COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68545 : ACCELERATED DOCKET STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and -vs- : : OPINION FRANK A. HABART : : : PER CURIAM Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 19, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-298749 JUDGMENT: Reversed and remanded. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. EDWARD S. MOLNAR, ESQ. Cuyahoga County Prosecutor 920 Terminal Tower JOSEPH V. HOFFER, ESQ. Cleveland, Ohio 44113 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - PER CURIAM: Defendant-appellant, Frank A. Habart (hereinafter referred to as "defendant"), appeals from the trial court's judgment denying his motion to withdraw his guilty plea and vacate the sentence. Defendant was initially charged with felonious sexual penetration in violation of R.C. 2907.12. After the defendant was referred to the Court Psychiatric Clinic, the trial court found him competent to stand trial. Later evidence presented to the court, in affidavit form, referred to the defendant as generally a man of low intelligence. The victim is the defendant's thirteen-year-old daughter, diagnosed as mentally retarded. When defendant moved for a determination as to whether the alleged victim was competent to testify at trial, the court held a competency hearing in which the alleged victim was found to be competent to testify at trial. On July 25, 1994, the indictment was amended to include attempted felonious sexual penetration. On this date, defendant retracted his former plea of not guilty and entered a plea of guilty to the charge of attempted felonious penetration. After learning of defendant's intention to plead guilty, the trial court engaged in a colloquy with the defendant in which he answered, for the most part, affirmatively or negatively without any explanation. After completing this colloquy, the trial court then asked the defendant whether he had anything else to say. At this point defendant gave the following statement. - 3 - THE DEFENDANT: Your Honor, I appreciate the time that you're taking with me today. I thank you for seeing me. I have to say one thing. I know I did not do it, okay. * * * But I don't want people to look down on me and say, hey, he agreed to this or he agreed to that, and he really did it. I did not do it, okay, and that's the God's truth. * * * I just wanted to plead my thing to the Court saying I didn't do it, and I appreciate your time. Thank you, sir. THE COURT: Thank you, Mr. Habart. Let the record reflect that the plea still stands by way of, if not a direct plea, an Alfred [sic] plea under this circumstance. Prior to sentencing, defendant filed a motion to withdraw his guilty plea. Addressing this motion at sentencing, the trial judge asked defendant whether he had anything to say at that time. Once again, defendant professed his innocence. THE DEFENDANT: *** I told you before I did not do it. And I will always say I did not do it. Because I would never do anything like that to either one of my kids. When asked about defendant's position, defense counsel expressed his opinion that he felt that defendant did not understand what he was doing when he pled guilty to the offense as charged. However, the trial court refused to allow defendant to withdraw his prior plea of guilty and imposed a sentence of five to fifteen years incarceration. Defendant timely appealed to this court. Defendant's sole assignment of error is as follows: THE LOWER COURT ERRED BY DENYING DEFENDANT'S MOTION TO WITHDRAW HIS GUILTY PLEA AND VACATE HIS SENTENCING PURSUANT THERETO WHEN THE PLEA (AND AGAIN AT SENTENCING) WAS MADE WITH PROTESTATIONS OF INNOCENCE AND WHICH WAS UNSUPPORTED BY A FACTUAL BASIS FOR A PLEA IN THE RECORD. The first issue is whether the trial court complied with - 4 - Crim.R. 11 when the court initially accepted defendant's guilty plea. Criminal Rule 11 was adopted in order to safeguard a defendant's constitutional rights and states, in pertinent part, as follows: (C) Pleas of Guilty and No Contest in Felony Cases. * * * (2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept such plea without first addressing the defendant personally and: (a) Determining that he is making the plea voluntarily, with understanding of the nature of the charge and of the maximum penalty involved, and, if applicable, that he is not eligible for probation. (b) Informing him of and determining that he understands the effect of his plea of guilty or no contest, and that the court upon acceptance of the plea may proceed with judgment and sentence. (c) Informing him and determining that he understands that by his plea he is waiving his rights to jury trial, to confront witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to require the state to prove his guilt beyond a reasonable doubt at a trial at which he cannot be compelled to testify against himself. * * * (F) Negotiated Plea in felony cases. When, in felony cases, a negotiated plea of guilty or no contest to one or more offenses charged or to one or more other or lesser offenses is offered, the underlying agreement upon which the plea is based shall be stated on the record in open court. The Ohio Supreme Court has held that a trial court's colloquy with a defendant pursuant to Crim.R. 11(C) must demonstrate substantial compliance with the requirements of the rule. Substantial compliance means that under the totality - 5 - of the circumstances the defendant subjectively understands the implications of his plea and the rights he is waiving. Stewart, supra; State v. Carter (1979), 60 Ohio St.2d 34, 38, 14 O.O.3d 199, 201, 396 N.E.2d 757, 760, certiorari denied (1980), 445 U.S. 963. Further- more, a defendant who challenges his guilty plea on the basis that it was not knowingly, intelligently, and voluntarily made must show a prejudicial effect. Stewart, supra, at 93, 5 O.O.3d at 56, 364 N.E.2d at 1167; Crim.R. 52(A). The test is whether the plea would have otherwise been made. State v. Nero (1990), 56 Ohio St.3d 106, 108. At the plea hearing, the court did engage in a colloquy with the defendant as required by Crim.R. 11. To the questions concerning the rights being waived, the defendant, for the most part, gave short affirmative or negative answers. Ordinarily these responses would be sufficient to allow the court to accept defendant's guilty plea. The analysis, however, does not end at this point. The Ohio Supreme Court has instructed a reviewing court to look at "the totality of the circumstances" to determine whether the trial court has complied with Crim.R. 11. In the case at bar, although he pled guilty, defendant stated he did not commit the crime charged. Thereafter, before sentencing, he filed a motion to withdraw his guilty plea. Generally, the withdrawal of a guilty plea prior to sentencing is to be allowed freely and treated with liberality. Eastlake v. DeNiro (1984), 21 Ohio App.3d 102; State v. Peterseim (1980), 68 Ohio App.2d 211. The decision as to whether the guilty plea will be withdrawn lies within the sound discretion of the trial court. State v. Smith (1977), 49 Ohio St.2d 261. The issue is whether it was an abuse of discretion for the trial court to deny a motion to withdraw the guilty plea in light - 6 - of the fact that defendant protested his innocence at his initial plea hearing. Similar facts occurred in North Carolina v. Alford (1970), 400 U.S. 25: a defendant pled guilty but still protested his innocence. The court held 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. The Alford guilty plea is considered a qualified guilty plea because it allows a defendant to enter a guilty plea yet maintain his innocence. Id. at 27. This plea, however, has certain requisites: The record must contain strong evidence of guilt before an Alford plea may be accepted. Id. at 37, 38. The record must contain, for example, an explanation of the factual circumstances of the crime and indicate that the defendant made a rational calculation to waive his right to trial. Alford, at 38. A judge must carefully discuss with the defendant and explain to him in terms a lay person could understand "not only the ramifications of his guilty plea but also the rationale of why it was being considered an Alford plea" and "present a summary of its [the state's] case so that the appellant here could understand the evidence against him." State v. Williams (Apr. 5, 1993), Montgomery App. No. 13547, unreported. Applying Alford, this court has determined it to be error to accept a guilty plea coupled with protestations of innocence when the record is "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." State v. Casale (1986), 34 Ohio - 7 - App.3d 339, 340; see also State v. Kessel (Oct. 27, 1983), Cuyahoga App. No. 45466, unreported. A review of the record reveals that there was an abuse of discretion on the part of the trial court in denying the motion to withdraw the guilty plea. Defendant has been characterized as being of low intelligence, almost retarded. Defendant's father testified his son failed to understand the likelihood of the sentencing alternatives: Frank has always been a good person. Granted father and son have their misunderstandings. And my opinion when Frank came home regarding the case on the 24th, where he said he was going to get probation, he came and said, I am going on probation. The judge will determine how long. I don't think he fully realized what probation was. He knows that you don't go to jail if the judge decides that you don't go to jail. Frank misinterprets what he hears. There are several words and I try to keep them in mind. I wish I was taking notes. I understand them. Incoherence. He doesn't know what that means. Defendant's possible lack of understanding is thrown into further doubt because the trial court did not discuss the evidence the prosecutor's office intended to present. Under these circum- stances, simple "yes" or "no" answers are insufficient to determine whether the defendant was making a rational choice in pleading guilty while still claiming he was innocent. To reach that determination, the trial court must explore defendant's understanding of the penalty involved and what rights he was waiving. The record shows no serious efforts to resolve the doubts raised by the father's testimony and the defendant's level of intelligence. Accordingly, because the record does not contain an explanation of the factual circumstances of the crime and an - 8 - indication that defendant made a rational calculation to waive his right to trial, the trial court erred in denying defendant's motion to withdraw his guilty plea. Judgment reversed and remanded. - 9 - This cause is reversed and remanded. It is, therefore, considered that said appellant recover of said appellee his costs herein. It is ordered that a special mandate be sent to said 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. ANN DYKE, PRESIDING JUDGE JOSEPH J. NAHRA, JUDGE DIANE KARPINSKI, JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate .