2022 Ohio 3973
Ohio Ct. App.2022Background
- Ivan Cortes pleaded guilty to attempted rape (victim his daughter) and gross sexual imposition (victim his niece); other counts were dismissed under the plea agreement.
- At plea hearing the State said it would argue for 8 years on attempted rape and a concurrent 5 years on the GSI count (i.e., a total recommendation of 8 years); sentencing would follow a presentence investigation.
- The trial court held a corrected plea colloquy after erroneously advising Cortes he faced an indefinite sentence; the correction reduced potential exposure and did not change the State’s recommendation.
- Cortes failed to appear for two scheduled sentencing hearings; warrants issued and sentencing was delayed ~4 months.
- At the eventual sentencing the State changed its recommendation and asked that the GSI term run consecutive because Cortes failed to appear; Cortes did not object or withdraw his plea.
- The court sentenced Cortes to 7 years (attempted rape) + 4 years (GSI) consecutive (total 11 years), making the statutory findings for consecutive terms; Cortes appealed arguing the State breached the plea agreement and the court erred.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the State breached the plea agreement by recommending consecutive sentences at sentencing and whether the trial court erred by imposing consecutive terms | The State may withdraw its earlier recommendation after changed circumstances (defendant’s failures to appear); trial court properly exercised discretion | Cortes contends the State was bound to its plea-time recommendation of concurrent terms and the court abused discretion by imposing an 11‑year consecutive sentence | Court affirmed: defendant’s failures to appear altered the circumstances, excusing the State’s recommendation; court’s consecutive-sentence findings were stated and supported |
Key Cases Cited
- Santobello v. New York, 404 U.S. 257 (1971) (prosecutor must honor plea promises that induced a plea)
- State v. Payne, 114 Ohio St.3d 502 (2007) (plain-error standard and burden to show outcome affected)
- State v. Rogers, 143 Ohio St.3d 385 (2015) (Crim.R. 52(B) plain-error principles and narrow application)
- State v. Barnes, 94 Ohio St.3d 21 (2002) (definition of plain error affecting substantial rights)
- State v. Long, 53 Ohio St.2d 91 (1978) (cautionary standard for noticing plain error)