[Cite as State v. Blair,

.]

IN THE COURT OF APPEALS OF OHIO FOURTH APPELLATE DISTRICT SCIOTO COUNTY

STATE OF OHIO, : Case No. 11CA3429 : Plaintiff-Appellee, : : DECISION AND v. : JUDGMENT ENTRY : CYNTHIA BLAIR, : : RELEASED: 02/22/12 Defendant-Appellant. : ______________________________________________________________________ APPEARANCES:

Gene Meadows, Portsmouth, Ohio, for appellant.

Mark E. Kuhn, Scioto County Prosecuting Attorney, and Pat Apel, Scioto County Assistant Prosecuting Attorney, Portsmouth, Ohio, for appellee. ______________________________________________________________________ Harsha, J.

{¶1} Cynthia Blair appeals the trial court’s decision denying her motion for

judicial release, arguing that the state breached the terms of their plea agreement by

opposing her motion. However, the plea agreement contained a subjective satisfaction

clause and the record supports the state’s good faith belief that Blair did not provide

useful information in accordance with the agreement. Accordingly, the state was not

bound by the terms of the agreement and was free to oppose judicial release.

Moreover, the trial court did not err in denying her motion based on her failure to satisfy

the terms of the plea agreement. Additionally, the court had an independent basis to

deny the motion, i.e., Blair’s failure to complete rehabilitative programs while in prison. Scioto App. No. 11CA3429 2

I. FACTS

{¶2} In 2005, Cynthia Blair pleaded guilty to aggravated trafficking of drugs, a

felony of the second degree, and weapon under disability, a felony of the third degree.

Subsequently, the trial court sentenced her to a mandatory five year prison term for her

drug conviction and a consecutive five year prison term for her weapons conviction, for

a total of ten years.

{¶3} Prior to her guilty plea, Blair entered into a plea agreement with the state.

After she had entered her plea, the state sent Blair’s trial counsel a letter memorializing

the agreement. In addition to summarizing Blair’s convictions and sentences, the letter

explains that “if Mrs. Blair helps the Sheriff’s Office with a successful prosecution in the

death of Anthony Perkins, our office will have no objection to judicial release at five

years. If she does not, we will oppose the judicial release after five years. Successful

prosecution will be determined by the sincerity and forthrightness of her contributions

and assistance to the case and not the outcome of the case. As always, the sincerity of

efforts is a subjective matter and will be determined by the Sheriff’s deputies in

consultation with the Prosecutor’s Office.” The letter closes by stating “[i]f this does not

accurately state our agreement, please let me know at your earliest convenience.”

There is no indication in the record that Blair responded.

{¶4} Subsequently, the state sent a second letter to Blair’s trial counsel

notifying her that it did not believe the information it had received from Blair was helpful.

The letter stated that the state had “reviewed the statement given by Cynthia Blair to

Jodi Conkel and discussed the matter with the Sheriff’s deputies. It does not appear

that the information Mrs. Blair gave Detective Conkel was useful. Mrs. Blair denied any Scioto App. No. 11CA3429 3

first hand knowledge of the Perkins matter and said she would be unable to assist in

getting information from Broc Adkins because he would be wary of her since she had

been in jail a while. She further stated that the only reason she was talking was to help

her daughter.” The state concluded that based on Blair’s statement and “a review of the

other information in the case,” it did not believe that she had “upheld her end of the

bargain.”

{¶5} Blair filed the present motion for judicial release after serving more than

five years of her sentence. Subsequently, the trial court held a hearing on the motion,

which the state opposed.

{¶6} At the hearing Blair testified that while incarcerated she completed many

hours of community service and other classes. The trial court noted however, that she

did not complete any of the recommended five classes. It stated “what I told you at your

plea is you take all programs that are offered to you, and participate at a good or

excellent level of participation, and at that time I would consider a judicial release. All

five programs they recommended are not showing as being completed.” Blair however

denied this and claimed that she completed all five classes.

{¶7} Regarding her interview with Detective Conkel, Blair further testified that

she was truthful with Conkel about Anthony Perkins and “told her everything [she] knew,

and that wasn’t much * * * .” Blair claimed however that her trial counsel did not explain

the full terms of the plea arrangement to her and she did not receive copies of the

letters from the state until after her plea and interview with Detective Conkel. Scioto App. No. 11CA3429 4

{¶8} On cross examination, Blair admitted that prior to Perkins’ death she “had

no personal knowledge of who provided the pills to Anthony Perkins.” And that all she

knew was “that he o/d.”

{¶9} Detective Conkel also testified about her interview with Blair. She stated

that Blair just told her “second and third hand information” and “she never said she was

there and seen anybody sell anybody pills.” She also testified that “nothing she gave

us was useful, and that if she did have information she was basically B-S’n with us,

pulling our leg, however you want to say. Because she gave no implication of knowing

anything that could lead to an arrest.” Conkel affirmed that she believed that Blair was

not being forthright and that “[t]here was no useful information out of her interview. She

denied any firsthand knowledge of anything involving Anthony Perkins death.”

{¶10} The trial court denied Blair’s motion for judicial release finding that “she

did not keep her end of the bargain” based on the letter memorializing her plea

agreement. The trial court concluded that Blair either “misrepresented up front that she

was going to make this deal, or she just backed out of the deal.”

{¶11} The trial court also denied her release based on her lack of participation in

the offered programs. The trial court stated “all four [sic] programs offered to her were

declined * * * her rate of recidivism therefore would be much higher. She’s not

cooperating. She’s not showing that she wants to get out, so based upon that, I’m

going to deny the judicial release.” This appeal followed.

II. ASSIGNMENT OF ERROR

{¶12} Blair presents one assignment of error for our review: Scioto App. No. 11CA3429 5

{¶13} “THE TRIAL COURT ABUSED ITS DISCRETION BY REFUSING TO

GRANT THE JUDICIAL RELEASE OF THE DEFENDANT-APPELLANT AS

NEGOTIATED THEREBY APPROVING THE BREECH [sic] OF THE PLEA

AGREEMENT BETWEEN THE DEFENDANT-APPELLANT AND THE STATE OF

OHIO.”

III. PLEA AGREEMENTS

{¶14} Blair argues that state breached the terms of their plea agreement by

opposing her motion for judicial release. Specifically, Blair asserts that she complied

with the terms of the plea agreement by providing the information she knew about the

death of Anthony Perkins to the Sherriff’s Office. However, she claims that the state

“did not like” the information she provided and in response opposed her judicial release

in breach of their agreement.

{¶15} “Principles of contract law are generally applicable to the interpretation

and enforcement of plea agreements.” State v. Bethel,

, 2006-Ohio-

4853,

. The terms of a plea agreement must be ascertained

before it can be determined whether a party breached the agreement. State v. Fetty,

11th Dist. No. 2010–P–0021,

, ¶ 21.

{¶16} On appeal, Blair does not contest that the contents of her plea agreement

were accurately memorialized in the letter from the state. Therefore, we simply review

the four corners of the document. “Where a contract is unambiguous on its face, we

interpret it as a matter of law without reference to extrinsic evidence. Graham v.

Drydock Coal (1996),

,

.” State v. Pasturzak, 4th

Dist. No. 08CA3252,

, ¶ 12. “When the facts presented are undisputed, Scioto App. No. 11CA3429 6

whether they constitute a performance or a breach of a written contract, is a question of

law for the court.” Luntz v. Stern,

,

, (1939), at

paragraph five of the syllabus. Thus, we will apply a de novo standard of review. Both

Blair and the state argue that we should apply an abuse of discretion standard to

determine whether there has been a breach of their plea agreement. We recognize that

other Ohio appellate courts have reviewed whether a party has breached a plea

agreement under an abuse of discretion standard. See State v. Payton, 6th Dist. Nos.

E-09-070 and E-09-071,

, ¶ 11, State v. Flowers, 2nd Dist. No. 22751,

, State v. Willis, 6th Dist. No. E-05-026,

, State

v. Mathews,

,

(10th Dist. 1982). However,

because the Supreme Court of Ohio has held that whether there is a breach of an

unambiguous written contract is a question of law, we will apply a de novo standard of

review in this case.

{¶17} Contract clauses which make the duty of performance conditional upon

one party’s satisfaction are generally referred to as “satisfaction clauses.” State v.

Brooks, 2nd Dist. No. 2010 CA 48,

. Courts have divided

satisfaction clauses into two categories, objective and subjective. Knowles v. Ohio

State Univ., 10th Dist. Nos. 05AP-727 and 05AP-739,

. Which

standard applies is a matter of the actual or constructive intent of the parties, which, in

turn, is a function of the express language of the contract, or the subject matter of the

contract.

“Where a subjective standard is applied to determine whether a party is

‘satisfied,’ the test is whether the party is actually satisfied. ‘Although application of a

subjective standard to a satisfaction clause would seem to give the obligor virtually Scioto App. No. 11CA3429 7

unlimited latitude to avoid his duty of performance, such is not the case. In these

situations, courts impose the limitation that the obligor act in good faith.’” (Citations

omitted.) Id. at ¶ 21, quoting Hutton v. Monograms Plus, Inc.,

,

(2nd Dist. 1992). Thus, under the subjective standard, the promisor can

avoid the contract as long as he is genuinely dissatisfied.

{¶18} In this case, the terms of the plea agreement make it clear that the state’s

duty of performance was conditional upon its subjective satisfaction with the information

Blair provided. The letter expressly requires that Blair must help with a “successful

prosecution” in the death of Anthony Perkins. The agreement explains that a successful

prosecution “will be determined by the sincerity and forthrightness” of Blair’s

contributions to the case, not the outcome of a case. Furthermore, the agreement

clarifies that the “sincerity of efforts is a subjective matter” and will be determined by the

Sheriff’s deputies along with the Prosecutor’s Office. Accordingly, based on the express

language of the agreement we will apply a subjective standard to the satisfaction

clause.

{¶19} We conclude that the state had a good faith basis for being unsatisfied

with the information Blair provided. The record shows that Blair herself admitted that

she did not have any firsthand knowledge of Anthony Perkins’ death and the only thing

she knew was that he overdosed. Moreover, Detective Conkel testified that she did not

believe that Blair was being forthright during the interview and that she did not provide

any useful information that could lead to an arrest. The state sent a letter to Blair’s trial

counsel confirming that it did not feel any of the information Blair gave to Detective

Conkel was useful, citing again Blair’s denial of any firsthand knowledge regarding Scioto App. No. 11CA3429 8

Perkins’ death. The letter also stated that based on the interview and other information

in the case, it did not feel that Blair had “upheld her end of the bargain.” Based on this

evidence, the state’s subjective belief that Blair did not perform according to the plea

agreement appears to have been reached in good faith. As a result of Blair’s breach,

the state was then released of its obligations under the plea agreement and was free to

oppose her judicial release. See State v. Adkins,

, 2005-Ohio-

2577,

(4th Dist.). Accordingly, the trial court did not err by finding

that Blair breached the terms of the plea agreement and denying her motion judicial

release.

{¶20} Finally, even if we were to assume that the state either lacked good faith

or was unreasonable in concluding Blair breached the plea agreement, the trial court

expressed an adequate independent basis for rejecting her motion. That is, it found she

failed to complete prison sponsored programs aimed at rehabilitation. This finding was

sufficient on its own to support rejecting her motion. Therefore, we overrule Blair’s

assignment of error and affirm the trial court’s decision.

JUDGMENT AFFIRMED. Scioto App. No. 11CA3429 9

JUDGMENT ENTRY

It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.

The Court finds there were reasonable grounds for this appeal.

It is ordered that a special mandate issue out of this Court directing the Scioto County Court of Common Pleas to carry this judgment into execution.

IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR THIS COURT, it is temporarily continued for a period not to exceed sixty days upon the bail previously posted. The purpose of a continued stay is to allow Appellant to file with the Supreme Court of Ohio an application for a stay during the pendency of proceedings in that court. If a stay is continued by this entry, it will terminate at the earlier of the expiration of the sixty day period, or the failure of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the appeal prior to expiration of sixty days, the stay will terminate as of the date of such dismissal.

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. Exceptions.

Abele, P.J. & Kline, J.: Concur in Judgment and Opinion.

For the Court

BY: _______________________ William H. Harsha, Judge

NOTICE TO COUNSEL

Pursuant to Local Rule No. 14, this document constitutes a final judgment entry and the time period for further appeal commences from the date of filing with the clerk.