[Cite as State v. Casey, 2012-Ohio-3740.]


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

STATE OF OHIO                                          C.A. No.      11CA010125

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
JEREMY B. CASEY                                        COURT OF COMMON PLEAS
                                                       COUNTY OF LORAIN, OHIO
        Appellant                                      CASE No.   10CR081885

                                 DECISION AND JOURNAL ENTRY

Dated: August 20, 2012




        BELFANCE, Judge.

        {¶1}     Jeremy Casey appeals from his convictions for drug possession, driving under

suspension, and possession of drug paraphernalia. For the reasons set forth below, we reverse.

                                                  I.

        {¶2}     On July 25, 2011, at a change of plea hearing, Mr. Casey entered a plea of guilty

to drug possession, possession of drug paraphernalia, and driving under suspension. Mr. Casey

moved to withdraw his guilty plea on August 2, 2011, after retaining new counsel. The State did

not file any opposition to the motion. Three months later, the trial court denied Mr. Casey’s

motion at his sentencing hearing and proceeded to sentence him to three years of community

control.

        {¶3}     Mr. Casey has appealed, raising a single assignment of error for our review.
                                                  2


                                                  II.

                                    ASSIGNMENT OF ERROR

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN
       DENYING THE APPELLANT’S MOTION TO WITHDRAW HIS GUILTY
       PLEA PRIOR TO SENTENCING.

       {¶4}    Mr. Casey argues that the trial court erred when it failed to conduct a full hearing

on his presentence motion to withdraw his guilty plea. The State has not filed an appellate brief.

       {¶5}    Crim.R. 32.1, in pertinent part, provides that “[a] motion to withdraw a plea of

guilty or no contest may be made only before sentence is imposed * * *.” “[A] presentence

motion to withdraw a guilty plea should be freely and liberally granted.” State v. Xie, 62 Ohio

St.3d 521, 527 (1992). However, “[a] defendant does not have an absolute right to withdraw a

guilty plea prior to sentencing.” Id. at paragraph one of the syllabus. Nevertheless, while “[t]he

decision to grant or deny a presentence motion to withdraw a guilty plea is within the sound

discretion of the trial court[,]” id. at paragraph two of the syllabus, “[a] trial court must conduct a

hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the

plea.” (Emphasis added.) Id. at paragraph one of the syllabus. See also State v. Wilborn, 9th

Dist. No. 25352, 2011-Ohio-1038, ¶ 8 (“[T]he trial court does not have any discretion regarding

whether it should hold a hearing on a presentence motion to withdraw a plea.”). However, the

trial court is not necessarily required to conduct a full evidentiary hearing. State v. Robertson,

9th Dist. No. 10CA0030-M, 2011-Ohio-4300, ¶ 7.

       {¶6}    Mr. Casey filed his motion to withdraw his plea more than three months prior to

being sentenced, but the trial court did not address his motion until the sentencing hearing. At

the hearing, Mr. Casey’s counsel gave the trial court a general background on the motion,

concluding, “[A]fter speaking with the prosecution, I believe there is no opposition to th[is] as
                                                   3


well.” The prosecutor acknowledged that presentence motions to withdraw should be liberally

granted and made no argument that Mr. Casey should not be allowed to withdraw his plea;

however, the prosecutor did express the preference for continuing directly to sentencing. After

this very brief exchange, the trial court stated, “I’m going to deny the motion to withdraw.

Anything to say before sentencing?” Mr. Casey’s counsel asked the trial court why and the court

responded, “I withdrew it. I’m denying it. What do you have to say before sentencing?”

        {¶7}    Under the circumstances, we cannot say that the trial court conducted the hearing

envisioned by Xie given that it could not have determined whether there was a reasonable basis

for withdrawal of the plea. See Robertson at ¶ 6. See also Xie at paragraph one of the syllabus.

It was inappropriate for the trial court to deny Mr. Casey’s motion without conducting at least

some inquiry into his reasons for seeking to withdraw his plea. However, to the extent Mr.

Casey argues that this Court should determine whether he should be allowed to withdraw his

plea, we disagree. It is appropriate for the trial court to exercise its discretion in the first instance

after conducting a full hearing on the motion. See Klein v. Moutz, 9th Dist. No. 23132, 2006-

Ohio-4974, ¶ 11 (remanding for a trial court to exercise its discretion).

        {¶8}    Mr. Casey’s assignment of error is sustained in part.

                                                  III.

        {¶9}    Mr. Casey’s assignment of error is sustained in part. The judgment of the Lorain

County Court of Common Pleas is reversed, and the matter is remanded for further proceedings

consistent with this opinion.

                                                                                   Judgment reversed,
                                                                                  and cause remanded.
                                                 4




       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.

       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 Appellee.




                                                     EVE V. BELFANCE
                                                     FOR THE COURT



WHITMORE, P.J.
CARR, J.
CONCUR

APPEARANCES:

KENNETH J. LEWIS, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, for Appellee.
