Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-17-613700-C
ATTORNEYS FOR APPELLANT Mark Stanton Cuyahoga County Public
Defender By: Frank Cavallo Assistant Public Defender.
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor BY: Ashley B. Kilbane Anthony Thomas
Miranda Assistant Prosecuting Attorneys
BEFORE: Celebrezze, J., Blackmon, P.J., and Laster Mays, J.
JOURNAL ENTRY AND OPINION
D. CELEBREZZE, JR., J.
Defendant-appellant, Bishop Hicks, brings the instant appeal
challenging his conviction for attempted aggravated robbery.
Specifically, Hicks argues that the trial court abused its
discretion by failing to hold a hearing on his motion to
withdraw his guilty plea and that he was denied his
constitutional right to the effective assistance of counsel.
After a thorough review of the record and law, this court
Factual and Procedural History
In Cuyahoga C.P. No. CR-17-613700-C, Hicks was charged for
his involvement in an incident that occurred on January 23,
2017, during which Hicks and his codefendants, Eric Henderson
and Javon Mason, robbed an individual at gunpoint. On January
31, 2017, the Cuyahoga County Grand Jury returned a
four-count indictment charging Hicks with (1) aggravated
robbery, a first-degree felony in violation of R.C.
2911.01(A)(1), with one- and three-year firearm
specifications; (2) robbery, a second-degree felony in
violation of R.C. 2911.02(A)(2), with one- and three-year
firearm specifications; (3) kidnapping, a first-degree felony
in violation of R.C. 2905.02(A)(2), with one- and three-year
firearm specifications; and (4) carrying a concealed weapon,
a fourth-degree felony in violation of R.C. 2923.12(A)(2),
with a forfeiture of a weapon specification and a furthermore
clause alleging that the weapon involved was a firearm that
was either loaded or for which Hicks had ammunition ready at
At his initial appearance on January 31, 2017, the trial
court declared Hicks to be indigent and assigned counsel to
represent him. Hicks was arraigned on February 3, 2017. He
pled not guilty to the indictment.
The parties reached a plea agreement. The state amended Count
1 to attempted aggravated robbery, a second-degree felony
with a one-year firearm specification. The state deleted the
three-year firearm specification charged in Count 1. On June
6, 2017, Hicks pled guilty to Count 1 as amended. Counts 2,
3, and 4 were nolled. The trial court ordered a presentence
investigation report, a drug and alcohol treatment report,
and a mental health assessment from the court psychiatric
clinic, and set the matter for sentencing.
The trial court held a sentencing hearing on July 6, 2017.
The trial court sentenced Hicks to three years in prison: one
year in prison on the firearm specification to be served
consecutively with a prison term of two years for the
attempted aggravated robbery offense. The trial court
journalized its sentencing entry on July 14, 2017.
On July 12, 2017, Hicks, through new counsel, filed a motion
to withdraw his guilty plea. Therein, Hicks requested to
withdraw his guilty plea based on (1) his severe Attention
Deficit Hyperactivity Disorder ("ADHD") that
affects his ability to focus on and comprehend matters of
importance, (2) the fact that he did not understand the
nature of his guilty plea, and (3) the fact that he
previously expressed his desire not to plead guilty to both
counsel that was originally assigned to represent him and to
the trial court. The state filed a brief in opposition on
July 21, 2017.
Before the trial court ruled on Hicks's motion to
withdraw his guilty plea, Hicks filed the instant appeal
challenging his conviction on August 9, 2017.
On December 5, 2017, the trial court denied Hicks's
motion to withdraw his guilty plea. The trial court concluded
that Hicks failed to demonstrate a manifest injustice that
warranted withdrawal and that Hicks's motion was merely
based on a "change of heart."
In the instant appeal, Hicks assigns two errors for review:
I. The trial court abused its discretion by failing to hold a
hearing on appellant's oral motion to withdraw his guilty
II. Appellant was denied effective assistance of counsel at
his sentencing when his defense attorney refused to argue his
plainly expressed wishes to withdraw his guilty plea.