State v. Kelly

[Cite as State v. Kelly, 2011-Ohio-2555.]
COURT OF APPEALS
STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : W. Scott Gwin, P.J.
: Sheila G. Farmer, J.
Plaintiff-Appellee : Julie A. Edwards, J.
:
-vs- : Case No. 2010CA00222
:
:
SARAH KELLY : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Stark County
Court of Common Pleas Case No.
2009CR1890
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: May 23, 2011
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
JOHN D. FERRERO TAMMI R. JOHNSON
Prosecuting Attorney Stark County Public Defender’s Office
Stark County, Ohio 200 W. Tuscarawas Street, Ste. 200
Canton, Ohio 44702
BY: KATHLEEN O. TATARSKY
Assistant Prosecuting Attorney
Appellate Section
110 Central Plaza, South, Ste. 510
Canton, Ohio 44702-1413
[Cite as State v. Kelly, 2011-Ohio-2555.]
Edwards, J.
{¶1} Appellant, Sarah Kelly, appeals a judgment of the Stark County Common
Pleas Court overruling her motion to withdraw her guilty plea to identity fraud (R.C.
2913.49(B)(1)) and misuse of credit cards (R.C. 2913.21(B)(2)). Appellee is the State of
Ohio.
STATEMENT OF FACTS AND CASE
{¶2} According to the Bill of Particulars and discovery filed by the State in the
instant case, from September 1, 2009, to November 21, 2009, appellant used the
driver’s license and social security number of Michelle Krantz without Krantz’s
permission. Appellant admitted to using the operator’s license and social security card.
Appellant also used Krantz’s credit card to pay her cell phone bill. In a written
statement to police, appellant stated that while vacationing with her friend Amy in South
Carolina, Amy gave her Krantz’s credit card number to pay her cell phone bill. She
stated that Amy told her Greg and Sandy Krantz were aware that she used Michelle’s
credit card and were fine with her paying them back slowly or doing work on their house
to pay them back. Appellant stated that “apparently” the credit card company saved the
number and charged the card again. She also admitted to using Krantz’s identification,
claiming her friend Amy told her that it belonged to her future sister-in-law, and she
wanted her to use it to help drive to and from South Carolina.
{¶3} Appellant was indicted by the Stark County Grand Jury with one count of
identity fraud and one count of misuse of credit cards. On January 26, 2010, she
pleaded guilty to the charges. On February 19, 2010, appellant failed to appear for a
Stark County App. Case No. 2010CA00222 3
sentencing hearing and a capias was issued for her arrest. She was arrested and
returned to the court for sentencing on June, 14, 2010.
{¶4} At the sentencing hearing, appellant made an oral motion to withdraw her
plea, claiming she had permission to use the identity information and credit card and,
therefore, was not guilty. The trial court denied her motion, stating that he was satisfied
that her plea was knowing, intelligent and voluntary. The court further indicated that she
did not appear for her sentencing hearing and a capias had to be issued for her arrest.
He also noted that after entering the plea of guilty, she committed the crime of escape in
Summit County.
{¶5} The judge then proceeded to sentencing. Appellant continued to maintain
that she had the permission of the victims but they apparently changed their mind. She
also stated that she wanted to be a part of her sister’s wedding party in August and
asked the judge to take that into consideration. She also stated that if the court “did
happen to sentence” her, she’d like a long enough sentence to take advantage of a
program in Marysville because “if I am sentenced to like 12 months or less, I think, I am
not able to take advantage of anything, to my understanding.” Tr. 8.
{¶6} Appellant was sentenced to eleven months incarceration for identity fraud
and six months incarceration for misuse of a credit card, to be served concurrently with
each other but consecutively to the prison term imposed by Summit County, for a total
term of seventeen months incarceration. She assigns a single error:
{¶7} “THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTION TO
WITHDRAW HER GUILTY PLEA.”
Stark County App. Case No. 2010CA00222 4
{¶8} Appellant concedes in her brief the court complied with Crim. R. 11 in
accepting her plea. However, she argues generally that motions to withdraw a plea
prior to sentencing should be liberally granted, citing State v. Xie (1992), 62 Ohio St.3d
521, 584 N.E.2d 715.
{¶9} In Xie, the Ohio Supreme Court held:
{¶10} “We agree that a presentence motion to withdraw a guilty plea should be
freely and liberally granted. Nevertheless, it must be recognized that a defendant does
not have an absolute right to withdraw a plea prior to sentencing. Therefore, the trial
court must conduct a hearing to determine whether there is a reasonable and legitimate
basis for the withdrawal of the plea. In this case, the trial court held such a hearing, at
which it carefully considered Xie's motion and all the circumstances surrounding the
entering of the plea. Absent an abuse of discretion on the part of the trial court in
making the ruling, its decision must be affirmed. For us to find an abuse of discretion in
this case, we must find more than an error of judgment. We must find that the trial
court's ruling was ‘unreasonable, arbitrary or unconscionable.’ State v. Adams (1980),
62 Ohio St.2d 151, 157, 16 O.O.3d 169, 173, 404 N.E.2d 144, 149.” Id. at 527.
{¶11} The Ohio Supreme Court found that the trial court in Xie did not abuse its
discretion in overruling the motion to withdraw a plea prior to sentencing where the
defendant was given misinformation about parole eligibility.
{¶12} In the instant case, the court did not abuse its discretion in overruling
appellant’s oral motion to withdraw her plea. While she represented to the court that
she had permission to use the identity and credit card of the victim, she presented no
Stark County App. Case No. 2010CA00222 5
witnesses or other evidence to support her claim. She committed another crime
between her plea and sentencing hearings, and failed to appear for sentencing.
{¶13} The assignment of error is overruled.
{¶14} The judgment of the Stark County Common Pleas Court is affirmed.
By: Edwards, J.
Gwin, P.J. and
Farmer, J. concur
______________________________
______________________________
______________________________
JUDGES
JAE/r0208
[Cite as State v. Kelly, 2011-Ohio-2555.]
IN THE COURT OF APPEALS FOR STARK COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
SARAH KELLY :
:
Defendant-Appellant : CASE NO. 2010CA00222
For the reasons stated in our accompanying Memorandum-Opinion on file, the
judgment of the Stark County Court of Common Pleas is affirmed. Costs assessed to
appellant.
_________________________________
_________________________________
_________________________________
JUDGES