[Cite as State v. Griffith , 2021-Ohio-4165.]

COURT OF APPEALS STARK COUNTY, OHIO FIFTH APPELLATE DISTRICT

STATE OF OHIO : JUDGES: : Hon. William B. Hoffman, P.J. Plaintiff-Appellee : Hon. John W. Wise, J. : Hon. Earle E. Wise, Jr., J. -vs- : : JOI KYERA GRIFFITH : Case No. 2021 CA 00001 : Defendant-Appellant : O P I N I O N

CHARACTER OF PROCEEDING: Appe al from the Court of Common Pleas, Case No. 2019 CR 1463

JUDGMENT: Reversed; Vacated, and Remanded

DATE OF JUDGMENT: November 23, 2021

APPEARANCES: For Plaintiff-Appellee For Defendant-Appellant

KYLE L. STONE D. COLEMAN BOND PROSECUTING ATTORNEY 116 Cleveland Avenue NW STARK COUNTY, OHIO Canton, OH 44702 By: VICKI L. DeSANTIS 110 Central Plaza South - Suite 510 Canton, OH 44702-1413Stark County, Case No. 2021CA00001 2

Wise, Earle, J.

{¶ 1} Defendant-Appellant Joi Kyera Griffith appeals the Decemb er 4, 2020 judgment of the Stark County Court of Common Pleas which senten ced her to an aggregate total of 9 to 12 years incarceration. Plaintiff-Appel lee is the state of Ohio.

FACTS AND PROCEDURAL HISTORY {¶ 2} A recitation of the underlying facts is unnecessary for o ur resolution of this appeal. On September 25, 2019, as the result of her involvement in a home invasion wherein one of her co-defendants was shot and killed, the Stark County Grand Jury returned an indictment charging Appellant with one count of mur der, one count of complicity to aggravated burglary, and two counts of complicity to aggravated robbery. Each count contained a firearm specification. {¶ 3} Appellant was initially represented by Attorney Laura Mil ls. On September 27, 2019, Appellant entered pleas of not guilty and on Septembe r 30, 2019, she executed a time waiver. On October 1, 2019 Mills filed a motion for bond modification. On October 9, 2019 the trial court granted the motion and Appellant posted bond and was released with GPS monitoring. {¶ 4} On October 28, 2019 the state extended an offer to Appell ant. In exchange for a proffered statement regarding the home invasion and her t ruthful, honest testimony against her remaining co-defendant, the state would dismiss the charge of murder, agree to an aggregate prison term of 6 to 7.5 years, and stand silent on judicial release when Appellant became eligible. The matter was continued to November 4, 2019 to permit Appellant's consideration of the offer.Stark County, Case No. 2021CA00001 3

{¶ 5} On November 1, 2019, Appellant provided a proffer to the state. On November 4, 2019, a change-of-plea hearing was held during whic h Appellant accepted the state's plea offer. {¶ 6} The state placed the agreement on the record and Appellan t agreed to the same. The trial court then dismissed the murder charge pursuant to the plea agreement and conducted a Crim.R. 11 colloquy with Appellant before accep ting her guilty pleas to the remaining charges. Appellant indicated she had read and und erstood the plea waiver form, was satisfied with the advice of counsel, and believed co unsel had handled her case conscientiously and diligently. Appellant also stated she understood if she failed to testify truthfully and consistently or failed to testify at all , the negotiated plea and agreed upon sentence would be void and the state of Ohio would have th e right to reinstate the murder charge. The trial court advised Appellant of her obligat ions under the agreement and Appellant stated she understood. T(I) 13-14. Finally, Appel lant indicated she understood she would be subject to a mandatory 5 years of post- release control upon her release from prison. T(I) 8,13-14, 18-19. {¶ 7} The trial court then accepted Appellant's pleas of guilty to one count of complicity to aggravated burglary and one count of complicity t o aggravated robbery, and found her guilty of the same. T.(I) 20. {¶ 8} On January 28, 2020, Attorney Mills filed a Motion to Wit hdraw as Counsel citing fundamental disagreements between Appellant and herself regarding evidence, testimony, and "obligations associated with being a party to th is litigation." During a hearing on February 10, 2020, the trial court granted the motio n and appointed Attorney Aaron Kovalchik to represent Appellant.Stark County, Case No. 2021CA00001 4

{¶ 9} Nine months later, on October 6, 2020 Appellant filed a m otion to withdraw her guilty pleas. The motion indicated Appellant would not be t estifying against her codefendant as previously promised. Based on this information, on October 7, 2020, the state filed a motion to revoke Appellant's bond. The state's mo tion was granted the same day and Appellant was arrested. Appellant was scheduled to test ify at her co-defendant's trial on October 8, 2020 but given the opportunity, refused to do so. Attorney Kovolchik asserted Appellant's 5th Amendment rights on her behalf. {¶ 10} On November 3, 2020, a hearing was held on Appellant's m otion to withdraw her plea. As grounds to withdraw her plea, Appellant a sserted Attorney Mills never went over discovery with her and further failed to explai n post-release control. Counsel further indicated during the hearing that Appellant bel ieved she had a defense to the charges, but did not elaborate further on that point. Th e trial court took the motion under advisement and denied the same by judgment entry on Novem ber 10, 2020. {¶ 11} On November 16, 2020, the state filed a Sentencing Memor andum indicating Appellant had forfeited her right to the sentence sh e negotiated for in exchange for her truthful and consistent testimony. The state asked the trial court to impose a sentence of 14 to 19.5 years. On November 19, 2020, Attorney Ko volchik filed a motion to withdraw per Appellant's wishes. {¶ 12} Appellant's sentencing hearing was scheduled for Novemb er 24, 2020. At the hearing, however, Appellant advised she had asked Attorney Kovolchik to withdraw his representation. Appellant was not prepared with representat ion for sentencing. The trial court therefore continued the matter and appointed Attorn ey Bernard Hunt for sentencing.Stark County, Case No. 2021CA00001 5

{¶ 13} Appellant's sentencing hearing took place on December 1, 2020. The trial court dismissed count one of the indictment, murder, and then s entenced Appellant to 6 to 9 years for complicity to aggravated burglary and 6 to 9 yea rs for complicity to aggravated robbery. The trial court ordered Appellant to serve these sentences concurrently. The trial court further merged the firearm specif ications and ordered Appellant to serve the 3-year sentence for the firearm specific ation prior to and consecutive to her sentences for complicity to aggravated burgl ary and aggravated robbery. The trial court indicated its sentence was based on Ap pellant's breach of her agreement with the state, her conduct and behavior during the p endency of the case, and the trial court's knowledge of the case. Appellant raised no ob jection. {¶ 14} Appellant timely filed an appeal and the matter is now b efore this court for consideration. She raises three assignments of error for our co nsideration as follow:

I {¶ 15} "THE TRIAL COURT ABUSED ITS DISCRETION AND PLAINLY ERRED

IN DENYING THE APPELLANT'S M OTION TO WITHDRAW GUILTY PLEA."

II {¶ 16} "THE TRIAL COURT ABUSED ITS DISCRETION, PLAINLY ERRED AN D

VIOLATED THE APPELLANT'S DUE PROCESS RIGHTS BECAUSE THE SENTENC E

WAS RENDERED VOID WHEN THE TRIAL COURT IMPOSED A DIFFERENT

SENTENCE THAN THE SENTENCE THAT WAS PROMISED TO THE APPELLANT PURSUANT TO HER NEGOTIATED PLEA AND AGREED SENTENCE, WHICH WAS

ACCEPTED BY THE TRIAL COURT."Stark County, Case No. 2021CA00001 6

III {¶ 17} "THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF

COUNSEL IN VIOLATION OF HIS RIGHTS UNDER THE 6 TH AND 14 TH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE 1, SECTION 10 OF THE

OHIO CONSTITUTION."

I {¶ 18} In her first assignment of error, Appellant argues becau se the plea agreement was rendered void when she refused to testify, the tr ial court plainly erred by denying her motion to withdraw her guilty plea. We agree, but f or different reasons.

Standard of Review {¶ 19} Both Appellant and Appellee argue this matter is subject to plain error review. However, both also agree that the question here is inte rpretation of a plea agreement which is subject to contract law analysis. The interp retation of a written contract is a question of law subject to de novo review on appe al. St. Marys v. Auglaize Cty. Bd. of Commrs ., 115 Ohio St.3d 387, 2007-Ohio-5026, 875 N.E.2d 561, ¶ 38. We

therefore examine the matter de novo. Rules Applicable to Plea Agreements {¶ 20} A plea agreement is contractual in nature and subject to contract law

standards. State v. Butts , 112 Ohio App.3d 683, 685-686, 679 N.E.2d 1170 (1996). The intent of the parties to a contract presumptively resides in th e ordinary meaning of the language employed in the agreement. Kelly v. Med. Life Ins. Co ., 31 Ohio St.3d 130, 509 N.E.2d 411 (1987). Contractual language giving rise to doubt or ambiguity must beStark County, Case No. 2021CA00001 7

interpreted against the party who used it. Graham v. Drydock Coal Co ., 76 Ohio St.3d 311, 667 N.E.2d 949 (1996). Contractual Language - The Signed Plea Agreement {¶ 21} Before Appellant's plea hearing on November 4, 2019, App ellant signed an 8-page plea agreement. The porti ons relevant to this appeal rea d:

In exchange for my truthful testimony, the State of Ohio agrees to

move the Court to dismiss Count One of the indictment in this c ase, Murder, a special felony, and its accompanying firearm specific ation. I understand and agree that I will plead guilty to the remainin g charges in the indictment and their accompanying firearm specifications. I understand and agree that the Court will accept my plea of Gu ilty and defer sentencing to a later date after I have testified tru thfully and consistently at any future trials or hearings. I understand and agree that if I testify truthfully and consistently as required by this negotiated plea agreement, I will receive a minimum sentence of three years on each of the remaining offenses and a maximum sentence of four years and six months to be served concurrently with each other. This prison sentence will be served consecutive to and after I serve a mandatory three-year term for the remaining fir earm specifications, which shall merge by agreement of the parties.

* * *Stark County, Case No. 2021CA00001 8

I further understand and agree, that should I fail to testify t ruthfully and consistently or refuse to testify pursuant to this negotiat ed plea

and agreed upon sentence, it will void the agreement and the State

of Ohio will reinstate Count One of the indictment and its accompanying firearm specification, and I can be prosecuted to the fullest extent of the law. (emphasis added)

* * *

Discussions on the Record {¶ 22} During the change-of-plea hearing the state recited the agreement:

The State of Ohio and the Defendant, through counsel, have ente red into a negotiated plea agreement pursuant to Criminal Rule 11(f ) and Ohio Revised Code Section 2953.08(D) Pursuant to the terms of that agreement, [Appellant] has agreed to testify truthfully and honestly consistent with the proffer she gave to law enforcement on November 1st, 2019 in the Stark County Jail. She would testify in any future proceedings that involve the de ath of Nicholas Hug for but - - who but for his death, would be her Co

Defendant in this matter. In exchange for that truthful testimony, the State of Ohio has agreed

to dismiss Count 1 of the - - move to dismiss Count 1 of the indictment in this case. Further, the State of Ohio will make a recommendation upon that dismissal to the Court that it deferStark County, Case No. 2021CA00001 9

sentencing to a later date until [Appellant] has testified trut hfully and consistently on the matters to come in the future. The state has agreed to recommend that should [Appellant] abide by the terms of this agreement, she will receive a minimum sentenc e of 3 years on each of the remaining offenses to be served concurre ntly with each other, and a maximum serve - - term of 4 years and 6 months, also to be served concurrently. The State has also agreed that the firearm specifications by agreement of the parties should merge, the remaining firearm specifications, so the total minimum prison term of 3 years to 4-anda-half years be served after [Appellant] serves 3 years on the firearm specification. So that would make, in laymen's terms a prison sentence of 6 years to 7-and-a-half years. The State of Ohio has also agreed that it will not object to th is [Appellant's] application for judicial release if she remains appropriate in prison and complies with the terms of this agree ment.

* * * The [Appellant], however, agrees that the decision to grant jud icial release is solely within the discretion of the Court based upon her behavior after this plea. Finally, the [Appellant] agrees to withdraw any previous motion s she has filed, including the suppression motion which was to be hea rd today.Stark County, Case No. 2021CA00001 10

Finally [sic], the [Appellant] understands that should she fail to testify truthfully and consistently or refuse to testify pursuant to th is negotiated plea and agreed upon sentence, this agreement will b e voided and the State of Ohio can at that time reinstate Count 1 of the indictment and prosecute her to the fullest extent of the law. [Appellant] has signed a plea waiver form, which contains a sep arate signature of her and her counsel, which confirms the terms of t he agreement that I have just outlined for the Court. * * *

{¶ 23} Transcript of Plea (T (I)) 3-6. {¶ 24} The trial court then conducted a Crim.R 11 plea colloquy . The court first inquired whether Appellant agreed with the plea agreement as re presented by the state and contained in the signed agreement. Appellant stated she did . Based on that representation and conditioned on the terms contained in the wr itten agreement, the court sustained the State's motion to dismiss the charge of murder as contained in count one of the indictment. T(I) at 7. {¶ 25} The trial court then inquired:

The Court: * * * Do you understand that you are entering into w hat we refer to as a negotiated plea and agreed upon sentence? [Appellant]: Yes. The Court: Do you understand that this is predicated on or base d upon your agreement to testify truthfully and honestly consiste nt withStark County, Case No. 2021CA00001 11

your proffer to law enforcement which you gave on November 1st, 2019, and any further proceedings involving the events that led to the death of Nicolas Hug? [Appellant]: Yes.

* * * The Court: You understand that if you should fail to testify tr uthfully or consistently or refuse to testify, that this negotiated plea and agreed upon sentence would be void and the State of Ohio would have the right to reinstate the murder charge against you. (emp hasis added) [Appellant]: Yes.

{¶ 26} The fact that the negotiated plea and agreed upon senten ce would be void if Appellant failed to testify as agreed is stated throughout t he plea agreement as well as throughout discussions on the record. {¶ 27} "When the language of a written contract is clear, a cou rt may look no further than the writing itself to find the intent of the parties." Sunoco, Inc. (R & M) v. Toledo

Edison Co. , 129 Ohio St.3d 397, 2011-Ohio-2720, 953 N.E.2d 285, ¶ 37. We cannot construe a contract in such a way that is inconsistent with the unambiguous contract

terms. Butler v. Joshi , 9th Dist. Wayne No. 00CA0058, 2001 WL 489962, *2 (May 9, 2001), citing Alexander v. Buckeye Pipe Line Co ., 53 Ohio St.2d 241, 246, 374 N.E.2d 146 (1978). "Contracts are to be interpreted so as to carry out the intent of the parties, asStark County, Case No. 2021CA00001 12

that intent is evidenced by the contractual language." Skivolocki v. East Ohio Gas Co ., 38 Ohio St.2d 244, 313 N.E.2d 374 (1974), paragraph one of the syllabus. {¶ 28} Words have meaning and we find the language of the plea agreement clear and unambiguous. Counsel for the state and counsel for Appellan t as well as the trial court know there is a distinct difference between and agreement being "void" and an agreement being "voidable" at the election of one of the contra cting parties. The plea agreement clearly states if Appellant fails to testify the agre ement is void. The voiding of the agreement is self-executing. In other words it is not merel y voidable at the election of the state of Ohio. The trial court stated during the change-of- plea hearing the agreement would be void if Appellant refused to testify. Upon Appellant's failure to do so, the entire plea agreement, not just the agreed upon sentence, was automati cally void according to its own terms. When Appellant refused to testify the parties we re returned to the position they were in before Appellant's guilty pleas were entered. {¶ 29} The first assignment of error is sustained. II, III {¶ 30} Based on our resolution of the first assignment of error . Appellant's final assignments of error are moot.Stark County, Case No. 2021CA00001 13

{¶ 31} The judgment of the Stark County Court of Common Pleas i s reversed; Appellant's guilty pleas and sentence are vacated, and the matt er is remanded to the trial court for further proceedings.

By Wise, Earle, J. Hoffman, P.J. and Wise, J., J. concur.

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