State v. Gay

2021 Ohio 970

• Court: Ohio Court of Appeals
• Decided: March 26, 2021
• Docket: 28851
• Status: Published

Opinion

[Cite as State v. Gay, 2021-Ohio-970.]

IN THE COURT OF APPEALS OF OHIO SECOND APPELLATE DISTRICT MONTGOMERY COUNTY

STATE OF OHIO : : Plaintiff-Appellee : Appellate Case No. 28851 : v. : Trial Court Case No. 2019-CR-860 : JORDAN DEON GAY : (Criminal Appeal from : Common Pleas Court) Defendant-Appellant : :

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OPINION

Rendered on the 26th day of March, 2021.

MATHIAS H. HECK, JR., by HEATHER N. KETTER, Atty. Reg. No. 0084470, Assistant Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, Montgomery County Courts Building, 301 West Third Street, Dayton, Ohio 45422 Attorney for Plaintiff-Appellee

MARKUS L. MOLL, Atty. Reg. No. 0093795, 2621 Dryden Road, Suite 306, Dayton, Ohio 45439 Attorney for Defendant-Appellant

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TUCKER, P.J. -2-

{¶ 1} Jordan Deon Gay appeals from his convictions, on his guilty plea, for

improper discharge of a firearm at or into a habitation and arson. On appeal, Gay

challenges the length of the sentence imposed, which was longer than the sentence to

which the parties and the trial court had agreed as part of his plea agreement. The State

of Ohio concedes that the trial court erred when it sentenced Gay to a prison term that

exceeded the agreed-upon prison term. This concession is accepted, and we reverse

the trial court’s judgment and remand for further proceedings. Upon remand, the trial

court may either impose the agreed-upon prison term or, if it determines that this prison

term is no longer appropriate, it must allow Gay the opportunity to withdraw his guilty plea.

Facts and Procedural History

{¶ 2} Gay was indicted on one count of felonious assault, one count of improperly

discharging a firearm at or into a habitation, and one count of arson. The felonious

assault and improper discharge counts included firearm specifications. The parties

ultimately entered into a plea agreement wherein Gay agreed to plead guilty to improper

discharge and arson; in return, the State agreed to dismiss the felonious assault and the

firearm specifications. Additionally, the parties agreed that Gay would be sentenced to

a five-year prison term, but that, assuming good prison behavior, he would be granted

judicial release after four years. The trial court indicated its approval and acceptance of

the plea agreement.

{¶ 3} Following completion of the Crim.R. 11 plea hearing, the trial court ordered

a presentence investigation report (PSI), and the sentencing hearing was scheduled four

weeks after the plea hearing. Gay was on an electronic home detention bond during this

period. Understanding that Gay would not be incarcerated pending sentencing, the trial -3-

court informed Gay to “make sure” he attended the PSI interview and to “come back to

court [on the scheduled date] for the imposition of sentence.” But the trial court did not

inform Gay that a failure to return for sentencing could result in a longer prison term.

{¶ 4} Gay did not appear at the sentencing hearing, and a capias was issued for

his arrest. Approximately three months later, Gay was arrested and brought before the

trial court for sentencing. Without informing Gay of its intent to do so, the trial court

imposed a six-year prison term, rather than the five-year term to which the parties and

the trial court had previously agreed. This appeal followed.

Analysis

{¶ 5} Gay’s sole assignment of error is as follows:

GAY’S GUILTY PLEA WAS NOT KNOWINGLY, INTELLIGENTLY, AND

VOLUNTARILY MADE.

{¶ 6} This case is controlled by our decision in State v. Layman, 2d Dist.

Montgomery No. 22307, 2008-Ohio-759. In that case, the defendant, Layman, pleaded

guilty to a fifth-degree felony with the agreement, accepted by the trial court, that any

prison term would not exceed seven months. Upon pleading guilty, the trial court

ordered a PSI, Layman’s bond was modified, and he was released from custody. The

trial court did not advise Layman of any conditions associated with the sentencing

agreement. Layman did not appear for the scheduled sentencing hearing, and a capias

was issued. Sometime later, Layman was arrested and brought before the trial court for

sentencing. Based upon Layman’s failure to appear, the trial court did not think it was

bound by the previously-agreed prison cap, and it imposed a ten-month prison term.

{¶ 7} We concluded that the trial court had erred; we reversed the trial court’s -4-

judgment, and the case was remanded “for either imposition of a seven-month prison

sentence or permission to Layman to withdraw his guilty plea.” Id. at ¶ 21. Our rationale

for this conclusion was based upon the proposition that “when a trial court

[unconditionally] promises a certain sentence, the promise becomes an inducement to

enter [the] plea, and unless that sentence is given, the plea is not voluntary.” (Citation

omitted.) Id. at ¶ 15, quoting State v. Bonnell, 12th Dist. Clermont No. CA2001-12-94,

2002-Ohio-5882, ¶ 18. Thus, a trial court “commits reversible error when it participates

in plea negotiations but fails to impose the promised sentence.” Id., quoting Bonnell at

¶ 18.

{¶ 8} But Layman recognized that changed circumstances could cause a trial court

to conclude that an agreed sentence was no longer appropriate. When this occurs, the

trial court must state its intent to deviate from the agreed sentence and provide the

defendant “the opportunity to withdraw [the] plea.” Id. at ¶ 19, quoting Bonnell at ¶ 22.

See also State v. Willey, 4th Dist. Washington No. 01 CA 37, 2002-Ohio-2849, ¶ 11.

{¶ 9} In this case, pursuant to Layman and based upon Gay’s conduct after he

pleaded guilty, the trial court was not required to impose the agreed five-year prison

sentence. But, before deviating from the agreement, the trial court was required to

inform Gay of this decision and to provide him with an opportunity to withdraw his guilty

plea. Since the trial court did not follow this procedure, the trial court’s judgment must

be reversed and remanded. Upon remand, the trial court must impose the agreed five-

year prison term or, in the alternative, inform Gay of its intent to impose a longer prison

term and give him an opportunity to withdraw the guilty plea.1

1 Though not discussed by the trial court at the sentencing hearing or by the parties in -5-

Conclusion

{¶ 10} The trial court’s judgment is reversed and remanded for further proceedings

consistent with this opinion.

HALL, J. and WELBAUM, J., concur.

Copies sent to:

Mathias H. Heck, Jr. Heather N. Ketter Markus L. Moll Hon. Mary Lynn Wiseman

this appeal, the same analysis is applicable to the judicial release agreement.