State v. Williams

[Cite as State v. Williams, 2021-Ohio-2032.]

COURT OF APPEALS OF OHIO

EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA

STATE OF OHIO, :

Plaintiff-Appellee, :
No. 109972
v. :

KEENA WILLIAMS, :

Defendant-Appellant. :

JOURNAL ENTRY AND OPINION

JUDGMENT: AFFIRMED IN PART, REVERSED IN PART,
AND REMANDED
RELEASED AND JOURNALIZED: June 17, 2021

Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-19-640590-A

Appearances:

Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Carl J. Mazzone, Assistant Prosecuting
Attorney, for appellee.

Susan J. Moran, for appellant.

EILEEN T. GALLAGHER, J.:

Defendant-appellant, Kenna Williams (“Williams”), appeals from his

convictions and sentence. He raises the following assignments of error for appeal:

1. The trial court erred in denying Williams’s pre-sentence motion to
withdraw his guilty plea without a hearing.
 2. The trial court erred in imposing consecutive sentences which were
not supported by the record.

3. The trial court erred in imposing both a prison term and a no-contact
order.

After careful review of the record and relevant case law, we affirm in

part, reverse in part, and remand for the trial court to vacate the no-contact order

imposed as part of Williams’s sentence.

I. Procedural and Factual History

In June 2019, Williams was named in a 13-count indictment, charging

him with aggravated burglary in violation of R.C. 2911.11(A)(1), with a notice of prior

conviction specification and a repeat violent offender specification (Count 1); assault

in violation of R.C. 2903.13(A) (Count 2); criminal damaging or endangering in

violation of R.C. 2909.06(A)(1) (Count 3); theft in violation of R.C. 2913.02(A)(1)

(Count 4); petty theft in violation of R.C. 2913.02(A)(1) (Count 5); improperly

discharging a firearm into a habitation in violation of R.C. 2923.161(A)(1), with one-

and three-year firearm specifications, a notice of prior conviction specification, and

a repeat violent offender specification (Count 6); aggravated menacing in violation

of R.C. 2903.21(A) (Count 7); aggravated menacing in violation of R.C. 2903.21(A)

(Count 8); telecommunications harassment in violation of R.C. 2917.21(A)(3)

(Count 9); menacing by stalking in violation of R.C. 2903.211(A)(1) (Count 10);

telecommunications harassment in violation of R.C. 2917.21(A)(3) (Count 11);

menacing by stalking in violation of R.C. 2903.211(A)(1) (Count 12); and

telecommunications harassment in violation of R.C. 2917.21(A)(3) (Count 13).
 The indictment stemmed from three separate incidents occurring in

April and May of 2019. With respect to Counts 1-5, the state alleged that on April

12, 2019, Williams arrived at the home of his ex-girlfriend, J.B., and knocked on her

front door. When J.B. opened the door, Williams pushed his way inside and

proceeded to strangle J.B. while demanding to know who else was inside the home.

Williams subsequently punched J.B., destroyed her telephone, and took her credit

card and identification card from her purse. (Tr. 32-33.)

Counts 6-11 alleged that during the early hours of May 6, 2019, J.B. and

her grandmother heard gunshots outside her grandmother’s home. J.B. also began

receiving phone calls from an unknown number. When she answered her phone,

she recognized Williams’s voice. Williams asked J.B. to provide him with the name

of the person she was dating. During a phone call that occurred after the gun shots

were heard, Williams stated to J.B. “You hear that? I got something for you if you

don’t give me his name.” (Tr. 33.) Williams also threatened to shoot J.B.’s

grandmother and brother.

Counts 12 and 13 alleged that on May 7, 2019, Williams continued his

harassing behavior by repeatedly calling J.B.’s phone. He left threatening messages,

expressing that he would “burn her up and her seven-year old son and will shoot

them.” (Tr. 34.)

On the day set for trial, Williams expressed that he intended to accept a

proposed plea agreement with the state and withdraw his previously entered pleas

of not guilty. Following a Crim.R. 11 advisement, Williams pleaded guilty to burglary
in violation of R.C. 2911.12(A)(1),1 as amended in Count 1 of the indictment; and

attempted improper discharge of a firearm into a habitation in violation of R.C.

2923.02 and 2923.161(A)(1), with a three-year firearm specification, a notice of prior

conviction specification, and a repeat violent offender specification, as amended in

Count 6 of the indictment. In addition, Williams pleaded guilty to Counts 2-5 and

7-13 of the indictment as charged.

Prior to sentencing, Williams filed a pro se motion to withdraw his

guilty plea pursuant to Crim.R. 32.1. In the motion, Williams argued that he

“entered into a plea agreement which [was] the result of being coerced into making

by the ill advice from his counsel, which the defendant is asserting to be ineffective.”

Williams maintained his innocence and claimed that counsel “lied, manipulated, as

well as misinformed his client on several occasions as to deny him his right to due

process of the law.”

In October 2019, Williams appeared for sentencing with his appointed

counsel. Although the trial court denied Williams’s oral request for a continuance

to “look over his motion for discovery,” the trial court proceeded with sentencing

without addressing Williams’s pro se motion to withdraw. Upon hearing from the

victim and Williams, the trial court sentenced Williams to an aggregate five-year

prison term. In formulating the sentence, the trial court ordered the 12-month

1 The state concedes that the court’s journal entry mistakenly states that Williams
also pleaded guilty to the notice of prior conviction specification and a repeat violent
offender specification originally attached to Count 1. The journal entry must be corrected
by a nunc pro tunc entry to reflect what occurred during the plea hearing.
prison term imposed on the burglary conviction to run consecutively to the 12-

month prison term imposed on the attempted improper discharge of a firearm into

a habitation conviction and its accompanying three-year firearm specification. The

sentences imposed on the remaining offenses were ordered to be served

concurrently.

Williams now appeals from his convictions and sentence.

II. Law and Analysis

A. Presentence Motion to Withdraw Guilty Plea

In his first assignment of error, Williams argues the trial court erred in

denying his presentence motion to withdraw his guilty plea without a hearing.

A motion to withdraw a guilty plea is governed by Crim.R. 32.1 which

reads:

A motion to withdraw a plea of guilty or no contest may be made only
before sentencing is imposed; but to correct manifest injustice the court
after sentencing may set aside the judgment of conviction and permit
the defendant to withdraw his or her plea.

A defendant, however, does not have an absolute right to withdraw his

plea prior to sentencing, and it is within the sound discretion of the trial court to

determine what circumstances justify the granting of any such motion. State v.

Westley, 8th Dist. Cuyahoga No. 97650, 2012-Ohio-3571, ¶ 7, citing State v. Xie, 62

Ohio St.3d 521, 527, 584 N.E.2d 715 (1992).

Ordinarily, the trial court must conduct a hearing prior to ruling on a

motion to withdraw to determine whether there is a reasonable and legitimate basis
for withdrawal of the plea. Xie at paragraph one of the syllabus. In this case,

however, Williams attempted to withdraw his guilty plea pro se while represented

by counsel throughout the plea and subsequent sentencing hearing.

It is well established that “[a] criminal defendant has the right to

counsel or the right to act pro se; however, a defendant does not have the right to

both, simultaneously, or ‘hybrid representation.’” State v. Powell, 8th Dist.

Cuyahoga No. 107006, 2019-Ohio-346, ¶ 16, citing State v. Mongo, 8th Dist.

Cuyahoga No. 100926, 2015-Ohio-1139, ¶ 13. Where a represented defendant makes

an oral pro se motion to withdraw his guilty plea, the trial court can refuse to

entertain such motion. State v. Hill, 8th Dist. Cuyahoga No. 107290, 2019-Ohio-

1647, ¶ 12. Here, there is nothing in the record indicating that counsel joined

Williams’s pro se oral motion or otherwise believed that a basis existed for Williams

to withdraw his guilty plea. Powell at ¶ 18. As a result, had the trial court entertained

Williams’s pro se oral motion while he was simultaneously represented by appointed

counsel, this would have effectively constituted hybrid representation in violation of

the established law. Mongo at id.

Moreover, we are unpersuaded by Williams’s contention that the

record reflects that he intended to proceed with his case pro se and without the

assistance of counsel. Relying on this court’s decision in State v. Thomas, 8th Dist.

Cuyahoga No. 103759, 2016-Ohio-4961, Williams maintains that trial courts are

required to entertain pro se motions to withdraw where the defendant reveals to the

court that “he [or she] is no longer interested in the services of assigned counsel.”
See id. at ¶ 21, citing State v. Wyley, 8th Dist. Cuyahoga No. 102899, 2016-Ohio-

1118, ¶ 9 (“where a defendant, who is represented by counsel, files pro se motions,

‘and there is no indication that defense counsel joins in those motions or indicates a

need for the relief sought by the defendant pro se,’ the pro se motions are not proper

and the trial court may strike them from the record”), quoting State v. Davis, 10th

Dist. Franklin No. 05AP-193, 2006-Ohio-5039, ¶ 12; State v. Pizzaro, 8th Dist.

Cuyahoga No. 94849, 2011-Ohio-611, ¶ 7 (“One who is represented by counsel and

who does not move the court to proceed pro se, may not ‘act as co-counsel on his

own behalf.’”), quoting State v. Greenleaf, 11th Dist. Portage No. 2005-P-0017,

2006-Ohio-4317, ¶ 70 (“Once [a defendant] accepts counsel’s assistance and does

not move the court to proceed pro se, he may not ‘act as co-counsel on his own

behalf.’”); State v. Washington, 8th Dist. Cuyahoga Nos. 96565 and 96568, 2012-

Ohio-1531, ¶ 11 (“Because [defendant] chose to proceed with legal representation,

the court could not consider [his] motion to withdraw his plea, which his appointed

counsel did not agree with.”).

After careful consideration, we find no merit to Williams’s reliance on

Thomas. In this case, the record does not reveal that Williams moved the court to

proceed pro se. Nor did Williams indicate that he did not wish to proceed without

the representation of appointed counsel. Although Williams’s motion to withdraw

expressed dissatisfaction with defense counsel’s performance during the plea

proceedings, he did not request to represent himself and, in fact, proceeded with

legal representation during the sentencing hearing. Contrary to Williams’s position
on appeal, his brief request for a continuance at the onset of the sentencing hearing

did not constitute a request to proceed pro se without representation. Such a

conclusion would require speculation that would be inconsistent with Williams’s

acceptance of counsel’s assistance during the remainder of the hearing. Under these

circumstances, we find the trial court did not err by declining to rule on Williams’s

pro se motion to withdraw his guilty pleas without a hearing. Accordingly,

Williams’s first assignment of error is overruled.

B. Consecutive Sentences

In his second assignment of error, Williams argues the trial court

erred by imposing consecutive sentences that are not supported by the record.

We review felony sentences under the standard set forth in R.C.

2953.08(G)(2). State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d

1231, ¶ 16. R.C. 2953.08(G)(2) provides that when reviewing felony sentences, a

reviewing court may overturn the imposition of consecutive sentences where the

court “clearly and convincingly” finds that (1) “the record does not support the

sentencing court’s findings under R.C. 2929.14(C)(4),” or (2) “the sentence is

otherwise contrary to law.”

R.C. 2929.14(C)(4) provides that in order to impose consecutive

sentences, the trial court must find that consecutive sentences are (1) necessary to

protect the public from future crime or to punish the offender, (2) that such

sentences would not be disproportionate to the seriousness of the conduct and to

the danger the offender poses to the public, and (3) that one of the following applies:
 (a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under postrelease control for a prior offense.

(b) At least two of the multiple offenses were committed as part of one
or more courses of conduct, and the harm caused by two or more of the
multiple offenses so committed was so great or unusual that no single
prison term for any of the offenses committed as part of any of the
courses of conduct adequately reflects the seriousness of the offender’s
conduct.

(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.

Conformity with R.C. 2929.14(C)(4) requires the trial court to make

the statutory findings at the sentencing hearing, which means that “‘the [trial] court

must note that it engaged in the analysis’ and that it ‘has considered the statutory

criteria and specifie[d] which of the given bases warrants its decision.’” State v.

Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 26, quoting State v.

Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d 131 (1999). To this end, a reviewing

court must be able to ascertain from the record evidence to support the trial court’s

findings. Bonnell at ¶ 29. “A trial court is not, however, required to state its reasons

to support its findings, nor is it required to [recite verbatim] the statutory language,

‘provided that the necessary findings can be found in the record and are

incorporated in the sentencing entry.’” State v. Sheline, 8th Dist. Cuyahoga No.

106649, 2019-Ohio-528, ¶ 176, quoting Bonnell at ¶ 37.

In this case, the trial court made the following findings when imposing

consecutive sentences:
 This is not very good behavior, you know that. This young lady, the
relationship that you were in, you heard how it has affected her, and
her son, and how she feels this has affected her.

***

I look at the seriousness factors. There is clearly the injury. The
victim’s psychological and mental condition is huge. I also look at the
victim talking about how this has psychologically affected her and her
family. The other seriousness factor is that this relationship with the
victim facilitated this offense. Those are all serious factors this court
has to look at.

You gave me a half-hearted “I’m sorry.” You know your PSI says you
didn’t do it, you’re getting railroaded. But you came before me here,
and you stood up and acknowledged that you did wrong, you shouldn’t
have done it, and you accepted responsibility for what you did.

Then it comes to the fact I have to look at your criminal record. When
I do that, I look at that you plead guilty in December of 2004 to drug
trafficking * * * where you went to jail for 30 days. You had some
menacing cases in Cleveland Municipal Court that were dismissed. You
had a probation violation in Putnam County for simple possession. You
had a statutory rape case in 2007 out of Putnam County where you
served 12 years in prison. You were released in 2019, and in 2019 you
picked up this case.

***

I believe consecutive sentences are necessary to protect you protect the
public and to punish you. It’s not disproportionate. And I find the
harm is so great or unusual a single term does not adequately reflect
the seriousness of the conduct. And your criminal history shows that
consecutive terms are needed to protect the public.

(Tr. 49-51.)

On appeal, Williams does not dispute that the trial court made the

necessary findings for imposing consecutive sentences under R.C. 2929.14(C)(4).

Nevertheless, Williams contends that the record in this case does not support the
trial court’s imposition of consecutive sentences. Specifically, Williams asserts that

there was nothing in the record to support a finding that his burglary conviction was

“so great or unusual” or part of a “course of conduct” to justify the imposition of

consecutive terms. Similarly, Williams submits that “the harm associated with the

allegations of attempting to discharge a firearm at a habitation, was not so great to

justify the imposition of consecutive sentences.”

After reviewing the record, we cannot say that the record clearly and

convincingly does not support the trial court’s findings under R.C. 2929.14(C)(4).

Here, the record before this court reflects, consistent with the court’s findings, that

Williams engaged in a pattern of systematic harassment that caused the victim and

her family serious emotional and psychological stress. At the sentencing hearing,

J.B. disputed Williams’s prior proclamations of innocence and explained the

ongoing fear Williams has caused her and her family. The record further supports

the trial court’s determination that consecutive sentences were necessary not only

to punish Williams but to protect the public. In this regard, the record reflects that

by completing the offense of attempted improper discharge of a firearm into a

habitation, as amended in Count 6 of the indictment, Williams engaged in conduct

that posed a potentially deadly risk to both the victim and innocent members of the

community. Finally, the record supports the trial court’s reference to Williams’s

significant criminal history. Under these circumstances, we find that the record

before this court supports the trial court’s R.C. 2929.14(C)(4) findings.
 Because the trial court made the requisite findings during the

sentencing hearing under R.C. 2929.14(C)(4), incorporated the findings into its

sentencing journal entry, and the findings are not clearly and convincingly

unsupported by the record, the trial court did not err by imposing consecutive

sentences.

Williams’s second assignment of error is overruled.

C. No-Contact Order

In his third assignment of error, Williams argues the trial court erred

as a matter of law by imposing an order of no contact with the victim. Williams

contends that because he was sentenced to a term of imprisonment, the trial court

had no authority to impose a no-contact order.

In State v. Anderson, 143 Ohio St.3d 173, 2015-Ohio-2089, 35 N.E.3d

512, the Ohio Supreme Court held that a trial court cannot impose a prison term and

a no-contact order for the same felony offense. Id. at ¶ 32. The court reasoned that

a no-contact order is a community-control sanction, and for felony offenses, Ohio’s

statutory scheme makes it clear that prison terms and community-control sanctions

are alternative sanctions. Thus, a court must impose either a community-control

sanction or a prison term for an offense, but cannot impose both. Id.; see also State

v. Stafford, 8th Dist. Cuyahoga No. 104276, 2016-Ohio-5635, ¶ 10.

In this case, the trial court stated at the conclusion of the sentencing

hearing that Williams was to have “no contact whatsoever with [the victim], her

family, or her friends.” (Tr. 52.) We agree with Williams’s assertion that the trial
court’s statement concerning the imposition of a no-contact order during the

sentencing hearing was error. The state concedes the error as well.

Williams’s third assignment of error is sustained. Pursuant to R.C.

2953.08(G)(2), we modify Williams’s sentence to delete the no-contact order and

remand the case for the trial court to correct its journal entry to reflect this

modification. In addition, the court must correct its journal entry to reflect that

Williams did not plead guilty to the specifications originally attached to Count 1 of

the indictment.

Judgment affirmed in part, reversed in part, and remanded.

It is ordered that appellant and appellee split the 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.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.

EILEEN T. GALLAGHER, JUDGE

SEAN C. GALLAGHER, P.J., and
LARRY A. JONES, SR., J., CONCUR