[Cite as State v. Sykes , 2018-Ohio-4774.] 

# Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT COUNTY OF CUYAHOGA

JOURNAL ENTRY AND OPINION No. 106390

STATE OF OHIO

PLAINTIFF-APPELLANT

vs. LYNDA SYKES

DEFENDANT-APPELLEE

JUDGMENT: REVERSED AND REMANDED

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-08-513836-A

BEFORE: E.T. Gallagher, P.J., S. Ga llagher, J., and Keough, J.

RELEASED AND JOURNALIZED: November 29, 2018ATTORNEYS FOR APPELLANT Michael C. O’Malley Cuyahoga County Prosecutor BY: Mary McGrath Anna M. Faraglia Katherine Mullin Amy Venesile Assistant Prosecuting Attorneys The Justice Center, 8th and 9th Floors 1200 Ontario Street Cleveland, Ohio 44113

ATTORNEYS FOR APPELLEE

Mark Stanton Cuyahoga County Public Defender

BY: Erika B. Cunliffe Assistant Public Defender Courthouse Square, Suite 200 310 Lakeside Avenue Cleveland, Ohio 44113 EILEEN T. GALLAGHER, P.J.: {¶1} Appellant, state of Ohio, appeals the judgme nt of the common pleas court, granting the motion for judicial release f iled by defendant-appellee, Lynda Sykes. The state raises the following assignments of error for review: 1. The trial court’s conclusion that Lynda Sykes was eligible for judicial release is contrary to law. 2. The record does not support the court’ s conclusion that she was eligible for judicial release. 3. The court failed to make the finding s required under R.C. 2929.20(J) to grant judicial release.{¶2} After careful review of the record and relevant case law, we reverse the trial court’s judgment and remand for proceedings consistent with this opinion. I. Procedural and Factual History {¶3} In July 2008, Sykes was named in a single -count indictment, charging her with aggravated murder in violation of R.C. 2903.01(C), with a victim under the age of 13 specification. The victim was Syke s’s six-year-old niece, who was in Sykes’s legal custody at

the time of her death. {¶4} In November 2009, Sykes entered into a pl ea agreement with th e state and pleaded guilty to involuntary manslaughter in violati on of R.C. 2903.04(A), and e ndangering children in violation of R.C. 2919.22(B)(2). As part of the plea agreement, Sykes agreed to serve a period of incarceration of 15 years to be served “in tota lity.” Defense counsel c onfirmed that the terms of the agreed-upon sentence as set forth by th e prosecutor reflected hi s understanding of the proposed agreement. {¶5} During the plea colloquy, the trial court advised Sykes as follows: TRIAL COURT: Now, per the agreement that your counsel has reached with the state of Ohio you are going to be entering into a plea agreement with a mandatory agreed[-]upon 15-year prison sentence so th at will be the sentence you receive in terms of incarceration. 15 years, followe d by the post-release control period if you enter this plea. Do you understand that? SYKES: Yes, Your Honor. {¶6} Upon accepting Sykes’s guilty pleas, the tr ial court proceeded directly with sentencing. The trial court expr essed that it would “impose the agreed[-]upon sentence” as set forth by the parties during the plea portion of the hearing. Accordingly, the trial court sentenced Sykes to an aggregate 15-year term of imprisonment. The sentencing journal entry reiteratedthat the 15-year prison term was “agreed to with the state.” However, the entry does not reference the mandatory nature of the sentence. {¶7} In June 2016, Sykes filed a motion for judicial release pursuant to R.C. 2929.20. Sykes argued that (1) she is an eligible offender for judicial release, (2) has served more than one-half of her nonmandatory prison sentence, and (3) community control sanctions will adequately punish her and protect the commun ity from future crime. The state opposed the motion, arguing that Sykes was not eligible fo r judicial rel ease because she was serving a mandatory prison term pursuant to the term s of the negotiated agreed-upon sentence. {¶8} A hearing was held on the motion for judicial release. At the hearing, defense counsel reiterated the arguments ra ised in the motion for judicial release. Regarding eligibility, defense counsel explained that Sykes’s convictions did not carry mandatory prison terms by operation of law. Counsel further noted that th e trial court’s sentencing journal entry does not mention a mandatory sentence, but merely references that the parties agreed to impose a 15-year prison sentence. {¶9} Counsel further argued that the circumstances supporting the indictment warranted Sykes’s early release from prison. Defense counsel claimed that wh ile “[t]he state of Ohio has painted Ms. Sykes as a person who committed a terrible crime,” the facts demonstrate that “it was a tragic series of events that caused the d eath of [the victim].” Defense counsel informed the court that prior to the plea negotiations in th is case, counsel located a coroner, Dr. Robert Bux, who analyzed a portion of the Cuyahoga Count y Coroner’s report. Dr. Bux opined that the victim died as a result of being accidently locked into a toy box located in Sykes’s backyard by another young child who was on the scene. Th e victim had “sickle-cell traits,” and Dr. Bux concluded that her death was the result of the extreme heat inside the box that “triggered asickle-cell reaction.” Defense counsel acknowledged that Sykes initially fabricated a story to the police and claimed that the victim had drowned while swimming at Edgewater Park. However, counsel maintained that Sykes made up the story because she was “in shock” and that once she was released from Northcoast Behavioral Healthcare Center, she “explained that the child had been found in the toy box.” {¶10} In response, the state argued that Syke s was not eligible for judicial release because, pursuant to her plea agreement, she was serving a mandatory prison term. The state noted that the mandatory nature of the prison term was negotiated and was th e basis of the state’s decision to reduce the aggravated murder charge to involuntary manslaughter. The prosecutor explained that had Sykes not accepted the mandatory prison term, “the state would not have participated in this plea agreement.” {¶11} With respect to defense counsel’s referen ce to Dr. Bux’s letter, the state reiterated that his findings were known prior to the plea and were considered dur ing plea negotiations. The prosecutor stated that the Cuyahoga County Coroner’s Office reviewed Dr. Bux’s report but did not agree with his findings. The coroner t ook the victim’s “mild form of sickle-cell trait” into consideration but ultimately determined that it was not a factor in her death. Thus, the coroner stood by her findings that the victim’ s death was caused by “aspiration of gastric contents with acute bronchopneumonia due to near asphyxiation by suffocation.” The coroner found blunt impact trauma that wa s believed to have occurred clos e to the time of the victim’s death. In addition, the coroner opined that the vi ctim had been suffocated nearly to death based

on a cluster of abrasions found around the child’s m outh that indicated that “something had to have been placed over [t he victim’s] mouth.”{¶12} Upon hearing from the parties, the trial court stated that it wished to understand the facts that formed the state’s belief that an aggrav ated murder charge was warranted in this case. The court expressed that consid eration of the competing facts was necessary to determine whether the plea agreement was an “enforceable” cont ract that was the product of “an arm’s length transaction negotia tion.” The court further noted that at the time of Sykes’s plea, judicial

release was not available to her given the length of her sentence, 1 and therefore, was not an issue placed on the record during the plea. {¶13} Following a continuation of the hearing, th e parties appeared before the court and summarized the facts supporting their competing beliefs regarding whether the victim’s death was intentional or the product of a tragic accident. After cons idering the facts supporting the indictment and the transcript of the plea and se ntencing proceedings, the trial court determined that it had discretion to grant Sykes judicial release. The court then proceeded to consider the

merits of the motion and noted th at defense counsel presented “ unrefuted evidence that [Sykes] has had a stellar prison record.” Thus, the trial court granted the motion for judicial release and placed Sykes on five years of supervision w ith the Cuyahoga County Probation Department. {¶14} The state now appeals the trial court’s judgment. II. Law and Analysis A. R.C. 2953.08(B)(3) {¶15} As an initial matter, we find the state is authorized under R.C. 2953.08(B)(3) to appeal a granting of judi cial release. Section (B)(3) of R.C. 2953.08 states:

1 In 2011, R.C. 2929.20 was amended to provide offenders serving an aggregated nonmandatory prison term in excess of ten years with the opportunity to seek judicial release once the offender has served one-half of the prison term. R.C. 2929.20(C)(5).(B) In addition to any other right to app eal and except as provided in division (D) of this section, a prosecuting attorney, a city director of law, village solicitor, or similar chief legal officer of a municipal co rporation, or the attorney general, if one of those persons prosecuted the case, may appeal as a matter of right a sentence imposed upon a defendant who is convicted of or pleads guilty to a felony or, in the circumstances describe d in division (B)(3) of this section the modification of a senten ce imposed upon such a defendant, on any of the following grounds:

* * * (3) The sentence is a modi fication under section 2929.20 of the Revised Code of a sentence that was imposed for a fel ony of the first or second degree. {¶16} This court has acknowledged that a judg ment granting judici al release is a modification of a sentence, which the state has the right to appeal. State v. Costlow , 8th Dist. Cuyahoga No. 89501, 2008-Ohio-1097, ¶ 9. Because Sykes’s sentence was imposed for involuntary manslaughter, a felony of the first de gree, and endangering children, a felony of the second degree, the state is authorized to appeal the trial court’s granting of judicial release pursuant to R.C. 2953.08(B)(3). B. Eligibility for Judicial Release {¶17} In its first assignment of error, the state argues the trial court’s conclusion that Sykes is eligible for judicial rel ease is contrary to law. In its second assignment of error, the state argues the record does not support the trial court’s conclusion that Sykes is eligible for judicial release. We address these assignments of error together for clarity. {¶18} R.C. 2929.20 governs the procedure for judici al release. “Judi cial release is a privilege, not an entitlement.” State v. Ware , 141 Ohio St.3d 160, 2014-Ohio-5201, 22 N.E.3d 1082, ¶ 11. “‘There is no constituti onal or inherent right * * * to be conditionally released before the expiration of a valid sentence.’” State ex rel. Hattie v. Goldhardt , 69 Ohio St.3d 123, 125, 630 N.E.2d 696 (1994), quoting Greenholtz v. Inmates of Nebraska Penal & Corr.Complex , 442 U.S. 1, 7, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) . Courts have no inherent power to suspend execution of a sentence, and they must st rictly construe statutes allowing such relief.

State v. Smith , 42 Ohio St.3d 60, 61, 537 N.E.2d 198 (1989). {¶19} Pursuant to R.C. 2929.20(A)(1), judicial release is available only to “eligible offenders.” An “eligible offe nder” is one who is serving one or more nonmandatory prison

terms. Id . A “non[-]mandatory prison term” is de fined as “a prison term that is not a mandatory prison term.” R.C. 2929.20(A)(2). Upon motion by an eligible offender, the sentencing court “may reduce the eligible offe nder’s aggregated nonmandatory prison term or terms through a judicial rel ease under this section.” R.C. 2929.20(B). The statute confers considerable discretion upon a tria l court in deciding whether to grant or deny an offender’s motion for judicial release. State v. Pollard , 8th Dist. Cuyahoga No. 97166, 2012-Ohio-1196, ¶ 18. The statute provides specific time periods in which an eligib le offender may seek judicial

release: If the aggregated nonmandatory prison term or terms is more than ten years, the eligible offender may file the motion not earlier than the later of the date on which the offender has served one-half of the o ffender’s stated prison term or the date specified in division (C )(4) of this section. R.C. 2929.20(C)(5). {¶20} As stated, an order granting judicial release is a modification of sentence that the state has the right to appeal. R.C. 2953.08(B)(3). Our standard of review is set forth in R.C. 2953.08(G)(2), which states: The court hearing an appeal under division (A ), (B), or (C) of this section shall review the record, including the finding s underlying the sentence or modification given by the sentencing court. The appellate court may increase, reduce, or otherwise modify a sentence that is appealed under this section or may vacat e the sentence and remand the matter tothe sentencing court for resentencing. Th e appellate court’s st andard for review is not whether the sentencing court abus ed its discretion. The appellate court may take any action authorized by this di vision if it clearly and convincingly finds either of the following: (a) That the record does not support the sentencing court’s findings under division (B) or (D) of section 2929.13, division (B )(2)(e) or (C)(4) of section 2929.14, or division (I) of section 2929.20 of the Revised Code, whichever, if any, is relevant; (b) That the sentence is ot herwise contrary to law.

Id

. {¶21} On appeal, the state conced es that the offenses of involuntary manslaughter and endangering children do not require mandatory prison terms by opera tion of law. However, the state maintains that Sykes was ineligible for judicial release because she agreed to a mandatory prison term of 15 years pursuant to the terms of the negotiated plea agreement. Thus, the state submits that the trial court’s determination that Sykes was an eligible offender was contrary to law pursuant to the express la nguage of R.C. 2929.20(A)(1)-(2). {¶22} After careful review of the record, we find the trial court’s determination that Sykes was eligible for judicial release was not predicated on a statutory analysis or a conclusion that Sykes’s 15-year prison term was not mandatory. Rather, the trial court’s statements at the conclusion of the motion hearing indicate that th e court found Sykes was e ligible for judicial release because, based on the competing theories presented by the parties, the court believed Sykes had been punished enough where the case “c ould have resulted in a not guilty verdict.” Consideration of the facts underlying the basis of the indictment, howev er, is irrelevant to determining whether Sykes is an eligible offender under R.C. 2929.20(A)(1). This court’s

review is limited to whether the trial court’s acceptance of Sykes’ s plea agreement with the state rendered her ineligible for judicial release.{¶23} The decision whether to accept or to rej ect a plea bargain rests within the sound

discretion of the trial court. State v. Asberry , 173 Ohio App.3d 443, 2007-Ohio-5436, 878 N.E.2d 1082 (8th Dist.). A plea agreement is a contract between th e state and a criminal defendant and is subject to contract-law principles. State v. Butts , 112 Ohio App.3d 683, 686, 679 N.E.2d 1170 (8th Dist.1996). The terms of a pl ea agreement must therefore be explicit.

State v. Padilla , 8th Dist. Cuyahoga No. 98187, 2012-Ohio-5892, ¶ 11. As such, when a sentence is agreed to by the parties as part of the negotiated plea, there is an implicit “understanding that in exchange for the plea, th e defendant and the state have agreed to be mutually bound to a specific sentence or a sentence authorized by la w within a prescribed range.” State v. Huffman , 8th Dist. Cuyahoga No. 105805, 2018-Ohio-1192, ¶ 17. “[I]nherent in an agreed sentence is a quid pro quo arrangement wh ere the defendant and pr osecutor have either given up something or attained something in exchange for being bound by a nonappealable

sentence.” Id . This court explained: Agreed sentences serve an important function in Ohio’s justice system. For defendants, they are an effective tool to “cap” or limit sentencing exposure. This is especially true where the defendant is facing significant jail time either due to the severity of the individual offense or the sheer volume of offenses. In these instances, the defendant is giving up the right of appeal to be secure in the knowledge that he or she will not be s ubject to a greater punishment than the agreed sentence. For prosecutors, an ag reed sentence secures a plea to perhaps a difficult or uncomfortable cas e in exchange for an unde rstanding that a sentence will be to a level or range that the prosecutor deems satisfies the victim or society as a whole. Such arrangements do not restrict a trial court’s discretion to reject plea agreements, nor do they bind a trial court to a jointly recommended sentence.

Id . at ¶ 19. {¶24} In this case, Sykes undeniably entered her plea with the understanding that she would be sentenced to a mandatory agreed-upon pr ison term of 15 years pursuant to the parties’ negotiated plea agreement. Syke s was questioned at length dur ing the Crim.R. 11 colloquy andexpressly stated that she unders tood she was “entering into a pl ea agreement with a mandatory agreed-upon 15-year prison sentence.” Defense c ounsel confirmed the manda tory nature of the agreed-upon sentence and thereafter requested at sentencing that the trial court impose the agreed-upon sentence “and follow the recommenda tion of both counsel.” The trial court accepted the plea agreement in its entirety and stated at sentencing that it was imposing the agreed-upon sentence. Under th ese circumstances, we find the plea agreement, which included an agreed-upon sentence of 15 years in prison “to be served in totality,” constituted a valid and enforceable contract that mutually bound the parties to its terms. {¶25} There is no dispute that Sykes pleaded guilty to offenses that do not carry mandatory prison terms under the Oh io Revised Code. However, pursuant to the express terms of the plea agreement and the trial court’ s subsequent acceptance and imposition of the agreed-upon sentence, we find Sykes’s 15-year term of imprisonment was mandatory under contract principles. The state and Sykes ente red into a quid pro quo arrangement where Sykes agreed to serve a mandatory prison term in exchange for the state’s agreement to amend her aggravated murder charge to involuntary mans laughter. R.C. 2929.20 contains no language to suggest its eligibility restrictions apply only to offenders who are subject to statutorily mandated prison terms as opposed to prison terms mandated by an approved plea agreement. It simply states that judicial release is not applicable to an offender who is serving a mandatory prison

term. {¶26} We further note that the trial court’s failure to include the term “mandatory” in the sentencing journal entry did not serve to invalid ate the trial court’s acceptance of the agreed-upon sentence or the mandatory nature of the prison te rm. The sentencing jour nal entry incorporates the terms of the agreed-upon sentence by refere nce. Moreover, Sykes was notified at thesentencing hearing that the court was imposin g the agreed-upon sentence, which unquestionably included a mandatory prison term. See State v. El , 8th Dist. Cuyahoga No. 105089, 2017-Ohio-8165, ¶ 8 (the failure of th e court to include in the senten cing entry that a prison term is mandatory does not affect the validity of the imposed sentence or sentences). {¶27} Based on the foregoing, we find Sykes is not an eligible offender under R.C. 2929.20(A). Accordingly, the trial court’s modi fication of Sykes’s sentence is clearly and convincingly contrary to law. We recognize th e thoroughness of the trial court’s considerations

was done in an effort to reach a result it deemed appropriate ba sed on information that was not before the court in 2009. However, consideration of such inform ation led to a judgment that more closely resembled a reconsideration of the court’s acceptance of Sykes’s plea and imposition of her sentence than a statutory analysis under R.C. 2929.20. {¶28} Our decision should not be interpreted as a conclusion that all agreed-upon sentences equate to mandatory sentences that preclude eligibility for judicial release . See, e.g.,

State v. Williams , 8th Dist. Cuyahoga Nos. 104078 and 104849, 2017-Ohio-2650, ¶ 7, 9, 21 (suggesting eligibility for judicial release under R.C. 2929.20(C)(4) where the plea agreement and agreed-upon sentence did not include a negotiated condition that the otherwise nonmandatory prison terms be served in their tota lity). However, where, as here, the mandatory nature of the agreed-upon sentence is an expre ss condition of the plea agreement, it becomes a binding contractual term that renders the offender ineligible for judicial re lease under R.C. 2929.20(A). {¶29} The state’s first and second assignments of error are sustained. Our resolution of these assignments of error render th e third assignment of error moot. {¶30} Judgment reversed and remanded.It is ordered that appe llant recover of said a ppellee costs herein taxed.

The court finds there were reas onable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the common pleas court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appella te Procedure.

EILEEN T. GALLAGHER, PRESIDING JUDGE KATHLEEN ANN KEOUGH, J., CONCURS; SEAN C. GALLAGHER, J., CONCURS WITH SEPARATE OPINION

SEAN C. GALLAGHER, J., CONCURRING: {¶31} I concur fully with the majority, but write separately to address concerns regarding

the outcome of this case. {¶32} First, I am acutely aware that this decision will result in Sykes’s return to the institution. It is one thing to deny release, but another to revoke releas e after it has occurred. It is hard to argue that there is not some thing inherently unfair in such a process. {¶33} Next, I understand and I am sensitive to the concerns of the trial judge who made the decision to grant judicial re lease. While we find it was in error, it is understandable how a judge would review the progress Sykes made in the institution, as well as the judge’s concerns about the nature of the original plea, and determine release was warranted. Nevertheless, as the majority opinion states, the law is clear that Sykes was not eligible. {¶34} This case serves as yet another example of the inherent problems associated with the Senate Bill 2 sentencing provisions from 1996. I have been a critic of Senate Bill 2 in thepast, in part, for the lack of flexibility it brought to Ohio’s sentencing scheme. While the opportunity for judicial release ha s been expanded since the origin al version of Senate Bill 2, it hardly creates the independent revi ew of an offender’s status that existed with the parole board under the prior law. Senate B ill 2 ended that process and broug ht us so-called “truth in sentencing,” and the mandatory time provisions and the agreed sentence provisions leave little or no room for the subsequent retrosp ective evaluation of a sentence. {¶35} The lack of flexibility cuts both ways. In 2017, Ohio State student Regan Tokes was brutally murdered by Brian Golsby after Golsby was released from prison after completing a flat-time sentence for attempted rape. Although Golsby was unde r supervision at the time of the murder, there remains the lingering question of whether Golsby woul d have been released given his prior criminal history under the old law. {¶36} In any event, I concur fully with the majority opinion.