[Cite as State v. Ross, 2013-Ohio-3220.]


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

STATE OF OHIO                                       C.A. Nos.     26523
                                                                  26524
        Appellee

        v.                                          APPEAL FROM JUDGMENT
                                                    ENTERED IN THE
DUSTIN L. ROSS                                      COURT OF COMMON PLEAS
                                                    COUNTY OF SUMMIT, OHIO
        Appellant                                   CASE Nos. CR 11 12 3466 (B)
                                                               CR 12 01 0172 (B)

                                  DECISION AND JOURNAL ENTRY

Dated: July 24, 2013



        HENSAL, Judge.

        {¶1}     Defendant-Appellant, Dustin L. Ross, appeals from the judgments of the Summit

County Court of Common Pleas. For the reasons set forth below, this Court affirms in part, and

reverses in part.

                                               I.

        {¶2}     On December 30, 2011, Dustin Ross was indicted in case number 26523 for one

count each of breaking and entering and possessing criminal tools. On February 2, 2012, Ross

was indicted in case number 26524 for one count each of receiving stolen property, possessing

criminal tools, and criminal mischief. Ross pleaded not guilty to the charges in each case. On

February 29, 2012, a joint plea hearing was held on both cases. In case number 26523, Ross

changed his plea to guilty on the breaking and entering charge, which was a fifth degree felony.

In case number 26524, Ross changed his plea to guilty on the possessing criminal tools charge,

which was also a fifth degree felony. Pursuant to the plea agreement, the remaining charges in
                                                 2


each case were dropped. At the plea hearing, the prosecution recommended the minimum

sentence of six months imprisonment on each charge. The prosecution further recommended

that Ross serve the sentences concurrently.

       {¶3}    Ross failed to appear at a joint sentencing hearing scheduled for both cases. The

trial court stated on the record at that hearing that due to his failure to appear, Ross faced a

possible sentence of twenty four months in prison on both cases. Ross was subsequently

apprehended. Prior to sentencing, he filed a motion to withdraw his guilty plea in each case,

which was denied by the trial court without a hearing. On May 30, 2012, Ross was sentenced to

eleven months in prison on each case, which was to be served consecutively. Ross appealed, and

the cases were consolidated for purposes of this appeal. He raises two assignments of error for

our review.

                                                II.

                                  ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED IN ACCEPTING APPELLANT ROSS’S
       GUILTY PLEAS WITHOUT STRICTLY COMPLYING WITH THE
       REQUIREMENTS OF CRIMINAL RULE 11(C)(2)(c).

       {¶4}    Ross argues that his pleas were not entered knowingly, intelligently and

voluntarily because the trial court failed to properly advise him that he had the right to confront

witnesses against him, have compulsory process for obtaining witnesses in his favor, and that he

could not be compelled to testify against himself at a trial. His argument is without merit.

       {¶5}    “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. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, ¶ 9, quoting State v. Engle, 74 Ohio St.3d
                                                  3


525, 527 (1996). Criminal Rule 11(C)(2)(c) provides that prior to accepting a guilty plea in a

felony case, a trial court must inform the defendant that he is waiving certain rights. These rights

include: (1) the right to a jury trial; (2) the right to confront witnesses against him; (3) the right

to have compulsory process for obtaining witnesses in the defendant’s favor, and (4) the right to

require the state to prove the defendant’s guilt beyond a reasonable doubt at a trial at which the

defendant cannot be compelled to testify against himself. Id. The court must ascertain whether

the defendant understands that he is waiving these rights when he enters a guilty plea. Id.

         {¶6}   While the “preferred method” is that the trial court recite the Rule 11(C)(2)(c)

language verbatim, a “trial court’s failure to literally comply with Crim.R. 11(C) does not

invalidate a plea agreement if the record demonstrates that the trial court explained the

constitutional right ‘in a manner reasonably intelligible to that defendant.’” (Emphasis deleted.)

State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-4130, ¶ 14, quoting State v. Veney, 120 Ohio

St.3d 176, 2008-Ohio-5200, ¶ 18. In addition, “[a]n alleged ambiguity during a Crim.R. 11 oral

plea colloquy may be clarified by reference to other portions of the record, including the written

plea.” Id. at paragraph two of the syllabus.

         {¶7}   At Ross’s plea hearing, the trial court advised him that by pleading guilty he was

“giving up [his] right to a jury trial on both these cases; giving up [his] right [to] make the

prosecutor prove the charge against [him] beyond a reasonable doubt; [he was] giving up [his]

right to have [his attorney] subpoena and cross-examine witnesses for [him]; [and he was] giving

up [his] right to testify or not testify in [his] own defense[.]” Ross acknowledged on the record

that he understood that he was giving up those rights prior to entering his guilty plea on both

cases.
                                                4


       {¶8}    Ross also signed written plea forms for both cases, and answered in the

affirmative when the trial court asked, “Did [your attorney] go over them with you so you

understand everything?” The forms state in part that:

       I have been informed by my attorney and by the Judge that by pleading guilty, I
       waive the following Constitutional Rights, and I understand these rights and it is
       my intention to waive them:

       ***

       (b) My right to confront and cross-examine the witnesses against me.

       (c) My right to have compulsory process, that is the right to subpoena witnesses to
       court to testify in my favor.

       (d) My right to require the State to prove my guilty beyond a reasonable doubt at
       trial at which I could not be compelled to testify against myself.

       {¶9}    This Court has reviewed the exact language used at the oral plea colloquy that

Ross asserts fails to satisfy the requirements of Rule 11(C)(2)(c), and found it sufficient to

adequately inform a defendant of his constitutional rights so as to make a knowing, intelligent

and voluntary waiver of those rights. State v. Bennett, 9th Dist. Summit No. 26241, 2012-Ohio-

3664, ¶ 12 and State v. Coleman, 9th Dist. Summit No. 26008, 2012-Ohio-1712, ¶ 11. In both

cases, this Court found that any ambiguity inherent in the language used at the hearing was

resolved by the written plea form. Bennett at ¶ 10, 12 and Coleman at ¶ 10.

       {¶10} Given our previous holdings in Bennett and Coleman, which analyzed the

identical language used in the present case at both the oral plea colloquy and in the written plea

form, this Court finds that Ross was properly informed of his right to confront witnesses against

him, have compulsory process for obtaining witnesses in his favor, and that he could not be

compelled to testify against himself at a trial. Accordingly, he knowingly, intelligently, and
                                                5


voluntarily waived those rights when he pleaded guilty.        His first assignment of error is

overruled.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN DENYING APPELLANT ROSS’S
       PRESENTENCE MOTIONS TO WITHDRAW HIS GUILTY PLEAS
       WITHOUT ALLOWING HIM A HEARING ON THE MERITS OF HIS
       CLAIMS, AND WHERE THE RECORD SHOWS THAT THE PLEAS WERE
       NOT ENTERED KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY.

       {¶11} Ross argues that the trial court erred by denying his pre-sentence motions to

withdraw his guilty pleas without first holding a hearing. This Court agrees.

       {¶12} Criminal Rule 32.1 provides in pertinent part that “[a] motion to withdraw a plea

of guilty * * * may be made only before sentence is imposed * * *.” The general rule is that

such motions should be freely and liberally granted. State v. Xie, 62 Ohio St.3d 521, 527 (1992).

While a defendant does not have an absolute right to withdraw a guilty plea prior to sentencing,

the trial court must conduct a hearing to ascertain whether the motion has a reasonable and

legitimate basis. (Emphasis added.) Xie at 527. See also State v. Casey, 9th Dist. Lorain No.

11CA010125, 2012-Ohio-3740, ¶ 7 (“It was inappropriate for the trial court to deny [the

defendant’s presentence] motion [to withdraw] without conducting at least some inquiry into his

reasons for seeking to withdraw his plea.”) and State v. Wilborn, 9th Dist. Summit No. 25352,

2011-Ohio-1038, ¶ 8 (“Under Xie, the trial court does not have any discretion regarding whether

it should hold a hearing on a presentence motion to withdraw a plea.”).

       {¶13} The transcript of the plea hearing indicates that the judge was concerned about the

prosecution’s recommendation that Ross serve a six-month concurrent prison sentence on each

conviction. The judge stated that she was “a little uncomfortable giving [Ross] * * * this

relatively light sentence” and that she was “not sure [she] truly understood what the proposed
                                                  6


sentence was.” There is no definitive indication from the transcript that the trial court intended

to follow the prosecution’s sentencing recommendation.

       {¶14} On April 25, 2012, the trial court held a joint sentencing hearing, which was

continued until a later date to allow time to review discovery in an unrelated case. Ross filed a

motion to withdraw his guilty plea in each case on May 14, 2012. He sought to withdraw his

pleas on the basis that the trial court indicated to counsel at the original sentencing hearing that it

would not follow the prosecution’s original recommendation for concurrent, minimum sentences

of six months’ imprisonment on each case. Ross also alleged that he was not guilty of one of the

charges, and only agreed to the plea deal because of the six month sentence. On May 16, 2012,

the Court denied the motions without holding a hearing.

       {¶15} On May 30, 2012, the trial court concluded the joint sentencing hearing on both

cases, which had commenced on April 25, 2012. Prior to sentencing Ross, the court indicated

that it had denied his motions to withdraw his guilty pleas in both cases, and was ready to

proceed to sentencing. Ross was given the opportunity to address the court, and stated that, “I

was tricked into pleading guilty to one of those charges that I did not do.” The trial court

responded that “[w]ell, I don’t think you were tricked into pleading guilty. I found that your

pleas were knowingly and intelligently and voluntarily having been (sic) made. The State gave

you a substantial amount of consideration, both in terms of dismissing other charges and also

giving you a substantially reduced sentence.”

       {¶16} There is no evidence in the record that the trial court held a hearing as required by

Xie prior to denying Ross’s motions to withdraw his plea.              Xie, 62 Ohio St.3d at 527.

Accordingly, the trial court erred in denying Ross’s motions to withdraw his plea without first

holding a hearing. Id.
                                                 7


        {¶17} This Court recognizes that it has held in prior cases that the failure to hold a

hearing on a pre-sentence motion to withdraw a plea was harmless error. See Wilborn, 2011-

Ohio-1038 at ¶ 16. This Court has also held that a motion to withdraw a guilty plea made after

the sentence is pronounced, but before the judgment entry is entered, is reviewed under the more

restrictive standard found in Criminal Rule 32.1 that requires a finding of manifest injustice. See

State v. Gordon, 9th Dist. Summit No. 25317, 2011-Ohio-1045, ¶ 16, quoting State v. Neeley,

12th Dist. Clinton No. CA2008-08-034, 2009-Ohio-2337, ¶ 6. The instant case, however, is

factually distinguishable from those cases in that the trial court equivocated in accepting the

prosecution’s sentencing recommendation and the defendant alleged he was innocent of one of

the charges. This Court will not go so far as to hold that every pre-sentence motion to withdraw

a plea requires a hearing. In this case, however, the factual circumstances required a hearing on

Ross’ motions to withdraw his plea.

        {¶18} Because the trial court should have held a hearing, this Court declines to address

the merits of his motion in the first instance. Casey, 2012-Ohio-3740 at ¶ 7. Ross’s assignment

of error is sustained in part.

                                                III.

        {¶19} Ross’s first assignment of error is overruled. His second assignment of error is

sustained in part as to the necessity of holding a hearing. The judgment of the Summit County

Court of Common Pleas is affirmed in part, reversed in part, and the cause is remanded to the

trial court for a hearing on Ross’s motions to withdraw his guilty plea.



                                                                           Judgment affirmed in part,
                                                                                    reversed in part,
                                                                                and cause remanded.
                                                 8




       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 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 equally to both parties.




                                                     JENNIFER HENSAL
                                                     FOR THE COURT




CARR, J.
CONCURRING.

       {¶20} I agree with the majority under the specific facts and circumstances of this case.

In this case, Ross was not actually sentenced at the time he filed his motion to withdraw his

plea. Although the trial court advised him at his plea hearing of what could happen if he failed to

appear for sentencing, a sentence was not pronounced orally or imposed in a journal entry at the

time he filed his motion. Under different circumstances, I would agree with the dissenting

opinion’s analysis.
                                                 9


MOORE, P. J.
CONCURRING IN PART, AND DISSENTING IN PART.

       {¶21} I concur with the majority’s resolution of Mr. Ross’ first assignment of error, but,

because I disagree with the majority’s conclusion that this matter must be remanded for the trial

court to hold a hearing on the motion to withdraw his plea, I respectfully dissent.

       {¶22} Mr. Ross entered a guilty plea following negotiations with the State of Ohio. He

was of the understanding that he would receive a six-month concurrent sentence when he

returned for his sentencing hearing. At the time he pled guilty, the trial court judge cautioned

Mr. Ross that he would receive a more severe sentence if he failed to return for sentencing.

When Mr. Ross did not appear at his sentencing hearing, the trial court judge told Mr. Ross’

attorney that she intended to impose maximum consecutive sentences when Mr. Ross finally

appeared for sentencing.

       {¶23} Defense counsel apparently communicated this new sentencing information to

Mr. Ross, leading him to move to withdraw his guilty pleas. Mr. Ross asserted two reasons in

his motion: (1) he knew he was going to receive a maximum sentence, and (2) he pled guilty to

something he did not do because he wanted the six month sentence. Both of the reasons centered

on one point – he learned that his sentence would be longer than he expected.

       {¶24} The majority has concluded that Mr. Ross’ motion was a pre-sentence motion to

withdraw and, pursuant to Xie, the trial court was required to hold a hearing before denying the

motion. I agree that Mr. Ross filed his motion before sentencing and to that extent it was

technically a pre-sentence motion, but I would treat his motion as a post-sentence motion and not

require the trial court to hold a hearing before ruling on it. The Second District has followed this

position in several cases and recently summarized it as follows:
                                                10


       This court has held that a motion to withdraw a plea that is made before
       sentencing, but after learning of the imminent sentence to be imposed, is
       considered to be filed after sentencing. E.g., State v. McComb, 2d Dist.
       Montgomery Nos. 22570, 22571, 2009–Ohio–295, ¶ 7, citing State v. Long, 2d
       Dist. Montgomery No. 13285, 1993 WL 155662, *6 (May 13, 1993); State v.
       Sylvester, 2d Dist. Montgomery No. 22289, 2008–Ohio–2901. This approach is
       consistent with the purpose behind the post-sentencing standard. Id. As we stated
       in State v. Fugate, 2d Dist. Montgomery No. 21574, 2007–Ohio–26, ¶ 17: “The
       post-sentence ‘manifest injustice’ standard is aimed at cases where a defendant
       pleads guilty without knowing what his sentence will be, finds out that his
       sentence is worse than he had hoped and expected, and then seeks to vacate his
       plea.”

State v. Haney, 2d Dist. Montgomery No. 25344, 2013-Ohio-1924, ¶ 10. Applying the post-

sentence standard prevents the defendant from testing the sentencing waters and moving to

vacate the plea just before sentencing if he receives an unpleasant surprise. State v. Simpson, 2d

Dist. Montgomery No. 24266, 2011-Ohio-6181, ¶ 8. Mr. Ross did not have a change of heart

about entering a guilty plea, a common reason for a pre-sentence motion to withdraw. Rather, he

recognized that the trial court judge planned to impose a longer sentence because he failed to

appear at his sentencing hearing. The rationale behind the liberal granting of pre-sentence

motions to withdraw does not apply in a case like this, where the sole basis for seeking

withdrawal is that the sentence will be longer than the defendant originally expected.

       {¶25} This point bears emphasis. Mr. Ross asserted in his motion that he wanted to

withdraw his plea because he knew that his sentence would be longer than the six months he

expected. He did not assert that his guilty pleas were not knowingly, voluntarily, or intelligently

entered. He did not claim that he did not understand the proceedings. He did not allege that he

received ineffective assistance of counsel. He did not even suggest that he was unaware of the

date of his sentencing hearing or prevented from attending because of an emergency.

       {¶26} The motion before this Court is no different than if Mr. Ross had appeared on the

day of sentencing, the trial court had imposed a longer sentence than he expected, and he then
                                                 11


moved to withdraw his plea. The majority treats Mr. Ross’ motion as a pre-sentence motion

because it was filed before sentence was imposed. The timing of the filing of the motion,

however, is not why pre- and post-sentencing motions are treated differently. Rather, it is

because of the reasons for filing the motions at those different times. A pre-sentence motion is

generally filed because the defendant has had a change of heart, and those motions should be

liberally granted. A post-sentence motion, on the other hand, is filed because the defendant is

unhappy with the sentence he has received. This is precisely the reason why Mr. Ross moved to

withdraw his plea, and his motion should be treated accordingly. He should not receive the

benefit of the more liberal pre-sentence standard simply because the trial court judge warned him

about the consequence – a longer sentence – of failing to appear for sentencing.

       {¶27} I would follow the approach adopted by the Second District and treat Mr. Ross’

motion as a post-sentencing motion. I would further conclude that Mr. Ross did not meet his

burden and affirm the trial court’s decision to deny the motion to withdraw. Accordingly, I

respectfully dissent from that portion of the majority’s decision.


APPEARANCES:

JEFFREY N. JAMES, Attorney at Law, for Appellant.

SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
