[Cite as State v. Watkins, 2016-Ohio-5756.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals No. L-15-1213
Appellee Trial Court No. CR0201402837
v.
Myron Watkins DECISION AND JUDGMENT
Appellant Decided: September 9, 2016
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Claudia A. Ford, Assistant Prosecuting Attorney, for appellee.
Tim A. Dugan, for appellant.
YARBROUGH, J.
I. Introduction
{¶ 1} This is an appeal from the judgment of the Lucas County Court of Common
Pleas, sentencing appellant, Myron Watkins, to 18 months in prison following its
acceptance of appellant’s guilty plea to one count of gross sexual imposition. A. Facts and Procedural Background
{¶ 2} This case stems from an incident in which appellant, a former Lucas County
corrections officer, sexually assaulted a female detainee after offering to give her a ride
home upon her release from custody. Appellant was subsequently indicted by the Lucas
County Grand Jury on one count of rape in violation of R.C. 2907.02(A)(2), a felony of
the first degree, and one count of gross sexual imposition in violation of R.C.
2907.05(A)(1), a felony of the fourth degree.
{¶ 3} Appellant initially entered a plea of not guilty and the matter proceeded
through pretrial proceedings. On May 18, 2015, appellant appeared before the court and
entered a guilty plea to the charge of gross sexual imposition. Pursuant to the terms of a
negotiated plea agreement, the state dismissed the rape charge and agreed to remain silent
at sentencing. The court accepted the plea, continued the matter for sentencing, and
ordered the preparation of a presentence investigation report.
{¶ 4} On July 9, 2015, appellant appeared before the trial court for sentencing. At
the sentencing hearing, the trial court reviewed the presentence investigation report and a
letter it received from the Lucas County Sheriff, John Tharp. When given an opportunity
to address the court, the state indicated that it would remain silent. However, the state
went on to point out that “there are several members of the sheriff’s department present
in the courtroom in support of that position of public trust that they hold and in support of
Sheriff Tharp’s statement that they presented to the court.” After hearing from the victim
in this case, the court referenced Tharp’s letter as follows:
2. I really can’t put it better than this letter from Sheriff Tharp. At the
time you were employed as a corrections officer. Correction officers take a
solemn oath to uphold the Constitution and the laws of the United States of
America and the Constitution and the laws of the State of Ohio.
He goes on to say, sexual violence against women is a terribly
heinous crime in and of itself, but when the perpetrator is an officer with a
special duty to protect, the seriousness of the crime is elevated. The public
trust that Mr. Watkins violated is one of the cornerstones of our criminal
justice system.
Well put, Sheriff Tharp.
{¶ 5} The court went on to express its consideration of the principles and purposes
of sentencing under R.C. 2929.11, as well as the seriousness and recidivism factors under
R.C. 2929.12. Ultimately, the court ordered appellant to serve the maximum prison
sentence of 18 months. It is from this order that appellant now appeals.
B. Assignments of Error
{¶ 6} On appeal, appellant asserts the following errors for our review:
1) The State of Ohio violated the plea agreement by not remaining
silent at sentencing.
2) The Trial Court’s sentence was contrary to law.
3. II. Analysis
{¶ 7} In his first assignment of error, appellant argues that the state breached the
terms of its plea agreement at sentencing via Sheriff Tharp’s letter to the court and the
statement made by the prosecutor directing the court’s attention to the presence of the
sheriff’s deputies in the courtroom.
{¶ 8} “A plea agreement constitutes a contract between the state and a criminal
defendant and is subject to the general law of contracts.” State v. Liskany, 196 Ohio
App.3d 609, 2011-Ohio-4456, 964 N.E.2d 1073, ¶ 190 (2d Dist.), citing State v. Butts,
112 Ohio App.3d 683, 685-686, 679 N.E.2d 1170 (8th Dist.1996). Thus, if one side
violates a term of the plea agreement, the other party has a right to pursue appropriate
remedies, including rescission of the agreement. Id., citing State v. Hart, 8th Dist.
Cuyahoga No. 84531, 2005-Ohio-107, ¶ 8.
{¶ 9} Notably, appellant failed to object to Tharp’s letter at sentencing and, thus,
waived all but plain error. See State v. Montgomery, 4th Dist. Adams No. 07CA858,
2008-Ohio-4753, ¶ 15-16; State v. Dudas, 11th Dist. Lake Nos. 2006-L-267, 2006-L-268,
2007-Ohio-6739, ¶ 51-54. “Plain error does not exist unless, but for the error, the
outcome of the criminal proceedings would clearly have been different.” State v.
Ferreira, 6th Dist. Lucas No. L-06-1282, 2007-Ohio-4902, ¶ 11. A reviewing court
should notice plain error only if the error seriously affects the fairness, integrity or public
reputation of judicial proceedings. State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d
1240 (2002).
4. {¶ 10} For his first argument, appellant asserts that Sheriff Tharp’s letter
constituted a breach of the state’s promise to remain silent at sentencing. Appellant’s
argument is based on the Second District’s decision in Liskany, supra. There, the
investigating officer in the case wrote a letter to the court, asking the court to “punish the
defendant * * * for the longest possible period.” Liskany at ¶ 103. Contrary to the
officer’s request for the longest sentence available, the state, pursuant to a plea
agreement, agreed to recommend a sentence of not less than four years. The defendant
was ultimately sentenced to 16 years in prison.
{¶ 11} On appeal, the court remanded the matter for resentencing after finding that
the investigating officer’s request for the longest possible sentence contradicted the
state’s recommendation of a sentence not less than four years. The court found that the
letter was issued by an agent of the state, even though it was not written directly by the
prosecutor. Id. at ¶ 192. Although the majority decision did not offer any support for its
determination that the officer was an agent of the state for purposes of compliance with
the plea agreement, the dissenting opinion offered some insight. In the dissent, Judge
Donovan emphasized the fact that the officer who wrote the letter was the investigating
officer in the case and, as such, was the “‘investigating arm of the prosecutor’s office.’”
Id. at ¶ 213, quoting State v. Matson, 2003 WI App 253, 268 Wis.2d 725, 674 N.W.2d
51, ¶ 23.
{¶ 12} Citing Liskany, appellant argues that Sheriff Tharp, acting as an agent of
the state, breached the terms of the plea agreement by failing to remain silent at
5. sentencing. However, as noted by the state in its brief, the Liskany court seemed
particularly concerned with the fact that the officer who wrote the letter to the trial court
was the investigating officer in the underlying criminal investigation. Because the
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[Cite as State v. Watkins, 2016-Ohio-5756.]
IN THE COURT OF APPEALS OF OHIO SIXTH APPELLATE DISTRICT LUCAS COUNTY
State of Ohio Court of Appeals No. L-15-1213
Appellee Trial Court No. CR0201402837
v.
Myron Watkins DECISION AND JUDGMENT
Appellant Decided: September 9, 2016
*****
Julia R. Bates, Lucas County Prosecuting Attorney, and Claudia A. Ford, Assistant Prosecuting Attorney, for appellee.
Tim A. Dugan, for appellant.
YARBROUGH, J.
I. Introduction
{¶ 1} This is an appeal from the judgment of the Lucas County Court of Common
Pleas, sentencing appellant, Myron Watkins, to 18 months in prison following its
acceptance of appellant’s guilty plea to one count of gross sexual imposition. A. Facts and Procedural Background
{¶ 2} This case stems from an incident in which appellant, a former Lucas County
corrections officer, sexually assaulted a female detainee after offering to give her a ride
home upon her release from custody. Appellant was subsequently indicted by the Lucas
County Grand Jury on one count of rape in violation of R.C. 2907.02(A)(2), a felony of
the first degree, and one count of gross sexual imposition in violation of R.C.
2907.05(A)(1), a felony of the fourth degree.
{¶ 3} Appellant initially entered a plea of not guilty and the matter proceeded
through pretrial proceedings. On May 18, 2015, appellant appeared before the court and
entered a guilty plea to the charge of gross sexual imposition. Pursuant to the terms of a
negotiated plea agreement, the state dismissed the rape charge and agreed to remain silent
at sentencing. The court accepted the plea, continued the matter for sentencing, and
ordered the preparation of a presentence investigation report.
{¶ 4} On July 9, 2015, appellant appeared before the trial court for sentencing. At
the sentencing hearing, the trial court reviewed the presentence investigation report and a
letter it received from the Lucas County Sheriff, John Tharp. When given an opportunity
to address the court, the state indicated that it would remain silent. However, the state
went on to point out that “there are several members of the sheriff’s department present
in the courtroom in support of that position of public trust that they hold and in support of
Sheriff Tharp’s statement that they presented to the court.” After hearing from the victim
in this case, the court referenced Tharp’s letter as follows:
2. I really can’t put it better than this letter from Sheriff Tharp. At the
time you were employed as a corrections officer. Correction officers take a
solemn oath to uphold the Constitution and the laws of the United States of
America and the Constitution and the laws of the State of Ohio.
He goes on to say, sexual violence against women is a terribly
heinous crime in and of itself, but when the perpetrator is an officer with a
special duty to protect, the seriousness of the crime is elevated. The public
trust that Mr. Watkins violated is one of the cornerstones of our criminal
justice system.
Well put, Sheriff Tharp.
{¶ 5} The court went on to express its consideration of the principles and purposes
of sentencing under R.C. 2929.11, as well as the seriousness and recidivism factors under
R.C. 2929.12. Ultimately, the court ordered appellant to serve the maximum prison
sentence of 18 months. It is from this order that appellant now appeals.
B. Assignments of Error
{¶ 6} On appeal, appellant asserts the following errors for our review:
1) The State of Ohio violated the plea agreement by not remaining
silent at sentencing.
2) The Trial Court’s sentence was contrary to law.
3. II. Analysis
{¶ 7} In his first assignment of error, appellant argues that the state breached the
terms of its plea agreement at sentencing via Sheriff Tharp’s letter to the court and the
statement made by the prosecutor directing the court’s attention to the presence of the
sheriff’s deputies in the courtroom.
{¶ 8} “A plea agreement constitutes a contract between the state and a criminal
defendant and is subject to the general law of contracts.” State v. Liskany, 196 Ohio
App.3d 609, 2011-Ohio-4456, 964 N.E.2d 1073, ¶ 190 (2d Dist.), citing State v. Butts,
112 Ohio App.3d 683, 685-686, 679 N.E.2d 1170 (8th Dist.1996). Thus, if one side
violates a term of the plea agreement, the other party has a right to pursue appropriate
remedies, including rescission of the agreement. Id., citing State v. Hart, 8th Dist.
Cuyahoga No. 84531, 2005-Ohio-107, ¶ 8.
{¶ 9} Notably, appellant failed to object to Tharp’s letter at sentencing and, thus,
waived all but plain error. See State v. Montgomery, 4th Dist. Adams No. 07CA858,
2008-Ohio-4753, ¶ 15-16; State v. Dudas, 11th Dist. Lake Nos. 2006-L-267, 2006-L-268,
2007-Ohio-6739, ¶ 51-54. “Plain error does not exist unless, but for the error, the
outcome of the criminal proceedings would clearly have been different.” State v.
Ferreira, 6th Dist. Lucas No. L-06-1282, 2007-Ohio-4902, ¶ 11. A reviewing court
should notice plain error only if the error seriously affects the fairness, integrity or public
reputation of judicial proceedings. State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d
1240 (2002).
4. {¶ 10} For his first argument, appellant asserts that Sheriff Tharp’s letter
constituted a breach of the state’s promise to remain silent at sentencing. Appellant’s
argument is based on the Second District’s decision in Liskany, supra. There, the
investigating officer in the case wrote a letter to the court, asking the court to “punish the
defendant * * * for the longest possible period.” Liskany at ¶ 103. Contrary to the
officer’s request for the longest sentence available, the state, pursuant to a plea
agreement, agreed to recommend a sentence of not less than four years. The defendant
was ultimately sentenced to 16 years in prison.
{¶ 11} On appeal, the court remanded the matter for resentencing after finding that
the investigating officer’s request for the longest possible sentence contradicted the
state’s recommendation of a sentence not less than four years. The court found that the
letter was issued by an agent of the state, even though it was not written directly by the
prosecutor. Id. at ¶ 192. Although the majority decision did not offer any support for its
determination that the officer was an agent of the state for purposes of compliance with
the plea agreement, the dissenting opinion offered some insight. In the dissent, Judge
Donovan emphasized the fact that the officer who wrote the letter was the investigating
officer in the case and, as such, was the “‘investigating arm of the prosecutor’s office.’”
Id. at ¶ 213, quoting State v. Matson, 2003 WI App 253, 268 Wis.2d 725, 674 N.W.2d
51, ¶ 23.
{¶ 12} Citing Liskany, appellant argues that Sheriff Tharp, acting as an agent of
the state, breached the terms of the plea agreement by failing to remain silent at
5. sentencing. However, as noted by the state in its brief, the Liskany court seemed
particularly concerned with the fact that the officer who wrote the letter to the trial court
was the investigating officer in the underlying criminal investigation. Because the
investigating officer is treated as an agent of the state in matters of discovery, the court
was willing to treat the investigating officer as an agent of the state for purposes of plea
agreements.
{¶ 13} In this case, the record establishes that the Lucas County Sheriff’s Office
was not involved in the investigation of appellant’s criminal behavior in this case.
Seeming to agree with this statement, appellant admits in his brief that “the only interest
the sheriff’s office had in [this] case was that one of its former employees had been
accused and pled guilty to a sex crime.” Because Sheriff Tharp was not the investigating
officer in this case, we find that Liskany is distinguishable here, and we refuse to extend
the holding of Liskany to support appellant’s assertion that Sheriff Tharp was acting as an
agent of the state at sentencing.
{¶ 14} For his second argument, appellant argues that the state breached its
promise to remain silent when it called attention to the sheriff’s deputies that were
present in the courtroom during the sentencing hearing.
{¶ 15} An 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 agreement merely restricts the government from attempting to
influence the sentence by presenting the court with conjecture, opinion, or disparaging
6. information already in the court’s possession. State v. Crump, 3d Dist. Logan No. 8-04-
24, 2005-Ohio-4451, ¶ 11. “Efforts 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.
{¶ 16} In this case, the prosecutor’s statements did not merely provide relevant
factual information. Rather, the statements were directed at drawing the court’s attention
to Sheriff Tharp’s letter and the presence of deputies in the courtroom in support of such
letter, thereby suggesting the severity of appellant’s conduct in light of the position of
trust he held as a sheriff’s deputy. Such information was disparaging and amounts to a
breach of the prosecutor’s promise to stand mute at sentencing. Accordingly, we find
appellant’s first assignment of error well-taken.
{¶ 17} In light of the foregoing, we find that this matter must be remanded to the
trial court for resentencing, at which time the state is to honor its obligation to remain
silent. In the meantime, the state would do well to heed the old adage that integrity
creeps in like a caterpillar, but leaves on horseback at a full gallop.
{¶ 18} Because we have found that this matter must be sent back to the trial court
for resentencing, we need not address appellant’s second assignment of error, in which he
asserts that the trial court’s sentence was contrary to law.
7. III. Conclusion
{¶ 19} The judgment of the Lucas County Court of Common Pleas is reversed and
this matter is remanded to the trial court for resentencing consistent with this decision.
Costs are hereby assessed to the state in accordance with App.R. 24.
Judgment reversed.
A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See also 6th Dist.Loc.App.R. 4.
Mark L. Pietrykowski, J. _______________________________ JUDGE Stephen A. Yarbrough, J. _______________________________ James D. Jensen, P.J. JUDGE CONCUR. _______________________________ JUDGE
8.