State v. Dorsey

2021 Ohio 226

Opinion

[Cite as State v. Dorsey, 2021-Ohio-226.]

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

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 28755 : v. : Trial Court Case No. 2018-CR-4041 : DEJANAE LEECHE DORSEY : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 29th day of January, 2021.

MATHIAS H. HECK, JR., by ANDREW T. FRENCH, Atty. Reg. No. 0069384, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

STEVEN H. ECKSTEIN, Atty. Reg. No. 0037253, 1208 Bramble Avenue, Washington Court House, Ohio 43160 Attorney for Defendant-Appellant

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WELBAUM, J. -2-

{¶ 1} Defendant-appellant, Dejanae Leeche Dorsey, appeals from a judgment of

the Montgomery County Court of Common Pleas overruling her motion to withdraw her

guilty plea. On August 17, 2020, Dorsey’s appellate counsel filed a brief under the

authority of Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967),

asserting the absence of any non-frivolous issues for appeal. On August 31, 2020, this

court notified Dorsey that her counsel found no meritorious claims to present on appeal

and granted Dorsey 60 days to file a pro se brief assigning any errors for review. Dorsey,

however, has not filed a pro se brief. We have conducted an independent review of the

record as required by Anders and have found no issues with arguable merit for appeal.

Therefore, the judgment of the trial court will be affirmed.

Facts and Course of Proceedings

{¶ 2} On December 18, 2018, a Montgomery County grand jury returned an

indictment charging Dorsey with two second-degree-felony counts of felonious assault,

one count in violation of R.C. 2903.11(A)(2) (deadly weapon), and the other count in

violation of R.C. 2903.11(A)(1) (serious physical harm). The charges stemmed from

allegations that on June 13, 2018, Dorsey struck the victim, T.W., with a vehicle, causing

T.W. to suffer physical injuries that required hospitalization.

{¶ 3} On May 21, 2019, Dorsey entered into a plea agreement with the State and

pled guilty to one count of felonious assault with a deadly weapon. In exchange for

Dorsey’s guilty plea, the State agreed to dismiss the other felonious assault charge. The

State also agreed to cap Dorsey’s prison sentence at five years. The five-year

sentencing cap also applied to a fourth-degree-felony count of improperly handling a -3-

firearm in a motor vehicle to which Dorsey pled guilty in Montgomery C.P. No. 2018-CR-

2032. Therefore, the parties agreed that Dorsey would not receive more than five years

in prison for both cases.

{¶ 4} After being advised of the plea agreement, the trial court notified Dorsey that

the sentencing judge would determine whether to apply the five-year sentencing cap, as

the cap was conditioned on Dorsey’s staying out of trouble, showing up to all court

appearances, and abiding by her electronic home detention program (“EHDP”). The trial

court thereafter conducted a Crim.R. 11 plea colloquy and accepted Dorsey’s guilty plea

as knowingly, intelligently, and voluntarily entered.

{¶ 5} Although Dorsey’s sentencing hearing was originally scheduled for June 18,

2019, the hearing was accelerated to June 11th due to Dorsey’s being arrested for

violating her EHDP. During sentencing, the trial court imposed five years in prison for

felonious assault and 18 months in prison for improperly handling a firearm in a motor

vehicle in Case No. 2018-CR-2032. The trial court ordered those prison terms to be

served concurrently for a total term of five years in prison.

{¶ 6} With the assistance of new counsel, on June 14, 2019, Dorsey filed a motion

to withdraw her guilty plea and a supporting affidavit. As part of her motion, Dorsey

argued that she did not commit the felonious assault at issue. In support of that claim,

Dorsey attached multiple Facebook messages that Dorsey claimed were written by the

victim. The messages contained statements indicating that the victim knew that Dorsey

was innocent and that the victim had been paid an undisclosed sum of money to say that

Dorsey was her assailant. In her affidavit, Dorsey also claimed that some of her relatives

received Facebook calls from the victim requesting $15,000 to tell the truth about -4-

Dorsey’s innocence.

{¶ 7} In addition to arguing her innocence, Dorsey claimed that her prior trial

counsel tricked her into accepting the plea agreement by telling her that the agreement

was for five years of probation, not prison. Also, in an effort to have her motion to

withdraw her guilty plea reviewed under the more lenient presentence standard, Dorsey

argued that the acceleration of her sentencing hearing deprived her of the opportunity to

withdraw her guilty plea prior to sentencing. Dorsey claimed that on June 10, 2019, she

had retained new counsel to assist her in withdrawing her guilty plea, but that she and

her new counsel were unaware that her sentencing hearing had been accelerated to June

11, 2019.

{¶ 8} A hearing on Dorsey’s motion to withdraw her guilty plea was held over the

course of three dates—November 21, 2019, December 18, 2019, and January 16, 2020.

The hearing was continued several times so that both parties could procure their

witnesses. Dorsey was also granted a continuance on September 23, 2019, due to her

retaining new trial counsel.

{¶ 9} During the hearing, the State presented Dorsey’s EHDP supervisor,

Lafayette Christian, who testified regarding Dorsey’s EHDP violation and her subsequent

arrest. The State also presented Dorsey’s prior trial counsel, Leo Patrick Mulligan.

After Dorsey waived her attorney-client privilege on the record, Mulligan testified

regarding his representation of Dorsey. Mulligan testified that he never promised Dorsey

that she would get five years of probation for her guilty plea. Mulligan also testified that

he and Dorsey discussed the State’s plea offer, which included a sentencing cap of five

years in prison for the instant case and Case No. 2018-CR-2032. Mulligan further -5-

testified that Dorsey understood the plea offer and noted that the offer was very favorable,

given that the discovery included an absolute identification of Dorsey as the individual

who hit the victim.

{¶ 10} The State also presented the victim, T.W., who testified regarding the

Facebook messages attached to Dorsey’s motion to withdraw her guilty plea. When

T.W. reviewed a copy of the messages at the hearing, she testified that the messages

were not written by her and were fake. T.W. also testified that the father of Dorsey’s

child offered her money to say that Dorsey was innocent. T.W. further testified that she

never took money from anyone and that she was 100 percent certain that Dorsey was the

person who hit her with a vehicle.

{¶ 11} Dorsey testified on her own behalf at the hearing and admitted that she was

aware of the Facebook messages prior to entering her guilty plea. Dorsey also testified

that she was never notified that her sentencing hearing would be accelerated to June 11,

2019. Dorsey further testified that her prior counsel, Mulligan, told her that she could not

go to trial because the trial court judge did not like her, and that she would receive five

years of probation if she entered a guilty plea. Dorsey also presented an acquaintance,

Rosalind Miller, who testified to overhearing a speakerphone conversation between

Dorsey and Mulligan. Miller testified that during the conversation, she heard Mulligan

tell Dorsey that Dorsey would get five years of probation if she entered a guilty plea.

{¶ 12} On March 17, 2020, the trial court issued a decision overruling Dorsey’s

motion to withdraw guilty plea. Dorsey thereafter appealed from that decision. In

proceeding with the appeal, Dorsey’s appellate counsel filed an Anders brief asserting

the absence of any non-frivolous issues for appeal and raising one potential assignment -6-

of error for review.

Standard of Review

{¶ 13} Pursuant to Anders, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493, this court

must conduct an independent review of the record to determine if the appeal at issue is

wholly frivolous. Id. at 744. “Anders equates a frivolous appeal with one that presents

issues lacking in arguable merit. An issue does not lack arguable merit merely because

the prosecution can be expected to present a strong argument in reply, or because it is

uncertain whether a defendant will ultimately prevail on that issue on appeal.” State v.

Marbury, 2d Dist. Montgomery No. 19226, 2003-Ohio-3242, ¶ 8. Rather, “[a]n issue

lacks arguable merit if, on the facts and law involved, no responsible contention can be

made that it offers a basis for reversal.” Id., citing State v. Pullen, 2d Dist. Montgomery

No. 19232, 2002-Ohio-6788, ¶ 4.

{¶ 14} If we determine the appeal is frivolous, we may grant counsel’s request to

withdraw and then dismiss the appeal without violating any constitutional requirements,

or we can proceed to a decision on the merits if state law requires it. State v. McDaniel,

2d Dist. Champaign No. 2010-CA-13, 2011-Ohio-2186, ¶ 5, citing Anders at 744.

However, “[i]f we find that any issue presented or which an independent analysis reveals

is not wholly frivolous, we must appoint different appellate counsel to represent the

defendant.” Marbury at ¶ 7, citing Pullen.

Potential Assignment of Error

{¶ 15} As a potential assignment of error, Dorsey’s appellate counsel suggests that -7-

the trial court’s judgment overruling Dorsey’s motion to withdraw her guilty plea was an

abuse of discretion because the trial court judge exhibited “open disdain” for Dorsey at

the hearing on her motion. Counsel asserts that the trial court’s disdain was

demonstrated in the following discussion:

DEFENSE COUNSEL: Okay. And did Pat Mulligan represent to you at

any point in time what your sentence or did he represent anything to

you regarding a sentence?

DORSEY: Yeah. He told me it can be six months up to five years * * *.

And he said yeah, but he said that I couldn’t plead not guilty because

[the trial court judge] does not like me.

TRIAL COURT: Look. She can have any opinion she wants because

she’s never been responsible for her behavior –

DEFENSE COUNSEL: I know but –

TRIAL COURT: -- in here. She can say any darn thing she wants. Go

ahead.

DEFENSE COUNSEL: All right. Thank you.

TRIAL COURT: I don’t know why, ma’am I would not like you –

DORSEY: No, I –

TRIAL COURT: -- because I don’t even know you.

DORSEY: Yeah, I know.

***

DORSEY: He was saying that – I asked him can I take it to trial. He said

no because – I guess because of the case. He really – I really didn’t -8-

understand what he was saying when I came in (indiscernible) plea

not guilty. And all he would tell me what that the problem with me

and [the trial court judge] and that – because I don’t take

responsibility things that I do [sic]. But I had plead out [sic] to the

three years’ probation for my F-4 case.

TRIAL COURT: There was no agreement as to probation in that case.

DORSEY: Yeah, he told me I had probation for that case.

TRIAL COURT: Mr. Slicer [defense counsel], there’s no agreement as

to probation in that case.

DEFENSE COUNSEL: I don’t recall that because I was just –

TRIAL COURT: There’s no agreement whatsoever, at all, regarding

sentencing in that case. It’s very clear from the record.

Motion to Withdraw Plea Hearing Trans., p. 13-16.

{¶ 16} Even if we were to find that the trial court judge exhibited disdain toward

Dorsey, the record establishes that the judge overruled Dorsey’s motion to withdraw her

guilty plea after engaging in the proper legal analysis and after providing sound reasoning

for its decision.

{¶ 17} Crim.R. 32.1 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.” Despite Dorsey’s filing her motion to withdraw

her guilty plea after being sentenced, the trial court reviewed it as a presentence motion.

{¶ 18} “The presentence standard is far more lenient than the ‘manifest injustice’ -9-

standard applicable to post-sentence motions.” (Citation omitted.) State v. Goodwin,

2d Dist. Montgomery No. 28681, 2020-Ohio-5274, ¶ 43. “Under Crim.R. 32.1, a

presentence motion to withdraw a guilty plea ‘should be freely and liberally granted.’ ”

Id., quoting 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 his plea, even if the motion is

made prior to sentencing.” State v. Hess, 2d Dist. Montgomery No. 24453, 2012-Ohio-

961, ¶ 18, citing Xie at paragraph one of the syllabus.

{¶ 19} When evaluating whether a trial court has abused its discretion in overruling

a presentence motion to withdraw a plea, this court has adopted the following nine factors

set forth in State v. Fish, 104 Ohio App.3d 236, 240, 661 N.E.2d 788 (1st Dist.1995):

(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. Warrix, 2d Dist. Montgomery No. 26556, 2015-Ohio-5390, ¶ 29, quoting State v.

Massey, 2d Dist. Champaign No. 2015-CA-1, 2015-Ohio-4711, ¶ 11. (Other citation

omitted.)

{¶ 20} “In considering these factors, the trial court employs a balancing test; no -10-

single factor is dispositive.” Warrix at ¶ 30, citing State v. Preston, 2d Dist. Montgomery

No. 25393, 2013-Ohio-4404, ¶ 20. However, “[t]he ultimate question for the trial court is

whether there is a ‘reasonable and legitimate basis for the withdrawal of the plea.’ ” Id.,

quoting Xie at 527. A change of heart or mistaken belief about the plea is not a

reasonable basis requiring a trial court to permit the defendant to withdraw his or her plea.

State v. Maddickes, 2d Dist. Clark No. 2013-CA-7, 2013-Ohio-4510, ¶ 15.

{¶ 21} That said, it is within the sound discretion of the trial court to grant or deny

a motion to withdraw a plea. Xie, 62 Ohio St.3d 526, 584 N.E.2d 715. We will not

reverse a trial court’s decision to overrule a motion to withdraw a guilty or no contest plea

absent an abuse of discretion. Id. at 527, citing State v. Adams, 62 Ohio St.2d 151, 157,

404 N.E.2d 144 (1980). “A trial court abuses its discretion when it makes a decision that

is unreasonable, unconscionable, or arbitrary.” State v. Darmond, 135 Ohio St.3d 343,

2013-Ohio-966, 986 N.E.2d 971, ¶ 34. “No abuse of discretion in denying a pre-

sentence motion to withdraw a guilty plea is demonstrated where: (1) the accused is

represented by highly competent counsel, (2) the accused was afforded a full hearing,

pursuant to Crim.R. 11, before entering the plea, (3) after the motion to withdraw is filed

the accused is given a complete and impartial hearing on the motion, and (4) the record

reveals that the trial court gave full and fair consideration to the plea withdrawal request.”

State v. Donaldson, 2d Dist. Greene No. 06-CA-110, 2007-Ohio-5756, ¶ 7, citing State v.

Peterseim, 68 Ohio App.2d 211, 428 N.E.2d 863 (8th Dist.1980).

{¶ 22} In this case, the record reflects that Dorsey was represented by highly

competent counsel. Dorsey’s prior counsel, Mulligan, testified to being a practicing

attorney for 35 years and to almost exclusively confining his practice to criminal defense. -11-

Mulligan also testified to meeting with Dorsey on numerous occasions during which they

had complete discussions about Dorsey’s pending cases, the discovery, Mulligan’s

assessment of the cases, and the State’s plea offer. Mulligan further testified that he

was prepared to proceed to trial if Dorsey rejected the State’s plea offer. The record

establishes that Mulligan made a thorough and complete assessment of the facts, made

recommendations to Dorsey, and engaged in plea discussions on Dorsey’s behalf, which

resulted in a favorable plea agreement. Accordingly, the competence-of-counsel factor

does not weigh in favor of withdrawing Dorsey’s guilty plea.

{¶ 23} The record also establishes that Dorsey was afforded a full Crim.R. 11 plea

hearing. The transcript of the plea hearing establishes that the trial court advised Dorsey

of all of the constitutional rights she was waiving by pleading guilty and ensured that

Dorsey’s plea was being made voluntarily with an understanding of the nature of the

charges, the maximum penalty, the effect of the plea, and that, upon acceptance of the

plea, the court may proceed to judgment and sentence. See Crim. R. 11(C)(2)(a)-(c).

The record of the plea hearing also establishes that Dorsey was aware that the terms of

the plea agreement included a sentencing cap of five years in prison, not probation.

Thus, the plea-hearing factor does not weigh in favor of withdrawing Dorsey’s guilty plea.

{¶ 24} The record also indicates that Dorsey was given a complete, impartial

evidentiary hearing on the motion to withdraw her guilty plea. The evidentiary hearing

took place over three dates that were spread out between November 2019 and January

2020. The trial court continued the hearing on numerous occasions so that both parties

could procure their witnesses. Dorsey testified on her own behalf at the hearing,

presented witness testimony from Rosalind Miller, and submitted evidence of the -12-

Facebook messages allegedly written by the victim. Therefore, the record establishes

that Dorsey was afforded a full hearing on her motion. Accordingly, that factor does not

weigh in favor of withdrawing Dorsey’s guilty plea.

{¶ 25} Lastly, it is clear from the record that the trial court gave full and fair

consideration to Dorsey’s motion to withdraw her guilty plea. When ruling on the motion,

the trial court considered all nine presentence factors. In addition to considering the

competence of Dorsey’s trial counsel and whether Dorsey received a full Crim.R. 11 plea

hearing and a complete, impartial evidentiary hearing on her motion to withdraw her guilty

plea, the trial court also considered the factors that favored Dorsey. Those factors

included the timeliness of Dorsey’s motion and the lack of any prejudice against the State

if Dorsey’s guilty plea were withdrawn.

{¶ 26} The trial court also considered Dorsey’s reasons for wanting to withdraw

her guilty plea (that she was innocent and did not understand the plea) and found that

they lacked credibility. The trial court also found that the record was devoid of any

indication that Dorsey did not understand the nature of her charges and the possible

penalties. The trial court further found that Dorsey lacked a complete defense based on

Mulligan’s testimony regarding her case.

{¶ 27} After weighing the nine presentence factors in detail, the trial court

reasonably concluded that the evidence did not support Dorsey’s claim that her guilty plea

was less than knowing and voluntary and found that there was no legitimate basis for

Dorsey to withdraw her plea. Therefore, regardless of any negative feelings or disdain

that Dorsey may have sensed from the trial court judge at the hearing on her motion to

withdraw her plea, the record does not indicate that the trial court abused its discretion in -13-

overruling the motion. The record establishes that the trial court provided a thoughtful,

detailed analysis that supported its decision to overrule Dorsey’s motion to withdraw her

guilty plea. Accordingly, the sole potential assignment of error raised by Dorsey’s

appellate counsel lacks arguable merit.

Conclusion

{¶ 28} After conducting an independent review of the record as required by

Anders, we find that, based on the facts and relevant law involved, there are no issues

with arguable merit to present on appeal. Therefore, the judgment of the trial court is

affirmed.

DONOVAN, J. and HALL, J., concur.

Copies sent to:

Mathias H. Heck, Jr. Andrew T. French Steven H. Eckstein Dejanae Leeche Dorsey Hon. Mary Katherine Huffman