[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
State v. Alexander
Combined Opinion