         [Cite as State v. Kirk, 2014-Ohio-891.]
                 IN THE COURT OF APPEALS
             FIRST APPELLATE DISTRICT OF OHIO
                  HAMILTON COUNTY, OHIO



STATE OF OHIO,                                     :   APPEAL NO. C-130223
                                                       TRIAL NO. B-1207881
        Plaintiff-Appellee,                        :
                                                            O P I N I O N.
  vs.                                              :

JOHN KIRK,                                         :

    Defendant-Appellant.                           :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed and Cause Remanded

Date of Judgment Entry on Appeal: March 12, 2014


Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M.
Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,


J. Rhett Baker, for Defendant-Appellant.




Please note: this case has been removed from the accelerated calendar.
                  OHIO FIRST DISTRICT COURT OF APPEALS




D E W INE , Judge.

       {¶1}     This is an appeal from a conviction that was entered after a guilty

plea to a burglary charge. After the plea, but before sentencing, the victim was

interviewed as part of a court-mandated “presentence-investigation report.” The

report indicates that the victim gave an account that differed from her initial

version of the story. Defendant-appellant John Kirk argues that the trial court

should have dismissed the charge against him at the sentencing hearing because

the victim’s account in the presentence-investigation report was not sufficient to

establish the elements of the offense for which he was convicted. We conclude

that the court did not err when it refused to dismiss the charge based on the

unsworn statement of the victim. The sentencing entry, however, incorrectly

indicates that he was convicted of robbery. We remand the case so that the trial

court may correct its entry to reflect a conviction for burglary.

                                          I.

       {¶2}     Mr. Kirk was indicted for aggravated burglary and robbery based

on Arabia Freeman’s allegations that he had entered her home through an

unlocked window, hit her, thrown her baby on the bed, and stolen her cellular

phone and money. Following a colloquy with the trial court in which Mr. Kirk

admitted the facts of the burglary offense, the court accepted the guilty plea and

set the matter for sentencing in three weeks. The court also ordered that a

presentence-investigation report, including a victim-impact statement, be

completed by the probation department. Ms. Freeman was interviewed as part

of the investigation. During the interview, Ms. Freeman apparently changed her

version of the events that led to Mr. Kirk’s arrest. According to the report, she

claimed that she had broken her own window, that Mr. Kirk had not hit her, and




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                   OHIO FIRST DISTRICT COURT OF APPEALS



that he had not thrown her child. But she still maintained that Mr. Kirk had

taken her phone.

       {¶3}     At the sentencing hearing, the court asked whether Mr. Kirk’s

attorney wanted to say anything about or add to the presentence-investigation

report. Counsel replied he had read the report, particularly the victim-impact

statement, and that based on the report, Mr. Kirk moved for a dismissal of the

charge against him. The court denied the motion and proceeded to sentence Mr.

Kirk to three years’ community control. The court also ordered Mr. Kirk to pay

restitution to Ms. Freeman for her phone.

                                        II.

       {¶4}     In his sole assignment of error, Mr. Kirk asserts that the trial

court erred when it denied his motion to dismiss the robbery charge, in light of

Ms. Freeman’s changed story. Mr. Kirk contends that based upon her new

account, there was not sufficient evidence that he took anything with the force

necessary to establish the offense of robbery. It is clear from the transcript and

the plea form, however, that Mr. Kirk pleaded guilty to and was sentenced for

burglary, not robbery. As part of the plea agreement, the state dismissed the

robbery count. We consider therefore whether the court should have dismissed

the burglary charge in light of Ms. Freeman’s changed story.

       {¶5}     It is significant that Mr. Kirk’s counsel, who stated that he had

read the presentence-investigation report, including the victim-impact

statement, did not move to withdraw Mr. Kirk’s guilty plea. Had Mr. Kirk made

a presentence motion to withdraw his plea, the court could have held a hearing in

which it could have placed Ms. Freeman under oath, determined whether she

had, in fact, made the statement attributed to her in the report, and evaluated her

credibility. See Crim.R. 32.1; State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715



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                  OHIO FIRST DISTRICT COURT OF APPEALS



(1992), paragraph one of the syllabus. Instead of a motion to withdraw his plea,

however, Mr. Kirk moved to dismiss the charge against him. The trial court,

faced with Ms. Freeman’s unsworn statement and Mr. Kirk’s knowing, intelligent

and voluntary guilty plea to burglary, properly denied the motion to dismiss. We

therefore overrule the sole assignment of error.

                                       III.

       {¶6}     We note, however, that the trial court’s judgment entry

incorrectly indicates that Mr. Kirk’s conviction was for robbery. We therefore

remand the matter to the trial court so that it can correct its judgment entry by

nunc pro tunc entry to indicate the actual offense for which Mr. Kirk was

convicted.

                                        Judgment affirmed and cause remanded.


D INKELACKER , P.J., and F ISCHER , J., concur.


Please note:

       The court has recorded its own entry on the date of the release of this
opinion.




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