State v. Williams

[Cite as State v. Williams, 

.]




                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY




STATE OF OHIO,
                                                          CASE NO. 1-24-19
         PLAINTIFF-APPELLEE,

    v.

HEZEKIAH M. WILLIAMS,                                     OPINION

         DEFENDANT-APPELLANT.




                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR2023 0149

                                      Judgment Affirmed

                           Date of Decision: December 16, 2024




APPEARANCES:

         Chima R. Ekeh for Appellant

         John R. Willamowski, Jr. for Appellee
Case No. 1-24-19



MILLER, J.

       {¶1} Defendant-Appellant, Hezekiah M. Williams (“Williams”), appeals

from the February 29, 2024 judgment of the Allen County Court of Common Pleas.

Williams argues the trial court erred in his sentence, his guilty plea was not

knowingly made due to ineffective assistance of counsel, and the trial court erred in

failing to merge two of his convictions. For the reasons that follow, we affirm.

I.     FACTS AND PROCEDURAL HISTORY

       {¶2} Williams had a child with L.H., but they did not live with each other

and were never married. Williams was upset that L.H. (allegedly) allowed other

men to be in their child’s presence without his knowledge. The charges against him

arose from an incident involving L.H., L.H.’s father (“C.C.”), and two of L.H.’s

other family members (“E.C.” and “J.C.”). On November 19, 2022, Williams came

to the home where the child and those four other individuals were present, a physical

altercation between Williams and C.C. ensued, Williams pulled a gun from his

waistband, and Williams took the child from the home.

       {¶3} On May 11, 2023, Williams was indicted on seven counts. Count one

charged him with aggravated burglary, in violation of R.C. 2911.11(A)(2), with a

firearm specification pursuant to R.C. 2941.145(A). Counts two, three, four, and

five each charged him with felonious assault, in violation of R.C. 2903.11(A)(2),

with accompanying firearm specifications pursuant to R.C. 2941.145(A). Those

four counts were identically worded and tracked the language of the felonious

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assault statute. Count six charged Williams with having weapons while under

disability, in violation of R.C. 2923.13(A)(2), along with a specification for

forfeiture of the gun pursuant to R.C. 2941.1417(A). Count seven charged him with

domestic violence, in violation of R.C. 2919.25(A). Thus, Williams was charged

with a first-degree felony (count one), four second-degree felonies (counts two

through five), a third-degree felony (count six), and a first-degree misdemeanor

(count seven). Based on our review of the record, Williams never requested a Bill

of Particulars.

       {¶4} On January 22, 2024, the trial court held a change of plea hearing. At

the hearing, the trial court explained to Williams that if he pled guilty to the

aggravated burglary charge (count one) and its firearm specification, then he would

receive a mandatory sentence on the aggravated burglary conviction. For example,

the following exchange took place:

       THE COURT: So for count one, you could receive a prison sentence,
       or I should say you will receive a prison sentence of anywhere from
       three years up to possibly eleven years. Whatever I give you on that
       charge becomes your, uh, what they call a minimum sentence, because
       you could receive up to sixteen and a half years on that and I’ll explain
       that in just a moment, um, on that charge, and you could be fined up
       to $20,000.00. Because that has a firearm specification, the firearm
       specification requires that I sentence you to prison for at least three
       years on that. So you have to get at least three years on your firearm
       specification and at least three years on count one which would all be
       mandatory time. Do you understand that?

       MR. WILLIAMS: Yes, ma’am.




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(Jan. 22, 2024 Tr. at 4-5). Additionally, the written Negotiated Plea of Guilty, which

Williams signed, specified that Williams understood count one carried a mandatory

sentence by pleading guilty to count one and its firearm specification. At the end of

the hearing, Williams withdrew his former pleas of not guilty and tendered guilty

pleas on count one and its firearm specification, count two, and count seven. The

remaining counts and specifications were dismissed, pursuant to the negotiated plea.

The trial court accepted the guilty pleas, ordered a presentence investigation, and

set the case for sentencing.

       {¶5} On February 29, 2024, the trial court held a sentencing hearing. The

trial court explained that it had received the presentence investigation report (“PSI”)

and victim impact statements from two of the victims. Williams’ counsel argued

that count one and count two should merge. Based on facts set forth in the PSI and

by counsel during the sentencing hearing, the trial court decided that none of the

three counts merged.      The trial court then imposed the following sentence:

mandatory 10 years (minimum) to 15 years (maximum) in prison for count one, plus

an additional mandatory three years for the firearm specification; a non-mandatory

five years in prison for count two; and 180 days in prison for count seven. The trial

court ordered the terms to be served concurrently, other than the consecutive term

for the firearm specification. Thus, Williams was sentenced to an aggregate term

of 13 years (minimum) to 18 years (maximum) in prison. This appeal followed.



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II.    ASSIGNMENTS OF ERROR

       {¶6} Williams raises three assignments of error for our review:

                                First Assignment of Error

       The trial court erred in sentencing Defendant-Appellant to a mandatory
       term of imprisonment on the aggravated burglary conviction. (Tr. pg.
       37, tab 14-21).

                              Second Assignment of Error

       Appellant’s guilty plea was not knowingly, intelligently, and voluntarily
       made due to ineffective assistance of counsel, in violation of his right to
       same, under the Ohio Constitution and the United States Constitution.

                               Third Assignment of Error

       The trial court committed error when it failed to merge Williams’
       convictions of aggravated burglary and felonious assault as required by
       R.C. 2941.25. (Tr. pg. 38, tab 6-7).

III.   DISCUSSION

       A.     First Assignment of Error

       {¶7} In the first assignment of error, Williams argues his sentence to a

mandatory prison term on the aggravated burglary conviction is contrary to law. In

making this argument, he concedes the trial court followed the binding precedent of

this Court in imposing a mandatory sentence on the aggravated burglary conviction

pursuant to State v. Wolfe, 

 (3d Dist.) and reaffirmed in State v. Peters,

 (3d Dist.). (Appellant’s Brief at 5). He asks us to reconsider our

holdings in those two cases. We decline to do so. Williams pleaded guilty to

aggravated burglary in violation of R.C. 2911.11(A)(2)—a first-degree felony—and


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to its accompanying firearm specification. The trial court did not err in following

precedent and imposing a mandatory prison term for the felony aggravated burglary

conviction. 

; 

 (“R.C. 2929.13(F)(8) obligates the trial

court to impose a mandatory prison term for any felony (except carrying concealed

weapons) where the offender had or controlled a firearm when committing that

offense”).

       {¶8} Williams’ first assignment of error is overruled.

       B.     Second Assignment of Error

       {¶9} In the second assignment of error, Williams insists his guilty plea was

not knowingly, intelligently, and voluntarily made due to ineffective assistance of

counsel. He identifies five alleged failures of trial counsel, which we address below.

              1.     Standard of Review and Applicable Law

       {¶10} To establish ineffective assistance of counsel, the appellant “must

show (1) deficient performance by counsel, i.e., performance falling below an

objective standard of reasonable representation, and (2) prejudice, i.e., a reasonable

probability that, but for counsel’s errors, the proceeding’s result would have been

different.” State v. Tench, 

, ¶ 264; see also State v. Drain, 2022-

Ohio-3697, ¶ 36 (involving ineffectiveness of counsel in context of a plea). Thus,

an “appellate court does not need to consider the facts of the case under both prongs

if the appellant makes an insufficient showing on one.” State v. Shoaf, 2022-Ohio-

3605, ¶ 49 (3d Dist.). “Ineffective assistance of counsel can affect the voluntariness

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of a guilty or no-contest plea when ‘a defendant is represented by counsel during

the plea process and enters his plea upon the advice of counsel.’” (Emphasis

deleted.) Drain at ¶ 37, quoting Hill v. Lockhart, 

 (1985).

       {¶11} Regarding the first requirement, “[i]n order to show counsel’s conduct

was deficient or unreasonable, the defendant must overcome the presumption that

counsel provided competent representation and must show that counsel’s actions

were not trial strategies prompted by reasonable professional judgment.” State v.

Houston, 

 (3d Dist.), citing Strickland v. Washington, 

 (1984). “Counsel is entitled to a strong presumption that all decisions

fall within the wide range of reasonable professional assistance.” 

 citing State v.

Sallie, 

, 

 (1998). “[T]he errors complained

of must amount to a substantial violation of counsel’s essential duties to [the]

client.” Id. at ¶ 36. In the context of pleas, “the voluntariness of the plea depends

on whether counsel’s advice ‘was within the range of competence demanded of

attorneys in criminal cases.’” 

, quoting McMann v. Richardson, 

 (1970); see also Drain at ¶ 37.

       {¶12} Regarding the second requirement, “[p]rejudice results when ‘there is

a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.’” 

, quoting State v.

Bradley, 

 (1989). In the context of guilty pleas, “in order to

satisfy the ‘prejudice’ requirement, the defendant must show that there is a

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reasonable probability that, but for counsel’s errors, he would not have pleaded

guilty and would have insisted on going to trial.” 

; see also Drain at ¶ 38.

              2.     Analysis

       {¶13} First, Williams alleges his trial counsel failed to advise him that his

plea to aggravated burglary with a firearm specification carried a mandatory

sentence on the aggravated burglary. However, there is no evidence of record that

his counsel failed to advise Williams about this. State v. Reddens, 

 (2d Dist.) (record failed to demonstrate ineffective assistance of counsel

where defendant pled guilty and claimed his counsel failed to advise him that he

would be deemed a sexually-oriented offender upon conviction but there was “no

evidence of record that defense counsel failed to so advise” the defendant).

Regardless, even if counsel failed to advise him, Williams’ assertion that there was

a reasonable probability he would not have pled guilty if he had received such advice

is pure speculation with no cited support. Id. at ¶ 14 (record also failed to show a

reasonable probability that, had defendant known a sexually-oriented offender

status would apply to his conviction, he would not have pled guilty; “[t]o conclude

otherwise would be entirely speculative, and speculation will not support a claim of

prejudice”); see also Lee v. U.S., 

 (2017) (“[c]ourts should not

upset a plea solely because of post hoc assertions from a defendant about how he

would have pleaded but for his attorney’s deficiencies,” but instead should “look to

contemporaneous evidence to substantiate a defendant’s expressed preferences”).

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Indeed, the record indicates there was no such “reasonable probability” because the

trial court informed Williams of the mandatory sentencing requirement at the plea

hearing, Williams said he understood it, and he still proceeded with his guilty plea.

See State v. Romero, 

 (judicial advisements during a plea

colloquy are not a substitute for effective assistance of counsel and, therefore, are

irrelevant to the first prong of an ineffective assistance of counsel claim, but they

may be relevant to the second prong in showing whether prejudice occurred).

       {¶14} The second alleged failure by Williams’ trial counsel was not

objecting to the mandatory term of imprisonment for the aggravated burglary

conviction, thus forcing a review under the plain-error standard. However, as shown

in our analysis of the first assignment of error, this court’s precedent was clear at

the time of sentencing. Thus, a different standard of review would not have affected

the outcome regardless of whether Williams’ counsel objected. E.g., State v. Perin,

 (4th Dist.) (“[b]ecause the trial court complied with Crim.R.

11(E), any objection to the plea colloquy would have been futile”).

       {¶15} Third, Williams claims his counsel advised him after the sentencing

that the trial court’s sentence was contrary to law but, failed to advise him to

withdraw his pleas after sentencing. (Appellant’s Brief at 9). Once again, Williams

does not cite any support for his assertions about his counsel’s advice or lack

thereof. Yet, even if the assertions are true, he concedes “that the trial court

followed the binding precedent of this Court in imposing a mandatory sentence on

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the aggravated burglary conviction pursuant to” Wolfe and Peters. (Id. at 5). There

is no support for his contention that he would have filed a motion to withdraw his

guilty pleas if counsel had so advised him or that the hypothetical motion would

have been successful. See Reddens, 

 (2d Dist.).

       {¶16} The fourth alleged failure by Williams’ trial counsel was not obtaining

a bill of particulars prior to advising him to take a plea deal. Williams claims that,

“[i]n a case where multiple offenses and victims were alleged, a bill of particulars

is necessary in crafting a defense.” (Emphasis added.) (Appellant’s Brief at 9). He

also claims a bill of particulars would have forced the State to identify “the predicate

offenses for the aggravated burglary with particularity, such that it would have aided

him in making an informed choice of going to trial” or entering a plea. (Id. at 10).

       {¶17} The Rules of Criminal Procedure allow a defendant to request a bill of

particulars. Crim.R. 7(E). Upon receiving a valid, timely request, “the prosecuting

attorney shall furnish the defendant with a bill of particulars setting up specifically

the nature of the offense charge[d] and of the conduct of the defendant alleged to

constitute the offense.” Id.; see also R.C. 2941.07. “A bill of particulars may be

amended at any time subject to such conditions as justice requires.” Crim.R. 7(E).

       {¶18} “‘A bill of particulars has a limited purpose—to elucidate or

particularize the conduct of the accused alleged to constitute the charged offense.”

State v. Haynes, 

, quoting State v. Sellards, 

 (1985). “‘A bill of particulars is not designed to provide the accused with

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specifications of evidence or to serve as a substitute for discovery.’” 

 “Not every

case requires a bill of particulars,” and “a defendant is free to decide not to request

a bill of particulars.” Id. at ¶ 26.

       {¶19} Williams has not shown the failure to obtain a bill of particulars in this

case amounted to a substantial violation of counsel’s essential duties to him. As

further shown in our analysis of the third assignment of error, it is not necessarily

true—and Williams has not shown—that his counsel needed a bill of particulars in

order to adequately advise him to take a plea deal. We also note that Williams was

potentially facing significantly more prison time had he gone to trial on the charges

in the indictment.

       {¶20} Additionally, Williams has not satisfied the “prejudice” requirement.

Particularly given the relatively limited purpose of a bill of particulars, the

additional information he could have reasonably expected from a bill of particulars

in this case, and the underlying facts, Williams has not shown there is a reasonable

probability that, but for the alleged unprofessional error, he would not have pleaded

guilty and would have insisted on going to trial. See State v. Choudri, 2023-Ohio-

4476, ¶ 38 (3d Dist.) (defendant was not prejudiced by an alleged lack of clarity and

specificity in the bill of particulars where defendant failed to show how knowledge

of certain facts omitted from the bill of particulars would have changed her defense).

       {¶21} Fifth, Williams faults his trial counsel for allegedly not interviewing

any of the “multiple witnesses to the event,” prior to advising him to take a plea

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deal. (Appellant’s Brief at 10). “[W]here the alleged error of counsel is a failure to

investigate . . . , the determination whether the error ‘prejudiced’ the defendant”

“will depend on the likelihood that discovery of the evidence would have led

counsel to change his recommendation as to the plea.” Hill, 

. “This

assessment, in turn, will depend in large part on a prediction whether the evidence

likely would have changed the outcome of a trial.” 

       {¶22} Williams claims that had counsel interviewed various witnesses (who

he does not identify) “counsel would have found inconsistencies in their stories, and

perhaps could have challenged” their stories “through a motion in limine, or at the

minimum used that to negotiate a better plea deal.” (Appellant’s Brief at 10). We

find these claims to be pure speculation. The record does not establish whether

counsel did, or did not, interview witnesses.          Further, even if counsel had

interviewed witnesses and found inconsistencies in their statements, there is not a

reasonable probability that Williams would have insisted on going to trial. Once

again, Williams has not met the requirements to establish ineffective assistance of

counsel. See State v. Mourer, 

 (5th Dist.) (rejecting

defendant’s assertion her guilty plea was not made knowingly due to counsel’s

ineffective investigation, where defendant’s assertion was “based upon a

speculative conclusion that her trial counsel would have found something that would

have led her to insist on a jury trial and not enter a guilty plea”).

       {¶23} Williams’ second assignment of error is overruled.

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       C.     Third Assignment of Error

       {¶24} In the third assignment of error, Williams claims that the trial court

erred by not merging his convictions of aggravated burglary and felonious assault,

pursuant to R.C. 2941.25. He argues the two offenses were of similar import, were

committed together, and had no separate animus or motivation (specifically, that his

single criminal motive was to enter “the victim’s” home to commit felonious

assault). (Appellant’s Brief at 13).

              1.     Applicable Law

       {¶25} “We review de novo whether certain offenses should be merged as

allied offenses under R.C. 2941.25.” State v. Bailey, 

. “Merger

is a sentencing question, not an additional burden of proof shouldered by the state

at trial.” State v. Washington, 

. The defendant bears the

burden of establishing he or she is entitled to the protection provided by R.C.

2941.25 against multiple punishments for a single criminal act. 

       {¶26} When a defendant’s conduct supports multiple offenses, courts apply

the allied offenses analysis in R.C. 2941.25 to determine if the offenses merge or if

the defendant may be convicted of separate offenses. State v. Cass, 2024-Ohio-

2614, ¶ 19 (3d Dist.). The statute states:

       (A) Where the same conduct by defendant can be construed to
       constitute two or more allied offenses of similar import, the
       indictment or information may contain counts for all such offenses,
       but the defendant may be convicted of only one.


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Case No. 1-24-19



       (B) Where the defendant’s conduct constitutes two or more offenses
       of dissimilar import, or where his conduct results in two or more
       offenses of the same or similar kind committed separately or with a
       separate animus as to each, the indictment or information may contain
       counts for all such offenses, and the defendant may be convicted of
       all of them.

R.C. 2941.25. The Supreme Court of Ohio clarified certain aspects of this statute

in State v. Ruff, 

. The court’s syllabus held:

       1. In determining whether offenses are allied offenses of similar
       import within the meaning of R.C. 2941.25, courts must evaluate three
       separate factors—the conduct, the animus, and the import.

       2. Two or more offenses of dissimilar import exist within the meaning
       of R.C. 2941.25(B) when the defendant’s conduct constitutes offenses
       involving separate victims or if the harm that results from each offense
       is separate and identifiable.

       3. Under R.C. 2941.25(B), a defendant whose conduct supports
       multiple offenses may be convicted of all the offenses if any one of
       the following is true: (1) the conduct constitutes offenses of dissimilar
       import, (2) the conduct shows that the offenses were committed
       separately, or (3) the conduct shows that the offenses were committed
       with separate animus.

 at syllabus.

       {¶27} “The evidence at trial or during a plea or sentencing hearing will reveal

whether the offenses have similar import.” Id. at ¶ 26. Additionally, “[w]hen

deciding whether to merge multiple offenses at sentencing pursuant to R.C. 2941.25,

a court must review the entire record, including arguments and information

presented at the sentencing hearing, to determine whether the offenses were

committed separately or with a separate animus.” State v. Washington, 2013-Ohio-

4982, syllabus. The indictment and PSI are among those items in the record for a

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court to consider in making a merger determination. E.g., State v. Vanausdal, 2016-

Ohio-7735, ¶ 7 (3d Dist.). “A defendant’s plea to multiple counts does not affect

the court’s duty to merge . . . allied counts at sentencing.” State v. Underwood,

; see also State v. Knight, 

 (12th Dist.)

(recognizing the challenges inherent in reviewing “an allied offense attack to a

negotiated plea because the reviewing court has a limited record of facts, if any,

upon which to make an allied offenses analysis”).

       {¶28} Williams contends his convictions for aggravated burglary and

felonious assault should merge. The aggravated burglary statute provides, in

relevant part, that “[n]o person, by force . . . , shall trespass in an occupied structure

. . . when another person . . . is present, with purpose to commit in the structure . . .

any criminal offense, if . . . [t]he offender has a deadly weapon . . . on or about the

offender’s person or under the offender’s control.” R.C. 2911.11(A)(2). The

felonious assault statute provides, in relevant part, that “[n]o person shall knowingly

. . . [c]ause or attempt to cause physical harm to another . . . by means of a deadly

weapon or dangerous ordnance.” R.C. 2903.11(A)(2).

               2.     Analysis

       {¶29} At the sentencing hearing, Williams’ counsel argued that counts one

and two should merge. Specifically, he said:

       [A]ggravated burglary and felonious assault and the nature of the
       felonious assault, if State v. Ruff[’s] offenses merge[d], then certainly,
       surely here in State v. Williams the offenses would merge; therefore,

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       I would respectfully ask for the minimum sentence considering how
       young he is . . .

(Feb. 29, 2024 Tr. at 3-4).

       {¶30} The information presented to the trial court, including statements in

the PSI, supported the conviction for aggravated burglary separate from the offense

of felonious assault. From the information before the trial court at the time of

sentencing it is evident that Williams was unhappy because he believed L.H. was

allowing other men to be around their young child. On November 19, 2022,

Williams came to the home where the child, L.H., C.C., E.C., and J.C. were all

present. Williams had a gun in his waistband. He entered the home, hit L.H., got

into a physical fight with C.C., pulled the gun from his waistband, and pointed the

gun at L.H., C.C., and E.C. When J.C. opened a door to the room where Williams

was present, Williams pointed the gun at him. Williams subsequently left with the

child. The record supported that Williams committed aggravated burglary when he

entered the home, without a privilege to do so, and struck C.C. (a predicate criminal

offense of assault) while having the firearm in his waistband; he committed

felonious assault when he pointed the gun at the various persons in the residence.

       {¶31} We find that Williams failed to meet his burden of establishing he was

entitled to the protection provided by R.C. 2941.25 against multiple punishments

for a single criminal act.    Based on the evidence in the record, the conduct

constituted offenses of dissimilar import, namely Williams’ conduct constituted


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offenses involving multiple separate victims. R.C. 2941.25(B); Ruff, 2015-Ohio-

995, at syllabus.   Further, the aggravated burglary was completed before the

felonious assault. Thus, the offenses were committed separately. Id.; see also State

v. Potts, 

 (3d Dist.) (a court may end its analysis upon an

affirmative response to any of the three factors—import, conduct, or animus).

       {¶32} Therefore, for multiple independent reasons, the trial court did not err

in deciding Williams’ convictions do not merge. See, e.g., State v. Gebhardt, 2013-

Ohio-166, ¶ 4, 12, 16 (8th Dist.) (where defendant pled guilty to multiple counts he

believed merged, and despite the indictment and bill of particulars failing to

distinguish conduct or temporal differences for those counts, the PSI—which

contained the victim’s recitation of various instances of abuse—supported a finding

that the offenses were not allied offenses of similar import); Potts, 

 (3d Dist.); Cass, 

 (3d Dist.).

       {¶33} Williams’ third assignment of error is overruled.

IV.    CONCLUSION

       For the foregoing reasons, Williams’ assignments of error are overruled.

Having found no error prejudicial to the appellant in the particulars assigned and

argued, we affirm the judgment of the Allen County Court of Common Pleas.


                                                                 Judgment Affirmed

ZIMMERMAN, J., concurs.


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WALDICK, J., dissents.

       For the reasons set forth in my dissenting opinion in State v. Peters, 2023-

Ohio-4362 (3d Dist.), I respectfully dissent in the disposition of the first assignment

of error. I would sustain the first assignment of error, reverse the sentence imposed

by the trial court, and remand the case for further proceedings.



/jlm




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