Court of Appeals of Ohio, Eighth District, Cuyahoga
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
BEFORE: Celebrezze, J., Kilbane, P.J., and Jones, J.
JOURNAL ENTRY AND OPINION
D. CELEBREZZE, JR., JUDGE.
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
Factual and Procedural History
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
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.
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).
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.
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
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.
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
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.
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.
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.
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
Law and Analysis
Appellant's first, second, and third assignments of error
pertain to his guilty plea on the robbery count.
1. Ineffective ...