State v. Walter

[Cite as State v. Walter, 2017-Ohio-236.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF WAYNE )
STATE OF OHIO C.A. Nos. 16AP0009
16AP0010
Appellee
v.
APPEAL FROM JUDGMENT
TYLER K. WALTER ENTERED IN THE
WAYNE COUNTY MUNICIPAL COURT
Appellant COUNTY OF WAYNE, OHIO
CASE Nos. 2014 CR-B-001737
2014 CR-B-001969
DECISION AND JOURNAL ENTRY
Dated: January 23, 2017
WHITMORE, Judge.
{¶1} Appellant, Tyler Walter, appeals from his convictions in the Wayne County
Municipal Court. This Court affirms.
I.
{¶2} In Case No. 2014 CR-B 001737, Mr. Walter was charged with domestic violence
in violation of R.C. 2919.25(A), aggravated menacing in violation of R.C. 2903.21(A), and
unlawful restraint in violation of R.C. 2905.03(A). In Case No. 2014 CR-B 001969, Mr. Walter
was charged with petty theft in violation of R.C. 2913.02(A)(3). Mr. Walter initially pled not
guilty. Pursuant to a plea agreement, Mr. Walter subsequently changed his plea to guilty of the
domestic violence and aggravating menacing charges and no contest for the petty theft charge.
The State dismissed the unlawful restraint charge.
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{¶3} At the change of plea hearing, the assistant prosecutor stated the agreement as
follows: “The State has offered to dismiss the [u]nlawful [r]estraint in exchange for a plea to the
[d]omestic [v]iolence and the [a]ggravated [m]enacing.” Defense counsel confirmed that Mr.
Walter accepted this plea offer. The State did not make any recommendation regarding
sentencing. Defense counsel requested a pre-sentence investigation report. She stated that Mr.
Walter was “attending AA meetings and doing counseling for alcohol.” She explained that the
defense “was hoping the [c]ourt might be willing to give him a little bit of a chance to continue
doing that as well as continue working to see how he does and so he might have a better chance
to argue to the [c]ourt at a later date whether or not he should be able to get work release or
should be able to continue that treatment outside of jail * * *.”
{¶4} At the sentencing hearing, the State “[d]efer[red] to the [c]ourt and the pre-
sentence investigation * * *.” Defense counsel noted that Mr. Walter was employed and his
employer was present at the hearing. Defense counsel argued, “Considering his employment and
the progress he is making, Your Honor, I would ask the [c]ourt to consider placing my client,
either allowing him some [h]ome [a]rrest or allowing him work release so that he could try and
maintain his job and continue his progress * * *.” After Mr. Walter addressed the court, the
judge sentenced him in each case. Mr. Walter was sentenced to a total of 150 days in jail, $800
in fines with $100 waived, and 300 hours of community service. In addition, the court ordered
Mr. Walter to pay restitution in the amount of $200.75 and court costs. The court also ordered
that Mr. Walter be placed on probation for 24 months and complete substance abuse counseling
and the “Another Way” batterer’s program.
{¶5} Mr. Walter indicated that he could pay the majority of the restitution that day and
the balance “[w]henever I get back to work and get released * * *.” Mr. Walter asked the court,
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“Am I going to be able to do work release?” and “is there any way that I can just skip probation
and do all jail time?” Regarding work release, the court informed Mr. Walter that he could apply
for it and the court would rule after receiving the application. At the conclusion of the
sentencing hearing, defense counsel stated that Mr. Walter “recollect[ed] that part of the
agreement for him pleading was that the [p]rosecutor would recommend work release.” She
continued, “I don’t have any notes in front of me, I remember talking about work release but I
just wanted to put that on the record.” The court then requested that the State file a response
when Mr. Walter moves for work release. The State responded, “Yes, Your Honor.”
{¶6} Thereafter, Mr. Walter, by and through counsel, moved for work release. The
motion indicated that Mr. Walter’s employer was interested in having him return to work and
that work release would help Mr. Walter meet his financial obligations including restitution,
fines, and court costs in these cases. It further stated, “A review of correspondence between
counsel and the prosecutor also shows that counsel did state that [Mr. Walter] would be seeking
work release if [Mr. Walter] accepted the plea offer in these cases, and the prosecutor did not
indicate any objection to that request, but would instead defer to the [c]ourt’s discretion on that
matter.” The State did not file a response. The trial court denied the motion for work release1.
{¶7} Mr. Walter appeals raising two assignments of error.
II.
Assignment of Error Number One
THE STATE OF OHIO DID NOT COMPLY WITH THE PLEA BARGAINING
AGREEMENT.
1
In addition to the motion filed by counsel, Mr. Walter wrote a letter to the trial judge requesting
work release. The trial court also denied that request.
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{¶8} In his first assignment of error, Mr. Walter argues that the State breached the plea
agreement by failing to recommend work release. We disagree.
{¶9} “[W]hen a plea rests in any significant degree on a promise or agreement of the
prosecutor, so that it can be said to be part of the inducement or consideration, such promise
must be fulfilled.” Santobello v. New York, 404 U.S. 257, 262 (1971). Contract law principles
are applied to plea agreements. State v. Dye, 127 Ohio St.3d 357, 2010-Ohio-5728, ¶ 21.
{¶10} Ordinarily, the remedy for a breach of a plea agreement is either specific
performance or withdrawal of the plea. State v. Jimenez, 9th Dist. Summit No. 24609, 2009-
Ohio-4337, ¶ 11, citing State v. Mathews, 8 Ohio App.3d 145, 146 (10th Dist.1982). Mr. Walter
did not move the trial court for either of these remedies, nor has he requested them on appeal.
Rather, Mr. Walter contends that his cases “should be remanded to the trial court for an
evidentiary hearing pursuant to State v. Curry.”
{¶11} In Curry, the State agreed to a sentencing recommendation in exchange for the
defendant’s cooperation in a number of cases. State v. Curry, 49 Ohio App.2d 180, 181-182 (9th
Dist.1976). At the sentencing hearing, the State asserted that the defendant had not “fully
cooperated.” Id. at 182. In light of this alleged breach, the State recommended a different
sentence than what had been previously agreed. Id. The trial court, without holding an
evidentiary hearing, accepted the State’s assertion that the defendant had not fully cooperated.
Id. at 182-183. We held, “it is the duty of the trial court as a trier of fact, not the prosecutor’s
office or the police department, to determine whether there has been compliance with a plea
bargaining agreement.” Id. at 183. Consequently, we remanded the matter for the trial court to
hold a hearing to determine whether the agreement had been breached. Id. at 184.
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{¶12} The instant case is unlike Curry. In Curry, it was undisputed that the defendant’s
full cooperation was a term of the plea agreement. The issue was whether the defendant had
complied with that agreement. By contrast, Mr. Walter has not pointed to any agreement at the
time of his plea regarding work release. Rather, his argument is based on a statement at the
sentencing hearing that Mr. Walter “recollect[ed] that part of the agreement for him pleading
was that the [p]rosecutor would recommend work release.”
{¶13} Before a court can address whether a party has complied with an agreement, the
terms of the agreement must first be identified. State v. Nice, 5th Dist. Morgan No. 07-CA-2,
2008-Ohio-5799, ¶ 11. The terms of a plea agreement are determined based on “what the parties
reasonably understood at the time the defendant entered his guilty plea.” (Emphasis added.) Id.{¶14} Although Mr. Walter “recollect[ed]” at the time of the sentencing hearing that
there had been an agreement to recommend work release, that recollection is not consistent with
the plea hearing transcript. The plea transcript indicates that the State agreed to dismiss one
charge in exchange for pleas on the remaining charges. The plea transcript does not contain an
agreement by the State to recommend work release. The only mention of work release at the
plea hearing was following defense counsel’s request for a pre-sentence investigation report.
After noting that Mr. Walter was receiving alcohol counseling and working, defense counsel
stated that “he might have a better chance to argue to the [c]ourt at a later date whether or not he
should be able to get work release * * *.” This statement indicates that work release was
considered, but not agreed upon, by the parties.
{¶15} Mr. Walter points out that the court asked the State to file a response to his
motion for work release and the State agreed to do so. While we are not unmindful that an
attorney’s agreement to respond to the court should be honored, Mr. Walter has not explained
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how this response to the court could be construed as part of his plea agreement. This dialogue
occurred at the sentencing hearing, not the plea hearing. Moreover, the State did not indicate
that its response would be in support of work release. When the motion for work release was
subsequently filed by defense counsel, it referenced correspondence between defense counsel
and the State indicating that Mr. Walter would seek work release if he accepted the State’s plea
offer and the State would “defer to the [c]ourt’s discretion on that matter.” While the better
practice would have been for the State to file a response stating that it was deferring to the
court’s discretion, the State’s lack of response in essence amounted to deferring to the court.
{¶16} Mr. Walter’s first assignment of error is overruled.
Assignment of Error Number Two
MR. WALTER RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL
WHEN TRIAL COUNSEL FAILED TO CLEARLY AND UNAMBIGUOUSLY
SET FORTH THE TERMS OF THE PLEA AGREEMENT AT THE CHANGE
OF PLEA HEARINGS ON NOVEMBER 2, 2015 AND BY NOT ENSURING
THAT MR. WALTER KNOWINGLY AND VOLUNTARILY CHANGED HIS
PLEA TO GUILTY IN CASE 2014 CR-B 001737 AND TO NO CONTEST IN
CASE 2014 CR-B 001969 RESPECTIVELY.
{¶17} In his second assignment of error, Mr. Walter argues that his trial counsel was
ineffective because there was “apparently an agreement” regarding work release that was not
stated on the record at his plea hearing. We disagree.
{¶18} To prevail on an ineffective assistance of counsel claim, an appellant must show
that counsel’s performance was deficient and that deficiency resulted in prejudice. Strickland v.
Washington, 466 U.S. 668, 687 (1984). When a defendant claims ineffective assistance after
entering a plea agreement, he must show that the alleged ineffective assistance precluded him
from entering his plea knowingly and voluntarily. See State v. Gegia, 157 Ohio App.3d 112,
2004-Ohio-2124, ¶ 18 (9th Dist.). Accord State v. Madeline, 11th Dist. Trumbull No. 2000-T-
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0156, 2002 WL 445036, *4 (Mar. 22, 2002) (“This ‘waiver’ is applicable to a claim of
ineffective assistance of trial counsel unless the allegation caused the plea to be less than
knowing and voluntary.”).
{¶19} According to Mr. Walter, “the joint recommendation [of work release] was an
important part of [his] decision to change his plea in these matters,” yet “nothing was said on the
record” at the plea hearing. As previously discussed, work release was mentioned at the plea
hearing, but there was no statement that an agreement had been reached regarding it. At the plea
hearing, defense counsel requested a pre-sentence investigation report and “to argue to the
[c]ourt at a later date whether or not [Mr. Walter] should be able to get work release * * *.” To
the extent that Mr. Walter contends there was an agreement beyond what was stated on the
record, we are unable to review such an argument on direct appeal. See State v. Zupancic, 9th
Dist. Wayne No. 12CA0065, 2013-Ohio-3072, ¶ 4-5 (ineffective assistance claim on direct
appeal cannot be premised on speculation or evidence outside the record).
{¶20} Mr. Walter’s second assignment of error is overruled.
III.
{¶21} Mr. Walter’s assignments of error are overruled. The judgment of the Wayne
County Municipal Court is affirmed.
Judgment affirmed.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Wayne County
Municipal Court, County of Wayne, State of Ohio, to carry this judgment into execution. A
certified copy of this journal entry shall constitute the mandate, pursuant to App.R. 27.
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Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
BETH WHITMORE
FOR THE COURT
SCHAFER, J.
CONCURS.
CARR, P. J.
CONCURS IN JUDGMENT ONLY.
APPEARANCES:
BRADLEY R. HARP, Attorney at Law, for Appellant.
DANIEL R. LUTZ, Prosecuting Attorney, and NATHAN R. SHAKER, Assistant Prosecuting
Attorney, for Appellee.