State v. Thomas, 2013 Ohio 5365

Tymika Thomas was indicted on multiple felonies, including aggravated robbery, robbery, aggravated burglary, two counts of burglary, theft offenses, and obstructing justice.
Thomas pled guilty to one count of robbery, one count of burglary (R.C. 2911.12(A)(1)), and one count of obstructing justice; remaining counts were nolle prossed.
At the plea hearing the court and prosecutor discussed that robbery and burglary arose from the same conduct and would merge at sentencing; obstructing justice would not merge.
The prosecutor stated at sentencing that a prior prosecutor had agreed to recommend a three-year prison term and, though not personally involved in negotiations, he would honor that prior recommendation.
The trial court acknowledged the State’s three-year recommendation but imposed concurrent sentences of five years for robbery, five years for burglary, and nine months for obstructing justice (aggregate five years), and ordered $24,700 restitution.
On appeal the court considered (1) whether the State breached the plea agreement by offering the recommendation with explanatory qualifications, and (2) whether the trial court committed plain error by failing to merge robbery and burglary despite prior agreement they should merge.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Did the State breach the plea agreement by giving the recommended 3‑year sentence with qualifications?	State: It merely explained circumstances of negotiation; gave the agreed recommendation; no breach.	Thomas: The recommendation was given reluctantly with reservations, breaching the plea bargain.	No breach: prosecutor honored prior recommendation; lack of enthusiasm does not constitute breach.
Did the trial court plain‑err in failing to merge robbery and burglary?	State (raised on appeal): Court failed to merge allied offenses as agreed.	Thomas: (did not object at sentencing) but plea hearing indicated merger should occur.	Plain error found: court failed to merge robbery and burglary; remand required for state election and new sentencing.
Remedy for merger error	State: (implicitly) retrial of sentencing to merge and re‑sentence.	Thomas: Benefit of merger and single sentence.	Remand: state elect which allied offense to pursue; trial court to merge and impose sentence for elected offense.
Was Santobello breach precedent controlling here?	State: Santobello distinguishable because State in this case made the recommendation.	Thomas: Relies on Santobello to argue plea‑promise violation.	Santobello distinguished; breach in Santobello involved a promise not to recommend.

Santobello v. New York, 404 U.S. 257 (1971) (when plea rests on prosecutor promise, the promise must be fulfilled)
State v. Mathews, 8 Ohio App.3d 145 (1983) (remedy for plea breach: allow plea withdrawal or require state to fulfill bargain)
United States v. Benchimol, 471 U.S. 453 (1985) (prosecutor’s lack of enthusiastic advocacy does not automatically constitute breach)
State v. Underwood, 124 Ohio St.3d 365 (2010) (imposition of multiple sentences for allied offenses of similar import is plain error)
State v. Whitfield, 124 Ohio St.3d 319 (2010) (on reversal for multiple punishments for allied offenses, state must elect which offense to pursue)
State v. Yarbrough, 95 Ohio St.3d 227 (2002) (plain‑error standard requires obvious error that affected substantial rights)