State v. BonnerState v. Bonner
{¶ 1} Defendant-appellant, Michael K. Bonner, (hereinafter, “appellant“), appeals from the judgment of the Court of Common Pleas of Defiance County denying aрpellant‘s pre-sentence motion to withdraw a previously entered plea of guilty.
{¶ 2} This case involves several criminal charges and convictions against appellant. The procedural history and facts of this case are involved, and are as follows. In October 2000, appellant, in Case No. 00 CR 07807, was convicted of violating
{¶ 3} Although the plea agreement was not in writing and is not in the record before us, the state orally made the follоwing sentencing recommendation on the record at the August 15, 2001 plea hearing. In exchange for appellant‘s guilty plea in Case No. 01 CR 08040, the state recommended that appellant be sentenced to four (4) years of incarсeration in Case No. 01 CR 08040, fined one-thousand dollars ($1,000), have his driver‘s license suspended for a period of five (5) years, and further stated that it would not oppose judicial release for appellant after he served one yeаr in prison.
{¶ 4} The trial court, thereafter, accepted appellant‘s plea of guilty in Case No. 01 CR 08040. The trial court then released appellant subject to the terms of a recognizance bond (see
{¶ 5} Appellant, however, failed to appear for the sentencing hearing in Case No. 01 CR 08040. Consequently, the trial court issued a wаrrant for appellant‘s arrest, and in October 2001, indicted appellant for failure to appear, a felony of the fourth degree in violation of
{¶ 6} The sentencing hearing for Case No. 01 CR 08040 was eventually held on February 5, 2004. Prior to the sentencing hearing, appellant became aware that the state was no longer willing to endorse the terms of the August 15, 2001 plea agreement. In response, appellant, on the day of sentencing, filed a motion with the trial court to withdraw his guilty plea in Case No. 01 CR 08040. The trial court denied appellant‘s motion and proceeded to sentence appellant on all three convictions in Case Nos. 00 CR 07807, 01 CR 08040, and 01 CR 08123.
{¶ 7} In aggregate, appellant was sentenced to a term of seventy-five (75) months in prison. As pertinent to this appeal, appellаnt, in case No. 01 CR 08040, was sentenced to five (5) years in prison, fined eight-hundred dollars ($800), and had his driver‘s license suspended for a period of fifteen (15) years.
{¶ 8} It is from this judgment that appellant now appeals and sets forth one assignment of error fоr our review. For purposes of this appeal, appellant‘s three cases have been consolidated.
ASSIGNMENT OF ERROR NO. I
The trial court erred to the prejudice of he defendant/appellant by not permitting the defendant/aрpellant to withdraw his guilty plea prior to sentencing by the trial court.
{¶ 9} In this assignment of error, appellant maintains that when the state withdrew its original recommended sentence agreed to by the parties at the August 15, 2001 plea entry hearing, thаt his exchanged for plea of guilty in Case No. 01 CR 08040 was rendered involuntary and unenforceable. Appellant, therefore, asserts that the trial court erred in failing to grant his motion to withdraw. Appellant does not otherwise challenge the manner in which his guilty plea in Case No. 01 CR 08040 was originally entered and accepted by the trial court on August 15, 2001.
{¶ 10}
{¶ 11} In making its determination, the trial court should consider:
1) whether the state will be prejudiced by withdrawal; 2) the epresentation afforded to the defendant by counsel; 3) the extent of the Crim.R. 11 plea hearing; 4) the еxtent of the hearing on the motion to withdraw; 5) whether the trial court gave full and fair consideration to the motion; 6) whether the timing of the motion was reasonable; 7) the reasons for the motion; 8) whether the defendant understood the nature оf the charges and potential sentences; and 9) whether the accused was perhaps not guilty or had a complete defense to the charge.” State v. Lewis, Allen App. No. 1-02-10, 2002-Ohio-3950, at ¶ 11, citing State v. Lane (2001), Allen App. No. 1-01-69; see also State v. Fish (1995), 104 Ohio App.3d 236, 239.
{¶ 12} In the case sub judice, we find that the above listed factors weigh heavily agаinst granting appellant‘s motion to withdrawal. First, had the trial court granted appellant‘s motion to withdraw, the more than two year delay caused by appellant‘s failure to appear would substantially prejudice the state‘s ability to proceed to trial and effectively prosecute appellant. See State v. Price, 1st Dist. No. C-030262, 2003-Ohio-7109, at ¶ 11; citation omitted, (“Prejudice to the state and a long delay in the proceedings are two major considerations weighing in favor of overruling a motion to withdraw a plea of guilty.“).
{¶ 13} In addition, it is undisputed that the trial court afforded appellant a full hearing in compliance with
{¶ 14} As to the court‘s consideration of appellant‘s motion to withdraw his guilty plea, we find, despite appellant making his motion on the same day as the scheduled sentencing hearing (February 5, 2004), that the trial court heard the arguments of appellant‘s counsel and fairly considered appellant‘s motion. Moreover, appellant does not now, nor has he ever, asserted that he has a valid defense to the original charge of driving under the influence in Case No. 01 CR 08040.
{¶ 15} Lastly, we find the crux of appellаnt‘s argument that the state allegedly breached the plea agreement in Case No. 01 CR 08040 by withdrawing its original recommendation to be unpersuasive.1 While the state is normally required to comply with the terms of a plea agreement,2 when аpplied to the facts of the case herein, appellant cannot prevail upon the merits of his argument.
{¶ 16} In support of his argument, appellant asserts that the United States Supreme Court decision in Santobello v. New York (1971), 404 U.S. 257, is controlling in this matter. Santobello stands for the proposition that plea bargaining is akin to contract law principles in that both parties bargain for an agreement and, accordingly, if one side breaches the agreement, the other side is entitled to either rescission or speсific performance of the plea agreement. State v. Eaton, 3d Dist. No. 14-04-12, 2004-Ohio-5349, at ¶ 12, citing Santobello, supra at 262; see also State v. Lewis, 3d Dist. No. 1-02-10, 2002-Ohio-3950, at ¶ 23.
{¶ 17} First, in considering appellant‘s argument using principles of contract law, we find that appellant‘s failure to appear at the sentencing hearing and his more than two year evasion of the law constitutes a breach of the plea agreement.3 Having been released by the trial court under the terms of a recognizance bond prior to the scheduled sentencing date in Case No. 01 CR 08040, appellant unequivocally knew that he was required to return to the court on September 14, 2001. Furthermore, appellant‘s failure to appear at the sentencing hearing rendered the performance of the state‘s end of the рlea agreement an impossibility. It was appellant, not the state, who breached the terms of the plea agreement.
{¶ 18} In addition, under the circumstances of this case, the state‘s withdrawal of its previously recommended sentеnce does not constitute a “reasonable and legitimate basis” for the withdrawal of appellant‘s plea. See generally, Xie, supra at paragraph one of the syllabus; Lewis, supra at ¶ 11. Assuming arguendo that the state continued to fully honor the original plea agreement, the trial сourt, was nevertheless, not bound to follow the state‘s recommended sentence.4 Moreover, considering the fact that appellant disobeyed the trial court, absconded, and evaded justice for more then two years, even if the state were to stand silent, the likelihood that appellant would be granted early judicial release after one year in prison is miniscule at best. Accordingly, even if we were to look favorably upon appellant‘s argument, the weight to be given to the state‘s withdrawal of its originally recommended sentence in Case No. 01 CR 08040 is minimal.
{¶ 19} Having applied the factors listed above, which weigh heavily against appellant, we cannot find that the trial court abused its discretion in denying appellant‘s motion to withdraw his guilty plea. Consequently, appellant‘s assignment of error is overruled.
{¶ 20} Having found no error prejudicial to appellant herein, in the particulars assigned and argued, we affirm the judgments of conviction and sentence of the trial court.
Judgments affirmed.
Shaw, P.J. and Rogers, J., concur.