[Cite as State v. Liles, 2015-Ohio-3093.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-14-61
v.
DEMOND D. LILES, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court Trial Court No. CR2013 0472
Judgment Affirmed
Date of Decision: August 3, 2015
APPEARANCES:
Kenneth J. Rexford for Appellant
Terri L. Kohlrieser for Appellee Case No. 1-14-61
SHAW, J.
{¶1} Defendant-appellant, Demond D. Liles (“Liles”), appeals the
December 2, 2014 judgment of the Allen County Court of Common Pleas,
accepting his guilty plea and convicting him on four counts of Trafficking in
Cocaine each with a vehicle forfeiture specification and one with a major drug
offender specification, and sentencing him to a prison term of twenty-five years.
{¶2} On December 12, 2013, the Allen County Grand Jury returned a
fifteen-count indictment against Liles stating the following charges: Count One:
Trafficking in Cocaine, with a vehicle forfeiture specification, in violation of R.C.
2925.03(A)(1), (C)(4)(c), a felony of the fourth degree; Count Two: Permitting
Drug Abuse, with a vehicle forfeiture specification, in violation of R.C.
2925.13(A), a felony of the fifth degree; Count Three: Trafficking in Cocaine,
with a vehicle forfeiture specification, in violation of R.C. 2925.03(A)(1),
(C)(4)(d), a felony of the third degree; Count Four: Permitting Drug Abuse, with a
vehicle forfeiture specification, in violation of R.C. 2925.13(A), a felony of the
fifth degree; Count Five: Trafficking in Cocaine, with a vehicle forfeiture
specification, in violation of R.C. 2925.03(A)(1), (C)(4)(e), a felony of the second
degree; Count Six: Permitting Drug Abuse, with a vehicle forfeiture specification,
in violation of R.C. 2925.13(A), a felony of the fifth degree; Count Seven:
Trafficking in Cocaine, with a vehicle forfeiture specification, in violation of R.C.
-2- Case No. 1-14-61
2925.03(A)(1), (C)(4)(f), a felony of the first degree; Count Eight: Permitting
Drug Abuse, with a vehicle forfeiture specification, in violation of R.C.
2925.13(A), a felony of the fifth degree; Count Nine: Trafficking in Cocaine, with
a vehicle forfeiture specification, in violation of R.C. 2925.03(A)(1), (C)(4)(e), a
felony of the second degree; Count Ten: Permitting Drug Abuse, with a vehicle
forfeiture specification, in violation of R.C. 2925.13(A), a felony of the fifth
degree; Count Eleven: Trafficking in Cocaine, with both a vehicle forfeiture
specification and a major drug offender (“MDO”) specification, in violation of
R.C. 2925.03(A)(1), (C)(4)(g), a felony of the first degree; Count Twelve:
Permitting Drug Abuse, with a vehicle forfeiture specification, in violation of R.C.
2925.13(A), a felony of the fifth degree; Count Thirteen: Trafficking in Cocaine,
in violation of R.C. 2925.03(A)(1), (C)(4)(f), a felony of the first degree; Count
Fourteen: Permitting Drug Abuse, in violation of R.C. 2925.13(A), a felony of the
fifth degree; Count Fifteen: Possession of Cocaine, in violation of R.C.
2925.11(A), (C)(4)(e), a felony of the first degree.
{¶3} The charges stemmed from Liles’ participation in a series of
controlled drug transactions for the sale of cocaine with a confidential informant.
Liles subsequently entered a plea of not guilty to the charges and the case
proceeded to discovery.
{¶4} On September 22, 2014, Liles appeared in court and pursuant to a
-3- Case No. 1-14-61
negotiated plea agreement withdrew his previously tendered plea of not guilty and
entered a plea of guilty to Count One: Trafficking in Cocaine, with a vehicle
forfeiture specification, a felony of the fourth degree; Count Five: Trafficking in
Cocaine, with a vehicle forfeiture specification, a felony of the second degree;
Count Seven: Trafficking in Cocaine, with a vehicle forfeiture specification, a
felony of the first degree; and Count Eleven: Trafficking in Cocaine, with both a
vehicle forfeiture specification and a major drug offender specification, a felony of
the first degree. The prosecution dismissed the remaining eleven counts listed in
the indictment as a result of the parties’ agreement. As part of the plea deal, the
prosecution specifically reserved the right to be heard at sentencing, but agreed not
to make a sentencing recommendation.
{¶5} The trial court accepted Liles’ guilty plea and entered a finding of
guilt. The matter was continued for sentencing and the preparation of a pre-
sentence investigation.
{¶6} On December 1, 2014, Liles appeared for sentencing at which time the
trial court heard statements from the prosecutor, defense counsel, Liles, and
persons speaking on Liles’ behalf and in mitigation for sentencing purposes. The
trial court sentenced Liles to a prison term of twelve months on Count One; a
mandatory prison term of six years on Count Five; a mandatory prison term of
seven years on Count Seven; and a mandatory prison term of eleven years on
-4- Case No. 1-14-61
Count Eleven. The trial court ordered the prison terms to run consecutively for a
total stated prison term of twenty-five years.
{¶7} Liles filed this appeal, asserting the following assignments of error.
ASSIGNMENT OF ERROR NO. I THE SENTENCE SHOULD BE REVERSED AND REMANDED BECAUSE THE PROSECUTION BREACHED THE PLEA AGREEMENT, THEREBY DENYING TO MR. LILES DUE PROCESS OF LAW AS GUARANTEED TO HIM BY BOTH THE UNITED STATES CONSTITUTION AND OHIO CONSTITUTION.
ASSIGNMENT OF ERROR NO. II
THE BREACH OF THE PLEA AGREEMENT BY THE PROSECUTION WAS PLAIN ERROR THAT THE TRIAL COURT SHOULD HAVE CORRECTED.
ASSIGNMENT OF ERROR NO. III
TRIAL COUNSEL FOR THE DEFENSE WAS INEFFECTIVE FOR INSUFFICIENTLY OBJECTING TO THE BREACH OF CONTRACT BY THE STATE OF OHIO.
ASSIGNMENT OF ERROR NO. IV
THE PROSECUTION ENGAGED IN PROSECUTORIAL MISCONDUCT BY ADVOCATING FOR A LENGTHY SENTENCE IN THE FACE OF A NEGOTIATED SETTLEMENT CALLING FOR NO SUCH ADVOCATING.
ASSIGNMENT OF ERROR NO. V
THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES BECAUSE THE RECORD DOES NOT SUPPORT THE SENTENCING COURT’S FINDINGS THAT ARE NECESSARY TO IMPOSE CONSECUTIVE SENTENCES.
-5- Case No. 1-14-61
{¶8} Due to their interrelated nature, we elect to discuss the first, second,
third, and fourth assignments of error together.
First, Second, Third, and Fourth Assignments of Error
{¶9} In these assignments of error, Liles maintains that the prosecutor
breached the plea agreement when he made remarks during the sentencing hearing
advocating for a lengthy sentence after he agreed to make no sentencing
recommendation. Liles asserts that the prosecutor’s actions amounted to
prosecutorial misconduct and affected his substantial rights because the
prosecutor’s comments improperly influenced the trial court’s sentence. Liles also
acknowledges that no specific objection was made to the prosecutor’s statements
regarding the length of sentence at the sentencing hearing, but urges this Court to
reverse his conviction and sentence under a plain error review. Liles also claims
that his trial counsel was ineffective for failing to object to the prosecutor’s
statements at the sentencing hearing.
{¶10} For its part, the State maintains that the prosecutor’s statements at
sentencing did not breach the plea agreement.
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[Cite as State v. Liles, 2015-Ohio-3093.]
IN THE COURT OF APPEALS OF OHIO THIRD APPELLATE DISTRICT ALLEN COUNTY
STATE OF OHIO,
PLAINTIFF-APPELLEE, CASE NO. 1-14-61
v.
DEMOND D. LILES, OPINION
DEFENDANT-APPELLANT.
Appeal from Allen County Common Pleas Court Trial Court No. CR2013 0472
Judgment Affirmed
Date of Decision: August 3, 2015
APPEARANCES:
Kenneth J. Rexford for Appellant
Terri L. Kohlrieser for Appellee Case No. 1-14-61
SHAW, J.
{¶1} Defendant-appellant, Demond D. Liles (“Liles”), appeals the
December 2, 2014 judgment of the Allen County Court of Common Pleas,
accepting his guilty plea and convicting him on four counts of Trafficking in
Cocaine each with a vehicle forfeiture specification and one with a major drug
offender specification, and sentencing him to a prison term of twenty-five years.
{¶2} On December 12, 2013, the Allen County Grand Jury returned a
fifteen-count indictment against Liles stating the following charges: Count One:
Trafficking in Cocaine, with a vehicle forfeiture specification, in violation of R.C.
2925.03(A)(1), (C)(4)(c), a felony of the fourth degree; Count Two: Permitting
Drug Abuse, with a vehicle forfeiture specification, in violation of R.C.
2925.13(A), a felony of the fifth degree; Count Three: Trafficking in Cocaine,
with a vehicle forfeiture specification, in violation of R.C. 2925.03(A)(1),
(C)(4)(d), a felony of the third degree; Count Four: Permitting Drug Abuse, with a
vehicle forfeiture specification, in violation of R.C. 2925.13(A), a felony of the
fifth degree; Count Five: Trafficking in Cocaine, with a vehicle forfeiture
specification, in violation of R.C. 2925.03(A)(1), (C)(4)(e), a felony of the second
degree; Count Six: Permitting Drug Abuse, with a vehicle forfeiture specification,
in violation of R.C. 2925.13(A), a felony of the fifth degree; Count Seven:
Trafficking in Cocaine, with a vehicle forfeiture specification, in violation of R.C.
-2- Case No. 1-14-61
2925.03(A)(1), (C)(4)(f), a felony of the first degree; Count Eight: Permitting
Drug Abuse, with a vehicle forfeiture specification, in violation of R.C.
2925.13(A), a felony of the fifth degree; Count Nine: Trafficking in Cocaine, with
a vehicle forfeiture specification, in violation of R.C. 2925.03(A)(1), (C)(4)(e), a
felony of the second degree; Count Ten: Permitting Drug Abuse, with a vehicle
forfeiture specification, in violation of R.C. 2925.13(A), a felony of the fifth
degree; Count Eleven: Trafficking in Cocaine, with both a vehicle forfeiture
specification and a major drug offender (“MDO”) specification, in violation of
R.C. 2925.03(A)(1), (C)(4)(g), a felony of the first degree; Count Twelve:
Permitting Drug Abuse, with a vehicle forfeiture specification, in violation of R.C.
2925.13(A), a felony of the fifth degree; Count Thirteen: Trafficking in Cocaine,
in violation of R.C. 2925.03(A)(1), (C)(4)(f), a felony of the first degree; Count
Fourteen: Permitting Drug Abuse, in violation of R.C. 2925.13(A), a felony of the
fifth degree; Count Fifteen: Possession of Cocaine, in violation of R.C.
2925.11(A), (C)(4)(e), a felony of the first degree.
{¶3} The charges stemmed from Liles’ participation in a series of
controlled drug transactions for the sale of cocaine with a confidential informant.
Liles subsequently entered a plea of not guilty to the charges and the case
proceeded to discovery.
{¶4} On September 22, 2014, Liles appeared in court and pursuant to a
-3- Case No. 1-14-61
negotiated plea agreement withdrew his previously tendered plea of not guilty and
entered a plea of guilty to Count One: Trafficking in Cocaine, with a vehicle
forfeiture specification, a felony of the fourth degree; Count Five: Trafficking in
Cocaine, with a vehicle forfeiture specification, a felony of the second degree;
Count Seven: Trafficking in Cocaine, with a vehicle forfeiture specification, a
felony of the first degree; and Count Eleven: Trafficking in Cocaine, with both a
vehicle forfeiture specification and a major drug offender specification, a felony of
the first degree. The prosecution dismissed the remaining eleven counts listed in
the indictment as a result of the parties’ agreement. As part of the plea deal, the
prosecution specifically reserved the right to be heard at sentencing, but agreed not
to make a sentencing recommendation.
{¶5} The trial court accepted Liles’ guilty plea and entered a finding of
guilt. The matter was continued for sentencing and the preparation of a pre-
sentence investigation.
{¶6} On December 1, 2014, Liles appeared for sentencing at which time the
trial court heard statements from the prosecutor, defense counsel, Liles, and
persons speaking on Liles’ behalf and in mitigation for sentencing purposes. The
trial court sentenced Liles to a prison term of twelve months on Count One; a
mandatory prison term of six years on Count Five; a mandatory prison term of
seven years on Count Seven; and a mandatory prison term of eleven years on
-4- Case No. 1-14-61
Count Eleven. The trial court ordered the prison terms to run consecutively for a
total stated prison term of twenty-five years.
{¶7} Liles filed this appeal, asserting the following assignments of error.
ASSIGNMENT OF ERROR NO. I THE SENTENCE SHOULD BE REVERSED AND REMANDED BECAUSE THE PROSECUTION BREACHED THE PLEA AGREEMENT, THEREBY DENYING TO MR. LILES DUE PROCESS OF LAW AS GUARANTEED TO HIM BY BOTH THE UNITED STATES CONSTITUTION AND OHIO CONSTITUTION.
ASSIGNMENT OF ERROR NO. II
THE BREACH OF THE PLEA AGREEMENT BY THE PROSECUTION WAS PLAIN ERROR THAT THE TRIAL COURT SHOULD HAVE CORRECTED.
ASSIGNMENT OF ERROR NO. III
TRIAL COUNSEL FOR THE DEFENSE WAS INEFFECTIVE FOR INSUFFICIENTLY OBJECTING TO THE BREACH OF CONTRACT BY THE STATE OF OHIO.
ASSIGNMENT OF ERROR NO. IV
THE PROSECUTION ENGAGED IN PROSECUTORIAL MISCONDUCT BY ADVOCATING FOR A LENGTHY SENTENCE IN THE FACE OF A NEGOTIATED SETTLEMENT CALLING FOR NO SUCH ADVOCATING.
ASSIGNMENT OF ERROR NO. V
THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES BECAUSE THE RECORD DOES NOT SUPPORT THE SENTENCING COURT’S FINDINGS THAT ARE NECESSARY TO IMPOSE CONSECUTIVE SENTENCES.
-5- Case No. 1-14-61
{¶8} Due to their interrelated nature, we elect to discuss the first, second,
third, and fourth assignments of error together.
First, Second, Third, and Fourth Assignments of Error
{¶9} In these assignments of error, Liles maintains that the prosecutor
breached the plea agreement when he made remarks during the sentencing hearing
advocating for a lengthy sentence after he agreed to make no sentencing
recommendation. Liles asserts that the prosecutor’s actions amounted to
prosecutorial misconduct and affected his substantial rights because the
prosecutor’s comments improperly influenced the trial court’s sentence. Liles also
acknowledges that no specific objection was made to the prosecutor’s statements
regarding the length of sentence at the sentencing hearing, but urges this Court to
reverse his conviction and sentence under a plain error review. Liles also claims
that his trial counsel was ineffective for failing to object to the prosecutor’s
statements at the sentencing hearing.
{¶10} For its part, the State maintains that the prosecutor’s statements at
sentencing did not breach the plea agreement. The State highlights the fact that
while it agreed to make no sentencing recommendation, it also expressly reserved
the right to be heard at the sentencing hearing. The State maintains that the
prosecutor’s statements did not amount to a “recommendation” of sentence to the
trial court and fell within the parameters of the plea agreement.
-6- Case No. 1-14-61
{¶11} We have previously held that “when a guilty 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.’
” State v. Crump, 3d Dist. Logan No. 8-04-24, 2005-Ohio-4451, ¶ 10, quoting
Santobello v. New York, 404 U.S. 257 (1971); accord State v. McGinnis, 3d Dist.
Van Wert No. 15-08-07, 2008–Ohio–5825, ¶ 5. The State’s failure to abide by the
terms of the plea agreement entitles the defendant to either specific performance—
i.e., the defendant’s resentencing by a different judge, or withdrawal of his or her
guilty plea. McGinnis at ¶ 5, see also Santobello v. New York, 404 U.S. 257, 263
(1971).
{¶12} The record demonstrates that in exchange for Liles pleading guilty
on four counts with specifications, the prosecution agreed to dismiss the remaining
eleven counts and specifications in the fifteen-count indictment. The “Negotiated
Plea of Guilty” form detailed the four counts to which Liles agreed to plead guilty
and stated the possible penalties corresponding to each count. The plea agreement
form also contained a section with “check boxes” outlining the following:
NO PROMISES, THREATS OR COERCION. Defendant states this change of plea is not made under threat or coercion and that no promises have been made except: (check applicable representation)