[Cite as State v. West, 2018-Ohio-1176.]


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

STATE OF OHIO                                         C.A. No.     17CA011110

        Appellee

        v.                                            APPEAL FROM JUDGMENT
                                                      ENTERED IN THE
DAVID LEE WEST                                        COURT OF COMMON PLEAS
                                                      COUNTY OF LORAIN, OHIO
        Appellant                                     CASE No.   16CR093382

                                 DECISION AND JOURNAL ENTRY

Dated: March 30, 2018



        CARR, Judge.

        {¶1}     Defendant-Appellant David West appeals from the judgment of the Lorain

County Court of Common Pleas. This Court affirms.

                                                 I.

        {¶2}     In March 2016, an indictment was filed alleging that West failed to register a

change of address. West ultimately pleaded guilty to the charge. At the plea hearing, the trial

court informed West that he needed to show the trial court that he could be successful on

community control. To do so, the trial court indicated that West must do several things before he

returned for sentencing, one of which was to follow the law.

        {¶3}     At the sentencing hearing, prior to imposing sentence, West, West’s counsel, and

the State were all given an opportunity to speak. See Crim.R. 32(A). The State informed the

trial court that, in the interim between the plea and sentencing hearing, West “got[] into more

trouble[.]” The trial court then reminded West of what the trial court told West at the plea
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hearing and began discussing the relevant sentencing statutes. Immediately after the trial court

began imposing a prison sentence, instead of placing West on community control, West’s

counsel indicated that West wished to withdraw his former plea. The trial court summarily

denied the motion without a hearing. Immediately after the trial court denied the motion,

defense counsel interrupted and asked to speak further for the record. The trial court told

defense counsel to proceed.      Defense counsel then merely reiterated that West wished to

withdraw his plea but did not provide a reason why West wished to do so. Additionally, defense

counsel did not request an evidentiary hearing. The trial court then proceeded to sentence West

to 10 months in prison.

       {¶4}    West has appealed, raising a single assignment of error for our review.

                                                II.

                                  ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED IN REFUSING TO ALLOW WEST TO
       WITHDRAW HIS GUILTY PLEA.

       {¶5}    West argues in his sole assignment of error that the trial court erred in denying

West’s motion to withdraw his guilty plea. While his stated assignment of error is broadly

worded, the substance of his argument is actually very limited. West maintains that his motion

should be viewed as a pre-sentence motion. Thus, because of that, he maintains that the trial

court was required to hold a hearing on his motion. Accordingly, because the trial court failed to

hold a hearing, he maintains this Court is required to remand the matter for a hearing.

       {¶6}    Crim.R. 32.1 provides that, “[a] motion to withdraw a plea of guilty or no contest

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.” “An appellate court reviews a trial court’s order denying a motion to withdraw a
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guilty plea for an abuse of discretion.” State v. Robinson, 9th Dist. Summit No. 28065, 2016-

Ohio-8444, ¶ 9. “While a defendant does not have an absolute right to withdraw a guilty plea

prior to sentencing, the trial court must conduct a hearing to ascertain whether the motion has a

reasonable and legitimate basis.” (Emphasis sic.) State v. Ross, 9th Dist. Summit Nos. 26523,

26524, 2013-Ohio-3220, ¶ 12. However, this Court has concluded that a hearing on a post-

sentence motion to withdraw a plea is not always required. See State v. Cargill, 9th Dist. Nos.

27011, 27590, 2015-Ohio-661, ¶ 11.

       {¶7}   Both West and the State proceed under the notion that West’s motion should be

treated as a pre-sentence motion. However, under the unique facts of this case, we disagree. In

State v. Gordon, 9th Dist. Summit No. 25317, 2011-Ohio-1045, this Court favorably cited State

v. McComb, 2d Dist. Montgomery Nos. 22570, 22571, 2009-Ohio-295. See Gordon at ¶ 10-11.

In McComb, the Second District discussed the policy reasons behind having different standards

for motions to withdraw based upon the timing of the motion:

       This distinction rests upon practical considerations important to the proper
       administration of justice. Before sentencing, the inconvenience to court and
       prosecution resulting from a change of plea is ordinarily slight as compared with
       the public interest in protecting the right of the accused to trial by jury. But if a
       plea of guilty could be retracted with ease after sentence, the accused might be
       encouraged to plead guilty to test the weight of potential punishment, and
       withdraw the plea if the sentence were unexpectedly severe.

(Internal quotations and citations omitted.) McComb at ¶ 6. Thus, because it would implicate

the above policy concerns, “[w]hile technically occurring before sentence, a motion made after

learning of the imminent sentence is considered to be filed after sentencing.” Gordon at ¶ 10,

quoting McComb at ¶ 7.

       {¶8}   Here, only after it became clear that the trial court was in the process of

sentencing West to prison, as opposed to community control, did West move to withdraw his
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plea. Under these circumstances we conclude that West’s motion should be treated as a post-

sentence motion. See McComb at ¶ 7. We acknowledge that West points to Ross as being

comparable to his case and thus argues that it supports that a hearing is required. However,

because we determine this case is distinguishable from Ross, we disagree.

       {¶9}    In Ross, during the plea hearing, the State recommended that Ross receive a total

sentence of 6 months. Id. at ¶ 2. The trial court began a sentencing hearing in April but

ultimately continued it until the end of May. Id. at ¶ 14. At that initial hearing, due to Ross’s

failure to appear, the trial court noted that Ross could be subject to 24 months in prison. Id. at ¶

3. Prior to the continuation of the hearing, Ross moved to withdraw his plea, arguing that the

trial court indicated at the initial sentencing hearing that it would not follow the prosecutor’s

sentencing recommendation, that Ross was not guilty of one of the charges, and that he only

agreed to the plea deal because of the recommended sentence. Id. at ¶ 14. Prior to the

continuation of the sentencing hearing, the trial court denied the motion to withdraw without

holding a hearing. Id. The trial court sentenced Ross to a total sentence of 22 months in prison.

Id. at ¶ 3. In resolving the appeal, this Court ultimately concluded that Ross’s motion was a pre-

sentence motion and that the trial court was required to hold a hearing on that motion. See id. at

¶ 16-18.

       {¶10} Ross is similar to the instant matter in that, like the trial court in Ross, the trial

court in West’s case had not finished sentencing West at the time West moved to withdraw his

plea. See Ross at ¶ 14-15. However, unlike the situation in Ross, at the time West moved to

withdraw his plea, the trial court had begun to impose a prison sentence. There is no indication

that the same is true of Ross. Accordingly, we determine Ross is distinguishable from this matter

and that West’s motion should be treated as though it were a post-sentence motion.
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       {¶11} West’s argument is premised on the idea that his motion should have been viewed

as a pre-sentence motion, which would mandate that the trial court hold a hearing on the motion.

See Ross, 2013-Ohio-3220, at ¶ 12, citing State v. Xie, 62 Ohio St.3d 521, 527 (1992); see also

Ross at ¶ 17. West has not developed any argument explaining why, if the motion were treated

as a post-sentence motion, the trial court should have been required to hold a hearing, or

explained how the trial court abused its discretion in denying the motion given the post-sentence

standard. See App.R. 16(A)(7). It is not this Court’s duty to develop West’s argument for him.

See Cardone v. Cardone, 9th Dist. Summit Nos. 18349, 18673, 1998 Ohio App. LEXIS 2028,

*22 (May 6, 1998). Consequently, West has failed to demonstrate that the trial court abused its

discretion in denying his motion without a hearing.

       {¶12} In light of West’s limited argument on appeal, his assignment of error is

overruled.

                                                III.

       {¶13} West’s assignment of error is overruled. The judgment of the Lorain County

Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       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 Lorain, 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.
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       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(C). The Clerk of the Court of Appeals is

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



HENSAL, P. J.
CALLAHAN, J.
CONCUR.


APPEARANCES:

BRIAN J. DARLING, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellee.
