Lead Opinion
*1268{¶ 1} Dеfendant-appellant David Dehart appeals his conviction and sentence for two counts of violating a protection order, in violation of R.C. 2919.27(A)(1) /(B)(1)(3), both felonies of the fifth degree.
{¶ 2} On January 17, 2017, Dehart was indicted in Case No. 2017 CR 0064 for one count of violating a protection order, in violation of R.C. 2919.27 (A)(1) /(B)(1)(3), a fifth degree felony. On the same day, Dehart was indicted in Case No. 2017 CR 0067 for an additional count of violating a protection order, in violation of R.C. 2919.27 (A)(1) /(B)(1)(3), also a fifth degree felony.
{¶ 3} Shortly thereafter on January 31, 2017, Dehart pled guilty to both counts of violating a protection order in Case Nos. 2017 CR 0064 and 2017 CR 0067. During a sidebаr discussion at the plea hearing, it was acknowledged by the trial court and the parties that Dehart had already received a twelve-month prison sentence for a probation revocation in a separate case (Case No. 2016 CR 3661). Nevertheless, it was agreed that Dehart would reсeive community control in Case Nos. 2017 CR 0064 and 2017 CR 0067. Furthermore, the trial court and the parties agreed that Dehart's community control sanctions would not begin until hе completed his twelve-month sentence for the probation revocation in Case No. 2016 CR 3661.
{¶ 4} At the plea hearing, the trial court stated the follоwing regarding the maximum possible sentences to which Dehart was subject in Case Nos. 2017 CR 0064 and 2017 CR 0067 :
The Court: Okay. Each of those felony fives carry maximum potential рenalties of a $2500.00 fine and from six to twelve months in prison though by-but you're going to get community control, which can last as long as five years and could involve six months in jail ; do you understand that?
Dehart: Yes, sir.
Tr. 12.
{¶ 5} Later in the plea hearing, the trial court stated the following:
Trial Court: And, Mr. Dehart, you understand that should you get revoked from community control sanctions in your case, you're going to get twelve months on each case for a total of two years. Do you understand that?
Dehart: Yes, I do.
Tr. 14.
{¶ 6} At the end of the Crim.R. 11 colloquy, Dehаrt pled guilty to the charged offenses. The trial court accepted Dehart's guilty pleas, ordered the preparation of a pre-sentence investigation report (PSI), and scheduled a sentencing hearing to be held on February 14, 2017.
{¶ 7} After the sentencing hearing was rescheduled, Dehart filed a mоtion to withdraw his plea in Case No. 2017 CR 0064, arguing that he was confused regarding the sentence he was to receive.
{¶ 8} Thereafter, on May 16, 2017, Dehаrt filed a motion for leave to file a delayed appeal, but he did not file a notice of appeal. In an entry issued on July 17, 2017, we granted Dehаrt's motion for leave to file a delayed appeal on the condition that he file a notice of appeal with the trial court within twenty dаys. (CA 27587) On August 7, 2017, Dehart filed a notice of appeal in CA 27678 and a second motion for leave to file a delayed appeal. In an entry issued on August 17, 2017, we сonsolidated CA 27587 and CA 27678 and granted Dehart's second motion for leave to file a delayed appeal.
{¶ 9} Dehart filed his appellate brief оn December 5, 2017. On January 11, 2018, the State filed a notice of conceded error pursuant to Local Rule 2.24. On the same day, the State filed its responsive brief in which it conceded that Dehart's guilty pleas were not knowingly, intelligently, and voluntarily made because the trial court failed to honor its agreemеnt whereby Dehart was to receive community control sanctions after pleading guilty to two counts of violating a protection order in Case Nоs. 2017 CR 0064 and 2017 CR 0067. Accordingly, the State agrees with Dehart that the trial court's judgment should be reversed and remanded for either the imposition of community control sanctions or to allow Dehart to withdraw his guilty pleas. We agree.
{¶ 10} Dehart's first assignment of error is as follows:
{¶ 11} "APPELLANT'S PLEAS OF GUILTY WERE NOT KNOWINGLY, INTELLIGENTLY AND VOLUNTARILY MADE IN COMPLIANCE WITH RULE 11(C) OF THE OHIO RULES OF CRIMINAL PROCEDURE."
{¶ 12} In his first assignment, Dehart argues that his guilty pleas were not knowingly, intelligently, and voluntarily made because the trial court failed to honor its promise to impose community control sanctions after he pled guilty to two counts of violating a protection order in Case Nos. 2017 CR 0064 and 2017 CR 0067.
{¶ 13} "When a defendant enters a plea in a criminal case, the plea must be made knowingly, intelligently, and voluntarily." State v. Barker ,
*1270State v. Veney ,
{¶ 14} In State v. Mills , 2d Dist. Montgomery No. 26619,
* * * [A] plea agreement is a contract, and a breach of that contract is governed by contract law. State v. Adkins ,, 161 Ohio App.3d 114 , 2005-Ohio-2577 (4th Dist.). A breach of that contract entitles the non-breaching party to recision or specifiс performance. Santobello v. New York , 829 N.E.2d 729 , 404 U.S. 257 , 92 S.Ct. 495 (1971) ; State v. Layman , 2d Dist. Montgomery No. 22307, 30 L.Ed.2d 427 [ 2008-Ohio-759 ]. A promised sentence is an inducement to plea, and unless given as promised, the plea is not voluntary. State v. Gilroy , 2008 WL 499280 , 195 Ohio App.3d 173 , 2011-Ohio-4163 (2d Dist.) ; Layman at ¶ 15, citing State v. Triplett , 8th Dist. Cuyahoga No. 69237, 959 N.E.2d 19 (Feb. 13, 1997) ; State v. Bonnell , 12th Dist. Clermont No. CA2001-12-094, 1997 WL 64051 [ 2002-Ohio-5882 ]. 2002 WL 31415406
{¶ 15} In the instant case, the record clearly established that the trial court promised Dehart that he would receive community control sanctions if he pled guilty to two counts of violating a protection order in Case Nos. 2017 CR 0064 and 2017 CR 0067. Significantly, we note that no conditions were placed upon Dehart at the time of the рlea which could account for the trial court's decision to disregard its promise of community control. Therefore, the trial court was obligated to sentence Dehart to community control sanctions or otherwise permit him to withdraw his guilty pleas. The trial court, however, did neither. Rather, the trial court sentenced Dehart to two consecutive twelve-month sentences in Case Nos. 2017 CR 0064 and 2017 CR 0067. The trial court's decision to disregard its promise of cоmmunity control rendered Dehart's guilty pleas unknowing, unintelligent, and involuntary.
{¶ 16} Dehart's first assignment of error is sustained.
{¶ 17} Dehart's second assignment of error is as follows:
{¶ 18} "THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTIONS TO WITHDRAW HIS PLEAS OF GUILTY PRIOR TO SENTENCING PURSUANT TO RULE 32.1 OF THE OHIO RULES OF CRIMINAL PROCEDURE."
{¶ 19} In light of our disposition with respect to Dehart's first assignment, his second assignment of error is rendеred MOOT, and therefore, we need not address it.
{¶ 20} Dehart's first assignment of error having been sustained, the judgment of the trial court is reversed and remanded for either the imposition of community control sanctions or to allow Dehart to withdraw his guilty pleas.
WELBAUM, P.J., concurs.
Notes
The record establishes that Dehart did not file a motion to withdrаw his plea in Case No. 2017 CR 0067.
Concurrence Opinion
{¶ 21} I agree that under the circumstances of this case the trial court had the obligation to either allow Dehart to withdraw his guilty plеa or, upon the withdrawal motion being overruled, to impose the agreed upon sentence. State v. Walton ,