[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 Willis, Assistant 

Scioto County Prosecuting Attorney, Portsmouth, Ohio, for Appellee. 

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 court’s judgment. 

{¶2} In 2017, the State charged Anderson with a three-count indictment: 

(1) trafficking in cocaine in violation of R.C. 2925.03(A)(2) and (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 conditions, 

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 then pleaded guilty to 

trafficking in cocaine with a recommended three-year sentence. 

{¶4} On September 12, 2017, the court held a sentencing hearing in which 

the Judge recognized that “[Anderson] pled guilty to a felony of 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 sentencing 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 relief alleging four 

claims: (1) he was denied his counsel of choice, (2) his counsel was ineffective, 

(3) the prosecutor committed misconduct by failing to disclose evidence that was 

favorable to Anderson, and (4) the trial court improperly sanctioned Anderson by 

punishing him by increasing his prison term for being late to sentencing and 

testing positive for marijuana. The trial court denied his petition without a hearing 

in an entry that was filed January 30, 2019. The trial judge found no evidence to 

support any of Anderson’s claims and consequently denied his petition. It is from 

this judgment that Anderson appeals, asserting a single assignment 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 when it 

denied him the relief of specific performance of the plea bargain, 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 to 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 violated the terms of 

his negotiated plea agreement the trial court’s imposition of the four-year prison 

term, which was within the statutory range permitted for Anderson’s offense, 

should be affirmed. 

{¶8} “ ‘[A] trial court’s decision granting or denying a postconviction 

petition filed pursuant to R.C. 2953.21 should be upheld absent an abuse of 

discretion; a reviewing court should not overrule the trial court's finding on a 

petition for postconviction relief that is supported by competent 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 applicable to petitions for 

postconviction relief in that the doctrine ‘bars claims for post-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 raised his 

breach-of-plea argument in his direct appeal of his criminal conviction, and 

Anderson does not argue that he was somehow prevented from doing so. 

Consequently, res judicata should have precluded the trial court 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 breached 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 the 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). However, a 

defendant’s breach of a plea agreement relieves the prosecutor of his or her 

obligation(s) under the agreement, such as recommending a particular sentence. 

State v. Adkins, 161 Ohio App. 3d 114, 2005-Ohio-2577, 829 N.E.2d 729, ¶ 4,7 
Scioto App. No. 19CA3871 5

(4th Dist.). A defendant’s failure to abide by conditions of bond, 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 recommend a 

certain sentence or to make no recommendation regarding sentencing, 

punishment is a matter either determined expressly by statute or 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 drugs pursuant to his 

bond agreement. As a result, the trial court imposed a four-year 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 for 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 assessed 

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 directing the 

Scioto County Common Pleas Court to carry this judgment into execution. 

 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 sixty 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 during the pendency 

of proceedings in that court. If a stay is continued by this entry, it will terminate at 

the earlier of the expiration of the sixty-day period, or the failure of the Appellant 

to file a notice of appeal with the Supreme Court 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 terminate as of the date of such 

dismissal. 

 A certified copy of this entry shall constitute the mandate pursuant to Rule 

27 of the Rules of Appellate Procedure. 

Smith, P.J. & Abele, J.: Concur in Judgment and Opinion. 

For the Court, 

 BY: ______________________________ 

 Michael D. Hess, Judge

NOTICE TO COUNSEL 

 Pursuant to Local Rule No. 14, this document constitutes a final 

judgment entry and the time period for further appeal commences from the 

date of filing with the clerk. 
Scioto App. No. 19CA3871 7