[Cite as State v. Hill, 2013-Ohio-3873.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                              CASE NO. 7-12-11

        v.

MICHAEL D. HILL, JR.,                                    OPINION

        DEFENDANT-APPELANT.




                   Appeal from Henry County Common Pleas Court
                             Trial Court No. 11CR0034

      Judgment Affirmed in Part, Reversed in Part and Cause Remanded

                            Date of Decision: September 9, 2013




APPEARANCES:

        Joanna M. Orth for Appellant

        John H. Hanna for Appellee
Case No. 7-12-11



SHAW, J.

       {¶1} Defendant-appellant, Michael D. Hill, Jr. (“Hill”), appeals the

February 8, 2012 judgment of the Henry County Court of Common Pleas

overruling his pre-sentence motion to withdraw his guilty plea. Hill also appeals

the June 14, 2012 judgment of the same court sentencing him to a prison term of

eighty months.

       {¶2} This appeal arises from the trial court consolidating three separate

cases and handling them together during the trial court proceedings.

       {¶3} On November 14, 2011, pursuant to a negotiated plea agreement and

after a Crim.R. 11 colloquy conducted by the trial court, Hill pleaded guilty to

seven counts of forgery and one count of possession of marijuana. All eight

charges are felonies of the fifth degree. In exchange for Hill pleading guilty, the

prosecution dismissed the remaining thirteen counts listed in the indictments. The

matter was set for sentencing on January 4, 2012.

       {¶4} On January 4, 2012, Hill appeared for sentencing in open court with

trial counsel. At this time, Hill requested leave to file a pre-sentence motion to

withdraw his guilty plea. The trial court inquired of Hill as to his basis for

withdrawing his guilty plea and ordered the parties to file briefs on the issue.

       {¶5} On February 8, 2012, the trial court overruled Hill’s motion to

withdraw his guilty plea.

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       {¶6} On June 12, 2012, the trial court sentenced Hill to serve a prison term

of ten months on each of the eight counts, to be served consecutively for a total

prison term of eighty months.

       {¶7} Hill subsequently filed this appeal, asserting the following

assignments of error.

                        ASSIGNMENT OF ERROR NO. I

       DEFENDANT/APPELLANT’S SENTENCE SHOULD BE
       VACATED AS THE COURT ABUSED ITS DISCRETION IN
       DENYING DEFENDANT/APPELLANT’S MOTION TO
       WITHDRAW HIS GUILTY PLEA.

                        ASSIGNMENT OF ERROR NO. II

       DEFENDANT/APPELLANT’S SENTENCE SHOULD BE
       VACATED AS IT IS EXCESSIVE, UNREASONABLE AND
       CONTRARY TO LAW.

                            First Assignment of Error

       {¶8} In his first assignment of error, Hill claims that the trial court erred

when it overruled his pre-sentence motion to withdraw his guilty plea.

       {¶9} Rule 32.1 of the Ohio Rules of Criminal Procedure 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.”

Generally, a motion to withdraw a guilty plea that is filed prior to sentencing will


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be freely allowed. State v. Drake, 73 Ohio App.3d 640, (1991); State v. Thomas,

3d Dist. No. 1–08–36, 2008–Ohio–6067, ¶ 6.

      {¶10} However, this does not mean that a motion to withdraw a guilty plea

will be granted automatically. Drake, at 645. “A defendant does not have an

absolute right to withdraw a guilty plea prior to sentencing. A trial court must

conduct a hearing to determine whether there is a reasonable and legitimate basis

for the withdrawal of the plea.” State v. Xie, 62 Ohio St .3d 521, at paragraph one

of the syllabus (1992). It is within the sound discretion of the trial court to

determine whether there is a legitimate and reasonable basis for the withdrawal of

a guilty plea and, absent an abuse of discretion, the trial court’s decision on the

matter must be affirmed. Id. at 527. An abuse of discretion is more than an error

of judgment; it implies that the decision was “unreasonable, arbitrary, or

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

      {¶11} Ohio Appellate Courts consider several factors when reviewing a

trial court’s decision to grant or deny a defendant’s pre-sentence motion to

withdraw a plea, including: (1) whether the withdrawal will prejudice the

prosecution; (2) the representation afforded to the defendant by counsel; (3) the

extent of the hearing held pursuant to Crim.R. 11; (4) the extent of the hearing on

the motion to withdraw the plea; (5) whether the trial court gave full and fair

consideration of the motion; (6) whether the timing of the motion was reasonable;

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(7) the stated reasons for the motion; (8) whether the defendant understood the

nature of the charges and potential sentences; and (9) whether the accused was

perhaps not guilty or had a complete defense to the charges. State v. Lane, 3d

Dist. No. 1–10–10, 2010–Ohio–4819, ¶ 21, citing State v. Griffin, 141 Ohio

App.3d 551, 554 (2001).

       {¶12} As previously discussed, Hill entered his guilty plea on November

14, 2011. At that time, the trial court accepted Hill’s guilty plea and set the matter

for sentencing on January 4, 2012. The record indicates that on November 23,

2011, Hill’s girlfriend gave birth to his first child.     When Hill appeared for

sentencing on January 4, 2012, he explained the following as the basis for

withdrawing his guilty plea:

       Trial court: * * * Mr. Hill, obviously, as you understand that in
       any court, that we schedule certain things, whether it’s a trial or
       sentencing, that these are important dates that we tend to want
       to abide by those and stick to those and yet, there is obviously a
       very important aspect of this that when one enters a plea to a
       felony charge, which is a pretty serious matter, that they do so
       knowingly and they do so voluntarily and that for me to simply
       go along and say let’s start this whole process over again, you
       might understand, I need to know why it is that you had that, for
       lack of a better term, change of heart. Could you elaborate on
       that for me?

       Hill: Like [defense counsel] said, a lot of decision on why I made
       the plea at the time was so I could see my son born. I don’t have
       no kids, this is my first.

       Court: Okay.

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      Hill: Also, I’ve been thinking, I’ve admitted to some of the
      things that I’ve done, some of them I haven’t, I don’t want to, I
      have a son to think about now, I don’t want to plead guilty to
      something that I didn’t do, understandably some of it I did and
      I’m willing to take responsibility for that but the ones that I
      didn’t, I don’t want that on my record. I’ve got enough on there
      as it is and I didn’t do it so I want to proceed to trial on some of
      that stuff, on that stuff.

      Trial Court: Okay. So, that I understand your reasons, the day
      you entered your plea, you did so that you would, in effect, still
      be around for when your child was going to be born?

      Hill: Correct.

      Trial Court: That we were set to go to trial was it a due date?

      Hill: That was the due date.

      Defense Counsel: It was the actual day of birth as well.

      Hill: Yes.

      Trial Court: Okay, which was?

      Hill: November 23rd.

      Trial Court: Okay, but as far as the representation, [Defense
      Counsel], what he’s done for you, remember I asked you that
      day, are you satisfied with his services and you’re still satisfied
      with that?

      Hill: Yes, I believe he is.

      Trial Court: And you understood what took place that day?

      Hill: Yes.


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       Trial Court: But you felt pressured to from the aspect of
       wanting to see your child born?

       Hill: Right.

(Jan. 4, 2012 Tr. at 3-5).

       {¶13} In a subsequent brief supporting his motion to withdraw his guilty

plea, Hill stated that he felt “pressured” to enter his guilty plea because his

girlfriend was pregnant and expecting a child on the same day his trial was

scheduled. As an additional basis for his motion, Hill cited his concern regarding

how his son would one day perceive him if he pleaded guilty to the charges.

Notably, nothing in Hill’s brief supported his contention at the hearing that he did

not commit some of the charges to which he pleaded guilty.

       {¶14} In the judgment entry overruling Hill’s motion, the trial court stated

the following:

       After reviewing the file and the transcripts in this matter the
       Court very carefully considered the Defendant’s claims of
       defenses to some of the charges and how he felt pressured into
       entering a plea on November 14, 2011. The Defendant in this
       case was given a full and careful explanation of his rights prior
       to the Court accepting his plea. Further, he was adequately
       represented by legal counsel, who negotiated plea terms that
       resulted in 13 counts of the 20 count indictment to be dismissed.
       In fact the Defendant reaffirmed his satisfaction with his Legal
       Counsel. On January 4, 2012 the Court conducted a hearing on
       the basis of the Defendant’s Motion and granted the Defendant
       and his Legal Counsel an opportunity to elaborate further by
       way of memorandum.


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       It would seem that the Defendant feels differently by virtue of
       his girlfriend having a baby and would like to remain with her
       and the child as opposed to facing the consequences of his plea
       which could involve some incarceration. The other possibility is
       that this is an attempt to further delay the consequence of his
       conduct.     Regardless, the facts before the Court do not
       demonstrate more than a change of heart which * * * would not
       entitle the Defendant to have his Motion granted.

(Doc. No. 42 at 3-4).

       {¶15} Upon our review, we find that the conclusions of the trial court are

supported by the record. Specifically, the record demonstrates that the trial court

provided Hill with a sufficient Crim.R. 11 colloquy, which included the trial court

informing Hill of his constitutional rights, of the nature of charges against him and

of the potential maximum sentence. Moreover, at no time during the change of

plea proceedings did Hill indicate that he felt “pressured” to enter a guilty plea so

that he could be with his newborn son.          In fact, up until Hill appeared for

sentencing nearly two months after entering his guilty plea, there is no mention in

the record of Hill being an expecting father.

       {¶16} With regard to Hill’s claim that he was innocent of the charges, there

is no evidence in the record that Hill professed his innocence to the trial court at

the time he entered the guilty plea. In addition, the record reflects that Hill neither

requested an evidentiary hearing nor did he seek a continuance in order to find

evidence to present.     Other courts have held that “a defendant’s claims of


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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.

Sandusky No. S–05–035, 2006–Ohio–3875, at ¶ 13, citing State v. Powers, 4th

Dist. Pickaway No. 03CA21, 2004–Ohio–2720, at ¶ 18; see also State v. Striblin,

5th Dist. Muskingham No. CT2009-0036, 2010-Ohio-1915, ¶ 18 (stating “the trial

judge must determine whether the claim of innocence is anything more than the

defendant’s change of heart about the plea agreement”).

       {¶17} Moreover, the record establishes that the trial court provided Hill

with an opportunity to address his arguments regarding his reasons for wanting to

withdraw his guilty plea and that the trial court gave full and fair consideration of

Hill’s reasons. Finally, the record also demonstrates that Hill was represented by

competent counsel through the entire process.

       {¶18} Based on the foregoing, we find that the record supports the trial

court’s determination that Hill failed to meet his burden to articulate a reasonable

and legitimate basis for a withdrawal of his guilty plea. Consequently, we cannot

find that the trial court’s decision to overrule Hill’s motion to withdraw his guilty

plea to be an abuse of discretion. Accordingly, Hill’s first assignment of error is

overruled.




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                           Second Assignment of Error

       {¶19} In his second assignment of error, Hill argues that the trial court’s

imposition of consecutive sentences is excessive and constitutes an abuse of

discretion.

       {¶20} Before we address the merits of Hill’s second assignment of error,

we sua sponte raise the issue of whether the trial court addressed the statutory

findings contained in R.C. 2929.14(C)(4), which is a prerequisite to imposing

consecutive sentences.

       {¶21} Section 2953.08(G)(2) of the Revised Code governs our standard of

review for felony sentencing and provides in relevant part:

       The court hearing an appeal * * * shall review the record,
       including the findings underlying the sentence or modification
       given by the sentencing court. The appellate court may increase,
       reduce, or otherwise modify a sentence that is appealed under
       this section or may vacate the sentence and remand the matter to
       the sentencing court for resentencing. The appellate court’s
       standard for review is not whether the sentencing court abused
       its discretion. The appellate court may take any action
       authorized by this division if it clearly and convincingly finds
       either of the following:

       (a) That the record does not support the sentencing court's
       findings under division (B) or (D) of section 2929.13, division
       (B)(2)(e) or (C)(4) of section 2929.14, or division (I) of section
       2929.20 of the Revised Code, whichever, if any, is relevant;

       (b) That the sentence is otherwise contrary to law.



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       {¶22} The revisions to the felony sentencing statues under H.B. 86 now

require a trial court to make specific findings as a prerequisite to imposing

consecutive sentences. See State v. Hites, 3d Dist. Hardin No. 6–11–07, 2012–

Ohio–1892, ¶ 11. Even though H.B. 86 requires the trial court to make findings

before imposing a consecutive sentence, it does not require the trial court to give

its reasons for imposing the sentence. See State v. McKinley, 3rd Dist. Van Wert

No. 15-12-07, 2012-Ohio-6117.       Moreover, while the sentencing court is not

required to use “talismanic words,” it must be clear from the record that the trial

court actually made the statutorily required findings. State v. Alexander, 1st Dist.

Hamilton Nos. C-110828, C-110829 ¶ 16; see also State v. Lebron, 2012–Ohio–

4156, ¶ 11 (8th Dist.).

       {¶23} Appellate courts have held that a trial court’s imposition of

consecutive sentences without making the required R.C. 2929.14(C)(4) findings

constitutes a sentence that is clearly and convincingly contrary to law. See e.g.,

State v. Slane, 10th Dist. Franklin No. 12AP-316, 2013-Ohio-2107 State v. Black,

4th Dist. Ross No. 12CA3327, 2013-Ohio-2105, ¶ 58; State v. Esmail, 7th Dist.

Columbiana No. 11 CO 35, 2013-Ohio-2165; State v. Upkins, 3d Dist. Shelby No.

17-12-13, 2012-Ohio-6114, ¶ 4; State v. Bradley, 5th Dist. Stark No.

2012CA00011, 2012-Ohio-4787, ¶ 45.

       {¶24} Section 2929.14(C)(4) of the Revised Code specifically states that:

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       If multiple prison terms are imposed on an offender for
       convictions of multiple offenses, the court may require the
       offender to serve the prison terms consecutively if the court finds
       that the consecutive service is necessary to protect the public
       from future crime or to punish the offender and that consecutive
       sentences are not disproportionate to the seriousness of the
       offender’s conduct and to the danger the offender poses to the
       public, and if the court also finds any of the following:

       (a) The offender committed one or more of the multiple
       offenses while the offender was awaiting trial or sentencing, was
       under a sanction imposed pursuant to section 2929.16, 2929.17,
       or 2929.18 of the Revised Code, or was under post-release
       control for a prior offense.

       (b) At least two of the multiple offenses were committed as part
       of one or more courses of conduct, and the harm caused by two
       or more of the multiple offenses so committed was so great or
       unusual that no single prison term for any of the offenses
       committed as part of any of the courses of conduct adequately
       reflects the seriousness of the offender’s conduct.

       (c) The offender’s history of criminal conduct demonstrates
       that consecutive sentences are necessary to protect the public
       from future crime by the offender.

       {¶25} Here, there is nothing in the record to indicate that the trial court

made the requisite statutory findings prescribed by R.C. 2929.14(C)(4) either at

the sentencing hearing or in the judgment entry of sentence. Specifically, the trial

court stated the following on the record at the sentencing hearing prior to imposing

a ten month prison term on each of the eight counts to run consecutive for a total

stated prison term of eighty months.



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       The Court would indicate that it’s reviewed at length the pre-
       sentence investigation and has taken into consideration the two
       primary purposes of felony sentencing which are to protect the
       public from future crime by the defendant and to punish the
       defendant for his conduct. The Court has also taken into
       consideration those factors as set forth in 2929.11 and 2929.12 of
       the Revised Code regarding the sentence it is about to impose.

(Sentencing Tr. at 7-8).

       {¶26} In its judgment entry of conviction and sentence, the trial court stated

the following prior to imposing consecutive sentences on Hill.

       The Court considering two (2) primary conditions for
       sentencing, the first being to protect the public and the second to
       punish the defendant for the offenses committed, and
       considering all of the factors set for in Ohio Revised Code
       Sections 2929.11 and 2929.12 and all other appropriate
       sentencing statutes and factors[.]

(Doc. No. 52 at 2).

       {¶27} Based upon our review, we find that there is no clear indication in

the record that the trial court addressed the statutory findings in R.C.

2929.14(C)(4). Therefore, consistent with prior precedent, we conclude that the

trial court’s sentence is clearly and convincingly contrary to law.

       {¶28} Because we have determined that Hill’s sentence is contrary to law

for reasons other than the one raised on appeal, Hill’s second assignment of error

is rendered moot and, therefore, the Court declines to address the issue. See

App.R. 12(A)(1)(c).


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       {¶29} Based on the foregoing, the judgment of the Henry County Court of

Common Pleas is affirmed in part and reversed in part. We further remand this

matter for the limited purpose of resentencing so that the trial court may address

the appropriate findings under R.C. 2929.14(C)(4).

                                                     Judgment Affirmed in Part,
                                                          Reversed in Part and
                                                              Cause Remanded

PRESTON, P.J. and ROGERS, J., concur.

/jlr




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