State v. Carey
2012 Ohio 3359
Ohio Ct. App.2012Background
- Carey was indicted in April 2010 on multiple charges and later pled guilty in September 2011 to amended Counts 1 and 8, aggravated robbery with one-year firearm specifications, under a plea that the two counts would not merge for sentencing and the other counts would be nolled.
- Sentencing occurred October 5, 2011; Carey sought to withdraw his plea before sentencing, but the trial court denied the request and imposed a 13-year term (5 years on Count 1, 6 years on Count 8, plus one year on each firearm spec, consecutively).
- The underlying offenses involved two robberies four days apart: the first at Lakeview Cemetery targeting a family, resulting in theft of money and a family car with photography equipment; the second on Coventry Road with gunpoint robbery and car-key theft.
- Carey challenged the denial of his presentence motion to withdraw his plea (I) and argued the plea was not knowing, intelligent, or voluntary because Crim.R. 11(C)(2)(b) was not properly explained (II); he also challenged the consecutive-sentence regime (III).
- The appellate court affirmed, concluding the withdrawal motion was a mere change of heart, Crim.R. 11 compliance was sufficient, and the consecutive sentences satisfied HB 86 findings under R.C. 2929.14(C)(4); the judgment was affirmed and execution of sentence remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Withdrawal of plea before sentencing | Carey sought withdrawal of plea as a presentence motion | Carey contends withdrawal was justified due to unfairness/Crim.R.11 shortcomings | Denial affirmed; no abuse of discretion; change of heart not adequate |
| Knowingly, intelligently, and voluntarily entered plea | Court failed to inform that it could proceed to judgment and sentence after acceptance | Crim.R.11 compliance was sufficient; no prejudice from omission | Denied; no prejudicial error; no lack of knowingness |
| Consecutive-sentence legality | HB 86 findings for consecutive terms not satisfied | Court properly found necessary HB 86 factors and reasoned; consistent with Kalish | Consecutive-sentence findings satisfied; judgment affirmed |
Key Cases Cited
- State v. Clere, 187 Ohio App.3d 682 (2010-Ohio-2884) (pre-sentencing withdrawal motion requires hearing; standard abuse of discretion)
- State v. Nicholson, 8th Dist. No. 91652, 2009-Ohio-3592 () (oral motion to withdraw plea at sentencing adequate)
- State v. Nicholson, 8th Dist. No. 82825, 2004-Ohio-2394 () (withdrawal of plea not an absolute right; liberal standard pre-sentencing)
- State v. Xie, 62 Ohio St.3d 521 (1992) (milestones for pre-sentencing withdrawal motions; establish discretion)
- State v. Deloach, 2d Dist. No. 21422, 2006-Ohio-6303 () (change of heart not valid grounds to withdraw plea)
- State v. Johnson, 11th Dist. No. 2002-L-024, 2004-Ohio-331 () (pre-sentence withdrawal considerations; delay and prejudice)
- State v. Kalish, 120 Ohio St.3d 23, 2008-Ohio-4912 () (standard for reviewing consecutive sentences under HB 86)