[Cite as State v. Kirk, 2014-Ohio-891.]
IN THE COURT OF APPEALS
FIRST APPELLATE DISTRICT OF OHIO
HAMILTON COUNTY, OHIO
STATE OF OHIO, : APPEAL NO. C-130223
TRIAL NO. B-1207881
Plaintiff-Appellee, :
O P I N I O N.
vs. :
JOHN KIRK, :
Defendant-Appellant. :
Criminal Appeal From: Hamilton County Court of Common Pleas
Judgment Appealed From Is: Affirmed and Cause Remanded
Date of Judgment Entry on Appeal: March 12, 2014
Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M.
Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,
J. Rhett Baker, for Defendant-Appellant.
Please note: this case has been removed from the accelerated calendar.
OHIO FIRST DISTRICT COURT OF APPEALS
D E W INE , Judge.
{¶1} This is an appeal from a conviction that was entered after a guilty
plea to a burglary charge. After the plea, but before sentencing, the victim was
interviewed as part of a court-mandated “presentence-investigation report.” The
report indicates that the victim gave an account that differed from her initial
version of the story. Defendant-appellant John Kirk argues that the trial court
should have dismissed the charge against him at the sentencing hearing because
the victim’s account in the presentence-investigation report was not sufficient to
establish the elements of the offense for which he was convicted. We conclude
that the court did not err when it refused to dismiss the charge based on the
unsworn statement of the victim. The sentencing entry, however, incorrectly
indicates that he was convicted of robbery. We remand the case so that the trial
court may correct its entry to reflect a conviction for burglary.
I.
{¶2} Mr. Kirk was indicted for aggravated burglary and robbery based
on Arabia Freeman’s allegations that he had entered her home through an
unlocked window, hit her, thrown her baby on the bed, and stolen her cellular
phone and money. Following a colloquy with the trial court in which Mr. Kirk
admitted the facts of the burglary offense, the court accepted the guilty plea and
set the matter for sentencing in three weeks. The court also ordered that a
presentence-investigation report, including a victim-impact statement, be
completed by the probation department. Ms. Freeman was interviewed as part
of the investigation. During the interview, Ms. Freeman apparently changed her
version of the events that led to Mr. Kirk’s arrest. According to the report, she
claimed that she had broken her own window, that Mr. Kirk had not hit her, and
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OHIO FIRST DISTRICT COURT OF APPEALS
that he had not thrown her child. But she still maintained that Mr. Kirk had
taken her phone.
{¶3} At the sentencing hearing, the court asked whether Mr. Kirk’s
attorney wanted to say anything about or add to the presentence-investigation
report. Counsel replied he had read the report, particularly the victim-impact
statement, and that based on the report, Mr. Kirk moved for a dismissal of the
charge against him. The court denied the motion and proceeded to sentence Mr.
Kirk to three years’ community control. The court also ordered Mr. Kirk to pay
restitution to Ms. Freeman for her phone.
II.
{¶4} In his sole assignment of error, Mr. Kirk asserts that the trial
court erred when it denied his motion to dismiss the robbery charge, in light of
Ms. Freeman’s changed story. Mr. Kirk contends that based upon her new
account, there was not sufficient evidence that he took anything with the force
necessary to establish the offense of robbery. It is clear from the transcript and
the plea form, however, that Mr. Kirk pleaded guilty to and was sentenced for
burglary, not robbery. As part of the plea agreement, the state dismissed the
robbery count. We consider therefore whether the court should have dismissed
the burglary charge in light of Ms. Freeman’s changed story.
{¶5} It is significant that Mr. Kirk’s counsel, who stated that he had
read the presentence-investigation report, including the victim-impact
statement, did not move to withdraw Mr. Kirk’s guilty plea. Had Mr. Kirk made
a presentence motion to withdraw his plea, the court could have held a hearing in
which it could have placed Ms. Freeman under oath, determined whether she
had, in fact, made the statement attributed to her in the report, and evaluated her
credibility. See Crim.R. 32.1; State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715
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OHIO FIRST DISTRICT COURT OF APPEALS
(1992), paragraph one of the syllabus. Instead of a motion to withdraw his plea,
however, Mr. Kirk moved to dismiss the charge against him. The trial court,
faced with Ms. Freeman’s unsworn statement and Mr. Kirk’s knowing, intelligent
and voluntary guilty plea to burglary, properly denied the motion to dismiss. We
therefore overrule the sole assignment of error.
III.
{¶6} We note, however, that the trial court’s judgment entry
incorrectly indicates that Mr. Kirk’s conviction was for robbery. We therefore
remand the matter to the trial court so that it can correct its judgment entry by
nunc pro tunc entry to indicate the actual offense for which Mr. Kirk was
convicted.
Judgment affirmed and cause remanded.
D INKELACKER , P.J., and F ISCHER , J., concur.
Please note:
The court has recorded its own entry on the date of the release of this
opinion.
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