2020 OHIO 5444 - State v. Peck

[Cite as State v. Peck,

2020-Ohio-5444

.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                    SANDUSKY COUNTY


State of Ohio                                    Court of Appeals No. S-20-008

        Appellee                                 Trial Court No. 16 CR 919

v.

Kyle L. Peck                                     DECISION AND JUDGMENT

        Appellant                                Decided: November 25, 2020

                                           …

        Beth A. Tischler, Sandusky County Prosecuting Attorney,
        and Alexis M. Hotz, Assistant Prosecuting Attorney, for appellee.

        Kyle L. Peck, pro se.

                                           …

        SINGER, J.

        {¶ 1} Appellant, Kyle L. Peck, appeals pro se from the December 23, 2019

judgment of the Sandusky County Court of Common Pleas denying appellant’s motion to

compel specific performance of the plea agreement he entered into in this case. For the

reasons which follow, we affirm.
       {¶ 2} He asserts the following assignment of error:

              TRIAL COURT COMMITTED ERROR WHEN IT

       SENTENCED MR. PECK TO A TERM OF INCARCERATION IN

       EXCESS OF WHAT THE COURT AGREED TO AT THE TIME

       MR. PECK’S PLEA WAS ACCEPTED.

       {¶ 3} Appellant was charged in a 16-count indictment. On July 28, 2017, he and

the state entered into a plea agreement, which provided that he would enter guilty pleas to

two second-degree felony counts of aggravated trafficking in drugs. Appellant

acknowledged in the written plea agreement that he would be sentenced to a mandatory

prison term of 2-8 years for each count. While the state agreed to recommend a prison

term of 3-to-4 years, the prosecutor stated during the change of plea hearing he wanted to

make sure appellant understood “that the two years is mandatory.” Defense counsel also

indicated that there was a mandatory term.

       {¶ 4} A sentencing hearing was held on July 31, 2017, and the court sentenced

appellant to a mandatory term of 4 years on each count, with the sentences to run

concurrent to each other. No objection was made by appellant to the sentence imposed.

Appellant’s sentence was affirmed on appeal. State v. Peck, 6th Dist. Sandusky No.

S-17-031,

2018-Ohio-3406, ¶ 17

. The only issue raised on appeal was the issue of

whether appellant was properly informed prior to changing his plea that he was subject to

mandatory minimum terms of incarceration and that he understood he was subject to a

mandatory prison term on each count. Id. at ¶ 14-15. A motion for delayed appeal from




2.
that decision was denied by the Ohio Supreme Court. State v. Peck,

154 Ohio St.3d 1442

2018-Ohio-4962

113 N.E.3d 551

{¶ 5} However, on December 18, 2019, appellant filed a pro se motion to compel

specific performance of the plea agreement. He acknowledges that he raised on direct

appeal the issue of whether he was properly advised of the terms of the plea agreement

but he believed the plea agreement provided for a two-year mandatory term, which would

allow for judicial release after two years and six months. He first asserts that the

additional conditions in the plea agreement were vague and ambiguous. He argues the

state’s recommendation of 3-4 years was not clear because it did not indicate what

portion of the recommendation represented mandatory terms and did not mention judicial

release eligibility. He further argues that the lengthy discussion at the plea hearing

regarding his potential sentence evidences that the plea agreement was unclear regarding

the sentence and judicial release eligibility. Secondly, he asserts the prosecution

breached its promise that appellant would be sentenced to the agreed term of

imprisonment and, therefore, he sought to withdraw his guilty plea. The trial court

denied the motion and appellant appealed the decision.

{¶ 6} We have reviewed appellant’s arguments and find the arguments lack merit.

First, this case did not involve a joint sentencing agreement. A plea agreement is a

negotiation of the plea, not the sentence, which is a matter to be determined by statute

and may require an exercise of the trial court’s discretion. Crim.R. 11(F); State v.

Bagner, Jr., 6th Dist. Lucas No. L-19-1158 (Oct. 30, 2020) (citations omitted). Second,

3.
appellant could also have raised the issue of whether the prosecution violated the plea

agreement in the direct appeal because the plea agreement was part of the record on

appeal. Therefore, the issues raised in appellant’s motion to compel specific performance

of the plea agreement are now barred under the doctrine of res judicata. State v. Davis,

119 Ohio St.3d 422

2008-Ohio-4608

894 N.E.2d 1221, ¶ 6

 (citations omitted).

       {¶ 7} Therefore, we find appellant’s sole assignment of error not well-taken.

       {¶ 8} Having found that the trial court did not commit error prejudicial to

appellant and that substantial justice has been done, the judgment of the Sandusky

County Court of Common Pleas is affirmed. Appellant is ordered to pay the costs of this

appeal pursuant to App.R. 24.

                                                                       Judgment affirmed.


       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
Arlene Singer, J.
                                               _______________________________
Thomas J. Osowik, J.                                       JUDGE
CONCUR.
                                               _______________________________
                                                           JUDGE

           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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