State v. Hall

[Cite as State v. Hall, 

.]


                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                   :

                 Plaintiff-Appellee,             :
                                                              No. 112626
                 v.                              :

MAYSHAUN HALL,                                   :

                 Defendant-Appellant.            :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: AFFIRMED
                 RELEASED AND JOURNALIZED: December 14, 2023


          Criminal Appeal from the Cuyahoga County Court of Common Pleas
                              Case No. CR-19-637420-A


                                           Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Tasha L. Forchione, Assistant Prosecuting
                 Attorney, for appellee.

                 Russell S. Bensing, for appellant.


FRANK DANIEL CELEBREZZE, III, P.J.:

                Appellant Mayshaun Hall (“Hall”) appeals the decision of the trial court

denying his motion to withdraw his guilty plea and alleging ineffective assistance of

counsel. After a thorough review of the relevant law and facts, this court affirms.
                        I. Factual and Procedural History

             In January 2019, a Cuyahoga County Grand Jury returned an 18-count

indictment charging Hall for a series of crimes occurring between January 2017 and

March 2018. The charges were as follows: Count 1 charged Hall with trafficking in

violation of R.C. 2925.03(A)(2) with the following specifications: a one-year firearm

specification, a major drug offender (“MDO”) specification, forfeiture of money in a

drug case, forfeiture of an automobile in a drug case, forfeiture of a gun in a drug

case, forfeiture of a cell phone in a drug case, forfeiture of a scale in a drug case, and

forfeiture of property.1 Count 2 charged Hall with drug possession in violation of

R.C. 2925.11(A) and contained all of the same specifications as Count 1. Counts 3,

5, and 7 charged Hall with trafficking in violation of R.C. 2925.03(A)(2) and

contained all of the same specifications except for the MDO specification. Counts 4,

6, 8, 9, and 10 charged Hall with drug possession in violation of R.C. 2925.11(A) and

contained specifications for forfeiture of money in a drug case, forfeiture of an

automobile in a drug case, forfeiture of a gun in a drug case, forfeiture of a cell phone

in a drug case, forfeiture of a scale in a drug case, and forfeiture of a scale in a drug

case. Count 11 charged Hall with having weapons while under disability (“HWUD”)

in violation of R.C. 2923.13(A)(3) and contained specifications for forfeiture of the


       1 The forfeiture of property specification specifically pertained to an “HP laptop

computer and/or [iPad] and/or jewelry and/or other drug related items which is
contraband and/or property derived from or through the commission or facilitation of an
offense, and/or is an instrumentality the offender(s) used or intended to use in the
commission or facilitation of a felony offense.” All “forfeiture of property” specifications
in Hall’s indictment pertain to these same listed items unless another form of property is
specifically noted.
weapon and forfeiture of property. Count 12 charged Hall with possessing criminal

tools in violation of R.C. 2923.24(A) and contained the same specifications as listed

in Counts 4, 6, 8, 9, and 10. Counts 13, 15, and 17 charged Hall with money

laundering in violation of R.C. 1315.55(A)(4) and contained a specification for

forfeiture of property related to $78,094 in cash. Counts 14 and 18 charged Hall

with money laundering in violation of R.C. 1315.55(A)(1) and contained a

specification for forfeiture of property related to $78,094 in cash. Count 16 charged

Hall with money laundering in violation of R.C. 1315.55(A)(2) and contained a

specification for forfeiture of property related to $78,094 in cash.

             Due to the size of the case and nature of the charges, significant

discovery and motion practice ensued. Hall’s trial was ultimately delayed several

times on Hall’s own motions and the court’s motions related to the COVID-19

pandemic.

             Nearly three years later, on February 17, 2022, Hall accepted a plea deal

and pleaded guilty to an amended Count 1, modified by deletion of the one-year

firearm specification and the MDO specification and a decrease in the amount of

cocaine, reducing the charge to a third-degree felony; an amended Count 3, modified

by deletion of the one-year firearm specification and a decrease in the amount of

heroin, reducing the charge to a third-degree felony; Count 12 (possessing criminal

tools); and Count 18 (money laundering). All remaining counts were nolled. Hall

was instructed to forfeit the $78,094 in cash as well as numerous articles of personal

property.
             The court sentenced Hall on April 6, 2022. Hall received the following

individual sentences: 36 months on Count 1; 36 months on Count 3; 12 months on

Count 12; and 36 months on Count 18. Counts 1, 3, and 18 were run consecutive, for

a total of 9 years.

              On June 1, 2022, Hall, through his attorney, filed a motion to withdraw

his plea. In the motion, Hall’s counsel detailed that at the time Hall entered his plea,

“[t]he parties agreed to a recommended three year sentence” that was expressed to

the court at the time of the plea. In the motion, Hall’s counsel noted that he told

Hall that he may receive a sentence between three and six years, but “never advised

[Hall] that it was even in the realm of possibilities that he would receive a nine year

sentence.” Hall’s counsel continued:

       Counsel unintentionally misled [Hall]. Based on 25 years of
       experience, counsel had never seen 3 third degree felonies net in a 9
       year sentence. The Defendant did not enter a knowing plea. He could
       not have known he was looking at a nine year sentence because his
       attorney gave him bad information. Counsel is asking that he be
       allowed to withdraw his plea and seek new counsel or try his case. The
       plea must be withdrawn to prevent a manifest injustice.

             The state opposed Hall’s motion, arguing that no manifest injustice had

occurred and argued that from an evidentiary standpoint, Hall failed to attach an

affidavit or transcript of the plea hearing in support of his motion. Hall’s counsel

then supplemented his motion to withdraw with an affidavit, averring the same

statements contained in Hall’s motion to withdraw his guilty plea.
            In March 2023, the court denied Hall’s motion to withdraw his guilty

plea, noting that the court “correctly informed [Hall] at the plea hearing the

advisements under Crim.R. 11(C)(2).”

            Hall timely appealed from this entry, assigning two errors for our

review:

      I. The trial court erred in denying defendant’s motion to vacate his plea,
      in derogation of defendant’s rights under the Fifth and Fourteenth
      amendments to the United States Constitution.

      II. The defendant was denied the effective assistance of counsel, in
      derogation of his rights under the Sixth and Fourteenth amendments
      to the United States Constitution.

                              II. Law and Analysis

              Crim.R. 32.1 provides that “[a] motion to withdraw a plea of guilty

* * * 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.” A finding of manifest injustice is “allowable

only in extraordinary cases.” State v. Smith, 

, 

 (1977). This high standard was meant to “discourage a defendant from

pleading guilty to test the weight of potential reprisal, and later withdraw[ing] the

plea if the sentence was unexpectedly severe.” State v. Caraballo, 

, 

 (1985). We review motions to withdraw pleas for an abuse of

discretion. State v. Caldero, 8th Dist. Cuyahoga No. 83729, 

,

citing State v. Xie, 

, 

 (1992). An abuse of

discretion occurs when a court exercises its judgment in an unwarranted way
regarding a matter over which it has discretionary authority. Johnson v. Abdullah,

, 

, 

.

              Hall argues that counsel’s “wrong advice” induced him to take a plea.

Hall argues that “[t]his was not a situation, as noted, where counsel simply made a

prediction as to what the judge would do at sentencing, and the prediction proved

inaccurate.   Counsel, based upon his experience, believed that there was no

possibility that the judge would impose maximum consecutive[] sentences on a

plea” based on the nature of the charges. Because of this, Hall argues that his plea

was not intelligent, knowing, and voluntary.

              Typically, a plea is entered knowingly and voluntarily if the trial court

advised the defendant regarding the nature of the charge and the maximum penalty

involved, the effect of entering a plea to the charge, and that the defendant will be

waiving certain constitutional rights by entering the plea. State v. Kelley, 

, 

 (1991); Crim.R. 11(C)(2).

              During the plea hearing, the trial court engaged Hall in a significant

colloquy, confirmed that Hall had not been made any promises, informed Hall of

the maximum penalty, which could be ten years, and further informed Hall that it

did not have to go along with the sentencing recommendation. The court also

confirmed that Hall was satisfied with his counsel.

      THE COURT: Has anyone, including your attorney, the prosecutor, or
      this Court made any promises, threats or other inducements to you
      other than what has been said on the record here this morning?

      ***
       DEFENDANT HALL: No.

       ***

       THE COURT: Mr. Hall, you understand there’s an agreed sentence
       between the State of Ohio and your counsel, but the Court has not
       agreed. Do you understand that?

       DEFENDANT HALL: Yes.

       THE COURT: Sometimes I go with it. Sometimes I don’t. I don’t know
       anything about you or this case except what I have heard thus far on
       your plea. Do you understand that?

       DEFENDANT HALL: Yes.

       THE COURT: Do you understand I’m not involved in that agreement?

       DEFENDANT HALL: Yes.

       ***

       THE COURT: * * * Felonies of the third degree are punishable by
       possible terms of incarceration of nine, 12, 18, 24, 30, or 36 months in
       prison as well as possible fines of up to $10,000. * * * Do you
       understand?

       DEFENDANT HALL: Yes.

       ***

       THE COURT: For you, Mr. Hall, I haven’t added up the most you can
       get. It looks like 10 years. I’m not saying you’re going to get it, but if
       you did get it they could send you back up to five years after you have
       done your whole sentence if you violate. Nine months, nine — do you
       understand that?

       DEFENDANT HALL: Yes.

(Tr. 11-13, 18.)
              Now, on appeal, Hall argues that despite agreeing to the above

colloquy, his counsel did not ever advise him that a nine-year sentence was even

possible in this situation. Hall argues that this was not merely a case where counsel

made a prediction and was proven wrong; he argues that this case is distinguishable

because he was not even advised that he could be facing a nine-year sentence. We

disagree with Hall’s assertions.

              When a defendant is induced to enter a guilty plea “by erroneous

representations as to the applicable law, the plea has not been entered knowingly

and intelligently.” State v. Mitchell, 11th Dist. Trumbull No. 2004-T-0139, 2006-

Ohio-618, ¶ 15, citing State v. Engle, 

, 

 (1996).

Further, whether a guilty plea is entered knowingly, intelligently, and voluntarily is

based on the totality of the circumstances. State v. Davner, 

, 

 (8th Dist.), citing State v. Sojourney, 8th Dist. Cuyahoga No.

92087, 

, ¶ 14; State v. Lockhart, 8th Dist. Cuyahoga No. 90754,

, ¶ 6. Here, there is no evidence in the record indicating that Hall’s

counsel made erroneous representations as to the applicable law; Hall’s counsel’s

promise or prediction regarding Hall’s sentence is not a representation regarding

the law, especially because Hall’s counsel indicated in his affidavit that Hall was

informed regarding the effect of the sentencing recommendation, and told him that

the trial court did not necessarily have to follow the recommendation.

              Additionally, the trial court cannot grant a motion to withdraw based

on affidavit evidence that directly contradicts the record. State v. Makupson, 8th
Dist. Cuyahoga No. 89013, 

, citing State v. Yearby, 8th Dist.

Cuyahoga No. 79000, 

 (Jan. 24, 2002). The record

demonstrates that the trial court engaged Hall in a full colloquy where Hall was told

that he could, at most, serve a ten-year prison sentence, and Hall indicated his

understanding. Even though Hall’s counsel claims that he informed Hall that he

would receive six years “at worst,” we find that this is more or less akin to a

prediction when coupled with the fact that Hall was duly advised regarding the

maximum sentence he could face during the colloquy and the fact that the trial court

was not bound by the sentencing recommendation. See, e.g., State v. Vinson, 2016-

Ohio-7604, 

, ¶ 32 (8th Dist.), citing State v. Sally, 10th Dist. Franklin

No. 80AP-850, 

, 10-11 (June 11, 1981) (a good faith

prediction that turns out to be erroneous does not render the plea involuntary and

collecting cases indicating as much).

              The record reflects that Hall entered his guilty pleas with knowledge

of the potential sentence that he could receive, and Hall indicated his understanding.

Hall also indicated that no promises were made to him related to his plea.

Accordingly, Hall has not shown that his counsel did anything more than provide

Hall with an educated guess as to what his sentence might be relative to his

experiences as an attorney. See State v. Williams, 8th Dist. Cuyahoga No. 88737,

 (“The facts alleged by Williams, and supported by counsel’s

affidavit, show only that counsel, based upon his many years of experience, made a

prediction that the judge would likely impose a sentence of less than 20 years.”).
Further, Hall has not demonstrated that the promised length of the sentence

actually induced the plea; Hall’s counsel’s affidavit actually indicates that the two

spent a significant amount of time discussing the pros and cons of trial, so Hall was

aware of the alternatives to taking the plea. The totality of the circumstances

indicates that Hall entered his plea with full knowledge of the maximum sentence

and the fact that the trial court did not have to follow the sentencing

recommendation.

              Having found no abuse of discretion by the trial court and no manifest

injustice upon our own review, we overrule Hall’s first assignment of error.

              In his second assignment of error, Hall argues that he received

ineffective assistance of counsel.

              When asserting ineffective assistance of counsel in the context of

guilty pleas, the defendant must demonstrate (1) that counsel’s performance was

deficient and (2) that there is a reasonable probability that, but for counsel’s errors,

he would not have pleaded guilty and instead would have insisted on going to trial.

State v. Drain, 

, 

, 

, citing

Strickland v. Washington, 

, 

, 

 (1984); State v. Bradley, 

, 

 (1989);

Hill v. Lockhart, 

, 

, 

 (1985). If a

defendant claims ineffective assistance of counsel after entering a guilty plea, they

“must also show that the ineffective assistance precluded [them] from entering the

plea knowingly and voluntarily.” State v. Mays, 

, 2008-Ohio-
128, 

 (8th Dist.), citing State v. Doak, 7th Dist. Columbiana Nos.

 and 

, 

.

              Hall has not argued the second prong — that but for his counsel’s

alleged ineffective assistance, he would not have pled guilty and would have insisted

upon going to trial. See, e.g., 

 (“Petitioner did not allege in his habeas

petition that, had counsel correctly informed him about his parole eligibility date,

he would have pleaded not guilty and insisted on going to trial.”); State v. Bozso, 

, 

, 

 (“Bozso presents no

contemporaneous evidence that but for his counsel’s erroneous advice, he would

have made a different decision.”). Further, we cannot find any evidence in the

record indicating that Hall would have preferred to proceed with trial on the 21-

count indictment. In fact, Hall’s counsel’s affidavit specifically avers that the two

had “numerous lengthy discussions” regarding the “risks and rewards of going to

trial or entering a plea.” Hall’s failure to argue this second prong forecloses our

review of the issue.

              Hall’s second assignment of error is overruled.

                                  III. Conclusion

              After a thorough review of the record, we find that the trial court did

not abuse its discretion in denying Hall’s motion to withdraw his guilty plea, and

further, that Hall did not receive ineffective assistance of counsel.

              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

convictions having been affirmed, any bail pending appeal is terminated.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.




FRANK DANIEL CELEBREZZE, III, PRESIDING JUDGE

LISA B. FORBES, J., and
MICHAEL JOHN RYAN, J., CONCUR