[Cite as State v. Hopkins, 2023-Ohio-4311.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff-Appellee, :
Nos. 112430 and 112704
v. :
MAR’RAY HOPKINS, :
Defendant-Appellant. :
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 30, 2023
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case Nos. CR-21-660919-A and CR-21-660920-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, and Kevin R. Filiatraut, Assistant Prosecuting
Attorneys, for appellee.
Cullen Sweeney, Cuyahoga County Public Defender, and
Aaron T. Baker, Assistant Public Defender, for appellant.
KATHLEEN ANN KEOUGH, J.:
In this consolidated appeal, defendant-appellant, Mar’ray Hopkins,
appeals from the trial court’s decision denying his presentence motion to withdraw
his guilty plea and from the trial court’s imposition of a sentence pursuant to the
Reagan Tokes Law. For the reasons that follow, we affirm.
In July 2021, Hopkins was charged for offenses in two separate
indictments. In Cuyahoga C.P. No. CR-21-660919, the state charged him with
aggravated murder (Count 1), two counts of murder (Counts 2 and 3), two counts of
felonious assault (Counts 4 and 5), and one count of having weapons while under
disability (Count 6). Counts 1 through 5 carried both one- and three-year firearm
specifications. The charges arose from the December 2020 shooting death of
Kenneth Blair. In Cuyahoga C.P. No. CR-21-660920, Hopkins was charged with one
count each of felonious assault and domestic violence. These charges arose from an
April 2021 incident involving a family member.
In January 2023, following discovery and multiple pretrials where
plea offers were made but Hopkins rejected, Hopkins entered into a plea agreement
with the state. Regarding case No. 660919, Hopkins agreed to plead guilty to an
amended Count 1, involuntary manslaughter, with the attendant three-year firearm
specification; Count 5, felonious assault, with the attendant three-year firearm
specification; and Count 6, having weapons while under disability. In exchange, the
state agreed to dismiss the remaining offenses and specifications. Regarding case
No. 660920, Hopkins agreed to plead guilty to Count 1, felonious assault, in
exchange for the state dismissing the domestic violence offense.
In addition to the charges to which Hopkins agreed to plead guilty,
Hopkins and the state entered into an agreed-recommended sentence, which
included imposing a sentence pursuant to the Reagan Tokes Law. Regarding case
No. 660919, the parties agreed and jointly recommended that the trial court impose
a maximum consecutive sentence on all counts, specifically Count 1 — 11 to 16.5
years, plus three years for the firearm specification; Count 5 — eight years, plus three
years on the firearm specification; and Count 6 — three years, for a total aggregate
sentence of 28 to 33.5 years in prison. Regarding case No. 660920, the parties
agreed and jointly recommended that the trial court impose an eight-year sentence
that would run concurrent with the sentence imposed in case No. 660919.
The trial court conducted a thorough and complete change-of-plea
hearing and advised Hopkins of his Crim.R. 11 rights, verified with Hopkins that he
understood by pleading guilty he waived those rights, and confirmed that Hopkins
understood the nature of the offenses, the effects of his plea, and the maximum
penalties involved. Additionally, the court stated on multiple occasions throughout
the hearing that it would impose the agreed, recommended sentence of 28 to 33.5
years. All parties agreed that the trial court complied with Crim.R. 11 prior to
Hopkins entering his guilty pleas in accordance with the plea agreement. The court
continued the matter for sentencing; Hopkins waived the preparation of a
presentence-investigation report.
On January 10, 2023, Hopkins appeared for sentencing, but his
attorneys advised the trial court that he wished to withdraw his guilty pleas. When
the trial court asked him why he wanted to withdraw his plea, Hopkins stated:
Well, I really want to withdraw because I had time to think, and, you
know what I’m saying, I rather would [sic] go to trial. Me and my family
had a talk, and we want to hire new counsel.
(01/10/2023 hearing, tr. 2.) When the trial court asked again about his reasons,
Hopkins stated he wanted to “go to trial, and I don’t feel right with the plea.” (Tr.
3.) The trial court continued the matter for a hearing on the motion and ordered a
transcript of the plea hearing.
On January 24, 2023, the trial court conducted a full and complete
hearing on Hopkins’s motion to withdraw his plea. After reviewing the transcript
and considering statements from both Hopkins and the prosecutor, the trial court
denied Hopkins’s motion to withdraw his plea. The court then sentenced Hopkins
to the agreed and jointly recommended sentence of 28 to 33.5 years in prison.
This appeal followed.
I. Presentence Motion to Withdraw Guilty Pleas
In his first assignment of error, Hopkins contends that the trial court
erred when it denied his presentence motion to withdraw his guilty plea.
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.”
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.
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 occurs only when no sound reasoning process exists to support the
decision, or where the trial court exhibited an arbitrary or unconscionable attitude
when it denied the motion. See AAAA Ents., Inc. v. RiverPlace Community Urban
Redevelopment Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990), citing
Huffman v. Hair Surgeon, Inc., 19 Ohio St.3d 83, 87, 482 N.E.2d 1248 (1985).
Courts have traditionally considered nine factors when reviewing a
trial court’s decision denying a defendant’s presentence motion to withdraw a guilty
plea. Those factors include whether a defendant was (1) represented by competent
counsel, (2) given a full Crim.R. 11 hearing before he entered the 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.
Additionally, consideration is given to whether (5) the motion was
made in a reasonable time, (6) the motion stated specific reasons for withdrawal, (7)
the defendant understood the nature of the charges and the possible penalties, and
(8) the defendant had evidence of a plausible defense. State v. Fish, 104 Ohio
App.3d 236, 661 N.E.2d 788 (1st Dist.1995), see also State v. Heisa, 8th Dist.
Cuyahoga No. 101877, 2015-Ohio-2269. Finally, courts have considered (9)
“whether the state would be prejudiced if the defendant were permitted to withdraw
his guilty plea.” State v. Barnes, Slip Opinion No. 2022-Ohio-4486, ¶ 32 (Brunner,
J., concurring), citing State v. Richter, 8th Dist. Cuyahoga Nos. 46122 and 46123,
1983 Ohio App. LEXIS 15476, 2 (Sept. 29, 1983).
At the hearing on Hopkins’s motion to withdraw his plea, the trial
confirmed that at the prior hearing, Hopkins expressed that he wanted to withdraw
his plea because he wanted to go to trial and that he was not comfortable with his
plea. Hopkins explained further why he wanted to withdraw his plea:
I mean, I just — honestly I would like to withdraw, and I just feel like I
don’t have the same trust and confidence that I did, that I once had in
my lawyers.
(01/24/2023 hearing; tr. 2.)
At the hearing, the state conceded that Hopkins’s request to withdraw
his plea was timely — it occurred at the sentencing hearing, which was only four days
after his plea hearing. The state then addressed all of the relevant nine factors and
advanced that Hopkins’s motion to withdraw was not premised on any defense or
claim of innocence, but merely a change of heart.
In denying Hopkins’s motion, the trial court stated that it had
reviewed the transcript of the plea hearing and considered Hopkins’s arguments for
withdrawal. The court then addressed the relevant factors, highlighting that
Hopkins’s attorneys “successfully negotiated an enormous reduction from the
exposure [he was] facing had [he] gone to trial. You had multiple charges of
unclassified felonies, aggravated murders and murder.” (Tr. 8.) The court stated
that it reviewed the Crim.R. 11 plea colloquy, finding that it adhered to the Crim.R.
11 requirements and that Hopkins had never expressed any confusion, hesitation, or
protestations of innocence before entering his plea. Finally, the court denied
Hopkins’s motion, finding that the record and his reasons for withdrawing
demonstrated that Hopkins had only a change of heart. (Tr. 10.)
On this record, we find no abuse of discretion in the trial court’s
judgment denying Hopkins’s motion to withdraw his plea. The record reveals that
after the trial court reviewed the plea, hearing transcript, it held a complete hearing
on Hopkins’s motion to withdraw his guilty plea and gave full and fair consideration
to his request. The trial court considered the relevant factors, including that
Hopkins was represented by two attorneys and that he received a full Crim.R. 11
hearing at which he unequivocally stated that he understood the nature of the
charges, the effect of his plea, and that he wanted to enter into the plea, including
the agreed-upon sentence, which Hopkins knew at the time of his plea that the court
would impose. See 01/06/2023 hearing, tr. 8, 15, 16, and 18 (trial court detailing
and explaining how the sentences would be imposed on each count and calculated).
Accordingly, Hopkins possessed all of the pertinent information at the plea hearing
that he needed to enter a knowing, intelligent, and voluntary plea. And at no time
did Hopkins express confusion, have any questions, or ask the trial court to clarify
or further explain his rights, waiver of those rights, nature of the offenses, effects of
the plea, or potential penalties.
Hopkins does not contend that the trial court failed to consider the
relevant factors, but focuses on the premises that a presentence motion to withdraw
a guilty plea should be freely and liberally granted and a finding of “change of heart”
forecloses a defendant from ever just changing his mind to withdraw his plea.
In support, he relies on State v. Hines, 8th Dist. Cuyahoga No.
108326, 2020-Ohio-663, where this court found that the trial court erred in denying
Hines’s motion to withdraw his plea because the record demonstrated that Hines’s
request was more than a “change of heart.” Id. at ¶ 18. This court found that Hines’s
request was timely and genuine based on his confusion and lack of understanding
as to his plea. Hines claimed that he was innocent of the offenses and blindsided by
the events of the change-of-plea hearing based in part on lack of communication
with his then-attorney, which caused him to dismiss his attorney and obtain new
counsel, who appeared with him at the hearing. This court found that Hines had a
reasonable and legitimate basis for requesting to withdraw his plea beyond a mere
change of heart, and that the trial court should have freely granted Hines’s request.
Subsequent to Hines, the Ohio Supreme Court revisited Xie in
considering what constitutes a legitimate reasonable basis for a presentence
withdrawal of a guilty plea. Barnes, Slip Opinion No. 2022-Ohio-4486. The court
did not overrule the Peterseim and Heisa/Fish factors but found that they are not
applicable “when a defendant discovers evidence that would have affected his
decision to plead guilty” thereby serving as “a reasonable and legitimate basis to
withdraw his guilty plea before sentencing.” Id. at ¶ 24. In Barnes, the record
reflected that Barnes pleaded guilty to the shooting “not because there was evidence
that he actually committed the crime,” but that “he pleaded guilty because he
believed there was no evidence that corroborated his self-defense claim.” Id. at ¶ 26.
Following his plea, he discovered that the surveillance video also had audio, which
he listened to for the first time. He maintained that the audio portion of the
recording established that he did not shoot first, which supported his self-defense
claim. Based on this newly discovered evidence, the Supreme Court found that
Barnes’s request was based on reasonable and legitimate grounds, and therefore
should have been granted. Id.
Unlike in Hines, Hopkins did not assert any claim of innocence, that
he was confused or misunderstood the nature of the plea, or that he was blindsided
at the plea hearing by any miscommunication or inconsistent advice. Rather,
Hopkins contended only that he wanted to go to trial, he did not feel right about the
plea, and that he now lacked trust and confidence in his attorney, without any stated
justification. Accordingly, Hopkins’s reliance on Hines is misplaced.
And unlike in Barnes, Hopkins did not assert any defense or newly
discovered evidence to support his basis for withdrawing his plea. The record shows
that the state set forth that Hopkins’s sister-in-law identified Hopkins as the shooter
when she called 911 directly after the shooting, the DNA obtained from the shell
casings from the scene matched Hopkins’s DNA, and according to police, Hopkins
confessed to pulling the trigger. Accordingly, the record clearly demonstrates that
Hopkins did not set forth a legitimate and reasonable basis to withdraw his plea, but
merely had a change of heart.
Hopkins advances an additional argument on appeal that he did not
raise before the trial court to justify why he should be allowed to withdraw his plea
— that he entered into his guilty plea outside the presence of the trial court and he
did not waive this right as guaranteed under Crim.R. 43.
The record reflects that at the change-of-plea hearing, Hopkins, his
counsel, and the prosecutor were present in the courtroom while the trial judge
appeared remotely by Zoom. Hopkins did not object to the trial court appearing
remotely or conducting the plea hearing by Zoom. Moreover, at the hearing on his
motion to withdraw, Hopkins did not assert as a basis to withdraw his plea that his
Crim.R. 43 rights were violated when the trial court conducted the plea hearing by
Zoom.1 Accordingly, he has waived all but plain error. See State v. Carner, 8th Dist.
Cuyahoga No. 109914, 2021-Ohio-2312, ¶ 18, citing Crim.R 52(B) (failure to object
to appearing by video conference waives all but plain error, which will only be found
if it affected the outcome of the proceedings). Hopkins has not demonstrated how
the outcome of the proceedings would have been different had the trial court taken
into consideration that Hopkins was not in the physical presence of the trial court
when he entered his guilty pleas. Hopkins was present in the courtroom with
1 We further note that Hopkins has not raised as a separate assignment of error
that his plea is invalid because his Crim.R. 43 rights were violated.
counsel and the prosecutor, who both agreed that the court, despite appearing
remotely, fully complied with Crim.R. 11 prior to accepting Hopkins’s guilty pleas.
Neither Hopkins nor his attorney stated during the plea hearing that they could not
hear or understand the trial court, and Hopkins has not asserted that any technical
difficulties occurred during the hearing. Accordingly, we find no plain error.
Based on the record before this court, the trial court did not abuse its
discretion in denying Hopkins’s presentence motion to withdraw his plea. His first
assignment of error is overruled.
II. Reagan Tokes Law
Hopkins contends in his second assignment of error that the trial
court erred when it sentenced him to an indefinite sentence under S.B. 201,
commonly referred to as the Reagan Tokes Law, because the law is unconstitutional
under the United States and Ohio constitutions because it violates due process, the
separation-of-powers doctrine, and the right to trial by jury.
Recently, the Ohio Supreme Court rejected the arguments Hopkins
raises challenging the constitutionality of the Reagan Tokes Law. State v. Hacker,
Slip Opinion No. 2023-Ohio-2535. The court held that the Reagan Tokes Law is not
facially vague or unconstitutional because (1) it provides that offenders receive a
hearing before the Department of Rehabilitation and Correction (“DRC”) may
extend their prison sentence beyond the minimum but within the maximum term
imposed by the trial court, (2) the right to a jury trial is not implicated since no
determination by the DRC at the hearing changes the sentence range prescribed by
the legislature and imposed by the trial court, and (3) the authority it gives the DRC
to extend an offender’s prison sentence beyond the minimum but within the
maximum range imposed by the trial court does not exceed the power given to the
executive branch of the government and does not interfere with the trial court’s
discretion when sentencing the offender. Id. at ¶ 25, 28, 40. Accordingly, based on
the authority of Hacker, this court summarily overrules Hopkins’s challenges to the
Reagan Tokes Law and his second assignment of error.
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
convictions 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.
KATHLEEN ANN KEOUGH, JUDGE
ANITA LASTER MAYS, A.J., and
MARY J. BOYLE, J., CONCUR