[Cite as State v. Creed, 2012-Ohio-2627.]



                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 97317




                                       STATE OF OHIO
                                                     PLAINTIFF-APPELLEE

                                               vs.

                                            JIM CREED
                                                     DEFENDANT-APPELLANT




                                            JUDGMENT:
                                             AFFIRMED



                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-548666

        BEFORE:          Celebrezze, P.J., Cooney, J., and Keough, J.

        RELEASED AND JOURNALIZED:                    June 14, 2012
ATTORNEY FOR APPELLANT

James E. Valentine
323 Lakeside Avenue
Suite 450
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

William D. Mason
Cuyahoga County Prosecutor
BY: Jennifer A. Driscoll
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., P.J.:

         {¶1} On reconsideration, the original announcement of State v. Creed, 8th Dist.

No. 97317, 2012-Ohio-2305, released on May 24, 2012, is hereby vacated. We find it

necessary to vacate that opinion because of our misstatement regarding the punitive

nature of R.C. Chapter 2950 following the Ohio Supreme Court’s decision in State v.

Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952 N.E.2d 1108. Nevertheless, for the

reasons discussed below, we reach the same outcome and affirm the judgment of the trial

court.

         {¶2} On April 20, 2011, the Cuyahoga County Grand Jury returned a 15-count

indictment against defendant-appellant, Jim Creed. The charges included five counts of

rape in violation of R.C. 2907.02(A)(1)(b); five counts of gross sexual imposition in

violation of R.C. 2907.05(A)(4); and five counts of kidnapping in violation of

R.C. 2905.01(A)(4). All counts included sexually violent predator specifications, and the

kidnapping counts contained additional sexual motivation specifications.

         {¶3} On July 15, 2011, appellant entered a plea of guilty to three counts of sexual

battery, as amended from rape, in violation of R.C. 2907.03(A)(1), a felony of the third

degree, without sexually violent predator         specifications.   All other counts were

dismissed by the state.
       {¶4} Prior to the sentencing hearing, appellant, through counsel, filed a motion to

withdraw his guilty plea. In his motion, appellant argued that he felt pressure from his

attorney to enter the guilty plea and that he did not understand the ramifications of his

plea because he was “confused and bewildered” throughout the proceedings.

       {¶5} On August 11, 2011, the trial court held a hearing on appellant’s motion to

withdraw. At the conclusion of the hearing, the trial court denied the withdrawal motion,

finding that appellant “had absolutely no credibility in this matter” and that allowing

appellant to withdraw his plea would be “inappropriate and contrary to justice.” 1

Subsequently, appellant was sentenced to three years for each count of sexual battery, to

be served consecutively, for an aggregate sentence of nine years in prison.

       {¶6} Appellant now brings this timely appeal, raising one assignment of error for

review.

                                     Law and Analysis

                              Motion to Withdraw Guilty Plea

       {¶7} In his sole assignment of error, appellant argues that the trial court erred and

abused its discretion by denying his motion to withdraw his guilty plea.




       1
          The trial court further opined that appellant’s motion was an inappropriate ruse to
withdraw his plea because he was worried about his family’s financial situation, stating, “He’s
indicated that he would no longer get Social Security and that it would not go to his wife. He
indicates his family might lose the house. I don’t think he wants to withdraw the plea for any
other reason, other than to continue his checks coming, so that his family can meet their
obligations. That is not a legal reason to withdraw the plea.”
       {¶8} A motion to withdraw a guilty plea is governed by the standards set forth in

Crim.R. 32.1, which provides:

       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.

       {¶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). 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.

       {¶10} 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.
A review of the record in this case demonstrates that the trial court fully complied with

the Peterseim criteria.

       {¶11} Although appellant does not raise any issues relating to his counsel, the

record on appeal demonstrates that appellant was represented by competent counsel

throughout the proceeding. Appellant informed the trial judge during the plea hearing

that he was satisfied with his counsel. Additionally, it is well-settled that “* * * a properly

licensed attorney practicing in this state is presumed to be competent.” State v. Brandon,

11th Dist. No. 2009-P-0071, 2010-Ohio-6251, at ¶ 19, citing State v. Lytle, 48 Ohio St.2d

391, 397, 358 N.E.2d 623 (1976).

       {¶12} Further, the record demonstrates that appellant was afforded a proper

hearing pursuant to Crim.R. 11.     “When a defendant enters a plea in a criminal case, the

plea must be made knowingly, intelligently, and voluntarily. Failure on any of those

points renders enforcement of the plea unconstitutional under both the United States

Constitution and the Ohio Constitution.”        State v. Engle, 74 Ohio St.3d 525, 527,

1996-Ohio-179, 660 N.E.2d 450. We will not reverse such a determination if the trial

court substantially complied with the nonconstitutional requirements of Crim.R.

11(C)(2)(a), which includes the maximum penalties.        State v. Nero, 56 Ohio St.3d 106,

108, 564 N.E.2d 474 (1990), citing State v. Stewart, 51 Ohio St.2d 86, 92-93, 364 N.E.2d

1163 (1977). “A plea is in substantial compliance * * * when it can be inferred from the

totality of the circumstances that the defendant understands the charges against him.”

State v. Walker, 8th Dist. No. 65794, 1994 WL 530892, *2 (Sept. 29, 1994), citing State
v. Rainey, 3 Ohio App.3d 441, 446 N.E.2d 188 (10th Dist.1982), paragraph one of the

syllabus.   Furthermore, a defendant must show a prejudicial effect, or, in other words,

whether the plea would have otherwise been made. Id.

       {¶13} In challenging the sufficiency of his Crim.R. 11 hearing, appellant argues

that his plea was not made knowingly because the trial court failed to notify him that by

pleading guilty he would be unable to live within 1,000 feet of a school, in accordance

with R.C. 2950.034.

       {¶14} With respect to this issue, this court has repeatedly held that the

constitutional advisements a trial court is required to provide pursuant to Crim.R. 11 do

not include the collateral consequences of being classified as a sexual predator under

Ohio Revised Code Chapter 2950. State v. Rice, 8th Dist. No. 72685, 1999 WL 125742,

at *3 (Feb. 18, 1999); State v. Perry, 8th Dist. No 82085, 2003-Ohio-6344; State v.

Woodward, 8th Dist. Nos. 94672 and 94673, 2011-Ohio-104. This court rationalized

that such advisements were not required because the requirements imposed on sex

offenders pursuant to R.C. Chapter 2950 are civil and remedial in nature, and not criminal

or punitive.

       {¶15} However, the conclusions reached in Rice, Perry, and Woodward have

recently been challenged by State v. Williams, 129 Ohio St.3d 344, 2011-Ohio-3374, 952

N.E.2d 1108. In Williams, the Ohio Supreme Court held that, based on the significant

changes to the statutory scheme governing sex offenders following the enactment of S.B.

10, R.C. Chapter 2950 is currently punitive and not remedial in nature. Id. at ¶ 16.
      {¶16} If those requirements are now punitive under R.C. Chapter 2950, then they

are no longer considered collateral consequences of a conviction.    Rather, they are part

of the penalty for the offense and must be addressed during a Crim.R. 11 colloquy.   State

v. Bush, 2d Dist. No. 10CA82, 2011-Ohio-5954, ¶ 20 (Fain, J., concurring). This is not

to say, however, that the trial court is required to review each of the numerous individual

restrictions and requirements set forth in R.C. Chapter 2950 in order to substantially

comply with nonconstitutional provisions of Crim.R. 11.

      {¶17} In the case at hand, the record reflects that appellant was informed during

his Crim.R. 11 dialogue that he would be labeled a Tier III offender by operation of law.

Moreover, the trial court notified appellant that as a Tier III sex offender, he would be

subject to various reporting and notification requirements for life. We find that this

advisement substantially complies with Crim.R. 11(C)(2)(a).          The totality of the

circumstances indicate that appellant subjectively understood that by pleading guilty to a

sexually oriented offense, he would be subjected to certain restrictions as a Tier III sex

offender.   The fact that appellant was not specifically informed that he would be

prohibited from living within 1,000 feet of a school does not invalidate his plea.

Accordingly, we find that appellant was afforded a full hearing, pursuant to Crim.R. 11.

      {¶18} Next, appellant contends that the trial court erred in denying his motion to

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

No. 71136, 1997 WL 428647 (July 31, 1997), this court held:

      [D]efendant’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. (Citations omitted.)

       {¶19} Under the circumstances, it is axiomatic that defendant would proclaim his

innocence of the offense. However, this is not sufficient to warrant the withdrawal of a

guilty plea where, as in the case sub judice, the record supports the trial court’s finding

that appellant entered his plea voluntarily, knowingly, and intelligently.

       {¶20} Finally, we find that the trial court adequately afforded appellant a full and

impartial hearing on his motion to withdraw and gave full and fair consideration to

appellant’s request.   Here, the trial court ensured that appellant received a full and

impartial    hearing   by    permitting     opening    statements,    direct   examination,

cross-examination, redirect, closing argument, and a review of the psychiatric report

before it rendered a decision. Moreover, the record reflects that the trial court fairly

considered appellant’s motion to withdraw and only denied the motion after conducting a

lengthy hearing and carefully weighing several factors, including the arguments raised in

appellant’s motion to withdraw, information provided in appellant’s psychiatric report,

and appellant’s testimony and demeanor at the hearing.

       {¶21} Because all four prongs set forth in Peterseim were satisfied, we cannot say

that the trial court abused its discretion in denying appellant’s motion to withdraw his

guilty pleas under the circumstances of this case. Appellant’s sole assignment of error is

overruled.

       {¶22} 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.



FRANK D. CELEBREZZE, JR., PRESIDING JUDGE

COLLEEN CONWAY COONEY, J., and
KATHLEEN ANN KEOUGH, J., CONCUR
