[Cite as State v. Robinson, 2019-Ohio-1740.]


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

STATE OF OHIO                                       C.A. No.       29192

        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
MARLON D. ROBINSON                                  COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE No.   CR-2018-01-0125

                                 DECISION AND JOURNAL ENTRY

Dated: May 8, 2019



        HENSAL, Judge.

        {¶1}     Marlon Robinson appeals from the judgment of the Summit County Court of

Common Pleas. This Court affirms.

                                               I.

        {¶2}     A grand jury indicted Mr. Robinson on three counts of rape, one count of

kidnapping, one count of abduction, and one count of gross sexual imposition. The State later

amended the abduction count to remove any reference to sexual motivation. Mr. Robinson then

pleaded guilty to the amended abduction count and, in exchange, the State dismissed the

remaining counts. The trial court accepted Mr. Robinson’s plea, and the matter proceeded to

sentencing.

        {¶3}     Prior to the sentencing hearing, the State submitted a sentencing memorandum

requesting a three-year prison term. At the sentencing hearing, the trial court noted that it was

inclined to impose a 30-month sentence. Mr. Robinson then made an oral motion to withdraw
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his guilty plea.   The trial court denied the motion and sentenced him to 30 months of

imprisonment. Mr. Robinson now appeals, raising three assignments of error for our review.

                                                II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED
       DEFENDANT’S MOTION TO WITHDRAW HIS PRESENTENCE GUILTY
       PLEA.

       {¶4}    In his first assignment of error, Mr. Robinson argues that the trial court abused its

discretion when it denied his presentence motion to withdraw his guilty plea. We disagree.

       {¶5}     As the Ohio Supreme Court has stated, a “defendant does not have an absolute

right to withdraw a guilty plea prior to sentencing.” State v. Xie, 62 Ohio St.3d 521 (1992),

paragraph one of the syllabus. Instead, “[t]he defendant bears the burden of demonstrating that

he has a ‘reasonable and legitimate basis for withdrawing [his] plea.’” (Alteration sic.) State v.

Benson, 9th Dist. Summit Nos. 28527, 28579, 28578, 28577, 2017-Ohio-8150, ¶ 8, quoting State

v. Baker, 9th Dist. Summit No. 27937, 2016-Ohio-8026, ¶ 7. While “a presentence motion to

withdraw a guilty plea should be freely and liberally granted[,]” the trial court’s decision in that

regard is reviewed for an abuse of discretion. Xie at 527; State v. Pippert, 9th Dist. Lorain No.

14CA010698, 2016-Ohio-1352, ¶ 16. An abuse of discretion implies that the trial court’s

attitude was unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 5 Ohio St.3d

217, 219 (1983).

       {¶6}     “This Court has held that a trial court does not abuse its discretion when

considering a motion to withdraw a guilty plea if the following elements are present: (1) the

defendant is represented by competent counsel; (2) the trial court provides the defendant with a

full hearing before entering the guilty plea; and (3) the trial court provides the defendant with a
                                                 3


full hearing on the motion to withdraw the guilty plea, where the court considers the defendant’s

arguments in support of his motion to withdraw the guilty plea.” State v. Pamer, 9th Dist.

Medina No. 04CA0027-M, 2004-Ohio-7190, ¶ 10. An evidentiary hearing, however, is not

always required, and its nature and extent “is dependent on the particular allegations in an

accused’s motion and is committed to the sound discretion of the trial court.” Benson at ¶ 13,

quoting City of Lorain v. Price, 9th Dist. Lorain No. 96CA006314, 1996 WL 556916, *2 (Oct. 2,

1996). Notably, a trial court’s decision to hear and consider arguments on a defendant’s motion

to withdraw a guilty plea during a sentencing hearing can constitute a full hearing. See, e.g.,

State v. Dyke, 9th Dist. Lorain No. 02CA008204, 2003-Ohio-4788, ¶ 14-20.

       {¶7}    Mr. Robinson has not argued that his trial counsel was incompetent, or that he did

not receive a full hearing prior to entering his guilty plea. Instead, he argues that the trial court

erred by not affording him a full hearing on his presentence motion to withdraw his guilty plea.

A review of the record, however, indicates that the trial court allowed Mr. Robinson to argue the

bases for his motion during the sentencing hearing, and that it considered those arguments.

Specifically, Mr. Robinson argued that he “didn’t commit the crime[,]” and that he had evidence,

which had been disclosed during discovery, to support his innocence. The record indicates that

Mr. Robison was referring to the rape counts, which the State had dismissed in exchange for the

guilty plea. Regardless, absent any presentation of newly discovered evidence, a defendant’s

assertion of innocence after entering a guilty plea is not a reasonable and legitimate basis for

withdrawing the plea. State v. Bigelow, 9th Dist. Medina No. 08CA0072-M, 2009-Ohio-4093, ¶

8; State v. Robertson, 9th Dist. Medina No. 10CA0030-M, 2011-Ohio-4300, ¶ 9. The record

further indicates that Mr. Robinson expressed concerns about the possible length of his sentence.
                                                 4


He acknowledged, however, that the trial court explained the potential penalties during the plea

hearing.

       {¶8}    After hearing the arguments, the trial court determined that Mr. Robinson’s

presentence motion to withdraw his guilty plea was based on the fact that the State requested a

maximum sentence in its sentencing memorandum. It, therefore, denied his oral motion and

proceeded with sentencing.      Having reviewed the record, we conclude that the trial court

afforded Mr. Robinson a full hearing on his motion, and that Mr. Robinson failed to set forth a

reasonable and legitimate basis for withdrawing his plea. The trial court, therefore, did not abuse

its discretion by denying Mr. Robinson’s presentence motion to withdraw his guilty plea.

Accordingly, his first assignment of error is overruled.

                                  ASSIGNMENT OF ERROR II

       THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR BY
       ACCEPTING DEFENDANT’S GUILTY PLEA WITHOUT STRICTLY
       COMPLYING WITH THE REQUIREMENTS CONTAINED WITHIN CRIM.R.
       11(C)(2)(C).

       {¶9}    In his second assignment of error, Mr. Robinson argues that the trial court erred

because it failed to strictly comply with the plea-colloquy requirements under Criminal Rule

11(C)(2)(c). Specifically, he argues that the trial court failed to explain to him that, by pleading

guilty, he was waiving his constitutional rights, and failed to ask him whether he understood that

he was waiving those rights. Based upon our review of the record, we disagree.

       {¶10} Criminal Rule 11(C)(2)(c) provides that, prior to accepting a guilty plea, the trial

court must:

       [i]nform[] the defendant and determin[e] that the defendant understands that by
       the plea the defendant is waiving the rights to jury trial, to confront witnesses
       against him or her, to have compulsory process for obtaining witnesses in the
       defendant’s favor, and to require the state to prove the defendant’s guilt beyond a
                                                 5


       reasonable doubt at a trial at which the defendant cannot be compelled to testify
       against himself or herself.

“Because Crim.R. 11(C)(2)(c) deals with the waiver of constitutional rights, strict compliance

with the rule is required.” State v. Jordan, 9th Dist. Summit No. 27690, 2015-Ohio-4354, ¶ 5,

citing State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, ¶ 18.             To satisfy the strict-

compliance standard, a trial court does not need to use the exact language contained in Criminal

Rule 11(C)(2)(c) “so long as the trial court actually explains the rights to the defendant.” Veney

at ¶ 27, citing State v. Ballard, 66 Ohio St.2d 473 (1981), paragraph two of the syllabus. “We

review whether the trial court strictly complied with Crim.R. 11(C)(2)(c) de novo.” State v.

Owens, 9th Dist. Summit No. 25174, 2010-Ohio-4635, ¶ 7

       {¶11} Mr. Robinson concedes that the trial court described the constitutional rights

enumerated in Criminal Rule 11(C)(2)(c), and that it ensured that he understood them. But, he

argues, the trial court never specifically explained to him that, by pleading guilty, he was

waiving his constitutional rights, and it never asked him whether he understood that he was

waiving those rights. In support of his argument, Mr. Robinson cites two cases from the Eighth

District Court of Appeals that were decided on the same day and involved co-defendants who

received the same plea colloquy: State v. Looby, 8th Dist. Cuyahoga No. 105354, 2018-Ohio-842

and State v. Miller, 8th Dist. Cuyahoga No. 105363, 2018-Ohio-843, appeal accepted, 153 Ohio

St.3d 1502, 2018-Ohio-4288. In those cases, the trial court never asked the defendants whether

they understood that they were waiving their constitutional rights.         Rather, the trial court

explained the constitutional rights enumerated in Criminal Rule 11(C)(2)(c) in terms of the rights

the defendants would have if they went to trial.      Looby at ¶ 11, Miller at ¶ 10. The Eighth

District determined that this was error because the trial court did not ensure that the defendants

understood that a guilty plea constituted a waiver of those rights. Looby at ¶ 14; Miller at ¶ 16.
                                                 6


       {¶12} Mr. Robinson also cites the Seventh District’s decision in State v. Strebler, 7th

Dist. Mahoning No. 08 MA 108, 2009-Ohio-1200, which the majority opinions in Looby and

Miller relied upon.    There, the trial court similarly never asked the defendant whether he

understood that he was waiving his constitutional rights by pleading guilty. Id. at ¶ 10-29. The

Seventh District concluded that the trial court erred by not doing so. Id. at ¶ 36.

       {¶13} This Court need not decide whether we agree with the analyses from the Seventh

and Eighth Districts because this case is readily distinguishable. Here, unlike Miller, Looby, and

Strebler, the trial court asked Mr. Robinson if he understood that he was waiving his

constitutional rights. For example, the trial court explained to Mr. Robinson that he had a right

to a jury trial, and then asked: “Do you understand you’re waiving your right to [a] jury trial?”

He responded: “Yes, ma’am.” Mr. Robinson’s merit brief omits this – and other – critical

language from the plea colloquy, which renders the case law he relies upon distinguishable and,

as a result, unpersuasive.

       {¶14} To the extent that Mr. Robinson’s argument can be interpreted as suggesting that

a trial court must use a specific phrase or wording during the plea colloquy, the Ohio Supreme

Court “do[es] not mandate magic words * * *.”         State v. Lomax, 114 Ohio St.3d 350, 2007-

Ohio-4277, ¶ 48.      Rather, “[t]he underlying purpose, from the defendant’s perspective, of

Crim.R. 11(C) is to convey to the defendant certain information so that he can make a voluntary

and intelligent decision whether to plead guilty.” Veney, 120 Ohio St.3d 176, 2008-Ohio-5200,

at ¶ 18, quoting Ballard, 66 Ohio St.2d 473, at 479-480. The record indicates – and Mr.

Robinson concedes – that the trial court explained the constitutional rights enumerated in

Criminal Rule 11(C)(2)(c), and ensured that he understood them. The record further indicates
                                               7


that Mr. Robinson understood that he was waiving those rights. Accordingly, Mr. Robinson’s

second assignment of error is overruled.

                                ASSIGNMENT OF ERROR III

       THE TRIAL COURT COMMITTED REVERSIBLE AND PLAIN ERROR IN
       FAILING TO PROVIDE THE DEFENDANT WITH HIS RIGHT TO PROPER
       ALLOCUTION PRIOR TO THE IMPOSITION OF HIS PRISON SENTENCE
       IN VIOLATION OF R.C. 2929.19(A) AND CRIM.R. 32(A).

       {¶15} In his third assignment of error, Mr. Robinson argues that the trial court violated

his right to allocution by not personally asking or addressing him to determine whether he

wished to make a statement or present information in mitigation of punishment prior to

sentencing. Based upon our review of the record, we disagree.

       {¶16} Criminal Rule 32(A)(1) requires a sentencing court to “[a]fford counsel an

opportunity to speak on behalf of the defendant and address the defendant personally and ask if

he or she wishes to make a statement in his or her own behalf or present any information in

mitigation of punishment.” See also R.C. 2929.19(A) (requiring a trial court to hold a sentencing

hearing and “ask the offender whether the offender has anything to say as to why sentence

should not be imposed[.]”). “Both the Ohio Supreme Court and this Court have recognized that

a trial court complies with a defendant’s right of allocution when it personally addresses the

defendant and asks whether he has anything to say.” State v. Daniels, 9th Dist. Summit No.

26406, 2013-Ohio-358, ¶ 14, citing State v. Fry, 125 Ohio St.3d 163, 2010–Ohio–1017, ¶ 186–

188.

       {¶17} Here, after the trial court announced its 30-month sentence at the sentencing

hearing, the prosecutor reminded the trial court of Mr. Robinson’s right to allocution. The trial

court responded: “You’re right. I’ll let him allocute at this time.” The trial court then asked:

“Mr. Robinson, what do you want to tell me?” Mr. Robinson then explained why he was not
                                                  8


guilty. After he spoke, the trial court reminded him that he pleaded guilty, and reiterated its 30-

month sentence. This satisfied Criminal Rule 32(A). See Daniels at ¶ 14. The trial court then

journalized its sentence the following day.

       {¶18} While Mr. Robinson challenges the timing of the allocution (i.e., after the trial

court announced its sentence at the sentencing hearing), his argument in that regard lacks merit.

As this Court has recognized, a sentence is “not finalized until the trial court file[s] its sentencing

entry and, up until that time, anything it s[ays] about what that sentence would be [i]s tentative.”

State v. Maynard, 9th Dist. Medina No. 07CA0116-M, 2009-Ohio-282, ¶ 45. Relatedly, this

Court has recognized that a trial court does not violate a defendant’s rights under Criminal Rule

32(A) when it affords the defendant his or her right to allocution after the trial court sets forth the

terms of its sentence at the sentencing hearing, but before it journalizes the sentencing entry. See

State v. Brown, 9th Dist. Summit No. 25287, 2011-Ohio-1041, ¶ 45-46. We, therefore, reject

Mr. Robinson’s argument as it relates to the timing of the allocution. Based on the foregoing,

Mr. Robinson’s third assignment of error is overruled.

                                                 III.

       {¶19} Mr. Robinson’s assignments of error are overruled. The judgment of the Summit

County Court of Common Pleas is affirmed.

                                                                                  Judgment affirmed.




       There were reasonable grounds for this appeal.
                                                 9


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Summit, 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 Appellant.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT



CARR, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

NEIL P. AGARWAL, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and C. RICHLEY RALEY, JR., Assistant
Prosecuting Attorney, for Appellee.
