State v. Burke

2011 Ohio 2689

• Court: Ohio Court of Appeals
• Decided: June 1, 2011
• Docket: CT2010-55
• Status: Published

Opinion

[Cite as State v. Burke, 2011-Ohio-2689.]

COURT OF APPEALS MUSKINGUM COUNTY, OHIO FIFTH APPELLATE DISTRICT

JUDGES: STATE OF OHIO : Hon. W. Scott Gwin, P.J. : Hon. John W. Wise, J. Plaintiff-Appellee : Hon. Patricia A. Delaney, J. : -vs- : : Case No. CT2010-55 JOSHUA BURKE : : Defendant-Appellant : OPINION

CHARACTER OF PROCEEDING: Criminal appeal from the Muskingum County Court of Common Pleas, Case No. CR-2010-138

JUDGMENT: June 1, 2011

DATE OF JUDGMENT ENTRY: Affirmed

APPEARANCES:

For Plaintiff-Appellee For Defendant-Appellant

MICHAEL HADDOX ERIC J. ALLEN MUSKINGUM COUNTY PROSECUTOR Law Office of Eric J. Allen, Ltd. 27 North Fifth 713 South Front Zanesville, OH Columbus, OH 43206 [Cite as State v. Burke, 2011-Ohio-2689.]

Gwin, P.J.

{¶1} Defendant-appellant Joshua Burke appeals his sentence in the

Muskingum County Court of Common Pleas on two counts of Violation of a Protection

Order with a prior conviction, felonies of the fifth degree. Plaintiff-appellee is the State of

Ohio.

STATEMENT OF THE CASE AND FACTS

{¶2} In July 2010 the Muskingum Grand Jury indicted appellant with four

counts of Violation of a Protection Order with a prior conviction.1 All four charges were

fifth degree felonies. Prior to trial, a plea bargain was reached. Appellant agreed to

plead guilty to Counts One and Two. In exchange for appellant's guilty plea, the

Prosecutor agreed to enter a Nolle Prosequi to Counts Three and Four and recommend

an aggregate sentence of ten months of incarceration. On September 8, 2010, appellant

entered a plea of guilty to Counts One and Two as contained in the indictment. The

court deferred sentencing and ordered a Pre-Sentence Investigation report.

{¶3} On October 18, 2010, appellant appeared in court for sentencing. After

both counsel clarified their understanding of the terms of the plea bargain, the court

imposed a sentence. The court verified appellant's criminal history and voiced its

concerns about appellant's continuous violations of the law, and appellant's past and

current conduct concerning the same victim. The court then rejected the Prosecutor’s

sentencing recommendation and sentenced appellant to consecutive sentences

totaling twenty-two months of incarceration.

1 A Statement of the Facts underlying appellant’s original conviction is unnecessary to our disposition of this appeal. Any facts needed to clarify the issues addressed in appellant’s assignment of error shall be contained therein. Muskingum County, Case No. CT2010-55 3

{¶4} It is from the trial court’s October 22, 2010 sentencing entry that

appellant has timely appealed raising as his sole assignment of error:

{¶5} “I. THE TRIAL COURT ABUSED ITS DISCRETION IN SENTENCING

THE DEFENDANT TO MORE THAN THE AGREED UPON SENTENCE OF TEN

MONTHS.”

I.

{¶6} Appellant claims the trial court erred in not sentencing him in accordance

with a negotiated sentence. We disagree.

{¶7} In order to determine whether a plea agreement has been breached,

courts must examine what the parties reasonably understood at the time the

defendant entered his guilty plea. See United States v. Partida-Parra (C.A.9, 1988),

859 F.2d 629; United States v. Arnett (C.A.9, 1979), 628 F.2d 1162. Smith v. Stegall

(6th 2004), 385 F.3d 993, 999. Therefore, we must identify the terms of the plea

agreement before we can determine if the state breached the agreement. State v.

Thompson, 4th Dist. 03CA766, 2004-Ohio-2413; State v. Winfield, Richland App. No.

2005-CA-32, 2006-Ohio-721 at ¶ 25.

{¶8} In the case at bar, the relevant portions of the plea agreement are that

the state would nolle Counts Three and Four of the Indictment and recommend an

aggregate sentence of ten months of incarceration. At the time of sentencing, the state

had already amended the charges as promised and the state reiterated the

recommendation it made when the guilty plea was taken. The state honored its

agreement with appellant. Rather, the trial court declined to follow the

recommendation. Muskingum County, Case No. CT2010-55 4

{¶9} Trial courts are vested with discretion in implementing plea agreements.

Akron v. Ragsdale (1978), 61 Ohio App.2d 107. A trial court does not err by imposing

a sentence greater than ‘that forming the inducement for the defendant to plead guilty

when the trial court forewarns the defendant of the applicable penalties, including the

possibility of imposing a greater sentence than that recommended by the prosecutor.

State ex rel. Duran v. Kelsey, 106 Ohio St.3d 58, 831 N.E.2d 430, 2005-Ohio-3674 at

¶6. (Internal quotation marks and citations omitted). See also, State v. Wickham,

Muskingum App. No. CT 2006-0084, 2007-Ohio-1754 at ¶32.

{¶10} “Here, the defendant-appellant knew prior to the acceptance by the

court of his plea that he might not receive the sentence recommended by the

prosecutor. His ‘bargain’ for his plea was a recommendation, not a guarantee. He

received what he bargained for. Neither he nor his counsel sought to withdraw his

pleas of guilty in the four days from the entering of the plea and the pronouncement of

a sentence. No one objected. Accordingly, we cannot find any error, let alone plain

error”. State v. Barnhart (Aug. 26, 1998), 7th Dist. No. 94 CA 192. State v. Wickham,

supra at ¶ 34.

{¶11} In the case at bar, the trial court noted that appellant has an extensive

criminal history dating back to 2003 including charges for voyeurism, indecent

exposure, burglary, breaking and entering, possession of criminal tools, and

menacing. Further, appellant has not responded favorably to previous criminal

sanctions as evidenced by his extensive criminal history. Muskingum County, Case No. CT2010-55 5

{¶12} The record in the case at bar establishes that appellant was informed in

the written plea agreement prior to entering his plea that the trial court was not bound

to follow the recommendation of the State concerning sentencing2.

{¶13} It appears to this Court that the trial court's statements at the sentencing

hearing were guided by the overriding purposes of felony sentencing to protect the

public from future crime by the offender and others and to punish the offender. R.C.

2929.11. Based on the transcript of the sentencing hearing and the subsequent

judgment entry, this Court cannot find that the trial court acted unreasonably,

arbitrarily, or unconscionably, or that the trial court violated appellant’s rights to due

process under the Ohio and United States Constitutions in its sentencing appellant to

consecutive sentences of incarceration.

{¶14} Accordingly, appellant's sole assignment of error is overruled.

2 A transcript of appellant’s change of plea hearing was not made a part of the record on appeal. Muskingum County, Case No. CT2010-55 6

{¶15} For the foregoing reasons, the judgment of the Court of Common Pleas

of Muskingum County, Ohio, is affirmed.

By Gwin, P.J.,

Wise, J., and

Delaney, J., concur

_________________________________ HON. W. SCOTT GWIN

_________________________________ HON. JOHN W. WISE

_________________________________ HON. PATRICIA A. DELANEY

WSG:clw 0523 [Cite as State v. Burke, 2011-Ohio-2689.]

IN THE COURT OF APPEALS FOR MUSKINGUM COUNTY, OHIO

FIFTH APPELLATE DISTRICT

STATE OF OHIO : : Plaintiff-Appellee : : : -vs- : JUDGMENT ENTRY : JOSHUA BURKE : : : Defendant-Appellant : CASE NO. CT2010-55

For the reasons stated in our accompanying Memorandum-Opinion, the

judgment of the Court of Common Pleas of Muskingum County, Ohio, is affirmed.

Costs to appellant.