[Cite as State v. Wagner,
2024-Ohio-5394.]
COURT OF APPEALS OF OHIO
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
STATE OF OHIO, :
Plaintiff- Appellee, :
No. 113780
v. :
OWEN WAGNER, :
Defendant-Appellant. :
_______________________________________
JOURNAL ENTRY AND OPINION
JUDGMENT: AFFIRMED
RELEASED AND JOURNALIZED: November 14, 2024
Criminal Appeal from the Cuyahoga County Court of Common Pleas
Case No. CR-22-676833-A
Appearances:
Michael C. O’Malley, Cuyahoga County Prosecuting
Attorney, Glen Ramdhan and Greg Ochocki, Assistant
Prosecuting Attorney, for appellee.
Berkman, Gordon, Murray & DeVan and William C.
Livingston, for appellant.
MICHELLE J. SHEEHAN, P.J.:
Defendant-appellant, Owen Wagner, pleaded guilty to multiple counts
of sexual battery and was sentenced to a concurrent 36-month prison term for his
offenses. On appeal he claims the State breached its agreement that neither the
State nor the victim would seek prison time at sentencing. Wagner’s claim is subject
to a plain-error review because no objection was made at the sentencing hearing.
Having reviewed the record, we do not find plain error. Wagner’s ineffective-
assistance-of-counsel claim also fails because he has not demonstrated prejudice.
Therefore, we affirm the trial court’s judgment.
Background
Wagner and the victim were in a relationship for several years, and they
lived together between May 2016 and May 2019. The incidents giving rise to the
instant criminal case occurred between June and August 2017. According to the
victim, Wagner and codefendant Neil Waite engaged in sexual activities with her
without her consent and Wagner recorded some of the sexual activities. All three of
them would be intoxicated, and the victim would be unconscious or asleep on many
of these occasions when sexual acts were performed on her. The victim ended her
relationship with Wagner in May 2019 and underwent substance abuse treatments
and treatments to address the traumatic stress resulting from the sexual abuse by
Wagner. In January 2020, the victim reported the incidents to the Parma Police
Department.
Wagner and codefendant Waite were subsequently charged with rape
and sexual battery in a 13-count joint indictment. Wagner was charged with seven
counts of rape and six counts of sexual battery. Under a plea agreement, Wagner
pleaded guilty to three counts of sexual battery and the State dismissed the
remaining counts. The trial court sentenced him to a concurrent prison term of 36
months.
On appeal, Wagner raises the following assignments of error for our
review:
I. Appellant was denied his constitutional right to due process of law
when his plea agreement was breached at sentencing resulting in
prejudice.
II. Appellant was denied his constitutional right to the effective
assistance of counsel, secured by the Sixth and Fourteenth
Amendments to the United States Constitution, when his trial counsel
failed to object at the sentencing hearing when the plea agreement was
breached and in failing to move to withdraw Appellant’s plea in the trial
court.
III. The trial court’s sentence was contrary to law and in violation of
Appellant’s constitutional right to due process of law.
Plain Error Review of Appellant’s Claim of Breach of Plea Agreement
Under both the first and third assignments of error, Wagner contends
that his constitutional right to due process was violated because his plea agreement
was breached. In support of his claim, Wagner refers us to the following statements
made by the prosecutor at the plea hearing:
For both Mr. Waite and Mr. Wagner, I [want to] put on the record that
. . . no other threats or promises were made to induce the change of
plea, except I did tell attorneys for both Mr. Waite and Mr. Wagner
that, at sentencing, the State and the victim in this case would not be
asking for prison or jail or incarceration. And they have used that in
consideration of their plea today. So I wanted to put that on the record
and be transparent. But at the sentencing, . . . we will not be asking —
myself [nor] the victim will not be asking for a prison sentence or a
jail sentence or incarceration.
After these statements, the prosecutor added that the victim was notified about the
plea and waived her right to be present at the plea hearing.
At the sentencing hearing, the prosecutor made the following
statement: “In deciding what to do, we know the Court always makes its decision by
looking at all the facts before it, the presentence investigation report, and we just ask
you to impose what you feel is an appropriate sentence.” As a “sentence”
encompasses punishment other than incarceration, such as community-control
sanctions, the prosecutor’s statement does not appear to be a breach of the promise
not to seek prison or jail time. Indeed, Wagner’s claim of breach focuses on the
victim’s statements at the sentencing hearing.
At sentencing, the victim gave an extended victim-impact statement
and provided an account of the events similar to what she had reported to the police,
as detailed in the presentence-investigative report (“PSI”). She spoke about the
horrific experience of being subjected to sexual activities with Wagner and his
codefendant while she was too intoxicated to consent. She described herself as
“being gang-raped on a weekly basis” and experiencing the “Stockholm Syndrome,”
exhibited by a victim who would identify with her captor in an effort to minimize the
harm and to survive. The victim also described how Wagner “branded” her with a
tattoo and threatened to send the videos of the abuse to her loved ones or post them
on the internet. She was haunted by the possibility that the videos taken by Wagner
will appear on pornography websites. Because of the trauma, she was hospitalized
in a psychiatric unit for a week, suffering from complex posttraumatic stress
disorder with dissociative symptoms, and still requires long-term therapy. At the
conclusion of the lengthy victim-impact statement, she stated the following:
I have been waiting for today, the day my rapists are finally held
accountable, for over four years, and [I] will be dealing with the effects
of being repeatedly sexually assaulted, degraded and humiliated by
Mr. Wagner and Mr. Waite for the rest of my life.
I ask you, Your Honor, for justice for the atrocities committed against
me. I respectfully urge you to consider everything I told you today
while you determine the appropriate sentence based on the severity of
Mr. Wagner and Mr. Waite’s crimes, as well as the permanent impact
this had on my life.
...
Lastly, I ask that whatever sentences you choose to impose that the
defendants serve their respective sentences consecutively.
(Emphasis added.)
Wagner argues the plea agreement was breached because, despite the
State’s representation at the plea hearing that neither the State nor the victim would
ask for prison or jail time for Wagner’s offenses and that Wagner had considered the
promise in pleading guilty, the victim explicitly urged the trial court to impose
“consecutive sentences” for his offenses. Wagner also contends that the plea
agreement was breached when the victim referred to him as a “rapist,” described his
conduct as “atrocities,” and asked the court to impose “the appropriate sentence
based on the severity” of his conduct.
We begin our analysis with the recognition that a plea bargain is a
contract and subject to the principles of contract law. State v. Bethel,
2006-Ohio-4853, ¶ 50. “In order to determine whether a plea agreement has been
breached, courts must examine what the parties reasonably understood at the time
the defendant entered his guilty plea.” State v. Latimore,
2010-Ohio-1052, ¶ 7 (8th
Dist.), citing United States v. Partida-Parra,
859 F.2d 629 (9th Cir. 1988), and
United States v. Arnett,
628 F.2d 1162 (9th Cir. 1979). “[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 (1971). The federal courts have
emphasized that Santobello “‘proscribes not only explicit repudiation of the
government’s assurances, but must in the interests of fairness be read to forbid end-
runs around them.’” United States v. Saxena,
229 F.3d 1, 6 (1st Cir. 2000), quoting
United States v. Voccola,
600 F.Supp. 1534, 1537 (D.R.I. 1985). See also United
States v. Moncivais,
492 F.3d 652 (6th Cir. 2007). “In the event of a breach, the
trial court may allow the defendant to withdraw his or her plea, or it may order
specific performance of the plea agreement, in which case the defendant shall be
resentenced by a different judge.” State v. Smith,
2021-Ohio-3099, ¶ 35 (8th Dist.),
citing
Santobello at 263 (1971). Furthermore, “[t]he appropriate remedy is left to
the sound discretion of the trial court.”
Id., citing State v. Padilla,
2012-Ohio-5892,
¶ 14 (8th Dist.).
Here, at the plea hearing, the State informed the trial judge — who
presided over both the plea and the sentencing hearing — that Wagner entered into
the plea agreement in consideration of the State’s assurance that neither the State
nor the victim would request prison or jail time. The transcript reflects that the
prosecutor abided by the plea agreement at sentencing and did not request a prison
or jail term. Regarding Wagner’s claim that the victim-impact statement breached
the plea agreement, we first note that a victim of a crime has the right to be heard in
any public proceeding including sentencing. Ohio Const., art. I, § 10(a) (generally
referred to as “Marsy’s Law”). See also State v. Bell, 2009-Ohio-2138, ¶ 14 (8th
Dist.) (“Victims of crime have both constitutional and statutory rights to speak at an
offender’s sentencing hearing.”). The plea agreement here could have, but did not,
provide for the victim’s waiver of this right.
Moreover, the victim’s statement characterizing Wagner’s conduct as
“rape” and “atrocities” is similar to the victim’s account included in the PSI, which
is part of the record before the trial court. Wagner also argues her statement at
sentencing requesting that “the defendants serve their respective sentences
consecutively” violated the plea agreement reported by the State at the plea hearing.
We disagree.
We note that the determination as to whether a party has breached a
plea agreement is a matter that lies within the sound discretion of the trial court.
Maple Hts. v. McCants, 2002-Ohio-1070 (8th Dist.). See also, e.g., State v.
Harrington,
2021-Ohio-343, ¶ 10 (3d Dist.); State v. Dowler,
2015-Ohio-5027, ¶ 20
(4th Dist.). Wagner’s trial counsel did not object to the victim’s statement nor
otherwise raise the issue of whether the State complied with the plea agreement.1
Because the matter was not brought to the trial court’s attention, it
never ruled on this issue. “Plain errors or defects affecting substantial rights may be
noticed although they were not brought to the attention of the court.” Crim.R. 52(B).
Consequently, pursuant to Crim.R. 52(B), we review Wagner’s claim for plain error.
State v. Collier, 2020-Ohio-3033, ¶ 16 (8th Dist.), citing Puckett v. United States,
556 U.S. 129, 129 (2009) (when a defendant fails to raise a breach of the plea
agreement in the trial court, they waive all but plain error); State v. Kline, 2010-
Ohio-3913, ¶ 5 and 7-10 (2d Dist.) (holding plain-error review applied when
appellant did not object to the prosecutor’s recommendation and noting the
defendant in Santobello had properly preserved the issue of the breach); State v.
Taylor,
2021-Ohio-436, ¶ 20 (3d Dist.) (appellant did not object to the State’s
position at sentencing and therefore forfeited all but plain error on appeal related to
The purported breach of the State’s obligation under the
negotiated plea agreement); and State v. Vasquez,
2024-Ohio-2496, ¶ 25 (6th
Dist.).
1 We note that after the victim provided her victim-impact statement, Wagner’s
codefendant’s counsel spoke and reminded the trial court that the prosecutor had
represented at the plea hearing that neither the State nor the victim would be asking for
prison or jail. Wagner’s counsel stated similarly that “when we entered this plea — and I
understand that basically the Court has all the discretion . . . but there hasn’t been a
specific request for prison.”
“[I]n order to prevail under a plain error analysis, the appellant bears
the burden of demonstrating that the outcome of the proceedings clearly would have
been different but for the error.” State v. Harris, 2012-Ohio-802, ¶ 9 (8th Dist.),
citing State v. Long,
53 Ohio St.2d 91 (1978), paragraph two of the syllabus. See also
State v. Sanders,
92 Ohio St.3d 245 (2001) (plain error will be recognized only
where, but for the error, the outcome of the case would clearly have been different).
We are to notice plain error “with the utmost caution, under exceptional
circumstances and only to prevent a manifest miscarriage of justice.” State v.
Rogers,
2015-Ohio-2459, ¶ 23.
Even if we consider the victim’s statement to be a violation of the plea
agreement, Wagner fails to demonstrate that the trial court would not have imposed
a prison sentence but for the victim’s request. While the victim requested that
Wagner serve his sentences “consecutively,” the trial court was not bound to impose
a penalty requested by a victim. Bell, 2009-Ohio-2138, ¶ 14 (8th Dist.). Despite the
victim’s request that the trial court sentence Wanger “consecutively,” the trial court
did not impose consecutive sentences. Instead, the trial court imposed a concurrent
sentence of 36 months in prison on each of the counts Wagner pleaded guilty to.
There is nothing in the record indicating the trial court would not have imposed a
prison term but for the victim’s request. Rather, our review indicates the trial court
here imposed a concurrent 36-month prison term on Wagner based on its
independent review of the entire record. Before imposing the prison term, the trial
court specifically stated that it was taking into account “everything [it] knew about
[the defendant],” including the PSI and the sentencing memorandum, and the
sentencing laws of R.C. Ch. 2929. There is no indication from the record before us
that the trial court would not have imposed a prison term but for the victim’s
request. As such, Wagner fails to meet his burden of demonstrating that plain error
occurred in this case. See
Collier at ¶ 17 (even if the prosecutor’s comments were
construed as a breach of the plea agreement, no plain error occurred because the
record indicated that the trial court imposed a prison term based on its own
independent assessment of the record).
Wagner cites two Seventh District cases, State v. Adams, 2014-Ohio-
724 (7th Dist.), and State v. Brown, 2023-Ohio-2696 (7th Dist.), for his claim that
plain error existed in this case. Both cases are distinguishable. In both cases, the
State agreed to remain silent but a different assistant prosecutor appeared at the
sentencing hearing and breached the agreement by explicitly recommending
incarceration. The Seventh District found plain error existed in both cases, noting
that “the state’s recommendation is a well-recognized tool in the plea bargaining
process, which is an essential component of the criminal justice system” and that
“the state’s promise to refrain from insisting upon a lengthy sentence is a favorable
factor in a decision to enter a plea.”
Brown at ¶ 14, quoting Adams at ¶ 36.
In Adams, the appellate court also reasoned that the State’s
recommendation of a maximum sentence “does carry great weight” and the
difference between remaining silent and requesting a maximum sentence of years
was so great that it was impossible to say that the State’s recommendation did not
contribute to the trial court’s sentencing decision. Adams at ¶ 36. In Brown, the
prosecutor reported that the defendant had not paid restitution to the victim and
requested jail time to be imposed. The appellate court’s review of the trial court’s
statement made immediately before sentencing referring to the prosecutor’s report
regarding the lack of restitution reflected that it relied on the prosecutor’s
statement in sentencing appellant. Brown at ¶ 16-18. In the instant case, the
victim, not the State, requested “consecutive sentences” and our review of the trial
court’s statement prior to sentencing does not reflect that it relied on the victim’s
request in its sentencing decision. Before imposing the prison term, the trial court
here specifically stated that it was taking into account everything it knew about the
defendant, including the information from the PSI and the sentencing
memorandum. Both cases are distinguishable. The first and third assignments of
error are overruled.
Ineffective-Assistance-of-Counsel Claim
Under the second assignment of error, Wagner contends that his trial
counsel provided ineffective assistance of counsel for failing to object to the breach
of the plea agreement and to move to withdraw his guilty plea.
To establish a claim of ineffective assistance of counsel, an appellant
must prove (1) his counsel was deficient in some aspect of his representation, and
(2) there is a reasonable probability that, were it not for counsel’s errors, the result
of the trial would have been different. Strickland v. Washington, 466 U.S. 668
(1984). Counsel’s performance will not be deemed ineffective unless the
performance is proven to have fallen below an objective standard of reasonable
representation and, in addition, prejudice arises from counsel’s performance. State
v. Iacona,
93 Ohio St.3d 83 (2001). “Prejudice is established when the defendant
demonstrates ‘a reasonable probability that but for counsel’s unprofessional errors,
the result of the proceeding would have been different. A reasonable probability is
a probability sufficient to undermine confidence in the outcome.’” State v.
Copeland,
2016-Ohio-1537, ¶ 39 (8th Dist.), quoting
Strickland at 694.
Wagner’s trial counsel arguably should have objected to the victim’s
statement seeking consecutive sentences in light of the State’s representation at the
plea hearing that she would not seek prison or jail time. However, to prevail on an
ineffective-assistance-of-counsel claim, Wagner must establish he was prejudiced.
We note first that, in the event of a breach, it is within the trial court’s discretion to
allow the defendant to withdraw the guilty plea or order specific performance of the
plea agreement (in which case the defendant shall be resentenced by a different
judge). Smith, 2021-Ohio-3099, at ¶ 35 (8th Dist.). Furthermore, Wagner was
charged with 13 counts of sexual offenses, including seven counts of rape, a first-
degree felony, and six counts of sexual battery, a third-degree felony. He pleaded
guilty to three counts of sexual battery in exchange for the dismissal of the remaining
counts, and the trial court sentenced him to a concurrent 36-month term for his
sexual battery offenses. It is entirely speculative that the trial court would have
permitted Wagner to withdraw his guilty plea instead of ordering specific
performance of the plea agreement and permitting him to be resentenced by a
different judge, Santobello,
404 U.S. 257, 263, and that the outcome of the
subsequent proceedings would be more favorable to him. Therefore, even assuming
counsel’s failure to object constituted deficient performance, Wagner fails to
demonstrate prejudice. The second assignment of error is overruled.
Judgment affirmed.
It is ordered that appellee recover of appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the
common pleas court to carry this judgment into execution. The defendant’s
conviction having been affirmed, any bail pending appeal is terminated. Case
remanded to the trial court for execution of sentence.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27
of the Rules of Appellate Procedure.
_________________________________
MICHELLE J. SHEEHAN, PRESIDING JUDGE
LISA B. FORBES, J., CONCURS;
MARY J. BOYLE, J., DISSENTS (WITH SEPARATE OPINION)
MARY J. BOYLE, J., DISSENTING:
I respectfully dissent. I would find that the State breached its promise
to Wagner, and based on the circumstances of this case, I would find plain error,
reverse the trial court’s judgment, and remand to the trial court for the most
appropriate choice from the two options presented by the Santobello Court — the
opportunity to withdraw the plea or a new sentencing hearing before a different
judge.
In Santobello, the United States Supreme Court aptly stated:
The disposition of criminal charges by agreement between the
prosecutor and the accused, sometimes loosely called “plea
bargaining,” is an essential component of the administration of
justice. Properly administered, it is to be encouraged. If every
criminal charge were subjected to a full-scale trial, the States and the
Federal Government would need to multiply by many times the
number of judges and court facilities.
Disposition of charges after plea discussions is not only an essential
part of the process but a highly desirable part for many reasons. It
leads to prompt and largely final disposition of most criminal cases; it
avoids much of the corrosive impact of enforced idleness during
pretrial confinement for those who are denied release pending trial; it
protects the public from those accused persons who are prone to
continue criminal conduct even while on pretrial release; and, by
shortening the time between charge and disposition, it enhances
whatever may be the rehabilitative prospects of the guilty when they
are ultimately imprisoned. See Brady v. United States, 397 U.S. 742,
751-752 (1970).
However, all of these considerations presuppose fairness in securing
agreement between an accused and a prosecutor. . . . The plea must,
of course, be voluntary and knowing and if it was induced by promises,
the essence of those promises must in some way be made known. . . .
This phase of the process of criminal justice, and the adjudicative
element inherent in accepting a plea of guilty, must be attended by
safeguards to insure the defendant what is reasonably due in the
circumstances. Those circumstances will vary, but a constant factor
is that when 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, 404 U.S. at 260-262.
Here, the majority opinion acknowledges that Wagner entered into
the plea agreement in consideration of the State’s promise that neither the State nor
M.P. would request prison or jail or incarceration, the State abided by the terms of
the plea agreement at the sentencing hearing, and M.P.’s statement that “the
defendants served their respective sentences consecutively” is “arguably contrary”
to the State’s representations at the plea hearing, but concludes that there is no plain
error because there is no indication in the record that the court would not have
imposed its 36-month prison term but for M.P.’s request. I respectfully disagree.
There is no question that M.P.’s statement inarguably breached the
State’s promise that neither the State nor M.P. would request prison or jail or
incarceration. Indeed, the plain meaning of the phrase “the defendants served their
respective sentences consecutively” connotes consecutive prison time. This breach
was not minor. Indeed, the State’s promise induced Wagner to enter a guilty plea
and the breach of that promise prejudiced Wagner. There is no dispute that the
State went from promising that it and M.P. would not request prison or jail or
incarceration to M.P. requesting at sentencing that Wagner served his sentence
consecutively. And, as for the majority’s conclusion that there is no plain error
because there is no indication in the record that the court would not have imposed
its 36-month prison term but for M.P.’s request, I would find that this conclusion is
misplaced. Rather, the focus should be on whether Wagner would have forgone his
right to trial and pled guilty knowing that M.P. was going to ask for prison time. And
the record clearly demonstrates, Wagner entered the plea agreement based on that
promise.
Thus, based on the foregoing, I would find plain error in this case.
And, in the interest of justice and the appropriate recognition of the State’s duties in
relation to promises it made at the plea hearing, I would remand the case to the trial
court for further consideration of the ultimate relief Wagner is entitled to — whether
the circumstances of this case require only that there be specific performance of the
agreement on the plea, in which case Wagner should be resentenced by a different
judge, or whether, in the view of the court, the circumstances require granting
Wagner the opportunity to withdraw his guilty of guilty. Santobello, 404 U.S. at
262-263.
