[Cite as State v. Casey , 2012-Ohio-3740.]

STATE OF OHIO ) IN THE COURT OF APPEALS )ss: NINTH JUDICIAL DISTRICT COUNTY OF LORAIN )

STATE OF OHIO Appellee

v.

JEREMY B. CASEY Appellant C.A. No. 11CA010125

APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE No. 10CR081885

DECISION AND JOURNAL ENTRY Dated: August 20, 2012

BELFANCE, Judge. {¶1} Jeremy Casey appeals from his convic tions for drug possession, driving under suspension, and possession of drug paraphernalia. For the reasons set forth below, we reverse.

I. {¶2} On July 25, 2011, at a change of plea hearing, Mr. Casey entered a plea of guilty to drug possession, possession of drug parapherna lia, and driving under suspension. Mr. Casey moved to withdraw his guilty plea on August 2, 2011, after retaining new counsel. The State did not file any opposition to the motion. Three months later, the trial cour t denied Mr. Casey’s motion at his sentencing hearing and proceeded to sentence him to three years of community

control. {¶3} Mr. Casey has appealed, raising a single assignment of error for our review.2

II.

ASSIGNMENT OF ERROR

THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN DENYING THE APPELLANT’S MOTION TO WITHDRAW HIS GUILTY PLEA PRIOR TO SENTENCING. {¶4} Mr. Casey argues that the trial court erre d when it failed to conduct a full hearing on his presentence motion to withdraw his guilty plea. The State has not file d an appellate brief. {¶5} Crim.R. 32.1, in pertinent part , provides that “[a] motion to withdraw a plea of guilty or no contest may be made only before se ntence is imposed * * *.” “[A] presentence motion to withdraw a guilty plea should be freely and liberally granted.” State v. Xie , 62 Ohio St.3d 521, 527 (1992). However, “[a] defendant does not have an absolute right to withdraw a guilty plea prior to sentencing.” Id . at paragraph one of the syllabus . Nevertheless, while “[t]he decision to grant or deny a presentence motion to withdraw a guilty plea is within the sound discretion of the trial court[,]” id . at paragraph two of the syllabus, “[a] trial court must conduct a hearing to determine whether there is a reasonable and legitimate basis for the withdrawal of the plea.” (Emphasis added.) Id . at paragraph one of the syllabus. See also State v. Wilborn , 9th Dist. No. 25352, 2011-Ohio-1038, ¶ 8 (“[T]he trial cour t does not have any discretion regarding whether it should hold a hearing on a presentence motion to withdraw a plea.”). However, the trial court is not necessarily required to conduct a full evidentiary hearing. State v. Robertson , 9th Dist. No. 10CA0030-M, 2011-Ohio-4300, ¶ 7. {¶6} Mr. Casey filed his motion to withdraw his plea more than three months prior to being sentenced, but the trial cour t did not address his motion until the sentencing hearing. At the hearing, Mr. Casey’s counsel gave the trial court a general background on the motion, concluding, “[A]fter speaking with the prosecu tion, I believe there is no opposition to th[is] as3

well.” The prosecutor acknowledged that presente nce motions to withdraw should be liberally granted and made no argument that Mr. Casey should not be allowed to withdraw his plea; however, the prosecutor did express the preference for continuing directly to sentencing. After this very brief exchange, the trial court stated, “I’m going to deny the motion to withdraw. Anything to say before sentencing?” Mr. Casey’ s counsel asked the trial court why and the court responded, “I withdrew it. I’m denying it. Wh at do you have to say before sentencing?” {¶7} Under the circumstances, we cannot say th at the trial court conducted the hearing envisioned by Xie given that it could not ha ve determined whether there was a reasonable basis for withdrawal of the plea. See Robertson at ¶ 6. See also Xie at paragraph one of the syllabus. It was inappropriate for the tr ial court to deny Mr. Casey’s motion without conducting at least some inquiry into his reasons for seeking to wi thdraw his plea. However, to the extent Mr. Casey argues that this Court should determine whether he should be a llowed to withdraw his plea, we disagree. It is appropriate for the trial court to exercise its discretion in the first instance after conducting a full hearing on the motion. See Klein v. Moutz , 9th Dist. No. 23132, 2006- Ohio-4974, ¶ 11 (remanding for a trial court to exercise its discretion). {¶8} Mr. Casey’s assignment of e rror is sustained in part.

III. {¶9} Mr. Casey’s assignment of error is sustaine d in part. The judgment of the Lorain County Court of Common Pleas is reversed, and the matter is remanded for further proceedings consistent with this opinion. Judgment reversed, and cause remanded.4

There were reasonable grounds for this appeal. We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry th is judgment into execution. A certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27. Immediately upon the filing hereof, this docum ent shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run. App.R. 22 (C). The Clerk of the Court of Appeals is instructed to mail a notice of entry of this judgment to the parties and to make a notation of the mailing in the docket, pursuant to App.R. 30. Costs taxed to Appellee.

EVE V. BELFANCE FOR THE COURT

WHITMORE, P.J. CARR, J. CONCUR

APPEARANCES: KENNETH J. LEWIS, Attorney at Law, for Appellant. DENNIS P. WILL, Prosecuting Attorney, for Appellee.