COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72148 STATE OF OHIO : JOURNAL ENTRY : AND Plaintiff-appellee : OPINION : -vs- : : TINO MCGEE : : Defendant-appellant : DATE OF ANNOUNCEMENT OF DECISION: MARCH 12, 1998 CHARACTER OF PROCEEDING: Criminal appeal from the Court of Common Pleas Case No. CR-344236 JUDGMENT: MODIFIED, AND AFFIRMED AS MODIFIED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. RONALD A. SKINGLE, ESQ. CUYAHOGA COUNTY PROSECUTOR 2450 St. Clair Avenue, #2 BY: DARCY MOULIN, ESQ. Cleveland, Ohio 44114 ASSISTANT COUNTY PROSECUTOR 1200 Ontario Street Cleveland, Ohio 44113 -2- DYKE, J.: Defendant Tino McGee appeals from the denial of his motion to vacate his guilty plea and also challenges the sentence which the trial court imposed following that plea. For the reasons set forth below, we modify defendant's sentence and, as so modified, we affirm the judgment of the trial court. On October 28, 1996, defendant and co-defendant Anthony Jones were jointly indicted pursuant to a six count indictment. Count one charged defendant with felonious assault upon Christopher Spicer. Count two charged defendant with felonious assault upon Cleveland Police Patrolman Dalton Preston and set forth peace officer specifications. Count three charged defendant with felonious assault upon Cleveland Police Sergeant Barrow and also set forth a peace officer specification. Count four charged defendant with one count of failing to comply with the order of a police officer with firearm specifications. Count six1 charged defendant with having a weapon while under disability. Each count of the indictment additionally contained one year, three year, and five year firearm specifications pursuant to R.C. 2941.141-R.C. 2941.146. Defendant pleaded not guilty to all charges at his arraignment. Thereafter, on January 27, 1997, the state amended counts two and three by deleting the one and five year firearm specifications, and amended count six by deleting all of the 1Count five of the indictment charged co-defendant Anthony Jones with having a weapon while under disability and is therefore not relevant to the disposition of this matter. -3- firearm specifications. Defendant then pleaded guilty to the amended charges and the state dismissed the remaining charges. The trial court accepted defendant's plea. Moments later, defendant orally moved to vacate his guilty plea. The trial court denied the motion then announced its sentence which included concurrent sentences for counts two and three, for a total of thirteen years incarceration. (Tr. 23-24). The court subsequently issued a journal entry in which it sentenced defendant to ten years incarceration, plus three years incarceration upon the firearm specification on count two. The court sentenced defendant to the same term on count three, and ordered that it be served consecutive to the term ordered in count two. The Court also sentenced defendant to six months incarceration on count six, and ordered that this term be served concurrently with the terms ordered in counts two and three. On February 27, 1997, defendant filed a motion to correct a clerical error in which he noted that the sentence pronounced in open court indicated that concurrent sentences, and not consecutive sentences, would be imposed for counts two and three. The record does not contain any ruling on this motion and we therefore presume that the trial court denied this motion. See Maust v. Palmer (1994) 94 Ohio App.3d 764, 769. Defendant now appeals and assigns four errors for our review. Defendant's first assignment of error states: THE TRIAL COURT ERRED BY ABUSING ITS DISCRETION IN DENY- ING DEFENDANT, TINO McGEE'S, PRE-SENTENCE MOTION TO -4- WITHDRAW HIS GUILTY PLEAS BECAUSE DEFENDANT WAS NOT AFFORDED A COMPLETE AND IMPARTIAL HEARING AND CONTINUED TO MAINTAIN HIS INNOCENCE. Within this assignment of error, defendant asserts that the trial court erred by overruling his oral motion to withdraw his guilty plea, which was made in open court immediately after the guilty plea was accepted. Defendant further contends that the trial court ignored his claims of innocence. With regard to the trial court's denial of defendant's motion to withdraw his guilty plea, the Supreme Court in State v. Xie (1992), 62 Ohio St.3d 521, held as follows: A defendant does not have an absolute right to withdraw a guilty plea prior to sentencing. A trial court must conduct a hearing to determine whether there is a reason- able and legitimate basis for the withdrawal of the plea. The decision to grant or deny a presentence motion to withdraw a guilty plea is within the sound discretion of the trial court. Id., paragraphs one and two of the syllabus. Accord State v. Donner(1994), 96 Ohio App.3d 486, 490; State v. Peterseim (1980), 68 Ohio App.2d 211, 213. The Xie Court further determined that an abuse of discretion is more than an error of judgment; the reviewing court must find that the trial court's ruling was unreasonable, arbitrary or unconscionable. Xie, supra., at 527. Moreover, this court has previously held that a mere change of heart is insufficient justification for the withdrawal of a guilty plea. See State v. Drake (1991), 73 Ohio App.3d 640, 645. In this instance, defendant contends that he proclaimed his innocence during the proceedings. The record reveals that defendant entered his guilty pleas to the charges following a full -5- colloquy pursuant to Crim.R. 11. ( Tr. 8-9) Thereafter, the court proceeded to address the issue of the sentence to be imposed and the state presented the victims of the offenses. At this time, it was revealed that the civilian victim, as alleged in count one of the indictment, could not be located. (Tr. 18) The following exchange then transpired: MR. LOVETT: Your Honor, it is his it is Mr. McGee's view that the version that was the invention that was presented in the court a few minutes ago by the officer is inaccurate. It is his wish to take the stand in his own defense to present his version of the events that happened that evening. He did not know word for word what the officer was going to indicate, and due to the circumstances and given the significance of these particular charges, I would ask again that the plea be withdrawn in order to allow him to present his version of the events. (Tr. 20-21) Accordingly, it must be emphasized that this matter cannot be characterized as an attempt to withdraw an Alford plea.2 Cf. State v. Hayes (1995), 101 Ohio App.3d 73, 75 (Withdrawal of plea should have been permitted where defendant and defense counsel expressed, in writing, prior to plea, that an Alford plea was being made and 2 In North Carolina v. Alford (1971), 400 U.S. 25, 38, the Supreme Court of the United States observed that guilty pleas which are linked with claims of innocence may be accepted where the defendant intelligently concludes that his interests require a guilty plea and the record strongly evidences guilt. -6- requirements of Crim.R. 11 were not met). At no point prior to the entry of the guilty pleas were there any protestations of innocence. Having made this clarification in the record, we further note that the circumstances of this particular matter indicate that defendant sought to withdraw his plea only after learning that the victim, as alleged in count one of the indictment, could not be located. The record therefore suggests that the motion was motivated by defendant's belief that had he gone to trial, he could not have been convicted of count one of the indictment, and the state's dismissal of this charge pursuant to the plea agreement was therefore less beneficial than he originally thought it was. Accordingly, we conclude that the motion was premised upon a change of heart cf. State v. Drake, supra, and we are unable to conclude that the trial court abused its discretion in denying defendant's pre-sentence motion to vacate his guilty plea. The first assignment of error is overruled. Defendant's second assignment of error states: THE TRIAL COURT ERRED BY INCORRECTLY ENTERING IN ITS JOURNAL ENTRY THAT DEFENDANT, TINO McGEE, WAS TO SERVE TWO TEN YEAR SENTENCES, EACH WITH A FIREARM SPECIFICA- TION, CONSECUTIVELY WHEN THE RECORD INDICATES THAT THE TRIAL COURT IMPOSED THE TWO SENTENCES CONCURRENTLY. Within this assignment of error, defendant asserts that the trial court erred in imposing consecutive sentences on counts two and three of the indictment because the sentence pronounced in open court indicated that concurrent terms of imprisonment would be -7- imposed for these charges. In evaluating the merit of this assignment of error, we note that the state concedes that an error occurred in connection with the court's journalization of sentence. In State v. Bell (1990), 70 Ohio App.3d 765, 772-773, this court examined an inconsistency between the sentence pronounced in open court and the sentence set forth in the court's journal entry. This court held as follows: In his second assignment of error, defendant alleges: The trial court erred and violated appellant's right to due process of law by journalizing an entry which increased appellant's sentence on the felonious assault charge to twelve to fifteen years when it had pronounced in open court a sentence of eight to fifteen years for the same offense. * * * In order to modify a sentence pronounced in open court, it is necessary for the modification to be formalized in a journal entry, even though the original sentence was not. State v. Sweeney (Apr. 1, 1982), Cuyahoga App. No. 43810, unreported, 1982 WL 5274; State v. Butler (1974), 44 Ohio App.2d 177, 73 O.O.2d 196, 337 N.E. 2d 633. Furthermore, the trial court does not possess statutory authority to increase a lawful sentence after the defendant has served part of that sentence. Brookpark v. Necak(1986), 30 Ohio App.3d 118, 30 OBR 218, 506 N.E.2d 936. In the present case the judgment entry filed on April 20, 1989, failed to indicate that a different sentence had previously been imposed in open court and was subsequently vacated. Therefore, the modified sentence as stated in the judgment entry is ineffective and invalid. State v. Sweeney, supra; State v. Butler, supra. Further, Crim.R. 43(A) provides in pertinent part as follows: The defendant shall be present at the arraignment and every stage of the trial, including the impaneling of the jury, the return of the verdict, and the imposition of sentence. *** It has been held that Crim.R. 43(A) applies when one -8- sentence is vacated and a new sentence is imposed. Columbus v. Rowland (1981), 2 Ohio App.3d 144, 145, 2 OBR 158, 159-160, 440 N.E.2d 1365, 1366-1367. We agree that Crim.R. 43(A) requires the physical pre- sence of a defendant during sentencing. Review of the record fails to reveal that the defendant was present during imposition of the twelve-to fifteen-year sentence. It does, however, reveal that defendant was present during imposition of the eight-to fifteen-year sentence. In this regard the trial court's imposition of the eight- to fifteen-year sentence complied with Crim.R. 43 mandates, while the imposition of the twelve-to fifteen- year sentence did not. Accordingly, under the authority of App.R.12(B), we hereby reinstate the sentence of eight to fifteen years. By application of the foregoing, we likewise reinstate the sentence pronounced in open court. The second assignment of error is well-taken. Defendant's third assignment of error states: THE TRIAL COURT ERRED BY IMPOSING MORE THAN ONE ADDI- TIONAL THREE YEAR PRISON TERM FOR A FIREARM SPECIFICATION ON DEFENDANT, TINO McGEE'S, TWO CONVICTIONS FOR FELONIOUS ASSAULT WITH PEACE OFFICER SPECIFICATION IN VIOLATION OF SECTION 2929.14(D)(1)(A)(i) OF THE OHIO REVISED CODE. Within this assignment of error, defendant maintains that the trial court erred in imposing two separate firearm specifications in this matter. Pursuant to R.C. 2929.14(D), when an offender is convicted of or pleads guilty to a felony and is also convicted of or pleads guilty to a firearm specification in accordance with R.C. 2941.141, R.C. 2941.144, or R.C. 2941.145, then the court shall impose an additional period of incarceration for that specification. How- ever, a court shall not impose more than one additional prison -9- term on an offender under this division for felonies committed as part of the same act or transaction. R.C. 2929.14(D). The term transaction within the meaning of R.C. 2929.71(B), the predecessor of R.C. 2929.14, has been defined as `a series of continuous acts bound together by time, space and purpose, and directed toward a single objective.' State v. Wills (1994), 69 Ohio St.3d 690, 691, quoting State v. Caldwell (December 4, 1991), Summit App. No. 14720, unreported, at 26-27. This court, in State v. Williams (October 23, 1997), Cuyahoga App. Nos. 71151-71154, unreported, and the Erie County Court of Appeals, in State v. Yee (November 18, 1994), Erie App. No. E-93- 72, unreported, have noted the difficulties inherent to determining whether the offenses are committed as part of the same act or transaction when it is proceeding from a guilty plea and not a trial. In this instance, the record indicates that defendant taunted both officers, then began to shoot at them. (Tr. 17) There is therefore some indication, at least as these two offenses of the indictment are concerned, the acts of shooting at these officers were bound together by time, space and purpose, and were directed toward a single objective, i.e., evading arrest. Thus, there is support in the record for the imposition of a single firearm specification. The third assignment of error is well-taken. Defendant's fourth assignment of error states: -10- THE TRIAL COURT'S IMPOSITION OF THE MAXIMUM PRISON TERM FOR THE DEFENDANT, TINO McGEE'S, TWO CONVICTIONS FOR FELONIOUS ASSAULT WITH A PEACE OFFICER SPECIFICATIONS CONTRARY TO LAW BECAUSE THE TRIAL COURT FAILED TO SET FORTH ITS REASONS FOR IMPOSING THE MAXIMUM PRISON TERM PURSUANT TO SECTION 2929.19(B) OF THE OHIO REVISED CODE. Finally, defendant asserts that the trial court failed to comply with R.C. 2929.19 in ordering that defendant serve the maximum statutory prison time. With regard to the length of the term imposed, R.C. 2929.19(B) provides as follows: (2) The court shall impose a sentence and shall make a finding that gives its reasons for selecting the sentence imposed in any of the following circumstances: *** If the sentence is for two or more offenses arising out of a single incident and it imposes a prison term for those terms that is the maximum prison term allowed for the offense of the highest degree by division (A) of Section 2929.14 of the Revised Code, its reasons for imposing the maximum prison term. R.C. 2929.14 in turn provides that: *** the court imposing a sentence upon an offender for a felony may impose the longest prison term authorized for the offense pursuant to division (A) of this section only upon offenders who committed the worst forms of the offense, upon offenders who pose the greatest likelihood of committing future crimes ****. In this instance, the record demonstrates that the trial court took note of the fact that defendant tried to kill a couple of policemen and that he pointed a gun at somebody in a police officer's uniform [and pulled] the trigger. (Tr. 22) Accordingly, this assignment of error lacks support in the record and is therefore without merit. Cf. L.A.& D. v. Board of Commissioners -11- (1981), 67 Ohio St.2d. 384, 388. The fourth assignment of error is overruled. Defendant's sentence is modified in order to indicate that defendant is ordered to serve concurrent, and not consecutive, periods of incarceration upon his convictions for counts two and three of the indictment, and is further modified to indicate that a single firearm specification shall be imposed. As so modified, the judgment of the trial court is hereby affirmed. This cause is hereby remanded to the trial court with instructions to direct the Clerk of Courts to forward a certified copy of this journal entry to the institution to which defendant is sentenced. -12- 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 Common Pleas Court 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. PORTER, P.J., AND ROCCO, J., CONCUR. ANN DYKE 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 .