[Cite as State v. Penrod, 2017-Ohio-7732.]

COURT OF APPEALS 

LICKING COUNTY, OHIO 

FIFTH APPELLATE DISTRICT 

STATE OF OHIO 

 Plaintiff-Appellee 

-vsDAVID E. PENROD, JR. 

 Defendant-Appellant 

JUDGES: 

: Hon. Patricia A. Delaney, P.J. 

: Hon. W. Scott Gwin, J. 

: Hon. John W. Wise, J. 

: 

: 

: Case No. 16-CA-83 

: 

: 

: O P I N I O N 

CHARACTER OF PROCEEDING: Criminal appeal from the Licking County 

Court of Common Pleas, Case No. 

15CR483 

JUDGMENT: Affirmed 

DATE OF JUDGMENT ENTRY: September 19, 2017 

APPEARANCES: 

For Plaintiff-Appellee For Defendant-Appellant 

WILLIAM HAYES KEVIN GALL 

Licking County Prosecutor Burkett & Sanderson, Inc. 

South Second Street 73 North Sixth Street 

Newark, OH 43055 Newark, OH 43055 
Licking County, Case No. 16-CA-83 2 

Gwin, J., 

{¶1} Defendant-appellant David E. Penrod, Jr. [“Penrod”] appeals his convictions 

and sentences after a guilty plea in the Licking County Court of Common Pleas. 

Facts and Procedural History 

{¶2} The Licking County Grand Jury returned a four count indictment against the 

Penrod charging Engaging in a Pattern of Corrupt Activities, a felony of the second degree 

pursuant to R.C. 2923.32(A)(1); Robbery a felony of the third degree in violation of 

2911.02(A)(3); Burglary a felony of the third degree in violation of 2911.12(A)(3) and 

Receiving Stolen Property in violation of 2913.51(A)(C) a felony of the fourth degree. 

{¶3} On October 5, 2016, Penrod entered guilty pleas to all counts of the 

indictment and was sentenced to a total of 13 years and 3 months in prison. 

{¶4} On October 18, 2016, previously appointed counsel filed an appeal on 

Penrod's behalf. On December 1, 2016, appellant’s counsel filed a brief pursuant to

Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493(1967) as well as a 

Motion to Withdraw. 

{¶5} This Court then provided Penrod the opportunity to file a pro se brief in 

support of his appeal, which he did on January 27, 2017. On April 5, 2017, this Court 

granted previous counsel's Motion to Withdraw and remanded the matter back to trial 

court with orders to appoint counsel for the purpose of submitting a merit brief based on 

the findings that the matters raised in Penrod's pro se brief were not wholly frivolous. 

Assignment of Error 

{¶6} Penrod raises two assignment of error, 
Licking County, Case No. 16-CA-83 3 

{¶7} “I. THE DEFENDANT-APPELLANT WAS DENIED THE EFFECTIVE 

ASSISTANCE OF TRIAL COUNSEL. 

{¶8} “II. THE DEFENDANT-APPELLANT’S PLEA WAS NOT ENTERED 

KNOWINGLY OR INTELLIGENTLY.” 

I. 

{¶9} In his First Assignment of Error, Penrod contends that he was denied the 

effective assistance of trial counsel due to the failure of his attorney to inform him that the 

trial court was not bound to adopt any jointly recommended sentence of the parties or any 

prior sentencing recommendation made by the state at the pre-trial stages. 

{¶10} A claim of ineffective assistance of counsel requires a two-prong analysis. 

The first inquiry is whether counsel's performance fell below an objective standard of 

reasonable representation involving a substantial violation of any of defense counsel's 

essential duties to appellant. The second prong is whether the appellant was prejudiced 

by counsel's ineffectiveness. Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838, 122 

L.Ed.2d 180(1993); Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 

674(1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373(1989). 

{¶11} In order to warrant a finding that trial counsel was ineffective, the petitioner 

must meet both the deficient performance and prejudice prongs of Strickland and Bradley. 

Knowles v. Mirzayance, 556 U.S. 111, 129 S.Ct. 1411, 1419, 173 L.Ed.2d 251(2009). 

{¶12} A plea agreement is generally “contractual in nature and subject to contractlaw standards.” State v. Butts, 112 Ohio App.3d 683, 679 N.E.2d 1170 (8th Dist. 

Cuyahoga 1996). Plea agreements should be construed strictly against the government. 

United States v. Fitch, 282 F.3d 364 (6th Cir. 2002). “When a plea rests in any significant 
Licking County, Case No. 16-CA-83 4 

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, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). “When an allegation is made that a 

plea agreement has been broken, the defendant must merely show that the agreement 

was not fulfilled.” State v. Legree, 61 Ohio App.3d 568, 573 N.E.2d 687 (6th Dist. 1988). 

A prosecutor's failure to comply with the terms of the plea agreement may, in some 

circumstances, render a defendant's plea involuntary and undermine the constitutionality 

of a conviction based upon that plea. Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 

52 L.Ed.2d 136 (1977). 

{¶13} The intent of the parties to a contract presumptively resides in the ordinary 

meaning of the language employed in the agreement. Kelly v. Med. Life Ins. Co., 31 Ohio 

St.3d 130, 509 N.E.2d 411 (1987). Contractual language giving rise to doubt or ambiguity 

must be interpreted against the party who used it. Graham v. Drydock Coal Co., 76 Ohio 

St.3d 311, 667 N.E.2d 949 (1996). In order to determine whether a plea agreement has 

been breached, courts must examine what the parties reasonably understood at the time 

the defendant entered his guilty plea. See United States v. Partida–Parra, 859 F.2d 629 

(9th Cir. 1988). Therefore, we must identify the terms of the purported plea agreement 

before we can determine if the state or the trial court breached the agreement. State v. 

Winfield, 5th Dist. Richland No. 2005–CA–32, 2006–Ohio–721. 

{¶14} A review of the record in the case at bar indicates that no plea bargain 

concerning Penrod’s sentence was reached between the state and Penrod. The 

document relied upon by Penrod to establish his argument is insufficient to establish a 

contract between the state and Penrod. The document is simply a “Pretrial Entry.” The 
Licking County, Case No. 16-CA-83 5 

trial judge, presumably, entered his handwritten notes upon this pre-printed form. The 

entry provides in relevant part, 

11. Sentencing Factors: [Defendant] has felony convictions in 3 

states; 2 prior prisons, warrant for FTA; thefts, burgs, etc. 

12. Other: These cases arise from Del, Fair., Frank, & Lick Co. 

stealing & pawning Hoover vacuums, about 16K; 3 other acts in LC. Also 

[Prosecutor] suggests a long prison term (8 years). 

Pretrial Entry, Filed Apr. 22, 2016.

{¶15} The entry contains no language specific enough to establish the intent of 

the parties to establish a contract, or a meeting of the minds concerning the terms and 

conditions of the contract. Accordingly, nothing in the document can be construed as 

creating a contractual obligation by the state or the trial court to sentence Penrod to a 

specific sentence in exchange for his guilty pleas. To the contrary, the four written plea 

agreements signed by Penrod and his attorney contain no promises concerning the 

sentence the trial judge could impose for each offense or a promise by the state to 

recommend a particular sentence in Penrod’s case. Further, both the state and Penrod 

argued extensively at the sentencing hearing advocating the respective positions of the 

parties concerning the imposition of sentence. No agreement was referenced at any time 

during the arguments. Penrod told the trial judge that no promises had been made to 

induce his plea. The trial court was entitled to rely upon that representation especially 

when as here, Penrod did not object in open court after his sentence was announced. 

{¶16} In any event, trial courts may reject plea agreements and they are not bound 

by a jointly recommended sentence. See State ex rel. Duran v. Kelsey, 106 Ohio St.3d 
Licking County, Case No. 16-CA-83 6 

58, 2005-Ohio-3674, 831 N.E.2d 430, ¶ 6; State v. Underwood, 124 Ohio St.3d 365, 2010-

Ohio-1, 922 N.E.2d 923, ¶28. 

{¶17} We find no evidence in the record to establish that the state or the trial judge 

agreed to recommend or impose a specific sentence in Penrod’s case. 

{¶18} To the extent that Penrod contends that he mistakenly believed he would 

receive a sentence of eight years by the trial court, we find nothing in the record to 

establish such a belief. In State v. Hooks, 92 Ohio St.3d 83, 2001-Ohio-150, 748 N.E.2d 

528(2001), the Supreme Court noted, “a reviewing court cannot add matter to the record 

before it that was not a part of the trial court's proceedings, and then decide the appeal 

on the basis of the new matter. See, State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 

500(1978).” It is also a longstanding rule "that the record cannot be enlarged by factual 

assertions in the brief.” Dissolution of Doty v. Doty, 4th Dist. No. 411, 1980 WL 350992 

(Feb. 28, 1980), citing Scioto Bank v. Columbus Union Stock Yards, 120 Ohio App. 55, 

59, 201 N.E.2d 227(1963). New material and factual assertions contained in any brief in 

this court may not be considered. See, North v. Beightler, 112 Ohio St.3d 122, 2006-

Ohio-6515, 858 N.E.2d 386, ¶7, quoting Dzina v. Celebrezze, 108 Ohio St.3d 385, 2006-

Ohio-1195, 843 N.E.2d 1202, ¶16. 

{¶19} For all the foregoing reasons, Penrod’s First Assignment of error is 

overruled. 

II. 

{¶20} In his Second Assignment of Error, Penrod argues that by not being 

adequately informed by his trial counsel and by the trial court that it was not bound to 
Licking County, Case No. 16-CA-83 7 

adopt any sentencing recommendations, he did not enter a knowing and intelligent guilty 

plea. 

{¶21} As we have found in our disposition of Penrod’s First Assignment of Error, 

there exists no evidence that a sentencing recommendation or an agreement to a specific 

sentence was entered into between the state and Penrod. 

{¶22} The trial court and his counsel’s representations concerning his potential 

sentence did not mislead Penrod. Accordingly, contrary to Penrod’s assertions, defense 

counsel and the trial court's statements were accurate explanations about his potential 

sentences upon the acceptance of his pleas. Because there was no agreement, and no 

sentencing recommendation, the trial court had no obligation to inform Penrod that it was 

not bound to follow the state’s sentencing recommendation. In the alternative, because 

there is no evidence that an agreement was reached, Penrod cannot establish prejudice 

as a result of any failure of the trial court to tell him that the court was not obligated to 

follow a sentencing recommendation of the state. 

{¶23} Therefore, defense counsel and the trial court's advice about Penrod’s 

potential sentences rights did not render his guilty plea involuntary, unintelligent or 

unknowing. 

{¶24} Penrod’s Second Assignment of Error is overruled. 
Licking County, Case No. 16-CA-83 8 

{¶25} The judgment of the Licking County Court of Common Pleas is affirmed. 

By Gwin, J., 

Delaney, P.J., and 

Wise, J., concur