[Cite as State v. Evans,
2017-Ohio-310.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MIAMI COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NO. 2016-CA-2
:
v. : T.C. NO. 14CR493
:
SCOTT E. EVANS, SR. : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the ___27th___ day of _____January______, 2017.
...........
PAUL M. WATKINS, Atty. Reg. No. 0090868, Assistant Prosecuting Attorney, 201 W.
Main Street, Troy, Ohio 45373
Attorney for Plaintiff-Appellee
JOSHUA KIN, Atty. Reg. No. 0086965, 2700 Kettering Tower, Dayton, Ohio 45423
Attorney for Defendant-Appellant
.............
FROELICH, J.
{¶ 1} Scott E. Evans pled guilty to two counts of felony non-support of dependents,
in violation of R.C. 2919.21(B). The trial court sentenced him to 13 months in prison on
each count, to be served concurrently, and ordered him to pay restitution and court costs.
Evans appeals from his convictions, claiming that the State breached the plea agreement
by failing to remain silent at sentencing. For the following reasons, the trial court’s
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judgment will be affirmed.
I. Factual and Procedural History
{¶ 2} On December 4, 2014, Evans was indicted for three counts of non-support
of dependents, all felonies of the fourth degree. Count 1 alleged non-support between
June 12, 2002 to October 31, 2014; Count 2 alleged non-support between March 20,
2013 and October 31, 2014; and Count 3 alleged non-support between March 25, 2010
to October 31, 2014.
{¶ 3} On December 21, 2015, Evans pled guilty to two counts of the indictment.
The handwritten portion of the plea agreement stated: “Defendant to enter guilty pleas to
counts 1 and 3 of the indictment. State will dismiss Count 2 and will not re-file said count
based on dates from March 20, 2013 through December 4, 2014.” With respect to his
sentence, the plea agreement set forth the maximum sentence that Evans faced for each
count, and it included the following preprinted language:
13. I know that the sentence I will receive is a matter solely within the
discretion and control of the Judge, despite any and all recommendations
made to the Court. I request leniency, but I am prepared to accept any
punishment permitted by law which the Court sees fit to impose. I
respectfully request the Court to consider, in mitigation of punishment, that
I have voluntarily entered a plea of Guilty.
The phrase “I request leniency” was underlined in ink. However, nothing in the written
plea agreement suggested that the parties had reached an agreement regarding Evans’s
sentence or the State’s conduct at sentencing.
{¶ 4} During the plea hearing held on the same date (December 21), Evans’s
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counsel informed the trial court of the terms of the plea agreement, which were consistent
with the written plea agreement; the prosecutor agreed with defense counsel’s statement
of the terms of the plea. Later in the hearing, the trial court asked Evans if he had been
promised anything in exchange for his plea “other than what has been read on the record
today by [defense counsel] and commented by [the prosecutor].” Evans replied, “No.”
When the trial court reviewed the terms of the plea with Evans, Evans indicated that he
understood that one count would be “dropped,” that he would plead to the other two, and
that he would be sentenced at a later date. Evans also understood the possible penalties
that he faced and that, if he were sentenced to prison, he could receive post-release
control at the discretion of the parole board; each of these terms was part of the plea
form. At the end of the Crim.R. 11 colloquy, Evans pled guilty to two counts of non-
support of dependents; the trial court accepted his guilty pleas and ordered a presentence
investigation.
{¶ 5} Sentencing was held on February 8, 2016. Initially, defense counsel spoke
on Evans’s behalf. Counsel indicated that Evans “would acknowledge that he has
committed a crime here. He’s failed to meet his child support obligations. He would
also acknowledge that he does have a poor criminal history and has struggled with
addictions to drugs and alcohol.” Counsel noted that Evans was in a serious accident in
July 2014 and has been sober since then, but has been unable to work and has applied
for social security disability benefits. Counsel also noted that Evans had successfully
completed probation the last two times that he had court supervision. Counsel asked
the trial court to consider a community control sentence.
{¶ 6} Evans next spoke on his own behalf. He acknowledged to the court that he
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had not met obligations, but that he had “changed all that up” and he did not want to
jeopardize the progress he had made. He stated that he was active in church and that
his pastor was “here to verify and I’m just hoping for probation.” When the court noted
that Evans’s accident was in 2014 and his last payment was in 2011, Evans stated that
he had been “mixed up in selfish acts” but he had “changed all that.”
{¶ 7} The court asked the prosecutor if he had anything to say on behalf of the
State. The prosecutor began, saying, “Thank you, Your Honor. Excuse me. The
defendant is right. He has responsibilities to his children. And he hasn’t made his
children a priority in his life[.]”
{¶ 8} At this juncture, there was a discussion between defense counsel and the
prosecutor regarding whether there was an agreement that the State would remain silent
at sentencing. The prosecutor asked defense counsel, “Did we have a verbal
agreement?” Defense counsel responded, “I thought we did[.]” The prosecutor replied,
“If you thought we had an agreement – if you thought we had an agreement, I’m not going
to say anything.” The prosecutor then told the trial court, “State will remain silent, Your
Honor. … I don’t see it in the plea form, that’s why I get [sic] up to make – make a
statement, but [defense counsel] seems to think we had a verbal agreement, so I’m going
to honor that.”
{¶ 9} The trial court proceeded to sentence Evans, stating that it had “considered
the statements made by Mr. Evans, as well as the statements made by his attorney,” and
that the court had reviewed the presentence investigation report “extensively.” The court
imposed prison sentences of 13 months on both counts, to be served concurrently, and
ordered Evans to pay court costs and restitution in the amounts of $22,713.38 (Count 1)
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and $32,294.30 (Count 3).
{¶ 10} Evans appeals from his conviction, raising one assignment of error.
II. State’s Compliance with Plea Agreement
{¶ 11} Evans’s sole assignment of error states, “The trial court erred in sentencing
Appellant after the prosecution violated the plea agreement to remain silent.”
{¶ 12} On appeal, Evans claims that the State had agreed to remain silent at
sentencing, and that the State violated that agreement at the February 8, 2016 sentencing
hearing. Evans claims that, once a plea agreement is violated, prejudice is presumed
unless there is specific evidence to the contrary. Evans asserts that the remedy for the
State’s breach is to vacate the conviction and either (1) allow Evans to be resentenced
by another judge or (2) permit Evans to withdraw his guilty plea and begin anew.1
{¶ 13} Plea agreements are contractual in nature and are subject to contract law
principles. Smith v. Ohio Adult Parole Authority, 2d Dist. Champaign No. 2009 CA 22,
2010-Ohio-1131, ¶ 36; State v. Dillon, 2d Dist. Darke No. 05 CA 1674,
2006-Ohio-4931,
¶ 21. If one party breaches the plea agreement, the remedies for the breach include the
traditional contractual remedies of rescission and specific performance. State v.
Johnson, 2d Dist. Greene No. 06 CA 43,
2007-Ohio-1743, ¶ 20, citing Santobello v. New
York,
404 U.S. 257,
92 S.Ct. 495,
30 L.Ed.2d 427 (1971).
{¶ 14} “When a prosecutor induces a defendant to plead guilty based upon certain
1
We note that Evans did not move to stay the trial court’s judgment, and the website of
the Ohio Department of Rehabilitation and Correction, of which we take judicial notice,
reflects that his sentence expires on February 5, 2017. See, e.g., State v. Erdman, 2d
Dist. Montgomery No. 25814, 2014-Ohio-2997, ¶ 3 (taking judicial notice that appellant’s
name was not listed on the ODRC website); State v. Money, 2d Dist. Clark No. 2009 CA
119,
2010-Ohio-6225, ¶ 25.
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promises, the prosecutor has a duty to keep those promises.” State v. Simpson, 158
Ohio App.3d 441,
2004-Ohio-4690,
816 N.E.2d 609, ¶ 14 (2d Dist.), citing Santobello.
“In general, ‘[w]hen an allegation is made that a plea agreement has been broken, the
defendant must merely show that the agreement was not fulfilled.’ Further, ‘ … it is the
duty of the trial court as a trier of fact, not the prosecutor’s office or the police department,
to determine whether there has been compliance with a plea bargaining agreement.’ ”
(Citations omitted.) State v. Zuder, 2d Dist. Champaign No. 96-CA-11,
1997 WL 47403,
* 4 (Feb. 7, 1997).
{¶ 15} Based on the record before us, Evans has not established that the plea
agreement included an agreement that the State remain silent at sentencing. The written
plea agreement indicated that the parties had agreed that Evans would plead guilty to
Counts 1 and 3, that Count 2 would be dismissed, and that the State would not refile the
charge based on dates from March 20, 2013 through December 4, 2014. There was
nothing in the written agreement that the State had agreed to remain silent at sentencing.
{¶ 16} Moreover, the plea agreement, as stated orally at the plea hearing, also did
not include an agreement that the State would remain silent at sentencing. Defense
counsel informed the court of the terms of the agreement, and those terms mirrored the
written agreement. The State agreed with defense counsel’s statement of the terms, as
did Evans when he was asked if he understood the terms of the plea. No one mentioned
that the State had agreed to remain silent at sentencing, and Evans expressly denied that
other promises had been made to induce his plea. Evans pled guilty to two counts of
non-support of dependents based on the plea terms as set forth in the written plea
agreement.
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{¶ 17} Defense counsel interrupted the prosecutor’s statement at sentencing
based on his belief that the State had agreed to remain silent at sentencing. The
prosecutor’s response (“Did we have a verbal agreement?”) was not an admission that
such an agreement existed. Rather, the prosecutor accepted defense counsel at his
word and forewent any further statement. However, given the written plea agreement,
which failed to include a requirement that the State remain silent at sentencing, and the
absence of any mention at the plea hearing of an obligation for the State to remain silent
at sentencing, Evans has not established that such a term was part of the plea agreement.
{¶ 18} In short, Evans has failed to demonstrate that the State violated the parties’
plea agreement by failing to remain silent at sentencing, because he has not established
that the State had a duty, based on the plea agreement, to remain silent at sentencing.
Accordingly, the trial court did not err in sentencing Evans at the February 8, 2016
hearing.
{¶ 19} Even if the parties had agreed that State would remain silent at sentencing,
we would nevertheless conclude that the trial court did not err in sentencing Evans on
February 8. The prosecutor’s statement at sentencing consisted of “The defendant is
right. He has responsibilities to his children. And he hasn’t made his children a priority
in his life[.]” Both defense counsel and Evans himself had already acknowledged at
sentencing that Evans had failed to meet his child support obligations, and the
prosecutor’s short statement merely echoed that sentiment. The prosecutor did not
recommend a sentence, discuss the charges to which Evans had pled or the information
contained in the presentence investigation report, or suggest that the court should impose
a prison sentence. In our view, the prosecutor’s brief comment was not a material breach
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of the plea agreement, even assuming that he was to remain silent at sentencing.
{¶ 20} Evans’s assignment of error is overruled.
III. Conclusion
{¶ 21} The trial court’s judgment will be affirmed.
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HALL, P.J. and WELBAUM, J., concur.
Copies mailed to:
Paul M. Watkins
Joshua Kin
Hon. Jeannine N. Pratt
