State v. Greene

2024 Ohio 363

• Court: Ohio Court of Appeals
• Decided: February 2, 2024
• Docket: 29836 & 29837
• Status: Published

Opinion

[Cite as State v. Greene, 2024-Ohio-363.]

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

STATE OF OHIO : : Appellee : C.A. No. 29836; 29837 : v. : Trial Court Case No. 2019 CR 04109/1; : 2019 CR 02796 ROBERT T. GREENE : : (Criminal Appeal from Common Pleas Appellant : Court) :

...........

OPINION

Rendered on February 2, 2024

MARY ADELINE R. LEWIS, Attorney for Appellant

MATHIAS H. HECK, JR., by SARAH H. CHANEY, Attorney for Appellee

WELBAUM, J.

{¶ 1} In these consolidated cases, Defendant-Appellant, Robert T. Greene,

appeals from judgments revoking his community control sanctions and imposing

consecutive prison sentences. When Greene initially pled guilty to multiple counts of

theft in two pending cases, he agreed to serve consecutive sentences in the event -2-

community control was revoked. After the sanctions were violated, the trial court held a

revocation hearing and sentenced Greene to an aggregate prison term of 48 months for

the two cases, which included some consecutive sentences.

{¶ 2} According to Greene, the court erred in imposing consecutive sentences

without making the appropriate findings under R.C. 2929.14(C)(4). However, Greene

had previously agreed to consecutive sentences in the event of revocation and was bound

by his agreement. The sentences, therefore, are not subject to review on appeal under

R.C. 2953.08(D)(1). Accordingly, the trial court’s judgments will be affirmed.

I. Facts and Course of Proceedings

{¶ 3} In the aftermath of the 2019 Memorial Day tornadoes that devastated parts

of the Miami Valley, Greene cheated victims (many of whom were elderly) out of

thousands of dollars by offering to repair their properties, collecting deposits, and

vanishing without having made repairs. As a result, Greene was indicted on more than

two dozen theft counts in Montgomery C.P. No. 2019 CR 04109/1 (26 counts). Greene

was also indicted on one count of theft in Montgomery C.P. No. 2019 CR 02796.1

{¶ 4} Greene did not initially appear after being indicted and was arrested more

than two years later in June 2022. In September 2022, Greene entered into a plea

agreement with the State and waiver and plea entries and orders were filed. In Case

1 Case No. 2019 CR 04109/1 did include two theft offenses that occurred in November

2018 and two that occurred between December 2018 through March 2019, i.e., before the tornadoes. See original indictment (“A”) and Reindictment B. Likewise, the crime in Case No. 2019 CR 02796 occurred between November 25, 2018, and March 14, 2019, which was before the tornadoes. Therefore, that case does not appear to have been generated as a result of the tornadoes, although it was treated as such in the trial court. -3-

No. 2019-CR-04109/1, several waiver and plea orders were filed. Three of these were

filed for the A indictment. In the first, Greene pled guilty to counts 1, 5, 7, 9, 11, 13, and

21 (all fifth-degree felonies). The court accepted the plea, found Greene guilty as to

these counts, and dismissed counts 2, 4, 6, 8, 10, 12, 14, 16, 18, 20, and 22. The second

plea on Indictment A was a guilty plea to counts 3, 17, and 19 (fourth-degree felonies);

the court accepted Greene’s plea and found him guilty. Regarding the third plea, Greene

pled guilty to count 15 (a first-degree misdemeanor). The court also accepted this plea

and found Greene guilty.

{¶ 5} One waiver and plea order was filed for the B Reindictment. In this instance,

Greene pled guilty to counts 1 and 3 (both fifth-degree felonies), and the court accepted

the plea and found him guilty. The court also dismissed counts 2 and 4 of that indictment.

{¶ 6} In Case No. 2019-CR-02796, Greene pled guilty to the only charge, a fourth-

degree felony, and the court accepted his plea and found him guilty. After accepting the

pleas, the court ordered a presentence investigation and set sentencing in both cases for

October 31, 2022.

{¶ 7} On November 9, 2022, the court filed termination entries in each case. In

both cases, the court sentenced Greene to community control sanctions for up to five

years. The sanctions included payment of restitution to 13 victims in amounts ranging

from $250 to $15,000 in Case No. 2019-CR-04109/1 and $3,500 in Case No. 2019-CR-

02796, for total restitution of $41,005.58. The combined amount to be paid toward

restitution for both cases was set at $300 per month. Both entries contained the

following language: “Court orders that if Defendant misses any monthly payments, -4-

instructed to file revo.” (Emphasis sic.)

{¶ 8} The termination entry in Case No. 2019-CR-04109/1 further stated that:

If you violate any conditions of this sanction, or if you violate any law,

the court can impose a longer time under the same sanction, impose a more

restrictive sanction, or a prison term of A INDICTMENT – COUNT 1 AND

COUNT 11: TWELVE MONTHS EACH COUNT, COUNTS 3 & 19:

EIGHTEEN (18) MONTHS EACH COUNT, COUNTS 5, 7, 9, 13, 21 –

TWELVE (12) MONTHS EACH COUNT, COUNT 15: ONE HUNDRED

EIGHTY DAYS (180) DAYS MONTGOMERY COUNTY JAIL, COUNT 17:

EIGHTEEN (18 MONTHS). ALL COUNTS CONCURRENT TO EACH

OTHER BUT CONSECUTIVE TO TWELVE (12) MONTHS IN B

INDICTMENT AND CONSECUTIVE TO CASE NO. 19-CR-2796. B

INDICTMENT – COUNT I: TWELVE (12) MONTHS, COUNT 3: TWELVE

(12) MONTHS, CONCURRENT WITH EACH OTHER BUT

CONSECUTIVE TO EIGHTEEN (18) MONTHS IN A INDICTMENT AND

CONSECUTIVE TO CASE NUMBER 19-CR-2796. FOR A TOTAL OF

FORTY-EIGHT (48) MONTHS.

(Capitalization and emphasis sic.) Termination Entry – Community Control, Case No.

2019-CR-04109/1 (Nov. 9, 2022), p. 1.

{¶ 9} Similarly, the entry in Case No. 2019-CR-02796 stated, “If you violate any

condition of this sanction, or if you violate any law, the court can impose a longer time

under the same sanction, impose a more restrictive sanction, or a prison term of -5-

EIGHTEEN (18) MONTHS CONSECUTIVE CASE NUMBER 4109/1 (48 months total).”

(Capitalization and emphasis sic.) Termination Entry – Community Control, Case No.

2019-CR-02796 (Nov. 9, 2022), p. 1. There is no dispute that the parties agreed to a

five-year term, but neither side appealed from these entries.2

{¶ 10} In December 2022, Greene was arrested for driving under

suspension/restrictions – child support/FTA; furnishing false information; and contempt in

C#2021 TRD 00080. Consequently, the State filed revocation motions. A revocation

hearing was set for February 2023, but Greene did not appear and a capias was issued.

After Greene was arrested, the court held a combined revocation hearing on May 22,

2023.

{¶ 11} During the revocation hearing, the court heard testimony from Greene’s

probation officer, Greene, and Greene’s fiancée. Transcript of Proceedings (Revocation

Hearing) (“Tr. 1”), 7-57. At that time, the court found Greene had violated two rules of

supervision and set a disposition hearing for May 30, 2023. Id. at 58 and 61. At the

revocation hearing, the State commented in closing remarks that “[i]t was very clear at

[Greene’s] sentencing, made crystal clear to him even a failed payment was enough for

sending him to [sic] for the five years that he agreed to serve if he violated anything. * * *

So it’s time for him to be revoked in accordance with the agreement that he made at

sentencing in a decision of [sic] five-year prison sentence.” Id. at 56-57.

2 The court also filed an amended termination entry in Case No. 2019-CR-04109/1 in

January 2023. This was only clerical, as the court simply added a reference in the case caption to counts 15 and 17. This entry contained the same language about revocation and consecutive sentences as found in the original termination entry. Again, neither side appealed. -6-

{¶ 12} During the disposition hearing on May 30, 2023, the court remarked that the

case arose from the tornado, where Greene had taken money from “quite a number of

victims” to do the work and did not do it, so “[t]his was a really exploitative type of

situation.” Id. at 63. The court noted the content in the original termination entries and

the agreement for five years (or 60 months) and attempted to reconcile these matters by

indicating that perhaps it should change the sentence in one of the cases. Id. at 65.

The court then said, concerning consecutive sentences, that:

We do have consecutive sentences there, so first of all, I believe that

would be in compliance with 2929.14(C) because the parties agreed to this

sentence. It’s an agreed sentence, but otherwise, we find that, again,

because of this situation where there was a tornado that occurred,

individuals were subject to difficult circumstances, their homes had been

damaged in the tornado – Mr. Greene seized on that situation, took money

from people, represented he would do work to repair their homes, did not

come back, and did not do the work. And some of these folks are elderly

and otherwise in difficult circumstances. So the court finds that at least two

of the multiple offenses were committed as part of one or more course of

conduct, and the harm caused by two or more of the (indiscernible) offenses

so committed was so great or unusual that a single prison term for any one

offense committed as part of the course of conduct adequately [sic] reflects

the seriousness of the defendant’s conduct. And the – for that reason, the

court sentences [him] to consecutive sentences under R.C. 2929.14(C). -7-

Id. at 65-66.

{¶ 13} Subsequently, on June 5, 2023, the court held another sentencing hearing.

At that time, the court said that after reviewing the termination entries, “it has been

determined that the amount of months indicated [at the May hearing] is not correct. It’s

actually greater than what is permitted by the prior term[ination] entries.” Transcript of

Proceedings (Sentencing Hearing) (“Tr. 2”), 2. After stating it would correct this error,

the court said, “Just for the record, I’m reiterating the indications I made last week

considering the statute and the type of violations, considering the seriousness and

recidivism factors, all those things are reaffirmed except changing this now for the

appropriate entry.” Id. at 2-3.

{¶ 14} The court then imposed a total sentence of 48 months. This consisted in

Case No. 2019-CR-04109/1 of a total of 18 months on the A indictment (where all

sentences were concurrent) and 12 months on the B indictment, which was to be served

consecutive to the A indictment. This amounted to 30 months in prison. Both of these

sentences were imposed consecutive to the 18-month sentence in Case No. 2019-CR-

02796, meaning the court imposed a total sentence of 48 months for both cases. Id. at

3. The court stressed that while it may have made a calculation error in November 2022,

it did not believe it could “go greater than what the aggregate sentence is” and could not

change the term post-sentence. Id. at 3-4. At that point, the State objected, and the

court remarked that both sides had the right to appeal. Id. at 4-5.

{¶ 15} On June 15, 2023, the court filed termination entries in both cases, imposing

an aggregate prison term of 48 months and crediting Greene with 118 days of jail-time -8-

credit. The court also added consecutive sentence language under R.C. 2929.14(C)(4)

with respect to multiple offenses and the great and unusual harm caused. Termination

Entry, Case No. 2019-CR-04109/1 (June 15, 2023), p.1; Termination Entry, Case No.

2019-CR-02796 (June 15, 2023), p. 1. Greene then filed a notice of appeal in both cases

on June 17, 2023. He did not ask for leave to file a delayed appeal as to his original

pleas and agreement. The State did not cross-appeal.

{¶ 16} In August 2023, we consolidated the appeals. We later granted the State

leave to supplement the record with transcripts from the May 22, 2023 revocation hearing

and the May 30, 2023 sentencing hearing. See Order Sustaining Motion to Supplement

the Record (Oct. 20, 2023).

II. Consecutive Sentences

{¶ 17} Under his sole assignment of error, Greene argues that the trial court erred

by sentencing him to consecutive sentences without making the proper findings under

R.C. 2929.14(C)(4). In response, the State contends the court did not need to make

findings for consecutive sentences because the parties had jointly agreed to the sentence

and the court no longer needed to justify the sentence. Appellee’s Brief, p. 5, citing State

v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d 690, ¶ 25.

{¶ 18} “It is well established that when reviewing felony sentences, this court must

apply the standard of review set forth in R.C. 2953.08(G)(2).” State v. McCoy, 2d Dist.

Champaign No. 2023-CA-11, 2024-Ohio-98, ¶ 24, citing State v. Marcum, 146 Ohio St.3d

516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 7. “Under that statute, an appellate court may -9-

increase, reduce, or modify a sentence, or it may vacate the sentence and remand for

resentencing, only if it clearly and convincingly finds either: (1) the record does not support

the sentencing court's findings under certain enumerated statutes, or (2) the sentence is

otherwise contrary to law.” Id., citing Marcum at ¶ 9.

{¶ 19} According to Greene, his sentence is contrary to law because the trial court

failed to make all the findings required by R.C. 2929.14(C)(4). This statute provides that:

If multiple prison terms are imposed on an offender for convictions of

multiple offenses, the court may require the offender to serve the prison

terms consecutively if the court finds that the consecutive service is

necessary to protect the public from future crime or to punish the offender

and that consecutive sentences are not disproportionate to the seriousness

of the offender's conduct and to the danger the offender poses to the public,

and if the court also finds any of the following:

(a) The offender committed one or more of the multiple offenses

while the offender was awaiting trial or sentencing, was under a sanction

imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the Revised

Code, or was under post-release control for a prior offense.

(b) At least two of the multiple offenses were committed as part of

one or more courses of conduct, and the harm caused by two or more of

the multiple offenses so committed was 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 reflects the seriousness of the offender's conduct. -10-

(c) The offender's history of criminal conduct demonstrates that

consecutive sentences are necessary to protect the public from future crime

by the offender.

{¶ 20} “When imposing consecutive sentences, a trial court must state the required

findings as part of the sentencing hearing, and by doing so it affords notice to the offender

and to defense counsel. And because a court speaks through its journal, the court

should also incorporate its statutory findings into the sentencing entry.” (Citations

omitted.) State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 29.

{¶ 21} Greene contends that while the trial court made an appropriate finding as

to R.C. 2929.14(C)(4)(b) – that two of the multiple offenses were committed as part of

one or more courses of conduct, and the harm caused by two or more of the multiple

offenses committed was 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 reflects the

seriousness of the offender’s conduct – it did not find, as required by R.C. 2929.14(C)(4),

that consecutive service was necessary to protect the public from future crime or to punish

the offender and that the consecutive sentences were not disproportionate to the

seriousness of the conduct and to the danger posed to the public. As noted, the State

asserts that statutory findings were not needed because this was an agreed sentence.

{¶ 22} As relevant here, R.C. 2953.08(D)(1) provides that “[a] sentence imposed

upon a defendant is not subject to review under this section if the sentence is authorized

by law, has been recommended jointly by the defendant and the prosecution in the case,

and is imposed by a sentencing judge.” “Agreed” or “jointly recommended” sentences -11-

are generally not reviewable on appeal. State v. Turner, 2d Dist. Montgomery No.

24421, 2011-Ohio-6714, ¶ 31. “The General Assembly intended a jointly agreed-upon

sentence to be protected from review precisely because the parties agreed that the

sentence is appropriate. Once a defendant stipulates that a particular sentence is

justified, the sentencing judge no longer needs to independently justify the sentence.”

Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d 690, at ¶ 25. See also State

v. Gurra, 2d Dist. Miami No. 2015-CA-28, 2016-Ohio-5647, ¶ 14 (“an agreed-upon

sentence that is authorized by law is simply not subject to review on appeal”); State v.

Carmichael, 2d Dist. Clark No. 2020-CA-7, 2020-Ohio-6767, ¶ 18; State v. Boddie, 2d

Dist. Clark No. 2018-CA-111, 2019-Ohio-2246, ¶ 3 and 6.

{¶ 23} In this case, the record contains ample evidence indicating there was an

agreed or jointly-recommended sentence. No place was it more evident than at the May

30 disposition, where the court stated: “Mr. Greene made an agreement, and I think the

State was very vehement that if he didn't comply, he had the five-year term. And I think

it's clear he didn't comply, and you have to have the consequences of that.” Tr. 1 at 63.

Furthermore, as noted, the court went on to stress, “We do have consecutive sentences

there, so first of all, I believe that would be in compliance with [R.C.] 2929.14(C)(4)

because the parties agreed to this sentence. It's an agreed sentence.” (Emphasis

added.) Id. at 65.

{¶ 24} As noted above, R.C. 2953.08(D)(1) provides that “[a] sentence imposed

upon a defendant is not subject to review under this section if the sentence is authorized

by law, has been recommended jointly by the defendant and the prosecution in the case, -12-

and is imposed by a sentencing judge.” The question here is whether the trial court was

required to comply with R.C. 2929.14(C)(4) when it imposed a lesser sentence than what

the parties jointly recommended.

{¶ 25} In State v. Sergent, the Supreme Court of Ohio considered the meaning of

“authorized by law” in R.C. 2953.08(D)(1). As here, the alleged error was the trial court's

failure to make the required findings under R.C. 2929.14(C)(4). State v. Sergent, 148

Ohio St.3d 94, 2016-Ohio-2696, 69 N.E.3d 627, ¶ 7-8.

{¶ 26} In considering the matter, the court noted its prior holding that “ ‘[a] sentence

is ‘authorized by law’ and is not appealable within the meaning of R.C. 2953.08(D)(1) only

if it comports with all mandatory sentencing provisions.’ ” (Emphasis sic.) Id. at ¶ 26,

quoting State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923,

paragraph two of the syllabus. Underwood involved merger of allied offenses and held

that merger is a mandatory sentencing requirement due to R.C. 2941.25(A), which

prohibits courts “ ‘from imposing individual sentences for counts that constitute allied

offenses of similar import.’ ” Id. at ¶ 27, quoting Underwood at ¶ 26. Therefore, where

a trial court fails to comply with merger requirements, a defendant may appeal the

sentence despite the restriction in R.C. 2953.08(D)(1).

{¶ 27} In contrast, imposing consecutive sentences is discretionary. In this

regard, Sergent noted the following comments in Underwood:

“We have acknowledged that ‘[t]he General Assembly intended a jointly

agreed-upon sentence to be protected from review precisely because the

parties agreed that the sentence is appropriate. Once a defendant -13-

stipulates that a particular sentence is justified, the sentencing judge no

longer needs to independently justify the sentence.’ State v. Porterfield,

106 Ohio St.3d 5, 2005-Ohio-3095, 829 N.E.2d 690, ¶ 25. However,

Porterfield did not involve a mandatory sentencing provision, but merely the

discretionary decision to impose consecutive sentences.”

(Emphasis added.) Sergent at ¶ 28, quoting Underwood at ¶ 27.

{¶ 28} Thus, the court held in Sergent that “in the context of a jointly recommended

sentence that includes nonmandatory consecutive sentences, a trial court is not required

to make the consecutive-sentence findings set out in R.C. 2929.14(C)(4). Accordingly,

when a trial judge imposes such an agreed sentence without making those findings, the

sentence is nevertheless ‘authorized by law’ and not reviewable on appeal pursuant to

R.C. 2953.08(D)(1).” Id. at ¶ 43.

{¶ 29} Applying the above authority here, a sentence is also not reviewable on

appeal under R.C. 2953.08(D)(1) where a defendant agrees to or jointly recommends a

sentence and the trial court imposes a lesser sentence. In this context, we focus on

Sergent's reference to a defendant's agreement or stipulation that a particular sentence

is appropriate or justified.

{¶ 30} As a general rule, “[a]greements, waivers, and stipulations made by persons

accused of crimes, or by their counsel in their presence, during the course of a trial for

crime, are, after the termination of the trial, as binding and enforceable upon such persons

as like agreements, waivers, and stipulations are upon parties to civil actions.” State ex

rel. Warner v. Baer, 103 Ohio St. 585, 134 N.E. 786 (1921), paragraph four of the syllabus. -14-

Accord State v. Robbins, 176 Ohio St. 362, 199 N.E.2d 742 (1964), paragraph two of the

syllabus; State v. Moore, 2d Dist. Montgomery No. 13519, 1993 WL 211561, *4 (June 14,

1993); State v. Sancho, 8th Dist. Cuyahoga No. 91903, 2009-Ohio-5478, ¶ 29 (stipulation

to order of restitution); State v. Brewer, 12th Dist. Clermont No. CA2002-03-025, 2003-

Ohio-1064, ¶ 13 (restitution stipulation). While the majority of these cases involved

agreements or stipulations that occurred during trial, there is no reason not to apply the

same principles to sentences. If a defendant stipulates or agrees to a particular

sentence, there is no logical basis for challenging a lower sentence that is imposed. As

the Supreme Court of Ohio has said, where a sentence is agreed or stipulated as

appropriate or justified, a trial court need not independently explain why the sentence is

being imposed. Sergent, 148 Ohio St.3d 94, 2016-Ohio-2696, 69 N.E.3d 627, at ¶ 28.

Consequently, Greene is not entitled to appeal his sentence.

{¶ 31} In these circumstances, the State has a right to appeal, but defendants like

Greene do not. See R.C. 2945.67(A) (noting that “[i]n addition to any other right to

appeal under this section or any other provision of law, a prosecuting attorney * * * may

appeal, in accordance with section 2953.08 of the Revised Code, a sentence imposed

upon a person who is convicted of or pleads guilty to a felony”).

{¶ 32} It is true that the sentence here was imposed after revocation. Under R.C.

2929.15(B), when trial courts sentence defendants for violation of community control

sanctions, they have various options, including: (1) imposing a longer time under the

same sanction; (2) imposing more restrictive sanctions, like financial sanctions,

community residential sanctions or a “new term” of up to six months in a “community -15-

based correctional facility, halfway house, or jail”; or (3) imposing prison terms, with

certain limitations if the violation is only technical. R.C. 2929.15(B)(1)(a)-c).

{¶ 33} “ ‘It is well-established that any penalty imposed for violating a condition of

one's community control sanctions is a punishment for that violation and not for the

original underlying offense.’ ” State v. Maines, 12th Dist. Warren No. CA2019-09-088,

2020-Ohio-3502, ¶ 11, quoting State v. Richter, 12th Dist. Clermont No. CA2014-06-040,

2014-Ohio-5396, ¶ 8. Thus, the Supreme Court of Ohio has said that “a court sentencing

an offender at a revocation hearing ‘sentences the offender anew and must comply with

the relevant sentencing statutes.’ ” State v. Howard, 162 Ohio St.3d 314, 2020-Ohio-

3195, 165 N.E.3d 1088, ¶ 19, quoting State v. Fraley, 105 Ohio St.3d 13, 2004-Ohio-

7110, 821 N.E.2d 995, ¶ 17.

{¶ 34} Nonetheless, that does not alter the nature of a defendant’s stipulation or

agreement to the consecutive sentence on revocation, nor does it impose a burden on

the trial court in that instance to comply with the requirements of R.C. 2929.14(C)(4). As

a preliminary point, Howard did not involve an agreed sentence; instead, the defendant

in that case was convicted following a bench trial. Id. at ¶ 2. Furthermore, as noted,

“an agreed sentence authorized by law is not appealable. R.C. 2953.08(D)(1) expressly

deems such sentences as nonappealable. Appellate courts are precluded from

reviewing them. Second, inherent in an agreed sentence is a quid pro quo arrangement

where the defendant and prosecutor have either given up something or attained

something in exchange for being bound by a nonappealable sentence.” State v.

Huffman, 8th Dist. Cuyahoga No. 105805, 2018-Ohio-1192, ¶ 17. -16-

{¶ 35} “Agreed sentences serve an important function in Ohio's justice system.

For defendants, they are an effective tool to ‘cap’ or limit sentencing exposure. This is

especially true where the defendant is facing significant jail time either due to the severity

of the individual offense or the sheer volume of offenses. In these instances, the

defendant is giving up the right of appeal to be secure in the knowledge that he or she

will not be subject to a greater punishment than the agreed sentence.” Id. at ¶ 19.

{¶ 36} “For prosecutors, an agreed sentence secures a plea to perhaps a difficult

or uncomfortable case in exchange for an understanding that a sentence will be to a level

or range that the prosecutor deems satisfies the victim or society as a whole.” Id. See

also State v. Gilroy, 195 Ohio App.3d 173, 2011-Ohio-4163, 959 N.E.2d 19, ¶ 22 (2d

Dist.), citing State v. Adkins, 161 Ohio App.3d 114, 2005-Ohio-2577, 829 N.E.2d 729 (4th

Dist.) (noting “[a] plea agreement is a contract between the prosecution and a criminal

defendant, and is governed by principles of contract law. * * * If one side breaches the

agreement, the other side is entitled to rescission or specific performance.”)

{¶ 37} These agreements do not bind trial courts, as courts “may reject plea

agreements and * * * are not bound by a jointly recommended sentence.” Underwood,

124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, at ¶ 28. In addition, trial courts retain

discretionary power regarding penalties on revocation. However, the agreement is

binding as to a defendant like Greene, who agrees to a non-appealable consecutive

sentence. He may not then escape the agreement and require the trial court to make

findings under R.C. 2929.14(C)(4). Accordingly, Greene’s sole assignment of error is

overruled. -17-

III. Conclusion

{¶ 38} Greene’s sole assignment of error having been overruled, the judgments of

the trial court will be affirmed.

.............

EPLEY, P.J. concurs in judgment only.

HUFFMAN, J., concurs.