State v. Felder

[Cite as State v. Felder, 2018-Ohio-826.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. William B. Hoffman, J.
Plaintiff-Appellee : Hon. Earle E. Wise, J.
:
-vs- :
: Case No. CT2017-0037
DERRON J. FELDER :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum
County Court of Common Pleas, Case
No.CR2017-0027
JUDGMENT: Affirmed
DATE OF JUDGMENT ENTRY: March 2, 2018
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
D. MICHAEL HADDOX TONY A. CLYMER
27 North Fifth Street 1420 Matthias Drive
Zanesville, OH 43701 Columbus, OH 43224
[Cite as State v. Felder, 2018-Ohio-826.]
Gwin, P.J.
{¶1} Appellant Derron J. Felder [“Felder”] appeals the May 24, 2017 and the May
31, 2017 judgment entries of the Muskingum County Court of Common Pleas that denied
his pre-sentence motion to withdraw his negotiated guilty pleas.
Facts and Procedural History
{¶2} On March 30, 2017, Felder entered a negotiated plea of guilty to: two counts
of trafficking in cocaine, with a juvenile and school specification, a violation of
2925.03(A)(1) of the Ohio Revised Code, felonies of the fourth degree; trafficking in
cocaine, with a juvenile and school specification, a violation of 2925.03(A)(1), a felony of
the third degree; and trafficking in cocaine, with a juvenile and school specification, a
violation of 2925.03(A)(1), a felony of the second degree.
{¶3} In exchange for Felder’s guilty pleas the parties entered into a joint
sentencing recommendation that the state would agree to recommend Felder be
sentenced to an aggregate term of 66 months in prison; however, the state may revise
that sentencing recommendation according to the terms of a separately signed
agreement. The state further agreed to dismiss Count 2 and Count 4 of the Indictment.
The Criminal Rule 11(C) and (F) plea form signed by Felder, his attorney and the assistant
prosecuting attorney states, in relevant part,
The Defendant acknowledges that the parties have engaged in plea
negotiations and he accepts and agrees to be bound by the following
agreement, which is the product of such negotiations.
Upon a plea of "guilty" to Counts Five, Six, Seven and Eight as
contained in the indictment, the parties agree to a joint recommendation that
Muskingum County, Case No. CT2017-0037 3
Defendant be sentenced to an aggregate term of sixty-six (66) months in
prison. The parties may revise the sentencing recommendation according
to the terms of a separately signed agreement. The State agrees to dismiss
Counts Two and Four of the indictment at the time of sentencing.
The Defendant further acknowledges that he understands any
sentencing recommendation does not have to be followed by the Court.
Plea of Guilty, filed March 31, 2017 at 3 (Emphasis added). During the plea, the following
exchange occurred,
THE COURT: The State of Ohio is recommending that you receive
a total sentence of 66 months. They also may revise this at a later time.
They also agree to dismiss Counts 2 and 4 in the indictment. Is that your
understanding?
[FELDER]: Yes, sir.
THE COURT: Have you been promised anything else or
threatened in any way in order to enter your plea of guilty here today?
[FELDER]: No, sir.
THE COURT: And you understand that the prosecutor’s
recommendation is not binding on the Court, I do not have to follow it?
[FELDER]: Yes, sir.
T. Plea Hearing, Mar. 30, 2017 at 10 (emphasis added).
{¶4} A separate written agreement specified reduced sentencing
recommendations to 60, 54, or 48 months depending upon the level and number of felony
drug-related “charges against additional individuals” that resulted from the information
Muskingum County, Case No. CT2017-0037 4
Felder “previously provided” to law enforcement1. Felder, his attorney and the assistant
prosecuting attorney, signed this agreement.
{¶5} On May 9, 2017, Felder’s trial counsel moved to continue the sentencing
date and to waive mandatory fines due to Felder’s indigency. On May 10, 2017, Felder
filed a pro se motion to withdraw his guilty pleas. Felder contended that his sentence was
to be reduced to 54 months based upon his cooperation with the state in furtherance of
the "Felony Agreement" that was entered into at the time of the plea. Felder argued that
since the trial court indicated it would impose a sentence of no less than 60 months, he
should be permitted to withdraw his plea. The court held a hearing on this motion May 22,
2017. See, Entry on Defendant’s Motion to Withdraw Guilty Plea, filed May 24,
2017(Docket Entry No. 32). The trial court took the motion under advisement.
{¶6} The sentencing was held on May 24, 2017. At that hearing, the trial court
first overruled Felder’s motion to withdraw his negotiated guilty pleas. The court found
nothing in the motion or presented at the hearing that indicated Felder did not know what
he was doing when he entered his pleas and that his pleas were entered knowingly and
intelligently. The judge stated that he believed the motion was “buyer's remorse” and
could be remorse based on the separate written agreement between Felder and the state.
{¶7} At sentencing, the state recommended a sentence of 60 months instead of
the 66 months sentence agreed to in the joint sentencing recommendation. Sent. T., May
24, 2017 at 5. The trial court followed the state’s recommendation and sentenced Felder
to an aggregate prison sentence of 60 months mandatory prison time.
1The separate written agreement was sealed and submitted with the record to this Court. This
Court has reviewed the written agreement in preparation for issuing a decision in this case.
Muskingum County, Case No. CT2017-0037 5
Assignments of Error
{¶8} Felder raises two assignments of error for our consideration,
{¶9} “I. THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT'S
MOTION TO WITHDRAW HIS GUILTY PLEAS IN VIOLATION OF HIS RIGHTS TO DUE
PROCESS AS GUARANTEED BY THE CONSTITUTION OF THE UNITED STATES
AND STATE OF OHIO.
{¶10} “II. THE TRIAL COURT ERRED WHEN IT DID NOT FOLLOW THE JOINT
RECOMMENDATION OF SENTENCE IN VIOLATION OF APPELLANT'S
CONTRACTUAL AGREEMENT WITH THE STATE OF OHIO THAT WAS BEING
PERFORMED BY APPELLANT.”
I. & II.
{¶11} In his two assignments of error, Felder contends that the trial court should
have either imposed the fifty-four month sentence, which he believes he was promised
by the plea agreement, or allowed him to withdraw his guilty pleas.
FAILURE TO FILE TRANSCRIPT.
{¶12} At the outset we note, the record before this Court does not contain a
transcript of the May 22, 2017 hearing conducted by the trial court on Felder’s motion to
withdraw his guilty pleas. Accordingly, we generally presume the regularity of that
proceeding and affirm. State ex rel. Hoag v. Lucas Cty. Bd. of Elections, 125 Ohio St. 3d
49, 2010-Ohio-1629, 925 N.E.2d 984, ¶ 12, citing Christy v. Summit Cty. Bd. of Elections,
77 Ohio St. 3d 35, 39, 671 N.E.2d 1 (1996); State ex rel. Duncan v. Portage Cty. Bd. of
Elections, 115 Ohio St. 3d 405, 2007-Ohio-5346, 875 N.E.2d 578, ¶ 17. Appellant has the
responsibility of providing the reviewing court with a record of the facts, testimony, and
Muskingum County, Case No. CT2017-0037 6
evidentiary matters that are necessary to support the appellant’s assignments of error.
Wozniak v. Wozniak, 90 Ohio App. 3d 400, 409, 629 N.E.2d 500, 506 (9th Dist. 1993);
Volodkevich v. Volodkevich, 48 Ohio App. 3d 313, 314, 549 N.E.2d 1237, 1238–1239 (9th
Dist. 1989). This principle is recognized in App.R. 9(B), which provides, in part, that * * *
the appellant shall in writing order from the reporter a complete transcript or a transcript
of such parts of the proceedings not already on file as he deems necessary for inclusion
in the record.* * *. “When portions of the transcript necessary for resolution of assigned
errors are omitted from the record, the reviewing court has nothing to pass upon and thus,
as to the assigned errors, the court has no choice but to presume the validity of the lower
court’s proceedings, and affirm.” Knapp v. Edwards Laboratories, 61 Ohio St. 2d 197,
199, 400 N.E.2d 384, 385 (1980). If a partial record does not conclusively support the
trial court’s decision, it is presumed that the omitted portion provides the necessary
support. Wozniak, 90 Ohio App. 3d at 409, 629 N.E.2d at 506; In re Adoption of Foster,
22 Ohio App. 3d 129, 131, 489 N.E.2d 1070, 1072–1073 (3rd Dist. 1985), overruled on
other grounds, In re Adoption of Sunderhaus, 63 Ohio St. 3d 127, 585 N.E.2d 418 (1991).
{¶13} Also, in State v. Hooks, 92 Ohio St. 3d 83, 748 N.E.2d 528 (2001), the
Supreme Court noted, “a reviewing court cannot add matter to the record before it that
was not a part of the trial court’s proceedings, and then decide the appeal on the basis of
the new matter. See, State v. Ishmail, 54 Ohio St. 2d 402, 377 N.E.2d 500 (1978). It is
also a longstanding rule “that the record cannot be enlarged by factual assertions in the
brief.” Dissolution of Doty v. Doty, 4th Dist. Pickaway No. 411, 1980 WL 350992 (Feb.
28, 1980), citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 59, 201
N.E.2d 227 (10th Dist. 1963).
Muskingum County, Case No. CT2017-0037 7
{¶14} In the alternative we will in the interest of justice attempt to review Felder’s
assignments of error.
Standard of Appellate Review – Breach of Plea Agreement.
{¶15} It is the duty of the trial court as a trier of fact to determine whether there
has been compliance with a plea agreement. State v. Curry, 49 Ohio App. 2d 180, 183,
359 N.E.2d 1379 (9th Dist. 1976). In order to determine whether a plea agreement has
been breached, courts must examine what the parties reasonably understood at the time
the defendant entered his guilty plea. See United States v. Partida–Parra, 859 F.2d 629
(9th Cir. 1988).
{¶16} A plea agreement is generally “contractual in nature and subject to contract-
law standards.” State v. Butts, 112 Ohio App. 3d 683, 679 N.E.2d 1170 (8th Dist.
Cuyahoga 1996). The intent of the parties to a contract presumptively resides in the
ordinary meaning of the language employed in the agreement. Kelly v. Med. Life Ins.
Co., 31 Ohio St. 3d 130, 509 N.E.2d 411 (1987). Contractual language giving rise to doubt
or ambiguity must be interpreted against the party who used it. Graham v. Drydock Coal
Co., 76 Ohio St. 3d 311, 667 N.E.2d 949 (1996).
{¶17} Plea agreements should be construed strictly against the government.
United States v. Fitch, 282 F.3d 364 (6th Cir. 2002). “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, 92 S. Ct. 495, 30 L. Ed. 2d 427 (1971). “When an allegation is made that a
plea agreement has been broken, the defendant must merely show that the agreement
was not fulfilled.” State v. Legree, 61 Ohio App. 3d 568, 573 N.E.2d 687 (6th Dist. 1988).
Muskingum County, Case No. CT2017-0037 8
A prosecutor’s failure to comply with the terms of the plea agreement may, in some
circumstances, render a defendant’s plea involuntary and undermine the constitutionality
of a conviction based upon that plea. Blackledge v. Allison, 431 U.S. 63, 97 S. Ct. 1621,
52 L. Ed. 2d 136 (1977).
{¶18} Accordingly, we must identify the terms of the purported plea agreement
before we can determine if the state breached the agreement. State v. Winfield, 5th Dist.
Richland No. 2005-CA–32, 2006–Ohio–721.
ISSUES FOR APPEAL.
A. Whether the state fulfilled its obligations to Felder under the terms of the plea
agreements.
{¶19} In the case at bar, in the Criminal Rule 11(C) and (F) plea form signed by
Felder, his attorney and the assistant prosecuting attorney, the state agreed to
recommend Felder be sentenced to an aggregate term of sixty-six (66) months in prison.
The state further agreed that the recommendation could be revised. Felder acknowledged
he understood the terms of the agreement during his colloquy with the trial court. The
state ultimately recommended Felder receive an aggregate sentence of 60 months, which
is what the trial court imposed. There is nothing in the record before this Court to indicate
that any information Felder provided to law enforcement led to any other individual being
charged with a felony drug offense so as to trigger the terms of the separate written plea
agreement between Felder and the state.
{¶20} The state fulfilled its promises under the terms of the plea agreement.
Accordingly, the state did not breach the agreement.
Muskingum County, Case No. CT2017-0037 9
B. Whether the trial court was obligated to impose a 54-month prison sentence
instead of a 60-month prison sentence.
{¶21} It is well settled that the terms of a plea agreement do not bind the discretion
of the trial court. State v. Pettiford, 12th Dist. Fayette No. CA2001-08-014, 2002-Ohio-
1914. Crim.R. 11 does not anticipate that punishment will be the result of a successful
bargain because sentencing is determined expressly either by statute or rests within the
sound discretion of the trial court. State v. Mathews, 8 Ohio App. 3d 145, 146 (10th Dist.
1982). Simply stated, final judgment on acceptance of a plea agreement and sentencing
rests with the discretion of the trial court. State v. Fraternal Order of Eagles, Aerie No.
1224, ___Ohio St.3d.___, 2018-Ohio-548, ___N.E.3d ____, 2018 WL 827032(Feb. 12,
2018), ¶6; State ex rel. Duran v. Kelsey, 106 Ohio St. 3d 58, 2005–Ohio–3674, 831 N.E.2d
430, ¶ 6, quoting State v. Buchanan, 154 Ohio App. 3d 250, 2003–Ohio–4772, 796 N.E.2d
1003, ¶ 13 (5th Dist.), quoting State v. Pettiford, at *3.
{¶22} In the case at bar, the trial court informed Felder at the plea hearing of the
possible sentences for each charge to which Felder was entering a plea of guilty. Sent.
T. at 5-7. The trial court informed Felder the state is recommending that he receive a total
sentence of 66 months; the state also agreed that it might revise the recommendation at
a later time; and the state agreed to dismiss Counts 2 and 4 in the indictment. Sent. T.
at 10. The trial court further informed Felder before he entered his pleas of guilty that the
trial court was not bound by the state’s sentencing recommendation. Sent. T. at 10. The
Criminal Rule 11(C) and (F) plea form signed by Felder, his attorney and the assistant
prosecuting attorney, also advised him the trial court was not bound to follow the state’s
sentencing recommendation.
Muskingum County, Case No. CT2017-0037 10
{¶23} The record demonstrates that the trial court did sentence Felder to less than
the 66-month sentence initially recommended by the state. Further, the record contains
no evidence to indicate that any information Felder provided to law enforcement led to
any other individual being charged with a felony drug offense so as to trigger the terms of
the separate written plea agreement between Felder and the state. In any event, the trial
court did not sign the separate agreement and did not participate in the plea bargaining
negotiations between the state and Felder. The trial court never promised Felder any
specific sentence.
{¶24} The reasoning provided by the trial court demonstrates that its decision
regarding Felder’s sentence was based on information provided by the parties and
contained in the record. As such, the trial court’s decision was not untenable, legally
incorrect, or a denial of justice; nor does the trial court’s decision reach an end or
purpose not justified by reason and the evidence. We therefore find no abuse of
discretion.
STANDARD OF APPELLATE REVIEW – PRE-SENTENCE MOTION TO
WITHDRAW GUILTY PLEA.
{¶25} Felder next contends that the trial court should have allowed him to
withdraw his guilty plea when it became apparent that he would not receive a 54-month
prison sentence. Felder moved to withdraw his guilty pleas prior to the trial court imposing
sentence.
{¶26} Crim. R. 32.1 governs motions to withdraw guilty pleas and provides in
pertinent part: “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
Muskingum County, Case No. CT2017-0037 11
set aside the judgment of conviction and permit the defendant to withdraw his or her plea.”
A defendant does not have an absolute right to withdraw a guilty plea prior to sentencing,
however; a trial court must conduct a hearing to determine whether there is a reasonable
and legitimate basis for the withdrawal of the plea. State v. Hamilton, 5th Dist. Muskingum
No. CT2008–0011, 2008–Ohio–6328, ¶ 32, citing State v. Xie, 62 Ohio St. 3d 521, 584
N.E.2d 715 (1992), at paragraph one of the syllabus.
{¶27} The trial court’s decision to grant or deny a motion to withdraw a guilty plea
is vested within the sound discretion of the court, and will not be reversed by an appellate
court unless the trial court abused its discretion. Xie, paragraph two of the syllabus. An
abuse of discretion exists where the reasons given by the court for its action are clearly
untenable, legally incorrect, or amount to a denial of justice, or where the judgment
reaches an end or purpose not justified by reason and the evidence. Tennant v.
Gallick, 9th Dist. Summit No. 26827, 2014-Ohio-477, ¶35; In re Guardianship of S .H. 9th
Dist. Medina No. 13CA0066–M, 2013–Ohio–4380, ¶ 9; State v. Firouzmandi, 5th Dist.
Licking No. 2006–CA–41, 2006–Ohio–5823, ¶54.
{¶28} In reviewing a trial court’s decision regarding a motion to withdraw a guilty
plea, the court in State v. Fish set forth a non-exhaustive list of factors to be weighed.
104 Ohio App. 3d 236, 240, 661 N.E.2d 788 (1st Dist.1995). These factors include: (1)
whether the prosecution would be prejudiced if the plea was vacated; (2) whether the
accused was represented by highly competent counsel; (3) whether the accused was
given a full Crim.R. 11 hearing; (4) whether a full hearing was held on the motion; (5)
whether the trial court gave full and fair consideration to the motion; (6) whether the
motion was made within a reasonable time; (7) whether the motion set forth specific
Muskingum County, Case No. CT2017-0037 12
reasons for the withdrawal; (8) whether the accused understood the nature of the charges
and possible penalties; and (9) whether the accused was possibly not guilty or had a
complete defense to the crime. Fish, 104 Ohio App. 3d at 240. In weighing the ninth
factor, “the trial judge must determine whether the claim of innocence is anything more
than the defendant’s change of heart about the plea agreement.” State v. Davison, 5th
Dist. Stark No. 2008–CA–00082, 2008–Ohio–7037, ¶ 45, citing State v. Kramer, 7th Dist.
Mahoning No. 01–CA–107, 2002–Ohio–4176, ¶ 58.
ISSUE FOR APPEAL.
Whether the trial court erred by not permitting Felder to withdraw his pre-sentence
guilty pleas.
{¶29} In the case at bar, Felder was represented by competent counsel. The trial
court did give Felder a full hearing upon his pleas and upon his motion to withdraw his
guilty pleas. The trial court gave full and fair consideration to Felder’s motion.
{¶30} Neither the state nor the trial court promised Felder a 54-month sentence.
Nothing in the record before this Court contains any evidence that the information Felder
provided to law enforcement led to any other individual being charged with a felony drug
offense so as to trigger the terms of the separate written plea agreement between Felder
and the state. Felder points to no evidence contained in the record that the trial court
ever promised Felder a 54-month sentence.
{¶31} The trial court, Felder’s counsel, and the state’s representations concerning
Felder’s potential sentence did not mislead Felder. Accordingly, contrary to Felder’s
assertions, defense counsel, the state and the trial court’s statements were accurate
Muskingum County, Case No. CT2017-0037 13
explanations about his potential sentences upon the acceptance of his pleas and the
terms of the state’s agreed sentencing recommendation.
{¶32} Therefore, defense counsel, the prosecutor’s and the trial court’s advice
about Felder’s potential sentences did not render his guilty plea involuntary, unintelligent
or unknowing.
{¶33} Because Felder’s argument regarding the underlying sentencing
recommendation is without merit, the trial court did not abuse its discretion in refusing to
permit Felder to withdraw his plea of guilty.
CONCLUSION.
{¶34} Felder’s first and second assignments of error are denied. The judgment of
the Muskingum County Court of Common Pleas is affirmed.
By Gwin, P.J.,
Hoffman, J., and
Wise, Earle E., J., concur
[Cite as State v. Felder, 2018-Ohio-826.]