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State v. Thomas

Court of Appeals of Ohio, Eighth District, Cuyahoga

March 22, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
ANTHONY R. THOMAS DEFENDANT-APPELLANT

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-15-601429-A

          ATTORNEY FOR APPELLANT Anna Markovich

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor BY: Jillian Eckart Assistant Prosecuting Attorney

          BEFORE: Celebrezze, J., Kilbane, P.J., and Jones, J.

          JOURNAL ENTRY AND OPINION

          FRANK D. CELEBREZZE, JR., JUDGE.

         {¶1} Defendant-appellant, Anthony Thomas ("appellant"), brings the instant appeal challenging his convictions and the trial court's sentence for robbery, abduction, and drug possession. Specifically, appellant argues that his guilty plea was not knowingly, intelligently, and voluntarily entered due to ineffective assistance of trial counsel; the trial court abused its discretion in failing to sua sponte vacate appellant's guilty plea; the trial court abused its discretion in denying his postsentence motion to withdraw his guilty plea; and the trial court erred by imposing consecutive sentences on allied offenses of similar import. After a thorough review of the record and law, this court affirms.

         I. Factual and Procedural History

         {¶2} On November 21, 2015, appellant attacked a physically disabled victim who was riding on an RTA train. Appellant pulled the victim from his seat, dragged the victim across the floor of the train, and removed the victim from the train onto a platform outside. During the struggle, the victim lost his cell phone and the victim's prosthetic leg became detached.

         {¶3} On December 2, 2015, in Cuyahoga C.P. No. CR-15-601429-A, the Cuyahoga County Grand Jury returned a six-count indictment charging appellant with (1) robbery, a second-degree felony in violation of R.C. 2911.02(A)(2); (2) robbery, a third-degree felony in violation of R.C. 2911.02(A)(3); (3) theft, a fifth-degree felony in violation of R.C. 2913.02(A)(1), with a furthermore specification alleging that the victim is an elderly person or disabled adult and that the property or services stolen is valued at less than $1, 000; (4) kidnapping, a first-degree felony in violation of R.C. 2905.01(B)(2); (5) drug possession, a fifth-degree felony in violation of R.C. 2925.11(A); and (6) illegal conveyance into a detention facility, a third-degree felony in violation of R.C. 2921.36(A)(2). Appellant was arraigned on December 7, 2015; he pled not guilty to the indictment.

         {¶4} The parties reached a plea agreement. On March 2, 2016, appellant pled guilty to robbery, as charged in Count 1 of the indictment, abduction, a third-degree felony in violation of R.C. 2905.02(A)(1), as amended in Count 4, and drug possession, as charged in Count 5 of the indictment. The remaining counts were nolled. The trial court ordered a presentence investigation report and screening to determine whether appellant was eligible for placement in a community-based correctional facility program ("CBCF"). On the same day, appellant also pled guilty in Cuyahoga C.P. No. CR-15-600864-A to attempted drug possession, a first-degree misdemeanor in violation of R.C. 2923.02 and 2925.11(A).

         {¶5} The trial court held a sentencing hearing on March 29, 2016. During the sentencing hearing, the trial court viewed video surveillance footage from the RTA train of appellant's encounter with the victim.

         {¶6} After hearing statements from defense counsel, appellant, the victim, and the prosecutor, and after viewing the video of the incident, the trial court imposed a prison sentence of two years and nine months: two years on Count 1, nine months on Count 4, and six months on Count 5. The trial court ordered appellant to serve Counts 1 and 4 consecutively; the trial court ordered Count 5 to run concurrently. The trial court ordered appellant to serve his two-year and nine-month prison sentence consecutively with his 60-day sentence in CR-15-600864-A.

         {¶7} On June 15, 2016, appellant filed a pro se motion to withdraw his guilty plea. Therein, he asserted that (1) he pled guilty because counsel advised him that he would be sentenced to CBCF, (2) he did not see the videotape from the RTA train that captured the incident, and (3) the video footage clearly shows that he was actually innocent. Thus, appellant requested to withdraw his guilty plea and enter a plea of not guilty. The state filed a brief in opposition on June 22, 2016. On July 13, 2016, the trial court denied appellant's motion to withdraw his guilty plea without holding a hearing.

         {¶8} On August 11, 2016, appellant filed a pro se motion to reconsider his plea withdrawal request. Therein, appellant appeared to argue that the state violated the terms of the plea agreement because he was not sentenced to CBCF, and that the video footage from the RTA train demonstrated that he was actually innocent. The state opposed appellant's motion for reconsideration on August 16, 2016. The trial court denied appellant's motion for reconsideration on August 16, 2016.

         {¶9} On October 11, 2016, appellant filed a pro se motion to compel the trial court to issue findings of fact and conclusions of law regarding its denial of his motion to withdraw his guilty plea and motion for reconsideration. The trial court denied the motion to compel on October 19, 2016.

         {¶10} On December 29, 2016, appellant filed a petition for postconviction relief. Therein, appellant appeared to argue that the common pleas court lacked subject matter jurisdiction over the criminal proceedings.

         {¶11} On December 30, 2016 and January 3, 2017, appellant filed petitions to vacate or set aside the judgment of conviction or sentence. In both petitions, appellant appeared to argue again that the common pleas court lacked subject matter jurisdiction over the criminal proceedings. The state filed a brief in opposition to appellant's petitions on January 9, 2017. The trial court denied appellant's petitions to vacate or set aside judgment on February 13, 2017.

         {¶12} On January 17, 2017, appellant filed the instant appeal. He assigns four errors for review:

I. Appellant's guilty plea to robbery was not voluntary and knowing due to ineffective assistance of counsel.
II. The trial court abused its discretion in failing to vacate sua sponte appellant's guilty plea to robbery when the trial court became aware at the sentencing that appellant did not commit this offense.
III. The trial court abused its discretion in denying appellant's post-sentence motion to withdraw his guilty plea without having an evidentiary hearing.
IV. The trial court erred by convicting and sentencing appellant to consecutive sentences on allied offenses of similar import.

         II. Law and Analysis

         A. Guilty Plea

         {¶13} Appellant's first, second, and third assignments of error pertain to his guilty plea on the robbery count.

          1. Ineffective ...


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