Opinion
2022-A-0066
07-17-2023
STATE OF OHIO, Plaintiff-Appellee, v. PHILLIP GARCIA, Defendant-Appellant.
Dave Yost, Ohio Attorney General, State Office Tower, Christopher L. Kinsler, Senior Assistant Attorney General, Special Prosecuting Attorney, and Andrea K. Boyd, Assistant Attorney General, (For Plaintiff-Appellee). J. Reid Yoder and Benjamin R. Sorber, DiCaudo, Pitchford & Yoder, LLC, and Joseph R. Klammer, The Klammer Law Office, Ltd., The Historic Mentor Center Street School, (For Defendant-Appellant).
Criminal Appeal from the Court of Common Pleas Trial Court No. 2018 CR 00765
Dave Yost, Ohio Attorney General, State Office Tower, Christopher L. Kinsler, Senior Assistant Attorney General, Special Prosecuting Attorney, and Andrea K. Boyd, Assistant Attorney General, (For Plaintiff-Appellee).
J. Reid Yoder and Benjamin R. Sorber, DiCaudo, Pitchford & Yoder, LLC, and Joseph R. Klammer, The Klammer Law Office, Ltd., The Historic Mentor Center Street School, (For Defendant-Appellant).
OPINION
MATT LYNCH, J.
{¶1} Defendant-Appellant, Phillip Garcia, appeals the denial of his Motion to Vacate Plea and Sentence in the Ashtabula County Court of Common Pleas. For the following reasons, we affirm the decision of the court below.
{¶2} On May 13, 2020, Garcia entered a written plea of guilty to four counts of Compelling Prostitution, felonies of the third degree in violation of R.C. 2907.21(A)(3), and seven counts of Sexual Imposition, misdemeanors of the third degree in violation of R.C. 2907.06(A)(4) and (C). With respect to sentencing, the agreement provided:
In exchange for my guilty plea to Four Counts of Compelling Prostitution (F3) and Seven Counts of Sexual Imposition (M3). The State of Ohio will dismiss the remaining charges. At the time of sentencing the State of Ohio will ask for this Court to sentence me to prison. At the time of sentencing, I will have the right to allocate and ask this Court to sentence me to a period of community control.
{¶3} At sentencing, Garcia was sentenced to five years in prison for each of three counts of Compelling Prostitution, three years in prison for the fourth count of Compelling Prostitution, and sixty days of incarceration for each count of Sexual Imposition. The trial court ordered the sentences for Compelling Prostitution to be served consecutively with each other and concurrently with the sentences for Sexual Imposition for an aggregate sentence of eighteen years.
{¶4} Garcia appealed both his convictions and his sentences. In State v. Garcia, 11th Dist. Ashtabula Nos. 2020-A-0034 and 2020-A-0035, 2021-Ohio-4480, this court affirmed Garcia's convictions but reversed his sentences for Compelling Prostitution on the grounds that, at the time Garcia committed the acts constituting Compelling Prostitution, the maximum prison term for a violation of R.C. 2907.21 was only thirty-six months. Id. at ¶ 67. Accordingly, Garcia's sentences for Compelling Prostitution were reversed and the matter was remanded for resentencing on those counts only. Id. at ¶ 85.
{¶5} On July 27, 2022, Garcia's re-sentencing hearing was held. At the hearing, the prosecutor argued in relevant part as follows:
So, I would request, on behalf of the State and behalf of all the victims, that the Court impose the three-year sentences on Count Seven, Twelve, [and] Twenty-Nine [of Compelling Prostitution]; I
would also request the Court to go ahead and re-impose, with some reasoning, a three-year sentence on Count Twenty [of Compelling Prostitution]; run those all consecutive, for a sentence of 12 years.
{¶6} Counsel for Garcia argued in response:
In regards to [the prosecutor] asking the Court to impose a maximum sentence, Your Honor, I would just like to lodge an objection on the record to that. I believe that both the State and the defense are still obligated under the Plea Agreement that was entered into over two years ago, and my understanding of that Plea Agreement is that the State was precluded, precluded, from asking for a period of time of incarceration. They're allowed to ask for incarceration but not an actual number.
{¶7} The trial court ruled as follows: "You're right. That is - - that is in the Plea Agreement. So, that is my understanding of it." The court proceeded to sentence Garcia to thirty-six months in prison for each of three counts of Compelling Prostitution and eighteen months in prison for the fourth count of Compelling Prostitution. The court ordered the prison terms to be served consecutively for an aggregate prison term of ten and a half years.
{¶8} On August 4, 2022, the trial court issued its Re-Sentencing Judgment Entry.
{¶9} On September 2, 2022, Garcia filed a Motion to Vacate Plea and Sentence. Garcia asserted the State's argument for the maximum sentence on the Compelling Prostitution counts constituted a material breach of the plea agreement. As a consequence of this material breach, the plea agreement itself was "void and must be set aside" and Garcia should be allowed to withdraw his plea under the "freely and liberally granted" standard applicable to pre-sentence motions to withdraw guilty pleas under Criminal Rule 32.1.
{¶10} On November 14, 2022, the trial court denied the Motion to Vacate Plea and Sentence. The court ruled:
This Court finds there is no manifest injustice which could support the Motion to Vacate. There was no agreement between the parties that the State would not seek a maximum sentence. In any event, this Court did not impose a maximum sentence as to all felony counts. At resentencing, the Court merely adjusted the original felony sentences to conform with the correct sentence maximum of five (5) years as to Counts Seven, Twenty and Twenty-Nine [of Compelling Prostitution]. Further, a reduction on Count Twenty was imposed to reflect an approximate three-fifths (3/5) of the original sentence imposed on that count resulting in an eighteen (18) month sentence instead of three (3) years.
{¶11} On appeal, Garcia raises the following assignment of error: "The trial court erred in overruling Mr. Garcia's Motion to Vacate Plea and Sentencing."
We acknowledge the State's argument that, by virtue of this court's remand to the trial court to rule on the Motion to Vacate, the Motion should be treated as a motion for postconviction relief and, as such, barred by res judicata. See State v. Osco, 11th Dist. Portage No. 2014-P-0010, 2015-Ohio-45, ¶ 20 ("the state's alleged breach of the plea agreement * * * took place during the sentencing hearing" so that "appellant could have advanced the alleged constitutional errors on direct appeal"). Since this court declined to recast the Motion as one for postconviction relief in its order to remand, we will address the merits of Garcia's arguments on appeal.
{¶12} "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 set aside the judgment of conviction and permit the defendant to withdraw his or her plea." Crim.R. 32.1.
{¶13} This court has described a manifest injustice as follows:
"Pursuant to Crim.R. 32.1, to withdraw a guilty plea after the imposition of sentence, a defendant bears the burden of demonstrating that such a withdrawal is necessary to correct a manifest injustice." State v. Madeline (Mar. 22, 2002), 11th Dist. No. 2000-T-0156, 2002 Ohio App. LEXIS 1348, *7, citing State v. Kerns (July 14, 2000), 11th Dist. No. 99-T-0106, 2000 Ohio App. LEXIS 3202. "A post-sentence Crim.R. 32.1 motion to withdraw a guilty plea is granted only in extraordinary cases to correct a manifest injustice." Madeline at *7-8, citing State v. Smith (1977), 49 Ohio St.2d 261, 264. A manifest injustice is a "clear or openly unjust act." State v. Walling, 3d Dist. No. 17-04-12, 2005-Ohio-428, ¶6.State v. Druktenis, 11th Dist. Ashtabula No. 2010-A-0049, 2011-Ohio-4020, ¶ 25.
{¶14} "An appellate court reviews a trial court's decision on a motion to withdraw a plea under an abuse-of-discretion standard." State v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355, ¶ 32.
{¶15} Garcia's argument on appeal is that, by arguing for the imposition of maximum sentences at the re-sentencing hearing, the prosecutor materially breached the terms of the plea agreement with the result that the agreement is void and that Garcia may withdraw his plea under the standard applicable to pre-sentence motions. Garcia acknowledges that the "Plea Agreement here is silent on the State asking for any set term of prison, much less a maximum sentence." Brief of Appellant at 5. According to Garcia, however, when the provision allowing the State to argue for a prison sentence is "read in conjunction with the agreement's allowance for Mr. Garcia to argue in favor of community control," it becomes clear "that the State's request for a maximum sentence breached the express terms of the plea agreement." Id. Alternatively, it is argued that the agreement's silence as to whether the State could argue for a maximum sentence renders the agreement ambiguous on the principle that "silence inherently creates ambiguity," and so the agreement must be construed against the State. Reply Brief of Appellant at 2.
{¶16} In support of his arguments, Garcia relies on Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), for the proposition that, "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." Id. at 262. In Santobello, the prosecution inadvertently breached a plea agreement by making a sentence recommendation. The Supreme Court vacated the sentence despite the trial judge's assertion that the prosecutor's recommendation did not influence him. "[T]he interests of justice and appropriate recognition of the duties of the prosecution in relation to promises made in the negotiation of pleas of guilty will be best served by remanding the case to the state courts for further consideration," i.e., specific performance of the agreement or the opportunity to withdraw the plea. Id. at 262-263.
{¶17} We agree with the State that the plea agreement is not ambiguous, that the State did not breach the agreement by arguing for maximum sentences, and that Santobello is distinguishable from the present case. As Garcia acknowledges, the plea agreement is silent with respect to any particular term of imprisonment as well as the State's ability to argue for a particular term of imprisonment. Contrary to Garcia's position, however, the State's arguing for maximum sentences does not violate and is not inconsistent with any other express or implied provision of the agreement. The relevant provision of the agreement is not, properly speaking, a promise at all. Rather it is an acknowledgement that the State will argue for prison just as it acknowledges Garcia's right to argue for a period of community control. Given that prison was not mandatory, the parties were already capable of arguing for prison and/or community control. We need not speculate as to what the parties may have subjectively understood the provision to accomplish. There is nothing in the agreement as drafted that precludes the State from arguing for maximum sentences.
{¶18} This court addressed a similar, and arguably more compromising, situation in State v. Muhammad, 11th Dist. Ashtabula No. 99-A-0080, 2000 WL 1804342, where the prosecutor represented at the plea hearing that the State would not be making a sentencing recommendation, but nevertheless made such a recommendation at sentencing. The appellant argued that, under Santobello, his sentence should be vacated. This court rejected the argument:
In the present case, counsel for Garcia represented to the trial court at the plea hearing that there were "no threats, promises, except for what's included in the written plea agreement."
In the instant matter, the transcript from the plea hearing shows that the prosecutor stated that there would be no recommendation as to sentencing before appellant entered his plea. Yet, in the written plea agreement, there was no reference to the prosecutor's oral statement that he would make no recommendation as to the sentence. Pursuant to Santobello, a prosecutor has an affirmative obligation to fulfill the terms of a plea agreement in their entirety. This case can be distinguished from Santobello because here, the prosecutor at the plea hearing orally stated that there would be no recommendation as to sentencing to the trial court. Since the comment was not made part of the negotiated plea, the prosecutor did not have an affirmative obligation to fulfill it.Id. at *3; also State v. Collier, 8th Dist. Cuyahoga No. 108687, 2020-Ohio-3033, ¶ 15 ("[u]nlike the facts contemplated in Santobello, the prosecutor in this case did not make an express promise to forego a sentencing recommendation," so that "this court will not impute terms or conditions of a plea agreement that were not clearly negotiated and unambiguously made part of the record"); State v. Artiste, 4th Dist. Scioto No. 96 CA 2471, 1998 WL 128981, *4 ("we agree with the trial court's conclusion that appellant's future place of confinement did not constitute a promise or a condition of the negotiated plea agreement" where "[t]he plea agreement did not include a specific place of confinement").
{¶19} The fact that the State did not make a specific recommendation at the original sentencing and that the trial court expressed its belief that the State was precluded from doing so at re-sentencing does not alter the result. As the foregoing authorities make clear, we are guided in our construction of the plea agreement by the actual terms of the agreement rather than extraneous representations or understandings of the agreement. In re Adoption of Gibson, 23 Ohio St.3d 170, 173, fn. 3, 492 N.E.2d 146 (1986) ("[a] commentary from the bench, leading up to pronouncement of a decision * * * is [not] adequate to provide a disappointed party a solid basis on which to ground an appeal"); State v. Story, 11th Dist. Ashtabula No. 2006-A-0085, 2007-Ohio-4959, ¶ 44 (prosecutor did not have an affirmative obligation to follow sentencing recommendations not contained in the written plea agreement).
{¶20} The sole assignment of error is without merit.
{¶21} For the foregoing reasons, the denial of Garcia's Motion to Vacate Plea and Sentence is affirmed. Costs to be taxed against the appellant.
MARY JANE TRAPP, J., EUGENE A. LUCCI, J, concur.