes until 11 a.m. The trial court told Andrews that because it had no evidence

before it that he had actually retained counsel, it would proceed to consider the

merits of his pro se motion to withdraw his guilty plea with his court-appointed

attorney.

       {¶11}   The trial court examined Andrews’s court-appointed counsel under

oath and determined that she had provided Andrews with highly competent

representation. The court then reviewed its plea colloquy with Andrews relative to

the remaining factors set forth in State v. Fish, 104 Ohio App.3d 236, 239, 661

N.E.2d 788 (1st Dist.1995). Finding that only one factor—the timeliness of the



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motion—weighed in favor of permitting withdrawal of the plea, the court denied the

motion.

       {¶12}       The trial court then proceeded to impose sentence. Andrews’s court-

appointed counsel asked the trial court to adhere to the recommended sentence.

Counsel further stated that she had read the victim’s statement and “that part of

what [the victim had said] ma[de her] skeptical, because he keeps talking about

$30,000 to $60,000 worth of jewelry. And I’ve got – between you and me combined

we don’t have that much jewelry, and Ms. Faller.” The trial court responded, “I’ll bet

you[’re] right.”

       {¶13}       The trial court then gave Andrews an opportunity to speak before

imposing sentence.        Andrews asked the trial court to continue the sentencing

hearing, so his “new attorney could be here.” The trial court stated, “I’d like that, too

but he’s not. So, anything else you want to say?” Andrews replied, “You going to tell

me I can’t continue it to another day till he get here?”     The trial court responded,

“Anything else you want to say? Tell me when you’re done. I guess you’re done.”

       {¶14}       The trial court then asked the assistant prosecuting attorney if he

wanted to make any remarks before sentencing. The assistant prosecuting attorney

told the court that the state had agreed to recommend a seven-year prison term as

part of Andrews’s guilty plea, but that it was within the court’s discretion as to

whether to impose that sentence.          The trial court stated it would follow the

recommended prison sentence in the plea agreement. It imposed a four-year prison

term for the felonious-assault offense to be served consecutively to a three-year

prison term for the gun specification, for an aggregate prison term of seven years.

       {¶15}       The trial court then ordered Andrews to pay $35,000 in restitution to

Troy Davis. Andrews stated, “That wasn’t part of the deal.” The trial court then



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stated, “Court costs, attorney fees, and you have--”.    Andrews interrupted stating,

“That wasn’t part of the plea agreement.” The trial court further stated, “You have a

$10,000 fine.” The court then proceeded to notify Andrews of his postrelease-control

obligations, the ramifications of violating those obligations, and his eligibility for

judicial release.

                     IV. Andrews’s Motion to Withdraw His Guilty Plea

       {¶16}    We address first Andrews’s third assignment of error in which he asserts

that the trial court abused its discretion by denying his presentence motion to withdraw

his guilty plea because he was innocent of the offense and because his court

appointed attorney had failed to achieve the results Andrews desired.        The Ohio

Supreme Court has held that a trial court should “freely and liberally grant” a

presentence motion to withdraw a guilty plea, provided that the defendant has

supplied the trial court with a reasonable and legitimate basis for the withdrawal.

See State v. Xie, 62 Ohio St.3d 521, 526-27, 584 N.E.2d 715 (1992). “A defendant,

[however,] does not have an absolute right to withdraw a guilty plea prior to

sentencing.” Id. at paragraph one of the syllabus. An appellate court will not disturb

a trial court’s ruling on a motion to withdraw a guilty plea absent a showing of an

abuse of discretion. Id. at paragraph two of the syllabus.

       {¶17}    Andrews’s claim that his guilty plea was involuntarily entered is

belied by the record. The record reveals that the trial court complied with the

requirements of Crim.R. 11 during Andrews’s plea hearing, and that it conducted a

full and impartial hearing before overruling Andrews’s motion.         The trial court

placed Andrews’s counsel under oath and found that she had provided Andrews with

highly competent representation in counseling his guilty plea, and specifically

weighed the facts presented at the hearing against the other Fish factors. Andrews’s



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                     OHIO FIRST DISTRICT COURT OF APPEALS



bare assertion of innocence and his unfounded complaints about his court-appointed

counsel did not justify the withdrawal of his guilty plea. Because the trial court did

not abuse its discretion in denying his motion, we overrule the third assignment of

error. See State v. Calloway, 1st Dist. No. C-040066, 2004-Ohio-5613, ¶ 14-15.

               V. Andrews’s Guilty Plea Waived Any Error Prior to the Plea

       {¶18}   In his first assignment of error, Andrews argues that the trial court

violated his right to counsel secured by the Sixth Amendment to the United States

Constitution by failing to hold a hearing on his January 2011 motion for new counsel.

       {¶19}   But the Ohio Supreme Court has held that a defendant who enters a

knowing, voluntary, and intelligent guilty plea while represented by competent

counsel waives any complaint as to claims of constitutional violations not related to

the entry of the guilty plea, including the right to challenge the deprivation of counsel

at a preliminary hearing stage. See State v. Spates, 64 Ohio St.3d 269, 595 N.E.2d

351 (1992), paragraph two of the syllabus; see also State v. Morgan, 181 Ohio App.3d

747, 2009-Ohio-1370, 910 N.E.2d 1075, ¶ 22-28 (1st Dist.). In our disposition of

Andrews’s third assignment, we concluded that Andrews, while represented by

competent counsel, had knowingly, voluntarily, and intelligently pleaded guilty to

felonious assault and the accompanying firearm specification. Thus, he waived the

ability to challenge the overruling of his January 2011 motion for new counsel.

Consequently, we overrule his first assignment of error.

       VI. Andrews Was Not Denied His Sixth Amendment Right to Counsel

       {¶20}   In his second assignment of error, Andrews argues that the trial court

denied him his Sixth Amendment right to the counsel of his choice by denying his

motion to continue the proceedings to permit his newly retained counsel to assist him

with his motion to withdraw his guilty plea and with the sentencing hearing.



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                      OHIO FIRST DISTRICT COURT OF APPEALS



       {¶21}    The right of an accused to select counsel of his choice exists only in cases

where the accused actually retains counsel with his own private funds. See United States

v. Gonzalez-Lopez, 548 U.S. 140, 151, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006); see also

State v. Chambliss, 128 Ohio St.3d 507, 2011-Ohio-1785, 947 N.E.2d 651, ¶ 18-20 and

syllabus (discussing Gonzalez-Lopez and holding that a pretrial ruling removing a

criminal defendant’s retained counsel of choice is a final appealable order subject to

immediate appeal). When appointing counsel for an indigent defendant, a trial court

has no constitutional obligation to permit the defendant to choose his or her attorney.

Gonzalez-Lopez at 151.

       {¶22}    The record does not support Andrews’s assertion that he had retained

private counsel prior to his sentencing hearing. Andrews’s court-appointed counsel was

the only attorney that appeared on Andrews’s behalf on the day of his sentencing

hearing. When Andrews informed the court that he had retained private counsel, the

trial court checked the docket in Andrews’s case, but no notice of appearance had been

filed by the attorney he claimed to have retained. The court, moreover, took a recess and

called this attorney, but it could not reach him.

       {¶23}    While the attorney that Andrews claimed to have retained for his

sentencing hearing filed a written motion to withdraw his guilty plea more than five

months after his sentencing hearing, the attorney did not state either in the motion or in

an affidavit that he had been retained prior to sentencing. The motion, moreover,

merely restated the same claims of ineffectiveness of trial counsel that Andrews had

orally asserted on the day of his sentencing hearing. Under these circumstances, we

cannot say that the trial court, in overruling Andrews’s motion for a continuance,

violated his Sixth Amendment right to counsel of his choice. See United States v.

Gaffney, 469 F.3d 211, 219 (1st Cir.2006) (holding under similar circumstances that a



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                       OHIO FIRST DISTRICT COURT OF APPEALS



district court’s denial of a defendant’s request for a continuance of his change of plea

hearing to explore the possibility of hiring a new attorney did not implicate his Sixth

Amendment right to counsel of his choice).          We, therefore, overrule the second

assignment of error.

               VII. The Trial Court Improperly Imposed A Fine and Restitution

       {¶24}     In his fifth assignment of error, Andrews argues the trial court erred

by ordering him to pay $35,000 in restitution and a $10,000 fine as part of his

sentence. He argues that the trial court failed to conduct a hearing to determine the

amount of restitution, and that the amount of restitution ordered was not supported

in the record. He also argues that the trial court erred by imposing a fine upon him

when he was demonstrably indigent.

                                     A. Restitution

       {¶25}     R.C. 2929.18(A)(1) provides that a trial court may order a felony offender

to pay restitution to a victim in an amount based upon the victim’s economic loss.      In

determining the amount of restitution, the court may rely upon an amount

“recommended by the victim, the offender, a presentence investigation report, estimates

or receipts indicating the cost of repairing or replacing property, and other information.”

R.C. 2929.18(A)(1).    The amount of the restitution must be supported by competent,

credible evidence in the record from which the court can discern the amount of the

restitution to a reasonable degree of certainty. See State v. Johnson, 1st Dist. No. C-

100702, 2011-Ohio-5913, ¶ 7; see also State v. Purnell, 171 Ohio App.3d 446, 2006-

Ohio-6160, 871 N.E.2d 613, ¶ 16 (1st Dist.).

       {¶26}     Andrews first argues that the trial court erred by failing to hold a

hearing on the amount of the restitution. But R.C. 2929.18(A)(1) expressly provides

that a trial court shall hold a hearing on restitution only if the victim, offender, or



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survivor disputes the amount. The record reveals that Andrews objected only to the

trial court’s imposition of restitution in general, arguing that restitution was not part

of his plea deal with the state. Because Andrews did not expressly object to the

amount of the restitution, the trial court did not commit reversible error by failing to

hold a hearing.

       {¶27}      Andrews next argues that the amount of the restitution ordered is not

supported by the record. But the record reflects that prior to Andrews’s sentencing

hearing, the trial court ordered a victim-impact statement. Troy Davis, the victim,

stated that Andrews had stolen approximately $30,000 to $40,000 worth of jewelry

from him, which police had not recovered, and for which he had no insurance to

cover his loss. The trial court ordered Andrews to pay Davis $35,000 in restitution.

Because the victim-impact statement provided competent credible evidence to

support the $35,000 restitution award, Andrews’s argument is meritless. See State

v. Sexton, 1st Dist. No. C-110037, 2011-Ohio-5246, ¶ 4-5.

                                              B. Fine

       {¶28}      Andrews further challenges the trial court’s imposition of a $10,000 fine.

R.C. 2929.18(A)(3)(b) provides that a trial court may impose a fine of not more than

$15,000 upon an offender who commits a second-degree felony. Andrews argues that

because he had court-appointed counsel, he was indigent, and the court, therefore,

should not have ordered him to pay the fine. We disagree.

       {¶29}      Ohio appellate courts have uniformly held that “[a] determination that a

criminal defendant is indigent for purposes of receiving court appointed counsel does

not prohibit the trial court from imposing a financial sanction pursuant to R.C. 2929.18.”

See State v. Kelly, 145 Ohio App.3d 277, 283-284, 726 N.E.2d 479 (12th Dist.2001). An

offender’s ability to pay a fine over a period of time is not equivalent to the ability to pay



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legal counsel a retainer fee at the outset of the criminal proceedings. Id. Thus, a trial

court’s imposition of a fine is not contrary to law simply because an offender has been

appointed counsel for the duration of his case. Id.

         C. The Trial Court Erred in Failing to Consider Andrews’s Ability to Pay the
                                     Fine and Restitution

         {¶30}   But the record reveals that the trial court committed reversible error

by failing to consider Andrews’s ability to pay the fine and restitution.           R.C.

2929.19(B)(5) provides that “[b]efore imposing a financial sanction under R.C.

2929.18 of the Revised Code or a fine under section 2929.32 of the Revised Code, the

court shall consider the offender’s present and future ability to pay the amount of the

sanction or fine.” When considering an offender’s ability to pay, the trial court is not

required to hold a hearing, but it may choose to do so pursuant to R.C. 2929.18(E).

See State v. Bemmes, 1st Dist. No. C-010522, 2002 Ohio App. LEXIS 1545, *6-7 (Apr. 5,

2002).

         {¶31}   The trial court, furthermore, need not consider any express factors or

make any specific findings, but there must be some evidence in the record that the court

at least considered the offender’s present and future ability to pay. Id. at *6. An

appellate court, for example, can infer from financial disclosures made in a presentence-

investigation report or from an offender’s own admissions that the trial court has

adequately considered the offender’s ability to pay. Id. at *7.

         {¶32}   In this case, there is simply no evidence that the court considered

Andrews’s present or future ability to pay the fine or restitution before imposing it. No

presentence-investigation report was completed. Moreover, no evidence was elicited at

Andrews’s sentencing hearing that would have indicated Andrews’s present or future

ability to pay the fine. Because the record is completely silent on the matter, the trial




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court committed plain error in ordering Andrews to pay the fine and restitution. Id.; see

also State v. Moore, 12th Dist. No. CA2006-09-242, 2007-Ohio-3472, ¶ 6-13; State v.

Ayers, 2d Dist. No. 2004CA0034, 2005-Ohio-44, ¶ 26; State v. Kuhn, 6th Dist. No. L-

02-1141, 2003-Ohio-3099, ¶ 12-18; State v. Adkins, 144 Ohio App.3d 633, 761 N.E.2d 94

(12th Dist.2001).

       {¶33}    Consequently, we vacate that part of Andrews’s sentence ordering

him to pay a $10,000 fine and to pay the victim $35,000 in restitution, and we

remand this cause to the trial court for a hearing on Andrews’s present and future

ability to pay. We, therefore, sustain in part and overrule in part his fifth assignment

of error.

                        VIII. Ineffective Assistance of Counsel

       {¶34}    In his fourth assignment of error, Andrews argues that his counsel

was ineffective for failing to argue the motion to withdraw his guilty plea and for

failing to object to the trial court’s imposition of the fine and restitution.

       {¶35}    To succeed on his claims, Andrews must show (1) that counsel’s

performance fell below an objective standard of reasonable representation, and (2)

that counsel’s deficient performance prejudiced him. See Strickland v. Washington,

466 U.S. 668, 694, 80 L.Ed.2d 674, 104 S.Ct. 2052 (1984); see also State v. Bradley,

42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraphs two and three of the syllabus.

       {¶36}    Andrews first argues that defense counsel was ineffective for failing to

participate in his pro se motion to withdraw his guilty plea. But in overruling

Andrews’s third assignment of error, we concluded that Andrews had failed to

demonstrate that his guilty plea had been involuntarily entered. Because Andrews

cannot show that a reasonable probability exists that he would have been successful

in his attempt to withdraw his guilty plea had counsel made the motion herself or



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assisted Andrews in arguing the motion to the court, we overrule the fourth

assignment of error to the extent that it challenges counsel’s effectiveness in this

regard.    See State v. Singletary, 2d Dist. No. 17352, 1999 Ohio App LEXIS 2050,

*10-11 (May 7, 1999).

         {¶37}   Andrews next argues that defense counsel was ineffective in failing to

object to the restitution order or the fine.        Because we held in Andrews’s fifth

assignment of error, that the trial court erred in imposing the fine and restitution

without considering Andrews’s ability to pay, defense counsel could be said to have been

ineffective in failing to object to the imposition of the fine and restitution. Thus, we

sustain the fourth assignment of error to the extent that it challenges counsel’s

effectiveness in this regard.

                                         IX. Conclusion

         {¶38}   In conclusion, we overrule Andrews’s first, second, and third

assignments of error.     We overrule in part, and sustain in part, Andrews’s fourth

assignment of error.     We overrule in part, and sustain in part, his fifth assignment of

error.    Therefore, we vacate the fine and restitution that was imposed as part of

Andrews’s sentence and remand this cause to the trial court for a hearing on

Andrews’s present and future ability to pay a fine and restitution. And we affirm the

trial court’s judgment and sentence in all other respects.

            Judgment affirmed in part, sentence vacated in part, and cause remanded.

CUNNINGHAM and FISCHER, JJ., concur.


Please note:
         The court has recorded its own entry this date.




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