[Cite as State v. McCoy,
2023-Ohio-361.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NOS. C-220279
C-220281
Plaintiff-Appellee, : TRIAL NO. B-2004388
:
VS. O P I N I O N.
:
JOSHUA MCCOY, :
Defendant-Appellant. :
Criminal Appeals From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed and Cause Remanded
Date of Judgment Entry on Appeal: February 8, 2023
Melissa A. Powers, Hamilton County Prosecuting Attorney, for Plaintiff-Appellee,
John D. Hill, Jr., for Defendant-Appellant.
OHIO FIRST DISTRICT COURT OF APPEALS
BERGERON, Judge.
{¶1} After shooting at a woman and her family—hitting the woman—
defendant-appellant Joshua McCoy was indicted for various counts of felonious
assault as well as for having a weapon while under disability. As his bench trial
unfolded, Mr. McCoy decided to enter guilty pleas instead of continuing with the trial.
A while later, however, he had a change of heart and requested to withdraw his pleas.
The trial court denied Mr. McCoy’s motion to withdraw his guilty pleas and sentenced
him in accordance with the Reagan Tokes Law (2018 Am.Sub. S.B. 201). In his appeal,
Mr. McCoy asserts that the trial court erred when it declined to allow him to withdraw
his guilty pleas, and he also takes aim at the constitutionality of the Reagan Tokes Law.
However, based on the record at hand and applicable caselaw, we find no error in the
trial court’s denial of the motion to withdraw his guilty pleas, and we reject his
constitutional challenges to the Reagan Tokes Law consistent with our recent
precedent.
I.
{¶2} In August 2020, victim Marisa Jones, her brother, and her children
piled into the family van—sitting in a parking lot—as they prepared to venture out to
a birthday party. Before Ms. Jones drove off, Mr. McCoy approached the car and
confronted her, demanding that she leave the lot and brandishing a firearm at her
brother. Ms. Jones then stepped out of the vehicle, approaching Mr. McCoy in an
attempt to defuse the situation. Her efforts failed as Mr. McCoy responded by firing
multiple shots toward her and the vehicle, striking Ms. Jones in the arm with one
bullet and lodging at least one shot in the van near where Ms. Jones’s two minor
2
OHIO FIRST DISTRICT COURT OF APPEALS
children were seated. Mr. McCoy was under a disability at the time of the shooting
due to a felony assault conviction in 2015.
{¶3} Mr. McCoy was subsequently charged with four counts of felonious
assault and one count of having a weapon while under disability. He initially opted to
waive his jury rights and be tried by the trial judge. But after the testimony of the
state’s first witness wrapped up, Mr. McCoy opted to withdraw his previous not-guilty
pleas and tender guilty pleas. He pleaded guilty to the second through fifth counts of
the indictment—three counts of felonious assault with accompanying three-year
firearm specifications, as well as one count of having weapons while under disability—
in exchange for dismissal of count one of the indictment and repeat violent offender
specifications that had accompanied counts two through four.
{¶4} The trial court then engaged Mr. McCoy in a Crim.R. 11(C) colloquy
during which the court confirmed that he understood the terms and effects of the
pleas, the maximum potential penalties he faced upon conviction, and the
constitutional rights he forfeited by tendering the pleas. The court also elicited Mr.
McCoy’s acknowledgment that he was proceeding knowingly, intelligently, and
voluntarily. After finding Mr. McCoy guilty, the court continued the matter for
sentencing and ordered a standard presentence investigation, a victim impact
statement, and a forensic evaluation from the Hamilton County Court Clinic for
purposes of sentencing mitigation.
{¶5} Prior to sentencing, Mr. McCoy’s trial counsel filed a motion to strike
the indefinite sentencing provisions of R.C. 2929.144, basing arguments on the alleged
constitutional deficiencies of the Reagan Tokes Law.
3
OHIO FIRST DISTRICT COURT OF APPEALS
{¶6} At the sentencing hearing, Mr. McCoy presented a handwritten letter in
which he requested to withdraw his pleas. The trial court entertained arguments on
the motion before denying it. The trial court also denied Mr. McCoy’s motion
requesting that the court dispense with the indefinite sentence requirement embodied
in the Reagan Tokes Law.
{¶7} The court imposed the following sentences: for count 2, an eight-year
sentence on the underlying offense, with a three-year mandatory sentence for the
firearm specification; for count 3, a five-year sentence; for count 4, a five-year
sentence; and for count 5, a three-year sentence. The court merged the firearm
specifications on counts 3 and 4 with the specification on count 2. The sentences for
counts 3 and 4 were made concurrent with one another but consecutive to the
remaining sentences. The sentence for count 6 was made concurrent with the other
sentences. The aggregate prison term was 16 to 20 years in the Ohio Department of
Rehabilitation and Correction (“ODRC”).
{¶8} Mr. McCoy timely appealed, taking issue with the trial court’s denial of
his motion to withdraw his guilty pleas and challenging the constitutionality of the
Reagan Tokes Law.
II.
{¶9} In his first assignment of error, Mr. McCoy contends that the trial court
erred when it denied his motion to withdraw his guilty pleas.
{¶10} Motions to withdraw guilty pleas are governed by Crim.R. 32.1, which
provides: “A motion to withdraw a plea of guilty or no contest 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
4
OHIO FIRST DISTRICT COURT OF APPEALS
plea.” The right to withdraw a plea is not absolute, but “a presentence motion to
withdraw a guilty plea should be freely and liberally granted.” State v. Xie, 62 Ohio
St.3d 521, 527,
584 N.E.2d 715 (1992); see State v. Howell, 1st Dist. Hamilton No. C-
200360,
2021-Ohio-2957, ¶ 9. However, it must be recognized that “a defendant does
not have an absolute right to withdraw a plea prior to sentencing.” Howell at ¶ 9,
quoting Xie at paragraph one of the syllabus. “And we will not disturb the trial court’s
ruling absent an abuse of discretion.” Howell at ¶ 9, citing Xie at paragraph two of the
syllabus.
{¶11} When reviewing a trial court’s denial of a motion to withdraw a guilty
plea, an appellate court considers the factors set forth in State v. Fish, 104 Ohio App.3d
236, 240,
661 N.E.2d 788 (1st Dist.1995), overruled in part on other grounds, State
v. Sims,
2017-Ohio-8379,
99 N.E.3d 1056 (1st Dist.), 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 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.
5
OHIO FIRST DISTRICT COURT OF APPEALS
Howell at ¶ 10, quoting State v. Rashid, 1st Dist. Hamilton Nos. C-120777 and C-
120778, 2013-Ohio-4458, ¶ 14, and State v. Jefferson, 1st Dist. Hamilton No. C-
020802,
2003-Ohio-4308, ¶ 7.
{¶12} Here, Mr. McCoy concedes that the trial court’s decision, for the most
part, satisfied the Fish factors. He objects only on the basis that the trial court
predominantly focused on whether allowing him to withdraw his pleas would
prejudice the prosecution. According to Mr. McCoy, the trial court did not sufficiently
address whether he might have a valid defense. However, the record reflects that the
trial court gave full and fair consideration to the withdrawal request and that it
afforded him a complete Crim.R.11 colloquy at the time of his pleas. The record
moreover supports the conclusions that Mr. McCoy was represented by highly
competent counsel, that he understood the nature and possible penalties of the
charges to which he pleaded guilty, and that the state would be prejudiced by the
withdrawal of the pleas (since it pulled the plug on the on-going trial once he decided
to plead). Nor does Mr. McCoy’s conclusory argument that the trial court did not
consider whether he might have a valid defense persuade us that the trial court abused
its discretion. The record contains no evidence that Mr. McCoy presented any
potentially viable defense to the charges he faced, nor does he elaborate on any
possible defenses on appeal. On this record, the trial court did not abuse its discretion
in denying the motion to withdraw his guilty pleas. Accordingly, we overrule Mr.
McCoy’s first assignment of error.
III.
{¶13} Mr. McCoy also challenges the constitutionality of the Reagan Tokes
Law, alleging that the procedures for adjudicating and sentencing offenders under
6
OHIO FIRST DISTRICT COURT OF APPEALS
R.C. 2929.144 and 2967.271 violate both the separation of powers doctrine and
offenders’ due process rights. Specifically, Mr. McCoy takes issue with the fact that, in
his view, the indefinite sentencing regime affords the ODRC nearly unfettered
discretion in sentencing offenders.
{¶14} Recently, this court held that the Reagan Tokes Law—including the
sentencing regime as codified in R.C. 2929.144 and 2967.271—is constitutional. State
v. Guyton, 1st Dist. Hamilton No. C-190657, 2022-Ohio-2962, ¶ 53-55, appeal
accepted,
168 Ohio St.3d 1418,
2022-Ohio-3752,
196 N.E.3d 850. In Guyton, after
exhaustive consideration, we rejected claims that the sentencing scheme violates
separation of powers or due process. Id. at ¶ 45, 69. With regard to due process, we
held that “[w]e do not discern any provision in the Reagan Tokes Law that overcomes
the strong presumption an offender will be afforded the requisite process due at all
stages of the indeterminate sentencing scheme, including during any administrative
proceedings.” Id. at ¶ 45. And we further “reject[ed] [defendant’s] claim that the
indefinite sentencing scheme set forth in the Reagan Tokes Law violates the
separation-of-powers doctrine.” Id. at ¶ 28. We therefore reject Mr. McCoy’s
constitutional challenges to the Reagan Tokes Law and overrule his second
assignment of error.
…
{¶15} In light of the foregoing analysis, we overrule both of Mr. McCoy’s
assignments of error and affirm the judgment of the trial court. We note, however,
that the sentencing entry contains a clerical error, as it incorrectly lists the sentences
that are to run concurrently and consecutively, and incorrectly merges counts 2 and 3
7
OHIO FIRST DISTRICT COURT OF APPEALS
and counts 3 and 4, rather than the specifications for those counts. “Crim.R. 36 allows
for the correction at any time of clerical mistakes due to oversight or omission.
Further, App.R. 9(E) allows this court to direct that the misstatement be corrected.”
State v. Simmons, 1st Dist. Hamilton No. C-050817, 2006-Ohio-5760, ¶ 24. We
therefore remand this cause for the limited purpose of ordering the trial court to enter
a nunc pro tunc order correcting the sentencing entry to accurately reflect the sentence
imposed during the sentencing hearing.
Judgment affirmed and cause remanded.
CROUSE, P. J., and ZAYAS, J., concur.
Please note:
The court has recorded its entry on the date of the release of this opinion.
8
