State v. Graham ( 2013 )

[Cite as State v. Graham, 2013-Ohio-600.]
COURT OF APPEALS
DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
: JUDGES:
STATE OF OHIO : Patricia A. Delaney, P.J.
: William B. Hoffman, J.
Plaintiff-Appellee : Sheila G. Farmer, J.
:
-vs- : Case No. 12 CAA 11 0082
:
:
WILLIAM E. GRAHAM : OPINION
Defendant-Appellant
CHARACTER OF PROCEEDING: Criminal Appeal from Delaware
County Court of Common Pleas Case
No. 11CR-I-05-0272
JUDGMENT: Reversed and Remanded
DATE OF JUDGMENT ENTRY: February 15, 2013
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
CAROL HAMILTON O’BRIEN WILLIAM E. GRAHAM
Prosecuting Attorney Inmate #647-058
Delaware County, Ohio Pickaway Correctional Institution
P.O. Box 209
BY: ERIC C. PENKAL Orient, Ohio 43146
Assistant Prosecuting Attorney
140 N. Sandusky Street – 3rd Floor
Delaware, Ohio 43015
[Cite as State v. Graham, 2013-Ohio-600.]
Hoffman, J.
{¶1} Defendant-appellant, William E. Graham, appeals the October 30, 2012,
Judgment Entry entered by the Delaware County Court of Common Pleas, denying his
motion to withdraw his plea of guilty. The State of Ohio is plaintiff-appellee.
STATEMENT OF THE CASE1
{¶2} On September 15, 2011, Appellant pled guilty to one count of breaking
and entering in violation of R.C. 2911.13(A). As part of the negotiated plea agreement,
the State agreed to remain silent at sentencing.
{¶3} Appellant’s sentencing hearing was held on December 15, 2011. At the
sentencing hearing, the court asked the prosecutor to proceed. Rather than remaining
silent on the issue of sentencing as required by the plea agreement, the prosecutor
stated:
{¶4} “MR. DUMOLT: Your Honor, I think the PSI speaks for itself. There’s a
score of convictions going back to 1974. In this case I think we’re - - the last time we
were here everyone agreed he’s not a good candidate for CBCF at this time, and that a
prison sentence is appropriate in this case.
{¶5} “His record is one of the longest I have seen in the five years I’ve been
doing this; this is rather extensive. He’s a career criminal. Counsel will recommend a
CBCF, might be a condition, a condition of judicial release as an option, but at this time I
think that a prison sentence is appropriate. He’s obviously had a number of shots at
community control, proven not amenable to the past.” Tr. (S.H.) 5.
1
A rendition of the facts is unnecessary for our disposition of this appeal.
Delaware County App. Case No. 12 CAA 11 0082 3
{¶6} The court sentenced Appellant to 11 months incarceration, to be served
consecutively with a sentence Appellant was serving from a conviction in an unrelated
case.
{¶7} Appellant moved to withdraw his guilty plea on June 7, 2012. Appellant’s
motion was based on the State’s breach of the plea agreement and his counsel’s failure
to object when the prosecutor spoke during the sentencing hearing. The trial court
overruled the motion via Judgment Entry filed October 30, 2012. Appellant appeals this
judgment, assigning two errors:
{¶8} “I. THE LOWER COURT ERRED AS A MATTER OF LAW IN FAILING TO
APPLY THE PRECEDENT SET BY THE U.S. SUPREME COURT IN SANTOBELLO V.
NEW YORK (1971), 404 U.S. 257, 262-63, IN CONSIDERING MY CLAIM THAT THE
PROSECUTOR HAD BREACHED THE TERMS OF A WRITTEN PLEA AGREEMENT.
{¶9} ‘II. DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT
WHEN THE COURT ASKED FOR THE STATE’S COMMENT AND AGAIN WHEN THE
PROSECUTOR RECOMMENDED A PRISON SENTENCE AFTER THE STATE
AGREED TO REMAIN SILENT AT SENTENCING.”
{¶10} This case comes to us on the accelerated calendar governed by App. R.
11.1, which states the following in pertinent part:
{¶11} “(E) Determination and judgment on appeal
{¶12} “The appeal will be determined as provided by App. R. 11.1. It shall be
sufficient compliance with App. R. 12(A) for the statement of the reason for the court's
decision as to each error to be in brief and conclusionary form.”
Delaware County App. Case No. 12 CAA 11 0082 4
I
{¶13} Appellant argues the court erred in failing to grant his motion to withdraw
based on the United States Supreme Court’s decision in Santobello v. New York, 404
U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).
{¶14} A motion to withdraw a guilty plea is governed by the standards set forth in
Crim.R. 32.1, which provides:
{¶15} “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.”
{¶16} “Manifest injustice relates to some fundamental flaw in the proceedings
which result[s] in a miscarriage of justice or is inconsistent with the demands of due
process.” State v. Williams, 10th Dist. No. 03AP–1214, 2004–Ohio–6123, ¶ 5. “‘[I]t is
clear that under such standard, a postsentence withdrawal motion is allowable only in
extraordinary cases.’” State v. Gripper, 10th Dist. No. 10AP–1186, 2011–Ohio–3656, ¶
7, quoting State v. Smith, 49 Ohio St.2d 261, 264 (1977). A defendant seeking to
withdraw a post-sentence guilty plea bears the burden of establishing manifest injustice
based on specific facts either contained in the record or supplied through affidavits
attached to the motion. State v. Orris, 10th Dist. No. 07AP–390, 2007–Ohio–6499.
{¶17} Appellant argues pursuant to Santobello, supra, he should have been
permitted to withdraw his plea based on the State’s breach of the plea agreement. The
defendant in Santobello was charged with a variety of gambling offenses. The
defendant pled guilty to reduced charges in exchange for a promise by the prosecutor
Delaware County App. Case No. 12 CAA 11 0082 5
he would not make any recommendation as to the sentence. 404 U.S. at 258. A
different prosecutor then appeared at the sentencing hearing and recommended the
maximum sentence, and the defendant was sentenced accordingly. Id. at 260. The
Supreme Court held, “when 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 indictment or
consideration, such promise must be fulfilled.” Id. at 262. The Court remanded the case
to the state court to determine whether specific performance of the plea agreement or
withdrawal of the plea was appropriate. Id. at 263. The court interpreted specific
performance to mean the defendant would be resentenced in front of a different judge.
Id.{¶18} In the instant case, the State does not dispute the fact the prosecutor who
handled the sentencing hearing breached the plea agreement by speaking on the issue
of sentencing. However, in the instant case we do not find withdrawal of the plea is the
appropriate remedy. Appellant entered the plea three months prior to the sentencing
hearing, and the breach of the agreement relates solely to the issue of sentence. The
record does not demonstrate the plea was in any way involuntary, and Appellant has
not demonstrated his plea was rendered involuntary by the prosecutor’s statements at
the sentencing hearing.
{¶19} However, the prosecutor did breach the plea agreement by arguing
strongly for a prison sentence at the sentencing hearing, when the terms of the
agreement stated the prosecutor would remain silent at sentencing. The prosecutor
expressed his personal opinion as the nature of appellant’s record being one of the
longest he had ever seen. Counsel for Appellant argued community control might be
Delaware County App. Case No. 12 CAA 11 0082 6
appropriate at some point, as Appellant was older and tired of spending the majority of
his adult life in prison. Counsel quoted Appellant as saying he “did not want to be out
doing B and E’s when I’m seventy years old.” Tr. (S.H.) 7. We cannot say the
prosecutor’s statements had no effect on the outcome of the sentencing hearing, as the
court ultimately sentenced appellant to 11 months incarceration, one month less than
the maximum sentence of 12 months.
{¶20} Based on Santobello, supra, we find Appellant is entitled to a new
sentencing hearing in front of a different judge, at which the prosecutor will remain silent
in accordance with the terms of the plea agreement in the instant case. The first
assignment of error is sustained.
II
{¶21} In his second assignment of error, Appellant argues counsel was
ineffective for failing to object to the prosecutor’s statements during his sentencing
hearing. This assignment of error is rendered moot by our disposition of Appellant’s first
assignment of error.
Delaware County App. Case No. 12 CAA 11 0082 7
{¶22} The judgment of the Delaware County Common Pleas Court is reversed.
This cause is remanded to that court with instructions to hold a new sentencing hearing
before a different judge.
By: Hoffman, J.
Delaney, P.J. and
Farmer, J. concur
s/ William B. Hoffman _____________
s/ Patricia A. Delaney _____________
s/ Sheila G. Farmer ______________
WBH/r0201
[Cite as State v. Graham, 2013-Ohio-600.]
IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
WILLIAM E. GRAHAM :
:
Defendant-Appellant : CASE NO. 12 CAA 11 0082
For the reason stated in our accompanying Opinion, the judgment of the Delaware
County Court of Common Pleas is reversed and this matter is remanded to the trial
court for a new sentencing hearing before a different judge. Costs assessed to
Appellee.
s/ William B. Hoffman _____________
s/ Patricia A. Delaney _____________
s/ Sheila G. Farmer ______________