State v. Jordan

[Cite as State v. Jordan, 

.]

                               COURT OF APPEALS OF OHIO

                              EIGHTH APPELLATE DISTRICT
                                 COUNTY OF CUYAHOGA

STATE OF OHIO,                                     :

                 Plaintiff-Appellee,               :
                                                            No. 113226
                 v.                                :

DANTE JORDAN,                                      :

                 Defendant-Appellant.              :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: REVERSED AND REMANDED
                 RELEASED AND JOURNALIZED: June 20, 2024


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
         Case Nos. CR-22-673061-A, CR-22-675801-A, and CR-23-677860-A


                                             Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Jasmine Jackson, Assistant Prosecuting
                 Attorney, for appellee.

                 Kenneth D. Myers, for appellant.


KATHLEEN ANN KEOUGH, A.J.:

                   Defendant-appellant, Dante Jordan, appeals from the trial court’s

judgments, rendered after guilty pleas to multiple counts of burglary and theft. For

the reasons that follow, we reverse and remand.
              The state alleged that Jordan burglarized 14 different homes between

December 4, 2021, and January 11, 2023. The state charged Jordan in Cuyahoga

C.P. No. CR-22-675801 with ten counts of burglary, nine counts of theft (three of

which identified the victims as elderly or disabled), two counts of grand theft (two

firearms), and one count of petty theft. In Cuyahoga C.P. No. CR-22-673061, the

state charged him with three counts each of burglary and theft. And in Cuyahoga

C.P. No. CR-23-677860, the state charged Jordan with one count of burglary and

theft.

              In September 2023, the cases were scheduled for trial. Following a

brief recess, the state presented the trial court with an accepted packaged plea

agreement, along with an agreed, recommended sentence of 15-18 years, with the

condition of no early release. In Case No. 675801, Jordan pleaded guilty to five

counts of burglary, in violation of R.C. 2911.12(A)(2) (Counts 1, 5, 11, 15, and 17);

three counts of theft, in violation of R.C. 2913.02(A)(1) (Counts 4, 6, and 10); and

one count of grand theft, in violation of R.C. 2913.02 (Count 18). Regarding Case

No. 673061, Jordan agreed to plead guilty to two counts of burglary (Counts 3 and

5) and one count of theft (Count 2). And in Case No. 677860, he agreed to plead

guilty to one count of burglary (Count 1). In addition to pleading guilty, Jordan also

agreed to have no contact with the victims and pay restitution.

              The following day, the trial court sentenced Jordan to a stated

minimum prison term of 32 years with a maximum of 36 years and ordered him to

have no contact with the victims and pay restitution. This appeal followed.
I.   Crim.R. 11 — Plea

               On September 6, 2023, Jordan appeared before the trial court,

supposedly for trial. The court noted that Jordan was currently serving a six-year

sentence out of Lake County and “may have been on postrelease control at the time

of these cases.” (Tr. 3.) Defense counsel advised the trial court that the state made

a plea offer and that counsel “extensively reviewed the agreed recommended

sentence for the court’s consideration as a package resolution in all three of these

matters,” but that Jordan requested new counsel and a psychiatric evaluation.

(Tr. 4.)

               Jordan told the trial court that he felt that counsel was not

representing him to the best of her ability and that he did not even know that he was

appearing for trial. After some discussion between the trial court and Jordan, the

court denied his request for new counsel and advised that the matter would proceed

to trial that day. The court then stated:

       It’s my understanding that you were on a GPS monitoring device when
       you committed some, if not all, of these crimes. It’s my understanding
       also that there’s DNA evidence against you. If I were you, I would
       consider cutting my loss and entertaining a plea agreement, but that’s
       up to you.

(Tr. 9.) The trial court stood in recess for Jordan to change his clothes, if he wished,

for trial.

               After the recess, the state advised the court that the parties had

reached a plea agreement. The state presented the trial court with an accepted

packaged plea agreement, along with an agreed, recommended sentence of 15-18
years, with the condition of no early release. In addition to pleading guilty, Jordan

would also agree to have no contact with the victims and pay restitution.

               During the state’s presentation of the plea agreement, the trial court

interrupted the prosecutor because Jordan was apparently confused with

statements made by the state. The court inquired:

       THE COURT: Hold on a second. Do we need to work something out
       more? Counsel. Counsel.

       THE DEFENDANT: Your Honor, I’m not trying to upset you or
       anything. I’m just trying to understand what’s going on with my life
       right here today. I told you I’m not even understanding of — of
       everything of what’s going on right now.

       THE COURT: Well, it would help to listen when the prosecution is
       outlining the plea agreement instead of taking [sic] to your lawyer. So
       what don’t you understand?

       JORDAN: The things that they just going — what the time-wise me —
       they said 15 years with no early release. I’m not understanding that.

       THE COURT: What’s not clear about 15 to 18 with no early release? It
       seems pretty straightforward. You do 15 to 18 years and you don’t get
       out early.

       JORDAN: Day for day?

       THE COURT: I don’t know what you’re talking about day for day.

       JORDAN: So that mean I would have to do 15 years day for day?

       THE COURT: Yeah. You do every day of the 15 years.

(Tr. 11-12.)

               The state finished setting forth the plea agreement. The prosecutor

explained that although discovery had been exchanged, certain pieces of evidence

might be missing, but,
      [t]hese cases have been fully pretried and no threats or promises or
      inducements were made except for the joint recommended sentence to
      the defendant in order for him to accept this plea. Thank you.

(Tr. 14.) Defense counsel stated that the plea agreement as set forth by the state was

her and Jordan’s understanding — “We have discussed at length the possibility of

penalties if the Court were to accept the agreed recommended sentence.” (Tr. 14-

15.) Jordan told the trial court that he would “take the plea.” (Tr. 15.)

               The trial court then engaged in a plea colloquy, asking Jordan:

      THE COURT: Has anyone threatened you with anything or promised
      you anything outside of what we’ve said in court this morning to get
      you to enter into this plea agreement?

      JORDAN: Concurrent time, your Honor.

      THE COURT: That was not promised to you.

      JORDAN: It was not promised, but told I was getting concurrent time.

      THE COURT: That has not been promised to you. Do you understand
      that?

      JORDAN: Yes, your honor.

(Tr. 16.) The trial court then advised Jordan of his constitutional rights that he

would be waiving if he entered into the plea agreement, which Jordan stated that he

understood. (Tr. 16-20.)

               Regarding penalties, the court advised him of the minimum and

maximum penalties, including the application of the Reagan Tokes Law, on each

count contained in the plea agreement. When the state advised the court that none

of the counts merged for sentencing, defense counsel objected, prompting the trial

court to respond, “Okay. Counsel, we’re going to have a plea. You have to be in
agreement on this.” (Tr. 23.) After a small recess, the state conceded that Counts 17

and 18 merged, in Case No. 675801.

               After confirming with the state that the victims were in agreement

with the plea offer, the court stated:

       THE COURT: Okay. The State is agreeing to a 15 to 18-year term
       without early release. I just want to make sure you understand that the
       State doesn’t have any say in sentencing. That’s the Court’s job. I can
       sentence you any way I wish.

       JORDAN: Okay.

       THE COURT: Do you understand that?

       JORDAN: Yes.

(Tr. 25-26.)

               After advising Jordan about restitution and postrelease control, the

court again stated:

       THE COURT: And again, lastly, do you understand the Court has not
       promised you any particular sentence in exchange for your entry into
       this plea agreement?

       JORDAN: You said that again, your Honor?

       THE COURT: Do you understand the Court has not promised you any
       particular sentence in exchange for your entry into this plea
       agreement?

       JORDAN: Yes.

(Tr. 27.)

               Jordan then entered his guilty pleas, which the court accepted, and

the parties agreed that the court complied with Crim.R. 11. The trial court “hoped”
to proceed directly to sentencing, but the state requested time to reach out to the

victims. The court continued sentencing until the following day.

              At sentencing the next day, the trial court reiterated the counts that

Jordan had pleaded guilty to, stated that these cases were Jordan’s “eighth, ninth,

and tenth felony cases in Cuyahoga County Common Pleas Court,” he was serving

time out of Lake County, he had already served a consecutive sentence totaling 39

months, and was currently on probation with another judge in Cuyahoga County

that was imposed “after the commission of these three crimes but before his

arraignment.” (Tr. 31-32.) The trial court then heard from (1) the prosecutor, who

also read a victim-impact statement, (2) one of the victims who was present for

sentencing, and (3) a Cleveland Heights detective. During this presentation, the trial

court learned that Jordan had cut off his GPS monitor (a device he was ordered to

wear as a condition of his parole) that he had worn during the commission of some

of the burglaries. (Tr. 38-39.) The court also learned about how Jordan committed

the offenses — by watching houses and waiting for the owners to leave. During one

burglary, Jordan and another individual confronted a family’s nanny while they

were inside the home, and during another incident, the family dog was injured.

              As for mitigation evidence, Jordan’s mother addressed the court,

expressing disappointment and sadness for everyone involved. Jordan’s defense

counsel noted Jordan’s criminal history and the circumstances surrounding this

offense. Counsel stated that Jordan possibly has “undiagnosed mental health that

has never been treated,” but also that he was “using heavily throughout the crime
spree.” (Tr. 57.) Counsel noted that Jordan was currently serving a prison sentence

out of Lake County and requested a waiver of fines and costs to allow Jordan to make

restitution to the victims. As for a prison sentence, counsel stated:

      If the Court is to consider the agreed recommended range that the State
      of Ohio and defense counsel were able to come to, we would
      respectfully request if the Court would run his time in Lake County
      concurrent with whatever sentence is deemed appropriate here.

      If the Court is to accept that range, I honestly, Judge, I think the best
      and maybe the only argument that I can make for a concurrent
      sentence in this case and with all the factors that have been presented
      is to maybe save the taxpayers of Cuyahoga County a little bit of money
      and have Lake County pay for the first six years of his incarceration. I
      know that is not an eloquent argument. It’s not a tactful argument, but
      probably is the only argument I have and I’ve got to make it.

      ...

      And again, asking the Court with much mercy, to respect and hopefully
      follow, the agreed recommended range at this time.

(Tr. 59.) Jordan also addressed the court, apologizing to the victims, his family, and

to the cities where the incidents occurred, and accepting responsibility for his

actions.

              The trial court then addressed Jordan for sentencing. The court

stated:

      Mr. Jordan, you are a person that deserves to be separated from society
      for a long period of time. As I indicated at the start of this proceeding,
      [another trial court] in one of five or six cases noted your extensive
      juvenile history, you had six cases within four months with him. He
      saw fit to impose consecutive time with you. You got out and you went
      on another crime spree.

      The number of burglaries here, and these are real burglaries, these are
      breaking into the houses in the middle of the day or at various times of
      days, traumatizing the individuals, traumatizing Rottweilers,
         traumatizing the community. This is no small amount of harm caused,
         and frankly other than a rape and a murder, it’s hard to imagine a more
         harmful spree here.

(Tr. 67.) The court ordered him to pay restitution, advised him of postrelease release

control, and imposed consecutive sentences for a total prison sentence of 32 to 36

years.

                 In his first assignment of error, Jordan contends that he did not enter

a knowing, intelligent, and voluntary plea because (1) he was unaware that he was

even scheduled to appear in court, let alone for a trial; (2) when he did appear in

court, he expressed that he wanted a new attorney due to a communication

breakdown; (3) his attorney was not prepared for trial, asked to withdraw, and asked

that Jordan receive a psychological evaluation; and (4) he believed that he would

receive the agreed, recommended sentence of 15-18 years.

                 Because a “guilty plea involves a waiver of constitutional rights, a

defendant’s decision to enter a plea must be knowing, intelligent, and voluntary.”

State v. Dangler, 

, citing Parke v. Raley, 

(1992); State v. Clark, 

, ¶ 25. “If the plea was not made knowingly,

intelligently, and voluntarily, enforcement of that plea is unconstitutional.” 

 The

underlying purpose of Crim.R. 11 is to convey certain information to a defendant so

they can make a voluntary and intelligent decision regarding whether to plead guilty.

State v. Ballard, 

 (1981).
               This court finds merit to Jordan’s main challenge that his plea is

invalid because the trial court deviated from the agreed, recommended sentence of

15-18 years.

               Crim.R. 11 requires that the defendant be fully aware of the potential

consequences of his plea. “‘Where a sentence recommendation is an integral part of

a plea agreement, the failure to inform the defendant of potential changes may result

in a plea that was not entered into knowingly, voluntarily, or intelligently.’” State v.

Dunbar, 

 (8th Dist.), quoting State v. Allgood, 

, *9 (9th Dist. June 19, 1991).

               “‘A trial court is vested with sound discretion when implementing

plea agreements.’” State v. Orlando, 

 (8th Dist.), quoting

. And the court is not obligated to follow the negotiated plea entered

into between the state and the defendant. 

 “However, before the trial court

imposes a longer prison sentence than what is recommended in the plea agreement,

due process requires the trial court to put the defendant on notice of that possibility

before accepting the guilty plea.” State v. Williams, 

, ¶ 4 (8th Dist.).

               “A trial court does not err by imposing a sentence greater than ‘that

forming the inducement for the defendant to plead guilty when the trial court

forewarns the defendant of the applicable penalties, including the possibility of

imposing a greater sentence than that recommended by the prosecutor.’” State v.

Buchanan, 

 (5th Dist.), citing State v. Darmour, 

 (8th Dist. 1987), syllabus (finding no abuse of discretion when the trial
court forewarns a defendant that it will not consider itself bound by any sentencing

agreement and defendant fails to change his plea after being advised); State v. Tucci,

 (7th Dist.) (before the court sentences the defendant, it must

ascertain that the defendant understands that it can impose a higher sentence than

that recommended by the prosecution and that no one promised him anything less

than the maximum sentence).

              The state argues that Jordan was put on notice that the court might

deviate from the recommended prison sentence when the court on two occasions

advised him that it could “sentence any way I wish” and “the court has not promised

you any particular sentence in exchange for your entry into this plea agreement.”

(Tr. 25 and 27.) Based on our review of the record, we agree with the state that the

trial court advised Jordan that it had not promised him any particular sentence,

including the sentence agreed to by the state.

              The problem, however, is that after the trial court decided it would

not impose the agreed, recommended sentence but would impose a sentence nearly

double than what was agreed and recommended by the state and the defense, it

should have given Jordan an opportunity to reconsider his guilty plea.

              In Warren v. Cromley, 

, *7-8 (11th Dist.

Jan. 29, 1999), referring to the trial court’s discretion on whether to accept a

negotiated plea, the court stated:

      [T]he law is somewhat less settled in those cases where the trial court
      appears to indicate that it accepts the negotiated plea agreement before
      the court accepts the defendant’s plea, and then deviates from the
      recommended sentence or terms contained within the plea agreement
      at the time of sentencing. The analysis in these scenarios turns to due
      process concerns over whether the accused was put on [notice] that the
      trial court might deviate from the recommended sentence or other
      terms of the agreement before the accused entered his plea and
      whether the accused was given an opportunity to change or to
      withdraw his plea when he received this notice.

(Emphasis added.)

               Regarding an “agreed sentence that forms the basis of the plea, the

sentence itself is part of the quid pro quo for the agreed plea. Although the trial

judge is free to accept or reject that agreement, it is incumbent upon the court to do

so expressly. To hold otherwise creates a false expectation in the mind of the

defendant over the underlying nature of the plea agreement.” State v. Huffman,

 (8th Dist.). The overall concern is “whether the defendant

‘had a reasonable expectation that the trial court would implement the agreed

sentence.’” State v. Lumbus, 

 (8th Dist.), quoting Dunbar,

 (8th Dist.).

               Based on the record before this court, we find that Jordan had a

reasonable expectation that the trial court would implement a sentence within the

agreed sentencing range of 15 to 18 years. During the state’s presentation of the plea,

Jordan expresses confusion about “no early release.” The court explained that under

the plea agreement, Jordan would “do 15 to 18 years and you don’t get out early,”

and “[y]ou do every day of the 15 years.” Additionally, the state acknowledged

during the plea hearing that the only promise made to Jordan was the agreed,

recommended sentence of 15 to 18 years, with no early release, restitution, and no
contact with the victims. The court reiterated this promise when the court asked

Jordan whether “anyone promised you anything outside of what we’ve said in court

this morning to get you to enter into this plea agreement.” When Jordan noted he

was told “concurrent time,” the court rightfully advised him that he was not

promised that — the agreement did not include concurrent time, but rather 15-18

and no early release.

              The record is clear that the trial court knew at the time of the plea the

nature of the offenses, Jordan’s criminal history (including his current

confinement), and that Jordan allegedly committed some of the offenses while on

parole supervision and wearing a GPS monitoring device. In fact, the trial court

wanted to proceed directly to sentencing after accepting Jordan’s plea, without

obtaining a presentence-investigation report, even though there were multiple

victims who were seeking restitution and were not present that day to provide

impact statements. The trial court’s desire to proceed directly to sentencing would

also lend credence to Jordan’s reasonable expectation that the trial court would

impose a sentence within the agreed sentencing range.

              If the trial court’s decision to proceed directly to sentencing was based

on its predetermined intention that it would not sentence Jordan in accordance with

the agreed, recommended sentence, then the trial court erred in accepting Jordan’s

plea without advising the parties that it was not accepting the recommended

sentence. When a trial court decides not to impose the agreed, recommended

sentence, it should clearly advise a defendant of its intentions, and allow the
defendant to reconsider his plea. State v. Swortchek, 

 (8th

Dist.), citing Dunbar, 

 (8th Dist.), citing Allgood, 

, at *10 (9th Dist.). If Jordan had then chosen to still plead

guilty, there would be no error because he would have been fully informed that the

court was not imposing sentence as agreed and recommended.

              Regardless of when the trial court in this case determined that it

would deviate from the agreed, recommended sentence, we find that the trial court

committed error because it did not expressly reject the agreed, recommended

sentence prior to accepting Jordan’s guilty plea or give Jordan an opportunity to

withdraw his plea.

              Trial courts must be mindful that an appearance of a “bait and switch”

could exist in circumstances when the court deviates from an agreed, recommended

sentence when a defendant has a reasonable expectation that the court will impose

that sentence. See State v. Elliott, 

 (1st Dist.), quoting State v.

Cox, 

, *3-4 (4th Dist. Oct. 23, 1990) (Grey, J.,

dissenting) (“[T]he court may listen to the prosecutor’s recommendation of an

unacceptable sentence, accept a plea of guilty based on that recommendation, but

then ignore the prosecution’s recommendation and yet still hold the defendant to

this guilty plea. This smacks of the bait and switch tactics of consumer fraud.”).

              Accordingly, we find merit to Jordan’s first assignment of error that

he did not enter a knowing plea because the trial court imposed a substantially
greater sentence than what was agreed and recommended without giving him an

opportunity to withdraw his plea. The assignment of error is sustained.

              Having found merit to Jordan’s first assignment of error, his

remaining assignments of error challenging his trial counsel’s representation, and

the trial court’s unlawful imposition of consecutive sentences and of a sentence on a

dismissed count, are hereby rendered moot. See App.R. 12(A)(1)(c).

               Judgment reversed and remanded.

      It is ordered that appellant recover from appellee 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. Case remanded to the

trial court for further proceedings consistent with this opinion.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27

of the Rules of Appellate Procedure.



KATHLEEN ANN KEOUGH, ADMINISTRATIVE JUDGE

EILEEN A. GALLAGHER, J., and
MARY EILEEN KILBANE, J., CONCUR