State v. Grove , 2016 Ohio 2721 ( 2016 )

[Cite as State v. Grove, 2016-Ohio-2721.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 103042
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
THOMAS P. GROVE
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Criminal Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-14-587579-A
BEFORE: McCormack, J., E.A. Gallagher, P.J., and Stewart, J.
RELEASED AND JOURNALIZED: April 28, 2016
ATTORNEY FOR APPELLANT
Mary Catherine O’Neill
50 Public Square
Suite 1900
Cleveland, OH 44113
ATTORNEYS FOR APPELLEE
Timothy J. McGinty
Cuyahoga County Prosecutor
BY: Jeffrey Schnatter
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:
{¶1} Defendant-appellant, Thomas P. Grove, appeals his conviction for rape,
attempted rape, kidnapping, and pandering sexually oriented matter involving a minor.
For the reasons that follow, we affirm.
Procedural History and Substantive Facts
{¶2} On July 24, 2014, Grove was charged in an eight-count indictment
involving two victims: (1) rape of Victim 1 in violation of R.C. 2907.02(A)(2), with
one- and three-year firearm specifications and a sexually violent predator specification
(Count1); rape of Victim 1 in violation of R.C. 2907.02(A)(2), with one- and three-year
firearm specifications and a sexually violent predator specification (Count 2); rape of
Victim 1 in violation of R.C. 2907.02(A)(2), with one- and three-year firearm
specifications and a sexually violent predator specification (Count 3); kidnapping of
Victim 1 in violation of R.C. 2905.01(A)(4), with one- and three-year firearm
specifications, a sexually violent predator specification, and a sexual motivation
specification (Count 4); rape of Victim 2 in violation of R.C. 2907.02(A)(2), with a
sexually violent predator specification (Count 5); kidnapping of Victim 2 in violation of
R.C. 2905.01(A)(4), with a sexually violent predator specification and a sexual
motivation specification (Count 6); unlawful sexual conduct with a minor, Victim 2, in
violation of R.C. 2907.04(A) (Count 7); and pandering sexually oriented matter involving
a minor in violation of R.C. 2907.322(A)(5) (Count 8).
{¶3} On August 18, 2014, the court found Grove not competent to stand trial,
based upon an evaluation prepared by the court psychiatric clinic. In this evaluation, Dr.
Jennifer Franklin opined that within reasonable psychological certainty, Grove was not
capable of assisting in his defense. Both the state and defense counsel stipulated to Dr.
Franklin’s findings and the court ordered Grove to Northcoast Behavioral Healthcare
Center (“Northcoast”) for restoration to competency.
{¶4} On November 19, 2014, the court held another hearing to address Grove’s
competency. According to a report prepared by Dr. Gruber of Northcoast, Grove was
capable of assisting in his defense and was capable of understanding the nature and
objectives of the proceedings against him. The report also indicated that Grove was
malingering. After some discussion regarding the evaluation, defense counsel informed
the court that Grove was not receiving his medication in the jail and he appeared confused
or “distant.” Defense counsel, however, did not object to the report as it pertained to the
malingering. The court continued the hearing in order to address the issue with Grove’s
medication.
{¶5} On December 17, 2014, the court held another competency hearing. At
this time, defense counsel submitted another psychological evaluation report, which was
prepared by Dr. J. Joseph Konieczny in November 2012 for determination of Grove’s
social security benefits. This report indicated that Grove suffers from borderline
intellectual functioning and disruptive behavior disorder not otherwise specified, has an
IQ of 73, and has a history of involvement in the juvenile and adult criminal justice
systems. In light of this report, defense counsel requested an independent psychological
examination, “as a precaution.” Thereafter, the court ordered the independent
examination and a report on malingering, and it advised defense counsel that he should
instruct his client to be compliant with his medication, as he was disciplined in the county
jail for hoarding his medications.
{¶6} On February 17, 2015, the court held a hearing following receipt of the
independent forensic neuropsychological and psychological evaluation prepared by Dr.
John Fabian. In his report, Dr. Fabian opined that Grove “has been consistently
malingering psychosis and low cognitive functioning.” Dr. Fabian reported that
“[w]hile he likely qualifies for ADHD by history and borderline intellectual functioning, I
cannot say with a reasonable degree of psychological and neuropsychological certainty
that he qualifies for a mental condition under the competency to stand trial statute or a
severe mental disease or defect under the sanity statute.” Dr. Fabian therefore
concluded that there is no indication that Grove is not competent to stand trial or that he
was insane at the time of the alleged offenses. Defense counsel noted that Dr. Fabian’s
findings concurred with the court psychiatric clinic’s earlier evaluation, and he accepted
the findings contained in Dr. Fabian’s report. The state also accepted the findings in the
report. The court found Grove sane and competent to stand trial.
{¶7} On March 11, 2015, Grove withdrew his previously entered not guilty plea
and entered into a plea agreement with the state. Under the agreement, Grove pleaded
guilty to rape in amended Count 1, whereby the firearm specifications and the sexually
violent predator specifications were deleted. He pleaded guilty to kidnapping in amended
Count 4, whereby the firearm and sexually violent predator specifications were again
deleted. Grove also pleaded guilty to amended Count 5, whereby the charge became
attempted rape. Finally, Grove pleaded guilty to pandering sexually oriented matter
involving a minor in Count 8 as charged. The remaining charges were nolled.
{¶8} After conducting a colloquy with Grove in accordance with Crim.R. 11 and
advising Grove of his nonconstitutional and constitutional rights, the trial court accepted
Grove’s guilty plea, finding that it was knowingly, intelligently, and voluntarily made.
The court found Grove guilty of the charges and ordered a presentence investigation
report (PSI). On a later date, the court sentenced Grove to ten years imprisonment on
Count 1 (rape, merging with kidnapping in Count 4), six years imprisonment on Count 5
(attempted rape), and 18 months imprisonment on Count 8 (pandering). The court
ordered the sentences in Counts 1 and 5 to run consecutively and the sentence in Count 8
to run concurrently with Counts 1 and 5, thereby imposing an aggregate sentence of 16
years imprisonment. The court also notified Grove of his reporting requirements as a
Tier III sex offender.
{¶9} Grove now appeals his conviction and sentence, assigning three errors
for our review:
I. The trial court erred by sentencing appellant to multiple consecutive
sentences by failing to engage in the three step analysis required by
R.C. 2929.14(C) and the supporting case law.
II. The appellant received ineffective assistance of counsel during his
plea negotiations.
III. The trial court erred by proceeding to sentence after the state did not
adhere to their portion of the plea agreement.
Consecutive Sentences
{¶10} In his first assignment of error, Grove alleges that the trial court failed to
“engage in the three-step analysis” required under R.C. 2929.14(C). In support, he
essentially disputes the court’s findings and argues that the record does not support the
sentence. He states that “consecutive sentences are not required to protect the public
from future crime” because a ten-year prison term “more than adequately punishes the
offender and protects the public”; the ten-year prison term is “completely proportional
with the facts of this case” because the record does not support “a finding that [Grove’s]
crime was more serious, egregious, or unusual than any other crime of that nature” and
Grove was convicted of attempted rape, “a much less serious crime” than rape, “which he
did not plea to and was never convicted of”; and the incidents were not part of a course of
conduct, but rather, they were independent crimes.
{¶11} R.C. 2953.08(G)(2) provides that when reviewing felony sentences, the
appellate court may overturn the imposition of consecutive sentences where the reviewing
court “clearly and convincingly” finds that (1) “the record does not support the sentencing
court’s findings under R.C. 2929.14(C)(4),” or (2) “the sentence is otherwise contrary to
law.” Our review of a claim that the record does not support the trial court’s findings
under R.C. 2929.14(C)(4) is “‘extremely deferential.’” State v. Balbi, 8th Dist.
Cuyahoga No. 102321, 2015-Ohio-4075, ¶ 5, quoting State v. Venes, 2013-Ohio-1891,
992 N.E.2d 453, ¶ 21 (8th Dist.).
{¶12} In Ohio, there is a presumption that prison sentences should be served
concurrently, unless the trial court makes the findings outlined in R.C. 2929.14(C)(4) to
justify consecutive service of the prison terms. State v. Cox, 8th Dist. Cuyahoga No.
102629, 2016-Ohio-20, ¶ 3; R.C. 2929.41(A). R.C. 2929.14(C)(4) provides that in order
to impose consecutive sentences, the trial court must find that consecutive sentences are
necessary to protect the public from future crime or to punish the offender, that such
sentences would not be disproportionate to the seriousness of the conduct and to the
danger the offender poses to the public, and that one of the following applies:
(a) The offender committed one or more of the multiple offenses while
the offender was awaiting trial or sentencing, was under a sanction
imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
Revised Code, or was under postrelease control for a prior offense.
(b) At least two of the multiple offenses were committed as part of one
or more courses of conduct, and the harm caused by two or more of
the multiple offenses so committed was so great or unusual that no
single prison term for any of the offenses committed as part of any of
the courses of conduct adequately reflects the seriousness of the
offender’s conduct.
(c) The offender’s history of criminal conduct demonstrates that
consecutive sentences are necessary to protect the public from future
crime by the offender.
State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 20-22.
{¶13} Compliance with R.C. 2929.14(C)(4) requires the trial court to make the
statutory findings at the sentencing hearing, “and by doing so it affords notice to the
offender and to defense counsel.” Bonnell at ¶ 29. “Findings,” for these purposes,
means that “‘the [trial] court must note that it engaged in the analysis’ and that it ‘has
considered the statutory criteria and specifie[d] which of the given bases warrants its
decision.’” Id. at ¶ 26, quoting State v. Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d
131 (1999). Further, the reviewing court must be able to determine that the record
contains evidence to support the findings. State v. Davis, 8th Dist. Cuyahoga No.
102639, 2015-Ohio-4501, ¶ 21, citing Bonnell at ¶ 29.
{¶14} A trial court is not, however, required to state its reasons to support its
findings, nor is it required to give a rote recitation of the statutory language, “provided
that the necessary findings can be found in the record and are incorporated in the
sentencing entry.” Bonnell at ¶ 37. The failure to make consecutive sentence findings
is contrary to law. Balbi, 8th Dist. Cuyahoga No. 102321, 2015-Ohio-4075, at ¶ 4.
{¶15} Here, the trial court made the requisite R.C. 2929.14(C)(4) findings in
support of its imposition of consecutive sentences:
16 years is necessary to protect the public from future crime, to punish the
offender, and the court finds it is not disproportionate to the seriousness of
the offender’s conduct, which is rape and attempted rape, and to the danger
that he posed to the public, luring your victims to locations by use of
electronic means, * * * the court also finds that your history of criminal
conduct demonstrates that consecutive sentences are necessary to protect
the public. You have had domestic violence, assault, another assault as a
juvenile, disorderly conduct as a juvenile. You’ve had disorderly conduct,
burglary, part of this case all in your past, and you’re only 20 years old.
{¶16} Prior to making the consecutive sentence findings, the court heard
statements from defense counsel, who noted that Grove has been
on [social security income] for intelligence problems since he’s been five
years old. He went to Northcoast. * * * He was determined to be a
malingerer. * * * Dr. Fabian interviewed him and concurred with the
Northcoast psychiatrist, and I think this goes into the limited intelligence
that this defendant has in trying to converse with people and chooses to act
that out.
Counsel then requested the court impose the agreed recommended sentence of ten years
imprisonment. Thereafter, Grove offered an apology to his victims.
{¶17} The father of one of the victims then addressed the court, explaining the
pain that he and his daughter have experienced due to Grove’s actions. He offered his
forgiveness but explained that he “still carr[ies] the pain” in wondering if he is doing
enough as a father. Thereafter, Detective Buck Kidd, one of the investigating officers
provided the court with additional details regarding the incidents involving both victims.
He explained that one of the victims had initially recanted her statement to the police
because she was “threatened and beaten up by people [on Grove’s] behalf.” Finally, the
state explained to the court that Victim 2 did not wish to come to court for the sentencing
because she was “greatly affected by what happened,” and her reason for recanting her
statement to the police was “based upon fear.”
{¶18} The court then addressed Grove, noting the reports prepared by the court
psychiatric clinic, Northcoast, and an independent psychologist. The court stated that
the court psychiatric clinic reported that Grove “may have some desire to avoid prison by
going to a mental hospital and thus may have exaggerated some symptoms. He currently
does not appear sufficiently capable of cooperating.” The court then considered
Northcoast’s report that found Grove was “exaggerating or feigning his ability to learn
about the case and how the court works.” As indicated by the court, the report further
stated as follows:
His score on the test of malingered memory showed that he deliberately
chose incorrect answers in order to present himself a memory impaired.
He also reported symptoms of mental illness and psychotic symptom related
to being traumatized by witnessing Hurricane Katrina. This information
contradicts collateral information indicating that Mr. Grove has never been
in the area of the Hurricane Katrina disaster. He also endorsed
combinations of symptoms that very rarely, if ever, occur together, and his
self-report was inconsistent with his behavior during the assessment. * * *
The Miller Forensic Assessment of Symptoms was strongly suggestive of
malingering.
{¶19} Finally, the court noted that it found Grove’s “malingering and [his]
attempts to manipulate” the court and the process to be “gravely disturbing * * * and
indicative of the manipulation that [he] exercised in the committing of this case.”
{¶20} In light of the foregoing, we conclude that the trial court made the
appropriate consecutive sentence findings and it engaged in the analysis required under
R.C. 2929.14(C)(4). Further, we cannot “clearly and convincingly” find that the record
does not support the court’s findings.
{¶21} Grove claims that his actions were “independent crimes” and the court failed
to find that his actions were committed as a “course of conduct.” However, R.C.
2929.14(C)(4) requires the court find that either the offender committed the offenses as
part of a course of conduct or that the offender’s history of criminal conduct demonstrates
that consecutive sentences are necessary to protect the public from future crime. See
R.C. 2929.14(C)(4)(a)-(c). The trial court in this case did, in fact, find that Grove’s
history of criminal conduct demonstrated the need for consecutive sentences because it
noted Grove’s history of domestic violence, assault, burglary, and disorderly conduct.
{¶22} Additionally, Grove asserts that the court incorrectly sentenced him on rape,
rather than attempted rape, “a much less serious crime.” However, Grove’s assertion is
incorrect. Grove was convicted of rape in Count 1 (Victim 1) and attempted rape in
Count 5 (Victim 2), and the court sentenced him on both offenses. And the trial court
did, indeed, find both crimes to be very serious when it found that luring young victims to
a certain location by the use of electronic means was dangerous and manipulative.
{¶23} Grove’s first assignment of error is overruled.
Ineffective Assistance of Counsel
{¶24} In his second assignment of error, Grove alleges that he received ineffective
assistance of counsel during his plea negotiations. In support of his argument, Grove
claims that prior to his plea, he attempted to hire new counsel because he had “substantial
differences” with original counsel. Grove states, however, that new counsel was
unavailable for the plea and his motion to continue the plea hearing was denied. Grove
also argues that his original counsel told him that he would “die in prison with no defense
for the charges if he did not enter into a plea.” He concedes that this alleged information
is not in the record but it “reinforces the lack of voluntariness” of his plea, and therefore,
he received ineffective assistance of counsel.
{¶25} In order to establish a claim of ineffective assistance of counsel, the
defendant must show that his trial counsel’s performance was deficient in some aspect of
his representation and that deficiency prejudiced his defense. Strickland v. Washington,
466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d
136, 538 N.E.2d 373 (1989), cert. denied, 497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d
768 (1990). Under Strickland, our scrutiny of an attorney’s representation must be
highly deferential, and we must indulge “a strong presumption that counsel’s conduct
falls within the range of reasonable professional assistance.” Id. at 689. In Ohio, every
properly licensed attorney is presumed to be competent and, therefore, a defendant
claiming ineffective assistance of counsel bears the burden of proof. State v. Smith, 17
Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985).
{¶26} In proving ineffective assistance in the context of a guilty plea, the
defendant must demonstrate that there is a reasonable probability that, but for counsel’s
errors, he would not have pleaded guilty and he would have insisted on going to trial.
State v. Wright, 8th Dist. Cuyahoga No. 98345, 2013-Ohio-936, ¶ 12. Generally, a
guilty plea waives all appealable errors that may have occurred in the trial court, unless
the errors precluded the defendant from knowingly, intelligently, and voluntarily entering
a guilty plea. State v. Geraci, 8th Dist. Cuyahoga Nos. 101946 and 101947,
2015-Ohio-2699, ¶ 14; State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991). A
claim of ineffective assistance of counsel is therefore waived by a guilty plea, unless the
ineffective assistance of counsel precluded the defendant from knowingly, intelligently,
and voluntarily entering a guilty plea. Geraci.
{¶27} “‘A failure by counsel to provide advice [which impairs the knowing and
voluntary nature of the plea] may form the basis of a claim of ineffective assistance of
counsel, but absent such a claim it cannot serve as the predicate for setting aside a valid
plea.’” State v. Milczewski, 8th Dist. Cuyahoga No. 97138, 2012-Ohio-1743, ¶ 5,
quoting United States v. Broce, 488 U.S. 563, 574, 109 S.Ct. 757, 102 L.Ed.2d 927(1989).
{¶28} We note, initially, that Grove’s claims rely on statements made outside of
the record. There is no evidence in the record of “substantial differences” Grove had
with his trial counsel, trial counsel’s allegedly improper legal advice or improper
inducement (that Grove would “die in prison with no defense for the charges if he did not
enter into a plea”), or of the purported effect of these differences or advice on his guilty
plea. Alleged statements or purported evidence made outside of the record are not
properly considered on a direct appeal. State v. Peak, 8th Dist. Cuyahoga No. 102850,
2015-Ohio-4702, ¶ 20; State v. Johnson, 2015-Ohio-96, 27 N.E.3d, ¶ 53 (8th Dist.)
(ineffective assistance of counsel claim that would require proof outside of the record is
not appropriately considered on a direct appeal).
{¶29} Furthermore, there is nothing in the record that demonstrates counsel’s
deficient performance or counsel’s failure to provide advice that would impair the
knowing and voluntary nature of Grove’s plea. Rather, the record reflects that Grove’s
guilty pleas were knowingly, intelligently, and voluntarily made.
{¶30} During the court’s Crim.R. 11 colloquy with Grove, the court ensured that
Grove was not under the influence of any drugs or medication that would impair his
understanding of the proceedings, and it inquired of Grove’s education. Thereafter, the
court advised Grove of his constitutional rights and explained the charges to which he
was pleading guilty, the maximum penalty of the charges (which the court explained was
a combined 31½ years incarceration), and the effect of his plea. The court also
explained that it could immediately proceed to judgment and sentence following his plea.
Grove repeatedly indicated that he understood. The court inquired whether there had
been any threats, promises, or inducements made in an effort to cause Grove to enter his
plea, to which Grove replied in the negative.
{¶31} The court specifically advised Grove that his attorneys recommended a
sentence of ten-years imprisonment, and Grove indicated that he understood. The court
asked Grove if he agreed with the recommendation, to which he replied, “Yes.” The
court then advised Grove that the recommended sentence is not binding upon the court
and that the court could, in fact, impose more time or less time than recommended.
Grove stated that he understood.
{¶32} Furthermore, the court asked Grove, “Is there anything about this case or
these proceedings [that] you do not understand?” Grove replied, “No.” The court also
inquired whether he was satisfied with his counsel during the plea process, to which
Grove replied in the affirmative. Finally, there is no indication in the record that Grove
expressed confusion or hesitation at any time during the plea hearing.
{¶33} We therefore do not find that Grove received ineffective assistance of
counsel during the plea proceedings, and he entered his plea knowingly, intelligently, and
voluntarily.
{¶34} Grove’s second assignment of error is overruled.
Enforcement of the Plea Agreement
{¶35} In his third assignment of error, Grove claims that the court erred in
proceeding to sentencing where the state failed to adhere to its portion of the plea
agreement. In support of this argument, Grove alleges that the state agreed to a
recommended sentence of ten-years imprisonment; however, it breached that agreement
when the investigating detective addressed the court and when the prosecutor provided an
additional statement regarding the second victim. He claims that the statements were
provided only to inflame the court and is therefore a breach.
{¶36} A plea agreement is a contract between the state and a criminal defendant
and is subject to contract-law principles. State v. Butts, 112 Ohio App.3d 683, 686, 679
N.E.2d 1170 (8th Dist.1996); Baker v. United States, 781 F.2d 85, 90 (6th Cir.1986).
The terms of a plea agreement must therefore be explicit. State v. Padilla, 8th Dist.
Cuyahoga No. 98187, 2012-Ohio-5892, ¶ 11. Where the state breaches a plea
agreement, the defendant has the option to withdraw his plea or seek specific
performance. State v. Brunning, 8th Dist. Cuyahoga No. 95376, 2013-Ohio-930, ¶ 9;
Santobello v. New York, 404 U.S. 257, 263, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).
{¶37} The trial court is vested with wide discretion in implementing a plea
agreement. State v. Dunbar, 8th Dist. Cuyahoga No. 87317, 2007-Ohio-3261, ¶ 112,
citing State v. Buchanan, 154 Ohio App.3d 250, 2003-Ohio-4772, 796 N.E.2d 1003, ¶
13 (5th Dist.). And the court is not obligated to follow the negotiated plea entered into
between the state and the defendant. Dunbar. In fact, “[a] trial court does not err by
imposing a sentence greater than ‘that forming the inducement for the defendant to plead
guilty when the trial court forewarns the defendant of the applicable penalties, including
the possibility of imposing a greater sentence than that recommended by the prosecutor.’”
Buchanan at ¶ 13, quoting State v. Pettiford, 12th Dist. Fayette No. CA2001-08-014,
2002-Ohio-1914, citing State v. Darmour, 38 Ohio App.3d 160, 529 N.E.2d 208 (8th
Dist.1987).
{¶38} At the plea hearing in this case, the assistant prosecutor presented the plea
agreement to the court and stated that “as part of this plea, the defendant and the state
have agreed to recommend to the court * * * an aggregate sentence of 10 years on this
case.” The state also advised the court that no other threats or promises had been made
in order to induce Grove into changing his plea. Defense counsel agreed. And the
court noted the recommendation during its colloquy with Grove.
{¶39} At the sentencing hearing held one month later, the court reiterated the
parties’ agreed recommended sentence and then addressed a matter contained in the PSI.
Thereafter, the court provided the defense an opportunity to make a statement prior to the
court’s imposition of the sentence. As previously indicated in this opinion, defense
counsel addressed the court, noting the various psychological examinations conducted,
and offered Grove’s “limited intelligence” as mitigation for his offenses. Counsel then
requested the court impose the agreed recommended ten-year prison sentence, and Grove
offered an apology to his victims.
{¶40} The court then inquired whether the state wished to make a statement. At
that time, the father of one of the victim’s addressed the court, explaining the pain that he
and his daughter have experienced due to Grove’s actions. The state advised the court
that Detective Kidd, one of the investigating officers, was also present in the courtroom
and wished to address the court. Detective Kidd provided additional information
concerning his investigation of Grove, including a victim’s recantation out of fear and the
discovery of additional victims. Defense counsel objected to the detective’s statement,
claiming the state was “backtracking” on the plea agreement because the detective’s
statement was “done not in support of the 10-year sentence * * * but to inflame this court
to give a sentence greater than 10 years.”
{¶41} In response, the court advised defense counsel that it has “never, ever agreed
to any recommended sentence in 23 years” and it further stated as follows:
It would be almost unheard of that somebody out there could inflame me
more than a defendant and the conduct of a defendant. I listen to victims,
family members, law enforcement officers every day. You have been in
my courtroom many times to know that what I look at is the conduct of a
defendant. I expect all victims to be upset. I expect all law enforcement
to be on a certain side. * * * It’s the defendant and the defendant’s conduct,
character, record, etc. that concerns this court.
{¶42} Thereafter, the court offered defense counsel an opportunity to address
which facts he deemed “pertinent or not.” Defense counsel, however, declined. The
state then added that it was not attempting to circumvent its recommendation, but it
wished to make the court aware of all of the circumstances. In completing its statement,
the state provided that the victim in Count 5 would not be attending the hearing, that she
was “greatly affected” by Grove’s actions, and that her recantation was based upon her
fear. The state then reiterated its agreement with defense counsel:
That being said, you know, we did reach an agreement and we made a
recommendation to the court. And I understand that this court is free to
impose the sentence that it feels is supported by the revised code. But this
in no way [was] meant to circumvent the agreement I had with [defense
counsel].
{¶43} In support of his argument that the state violated the plea agreement by
attempting to influence the court with disparaging statements at sentencing, Grove cites to
State v. Ross, 179 Ohio App.3d 45, 2008-Ohio-5388, 900 N.E.2d 678 (6th Dist.). In
Ross, the court determined that an agreement by the prosecution to stand silent, or take no
position on the sentence, “restricts the government from attempting to influence the
sentence by presenting the court with conjecture, opinion, or disparaging information
already in the court’s possession.” Ross at ¶ 14, citing State v. Crump, 3d Dist. Logan
No. 8-04-24, 2005-Ohio-4451, ¶ 11.
{¶44} Here, however, there was no evidence in the record that the state agreed to
stand silent. Rather, the transcript of the plea hearing, which is the only evidence before
this court of the specific terms of the plea agreement, provides that the state agreed to a
recommended ten-year prison sentence. In fact, the prosecutor reiterated this position
several times during the hearing. And when the prosecutor initially presented the plea
agreement to the court, it advised the court that no other promises were made to Grove.
{¶45} Furthermore, efforts by the state to provide “relevant factual information or
to correct misstatements are not tantamount to taking a position on the sentence and will
not violate the plea agreement.” Ross, citing Crump. In this case, in offering the
detective’s statement and the prosecutor’s additional information concerning Victim 2’s
recantation, which were not previously available to the court through the PSI, the state
provided relevant factual information to the court before sentencing. There was no
evidence that such statements were attempts to influence the sentence with disparaging
information already in the court’s possession, i.e. through the PSI. See Ross; Crump.
Moreover, the prosecutor provided the additional statements only after the court provided
both Grove and the state an opportunity to make statements. The court was free to
inquire of the parties whether they wished to further address the court prior to the
imposition of sentence.
{¶46} Finally, we note that even if we found that the prosecutor breached the
agreement by offering additional statements at sentencing, the court expressly stated that
it was not bound by the agreement reached by the parties (at plea hearing) and that it
“never” agreed with recommended sentences and the additional comments had no effect
on the court’s sentence (at sentencing). Also, there is no evidence in the record to
suggest that the court’s sentence would have been any different had the court not received
the statements.
{¶47} Grove’s third assignment of error is overruled.
{¶48} Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court
for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
______________________________________________
TIM McCORMACK, JUDGE
EILEEN A. GALLAGHER, P.J., CONCURS;
MELODY J. STEWART, J., CONCURS IN JUDGMENT ONLY (WITH SEPARATE
OPINION ATTACHED)
MELODY J. STEWART, J., CONCURRING IN JUDGMENT ONLY:
{¶49} I agree with Grove that the state had an implied obligation to act in good
faith with its sentencing recommendation, but I must reluctantly concur that no breach of
that recommendation occurred because the state did not agree to stand silent at
sentencing.
{¶50} The United States Supreme Court has indicated that “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 inducement or consideration, such promise must be fulfilled.”
Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). In
State v. Dye, 127 Ohio St.3d 357, 2010-Ohio-5728, 939 N.E.2d 1217, the Ohio Supreme
Court concluded that a plea bargain is contractual in nature and subject to principles of
contract law. Id. at ¶ 21. The federal courts use these same contract principles to hold
that “when a prosecutor secures a plea with a promise, the promise must be upheld.”
United States v. Jones, 58 F.3d 688, 691 (D.C.Cir.1995). See also United States v. Khan,
920 F.2d 1100, 1105 (2d Cir.1990) (applying “implied obligation of good faith and fair
dealing” to plea agreement); United States v. Hawkins, 274 F.3d 420, 430-431 (6th
Cir.2001) (“Like all contracts, [a plea agreement] includes an implied obligation of good
faith and fair dealing.”); Khan at 1105 (applying “implied obligation of good faith and
fair dealing” to plea agreement).
{¶51} Good faith is “‘a compact reference to an implied undertaking not to take
opportunistic advantage in a way that could not have been contemplated at the time of
drafting, and which therefore was not resolved explicitly by the parties.’” Ed Schory &
Sons, Inc. v. Soc. Natl. Bank, 75 Ohio St.3d 433, 443-444, 662 N.E.2d 1074 (1996),
quoting Kham & Nate’s Shoes No. 2, Inc. v. First Bank of Whiting, 908 F.2d 1351, 1357
(7th Cir.1990).
{¶52} The state agreed to recommend that the court impose a ten-year sentence on
Grove. It could, consistent with the express terms of its agreement, offer the court
information to ensure that Grove would not receive less than ten years in prison. While
the information the state offered may have gone beyond what was strictly necessary to
ensure that the court did not impose less than ten years in prison, the state did not take
opportunistic advantage in a way that could not have been contemplated at the time the
parties entered their agreement.
{¶53} Notably, Grove did not insist that the state stand or remain silent as a term of
the plea agreement. Had the state’s silence been a part of the sentencing agreement, the
state would have no basis for offering the information it offered at sentencing.
{¶54} Admittedly, there is no clear line in this case between what constitutes a
good faith presentation of information designed to ensure that the court enters a sentence
consistent with a recommendation and simple “piling on.”1 But for defense counsel, the
takeaway from this case is that if counsel wants to ensure that the state does nothing that
could be viewed as undermining an agreed upon sentence, the state’s agreement to stand
silent at sentencing must be made a part of the plea agreement.
During sentencing, the court indicated that the state’s alleged bad faith in offering additional
1
facts was of no consequence because the court would not be bound by any sentencing
recommendation and the state suggests that this militated against any prejudice to Grove. The
United States Supreme Court has made it clear that the breach of a plea agreement is not dependent
on whether the sentencing judge would have been influenced by the breached term of the plea
agreement. Santobello, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427.