State v. Casper , 2018 Ohio 4375 ( 2018 )

[Cite as State v. Casper, 2018-Ohio-4375.]
IN THE COURT OF APPEALS
ELEVENTH APPELLATE DISTRICT
ASHTABULA COUNTY, OHIO
STATE OF OHIO, : OPINION
Plaintiff-Appellee, :
CASE NO. 2018-A-0023
- vs - :
JACOB MICHAEL CASPER :
a.k.a. JACOB CASPER,
:
Defendant-Appellant.
:
Criminal Appeal from the Ashtabula County Court of Common Pleas, Case No. 2017
CR 00251.
Judgment: Reversed, guilty plea vacated, and remanded.
Nicholas A. Iarocci, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant
Prosecutor, Ashtabula County Courthouse, 25 West Jefferson Street, Jefferson, OH
44047 (For Plaintiff-Appellee).
Phillip L. Heasley, Ashtabula County Public Defender, 4817 State Road, Suite 202,
Ashtabula, OH 44004 (For Defendant-Appellant).
DIANE V. GRENDELL, J.
{¶1} Defendant-appellant, Jacob Casper, appeals from the judgment of the
Ashtabula County Court of Common Pleas, denying his Motion to Withdrawal [sic] Plea.
The issue to be determined by this court is whether a trial court errs in denying a
defendant’s motion to withdraw a guilty plea where the State refused to comply with the
terms of the plea agreement after alleging that the defendant breached the agreement
by being terminated from a community-based corrections facility following his plea but
prior to sentencing. For the following reasons, we reverse the judgment of the lower
court, vacate Casper’s guilty plea, and remand for further proceedings consistent with
this opinion.
{¶2} On May 24, 2017, Casper was indicted by the Ashtabula County Grand
Jury for one count of Aggravated Possession of Methamphetamine, a felony of the fifth
degree, in violation of R.C. 2925.11(A) and (C)(1)(a).
{¶3} On December 1, 2017, a plea hearing was held at which Casper entered a
plea of guilty to the offense as charged in the Indictment. At that hearing, the court
reviewed the rights waived by Casper in entering his plea. On December 4,
a Written Plea of Guilty and a Judgment Entry memorializing the plea were filed. The
Written Plea of Guilty stated: “I understand that the State of Ohio’s position on
sentencing is: 2 years community control sanctions. Notice if violate 12 months prison.”
At the plea hearing, both parties had agreed this would be the State’s position at
sentencing.
{¶4} Following the plea hearing, memorandums relating to jail time credit were
filed. In a Response to Motion for Jail Time Credit, the State attached an e-mail from
Casper’s parole officer, who stated that Casper had been ordered to enter into the
Northeast Ohio Community Alternative Program (NEOCAP) for a separate offense, was
transported to NEOCAP on December 4, 2017, and was unsuccessfully terminated from
the program for refusing to participate on December 6, 2017.
{¶5} A sentencing hearing was set for December 14, 2017, at which counsel for
both sides appeared but Casper was not present. The court filed a Judgment Entry on
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that date, issuing a capias and also stating the following: “The Defendant was on Post-
Release Control for another case and placed in NEOCAP as a condition of his Post-
Release Control. The Defendant failed to comply with the conditions of NEOCAP and
was returned to prison by the Adult Parole Authority six days after his Plea Hearing was
held.”
{¶6} On February 13, 2018, Casper filed a Motion to Withdrawal [sic] Plea.
The Motion contended the State had indicated it would be requesting a period of
incarceration rather than community control as stated in the plea agreement, which
would breach that agreement. The State filed a response indicating that Casper was
responsible for the breach since, “as part of the plea agreement * * *, [he] agreed to
attend NEOCAP [for a separate offense],” he had entered NEOCAP, and left two days
after treatment began.
{¶7} A sentencing hearing was held on February 16, 2018. At the beginning of
the hearing, the court addressed the request to withdraw the plea. Defense counsel
argued that the State’s plan to “recant” its offer to recommend a sentence of community
control violated the plea agreement. Counsel contended that the record did not show
successful participation in NEOCAP was a term of the plea agreement. The State
indicated it had agreed to recommend community control based on the fact that Casper
would be sanctioned to NEOCAP for another offense. It argued that it believed Casper
“breached the spirit of the agreement between the parties” since he did not successfully
complete NEOCAP and that community control would be “illogical at this point,” since
he could not comply with its terms due to being imprisoned.
{¶8} The court denied the motion, finding that Casper was merely “dissatisfied”
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with the State’s sentencing recommendation. The matter proceeded to sentencing, at
which the State recommended a prison sentence in the range of six to twelve months.
The court recognized Casper’s repeated failures to follow rules of probation and
community control and ordered him to serve a term of 11 months in prison. It
terminated his post-release control in another case due to the commission of the
present offense and ordered him to serve a consecutive prison term of 461 days. A
February 21, 2018 Judgment Entry memorialized this sentence.
{¶9} Casper timely appeals and raises the following assignment of error:
{¶10} “The trial court erred by denying the defendant’s motion to withdraw his
plea, by failing to hold the State to its plea agreement.”
{¶11} Casper argues that he should have been permitted to withdraw his plea
since the State “reneged on the negotiated agreement to recommend two years’
community control.” He contends there was a lack of inquiry by the judge regarding the
circumstances under which he left NEOCAP and insufficient evidence of a “community
control violation” to allow the State’s failure to abide by the plea agreement.
{¶12} Crim.R. 32.1 provides that “[a] motion to withdraw a plea of guilty or no
contest may be made only before sentence is imposed; but to correct a manifest
injustice the court after sentence may set aside the judgment of conviction and permit
the defendant to withdraw his or her plea.”
{¶13} Presentence motions to withdraw a plea should be granted liberally. State
v. Xie, 62 Ohio St. 3d 521, 527, 584 N.E.2d 715 (1992). The Supreme Court has
recognized, however, that “[a] defendant does not have an absolute right to withdraw a
guilty plea prior to sentencing,” but, instead, “[a] trial court must conduct a hearing to
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determine whether there is a reasonable and legitimate basis for the withdrawal of
the plea.” Id. at paragraph one of the syllabus. “The decision to grant or deny a
presentence motion to withdraw a guilty plea is within the sound discretion of the trial
court.” (Citation omitted.) State v. Holin, 174 Ohio App. 3d 1, 2007-Ohio-6255, 880
N.E.2d 515, ¶ 15 (11th Dist.).
{¶14} Casper urges that the trial court abused its discretion in evaluating his
motion to withdraw by failing to satisfy the factors set forth by State v. Peterseim, 68
Ohio App. 2d 211, 428 N.E.2d 863 (8th Dist.1980). Generally, this court has applied the
Peterseim four-factor test to determine whether a trial court has abused its discretion in
denying a pre-sentence motion to withdraw a plea. State v. Parham, 11th Dist. Portage
No. 2011-P-0017, 2012-Ohio-2833, ¶ 19. Under Peterseim, a trial court does not abuse
its discretion in denying a motion to withdraw a plea: “(1) where the accused is
represented by highly competent counsel, (2) where the accused was afforded a full
hearing, pursuant to Crim.R. 11, before he entered the plea, (3) when, after the motion
to withdraw is filed, the accused is given a complete and impartial hearing on the
motion, and (4) where the record reveals that the court gave full and fair consideration
to the plea withdrawal request.” Id. at paragraph three of the syllabus.
{¶15} At issue specifically in this matter is the final factor, whether the court gave
full and fair consideration to the plea withdrawal request and, specifically, whether the
court erred in evaluating who was responsible for the breach of the plea agreement,
which was the basis for Casper’s request to withdraw.
{¶16} “A negotiated plea agreement is essentially a contract between the state
and the defendant.” State v. Fetty, 11th Dist. Portage No. 2010-P-0021, 2011-Ohio-
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3894, ¶ 21. “A plea agreement is an essential part of the criminal justice system. * * *
A defendant has a contractual right to enforcement of the prosecutor’s obligations under
the plea agreement after the plea has been accepted by the court.” (Citations omitted.)
State v. Johnson, 11th Dist. Trumbull No. 2016-T-0091, 2018-Ohio-2465, ¶ 16, citing
State v. Adams, 2014-Ohio-724, 8 N.E.3d 984, ¶ 17 (7th Dist.); Santobello v. New York,
404 U.S. 257, 261, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971).
{¶17} In the event of a breach, “[t]he trial court may either allow the negotiated
plea to be withdrawn or, alternatively, may require the specific performance of the plea
bargain by ordering the prosecution to fulfill its promise.” State v. Olivarez, 11th Dist.
Lake No. 97-L-288, 1999 WL 262158, *3 (Mar. 31, 1999), citing Santobello at 263.
{¶18} In the present matter, the alleged breach relates to Casper’s failure to
successfully remain in NEOCAP following the entry of his plea, which resulted in the
State’s decision to change its sentencing recommendation. The State argues that
Casper’s “participation in NEOCAP was the reason behind the State’s community
control recommendation” and when he was terminated from the program, it was no
longer required to make the agreed upon sentencing recommendation.
{¶19} It must be emphasized that neither the written plea agreement nor the
transcript of the plea hearing reference any requirement that Casper must successfully
remain in NEOCAP as a condition of the plea agreement. While the State argues that
this was part of the basis for its promise to recommend community control, it points to
no facts in the record to support that conclusion, a contention that was denied by
Casper at the hearing on his motion to withdraw his plea. As has been held by this
court on several occasions, promises that are not made part of the written plea
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agreement, especially in instances where the agreement states that no other promises
than those listed in the plea agreement have been made, are not binding upon the
parties. See State v. Story, 11th Dist. Ashtabula No. 2006-A-0085, 2007-Ohio-4959, ¶
44 (oral statements by a prosecutor that were not made part of a negotiated plea were
not a binding contract); State v. Smith, 11th Dist. Portage No. 2004-P-0061, 2005-Ohio-
4899, ¶ 20-25.
{¶20} Since any negotiations or discussions relating to compliance with the
terms of NEOCAP in relation to a prior offense were not included in the written plea
agreement, no conditions arising from those discussions were binding upon Casper.
Thus, his failure to complete NEOCAP did not breach the plea agreement. Since there
was no breach by Casper, it follows that the State was bound by the terms of such
agreement. “[W]hen a plea rests in any significant degree on a promise or agreement
of the prosecutor, so that it can be said to be part of the inducement or consideration,
such promise must be fulfilled.” Santobello, 404 U.S. at 262, 92 S. Ct. 495, 30 L. Ed. 2d
427; Story at ¶ 43 (“a prosecutor has an affirmative obligation to fulfill the terms of a
plea agreement in their entirety”). By failing to make the agreed upon sentencing
recommendation, the State was in breach. Since the failure of either party to fulfill the
terms of the agreement relieves the opposing party of its obligations, it was proper for
Casper to seek to withdraw his plea and the trial court abused its discretion in denying
his motion. See State v. Ready, 11th Dist. Lake No. 2001-L-150, 2002-Ohio-7138, ¶
51; Olivarez, 1999 WL 262158, at *3.
{¶21} As such, the plea agreement was rendered void by the State’s breach and
Casper’s guilty plea is vacated.
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{¶22} For the foregoing reasons, the judgment of the Ashtabula County Court of
Common Pleas, denying Casper’s Motion to Withdrawal [sic] Plea, is reversed,
Casper’s plea is vacated, and this case is remanded to the trial court to allow appellant
to either maintain his not guilty plea or to plead anew. Costs to be taxed against
appellee.
CYNTHIA WESTCOTT RICE, J., concurs in judgment only with a Concurring Opinion.
TIMOTHY P. CANNON, J., concurs in judgment only and concurs with Concurring
Opinion.
______________________________________________
CYNTHIA WESTCOTT RICE, J., concurs in judgment only with a Concurring Opinion.
{¶23} I concur in judgment only based upon the majority’s disposition of
appellant’s assignment of error. I write separately because I do not agree with the
analysis contained in the opinion.
{¶24} Appellant entered a plea based upon having an agreement with the state
for a community-control recommendation at sentencing. Due to appellant’s termination
from NEOCAP, the state decided it could no longer make this recommendation. The
state breached the terms of the plea agreement. Therefore, the trial court should have
granted appellant’s presentence motion to withdraw his plea.
TIMOTHY P. CANNON, J., concurs in the foregoing Concurring Opinion.
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