Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case No. CR-16-610785-A
ATTORNEY FOR APPELLANT Jonathan N. Garver The Brownhoist
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor Melissa Riley Assistant County Prosecutor
The Justice Center.
BEFORE: Jones, J., Kilbane, P.J., and Stewart, J.
JOURNAL ENTRY AND OPINION
A. JONES, SR, JUDGE.
Defendant-appellant Rafiq M. Jones ("Jones")
appeals from the trial court's June 2017 judgment denying
his motion to vacate his plea. For the reasons that follow,
The record demonstrates that in October 2016, Jones was
charged in a six-count indictment with crimes relating to a
1996 rape. Counts 1 and 2 charged rape; Count 3 charged
aggravated robbery; Count 4 charged robbery; and Counts 5 and
6 charged kidnapping. All the counts contained one- and
three-year firearm specifications. With the exception of
Count 3, aggravated robbery, "Jane Doe" was named
as the victim; Count 3 did not name a victim.
In April 2017, on the day the matter was set for trial, Jones
pleaded guilty to Count 1, rape, amended to delete the
firearm specifications, and Count 3, aggravated robbery, also
amended to delete the firearm specifications. The remaining
counts and specifications were dismissed.
That same day, immediately after the plea was taken and
before the hearing was adjourned, defense counsel informed
the court that Jones had "just mentioned in my ear that
there is a concern." The court inquired of Jones as to
what the concern was; Jones responded, the "rape charge.
I didn't rape her." Defense counsel then made an
oral motion to withdraw the plea. The assistant prosecuting
attorney suggested that because the request was made prior to
sentencing, the court should inquire about Jones's desire
to withdraw his plea, and the court agreed and gave Jones an
opportunity to explain.
Jones told the court "I want to apologize to you for
wasting your time and everyone's time. I have [had] a
change of heart and I don't feel comfortable with
that." The court responded, "[y]ou can't
withdraw your plea just because you've had a change of
heart. * * * You have to give me a legal reason why you are
wishing to withdraw your plea."
After consulting with his attorney, Jones told the court
"I guess the legal reason would be * * * some of it I
don't understand. A lot of these things I don't
understand. A lot of it is not clear to me." The court
asked Jones what was not clear to him, and Jones responded
that he thought that he was pleading guilty to just one
count-he did not know it was two counts. According to Jones,
he thought he was pleading guilty to "one count of
rape." The court told Jones that both the state and the
court had reviewed his rights with him, and that the plea was
to two counts. The court noted that Jones did not indicate
during the plea colloquy that he had any questions, and he
also told the court that he had not been threatened or
promised anything for his plea.
The court asked Jones if he understood what rape and
aggravated robbery meant, and he indicated he did. After
pressing Jones for his legal reason for wanting to withdraw
his plea, Jones said "I don't have a legal reason
myself." The trial court denied his oral motion to
withdraw his plea.
A few days later, and prior to sentencing, Jones, by and
through his initial lawyer, filed a written motion to
withdraw his plea. Jones thereafter retained a new attorney
to represent him; new counsel filed a supplemental motion to
withdraw the plea and requested an oral hearing. The court
denied Jones's request to withdraw without a hearing.
Thereafter, Jones, pro se, filed another motion to withdraw
At sentencing, the trial court informed Jones, that because
he was represented by counsel, it would not be considering
his pro se motion to withdraw his plea. Defense counsel asked
the court to reconsider its ruling; the request was denied.
The court then sentenced Jones to concurrent ten-year terms
on both counts. Jones now raises the following four
assignments of error for our review:
I. The trial court committed prejudicial error by not
conducting a hearing on appellant's pre-sentencing motion
to withdraw guilty pleas.
II. The trial court committed prejudicial error by denying
appellant's pre-sentencing motion to withdraw guilty
III. Appellant's guilty pleas must be vacated because
they were not made knowingly, intelligently, and voluntarily.
IV. Appellant's conviction and sentence for aggravated
robbery, as charged in amended Count III of the indictment,
should be vacated and set aside because Count III, in both
the original indictment and the amended indictment, is
defective and fails to charge an offense under Ohio law
because no person was named as the alleged victim.
Plea and Denial of Motion to Withdraw; Hearing
We consider the first three assignments of error, which
relate to the plea and the denial of Jones's request to
vacate it, together. We first consider the third assignment
of error, which relates to the plea itself.
Crim.R. 11(C)(2) requires that when a defendant pleads
guilty, the trial court must personally address the defendant
and (1) determine that the defendant is making the plea
voluntarily with an understanding of the nature of the
charges and the maximum penalty; (2) ensure the defendant
understands the effect of the plea and that the court may
proceed with judgment after accepting the plea; and (3)
inform the defendant and ensure that the defendant
understands that he or she is waiving his or her
constitutional rights to a jury trial, to confront witnesses
against him or her, to call witnesses in his or her ...