[Cite as State v. Carey, 2012-Ohio-3359.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 97444

STATE OF OHIO 

PLAINTIFF-APPELLEE

vs. 

KIRK CAREY

 DEFENDANT-APPELLANT

JUDGMENT: 

AFFIRMED

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-536537 

BEFORE: Jones, J., Blackmon, A.J., and Keough, J. 

 

RELEASED AND JOURNALIZED: July 26, 2012
ATTORNEY FOR APPELLANT 

Thomas A. Rein 

Leader Building 

Suite 940 

526 Superior Avenue 

Cleveland, Ohio 44114

ATTORNEYS FOR APPELLEE

William D. Mason 

Cuyahoga County Prosecutor 

BY: Carrie Heindrichs 

Assistant County Prosecutor 

The Justice Center, 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
LARRY A. JONES, SR., J.: 

{¶1} Defendant-appellant, Kirk Carey, appeals from the trial court’s decision to 

deny his request to withdraw his plea. Carey also appeals his 13-year sentence. We 

affirm. 

 Procedural History and Facts

{¶2} In April 2010, Carey was indicted on several charges. In September 2011, 

after he was found competent to stand trial, Carey pleaded guilty to amended Counts 1 

and 8 of the indictment, aggravated robbery each with one-year firearm specifications. 

As part of the plea agreement, the state and defense agreed that the two counts would not 

merge for the purpose of sentencing. The remaining counts of the indictment were 

nolled. 

{¶3} Sentencing took place on October 5, 2011. During the hearing, prior to the 

trial court imposing sentence, Carey requested that he be allowed to withdraw his plea. 

The trial court denied his request. The court sentenced him to a 13-year prison term, 

which consisted of five years on Count 1, six years on Count 8, one year on each of the 

firearm specifications, with both counts and specifications to run consecutively. 

{¶4} The facts that gave rise to the charges involved two robberies Carey 

committed four days apart, in broad daylight. The first robbery occurred in Lakeview 

Cemetery and involved a family. The parents, along with their 7- and 12-year old 

daughters, were visiting the cemetery and the mother was taking photographs. Carey 
approached the husband and asked if he could use his phone. The husband told him that 

his phone was dead; Carey then demanded the husband’s money. Carey had a gun in his 

waistband and told the husband “don’t make me use this.” After the husband gave 

Carey all his money, Carey demanded the keys to the family’s vehicle. Carey drove off 

in the family’s car, which had in it approximately $12,000 worth of photography 

equipment, as well as other personal effects belonging to the family. 

{¶5} The second robbery occurred on Coventry Road in Cleveland Heights. 

Carey approached the victim, robbed him at gunpoint, got his car keys, and fled the scene 

in the victim’s vehicle. 

{¶6} Carey now assigns the following errors for our review: 

[I.] The trial court erred in not allowing Appellant to withdraw his guilty 

plea prior to sentencing. 

[II.] Appellant did not enter his guilty plea knowingly, intelligently, or 

voluntarily because the trial court failed to properly inform him of his rights 

as required by Crim.R. 11(C)(2)(b), as it did not specifically inform that the 

court, upon acceptance of the plea, may proceed to with judgment and 

sentence. 

[III.] Appellant’s sentences are contrary to law. 

 Law and Analysis

{¶7} For his first assigned error, Carey contends that the trial court’s denial of his 

request to withdraw his plea was an abuse of discretion. For his second assigned error, 

Carey contends that his plea was not knowingly, intelligently, and voluntarily made 

because the trial court did not inform that upon acceptance of the plea, the court may 

proceed with judgment and sentence. We disagree. 
{¶8} Under Crim.R. 32.1, “[a] motion to withdraw a plea of guilty or no contest 

may be made only before sentence is imposed; but to correct manifest injustice the court 

after sentence may set aside the judgment of conviction and permit the defendant to 

withdraw his or her plea.” This court has treated a motion to withdraw a plea made at 

the sentencing hearing, prior to the court imposing a sentence, as a presentence motion. 

See, e.g., State v. Clere, 187 Ohio App.3d 682, 2010-Ohio-2884, 933 N.E.2d 333 (8th 

Dist.), ¶ 15-16; State v. Nicholson, 8th Dist. No. 91652, 2009-Ohio-3592, ¶ 26, 29; State 

v. Nicholson, 8th Dist. No. 82825, 2004-Ohio-2394, ¶ 6-7. This court has further held 

that a defendant’s motion to withdraw a guilty plea need not be written. Nicholson, at ¶ 

8 (“Defendant’s oral motion on the day of sentencing was * * * adequate.”) 

{¶9} The general rule is that motions to withdraw guilty pleas before sentencing 

are to be freely and liberally allowed. State v. Peterseim, 68 Ohio App.2d 211, 214, 428 

N.E.2d 863 (8th Dist.1980), citing Barker v. United States, 579 F.2d 1219, 1223 (10th 

Cir.1978). However, a defendant does not have an absolute right to withdraw a guilty 

plea prior to sentencing. State v. Xie, 62 Ohio St.3d 521, 584 N.E.2d 715 (1992), 

paragraph one of the syllabus. In ruling on a presentence motion to withdraw a plea, the 

court must conduct a hearing and decide whether there is a reasonable and legitimate 

basis for withdrawal of the plea. Id. The decision to grant or deny such a motion is 

within the sound discretion of the trial court. Id. at paragraph two of the syllabus. 

{¶10} The record here demonstrates that at the beginning of the sentencing hearing 

the trial court asked the parties if there was any reason not to proceed. Carey’s attorney 
responded “no.” The trial court then allowed the state to proceed, and the assistant 

prosecuting attorney discussed the severity of the crimes and Carey’s extensive criminal 

history. Carey’s attorney then spoke on his behalf. One of the victims spoke next 

about the impact of the crime on himself and his family. Carey then had the opportunity 

to address the court and began by apologizing for his actions. Carey then disputed one 

of his prior convictions, and after the court told him that “[i]t’s uncontroverted that you 

have that robbery conviction in Summit County,” Carey asked to withdraw his plea; the 

court denied his request. 

{¶11} On this record, we find that Carey merely had a change of heart, which is 

not a sufficient ground to withdraw a plea. State v. Deloach, 2d Dist. No. 21422, 

2006-Ohio-6303, ¶ 17. The record here demonstrates that Carey was represented by 

counsel who competently advocated on his behalf throughout the proceedings. Further, 

our review of the record shows that the trial court complied with the constitutional and 

procedural safeguards contained within Crim.R. 11. We overrule Carey’s argument that 

his plea was invalid because the trial court failed to inform him that upon acceptance of 

his plea the court could immediately proceed to judgment and sentence. Carey was not

immediately sentenced; rather sentencing occurred approximately two weeks after the 

plea, after a presentence investigation report had been completed. Carey, therefore, was 

not prejudiced by the court’s omission. See State v. Johnson, 11th Dist. No. 

2002-L-024, 2004-Ohio-331, ¶ 20. 

{¶12} In light of the above, the first and second assignments of error are overruled. 
{¶13} In his final assignment of error, Carey contends that the trial court erred in 

sentencing him to consecutive terms. 

{¶14} We review felony sentences under the standard set forth in State v. Kalish, 

120 Ohio St.3d 23, 2008-Ohio-4912, 896 N.E.2d 124. First, we examine the sentencing 

court’s compliance with all applicable rules and statutes in imposing the sentence to 

determine whether the sentence is clearly and convincingly contrary to law. If this first 

prong is satisfied, the trial court’s decision is then reviewed under an abuse-of-discretion 

standard. 

{¶15} Through the enactment of H.B. 86, the General Assembly recently amended 

Ohio’s sentencing statutes. H.B. 86 became effective on September 30, 2011, and Carey 

was sentenced on October 5, 2011; therefore, the amendments were applicable to him. 

Relative to this appeal, the revisions under H.B. 86 now require a trial court to make 

specific findings when imposing consecutive sentences. Specifically, R.C. 

2929.14(C)(4) provides as follows: 

(4) If multiple prison terms are imposed on an offender for convictions of 

multiple offenses, the court may require the offender to serve the prison 

terms consecutively if the court finds that the consecutive service is 

necessary to protect the public from future crime or to punish the offender 

and that consecutive sentences are not disproportionate to the seriousness of 

the offender’s conduct and to the danger the offender poses to the public, 

and if the court also finds any of the following: 

(a) The offender committed one or more of the multiple offenses while the 

offender was awaiting trial or sentencing, was under a sanction imposed 

pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised Code, or 

was under post-release control for a prior offense. 

(b) At least two of the multiple offenses were committed as part of one or 
more courses of conduct, and the harm caused by two or more of the 

multiple offenses so committed was so great or unusual that no single 

prison term for any of the offenses committed as part of any of the courses 

of conduct adequately reflects the seriousness of the offender’s conduct. 

(c) The offender’s history of criminal conduct demonstrates that 

consecutive sentences are necessary to protect the public from future crime 

by the offender. 

{¶16} In sentencing Carey, the trial court stated in relevant part the following: 

You have a long criminal history. And it’s surprising in some respects to 

see that it looks like it’s escalating with your age rather than de-escalating. 

You do have an extensive record. I believe you’ve been to prison on at 

least 8 separate occasions. You have violated supervision when placed on 

supervision. I take exception to the fact that you say that they have been 

all petty — I think is the word you used — offenses. 

* * * 

This is bad conduct. You’ve been sent to prison for years and years. 

* * * 

But this is a public safety issue. And after doing that to this family and 

taking their car, 4 days later another robbery with a gun on a public busy 

street. You’re dangerous. You have a high risk of re-offending. * * * 

* * * 

And I know that your attorney is begging for concurrent time. I’m making 

a finding that I do not believe, given the factors I’ve stated on the record 

here today, such as the seriousness of the offense [and] the danger posed by 

you, that that is an appropriate sentence to impose. And that is the finding 

that I make and I’ve given reasons for it, as well. 

{¶17} On this record, we find that the trial court made the statutorily mandated 

findings for the imposition of consecutive sentences. The third assignment of error is 

therefore overruled. 
{¶18} Judgment affirmed. 

It is ordered that appellee recover from appellant 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. 

 

LARRY A. JONES, SR., JUDGE 

PATRICIA ANN BLACKMON, A.J., and 

KATHLEEN ANN KEOUGH, J., CONCUR