State v. Burke

[Cite as State v. Burke, 2011-Ohio-2689.]
COURT OF APPEALS
MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
JUDGES:
STATE OF OHIO : Hon. W. Scott Gwin, P.J.
: Hon. John W. Wise, J.
Plaintiff-Appellee : Hon. Patricia A. Delaney, J.
:
-vs- :
: Case No. CT2010-55
JOSHUA BURKE :
:
Defendant-Appellant : OPINION
CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum
County Court of Common Pleas, Case No.
CR-2010-138
JUDGMENT: June 1, 2011
DATE OF JUDGMENT ENTRY: Affirmed
APPEARANCES:
For Plaintiff-Appellee For Defendant-Appellant
MICHAEL HADDOX ERIC J. ALLEN
MUSKINGUM COUNTY PROSECUTOR Law Office of Eric J. Allen, Ltd.
27 North Fifth 713 South Front
Zanesville, OH Columbus, OH 43206
[Cite as State v. Burke, 2011-Ohio-2689.]
Gwin, P.J.
{¶1} Defendant-appellant Joshua Burke appeals his sentence in the
Muskingum County Court of Common Pleas on two counts of Violation of a Protection
Order with a prior conviction, felonies of the fifth degree. Plaintiff-appellee is the State of
Ohio.
STATEMENT OF THE CASE AND FACTS
{¶2} In July 2010 the Muskingum Grand Jury indicted appellant with four
counts of Violation of a Protection Order with a prior conviction.1 All four charges were
fifth degree felonies. Prior to trial, a plea bargain was reached. Appellant agreed to
plead guilty to Counts One and Two. In exchange for appellant's guilty plea, the
Prosecutor agreed to enter a Nolle Prosequi to Counts Three and Four and recommend
an aggregate sentence of ten months of incarceration. On September 8, 2010, appellant
entered a plea of guilty to Counts One and Two as contained in the indictment. The
court deferred sentencing and ordered a Pre-Sentence Investigation report.
{¶3} On October 18, 2010, appellant appeared in court for sentencing. After
both counsel clarified their understanding of the terms of the plea bargain, the court
imposed a sentence. The court verified appellant's criminal history and voiced its
concerns about appellant's continuous violations of the law, and appellant's past and
current conduct concerning the same victim. The court then rejected the Prosecutor’s
sentencing recommendation and sentenced appellant to consecutive sentences
totaling twenty-two months of incarceration.
1
A Statement of the Facts underlying appellant’s original conviction is unnecessary to our
disposition of this appeal. Any facts needed to clarify the issues addressed in appellant’s assignment of
error shall be contained therein.
Muskingum County, Case No. CT2010-55 3
{¶4} It is from the trial court’s October 22, 2010 sentencing entry that
appellant has timely appealed raising as his sole assignment of error:
{¶5} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING
THE DEFENDANT TO MORE THAN THE AGREED UPON SENTENCE OF TEN
MONTHS.”
I.
{¶6} Appellant claims the trial court erred in not sentencing him in accordance
with a negotiated sentence. We disagree.
{¶7} 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 (C.A.9, 1988),
859 F.2d 629; United States v. Arnett (C.A.9, 1979), 628 F.2d 1162. Smith v. Stegall
(6th 2004), 385 F.3d 993, 999. Therefore, we must identify the terms of the plea
agreement before we can determine if the state breached the agreement. State v.
Thompson, 4th Dist. 03CA766, 2004-Ohio-2413; State v. Winfield, Richland App. No.
2005-CA-32, 2006-Ohio-721 at ¶ 25.
{¶8} In the case at bar, the relevant portions of the plea agreement are that
the state would nolle Counts Three and Four of the Indictment and recommend an
aggregate sentence of ten months of incarceration. At the time of sentencing, the state
had already amended the charges as promised and the state reiterated the
recommendation it made when the guilty plea was taken. The state honored its
agreement with appellant. Rather, the trial court declined to follow the
recommendation.
Muskingum County, Case No. CT2010-55 4
{¶9} Trial courts are vested with discretion in implementing plea agreements.
Akron v. Ragsdale (1978), 61 Ohio App.2d 107. 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.
State ex rel. Duran v. Kelsey, 106 Ohio St.3d 58, 831 N.E.2d 430, 2005-Ohio-3674 at
¶6. (Internal quotation marks and citations omitted). See also, State v. Wickham,
Muskingum App. No. CT 2006-0084, 2007-Ohio-1754 at ¶32.
{¶10} “Here, the defendant-appellant knew prior to the acceptance by the
court of his plea that he might not receive the sentence recommended by the
prosecutor. His ‘bargain’ for his plea was a recommendation, not a guarantee. He
received what he bargained for. Neither he nor his counsel sought to withdraw his
pleas of guilty in the four days from the entering of the plea and the pronouncement of
a sentence. No one objected. Accordingly, we cannot find any error, let alone plain
error”. State v. Barnhart (Aug. 26, 1998), 7th Dist. No. 94 CA 192. State v. Wickham,
supra at ¶ 34.
{¶11} In the case at bar, the trial court noted that appellant has an extensive
criminal history dating back to 2003 including charges for voyeurism, indecent
exposure, burglary, breaking and entering, possession of criminal tools, and
menacing. Further, appellant has not responded favorably to previous criminal
sanctions as evidenced by his extensive criminal history.
Muskingum County, Case No. CT2010-55 5
{¶12} The record in the case at bar establishes that appellant was informed in
the written plea agreement prior to entering his plea that the trial court was not bound
to follow the recommendation of the State concerning sentencing2.
{¶13} It appears to this Court that the trial court's statements at the sentencing
hearing were guided by the overriding purposes of felony sentencing to protect the
public from future crime by the offender and others and to punish the offender. R.C.
2929.11. Based on the transcript of the sentencing hearing and the subsequent
judgment entry, this Court cannot find that the trial court acted unreasonably,
arbitrarily, or unconscionably, or that the trial court violated appellant’s rights to due
process under the Ohio and United States Constitutions in its sentencing appellant to
consecutive sentences of incarceration.
{¶14} Accordingly, appellant's sole assignment of error is overruled.
2
A transcript of appellant’s change of plea hearing was not made a part of the record on appeal.
Muskingum County, Case No. CT2010-55 6
{¶15} For the foregoing reasons, the judgment of the Court of Common Pleas
of Muskingum County, Ohio, is affirmed.
By Gwin, P.J.,
Wise, J., and
Delaney, J., concur
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JOHN W. WISE
_________________________________
HON. PATRICIA A. DELANEY
WSG:clw 0523
[Cite as State v. Burke, 2011-Ohio-2689.]
IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO
FIFTH APPELLATE DISTRICT
STATE OF OHIO :
:
Plaintiff-Appellee :
:
:
-vs- : JUDGMENT ENTRY
:
JOSHUA BURKE :
:
:
Defendant-Appellant : CASE NO. CT2010-55
For the reasons stated in our accompanying Memorandum-Opinion, the
judgment of the Court of Common Pleas of Muskingum County, Ohio, is affirmed.
Costs to appellant.
_________________________________
HON. W. SCOTT GWIN
_________________________________
HON. JOHN W. WISE
_________________________________
HON. PATRICIA A. DELANEY