[Cite as State v. Jones, 2012-Ohio-2512.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 97674
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
ELBERT JONES
DEFENDANT-APPELLANT
JUDGMENT:
REVERSED AND REMANDED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-535173
BEFORE: S. Gallagher, J., Boyle, P.J., and Kilbane, J.
RELEASED AND JOURNALIZED: June 7, 2012
ATTORNEY FOR APPELLANT
Paul Mancino, Jr.
75 Public Square
Suite 1016
Cleveland, OH 44113-2098
ATTORNEYS FOR APPELLEE
William D. Mason
Cuyahoga County Prosecutor
By: Mark J. Mahoney
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
SEAN C. GALLAGHER, J.:
{¶1} Defendant Elbert Jones appeals from the trial court’s denial of his
presentence motion to vacate his plea. For the following reasons, we reverse the
decision of the trial court and Jones’s conviction, and remand for further proceedings.
{¶2} On March 16, 2010, Jones was charged with two counts of aggravated
burglary, two counts of aggravated robbery, and one count of having a weapon while
under disability. The matter was set for trial on August 16, 2010. On that day, but
before the jury was empaneled, Jones agreed to plead guilty to one count of burglary, one
count of robbery, and one count of having a weapon under disability. Jones also agreed
to amend the indictment to reflect the plea agreement. During the plea colloquy, the
court addressed Jones’s constitutional rights, and before accepting Jones’s change of plea,
the following exchange took place:
Court: How do you plead, guilty or not guilty?
Defendant: Guilty, your Honor.
Court: And are you, in fact, guilty, sir?
Defendant: I feel — I feel I’m not, but — honestly I feel like I’m not, but
I’m just — I’m scared.
Court: Is your plea consistent with the evidence?
Defendant: I really don’t know the evidence, your Honor. I see a lot —
how can I say it? I have heard a lot of lies and statements and stuff.
Court: But is your plea consistent with the evidence?
Defendant: Some of it.
Court: The court accepts your plea.
The trial court referred Jones for a presentence report, and the matter was continued for
sentencing.
{¶3} Before the sentencing hearing, Jones filed a motion to withdraw his plea in
light of the fact that he stated his innocence at the plea hearing. The trial court reviewed
the transcript of the plea hearing, denied Jones’s motion, and sentenced him to an
aggregate eight-year term of prison. Jones timely appealed, raising three assignments of
error. Jones’s first two assignments of error challenge the trial court’s decision to deny
his presentence motion to withdraw his plea. Jones argues that the trial court erred when
it failed to inquire into the factual basis or information regarding his offenses when the
guilty plea was accompanied by his protestation of innocence. Jones’s argument has
merit.
{¶4} Generally, a presentence motion to withdraw a guilty plea should be freely
and liberally granted. State v. Xie, 62 Ohio St.3d 521, 527, 584 N.E.2d 715 (1992).
However, a defendant does not have an absolute right to withdraw a plea prior to
sentencing and it is within the sound discretion of the trial court to determine what
circumstances justify granting such a motion. Id. “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, 660 N.E.2d 450 (1996). We will not reverse such a determination if the trial
court substantially complied with the nonconstitutional requirements of Crim.R. 11.
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.
{¶5} This court has recognized that “a guilty plea may be accepted despite
protestations of innocence where the validity of the plea cannot seriously be questioned in
view of a strong factual basis for the plea demonstrated by the record.” State v. Casale,
34 Ohio App.3d 339, 340, 518 N.E.2d 579 (8th Dist.1986), citing North Carolina v.
Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). When taking an Alford plea,
the trial court cannot determine whether the accused was making an intelligent and
voluntary guilty plea absent some basic facts surrounding the charge. Casale at 340,
citing State v. Kessel, 8th Dist. No. 45466, 1983 WL 2707 (Oct. 27, 1983). For example,
in Casale, the record was “devoid of a basic factual framework against which the trial
court could weigh the appellant’s claims of innocence against her willingness to waive
trial.” Casale at 340. In such situations, this court held that the plea was not voluntary
and the trial court abused its discretion in denying the defendant’s presentence motion to
withdraw a plea.
{¶6} In the current case, Jones stated his innocence at the plea hearing and, despite
such statements, the trial court subsequently accepted Jones’s plea without a factual
framework to measure his innocence against the willingness to waive trial. Jones’s
guilty plea was therefore not voluntary, and the trial court abused its discretion in denying
Jones’s presentence motion to withdraw his plea. Id., but see State v. Cutlip, 8th Dist.
No. 72419, 1998 WL 323556 (June 18, 1998) (holding that defendant cannot invoke an
Alford plea if the defendant failed to declare himself not guilty at the plea hearing, to file
a presentence motion to withdraw his plea, or to object to the lack of the factual basis).
{¶7} The state seeks to characterize Jones’s statements as an equivocation. We
disagree, although we understand the state’s position. There were multiple pretrials
where the facts were discussed in detail, and Jones only questioned his guilt at the end of
the plea hearing after already pleading guilty. Nevertheless, the impact of Jones’s
statement was that he was not guilty of the charges. At the moment Jones stated he was
not guilty of the charges at the plea hearing, further inquiry was necessary to determine
whether Jones’s guilty plea was knowingly, voluntarily, and intelligently entered.
Further, Jones only agreed that his guilty plea was consistent with some of the evidence.
The record is not clear what evidence he was referencing. Jones’s first two assignments
of error are sustained and dispositive of Jones’s entire appeal.
{¶8} The trial court erred in denying Jones’s presentence motion to withdraw his
guilty plea. The guilty plea was not made knowingly, voluntarily, or intelligently in light
of the fact that the trial court accepted the guilty plea without a factual basis after Jones
offered statements of his innocence.
{¶9} The decision of the trial court is reversed, and this cause is remanded to the
lower court for further proceedings consistent with this opinion.
It is ordered that appellant recover from appellee 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.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
SEAN C. GALLAGHER, JUDGE
MARY J. BOYLE, P.J., and
MARY EILEEN KILBANE, J., CONCUR