[Cite as State v. Kelly, 2011-Ohio-2555.]


                                         COURT OF APPEALS
                                        STARK COUNTY, OHIO
                                     FIFTH APPELLATE DISTRICT


                                                :   JUDGES:
STATE OF OHIO                                   :   W. Scott Gwin, P.J.
                                                :   Sheila G. Farmer, J.
                          Plaintiff-Appellee    :   Julie A. Edwards, J.
                                                :
-vs-                                            :   Case No. 2010CA00222
                                                :
                                                :
SARAH KELLY                                     :   OPINION

                     Defendant-Appellant




CHARACTER OF PROCEEDING:                             Criminal Appeal from Stark County
                                                     Court of Common Pleas Case No.
                                                     2009CR1890

JUDGMENT:                                            Affirmed

DATE OF JUDGMENT ENTRY:                              May 23, 2011

APPEARANCES:

For Plaintiff-Appellee                               For Defendant-Appellant

JOHN D. FERRERO                                      TAMMI R. JOHNSON
Prosecuting Attorney                                 Stark County Public Defender’s Office
Stark County, Ohio                                   200 W. Tuscarawas Street, Ste. 200
                                                     Canton, Ohio 44702
BY: KATHLEEN O. TATARSKY
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South, Ste. 510
Canton, Ohio 44702-1413
[Cite as State v. Kelly, 2011-Ohio-2555.]


Edwards, J.

        {¶1}     Appellant, Sarah Kelly, appeals a judgment of the Stark County Common

Pleas Court overruling her motion to withdraw her guilty plea to identity fraud (R.C.

2913.49(B)(1)) and misuse of credit cards (R.C. 2913.21(B)(2)). Appellee is the State of

Ohio.

                                     STATEMENT OF FACTS AND CASE

        {¶2}     According to the Bill of Particulars and discovery filed by the State in the

instant case, from September 1, 2009, to November 21, 2009, appellant used the

driver’s license and social security number of Michelle Krantz without Krantz’s

permission. Appellant admitted to using the operator’s license and social security card.

Appellant also used Krantz’s credit card to pay her cell phone bill.            In a written

statement to police, appellant stated that while vacationing with her friend Amy in South

Carolina, Amy gave her Krantz’s credit card number to pay her cell phone bill. She

stated that Amy told her Greg and Sandy Krantz were aware that she used Michelle’s

credit card and were fine with her paying them back slowly or doing work on their house

to pay them back. Appellant stated that “apparently” the credit card company saved the

number and charged the card again. She also admitted to using Krantz’s identification,

claiming her friend Amy told her that it belonged to her future sister-in-law, and she

wanted her to use it to help drive to and from South Carolina.

        {¶3}     Appellant was indicted by the Stark County Grand Jury with one count of

identity fraud and one count of misuse of credit cards. On January 26, 2010, she

pleaded guilty to the charges. On February 19, 2010, appellant failed to appear for a
Stark County App. Case No. 2010CA00222                                                   3


sentencing hearing and a capias was issued for her arrest. She was arrested and

returned to the court for sentencing on June, 14, 2010.

      {¶4}    At the sentencing hearing, appellant made an oral motion to withdraw her

plea, claiming she had permission to use the identity information and credit card and,

therefore, was not guilty. The trial court denied her motion, stating that he was satisfied

that her plea was knowing, intelligent and voluntary. The court further indicated that she

did not appear for her sentencing hearing and a capias had to be issued for her arrest.

He also noted that after entering the plea of guilty, she committed the crime of escape in

Summit County.

      {¶5}    The judge then proceeded to sentencing. Appellant continued to maintain

that she had the permission of the victims but they apparently changed their mind. She

also stated that she wanted to be a part of her sister’s wedding party in August and

asked the judge to take that into consideration. She also stated that if the court “did

happen to sentence” her, she’d like a long enough sentence to take advantage of a

program in Marysville because “if I am sentenced to like 12 months or less, I think, I am

not able to take advantage of anything, to my understanding.” Tr. 8.

       {¶6}   Appellant was sentenced to eleven months incarceration for identity fraud

and six months incarceration for misuse of a credit card, to be served concurrently with

each other but consecutively to the prison term imposed by Summit County, for a total

term of seventeen months incarceration. She assigns a single error:

       {¶7}   “THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO

WITHDRAW HER GUILTY PLEA.”
Stark County App. Case No. 2010CA00222                                                   4


      {¶8}   Appellant concedes in her brief the court complied with Crim. R. 11 in

accepting her plea. However, she argues generally that motions to withdraw a plea

prior to sentencing should be liberally granted, citing State v. Xie (1992), 62 Ohio St.3d

521, 584 N.E.2d 715.

      {¶9}   In Xie, the Ohio Supreme Court held:

      {¶10} “We agree that a presentence motion to withdraw a guilty plea should be

freely and liberally granted. Nevertheless, it must be recognized that a defendant does

not have an absolute right to withdraw a plea prior to sentencing. Therefore, the trial

court must conduct a hearing to determine whether there is a reasonable and legitimate

basis for the withdrawal of the plea. In this case, the trial court held such a hearing, at

which it carefully considered Xie's motion and all the circumstances surrounding the

entering of the plea. Absent an abuse of discretion on the part of the trial court in

making the ruling, its decision must be affirmed. For us to find an abuse of discretion in

this case, we must find more than an error of judgment. We must find that the trial

court's ruling was ‘unreasonable, arbitrary or unconscionable.’ State v. Adams (1980),

62 Ohio St.2d 151, 157, 16 O.O.3d 169, 173, 404 N.E.2d 144, 149.” Id. at 527.

      {¶11} The Ohio Supreme Court found that the trial court in Xie did not abuse its

discretion in overruling the motion to withdraw a plea prior to sentencing where the

defendant was given misinformation about parole eligibility.

      {¶12} In the instant case, the court did not abuse its discretion in overruling

appellant’s oral motion to withdraw her plea. While she represented to the court that

she had permission to use the identity and credit card of the victim, she presented no
Stark County App. Case No. 2010CA00222                                           5


witnesses or other evidence to support her claim.      She committed another crime

between her plea and sentencing hearings, and failed to appear for sentencing.

      {¶13} The assignment of error is overruled.

      {¶14} The judgment of the Stark County Common Pleas Court is affirmed.




By: Edwards, J.

Gwin, P.J. and

Farmer, J. concur

                                                 ______________________________



                                                 ______________________________



                                                 ______________________________

                                                             JUDGES

JAE/r0208
[Cite as State v. Kelly, 2011-Ohio-2555.]


                 IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO

                                     FIFTH APPELLATE DISTRICT


STATE OF OHIO                                     :
                                                  :
                             Plaintiff-Appellee   :
                                                  :
                                                  :
-vs-                                              :       JUDGMENT ENTRY
                                                  :
SARAH KELLY                                       :
                                                  :
                         Defendant-Appellant      :       CASE NO. 2010CA00222




       For the reasons stated in our accompanying Memorandum-Opinion on file, the

judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to

appellant.




                                                      _________________________________


                                                      _________________________________


                                                      _________________________________

                                                                   JUDGES
