[Cite as State v. Carey, 2012-Ohio-3359.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97444




                                       STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.



                                            KIRK CAREY
                                                            DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-536537

        BEFORE:          Jones, J., Blackmon, A.J., and Keough, J.

        RELEASED AND JOURNALIZED:                     July 26, 2012
ATTORNEY FOR APPELLANT

Thomas A. Rein
Leader Building
Suite 940
526 Superior Avenue
Cleveland, Ohio 44114


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

BY: Carrie Heindrichs
Assistant County Prosecutor
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
LARRY A. JONES, SR., J.:

          {¶1} Defendant-appellant, Kirk Carey, appeals from the trial court’s decision to

deny his request to withdraw his plea.     Carey also appeals his 13-year sentence.     We

affirm.

                                Procedural History and Facts

          {¶2} In April 2010, Carey was indicted on several charges.   In September 2011,

after he was found competent to stand trial, Carey pleaded guilty to amended Counts 1

and 8 of the indictment, aggravated robbery each with one-year firearm specifications.

As part of the plea agreement, the state and defense agreed that the two counts would not

merge for the purpose of sentencing.       The remaining counts of the indictment were

nolled.

          {¶3} Sentencing took place on October 5, 2011. During the hearing, prior to the

trial court imposing sentence, Carey requested that he be allowed to withdraw his plea.

The trial court denied his request.    The court sentenced him to a 13-year prison term,

which consisted of five years on Count 1, six years on Count 8, one year on each of the

firearm specifications, with both counts and specifications to run consecutively.

          {¶4} The facts that gave rise to the charges involved two robberies Carey

committed four days apart, in broad daylight.     The first robbery occurred in Lakeview

Cemetery and involved a family.        The parents, along with their 7- and 12-year old

daughters, were visiting the cemetery and the mother was taking photographs.          Carey
approached the husband and asked if he could use his phone. The husband told him that

his phone was dead; Carey then demanded the husband’s money. Carey had a gun in his

waistband and told the husband “don’t make me use this.” After the husband gave

Carey all his money, Carey demanded the keys to the family’s vehicle.       Carey drove off

in the family’s car, which had in it approximately $12,000 worth of photography

equipment, as well as other personal effects belonging to the family.

       {¶5} The second robbery occurred on Coventry Road in Cleveland Heights.

Carey approached the victim, robbed him at gunpoint, got his car keys, and fled the scene

in the victim’s vehicle.

       {¶6} Carey now assigns the following errors for our review:

       [I.] The trial court erred in not allowing Appellant to withdraw his guilty
       plea prior to sentencing.

       [II.] Appellant did not enter his guilty plea knowingly, intelligently, or
       voluntarily because the trial court failed to properly inform him of his rights
       as required by Crim.R. 11(C)(2)(b), as it did not specifically inform that the
       court, upon acceptance of the plea, may proceed to with judgment and
       sentence.

       [III.] Appellant’s sentences are contrary to law.

                                     Law and Analysis

       {¶7} For his first assigned error, Carey contends that the trial court’s denial of his

request to withdraw his plea was an abuse of discretion. For his second assigned error,

Carey contends that his plea was not knowingly, intelligently, and voluntarily made

because the trial court did not inform that upon acceptance of the plea, the court may

proceed with judgment and sentence.     We disagree.
       {¶8} Under Crim.R. 32.1, “[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.”    This court has treated a motion to withdraw a plea made at

the sentencing hearing, prior to the court imposing a sentence, as a presentence motion.

See, e.g., State v. Clere, 187 Ohio App.3d 682, 2010-Ohio-2884, 933 N.E.2d 333 (8th

Dist.), ¶ 15-16; State v. Nicholson, 8th Dist. No. 91652, 2009-Ohio-3592, ¶ 26, 29; State

v. Nicholson, 8th Dist. No. 82825, 2004-Ohio-2394, ¶ 6-7. This court has further held

that a defendant’s motion to withdraw a guilty plea need not be written. Nicholson, at ¶

8 (“Defendant’s oral motion on the day of sentencing was * * * adequate.”)

       {¶9} The general rule is that motions to withdraw guilty pleas before sentencing

are to be freely and liberally allowed. State v. Peterseim, 68 Ohio App.2d 211, 214, 428

N.E.2d 863 (8th Dist.1980), citing Barker v. United States, 579 F.2d 1219, 1223 (10th

Cir.1978). However, a defendant does not have an absolute right to withdraw a guilty

plea prior to sentencing. State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992),

paragraph one of the syllabus.   In ruling on a presentence motion to withdraw a plea, the

court must conduct a hearing and decide whether there is a reasonable and legitimate

basis for withdrawal of the plea. Id. The decision to grant or deny such a motion is

within the sound discretion of the trial court. Id. at paragraph two of the syllabus.

       {¶10} The record here demonstrates that at the beginning of the sentencing hearing

the trial court asked the parties if there was any reason not to proceed.   Carey’s attorney
responded “no.”    The trial court then allowed the state to proceed, and the assistant

prosecuting attorney discussed the severity of the crimes and Carey’s extensive criminal

history. Carey’s attorney then spoke on his behalf. One of the victims spoke next

about the impact of the crime on himself and his family. Carey then had the opportunity

to address the court and began by apologizing for his actions. Carey then disputed one

of his prior convictions, and after the court told him that “[i]t’s uncontroverted that you

have that robbery conviction in Summit County,” Carey asked to withdraw his plea; the

court denied his request.

       {¶11} On this record, we find that Carey merely had a change of heart, which is

not a sufficient ground to withdraw a plea. State v. Deloach, 2d Dist. No. 21422,

2006-Ohio-6303, ¶ 17.       The record here demonstrates that Carey was represented by

counsel who competently advocated on his behalf throughout the proceedings. Further,

our review of the record shows that the trial court complied with the constitutional and

procedural safeguards contained within Crim.R. 11. We overrule Carey’s argument that

his plea was invalid because the trial court failed to inform him that upon acceptance of

his plea the court could immediately proceed to judgment and sentence.       Carey was not

immediately sentenced; rather sentencing occurred approximately two weeks after the

plea, after a presentence investigation report had been completed.    Carey, therefore, was

not prejudiced by the court’s omission.         See State v. Johnson, 11th Dist. No.

2002-L-024, 2004-Ohio-331, ¶ 20.

       {¶12} In light of the above, the first and second assignments of error are overruled.
       {¶13} In his final assignment of error, Carey contends that the trial court erred in

sentencing him to consecutive terms.

       {¶14} We review felony sentences under the standard set forth in State v. Kalish,

120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. First, we examine the sentencing

court’s compliance with all applicable rules and statutes in imposing the sentence to

determine whether the sentence is clearly and convincingly contrary to law.     If this first

prong is satisfied, the trial court’s decision is then reviewed under an abuse-of-discretion

standard.

       {¶15} Through the enactment of H.B. 86, the General Assembly recently amended

Ohio’s sentencing statutes.   H.B. 86 became effective on September 30, 2011, and Carey

was sentenced on October 5, 2011; therefore, the amendments were applicable to him.

Relative to this appeal, the revisions under H.B. 86 now require a trial court to make

specific    findings   when   imposing   consecutive    sentences.     Specifically,   R.C.

2929.14(C)(4) provides as follows:

       (4) 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.

      {¶16} In sentencing Carey, the trial court stated in relevant part the following:

      You have a long criminal history. And it’s surprising in some respects to
      see that it looks like it’s escalating with your age rather than de-escalating.

      You do have an extensive record. I believe you’ve been to prison on at
      least 8 separate occasions. You have violated supervision when placed on
      supervision. I take exception to the fact that you say that they have been
      all petty — I think is the word you used — offenses.

      ***
      This is bad conduct. You’ve been sent to prison for years and years.

      ***

      But this is a public safety issue. And after doing that to this family and
      taking their car, 4 days later another robbery with a gun on a public busy
      street. You’re dangerous. You have a high risk of re-offending. * * *

      ***

      And I know that your attorney is begging for concurrent time. I’m making
      a finding that I do not believe, given the factors I’ve stated on the record
      here today, such as the seriousness of the offense [and] the danger posed by
      you, that that is an appropriate sentence to impose. And that is the finding
      that I make and I’ve given reasons for it, as well.

      {¶17} On this record, we find that the trial court made the statutorily mandated

findings for the imposition of consecutive sentences. The third assignment of error is

therefore overruled.
      {¶18} Judgment affirmed.

      It is ordered that appellee recover from appellant costs herein taxed.

      The court finds there were reasonable grounds for this appeal.

      It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s conviction having

been affirmed, any bail pending appeal is terminated.     Case remanded to the trial court

for execution of sentence.




      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




LARRY A. JONES, SR., JUDGE

PATRICIA ANN BLACKMON, A.J., and
KATHLEEN ANN KEOUGH, J., CONCUR
