STATE OF OHIO v. JUSTIN TYLER CRUZ
C.A. No. 14CA010550
IN THE COURT OF APPEALS NINTH JUDICIAL DISTRICT
June 22, 2015
[Cite as State v. Cruz, 2015-Ohio-2472.]
APPEAL FROM JUDGMENT ENTERED IN THE COURT OF COMMON PLEAS COUNTY OF LORAIN, OHIO CASE Nоs. 13CR087423 13CR087424
Dated: June 22, 2015
MOORE, Judge.
{¶1} Defendant-Appellant Justin Tyler Cruz appeals from the judgment of the Lorain County Court of Common Pleas. This Court reverses and remands for proceedings consistent with this opinion.
I.
{¶2} In June 2013, Mr. Cruz was indicted on one count of gross sexual imposition in violation of
{¶3} Mr. Cruz entered into written plea agreements with the State in both cases and agreed to plead guilty to the indictments. Both plea agreement forms asked if “anyone used any force or made any promises to [Mr. Cruz] in order to get [him] to plead guilty[.]” Mr. Cruz
{¶4} At the combined plea hearing for both cases, the Statе indicated that it “ha[d] made no agreement as to sentencing.” Towards the end of the hearing, while discussing the written plea agreement forms with Mr. Cruz, the following colloquy occurred:
[Trial court:] Other than the fact that I indicated to your attorney in the Prоsecutor‘s presence that I would be looking at giving you, in light of the fact that you have already done 90 days in and that you are taking responsibility for these offenses and that you will be getting treatment, I would be looking at a community control sanctiоn here, but that you would be looking at the first 30 days of that community control sanction to be spent in the County Jail.
Other than that, were there any other promises made to you?
[Mr. Cruz:] No.
The trial court then accepted Mr. Cruz‘s plea. Before adjourning, the trial court addressed Mr. Cruz again, stating:
You are going to be sentenсed in about two months from now. There are a few things you need to know.
Right now, we have an agreement. We‘ve had discussions. But that can all go up in smoke if there are problems between now and your sentencing. Okay?
If [you are] hoping for what we discussed, you have got to show me you can survive on community control.
What does that mean? You don‘t catch new charges. You test clean for drugs. And you are respectful and cooperative with the probation department.
It also means you need to be here for your sentencing hearing. That means [your attorney] needs to have a good address and phone number at all times. If you move tomorrow, he needs to know tomorrow afternoon, because I‘m going to send him notice of your sentencing, and he will send it to you.
* * *
So, in the meantime, you need to get over to the probation department right now, which just about a block away, and start the ball rolling on your presentence report.
You are to have no contact with the victims or their families, and you are to make sure that there are no problems during this time period. If there are, then you are looking at the possibility of up to ten years in prison.
{¶5} Prior to sentencing, Mr. Cruz filed motions in both cases tо withdraw his plea. The trial court held a hearing on those motions immediately prior to the sentencing hearing. Mr. Cruz expressed his desire to proceed to trial so that he could establish his alleged innocence. The trial court denied the mоtions and proceeded to sentencing.
{¶6} The State maintained that it did not reach an agreement with respect to sentencing and requested a prison sentence. The trial court sentenced Mr. Cruz to a three-year community contrоl sanction with the first 30 days to be served in the Lorain County Correctional Facility per the “prior discussions[.]” At the end of sentencing, as Mr. Cruz was leaving the courtroom, he stated, “Thank you for pulling the trigger, Your Honor.” The trial court then ordered Mr. Cruz back into the room. The trial court admonished Mr. Cruz, saying:
Did you understand that lipping off to a judge before you were taken to the county means that actually your sentence isn‘t final until I sign this entry, file it, and you go to prison and go [to] jail? * * * So right now I‘m reconsidering what was a really close case; a case I wasn‘t entirely comfortable with where things were going, in light of the fact that you felt so unrestricted by the rules of society and rules of this court that you felt comfortable lipping off to me, to this court, in open сourt, it makes me really reconsider whether you are a good candidate for community control. I can‘t imagine you succeeding on community control. * * *.
{¶7} After allowing the prosecutor, Mr. Cruz‘s attorney, and Mr. Cruz the opportunity to speak, thе trial court sentenced Mr. Cruz to two years in prison on each count, to run concurrently.
{¶8} Mr. Cruz filed a timely notice of appeal and has raised two assignments of error for our review.
ASSIGNMENT OF ERROR I
[MR. CRUZ] WAS SENTENCED TO PRISON AFTER A PLEA AGREEMENT WAS REACHED WITH THE TRIAL COURT. THE TRIAL COURT UNAMBIGUOUSLY PROMISED A COMMUNITY CONTROL SANCTION IN EXCHANGE FOR A GUILTY PLEA IN [MR. CRUZ‘S] CASES. THIS SUBSEQUENT BREACH MADE [MR. CRUZ‘S] GUILTY PLEA INVOLUNTARY, UNKNOWING, AND UNINTELLIGENT.
{¶9} Mr. Cruz argues in his first assignment of error that his guilty plea was involuntary because the trial court failed to impose the sentence it promised to impose. We agree.
{¶10} “Disposition of charges after plea discussions is not only an essential part of the process but a highly desirable part for many reasons.” Santobello v. New York, 404 U.S. 257, 261 (1971). That process is traditionally limited to negotiations between the prosecutor and the accused and does not involve the trial judge. See State v. Byrd, 63 Ohio St.2d 288, 293-294 (1980). In fact, “[d]ue to the high potential for coercion when the judge participates in the actual negotiation process, a number of courts have indicated that such participation is per se in violation of the Fifth Amendment.” Id. at 292. While the Ohio Supreme Court has not gone so far as to hold that a trial judge‘s participation in thе plea negotiation process automatically renders a plea invalid, it has “strongly discourage[d] judge participation in plea negotiations[.]” Id. at 293. Thus, when a trial judge does participate in the plea bargaining process, thаt participation must be carefully scrutinized to assure that the participation did not affect the voluntariness of the defendant‘s plea. Id.
{¶11} “A plea cannot sustain a judgment of guilt unless it is voluntarily made.” State v. West, 9th Dist. Lorain No. 04CA008554, 2005-Ohio-990, ¶ 8. “If a defendant is induced into pleading guilty based upon a promise by the court and the court does not fulfill that promise, the
{¶12} The notation in the plea agreements and the trial court‘s statements during the plea hearing evidence that Mr. Cruz pleaded guilty based at least in part upon thе trial court‘s representation that it would sentence him to community control. See Reeves at ¶ 6. Irrespective of the State‘s position with respect to sentencing, the trial court agreed to sentence Mr. Cruz to community control at the time of the plea. While the trial court did note, after it accepted Mr. Cruz‘s guilty plea,1 that there were conditions Mr. Cruz had to abide by in order to be sentenced to community control, nothing in the record demonstrates that Mr. Cruz failed to abide by the stated сonditions. At the plea hearing, the trial court stated that, in order to receive community control, Mr. Cruz would have “to show [the trial court that Mr. Cruz] can survive on community control.” The trial court then specified that that meant that Mr. Cruz could not be arrеsted for any more crimes, he could not test positive for drugs, he had to be respectful and cooperative with the probation department, he had to be present at sentencing, and he had to have no contact with the victims or their families. The trial court never stated that a disrespectful or inappropriate comment by Mr. Cruz to the trial court after sentence was pronounced would result in his being sent to prison. In fact, when outlining circumstances that could cause the agreement to “go up in smoke[,]” at the plea hearing the court specifically provided the timeline when it said: “if there are problems between now and your sentencing.” (Emphasis added.)
{¶13} Prior to the trial court reconsidering its sentence following Mr. Cruz‘s inappropriate cоmment, it appears that the trial court believed that Mr. Cruz had complied with
{¶14} Mr. Cruz‘s first assignment of error is sustained. “Either the trial court must sentence [Mr. Cruz] in accordance with [its promise], or if it determines such a sentence is no longer appropriate, it must allow [him] the opportunity to withdraw his guilty plea.” Bonnell at ¶ 23.
ASSIGNMENT OF ERROR II
THE TRIAL COURT ABUSED ITS DISCRETION WITH SENTENCING [MR. CRUZ] TO PRISON AFTER PROMISING A COMMUNITY CONTROL SANCTION IN EXCHANGE FOR A GUILTY PLEA ON THE DAY OF SENTENCING. IN LIGHT OF THE PLEA AGREEMENT, THE TRIAL COURT‘S ACT OF SENTENCING [MR. CRUZ] WAS ARBITRARY, UNREASONABLE, AND UNCONSCIONABLE AND SHOULD BE REVERSED.
{¶15} Mr. Cruz asserts in his second assignment оf error that the trial court abused its discretion in sentencing him to prison in light of the trial court‘s promise to sentence him to
III.
{¶16} Mr. Cruz‘s first assignment of error is sustained. The matter is remanded to the trial court for it to elect whether to impose the sentence provided in the plea agreement or to allow Mr. Cruz to withdraw his plеa. The judgment of the Lorain County Court of Common Pleas is reversed.
Judgment reversed, and cause remanded.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy оf this journal entry shall constitute the mandate, pursuant to
Immediately upon the filing hereof, this document shall constitute the journal entry of judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the period for review shall begin to run.
Costs taxed to Appellee.
CARLA MOORE FOR THE COURT
CARR, P. J. CONCURRING IN PART, AND DISSENTING IN PART.
{¶17} Although I agree that this matter must be remanded to the trial court, because I disagree about the appropriate remedy, I respectfully dissent from that portion of the Court‘s decision.
{¶18} A plea bargain is a resolution to a criminal case negotiated by two parties. Unlike the plea bargain defined in Santobello, an agreement between the prosecutor and the accused, the bargain in this case was between the accused and the trial court judge. The prosecutor was left out of the agreement, limited to voicing the State‘s contrary position on sentencing both at the time the plea was entered and at the time of sentencing. “Both the prosecution and the defense in this case are entitled to fair and impartial treatment.” State v. Griffey, 35 Ohio St.2d 101, 109 (1973).
{¶19} However, what occurred in this case was not a plea bargain as envisioned in Santobello and Byrd. Accоrdingly, I would not analyze it as a typical plea bargain and, more importantly, a breach of that plea bargain. It is not enough in this case to scrutinize the trial court judge‘s participation in the plea bargaining process to determinе whether it affected the voluntariness of the defendant‘s plea because there was no plea bargain process. Under the circumstances of this case, the judge‘s promise of a sentence, contrary to the prosecutor‘s wishes, did not create a plea bargain. Instead, Cruz‘s guilty plea was induced by a promise that deprived it of a voluntary act (and deprived the State of the impartial treatment the trial court
APPEARANCES:
JOHN TOTH, Attorney at Law, for Appellant.
DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant Prosecuting Attorney, for Appellee.