State v. Foster , 2023 Ohio 1434 ( 2023 )

[Cite as State v. Foster, 2023-Ohio-1434.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 5-22-26
v.
TREMELL D. FOSTER, OPINION
DEFENDANT-APPELLANT.
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 5-22-27
v.
TREMELL D. FOSTER, OPINION
DEFENDANT-APPELLANT.
Appeals from Hancock County Common Pleas Court
Trial Court Nos. 2021 CR 0014 and 2021 CR 0164
Judgments Affirmed
Date of Decision: May 1, 2023
APPEARANCES:
Brian A. Smith for Appellant
Phillip A. Riegle for Appellee
Case Nos. 5-22-26, 5-22-27
WALDICK, J.
{¶1} Defendant-appellant, Tremell D. Foster (“Foster”), brings these appeals
from the August 9, 2022, judgments of the Hancock County Common Pleas Court
sentencing him to prison after he was convicted by a jury of two separate felony
OVI offenses. On appeal, Foster argues that his convictions were against the
manifest weight of the evidence, that the trial court erred by denying his suppression
motions, that the trial court erred by granting the State’s motion to join the cases for
trial, and that the trial court erred by rejecting the parties’ plea agreement. For the
reasons that follow, we affirm the judgments of the trial court.
Background
{¶2} On January 12, 2021, Foster was indicted in trial court case 2021-CR-
14 for OVI in violation of R.C. 4511.19(A)(1)(a), a felony of the third degree due
to Foster having a prior felony conviction of R.C. 4511.19(A). The indictment also
contained a specification pursuant to R.C. 2941.1413 alleging that Foster had 5 or
more equivalent offenses within 20 years of committing the offense. Foster pled not
guilty to the charge.
{¶3} On May 18, 2021, Foster was indicted in trial court case 2021-CR-164
for another OVI offense that occurred while Foster was released on bond on trial
court case 2021-CR-14. The indictment for the May 2021 OVI was for the same
charge as the January 2021 case and the new indictment contained the same
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specification. In fact, the May 2021 charge actually involved the same arresting
officer as the January 2021 charge. Foster pled not guilty to the new charge.
{¶4} Foster filed suppression motions in both cases, which were heard and
ultimately overruled by the trial court. Foster then proceeded to a consolidated jury
trial on July 5-6, 2022, wherein the jury found Foster guilty of both OVI charges
and the accompanying specifications.
{¶5} Foster was sentenced to serve 24 months in prison on the January 2021
OVI and a consecutive 2-year prison term on the attached specification. As to the
May 2021 OVI, Foster was sentenced to serve 36 months in prison on the OVI
charge, and a consecutive 3-year prison term on the attached specification.
Judgment entries memorializing Foster’s sentences were filed in both cases on
August 9, 2022. Foster now brings the instant appeals, asserting the following
assignments of error for our review.
Assignment of Error No. 1
Because the jury lost its way and created a manifest miscarriage
of justice in finding Appellant guilty, Appellant’s convictions, in
both case numbers 2021 CR 00014 and 2021 CR 00164, were
against the manifest weight of the evidence.
Assignment of Error No. 2
Because the trial court’s factual findings were against the
manifest weight of the evidence, and its ultimate legal conclusions
were in error, the trial court erred in denying Appellant’s
Motions to Suppress in both case numbers 2021 CR 00014 and
2021 CR 00164, in violation of Appellant’s right against
unreasonable searches and seizures under the Fourth and
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Fourteenth Amendments to the United States Constitution and
Article I, Section 14 of the Ohio Constitution.
Assignment of Error No. 3
Because Appellant was severely prejudiced as a result of joinder,
the trial court was provided with the evidence needed to properly
weigh considerations of joinder and Appellant’s right to a fair
trial, and the trial court abused its discretion in granting joinder
in light of the information with which it was presented, the trial
court abused its discretion in consolidating case numbers 2021 CR
00014 and 2021 CR 00164 for purposes of trial, in violation of
Appellant’s right to Due Process under the Fifth and Fourteenth
Amendments to the United States Constitution and Article I,
section 10 of the Ohio Constitution.
Assignment of Error No. 4
Because the trial court acted in an arbitrary, unconscionable, and
unreasonable manner in refusing to accept the plea agreement
between the State and Appellant, the trial court’s refusal to accept
the plea agreement was an abuse of discretion, and a violation of
Appellant’s right to Due Process and a fair trial under the Fifth
and Fourteenth Amendments to the United States Constitution
and Article I, Section 10 of the Ohio Constitution.
{¶6} For ease of discussion, we elect to address the assignments of error out
of the order in which they were raised.
Second Assignment of Error
{¶7} In his second assignment of error, Foster argues that the trial court erred
by denying his suppression motions in both cases. We will address each suppression
motion separately below.
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Standard of Review
{¶8} “Appellate review of a motion to suppress presents a mixed question of
law and fact.” State v. Burnside, 100 Ohio St.3d 152, 2003-Ohio-5372, ¶ 8. At a
suppression hearing, the trial court assumes the role of trier of fact and, as such, is
in the best position to evaluate the evidence and the credibility of witnesses. Id.;
State v. Carter, 72 Ohio St.3d 545, 552 (1995). When reviewing a ruling on a motion
to suppress, “an appellate court must accept the trial court’s findings of fact if they
are supported by competent, credible evidence.” Burnside at ¶ 8, citing State v.
Fanning, 1 Ohio St.3d 19 (1982). With respect to the trial court’s conclusions of
law, however, our standard of review is de novo, and we must independently
determine whether the facts satisfy the applicable legal standard. Id., citing State v.
McNamara, 124 Ohio App.3d 706 (4th Dist.1997).
Suppression Motion in case 2021-CR-14
{¶9} Foster filed a suppression motion in trial court case 2021-CR-14
arguing, inter alia, that the trooper who stopped his vehicle lacked sufficient
grounds to initiate a traffic stop, that there were insufficient grounds to extend the
traffic stop, and that the trooper lacked probable cause to arrest him. The trial court
held a full hearing on the matter wherein the following evidence was presented.
{¶10} On January 2, 2021, at approximately 10:42 p.m., Trooper David
Lopez of the Ohio State Highway Patrol was in his marked cruiser tracking the speed
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of southbound travelers on I-75. Using his “laser,” Trooper Lopez observed a
vehicle traveling 83, 80, and 79 mph in the 70 mph speed zone. At that time, Trooper
Lopez “made a conscious decision” to stop the vehicle, so he pulled out from his
location to catch up with the vehicle, but he did not immediately activate his
overhead lights to initiate a traffic stop. (Oct. 13, 2021, Tr. at 71).
{¶11} Trooper Lopez caught up to the vehicle and followed it as the vehicle
took an exit ramp onto County Road 99. When the vehicle turned left onto County
Road 99, Trooper Lopez observed the vehicle travel halfway into the right lane,
dividing two lanes of travel. Nevertheless, Trooper Lopez indicated he did not
activate his overhead lights to stop the vehicle until after they crossed the overpass.
{¶12} Once Trooper Lopez activated his overhead lights to initiate a traffic
stop, he followed the vehicle as it pulled into a nearby Speedway. 1 The vehicle
ultimately stopped partially on top of a dividing line between parking spots at the
Speedway. Trooper Lopez parked behind the vehicle, then approached and
identified Foster as the driver.
{¶13} While interacting with Foster, Trooper Lopez detected a strong odor
of an alcoholic beverage. He also noticed that Foster’s eyes were bloodshot and
glassy, and that Foster’s speech was slurred. As a result of his observations, Trooper
Lopez asked Foster to step out of the vehicle and speak with him in the front seat of
1
Trooper Lopez testified that it was not unusual for vehicles that he stopped in that area to proceed to the
Speedway.
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his cruiser. During that conversation, Foster admitted to drinking two beers and a
shot, though it was not clear when exactly he had done so. Nevertheless, as they
conversed, Trooper Lopez again detected the odor of an alcoholic beverage
specifically emanating from Foster’s breath. He also noted the continued slurred
speech of Foster, and Foster’s bloodshot/glassy eyes.
{¶14} As a result of the interaction, Trooper Lopez had Foster perform field
sobriety tests. Trooper Lopez had Foster perform the HGN test, detecting six of six
clues of impairment. Additionally, while Trooper Lopez was conducting the test,
Foster stated, “you already know.” (Id. at 109).
{¶15} After the HGN test, Trooper Lopez began to instruct Foster on the
walk-and-turn test; however, as Trooper Lopez was explaining the test, Foster
indicated he had an urgent need to urinate. Trooper Lopez indicated Foster needed
to wait until the tests were complete first. Foster continued to emphasize his need
to urinate throughout the rest of his interaction with Trooper Lopez.
{¶16} Although Foster maintained his need to urinate, Trooper Lopez had
Foster perform the walk-and-turn test, wherein Trooper Lopez detected 6 of 8 clues
of impairment. He then had Foster perform the one-leg stand test and he detected 3
of 4 clues of impairment. Based on all of his observations of Foster, Trooper Lopez
arrested Foster for OVI. Foster was offered a chemical breath test but he refused.
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{¶17} Based on all of the evidence presented, the trial court overruled
Foster’s suppression motion. The trial court filed a written entry making findings of
fact and conclusions of law, ultimately determining, inter alia, that Trooper Lopez
had sufficient grounds to initiate a traffic stop, to perform field sobriety tests, and
that Trooper Lopez had probable cause to arrest Foster.
{¶18} Foster now argues that the trial court erred by overruling his
suppression motion, specifically contending that certain factual findings made by
the trial court were not supported by the record. He argues that the trial court also
erroneously concluded that Trooper Lopez had reasonable suspicion to stop Foster,
and that Trooper Lopez lacked probable cause to arrest Foster for OVI.
{¶19} In reviewing Foster’s arguments, we emphasize that the record clearly
supports Trooper Lopez having a reasonable suspicion to stop Foster based on his
observation of Foster exceeding the speed limit. State v. Pullin, 5th Dist. Stark No.
2019CA00105, 2020-Ohio-787, ¶ 20; see also State v. Gartrell, 3d Dist. Marion No.
9-14-12, 2014-Ohio-5203, ¶ 55. Thus we find no error here with the trial court’s
determination to overrule his suppression motion on this issue.
{¶20} As to Foster’s claim that Trooper Lopez lacked probable cause to
arrest him for OVI, Trooper Lopez specifically identified the numerous reasons why
he arrested Foster for OVI, and the trial court found, based on the totality of the
circumstances, that Trooper Lopez had probable cause to arrest Foster. We find no
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error with the trial court’s determination. In fact, while Foster argues that the video
evidence showed his speech was not slurred, the video actually establishes that
Foster’s speech is plainly slurred and Foster can also be observed driving between
lanes when making a left-hand turn onto County Road 99. Thus while Foster argues
that Trooper Lopez was not credible, the video actually corroborates Trooper
Lopez’s testimony.
{¶21} Given all the facts in the record, such as Trooper Lopez’s observations
of Foster, Foster’s admission to drinking, Foster’s statement “you already know,”
and Foster’s performance on the field sobriety tests, we do not find any error here
with the trial court’s determination that Trooper Lopez had probable cause to arrest
Foster for OVI. See State v. Lewis, 3d Dist. Auglaize No. 2-16-13, 2017-Ohio-996,
¶ 13. Thus after reviewing the record, Foster’s contention that the trial court erred
by denying his suppression motion in trial court case 2021-CR-14 is overruled.
Suppression Motion in case 2021-CR-164
{¶22} Foster filed a suppression motion in trial court case 2021-CR-164
arguing, inter alia, that Trooper Lopez lacked sufficient grounds to detain him on
May 10, 2021, and that Trooper Lopez lacked probable cause to arrest him for OVI.
A hearing was held on the matter wherein the following evidence was presented.
{¶23} On May 10, 2021, Trooper Lopez was on patrol in Findlay shortly
after 1:30 a.m. While driving, he observed a black BMW parked in the front yard of
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a residential home. The BMW was running, the driver’s-side door was open, and
music was playing loudly. Trooper Lopez thought the situation was unusual, so he
watched the vehicle while he was in the area.
{¶24} After a couple of minutes, the BMW left the yard in which it was
parked, traveled up the road, and parked in the yard of another residence. Trooper
Lopez observed a black male get out of the vehicle, walk around it, and get back
inside. Trooper Lopez then observed the vehicle travel back to the original residence
it was parked in front of, again parking in the front yard.
{¶25} Findlay Police Officers were in the area investigating a noise
complaint, and Trooper Lopez made contact with them while he was observing the
black BMW. The Findlay officers approached the black male who was outside of
the BMW and spoke with him. As the Findlay officers were finishing speaking to
the man, Trooper Lopez approached and recognized the individual as Foster.
{¶26} Trooper Lopez indicated that Foster had a strong odor of an alcoholic
beverage emanating from his breath. He also noticed that Foster’s eyes were
bloodshot, glazed, and glassy. Further, there was a slur/congestion to Foster’s
words.
{¶27} Trooper Lopez attempted to have Foster perform field sobriety tests,
but Foster would not follow instructions. Foster claimed that he was not driving the
black BMW, that he was in his own yard, and that he felt he could not be arrested
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in his own yard. Trooper Lopez explained that he had observed Foster driving the
black BMW and that he had observed Foster park in multiple yards, so he wanted
Foster to perform field sobriety tests. When Foster refused to comply, Foster was
arrested for OVI.
{¶28} Based on all of the evidence presented, the trial court overruled
Foster’s suppression motion. The trial court filed a written entry making findings of
fact and conclusions of law, ultimately determining, inter alia, that Trooper Lopez
had sufficient grounds to stop Foster, to detain him, and that Trooper Lopez had
probable cause to arrest Foster.
{¶29} Foster now argues that the trial court erred by overruling his
suppression motion, contending that the trial court improperly determined that
Trooper Lopez discerned clues that were strongly suggestive of inebriation, and that
the trial court erred by determining that Trooper Lopez had probable cause to arrest
Foster.
{¶30} Contrary to Foster’s arguments, Trooper Lopez testified to his
observations of Foster’s odd behavior, which consisted of parking in multiple yards
after 1:30 a.m. while listening to loud music. Trooper Lopez testified that Foster had
a strong odor of an alcoholic beverage emanating from his person, that his speech
was slurred, and that his eyes were bloodshot/glassy. The video from the scene
entered into evidence corroborates Trooper Lopez’s testimony, in that Foster’s
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speech was slurred and he was combative when it came to performing field sobriety
tests. Given all the evidence in the record, and giving deference to the factual
findings of the trial court, which are supported by the record, we do not find that the
trial court erred by denying Foster’s suppression motion in trial court case 2021-
CR-164. Therefore, Foster’s second assignment of error is overruled.
First Assignment of Error
{¶31} In Foster’s first assignment of error, he argues that his OVI
convictions in both cases were against the manifest weight of the evidence.
Standard of Review
{¶32} In reviewing whether a verdict was against the manifest weight of the
evidence, the appellate court sits as a “thirteenth juror” and examines the conflicting
testimony. State v. Thompkins, 78 Ohio St.3d 380, 387, 1997-Ohio-52. In doing
so, this court must review the entire record, weigh the evidence and all of the
reasonable inferences, consider the credibility of witnesses and determine whether
in resolving conflicts in the evidence, the factfinder “clearly lost its way and created
such a manifest miscarriage of justice that the conviction must be reversed and a
new trial ordered.” Id.{¶33} Nevertheless, a reviewing court must allow the trier-of-fact
appropriate discretion on matters relating to the credibility of the witnesses. State
v. DeHass, 10 Ohio St.2d 230, 231 (1967). When applying the manifest-weight
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standard, “[o]nly in exceptional cases, where the evidence ‘weighs heavily against
the conviction,’ should an appellate court overturn the trial court’s judgment.” State
v. Haller, 3d Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9, quoting State v. Hunter,
131 Ohio St.3d 67, 2011-Ohio-6524, ¶ 119.
Analysis
{¶34} In arguing that his convictions were against the manifest weight of the
evidence, Foster contends that the evidence did not establish that he was intoxicated
during either incident, that the videos of the traffic stops weighed against findings
that he was impaired in both cases, and that Trooper Lopez was not a reliable
witness. In addition, he argues that with respect to the January 2021 case, the results
from the field sobriety tests were compromised by Foster’s urgent need to urinate.
With respect to the May 2021 case, Foster argues that there were no field sobriety
tests to corroborate any level of intoxication.
{¶35} At the outset of our review, we emphasize that all of the arguments
that Foster makes, and all of the “flaws” that he contends are in the State’s case,
were presented to the jury for consideration, and they were evidently rejected by the
jury. Moreover, the jury was able to see and observe Trooper Lopez’s testimony and
compare his testimony with the video of both incidents. Credibility is primarily a
matter for the trier-of-fact. State v. DeHass, 10 Ohio St.2d 230, 231 (1967).
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{¶36} With respect to the January 2021 OVI, Trooper Lopez’s observations
are supported by Foster’s statements at the scene and by the video of the incident.
With respect to the May 2021 OVI, Trooper Lopez’s testimony was further
supported by a witness who testified that it was her yard Foster had stopped in on
the night in question. She testified that Foster wanted her fiancé to come outside and
drink with him. This testimony defeated Foster’s claims that he was not the
individual driving the black BMW that was parking in people’s yards.
{¶37} On the whole, these are simply not cases where the evidence weighs
heavily against the convictions, which is required for a reversal. State v. Haller, 3d
Dist. Allen No. 1-11-34, 2012-Ohio-5233, ¶ 9. Therefore, Foster’s first assignment
of error is overruled.
Third Assignment of Error
{¶38} In his third assignment of error, Foster argues that the trial court
abused its discretion by joining his two OVI cases for purposes of trial.
Standard of Review
{¶39} We review a trial court’s determination on joinder issues under an
abuse of discretion standard. State v. Lucas, 3d Dist. Allen Nos. 1-21-53, 1-21-54,
1-21-55, 2022-Ohio-3278, ¶ 48. An abuse of discretion is more than an error in
judgment; it suggests that the decision is unreasonable, arbitrary, or unconscionable.
State v. Adams, 62 Ohio St.2d 151, 157-158 (1980).
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Relevant Authority
{¶40} “The law favors joining multiple criminal offenses in a single trial.”
State v. Franklin, 62 Ohio St.3d 118, 122 (1991). This is because joinder “conserves
judicial and prosecutorial time, lessens the not inconsiderable expense of multiple
trials, diminishes inconvenience to witnesses, and minimizes the possibility of
incongruous results in successive trials before different juries.” State v. Thomas, 61
Ohio St.2d 223, 225 (1980).
{¶41} Notwithstanding the policy favoring joinder, a trial court should not
order joinder where the defendant will be prejudiced. State v. LaMar, 95 Ohio St.3d
181, 2002-Ohio-2128, ¶ 49. To obtain severance pursuant to Crim.R. 14, the
accused bears “the burden of affirmatively showing that his rights were prejudiced;
he must furnish the trial court with sufficient information so that it can weigh the
considerations favoring joinder against the defendant’s right to a fair trial[.]” State
v. Torres, 66 Ohio St.2d 340, 343 (1981), syllabus.
{¶42} However, the State can “refute a defendant’s claim of prejudicial
joinder” by demonstrating either of the following: (1) that the evidence to be
introduced relative to one offense would be admissible in the trial on the other,
severed offense, pursuant to Evid.R. 404(B) (the “other acts” test); or (2) that,
regardless of the admissibility of such evidence, the evidence relating to each charge
is simple and direct (the “joinder test”). State v. Powell, 8th Dist. Cuyahoga No.
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107276, 2019-Ohio-4345; Franklin at 122. Importantly, the two tests are
disjunctive—the satisfaction of one negates an accused’s claim of prejudice without
consideration of the other. State v. Truss, 10th Dist. Franklin No. 18AP-147, 2019-
Ohio-3579, ¶ 17.
Analysis
{¶43} After the State filed a motion to consolidate the two OVI cases against
Foster for purposes of trial, the matter was discussed at the final pretrial hearing.
Defense counsel strongly objected to consolidation, arguing that it was “human
nature” for a jury to have difficulty separating multiple identical charges,
particularly given the stipulations that would be entered to the 5 prior equivalent
OVI offenses for purposes of the specification. The defense contended that the jury
would make improper “propensity” inferences.
{¶44} The State countered that in this unusual circumstance, the same officer
arrested Foster for both OVIs, thus judicial efficiency would be vastly increased by
holding a single trial. Further, the State argued that the evidence from each charge
was simple and direct.
{¶45} The trial court agreed with the State, emphasizing that the law favors
joinder and that this case had “the unique common factor” of the same arresting
officer. Further, the trial court stressed that it would emphasize that the jury should
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consider each charge individually. In fact, at trial, the trial court did instruct the jury
multiple times to consider each case individually.
{¶46} In our review of the matter, we agree with the trial court that the law
favors joinder. State v. Ecker, 9th Dist. No. 28431, 2018-Ohio-940, ¶ 10. Further,
we agree that this case did present the unique common factor of the same arresting
officer. These factors thus weighed in favor of joinder.
{¶47} Moreover, while Foster may argue that there was a potential for
prejudice here, the evidence in this case was simple and direct related to each charge,
limiting any potential for confusion. State v. Lott, 51 Ohio St.3d 160, 163–64, (1990)
(when simple and direct evidence exist, an accused is not prejudice by joinder
regardless of nonadmissibility of evidence as “other acts” under Evid.R. 404(B)).
Furthermore, the jury was specifically instructed to evaluate each case separately.
State v. Garner, 74 Ohio St.3d 49, 1995-Ohio-168 (a jury is presumed to follow trial
court’s instructions). Based on these particular facts and circumstances, we do not
find that the trial court abused its discretion by joining the cases for purposes of
trial. Therefore, Foster’s third assignment of error is overruled.
Fourth Assignment of Error
{¶48} In his fourth assignment of error, Foster argues that the trial court erred
by refusing to accept a negotiated guilty plea between the parties at the final pretrial
hearing.
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Standard of Review
{¶49} The determination of whether to accept a plea agreement is within the
sound discretion of the trial court. State v. Moore, 3d Dist. Union No. 14-06-43,
2007-Ohio-1763, ¶ 7. An abuse of discretion is more than an error in judgment; it
suggests that the decision is unreasonable, arbitrary, or unconscionable. State v.
Adams, 62 Ohio St.2d 151, 157-158 (1980).
Analysis
{¶50} At the final pretrial hearing on this case, the trial court stated, “I
understand there may have been some plea negotiations. What would you like to
place on the record[?].” (June 29, 2022, Tr. at 3).
{¶51} The prosecutor then indicated that there were “a few last-second
negotiations that we were discussing.” (Id. at 4). The prosecutor narrated that the
“plea negotiations” were that Foster would enter a plea to the sole OVI charge in
trial court case 2021-CR-14, without a specification, and the parties would
recommend a 24-month prison term. In exchange, the State would agree to dismiss
the 2021-CR-164 case in its entirety, and any jail-time credit from the 2021-CR-164
case would be applied to the 2021-CR-14 case. Further, the State would agree to
remain silent as to any motion for judicial release.
{¶52} After reciting the “last-second negotiations,” the prosecutor stated:
“This should resolve the two pending matters that are set for [trial] next week, if
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that is in fact accepted by the Court, and by the Defendant[.]” (Emphasis added.)
(Id. at 5).
{¶53} Once the prosecutor was done narrating the “last-second
negotiations,” the trial court indicated it would not be willing to accept such a plea
agreement.
These are two felonies of the third degree, OVIs, they’re – they
both have specs. I don’t think it’s a fair and just and fair [sic]
resolution, so I’m not willing to accept it. * * *
If you want to come back to the Court with something else
maybe, I might consider it, but that, I would not agree with that.”
(Id. at 7). There was no further discussion regarding plea agreements.
{¶54} Foster now argues that the trial court abused its discretion by rejecting
the “plea agreement” in this case. However, in our review of the matter, we
emphasize that the record does not reflect that there was a firm, concrete agreement
between the parties. There were “last-second negotiations” about a possible
resolution, but when the prosecutor stated the potential agreement, she specifically
mentioned that the agreement still had to be accepted by the trial court and the
defendant. Neither defense counsel, nor the defendant, at any time, indicated that
they had a firm agreement with the prosecution. For this reason alone, we do not
find that the trial court abused its discretion.
{¶55} Notwithstanding this point, even assuming that there was a firm plea
agreement and that the prosecutor was speaking for both parties, we do not find that
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the trial court abused its discretion here. The trial court noted that Foster was facing
two third degree felony charges, each with specifications that each individually
carried up to 5 years in prison. Foster was thus facing a max, consecutive potential
prison term in excess of 15 years, and the State was offering a deal wherein Foster’s
sixth and seventh OVI offenses within 20 years would result in 2 years or less
incarceration. At the time the “plea agreement” was presented to the trial court, the
trial court had already been through both suppression hearings and was aware, at
least to some extent, of the evidence that would be presented at trial. The trial court
felt that on the whole, the proposed plea agreement was not a fair and just result.
{¶56} The trial court was thus informed of the facts and circumstances and
made a decision based on those specific circumstances. This is not a situation where
the trial court had a blanket-policy to reject potential plea agreements, which has
been found not to be permissible. See State v. Caldwell, 8th Dist. Cuyahoga No.
99166, 2013-Ohio-5017, ¶ 11 (“A blanket policy rejecting plea agreements results
in rejections based on policy rather than reason.”). Given the facts and
circumstances presented herein, we do not find that the trial court abused its
discretion in rejecting the plea agreement. For all of these reasons, Foster’s fourth
assignment of error is overruled.
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Conclusion
{¶57} Having found no error prejudicial to Foster in the particulars assigned,
Foster’s assignment of error are overruled and the judgments of the Hancock County
Common Pleas Court are affirmed.
Judgments Affirmed
WILLAMOWSKI and ZIMMERMAN, J.J., concur.
/jlr
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