[Cite as State v. Jenkins , 2020-Ohio-1480.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT LAWRENCE COUNTY STATE OF OHIO, : : Plaintiff-Appellee, : Case No. 18CA27 : vs. : : DECISION AND FREDERICK JENKINS, JR., : JUDGMENT ENTRY : Defendant-Appellant. :

_____________________________________________________________ APPEARANCES: Steven H. Eckstein, Washington Court House, Ohio, for Appellant

. Brigham M. Anderson, Lawrence County Prosecuting Attorney, and Jeffrey M. Smith, Assistant Prosecuting Attorney, Ironton, Ohio, for Appel lee.

_____________________________________________________________ Smith, P.J. {¶1} This is an appeal from a Lawrence County Common Pleas Cour t judgment of conviction and sentence. Appellant, Frederick Jenk ins, Jr., pled guilty as charged to three felony counts as follows: 1) trafficking in drugs, a fourthdegree felony in violation of R.C. 2925.03(A)(1)(C)(1)(a); 2) t ampering with evidence, a third-degree felony in violation of R.C. 2921.12(A) (1); and possession of drugs, a fifth-degree felony in violation of R.C. 2925.11(A) (C)(1)(a). The trial court sentenced Jenkins to a seventeen-month prison term for tr afficking in drugs,Lawrence App. No. 18CA27 2 to be served consecutively with a thirty-month prison term for tampering with

evidence. The trial court also sentenced Jenkins to an eleven- month prison term for possession of drugs and ordered that the prison term run co ncurrently with the other two prison terms, for a total of forty-seven months. On appeal, Jenkins contends that the trial court failed to enforce the plea agreem ent in which the State was to recommend a two-year sentence but failed to do so. Beca use we find no merit in Jenkins’ sole assignment of error, it is overruled. A ccordingly, the judgment of the trial court is affirmed.

FACTS {¶2} On August 22, 2018, a secret indictment was filed chargin g Jenkins with one count of trafficking in drugs, a fourth-degree felony in violation of R.C. 2925.03(A)(1)(C)(1)(a), one count of tampering with evidence, a third-degree felony in violation of R.C. 2921.12(A)(1), and one count of pos session of drugs, a fifth-degree felony in violation of R.C. 2925.11(A)(C)(1)(a). Jenkins pled not guilty to the charges and counsel was appointed for him. Subse quently, on September 19, 2018, Jenkins completed a proceeding on plea of g uilty form and the trial court held a change of plea hearing. Jenkins pled gu ilty to all three counts of the indictment, as charged. {¶3} There are no references to any plea negotiations, plea ag reements or recommended sentences in the “proceeding on plea of guilty” for m, the change ofLawrence App. No. 18CA27 3 plea hearing transcript, or the trial court’s subsequent judgme nt entry that was filed on September 24, 2018, to document Jenkins’ guilty pleas. Asid e from the trial court accepting Jenkins’ guilty pleas after he gave an allocuti on, the only

discussion that took place on the record i nvolved an agreement that the sentencing date would be set two weeks later, on October 10, 2018, and tha t Jenkins would be granted a furlough to visit his ailing father. The hearing tra nscript indicates the trial court warned Jenkins that if he failed to appear for sent encing, he could be indicted for fourth-degree felony failure to appear, and that t he sentence on that new charge would be ordered to run consecutive to the sentences imposed in the

current case. {¶4} The sentencing hearing transcript filed on October 10, 20 18, indicates that Jenkins failed to appear for sentencing. As such, the tri al court issued a warrant for his arrest. It appears from the record that Jenkin s was eventually arrested and brought before the trial court for sentencing on N ovember 27, 2018. During the sentencing hearing, Jenkins was also arraigned on tw o newly filed cases. First, Jenkins was arraigned on new counts of tampering with evidence and aggravated possession of drugs. He was also indicted for failu re to appear as a result of his failure to appear at his October 10, 2018, senten cing hearing. Jenkins pled not guilty to the new charges.Lawrence App. No. 18CA27 4 {¶5} The trial court then proceeded to sentence Jenkins on the three counts to which Jenkins had already pled guilty. The State requested that Jenkins be sentenced to seventeen months in prison for trafficking in drug s, thirty months in prison for tampering with evidence, and eleven months in prison for possession of drugs. The State requested that the first two prison terms run consecutively to one another and that the third prison term run concurrent to the fi rst two terms, for an aggregate prison term of forty-seven months. In response, defe nse counsel argued

as follows: Your Honor, Mr. Jenkins pled guilty to the three counts in, um, connection to a an agreed to, um, sentence of two years on that . . . on . . . for on a total commitment of two years on that matter with the other matter, not 483, but 425, to be dismissed without re-re- . . . without his being arraigned on that matter. Umm the State is not . . . ha s not only asked for more time than it agreed to, they have also arraigned him on that matter and filed a failure to appear charge. I think that that’s fun- . . . offends fundamental, um, notions of fairness. That they both punish him through filing the failure to appear, and obviously their [ sic] going to seek prison time on that, and violating their previous agree ment. * * * Um, I don’t think that’s fair. We’re going to ask that he be sentenced to the two years. * * * I don’t think that the State can both g o back onLawrence App. No. 18CA27 5 the deal in terms of the sentencing and go forward with these o ther charges. So, we believe the two year sentence is appropriate. In response, the State argued as follows: The court is certainly aware that at the time of the guilty ple a he was ordered to appear for sentencing on October 10 th . He failed to do so. He’s failed to abide by his part of the agreement and, uh, that ’s the reason that, uh, he’s in the condition he’s in now. The trial court ultimately sentenced Jenkins consistent with th e State’s request and imposed a total prison sentence of forty-seven months. It is f rom the trial court’s final judgment entry that Jenkins now brings his timely appeal, setting forth a single assignment of error for our review.

ASSIGNMENT OF ERROR

I. “THE TRIAL COURT FAILED TO ENFORCE THE PLEA AGREEMENT IN WHICH THE STATE WAS TO RECOMMEND A TWO-YEAR SENTENCE BUT FAILED TO DO SO.”

LEGAL ANALYSIS {¶6} In his sole assignment of error, Jenkins contends the tri al court failed to enforce a plea agreement in which the State was supposed to rec ommend a twoyear prison sentence, but ultimately failed to do so. Jenkins argues that the State failed to abide by the terms of the plea agreement by failing t o recommend the agreed two-year sentence and as s uch, he should have been permi tted to seek theLawrence App. No. 18CA27 6 relief of either rescission or specific performance. Jenkins f urther argues, however, that he “was not permitted to withdraw his guilty plea (rescission) or to ask for a recommendation of two-years imprisonment (specific pe rformance).” In response, the State admits that “defense counsel and the state of Ohio negotiated a proposed plea agreement: a recommended two-year ‘flat’ sentenc e.” However, the State argues that Jenkins breached the plea agreement by fa iling to appear for sentencing, thereby relieving the State of its obligations unde r the plea agreement. {¶7} We initially note that contrary to Jenkins’ argument that he was not permitted to withdraw his guilty plea, the record before us fai ls to demonstrate that he moved the court for withdrawal of his plea. Further, contra ry to Jenkins’ argument that he was not permitted “to ask for a recommendation of two-years imprisonment (specific performance)[,]” he did ask the court to impose a two-year sentence, explaining that the State’s agreement to recommend a two-year sentence was a term of the plea agreement. However, the trial court imp licitly denied that request when it proceeded to sentence Jenkins to an aggregate p rison term of fortyseven months. Thus, we conclude the issue presently before us simply involves the question of whether the trial court erred in failing to enforce the terms of a plea agreement where each party alleged the other party breached the terms. {¶8}This Court has explained that although we have applied a d e novo standard of review when a plea agreement’s terms were contained in anLawrence App. No. 18CA27 7 unambiguous, written document, an abuse of discretion standard is the appropriate standard when dealing with a plea agreement that is not contain ed in an unambiguous, written document. State v. Dowler , 4th Dist. Athens No. 15CA7, 2015-Ohio-5027, ¶ 20, citing State v. Blair , 4th Dist. Scioto No. 11CA3429, 2012- Ohio-769, ¶ 16. We conclude that an alleged verbal agreement, which in this case was never made a part of the record, lends itself to an abuse o f discretion standard

of review rather than a de novo standard of review. An abuse o f discretion is an unreasonable, arbitrary, or unconscionable use of discretion, i ncluding an action that no conscientious judge could honestly have taken. Dowler at ¶ 19, citing State

v. Kirkland , 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 67; State v.

Scott , 4th Dist. Washington No. 15CA2, 2015-Ohio-4170, ¶ 37. {¶9} “Principals of contract law are generally applicable to t he interpretation and enforcement of plea agreements.” State v. Bethel , 110 Ohio St.3d 416, 2006- Ohio-4853, 854 N.E.2d 150, ¶ 50. “[W]hen a plea rests in any s ignificant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement 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). “[I] f one side breaches the agreement, the other side is entitled to either re scission or specific performance of the plea agreement.” State v. Grier , 3d Dist. Crawford No. 3-10- 09, 2011-Ohio-902, ¶ 18, citing State v. Walker , 6th Dist. Lucas No. L-05-1207,Lawrence App. No. 18CA27 8 2006-Ohio-2929, ¶ 13. “The essential elements of a contract ar e an offer, acceptance, contractual capacity, c onsideration (t he bargained for legal benefit and/or detriment), manifestation of mutual assent, and legality of the object and

consideration.” State v. Moore , 4th Dist. Adams No. 13CA965, 2014-Ohio-3024, ¶ 15, citing Williams v. Ormsby , 131 Ohio St.3d 427, 2012-Ohio-690, 966 N.E.2d 255, ¶ 14; Kostelnik v. Helper , 96 Ohio St.3d 1, 2002-Ohio-2985, 770 N.E.2d 58, ¶ 16. As we explained in State v. Dowler : To determine whether a plea agreement has been breached, courts examine what the parties reasonably understood at the time the defendant entered his guilty plea; that is, we must identify th e terms of the plea agreement before we can determine if the state breache d the agreement. State v. Dowler, supra, at ¶ 23, citing State v. Walsh , 5th Dist. Licking No. 14-CA110, 2015-Ohio-4135, ¶ 18. {¶10} Crim.R. 11(F) requires that in negotiated plea cases, “t he underlying agreement upon which the plea is based shall be stated on the r ecord in open court.” The Supreme Court of Ohio has observed, however, that “[p]rudence also dictates that a plea agreement be in writing.” State v. Billingsley , 133 Ohio St.3d 277, 2012-Ohio-4307, 978 N.E.2d 135, ¶ 25. As noted above, the re was no mention of a plea agreement in the record until it was referenc ed by defenseLawrence App. No. 18CA27 9 counsel at the sentencing hearing. Thus, the plea agreement wa s not stated on the record in open court as required by Crim.R. 11(F). Nor was the plea agreement contained in the proceeding upon guilty plea form. If the plea agreement was put into writing in some form, it was not made a part of the record

. {¶11} In State v. Darnell , this Court held that a plea agreement that “had not been accepted by the trial court or entered on th e record” was unenforceable. State

v. Darnell , 4th Dist. Gallia No. 02CA15, 2003-Ohio-2775, ¶ 1. In Darnell , the defendant entered into a signed plea agreement with the State i n which he agreed to provide a signed statement regarding his knowledge of the in cident at issue and also agreed to undergo a polygraph examination in exchange for a recommended

sentence and other incarceration terms. Id. at ¶ 2. The State later expressed its intention to prosecute fully after Darnell refused to take the polygraph test. Id. at ¶ 3. The trial court denied Darnell’s motion to enforce the pl ea agreement, determining that “it lacked authority to enforce the agreement since no plea agreement or negotiated plea had been stated on the record in o pen court.” Id. at ¶ 4. Darnell then entered into another negotiated plea agreeme nt with the State and appealed the trial court’s denial of the original plea agreemen t. Id. This Court concluded that Darnell did not have an enforceable argument unt il 1) he entered his plea; 2) the trial court accepted his plea; and 3) the trial co urt accepted the underlying agreement upon which the plea was based. Id. at ¶ 9. In reaching ourLawrence App. No. 18CA27 10 decision, we reasoned that Darnell’s argument “ignore[d] the co urt’s role in the bargaining process” in that “ ‘[t]he final judgment on whether the plea bargain shall be accepted must rest with the trial judge.’ ” Id. , quoting City of Akron v. Ragsdale , 61 Ohio App.2d 107, 109, 399 N.E.2d 119 (1978). {¶12} In reaching our holding, we further reasoned as follows: It is well accepted that the tria l court has the discretion to accept or reject a plea agreement. In re Disqualification of Mitrovich (1990), 74 Ohio St.3d 1219, 1220, 657 N.E.2d 1333, citing City of Akron v. Ragsdale (1978), 61 Ohio App.2d 107, 399 N.E.2d 119. See also, State

v. Jewell (Jan. 24, 1995) Meigs App. Nos. 94CA04, 94CA05; In re

Daniel E. (1997), 122 Ohio App.3d 139, 701 N.E.2d 408; State v. Vega , Hamilton App. No. C-020486, 2003-Ohio-1548. Thus, any plea agreement between the state and a defendant is implicitly condi tioned on the trial court's acceptance of that agreement. Until the t rial court accepts the plea agreement, the a greement is unenforceable. See State v. Stanley , Mahoning App. No. 99-C.A.-55, 2002-Ohio-3007 (stating in a general discussion of negotiated plea agreements, that a p lea agreement “is not binding until accept ed by the court.”) Crim.R. 11(F) provides: “When, in felony cases, a negotiated plea of guilty or no contest to one or more offenses charged or to oneLawrence App. No. 18CA27 11 or more other or lesser offenses is offered, the underlying agr eement upon which the plea is based shall be stated on the record in o pen court.” Under Crim.R. 11(F), the parties are required to state the plea agreement on the record at the time the defendant enters his gu ilty or no contest plea. Thus, the plea agreement is presented to the court for its approval at the time the defendant enters his plea. By acc epting the defendant's guilty or no contest plea, the court accepts the un derlying plea agreement. See State v. Burchfield (1997), 118 Ohio App.3d 53, 691 N.E.2d 1096 (finding that an unsigned plea agreement that h ad been neither stated on the record nor approved by the court was unenforceable.) Darnell, supra , at ¶ 7-8. Thus, following the dictates of this Court’s prior precedent set forth in Darnell , we conclude that here, because the plea agreement alleged by Jenkins, and not disputed by the State, was neither stated upon the record in open court nor put into writing, it was unenforceable

. {¶13} Although Jenkins entered guilty pleas and the trial cour t accepted those pleas , unlike in Darnell , there is no indication that the trial court accepted or approved the underlying agreement upon which the pleas were bas ed, as required by Crim.R. 11(F). Further, it is not obvious from the record t hat Jenkins entered his guilty pleas pursuant to a negotiated plea agreement. None of the charges inLawrence App. No. 18CA27 12 the case were dismissed or reduced. The Supreme Court of Ohio has cautioned courts that not “every plea of guilty is the result of a negoti ated plea agreement

* * *.” State v. Dye , 127 Ohio St.3d 357, 2010-Ohio-5728, 939 N.E.2d 1217, ¶ 25. Additionally, even if the terms of the plea agreement had been stated upon the record in open court during Jenkins’ change of plea hearing, it is well settled that “when a defendant enters a guilty plea in exchange for the prosecutor’s promise to recommend a certain sentence, t here is an implied condition that the circumstances surrounding the bar gain will remain substantially the same; a substantial change in the circumstances is sufficient to relieve the state of its obligat ion.”

State v. Dowler , supra , at ¶ 26, quoting State v. Bembry , 7 th Dist. Columbiana No. 13CO33, 2014-Ohio-5498, ¶ 22; see also State v. Hill , 10 th Dist. Franklin No. 12AP-463, 2013-Ohio-674, ¶ 20, citing State v. Pascall , 49 Ohio App.2d 18, 20, 358 N.E.2d 1368 (9th Dist. 1972). {¶14} Of importance, “courts have held that implicit in a plea agreement is a promise by the defendant to appear at the sentencing hearing, a nd that a defendant breaches a plea agreement when the defendant fails to appear at the sentencing hearing.” State v. McCartney , 12th Dist. Clinton No. CA2005-03-008, 2005-Ohio5627, ¶ 10, citing State v. Adkins , 161 Ohio App.3d 114, 2005-Ohio-2577, 829 N.E.2d 729, ¶ 8 and State v. Hess , 4th Dist. Adams No. 515, 1991 WL 286052, *6Lawrence App. No. 18CA27 13 (Dec. 24, 1991). Here, the only agreement that was put on the record in open court was that the sentencing hearing would be set two weeks later so that Jenkins could be furloughed to spend time w ith his father who was ill. Befor e concluding the change of plea hearing, the trial court warned Jenkins as follo ws: Now here’s the problem. If y ou don’t s how back up on ten ten w ith a recognizance bond at nine a.m., the State can indict you for fa ilure to appear. It’s a felony of the fourth degree, but whatever the s entence is in that new charge, if there is a new charge, I have to tack on or make consecutive, uh, to what’s going to happen in the other, uh, th ree indictments in 18-CR-359.” When Jenkins failed to appear for his sentencing hearing, the t rial court issued a

warrant for his arrest. He was not sentenced until he was arre sted on the warrant seven weeks later. We believe that even if the plea agreement here had been stated on the record in open court in accordance with Crim.R. 11(F), J enkins’ failure to appear for sentencing constituted a breach of the plea agreemen t which relieved the State of its obligation to recommend a two-year sentence. {¶15} Moreover, even if the State had recommended the agreed-upon twoyear sentence, “the terms of a plea agreement are not binding o n a trial court.”

State v. Russell , 4th Dist. Meigs No. 15CA11, 2016-Ohio-5290, ¶ 10, citing State v. Liskany , 196 Ohio App.3d 609, 2011-Ohio-4456, 964 N.E.2d 1073, ¶ 190; StateLawrence App. No. 18CA27 14

v. Burks , 10th Dist. Franklin No. 04AP-531, 2005-Ohio-1262 at ¶ 18; State v.

Darnell , supra , at ¶ 7; see also State v. Dowler , supra , at ¶ 30 and State v. Hitt , 9th Dist. Summit No. 29048, 2019-Ohio-2201, ¶ 14 (stating that “it is well settled that a trial court is not bound by the terms of a plea agreement and it has a discretion to depart from the State’s sentencing recommendation.”). Stated a nother way, in

Russell , supra , we observed that “this Court and others have held that punish ment is not subject to negotiated pleas.” Russell at *3. {¶16} In light of the foregoing, we reject Jenkins’ argument t hat the trial court erred in failing to enforce the plea agreement. Thus, we find no merit in the sole assignment of error raised on appeal. Accordingly, the ju dgment of the trial

court is affirmed.

JUDGMENT AFFIRMED.Lawrence App. No. 18CA27 15

JUDGMENT ENTRY

It is ordered that the JUDGMENT BE AFFIRMED and costs be asses sed to Appellant. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court d irecting the Lawrence County Common Pleas Court to carry this judgment into execution. IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRA NTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exc eed sixty days upon the bail previously posted. The purpose of a continued st ay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is contin ued by this entry, it will terminate at the earlier of the expiration of the sixty da y period, or the failure of the Appellant to file a notice of appeal with the Supreme Co urt of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will ter minate as of the date of such dismissal. A certified copy of this entry shall constitute the mandate pu rsuant to Rule 27 of the Rules of Appellate Procedure. Abele, J. & Hess, J.: Concur in Judgment and Opinion. For the Court,

_____________________________ Jason P. Sm ith Presiding Judge NOTICE TO COUNSEL Pursuant to Local Rule No. 14, this document constitutes a fin al judgment entry and the time period for further appeal commences from the date of filing with the clerk.