[Cite as State v. Lumbus, 2014-Ohio-3821.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION

No. 100787

STATE OF OHIO 

PLAINTIFF-APPELLEE 

vs. 

BRIAN LUMBUS, JR.

 DEFENDANT-APPELLANT

JUDGMENT:

AFFIRMED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-11-556136-A 

BEFORE: Stewart, J., Blackmon, P.J., and McCormack, J. 

RELEASED AND JOURNALIZED: September 4, 2014 
FOR APPELLANT

Brian Lumbus, pro se 

Inmate No. 210921 

Cuyahoga County Jail 

P.O. Box 5600 

Cleveland, OH 44101

ATTORNEYS FOR APPELLANT

Robert L. Tobik 

Cuyahoga County Public Defender 

BY: Erika B. Cunliffe 

Assistant Public Defender 

310 Lakeside Avenue, Suite 200 

Cleveland, OH 44113 

ATTORNEYS FOR APPELLEE 

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: James D. May 

Assistant County Prosecutor 

The Justice Center 

1200 Ontario Street, 9th Floor 

Cleveland, OH 44113 
MELODY J. STEWART, J.: 

{¶1} In State v. Lumbus, 8th Dist. Cuyahoga No. 99301, 2013-Ohio-4592, this 

court held that the trial court erred by giving defendant-appellant Brian Lumbus, Jr., a 

sentence that exceeded the three-year sentence that he and the state agreed to as part of a 

plea bargain. In remanding the case, we ordered the court to “either impose the agreed 

three-year sentence or allow Lumbus to withdraw his guilty plea.” Id. at ¶ 52. On 

remand, the court refused to allow Lumbus to withdraw his guilty plea and ordered him to 

serve a total of three years. On appeal from that sentence, Lumbus argues that the court 

erred by refusing to allow him to withdraw his guilty plea. 

{¶2} Lumbus argues that despite the phrasing of our remand, we nonetheless held 

that he had a “reasonable expectation that he would be given a three-year sentence as part 

of his plea,” so the court’s refusal to impose that sentence meant that “Lumbus could not 

have voluntarily, knowingly, or intelligently entered his plea.” Id. at ¶ 50. This 

conclusion, he argues, should have required the court to grant the motion to vacate the 

guilty plea. 

{¶3} To put Lumbus’s argument in perspective, we need to examine the basis for 

the prior reversal. When this court held that the plea was rendered involuntary, 

unknowing, or unintelligent, it was because Lumbus agreed to plead guilty under 

sentencing terms that were material to his agreement to enter into the plea. Lumbus at ¶ 

42. A plea agreement is a form of contract between the defendant and the state, State v. 

Dye, 127 Ohio St.3d 357, 2010-Ohio-5728, 939 N.E.2d 1217, ¶ 21, so any alteration to 
the terms that induced Lumbus to plead guilty affected the voluntary nature of the 

agreement. 

{¶4} We should be clear that the trial judge was not a party to the plea agreement 

and thus not bound by its terms — it had broad discretion to sentence Lumbus within the 

applicable statutory range. State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845 

N.E.2d 470, ¶ 100. However, once the court became aware that Lumbus entered into a 

plea agreement with expectations regarding his sentence, it was obligated to inform 

Lumbus prior to accepting the plea that it would not be bound by any sentencing 

agreement between the parties. Lumbus at ¶ 43. Had the court done so, Lumbus would 

have had the choice of refusing to plead guilty or taking a chance that the court would 

impose a sentence consistent with the expectations of the parties. Either way, Lumbus 

would have entered his guilty plea knowingly and intelligently. 

{¶5} The effect of our mandate from the first appeal — to require specific 

performance of the plea agreement or to vacate the guilty plea — allowed the trial court 

to select between two mutually-exclusive alternatives. However, the court could only 

impose a three-year sentence (a form of specific performance) on a valid guilty plea. 

Our prior decision specifically found that Lumbus’s guilty plea was unknowing and 

involuntary at the time it was entered because the court did not inform him prior to 

accepting the plea that it would not be bound by any sentencing agreement between the 

parties. Imposing a three-year sentence could not make an invalid plea valid. 
{¶6} Despite giving the trial court two options, our decision was a mandate that the 

court was not free to ignore. Under the “mandate rule,” a lower court must “carry the 

mandate of the upper court into execution and not consider the questions which the 

mandate laid to rest.” Sprague v. Ticonic Natl. Bank, 307 U.S. 161, 168, 59 S.Ct. 777, 

83 L.Ed. 1184 (1939). When the mandate on appeal leaves nothing left to decide, the 

lower court is bound to execute it. State v. Carlisle, 8th Dist. Cuyahoga No. 93266, 

2010-Ohio-3407, ¶ 16. 

{¶7} Lumbus argued on remand that our mandate in the first appeal gave “him the 

option to either accept the three-year sentence, specific performance on the original 

sentence to which he pled guilty, or to vacate his guilty plea and proceed to trial.” See tr. 

12. The court properly rejected that argument because our mandate very clearly gave the 

court, not Lumbus, the discretion to exercise the stated options. Lumbus did not 

challenge our mandate by way of a motion for reconsideration or appeal to the Ohio 

Supreme Court, so the mandate stands. The court imposed a three-year sentence 

consistent with our mandate to either impose sentence or permit Lumbus to withdraw his 

guilty plea. We cannot find that the court erred by complying with our mandate. The 

assigned error is overruled. 

{¶8} Judgment affirmed. 

It is ordered that appellee recover of appellant its costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 
It is ordered that a special mandate issue out of this court directing the Cuyahoga 

County Court of Common Pleas to carry this judgment into execution. The defendant’s 

conviction having been affirmed, any bail pending appeal is terminated. Case remanded 

to the trial court for execution of sentence. 

 A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

 

 

MELODY J. STEWART, JUDGE 

PATRICIA ANN BLACKMON, P.J., and 

TIM McCORMACK, J., CONCUR