COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71053 STATE OF OHIO : : Plaintiff-Appellee : : JOURNAL ENTRY -vs- : AND : OPINION JOHN HURNEY : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION JULY 31, 1997 CHARACTER OF PROCEEDING Criminal appeal from Court of Common Pleas Case No. CR-329500 JUDGMENT Affirmed DATE OF JOURNALIZATION APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES JAMES A. DRAPER Cuyahoga County Prosecutor Cuyahoga County Public Defender LOUIS BRODNIK, Assistant DONALD GREEN, Assistant Prosecuting Attorney Public Defender 1200 Ontario Street 1200 West Third St., N.W. Cleveland, Ohio 44113 100 Lakeside Place Cleveland, Ohio 44113-1569 - 2 - JAMES M. PORTER, P.J., Defendant-appellant John Hurney appeals from his convictions following a guilty plea to attempted felonious assault (R.C. 2903.11/2923.02) menacing by stalking (R.C. 2903.211) on the grounds that the trial court abused its discretion by denying defendant's presentence motion to withdraw his guilty pleas because defendant maintained his innocence and the court accepted the pleas without establishing a factual predicate for them. We find no error and affirm. On October 26, 1995, defendant was indicted on fifty counts: thirty counts of menacing by stalking in violation of R.C. 2903.211; fourteen counts of felonious assault in violation of R.C. 2903.11; one count of kidnapping in violation of R.C. 2905.01; two counts of aggravated burglary in violation of R.C. 2911.11; two counts of aggravated arson in violation of R.C. 2909.02; and one count of attempted aggravated burglary in violation of R.C. 2923.02 and 2911.11. On January 31, 1996, defendant withdrew his former plea of not guilty and entered a plea of guilty to two counts: an amended attempted felonious assault count and a menacing by stalking count. Pursuant to a request of counsel, the trial court reduced the $50,000 bond to a $5,000 ten percent bond following the pleas. (Tr. 15-16). A presentence report was ordered, but before the sentencing hearing, defendant's original counsel died. - 3 - On June 20, 1996, defendant's new counsel filed a motion to withdraw the guilty pleas pursuant to Crim.R. 32.1 and the matter was heard on July 1, 1996. Defendant's new attorney argued that defendant should be allowed to withdraw his plea because defendant had always maintained his innocence and there was no "factual predicate spread on the record." (Tr. 20-24). The court denied defendant's motion to withdraw his plea and sentenced him to two to ten years for the attempted felonious assault, and a six month concurrent sentence for the stalking conviction. Following defendant's timely pro se appeal, this Court appointed the public defender to represent defendant on this appeal. We will address defendant's assignments of error in the order asserted. I. THE TRIAL COURT ERRED IN NOT GRANTING APPELLANT'S PRE-SENTENCE MOTION TO WITHDRAW HIS GUILTY PLEA. Crim.R. 32.1 provides, in pertinent part, as follows: A motion to withdraw a plea of guilty or no contest may be made only before sentence is imposed or imposition of sentence is suspended; but to correct manifest injustice the court after sentence may set aside the judgment of conviction and permit the defendant to withdraw his plea. The standards to be applied to a presentence withdrawal of a plea were stated in State v. Xie (1992), 62 Ohio St.3d 521, 527: We agree that a presentence motion to withdraw a guilty plea should be freely and liberally - 4 - granted. Nevertheless, it must be recognized that a defendant does not have an absolute right to withdraw a plea prior to sentencing. Therefore, the trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea. In this case, the trial court held such a hearing, at which it carefully considered Xie's motion and all the circumstances surrounding the entering of the plea. Absent an abuse of discretion on the part of the trial court in making the ruling, its decision must be affirmed. For us to find an abuse of discretion in this case, we must find more than an error of judgment. We must find that the trial court's ruling was "unreasonable, arbitrary or unconscionable." State v. Adams (1980), 62 Ohio St.2d 151, 157, 16 O.O.3d 169, 173, 404 N.E.2d 144, 149. Prior to deciding whether to grant a motion to withdraw a guilty plea, the trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of this plea. In State v. Smith (Dec. 10, 1992), Cuyahoga App. No. 61464 unreported at 10, citing State v. Hall (April 27, 1987), Cuyahoga App. No. 55289, unreported at 2, this Court held that the scope of a hearing on an appellant's motion to withdraw his guilty plea should reflect the substantive merit of the motion. This court's requirement for a full, fair and impartial hearing on Crim.R. 32.1 motions was first set forth in State v. Peterseim (1980), 61 Ohio App.2d 211. The hearing requirement was a logical corollary to this court's position that motions to withdraw guilty pleas should be fully granted when made before sentencing. In subsequent cases, however, we clarified the Peterseim holding. Most recently, in State v. Posta (1988), 37 Ohio App.3d 144, we stated "*** Peterseim is not to be interpreted to mean that every motion to - 5 - withdraw a guilty plea or no contest plea should be granted as long as the motion is made prior to the sentencing." Id. at 145. Implicit in this statement is the recognition that a court's adherence to Crim.R. 11 raises a presumption that the plea was voluntarily entered. See State v. Spence (Jan. 19, 1989), Cuyahoga App. No. 54880, unreported at 2. The proponent of the motion to withdraw the plea has the burden of rebutting that presumption by demonstrating that the plea was infirm. The motion to withdraw a plea must, at a minimum, make a prima facie showing of merit before the trial court need devote considerable time to it. United States v. Navarro-Flores (C.A.9, 1980), 628 F.2d 1178, 1183; United States v. Dabdoud-Diaz (C.A.5, 1979), 599 F.2d 96, 100. Stated differently, the scope of the hearing to be held on the Crim.R. 32.1 motion should be reflective of the substantive merit of the motion itself. Hence, bold assertions without evidentiary support simply should not merit the type of scrutiny that substantiated allegations would merit. The scope of the hearing is within the sound discretion of the trial judge, subject to our review for an abuse of that discretion. Cf. Posta, supra, at 145. This approach strikes a fair balance between fairness for an accused and preservation of judicial resources. *** [citing State v. Hall (Apr. 27, 1989), Cuyahoga App. No. 55289, unreported at 2]. The only ground asserted by defendant in support of his motion to withdraw the guilty plea to the two counts was his claim of innocence. Presumably, this was uppermost in his mind when he originally entered his guilty pleas. There is nothing so dramatic about defendant's assertion of innocence to ignore the fact that he nevertheless entered a guilty plea to only two of the fifty counts against him. State v. Najeeullah (Oct. 3, 1996), Cuyahoga App. No. 69683, unreported at 8. We have carefully reviewed the transcripts. Pursuant to Crim.R. 11(C), defendant was fully - 6 - advised of the rights he was waiving by entering the plea, including the presumption of innocence. A full, fair and impartial hearing was held on his motion to withdraw. The court acted well within its discretion by disallowing the motion. There was nothing unreasonable, arbitrary or unconscionable about the court's ruling. Defendant's Assignment of Error I is overruled. II. JOHN HURNEY WAS DENIED HIS CONSTITUTIONAL RIGHT TO A TRIAL, WHEN THE TRIAL COURT ACCEPTED HIS GUILTY PLEA WITHOUT ADDRESSING THE FACTUAL PREDICATE AND ASSURING THAT MR. HURNEY ADMITTED TO THE EXACT NATURE AND CIRCUMSTANCES OF HIS OFFENSE OR THAT MR. HURNEY'S PLEA WAS MADE KNOWINGLY AND VOLUNTARILY. Defendant also argues that no factual basis for the guilty plea exists on the record. None was required. This issue is informed by our decision in State v. Murphy (Aug. 31, 1995), Cuyahoga App. No. 68129, unreported at 5: As a general proposition of law, a trial court has no duty to determine whether a factual basis supports a defendant's guilty plea. See State v. Post (1987), 32 Ohio St.3d 380, 386-387; State v Ricks (1976), 48 Ohio App.2d 128, 131, 356 N.E.2d 312. An exception to the rule may exist if a defendant makes a guilty plea coupled with a claim of innocence. Under those circumstances, a defendant's right to due process may require the court to determine whether there is a factual basis for the plea. See North Carolina v. Alford (1970), 400 U.S. 25, 38 fn. 10, 27 L.Ed. 2d 162, 91 S.Ct. 160; State v. Padgett (1990), 67 Ohio App.3d 332, 586 N.E.2d 1194. In State v. Casale (1986), 34 Ohio App.3d 339, 518 N.E.2d 579, we relied on Alford to hold that when a defendant enters a guilty plea despite maintaining her innocence, a trial court may abuse its discretion by denying a presentence - 7 - motion to withdraw the plea unless the record reflects basic facts supporting the charge. We find the trial court did not abuse its discretion by denying the presentence motion to withdraw based upon defendant's purported Alford plea. Implicit in any Alford plea is the requirement a defendant actually state his innocence on the record when entering a guilty plea. State v. Morgan (Aug. 4, 1994), Cuyahoga App. No. 65973, unreported; State v. Ogletree (Oct. 14, 1993), Cuyahoga App. No. 62943, unreported. Presumably, every defen-dant who seeks to withdraw a guilty plea does so based upon a claim of innocence. Recognizing this, we have repeatedly held that "a mere change of heart" is insufficient justification for allowing the withdrawal of a guilty plea. State v. Drake (1991), 73 Ohio App.3d 640, 645, 598 N.E.2d 115; State v. Lambros (1988), 44 Ohio App.3d 102, 541 N.E.2d 632; State v. Grigsby (1992), 80 Ohio App.3d 291, 609 N.E.2d 183. It is clear from reviewing the transcripts herein that defendant did not profess his innocence at the time of entering his plea. Defendant made no protestations of innocence until later in his motion to withdraw the plea and at sentencing. This chronology indicates that defendant did not enter an Alford plea. State v. Najeeullah, supra; State v. McCowan (Oct. 31, 1996), Cuyahoga App. No. 69683, unreported at 8. At the plea hearing, the court fully and fairly advised him of the rights he was waiving, including the presumption of innocence; defendant indicated he was fully satisfied with his lawyer's services; and defendant acknowledged he knowingly and voluntarily entered his plea. We find no grounds for reversing the trial court's acceptance of the plea or denial of its withdrawal. - 8 - Defendant's Assignment of Error II is overruled. Judgment affirmed. - 9 - It is ordered that appellee recover of appellant its 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 Court of Common Pleas to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. O'DONNELL, J., and KARPINSKI, J., CONCUR. JAMES M. PORTER PRESIDING JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the .