[Cite as State v. Maddox, 2017-Ohio-8061.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 105140




                                     STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                             DRESHAWN D. MADDOX
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                               Criminal Appeal from the
                        Cuyahoga County Court of Common Pleas
            Case Nos. CR-15-594546-A, CR-15-596664-B, and CR-16-605913-A

        BEFORE: Keough, A.J., E.T. Gallagher, J., and Stewart, J.

        RELEASED AND JOURNALIZED: October 5, 2017
ATTORNEY FOR APPELLANT

James J. Hofelich
614 W. Superior Avenue, Suite 1310
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Ashley B. Kilbane
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, A.J.:

      {¶1} Defendant-appellant, Dreshawn D. Maddox, appeals the trial court’s decision

denying his presentence motion to withdraw plea and sentence. For the reasons that

follow, we affirm.

      {¶2} In April 2015, Maddox was named in a three-count indictment filed in Case

No. CR-15-594546 charging him with one count each of drug trafficking, drug

possession, and possessing criminal tools. Subsequently in July, Maddox was charged

under Case No. CR-15-596664 with two counts of felonious assault with one- and

three-year firearm specifications; two counts of attempted felonious assault with one- and

three-year firearm specifications, and one count of carrying concealed weapons.        In

March 2016, Maddox was named in a four-count indictment filed in Case No.

CR-16-605913 charging him with two counts of drug possession, and one count each of

theft and falsification. At the time the indictments were filed, Maddox was currently on

probation in Case No. CR-14-586601 for the offense of attempted receiving stolen

property.

      {¶3} On June 14, 2016, Maddox pleaded guilty in CR-16-605913 to drug

possession and falsification.   He was referred to probation for the preparation of a

presentence investigative report, and a drug, alcohol, and mental health assessment.

      {¶4} On June 21, 2016, trial was scheduled to begin in CR-15-594546 and

CR-15-596664. The state presented Maddox two options for a packaged plea deal on

both cases — the first option was to plead guilty to one count of attempted felonious
assault with the one-year firearm specification and the carrying a concealed weapon

charge in CR-15-596664, and in CR-15-594546 plead to an amended charge of attempted

drug trafficking; the second option was to plead guilty to one count of felonious assault

and the carrying a concealed weapon charge with the understanding that prison time

would be imposed, and plead guilty to an amended charge of attempted drug trafficking in

CR-15-594546.     The trial court explained to Maddox that even if the prosecution

recommended a certain sentence, the court was not bound to that sentence; the decision

would be made after hearing from both parties and reviewing all mitigation reports.

      {¶5} After extensive discussions and a recess, Maddox chose the first option — to

plead guilty in CR-15-596664 to attempted felonious assault with the one-year firearm

specification, and carrying a concealed weapon and attempted drug trafficking in

CR-15-594546. After fully complying with Crim.R. 11, the court noted on the record

that the state recommended concurrent sentences. Maddox agreed that no threats or

promises were made, including any particular sentence. Additionally, he did not have

any questions regarding the potential penalties. The trial court continued the matter for

sentencing.

      {¶6} On August 11, 2016, Maddox appeared for sentencing on all three of his

cases and for a probation violation hearing on an unrelated matter. The court noted that

it had received a presentence investigation report, mental health assessment and report

from the court’s psychiatric clinic, and a TASC assessment. Additionally, the court

noted that it received two letters from Maddox. The first letter indicated that he wished
to withdraw his plea on the attempted felonious assault and carrying concealed weapons

case because he was scared when he entered his plea and because he wanted to prove his

actual innocence. In the second letter, Maddox indicated that he wanted to keep his

guilty plea in tact, but mentioned Case No. CR-15-594546, which was the drug offense

case. Although Maddox only wished to withdraw his plea on the felonious assault case,

the state argued that because the plea was a package deal with Case No. CR-15-594546, if

the court was going to grant the motion, the court should withdraw the plea on both cases.

      {¶7} Maddox acknowledged that he entered a plea on the offenses, but stated he

changed his mind because he was innocent. He reassured the court that he made this

decision on his own and while he spoke with his family, no one influenced or encouraged

him to withdraw his plea. The trial court continued the matter to review the transcript

from the plea hearing.

       {¶8} At the September hearing, the state advised the court that since the last

hearing, it reviewed Maddox’s taped jailhouse phone calls, and stated that immediately

following the June 21 plea hearing, Maddox called his girlfriend and told her that he took

a plea deal and relayed the specifics to her. Later he called his friend, who was not

supportive of Maddox’s decision to “cop” out. In another call, he spoke to his cousin

who explained to him that he needed to withdraw his plea and just wait it out to see if the

victim showed up for trial. Additionally, his cousin asked for the names of the victims.

       {¶9} Maddox explained to the court that he felt coerced with the package deal and

that he “copped out” after hearing all the years in prison he could receive if he went to
trial. Then upon reflection, he felt that he should not have to plead if he was innocent.

The court noted that based on the arguments and the phone calls, Maddox’s motivation

for withdrawing his plea was not based on a misunderstanding of the risks and nature of

the offenses, but rather a change of heart. Nevertheless, because the report prepared by

the psychiatric clinic indicated that Maddox suffered from an intellectual disability, the

court ordered that Maddox undergo a competency evaluation to stand trial. The court

again continued the matter, but also set the cases for sentencing.

       {¶10} On October 11, 2016, the court noted that Maddox was found competent to

stand trial, capable of assisting counsel in his defense, and understood the nature and

objectives of the legal proceedings against him. After the parties stipulated to the report,

the court accepted the psychiatric evaluations and conclusions, noting that if Maddox was

placed on community control sanctions, he would be eligible for the court’s mental health

docket. With these findings, the court denied Maddox’s motion to withdraw his plea,

concluding that Maddox merely had a change of heart.

       {¶11} The court sentenced Maddox in CR-15-596664 to one-year on the firearm

specification to be served prior and consecutive to 36 months on the attempted felonious

assault charge, but concurrent to a sentence of 18 months for the offense of carrying a

concealed weapon. In CR-15-594546, Maddox was sentenced to 180 days in jail on the

attempted drug trafficking offense. In CR-16-605913, Maddox was sentenced to 12

months on the drug possession charge concurrent with 180 days on the falsification
offense. The court ordered all sentences imposed on each case to run concurrent for a

total sentence of 4 years.

       {¶12} Maddox appeals, raising two assignments of error.

                                  I. Withdraw of Plea

       {¶13} In his first assignment of error, Maddox contends that the trial court abused

its discretion when it denied his motion to withdraw his plea. He argues that he was

denied effective assistance of counsel because counsel did not order a psychological

evaluation until after his plea, thus failing to recognize Maddox’s intellectual disorder.

Maddox also contends that he wanted to withdraw his plea to prove his innocence.

Finally, Maddox contends his plea should have been withdrawn because of his various

mental disorders.

       {¶14} We initially note that the offenses indicted under CR-16-605913 were not

part of any package plea deal where his plea in that case would have been affected by

Maddox’s motion to withdraw his plea. Additionally, Maddox did not seek to withdraw

his plea in CR-16-605913 and the state did not contend that the plea in this case should be

considered when ruling on Maddox’s motion. Finally, no argument has been raised on

appeal regarding the plea in this case.          Accordingly, Maddox’s conviction in

CR-16-605913 is summarily affirmed.

       {¶15} 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.”

       {¶16} 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.

       {¶17} The decision to grant or deny a presentence 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). A trial court does not abuse its discretion in denying a motion to withdraw the

plea where a defendant was (1) represented by competent counsel, (2) given a full

Crim.R. 11 hearing before he entered a plea, (3) given a complete hearing on the motion

to withdraw, and (4) the record reflects that the court gave full and fair consideration to

the plea withdrawal request. State v. Peterseim, 68 Ohio App.2d 211, 428 N.E.2d 863

(8th Dist.1980), paragraph three of the syllabus.

       {¶18} Maddox’s presentence motion to withdraw his guilty plea was based on a

claim that he wanted to prove his actual innocence.         When faced with a claim of
innocence, “‘the trial judge must determine whether the claim is anything more than the

defendant’s change of heart about the plea agreement.’” State v. Minifee, 8th Dist.

Cuyahoga No. 99202, 2013-Ohio-3146, ¶ 27, quoting State v. Kramer, 7th Dist.

Mahoning No. 01-CA-107, 2002-Ohio-4176, ¶ 58. A mere change of heart regarding a

guilty plea and the possible sentence is insufficient justification for the withdrawal of a

guilty plea. State v. Westley, 8th Dist. Cuyahoga No. 97650, 2012-Ohio-3571, citing

State v. Drake, 73 Ohio App.3d 640, 645, 598 N.E.2d 115 (8th Dist.1991). Likewise, a

defendant’s protestations of innocence are not sufficient grounds for vacating a plea that

was voluntarily, knowingly, and intelligently entered. Minifee, citing State v. Bloom, 8th

Dist. Cuyahoga No. 97535, 2012-Ohio-3805, ¶ 13.

          {¶19} On review, the record shows that Maddox was represented by competent

counsel, who advocated for his client during the plea process by expressing concern and

objecting to the state’s proposed package plea deal, contending that it was

unconstitutional. Moreover, counsel presented mitigating evidence and argument during

sentencing. Insofar as Maddox contends his plea should be vacated because he was

denied effective assistance of counsel, we find that Maddox has failed to demonstrate

how his trial counsel’s performance was deficient or that he would not have pleaded

guilty.

          {¶20} A plea will not be considered voluntary if it is the result of ineffective

assistance of counsel.         State v. Banks, 9th Dist. Lorain No. 01CA007958,

2002-Ohio-4858, ¶ 16. In order to prevail on this claim, Maddox must meet the test for
ineffective assistance of counsel. Xie, 62 Ohio St.3d at 524, 584 N.E.2d 715. This

requires a convicted defendant to prove two things — counsel’s performance was

deficient and the deficient performance prejudiced the defense.             Strickland v.

Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The claim fails

if the defendant cannot satisfy either prong of the test. State v. Bradley, 42 Ohio St.3d

136, 142, 538 N.E.2d 373 (1989).

      {¶21} Where a defendant challenges trial counsel’s performance in connection

with a guilty plea, the defendant can establish the prejudice necessary for an ineffective

assistance of counsel claim only by demonstrating that there is a reasonable probability

that, but for counsel’s deficient performance, he would not have pled guilty to the offense

at issue and would have insisted on going to trial. State v. Williams, 8th Dist. Cuyahoga

No. 100459, 2014-Ohio-3415, ¶ 11, citing Xie at 62, and Hill v. Lockhart, 474 U.S. 52,

106 S.Ct. 366, 88 L.Ed.2d 203 (1985); State v. Wright, 8th Dist. Cuyahoga No. 98345,

2013-Ohio-936, ¶ 12.

      {¶22} On appeal, Maddox contends that his counsel was ineffective for failing to

recognize that Maddox suffered from mental disorders and should have requested a

psychiatric evaluation prior to the entering into a plea. Maddox maintains that this

failure by counsel deprived him of the ability to effectively communicate with his

attorney about the plea agreement. There is nothing in the record demonstrating that

counsel should have been aware that an evaluation was necessary. Even though Maddox
was being evaluated for a mental health assessment in another case, the assessment was

requested for mitigation purposes at sentencing.

       {¶23} Moreover, if the assessment results would have revealed that Maddox was

unable to assist in his defense, was not competent to stand trial, or was suffering from a

mental health disorder that prevented him from appreciating and understanding the legal

proceedings and charges, then the trial court may have allowed Maddox to withdraw his

plea. However, the assessment did not yield such revelations. Accordingly, Maddox

cannot demonstrate that counsel was deficient under these circumstances, thus failing to

establish the second prong of the Strickland test.

       {¶24} Considering the other Peterseim factors, the record shows that Maddox was

given a full hearing in compliance with Crim.R. 11 before entering his plea. At the plea

hearing, the court conducted an extensive inquiry of Maddox to ensure that he understood

the charges against him and the maximum penalties, including that even if a sentence was

recommended, the court was not bound by that recommendation. The court also advised

him of the effect of his guilty pleas and the rights he was waiving by pleading guilty.

Additionally, the record demonstrates that Maddox’s intellectual disability did not affect

his ability to enter a knowing, intelligent, and voluntary plea. At no time did Maddox

convey to the court that he did not understand the proceedings. In fact, he stated that he

understood the plea agreement, the potential sentence, and the rights he was waiving.

Finally, Maddox has made no argument that his pleas in his other cases were involuntary

because of any mental disorder.
      {¶25} The record further demonstrates that the trial court gave Maddox a complete

and impartial hearing on his presentence motion to withdraw his guilty plea and gave full

and fair consideration to the arguments raised in support of his motion. The court

conducted the hearing over the course of three days, ordered psychiatric evaluations, and

considered written memorandums, thus evidencing a complete and impartial hearing.

      {¶26} After listening to the state’s response and reviewing the jailhouse-taped

phone calls, the trial court reiterated what occurred during the plea colloquy. It noted

that the arguments Maddox made in support of withdrawing his plea were raised at the

same time Maddox changed his plea to guilty, the same day that Maddox’s case was set

for trial. The trial court could only conclude that Maddox had a change of heart after

speaking with his girlfriend, his friend who was not supportive of him “copping out,” and

his cousin who told him to withdraw his plea because the victim was not coming to court.

      {¶27} We find no abuse of discretion in the trial court’s decision. Maddox’s

arguments in his presentence motion to withdraw his plea and on appeal are not sufficient

to warrant the withdrawal of his knowing, voluntary, and intelligent guilty pleas in these

cases. Accordingly, the assignment of error is overruled.

                                II. Maximum Sentence

      {¶28} In Case No. CR-15-596664, Maddox was sentenced to one-year on the

firearm specification, to be served prior to and consecutively with the maximum sentence

of 36 months on the attempted felonious assault, for a total of 4 years in prison. In his

second assignment of error, Maddox contends that the maximum sentence is contrary to
law and not warranted because (1) the trial court did not find that Maddox’s conduct was

the worst form of the offense, and (2) the state was recommending only a 21 month

sentence, which he anticipated.

       {¶29} Appellate review of felony sentences is governed by R.C. 2953.08, which

provides that when reviewing felony sentences, this court may increase, reduce, modify a

sentence, or vacate and remand for resentencing if we clearly and convincingly find that

the record does not support the sentencing court’s statutory findings, if applicable, or the

sentence is contrary to law. R.C. 2953.08(G)(2).

       {¶30} Contrary to Maddox’s assertion, the trial court is no longer required to give

findings prior to imposing a maximum sentence. That requirement was removed by State

v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, and not revived by the Ohio

General Assembly. See State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d

124, ¶ 1. Therefore, the trial court was not required to make any finding that Maddox’s

conduct was the worst form of the offense. Moreover, Maddox has failed to show by

clear and convincing evidence that the record does not support his sentence. See State v.

Malenda, 8th Dist. Cuyahoga Nos. 104736 and 104829, 2017-Ohio-5574, ¶ 17, 21

(Keough, A.J., concurring).

       {¶31} Additionally, Maddox’s argument that he did not receive the anticipated and

recommended 21-month sentence is not a valid argument to warrant this court to

determine that his sentence is contrary to law. A sentence is contrary to law if (1) the

sentence falls outside the statutory range for the particular degree of offense, or (2) the
trial court failed to consider the purposes and principles of felony sentencing set forth in

R.C. 2929.11 and the sentencing factors in R.C. 2929.12. State v. Hinton, 8th Dist.

Cuyahoga No. 102710, 2015-Ohio-4907, ¶ 10, citing State v. Smith, 8th Dist. Cuyahoga

No. 100206, 2014-Ohio-1520, ¶ 13.

       {¶32} In this case, the sentence is within the statutory range and the record clearly

reflects that the trial court considered the purposes and principles of felony sentencing set

forth in R.C. 2929.11 and 2929.12. Furthermore, under our review of the facts and

circumstances of the case, we find that the record supports the sentence. Maddox’s

second assignment of error is overruled.

       {¶33} Judgment 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 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 th

       e Rules of Appellate Procedure.




KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE

EILEEN T. GALLAGHER, J., and
MELODY J. STEWART, J., CONCUR
