[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
