The opinion
[Cite as State v. Maddox, 2017-Ohio-8061.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 105140
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
DRESHAWN D. MADDOX
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case Nos. CR-15-594546-A, CR-15-596664-B, and CR-16-605913-A
BEFORE: Keough, A.J., E.T. Gallagher, J., and Stewart, J.
RELEASED AND JOURNALIZED: October 5, 2017
ATTORNEY FOR APPELLANT
James J. Hofelich
614 W. Superior Avenue, Suite 1310
Cleveland, Ohio 44113
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
By: Ashley B. Kilbane
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
KATHLEEN ANN KEOUGH, A.J.:
{¶1} Defendant-appellant, Dreshawn D. Maddox, appeals the trial court’s decision
denying his presentence motion to withdraw plea and sentence. For the reasons that
follow, we affirm.
{¶2} In April 2015, Maddox was named in a three-count indictment filed in Case
No. CR-15-594546 charging him with one count each of drug trafficking, drug
possession, and possessing criminal tools. Subsequently in July, Maddox was charged
under Case No. CR-15-596664 with two counts of felonious assault with one- and
three-year firearm specifications; two counts of attempted felonious assault with one- and
three-year firearm specifications, and one count of carrying concealed weapons. In
March 2016, Maddox was named in a four-count indictment filed in Case No.
CR-16-605913 charging him with two counts of drug possession, and one count each of
theft and falsification. At the time the indictments were filed, Maddox was currently on
probation in Case No. CR-14-586601 for the offense of attempted receiving stolen
property.
{¶3} On June 14, 2016, Maddox pleaded guilty in CR-16-605913 to drug
possession and falsification. He was referred to probation for the preparation of a
presentence investigative report, and a drug, alcohol, and mental health assessment.
{¶4} On June 21, 2016, trial was scheduled to begin in CR-15-594546 and
CR-15-596664. The state presented Maddox two options for a packaged plea deal on
both cases — the first option was to plead guilty to one count of attempted felonious
assault with the one-year firearm specification and the carrying a concealed weapon
charge in CR-15-596664, and in CR-15-594546 plead to an amended charge of attempted
drug trafficking; the second option was to plead guilty to one count of felonious assault
and the carrying a concealed weapon charge with the understanding that prison time
would be imposed, and plead guilty to an amended charge of attempted drug trafficking in
CR-15-594546. The trial court explained to Maddox that even if the prosecution
recommended a certain sentence, the court was not bound to that sentence; the decision
would be made after hearing from both parties and reviewing all mitigation reports.
{¶5} After extensive discussions and a recess, Maddox chose the first option — to
plead guilty in CR-15-596664 to attempted felonious assault with the one-year firearm
specification, and carrying a concealed weapon and attempted drug trafficking in
CR-15-594546. After fully complying with Crim.R. 11, the court noted on the record
that the state recommended concurrent sentences. Maddox agreed that no threats or
promises were made, including any particular sentence. Additionally, he did not have
any questions regarding the potential penalties. The trial court continued the matter for
sentencing.
{¶6} On August 11, 2016, Maddox appeared for sentencing on all three of his
cases and for a probation violation hearing on an unrelated matter. The court noted that
it had received a presentence investigation report, mental health assessment and report
from the court’s psychiatric clinic, and a TASC assessment. Additionally, the court
noted that it received two letters from Maddox. The first letter indicated that he wished
to withdraw his plea on the attempted felonious assault and carrying concealed weapons
case because he was scared when he entered his plea and because he wanted to prove his
actual innocence. In the second letter, Maddox indicated that he wanted to keep his
guilty plea in tact, but mentioned Case No. CR-15-594546, which was the drug offense
case. Although Maddox only wished to withdraw his plea on the felonious assault case,
the state argued that because the plea was a package deal with Case No. CR-15-594546, if
the court was going to grant the motion, the court should withdraw the plea on both cases.
{¶7} Maddox acknowledged that he entered a plea on the offenses, but stated he
changed his mind because he was innocent. He reassured the court that he made this
decision on his own and while he spoke with his family, no one influenced or encouraged
him to withdraw his plea. The trial court continued the matter to review the transcript
from the plea hearing.
{¶8} At the September hearing, the state advised the court that since the last
hearing, it reviewed Maddox’s taped jailhouse phone calls, and stated that immediately
following the June 21 plea hearing, Maddox called his girlfriend and told her that he took
a plea deal and relayed the specifics to her. Later he called his friend, who was not
supportive of Maddox’s decision to “cop” out. In another call, he spoke to his cousin
who explained to him that he needed to withdraw his plea and just wait it out to see if the
victim showed up for trial. Additionally, his cousin asked for the names of the victims.
{¶9} Maddox explained to the court that he felt coerced with the package deal and
that he “copped out” after hearing all the years in prison he could receive if he went to
trial. Then upon reflection, he felt that he should not have to plead if he was innocent.
The court noted that based on the arguments and the phone calls, Maddox’s motivation
for withdrawing his plea was not based on a misunderstanding of the risks and nature of
the offenses, but rather a change of heart. Nevertheless, because the report prepared by
the psychiatric clinic indicated that Maddox suffered from an intellectual disability, the
court ordered that Maddox undergo a competency evaluation to stand trial. The court
again continued the matter, but also set the cases for sentencing.
{¶10} On October 11, 2016, the court noted that Maddox was found competent to
stand trial, capable of assisting counsel in his defense, and understood the nature and
objectives of the legal proceedings against him. After the parties stipulated to the report,
the court accepted the psychiatric evaluations and conclusions, noting that if Maddox was
placed on community control sanctions, he would be eligible for the court’s mental health
docket. With these findings, the court denied Maddox’s motion to withdraw his plea,
concluding that Maddox merely had a change of heart.
{¶11} The court sentenced Maddox in CR-15-596664 to one-year on the firearm
specification to be served prior and consecutive to 36 months on the attempted felonious
assault charge, but concurrent to a sentence of 18 months for the offense of carrying a
concealed weapon. In CR-15-594546, Maddox was sentenced to 180 days in jail on the
attempted drug trafficking offense. In CR-16-605913, Maddox was sentenced to 12
months on the drug possession charge concurrent with 180 days on the falsification
offense. The court ordered all sentences imposed on each case to run concurrent for a
total sentence of 4 years.
{¶12} Maddox appeals, raising two assignments of error.
I. Withdraw of Plea
{¶13} In his first assignment of error, Maddox contends that the trial court abused
its discretion when it denied his motion to withdraw his plea. He argues that he was
denied effective assistance of counsel because counsel did not order a psychological
evaluation until after his plea, thus failing to recognize Maddox’s intellectual disorder.
Maddox also contends that he wanted to withdraw his plea to prove his innocence.
Finally, Maddox contends his plea should have been withdrawn because of his various
mental disorders.
{¶14} We initially note that the offenses indicted under CR-16-605913 were not
part of any package plea deal where his plea in that case would have been affected by
Maddox’s motion to withdraw his plea. Additionally, Maddox did not seek to withdraw
his plea in CR-16-605913 and the state did not contend that the plea in this case should be
considered when ruling on Maddox’s motion. Finally, no argument has been raised on
appeal regarding the plea in this case. Accordingly, Maddox’s conviction in
CR-16-605913 is summarily affirmed.
{¶15} Under Crim.R. 32.1, “[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.”
{¶16} In general, “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). It
is well established, however, that “[a] defendant does not have an absolute right to
withdraw a guilty plea prior to sentencing. A trial court must conduct a hearing to
determine whether there is a reasonable legitimate basis for the withdrawal of the plea.”
Id. at paragraph one of the syllabus.
{¶17} The decision to grant or deny a presentence motion to withdraw is within the
trial court’s discretion. Id. at paragraph two of the syllabus. Absent an abuse of
discretion, the trial court’s decision must be affirmed. Id. at 527. An abuse of
discretion requires a finding that the trial court’s decision was unreasonable, arbitrary, or
unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140
(1983). A trial court does not abuse its discretion in denying a motion to withdraw the
plea where a defendant was (1) represented by competent counsel, (2) given a full
Crim.R. 11 hearing before he entered a plea, (3) given a complete hearing on the motion
to withdraw, and (4) the record reflects that the court gave full and fair consideration to
the plea withdrawal request. State v. Peterseim, 68 Ohio App.2d 211, 428 N.E.2d 863
(8th Dist.1980), paragraph three of the syllabus.
{¶18} Maddox’s presentence motion to withdraw his guilty plea was based on a
claim that he wanted to prove his actual innocence. When faced with a claim of
innocence, “‘the trial judge must determine whether the claim is anything more than the
defendant’s change of heart about the plea agreement.’” State v. Minifee, 8th Dist.
Cuyahoga No. 99202, 2013-Ohio-3146, ¶ 27, quoting State v. Kramer, 7th Dist.
Mahoning No. 01-CA-107, 2002-Ohio-4176, ¶ 58. A mere change of heart regarding a
guilty plea and the possible sentence is insufficient justification for the withdrawal of a
guilty plea. State v. Westley, 8th Dist. Cuyahoga No. 97650, 2012-Ohio-3571, citing
State v. Drake, 73 Ohio App.3d 640, 645, 598 N.E.2d 115 (8th Dist.1991). Likewise, a
defendant’s protestations of innocence are not sufficient grounds for vacating a plea that
was voluntarily, knowingly, and intelligently entered. Minifee, citing State v. Bloom, 8th
Dist. Cuyahoga No. 97535, 2012-Ohio-3805, ¶ 13.
{¶19} On review, the record shows that Maddox was represented by competent
counsel, who advocated for his client during the plea process by expressing concern and
objecting to the state’s proposed package plea deal, contending that it was
unconstitutional. Moreover, counsel presented mitigating evidence and argument during
sentencing. Insofar as Maddox contends his plea should be vacated because he was
denied effective assistance of counsel, we find that Maddox has failed to demonstrate
how his trial counsel’s performance was deficient or that he would not have pleaded
guilty.
{¶20} A plea will not be considered voluntary if it is the result of ineffective
assistance of counsel. State v. Banks, 9th Dist. Lorain No. 01CA007958,
2002-Ohio-4858, ¶ 16. In order to prevail on this claim, Maddox must meet the test for
ineffective assistance of counsel. Xie, 62 Ohio St.3d at 524, 584 N.E.2d 715. This
requires a convicted defendant to prove two things — counsel’s performance was
deficient and the deficient performance prejudiced the defense. Strickland v.
Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The claim fails
if the defendant cannot satisfy either prong of the test. State v. Bradley, 42 Ohio St.3d
136, 142, 538 N.E.2d 373 (1989).
{¶21} Where a defendant challenges trial counsel’s performance in connection
with a guilty plea, the defendant can establish the prejudice necessary for an ineffective
assistance of counsel claim only by demonstrating that there is a reasonable probability
that, but for counsel’s deficient performance, he would not have pled guilty to the offense
at issue and would have insisted on going to trial. State v. Williams, 8th Dist. Cuyahoga
No. 100459, 2014-Ohio-3415, ¶ 11, citing Xie at 62, and Hill v. Lockhart, 474 U.S. 52,
106 S.Ct. 366, 88 L.Ed.2d 203 (1985); State v. Wright, 8th Dist. Cuyahoga No. 98345,
2013-Ohio-936, ¶ 12.
{¶22} On appeal, Maddox contends that his counsel was ineffective for failing to
recognize that Maddox suffered from mental disorders and should have requested a
psychiatric evaluation prior to the entering into a plea. Maddox maintains that this
failure by counsel deprived him of the ability to effectively communicate with his
attorney about the plea agreement. There is nothing in the record demonstrating that
counsel should have been aware that an evaluation was necessary. Even though Maddox
was being evaluated for a mental health assessment in another case, the assessment was
requested for mitigation purposes at sentencing.
{¶23} Moreover, if the assessment results would have revealed that Maddox was
unable to assist in his defense, was not competent to stand trial, or was suffering from a
mental health disorder that prevented him from appreciating and understanding the legal
proceedings and charges, then the trial court may have allowed Maddox to withdraw his
plea. However, the assessment did not yield such revelations. Accordingly, Maddox
cannot demonstrate that counsel was deficient under these circumstances, thus failing to
establish the second prong of the Strickland test.
{¶24} Considering the other Peterseim factors, the record shows that Maddox was
given a full hearing in compliance with Crim.R. 11 before entering his plea. At the plea
hearing, the court conducted an extensive inquiry of Maddox to ensure that he understood
the charges against him and the maximum penalties, including that even if a sentence was
recommended, the court was not bound by that recommendation. The court also advised
him of the effect of his guilty pleas and the rights he was waiving by pleading guilty.
Additionally, the record demonstrates that Maddox’s intellectual disability did not affect
his ability to enter a knowing, intelligent, and voluntary plea. At no time did Maddox
convey to the court that he did not understand the proceedings. In fact, he stated that he
understood the plea agreement, the potential sentence, and the rights he was waiving.
Finally, Maddox has made no argument that his pleas in his other cases were involuntary
because of any mental disorder.
{¶25} The record further demonstrates that the trial court gave Maddox a complete
and impartial hearing on his presentence motion to withdraw his guilty plea and gave full
and fair consideration to the arguments raised in support of his motion. The court
conducted the hearing over the course of three days, ordered psychiatric evaluations, and
considered written memorandums, thus evidencing a complete and impartial hearing.
{¶26} After listening to the state’s response and reviewing the jailhouse-taped
phone calls, the trial court reiterated what occurred during the plea colloquy. It noted
that the arguments Maddox made in support of withdrawing his plea were raised at the
same time Maddox changed his plea to guilty, the same day that Maddox’s case was set
for trial. The trial court could only conclude that Maddox had a change of heart after
speaking with his girlfriend, his friend who was not supportive of him “copping out,” and
his cousin who told him to withdraw his plea because the victim was not coming to court.
{¶27} We find no abuse of discretion in the trial court’s decision. Maddox’s
arguments in his presentence motion to withdraw his plea and on appeal are not sufficient
to warrant the withdrawal of his knowing, voluntary, and intelligent guilty pleas in these
cases. Accordingly, the assignment of error is overruled.
II. Maximum Sentence
{¶28} In Case No. CR-15-596664, Maddox was sentenced to one-year on the
firearm specification, to be served prior to and consecutively with the maximum sentence
of 36 months on the attempted felonious assault, for a total of 4 years in prison. In his
second assignment of error, Maddox contends that the maximum sentence is contrary to
law and not warranted because (1) the trial court did not find that Maddox’s conduct was
the worst form of the offense, and (2) the state was recommending only a 21 month
sentence, which he anticipated.
{¶29} Appellate review of felony sentences is governed by R.C. 2953.08, which
provides that when reviewing felony sentences, this court may increase, reduce, modify a
sentence, or vacate and remand for resentencing if we clearly and convincingly find that
the record does not support the sentencing court’s statutory findings, if applicable, or the
sentence is contrary to law. R.C. 2953.08(G)(2).
{¶30} Contrary to Maddox’s assertion, the trial court is no longer required to give
findings prior to imposing a maximum sentence. That requirement was removed by State
v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 N.E.2d 470, and not revived by the Ohio
General Assembly. See State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d
124, ¶ 1. Therefore, the trial court was not required to make any finding that Maddox’s
conduct was the worst form of the offense. Moreover, Maddox has failed to show by
clear and convincing evidence that the record does not support his sentence. See State v.
Malenda, 8th Dist. Cuyahoga Nos. 104736 and 104829, 2017-Ohio-5574, ¶ 17, 21
(Keough, A.J., concurring).
{¶31} Additionally, Maddox’s argument that he did not receive the anticipated and
recommended 21-month sentence is not a valid argument to warrant this court to
determine that his sentence is contrary to law. A sentence is contrary to law if (1) the
sentence falls outside the statutory range for the particular degree of offense, or (2) the
trial court failed to consider the purposes and principles of felony sentencing set forth in
R.C. 2929.11 and the sentencing factors in R.C. 2929.12. State v. Hinton, 8th Dist.
Cuyahoga No. 102710, 2015-Ohio-4907, ¶ 10, citing State v. Smith, 8th Dist. Cuyahoga
No. 100206, 2014-Ohio-1520, ¶ 13.
{¶32} In this case, the sentence is within the statutory range and the record clearly
reflects that the trial court considered the purposes and principles of felony sentencing set
forth in R.C. 2929.11 and 2929.12. Furthermore, under our review of the facts and
circumstances of the case, we find that the record supports the sentence. Maddox’s
second assignment of error is overruled.
{¶33} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable 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. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of th
e Rules of Appellate Procedure.
KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE
EILEEN T. GALLAGHER, J., and
MELODY J. STEWART, J., CONCUR