Opinion

State v. Thomas

  • 2024 Ohio 2611
Court
Ohio Court of Appeals
Filed
Jul 8, 2024
Status
Published
On the bench
Miller
Cited by
1 cases
Authority
More cited than 49.0%

The opinion

[Cite as State v. Thomas, 2024-Ohio-2611.]

IN THE COURT OF APPEALS OF OHIO

THIRD APPELLATE DISTRICT

HARDIN COUNTY

STATE OF OHIO,

CASE NO. 6-23-15

PLAINTIFF-APPELLEE,

v.

ISA JAMAL THOMAS, OPINION

DEFENDANT-APPELLANT.

Appeal from Hardin County Common Pleas Court

Trial Court No. CRI 20232122

Judgment Affirmed

Date of Decision: July 8, 2024

APPEARANCES:

Howard A. Elliott for Appellant

Morgan Fish for Appellee

Case No. 6-23-15

MILLER, J.

{¶1} Defendant-appellant, Isa Jamal Thomas (“Thomas”), appeals the

September 29, 2023 judgment of sentence of the Hardin County Court of Common

Pleas. For the reasons that follow, we affirm.

{¶2} On July 12, 2023, Thomas was indicted on eleven drug-related charges,

including: Count One of aggravated possession of drugs in violation of R.C.

2925.11(A), (C)(1)(a), a fifth-degree felony; Count Seven of aggravated possession

of drugs in violation of R.C. 2925.11(A), (C)(1)(b), a third-degree felony; and Count

Eight of aggravated trafficking in drugs in violation of R.C. 2925.03(A)(1),

(C)(1)(c), a third-degree felony. At his initial appearance on July 26, 2023, Thomas

was appointed trial counsel and entered not guilty pleas.

{¶3} Thomas appeared for a change-of-plea hearing on September 5, 2023.

Pursuant to a negotiated-plea agreement, Thomas withdrew his not guilty pleas with

respect to Counts One, Seven, and Eight. At the request of the State, Count Seven

was amended from aggravated possession of drugs to attempted aggravated

possession of drugs in violation of R.C. 2923.02(A) and 2925.11(A), (C)(1)(b), a

fourth-degree felony. Thomas then entered guilty pleas to Counts One, Seven (as

amended), and Eight. In exchange, the State recommended dismissal of the

remaining counts. The trial court accepted Thomas’s plea and found him guilty of

Counts One, Seven (as amended), and Eight.

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Case No. 6-23-15

{¶4} On September 27, 2023, Thomas appeared for sentencing. At the

commencement of the hearing, Thomas made an oral motion to withdraw his guilty

pleas. After hearing brief arguments, the trial court denied Thomas’s motion.

Thomas was then sentenced to 11 months in prison on Count One, 17 months in

prison on amended Count Seven, and 30 months in prison on Count Eight. Pursuant

to the joint-sentencing recommendation, the trial court ordered the sentences to be

served consecutively for an aggregate term of 58 months.1

{¶5} Thomas filed a timely notice of appeal.

First Assignment of Error

The Defendant/Appellant received ineffective assistance of

counsel in the trial court wherein [he] had been determined

indigent for purpose of securing counsel at the trial court level,

and counsel failed to file an affidavit of indigency to challenge the

mandatory fines upon a conviction of a felony three drug offense

where there appears to be reasonable likelihood that

Defendant/Appellant would be determined to be indigent, and as

such, the mandatory fine was improperly imposed and the matter

must be reversed and remanded to the trial court for further

proceedings.

{¶6} In his first assignment of error, Thomas argues his trial counsel was

ineffective for failing to file an affidavit of indigency with respect to the mandatory

fine. Thomas alleges his trial counsel failed to raise a challenge to the imposition

of the mandatory fine and that it is “certainly . . . [a] possibility” that the mandatory

1

In addition to the prison sentences, the court imposed discretionary fines for Count One and Seven as well

as a mandatory fine for Count Eight, albeit less than the statutory amount. Appellant challenges only the

imposition of the mandatory fine.

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Case No. 6-23-15

fine would have been waived if it had been challenged. (Appellant’s Brief at 9).

For the reasons that follow, we disagree.

Relevant Law

{¶7} “In criminal proceedings, a defendant has the right to effective

assistance of counsel under both the United States and Ohio Constitutions.” State

v. Evick, 2020-Ohio-3072, ¶ 45 (12th Dist.). A defendant asserting a claim of

ineffective assistance of counsel must establish: (1) counsel’s performance was

deficient or unreasonable under the circumstances; and (2) the deficient

performance prejudiced the defendant. State v. Kole, 92 Ohio St.3d 303, 306 (2001),

citing Strickland v. Washington, 466 U.S. 668, 687 (1984). In order to show

counsel’s conduct was deficient or unreasonable, the defendant must overcome the

presumption that counsel provided competent representation and must show that

counsel’s actions were not trial strategies prompted by reasonable professional

judgment. Strickland at 689. Counsel is entitled to a strong presumption that all

decisions fall within the wide range of reasonable professional assistance. State v.

Sallie, 81 Ohio St.3d 673, 675 (1998). Tactical or strategic decisions, even if

unsuccessful, do not generally constitute ineffective assistance of counsel. State v.

Frazier, 61 Ohio St.3d 247, 255 (1991). Rather, the errors complained of must

amount to a substantial violation of counsel’s essential duties to his client. See State

v. Bradley, 42 Ohio St.3d 136, 141-142 (1989).

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Case No. 6-23-15

{¶8} Prejudice results when “‘there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.’” Bradley at 142, quoting Strickland at 694. “‘A reasonable probability

is a probability sufficient to undermine confidence in the outcome.’” Id., quoting

Strickland at 694.

Analysis

{¶9} In support of his argument that his trial counsel was ineffective, Thomas

argues that his trial counsel failed to file an affidavit of indigency with respect to

the mandatory fine.

{¶10} This court has held that “[t]he failure to file an affidavit of indigency

prior to sentencing may constitute ineffective assistance of counsel if the record

shows a reasonable probability that the trial court would have found the defendant

indigent and relieved the defendant of the obligation to pay the fine had the affidavit

been filed.” State v. Elrod, 2016-Ohio-987, ¶ 8 (3d Dist.). However, our review of

the record does not support Thomas’s argument that a failure to file a written

affidavit of indigency resulted in the trial court ordering him to pay the mandatory

fine.

{¶11} At the sentencing hearing, Thomas’s trial counsel made an oral motion

requesting the trial court to waive the mandatory fine of $5,000.00, which the trial

court was required to impose pursuant to R.C. 2929.18(B)(1). In support of the

motion, Thomas’s counsel stated as follows:

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Case No. 6-23-15

We would make an oral motion asking the Court to consider waiving

the mandatory fine of $5,000 in this case. Mr. Thomas is currently

incarcerated and has been so for 68 days. He’s been unemployed for

that time. He has no assets at this point. He did qualify for court-

appointed counsel.

The joint[ly] recommended sentence does reflect a future of

incarceration with the Ohio Department of Rehabilitation and

Corrections, so the likelihood that he is going to be able to produce

income to be able to pay that fine is pretty slim, Your Honor. He’s

going to have other court costs and costs of prosecution to be worrying

about other than the $5,000 mandatory fine. So we would ask the

Court to take that into consideration and waive that mandatory fine

for this defendant, Your Honor.

(Sept. 27, 2023 Tr. at 8-9).

{¶12} After imposing a prison term, the trial court addressed the mandatory

fine and stated:

You are not under any type of physical disability; however, you have

a great deal of prison time that you are facing. It’s the opinion of the

Court a $5,000 mandatory fine together with the other fines that I gave

you would be an undue hardship, so I’m not going to order the $5,000

mandatory fine. I’m going to cut that down to half of that, which is

2,500.

(Id. at 17-18).

{¶13} Accordingly, the record indicates that the trial court gave full

consideration to the oral motion to waive the fine and considered the totality of

Thomas’s circumstances and financial situation before ordering him to pay a portion

of the mandatory fine. Furthermore, based on that consideration, including the

impact that Thomas’s incarceration would have on his present and future ability to

pay, the trial court reduced the fine by half. Thus, based on our review of the record,

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Case No. 6-23-15

we do not find that Thomas was prejudiced by his counsel’s failure to file a written

affidavit of indigency. See State v. Harrison, 2015-Ohio-1419, ¶ 95 (3d Dist.).

Therefore, Thomas has not established that he received ineffective assistance of trial

counsel.

{¶14} Thomas’s first assignment of error is overruled.

Second Assignment of Error

The trial court committed reversible error when it denied without

benefit of hearing or affording the Defendant the opportunity to

speak to Defendant’s motion for leave to withdraw his plea orally,

before the imposition of sentence.

{¶15} In his second assignment of error, Thomas argues that the trial court

abused its discretion by denying his presentence motion to withdraw his guilty plea.

{¶16} “The decision to grant or deny a presentence motion to withdraw a

guilty plea is within the sound discretion of the trial court.” State v. Xie, 62 Ohio

St.3d 521 (1992), paragraph two of the syllabus. “Therefore, appellate review of a

trial court’s decision to deny a presentence motion to withdraw a guilty plea is

limited to whether the trial court abused its discretion.” State v. Keehn, 2014-Ohio-

3872, ¶ 14 (3d Dist.). An abuse of discretion is more than a mere error in judgment;

it suggests that a decision is unreasonable, arbitrary, or unconscionable. State v.

Adams, 62 Ohio St.2d 151, 157-158 (1980). “When applying this standard, a

reviewing court may not simply substitute its judgment for that of the trial court.”

Keehn at ¶ 14, citing State v. Adams, 2009-Ohio-6863, ¶ 33 (3d Dist.).

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Case No. 6-23-15

{¶17} A motion to withdraw a guilty plea is governed by Crim.R. 32.1,

which provides:

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.

Although “a presentence motion to withdraw a guilty plea should be freely and

liberally granted[,] . . . a defendant does not have an absolute right to withdraw a

plea prior to sentencing.” Xie at 527.

{¶18} “A trial court must conduct a hearing to determine whether there is a

reasonable and legitimate basis for the withdrawal of the plea.” Id. at paragraph one

of the syllabus.

When reviewing a trial court’s denial of a presentence motion to

withdraw a guilty plea, this court considers several factors, including:

(1) whether the withdrawal will prejudice the prosecution; (2) the

representation afforded to the defendant by counsel; (3) the extent of

the hearing held pursuant to Crim.R. 11; (4) the extent of the hearing

on the motion to withdraw the plea; (5) whether the trial court gave

full and fair consideration of the motion; (6) whether the timing of the

motion was reasonable; (7) the stated reasons for the motion; (8)

whether the defendant understood the nature of the charges and

potential sentences; and (9) whether the accused was perhaps not

guilty or had a complete defense to the charges.

State v. Liles, 2019-Ohio-3029, ¶ 11 (3d Dist.). “None of the factors is

determinative on its own and there may be numerous additional aspects ‘weighed’

in each case.” State v. North, 2015-Ohio-720, ¶ 16 (3d Dist.).

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Case No. 6-23-15

{¶19} Thomas argues that, contrary to the trial court’s conclusion, the above-

listed factors weigh in favor of him withdrawing his guilty plea. After reviewing

the record, we disagree.

{¶20} At the commencement of the September 27, 2023 sentencing hearing,

the parties had the following conversation with the trial court:

[Trial counsel]: Your Honor, prior to the Court sentencing, my

client did communicate to me that he was

desirous of making an oral motion to the Court

asking that the Court consider allowing him to

withdraw his previously-tendered guilty pleas as

to . . . the three counts that were pled to on

September 5th of 2023, Your Honor.

He has indicated that he believes he was not

informed properly of the plea negotiations, that

he did not understand that he was agreeing to a

prison sentence. He believed that he was going

to be ordered to attend a drug treatment facility.

He also believes that because his bond was not

modified to a straight O-R bond without an

electronic monitor provision that that would also

negate any agreements that were placed on the

record on September 5th, Your Honor.

[Trial court]: Any response from the State?

[State]: Your Honor, I’m not really sure how Mr.

Thomas didn’t understand what the

recommendations were. The plea negotiations

were reduced to writing, which he executed and

signed. I believe the Court has the executed

copy. They were placed on the record. It’s

clearly marked that a prison term would be

imposed. The State actually was prepared to go

to sentencing that day and did request to do so, I

believe.

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Case No. 6-23-15

As to bond, we had no agreement as to bond,

Your Honor, per the agreement. I know he did

indicate and ask that the bond be modified, and

the Court did put in a slight modification as to

that. I do not believe that there is any valid

reason. The Court had a thorough colloquy with

him regarding his rights that he was waiving, and

he made a knowing, intelligent, and voluntary

plea to those charges. This appears to be just a

case of buyer’s remorse, and I don’t really

foresee a reason to honor a withdraw of the plea

here on the day of sentencing, Your Honor.

[Trial court]: The Court will deny that motion. First of all, he

did sign the plea agreement. It is very explicit in

what the terms of the plea agreement was. He

told me when I asked that he read it. He told me

that he reviewed it with his attorney. He told me

that he understood. We also did the waiver of

rights and plea form in this case, which he signed

in open court after he tells me he read it and that

he reviewed it with his attorney and that he

understood it.

I asked him multiple times going through the

plea if he understood. I asked him multiple times

if he had further questions. I asked him multiple

times if he needed to stop, take a break, and ask

his attorney any questions. So it is not credible

to me that this gentleman – who, quite frankly, in

my conversations with him appears to be a fairly

intelligent man—it’s not credible to accept that

he did not understand what he was doing. He

may now no longer like what he was doing or

did, but certainly the record reflects that he had

every opportunity to inquire, to be informed, and

that he understood at the time exactly what he

was doing. So that motion will be denied.

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Case No. 6-23-15

(Sept. 27, 2023 Tr. at 3-6). The trial court then proceeded to sentencing. When

viewing the record in light of the factors set forth above, we find that the trial court

did not abuse its discretion by denying Thomas’s motion to withdraw his guilty

pleas.

{¶21} No arguments were made with respect to the first factor, whether the

State would be prejudiced by the withdrawal of the guilty plea, other than the State’s

comment that it requested to proceed directly to sentencing at the change-of-plea

hearing.

{¶22} Second, although Thomas argues that his trial counsel was ineffective

for failing to file an affidavit of indigency, we addressed that concern in our analysis

of Thomas’s first assignment of error and found Thomas’s argument to be without

merit. Thomas makes no other arguments relating to trial counsel’s representation,

and our review of the record finds no indication that Thomas’s trial counsel was

ineffective.

{¶23} With respect to the third factor, the extent of the hearing pursuant to

Crim.R. 11, Thomas does not directly challenge the extent or sufficiency of the

change-of-plea hearing pursuant to Crim.R. 11. To the extent that Thomas argues

that he was not adequately informed that the joint recommendation included a term

of incarceration rather than programming at a drug-treatment facility, the record

belies his claim. At the change-of-plea hearing, the State recounted the parties’

agreement, including the jointly-recommended terms of incarceration. (Sept. 5,

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Case No. 6-23-15

2023 Tr. at 4-5). Both Thomas and his trial counsel indicated that the agreement

proffered by the State was a correct statement of the parties’ agreement. (Id. at 6).

At one point during the change-of-plea hearing, Thomas indicated a desire to speak

to his trial counsel, which the trial court granted. (Id. at 7-9). At the conclusion of

his off-the-record conversation between Thomas and his trial counsel, Thomas

indicated that the conversation satisfied his concerns. (Id. at 9-10). Furthermore,

Thomas, his trial counsel, the State, and the judge signed the plea agreement after

the judge again addressed its contents. (Id. at 11-12). Notably, at this time, Thomas

once more affirmed that he had read the plea agreement and understood its contents.

(Id.).

{¶24} Regarding the fourth and fifth factors, although the trial court did not

postpone sentencing to conduct a separate hearing on Thomas’s oral motion, the

record indicates that the trial court, nonetheless, gave the motion full and fair

consideration. Given the argument made in the oral motion, the trial court was able

to quickly ascertain that the motion was without merit. In so doing, the trial court

noted Thomas’s statements acknowledging his understanding of the terms of the

parties’ joint recommendation.

{¶25} Next, the sixth factor, regarding the reasonableness of the timing of

the motion, weighs against Thomas. The motion was made at the commencement

of the sentencing hearing and, prior to that time Thomas made no request to

withdraw his plea or indicate his lack of understanding of the terms of the parties’

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Case No. 6-23-15

jointly-recommended sentence. The timing of the motion, which was made just

prior to sentencing, is highly suspect and makes the motion appear frivolous.

{¶26} With respect to the seventh and eighth factors, Thomas’s stated reason

for the motion to withdraw his plea was his purported lack of understanding that the

jointly-recommended sentence included terms of incarceration rather than

substance-abuse treatment. However, as addressed in our discussion of the third

factor, Thomas’s argument is severely undermined by the record—namely, his

repeated assertions that he understood the plea agreement, which had also been

reduced to writing and which explicitly included terms of incarceration for each

offense.

{¶27} Finally, with respect to the ninth factor, Thomas makes no argument

that he was perhaps not guilty or had a complete defense to the charges. Notably,

Thomas admitted the veracity of the facts underlying his convictions and does not

attempt to challenge those admissions.

{¶28} After reviewing all the applicable factors, we conclude that the trial

court did not err by denying Thomas’s motion to withdraw his guilty plea.

Thomas’s second assignment of error is overruled.

Conclusion

{¶29} For the foregoing reasons, Thomas’s assignments of error are

overruled. Having found no error prejudicial to the appellant herein in the

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Case No. 6-23-15

particulars assigned and argued, we affirm the judgment of the Hardin County Court

of Common Pleas.

Judgment Affirmed

WALDICK and ZIMMERMAN, J.J., concur.

/hls

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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