[Cite as State v. Potts , 2021-Ohio-618.]

IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT SANDUSKY COUNTY

State of Ohio Court of Appeals No. S-20-028 Appellee Trial Court No. 20 CR 36

v. Michael S. Potts DECISION AND JUDGMENT Appellant Decided: March 5, 2021

* * * * * Beth A. Tischler, Sandusky County Prosecuting Attorney, and Alexis M. Hotz, Assistant Prosecuting Attorney, for appellee. Brett A. Klimkowsky, for appellant.

* * * * * DUHART, J. {¶ 1} This case is before the court on appeal by appellant, Michael S . Potts, from the February 24 and June 26, 2020 judgments of the Sandusky Cou nty Court of Common Pleas. For the reasons that follow, we affirm.2. Assignment of Error The Trial Court’s sentence of Appellant should be vacated with Appellant’s guilty plea and the case remanded for further proce edings because the State * * * breached its plea bargain agreement wit h [Appellant] by essentially recommending a term of incarceration at sentencing and [the State] promised that it would do no such th ing during the change of plea hearing. Background {¶ 2} On or about January 13, 2020, appellant was charged by way of i ndictment with possession of cocaine in violation of R.C. 2925.11(A) and (C)(4)(a), a felony of the fifth degree. At his arraignment on January 27, 2020, appellan t pled not guilty to the charge and was appointed counsel. {¶ 3} On February 24, 2020, a change of plea hearing was held. At th e hearing, the parties explained that a plea agreement had been reached wh ereby appellant would enter a plea of guilty to the sole count of the indictment and agree to an order of restitution in the amount of $80 to the Sandusky County Drug Ta sk Force, and, in exchange, the state would recommend that appellant be sentenced to Crosswaeh, a community-based correctional facility, and be placed on communi ty control. Prior to accepting the plea, the court informed appellant of the possibl e sanctions the court could impose. The court then accepted the plea and referred the matt er to the Adult Probation Department for a presentence investigation.3. {¶ 4} Appellant did not appear for his presentence investigation or f or a sentencing hearing scheduled for June 8, 2020. As a result, the state fil ed a motion requesting the court revoke appellant’s bond and issue a capias. The court gra nted this motion in a judgment entry journalized on June 9, 2020. {¶ 5} On June 12, 2020, appellant’s counsel filed a motion for leave to withdraw as counsel and a motion to withdraw the plea. {¶ 6} On June 26, 2020, appellant appeared before the court for sente ncing. The judge at sentencing was not the same judge who presided over th e change of plea hearing. Also, the prosecutor at the sentencing was a different prosecut or than was present at the change of plea hearing. {¶ 7} At the sentencing hearing, the court first gave appellant’s mot her a chance to speak. In her statement, appellant’s mother detailed certain h ealth problems appellant has suffered and described issues that occurred during the pendency of the case, including delays due to COVID and a hearing at which appellant appeared b ut his attorney did not. 1 The judge then asked appellant’s attorney if he wanted to be he ard, and the following exchange took place.

MR. DOROBEK: 2 Yes, Your Honor. First, I’d like to address the --

I did file a Motion to Withdraw as counsel and to withdraw Mr. Potts’ plea.

1 The court later stated that the attorney had a legitimate reas on for his absence.

2 Mr. Dorobek was appellant’s attorney and Mr. Walz was the pros ecuting attorney.4. I’ve shared that with him, and I had an opportunity to discuss that with him and meet with him. I met with him yesterday at the County jail , provided information about what it means to withdraw a plea, that -- tha t they may be generally liberally granted, but there’s still certain thing s you have to -- you have to make an argument for why you should be allowed to d o it and

that it wasn’t automatic.

* * * MR. DOROBEK: * * * I talked it over with Mr. Potts, that -- an d you can ask, inquire of the State, but the State may be prepare d to recommend 180 days local time as a possible sentence and -- THE COURT: Community Control, 180 days local time? MR. DOROBEK: That’s my understanding. For -- I don’t know if they -- THE COURT: Okay. So if that’s the plea agreement --

MR. DOROBEK: That wasn’t -- THE COURT: -- based on that sentencing agreement, let’s call i t, you’ll withdraw --

MR. DOROBEK: He would --

THE COURT: --the motion to -- MR. DOROBEK: -- he would withdraw, yes, he would withdraw the Motion to Withdraw his plea and the motion for new counsel.5. THE COURT: You were trying to explain that to me and I --

MR. DOROBEK: Yes. THE COURT: -- didn’t get it.

MR. DOROBEK: Yes. THE COURT: Thank you for being patient with me. MR. DOROBEK: But in -- in -- it’s part based upon the

recommendation –

THE COURT: Yeah –

MR. DOROBEK: -- of the State. THE COURT: -- yeah. Well, we reviewed it. Your client has a pretty extensive record, particularly, drug, alcohol abuse and so forth -- drug abuse, pretty extensive. Mr. Prosecutor, sir, would you like to be heard? MR. WALZ: Thank you, Judge, and thank you, Mr. Dorobek, and the Court for reminding me to look at the plea form. It appears that the State of Ohio in the plea form has agreed t o recommend the Defendant be sentenced to Crosswaeh as well as be placed on Community Control. I think with that in mind, it’s probably not proper for me to ask that you put him in jail or prison, because the S tate of Ohio promised it would recommend Crosswaeh and Community Control, so I’m not going to ask for a particular sanction; would ask that $80 of restitution6. be made to the Sandusky County Task Force also as per the Plea Agreement, but, Your Honor, I take a little bit of -- I don’t w ant to say, offense, but we heard some statements which basically blame the system, blame the courts, blame the Prosecutor, blame the defense attor ney for Mr. Potts failing to be in court.

THE COURT: Yeah. MR. WALZ: I can tell you that I’ve -- I’ve -- spoken with Mr. Potts in [sic] other occasions. I find him not to be a particularly offensive person, but I -- I -- you know, nobody made him buy cocaine. It wasn’t me. It wasn’t you. It wasn’t Mr. Dorobek. It wasn’t COVID. It was h is choice, and he has a long-standing history of substance abuse, and if y ou read the 2016 portion of this P.S.I., because we don’t have an update, t here are extending -- extenuating family issues which may have brought s ome of that forward, and I think he’s got a -- a rough road, and I hop e that he can figure that out. {¶ 8} After giving appellant’s attorney a further chance to speak, an d then allowing appellant to address the court, the court discussed ap pellant’s record and stated that, when appellant was in court in a prior appearance the judge was inclined to consider some form of community control that includ ed drug and alcohol treatment without incarceration if the appellant made a “committed effort7. to change.” However, the judge further stated that he had not seen any evidence of commitment. The judge then made the following relevant stat ements. THE COURT: Your record is long and varied, and it’s a record t hat bleeds -- could -- puts other people, not just yourself, other people in danger; that, I don’t like. I’m disappointed that you didn’t d o anything. My -- my inclination was before we started this whole discussio n and I give your lawyer some credit by -- and the Prosecuting Attorney some credit and the Probation Department, I -- I was inclined to just ship you. You know, I gave you a talking to, I gave you the reason to believe that th ere was hope for you. The sentence is -- what is it, 12 months on this one, max? MR. WALZ: Yes, Your Honor. THE COURT: Yeah, 12 -- I just say send him to the penitentiary , let him do his 12 months, get credit for time served. If nothing e lse, he’ll dry out, he’ll be there or -- he’s been incarcerated before this. This is no news to him, and then so the question is, do I go along with this recommendation that your lawyer and the Prosecutor are talking about , or do I just ship you away, or do I put you on Community Control; I suppose we’d do t hat. I’m not putting you on Community Control without some period of incarceration. If nothing else, to see whether you dry out and see whether you have really a commitment to do something to change your lif e, ‘cause there’s got to be some evidence of that, there’s got to be some reason to8. believe that. It’s got to be more than words, so I’ll go along with the

recommendation and give you a 180 days local and put you on Community Control for three years, order you to pay the fine and cost of prosecution, and the other terms and requests of the usual probation includi ng rendering the past forward, completing any drug and alcohol program that’ s requested -- and let me just have a look here, so I’m going to go along with the 180 days local. (Emphasis added.) {¶ 9} The court then sentenced appellant to 180 days local incarcerat ion and three years of community control. Appellant was further informed tha t violation of community control could result in the imposition of a reserved prison ter m of eleven months. {¶ 10} On July 27, 2020, appellant filed his notice of appeal appealin g the change of plea and conviction of February 24, as well as the June 26, 2020 sentence. Arguments {¶ 11} Appellant argues that the state violated the terms of the plea agreement. Although appellant concedes that the state did not overtly reco mmend a term of incarceration, appellant maintains that the state covertly reco mmended incarceration by responding to comments the prosecutor saw as shifting the blame for appellant’s behavior to third persons, and by pointing out that appellant has a long history of substance abuse. Appellant further asserts that the court understood this implic it recommendation, and, as support, points to the court’s statements regarding going “alon g with the

recommendation.”9. {¶ 12} The state counters that it acted in conformity with the plea ag reement. The state cites to the prosecutor’s statements detailing the terms of the plea agreement and that it was “not proper” to ask the court for any jail or priso n time. Law and Analysis {¶ 13} “[W]hen 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 induce ment or consideration, such promise must be fulfilled.” Santobello v. New York , 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). If the prosecutor fails to fulfill the pro mise, the defendant is entitled to either withdraw his or her plea, or specific performance of the plea agreement, which requires resentencing by a different judge. Id . at 263. The court, however, is not obligated to accept a sentence recommended as part of a plea ag reement. State v. Harder , 6th Dist. Ottawa No. OT-14-005, 2015-Ohio-795, ¶ 7. A trial co urt can impose a sentence greater than the recommended sentence “‘when the trial court forewarns the defendant of the applicable penalties, including the possibilit y of imposing a greater sentence than that recommended by the prosecutor.’” State ex rel. Duran v. Kelsey , 106 Ohio St.3d 58, 2005-Ohio-3674, 831 N.E.2d 430, ¶ 6, quoting State v. Buchanan , 154 Ohio App.3d 250, 2003-Ohio-4772, 796 N.E.2d 1003, ¶ 13 (5th Dis t.). {¶ 14} As appellant did not raise an objection during the sentencing h earing, we are limited to a plain error review. Crim.R. 52(B) allows plai n errors or defects affecting substantial rights to be noticed although they were not brought to the attention of the10. court. “Plain error does not exist unless, but for the error, the outcome of the criminal proceedings would clearly have been different.” State v. Ferreira , 6th Dist. Lucas No. L-06-1282, 2007-Ohio-4902, ¶ 11. A reviewing court should only notice plain error “if the error seriously affects the fairness, integrity or public r eputation of judicial proceedings.” State v. Ahlers , 6th Dist. Erie No. E-14-005, 2015-Ohio-131, ¶ 15, citing

State v. Barnes , 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). {¶ 15} When reviewing the statements made in the sentencing hearing, w e do not find that the prosecutor’s statements violate the plea agreemen t. The plea agreement did not require the prosecutor to remain silent at the hearing, mer ely to recommend that appellant be sentenced to Crosswaeh. When read as a whole, the prosecutor’s comments informed the court that the state had agreed to recommend Cross waeh. Moreover, it is not clear that the judge’s statements that he was following “th e recommendation” indicate that the judge understood the prosecutor’s statements to be a r ecommendation for incarceration. The prosecutor did not make such a recommendati on. However, appellant’s attorney, in the context of discussing the motion t o withdraw the plea, did mention that the state may “recommend 180 days local time as a possible sentence.” {¶ 16} Even if the prosecutor’s statements were found to violate the p lea agreement, we are limited to plain error review. A review of t he record does not clearly show that the outcome of the hearing would have been different, to the benefit of appellant, without the prosecutor’s statements. It appears fro m the transcript that the judge’s sentence was based on his own assessment of the record. The trial judge11. discussed appellant’s prior history at length and stated that h e was not putting defendant on community control without some period of incarceration. {¶ 17} Having carefully considered the record and the parties’ argumen ts, we find that the state did not breach the plea agreement and, regardles s, appellant has not demonstrated plain error. Accordingly, we find appellant’s ass ignment of error not welltaken. {¶ 18} The judgments of the Sandusky County Court of Common Pleas are affirmed. Pursuant to App.R. 24, appellant is hereby ordered t o pay the costs incurred on appeal. Judgments affirmed.

A certified copy of this entry shall constitute the mandate pur suant to App.R. 27. See also 6th Dist.Loc.App.R. 4.

Thomas J. Osowik, J. _______________________

________ JUDGE Christine E. Mayle, J.

_______________________________ Myron C. Duhart, J. JUDGE CONCUR.

_______________________________ JUDGE

This decision is subject to further editing by the Supreme Cour t of Ohio’s Reporter of Decisions. Parties interested in viewing th e final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.