[Cite as State v. Robertson, 2011-Ohio-4300.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF MEDINA                  )

STATE OF OHIO                                        C.A. No.      10CA0030-M

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
LEONARD E. ROBERTSON                                 COURT OF COMMON PLEAS
                                                     COUNTY OF MEDINA, OHIO
        Appellant                                    CASE No.   05-CR-0539

                                 DECISION AND JOURNAL ENTRY

Dated: August 29, 2011



        CARR, Judge.

        {¶1}     Leonard Robertson appeals the judgment of the Medina County Court of

Common Pleas. This Court affirms, in part, and vacates in part.

                                                I.

        {¶2}     Mr. Robertson was indicted on 54 counts of sexual battery, 2 counts of gross

sexual imposition, and 1 count of attempted gross sexual imposition. He pleaded guilty to all

counts, and the trial court sentenced him to 15 years imprisonment. The trial court also found

him to be a sexual predator. He appealed the sentence, but this Court determined that his

judgment entry was not a final, appealable order. The trial court issued a nunc pro tunc entry to

correct the judgment entry, but this Court concluded that Mr. Robertson’s sentence was void due

to the improper imposition of post-release control. We vacated his sentence and remanded for

resentencing.
                                                 2


       {¶3}    At the resentencing hearing, Mr. Robertson made an oral motion to withdraw his

guilty plea, asserting that he was innocent of the charges. The trial court denied Mr. Robertson’s

motion and proceeded to resentence him. The trial court also told Mr. Robertson that he would

be reclassified as a Tier III sex offender under Ohio’s Adam Walsh Act, which had been enacted

after he was originally sentenced.

                                                II.

                                 ASSIGNMENT OF ERROR I

       “THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY DENYING
       DEFENDANT-APPELLANT’S PRE-SENTENCE MOTION TO WITHDRAW
       HIS GUILTY PLEA WHERE: (1) DEFENDANT-APPELLANT ASSERTED
       THAT HE WAS ACTUALLY INNOCENT OF THE CHARGED OFFENSES;
       (2) THE TRIAL COURT DID NOT CONDUCT A SE[P]ARATE HEARING TO
       DETERMINE       WHETHER THERE WAS A REASONABLE AND
       LEGITIMATE BASIS TO ALLOW WITHDRAWAL OF THAT GUILTY
       PLEA.”

       {¶4}    Mr. Robertson argues that his motion to withdraw his pleas was a presentence

motion because this Court had vacated his previous sentence as void due to the improper

imposition of post-release control. In State v. Fischer, 128 Ohio St. 3d 92, 2010-Ohio-6238, the

Ohio Supreme Court clarified that, “when a judge fails to impose statutorily mandated

postrelease control as part of a defendant’s sentence, that part of the sentence is void and must be

set aside.” Id. at ¶26. Accordingly, following Fischer, this Court would not have vacated the

entirety of Mr. Robertson’s sentence and his motion to withdraw his guilty pleas would have

been a post-sentence motion. Under the controlling law at the time, however, this Court did

vacate the entirety of Mr. Robertson’s sentence as void and remanded for a de novo resentencing

hearing in accordance with State v. Bezak, 114 Ohio St.3d 94, 2007-Ohio-3250. Accordingly,

his motion to withdraw his pleas was a presentence motion. State v. Boswell, 121 Ohio St.3d

575, 2009-Ohio-1577, at syllabus.
                                                 3


       {¶5}    “[A] presentence motion to withdraw a guilty plea should be freely and liberally

granted.” State v. Xie (1992), 62 Ohio St. 3d 521, 527. The defendant, however, does not have

an absolute right to withdraw his pleas. Id. “Therefore, the trial court must conduct a hearing to

determine whether there is a reasonable and legitimate basis for the withdrawal of the plea.” Id.

The trial court’s decision is then reviewed for an abuse of discretion. Id. “The term ‘abuse of

discretion’ connotes more than an error of law or of judgment; it implies that the court’s attitude

is unreasonable, arbitrary or unconscionable.” State v. Adams (1980), 62 Ohio St. 2d 151, 157.

       {¶6}    This Court has held that a trial court does not abuse its discretion when

considering a motion to withdraw a guilty plea if the following elements are present:

       “‘(1) the defendant is represented by competent counsel; (2) the trial court
       provides the defendant with a full hearing before entering the guilty plea; and (3)
       the trial court provides the defendant with a full hearing on the motion to
       withdraw the guilty plea, where the court considers the defendant’s arguments in
       support of his motion to withdraw the guilty plea.’” State v. Wheeland, 9th Dist.
       No. 06CA0034-M, 2007-Ohio-1213, at ¶10, quoting State v. West, 9th Dist. No.
       04CA008554, 2005-Ohio-990, at ¶22.

The trial court’s decision in response to a criminal defendant’s pre-sentence motion to withdraw

a guilty plea must also take into consideration “‘the facts and circumstances of each case.’” West

at ¶23, quoting Pamer, 2004-Ohio-7190, at ¶10.

       {¶7}    When Mr. Robertson moved to withdraw his plea, the trial court did not conduct a

full evidentiary hearing. An evidentiary hearing is not always required. State v. Pamer, 9th Dist.

No. 04CA0027-M, 2004-Ohio-7190, at ¶10, citing Lorain v. Price (Oct. 2, 1996), 9th Dist. No.

96CA006314. In Price, this Court concluded that “the nature and extent of the hearing is

dependant on the particular allegations in an accused’s motion and is committed to the sound

discretion of the trial court.” Id. While the trial court did not conduct a full evidentiary hearing,

it did permit Mr. Robertson, through his attorney, to argue his motion. After listening to Mr.
                                                  4


Robertson’s arguments in favor of withdrawal, the State’s arguments in opposition, and allowing

Mr. Robertson the final word, the trial court denied his motion. Further, Mr. Robertson never

proffered evidence in support of his arguments or requested an evidentiary hearing.

Accordingly, this Court cannot say that the trial court erred by not conducting an evidentiary

hearing.

       {¶8}    Mr. Robertson was represented by competent counsel and the trial court engaged

in an extensive plea colloquy with him before determining that his guilty pleas were being made

knowingly, intelligently, and voluntarily. Further, the trial court conducted a hearing before

ruling on Mr. Robertson’s motion to withdraw his guilty pleas. We note that Mr. Robertson did

not move to withdraw his pleas until the day of his resentencing hearing, and, at the hearing, his

attorney indicated that Mr. Robertson had not expressed a desire to withdraw his pleas until the

day before, saying “I met with Mr. Robertson yesterday[.] * * * In speaking with [him]

yesterday, he’s indicated that he’s not guilty of the fifty-seven counts.”

       {¶9}    However, Mr. Robertson presented no evidence that there was a reasonable or

legitimate reason that he should be permitted to withdraw his guilty pleas. While he did claim

that he was innocent of the charges, he did not proffer any evidence in support of his claims.

Other courts have held that “a defendant’s claims of innocence are not sufficient, absent any

offer of evidence to support this claim, to warrant withdrawal of a plea knowingly entered.”

State v. Scott, 6th Dist. No. S-05-035, 2006-Ohio-3875, at ¶13, citing State v. Powers, 4th Dist.

No. 03CA21, 2004-Ohio-2720, at ¶18. Mr. Robertson did not proffer any evidence in support of

his claims of innocence, did not request an evidentiary hearing, and did not seek a continuance in

order to find evidence to present.
                                                  5


        {¶10} Mr. Robertson also claims that he originally intended to enter an Alford Plea. “In

North Carolina v. Alford (1970), 400 U.S. 25, the Supreme Court validated what has become

commonly known as an ‘Alford plea,’ whereby a defendant pleads guilty yet maintains actual

innocence of the charges.” State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, at ¶13. An

Alford Plea is “merely a species of guilty plea * * * [that] is predicated upon the defendant's

desire to obtain a lesser penalty rather than risk the consequences of a jury trial.” (Internal

citations and quotations omitted.) State v. Krieg, 9th Dist. No. 04CA008442, 2004-Ohio-5174, at

¶9; see, also, State v. Piacella (1971), 27 Ohio St.2d 92, syllabus.

        {¶11} At his change of plea hearing, Mr. Robertson’s attorney stated that Mr. Robertson

was pleading guilty to all counts in the indictment, “not because he believes himself to be guilty

of all the counts, though he does admit assigned guilt, but rather because of the negotiated

agreement and, more importantly even than that * * * Mr. Robertson believes that * * *

accepting what he has done is important to him and his family and he wishes to begin that

process.” Mr. Robertson did not object to his attorney’s characterization of his guilty pleas at the

time.

        {¶12} Following a lengthy plea colloquy, during which Mr. Robertson pleaded guilty to

all 57 counts in the indictment, the trial court determined that he was making his pleas

knowingly, intelligently, and voluntarily. At his original sentencing hearing, Mr. Robertson did

not seek to withdraw his plea. At his resentencing hearing, he did not present any evidence to

support his claims that he had intended to enter an Alford Plea. Accordingly, the trial court did

not abuse its discretion when it determined that this did not constitute a reasonable and legitimate

reason to withdraw his guilty plea.
                                                  6


       {¶13} Given that Mr. Robertson was represented by competent counsel when he made

his pleas, that the trial court engaged in a lengthy colloquy with him at his change of plea

hearing, that it heard his arguments for being allowed to withdraw his plea, and all the additional

facts and circumstances surrounding this case, this Court cannot conclude that the trial court

abused its discretion when it denied Mr. Robertson’s motion to withdraw his pleas. His first

assignment of error is overruled.

                                 ASSIGNMENT OF ERROR II

       “THE RECLASSIFICATION OF DEFENDANT-APPELLANT AS A TIER III
       SEX OFFENDER / CHILD VICTIM OFFENDER UNDER OHIO’S ADAM
       WALSH ACT (AWA) CONSTITUTES REVERSIBLE ERROR, PURSUANT
       TO THE RECENT OHIO SUPREME COURT DECISION IN STATE V.
       BODYKE, 2010-OHIO-2424, WHERE THE TRIAL COURT HAD
       PREVIOUSLY CLASSIFIED DEFENDANT-APPELLANT AS A ‘SEXUAL
       PREDATOR’ UNDER THE APPLICABLE PRE-AWA OHIO STATUTE AND
       WHERE THAT SEXUAL PREDATOR CLASSIFICATION WAS NOT
       CHALLENEGED BY THE DEFENDANT–APPELLANT AND, THEREFORE,
       NOT REVERSED OR MODIFIED BY THE COURT OF APPEALS ON
       DIRECT   APPEAL    OF   DEFENDANT-APPELLANT’S   ORIGINAL
       SENTENCE.”

       {¶14} Mr. Robertson argues that the trial court erred when it attempted to reclassify him

as a Tier III sex offender under the Adam Walsh Act because his original classification as a

sexual predator had not been challenged or reversed. We agree.

       {¶15} “Sex-offender-classification proceedings are civil in nature and legally distinct

from the proceedings governing a defendant’s underlying criminal conviction(s) and sentence.”

State v. Williams, 177 Ohio App.3d 865, 2008-Ohio-3586, at ¶10, citing State v. Wilson, 113

Ohio St.3d 382, 2007-Ohio-2202, syllabus. “Accordingly, in either a defendant’s or a state’s

appeal, an appeal from the defendant’s classification is legally distinct from any appeal regarding

his underlying sentence.” Id. Therefore, a vacation of a defendant’s underlying sentence does

not result in the vacation of the defendant’s sexual-offender classification. Id. at ¶11.
                                                  7


       {¶16} Mr. Robertson’s sexual offender classification was not challenged during his first

appeal and only his criminal sentence was vacated. Accordingly, at his resentencing hearing, his

sexual-offender classification remained intact.       To the extent that the trial court attempted to

reclassify Mr. Robertson under the Adam Walsh Act, its judgment in that respect is vacated.

See, also, State v. Williams, Slip Opinion No. 2011-Ohio-3374, at syllabus (concluding that the

Adam Walsh Act is unconstitutional as applied to defendants who committed sex offenses prior

to its enactment). Mr. Robertson’s second assignment error is sustained.

                                                III.

       {¶17} The trial court did not abuse its discretion when it denied Mr. Robertson’s motion

to withdraw his guilty pleas. The trial court, however, lacked the authority to reclassify him as a

sexual-offender under the Adam Walsh Act. Accordingly, the trial court’s reclassification is

vacated, and Mr. Robertson’s original classification is reinstated. The judgment of the Medina

County Court of Common Pleas is affirmed in part and vacated in part.

                                                                          Judgment affirmed in part,
                                                                               and vacated in part.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Medina, State of Ohio, to carry this judgment into execution. A certified copy

of this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(E). The Clerk of the Court of Appeals is
                                                8


instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                    DONNA J. CARR
                                                    FOR THE COURT



BELFANCE, P. J.
DICKINSON, J.
CONCUR

APPEARANCES:

JOSEPH F. SALZGEBER, Attorney at Law, for Appellant.

DEAN HOLMAN, Prosecuting Attorney, and RUSSELL A. HOPKINS, Assistant Prosecuting
Attorney, for Appellee.
