State v. Gay

[Cite as State v. Gay, 2021-Ohio-970.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 28851
:
v. : Trial Court Case No. 2019-CR-860
:
JORDAN DEON GAY : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
...........
OPINION
Rendered on the 26th day of March, 2021.
...........
MATHIAS H. HECK, JR., by HEATHER N. KETTER, Atty. Reg. No. 0084470, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division,
Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
MARKUS L. MOLL, Atty. Reg. No. 0093795, 2621 Dryden Road, Suite 306, Dayton, Ohio
45439
Attorney for Defendant-Appellant
.............
TUCKER, P.J.
-2-
{¶ 1} Jordan Deon Gay appeals from his convictions, on his guilty plea, for
improper discharge of a firearm at or into a habitation and arson. On appeal, Gay
challenges the length of the sentence imposed, which was longer than the sentence to
which the parties and the trial court had agreed as part of his plea agreement. The State
of Ohio concedes that the trial court erred when it sentenced Gay to a prison term that
exceeded the agreed-upon prison term. This concession is accepted, and we reverse
the trial court’s judgment and remand for further proceedings. Upon remand, the trial
court may either impose the agreed-upon prison term or, if it determines that this prison
term is no longer appropriate, it must allow Gay the opportunity to withdraw his guilty plea.
Facts and Procedural History
{¶ 2} Gay was indicted on one count of felonious assault, one count of improperly
discharging a firearm at or into a habitation, and one count of arson. The felonious
assault and improper discharge counts included firearm specifications. The parties
ultimately entered into a plea agreement wherein Gay agreed to plead guilty to improper
discharge and arson; in return, the State agreed to dismiss the felonious assault and the
firearm specifications. Additionally, the parties agreed that Gay would be sentenced to
a five-year prison term, but that, assuming good prison behavior, he would be granted
judicial release after four years. The trial court indicated its approval and acceptance of
the plea agreement.
{¶ 3} Following completion of the Crim.R. 11 plea hearing, the trial court ordered
a presentence investigation report (PSI), and the sentencing hearing was scheduled four
weeks after the plea hearing. Gay was on an electronic home detention bond during this
period. Understanding that Gay would not be incarcerated pending sentencing, the trial
-3-
court informed Gay to “make sure” he attended the PSI interview and to “come back to
court [on the scheduled date] for the imposition of sentence.” But the trial court did not
inform Gay that a failure to return for sentencing could result in a longer prison term.
{¶ 4} Gay did not appear at the sentencing hearing, and a capias was issued for
his arrest. Approximately three months later, Gay was arrested and brought before the
trial court for sentencing. Without informing Gay of its intent to do so, the trial court
imposed a six-year prison term, rather than the five-year term to which the parties and
the trial court had previously agreed. This appeal followed.
Analysis
{¶ 5} Gay’s sole assignment of error is as follows:
GAY’S GUILTY PLEA WAS NOT KNOWINGLY, INTELLIGENTLY, AND
VOLUNTARILY MADE.
{¶ 6} This case is controlled by our decision in State v. Layman, 2d Dist.
Montgomery No. 22307, 2008-Ohio-759. In that case, the defendant, Layman, pleaded
guilty to a fifth-degree felony with the agreement, accepted by the trial court, that any
prison term would not exceed seven months. Upon pleading guilty, the trial court
ordered a PSI, Layman’s bond was modified, and he was released from custody. The
trial court did not advise Layman of any conditions associated with the sentencing
agreement. Layman did not appear for the scheduled sentencing hearing, and a capias
was issued. Sometime later, Layman was arrested and brought before the trial court for
sentencing. Based upon Layman’s failure to appear, the trial court did not think it was
bound by the previously-agreed prison cap, and it imposed a ten-month prison term.
{¶ 7} We concluded that the trial court had erred; we reversed the trial court’s
-4-
judgment, and the case was remanded “for either imposition of a seven-month prison
sentence or permission to Layman to withdraw his guilty plea.” Id. at ¶ 21. Our rationale
for this conclusion was based upon the proposition that “when a trial court
[unconditionally] promises a certain sentence, the promise becomes an inducement to
enter [the] plea, and unless that sentence is given, the plea is not voluntary.” (Citation
omitted.) Id. at ¶ 15, quoting State v. Bonnell, 12th Dist. Clermont No. CA2001-12-94,
2002-Ohio-5882, ¶ 18. Thus, a trial court “commits reversible error when it participates
in plea negotiations but fails to impose the promised sentence.” Id., quoting Bonnell at
¶ 18.
{¶ 8} But Layman recognized that changed circumstances could cause a trial court
to conclude that an agreed sentence was no longer appropriate. When this occurs, the
trial court must state its intent to deviate from the agreed sentence and provide the
defendant “the opportunity to withdraw [the] plea.” Id. at ¶ 19, quoting Bonnell at ¶ 22.
See also State v. Willey, 4th Dist. Washington No. 01 CA 37, 2002-Ohio-2849, ¶ 11.
{¶ 9} In this case, pursuant to Layman and based upon Gay’s conduct after he
pleaded guilty, the trial court was not required to impose the agreed five-year prison
sentence. But, before deviating from the agreement, the trial court was required to
inform Gay of this decision and to provide him with an opportunity to withdraw his guilty
plea. Since the trial court did not follow this procedure, the trial court’s judgment must
be reversed and remanded. Upon remand, the trial court must impose the agreed five-
year prison term or, in the alternative, inform Gay of its intent to impose a longer prison
term and give him an opportunity to withdraw the guilty plea.1
1
Though not discussed by the trial court at the sentencing hearing or by the parties in
-5-
Conclusion
{¶ 10} The trial court’s judgment is reversed and remanded for further proceedings
consistent with this opinion.
.............
HALL, J. and WELBAUM, J., concur.
Copies sent to:
Mathias H. Heck, Jr.
Heather N. Ketter
Markus L. Moll
Hon. Mary Lynn Wiseman
this appeal, the same analysis is applicable to the judicial release agreement.