[Cite as State v. Powell, 2019-Ohio-346.]

Court of Appeals of Ohio 

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 107006 

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

ANTONIO POWELL

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-17-615121-B 

BEFORE: Sheehan, J., Laster Mays, P.J., and E.A. Gallagher, J. 

RELEASED AND JOURNALIZED: January 31, 2019 
ATTORNEY FOR APPELLANT

Patrick S. Lavelle 

Van Sweringen Arcade, Suite 250 

120 West Prospect Avenue 

Cleveland, OH 44115 

ATTORNEYS FOR APPELLEE

Michael C. O’Malley 

Cuyahoga County Prosecutor 

By: Kelly N. Mason 

Assistant County Prosecutor 

Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, OH 44113 

MICHELLE J. SHEEHAN, J.: 

{¶1} Defendant-appellant Antonio Powell appeals from the trial court’s judgment 

denying his motion to withdraw his guilty plea. For the reasons that follow, we affirm the trial 

court. 

I. Procedural and Factual History

{¶2} On March 23, 2017, Powell was charged in a multiple-count indictment arising 

from a standoff with the Cleveland police SWAT unit that escalated to a shootout between 

Powell (and a codefendant) and the police. The indictment included 24 charges of attempted 

murder (Counts 1–2, 5–6, 8–9, 11–12, 14–15, 17–18, 20–21, 23–24, 26–27, 29–30, 32–33, and 

35–36). Each of these charges included a one-, three-, five-, and seven-year firearm 

specification and a forfeiture specification. The indictment also included 13 charges of 
felonious assault (Counts 3-4, 7, 10, 13, 16, 19, 22, 25, 28, 31, 34, and 37), each of which 

contained a one-, three-, five-, and seven-year firearm specification and a forfeiture specification. 

{¶3} On January 22, 2018, Powell withdrew his previously entered not guilty plea and 

pleaded guilty to attempted murder in Count 1, as indicted, along with the attendant firearm and 

forfeiture specifications. Powell also pleaded guilty to the following amended counts of 

attempted murder as well as the attendant five-year firearm specifications and forfeiture 

specifications: Counts 5, 8, 11, 14, 17, 20, 23, 26, 29, 32, and 35. These counts were amended 

to delete all other firearm specifications. The remaining charges contained in the indictment 

were nolled. Under the plea agreement, the parties agreed to a sentencing range of 15 to 25 

years imprisonment. The court accepted the guilty plea. 

{¶4} On January 30, 2018, Powell filed a pro se motion to withdraw his guilty plea, 

stating that “the guilty plea was given under extreme stress” and he did not agree to a sentencing 

range of 15 to 25 years. Prior to sentencing, the court held a hearing on Powell’s motion. The 

court denied Powell’s motion and proceeded to sentencing. 

{¶5} The court sentenced Powell to 10 years in prison on Count 1, plus 7 years on the 

firearm specification, to be served consecutively. The court also sentenced Powell to 3 years on 

Count 5, plus 5 years on the firearm specification, to be served consecutively. On each of the 

remaining charges, the court imposed a sentence of 11 years, plus 5 years on the firearm 

specification, to be served concurrently to the sentence imposed in Counts 1 and 5. The 

sentence totaled 25 years. 

{¶6} Powell now appeals his conviction, assigning one error for our review: the trial 

court abused its discretion when it denied his presentence motion to withdraw his guilty plea. 
Powell essentially argues that the trial court failed to provide a complete and impartial hearing 

and it failed to fully consider his motion to withdraw. 

II. Law and Analysis

{¶7} 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.” 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). It is well established, however, that a “defendant does not have an absolute 

right to withdraw a guilty plea prior to sentencing. Therefore, a trial court must conduct a 

hearing in order to determine whether there is a reasonable and legitimate basis for the 

withdrawal of the plea.” Id.

{¶8} 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; 

State v. Peterseim, 68 Ohio App.2d 211, 428 N.E.2d 863 (8th Dist.1980), paragraph two of the 

syllabus. “‘[U]nless it is shown that the trial court acted unjustly or unfairly, there is no abuse 

of discretion.’” Peterseim at 213-214, quoting Barker v. United States, 579 F.2d 1219, 1223 

(10th Cir.1978). 

{¶9} A trial court does not abuse its discretion in denying a motion to withdraw a guilty 

plea where the following occurs: (1) the accused is represented by competent counsel; (2) the 

accused was afforded a full hearing, pursuant to Crim.R. 11, before he entered the plea; (3) when, 

after the motion to withdraw is filed, the accused is given a complete and impartial hearing on 
the motion; and (4) the record reflects that the court gave full and fair consideration to the 

plea-withdrawal request. Peterseim at paragraph three of the syllabus; State v. King, 8th Dist. 

Cuyahoga No. 106709, 2018-Ohio-4780, ¶ 13. Additional factors this court has considered 

include whether the motion was made in a reasonable time; whether the motion states specific 

reasons for withdrawal; whether the accused understood the nature of the charges and the 

possible penalties; and whether the accused was perhaps not guilty or had a complete defense. 

King at ¶ 14, citing State v. Benson, 8th Dist. Cuyahoga No. 83178, 2004-Ohio-1677, ¶ 8-9. 

{¶10} In this case, the record demonstrates that Powell was represented by competent 

counsel during the plea bargain. Counsel successfully negotiated a plea agreement that resulted 

in the dismissal of 25 counts of the indictment, including the accompanying 7-year firearm 

specifications. Powell faced a maximum prison sentence of 216 years without the benefit of a 

plea agreement. As a result of the agreement, however, Powell received a prison sentence of 25 

years. Additionally, when asked by the trial court at the plea hearing, Powell confirmed that he 

was satisfied with counsel’s representation. 

{¶11} Our review of the plea hearing also reflects that the trial court engaged Powell in a 

thorough Crim.R. 11 colloquy, explaining to Powell each of the constitutional rights he would be 

waiving by pleading guilty. At the onset, Powell stated that he had graduated from high school, 

he could read and write, and he was able to understand the proceedings. The court provided 

Powell many opportunities to ask the court any questions he may have where, for example, he 

was confused or “simply disagree[d] with” the court. 

{¶12} Indeed, Powell sought the court’s clarification on several occasions, and after 

further discussion with the court, Powell indicated that he understood. For example, when the 

court noted that the state elected the defendant to be sentenced on the seven-year firearm 
specification on Count 1, Powell asked: “That means I’m pleading guilty to a seven-year gun 

specification on the felony of the first degree attempted murder?” When the court answered 

“yes,” Powell replied, “Yes, Ma’am.” When the court advised the defendant that the remaining 

11 charges contained five-year firearm specifications, Powell asked the court, “Could you 

elaborate, please?” Powell then sought clarification of the mandatory consecutive sentence of 

the firearm specification, and after the court explained it, Powell indicated that he understood. 

Powell also asked for the court to explain why his offenses are not allied. After the court and 

the prosecutor offered further explanation, Powell stated that he understood. Additionally, 

when the court advised Powell that he must forfeit his rights or interest in a handgun, Powell 

once again sought clarification: 

Defendant: Could I ask you a question? 

Court: Sure. 

Defendant: I am pleading guilty to two guns? 

Court: You would have to forfeit any rights and interest that you would have to 

the guns. 

Defendant: Okay. So just the one I had possession of? 

Defense 

Counsel Even though this isn’t your gun, you’re relinquishing any rights 

to it. 

Defendant: Okay. 

* * * 

Court: Okay. You would be giving up any rights and interest that you have to 

the guns. 

Defendant: Okay 

Court: You understand? 
Defendant: Yes, ma’am. 

* * * 

Court: Even if the other gun doesn’t belong to you, if you had an 

interest, you would be giving up your rights to it. 

Defendant: Thank you. 

{¶13} Finally, when the court asked Powell if he agreed to the sentencing range of 15 to 

25 years, he replied in the affirmative. And when the court advised the defendant that the 

7-year and 5-year firearm specifications would run consecutively, Powell stated that he 

understood. The court then found that Powell knowingly and voluntarily entered his plea “with 

a full understanding of his constitutional and trial rights,” and counsel noted that the court 

satisfied the Crim.R. 11 requirements. A trial court’s adherence to Crim.R. 11, raises a 

presumption that a plea is voluntarily entered. State v. Elliott, 8th Dist. Cuyahoga No. 103472, 

2016-Ohio-2637, ¶ 25; State v. Spence, 8th Dist. Cuyahoga No. 54880, 1989 Ohio App. LEXIS 

167, 3 (Jan. 19, 1989). Thus, Powell was provided a full hearing under Crim.R. 11 before he 

entered his plea. 

{¶14} Upon Powell filing his pro se motion to withdraw his plea, he was afforded a 

complete and impartial hearing on the motion and the trial court gave full and fair consideration 

to the plea-withdrawal request. 

{¶15} The hearing on a defendant’s motion to withdraw a guilty plea should reflect the 

substantive merit of the motion; bold assertions without evidentiary support do not merit the 

scrutiny that substantiated allegations would merit. State v. Paulino, 8th Dist. Cuyahoga No. 

104198, 2017-Ohio-15, ¶ 13, citing State v. Hall, 8th Dist. Cuyahoga No. 55289, 1989 Ohio App. 
LEXIS 1602, 2-3 (Apr. 27, 1989). 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. 

{¶16} We note initially that Powell was represented by counsel during the entirety of the 

proceedings, yet he filed his motion to withdraw his guilty plea pro se. 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. Mongo, 8th Dist. Cuyahoga No. 

100926, 2015-Ohio-1139, ¶ 13 (finding the trial court did not abuse its discretion in denying the 

defendant’s pro se motion to withdraw where the defendant was represented by counsel), citing 

State v. Martin, 103 Ohio St.3d 385, 2004-Ohio-5471, 816 N.E.2d 227, paragraph one of the 

syllabus; State v. Thompson, 33 Ohio St.3d 1, 6-7, 514 N.E.2d 407 (1987). The right to counsel 

and the right to act pro se “are independent of each other and may not be asserted 

simultaneously.” Martin at paragraph one of the syllabus. 

{¶17} Therefore, when a criminal defendant is represented by counsel, a trial court may 

not entertain a pro se motion filed by the defendant. State v. Washington, 8th Dist. Cuyahoga 

Nos. 96565 and 96568, 2012-Ohio-1531, ¶ 11. Moreover, 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. State v. Davis, 

10th Dist. Franklin No. 05AP-193, 2006-Ohio-5039, ¶ 12. 

{¶18} In this case, there is nothing in the record indicating that counsel joined Powell in 

his motion or otherwise believed that a basis existed for Powell to withdraw his guilty plea. 

Prior to sentencing, the court advised Powell that because he had counsel, he could not represent 

himself and his motion “should come through [his] lawyer.” The court stated, however, “in 
light of the fact that this is an important matter in consideration for you, the court will hear the 

motion.” The court then proceeded to address Powell’s motion. 

{¶19} Here, when the court inquired of Powell the basis of his motion to withdraw, 

Powell asserted that he only agreed to plead guilty to 15 years. He presented no evidence in 

support of his assertion. The court then recalled its thorough Crim.R. 11 colloquy, reminding 

Powell that he told the court that he understood the plea, that he expressed no confusion during 

the plea hearing, and that he agreed to the sentencing range of 15 to 25 years. During this 

exchange, Powell conceded these facts; however, he attempted to cast blame on his attorney, 

claiming first that counsel never informed him about the plea, and then claiming that he wished 

to withdraw his plea because of a conversation he had with his attorney. When the court 

inquired further, Powell declined to offer additional detail, invoking his attorney-client privilege. 

 Thus, Powell failed to substantiate his claim. Having determined Powell’s motion to withdraw 

had no legitimate basis, the trial court denied the motion. 

{¶20} It is within the trial court’s discretion to determine whether Powell’s arguments in 

support of his motion were reasonable and legitimate. State v. Shaw, 8th Dist. Cuyahoga No. 

102802, 2016-Ohio-923, ¶ 12. And a reviewing court must defer to the trial court “in 

evaluating the ‘good faith, credibility and weight’ of [a defendant’s] motivation and assertions in 

entering and attempting to withdraw his plea.” Id., quoting Xie, 62 Ohio St.3d at 525, 584 

N.E.2d 715. 

{¶21} On this record, we cannot find the trial court abused its discretion in finding no 

reasonable and legitimate basis for Powell’s pro se motion to withdraw his guilty plea. Powell 

failed to provide any evidentiary support for his claims, and these claims, rather, appear to 

demonstrate Powell had a change of heart regarding his plea. It is well established that a change 
of heart is an insufficient basis for withdrawing a guilty plea. State v. Small, 2017-Ohio-110, 80 

N.E.3d 1234 (8th Dist.), ¶ 19, citing Elliott, 8th Dist. Cuyahoga No. 103472, 2016-Ohio-2637, at 

¶ 30; State v. Heisa, 8th Dist. Cuyahoga No. 101877, 2015-Ohio-2269, ¶ 23; State v. Barrett, 8th 

Dist. Cuyahoga No. 100047, 2014-Ohio-1234, ¶ 9. 

{¶22} Moreover, the record indicates that Powell failed to rebut the presumption that his 

plea had been knowing and voluntary. See State v. Alexander, 8th Dist. Cuyahoga No. 103754, 

2016-Ohio-5707, ¶ 11 (the defendant seeking to withdraw his plea has the burden of rebutting the 

presumption that a plea is knowing and voluntary by demonstrating that the plea is infirm). We 

therefore find the hearing on Powell’s motion was complete and impartial and was reflective of 

the motion’s relative merit. The court gave full and fair consideration to Powell’s pro se motion 

to the extent required under the circumstances. And there is no evidence that the trial court 

acted unjustly or unfairly. 

{¶23} Accordingly, we find the trial court did not abuse its discretion in denying Powell’s 

motion to withdraw his guilty plea. 

{¶24} Powell’s sole assignment of error is overruled. 

{¶25} 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. 

__________________________________________ 

MICHELLE J. SHEEHAN, JUDGE 

ANITA LASTER MAYS, P.J., and 

EILEEN A. GALLAGHER, J., CONCUR