State v. Brown

[Cite as State v. Brown, 2017-Ohio-9225.]

IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY

STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case Nos. 26945, 26947,
: 26948, 27249, 27250, 27251, 27419,
v. : 27420, 27421
:
WILLIAM T. BROWN : Trial Court Case Nos. 2014-CR-3632,
: 2014-CR-1637, 2014-CR-1721
Defendant-Appellant :
: (Criminal Appeal from
: Common Pleas Court)
:

...........

OPINION

Rendered on the 22nd day of December, 2017.

...........

MATHIAS H. HECK, JR., by HEATHER N. JANS, Atty. Reg. No. 0084470, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee

ROBERT ALAN BRENNER, Atty. Reg. No. 0067714, 120 West Second Street, Suite 706,
Dayton, Ohio 45402
Attorney for Defendant-Appellant

.............
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TUCKER, J.

{¶ 1} Defendant-appellant, William T. Brown, appeals from his convictions in Case

No. 2014 CR 01637, Case No. 2014 CR 01721 and Case No. 2014 CR 03632, in each

of which he pleaded guilty to two or more charges in lieu of a trial. Brown argues that

the trial court erred by accepting his pleas, and again by overruling his subsequent

motions to withdraw pursuant to Crim.R. 32.1, because he did not enter the pleas

intelligently, knowingly and voluntarily. Additionally, Brown argues that the court erred

by ordering him to pay costs, and in Case No. 2014 CR 03632, to pay restitution. We

find that Brown’s arguments lack merit, and therefore, we affirm the trial court.

I. Facts and Procedural History

{¶ 2} In Case No. 2014 CR 01637, a Montgomery County grand jury issued an

indictment against Brown on May 29, 2014, charging him with one count of aggravated

robbery in violation of R.C. 2911.01(A)(1), plus a firearm specification; one count of theft

in violation of R.C. 2913.02(A)(1), plus a firearm specification; and one count of having a

weapon while under disability in violation of R.C. 2923.13(A)(2). Brown pleaded guilty

to the charges of aggravated robbery and having a weapon while under disability. Tr. of

Plea Hr’g 4.

{¶ 3} In Case No. 2014 CR 01721, a Montgomery County grand jury issued an

indictment against Brown on June 12, 2014, charging him with one count of aggravated

robbery in violation of R.C. 2911.01(A)(1), plus a firearm specification; and one count of

having a weapon while under disability in violation of R.C. 2923.13(A)(2). Brown pleaded

guilty as charged. Tr. of Plea Hr’g 4.

{¶ 4} In Case No. 2014 CR 03632, a Montgomery County grand jury issued an
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indictment against Brown on December 5, 2014, charging him with two counts of felony

murder in violation of R.C. 2903.02(B), plus firearm specifications; one count of

aggravated robbery in violation of R.C. 2911.01(A)(1), plus a firearm specification; one

count of felonious assault in violation of R.C. 2903.11(A)(2), plus a firearm specification;

one count of discharge of a firearm on or near prohibited premises in violation of R.C.

2923.162(A)(3), plus a firearm specification; and one count of having a weapon while

under disability in violation of R.C. 2923.13(A)(2). Brown pleaded guilty to one count of

felony murder, with the attached firearm specification, as well as to the charges of

aggravated robbery and having a weapon while under disability. Tr. of Plea Hr’g at 3-4.

{¶ 5} At his final pretrial hearing on October 9, 2015, Brown and the State informed

the court that they had reached a plea agreement in the foregoing three cases. Id. at 3-

6. The court discussed the agreement with Brown as required by Crim.R. 11(C)(2), and

he formally entered his pleas into the record. Id. at 6-21.

{¶ 6} On October 21, 2015, Brown appeared for sentencing. Before the hearing

began, Brown notified his counsel that he wanted to withdraw his pleas, at least in part

on the basis of certain alleged deficiencies in counsel’s performance. Id. at 23-24.

Counsel informed the court, but the court nevertheless proceeded to sentence Brown

because he had not yet filed a motion pursuant to Crim.R. 32.1. See id. at 24-26. The

court sentenced Brown to an aggregate term of 24 years to life, in accord with his plea

agreement.1 Id. at 6, 27 and 30. It also ordered him to pay costs, and in Case No. 2014

1 The termination entries in all three cases, particularly those in Case Nos. 2014 CR
01721 and 2014 CR 03632, appear to require additional amendment inasmuch as they
do not appear to be entirely precise reflections of the terms of Brown’s plea agreement
as read into the record on October 9, 2015.
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CR 03632, to pay restitution.

{¶ 7} On October 23, 2015, Brown filed motions to withdraw his pleas in all three

cases, and his trial attorney sought leave to withdraw as counsel. In a pair of decisions

entered on October 29, 2015, the court overruled Brown’s motions, allowed his trial

attorney to withdraw, and appointed substitute counsel. Brown then submitted a second

series of motions to withdraw his pleas on November 17, 2015. The court held a hearing

on December 7, 2015, and in a decision filed two days later, it again overruled Brown’s

motions to withdraw. In considering Brown’s motions, the court applied “the pre-

sentencing withdrawal standard” because it had been notified before sentencing that he

wanted to withdraw his pleas. Decision Overruling Def.’s Mot. to Withdraw Guilty Plea

4, Dec. 22, 2016.2

II. Analysis

{¶ 8} Assignment of Error Number One:

THE TRIAL COURT ERRED BY OVERRULING BROWN’S

MOTION TO WITHDRAW HIS GUILTY PLEAS.

{¶ 9} In this assignment of error, Brown argues that he “had two legitimate and

2 All references in this opinion to the trial court’s ruling on Brown’s motions to withdraw
relate to the trial court’s decision of December 22, 2016. Brown filed his initial notices of
appeal in this matter on December 9, 2015, the same day that the trial court entered its
decision overruling Brown’s second series of motions to withdraw; he eventually filed no
fewer than twelve notices of appeal. We dismissed three of these on November 10,
2016. In our subsequent decision and entry of December 5, 2016, we sua sponte
consolidated the remaining six appeals (Case Nos. CA 26945, CA 26947, CA 26948, CA
27249, CA 27250 and CA 27251), and remanded the cases “to the trial court to enter or
re-enter decisions resolving the motions to withdraw Brown’s guilty pleas.” The trial court
entered its decision of December 22, 2016 in compliance with our order, after which
Brown filed three more notices of appeal (Case Nos. CA 27419, CA 27420 and CA
27421). On January 31, 2017 we sua sponte consolidated all nine referenced appeals.
 -5-

reasonable bases on which to withdraw his plea[s].” Appellant’s Br. 7, Feb. 21, 2017.

First, he faults his trial counsel for “not fully shar[ing] the discovery [materials produced

by the State] with him,” and second, he maintains that he did not understand a material

term of his comprehensive plea agreement—the aggregate term of imprisonment to which

he would be sentenced. Id. On the latter point, Brown contends that he believed “that

he could be sentenced to a flat 20 year prison term even though his counsel, the State,

and the judge all believed [that he] would be sentenced to a term of 24 years to life.” Id.

In response, the State argues that Brown had no valid reason for withdrawing his pleas,

and that the trial court did not abuse its discretion by overruling Brown’s motions to

withdraw. See Appellee’s Br. 13-17, May 9, 2017.

{¶ 10} A “presentence motion to withdraw a guilty plea should be freely and

liberally granted,” although “a defendant does not have an absolute right to withdraw a

plea prior to sentencing.” State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992).

Instead, after conducting a hearing on the motion, the trial court must “determine whether

[the defendant] has a reasonable and legitimate basis” for the withdrawal, rather than “[a]

mere change of heart.” Id.; State v. Lambros, 44 Ohio App.3d 102, 103, 541 N.E.2d 632

(8th Dist.1988). Some of the factors that a trial court may weigh in considering a

presentence motion to withdraw a plea are the following:

(1) whether the state will be prejudiced * * *, (2) the representation afforded

to the defendant by counsel, (3) the extent of the Crim.R. 11 plea hearing,

(4) the extent of the hearing on the motion to withdraw, (5) whether the trial

court gave full and fair consideration to the motion, (6) whether the timing

of the motion was reasonable, (7) the reasons for the motion, (8) whether
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the defendant understood the nature of the charges and potential

sentences, [and] (9) whether the accused was perhaps not guilty or had a

complete defense to the charge [or charges].3

(Citations omitted.) State v. Cuthbertson, 139 Ohio App.3d 895, 898-899, 746 N.E.2d

197 (7th Dist.2000), citing State v. Thomas, 7th Dist. Mahoning Nos. 96 CA 223, 96 CA

225 & 96 CA 226, 1998 WL 934645 (Dec. 17, 1998), and State v. Fish, 104 Ohio App.3d

236, 240, 661 N.E.2d 788 (1st Dist.1995); see also State v. Askew, 2d Dist. Montgomery

No. 20110, 2005-Ohio-4026, ¶ 10-11, quoting Cuthbertson, 139 Ohio App.3d at 898-899.

Absent “an abuse of discretion on the part of the trial court,” its decision on a presentence

motion to withdraw “must be affirmed.” Xie, 62 Ohio St.3d at 527; State v. Donaldson,

2d Dist. Greene No. 06 CA 110, 2007-Ohio-5756, ¶ 6.

{¶ 11} A “trial court abuses its discretion when it makes a decision that is

unreasonable, unconscionable, or arbitrary.” State v. Darmond, 135 Ohio St.3d 343,

2013-Ohio-966, 986 N.E.2d 971, ¶ 34, citing State v. Adams, 62 Ohio St.2d 151, 157, 404

N.E.2d 144 (1980). Appellate review under this standard “is deferential and does not

permit [the] appellate court to simply substitute its judgment for that of the trial court.”

Darmond, 2013-Ohio-966, ¶ 34, citing State v. Morris, 132 Ohio St.3d 337, 2012-Ohio-

2407, 972 N.E.2d 528, ¶ 14. Hence, we will not usually find an “abuse of discretion in

denying a pre-sentence motion to withdraw a guilty plea” in a case in which “(1) the

[defendant] is represented by highly competent counsel, (2) the [defendant is] afforded a

3 In our past decisions, we have omitted the fifth of these and referred to a renumbered
list of eight factors. See, e.g., State v. Donaldson, 2d Dist. Greene No. 06 CA 110, 2007-
Ohio-5756, ¶ 8-9; State v. Askew, 2d Dist. Montgomery No. 20110, 2005-Ohio-4026, ¶
10-11, citing State v. Cuthbertson, 139 Ohio App.3d 895, 898-899, 746 N.E.2d 197 (7th
Dist.2000).
 -7-

full hearing, pursuant to Crim.R. 11, before entering the plea, (3) * * * the [defendant] is

given a complete and impartial hearing on the motion, and (4) the record reveals that the

trial court gave full and fair consideration to the [defendant’s] request.” Donaldson, 2007-

Ohio-5756, ¶ 7, citing State v. Peterseim, 68 Ohio App.2d 211, 428 N.E.2d 863 (8th

Dist.1980).

{¶ 12} In its evaluation of Brown’s motion to withdraw, the trial court individually

weighed eight of the factors listed in the Cuthbertson opinion as part of its analysis.4

Decision Overruling Def.’s Mot. to Withdraw Guilty Plea 4-15. It found that: (1) the State

would be prejudiced were Brown allowed to withdraw his pleas, but not enough to justify

overruling Brown’s motion; (2) Brown received “competent legal counsel” at all relevant

times; (3) Brown “was afforded a full and extensive hearing in accordance with Crim.R.

11”; (4) the hearing on the motion was “complete and impartial”; (5) the timing of the

motion was reasonable; (6) the reasons Brown offered in support of withdrawal were

“unpersuasive”; (7) Brown “understood the charges and penalties” associated with his

plea agreement; and (8) the record of the case provided “no indication that [Brown] ha[d]

a complete defense” to the charges against him. Id. at 5-15. Finding thus that only two

of the eight factors favored Brown’s position (i.e. the first and the fifth), the court overruled

his motion. See id. at 16.

{¶ 13} Here, as noted, Brown directs his arguments to the second and seventh

factors, contending that his trial counsel improperly withheld discovery materials from him

and that he did not understand key provisions of his plea agreement with the State.

4 See supra note 3. The trial court cited our decision in Donaldson, in which we cited
our earlier decision in Askew. Decision Overruling Def.’s Mot. to Withdraw Guilty Plea
4.
 -8-

Appellant’s Br. 7. The record before us includes little evidentiary support for these

contentions.

{¶ 14} Although Brown’s trial counsel acknowledged that he did not provide Brown

with copies of all discovery materials, counsel testified that he discussed the materials

with Brown and refrained from providing copies only because the “majority of the

discovery, [to his] understanding, was ‘for counsel[’s] eyes only.’ ” Tr. of Hr’g on Def.’s

Mot. to Withdraw 21-23, Dec. 7, 2015. The trial court accepted counsel’s account, which

Brown’s own testimony at least partly corroborates. See id. at 6-8.

{¶ 15} Regarding Brown’s understanding of the terms of the plea agreement, the

trial court determined that he “fully understood the nature of the charges, and [the]

penalties [for] his offenses.” Decision Overruling Def.’s Mot. to Withdraw Guilty Plea 15.

Brown testified at the hearing on his motions to withdraw that, before he entered into the

plea agreement, his counsel told him that “if [he] took the deal for 24 [to] life, the judge

could still [sentence him to] 20 years flat.” Tr. of Hr’g on Def.’s Mot. to Withdraw 5. Even

standing alone, this testimony supports the trial court’s determination—it demonstrates

that despite hoping to be sentenced to 20 years without a life tail, Brown was nonetheless

aware that he was entering into an agreement calling for a recommended sentence of 24

years to life. For that matter, he had the following exchange with the court during his

plea hearing on October 9, 2015:

THE COURT: And if my math is correct, it looks like this is going to

be a 24 year to [l]ife sentence. Is that your understanding?

BROWN: Yes, sir.

Tr. of Plea Hr’g 6.
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{¶ 16} Given the deferential standard of review applicable to this appeal, we find

no reason to disturb the trial court’s determinations that Brown “was afforded competent

legal counsel at the time of, and prior to, entering his guilty pleas” and that Brown

“understood the charges and penalties” set forth in his plea agreement. Dec. Overruling

Def.’s Mot. to Withdraw Guilty Plea 7 and 15. Furthermore, before he entered his pleas,

Brown had a hearing as required by Crim.R. 11, during which the trial court advised him

as required by Crim.R. 11(C)(2). Tr. of Plea Hr’g 5-14. Likewise, the court convened a

hearing on Brown’s motions to withdraw, and the court proceeded afterward to give full

and fair consideration to Brown’s request to withdraw his pleas. See generally Decision

Overruling Def.’s Mot. to Withdraw Guilty Plea. We find, therefore, that the trial court did

not abuse its discretion by denying Brown’s request, and consequently, we overrule

Brown’s first assignment of error. See State v. Donaldson, 2d Dist. Greene No. 06 CA

110, 2007-Ohio-5756, ¶ 7.

{¶ 17} Assignment of Error Number Two:

BROWN DID NOT WAIVE HIS RIGHT TO APPEAL KNOWINGLY

AND VOLUNTARILY.

{¶ 18} In his second assignment of error, Brown argues that the “record does not

demonstrate that [he] made a knowing and voluntary waiver of his right to appeal”

because: (1) the plea forms make no “reference to a waiver of his right to appeal”; and

(2) at his plea hearing, he “was never specifically asked, as a separate matter, if he

waived” this right. Appellant’s Br. 9. We find that Brown’s argument lacks merit.

{¶ 19} At his plea hearing, the State read the agreement into the record, noting

that as “part of [the] agreement, [Brown] would agree to waive all rights to appeal that
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may be waived by law and as indicated on the plea form[s].” (Emphasis added.) Tr. of

Plea Hr’g 4. The trial court later verified that Brown understood as much:

THE COURT: Do you understand, sir, that a guilty plea, it is a

complete admission of your guilt[,] and you’re giving up your rights to appeal

any pretrial rulings in all of these cases---

BROWN: Yes, sir.

THE COURT: ---do you understand that?

BROWN: Yes, sir.

(Emphasis added.) Id. at 12-13. As the transcript of Brown’s plea hearing indicates,

Brown did not agree to a blanket waiver of his right to appeal, but instead, he agreed to

waive his right to appeal only to the extent allowed “by law,” which the court explained as

a waiver of his right to appeal “any pretrial rulings” in Case Nos. 2014 CR 01637, 2014

CR 01721 and 2014 CR 03632.

{¶ 20} By “entering a voluntary guilty plea while represented by competent

counsel, [a defendant] waive[s] his right to appeal all nonjurisdictional defects in prior

stages of the proceedings.” (Citation omitted.) State v. Guerra, 2d Dist. Miami No.

2015-CA-28, 2016-Ohio-5647, ¶ 9; see also R.C. 2953.08(D)(1). Crim.R. 11(C)(2),

moreover, “does not require [that] the trial court * * * inform a defendant that by pleading

guilty,” the defendant “is [thereby] waiving his * * * right to appeal a jointly-agreed

sentence under R.C. 2953.08(D)(1).” As such, even if the court had not advised Brown

that he would waive the right to appeal certain issues by pleading guilty, his plea

agreement would remain valid and enforceable; by extension, the absence of this advice

in the plea forms does not invalidate the agreement. Accordingly, we overrule Brown’s
 -11-

second assignment of error.

{¶ 21} Assignment of Error Number Three:

BROWN’S PLEAS WERE NOT MADE KNOWINGLY,

INTELLIGENTLY, AND VOLUNTARILY.

{¶ 22} In his third assignment of error, Brown reasons that because “he did not

waive his right to appeal knowingly and voluntarily, [whereas] the State and [the court]

believed his waiver of his right to appeal was part of the bargained for exchange, [he]

could not have entered his pleas knowingly, intelligently and voluntarily.” Appellant’s Br.

10. As we have observed, however, Brown waived his right to appeal certain issues by

operation of law when he entered into the plea agreement, and no warning to this effect

was required by Crim.R. 11(C)(2). We find, then, that the waiver of Brown’s right to

appeal certain issues is irrelevant to the question of whether he entered into his plea

agreement intelligently, knowingly and voluntarily. Brown’s third assignment of error is

overruled.

{¶ 23} Assignment of Error Number Four:

THE TRIAL COURT ERRED IN ORDERING BROWN TO PAY

RESTITUTION IN CASE 2014 CR 03632.

{¶ 24} In his fourth assignment of error, Brown charges the trial court with

“abus[ing] [its] discretion [by] imposing restitution in the amount of $5,598.14,” without

considering his ability to pay, as part of his sentence in Case No. 2014 CR 03632.

Appellant’s Br. 11. We find that the court did not err by ordering Brown to pay restitution.5

5 The State argues that Brown has waived all but plain error on this issue by failing to
raise it before the trial court, though it acknowledges that Brown filed a presentence
motion to waive financial sanctions. Appellee’s Br. 22. By the State’s argument, Brown
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{¶ 25} Pursuant to R.C. 2929.18(A)(1), a court “imposing a sentence upon an

offender for a felony may sentence the offender to any financial sanction or combination

of financial sanctions” authorized by law, including restitution “to the victim of the

offender’s crime or any survivor of the victim, in an amount based on the victim’s

economic loss.” If the court decides to impose restitution, then

[it] may base the amount of restitution it orders on 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, provided that the amount the court orders as restitution shall

not exceed the amount of the economic loss suffered by the victim as a

direct and proximate result of the commission of the offense.

Id. R.C. 2929.19(B)(5), in addition, directs the court to “consider the offender’s present

and future ability to pay the amount of the sanction” before “imposing a financial sanction

under [R.C.] 2929.18 * * *.” On review of a trial court’s imposition of restitution as part of

a felony sentence, we apply the standard set forth in R.C. 2953.08(G)(2)(b), inquiring

whether the imposition of restitution is clearly and convincingly contrary to law. State v.

Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 7 and 10; State v.

did not raise the issue of restitution in his presentence motion because he requested only
the waiver of “ ‘any fine[s] or court costs,’ ” as opposed to “restitution.” Id. In the motion,
Brown asked the court to “waive the imposition of any fine[s] or court costs due to [his]
indigency and his present and future inability to pay financial sanctions * * *,” adding that
he expected that he would “be ordered to pay restitution.” Def.’s Mot. to Waive the
Imposition of Financial Sanctions 1-2, Oct. 12, 2015. Regardless of the imprecision with
which Brown phrased his request for waiver, restitution would seem to be a “financial
sanction,” leading us to conclude that Brown’s motion did constitute a request for waiver
of all financial sanctions, including restitution. See, e.g., State v. Thomas, 2d Dist.
Montgomery No. 26907, 2017-Ohio-5501, ¶ 39 (referring to “restitution” as a “financial
sanction”).
 -13-

Becraft, 2017-Ohio-1464, ___ N.E.3d ___, ¶ 17 (2d Dist.).

{¶ 26} Brown pleaded guilty, among other things, to one count of felony murder in

Case No. 2014 CR 03632. At his sentencing on October 21, 2015, the court informed

him that it had “reviewed the presentence investigation report,” and finding “that [he had]

either the present or future ability to pay,” ordered him to “pay restitution * * * for [the

victim’s] funeral expenses in the amount of $5,598.14.” Id. at 31.

{¶ 27} Here, Brown argues that the court’s restitution order in Case No. 2014 CR

03632 should be reversed because “there was nothing in the [presentence investigation]

that indicates [he] will have the ability to pay [the amount ordered], and [because] his

ability to pay was not discussed at [his] sentencing hearing.” Appellant’s Br. 11. Yet,

R.C. 2929.18(A)(1) and 2929.19(B)(5) constrain the court’s authority to order restitution

in only two respects: first, the amount of restitution may “not exceed the amount of the

economic loss suffered by the victim as a direct and proximate result of the commission

of the offense”; and second, the court must “consider the offender’s present and future

ability to pay the amount of the sanction.” Brown does not argue that the amount he has

been ordered to pay in restitution exceeds the economic loss suffered by the victim’s

family, and the court indicated for the record that it had considered his ability to pay. See

Tr. of Plea Hr’g 31.

{¶ 28} We find no evidence in the record of Case No. 2014 CR 03632 to suggest

that the trial court’s order of restitution is clearly and convincingly contrary to law. As a

result, Brown’s fourth assignment of error is overruled.

{¶ 29} Assignment of Error Number Five:

THE TRIAL COURT ERRED IN ORDERING TO [sic] PAY COURT
 -14-

COSTS.

{¶ 30} Brown contends in his final assignment of error that the trial court further

“abused [its] discretion [by] overruling [his] motion to waive the imposition of court costs.”

Appellant’s Br. 12. R.C. 2947.23(A)(1)(a) states that “[i]n all criminal cases, * * *, the

judge or magistrate shall include in the sentence the costs of prosecution, * * *, and render

a judgment against the defendant for such costs.” (Emphasis added.) In State v. White,

103 Ohio St.3d 580, 2004-Ohio-5989, 817 N.E.2d 393, ¶ 8, the Ohio Supreme Court

emphasized that R.C. 2947.23 “does not prohibit a court from assessing costs against an

indigent defendant; rather it requires [emphasis in original] a court to assess costs against

all convicted defendants.” Regardless of Brown’s present or future ability to pay, the trial

court cannot have erred by following an unequivocal statutory mandate, and

consequently, Brown’s fifth assignment of error is overruled.

III. Conclusion

{¶ 31} We find that Brown’s assignments of error lack merit. Therefore, we affirm

Brown’s convictions in Case No. 2014 CR 01637, Case No. 2014 CR 01721 and Case

No. 2014 CR 03632; the trial court’s decision overruling Brown’s motions to withdraw his

pleas; and the trial court’s decisions overruling Brown’s motions for waiver of the

imposition of financial sanctions and court costs.

.............

HALL, P.J. and DONOVAN, J., concur.
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Copies mailed to:

Mathias H. Heck, Jr.
Heather N. Jans
Robert Alan Brenner
Hon. Dennis J. Adkins