State v. Alexander

[Cite as State v. Alexander, 2024-Ohio-1080.]

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

STATE OF OHIO :
:
Appellee : C.A. No. 2023-CA-46
:
v. : Trial Court Case No. 22-CR-0365(C)
:
FREDDIE ALEXANDER : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:

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OPINION

Rendered on March 22, 2024

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JEFFREY M. MCQUISTON, Attorney for Appellant

ROBERT C. LOGSDON, Attorney for Appellee

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

LEWIS, J.

{¶ 1} Defendant-Appellant Freddie Alexander appeals from his conviction and

sentence for three counts of felonious assault following a guilty plea. For the following

reasons, we will affirm the judgment of the trial court.

I. Facts and Course of Proceedings
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{¶ 2} On April 26, 2022, a Clark County grand jury indicted Alexander on one count

of improperly discharging a firearm at or into a habitation in violation of R.C.

2923.161(A)(1); one count of discharging of a firearm on or near prohibited premises in

violation of R.C. 2923.162(A)(3); three counts of felonious assault in violation of R.C.

2903.11(A)(2); one count of improper handling of firearms in a motor vehicle in violation

of R.C. 2923.16(B); and four counts of having weapons while under disability in violation

of R.C. 2923.13(A). The indictment also contained several firearm specifications.

{¶ 3} A trial was set for October 31, 2022. Following a status conference, the trial

was continued. On February 3, 2023, Alexander entered into a plea agreement with the

State. Alexander agreed to plead guilty to three counts of felonious assault, which were

second-degree felonies, and to testify truthfully against his co-defendants. In return, the

State agreed to drop the other counts in the indictment and all the firearm specifications.

At the plea hearing, the trial court asked Alexander several questions to determine

whether he was entering his guilty pleas knowingly, voluntarily, and intelligently.

Alexander stated that he had not been threatened or pressured into pleading guilty. Plea

Tr. 7. In his written plea of guilty, Alexander stated, in part: “I am satisfied with my

attorney’s advice and competence. * * * No threats have been made to me. * * * By

pleading guilty I admit committing the offense and admit the facts set forth in the

indictment.” Based on Alexander’s pleas, the trial court found him guilty and scheduled

a sentencing hearing.

{¶ 4} On September 1, 2023, the day of the sentencing hearing, Alexander filed a

motion to withdraw his guilty pleas. He provided the following reasons as to why the trial
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court should grant his motion:

Defendant plead [sic] guilty to three counts of Felonious Assault,

felonies of the second degree, with an agreement to testify against his co-

defendants. Defendant agreed reluctantly, as he had been threatened

while in custody. He did end up giving information to law enforcement

despite these threats. Once the plea has been entered, he has continued

to feel pressured, and has continued to be under pressure. He has since

learned of the sentence handed down to others more involved in the

planning and executing of the actions in this case, and is concerned that his

case has been treated the same as others who were more at fault in this

matter than he was.

The State is minimally prejudiced, as the case being reset for trial is

no more than if the case had been continued for other, trial-related reasons.

The request is being made before Defendant has been sentenced, and so

it was timely and reasonable to request.

{¶ 5} At the sentencing hearing, the trial court first addressed Alexander’s motion

to withdraw his guilty pleas. Alexander’s counsel explained that his client “felt like his

case was not treated differently than the others” (the co-defendants who he thought were

more cupable) and that there were “some extenuating circumstances.” Sentencing Tr.

4. According to his counsel, Alexander was “concerned about the statements made by

the other co-defendants in this case and he wishes to go to trial.” Id. The trial court

then gave Alexander an opportunity to explain the reasons for his motion. In response,
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the following exchange occurred:

THE DEFENDANT: I ain’t got my whole discovery packet or none of that,

that’s one thing. I ain’t got my whole discovery, half of the discovery

packet. So I don’t even know all the facts of my case or none of that.

THE COURT: Is that the only reason why you want to withdraw your plea?

***

THE DEFENDANT: No. My lawyer, like, I don’t think she’s helping me

fight, like, you forced me into it. You forced me into a plea deal. You told

me some other stuff and it ain’t right.

THE COURT: You’re saying you pled guilty on February 3rd of this year

and that you were forced into that?

THE DEFENDANT: Yes.

THE COURT: By whom?

THE DEFENDANT: My lawyer.

Id. at 4-5.

{¶ 6} Alexander’s counsel then responded as follows to Alexander’s claim that he

was forced into the plea deal by his counsel:

MS. KING: Your Honor, not only did we send him copies of the documents

with regard to this case, I met with him for a significant amount of time over

at London Correctional where he was serving an unrelated sentence and I

think I was over there twice talking with him going through videos talking

about the case. We talked at some length and then we also met with the
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Prosecutor and detectives at some length. We’ve discussed the case at

length and while I did advise him that I thought the plea deal was in his best

interest and thought it was the right decision to make, I did tell him, as I tell

every client, that at the end of the day he’s the one that had to make the

decision.

Id. at 8.

{¶ 7} The State responded that Alexander’s motion to withdraw his guilty pleas

was the result of a change in heart after seeing what sentences his co-defendants had

received. The State contended that the factors the trial court had to balance weighed in

favor of overruling the motion. Id. at 9-12.

{¶ 8} The trial court noted that both the State and Alexander’s counsel stated that

Alexander had received all the discovery. The trial court then explained that it was

overruling Alexander’s motion to withdraw his guilty pleas for the following reasons: (1)

Alexander’s contention that he did not receive all the discovery was unpersuasive and

should have been brought up before he entered his guilty pleas; (2) Alexander’s

statement that he was forced into making the guilty pleas by his counsel was not entitled

to any weight given defense counsel’s statement and Alexander’s statement at the plea

hearing that he had not been threatened or pressured into entering the guilty pleas; (3)

any pressure or threats he received from co-defendants or others after he entered his

guilty pleas were irrelevant; (4) Alexander’s statements about being less culpable than

his co-defendants were not statements of innocence and were more relevant to mitigation

at sentencing rather than a reason to withdraw the guilty pleas; (5) Alexander’s motion
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appeared to simply be a change of heart; and (6) Alexander’s motion, which was filed a

few minutes before the sentencing hearing, was not made at a reasonable time. Id. at

13-15, citing State v. Caballero, 10th Dist. Franklin No. 15AP-1132, 2016-Ohio-5496.

{¶ 9} On September 5, 2023, the trial court issued a judgment entry of conviction

sentencing Alexander to indefinite sentences of seven years to ten and one-half years in

prison on two of the counts of felonious assault and eight years to twelve years in prison

on the third count of felonious assault. The trial court ordered these sentences to be

served consecutively, for an aggregate minimum term of 22 years and an aggregate

maximum term of 26 years in prison. The trial court found that Alexander was entitled to

42 days of jail-time credit from July 21, 2023 to September 1, 2023. Alexander filed a

timely notice of appeal.

II. The Trial Court Did Not Err In Its Calculation of Jail-Time Credit

{¶ 10} Alexander’s first assignment of error states:

The trial court committed prejudicial error in failing to give Appellant

the correct credit to which he was entitled for his pretrial detention in

violation of clearly established precedent.

{¶ 11} “Where, for whatever reason, a defendant remains in jail prior to his trial, he

must be given credit on the sentence ultimately imposed for all periods of actual

confinement on that charge.” State v. Russell, 2d Dist. Montgomery No. 26503, 2015-

Ohio-3373, ¶ 37, citing State v. Coyle, 2d Dist. Montgomery No. 23450, 2010-Ohio-2130,

¶ 5. R.C. 2929.19(B)(2)(g)(i) provides that, at the sentencing hearing, the trial court must
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“[d]etermine, notify the offender of, and include in the sentencing entry the total number

of days, including the sentencing date but excluding conveyance time, that the offender

has been confined for any reason arising out of the offense for which the offender is being

sentenced[.]” Ohio Adm.Code 5120-2-04(B) likewise provides that the trial court is

required to determine “the amount of time the offender served locally before being

sentenced” and “must make a factual determination of the number of days credit to which

the offender is entitled by law and include this information within the sentencing entry[.]”

However, it is the duty of the Ohio Department of Rehabilitation and Correction (“ODRC”),

not the trial court, to reduce the offender's sentence “by the number of days the offender

was confined as a result of the offense, between the date of the sentencing entry and the

date committed to the [ODRC] * * *.” Ohio Adm.Code 5120-2-04(A). “[T]he trial court's

obligation in calculating jail-time credit is limited to calculating the total number of days

the defendant was confined prior to sentencing.” State v. Dearmond, 2d Dist. Clark No.

2022-CA-17, 2022-Ohio-3252, ¶ 13.

{¶ 12} According to Alexander, he was arraigned on August 12, 2022, at which

time bond was set at $100,000. Alexander did not post bond and remained in jail through

September 5, 2023, the date on which the trial court issued its judgment entry.

Therefore, Alexander argues he was entitled to 389 days of jail-time credit rather than the

42 days credited by the trial court. The State responds that Alexander began a prison

sentence on July 15, 2022, in an unrelated case out of Montgomery County in which he

was sentenced to twelve months and seven days. According to the State, the prison

sentence on the previous conviction ended on July 21, 2023. Appellee’s Brief, p. 4. The
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State contends that the Ohio Supreme Court has held that a defendant cannot receive

jail-time credit when he already is in prison serving time on a previous, unrelated criminal

conviction. Id. at 4-5, citing State v. Cupp, 156 Ohio St.3d 207, 2018-Ohio-5211, 124

N.E.3d 811. Therefore, the State believes the trial court properly calculated jail-time

credit. We agree.

{¶ 13} In Cupp, the defendant was indicted on felony counts of rape, kidnapping,

endangering children, and gross sexual imposition. Cupp pled not guilty, and the trial

court set a $400,000 bond. At the time he entered his not guilty pleas, Cupp was

incarcerated in the county jail in connection with a probation violation arising from an

unrelated domestic violence case. Id. at ¶ 6. Cupp ultimately pled guilty to attempted

abduction and endangering children. Just over a year after he initially pleaded not guilty,

Cupp was sentenced. At the sentencing hearing, Cupp’s defense counsel urged the

court to give him credit from the time his bond was revoked as a result of his guilty pleas,

even though he had been incarcerated on the probation violation during the majority of

that time. The State contended that instead, credit should be awarded from the day after

the sentence for the probation violation ended. The trial court sentenced Cupp, agreed

with the State, and awarded jail-time credit beginning at the completion of the sentence

for the probation violation. Cupp appealed to the Eleventh District Court of Appeals,

which examined the language of R.C. 2967.191 and determined that its plain terms

entitled Cupp to credit for the entire time he was incarcerated after his bail was revoked,

regardless of the fact that he had already been incarcerated for the probation violation.

Cupp at ¶ 9.
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{¶ 14} The Ohio Supreme Court disagreed with the appellate court, explaining that

R.C. 2929.19(B)(2):

obligates the trial court to determine “the number of days that the

offender has been confined for any reason arising out of the offense for

which the offender is being sentenced.” Cupp became confined on the

felony offense for which he was sentenced after his confinement on the

probation violation terminated, i.e., on July 30, 2016, and if he had posted

bond, he could have been released at that time. Prior to that date,

however, his confinement related to the probation violation arising from the

domestic-violence-related conviction in the municipal court. Thus, the trial

court calculated jail-time credit from July 30 and correctly awarded Cupp 58

days of jail-time credit.

(Emphasis sic.) Cupp at ¶ 23. In short, the Ohio Supreme Court held that “[a] defendant

is not entitled to jail-time credit while held on bond if, at the same time, the defendant is

serving a sentence on an unrelated case.” Id. at syllabus.

{¶ 15} In the present case, Alexander was serving a sentence for a previous,

unrelated crime from August 12, 2022 until July 21, 2023. As such, he was not entitled

to any jail-time credit during this period. However, once his sentence had had been

served in that case, he was entitled to jail-time credit for the days he remained in

confinement until the day of sentencing in this case. As the trial court correctly found,

this resulted in a jail-time credit of 42 days.

{¶ 16} The first assignment of error is overruled.
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III. The Trial Court Did Not Abuse Its Discretion By Denying Alexander’s Motion to

Withdraw His Guilty Plea

{¶ 17} Alexander’s second assignment of error states:

The trial court erred in denying Appellant’s Motion to Withdraw his

Guilty Plea.

{¶ 18} We review decisions on motions to withdraw a guilty plea for an abuse of

discretion. State v. Greenlee, 2d Dist. Montgomery Nos. 28467, 28468, 2020-Ohio-

2957, ¶ 11. “ ‘Abuse of discretion’ has been defined as an attitude that is unreasonable,

arbitrary or unconscionable.” AAAA Ents., Inc. v. River Place 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). “It is to be expected

that most instances of abuse of discretion will result in decisions that are simply

unreasonable, rather than decisions that are unconscionable or arbitrary.” Id. “A

decision is unreasonable if there is no sound reasoning process that would support that

decision.” Id.

{¶ 19} Crim.R. 32.1 governs withdrawals of guilty pleas and provides that “[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.” Based on

the language of Crim.R. 32.1, differing analyses have developed based on whether a

motion to withdraw a plea was made before or after sentencing.
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{¶ 20} Generally, “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).

However, “a defendant does not have an absolute right to withdraw a plea prior to

sentencing.” Id. “Even under the more lenient pre-sentence standard, a defendant

must show a ‘reasonable and legitimate basis for the withdrawal of the plea.’ ” State v.

Williamson, 2d Dist. Montgomery No. 21965, 2008-Ohio-4727, ¶ 13, quoting Xie at 527.

“A change of heart is not enough,” and a trial court's finding regarding a defendant's true

motivation is entitled to deference. Id.

{¶ 21} If the motion to withdraw a guilty plea was made post-sentence, however,

the defendant instead bears the higher burden of establishing a manifest injustice. State

v. Smith, 49 Ohio St.2d 261, 361 N.E.2d 1324 (1977), paragraph one of the syllabus. A

post-sentence motion to withdraw a guilty plea is allowable only in extraordinary cases.

State v. Kongkeo, 8th Dist. Cuyahoga No. 96691, 2012-Ohio-358, ¶ 2, citing Smith at

264.

{¶ 22} Based on our review of the record, we conclude that Alexander’s motion to

withdraw his guilty pleas, although made almost seven months after his guilty pleas and

on the morning of sentencing, was a pre-sentence motion. In evaluating whether a trial

court abused its discretion in overruling a pre-sentence motion to withdraw a plea, we

review the following nine factors: (1) whether the accused was represented by highly

competent counsel, (2) whether the accused was given a full Crim.R. 11 hearing before

entering the plea, (3) whether a full hearing was held on the motion, (4) whether the trial

court gave full and fair consideration to the motion, (5) whether the motion was made
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within a reasonable time, (6) whether the motion sets out specific reasons for the

withdrawal, (7) whether the accused understood the nature of the charges and possible

penalties, (8) whether the accused was perhaps not guilty of or had a complete defense

to the charge or charges, and (9) whether the state would be prejudiced by withdrawal of

the plea. State v. Miller, 2d Dist. Montgomery No. 29039, 2021-Ohio-2606, ¶ 15.

Consideration of these factors involves a balancing test, and no single factor is

dispositive. Id. at ¶ 16, citing State v. Massey, 2d Dist. Champaign No. 2015-CA-1,

2015-Ohio-4711, ¶ 11.

{¶ 23} Alexander contends that the trial court erred in denying his motion to

withdraw his guilty pleas, because pre-sentence motions to withdraw guilty pleas should

be freely and liberally granted and the State would not have been prejudiced in any

meaningful way if the motion had been granted. Appellant’s Brief, p. 20. The State

responds that the balancing test noted above weighs strongly in favor of affirming the trial

court’s decision. According to the State, (1) Alexander’s trial counsel was not alleged to

be incompetent in any way; (2) the Crim.R. 11 plea hearing was not challenged as

inadequate; (3) there was a full hearing on Alexander’s motion prior to sentencing; (4) the

trial court gave full consideration to the motion; (5) the motion to withdraw the pleas was

not filed in a reasonable time in that it was filed the morning of the sentencing hearing

and many months after the guilty pleas were entered; (6) Alexander made no claim that

he did not understand his rights or the nature of the case; (7) Alexander conceded that

he was culpable in the crimes of which he was accused; and (8) the State would be

prejudiced by the efforts needed to secure witness and victim attendance at trial as more
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time had passed. Appellee’s Brief, p. 7-8.

{¶ 24} We conclude that, on balance, the factors weigh heavily in favor of affirming

the trial court's decision to deny Alexander’s motion to withdraw his guilty pleas. The

first factor involved whether Alexander was represented by highly competent counsel.

“Generally, courts begin with a presumption that a defendant had the benefit of competent

counsel.” (Citation omitted.) State v. Estep, 4th Dist. Meigs No. 23CA1, 2024-Ohio-58,

¶ 22. Alexander stated in the written plea waiver that he was satisfied with his attorney’s

advice and competence. Further, Alexander did not raise an ineffective assistance of

counsel claim. Id., citing State v. Delaney, 4th Dist. Jackson No. 19CA9, 2020-Ohio-

7036. Therefore, the first factor weighed in favor of the trial court’s decision.

{¶ 25} The second, third, and fourth factors also supported the trial court’s

decision. The trial court gave Alexander a full Crim.R. 11 hearing before entering the

pleas and held a full hearing on the motion to withdraw the guilty plea. The trial court

also gave full and fair consideration to the motion and set forth the reasons for denying

the motion.

{¶ 26} The timing of Alexander’s motion also weighed in favor of the trial court’s

decision. If Alexander entered his pleas only because he felt pressured, he was fully

aware of this when he agreed to the negotiated plea, yet he waited almost seven months

to file his motion to withdraw the pleas. “Generally, a motion to withdraw a guilty plea

made on the day of the sentencing hearing is not made at a reasonable time.” (Citations

omitted.) Estep at ¶ 30. This was especially true in the present case, in which almost

seven months had passed between the plea hearing and the sentencing hearing.
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{¶ 27} The sixth factor addresses whether Alexander had sufficiently outlined

specific reasons for his plea withdrawal request. Alexander explained in his motion that

he pled guilty “reluctantly, as he had been threatened while in custody.” He then

explained that he had since “learned of the sentence handed down to others more

involved in the planning and executing of the actions in this case, and is concerned that

his case has been treated the same as others who were more at fault in this matter than

he was.” Given that Alexander gave specific reasons in his motion, this factor weighed

in favor of granting his motion.

{¶ 28} The seventh and eighth factors weighed in favor of denying Alexander’s

motion. The trial court had asked Alexander at the plea hearing whether he understood

the nature of the charges and possible penalties, and Alexander stated that he did.

Further, there was no evidence or argument that Alexander was not guilty of or had a

complete defense to the charge or charges.

{¶ 29} Finally, the last factor requires us to examine whether the withdrawal of

Alexander’s pleas would have prejudiced the State. We agree with the State that it would

have suffered some prejudice if Alexander had been permitted to withdraw his pleas. As

the State notes, it had had to issue subpoenas for the victims and other witnesses

numerous times, and “[s]ecuring the presence of witnesses can be difficult if a case is

fresh, and even more difficult still if the victims are fatigued by the continued appearances

and the desire to put the trauma behind them.” Appellee’s Brief, p. 8. While this factor

was not dispositive, it did weigh in favor of the trial court’s decision to deny Alexander’s

motion to withdraw his pleas.
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{¶ 30} The balancing of the nine factors weighed heavily in favor of denying

Alexander’s motion to withdraw his pleas. Even though pre-sentence motions to

withdraw pleas are to be “freely and liberally granted,” we cannot conclude on this record

that the trial court abused its discretion by denying Alexander’s motion.

{¶ 31} The second assignment of error is overruled.

IV. Conclusion

{¶ 32} Having overruled both of Alexander’s assignments of error, the judgment of

the trial court will be affirmed.

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TUCKER, J. and HUFFMAN, J., concur.