[Cite as State v. Hicks , 2018-Ohio-1964.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 106101

STATE OF OHIO

PLAINTIFF-APPELLEE

vs. BISHOP J. HICKS

DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-17-613700-C

BEFORE: Celebrezze, J., Blackmon, P. J., and Laster Mays, J.

RELEASED AND JOURNALIZED: May 17, 2018ATTORNEYS FOR APPELLANT

Mark Stanton Cuyahoga County Public Defender By: Frank Cavallo Assistant Public Defender Courthouse Square, Suite 200 310 Lakeside Avenue Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE Michael C. O’Malley Cuyahoga County Prosecutor BY: Ashley B. Kilbane Anthony Thomas Miranda Assistant Prosecuting Attorneys The Justice Center, 9th Floor 1200 Ontario Street Cleveland, Ohio 44113

FRANK D. CELEBREZZE, JR., J.: {¶1} Defendant-appellant, Bishop Hicks, brings the instant appeal challenging his conviction for attempted aggravat ed robbery. Specifically, Hicks argues that the trial court abused its discretion by failing to hold a hearing on his motion to withdraw his guilty plea and

that he was denied his constitu tional right to the effective a ssistance of counsel. After a thorough review of the record and law, this court affirms. I. Factual and Procedural History {¶2} In Cuyahoga C.P. No. CR-17-613700-C, Hicks was charged for his involvement in an incident that occurred on January 23, 2017, dur ing which Hicks and hi s codefendants, EricHenderson and Javon Mason, robbed an indivi dual at gunpoint. On January 31, 2017, the Cuyahoga County Grand Jury returned a fou r-count indictment charging Hicks with (1) aggravated robbery, a first-degree felony in violation of R.C. 2911.01(A)(1), with one- and three-year firearm specifications; (2) robbery, a second-degree felony in violation of R.C. 2911.02(A)(2), with one- and three-year firearm specifications; (3) kidna pping, a first-degree felony in violation of R.C. 2905.02(A)(2), with one- and three-year firearm specifications; and (4) carrying a concealed weapon, a fourth-degree fe lony in violation of R.C. 2923.12(A)(2), with a forfeiture of a weapon specification and a furthe rmore clause alleging that the weapon involved

was a firearm that was either loaded or fo r which Hicks had ammunition ready at hand. {¶3} At his initial appearance on January 31, 2017, th e trial court declared Hicks to be indigent and assigned counsel to represent h im. Hicks was arraigne d on February 3, 2017. He pled not guilty to the indictment. {¶4} The parties reached a plea agreement. The state amended Count 1 to attempted aggravated robbery, a second-degree felony with a one-year firearm sp ecification. The state deleted the three-year firearm specification ch arged in Count 1. On June 6, 2017, Hicks pled guilty to Count 1 as amended. Counts 2, 3, a nd 4 were nolled. The trial court ordered a presentence investigation report, a drug and al cohol treatment report, and a mental health assessment from the court psychiatric clinic, and set the matter for sentencing. {¶5} The trial court held a sentencing hearin g on July 6, 2017. The trial court sentenced Hicks to three years in prison: one year in prison on the firearm specification to be served consecutively with a prison term of two years fo r the attempted aggravated robbery offense. The trial court journaliz ed its sentencing entry on July 14, 2017. {¶6} On July 12, 2017, Hicks, through new counsel , filed a motion to withdraw his guiltyplea. Therein, Hicks requested to withdraw his guilty plea based on (1) his severe Attention Deficit Hyperactivity Disorder (“ADHD”) that affects his ability to focus on and comprehend matters of importance, (2) the fact that he did not understand the nature of his guilty plea, and (3) the fact that he previously expressed his desi re not to plead guilty to both counsel that was originally assigned to represen t him and to the trial court. The state filed a brief in opposition on July 21, 2017. {¶7} Before the trial court ruled on Hicks’s motion to withdraw his guilty plea, Hicks filed the instant appeal challeng ing his conviction on August 9, 2017. {¶8} On December 5, 2017, the trial court denied Hicks’s motion to withdraw his guilty plea. The trial court concluded that Hicks failed to demonstrate a manifest injustice that

warranted withdrawal and that Hicks’s motion wa s merely based on a “change of heart.” {¶9} In the instant appeal, Hicks assigns two errors for review: I. The trial court abused its discretion by failing to hold a hearing on appellant’s oral motion to withdraw his guilty plea. II. Appellant was denied eff ective assistance of counsel at his sentencing when his defense attorney refused to argue his pl ainly expressed wishes to withdraw his guilty plea. II. Law and Analysis A. Motion to Withdraw Guilty Plea {¶10} In his first assignment of error, Hicks argues that the trial court abused its discretion by failing to hold a hearing on the oral motion to withdraw his guilty plea that he made during the sentencing hearing. {¶11} 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 tocorrect manifest injustice the c ourt after sentence may set aside the judgment of conviction and permit the defendant to withdraw his or her plea.” The decision whether to grant or deny a motion to withdraw a guilty plea is entirely with in the sound discretion of the trial court. State

v. Xie , 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992), pa ragraph two of the syllabus. This court will not disturb the trial court’s ruling on a motion to withdraw a guilty plea absent an

abuse of that discretion. Id .; State v. Peterseim , 68 Ohio App.2d 211, 428 N.E.2d 863 (8th Dist.1980), syllabus. “‘Unless it is shown that the tr ial 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). {¶12} In the instant matter, the record reflects that Hicks orally requested, pro se, to withdraw his guilty plea after the trial court imposed the three-year prison sentence. After the trial court imposed its sentence, Hicks asserted, “I want to take my plea back.” (Tr. 55.) {¶13} The record reflects that the trial court did not immediately address Hicks’s assertion. Rather, the tr ial court continued its discussion about Hicks’s eligibility for judicial

release. {¶14} Initially, we note that Hicks’s oral, pro se request to withdraw his guilty plea consisted of a single sentence: “I want to take my plea back.” (Tr. 55.) Hicks did not specify any reasons based upon which he sought to withdraw his plea. {¶15} Furthermore, the record re flects that Hicks was repres ented by counsel when he orally moved, pro se, to withdraw his plea. This court has pr eviously held that “a defendant has the right to counsel or the right to act pro se ; however, a defendant does not have the right to both, simultaneously, which is known as ‘hybrid representation.’” State v. Wyley , 8th Dist. Cuyahoga No. 102889, 2016-Ohio-1118, ¶ 8, quoting State v. Mongo , 8th Dist. Cuyahoga No.100926, 2015-Ohio-1139, ¶ 13. Therefore, when a criminal defendant is represented by counsel, a trial court ma y not entertain the defendant’s pro se motion. Wyley at ¶ 9, citing State v. Washington , 8th Dist. Cuyahoga Nos. 96565 and 96568, 2012-Ohio-1531, ¶ 11. “[W]here a defendant who is represented by counsel files pro se motions and there is no indication that defense counsel joins in those mo tions or indicates a need for th e relief sought by the defendant pro se, such motions are not proper and the tria l court may strike them from the record.” State

v. Davis , 10th Dist. Franklin No. 05AP-193, 2006-Ohio-5039, ¶ 12. {¶16} In the instant matter, the record reflect s that Hicks was represented by counsel when he orally moved, pro se, to withdraw his guilty plea. There is no indication that defense counsel joined Hicks’s request. In fact, defens e counsel opined that Hick s’s pro se request to take back his plea was untimely. Accordingly, Hicks’s oral, pro se request to withdraw was not properly before th e trial court. {¶17} Although the trial court did not specifically rule on Hicks’s oral pro se request to withdraw his guilty plea, the trial court proceeded with th e imposition of sentence. By proceeding with the sentencing, we assume that the trial court’s failure to issue a ruling on Hicks’s request is tantamount to denying the request. See State v. Ward , 2017-Ohio-933, 86 N.E.3d 878, ¶ 2 (8th Dist.), citing State v. Larry , 8th Dist. Cuyahoga No. 87534, 2006-Ohio-6578, ¶ 11. {¶18} We further find that the r ecord reflects that Hicks e ssentially abandoned his oral pro se request to withdraw his guilty plea. Hicks acknowledges that although he “first expressed his desire to withdr aw his plea during his sentencing hearing[, h]e did not make a formal motion at that time[.]” Appellant’s brief at 3-4. {¶19} When the trial court completed its advisement regarding judicial release, Hicks didnot affirmatively restate that he wanted to withdraw his guilty plea. Rather, Hicks inquired about withdrawing his guilty plea. The following exchange took place: [HICKS]: Okay, Your Honor, but what if I want to withdraw my plea?

THE COURT: Well — [DEFENSE COUNSEL]: A little late. THE COURT: You can do that if you wi sh, and we’ll hold a hearing on that, but I’m going to finish the sentencing and you can make that decision[.] * * * But just because you withdraw it doesn’t mean I have to accept your withdrawal. I’ll make a decision on that. I’ll have a separa te hearing and we’ll deal with that. But we are going to finish the sentence[.] (Tr. 58-59.) The trial court proceeded to impose court costs, and explained that Hicks could pay the court costs through community work service. {¶20} After Hicks initially asserted that he wanted to “take [his] plea back,” the record reflects that Hicks merely inquire d about doing so. Furthermore, after the tria l court advised Hicks that he could move to withdraw his pl ea if he wanted to following the imposition of sentence, Hicks neither affirmatively stated that he wanted to withdraw his plea nor informed the

trial court what decision he made with respect to a motion to withdraw. Instead, Hicks inquired whether the money in his commissary account w ould be deducted and a pplied towards court costs. Accordingly, the record reflects th at Hicks abandoned his oral, pro se motion to

withdraw. {¶21} Based on the foregoing analysis, we find that Hicks’s oral, pro se motion to withdraw his guilty plea was not properly before the tr ial court, and Hick s abandoned his motion to withdraw. Accordingly, we find no basis to c onclude that the trial court abused its discretionin failing to hold a hearing on Hicks’s oral motion to withdraw. Hicks’s first assignment of

error is overruled.

B. Ineffective Assistance of Counsel {¶22} In his second assignment of error, Hi cks argues that he was denied his constitutional right to the effective assistance of counsel during the sentencing hearing. {¶23} In order to establish a claim of ineffec tive assistance of counsel, Hicks must prove (1) his counsel was deficient in some aspect of his representati on, and (2) there is a reasonable probability that, were it not for counsel’s errors, the result of the trial c ourt’s proceedings would

have been different. Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In Ohio, every properly licensed attorney is presumed to be competent and, thus, a defendant claiming in effective assistance of counsel bears the burden of proof. State v. Smith , 17 Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985). In determining whether the defendant has

been denied the effective assi stance of counsel, the test is “whether the accused, under all the circumstances, * * * had a fair trial and substantial ju stice was done.” State v. Hester , 45 Ohio St.2d 71, 341 N.E.2d 304 (1976), paragr aph four of the syllabus. {¶24} In the instant matter, regarding the first Strickland prong, Hicks argues that

counsel’s failure to address Hi cks’s desire to withdraw his guilty plea constituted deficient performance. Specifically, Hicks contends that when he inqui red about withdrawing his plea during the sentencing hearing, counsel failed to (1) ask for a recess in order to consult with Hicks, (2) request a hearing on Hicks’s plea w ithdrawal request, and (3) advocate on Hicks’s behalf. Regarding the second Strickland prong, Hicks argues that he was prejudiced by counsel’s deficient perfo rmance because had counsel requested that the trial court hold a hearing on Hicks’s motion to withdraw, the trial court would not have ignored Hicks’s request.{¶25} Initially, we note that Hicks’s assertion that the trial court “ignored” his plea withdrawal request is unsupported by the reco rd. As noted above, although Hicks initially

asserted that he wanted to “t ake [his] plea back,” Hicks subse quently inquired about withdrawing his guilty plea. The trial court advised Hicks that he could move to withdraw his guilty plea if he wished to, and that Hicks could make that decision following the imposition of sentence. Thus, contrary to Hicks’s a ssertion, the trial court did not ignore Hicks’s inquiry about withdrawing his plea. {¶26} Additionally, as noted above, the record clear ly reflects that Hicks asserted that he wanted to “take [his] plea back ” during the sentencing hearing and inquired about doing so. Thereafter, the trial court advised Hicks that he c ould move to withdraw his plea if he wanted to

and that Hicks could make that decision followi ng the imposition of sentence. Hicks’s second assignment of error is premised entirely on the assumption that after he inquired about withdrawing his plea during the sentencing h earing, he (1) insisted on doing so, (2) communicated his desire to do so to counsel, a nd (3) counsel failed to act on his request. {¶27} In the motion to withdraw his guilty plea that Hicks filed, through new counsel, on July 12, 2017, Hicks asserted that after he pled guilty on June 6, 2017, he “began asking his then [c]ounsel to withdraw his [p]lea.” Hicks fu rther alleged that on July 6, 2017, before the sentencing hearing commenced, he advised his counsel again that he wanted to withdraw his guilty plea. Hicks stated that while his counsel was speaking in mitigation during the sentencing hearing, Hicks “several times whispered to then [c]ounsel that he wanted to withdraw his [p]lea.” {¶28} After review, we find that Hicks’s claim th at he informed counsel he wanted to withdraw his guilty plea prior to the date of sentencing, before the hearing on the date ofsentencing, and during the sentencing hear ing is not supported by the record. {¶29} When defense counsel addre ssed the court during the sentencing hearing, he did not indicate that Hicks had expressed a desire to withdraw his guilty plea. Furthermore, when Hicks initially addressed the court prior to the imposition of sentence, he made no mention of the

fact that he told counsel that he wanted to w ithdraw his guilty plea, nor did he inform the trial court that he wanted to withdraw his guilty plea at this point in the hearing. Rather, Hicks alleged that a lot of lies had been told about the robbery and opine d that the offenses with which he was charged were not appr opriate based on his involvement in the incident. Hicks acknowledged that he had a weapon at the time of the robbery, but asserted that he did not rob anyone. Hicks explained that he “followed th e suggestion to cop out” even though he did not want to do so. Furthermore, Hicks apologized to the victim and accepted responsibility for his conduct. Following Hicks’s statements to the court, Hicks’s counsel opined that Hicks was upset because he pled guilty to a second-degr ee felony with a one-year firearm specification when his codefendant, who Hicks believed was more culpable than he was, pled guilty to aggravated theft, a fifth-degree felony. 1 {¶30} After review, we find that there is nothing in the record indicating that Hicks communicated his desire to withdraw his guilty pl ea to counsel prior to or during the sentencing hearing. The record reflects that the first time counsel becam e aware of Hicks’s desire to withdraw his plea was when Hicks asserted “I want to take my plea back” and “what if I want to withdraw my plea” during the sentencing hearing, at which point counsel opined that Hicks’s request was “[a] little late.”

1 Counsel was presumably referencing Hicks’s codefendant Javon Mason. See Cuyahoga C.P. No. CR-17-613700-B.{¶31} As noted above, although Hicks inquired a bout withdrawing his plea, the record reflects that Hicks essentially abandoned his request and inquiry. Accordingly, we cannot say

that counsel’s failure to advocate for withdr awal on Hicks’s behalf constituted deficient performance. When Hicks inquired about the payment of court cost s, rather than affirmatively declaring that he did, in fact, want to withdr aw his guilty plea, counsel could have reasonably believed that Hicks did not want to formally m ove to withdraw his plea after he inquired about doing so. {¶32} Finally, this court has held th at counsel is prejudicially ineffective when he or she “‘fails to act on [the defendant’s] request to withdraw his plea when the possibility that he would

have been allowed to withdraw hi s plea is not insubstantial.’” State v. Drake , 8th Dist. Cuyahoga No. 93761, 2010-Ohio-1065, ¶ 11, quoting State v. Strutton , 62 Ohio App.3d 248, 252, 575 N.E.2d 466 (2d Dist.1998). In this case, Hi cks did not indicate th at he wanted to withdraw his plea prior to the imposition of sentence. The statements Hicks made prior to the imposition of sentence did not evidence a specific reason for withdrawing his plea. Rather, Hicks’s statements merely indicated a desire to avoid prison and/or a change of heart. Furthermore, when Hicks asserted that he wanted to “take [h is] plea back” and inquired about withdrawing his plea, Hicks did not specify any reasons based upon which he sought to withdraw his plea, and he failed to offer any reasonable or legitimate basis for doing so. Accordingly, there is nothing in the record before this court indicating that the possibility that Hicks would have been allowed to withdraw his guilty plea was not insubstantial. {¶33} The record reflects that Hi cks’s counsel successfully negotiated a plea agreement that resulted in (1) the amendment of a first- degree felony to a second-degree felony, (2) the deletion of the three-year firear m specification charged in Count 1, (3) the dismissal of second-and third-degree felonies, both of which contained one- and three- year firearm specifications, and (4) the dismissal of a fourth-degree felony. Th e plea agreement that Hick s’s counsel negotiated significantly reduced Hicks’s sentencing exposure. {¶34} For all of the foregoing reasons, we find no merit to Hicks’s ineffective assistance of counsel claim. Accordingly, Hicks’s second assignment of error is overruled.

III. Conclusion {¶35} After thoroughly reviewing the record, we fi nd that the trial court did not abuse its discretion in failing to hold a hearing on Hicks’s oral pro se request to withdraw his guilty plea and Hicks was not denied his constitutional righ t to the effective assistance of counsel. {¶36} Judgment affirmed. It is ordered that appellee recove r of appellant co sts herein taxed.

The court finds there were reas onable 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 Appella te Procedure.

FRANK D. CELEBREZZE, JR., JUDGE PATRICIA ANN BLACKMON, P.J., and ANITA LASTER MAYS, J., CONCUR