[Cite as State v. Lyons, 2020-Ohio-823.]
IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT GREENE COUNTY
STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 2019-CA-26 : v. : Trial Court Case No. 2018-CR-822 : CHRISTOPHER R. LYONS : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :
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OPINION
Rendered on the 6th day of March, 2020.
MARCY VONDERWELL, Atty. Reg. No. 0078311, Greene County Prosecutor’s Office, Appellate Division, 31 Greene Street, Suite 200, Xenia, Ohio 45385 Attorney for Plaintiff-Appellee
BRENT E. RAMBO, Atty. Reg. No. 0076969, 15 West Fourth Street, Suite 250, Dayton, Ohio 45402 Attorney for Defendant-Appellant
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FROELICH, J. -2-
{¶ 1} Christopher Lyons pled guilty in the Greene County Court of Common Pleas
to one count of aggravated robbery, a felony of the first degree. As part of the plea
agreement, the parties agreed to a five-year sentence if Lyons truthfully testified, if
required, in his co-defendants’ cases. After Lyons failed to testify, Lyons moved to
withdraw his plea. The trial court denied the motion and sentenced him to seven years
in prison. Lyons appeals from his conviction, challenging the denial of the motion to
withdraw his plea and his sentence. For the following reasons, the trial court’s judgment
will be affirmed.
I. Factual and Procedural History
{¶ 2} According to the bill of particulars, on October 9, 2018, Lyons and several
other individuals, including people with the surnames of Decosta, Ball and Reynolds,1
went to an apartment in Fairborn to rob the resident. After the resident arrived at the
apartment, Decosta came from the kitchen area and demanded money while holding a
firearm. Decosta told the resident that he would be shot if he did not empty his pockets.
The resident refused, and Decosta struck him in the face five to six times with the firearm.
Lyons, Ball, and Reynolds assisted Decosta in subduing the victim and taking his
property; Lyons placed the victim in a “stronghold.” Lyons and the others then fled from
the apartment. The victim suffered a concussion, required stitches for his head wounds,
and has had kidney issues as a result of the assault. The police later recovered the
firearm from Reynolds.
{¶ 3} Ten days later, Lyons was indicted for aggravated robbery in violation of R.C.
1The sentencing hearing transcript references the trial of Jordan Young, who apparently was another participant in the robbery. The bill of particulars does not mention Young. -3-
2911.01(A)(1), and aggravated robbery in violation of R.C. 2911.01(A)(3), both felonies
of the first degree. Lyons subsequently moved to suppress an eyewitness identification
of him from a photo array. The court conducted a hearing on the motion on December
31, 2018, following which it denied the motion to suppress.
{¶ 4} The court scheduled a jury trial for February 4, 2019. However, on January
31, 2019, Lyons pled guilty to aggravated robbery in violation of R.C. 2911.01(A)(1). The
Plea Agreement Report, signed by both parties, identified the negotiated plea as:
In consideration for Defendant’s guilty plea to Count 1, the State dismisses
Count 2. Defendant will truthfully testify, if required, in the matter of any
co-defendants. In return, the State and Defendant will stipulate to a 5 year
prison sentence without IPP, TC or JR. Defendant understands that the
State is not bound by this stipulation if he fails to truthfully testify, if required.
Defendant agrees to pay restitution of $37,171.39.
{¶ 5} After reading the terms of the plea during the trial court’s Crim.R. 11 colloquy,
the court informed Lyons that, “assuming the conditions have been met in this case,” it
would agree to impose the five-year prison sentence. Lyons told the court that he
understood the conditions for receiving the five-year sentence. The court further told
Lyons that if Lyons failed to testify truthfully, the court would still impose a prison term,
but that term could be five years, less than five years, or more than five years with a
maximum possible sentence of 11 years. Lyons again expressed his understanding.
The court accepted Lyons’s guilty plea but delayed sentencing while his co-defendants’
cases were pending. The court ultimately scheduled disposition for April 24, 2019.
{¶ 6} On April 19, 2019, Lyons moved to withdraw his plea. In his motion, Lyons -4-
acknowledged that his plea agreement included a requirement that he “truthfully testify, if
required, in the matter of any co-defendant.” The motion stated: “Mr. Lyons suggests
that had [sic] he cannot, in good conscious [sic], uphold that agreement.” The trial court
addressed the motion at sentencing, concluding that Lyons presented no basis for
withdrawing his plea, even when considered under the liberal presentence standard of
review. The trial court then imposed seven years in prison and ordered Lyons to pay
restitution in the amount of $37,717.39, jointly and severally with his co-defendants, plus
court costs.
{¶ 7} Lyons appeals from his conviction, raising four assignments of error.
II. Lyons’s Motion to Withdraw Plea
{¶ 8} In his first assignment of error, Lyons claims that the trial court erred in
overruling his motion to withdraw his plea, because he did not make his plea knowingly,
intelligently, and voluntarily. Specifically, Lyons asserts that he did not realize that he
would need to testify as part of his plea and thus he “had no idea what the plea
arrangement actually was for.” (Appellant’s Brief, p. 6.) His second assignment claims
that the trial court abused its discretion in denying his motion to withdraw his plea.
{¶ 9} 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.” Under Crim.R. 32.1, 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).
{¶ 10} Even before sentencing, “the right to withdraw a plea is not absolute and a -5-
trial court retains discretion to overrule a pre-sentence plea-withdrawal motion.” State v.
Simpson, 2d Dist. Montgomery No. 24266, 2011-Ohio-6181, ¶ 7. After conducting a
hearing on such a motion, “the trial court must ‘determine whether [the defendant] has a
reasonable and legitimate basis’ for the withdrawal, rather than ‘[a] mere change of
heart.’ ” State v. Bush, 2d Dist. Clark No. 2018-CA-13, 2018-Ohio-5272, ¶ 10, quoting Xie
at 527.
{¶ 11} In reviewing a trial court’s decision on a defendant’s motion to withdraw his
or her plea filed before sentencing, we apply 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 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. E.g., State v. Becraft, 2017-Ohio-1464, 89 N.E.3d
218 (2d Dist.); State v. Warrix, 2d Dist. Montgomery No. 26556, 2015-Ohio-5390, ¶ 29.
{¶ 12} “In considering these factors, the trial court employs a balancing test; no
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. -6-
State v. Maddickes, 2d Dist. Clark No. 2013 CA 7, 2013-Ohio-4510, ¶ 15. However, in
considering whether to allow withdrawal of the plea, it is not simply sufficient for the trial
court to find that the Crim.R. 11 colloquy satisfied the requirements of that Rule and the
United States and Ohio Constitutions; if it were, even a presentence plea could never be
withdrawn. Id.
{¶ 13} It is within the sound discretion of the trial court to grant or deny a motion to
withdraw a plea. Xie at 526. We will not reverse a trial court’s decision to deny 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).
{¶ 14} At the outset, we have reviewed the transcript of the plea hearing, and the
trial court fully complied with its obligations under Crim.R. 11. The trial court reviewed
with Lyons the offense to which he was pleading guilty, the maximum penalty he faced,
the effect of a guilty plea, and the constitutional rights that he was waiving by entering his
plea. The trial court also discussed the plea agreement with Lyons. The court read the
Plea Agreement Report verbatim and asked Lyons, “What I just read, is that your
understanding of the position of the Prosecuting Attorney in this case?” Lyons
responded, “Yes, sir.” After discussing the restitution portion of the plea agreement, the
court returned to the agreed prison sentence:
THE COURT: All right. I will indicate to you that assuming the conditions
have been met in this case, that I will agree to impose the five-year prison
sentence, all right? So I’ll just tell you that right now.
DEFENDANT CHRISTOPHER LYONS: Thank you, sir.
THE COURT: And you know what the conditions are for that? -7-
DEFENDANT CHRISTOPHER LYONS: Yes.
THE COURT: Because I will do so, do you understand that you’ll not be
considered for Community Control in this case, and while you can appeal
anything else that’s been done in your case, the one thing you could not
appeal would be the agreed upon five-year sentence; do you understand
that?
THE COURT: Okay. If for any reason – I guess I should probably let you
know about this – if for any reason you failed to testify truthfully, I could still
impose a five-year prison sentence, but I would not be bound by that. I
could give you less or give you more. Do you understand that?
DEFENDANT CHRISTOPHER LYONS: Yes, sir.
THE COURT: Because the maximum sentence you could receive is 11
years. And I also want you to know in fairness to you there is a
presumption of prison in this case, so if everything works out the way
everybody wants it, I will give the five-year prison sentence; but I also want
you to know that if there’s not an agreement to be made, in fairness to you,
I will still be imposing a prison sentence. In other words, I just want to let
you know before we resolve this plea, you’re not getting Community Control
in this case; do you understand that?
(Plea Tr. at 14-15.)
{¶ 15} At sentencing, defense counsel told the trial court that “we did file a Motion -8-
to Withdraw the Plea. I believe that the – Mr. Lyons did enter into a plea agreement,
which requested that he did testify, would testify truthfully. He chose not to do that.”
(Sentencing Tr. at 3.) Counsel continued: “He indicates that he did not want to do that,
that he did not know that he was going to need to do that, and as a result of that, he would
like to withdrawal [sic] his plea.” Id. When asked to clarify the motion, defense counsel
stated, “* * * I think Mr. Lyons’s argument is, that he did not realize that part of his plea
agreement was for him to testify or have that option to testify, and the benefit that would
come with that[.]” Id. at 4.
{¶ 16} The trial court then asked defense counsel the reason why Lyons’s plea
should be withdrawn. When defense counsel stated that he could not add anything more
to what he had already said, the court asked the same question of Lyons. Lyons stated
that he “took the five years” because he was “worried.” The court then discussed the
terms of the plea deal with Lyons:
THE COURT: Well, did the plea agreement not say if you testify truthfully,
you’d get five years?
DEFENDANT CHRISTOPHER LYONS: No. It said that I would have to –
on being – testifying as well, being – I don’t know how to say it.
THE COURT: Well, let me, let me go to the plea form. I have it in the file
here. Let me go look it up here. Now, the Plea Agreement Report says,
the Defendant will testify truthfully, if required, in the matter of any Co-
Defendants. In return, the State and the Defendant will stipulate to a five-
year prison sentence. So do you believe that there was a condition to your
getting five years? Or you had to do something to get five years? -9-
THE COURT: Well, what was that?
DEFENDANT CHRISTOPHER LYONS: To testify on my Co-Defendant’s
behalf.
THE COURT: Okay. So you struck a contract with the State to say, if I
testify, I’ll get five years.
THE COURT: Okay. And you’re saying – obviously, you didn’t testify, and
that’s okay. Where, where are we with the five years right now?
DEFENDANT CHRISTOPHER LYONS: Well, another thing that I was
adding on to there was that I was also worried about getting more than five
years going to trial if I so happened to have lost.
THE COURT: A whole lot of people plead guilty because they don’t want to
get a lot of years.
***
THE COURT: And you pled guilty, and – well, I guess, Mr. Lyons, I think I
kind of understand where you’re coming from. Unfortunately, I guess we
have to kind of put this in two parts. Part one is, you pled guilty with the
understanding you might get five years if you testify, okay? That was really
the only thing between three and eleven years that was ever put down in
writing that you could get five years if you testified. It went on to say – I
didn’t read this – but it went on to say in the Plea Agreement Report, the -10-
Defendant understands that the State is not bound by this stipulation if he
fails to truthfully testify, which means that you had a choice. No one was
saying you had to testify; but if you didn’t testify, the State wasn’t going to
be part of a five-year stipulation; okay? So we’re kind of there.
Now, setting that aside, maybe – and I don’t mean to put words in
your mouth, but I think you’re just saying in effect, I didn’t want – I was
pleading guilty anticipating I wouldn’t get more than five years; and since I
think I might get more than five years, I want to withdrawal [sic] my plea.
Am I incorrect or am I close or where am I on this into what you’re thinking?
{¶ 17} In overruling Lyons’s motion to withdraw his plea, the trial court told Lyons
that he had made an agreement with the State that he would get five-years in prison if he
testified truthfully, and while he was not required to testify, he was not entitled to receive
the benefit of that bargain if he did not. The court further stated that, given that Lyons
had elected not to testify, it “appreciate[ed] [his] desire not to get a serious sentence.”
The court explained, however, that “there has to be incentives for people to testify,” and
there likewise needs to be a consequence if people decide not to testify. The court
continued:
Unfortunately, too many people I think hear what they want to hear, and
they don’t listen to everything else; and you heard five years, and okay.
The life was good. But you didn’t hear that I told you you could get eleven.
I didn’t promise you you’d get five. You didn’t hear you had to testify to get
your five. You’re kind of in that situation. -11-
The court concluded that, even under a liberal presentence standard for reviewing a
motion to withdraw a plea, it had not “received a reason” to justify the withdrawal of
Lyons’s plea.
{¶ 18} We find no fault with the trial court’s denial of Lyons’s motion to withdraw
his plea. In this case, the plea agreement between the parties provided for a five-year
sentence if Lyons testified during any co-defendants’ case and for no agreed sentence if
he did not. The trial court discussed the plea agreement with Lyons at the plea hearing,
and the court reasonably concluded that Lyons entered his plea with the understanding
that he would receive five years in prison if he testified in his co-defendants’ cases and
that he faced additional prison time if he elected not to testify. At the hearing on Lyons’s
motion to withdraw his plea, Lyons made a confusing statement about believing that he
had to testify on his co-defendant’s behalf. However, Lyons further confirmed that he
understood that the plea agreement with the State included that he testify truthfully, if
required, in order to receive the five-year sentence. The trial court could have
reasonably concluded that Lyons’s stated confusion about on whose behalf he had to
testify did not render his plea other than knowing, intelligent, and voluntary.
{¶ 19} In discussing Lyons’s plea at the hearing on Lyons’s motion to withdraw his
plea, the trial court told Lyons that he apparently “didn’t hear that I told you you could get
eleven” years in prison. In our view, this statement does not reflect a finding that Lyons’s
plea was not made knowingly, intelligently, and voluntarily. Rather, this statement simply
reflected the court’s understanding that, at the time of the plea, Lyons perhaps discounted
the possibility that he might get more than five years in prison, given the terms of the plea
and that fact that Lyons had not yet been asked to testify. Based on the record before -12-
us, Lyons’s plea was made knowingly, intelligently, and voluntarily.
{¶ 20} Moreover, we cannot conclude that the trial court abused its discretion in
denying Lyons’s motion to withdraw his plea. Lyons was represented by highly
competent counsel, and he received a full Crim.R. 11 hearing before entering his guilty
plea. There is no suggestion that Lyons failed to understand the aggravated robbery
charge and the possible penalties he faced, or that Lyons was not guilty or had a complete
defense to the charge.
{¶ 21} Lyons claims that he was denied a full and impartial hearing on the motion,
because he was not given an opportunity to present witnesses or evidence. However,
the court provided Lyons and his defense counsel the opportunity to fully explain their
reasons for Lyons’s motion. Lyons expressed that he sought to withdraw his plea based
on his understanding of the plea agreement and his desire not to receive a lengthy
sentence. There is no suggestion that Lyons had any potential witnesses or evidence
relevant to his reasons for seeking to withdraw his guilty plea, and neither defense
counsel nor Lyons requested an opportunity to present evidence or witnesses. Contrast
State v. Bush, 2d Dist. Clark Nos. 2015-CA-39, 2015-CA-40, 2015-CA-41, & 2015-CA-
42, 2016-Ohio-5536 (The trial court abused its discretion in failing to hold an evidentiary
hearing on defendant’s motion to withdraw his plea where the motion was based on the
alleged recantation of a victim and the defendant indicated he had documentary evidence
to support his motion).
{¶ 22} Lyons further asserts that the trial court failed to give full and fair
consideration to his motion. He argues, “It is evident from a review of the records [sic],
that the decision of the Court had already been made.” We disagree. The trial court -13-
spoke with both defense counsel and Lyons in an effort to discern if there were any reason
that might justify the withdrawal of Lyons’s plea. The trial court’s lengthy exchange with
Lyons evidenced a diligent inquiry into whether Lyons’s request was based on a change
of heart or mistaken belief about the plea, or whether there was an additional “reasonable
and legitimate basis for the withdrawal of the plea,” Xie, 62 Ohio St.3d at 527, 584 N.E.2d
715.
{¶ 23} Lyons’s motion was made prior to sentencing, and there was no indication
that the State would have been prejudiced by the withdrawal of his plea. Nevertheless,
Lyons failed to present a reason for withdrawing his plea other than an apparent change
of heart or misunderstanding about his plea. Having failed to testify in a matter of a co-
defendant, Lyons apparently was unhappy that he no longer was guaranteed a five-year
sentence. The plea agreement between the parties specifically provided that the State
would not be bound by the five-year stipulated sentence if Lyons failed to testify, and the
trial court explained that it could impose any sentence within the statutory range for a first-
degree felony (three to eleven years) if Lyons failed to testify. The court reasonably
concluded that Lyons’s desire to receive a five-year sentence, despite his failure to testify,
did not justify the withdrawal of his plea.
{¶ 24} Lyons’s first and second assignments of error are overruled.
III. Lyons’s Sentence
{¶ 25} In his third assignment of error, Lyons claims that the trial court erred by not
sentencing him to five years in prison in accordance with the stipulated sentence. Lyons
claims that there was no evidence that Lyons failed to satisfy the conditions for the
stipulated sentence, and therefore the trial court erred in failing to impose the five-year -14-
sentence.
{¶ 26} Lyons presents two reasons for why he was entitled to receive the stipulated
five-year sentence. First, he argues that the record does not establish that he was asked
to testify, but failed to do so. Second, he argues that, even if he failed to testify as
requested by the State, his testimony was not “required” because each of his co-
defendants was convicted without his testimony.
{¶ 27} The record does not explicitly state that the State subpoenaed Lyons to
testify in any of his co-defendants’ cases and that Lyons either refused to testify or
testified untruthfully. Nevertheless, Lyons’s motion to withdraw his plea acknowledged
the plea condition that “Defendant will truthfully testify, if required, in the matter of any co-
defendants” and further stated, “Mr. Lyons suggests that had [sic] he cannot, in good
conscious [sic], uphold that agreement.” During the hearing on the motion, defense
counsel again recognized that the plea agreement included a provision that Lyons testify
truthfully, and that Lyons “chose not to do that.” In its subsequent discussion with Lyons,
the trial court repeatedly indicated that Lyons did not testify; neither Lyons, defense
counsel, nor the prosecutor contradicted those statements, and there is no indication that
the court misunderstood Lyons’s actions with respect to his co-defendants’ cases.
Based on the record, the trial court reasonably concluded that Lyons failed to comply with
the condition in his plea agreement related to the stipulated sentence.
{¶ 28} We are unpersuaded by Lyons’s argument that he did not fail to testify
truthfully “as required” because his co-defendants were convicted without his testimony.
The record does not detail the outcomes of Lyons’s co-defendants’ cases. Regardless,
a plain reading of the plea agreement indicates that the State stipulated to a five-year -15-
prison sentence if Lyons testified truthfully in his co-defendants’ cases if Lyons were
required to testify, not if Lyons’s testimony were required for his co-defendants’
convictions.
{¶ 29} The parties stipulated that Lyons would receive a five-year prison sentence
if he met the condition that he “truthfully testify, if required, in the matter of any co-
defendants”; the trial court stated at the plea hearing that it would sentence Lyons in
accordance with the parties’ agreement. The plea agreement further provided that the
State would not be bound by the stipulation if Lyons failed to meet that condition, and the
court made clear that any failure to meet that condition would result in a prison sentence
within the sentencing range for a first-degree felony, with a possible maximum sentence
of 11 years in prison. Once Lyons failed to meet the condition for a five-year prison
sentence, the court’s imposition of the seven-year sentence, as requested by the State
at sentencing, was permitted by the plea agreement.
{¶ 30} Lyons’s third assignment of error is overruled.
IV. Motion to Suppress
{¶ 31} In his fourth assignment of error, Lyons claims that the trial court erred in
denying his motion to suppress. Appellate counsel states that he believes the argument
to be without merit, but indicates that he has included it at Lyons’s request. Appellate
counsel asks us to examine the issue “in a similar nature to the review provided in [an]
Anders [v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967)] situation.”
{¶ 32} This court has disapproved the filing of “partial Anders briefs.” A brief
pursuant to Anders is “appropriate when appellate counsel has conscientiously concluded
that there are no issues to be raised that merit consideration by the appellate court. Id. -16-
If appellate counsel determines there are any issues warranting appellate review, even if
there is only one, discussion of non-meritorious issues is neither appropriate nor
desirable.” State v. Padgett, 2d Dist. Greene No. 99 CA 87, 2000 WL 873218, *2 (June
30, 2000). In the absence of an Anders brief, it is not the role of an appellate court to
independently review the record for additional potential errors. See State v. Powell, 2d
Dist. Montgomery No. 27951, 2018-Ohio-4693, ¶ 43. Accordingly, we decline to review
whether the trial court erred in denying Lyons’s motion to suppress. Regardless,
because Lyons’s guilty plea constituted a complete admission of guilt, his guilty plea
waived any error in the trial court’s ruling on his motion to suppress. E.g., State v. Smith,
2d Dist. Montgomery No. 26746, 2016-Ohio-3361, ¶ 24.
{¶ 33} Lyons’s fourth assignment of error is overruled.
V. Conclusion
{¶ 34} The trial court’s judgment will be affirmed.
DONOVAN, J. and WELBAUM, J., concur.
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Marcy Vonderwell Brent E. Rambo Hon. Stephen Wolaver