[Cite as State v. Lucas, 2014-Ohio-3876.]

STATE OF OHIO, BELMONT COUNTY 

IN THE COURT OF APPEALS 

SEVENTH DISTRICT 

STATE OF OHIO ) CASE NO. 12 BE 29 

) 

PLAINTIFF-APPELLEE ) 

) 

VS. ) OPINION 

) 

MARK ALLEN LUCAS ) 

) 

DEFENDANT-APPELLANT ) 

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of 

Common Pleas of Belmont County, Ohio 

Case No. 12 CR 072 

JUDGMENT: Affirmed. 

APPEARANCES: 

For Plaintiff-Appellee: Atty. Christopher Berhalter 

Belmont County Prosecutor 

Atty. Helen Yonak 

Assistant Prosecuting Attorney 

147-A West Main Street 

St. Clairsville, Ohio 43950 

For Defendant-Appellant: Atty. Scott C. Essad 

721 Boardman-Canfield Road 

Suite 201 

Boardman, Ohio 44512 

JUDGES: 

Hon. Cheryl L. Waite 

Hon. Gene Donofrio 

Hon. Mary DeGenaro 

Dated: September 8, 2014
[Cite as State v. Lucas, 2014-Ohio-3876.]

WAITE, J. 

{¶1} Appellant Mark Allen Lucas pleaded guilty to a reduced charge of 

receiving stolen property in Belmont County Common Pleas Court. At sentencing, 

the trial court imposed the community control sanctions recommended in the plea 

agreement. After sentencing, Appellant filed a motion to withdraw his plea. The trial 

court denied Appellant’s postsentencing motion. Appellant appeals this denial, 

alleging his plea was not knowingly entered. Appellant’s three assignments of error 

are without merit and are overruled. The judgment of the trial court is affirmed. 

Factual and Procedural History

{¶2} On February 6, 2012 Appellant was charged with breaking and 

entering, a violation of R.C. 2911.13, and receiving stolen property, a violation of R.C. 

2913.51, in a criminal complaint. The matter was set for a plea hearing in lieu of 

indictment. The plea hearing was held on April 27, 2012 after Appellant’s motion to 

continue the plea hearing was denied. 

{¶3} The record of the hearing reflects that there was some pre-hearing 

doubt that Appellant would appear. According to the trial court, counsel for Appellant 

was informed that the prosecuting attorney would submit the charges to the Grand 

Jury for indictment if Appellant did not appear as scheduled. 

{¶4} When Appellant ultimately appeared at the plea hearing, there was 

some initial confusion over which charge would be presented, in part due to the 

appearance of a different prosecutor. The confusion was resolved during a brief 

recess that also allowed Appellant to confer with counsel. There is no indication on 

the record as to the duration of this recess. 
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{¶5} After recess, the state went forward on one count of receiving stolen 

property, a reduced charge. Appellant entered his waiver of indictment, which the 

court explained to him was a waiver of multiple state and federal constitutional rights, 

including the right: 

to have this matter examined by the Belmont County Grand Jury * * * to 

be served with a copy of the Indictment [if the grand jury finds probable 

cause and issues an indictment]; have 24 hours to review it and then to 

proceed with an arraignment. And at arraignment, I would read it to you 

in open court and advise you of all the rights you have under Criminal 

Rule 10, at which time you would enter a plea. We would have a judge 

assigned to your cases and the matter would be scheduled for trial. 

Now, you’re waiving all of those rights by signing this waiver and you’re 

allowing this Bill of Information to be placed before me. And this Bill of 

Information states that there is a charge here of receiving stolen 

property in excess of $1,000, which makes this a felony of the fifth 

degree, punishable by a maximum punishment of 12 months in the 

penitentiary and a $2,500 fine. 

(Plea Tr., p. 6.) After verbally entering his waiver of indictment in open court and 

signing the information and waiver documents, Appellant entered a guilty plea to the 

charge of receiving stolen property valued in excess of $1,000. Prior to accepting 

Appellant’s guilty plea, the trial court engaged in the colloquy required by Crim. R. 11 

and ascertained that Appellant was a U.S. citizen, had the ability to read, understood 
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the proceedings, was not under the influence of drugs or alcohol and was entering 

his plea voluntarily, without threat or promises. The court also established that 

Appellant was satisfied with his counsel and that he understood the nature of the 

offense and the specific conduct with which he was charged before explaining the 

rights he was giving up and the maximum penalty he faced. The colloquy included 

the following: 

THE COURT: Are you entering the plea voluntarily? 

[APPELLANT]: Yes. 

* * * 

THE COURT: Now, have you reviewed the plea agreement with Mr. 

Pierce? 

[APPELLANT]: Yes. 

THE COURT: You said [that you] read it. Did you understand all of its 

terms? 

[APPELLANT]: Yes. 

THE COURT: And have you discussed all of the terms that are 

contained in the plea agreement with Mr. Pierce? 

[APPELLANT]: Yes. 
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THE COURT: And are you satisfied with his advice regarding the terms 

that are contained in the agreement? 

[APPELLANT]: Yes. 

THE COURT: And are you prepared to sign the agreement voluntarily 

and intelligently here in open court today? 

[APPELLANT]: Yes. 

THE COURT: And do you understand that upon acceptance of your 

plea, the Court could immediately proceed to judgment and sentence in 

your case? 

[APPELLANT]: Yes. 

* * * 

THE COURT: Do you understand that if you were sent to the 

penitentiary, the Parole Board could require you to spend up to three 

years under their supervision upon your release from prison? 

[APPELLANT]: Yes. 

* * * 

THE COURT: And do you understand that if you were convicted of a 

felony while under the supervision of the Parole Board after your 

release from prison, the judge who handles your new case could return 
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you to prison for a minimum of three - - minimum of one year and 

maximum of three years; * * * 

[APPELLANT]: Yes. 

THE COURT: Do you have any questions about possible prison 

consequences? 

[APPELLANT]: No. 

THE COURT: Do you understand you could be given what is called a 

community control sentence for up to five years instead of prison, but 

[if] you violate the terms of community control, you could get a more 

restrictive sentence, including prison, for the length of time stated at 

your sentencing and under the conditions I have just mentioned to you? 

[APPELLANT]: Yes. 

* * * 

THE COURT: * * * The Court finds this day that the defendant in open 

court was advised of all of his Constitutional rights and made a 

knowing, intelligent, and voluntary waiver of those rights pursuant to 

Criminal Rule 11. His plea is entered and ordered filed. The Court 

finds the defendant guilty of receiving stolen property, a violation of 

2913.51(A), a felony of the fifth degree, the offense to which he has 
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entered his plea and the offense which is stated in the Bill of 

Information before the Court. 

Presentence Investigation ordered. 

(Plea Tr., pp. 8-15; 17.) 

{¶6} The trial court accepted the sentencing recommendation agreed by the 

parties and sentenced Appellant to five years of community control sanctions. These 

included, but were not limited to, 60 days in Belmont County Jail, six months at East 

Ohio Correctional Facility with intensive drug and alcohol treatment, and 12 months 

of intensive supervised probation. 

{¶7} After sentencing, Appellant filed a motion to withdraw his plea on the 

grounds that he did not understand the sanctions he faced and was not aware that 

community control sanctions could include jail time. The trial court overruled this 

motion. Appellant filed a timely appeal of the trial court’s denial of his motion. 

Assignment of Error No. 1

The trial court erred in holding a plea hearing on this matter when (1) 

none of the counsel even knew what the charge that the DefendantAppellant was pleading to would be, (2) when neither the State nor 

defense counsel were familiar with the case, and (3) the trial court only 

allotted five minutes for the Appellant to discuss the matter with his 

counsel. 

{¶8} Appellant contends in his first assignment of error that he did not enter 

into his plea knowingly, voluntarily or intelligently because of the circumstances of his 
-7-

plea hearing. Although Appellant cites Crim.R. 11, which governs the entry of 

criminal pleas, Appellant’s argument does not address the trial court’s actual colloquy 

and whether it complied with the requirements of the rule. Instead, Appellant 

contends that the initial confusion at the commencement of his hearing resulted in 

the improper entry of his plea. 

{¶9} “When a trial court or appellate court is reviewing a plea submitted by a 

defendant, its focus should be on whether the dictates of Crim. R. 11 have been 

followed.” State v. Kelley, 57 Ohio St.3d 127, 128, 566 N.E.2d 658 (1991). Section 

(C)(2) of Crim.R. 11 requires that the court, prior to accepting a guilty plea, determine 

that the defendant is “making the plea voluntarily, with understanding of the nature of 

the charges and of the maximum penalty involved,” and must make the defendant 

aware of his or her eligibility for “probation or for the imposition of community control 

sanctions at the sentencing hearing.” Crim.R. 11(C)(2)(a). The trial court must also, 

prior to acceptance, inform the “defendant of * * * the effect of the plea of guilty” and 

ascertain that the defendant understands that effect as well as the fact that the 

“court, upon acceptance of the plea, may proceed with judgment and sentence.” 

Crim.R. 11(C)(2)(b). Finally, the court must inform the defendant of the rights he is 

waiving and determine that he 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.” Crim.R. 

11(C)(2)(c). 
-8-

{¶10} The record reflects the plea hearing began with the trial court ordering a 

recess to allow the state and the defense the opportunity to clarify which charges 

were being pursued. The hearing re-commenced with the state providing a copy of 

the bill of information to the trial court, who read the charge in open court and 

explained the rights Appellant would forego by agreeing to the information. (Plea Tr., 

pp. 6-7.) Once the parties established the actual charge involved in the plea and the 

charging document was placed into the record, the record shows that the trial court 

very carefully adhered to Rule 11. (Plea Tr., pp. 8-15.) It is clear from this record the 

trial court fully complied with all requirements of Crim.R. 11 before accepting 

Appellant’s plea. Appellant’s first assignment of error lacks merit and is overruled. 

Assignment of Error 2

The Appellant did not understand the effect of his guilty plea, because 

no one ever really explained the definition of “community control 

sanction” to him. 

{¶11} Appellant states that the possibility that he may receive jail time as a 

community control sanction was not adequately explained to him at his plea hearing. 

He argues that the trial court did not completely satisfy the requirements of Crim.R. 

11 because he did not realize that community control could include jail time. In 

support of his argument, Appellant merely restates the Crim.R. 11 requirements and 

completely ignores the portions of the record that reflect the trial court’s satisfaction 

of these requirements. 
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{¶12} Appellant was informed on the record of the maximum penalty he was 

facing and that the trial court was not bound by his agreement with the state: 

THE COURT: You understand that the promises in the plea agreement 

are recommendations to me, but that I do make the final decision as to 

what your sentence should be in this case? 

[APPELLANT]: Yes. 

* * * 

THE COURT: Do you understand the maximum penalty could be one 

year in the penitentiary and a $2,500 fine? 

[APPELLANT]: Yes, sir. 

(Plea Tr., pp. 9-10.) Appellant claims that as the trial court did not specifically tell him 

that community control could involve incarceration, the trial court erred. However, 

there is no Crim.R. 11 requirement that the trial court explain community control 

sanctions, beyond requiring that the trial court inform a defendant if the defendant is 

not eligible for community control: 

In felony cases the court may refuse to accept a plea of guilty of a plea 

of no contest, and shall not accept a plea of guilty or no contest 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 
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involved, and if applicable, that the defendant is not eligible for 

probation or for the imposition of community control sanctions at the 

sentencing hearing. 

Crim.R. 11(C)(2)(a). Hence, the rule requires only that the trial court explain the 

maximum penalty a defendant faces, not all possible sanctions. However, the record 

in this matter reflects that the trial court went beyond the strictly necessary 

explanation and, in fact, did explain to Appellant the full ramifications of community 

control: 

THE COURT: * * * Now, you know what community control sanctions 

are that are being recommended. They include jail, East Ohio 

Correctional Center, intensive supervised probation, regular probation, 

all kinds of different requirements that may be imposed on you. Do you 

understand that? 

APPELLANT: Yes. 

(Plea Tr., p. 17.) 

{¶13} This record contains the trial court’s explanation of the legal effect of his 

plea agreement, the nature of the offense and the maximum penalty Appellant faced, 

on the record, in open court. The record also reflects that the trial court went beyond 

the standard required and explained the possible forms community control sanctions 

could take. Hence, this record offers no support for Appellant’s argument. 

Appellant’s second assignment of error is without merit and is overruled. 
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Assignment of Error 3

The trial court abused its discretion when it overruled Appellant Lucas’s 

motion to withdraw his guilty plea. 

{¶14} Appellant contends that the trial court’s rejection of Appellant’s 

postsentencing motion to withdraw his plea operated to work a manifest injustice due 

on him to the length of time he was given at the hearing to consult with his lawyer 

and the number of pages in the plea hearing transcript. Appellant argues that we 

reach the same conclusion concerning his postsentencing motion to withdraw his 

plea that we reached in State v. Adams, 2012-Ohio-5979 concerning a presentencing motion. 

{¶15} Appellant’s argument and reliance on Adams disregards the material 

difference in pre- and post-sentencing motions contained in Crim.R. 32.1, which 

provides: 

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. 

As we explained in Adams: 

This rule establishes a fairly strict standard for deciding a post-sentence 

motion to withdraw a guilty plea, but provides no guidelines for deciding 

a pre-sentence motion. State v. Xie, 62 Ohio St.3d 521, 526, 584 

N.E.2d 715 (1992). 
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That said, the Ohio Supreme Court has stated that pre-sentence 

motions to withdraw a guilty plea “should be freely and liberally 

granted.” Id. at 584. That does not mean, however, that a defendant 

has an absolute right to withdraw a guilty plea prior to sentencing. Id. at 

paragraph one of the syllabus. There must be “a reasonable and 

legitimate basis for withdrawal of the plea.” Id. 

Adams, supra, at ¶7-8. Appellant’s comparison of the circumstances in Adams to his 

own plea fails, largely due to the manner in which pre- and post-sentencing motions 

are reviewed. Although Appellant places great emphasis on the trial court’s 

reference to an initial “five minute” recess to allow Appellant to confer with his 

defense counsel and the state to clarify the charges against him, there is nothing in 

this record that indicates the actual duration of the recess, nor has Appellant 

explained how the facts here created a manifest injustice. Appellant has also failed 

to provide a legal basis for such a finding. 

{¶16} Appellant based his motion to withdraw to the trial court on the 

allegation that he did not understand the penalties he faced because he did not know 

community control sanctions could include jail time. The transcript of the plea 

hearing reflects that he was unambiguously informed of the maximum possible 

penalties he faced, the trial court’s discretion in imposing those penalties, and the 

fact that he could be incarcerated as a part of his community control. After receiving 

information about his community control, at least a month elapsed between 

Appellant’s plea and sentencing hearings. During this time, he could have filed to 

withdraw his plea, pre-sentence, under the lower Adams standard. Appellant’s 
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decision to wait until after sentencing to ask to withdraw his plea, claiming he lacked 

information clearly provided to him during his hearing, suggests the type of 

sentencing gamesmanship the strict postsentencing standard for withdrawal is 

intended to prevent. This matter appears to involve nothing more than Appellant’s 

“buyer’s remorse.” Nothing in this record or raised by Appellant on appeal suggests 

that the trial court’s decision to deny Appellant’s motion to withdraw his plea was an 

abuse of discretion. Appellant’s third assignment of error is without merit and is 

overruled. 

Conclusion

{¶17} The trial court engaged in an extremely thorough Crim.R. 11 colloquy 

before accepting Appellant’s plea. Appellant was informed prior to sentencing that 

jail time could be imposed as part of his community control sanctions. The trial court 

did not abuse its discretion in denying Appellant’s motion to withdraw his plea. 

Appellant’s three assignments of error are without merit and are overruled. The 

judgment of the trial court is affirmed. 

Donofrio, J., concurs. 

DeGenaro, P.J., concurs.