[Cite as State v. Anderson , 2020-Ohio-6912.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY STATE OF OHIO, : : Case No. 19CA3871 Plaintiff-Appellee, : : vs. : DECISION AND JUDGMENT : ENTRY KEQUAN D. ANDERSON : : Defendant-Appellant. : RELEASED 12/16/2020

_______________________________________________________________ _ APPEARANCES: Shane A. Tieman, Scioto County Prosecuting Attorney, and Jay Wi llis, Assistant Scioto County Prosecuting Attorney, Portsmouth, Ohio, for Appel lee. Kequan Anderson, Pro Se Appellant.

_______________________________________________________________ _ Hess, J. {¶1} This is an appeal from a Scioto County Court of Common Pleas judgment entry that denied Kequan Anderson’s petition for post- conviction relief. After reviewing the facts and the law, we affirm the trial cour t’s judgment. {¶2} In 2017, the State charged Anderson with a three-count indictme nt: (1) trafficking in cocaine in violation of R.C. 2925.03(A)(2) a nd (C)(4)(f), (2) possession of cocaine in violation of R.C. 2925.11(A) and (C)(4 )(e), and (3) possession of marijuana in violation of R.C. 2925.11(A) and (C) (3)(a). Pending sentencing, Anderson was released on bond subject to numerous c onditions, including that he refrain from using illegal drugs.Scioto App. No. 19CA3871 2 {¶3} In his plea agreement, Anderson acknowledged that he could be sentenced up to eleven years for trafficking in cocaine. He th en pleaded guilty to trafficking in cocaine with a recommended three-year sentence. {¶4} On September 12, 2017, the court held a sentencing hearing in w hich the Judge recognized that “[Anderson] pled guilty to a felony o f the first degree, a charge of trafficking in Cocaine, and it was a negotiated plea “ * * * that as long as he abided by the conditions of his bond, he would receive a three year mandatory prison term.” However, the Judge found that Anderson did not abide by the terms of his bond because he was late to appear for sent encing and he tested positive for marijuana. The Judge sentenced Anderson to a four-year prison term. {¶5} Anderson never filed a direct appeal. However, on June 6, 2018 , Anderson, acting pro se, filed a petition for post-conviction r elief alleging four claims: (1) he was denied his counsel of choice, (2) his counse l was ineffective, (3) the prosecutor committed mi sconduct by failing to disclose evidence that was favorable to Anderson, and (4) the trial court improperly sanct ioned Anderson by punishing him by increasing his prison term for being late to s entencing and testing positive for marijuana. The trial court denied his pet ition without a hearing in an entry that was filed January 30, 2019. The trial judge f ound no evidence to support any of Anderson’s claims and consequently denied his pe tition. It is from this judgment that Anderson appeals, asserting a single assignm ent of error.Scioto App. No. 19CA3871 3

ASSIGNMENT OF ERROR “THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED THE RELIEF OF SPECIFIC PERFORMANCE OF THE PLEA BARGAIN.” {¶6} Anderson asserts that the trial court abused its discretion whe n it denied him the relief of specific performance of the plea barga in, i.e. the court cannot punish a defendant for violating the conditions of bond by imposing a sentence that is greater than the sentence agreed to pursuant t o a plea bargain. {¶7} The State argues that Anderson’s petition was not timely filed. In pertinent part, the State also argues that because Anderson vio lated the terms of his negotiated plea agreement the trial court’s imposition of t he four-year prison term, which was within the statutory range permitted for Anders on’s offense, should be affirmed. {¶8} “ ‘[A] trial court’s decision granting or denying a postconvic tion petition filed pursuant to R.C. 2953.21 should be upheld absent an abuse of discretion; a reviewing court should not overrule the trial cou rt's finding on a petition for postconviction relief that is supported by compete nt and credible evidence.’ ” State v. Rinehart , 4th Dist. Ross No. 17CA3606, 2018-Ohio-1261, ¶ 10, quoting State v. Gondor , 112 Ohio St.3d 377, 2006–Ohio–6679, 860 N.E.2d 77, ¶ 58. And “the doctrine of res judicata is generally appli cable to petitions for postconviction relief in that the doctrine ‘bars claims for pos t-conviction relief based on allegations which the petitioner raised, or could have raised, in the trial court or on direct appeal .’ ” State v. Clark , 4th Dist. Highland No. No. 15CA12, 2016-Ohio-2705, ¶ 15, quoting State v. Howard, 4th Dist. Scioto No. 96CA2470,Scioto App. No. 19CA3871 4 1997 WL 46006 (Aug. 11, 1997), citing State v. Perry , 10 Ohio St.2d 175, 226 N.E.2d 104, at paragraph nine of the syllabus (1967). {¶9} Initially, we note that it appears that Anderson could have rai sed his breach-of-plea argument in his direct appeal of his criminal co nviction, and Anderson does not argue that he was somehow prevented from doin g so. Consequently, res judicata should have precluded the trial cour t from considering his petition on the merits, but it nevertheless did. Therefore , we will examine the merits of Anderson’s argument. {¶10} “A negotiated plea agreement is essentially a contract between the state and the defendant.” State v. Bush , 11th Dist. Trumbull No. 2004-T-0003, 2005-Ohio-1898, ¶ 21. “[W]hen a valid plea agreement is breach ed by the state, the trial court, within its sound discretion, may either allow the negotiated plea to be withdrawn, or may require the state to fulfill its end of th e bargain.” State v. Thompson , 4th Dist. Adams No. 3CA766, 2004-Ohio-2413, ¶ 12, citing State v. Mathews , 8 Ohio App.3d 145, 456 N.E.2d 539 (10th Dist. 1982), State v. Davenport , 116 Ohio App.3d 6, 10-11, 686 N.E.2d 531 (12th Dist. 1996), State v. Quinn , 2d Dist. Miami No. 02CA54, 2003-Ohio-5743, State v. Ford, 4th Dist. Lawrence App. No. 97CA32, 1998 WL 79885 (Feb. 18, 1998), State v. Woyan , 4th Dist. Athens No. 96 CA 1772, 1997 WL 426117 (July 21, 1997) , State v. Hess , 4th Dist. Adams No. 515, 1991 WL 286052 (Dec. 24, 1991). How ever, a defendant’s breach of a plea agreement relieves the prosecutor of his or her obligation(s) under the agreement, such as recommending a parti cular sentence. State v. Adkins , 161 Ohio App. 3d 114, 2005-Ohio-2577, 829 N.E.2d 729, ¶ 4,7Scioto App. No. 19CA3871 5 (4th Dist.). A defendant’s failure to abide by conditions of b ond, such as taking illegal drugs, results in a breach of the plea agreement. See State v. Billiter , 2018-Ohio-733, 106 N.E.3d 785, ¶ 26 (4th Dist.). {¶11} Further, [p]unishment, * * * is not subject to plea bargaining. State v. Minshall , 4th Dist. Meigs No. 93CA511, 1993 WL 472887, *3 (Nov. 9, 1993 ). “While the state may, pursuant to a plea agreement, agree to re commend a certain sentence or to make no recommendation regarding sentenc ing, punishment is a matter either determined expressly by statute o r lying with the sound discretion of the trial court.” Id ., citing State v. Mathews , 8 Ohio App.3d 145, 146, 456 N.E.2d 539 (10th Dist. 1982), State v. Morehouse , 4th Dist. Meigs No. 92CA478, 1993 WL 6564 (Jan. 14, 1993). {¶12} The record demonstrates that Anderson, not the State, breached the plea agreement by testing positive for marijuana while out on bond prior to sentencing, despite agreeing that he would not use illegal drug s pursuant to his bond agreement. As a result, the trial court imposed a four-ye ar prison sentence, instead of the agreed three-year sentence, which is well within the maximum eleven-year prison sentence that the court could have imposed f or trafficking. See State v. Johnson , 4th Dist. Scioto No. 14CA3612, 2016-Ohio-1070, ¶ 13. Under these circumstances we find that the trial court did not abuse its discretion in denying Anderson’s petition. {¶13} Accordingly, we affirm the trial court’s judgment denying Anderson’s petition for post-conviction relief. JUDGMENT AFFIRMED.Scioto App. No. 19CA3871 6

JUDGMENT ENTRY It is ordered that JUDGMENT BE AFFIRMED and that costs be asse ssed to Appellant. The Court finds there were reasonable grounds for Appellant’s petition. It is ordered that a special mandate issue out of this Court d irecting the Scioto County Common Pleas Court to carry this judgment into ex ecution. IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed s ixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay d uring the pendency of proceedings in that court. If a stay is continued by this e ntry, it will terminate at the earlier of the expiration of the sixty-day period, or the f ailure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in th e forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Pract ice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dism isses the appeal prior to expiration of sixty days, the stay will terminate as o f 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. Smith, P.J. & Abele, J.: Concur in Judgment and Opinion.

For the Court,

BY: ______________________________ Mic hael D. Hess, 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.Scioto App. No. 19CA3871 7