COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72419 STATE OF OHIO Plaintiff-appellee JOURNAL ENTRY vs. AND DELMAR CUTLIP OPINION Defendant-appellant DATE OF ANNOUNCEMENT OF DECISION: JUNE 18, 1998 CHARACTER OF PROCEEDINGS: Criminal appeal from Common Pleas Court Case No. CR-319536 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee: For defendant-appellant: STEPHANIE TUBBS JONES BROOKS J. CHAPIN Cuyahoga County Prosecutor 930 Leader Building 526 Superior Avenue GAIL D. BAKER Cleveland, Ohio 44114 Assistant Prosecuting Attorney The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 -2- KARPINSKI, J.: Defendant-appellant, Delmar Cutlip, appeals from the judgment of the trial court which accepted his plea of guilty to one count of attempted rape and one count of gross sexual imposition. At the time he was indicted on these charges, defendant was in jail for unrelated crimes. The state alleged that the crimes in the case at bar took place between 1983 and 1987 with the alleged victim being defendant's stepdaughter. On appeal, defendant argues that the trial court erred in accepting the plea without ascertaining the factual basis of the plea in the face of defendant's protestations of innocence. For the following reasons we disagree with defendant's argument and affirm the judgment of the trial court. Defendant pled guilty after plea negotiations with the state. In consideration of the plea, the state dropped the counts of rape. At the plea hearing, the trial court conducted the colloquy required under Crim. R. 11. Defendant cites two instances in which he indicated he was hesitant to plead guilty. The first came when the judge asked defendant whether he knew of his right to trial by jury. THE COURT: Now you could try your case to a jury of 12 persons seated there, or you could waive the jury and try your case to me, the Judge. You understand that you do have an absolute right to trial by jury or to the Judge in this case? MR.CUTLIP: Yes, sir, your Honor, I do. THE COURT: Okay. MR. CUTLIP: I just feel that -- THE COURT: You think it's in your best interest to enter into this plea agreement rather than go to trial, is that correct? -3- MR. CUTLIP: I think it's in my best interest to go to enter this plea. I don't want to drag my family through this, your Honor. (Tr. 10-11.) The court then continued with the colloquy. After asking defendant how he pled to each count, the judge specifically informed defendant of the sentence the judge intended to impose. Thus when defendant pled guilty to each count, he knew what each sentence would be. Later, before the judge actually imposed the sentence, defendant was asked whether he had anything to say. Defendant answered as follows: Your Honor, God being my witness, I'm not guilty of any of this, but rather than drag my family through it, as I can't beat this case that's why I have entered the plea of guilty, and I have children out there. Due to my health and my age, they pray every day that I don't die in prison. They want me to return home, and I just pray that it be God's will that I get this over and done with and that I don't have to die in prison. Thank you. (Tr. 18.) The trial court then proceeded to sentence defendant consistent with the earlier representations. Defendant never moved to withdraw his plea. Defendant timely appealed, raising the following assignment of error: I. THE TRIAL COURT ERRED IN ACCEPTING A GUILTY PLEA FROM THE DEFENDANT-APPELLANT WITHOUT ASCERTAINING A FACTUAL BASIS FOR THE PLEA IN SPITE OF DEFENDANT-APPELLANT'S CLAIMS OF INNOCENCE. In this assignment defendant argues that, because he contended he was innocent, the court erred in accepting his plea without ascertaining a factual basis for the plea. This argument has no merit. In support, defendant cites to North Carolina v. Alford (1970), 400 U.S. 25, in which the court held that a guilty plea may be accepted despite protestations of innocence if the validity of -4- the plea cannot seriously be questioned in view of a strong factual basis for the plea demonstrated by the record. This court has held that to accept a guilty plea under Alford conditions, the record must contain strong evidence of guilt. It is error for the court to accept such a plea 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 App.3d 339, 340; State v. Habart (Oct. 19, 1995), Cuyahoga App. No. 68545, unreported. It is well settled, however, that North Carolina v. Alford will not apply if the protestation of innocence is made after and not contemporaneously with the guilty plea. State v. Hurney (July 31, 1997), Cuyahoga App. No. 71053, unreported; State v. Hunter (Jan. 25, 1996), Cuyahoga App. Nos. 68447, 68448, 68449, 68450, 68451, 69306, unreported; State v. Briscoe (Mar. 15, 1995), Hamilton App. No. C-930909, unrepored; State v. Pate (Nov. 19, 1996), Hancock App. No. 5-97-12, unreported; State v. Mathews (Apr. 19, 1990), Montgomery App. 11690. Implicit in any Alford plea is the requirement that a defendant actually state his innocence on the record when entering a plea. State v. Murphy (Aug. 31, 1995), Cuyahoga App. No. 68129, unreported. The rationale for this rule is that a defendant should not be able to plead guilty and test the waters as to what the sentence would be and then bring that plea into doubt if the defendant is unhappy with the sentence. As this court stated, Before sentencing, the inconvenience to court and prosecution resulting from a change of plea is ordinarily -5- slight as compared with the public interest in protecting the right of the accused to trial by jury. But if a plea of guilty could be retracted with ease after sentence, the accused might be encouraged to plead guilty to test the weight of potential punishment, and withdraw the plea if the sentence were unexpectedly severe. State v. Peterseim (1980), 68 Ohio App.3d 211, 213, quoting Kadwell v. United States (C.A.9, 1963), 315 F.2d 667, 670. In the case at bar, defendant never made any protestation of innocence during the plea hearing. On the contrary, neither guilt or innocence was his focus. Rather, defendant's concern was on the effect a trial might have on his family. It was not until defendant was informed of the intended sentence that he denied any guilt. Under these circumstances it is not significant that the actual sentence was imposed later. More importantly, the first time defendant stated he did not commit the crime was after he learned what penalties the court intended to impose. Moreover, defendant never objected to the lack of a factual basis and never moved to withdraw his plea. Therefore, the necessary conditions specified in Alfordwere not met. Accordingly, the trial court did not err in accepting the guilty plea. Judgment affirmed. -6- 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. TERRENCE O'DONNELL, P.J., and TIMOTHY E. McMONAGLE, J., CONCUR. DIANE KARPINSKI 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 .