State v. Alexander

2023 Ohio 21

• Court: Ohio Court of Appeals
• Decided: January 6, 2023
• Docket: 29465
• Status: Published

Opinion

[Cite as State v. Alexander, 2023-Ohio-21.]

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

STATE OF OHIO : : Appellee : C.A. No. 29465 : v. : Trial Court Case No. 2021 CR 00643 : DAJAHNN P. ALEXANDER : (Criminal Appeal from Common Pleas : Court) Appellant : :

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OPINION

Rendered on January 6, 2023

MATHIAS H. HECK, JR., by RICKY L. MURRAY, Attorney for Appellee

ADAM J. ARNOLD, Attorney for Appellant

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LEWIS, J. -2-

{¶ 1} Defendant-Appellant Dajahnn P. Alexander appeals from his convictions for

involuntary manslaughter, tampering with evidence, and bribery. For the following

reasons, we affirm the judgment of the trial court.

I. Facts and Course of Proceedings

{¶ 2} On March 9, 2021, Alexander was indicted by a Montgomery County grand

jury on two counts of murder, two counts of felonious assault, and one count of tampering

with evidence related to the death of Jermaine Lewis in October 2020. The murder and

felonious assault counts contained firearm specifications. Lucas Wilder was appointed

as trial counsel for Alexander. After a series of continuances and rulings on motions, a

trial was scheduled for November 15, 2021.

{¶ 3} On November 10, 2021, the State filed a “Notice of Intent to Use Statements

Pursuant to Forfeiture by Wrongdoing and Evidence Showing Such Forfeiture by

Wrongdoing.” The trial court held a hearing to determine whether Alexander had

engaged in wrongdoing. Ultimately, the trial court found that Alexander had engaged in

wrongdoing that caused the unavailability of three key witnesses for trial. Therefore, the

trial court found that Alexander had forfeited his rights to confront witnesses and raise

objections to evidence. Alexander’s improper contact with witnesses also led to a re-

indictment on bribery and obstruction charges. At Alexander’s request, and over the

State’s objection, the court rescheduled the trial for January 2022.

{¶ 4} On January 11, 2022, Alexander entered into a plea agreement with the

State. In return for pleading guilty to involuntary manslaughter, tampering with evidence, -3-

and bribery, the State agreed to drop the other counts. The parties agreed to a prison

sentence of 23 years, and Alexander promised that he would not seek judicial release.

After a plea colloquy, Alexander entered a guilty plea, and the trial court found him guilty

of the three charges. The next day, Alexander appeared before the trial court again to

allow the parties to correct the plea form that was signed the previous day. The trial

court explained to Alexander that it had made a misstatement during the plea colloquy

regarding whether the prison term for the offense of involuntary manslaughter was

mandatory by law. According to the trial court, Alexander normally would be eligible for

community control sanctions for that particular offense. Pursuant to the plea agreement,

however, the parties agreed that prison would be imposed rather than community control

sanctions. This correction was made on the plea form and, after consulting with counsel,

Alexander signed the revised form and ratified his guilty plea. The matter was then

scheduled for sentencing.

{¶ 5} On January 28, 2022, prior to sentencing, Alexander’s trial counsel filed a

motion to withdraw as counsel, which was granted. Ben Swift was appointed as new

counsel for Alexander. On February 15, 2022, Swift filed a motion to withdraw

Alexander’s guilty plea. A hearing on the motion was held on March 25, 2022.

{¶ 6} Alexander testified first at the hearing. Alexander testified that his original

trial counsel, Wilder, had visited him in jail approximately ten times during the course of

his representation and had provided him with the discovery packet. March 25, 2022

Hearing Transcript, 141-142. According to Alexander, he eventually wanted to replace

Wilder with another attorney and told Wilder this several times, but Wilder told him that -4-

Alexander could not take him off his case unless Alexander found and paid for a private

practice attorney. Id. at 143-145, 151. Alexander believed that Wilder was not working

well enough for him and that Wilder was giving Alexander different advice than Wilder

was giving Alexander’s family. Id. at 143-144. Alexander and his family hoped to hire

a private attorney, but neither Alexander nor his family had enough money to hire him.

Id. at 145.

{¶ 7} Alexander testified that he was the one who came up with offering a plea deal

to the State totaling 23 years of imprisonment. Id. at 152. He felt like he had no choice

but to plea because he could not fire Wilder. Id. at 163-169. Although he understood

that he would get 23 years in prison, Alexander testified that he had not understand the

mandatory time. Id. at 154. Alexander did not tell the trial court that he was confused.

Id. at 155. On cross-examination, Alexander conceded that he knew that he would be

getting 23 years in prison and that he had been able to do some legal research before he

made the plea offer to the State. Id. at 166, 168-170.

{¶ 8} Attorney Wilder testified next at the hearing. According to Wilder, he had

had a good relationship with Alexander and had visited him at least 20 times in jail and

sent him approximately 100 emails. Id. at 181-182. Wilder recalled Alexander looking

into hiring a private attorney, but Alexander’s family could not come up with sufficient

money to do so. Id. at 183. Wilder did not believe communication had ever deteriorated

to the point of warranting his withdrawal as trial counsel, and he had never told Alexander

that he could not get new trial counsel. Further, Alexander never told Wilder that he did

not want Wilder as his attorney. Id. at 182, 193. Wilder explained the gun specifications -5-

to Alexander. The gun specifications needed to be done the way they were in order to

get to the 23 years that Alexander desired. Id. at 184-186. Alexander never expressed

any confusion to Wilder about the terms of the guilty plea. Id. at 198-199.

{¶ 9} Detective Troy Dexter also testified at the hearing. Detective Dexter worked

for the Butler Township Police Department. He documented Alexander’s attempts to

communicate with witnesses and stated that he had been able to serve subpoenas on

only one of three trial witnesses. Id. at 200-204.

{¶ 10} At the conclusion of the hearing, the trial court found Wilder more credible

than Alexander and orally overruled Alexander’s motion to withdraw his plea. The trial

court memorialized this decision in a March 28, 2022 entry. The trial court sentenced

Alexander to a total of 23 years in prison. Alexander filed a timely notice of appeal.

II. The Trial Court Did Not Abuse Its Discretion in Denying Alexander’s Motion to

Withdraw His Guilty Plea

{¶ 11} Alexander’s two assignments of error are interrelated and will be addressed

together. The assignments of error are as follows:

THE TRIAL COURT ERRED IN APPLYING AN ELEVATED

STANDARD TO THE MOTION TO WITHDRAW PLEA.

THE TRIAL COURT’S APPLICATION OF THE HIGHER

STANDARD IN THE WITHDRAW OF PLEA HEARING WAS NOT

HARMLESS ERROR.

{¶ 12} We review decisions on motions to withdraw a guilty plea for an abuse of -6-

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). “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.

{¶ 13} 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 tests have developed based on whether the motion

to withdraw a plea is made before or after sentencing.

{¶ 14} 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. at ¶ 13. -7-

{¶ 15} 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. Harris, 2d Dist. Montgomery No. 19013, 2002-Ohio-2278, ¶ 7, citing 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-356, ¶ 2, citing Smith at

264.

{¶ 16} When a defendant discovers before sentencing the particular sentence a

trial court intends to impose, we have held that a pre-sentence motion to vacate his plea

ordinarily should be treated as a post-sentence motion. This is so because a defendant

cannot test the sentencing waters and then move to vacate his plea just before sentencing

if he receives an unpleasant surprise. State v. Wallen, 2d Dist. Montgomery No. 21688,

2007-Ohio-2129, ¶ 22. We also have recognized, however, that this reasoning does not

apply to agreed sentences. “Where a sentence is agreed to as part of a plea bargain,

and the trial court has indicated that it is joining in the agreement, there has been no

‘unpleasant surprise’ to the defendant after ‘testing the sentencing waters,’ which is the

rationale for the stricter standard for a post-sentence motion to withdraw a plea.” Id.

Therefore, when a defendant files a pre-sentence motion to vacate a plea entered as part

of a plea deal with an agreed sentence, the motion still should be treated as a pre-

sentence motion and judged under the more lenient standard. Id.

{¶ 17} The trial court construed Alexander’s motion as a post-sentence motion and

applied the manifest injustice standard. Alexander contends that the trial court should -8-

have instead applied the pre-sentence, more liberal standard to his motion. The State

concedes that the trial court applied the incorrect standard. The State’s concession is

consistent with our precedent. See State v. Waters, 2d Dist. Montgomery No. 29346,

2022-Ohio-3166, ¶ 12, citing State v. Simpson, 2d Dist. Montgomery No. 24266, 2011-

Ohio-6181, ¶ 8-10.

{¶ 18} Identifying the trial court’s error, however, does not end our analysis. In

evaluating whether a trial court has abused its discretion in overruling a pre-sentence

motion to withdraw a plea, we review the following nine factors: 1) whether the accused

is 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 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 is 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.

{¶ 19} Although it ultimately applied the manifest injustice standard to Alexander’s

motion to withdraw, the trial court also conducted the analysis of the nine factors involved

in the pre-sentence standard. At the hearing on the motion to withdraw, the trial court -9-

discussed the nine factors and found that only the timeliness of the motion (factor 5)

weighed in favor of allowing Alexander to withdraw his plea. Hearing Transcript, p. 210-

215. The court reiterated this finding in its written order overruling Alexander’s motion.

The trial court also found that Alexander had “failed to present any reasonable or

legitimate basis for withdrawing his plea[.]” March 28, 2022 Decision, p. 2. The court

concluded that Alexander’s prior counsel had been highly competent and that Alexander

had been given a full plea colloquy hearing prior to entering this plea. Id.

{¶ 20} Based on a review of the record before us and the nine factors in Miller, we

conclude that the trial court did not abuse its discretion in denying Alexander’s motion to

withdraw his guilty plea. Alexander was represented by highly competent counsel and

did not express any dissatisfaction with counsel at the plea hearing. Alexander was

given a full Crim.R. 11 hearing before entering the plea. Further, a full hearing was held

on Alexander’s motion to withdraw his guilty plea and the trial court gave full and fair

consideration to the motion. Alexander’s motion was made within a reasonable time, but

his motion did not set out specific reasons for the withdrawal. At the hearing on his

motion, Alexander confirmed that he was the one who came up with the plea offer of 23

years in prison. Alexander did not express any confusion to the trial court about whether

he understood the nature of the charges and possible penalties. Finally, the State

arguably would have been prejudiced by a withdrawal of the plea due to the improper

communications Alexander had with key witnesses.

{¶ 21} We acknowledge that Alexander testified at the motion hearing about

feeling pressured into entering into a plea deal because he believed that Wilder was not -10-

working well enough for him and about Wilder’s telling him that no new counsel could be

appointed to replace Wilder. But Wilder’s testimony contradicted this testimony. The

trial court chose to credit Wilder’s testimony over Alexander’s. March 25, 2022 Hearing

Transcript, p. 211-212. Because the trier of fact sees and hears the witnesses at trial,

we must defer to the factfinder's decisions whether, and to what extent, to credit the

testimony of particular witnesses. State v. Lawson, 2d Dist. Montgomery No. 16288,

1997 WL 476684, *4 (Aug. 22, 1997).

{¶ 22} The trial court was not persuaded by Alexander’s contentions that he had

been unhappy with his trial counsel and that he had not understood the mandatory nature

of his sentence when he entered his plea. Rather, Alexander’s motion appeared to be

based on a change of heart rather than a reasonable and legitimate basis for withdrawing

his plea. The second assignment of error is overruled.

III. Conclusion

{¶ 23} The trial court did not abuse its discretion in denying Alexander’s motion to

withdraw his guilty plea. The judgment of the trial court is affirmed.

TUCKER, P.J. and WELBAUM, J., concur.