[Cite as State v. Hitt,
2019-Ohio-2201.]
STATE OF OHIO ) IN THE COURT OF APPEALS
)ss: NINTH JUDICIAL DISTRICT
COUNTY OF SUMMIT )
STATE OF OHIO C.A. No. 29048
Appellee
v. APPEAL FROM JUDGMENT
ENTERED IN THE
CHRISTOPHER HITT COURT OF COMMON PLEAS
COUNTY OF SUMMIT, OHIO
Appellant CASE No. CR-2013-09-2448
DECISION AND JOURNAL ENTRY
Dated: June 5, 2019
CARR, Presiding Judge.
{¶1} Appellant, Christopher Hitt, appeals the judgment of the Summit County Court of
Common Pleas. This Court affirms and dismisses in part.
I.
{¶2} In 2013, the Summit County Grand Jury indicted Hitt on one count of rape with a
repeat violent offender specification and one count of gross sexual imposition. Hitt ultimately
entered into a plea agreement where the indictment was amended and he pleaded guilty to sexual
battery and gross sexual imposition. The repeat violent offender specification was dismissed.
The trial court imposed a 36-month prison sentence for sexual battery and an 18-month prison
sentence for gross sexual imposition. The trial court ordered that those sentences were to be
served consecutively for a total prison sentence of four years and six months. Hitt was classified
as a Tier III Sex Offender. In its April 3, 2015 sentencing entry, the trial court specified that Hitt
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could file a motion for judicial release after he served three years in prison, at which time the
trial court would take the motion into consideration.
{¶3} On March 22, 2018, Hitt filed a motion for judicial release. After an initial
hearing, the trial court issued a journal entry denying the motion. Though Hitt promptly filed a
motion for reconsideration, the trial court denied that motion as well.
{¶4} Hitt filed a notice of appeal from the journal entry denying his motion for judicial
release as well as the journal entry denying his motion for reconsideration. Hitt also successfully
moved this Court for a delayed appeal from the April 3, 2015 sentencing entry. Now before this
Court, Hitt raises two assignments of error.
II.
ASSIGNMENT OF ERROR I
THE TRIAL COURT ERRED IN REFUSING TO HONOR THE SENTENCE
IMPOSED UPON APPELLANT AS NEGOTIATED AND IMPOSED IN
VIOLATION OF THE DUE PROCESS CLAUSE OF THE 14TH
AMENDMENT TO THE U.S. CONSTITUTION AND ARTICLE I, SECTIONS
1, 10 & 16 OF THE OHIO CONSTITUTION.
ASSIGNMENT OF ERROR II
APPELLANT’S PLEA WAS NOT KNOWINGLY, [INTELLIGENTLY], AND
VOLUNTARILY MADE IN VIOLATION OF THE DUE PROCESS CLAUSE
OF THE 14TH AMENDMENTS TO THE U.S. CONSTITUTION AND
ARTICLE I, SECTIONS 1, 10 & 16 OF THE OHIO CONSTITUTION.
{¶5} Both of Hitt’s assignments of error are related to the trial court’s denial of his
motion for judicial release. In his first assignment of error, Hitt contends that the trial court
violated his due process rights when it denied his motion for judicial release. In his second
assignment of error, Hitt contends that his plea was invalid because he did not have knowledge
that the trial court would deviate from the parties’ agreement at the time it ruled on his motion
for judicial release.
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Background
{¶6} The parties appeared for the plea hearing in this matter on March 20, 2015. At the
outset of the hearing, the State detailed the terms of the plea agreement and stated that the parties
jointly recommended a total prison sentence of four and a half years “with an agreed judicial
release after three years in prison including time served.” Defense counsel acknowledged that
the State had correctly stated the terms of the plea agreement. The written plea form also
reflected the parties’ agreement pertaining to judicial release. During the plea colloquy, the trial
court acknowledged that parties’ agreement regarding judicial release but informed Hitt that it
would evaluate that issue at the time the motion was filed. Specifically, the trial court noted its
practice of pulling prison reports to determine whether the defendant had been misbehaving or
disobeying rules in prison.
{¶7} At the sentencing hearing, the State reiterated that it was “not opposed to judicial
release after three years that is, of course, contingent upon good behavior while in the
institution[.]” In its April 3, 2015 sentencing entry, the trial court noted that “when [Hitt]
becomes eligible and after he has served Three (3) years in the Institution, he may file a motion
for Judicial Release, which this Court will take into consideration.”
{¶8} Hitt filed his motion for judicial release on March 22, 2018. The State did not
oppose the motion. When the parties appeared for a hearing, defense counsel briefly
summarized the terms of the plea agreement and further indicated that it was his understanding
that Hitt would be “favorably considered” for judicial release. The State confirmed that it had
agreed that it would not oppose judicial release absent any disciplinary issues in prison. At the
end of the hearing, the trial court took the matter under advisement. Subsequently, the trial court
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issued an order denying the motion on April 25, 2018. The trial court denied Hitt’s motion for
reconsideration on April 30, 2018.
Judicial Release
{¶9} In support of his assignment of error, Hitt contends that the trial court erred in
denying his motion for judicial release after he served three years in prison without any
behavioral issues.
{¶10} As an initial matter, this Court must address whether it has jurisdiction over Hitt’s
appeal from the April 25, 2018 order denying his motion for judicial release and the April 30,
2018 order denying his motion for reconsideration. Generally speaking, a trial court’s denial of a
motion for judicial release is not a final, appealable order. State v. Jimenez, 9th Dist. Summit
No. 24609, 2009-Ohio-4337, ¶ 6, citing State v. Woods,
141 Ohio App.3d 549, 550 (2001). This
Court has recognized an exception under circumstances where an appellant argues that the State
breached the terms of the plea agreement during the judicial release proceedings. Jimenez at ¶ 6,
citing State ex rel. Rowe v. McCown,
108 Ohio St.3d 183,
2006-Ohio-548, ¶ 5; see also State v.
Unik, 9th Dist. Lorain No. 11CA009996,
2012-Ohio-307, ¶ 6.
{¶11} Hitt acknowledges the aforementioned standard in his merit brief and he stresses
that a plea agreement is a contract that is binding on the State. Notably, however, Hitt’s
argument with respect to prejudice centers on the role of the trial court in denying his motion.
Hitt concedes that “[a]t the hearing on the Motion for Judicial Release, the [S]tate again
indicated that it agreed not to oppose judicial release after three years.” Though Hitt emphasizes
the State’s role in the formation of the plea agreement, he ultimately contends that “the trial court
materially breached the terms of the agreement by denying [him] judicial release.” Hitt does not
explain how the trial court’s denial of the motion for judicial release resulted from a breach on
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the part of the State. Instead, the crux of Hitt’s argument is that the trial court failed to honor the
terms of the plea agreement. Under these circumstances, where Hitt does not contend that the
State breached the plea agreement, this Court does not have jurisdiction to review Hitt’s appeal
from the April 25, 2018 order denying his motion for judicial release and the April 30, 2018
order denying his motion for reconsideration as those orders do not constitute final, appealable
orders. Therefore, Hitt’s appeal from those orders is dismissed.
Plea
{¶12} Hitt offers a succinct argument in support of his position that his plea was not
knowing, intelligent, and voluntary. Namely, Hitt maintains that he was not notified during the
plea colloquy that the trial court would not comply with the plea agreement as it pertained to his
motion for judicial release. Hitt further suggests that he was prejudiced by the fact that the trial
judge who presided over the plea colloquy was different from the judge who ruled on the motion
for judicial release.
{¶13} “When a defendant enters a plea in a criminal case, the plea must be made
knowingly, intelligently, and voluntarily. Failure on any of those points renders enforcement of
the plea unconstitutional under both the United States Constitution and the Ohio Constitution.”
State v. Engle, 74 Ohio St.3d 525, 527 (1996). “In order to ensure that a plea conforms to these
high standards, a trial court must engage a defendant in a colloquy as described in Crim.R.
11(C).” State v. Wilson, 9th Dist. Summit No. 28800,
2018-Ohio-2498, ¶ 6, citing State v. Clark,
119 Ohio St.3d 239,
2008-Ohio-3748, ¶ 26. “[I]n conducting this colloquy, the trial judge must
convey accurate information to the defendant so that the defendant can understand the
consequences of his … plea.”
Id.
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{¶14} Hitt’s argument is without merit as this case does not involve a scenario where the
trial court conveyed inaccurate information at the plea colloquy. As an initial matter, it is well
settled that a trial court is not bound by the terms of a plea agreement and it has discretion to
depart from the State’s sentencing recommendation. State v. West, 9th Dist. Lorain No.
04CA008554, 2005-Ohio-990, ¶ 5. Here, the trial court was not bound by the parties’ agreement
in regard to ruling on the motion for judicial release. See generally State v. Dowler, 4th Dist.
Athens No. 15CA7,
2015-Ohio-5027, ¶ 30. While the written plea agreement states that the
parties agreed to judicial release after three years, it further stipulated that Hitt “[understood] that
the Prosecutor’s recommendation does not have to be followed by the Court.” Though Hitt now
contends that he would not have entered his guilty pleas if he had knowledge that the trial court
might deny his motion for judicial release, the record shows that the trial court never assured Hitt
that judicial release would be granted. When Hitt requested a week to attend to personal affairs
prior to the sentencing hearing, the trial court warned defense counsel that “if there [are] any
problems [Hitt is] getting the full time without judicial [release].” During the plea colloquy, the
trial judge stated that it always made a practice of reviewing an offender’s record during judicial
release proceedings. The trial court specified that “even on agreed judicial releases, I pull the
prison reports.” While the trial court acknowledged the language in the written plea agreement
pertaining to judicial release, it never guaranteed that it would grant judicial release, and it
strongly suggested that it would deny judicial release if Hitt had any issues while in prison.
Moreover, because the trial court made clear to Hitt that judicial release was not a certainty at the
time of the plea colloquy, the fact that a different judge presided over the judicial release
proceedings is immaterial. Under these circumstances, Hitt cannot prevail on his argument.
{¶15} The second assignment of error is overruled.
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III.
{¶16} This Court does not have jurisdiction to reach Hitt’s first assignment of error.
The second assignment of error is overruled. The judgment of the Summit County Court of
Common Pleas is affirmed.
Appeal dismissed in part,
and judgment affirmed in part.
There were reasonable grounds for this appeal.
We order that a special mandate issue out of this Court, directing the Court of Common
Pleas, County of Summit, State of Ohio, to carry this judgment into execution. A certified copy
of this journal entry shall constitute the mandate, pursuant to App.R. 27.
Immediately upon the filing hereof, this document shall constitute the journal entry of
judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the
period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is
instructed to mail a notice of entry of this judgment to the parties and to make a notation of the
mailing in the docket, pursuant to App.R. 30.
Costs taxed to Appellant.
DONNA J. CARR
FOR THE COURT
HENSAL, J.
CONCURS.
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CALLAHAN, J.
CONCURRING IN PART, AND DISSENTING IN PART.
{¶17} Because Mr. Hitt has appealed from an order that affected a substantial right, I
disagree with the majority’s conclusion that this Court lacks jurisdiction to consider his appeal
from the trial court’s order that denied him judicial release, as discussed in his first assignment of
error. I would review the merits of Mr. Hitt’s first assignment of error and affirm because an
appeal from an order that denies judicial release is not the appropriate remedy in this case. I
agree with the majority’s decision to affirm the trial court’s judgment in part as discussed in the
resolution of his second assignment of error, but for different reasons.
{¶18} In State v. Jimenez, 9th Dist. Summit No. 24609, 2009-Ohio-4337, this Court
considered an appeal from an order that denied the defendant’s motion for judicial release two
years after he entered a guilty plea. Id. at ¶ 1. On appeal, the defendant alleged that both the
State and the trial court judge had breached a term of the plea agreement. Id. at ¶ 5. This Court
noted that the Ohio Supreme Court had “implied” that an order that denies a motion for judicial
release is a final appealable order “if the defendant’s argument is that the State breached a plea
agreement.” Id. at ¶ 6, citing State ex rel. Rowe v. McCown,
108 Ohio St.3d 183, 2006-Ohio-
548, ¶ 5. McCown, which was an opinion that affirmed the dismissal of a petition for a writ of
mandamus, concluded that the relator in that case had adequate remedies at law, including an
appeal from an order that denied a motion for judicial release. McCown at ¶ 5. McCown did not
analyze the jurisdiction of a court of appeals. In Jimenez, this Court relied upon McCown’s
recognition that the Relator had an adequate remedy at law but, likewise, did not analyze the
jurisdictional question presented.
{¶19} The Fourth District Court of Appeals, however, has done so. See State v. Francis,
4th Dist. Meigs No. 10CA2, 2011-Ohio-4497, ¶ 14. In Francis, the Court agreed with this
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Court’s conclusion regarding jurisdiction in Jimenez, but went on to explain that the reason the
order was final and appealable was that it affected a substantial right under R.C. 2505.02.
Francis at ¶ 14. Specifically, the Fourth District concluded that in the context of an alleged
breach of a plea agreement by the State, an order that denies judicial release affected the
defendant’s substantial rights related to enforcement of a contract. Id.
{¶20} McCown, Jimenez, and Francis did not consider whether an order that denies a
motion for judicial release is final and appealable in the context of an alleged breach of a plea
agreement by the trial court. By addressing the merits of the appellant’s argument regarding an
alleged breach by the trial court, however, this Court’s opinion in Jimenez implied that our
jurisdiction extended to that issue. Jimenez at ¶ 7. Regardless, this Court should consider
whether the requirements of R.C. 2505.02 are met in this case.
{¶21} As this Court has recognized, an order that denies a motion for judicial release is
not generally a final appealable order. State v. Woods, 141 Ohio App.3d 549, 550 (9th
Dist.2001), citing State v. Coffman,
91 Ohio St.3d 125, 127 (2001). (applying the holding in
Coffman that the determination of a motion for shock probation did not meet the requirements of
R.C. 2505.02(B)(2) to motions for judicial release). R.C. 2505.02(B)(2) provides that “[a]n
order is a final order that may be reviewed, affirmed, modified, or reversed, with or without
retrial, when it … affects a substantial right made in a special proceeding[.]” A “substantial
right” is “a right that the United States Constitution, the Ohio Constitution, a statute, the common
law, or a rule of procedure entitles a person to enforce or protect.” R.C. 2505.02(A)(1). The
right to due process is a substantial right for purposes of R.C. 2505.02(A)(1). See Thomasson v.
Thomasson,
153 Ohio St.3d 398,
2018-Ohio-2417, ¶ 12-21.
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{¶22} As this Court has observed, plea agreements generally “are made between the
prosecutor and the defendant, not the court and the defendant.” State v. Lee, 9th Dist. Wayne
No. 16AP0060, 2018-Ohio-3418, ¶ 17. Nonetheless, a plea agreement may become binding on
the trial court when it “accepts a plea bargain and makes a promise to impose sentence in a
certain manner, consistent with the agreement[.]” State v. Burks, 10th Dist. Franklin No. 04AP-
531,
2005-Ohio-1262, ¶ 19. A breach, in this context, “‘impairs the consensual character of the
plea.’” Id. at ¶ 21, quoting State v. Thompson, 9th Dist. Wayne No. 2240,
1987 WL 13659, *2
(June 17, 1987). That, in turn, implicates due process. See State v. Rieves, 8th Dist. Cuyahoga
No. 105386,
2018-Ohio-955, ¶ 61; State v. Bonnell, 12th Dist. Clermont No. CA2001-12-094,
2002-Ohio-5882, ¶ 18-19.
{¶23} When a defendant alleges that the trial court made a promise regarding judicial
release in the context of a guilty plea that was ultimately breached, the denial of a motion for
judicial release affects the defendant’s substantial right to due process because it may bear on the
consensual nature of the plea. Accordingly, I would conclude that this Court has jurisdiction to
consider Mr. Hitt’s first assignment of error on the merits. As this Court recognized in Jimenez,
however, oral statements regarding judicial release during plea proceedings will not sustain a
successful challenge to a subsequent order that denies judicial release. Jimenez, 2009-Ohio-
4337, at ¶ 7. In this case, Mr. Hitt’s written plea agreement, which was approved by the trial
court, contained a reference that read “JR agreed after 3 [years].” The trial court made some oral
representations regarding judicial release, but, as in Jimenez, did not include those terms in the
sentencing entry. On that basis, I would overrule Mr. Hitt’s first assignment of error.
{¶24} Mr. Hitt’s second assignment of error relates to his delayed appeal from his
conviction. A defendant who pleads guilty waives the right to challenge actions taken by the
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trial court except to the extent that those actions affected the knowing and voluntary nature of the
plea. State v. Gegia, 157 Ohio App.3d 112,
2004-Ohio-2124, ¶ 18 (9th Dist.). A defendant who
does so necessarily must rely only on matters that are apparent from the record at the time of the
conviction. This is because an appeal from the conviction can challenge only what happened
during the course of the plea itself. Mr. Hitt’s only argument is that events that occurred after his
conviction cast doubt on the voluntary nature of his plea; he has not argued that anything that
occurred during the plea proceedings rendered it involuntary. I would overrule Mr. Hitt’s second
assignment of error on this basis alone.
{¶25} One issue remains—the question of what remedy a defendant in Mr. Hitt’s
position might have. Crim.R. 32.1 provides that a court may set aside a judgment of conviction
and permit the withdrawal of a guilty plea after sentencing in order to correct manifest injustice.
A post-sentence motion to withdraw a guilty plea is a potential remedy when a defendant argues
that representations by the trial court that did not come to fruition affected the voluntary nature
of the plea. See e.g. Burks, 2005-Ohio-1262, at ¶ 29. In that respect, I would note that because
Mr. Hitt could not raise his arguments in the context of this appeal, res judicata would not bar
them in a motion under Crim.R. 32.1. See generally State v. Graham, 9th Dist. Summit No.
28153,
2017-Ohio-908, ¶ 10 (explaining that res judicata applies to Crim.R. 32.1 motions when
the defendant’s arguments were raised or could have been raised on appeal).
{¶26} This Court has jurisdiction to consider Mr. Hitt’s appeal from the order that
denied his motion for judicial release. I would consider the merits of his first assignment of error
and overrule it. Mr. Hitt has not argued that his plea was not knowing and voluntary due to
anything that happened before his conviction, and I would overrule his second assignment of
error on this basis alone. For these reasons, I dissent from the majority’s decision to dismiss his
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appeal with respect to the denial of judicial release. I agree with the outcome reached by the
majority in connection with Mr. Hitt’s delayed appeal from his conviction, but for different
reasons.
APPEARANCES:
PAUL M. GRANT, Attorney at Law, for Appellant.
SHERRI BEVAN WALSH, Prosecuting Attorney, and HEAVEN DIMARTINO, Assistant
Prosecuting Attorney, for Appellee.
