State v. Melson

[Cite as State v. Melson, 2023-Ohio-1231.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Appellee : C.A. No. 2022-CA-53
:
v. : Trial Court Case No. 21-CR-0433
:
DUSTIN MELSON : (Criminal Appeal from Common Pleas
: Court)
Appellant :
:
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OPINION
Rendered on April 14, 2023
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ANDREW P. PICKERING, Attorney for Appellee
MICHAEL J. SCARPELLI, Attorney for Appellant
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TUCKER, J.
{¶ 1} Dustin Melson appeals from his conviction following a guilty plea to one count
of breaking and entering, a fifth-degree felony.
{¶ 2} In his sole assignment of error, Melson challenges the knowing, intelligent,
and voluntary nature of his plea. Specifically, he contends the trial court erred by failing
to tell him it was not required to impose the State’s recommended sentence. Melson
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claims that this lack of notice violated his due-process right and that the trial court should
have given him an opportunity to withdraw his plea.
{¶ 3} Despite the trial court’s lack of an explicit statement that it was not required
to follow the State’s recommendation, we are persuaded that Melson knew that when he
entered his plea. Accordingly, the trial court’s judgment will be affirmed.
I. Background
{¶ 4} Melson pled guilty to breaking and entering in Clark C.P. No. 21-CR-0433 as
part of a global resolution of three cases against him. Under the terms of the negotiated
resolution, Melson agreed to plead guilty to one count in each case. In exchange, the
State agreed, among other things, to dismiss all other charges and to recommend
community-control sanctions in each case. The agreement also provided for the
preparation of a presentence-investigation report.
{¶ 5} Prior to accepting Melson’s plea, the trial court conducted a Crim.R. 11
colloquy. At that time, the trial court ensured Melson’s understanding of the plea
agreement. It specifically confirmed his understanding that the State had “agreed to
recommend that you be placed on community control also known as probation.” Melson
acknowledged that no other promises had been made to him. The trial court proceeded
to inform him of the maximum penalty in each case as well as the aggregate maximum
penalty in all three cases. The trial court told him about conditions that could be imposed
“[i]f you are placed on community control” and about what could happen “if you were
sentenced to prison[.]” Again, Melson acknowledged his understanding.
{¶ 6} The plea form Melson signed prior to the plea hearing similarly advised him
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of the maximum term he faced in each case as well as the fact that the trial court could
impose prison terms. The form also recited the parties’ plea agreement, including the
State’s agreement to “recommend community control[.]” The form included Melson’s
acknowledgment that no promises had been made except those set forth in the plea
agreement.
{¶ 7} At a subsequent sentencing hearing, the trial court declined to follow the
State’s community-control recommendation. The trial court made a finding that Melson
had violated the conditions of his bond in Case No. 21-CR-0433 by being indicted in
Logan County for offenses that allegedly had occurred a week after he was arraigned and
bond was set in this case. The trial court proceeded to impose concurrent 11-month prison
sentences in all three cases.
II. Analysis
{¶ 8} Melson contends the trial court failed to put him on notice before his plea that
it might deviate from the State’s recommended community-control sanction. He asserts
that the trial court was obligated to “take the additional step” of advising him that it was
not bound by the State’s recommendation and that it could impose a prison term. Melson
claims the trial court’s failure to do so invalidated his plea and resulted in a due-process
violation.
{¶ 9} Upon review, we find Melson’s argument to be unpersuasive. “Crim.R.
11(C)(2)(a) provides that, before accepting a guilty plea, a court must ‘[d]etermin[e] that
the defendant is making the plea voluntarily, with understanding of * * * the maximum
penalty involved[.]’ ” State v. Jones, 2d Dist. Montgomery No. 24772, 2013-Ohio-119, ¶ 6.
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Likewise, “[t]he due process clause of the Fourteenth Amendment requires that any plea
of guilty or no contest in a criminal case must be entered knowingly, intelligently, and
voluntarily.” State v. Dixon, 2d Dist. Clark No. 2002-CA-45, 2004-Ohio-4262, ¶ 9. “A plea
procured on promises made by the State fails to satisfy those requirements when the
State breaches its promise or promises.” Id. “The same reasonably applies to any such
promises which were made by the court itself but which the court did not keep.” Id.{¶ 10} Here Melson acknowledged in his plea form and during the Crim.R. 11 plea
hearing that the only relevant promise made was the State’s promise to “recommend”
community control sanctions. The State fulfilled that promise at sentencing. We note too
that before accepting Melson’s guilty plea, the trial court reviewed the potential penalties
involved and its sentencing options, which included references to both community control
and the statutory maximum prison term. Under these circumstances, it would have been
unreasonable for Melson to “read any promises by the court into the plea or the
transactions that induced it.” Id. at ¶ 11.
{¶ 11} As for the trial court’s failure to tell Melson directly that it was not bound by
the State’s recommendation, the better practice is “to specifically forewarn” a defendant
of that fact. State v. Downing, 2d Dist. Green No. 2019-CA-72, 2020-Ohio-3984, ¶ 34.
Nevertheless, a trial court does not err in exceeding a sentence recommended in a plea
agreement where the defendant has been made aware of the applicable penalties and
the possibility of receiving a greater sentence than the State proposed. Id. “This standard
can be met without the court’s specifically telling the defendant that it is not bound by the
State’s recommendation as to sentence.” Id., citing Dixon.
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{¶ 12} In Downing, we upheld a defendant’s guilty plea despite the trial court’s
exceeding the State’s sentencing recommendation without specifically telling the
defendant that it could do so. As in the present case, the defendant in Downing had been
advised of the maximum prison term he faced (which exceeded the State’s recommended
six-year term). The trial court also confirmed the defendant’s understanding that the State
had “recommended” a six-year prison term and that no other promises or representations
had been made. The trial court told the defendant that it was required to impose a definite
term and that it would “pick a number,” the question being “what will be the length of that
prison sentence.”
{¶ 13} As in Downing, we conclude that Melson was made aware of the applicable
penalties and the possibility of receiving a greater sentence than the State proposed. The
State’s agreement to “recommend” community control itself strongly should have
indicated that the trial court was not bound to impose it. The trial court also reviewed the
potential penalties and its sentencing options, which included references to both
community control and prison. It specifically told Melson what could happen if it imposed
community control and if it imposed a prison term. This too reasonably should have
alerted him to the possibility of receiving a prison sentence despite the State’s
recommendation.
{¶ 14} In opposition to the foregoing conclusion, Melson relies on State v. Elliott,
2021-Ohio-424, 168 N.E.3d 33 (1st Dist.). In that case, the defendant argued that he had
negotiated an “agreed” sentence, not a sentencing “recommendation” by the State. The
defendant reasoned that the trial court’s failure explicitly to reject the “agreed” sentence
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before accepting his plea bound the trial court to impose it. Id. at ¶14. On review, the First
District observed that “[i]f the trial court accepts a plea agreement containing a
recommendation, the agreement necessarily acknowledges that the trial court may
deviate from the recommendation.” Id. at ¶ 16. This observation is consistent with our
analysis above.
{¶ 15} The First District then added that the law is less settled where a trial court
appears to indicate its acceptance of a recommended sentence before taking a plea and
then later deviates from it. Id. at ¶ 17. To avoid unfairness in such a situation, the First
District noted that a defendant must receive adequate notice that that trial court might
deviate from the sentencing recommendation. Id. at ¶ 18. Finally, the First District stated
that if a trial court accepts a “stipulated” or “agreed” sentence, then the sentence must be
imposed. In Elliott, the First District ultimately concluded that the case before it involved
a sentence jointly recommended by the State and the defendant, not a stipulated or
agreed sentence. The First District noted too that the trial court had made clear that it was
not bound by the recommended sentence. Id. at ¶ 22-23.
{¶ 16} Upon review, we see nothing in Elliott that conflicts with our analysis. In
Melson’s case, the State “recommended” community control as part of a plea agreement.
As the First District recognized, such a recommendation “necessarily acknowledges” that
a trial court is not bound by it. Moreover, we see nothing in the record indicating the trial
court’s own “acceptance” of the recommended sentence prior to accepting Melson’s guilty
plea. The trial court characterized the recommendation as exactly that while also advising
Melson about the prison terms it could impose and the potential ramifications of a prison
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sentence. Under these circumstances, we believe Melson was made aware of the trial
court’s ability to deviate from the State’s recommendation. As we pointed out in Downing,
this requirement can be satisfied without a trial court’s explicitly telling a defendant that it
is not bound by the recommendation. Accordingly, Melson’s assignment of error is
overruled.
III. Conclusion
{¶ 17} The judgment of the Clark County Common Pleas Court is affirmed.
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EPLEY, J. and HUFFMAN, J., concur.