[Cite as State v. Gilroy , 195 Ohio App.3d 173, 2011-Ohio-4163.]

IN THE COURT OF APPEALS OF MONTGOMERY COUNTY, OHIO

THE STATE OF OHIO, : Appellee, : C.A. CASE NO. 24568

v. : T.C. CASE NO. 10CR3552/1 GILROY, : (Criminal Appeal from Common Pleas Court) Appellant. :

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

Rendered on the 19 th day of August, 2011.

. . . . . . . . . Mathias H. Heck Jr., Montgomery County Prosecuting Attorney, and Johnna M. Shia, Assistant Prosecuting Attorney, for appellee. Thomas W. Kidd Jr., for appellant.

. . . . . . . . .

G RADY , Presiding Judge. {¶ 1} Defendant, Nada Gilroy, a ppeals from her conviction a nd sentence for receiving stolen property. {¶ 2} Defendant was charged by indictment with receiving property stolen from Wal-Mart valued at over $500, a fifth-degree fe lony in violation of R.C. 2913.51(A). In a2 hearing held on March 1, 2011, the following colloquies occurred: {¶ 3} “THE COURT: Ms. Gilroy. {¶ 4} “Ms. Gilroy, by agreement you’re going to get community control sanctions also.

You understand there’s three conditions for that? {¶ 5} “Number one, you need to go the pre-sent ence folks and cooperate with that and be on time for that appointment. {¶ 6} “Number two, you need to be back in court on March 29th on time. {¶ 7} “And finally, you need to stay out of trouble between now and then, okay? {¶ 8} “THE DEFENDANT: Yes, sir. {¶ 9} “* * * {¶ 10} “THE COURT: Anyone threat en or force you to plead? {¶ 11} “THE DEFENDANT: No, sir. {¶ 12} “THE COURT: Any promises made to get you to plead, other than that you’re going to get community control, subject to the Court’s conditions? {¶ 13} “THE DEFENDANT: No, sir. {¶ 14} “* * * {¶ 15} “THE COURT: Now, if you get revoke d from community control sanctions, you would face a maximum time of prison for your felony, which is twelve months. {¶ 16} “Do you understand that? {¶ 17} “THE DEFENDANT: Yes, sir.” {¶ 18} After the admissions and advice require d by Crim.R. 11(C), the trial court accepted defendant’s guilty plea.3 {¶ 19} Defendant appeared for sentencing on March 29, 2011. The court noted that since her guilty plea on March 1, 2011, defenda nt had tested positive for cocaine and marijuana use. The court also noted that this was defendant’s 11th theft -related offense, that

she had been convicted of 29 misdemeanor offens es, and that her record contained “numerous pages” reporting misdemeanor char ges that had been dismissed. The court noted that “[t]he last time you were on supervision from this Court you were an absconder.” Id. After referring to the statutory purposes and princi ples of sentencing and the seriousness and recidivism factors, instead of community cont rol the court sentenced defendant to a 12-month prison term. {¶ 20} Defendant filed a notice of appeal fro m the judgment and conviction imposing her prison sentence.

FIRST ASSIGNMENT OF ERROR {¶ 21} “The court erred when it breached the term of the plea agreement and sentenced appellant to a maximum tw elve month prison term.” {¶ 22} A plea agreement is a contract between the prosecution and a criminal defendant, and is governed by pr inciples of contract law. State v. Adkins , 161 Ohio App.3d 114, 2005-Ohio-2577. If one side breaches the ag reement, the other side is entitled to rescission or specific performance. Santobello v. New York (1971), 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427; State v. Layman , Montgomery App. No. 22307, 2008-Ohio-759. When a trial court promises a certain sentence, the promise becomes an inducement to enter a plea, and unless that sentence is give n, the plea is not voluntary. Layman , citing State v. Triplett (Feb. 13, 1997), Cuyahoga App. No. 69237; State v. Bonnell , Clermont App. No.4 CA2001-12-094, 2002-Ohio-5882. {¶ 23} In support of her argument that the tr ial court breached the plea agreement by sentencing her to a prison term after promising her at the plea hearing that she would receive community control, defendant relies upon Bonnell and Layman . That reliance is misplaced, however, because those cases are distinguishable. {¶ 24} In Bonnell , the plea agreement stated that the defendant would not be sentenced to prison. The defendant failed to appear for sentencing. After the defendant was arrested in Tennessee and brought back before the court for sentencing, the trial court imposed a maximum 18-month prison term. The court of appeals concl uded that reversible error occurred because the trial court had expressl y promised the defendant that it would not sentence him to prison and then failed to perform on its promise without stating its intention to deviate from the terms of the plea agreem ent and without giving the defendant an opportunity to withdraw his plea due to the chan ge from the terms of the plea agreement. Id. {¶ 25} In Layman , the plea agreement stated that any prison term imposed would not

exceed seven months. The defendant failed to appear for sentencing. After the defendant

was arrested and returned to court for senten cing, the trial court im posed a ten-month prison

term. The trial court refuse d to be bound by the plea agreement limiting any prison term to

no more than seven months because the defendant had failed to appear for sentencing. In Layman, quoting from Bonnell , this court reversed the tria l court’s judgme nt and remanded the case for either imposition of the originally promised sentence or to allow the defendant to withdraw his plea. Id. {¶ 26} In the present case, unlike Bonnell or Layman , defendant was expressly told5 that she had to abide by three specific conditions in order to obtain the promised sentence of community-control sanctions. One of those thr ee conditions was that de fendant “stay out of trouble between now (plea hearing) and then (s entencing).” During the time period between her plea hearing and her sentenci ng, more specifically two weeks before sentencing, defendant tested positive for both marijuana and cocaine. {¶ 27} We reject defendant’s claim that her illegal use of controlled substances between the plea hearing and her sentencing did not violate the trial court’s condition that she “stay out of trouble” during that period. Clearly , the trial court’s c ondition encompasses and prohibits breaking the law, including illegal drug use, regardless of whether charges are brought. This case is more analogous to State v. Price , Hamilton App. No. C-030262, 2003-Ohio-7109, wherein the court of appeals he ld that the defendant, as the party who breached the plea agreement, voi ded the terms of the plea agreement and was not entitled to the agreed-upon sentence where he had been warned of the consequences for failing to appear for sentencing. {¶ 28} The trial court’s promise of community control was conditi oned on defendant’s agreement to comply with the three requirements that the court had attached to its promise. It was defendant, not the tr ial court, who breached the plea agreement by failing to abide by the court’s specific condition that she stay out of trouble between the plea hearing and her sentencing. Defendant’s breach relieved the tria l court of its duty to perform its promise to impose community-control sanctions. Under thos e circumstances, the trial court was free to impose any lawful sentence, which it did in this case. {¶ 29} Defendant’s first assignme nt of error is overruled.6

SECOND ASSIGNMENT OF ERROR {¶ 30} “The court erred in denyin g Ms. Gilroy her right to due process of law as guaranteed by the United States and Ohio Constitutions because her guilty plea was not entered knowingly, intellig ently and voluntarily.” {¶ 31} A guilty plea that is not knowing, intelligent, and voluntary does not comport with due process and violates the Ohio and United States Constitutions. State v. Engle (1996), 74 Ohio St.3d 525, 527, citing Kercheval v. United States (1927), 274 U.S. 220, 47 S.Ct. 582, 71 L.Ed. 1009. Compliance with Crim.R. 11(C)(2) in accepting guilty or no-contest pleas in felony cases portrays those qualities. State v. Bennett , Greene App. No. 2010CA0033, 2011-Ohio-961. {¶ 32} Defendant argues that as a result of the trial court’s breach of the plea agreement, her guilty plea was not knowing, intelligent, and voluntary. {¶ 33} As we explained in overruling defendant’s first assignment of error, the trial court did not breach its promise to senten ce defendant to community-control sanctions, because defendant’s failure to satisfy a c ondition on which the cour t’s promise was made relieved the court of its duty to perform. That did not render defendant’s guilty plea other than knowing and voluntary. Furthermore, it is abundantly clear from the record that defendant knew that the court’s promise was conditional and entered her guilty plea on that

basis. {¶ 34} Our review of defendant’s plea reveals that defendant was afforded a thorough hearing prior to entering her plea, and at that hearing, the trial court meticulously complied with Crim.R. 11(C)(2) in accepting defendant’s plea by advising her of all of the7 constitutional rights she was giving up by pleading guilty, as well as the nonconstitutional implications of her plea. Defendant’s guilty plea was entered knowingly, intelligently, and voluntarily. {¶ 35} Defendant’s second assignme nt of error is overruled.

THIRD ASSIGNMENT OF ERROR {¶ 36} “Ms. Gilroy was denied the effective assistance of couns el as guaranteed by the

United States and Ohio Constitutions.” {¶ 37} Counsel’s performance will not be d eemed ineffective unless and until counsel’s performance is proved to have falle n below an objective standard of reasonable representation and, in addition, prejudice arises from counsel’s performance. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674. To show that a defendant has been prejudiced by counsel ’s deficient performance, the defendant must affirmatively demonstrate to a reasonable probability that were it not for counsel’s errors, the result of the trial would have been different. Id.; State v. Bradley (1989), 42 Ohio St.3d 136. {¶ 38} Defendant argues that her trial counsel performed deficiently by failing to object when the trial court imposed a prison term rather than community-control sanctions promised at the plea hearing and by failing to move to withdraw defendant’s guilty plea when the trial court breached the plea agreement by imposing a prison term rather than community-control sanctions as pr omised at the plea hearing. {¶ 39} Our analysis of the prior assignments of error compels a conclusion that defendant was not prejudiced by her counsel’s alleged failure, because the court would have properly overruled as meritless the objection and/or motion defendant complains her attorney8

failed to file. Therefor e, ineffective assistance of counsel is not shown. {¶ 40} Defendant’s third assignment of error is overruled. Th e judgment of the trial

court is affirmed. Judgment affirmed.

F AIN and H ALL , JJ., concur.