State v. Pintarich

2021 Ohio 1282

• Court: Ohio Court of Appeals
• Decided: March 31, 2021
• Docket: 19 BE 0057
• Status: Published

Opinion

[Cite as State v. Pintarich, 2021-Ohio-1282.]

IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT BELMONT COUNTY

STATE OF OHIO,

Plaintiff-Appellee,

v.

JOHN P. PINTARICH, III,

Defendant-Appellant.

OPINION AND JUDGMENT ENTRY Case No. 19 BE 0057

Criminal Appeal from the Court of Common Pleas of Belmont County, Ohio Case No. 19 CR 192

BEFORE: Cheryl L. Waite, Gene Donofrio, David A. D’Apolito, Judges.

JUDGMENT: Affirmed.

Atty. Dan Fry, Belmont County Prosecuting Attorney and Atty. J. Kevin Flanagan, Chief Assistant Prosecuting Attorney, 147-A West Main Street, St. Clairsville, Ohio 43950, for Plaintiff-Appellee

Atty. Brian A. Smith, Brian A. Smith Law Firm, LLC, 755 White Pond Drive, Suite 403, Akron, Ohio 44320, for Defendant-Appellant. –2–

Dated: March 31, 2021

WAITE, J.

{¶1} Appellant John P. Pintarich, III appeals a December 3, 2019 Belmont

County Common Pleas Court judgment entry convicting him of domestic violence

following his guilty plea. Appellant argues that the state breached a term of the negotiated

plea agreement when it failed to stand silent at sentencing. Appellant also argues that

his sentence is contrary to law. For the reasons provided, Appellant’s arguments are

without merit and the judgment of the trial court is affirmed.

Procedural and Factual History

{¶2} On September 5, 2019, Appellant was indicted on one count of domestic

violence, a felony of the third degree in violation of R.C. 2919.25(A), (D)(4). On November

14, 2019, Appellant pleaded guilty to the offense as charged. The state agreed to dismiss

a pending domestic violence charge. As part of the agreement, the state agreed to stand

silent at sentencing. On December 3, 2019, the trial court sentenced Appellant to the

maximum sentence, thirty-six months of incarceration, with credit for 85 days served. The

trial court also imposed a mandatory three-year postrelease control term. It is from this

entry that Appellant timely appeals.

ASSIGNMENT OF ERROR NO. 1

THE TRIAL COURT ERRED WHEN IT FAILED TO DETERMINE THAT

THE STATE HAD BREACHED THE PLEA AGREEMENT DATED

NOVEMBER 14, 2019.

Case No. 19 BE 0057 –3–

ASSIGNMENT OF ERROR NO. 2

THE TRIAL COURT ERRED WHEN IT FAILED TO ENFORCE THE

TERMS OF THE PLEA AGREEMENT DATED NOVEMBER 14, 2019.

ASSIGNMENT OF ERROR NO. 3

THE TRIAL COURT ERRED WHEN IT FAILED TO ORDER A NEW

SENTENCING HEARING BEFORE A DIFFERENT JUDGE.

{¶3} One of the terms of Appellant’s plea agreement stated that, “[i]n exchange

for a guilty plea and based upon conversations with the victim, the State will stand silent

at sentencing.” (11/14/19 Plea Agreement, p. 3.) Despite this agreement, Appellant

contends that the state did not stand silent at his sentencing hearing. In addition,

Appellant argues that the state misrepresented a statement made by the victim and used

her supportive statement against him. Appellant concedes that he is limited to a plain

error review, as he did not object to the state’s comments at the sentencing hearing.

However, he contends that the error is apparent from the record and that he suffered

prejudice, as he was deprived of the benefit of the plea agreement, which he gave up

several of his rights to obtain.

{¶4} The state concedes that it agreed to stand silent at sentencing, but argues

that its comments did not violate the plea agreement. The state explains that it did not

request a prison sentence, but merely attempted to “stick up” for the victim. (Appellees’

Brf., p. 6.) Even so, the state urges that any error was harmless, as the trial court

conducted its own investigation before imposing a sentence.

Case No. 19 BE 0057 –4–

{¶5} We have previously recognized that “[a] plea agreement is contractual in

nature.” State v. Hansen, 7th Dist. Mahoning No. 11 MA 63, 2012-Ohio-4574, ¶ 14.

“[W]hen 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.” Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30

L.Ed.2d 427 (1971). When the state is in breach of a plea agreement, the defendant is

entitled to recission of the plea or specific performance of the plea agreement. Hansen

at ¶ 14, citing Santobello at 263.

{¶6} If a defendant fails to object to a state’s sentencing recommendation where

the state has agreed to stand silent, the defendant is limited to a plain error review.

Puckett v. U.S., 556 U.S. 129, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). In order to

successfully assert plain error, a defendant must demonstrate the existence of an obvious

error that affected his substantial rights under exceptional circumstances. Hansen at

¶ 15, citing Crim.R. 52(B); State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002).

To show an affect on a substantial right, the defendant must demonstrate that the

outcome clearly would have different but for the error. Hansen at ¶ 15, citing State v.

Waddell, 75 Ohio St.3d 163, 166, 661 N.E.2d 1043 (1996). Specifically, “[t]he question

is whether [the defendant's] sentence would have been different absent the breach.”

Hansen at ¶ 15, citing State v. Kline, 2d Dist. No. 2009-CA-02, 2010-Ohio-3913, at ¶ 5;

Puckett at 1433, fn. 4.

{¶7} The parties cite to three Seventh District cases: State v. Adams, 2014-

Ohio-724, 8 N.E.3d 984 (7th Dist.); State v. Baldwin, 7th Dist. Belmont No. 13 BE 30,

2014-Ohio-4147; and Hansen, supra. In Adams, we held that the state’s request of an

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eight-year sentence violated a term of the plea agreement where the state agreed to

stand silent. We found prejudice existed due to the length of the requested term of

incarceration and the fact that the defendant was not a “career criminal.” Id. at ¶ 30.

{¶8} The Hansen court reviewed whether the state’s comment that “[w]e are

proud of [the victim] for telling the truth, for making this statement, and we’re asking the

court to impose a sentence no less than the five years recommended by the state”

violated a term of the plea agreement where the state agreed to seek five years. Id. at

¶ 6. We held that the statement went further than stating it recommended a five year

sentence when it, instead, asked the trial court not to impose less than five years.

{¶9} In Baldwin we held that the state’s request for EOCC violated a term of the

plea agreement where the state agreed to stand silent. Id. at ¶ 43. We also reversed the

trial court’s decision that the defendant had violated the terms of the plea agreement by

taking too long to pay restitution and, thus, that the state was no longer bound by the

agreement. We reasoned that since the state had agreed to extend the restitution

payment deadline, the defendant did not breach the agreement.

{¶10} In the instant matter, the state did not actually recommend a specific

sentence, but appears to be attempting to explain the victim’s statement. This is more

akin to a case arising out of the Sixth District, State v. Ross, 179 Ohio App.3d 45, 2008-

Ohio-5388, 900 N.E.2d 678 (6th Dist.). The Ross court held that “[a]n agreement by the

prosecution to stand mute or to take no position on the sentence does not entirely

preclude the government’s participation in the sentencing hearing; instead, such an

agreement merely restricts the government from attempting to influence the sentence by

presenting the court with conjecture, opinion, or disparaging information already in the

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court’s possession.” Id. at ¶ 14, citing State v. Crump, 3d Dist. Logan 8-04-24, 2005-

Ohio-4451. The court also held that “[e]fforts by the Government to provide relevant

factual information or to correct misstatements are not tantamount to taking a position on

the sentence and will not violate the plea agreement.” Id.

{¶11} Here, the victim stated at the sentencing hearing that she wanted to remain

in contact with Appellant and be permitted to visit him with her children. She encouraged

the court to impose rehabilitation over a prison sentence. When the trial court interrupted

her and suggested that her abuse would continue, the victim responded by saying that a

prison sentence would do nothing to alleviate Appellant’s anger issues.

{¶12} The state then engaged in the following discussion:

[THE PROSECUTOR]: Judge the one thing -- and I know, obviously, from

this Court’s time on the bench and in county court, you have seen a lot of

this. The one thing I would like to point out with [the victim] is she did not

come here nor did she ever ask me to outright dismiss the charge. That --

so please take that off the table; that was never her intention. I think the

profound thing in my interview with her is she recognized an end game in

all of this.

THE COURT: She recognized what, sir?

[THE PROSECUTOR]: An end game. What happens when, and whether

that is one year, two years, three years, what happens when. She was, I

think, very vocal in that – at least with me, she was absolutely not excusing

or justifying [Appellant’s] conduct. In fact, what she had told the Court was

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much like what she had told me at the time. So, I would like to point that

out that she doesn’t come here as that person that sometimes the Court

may be used to seeing in these types of situations. She made it very clear

to me and I conveyed that to [defense counsel], that although she had

positive points for [Appellant], she was not coming here to stick up for him.

Again--.”

(11/13/19 Sentencing Hrg., pp. 5-6.)

{¶13} The state’s commentary raises two issues, whether it merely

recharacterized the victim’s statement or whether its reference to the sentencing range

(one to three years of incarceration) is tantamount to taking a position on sentencing.

{¶14} As to the issue regarding the victim’s statement, the state explains that it

was merely “sticking up for the victim.” There is nothing in the state’s comment that

requested a prison term, either on behalf of the victim or on behalf of the state. While the

state commented that the victim did not want to dismiss the matter, it never stated that

she requested incarceration.

{¶15} However, the state did refer to the sentencing range of one to three years

of incarceration within its statement. While the state argues that it was clear to all parties

at the sentencing hearing that community control sanctions were not on the table, a prison

sentence was not mandatory in this matter. Thus, regardless of the state’s intention and

the parties’ knowledge of the likely sentence, this comment could be read as a suggestion

by the state that Appellant receive some period of incarceration. As the comment could

be read either as an attempt to prevent the trial court from completely dismissing the

victim’s concerns and comments or as a suggestion that Appellant should be sentenced

Case No. 19 BE 0057 –8–

to some term of incarceration, we will assume the latter. Thus, we must determine

whether Appellant suffered prejudice as a result of the comments by the state.

{¶16} During the victim’s statement, the trial court interrupted her after she stated

that two years in prison would do nothing to alleviate Appellant’s anger issues by

responding: “[i]t’s going to protect you for three years, isn’t it, ma’am?” (Emphasis added.)

(11/13/19 Sentencing Hrg., p. 3.) The court may have made this statement to correct the

victim’s apparent misunderstanding of the possible maximum sentence, but it certainly

indicates that the court likely intended to sentence Appellant to some term of

imprisonment.

{¶17} This is supported by the court’s emphasis on Appellant’s lengthy criminal

record at the sentencing hearing, which included several past domestic violence charges.

The court emphasized the need to protect both the victim, even if she did not want to be

protected, and society in general. The state appears correct that the court was somewhat

dismissive of the victim’s call for leniency. This record demonstrates that the trial court

relied on Appellant’s conduct and his criminal record, rather than the state’s comments,

in sentencing Appellant to a term of imprisonment.

{¶18} As noted by the state, Appellant was charged with an enhancement due to

prior domestic violence convictions. While those convictions are not discussed on the

record, Appellant was charged with a violation of R.C. 2919.25(D)(4). Pursuant to that

statute,

If the offender previously has pleaded guilty to or been convicted of two or

more offenses of domestic violence or two or more violations or offenses of

the type described in division (D)(3) of this section involving a person who

Case No. 19 BE 0057 –9–

was a family or household member at the time of the violations or offenses,

a violation of division (A) or (B) of this section is a felony of the third degree[.]

{¶19} The court acknowledged that Appellant had previously been convicted of at

least two prior domestic violence charges. Based on this record, Appellant is unable to

demonstrate that his sentence would have been different but for the state’s comments.

{¶20} While ideally the state would in fact, stand silent at sentencing when it

enters into an agreement to do so, such an agreement means simply that the state will

not recommend a sentence. It is not precluded from speaking entirely. Regardless, even

if the state’s comments in this case can be read as taking a position on sentencing,

Appellant cannot demonstrate prejudice. Accordingly, Appellant’s first, second, and third

assignments of error are without merit and are overruled.

ASSIGNMENT OF ERROR NO. 4

THE RECORD DOES NOT SUPPORT THE TRIAL COURT’S SENTENCE

OF APPELLANT.

{¶21} Appellant argues that a felony of the third degree does not carry a

presumption of prison and that this record does not support a prison sentence. Appellant

concedes that he has a criminal history, but contends that it does not include violent

offenses. He argues that the record contains evidence that he has sought counseling

and medication to address his anger management issues. Appellant also argues that the

court failed to consider rehabilitation, which is one of the purposes of sentences.

Case No. 19 BE 0057 – 10 –

{¶22} In response, the state contends that the record demonstrates that the court

considered the relevant sentencing statutes and heavily relied on Appellant’s criminal

record.

{¶23} “An appellate court is permitted to review a felony sentence to determine if

it is contrary to law.” State v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d

1231, ¶ 1.

{¶24} The Ohio Supreme Court recently held “[n]othing in R.C. 2953.08(G)(2)

permits an appellate court to independently weigh the evidence in the record and

substitute its judgment for that of the trial court concerning the sentence that best reflects

compliance with R.C. 2929.11 and 2929.12.” State v. Jones, -- Ohio St.3d --, 2020-Ohio-

6729, -- N.E.3d --, ¶ 42. Appellant argues that the trial court did not properly weigh the

option of rehabilitation under R.C. 2929.11. Pursuant to Jones, this Court is unable to

review that portion of Appellant’s argument.

{¶25} However, R.C. 2953.08(G) does permit the review of R.C. 2929.13 and R.C.

2929.14. Pursuant to R.C. 2953.08(G)(2):

The appellate court may take any action authorized by this division if it

clearly and convincingly finds either of the following:

(a) That the record does not support the sentencing court's findings under

division (B) or (D) of section 2929.13, division (B)(2)(e) or (C)(4) of section

2929.14, or division (I) of section 2929.20 of the Revised Code, whichever,

if any, is relevant;

(b) That the sentence is otherwise contrary to law.

Case No. 19 BE 0057 – 11 –

{¶26} Appellant is incorrect that his criminal record does not include violent

offenses. The trial court accurately stated the following criminal record at the sentencing

hearing: three assault charges, criminal damaging, four domestic violence charges, ten

passing bad check charges, attempted theft, fraudulent schemes, fraudulent deception,

and felonious assault.

{¶27} Appellant’s Presentencing Investigation Report reveals that the following

offenses resulted in convictions: domestic violence (2017), domestic violence (2016),

attempted theft (2010), passing bad checks (2009), passing bad checks (2007), passing

bad checks (2007), criminal damaging (2000), and assault (1999). The remaining

charges did not result in convictions.

{¶28} Obviously, Appellant has been convicted of offenses involving violence. As

to the offenses that did not result in a conviction, “[i]t is well established that sentencing

courts may consider arrests and even prior allegations that did not result in conviction

before imposing sentence.” State v. Patton, 7th Dist. Mahoning No. 19 MA 0033, 2020-

Ohio-937, ¶ 7, citing State v. Hutton, 53 Ohio St.3d 36, 43, 559 N.E.2d 432 (1990).

“Moreover, ‘(c)ourts have consistently held that evidence of other crimes, including crimes

that never result in criminal charges being pursued, or criminal charges that are dismissed

as a result of a plea bargain, may be considered at sentencing.’ ” Id., citing State v.

Martin, 7th Dist. Mahoning No. 16 MA 0160, 2018-Ohio-862, ¶ 7-8; State v. Starkey, 7th

Dist. No. 06 MA 110, 2007-Ohio-6702, ¶ 17.

{¶29} The court heavily relied on its belief that Appellant’s conduct and criminal

record demonstrated a need to protect both the victim and society. The record also

demonstrates that the trial court expressly considered the relevant sentencing statutes.

Case No. 19 BE 0057 – 12 –

While the sentence represents the maximum possible sentence, it is within the statutory

range. As such, Appellant’s sentence fourth assignment of error is without merit and is

overruled.

Conclusion

{¶30} Appellant argues that the state breached a term of the negotiated plea

agreement when it did not stand silent at sentencing. Appellant also argues that his

sentence is contrary to law. For the reasons provided, Appellant’s arguments are without

merit and the judgment of the trial court is affirmed.

Donofrio, P.J., concurs.

D’Apolito, J., concurs.

Case No. 19 BE 0057 [Cite as State v. Pintarich, 2021-Ohio-1282.]

For the reasons stated in the Opinion rendered herein, the assignments of error

are overruled and it is the final judgment and order of this Court that the judgment of the

Court of Common Pleas of Belmont County, Ohio, is affirmed. Costs waived.

A certified copy of this opinion and judgment entry shall constitute the mandate in

this case pursuant to Rule 27 of the Rules of Appellate Procedure. It is ordered that a

certified copy be sent by the clerk to the trial court to carry this judgment into execution.

NOTICE TO COUNSEL

This document constitutes a final judgment entry.