"Generally, if the parties and the trial court have made a mutual mistake regarding the terms of a plea agreement, the proper remedy is to rescind it." State v. Johnson, 182 Ohio App.3d 628, 2009-Ohio-1871, 914 N.E.2d 429, ¶ 14 (4th Dist.), citing State v. Hart, 8th Dist. Cuyahoga No. 84531, 2005-Ohio-107, 2005 WL 77054, ¶ 12, State v. Wintrow, 12th Dist. Preble No. CA2003–10–021, 2005-Ohio-3447, 2005 WL 1545792, ¶ 21, and State v. Ulrey, 8th Dist. Cuyahoga No. 71705, 1998 WL 213085 (Apr. 30, 1998). Moreover, if an offender entered a plea agreement that was predicated on a mutual mistake of law by the offender and the state, the plea agreement must be vacated.
Rose also argues that his pleas were not voluntarily made because his attorney misinformed him about his eligibility for judicial release. He relies on State v. Johnson, 182 Ohio App. 3d 628,2009-Ohio-1871, 914 N.E. 2d 429
We observed that a plea agreement generally should be rescinded " ' "if the parties and the trial court have made a mutual mistake regarding the terms of a plea agreement." ' " Id. at ¶ 21, quoting State v. Moore, 4th Dist. Adams No. 13CA965, 2014-Ohio-3024, ¶ 16, quoting State v. Johnson, 182 Ohio App.3d 628, 2009-Ohio-1871, 914 N.E.2d 429, ¶ 14 (4th Dist.). In State v. Nevels, 8th Dist. Cuyahoga No. 108395, 2020-Ohio-915, the Ohio Supreme Court has noted that there is " 'no easy or exact way to determine what someone subjectively understands,' but where the defendant receives the proper information, 'we can ordinarily assume that she understands that information.' "
{¶ 22} This court has recognized that a plea agreement generally should be rescinded "'if the parties and the trial court have made a mutual mistake regarding the terms of a plea agreement.'" State v. Moore, 4th Dist. Adams No. 13CA965, 2014-Ohio-3024, ¶ 16, quoting State v. Johnson, 182 Ohio App.3d 628, 2009-Ohio-1871, 914 N.E.2d 429, ¶ 14 (4th Dist.). We have also stated: "When a defendant's guilty plea is induced by erroneous representations as to the applicable law * * * the plea is not knowingly, intelligently, and voluntarily made."
{¶ 16} This court has recognized that a plea agreement generally should be rescinded "'if the parties and the trial court have made a mutual mistake regarding the terms of a plea agreement.'" State v. Moore, 4th Dist. Adams No. 13CA965, 2014-Ohio-3024, ¶16, appeal not allowed, 141 Ohio St.3d 1455, 2015-Ohio-239, 23 N.E.3d 1196, quoting State v. Johnson, 182 Ohio App.3d 628, 2009-Ohio-1871, 914 N.E.2d 429, ¶14 (4th Dist.). We have also stated: "When a defendant's guilty plea is induced by erroneous representations as to the applicable law * * * the plea is not knowingly, intelligently, and voluntarily made."
{¶22} A mutual mistake of fact is grounds for recision of a contract. State ex rel. Walker v. Lancaster City School Dist. Bd. of Edn., 79 Ohio St.3d 216, 220, 680 N.E.2d 993 (1997), citing 1 Restatement of the Law 2d, Contracts 385, Mistake, Section 152(1) (1981). "[I]f the parties and the trial court have made a mutual mistake regarding the terms of a plea agreement," the agreement should be rescinded.State v. Johnson, 182 Ohio App.3d 628, 2009-Ohio-1871, 914 N.E.2d 429, ¶ 14 (4th Dist.). A mutual mistake of law is generally not grounds for rescission.
{¶16} In general, "if the parties and the trial court have made a mutual mistake regarding the terms of a plea agreement," the agreement should be rescinded. State v. Johnson, 182 Ohio App.3d 628, 2009-Ohio-1871, 914 N.E.2d 429, ¶ 14 (4th Dist.). "When a defendant's guilty plea is induced by erroneous representations as to the applicable law, including eligibility for judicial release, the plea is not knowingly, intelligently, and voluntarily made."
However, even characterizing Appellant's sentences as stipulated in the plea agreement, as five years mandatory and five years nonmandatory, Appellant would not have been eligible for judicial release for nine years, which is four years longer than what was represented to him during his plea negotiations. {¶14} In State v. Johnson, 182 Ohio App.3d 628, 2009-Ohio-1871, 914 N.E.2d 429 (4th Dist. 2009), ¶ 16, we concluded that we could "not allow a plea agreement to stand when it was obtained on the basis of a misrepresentation to the accused that he would be released from prison earlier than what the law permits." In reaching this conclusion, we determined that such a misunderstanding could not "form the basis of a valid plea agreement."
In State v. Johnson, the prosecution promised that there would be no objection to a motion for judicial release after four (4) years of incarceration. 2009-Ohio-1871, ¶ 13, 182 Ohio App.3d 628, 632, 914 N.E.2d 429, 431.
"[I]f the parties and the trial court have made a mutual mistake regarding the terms of a plea agreement," the agreement should be rescinded. State v. Johnson, 182 Ohio App.3d 628, 2009-Ohio-1871, ¶ 14 (4th Dist.).Girts at ¶ 21-22.