[Cite as State v. Bloom, 2012-Ohio-3805.]


                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                       No. 97535




                                      STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.



                                   ROBERT J. BLOOM
                                                            DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED


                                   Criminal Appeal from the
                            Cuyahoga County Court of Common Pleas
                                     Case No. CR-552802

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

        RELEASED AND JOURNALIZED:                     August 23, 2012
ATTORNEY FOR APPELLANT

Stephen L. Miles
20800 Center Ridge Road
Suite 211
Rocky River, Ohio 44116


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor

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

        {¶1} Defendant-appellant, Robert Bloom, appeals the trial court’s denial of his

presentence motion to withdraw his guilty plea and his sentence.       We affirm.

        {¶2} In 2011, Bloom was charged in a 16-count indictment with multiple counts of

felonious assault, discharging a firearm on or near a prohibited premises, and improperly

discharging into or at a habitation; all counts were accompanied by gun specifications.

The charges pertained to two incidents that occurred a few hours apart on the evening of

June 8, 2011, and the morning of June 9, 2011.

        {¶3} The matter proceeded to a jury trial, but shortly after the jury was impaneled

and sworn, Bloom decided to plead guilty.       Pursuant to a plea agreement with the state,

Bloom pleaded guilty to one count of felonious assault with a one-year gun specification,

one count of felonious assault with a three-year gun specification, and one count of

improperly discharging into or at a habitation with a three-year gun specification.       The

trial court continued the matter for sentencing until later in the day.

        {¶4} At the sentencing hearing, the state gave its recitation of the facts of the case:

 On June 8, 2011, Bloom and his co-defendant, Jesse Lester, were drinking at a friend’s

house on West 119th Street in Cleveland. Lester got into an argument with some people

across the street. Bloom told Lester to get his AK-47 assault rifle out of the car and load

it.   Lester began firing the weapon at the house across the street.
       {¶5} Bloom and Lester left, but returned early the next morning to the same area.

One of the men used the rifle to shoot at the same house as earlier in the night, but bullets

also struck two other houses, and injured an unintended victim.

       {¶6} When the court reconvened for Bloom’s sentencing hearing, defense counsel

made an oral motion to withdraw Bloom’s guilty plea.      The trial court held a hearing and

subsequently denied the motion. The trial court sentenced Bloom to a total of ten years

in prison.

       {¶7} Bloom now appeals, raising the following two assignments of error for our

review, as quoted:

       I. The trial court committed prejudicial error when it denied the
       appellant’s motion to withdraw his guilty plea prior to sentencing.

       II.   The trial court erred by sentencing the appellant to consecutive

       sentences.

                                        Guilty Plea

       {¶8} In the first assignment of error, Bloom argues that the trial court erred when it

denied his presentence motion to withdraw his guilty pleas.

       {¶9} A motion to withdraw a guilty plea is governed by the standards set forth in

Crim.R. 32.1, which 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.”

       {¶10} Generally, motions to withdraw guilty pleas before sentencing are to be
freely and liberally allowed. State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831,

935 N.E.2d 9, ¶ 57, citing State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992);      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.   Xie at 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. at 527. The decision to grant or deny such a motion is

within the sound discretion of the trial court. Id.

       {¶11} In Peterseim, this court set forth the standard for determining whether the

trial court has abused its discretion in denying a presentence motion to withdraw a plea:

       A trial court does not abuse its discretion in overruling a motion to
       withdraw: (1) where the accused is represented by highly competent
       counsel, (2) where the accused was afforded a full hearing, pursuant to
       Crim.R. 11, before he entered the plea, (3) when, after the motion to
       withdraw is filed, the accused is given a complete and impartial hearing on
       the motion, and (4) where the record reveals that the court gave full and fair
       consideration to the plea withdrawal request.

Id. at paragraph three of the syllabus.

       {¶12} A review of the record in this case demonstrates that the trial court fully

complied with the Peterseim criteria. During the hearing on the motion to withdraw

Bloom’s guilty pleas, the trial court noted that Bloom was represented by competent

counsel throughout the proceedings. Although Bloom contends that his relationship

with defense counsel was “tenuous” and he had at one point asked for a new attorney,
Bloom expressly told the trial court that he was satisfied with his attorney at the plea

hearing.

       {¶13} The record also demonstrates that Bloom was afforded a proper plea hearing

in accordance with Crim.R. 11.      Bloom concedes that he was afforded a full hearing

pursuant to Crim.R. 11, but argues that the trial court erred in denying his motion to

withdraw when he maintained his claim of innocence.          In State v. Abdelhag, 8th Dist.

No. 71136, 1997 Ohio App. LEXIS 3394, *10 (July 31, 1997), this court noted that a

defendant’s protestations of innocence are not sufficient, however frequently repeated, to

warrant grounds for vacating a plea knowingly entered.        “By inference, all defendants

who request a withdrawal of their guilty plea do so based upon some claim of innocence.

* * * A mere change of heart regarding a guilty plea and the possible sentence is

insufficient justification for the withdrawal of a guilty plea.” Id. at *11.

       {¶14} Bloom’s contention, made a few hours after his plea hearing, that he did not

commit the crime is not sufficient to warrant the withdrawal of a guilty plea where, as in

this case, the record supports the trial court’s finding that he entered his plea voluntarily,

knowingly, and intelligently.

       {¶15} Finally, the record reflects that the trial court afforded Bloom an impartial

hearing on his motion to withdraw his guilty pleas and gave full and fair consideration to

his request. Thus, because all four prongs set forth in Peterseim were satisfied, the trial

court did not abuse its discretion in denying Bloom’s presentence motion to withdraw his

guilty pleas.
       {¶16} The first assignment of error is overruled.

                                  Consecutive Sentences

       {¶17} In the second assignment of error, Bloom argues that the trial court

improperly sentenced him to consecutive sentences without making the proper findings.

       {¶18} The General Assembly recently amended former R.C. 2929.14(E)(4),

renumbered R.C. 2929.14(C)(4), and enacted new language requiring fact-finding for

consecutive sentences.    Am.Sub.H.B. No. 86.     Because Bloom was sentenced after the

statute took effect, the trial court was required to sentence him according to the revisions

implemented in H.B. 86.

       {¶19} R.C. 2929.14(C)(4) provides, in relevant part:

       (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:

       ***

       (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.
       {¶20} In this case, the trial court articulated the appropriate findings required by

R.C. 2929.14(C)(4) both on the record at the sentencing hearing and in the judgment entry

of conviction and sentence.

       {¶21} At the sentencing hearing, the court noted that it was complying with the

purposes and principles of sentencing pursuant to R.C. 2929.11(A). The court stated

that the overriding purpose in sentencing Bloom was to punish him for his conduct and

protect the public from future crime using the minimum sanctions so as not to impose an

unnecessary burden on state or local resources.       The court further mentioned it was

“considering the need for incapacitation, deterrence, rehabilitation, and restitution.”   As

to imposing consecutive sentences, the trial court specifically noted the following: (1)

consecutive sentences would not demean the seriousness of the offense; (2) consecutive

sentences were necessary based on Bloom’s course of conduct and the harm caused to the

victim; (3) consecutive prison terms were necessary to protect the public and punish

Bloom; (4) the consecutive sentences were not disproportionate to the crimes he

committed; (5) the crimes were committed at separate times; (6) and Bloom had a

criminal history that included guns.

       {¶22} Based on the record before us, we find that the trial court complied with

R.C. 2929.14(C)(4) in sentencing Bloom to consecutive sentences.

       {¶23} The second assignment of error is overruled.

       {¶24} 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

MARY J. BOYLE, J., CONCURS;
PATRICIA ANN BLACKMON, A.J., CONCURS
IN JUDGMENT ONLY
