[Cite as State v. Alvelo, 2017-Ohio-742.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 104422

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

ERNESTO J. ALVELO

DEFENDANT-APPELLANT 

JUDGMENT: 

AFFIRMED IN PART; VACATED IN PART; 

REMANDED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-15-599547-A 

BEFORE: E.A. Gallagher, P.J., Stewart, J., and Blackmon, J. 

RELEASED AND JOURNALIZED: March 2, 2017 
ATTORNEY FOR APPELLANT

John F. Corrigan 

19885 Detroit Road, #335 

Rocky River, OH 44116 

ATTORNEYS FOR APPELLEE

Michael C. O’Malley 

Cuyahoga County Prosecutor 

BY: John F. Hirschauer 

Assistant Prosecuting Attorney 

The Justice Center, 9th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113 
EILEEN A. GALLAGHER, P.J.: 

{¶1} Defendant-appellant Ernesto Alvelo appeals his convictions, arguing that 

the trial court erred in accepting his guilty pleas. Alvelo contends that his guilty pleas 

should be vacated because they were “mixed with protestations of innocence” and, 

therefore, involuntary and because the trial court allegedly took “a vested interest” in the 

plea “by counseling” Alvelo that “he did not have a defense.” For the reasons that 

follow, we affirm Alvelo’s convictions. We find, however, that the trial court erred (1) in 

imposing sentences on counts of breaking and entering and having weapons while under 

disability in its sentencing journal entry that it did not orally impose at the sentencing 

hearing and (2) in ordering a different amount of restitution in its sentencing journal entry 

than it imposed at the sentencing hearing. Accordingly, we remand the matter for 

resentencing on the breaking and entering and having weapons while under disability 

counts and for entry of a nunc pro tunc order to correct the amount of restitution stated in 

the sentencing journal entry to that imposed at the sentencing hearing. 

Factual and Procedural Background

{¶2} On June 25, 2015, a Cuyahoga County Grand Jury indicted Alvelo on six 

counts — one count of aggravated robbery, one count of theft, one count of kidnapping, 

one count of breaking and entering and two counts of having weapons while under 

disability. With the exception of the having weapons while under disability counts, all of 

the counts included one-year and three-year firearm specifications. 
{¶3} The charges arose out of a September 8, 2015 incident in which Alvelo and 

another unidentified male allegedly robbed 80 year-old Stephen Lazor while he was 

working in the garage of one of his investment properties in Tremont area of Cleveland. 

 The two men entered the garage and demanded that Lazor turn over any money he had. 

Alvelo’s accomplice allegedly brandished a handgun and Alvelo allegedly told him to 

shoot Lazor if Lazor did not comply. In response to their threats, Lazor gave the men 

$294 in cash and they took his cell phone and fled the scene. Surveillance video from 

the garage showed Alvelo entering and leaving the garage. Still shots of the surveillance 

video were provided to the media and Alvelo was arrested after an anonymous tip 

identified him as one of the perpetrators. 

{¶4} On December 1, 2015, Alvelo and the state reached a “package [plea] deal.” 

 Pursuant to the plea agreement, Alvelo agreed to plead guilty to one of the counts of 

having weapons while under disability and three other amended counts — i.e., the 

aggravated robbery charge was reduced to robbery (a second-degree felony instead of a 

first-degree felony) with a one-year firearm specification and the firearm specifications 

were deleted from the theft and breaking and entering counts. Alvelo also agreed to 

plead guilty to one count of drug possession in an unrelated case (Case 

No.CR-15-597223), to pay $394 in restitution to the victim,1

 to have no contact with the 

victim and to cooperate with the authorities in their efforts to identify, locate and 

 1 The agreed restitution of $394 included restitution for the cell phone and $294 in cash that 

was taken.
prosecute his accomplice. In exchange for his guilty pleas, the remaining counts and 

firearm specifications were nolled. Defense counsel confirmed that a factual basis 

existed for Alvelo’s guilty pleas. After reviewing the terms of the plea agreement with 

the parties, the trial judge proceeded with the plea colloquy. 

{¶5} The trial judge asked Alvelo several preliminary questions then inquired 

whether he understood “what is happening here today.” Alvelo replied: “Pretty much, 

yeah, pretty much so.” Apparently sensing some hesitation by Alvelo, the trial court 

probed his understanding of the proceedings and explained in detail what would be 

occurring: 

THE COURT: You seem to hesitate a little bit. You said pretty much. Is 

there something you’re not clear on or not following? 

THE DEFENDANT: No, not really. I comprehend. 

THE COURT: So, why the hesitation? Talk to me about it. Let me say I 

understand that you’re expected to plead to some heavy duty charges here 

which is going to entail some prison. And, if there is some, I won’t say 

reluctance or some issues regarding that, I understand that. And so, I’m 

not trying to, I guess what I’m trying to say, I know this isn’t something you 

want to do, something you’re not looking forward to doing. And, if it’s 

along those lines, then I can deal with that. But, I’m trying to make sure 

that all your questions have been answered. We’re going to go over all 

your rights here. So you understand, you have certain rights. You 

understand that by your entering into this plea, you’ll be giving up those 

rights. We’re going to go through all these charges. I’m going to advise 

what your penalties are and advise you what your maximum exposure may 

be and what your worst case scenario, how much prison time you’re 

looking at. I’m going to talk about those things. If there is anything else 

other than these things, you got to let me know. If you’re not clear, 

somebody told you one thing, whatever it may be, those are issues we have 

to talk about on the record. Fair enough? 

THE DEFENDANT: Yes, sir. 
{¶6} Upon further inquiry by the trial court, Alvelo indicated that he did not 

realize, during his discussions with counsel regarding the plea agreement, that he would 

be “pleading guilty to all them counts.” 

{¶7} The trial judge explained that the plea agreement involved charges in two 

cases — this case and a “pretty straightforward” unrelated drug possession case. He 

further explained the amendments that would be made to the charges as part of the plea 

agreement, e.g., amending Count 1 from aggravated robbery to robbery and deleting the 

three-year firearm specification, and the impact of those changes, i.e., “shav[ing] off a 

minimum of three years from your potential sentence.” He also explained what it meant 

for two charges to be allied offenses, identified the charges to which Alvelo would be 

pleading guilty that would be considered allied offenses and explained the impact a 

determination that two offenses were allied offenses would have on his potential 

sentence, i.e., “there is not going to be a separate penalty or sentence for that.” Alvelo 

indicated that the trial judge’s explanation was helpful and that he had no questions at that 

time. The trial judge told Alvelo that if he had any questions at any other point in the 

proceedings or if there was anything he wished to discuss with counsel privately to let 

him know because “I want to make sure that happens.” Alvelo agreed that he would do 

so. 

{¶8} The trial judge then continued with the plea colloquy. Alvelo confirmed that 

no threats or promises had been made to induce him to change his pleas other than what 

had been stated on the record and that it was his decision to plead guilty to the charges as 
negotiated. With respect to the representation provided by defense counsel, Alvelo stated 

that he was “very” satisfied with the representation he had received and that defense 

counsel had “[d]one her job.” The trial judge advised Alvelo of his constitutional rights 

and confirmed that he understood the rights he would be waiving by entering guilty pleas. 

 He also confirmed that Alvelo understood that the trial court, upon acceptance of his 

guilty pleas, could immediately proceed with judgment and sentencing. The trial court 

went through each of the counts to which Alvelo would be pleading guilty, outlined the 

penalties he faced on each count, including the maximum prison sentence for each 

offense and confirmed that Alvelo understood each count and its potential penalties. 

{¶9} After discussing all of the charges, the trial judge once again inquired 

of Alvelo as to whether he had any questions. Alvelo indicated that he had no questions 

and again confirmed that he understood the charges to which he would be pleading guilty, 

the rights he would be giving up and the possible penalties he would face as a result of his 

guilty pleas: 

THE COURT: Do you have any questions of me about anything that we 

talked about here today or anything else? 

THE DEFENDANT: No. 

THE COURT: All right. You feel you have a complete understanding of all 

the rights that you’re giving up, all the possible penalties that you’re facing 

and all the charges that you’re expecting to plead guilty to? 

THE DEFENDANT: Yes. 

THE COURT: All right. Again, any questions at all? 

THE DEFENDANT: No. 
THE COURT: All right. Let the record reflect that the plea you’re about to 

tender will be made knowingly, voluntarily and intelligently. I am further 

going to find I have explained all your rights to you and that you understand 

the nature of the charges, the effect of a plea and the maximum penalties 

which I may impose. 

{¶10} Alvelo thereafter entered his guilty pleas and the trial court accepted those 

pleas, made findings of guilt and granted the state’s motion to dismiss the remaining 

counts and specifications. At no point prior to the entry of his guilty pleas or the trial 

court’s acceptance of his guilty pleas did Alvelo claim that he was innocent of any of the 

charges to which he pled guilty. 

{¶11} The trial court referred the case for preparation of a presentence 

investigation report (“PSI”) and scheduled a sentencing hearing. The trial judge then 

asked Alvelo whether he had ever been through the PSI “process” before. Alvelo 

explained that he had but that it was “many years ago.” The trial court explained the 

process to him then asked him about his criminal history and what had led to the incident 

giving rise to this case: 

THE COURT: What was going on in this case here? 

THE DEFENDANT: In this case? 

THE COURT: It’s been a while since you’ve been in trial? 

THE DEFENDANT: Yes, sir. I stuck my hand in the wrong cookie jar, 

sir, believe me. I’m a heroin addict. Friend of mine came by, asked me 

to collect money for him. I went to collect money for him. He said he 

couldn’t go in; there should be no problems. 

THE COURT: How long have you been doing heroin? 
THE DEFENDANT: Years. * * * 

But, thing is, when I went in there to get this money, it was basically over 

some girls, females. My buddy, the guy, I felt bad, little guy, a little old 

man, my buddy said it was girls and an older man. And, I just collected 

the money and left. I didn’t, I felt bad. I’m just supporting my habit, 

Your Honor. That’s what I do. I’m sorry. Referring to stuck my hand 

in the cookie jar, I shouldn’t have. 

{¶12} On December 22, 2015, the trial court conducted a sentencing hearing. 

Before imposing sentence, the trial court heard from defense counsel, the state, the victim 

and Alvelo. Defense counsel argued, based on the fact that there was no harm to the 

victim and that Alvelo was not the person who possessed the firearm, Alvelo’s heroin 

addiction and health issues and the fact that Alvelo took responsibility for his actions by 

entering a guilty plea, “knowing that he must go to prison for the firearm specification,” 

that the minimum sentence should be imposed. 

{¶13} The prosecutor and victim also addressed the court. The prosecutor 

described the incident, Alvelo’s role in the incident, the extent of his cooperation with the 

authorities and his criminal history. The victim also described what had happened and 

requested that Alvelo receive “the maximum penalty.” 

{¶14} When Alvelo addressed the trial court, he first apologized to the victim, then 

disputed that the incident was an armed robbery, asserting that he believed he was 

simply collecting a debt: 
THE DEFENDANT: Sir, I extremely apologize to the gentleman. As far 

as my — my knowledge, it was a debt that he owed in order for some 

prostitutions — prostitution were going on. That’s the only thing that I 

know. It was not a robbery, sir. And there was not a gun — there’s no 

way he saw a gun because neither one of us had one. And from my 

understanding, sir, it was a collection. It was not a robbery. He’s had 

problems in the past with prostitutions and everything else. The guys that I 

was involved with, sir, I don’t know anything else about them besides their 

names. That’s all I know. I gave the detective everything possible. 

{¶15} The trial court explored Alvelo’s claim that he was simply a debt collector: 

THE COURT: Did you want to see these pictures [the still shots from the 

surveillance video] one last time? 

THE DEFENDANT: No, sir. I’ve seen them. 

THE COURT: Okay. That’s your story; you’re sticking with it? 

THE DEFENDANT: Yes, sir. 

THE COURT: All right then. Anything else that you’d like me to know? 

THE DEFENDANT: I apologize to everyone. I mean, this is not what I 

do. I mean, I’m not a robber. I never been in trouble for robbery in my 

life. * * * 

THE COURT: You’re not a robber; you’re just a debt collector? Is — 

THE DEFENDANT: Yeah. The guy was — the guy said he was going to 

give me a bag of heroin if I helped him collect his money. That was it. 

That was all I made out of the deal. I didn’t make any money. 
THE COURT: So, just out of curiosity, what in your mind is the difference 

between robbing someone and collecting a debt? 

THE DEFENDANT: Well, I don’t know. I don’t think there is a 

difference, sir. 

THE COURT: Right. * * * 

{¶16} The robbery and theft counts merged for sentencing and the state elected to 

proceed to sentencing on the robbery count. The trial court sentenced Alvelo to an 

aggregate prison term of seven years — one year on the firearm specification, to run prior 

to and consecutive to a six-year sentence on the underlying robbery charge.2

 The trial 

court further ordered that the seven-year sentence in this case was to run consecutive to a 

12-month sentence imposed in Case No. 597223. The trial court also ordered payment of 

court costs and restitution3

 and imposed three years of mandatory postrelease control. 

{¶17} On May 3, 2016, Alvelo filed, pro se, a notice of appeal of his convictions, a 

motion for leave to file a delayed appeal and a motion to withdraw his guilty pleas 

pursuant to Crim.R. 32.1. On May 12, 2016, this court granted Alvelo’s motion for leave 

 2

The trial court did not orally impose a sentence on the breaking and entering 

and having weapons while under disability charges at the sentencing hearing. 

However, in its December 22, 2015 sentencing journal entry, the trial court imposed 

prison sentences of 12 months and 36 months, respectively, on those charges, to run 

concurrent to each other and concurrent to the seven-year sentence on the robbery 

count. 

3

Although the transcript from the sentencing hearing reflects that the trial court orally ordered 

restitution of $394 at the sentencing hearing, in its December 22, 2015 sentencing journal entry, the 

trial court imposed restitution of $395.
to file a delayed appeal and appointed appellate counsel. On June 28, 2016, the trial 

court summarily denied his motion to withdraw his guilty pleas. 

{¶18} Alvelo has raised the following two assignments of error for review: 

ASSIGNMENT OF ERROR I: 

The trial court erred in retaining a guilty plea amidst protestations of 

innocence and by taking a vested interest in retaining the plea by counseling 

appellant that his potential defense was meritless. 

ASSIGNMENT OF ERROR II: 

The trial court erred in denying appellant’s motion to withdraw his guilty plea. 

Law and Analysis

The Trial Court’s Acceptance and Retention of Alvelo’s Guilty Pleas 

{¶19} In his first assignment of error, Alvelo asserts that his guilty pleas were 

involuntary and that, due to the “protestations of innocence” that Alvelo contends were 

“mixed” with his guilty pleas, the trial court erred in accepting and “keeping” his guilty 

pleas. 

{¶20} “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); 

see also State v. Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 7. 

Crim.R. 11(C)(2) outlines the constitutional and procedural safeguards the trial court 

must follow when accepting a guilty plea in a felony case. It provides: 
In felony cases the court * * * shall not accept a plea of guilty * * * without 

first addressing the defendant personally and doing all of the following: 

(a) Determining that the defendant is making the plea voluntarily, 

with understanding of the nature of the charges and of the maximum 

penalty involved, and, if applicable, that the defendant is not eligible 

for probation or for the imposition of community control sanctions at 

the sentencing hearing. 

(b) Informing the defendant of and determining that the defendant 

understands the effect of the plea of guilty or no contest, and that the 

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

sentence. 

(c) Informing the defendant and determining that the defendant 

understands that by the plea the defendant is waiving the rights to 

jury trial, to confront witnesses against him or her, to have 

compulsory process for obtaining witnesses in the defendant’s favor, 

and to require the state to prove the defendant’s guilt beyond a 

reasonable doubt at a trial at which the defendant cannot be 

compelled to testify against himself or herself. 

{¶21} In considering whether a plea was entered knowingly, intelligently and 

voluntarily, “an appellate court examines the totality of the circumstances through a de 

novo review of the record.” State v. Spock, 8th Dist. Cuyahoga No. 99950, 

2014-Ohio-606, ¶ 7; see also State v. Jackson, 8th Dist. Cuyahoga No. 99985, 

2014-Ohio-706, ¶ 6. Where a defendant enters a guilty plea without asserting innocence, 

it is presumed that the defendant understands that he or she has admitted his or her guilt. 
State v. Griggs, 103 Ohio St.3d 85, 2004-Ohio-4415, 814 N.E.2d 51, ¶ 19; State v. 

Reeves, 8th Dist. Cuyahoga No. 100560, 2014-Ohio-3497, ¶ 12. 

{¶22} Alvelo concedes that “the [trial] court accepted [his] guilty plea[s] in 

compliance with Criminal Rule 11.” However, he contends that based on statements he 

made after the trial court accepted his guilty pleas — i.e., his assertions at the conclusion 

of the plea hearing and at the sentencing hearing that he was just “collecting a debt” and 

that “a firearm was not involved” in the incident — “an Alford situation was at hand,” 

such that the trial court erred in retaining Alvelo’s guilty pleas without “going through 

the process described in North Carolina v. Alford” and conducting an inquiry into the 

“factual framework to measure [his] claim of innocence against the willingness to waive 

trial.” Although the trial court had already found that Alvelo’s guilty pleas were made 

knowingly, voluntarily and intelligently, Alvelo contends that at “the moment when 

[Alvelo] stated that he thought he was collecting a debt,” “further inquiry was necessary 

to determine whether the guilty plea was knowingly, voluntarily, and intelligently 

entered.” We disagree. 

{¶23} An Alford plea exists where a defendant enters a guilty plea 

contemporaneously with a “protestation of innocence.” Alford v. North Carolina, 400 

U.S. 25, 37-38, 91 S.Ct. 160, 27 L.E.3d 162 (1970); State v. Clemm, 8th Dist. Cuyahoga 

No. 101291, 2015-Ohio-594, ¶ 26; see also State v. Wilkerson, 8th Dist. Cuyahoga No. 

100865, 2014-Ohio-3919, ¶ 17 (“An Alford plea results when a defendant pleads guilty 

yet maintains actual innocence of the crime charged.”). Where a defendant enters an 
Alford plea, the trial court must inquire into the factual basis surrounding the charges to 

determine whether the defendant is making an intelligent and voluntary guilty plea. See, 

e.g., State v. Corbett, 8th Dist. Cuyahoga No. 99649, 2013-Ohio-4478, ¶ 6. The trial 

court may accept the guilty plea only if a factual basis for the guilty plea is evidenced by 

the record. See, e.g., id. (“‘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’ demonstrating that the plea cannot seriously be 

questioned.”), quoting State v. Jones, 8th Dist. Cuyahoga No. 97674, 2012-Ohio-2512, ¶ 

5; State v. Johnson, 8th Dist. Cuyahoga No. 103408, 2016-Ohio-2840, ¶ 27 (“An Alford

plea may not be accepted when the record fails to demonstrate facts upon which the trial 

court can resolve the apparent conflict between a defendant’s claim of innocence and the 

defendant’s desire to plead guilty to the charges.”), citing State v. Tyner, 8th Dist. 

Cuyahoga No. 97403, 2012-Ohio-2770, ¶ 6. 

{¶24} Alvelo’s plea was not, however, an Alford plea. First, Alvelo’s assertions 

that he was merely collecting a debt and that no firearm was involved in the incident do 

not constitute “protestations of innocence” under Alford. “‘Implicit in any Alford plea is 

the requirement a defendant actually state his innocence on the record when entering a 

guilty plea.’” (Emphasis added.) Johnson at ¶ 27, quoting State v. Murphy, 8th Dist. 

Cuyahoga No. 68129, 1995 Ohio App. LEXIS 3924, *7 (Aug. 31, 1995); see also 

Wilkerson at ¶ 17-22 (rejecting defendant’s claim that he entered an Alford plea where 

defendant did not assert or maintain actual innocence at the plea hearing when the trial 
court reviewed the nature of the charged offenses and possible penalties with him, stated 

he understood that he would be admitting the charged offenses by pleading guilty and 

never attempted to withdraw his guilty pleas before the trial court imposed sentence). At 

no point did Alvelo assert or maintain his actual innocence of any of the charges to which 

he pled guilty. Further, prior to the entry of his guilty pleas, Alvelo stated that it was his 

decision to plead guilty. 

{¶25} Second, even if Alvelo’s assertions that he was merely collecting a debt and 

that no firearm was involved in the incident constituted “protestations of innocence” 

under Alford, such assertions were not contemporaneous with the entry of his guilty pleas. 

 For a plea to constitute an Alford plea, the defendant “must enter a guilty plea and at the 

same time protest innocence.” (Emphasis added.) Johnson at ¶ 27-28 (where defendant 

did not claim he was innocent of charges during plea colloquy, stated he was pleading 

guilty “on his own choice,” never attempted to withdraw his plea and first claimed 

innocence during his PSI interview, trial court had no duty to inquire into his reasons for 

pleading guilty under Alford). “‘It is well settled, * * * that North Carolina v. Alford will 

not apply if the protestation of innocence is made after and not contemporaneously with 

the guilty plea.’” Corbett at ¶ 7, quoting State v. Cutlip, 8th Dist. Cuyahoga No. 72419, 

1998 Ohio App. LEXIS 2899, *4 (June 18, 1998); see also Reeves, 2014-Ohio-3497, at ¶ 

13, fn. 1 (“Alford does not apply * * * where claims of innocence are made after the 

plea.”). 
{¶26} Alvelo disputes this proposition and claims, based on this court’s decision in 

State v. Jones, 8th Dist. Cuyahoga No. 97674, 2012-Ohio-2512, that “the exact timing” of 

a defendant’s “protestations of innocence” is “irrelevant.” The facts of Jones, however, 

are very different from those of this case. In Jones, the defendant appealed from the trial 

court’s denial of his presentence motion to vacate his plea. Id. at ¶ 1. Unlike in this 

case, the defendant in Jones explicitly questioned his guilt immediately after he entered 

his guilty plea and before the trial court accepted his plea, as follows: 

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. 

Id. at ¶ 2. Also, unlike in this case, the defendant in Jones filed a motion to withdraw his 

guilty plea prior to sentencing “in light of the fact that he had stated innocence at the plea 

hearing.” Id. at ¶ 3. This court held that because the defendant stated his innocence at 

the plea hearing and because the trial court thereafter accepted his plea “without a factual 
framework to measure his innocence against the willingness to waive trial,” his guilty 

plea was not made knowingly, voluntarily or intelligently and the trial court abused its 

discretion in denying the defendant’s presentence motion to withdraw his plea. Id. at ¶ 6, 

8. 

{¶27} In this case, Alvelo did not claim he was only collecting a debt or was 

otherwise innocent of the charges at issue at any point during the plea colloquy or before 

the trial court accepted his guilty pleas. It was only at the conclusion of the plea hearing, 

after the trial court had explained the PSI process and the use of the PSI in sentencing that 

it posed a question to Alvelo and Alvelo asserted that he was simply “collect[ing] money” 

for a friend. Alvelo, however, did not seek to withdraw his guilty pleas at that time. 

The other statements Alvelo contends constitute “protestations of innocence” — i.e., his 

assertion that “there is no way [the victim] saw a gun because neither of us had one” and 

his assertion that “from [his] understanding, * * * it was a collection * * * not a robbery” 

— were made during his allocution at the sentencing hearing. Because there was no 

reason to question Alvelo’s guilty pleas at the time they were made and Alvelo never 

sought to withdraw his guilty pleas prior to sentencing, the trial court had no duty to 

inquire into Alvelo’s reasons for pleading guilty or the facts underlying his guilty pleas in 

order to accept or “keep” his guilty pleas. See, e.g., Johnson, 2016-Ohio-2840, at ¶ 28; 

Corbett, 2013-Ohio-4478, at ¶ 7; see also Reeves, 2014-Ohio-3497, at ¶ 13 (“when a 

defendant makes claims of innocence after a guilty plea has been accepted, a trial court 

has no duty to inquire into a defendant’s reasons for pleading guilty”). 
{¶28} Furthermore, even if the trial court had an obligation to inquire as to the 

factual basis underlying Alvelo’s guilty pleas, the record contains sufficient facts to 

support the trial court’s determination that Alvelo’s guilty pleas were made knowingly, 

intelligently and voluntarily. Under Alford, a trial court may accept a guilty plea despite 

claims of innocence “when a factual basis for the guilty plea is evidenced by the record.” 

Johnson at ¶ 27. At the plea hearing, the trial court specifically asked defense counsel, 

prior to accepting Alvelo’s guilty pleas, whether a factual basis existed for his pleas. 

Defense counsel confirmed that a factual basis existed for the pleas. With respect to the 

firearm specification, defense counsel further stated, later on in the hearing, that the 

firearm specification with which Alvelo had been charged was based on complicity, i.e., 

that the “[v]ictim was clear” that it was Alvelo’s accomplice who possessed the firearm. 

{¶29} At the sentencing hearing, the prosecutor detailed the facts underlying the 

charges to which Alvelo had pled guilty, including the victim’s claims that a .380 caliber 

handgun had been brandished by Alvelo’s accomplice, and introduced still shots of 

surveillance videos that showed Alvelo and his accomplice entering and leaving the 

victim’s garage at the time of the incident. The victim also addressed the court and 

described Alvelo’s role in the incident. After Alvelo claimed at sentencing that he was 

“not a robber” and “just a debt collector,” the trial court probed his claims. Upon inquiry 

from the trial court, Alvelo acknowledged that, in his mind, under the circumstances here, 

he did not “think there is a difference” between “robbing someone” and “collecting a 

debt.” 
{¶30} Alvelo also contends that his guilty pleas were involuntary because the trial 

court improperly “advis[ed]” him, after it accepted his guilty pleas, “that he did not have a 

defense.” Alvelo’s argument is based on the following exchange at the sentencing 

hearing: 

THE COURT: So, just out of curiosity, what in your mind is the difference 

between robbing someone and collecting a debt? 

THE DEFENDANT: Well, I don’t know. I don’t think there is a 

difference, sir. 

THE COURT: Right. Is there anything else you’d like me to know? 

THE DEFENDANT: No, sir. 

{¶31} The trial court did not advise Alvelo that “he did not have a defense.” 

Furthermore, this exchange occurred at the sentencing hearing — several weeks after 

Alvelo had entered his guilty pleas. As such, it could not have rendered his guilty pleas 

involuntary. Alvelo’s argument is meritless. 

{¶32} Alvelo concedes that the trial court complied with Crim.R. 11 in accepting 

his guilty pleas. A defendant’s after-the-fact protestations of innocence are insufficient 

grounds for vacating a plea that was voluntarily, knowingly and intelligently entered. 

Reeves, 2014-Ohio-3497, at ¶ 13. Following a thorough review of the record, we find 

that, under the totality of the circumstances presented here, Alvelo subjectively 

understood the consequences of pleading guilty and that his guilty pleas were knowingly, 

intelligently and voluntarily made. Accordingly, Alvelo’s first assignment of error is 

overruled. 
Denial of Crim.R. 32.1 Motion to Withdraw Guilty Pleas 

{¶33} In his second assignment of error, Alvelo argues that the trial court erred in 

denying his Crim.R. 32.1 postsentence motion to withdraw his guilty pleas. We lack 

jurisdiction to consider this assignment of error. Alvelo’s motion to withdraw his guilty 

pleas was filed on May 6, 2016, the same day he filed his notice of appeal in this case. 

This court granted Alvelo’s motion for leave to file a delayed appeal on May 12, 2016. 

Alvelo appealed only from the trial court’s December 22, 2015 judgment entry of 

conviction, not the trial court’s subsequent June 28, 2016 order denying his motion to 

withdraw his guilty pleas. Accordingly, Alvelo’s second assignment of error is not 

properly before this court. 

Errors in Sentencing

{¶34} Although we affirm Alvelo’s convictions, we note, sua sponte, that the trial 

court erred (1) in imposing sentences on the breaking and entering and having weapons 

while under disability counts in its sentencing journal entry that it did not impose at the 

sentencing hearing and (2) ordering restitution of $395 in its sentencing journal entry 

given that it orally imposed $394 in restitution at the sentencing hearing. See, e.g., State 

v. Wharton, 2015-Ohio-5026, 53 N.E.3d 758, ¶ 31-35 (4th Dist.) (where appellate counsel 

did not assign error to defendant’s sentence, court sua sponte reviewed sentence where an 

obvious defect existed in the trial court’s sentence such that the trial court imposed a 
sentence that is contrary to law); see also State v. Vinson, 8th Dist. Cuyahoga No. 103329, 

2016-Ohio-7604, ¶ 66 (“This court may recognize plain error, sua sponte, to prevent a 

miscarriage of justice.”). 

{¶35} “A trial court cannot impose a sentence in the sentencing entry that differs 

from that it imposed at the sentencing hearing.” State v. Vaughn, 8th Dist. Cuyahoga 

No. 103330, 2016-Ohio-3320, ¶ 18; see also State v. West, 9th Dist. Summit No. 27485, 

2015-Ohio-2936, ¶ 49-52 (matter remanded for resentencing where trial court sentenced 

defendant on drug paraphernalia count in sentencing journal entry after trial court failed 

to address that count at sentencing hearing); State v. Jackson, 1st Dist. Hamilton No. 

C-140178, 2014-Ohio-5008, ¶ 22 (“a trial court’s sentence is contrary to law when it 

imposes a sentence in the sentencing entry different from the sentence announced at the 

sentencing hearing”); State v. King, 184 Ohio App.3d 226, 2009-Ohio-4551, 920 N.E.2d 

399, ¶ 40 (8th Dist.) (trial court committed plain error where it failed to orally pronounce 

sentence on every count). In addition, Crim.R. 43(A) provides that a defendant “must be 

physically present at every stage of the criminal proceeding and trial, including * * * the 

imposition of sentence * * *.” There is nothing in the record to suggest that Alvelo 

waived his right to be physically present for the imposition of sentences on these counts 

under Crim.R. 43(A)(3). 

{¶36} Accordingly, we vacate the sentences imposed on the breaking and 

entering and having weapons while under disability counts and remand for resentencing 
on those counts and for the entry of a nunc pro tunc order to correct the amount of 

restitution imposed to $394, as stated at the sentencing hearing. 

{¶37} Judgment affirmed in part; sentences on breaking and entering and having 

weapons while under disability counts vacated; case remanded for resentencing on 

breaking and entering and having weapons while under disability counts and for the entry 

of a nunc pro tunc order to correct the amount of restitution imposed to $394, as stated at 

the sentencing hearing. 

It is ordered that appellant recover from appellee the 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 Cuyahoga 

County Court of Common Pleas 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. 

______________________________________________ 

EILEEN A. GALLAGHER, PRESIDING JUDGE 

MELODY J. STEWART, J., and 

PATRICIA A. BLACKMON, J., CONCUR