State v. Cortez

2022 Ohio 3973

• Court: Ohio Court of Appeals
• Decided: November 7, 2022
• Docket: 2022-A-0019 & 2022-A-0020
• Status: Published

Opinion

[Cite as State v. Cortez, 2022-Ohio-3973.]

IN THE COURT OF APPEALS OF OHIO ELEVENTH APPELLATE DISTRICT ASHTABULA COUNTY

STATE OF OHIO, CASE NOS. 2022-A-0019 2022-A-0020 Plaintiff-Appellee,

- vs - Criminal Appeal from the Court of Common Pleas IVAN CORTES a.k.a. EVAN CORTEZ, Trial Court No. 2020 CR 00356 Defendant-Appellant.

OPINION

Decided: November 7, 2022 Judgment: Affirmed

Colleen M. O’Toole, Ashtabula County Prosecutor, and Shelley M. Pratt, Assistant Prosecutor, 25 West Jefferson Street, Jefferson, OH 44047 (For Plaintiff-Appellee).

Joseph F. Salzgeber, P.O. Box 799, Brunswick, OH 44212 (For Defendant-Appellant).

JOHN J. EKLUND, J.

{¶1} Appellant, Ivan Cortes, appeals his sentence from the Ashtabula County

Court of Common Pleas. Appellant raises one assignment of error arguing that the trial

court erred in imposing consecutive sentences instead of concurrent sentences as the

State recommended at appellant’s plea hearing.

{¶2} After review of the record and the applicable caselaw, we find appellant’s

assignment of error to be without merit. The trial court properly imposed consecutive

sentences on appellant and the State was free to alter its plea recommendation after a change in circumstances where appellant failed to appear for his sentencing hearing two

times and prolonged his sentencing by approximately four months.

{¶3} Thus, we affirm the judgment of the Ashtabula County Court of Common

Pleas.

Substantive and Procedural History

{¶4} In January 2019, appellant was indicted in the Ashtabula County Court of

Common Pleas in case number 2019 CR 444 for one count of Rape, in violation of R.C.

2907.02(A)(1)(b), a felony of the first degree. This charge was alleged to have been

committed on or between May 1, 2010, and April 30, 2011.

{¶5} In August 2020, appellant was indicted in the Ashtabula County Court of

Common Pleas in case number 2020 CR 356 for six counts of Gross Sexual Imposition,

in violation of R.C. 2907.05(A)(4), felonies of the third degree.

{¶6} On October 7, 2021, appellant pled guilty to an amended count of Attempted

Rape in case number 2019 CR 444 involving appellant’s daughter and one count of Gross

Sexual Imposition in case number 2020 CR 356 involving appellant’s niece. Both victims

were minors at the time of the offenses. The State dismissed the remaining counts

pursuant to the plea agreement.

{¶7} At the plea hearing, the State indicated that it “would argue at sentencing

for the full eight years in prison” on the Attempted Rape charge and that it would argue

for a five-year concurrent sentence on the Gross Sexual Imposition charge. “So in order

to resolve this case, we are recommending the maximum, but concurrent with 444.”

{¶8} Defense counsel expressed a similar understanding of the plea and said

that “we would argue sentencing after a presentence investigation report and my client

Case Nos. 2022-A-0019, 2022-A-0020 having an opportunity to speak during a presentence investigation. And that the State will

be arguing or recommending that number of years and the defense would like to – would

be recommending something other than what the State is recommending. But it will all

hinge on the presentence investigation and arguing at sentencing.”

{¶9} During the hearing, the trial court erroneously informed appellant that his

offense was a qualifying offense under R.C. 2967.271, which would include a potential

indefinite sentence.

{¶10} After discovering that appellant was not subject to an indefinite sentence,

the trial court conducted a revised plea hearing on October 12, 2021. At that hearing the

trial court explained that because the date of the offense for Attempted Rape was prior to

March 22, 2019, the qualifying offense provisions did not apply to appellant’s plea. The

court informed appellant that this change “actually benefits you, Mr. Cortes, because that

means that you face potentially less time in prison.” The State did not change the

recommendations, other than that appellant not be subject to an indefinite sentence. The

State indicated that conversations with the victim about the original plea recommendation

did not include discussions about the indefinite sentence. Therefore, the State did not

consider this change one that would prejudice or offend the victim of the offense.

{¶11} Appellant’s sentencing hearing was set for November 2021, however,

appellant failed to appear, and a warrant issued for his arrest. Sentencing was then set

for January 5, 2022. Appellant, again, failed to appear and another warrant was issued

for his arrest. After his arrest, appellant’s sentencing hearing was set for March 23, 2022.

{¶12} At that hearing the State said “obviously you know that -- the Court knows

that there is no stipulated and agreed-to sentence in this case, and that we are arguing

Case Nos. 2022-A-0019, 2022-A-0020 for eight years prison for the attempted rape * * *.” As to the Gross Sexual Imposition

charge, the State said that it was altering its recommendation. “[T]he State, in the Plea

Agreement, said it was going to ask for five years concurrent time on that case. The

Defendant has 26 days credit for that, for time served in that. * * * Your Honor, because

the Defendant failed to appear, I'd ask for that time to be run consecutive since we're

arguing that, and that it's not a stipulated sentence at all.” Appellant did not object to this

change in the State’s recommendation or seek to withdraw his plea.

{¶13} The trial court proceeded to sentence appellant saying that it had reviewed

the Presentence Investigation Reports, which were extensive and provided “much

information.” The court said that appellant does have a “substantial prior criminal record

as reviewed by the Court, including past misdemeanor and felony convictions, including

those for domestic violence. * * * He’s not been law-abiding for some time, for several

years, and continues to not respond favorably to sanctions previously imposed and has

committed these crimes.” Further, the court noted “that the offenses pled to in these

cases, they're sex offenses, and the victim in the 444 case was born in 2001 per the

Indictment of the offense pled to; and in the 356 case, the victim was born in 1992 per

the Indictment, making both of these victims young at the time of the offenses. The victim

in the 444 case is the Defendant's daughter; and in the 356 case, I believe his niece.”

{¶14} The trial court sentenced appellant to seven years imprisonment for the

Attempted Rape charge and four years for the Gross Sexual Imposition charge. The court

ordered that the sentences be run consecutive, for a total of an 11-year sentence. The

court made a finding pursuant to R.C. 2929.14(C)(4)(b) that “at least two of the multiple

offenses were committed as part of one or more courses of conduct, and the harm caused

Case Nos. 2022-A-0019, 2022-A-0020 by two or more of the multiple offenses so committed were so great or unusual that no

single prison term for any of the offenses committed as part of any of the courses of

conduct adequately reflect the seriousness of the Defendant’s conduct, two separate

sexually-related offenses, each with a separate young victim.” The court further made a

finding pursuant to R.C. 2929.14(C)(4)(c) that appellant’s “history of criminal conduct

demonstrates that consecutive sentences are necessary to protect the public from future

crime by the Defendant, and that’s per the review of your prior record and the Presentence

Investigation Reports.”

{¶15} Appellant timely appealed asserting one assignment of error.

Assignments of Error and Analysis

{¶16} Appellant’s sole assignment of error states:

{¶17} “The trial court erred and abused its discretion by imposing, contrary to law

and the constitutional prohibitions against cruel and unusual punishment, consecutive

prison sentences totaling twelve (11) [sic] years, instead of a total non-consecutive prison

sentence of eight (8) years as originally recommended by the State of Ohio as part of the

plea agreement resolving both cases.”

{¶18} Appellant cites several propositions of law relating to the imposition of

consecutive sentences and prohibitions against cruel and unusual punishment. However,

in support of his assignment of error, appellant’s sole argument is that the trial court erred

in imposing a sentence of 11 years rather than the eight years “as originally recommended

by the State of Ohio” in the plea agreement. He claims that the State’s consecutive

sentence recommendation at the sentencing hearing constituted a breach of the plea

agreement.

Case Nos. 2022-A-0019, 2022-A-0020 {¶19} Appellant cites R.C. 2953.08 as our standard of review for consecutive

sentences imposed under R.C. 2929.14. There are three ways an appellant can challenge

consecutive sentences on appeal. State v. Lewis, 11th Dist. Lake No. 2001-L-060, 2002-

Ohio-3373, ¶ 6. First, the appellant may argue that the sentencing court failed to state the

findings for consecutive sentences R.C. 2929.14(C)(4) requires. State v. Torres, 11th

Dist. Lake No. 201-L-122, 2003-Ohio-1878, ¶18; R.C. 2953.08(G)(1). Second, an

appellant may argue that the record clearly and convincingly does not support the findings

the sentencing court made to justify consecutive sentences. State v. Lewis, at ¶ 7; R.C.

2953.08(G)(2)(a). Third, an appellant may argue that the sentence is clearly and

convincingly otherwise contrary to law. R.C. 2953.08(G)(2)(b).

{¶20} However, appellant does not claim that the trial court failed to state the

findings for consecutive sentences, nor does he claim that the record does not clearly

and convincingly support the findings that the sentencing court made to justify imposing

consecutive sentences. Our review of the record indicates that the trial court properly

stated its findings for consecutive sentences and that the record supports those findings.

{¶21} Instead, appellant does assert that the State breached its plea agreement

to recommend concurrent sentences and that the trial court abused its discretion by

imposing consecutive sentences in excess of the State’s recommendation of eight years.

{¶22} First, appellant did not object to the State’s recommendation of consecutive

sentences at the sentencing hearing. Where there is a failure to object to the “State’s

alleged improper recommendation at a sentencing hearing” we apply a plain error

standard. State v. Thomas, 11th Dist. Lake No. 2013-L-032, 2013-Ohio-5365, ¶ 14.

Case Nos. 2022-A-0019, 2022-A-0020 {¶23} The standard of review for plain error is the same deferential standard

applied for “reviewing ineffective assistance of counsel claims.” State v. Payne, 114 Ohio

St.3d 502, 2007–Ohio–4642, 873 N.E.2d 306, ¶ 17. “Crim.R. 52(B) affords appellate

courts discretion to correct ‘[p]lain errors or defects affecting substantial rights’

notwithstanding the accused's failure to meet his obligation to bring those errors to the

attention of the trial court.” State v. Rogers, 143 Ohio St.3d 385, 2015-Ohio-2459, 38

N.E.3d 860, ¶ 22. Appellant bears the burden of demonstrating plain error by proving that

the outcome would have been different absent the plain error. Payne, at ¶ 17.

{¶24} Further, even when the error is obvious, “it must have affected substantial

rights,” meaning “‘that the trial court’s error must have affected the outcome of the trial.’”

Id., quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). Indeed, “even

if an accused shows that the trial court committed plain error affecting the outcome of the

proceeding, an appellate court is not required to correct it * * *.” Id. at ¶ 23. Courts are

cautioned “to notice plain error ‘with the utmost caution, under exceptional circumstances

and only to prevent a manifest miscarriage of justice.’” Barnes, at 27, quoting State v.

Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

{¶25} In general, it is “highly desirable” for criminal charges to be disposed of

through plea discussions. Santobello v. New York, 404 U.S. 257, 261, 92 S.Ct. 495, 30

L.Ed.2d 427 (1971). In circumstances “when a plea rests in any significant degree on a

promise or agreement of the prosecutor, so that it can be said to be part of the inducement

or consideration, such promise must be fulfilled.” Id. at 262. Ordinarily, when a defendant

negotiates a particular plea or sentencing recommendation from the prosecutor, the State

must honor that agreement. Id.

Case Nos. 2022-A-0019, 2022-A-0020 {¶26} However, “‘when a defendant, as a result of ‘plea bargaining,’ enters a plea

of guilty in exchange for the prosecutor's promise* * * there is an implied promise by the

defendant that the circumstances under which the bargain was made will remain

substantially the same. A subsequent change * * * is sufficient to justify and excuse the

prosecutor from fulfilling his promise * * *.’” State v. Cox, 11th Dist. Trumbull No. 92-T-

4753, 1993 WL 548082, at * 2 (Dec. 10, 1993), quoting State v. Pascall, 49 Ohio App.2d

18, 20, 358 N.E.2d 1368 (9th Dist.1972). Whether the plea agreement has been breached

is a matter left to the sound discretion of the trial court. State v. Willis, 6th Dist. Erie No.

E-05-026, 2005-Ohio-7002, ¶ 9; State v. McCartney, 12th Dist. No. CA2005-03-

008, 2005-Ohio-5627, ¶ 8 citing State v. Mathews, 8 Ohio App.3d 145, 146, 456 N.E.2d

539 (1982).

{¶27} This court has held that a defendant’s failure to appear constitutes a

subsequent change sufficient to excuse the prosecutor from a prior plea agreement. State

v. Randazzo, 11th Dist. Geauga No. 1420, 1988 WL 102604 * 6 (Sept. 30, 1988)

(“[F]ailure to appear for the original sentencing hearing excused the prosecutor from

fulfilling his promise to recommend probation.”); Cox, supra, at * 2 (Appellant’s failure to

appear “relieved” the State “of its duty to recommend concurrent sentences.”). Moreover,

this position has been met with approval by our sister districts. E.g., State v. Payton, 6th

Dist. Erie No. E-09-070, 2010-Ohio-5178, ¶ 11; State v. Grier, 3rd Dist. Crawford No. 3-

10-09, 2011-Ohio-902, ¶ 16; State v. Bembry, 7th Dist. Columbiana No. 13 CO 33, 2014-

Ohio-5498, ¶ 22; State v. Hill, 10th Dist. Franklin No. 12AP-463, 2013-Ohio-674, ¶ 22.

{¶28} In the case before us, the State initially recommended the maximum eight-

year sentence on the Attempted Rape charge and a five-year concurrent sentence on the

Case Nos. 2022-A-0019, 2022-A-0020 Gross Sexual Imposition. However, both the State and appellant indicated that the parties

would be arguing the sentence at the sentencing hearing. To the extent that any

sentencing agreement was made, it was that the State would recommend a concurrent

sentence on the Gross Sexual Imposition charge.

{¶29} However, appellant failed to appear for his sentencing hearing twice, and

each time a warrant issued for his arrest. At the sentencing hearing, held four months

after the initially scheduled hearing, the State indicated on the record that it was changing

the recommendation for concurrent sentences that it had made at the plea hearing. The

State said, “because the Defendant failed to appear, I’d ask for that time to be run

consecutive since we’re arguing that, and that it’s not a stipulated sentence at all.”

{¶30} Appellant did not object at this time and did not seek to withdraw his plea

on the basis that the State had breached the plea agreement. Under a plain error analysis,

appellant has the burden of demonstrating that the outcome of his sentencing would have

been different but for the trial court’s error. However, appellant’s own failure to appear

was the initial breach of the plea agreement. Thus, the State was no longer bound to its

agreement to recommend concurrent sentences. Because of this, the trial court did not

err when it allowed the State to alter its recommendation to consecutive sentences, nor

did the trial court err in imposing consecutive sentences.

{¶31} Accordingly, appellant’s sole assignment of error is without merit.

Case Nos. 2022-A-0019, 2022-A-0020 {¶32} For the foregoing reasons, the judgment the Ashtabula County Court of

Common Pleas is affirmed.

MATT LYNCH, J., concurs,

THOMAS R. WRIGHT, P.J., concurs in judgment only.

Case Nos. 2022-A-0019, 2022-A-0020