[Cite as State v. Howell,
2021-Ohio-2957.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-200360
TRIAL NO. B-1901922
Plaintiff-Appellee, :
O P I N I O N.
:
VS.
:
ORLANDO HOWELL, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed
Date of Judgment Entry on Appeal: August 27, 2021
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Keith Sauter,
Assistant Prosecuting Attorney, for Plaintiff-Appellee,
Timothy J. McKenna, for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} Defendant-appellant Orlando Howell struck a plea deal that allowed
him to stay out of prison until sentencing, but he agreed to the imposition of
maximum and consecutive sentences if he got into trouble before his sentencing
hearing. Unfortunately for him, during that interim period, he received new charges
and otherwise violated the terms of his release, so the trial court followed the plea
agreement and did exactly as it had warned—it imposed maximum, consecutive
sentences. Mr. Howell now appeals, arguing that the trial court should have allowed
him to withdraw his guilty pleas and, alternatively, that we should modify his
sentences to run concurrently. Because the trial court acted within its discretion and
did not impose sentences contrary to law, we overrule Mr. Howell’s two assignments
of error and affirm the trial court’s judgment.
I.
{¶2} The relevant facts of this case are straightforward and undisputed.
While on probation in April 2019, Mr. Howell received four new drug charges after
police seized drugs from his girlfriend’s apartment. Charges of possession of cocaine
and possession of fentanyl in violation of R.C. 2925.11, and trafficking in cocaine and
trafficking in fentanyl in violation of R.C. 2925.03, ensued. In addition to these new
charges, Mr. Howell faced the specter of two additional years of incarceration by
virtue of the probation violation.
{¶3} Mr. Howell initially decided to contest the new charges by moving to
suppress, positing that the officers illegally obtained the drugs by searching his
girlfriend’s apartment without first obtaining a warrant (a maintenance man
allegedly let police into the apartment). To establish his standing to contest the
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OHIO FIRST DISTRICT COURT OF APPEALS
legitimacy of that search, Mr. Howell subpoenaed his girlfriend to testify at the
suppression hearing (a fact that placed her at considerable risk of self-
incrimination). Eventually, it dawned on Mr. Howell that his girlfriend either could
not or would not provide helpful testimony to his cause, which convinced him to pull
the plug on the suppression motion and strike a deal with the state.
{¶4} In exchange for Mr. Howell pleading guilty to both trafficking counts,
the state agreed to drop both possession charges and to recommend termination of
outstanding probation. Furthermore, both parties agreed to jointly recommend
maximum, concurrent sentences for both trafficking counts (36 months for fentanyl
trafficking and 18 months for cocaine trafficking, for a total sentence of 36 months).
Finally, in exchange for the state recommending Mr. Howell’s release until
sentencing, the parties agreed as follows:
If Defendant fails to show [for the sentencing hearing] or if Defendant
picks up any new charges … [or] violates the terms and conditions of
his release … the court will impose maximum consecutive sentences
on all counts and on the probation violation.
{¶5} The trial court accepted Mr. Howell’s guilty pleas and dismissed the
two possession counts, but it declined to terminate the outstanding probationor
discuss a potential sentence until the subsequent hearing. The court also agreed to
release Mr. Howell until sentencing, provided that he wear an electronic monitoring
device. Finally, the court wrapped up matters by issuing the following
admonishment:
If you violate for any reason, if you do anything you are not supposed
to be doing in the meantime, you are going to come back here and …
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OHIO FIRST DISTRICT COURT OF APPEALS
if you have any charges … you are looking at seven and a half years,
and you are going to get every last second of that … .
{¶6} The sentencing hearing did not take place for several months, and in
the meantime, Mr. Howell received several charges in municipal court for allegedly
operating an illicit nightclub out of his residence, among other things. Mr. Howell
also violated the terms of his release by apparently failing to recharge his ankle
monitor, causing the battery to die. With these problems afoot, Mr. Howell then
sought to withdraw his guilty pleas.
{¶7} The trial court first convened a hearing on Mr. Howell’s motion to
withdraw his guilty pleas before denying it. The court then proceeded to sentencing,
at which point Mr. Howell did not contest his violations, instead offering mitigating
factors. Mr. Howell insisted that his monitor had malfunctioned, that the probation
officer in charge of the monitoring unit was difficult to work with, that Covid-19
created complications in complying with his release conditions, and that he was
innocent of the municipal court charges. The trial court saw things differently,
informing Mr. Howell that it would impose maximum and consecutive sentences for
the two trafficking counts: 18 months for cocaine trafficking and 36 months for
fentanyl trafficking, for a total of 54 months. The trial court did, however, terminate
Mr. Oppenheimer’s outstanding probation.
{¶8} On appeal, Mr. Howell presents two assignments of error, arguing that
the trial court should have permitted him to withdraw his guilty pleas and,
alternatively, that we should revise his sentences to run concurrently.
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OHIO FIRST DISTRICT COURT OF APPEALS
II.
{¶9} In his first assignment of error, Mr. Howell maintains that the trial
court abused its discretion in denying his motion to withdraw his guilty pleas. “The
Ohio Supreme Court has held that a trial court should ‘freely and liberally grant’ a
presentence motion to withdraw a guilty plea, provided that the defendant has
supplied the trial court with a reasonable and legitimate basis for the withdrawal.”
State v. Andrews, 1st Dist. Hamilton No. C-110735, 2012-Ohio-4664, ¶ 16, quoting
State v. Xie,
62 Ohio St.3d 521, 526–27,
584 N.E.2d 715 (1992). Nevertheless, “a
defendant does not have an absolute right to withdraw a guilty plea prior to
sentencing.” Xie at paragraph one of the syllabus. And we will not disturb the trial
court’s ruling absent an abuse of discretion. Andrews at ¶ 16; Xie at paragraph two
of the syllabus.
{¶10} When reviewing a trial court’s denial of a motion to withdraw a guilty
plea, we consider a number of factors, including:
(1) whether the defendant was represented by highly competent
counsel; (2) whether the defendant was afforded a complete Crim.R. 11
hearing before entering the plea; (3) whether the trial court conducted
a full and impartial hearing on the motion to withdraw the plea; (4)
whether the trial court gave full and fair consideration to the motion;
(5) whether the motion was made within a reasonable time; (6)
whether the motion set out specific reasons for the withdrawal; (7)
whether the defendant understood the nature of charges and the
possible penalties; (8) whether the defendant was possibly not guilty of
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OHIO FIRST DISTRICT COURT OF APPEALS
the charges or had a complete defense to the charges; and (9) whether
the state would have been prejudiced by the withdrawal of the plea.
State v. Rashid, 1st Dist. Hamilton Nos. C-120777 and C-120778, 2013-Ohio-4458,
¶ 14, quoting State v. Jefferson, 1st Dist. Hamilton No. C-020802,
2003-Ohio-4308,
¶ 7.
{¶11} Here, Mr. Howell concedes that the first seven factors weigh in favor of
the trial court’s decision, objecting only that he had a complete defense to his drug
charges and that the state would not suffer any prejudice. But he musters only a
conclusory argument on those two factors, suggesting that his suppression argument
was “colorable” and that the state could nonetheless prosecute him. In light of the
concession on the remaining factors, Mr. Howell needed a much more compelling
argument to cast doubt on the trial court’s exercise of discretion. Based on the
record at hand, we have little difficulty in concluding that the trial court did not
abuse its discretion. We therefore overrule Mr. Howell’s first assignment of error
III.
{¶12} In his second assignment of error, Mr. Howell finds fault with the trial
court’s imposition of consecutive sentences, and he asks us to modify his sentences
accordingly. He first reasons that his sentences were contrary to law, offering that
the court failed to consider the sentencing factors in R.C. 2929.11 and 2929.12. Mr.
Howell also alleges that the trial court’s factual findings were unsupported by the
record.
{¶13} “Before a reviewing court can modify or vacate a felony sentence, it
must clearly and convincingly find that the sentence is contrary to law or that the
record does not support the trial court’s findings.” State v. Hutcherson, 1st Dist.
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OHIO FIRST DISTRICT COURT OF APPEALS
Hamilton No. C-190627, 2020-Ohio-5321, ¶ 9; see R.C. 2953.08(G)(2). “Contrary to
law” means “in violation of statute or legal regulations at a given time.” State v.
Jones,
163 Ohio St.3d 242,
2020-Ohio-6729,
169 N.E.3d 649, ¶ 34, citing Black’s
Law Dictionary 328 (6th Ed.1990). Here, it is undisputed that the sentences
received by Mr. Howell comported with the legal range provided by the statutes at
hand.
{¶14} Moreover, our ability to review Mr. Howell’s sentences is further
limited because the court sentenced him within the terms of the plea agreement.
R.C. 2953.08(D)(1) provides that “[a] sentence imposed upon a defendant is not
subject to review under this section if the sentence is authorized by law, has been
recommended jointly by the defendant and the prosecution in the case, and is
imposed by a sentencing judge.” As the Ohio Supreme Court has observed, “[t]he
General Assembly intended a jointly agreed-upon sentence to be protected from
review precisely because the parties agreed that the sentence is appropriate.” State
v. Porterfield, 106 Ohio St.3d 5,
2005-Ohio-3095,
829 N.E.2d 690, ¶ 25. “Once a
defendant stipulates that a particular sentence is justified, the sentencing judge no
longer needs to independently justify the sentence.”
Id. And these principles also
apply to consecutive sentences and sentencing ranges. See State v. Sergent,
148
Ohio St.3d 94,
2016-Ohio-2696,
69 N.E.3d 627, ¶ 30 (“If a jointly recommended
sentence includes nonmandatory consecutive sentences and the trial judge fails to
make the consecutive-sentence findings set out in R.C. 2929.14(E)(4), the sentence is
nevertheless ‘authorized by law,’ and therefore is not appealable pursuant to R.C.
2953.08(D)(1).”); State v. Williams, 8th Dist. Cuyahoga No. 108724, 2020-Ohio-
3802, ¶ 9 (“[I]t does not matter if the jointly recommended sentence is a range or a
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OHIO FIRST DISTRICT COURT OF APPEALS
specific term. … The sentence is not reviewable.”). Here, Mr. Howell agreed that,
if he received new charges or otherwise violated the terms of his release, maximum
and consecutive sentences, totaling 54 months, would be appropriate. On appeal, he
concedes that he violated the terms of his release, that he received additional
charges, and that the trial court sentenced him according to the terms of the
agreement.
{¶15} Notwithstanding that concession, Mr. Howell maintains that the trial
court failed to consider the sentencing factors in R.C. 2929.11 and 2929.12. But the
Supreme Court has explained that “neither R.C. 2929.11 nor 2929.12 requires a trial
court to make any specific factual findings on the record.” Jones, 163 Ohio St.3d
242,
2020-Ohio-6729,
169 N.E.3d 649, at ¶ 20. Furthermore, “[w]e can presume
from a silent record that the trial court considered the appropriate factors unless the
defendant affirmatively shows that the court has failed to do so.” State v. Cephas, 1st
Dist. Hamilton No. C-180105,
2019-Ohio-52, ¶ 42. Here, the trial court explicitly
cited two factors from R.C. 2929.11—the need to protect the public and punish the
defendant—and Mr. Howell identifies nothing in the record otherwise suggesting
that the trial court failed to consider the remaining factors. We therefore overrule
Mr. Howell’s second assignment of error.
…
{¶16} In light of the foregoing analysis, we overrule Mr. Howell’s two
assignments of error and affirm the judgment of the trial court.
Judgment affirmed.
MYERS, P. J., and BOCK, J., concur.
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OHIO FIRST DISTRICT COURT OF APPEALS
Please note:
The court has recorded its entry on the date of the release of this opinion
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