[Cite as State v. Richmond , 2012-Ohio-842.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT CLARK COUNTY

STATE OF OHIO : : Appellate Case No. 2011-CA-25 Plaintiff-Appellee : : Trial Court Ca se No. 2011-CR-55 v. : : CHRISTOPHER RICHMOND : (Criminal Appeal from : ( Common Pleas Court) Defendant-Appellant : :

. . . . . . . . . . . O P I N I O N

Rendered on the 2nd day of March, 2012.

. . . . . . . . . . . ANDREW R. PICEK, Atty. Reg. #0082121, Clark County Prosecutor’s Office, 50 East Columbia Street, 4 th Floor, Post Office Box 1608, Springfield, Ohio 45501 Attorney for Plaintiff-Appellee BRETT A. RINEHART, Atty. Reg. #0081226, 150 North Limestone Street, Suite 206, Springfield, Ohio 45502 Attorney for Defendant-Appellant

. . . . . . . . . . . . . FAIN, J. {¶ 1} Defendant-appellant Ch ristopher Richmond appeals from his one-year sentence imposed for Attempted Burglary, a felony of the fifth degree, to which he pled guilty as part of a plea bargain. 2

 {¶ 2} Richmond contends that th e State violated its undert aking, as part of the plea bargain, to remain silent with respect to a recommendation of sentence, when, at sentencing, it noted its undertaking to remain silent with respect to a recommendation, but

asked the trial court to take into consideration Richmond’ s “lengthy prior criminal history.” {¶ 3} Richmond does not appeal from hi s conviction, but only from his sentence. Richmond was sentenced on March 28, 2011, to one year in prison, with jail credit from January 10, 2011, until his conveyance to the pe nitentiary system. The web site of the office of the Clark County Cler k of Courts discloses that the execution of Richmond’s sentence has not been stayed by the trial court or by this court. Therefore, Richmond would have completed serving his se ntence on January 10, 2012. We conclude, therefore, that this appeal is moot, and it is therefore Dismissed.

I. The Plea Bargain. {¶ 4} Richmond was charged by indictment with one count of Burglary, in violation of R.C. 2911.12(A)(4), a felony of the fourth degree. 1 In a plea bargain, which was reduced to writing, Richmond agreed to plead guilty to the reduced offense of Attempted Burglary, a felony of the fifth degree. {¶ 5} In the written plea agreement, wh ich Richmond signed, the State’s undertaking is set forth as follows: “State will stand silent with resp ect to recommendation of sentence at sentencing.” At the plea hearing, the State desc ribed its undertaking as follows:

1 The Burglary statute was amended, effective September 30, 2011, by 2011 H.B. 86, as a result of which it no longer contains a division (A)(4). 3

 The facts – Well, it’s also understood be tween the parties that the defendant will be given a presentence investigation prior to sentencing in this matter, and that at sentencing the State will not recommend a sentencing and stand silent with respect to recommending a sentence, but we may be able to speak with respect to the facts of the

case. {¶ 6} Pursuant to the plea agreement, Ri chmond pled guilty to the reduced charge of Attempted Burglary.

II. The Sentencing Hearing. {¶ 7} At the sentencing hearing, Richmond and his attorney were afforded the opportunity to address the court. The court then asked the State if it had anything to say. The State then responded as follows: Your Honor, pursuant to the terms of th e plea agreement the State will not be speaking as to a sentence; however, the State would just ask that the Court take into consideration the lengthy prior criminal history that the defendant has, as both a juvenile and as an adult. {¶ 8} The transcript of the sentencing hearing then indicates: “(Judge reading.)” Following which, the trial court made the following statement: You’ve been convicted of burglar y back in 2005, theft in 2007, telephone harassment in 2007, theft in 2008. You went to prison for that offense. Aggravated menacing in 2010, domestic violence in 2011. It’s the order of the Court you be sentenced to one year in the Ohio State Penitentiary 4

 and court costs. That’s all for today. {¶ 9} Whereupon, the sentencing hearing concluded. {¶ 10} Richmond appeals from his sentence.

III. This Appeal. {¶ 11} Richmond’s sole assignment of error is as follows: {¶ 12} “THE PROSECUTION VIOLATED TH E TERMS OF THE PLEA AGREEMENT BY NOT STANDING SILENT DURING DISPOSITION, THEREBY MAKING APPELLANT’S

PLEA OF GUILTY INVOLUNTARY.” {¶ 13} Richmond does not ask us to disturb hi s conviction for Attempted Burglary. The relief he requests in his brief is as follows: Appellant respectfully requests that this court vacate the sentence and allow Appellant the full benefit of his bargain. Therefore, as the State failed to honor the plea agreement, the

sentence should be vacated and th is case should be remanded for proceedings consistent with this [sic] opinion. {¶ 14} The State points out that Richmond did not object to the State’s comment at the sentencing hearing. But it is questionable wh ether Richmond had a meaningful opportunity to object. The trial court appears to have turned its attention to reading from the pre-sentence investigation report as soon as the State was finished speaking. The practical realities of sentencing hearings are that defendants and their counsel are lo athe to interrupt, and po ssibly irritate, the trial court at this critical stage, when the trial court is about to pronounce sentence. {¶ 15} Richmond relies upon Santobello v. New York , 404 U.S. 257, 92 S.Ct. 495, 5

 30 L.Ed.2d 427 (1971), for the proposition that a ma terial breach of an undertaking by the State, in a plea agreement, requires either the remedy of specific performance or the remedy of rescission. Richmond, evidently content with the plea bargain wher ein his offense was reduced from Burglary to Attempted Burglary, seeks only the remedy of specific performance. {¶ 16} Without addressing the merits of Richmond’s assignment of error, we conclude that this appeal is moot. Rich mond’s sentence was due to expire on January 10, 2012. The website maintained by the Department of Rehabilitation and Co rrections, of which we have taken judicial notice, does not list Richmond as a prisone r. It also does not reflect that he is on post-release cont rol. The only relief Richmond s eeks concerns his sentence.

Even if we were to conclude that there was error in the impos ition of his sentence, we cannot provide him meaningful relief, since he has already completed the sentence. Therefore, this appeal is moot. State v. Money , 2d Dist. Clark No. 2009 CA 119, 2010-Ohio-6225, ¶ 25. See, also, State v. Johnson , 11th Dist. Lake No. 2005-L-208, 2007-Ohio-780, ¶ 7. {¶ 17}

IV. Conclusion. {¶ 18} This appeal being moot, it is Dismissed.

. . . . . . . . . . . . . GRADY, P.J., and FROELICH, J., concur.

Copies mailed to:

Andrew R. Picek Brett Rinehart Hon. Douglas M. Rastatter 6

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