[Cite as State v. Dennis, 2020-Ohio-2861.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
State of Ohio Court of Appeals No. E-19-032
Appellee Trial Court No. 2017 CR 0428
v.
Justin D. Dennis DECISION AND JUDGMENT
Appellant Decided: May 8, 2020
*****
Kevin J. Baxter, Erie County Prosecuting Attorney, and Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee.
Russell V. Leffler, for appellant.
OSOWIK, J.
{¶ 1} This is an appeal from an April 23, 2019 judgment of the Erie County Court
of Common Pleas, sentencing appellant to a total term of incarceration of four years
following appellant’s guilty pleas to two counts of operating a motor vehicle while under
the influence of alcohol, in violation of R.C. 4511.19, both offenses being felonies of the
fourth degree, as enhanced based upon appellant’s six prior OVI convictions. {¶ 2} Although the plea bargain discussions included a proposed provision for
unopposed judicial release into a residential treatment program after a period of 60 days,
this term was expressly contingent upon appellant committing no bond violations.
{¶ 3} Subsequent to the change of plea hearing, appellant committed numerous
bond violations, in direct contravention of the above-described conditional plea
provision. Therefore, the provision regarding unopposed early release was nullified by
the intervening bond violations and not incorporated into appellant’s sentence, just as the
trial court had forewarned appellant would occur upon bond violations.
{¶ 4} We note that while appellee contends that a portion of this appeal should not
be considered based upon procedural considerations, we shall resolve this matter fully on
the substantive merits. For the reasons set forth below, this court affirms the judgment
of the trial court.
{¶ 5} Appellant, Justin D. Dennis, sets forth the following sole assignment of
error:
IT WAS ERROR FOR THE TRIAL COURT TO BECOME
INVOLVED IN GUARANTEEING THE PLEA BARGAIN PROCESS
AND THEN VACATING SAME ON A MOTION FILED BY THE
STATE WITH NO HEARING HELD ON THE MOTION TO REVOKE
BOND AND THE GROUNDS FOR TERMINATING THE PLEA
BARGAIN WERE INSUFFICIENT.
2. {¶ 6} The following undisputed facts are relevant to this appeal. On August 13,
2017, appellant was clocked on radar by an Ohio State Highway patrolman travelling
60 m.p.h. in a 35 m.p.h. zone. Upon initiating a traffic stop, the officer detected
numerous indicia of alcohol intoxication. Appellant, who possesses numerous past OVI
convictions, exhibited a strong odor of alcohol, glossy eyes, and slurred speech.
Appellant failed the field sobriety tests and refused BAC testing. In addition, appellant
lacked a valid operator’s license as he was under suspension for a prior OVI offense at
the time of this incident.
{¶ 7} Subsequently, on April 13, 2018, appellant was again stopped by an Ohio
State Highway patrolman, following observation of a marked lanes violation. Appellant
was again found to be operating a motor vehicle while under the influence of alcohol and
a license suspension. Appellant failed field sobriety testing and refused BAC testing.
{¶ 8} On March 8, 2019, appellant entered into a comprehensive plea agreement in
which appellant pled guilty to two counts of operating a motor vehicle while under the
influence of alcohol, in violation of R.C. 4511.19, both counts being felonies of the
fourth degree due to appellant’s six OVI prior convictions. In exchange, a repeat
offender specification was dismissed.
{¶ 9} At the March 8, 2019 change of plea hearing, the trial court unequivocally
conveyed to appellant in relevant part, “As part of this plea agreement, if you violate your
bond, then the agreement as to judicial release is off the table, and you will be doing the
four years without judicial release.” (Emphasis added).
3. {¶ 10} The record reflects that subsequent to the plea hearing, in contravention of
the above-quoted agreement, appellant committed multiple bond violations. Specifically,
appellant disconnected his house arrest monitoring device, left his home numerous times
in the middle of the night without notifying or receiving authorization from probation
personnel, refused to cooperate in the presentence investigation, failed to report to
probation, refused to answer his door when probation personnel were dispatched to
follow-up on these breaches, provided an invalid phone number to probation, and failed
to respond to any of the communications from the probation department needed to
monitor bond compliance and prepare the presentence report.
{¶ 11} Given these violations, and in accordance with the conditions conveyed to
appellant at the change of plea colloquy, appellant was sentenced to a four-year term of
incarceration without the proposed sentencing term of judicial early release. This appeal
ensued.
{¶ 12} In the sole assignment of error, appellant maintains that the trial court erred
in declining to include the conditional plea bargain term of unopposed judicial early
release. We do not concur.
{¶ 13} It is well-established that pursuant to R.C. 2953.08(G)(2), an appellate
court may increase, decrease, modify, or vacate a disputed trial court felony sentence if it
is demonstrated by clear and convincing evidence that either the record of evidence did
not support applicable statutory findings or is otherwise contrary to law. State v.
Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 11.
4. {¶ 14} In support of this appeal, appellant mistakenly characterizes the trial court
as having unconditionally “guaranteed” adherence to all proposed plea bargain terms
upon final sentencing. The record clearly refutes this contention.
{¶ 15} On the contrary, the record shows that appellant’s intervening bond
violations necessitated the trial court’s decision to not include unopposed judicial early
release at appellant’s sentencing hearing.
{¶ 16} The record shows that appellant was duly advised of the consequences of
bond violations at the change of plea hearing. At the March 8, 2019 change of plea
hearing, the trial court expressly cautioned appellant that, “If you violate your bond, then
the agreement as to judicial release is off the table, and you will be doing the four years.”
{¶ 17} The record further shows that following this hearing, appellant committed
the numerous above-described infractions and bond violations.
{¶ 18} The record reflects that appellant possesses a lengthy criminal history,
including in excess of 80 prior offenses, including 6 prior OVI offenses, as well as a
range of other offenses, including heroin trafficking, receiving stolen property,
aggravated burglary, and felonious assault.
{¶ 19} On April 23, 2019, appellant was sentenced. The trial court was presented
with uncontroverted evidence of appellant’s many bond violations occurring after the
March 8, 2019 change of plea hearing.
{¶ 20} In response to the above-described considerable aggravating circumstances,
appellant’s statement in mitigation unconvincingly conveyed that, “It was really hard for
5. me, sometimes I was sleeping and with the thing, the [home monitoring] box thing * * *
I didn’t unplug it. Like I knew I had a warrant * * * Like you want to punish me like.
I[‘m] going through enough punishment right now.”
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[Cite as State v. Dennis, 2020-Ohio-2861.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT ERIE COUNTY
State of Ohio Court of Appeals No. E-19-032
Appellee Trial Court No. 2017 CR 0428
v.
Justin D. Dennis DECISION AND JUDGMENT
Appellant Decided: May 8, 2020
*****
Kevin J. Baxter, Erie County Prosecuting Attorney, and Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee.
Russell V. Leffler, for appellant.
OSOWIK, J.
{¶ 1} This is an appeal from an April 23, 2019 judgment of the Erie County Court
of Common Pleas, sentencing appellant to a total term of incarceration of four years
following appellant’s guilty pleas to two counts of operating a motor vehicle while under
the influence of alcohol, in violation of R.C. 4511.19, both offenses being felonies of the
fourth degree, as enhanced based upon appellant’s six prior OVI convictions. {¶ 2} Although the plea bargain discussions included a proposed provision for
unopposed judicial release into a residential treatment program after a period of 60 days,
this term was expressly contingent upon appellant committing no bond violations.
{¶ 3} Subsequent to the change of plea hearing, appellant committed numerous
bond violations, in direct contravention of the above-described conditional plea
provision. Therefore, the provision regarding unopposed early release was nullified by
the intervening bond violations and not incorporated into appellant’s sentence, just as the
trial court had forewarned appellant would occur upon bond violations.
{¶ 4} We note that while appellee contends that a portion of this appeal should not
be considered based upon procedural considerations, we shall resolve this matter fully on
the substantive merits. For the reasons set forth below, this court affirms the judgment
of the trial court.
{¶ 5} Appellant, Justin D. Dennis, sets forth the following sole assignment of
error:
IT WAS ERROR FOR THE TRIAL COURT TO BECOME
INVOLVED IN GUARANTEEING THE PLEA BARGAIN PROCESS
AND THEN VACATING SAME ON A MOTION FILED BY THE
STATE WITH NO HEARING HELD ON THE MOTION TO REVOKE
BOND AND THE GROUNDS FOR TERMINATING THE PLEA
BARGAIN WERE INSUFFICIENT.
2. {¶ 6} The following undisputed facts are relevant to this appeal. On August 13,
2017, appellant was clocked on radar by an Ohio State Highway patrolman travelling
60 m.p.h. in a 35 m.p.h. zone. Upon initiating a traffic stop, the officer detected
numerous indicia of alcohol intoxication. Appellant, who possesses numerous past OVI
convictions, exhibited a strong odor of alcohol, glossy eyes, and slurred speech.
Appellant failed the field sobriety tests and refused BAC testing. In addition, appellant
lacked a valid operator’s license as he was under suspension for a prior OVI offense at
the time of this incident.
{¶ 7} Subsequently, on April 13, 2018, appellant was again stopped by an Ohio
State Highway patrolman, following observation of a marked lanes violation. Appellant
was again found to be operating a motor vehicle while under the influence of alcohol and
a license suspension. Appellant failed field sobriety testing and refused BAC testing.
{¶ 8} On March 8, 2019, appellant entered into a comprehensive plea agreement in
which appellant pled guilty to two counts of operating a motor vehicle while under the
influence of alcohol, in violation of R.C. 4511.19, both counts being felonies of the
fourth degree due to appellant’s six OVI prior convictions. In exchange, a repeat
offender specification was dismissed.
{¶ 9} At the March 8, 2019 change of plea hearing, the trial court unequivocally
conveyed to appellant in relevant part, “As part of this plea agreement, if you violate your
bond, then the agreement as to judicial release is off the table, and you will be doing the
four years without judicial release.” (Emphasis added).
3. {¶ 10} The record reflects that subsequent to the plea hearing, in contravention of
the above-quoted agreement, appellant committed multiple bond violations. Specifically,
appellant disconnected his house arrest monitoring device, left his home numerous times
in the middle of the night without notifying or receiving authorization from probation
personnel, refused to cooperate in the presentence investigation, failed to report to
probation, refused to answer his door when probation personnel were dispatched to
follow-up on these breaches, provided an invalid phone number to probation, and failed
to respond to any of the communications from the probation department needed to
monitor bond compliance and prepare the presentence report.
{¶ 11} Given these violations, and in accordance with the conditions conveyed to
appellant at the change of plea colloquy, appellant was sentenced to a four-year term of
incarceration without the proposed sentencing term of judicial early release. This appeal
ensued.
{¶ 12} In the sole assignment of error, appellant maintains that the trial court erred
in declining to include the conditional plea bargain term of unopposed judicial early
release. We do not concur.
{¶ 13} It is well-established that pursuant to R.C. 2953.08(G)(2), an appellate
court may increase, decrease, modify, or vacate a disputed trial court felony sentence if it
is demonstrated by clear and convincing evidence that either the record of evidence did
not support applicable statutory findings or is otherwise contrary to law. State v.
Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 11.
4. {¶ 14} In support of this appeal, appellant mistakenly characterizes the trial court
as having unconditionally “guaranteed” adherence to all proposed plea bargain terms
upon final sentencing. The record clearly refutes this contention.
{¶ 15} On the contrary, the record shows that appellant’s intervening bond
violations necessitated the trial court’s decision to not include unopposed judicial early
release at appellant’s sentencing hearing.
{¶ 16} The record shows that appellant was duly advised of the consequences of
bond violations at the change of plea hearing. At the March 8, 2019 change of plea
hearing, the trial court expressly cautioned appellant that, “If you violate your bond, then
the agreement as to judicial release is off the table, and you will be doing the four years.”
{¶ 17} The record further shows that following this hearing, appellant committed
the numerous above-described infractions and bond violations.
{¶ 18} The record reflects that appellant possesses a lengthy criminal history,
including in excess of 80 prior offenses, including 6 prior OVI offenses, as well as a
range of other offenses, including heroin trafficking, receiving stolen property,
aggravated burglary, and felonious assault.
{¶ 19} On April 23, 2019, appellant was sentenced. The trial court was presented
with uncontroverted evidence of appellant’s many bond violations occurring after the
March 8, 2019 change of plea hearing.
{¶ 20} In response to the above-described considerable aggravating circumstances,
appellant’s statement in mitigation unconvincingly conveyed that, “It was really hard for
5. me, sometimes I was sleeping and with the thing, the [home monitoring] box thing * * *
I didn’t unplug it. Like I knew I had a warrant * * * Like you want to punish me like.
I[‘m] going through enough punishment right now.”
{¶ 21} The trial court was not persuaded and concluded in relevant part, “[M]y
information is that you were not complying with the terms of house arrest. You were not
checking in on bond. You did not provide a valid number * * * You had unauthorized
leaves in the middle of the night.”
{¶ 22} Accordingly, appellant was sentenced to a four-year term of incarceration
without unopposed judicial early release, as appellant had been forewarned would occur
at the change of plea hearing.
{¶ 23} It is well-established that trial courts are not strictly bound by plea bargain
terms proposed by the parties, and intervening circumstances may warrant final
sentencing deviation from proposed plea bargain term. As conveyed in State v Bonnell,
12th Dist. Clermont No. CA-12-094, 2002-Ohio-5882, ¶ 20, “We recognize that there are
instances in which a trial court intends to sentence a defendant in one manner and
circumstances or facts arise which make the promised sentence inappropriate.”
{¶ 24} The Bonnell scenario is what occurred in the instant case. The trial court
hoped to sentence appellant with terms including unopposed judicial early release, but
cautioned appellant that it could not do so if appellant violated bond terms. Nevertheless,
appellant violated numerous bond terms, such that unopposed judicial early release was
no longer warranted or proper for sentencing purposes.
6. {¶ 25} We find that appellant has failed to establish that the trial court acted
improperly in sentencing appellant in connection to plea bargain considerations.
Appellant has also failed to demonstrate by clear and convincing evidence that the record
of evidence did not support applicable statutory findings, or was otherwise contrary to
law. We find appellant’s assignment of error not well-taken.
{¶ 26} On consideration whereof, the judgment of the Erie County Court of
Common Pleas is hereby affirmed. Appellant is ordered to pay the costs of this appeal
pursuant to App.R. 24.
Judgment affirmed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Arlene Singer, J. _______________________________ JUDGE Thomas J. Osowik, J. _______________________________ Christine E. Mayle, J. JUDGE CONCUR. _______________________________ JUDGE
This decision is subject to further editing by the Supreme Court of Ohio’s Reporter of Decisions. Parties interested in viewing the final reported version are advised to visit the Ohio Supreme Court’s web site at: http://www.supremecourt.ohio.gov/ROD/docs/.
7.