[Cite as State v. Elliott,

.]

IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO HAMILTON COUNTY, OHIO

STATE OF OHIO, : APPEAL NO. C-190430 TRIAL NO. B-1806579 Plaintiff-Appellee, :

: vs. : O P I N I O N.

DAMARCO ELLIOTT, :

Defendant-Appellant. :

Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: February 17, 2021

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Scott M. Heenan, Assistant Prosecuting Attorney, for Plaintiff-Appellee,

John Hill, Jr., for Defendant-Appellant. OHIO FIRST DISTRICT COURT OF APPEALS

BERGERON, Presiding Judge.

{¶1} We confront in this case a so-called “agreed sentence” in a deal struck

between a defendant and the state. The problem, as we shall see, is that an “agreed

sentence” conjures up a variety of meanings both in the case law and, in all likelihood, in the

mind of a defendant. To attempt to clarify the confusion in this area, we elaborate on the

effect of an agreed sentence so that the defense, the state, and the trial court are all on the

same page. In this case, while the deal was labeled as an “agreed sentence,” the court

explained to the defendant that it was not obliged to accept the proposed sentence, and

could deviate in either direction. The defendant acknowledged that at the time of his plea,

preventing him from now unwinding his plea after the trial court took the very actions that

it warned him about. We therefore overrule both assignments of error and affirm the

judgment of the trial court.

I.

{¶2} Defendant-appellant Demarco Elliott was indicted on nine drug-related

charges. Rather than go to trial, Mr. Elliott negotiated a plea agreement with the state: he

agreed to plead guilty to three charges in exchange for the state dropping the six remaining

counts. The agreement also contained a negotiated sentence of four years. Even though the

trial court accepted the plea agreement and Mr. Elliott’s guilty plea, it nonetheless deviated

from the negotiated sentence, imposing five years’ imprisonment instead. Frustrated that

the court declined to honor the deal struck with the state, Mr. Elliott now brings two

assignments of error, arguing that both the sentence and the underlying conviction should

be reversed because he misunderstood the nature of his plea agreement.

2 OHIO FIRST DISTRICT COURT OF APPEALS

II.

{¶3} In his first assignment of error, Mr. Elliott insists that he did not knowingly

and voluntarily enter his plea because the trial court did not expressly say it would reject the

negotiated sentence—only that it could. After reviewing the record, we conclude that the

trial court provided the very type of disclosure necessary to satisfy due process and the

hallmarks of a voluntary plea, and we overrule this assignment of error. However, to help

clear up some uncertainty lingering in the case law, we endeavor to provide parties—and

courts—with a roadmap for analyzing “agreed” sentences.

{¶4} “ ‘Whatever might be the situation in an ideal world, the fact is that the guilty

plea and the often concomitant plea bargain are important components of [our] criminal

justice system.’ ” State v. Dunbar, 8th Dist. Cuyahoga No. 89896,

,

quoting Bordenkircher v. Hayes,

,

,

(1978).

The Ohio Supreme Court has similarly explained that “plea agreements are a necessary and

desirable part of the administration of criminal justice * * * .” State v. Zima,

,

,

. For good or ill, plea agreements are so pervasive

that one Ohio court described them as “the lubrication which allows the criminal justice

system to run smoothly.” (Citation omitted.) State v. Williams,

,

(M.C. 1999).

{¶5} But the ubiquity of plea bargains should not obscure their impact—these

agreements are life changing. “[A] plea of guilty is more than an admission of conduct; it is

a conviction.” Boykin v. Alabama,

,

,

(1969).

And a conviction often leads to direct punishment as well as a variety of collateral sanctions.

To that point, entering a guilty plea entails an obligatory waiver of constitutional rights. The

3 OHIO FIRST DISTRICT COURT OF APPEALS

accused forfeits “his privilege against compulsory self-incrimination, his right to jury trial,

his right to confront his accusers, and his right of compulsory process of witnesses.” State v.

Ballard,

,

(1981), paragraph one of the syllabus, citing

.

{¶6} Why would a defendant forgo such rights and ink a plea? In most instances,

we presume that the defendant receives some benefit from the deal in the give and take of

the plea negotiations. A defendant usually accepts some detriment (pleading guilty) in

exchange for some benefit (a dropped or reduced charge, or a lower sentence). Put another

way, plea agreements represent bargained-for exchanges whereby defendants limit their

legal exposure and prosecutors obtain guaranteed convictions and (sometimes) non-

appealable sentences. See State v. Huffman, 8th Dist. Cuyahoga No. 105805, 2018-Ohio-

1192, ¶ 17, 19; R.C. 2953.08(D)(1) (providing that a sentence is not reviewable “if the

sentence is authorized by law, has been recommended jointly by the defendant and the

prosecution in the case, and is imposed by a sentencing judge”).

{¶7} Precisely because of the stakes, it is well settled that plea agreements can be

specifically enforced. See Santobello v. New York,

,

,

(1971) (requiring specific performance of the plea agreement or the opportunity

for the defendant to withdraw his plea). When the prosecutor’s agreement is “ ‘ “part of the

inducement or consideration, such promise must be fulfilled.” ’ ” State v. Dye,

,

,

, quoting State v. Thomas,

,

(1972), quoting

; see State v. Soto,

,

,

, ¶ 19 (“[B]ased on principles of contract law, * * * * when a

plea rests on a promise made by the prosecutor, that promise must be fulfilled.”). (Internal

citation omitted.)

4 OHIO FIRST DISTRICT COURT OF APPEALS

{¶8} Notwithstanding these points, a plea agreement may sometimes be a futile

exercise because “[p]lea agreements are generally made between the State and a

defendant.” (Emphasis added.) State v. Fyffe,

,

(2d

Dist.). And as such, plea agreements are not inherently binding upon the trial court. State

v. Fenderson, 6th Dist. Erie Nos. E-14-015 and E-14-021,

, ¶ 11 (“In reviewing

the enforceability of plea agreements, it is widely recognized that as a general rule plea

agreements between the state and defense counsel are not binding upon the trial court, as

the ultimate discretion and sentencing determination lies with the trial judge.”); State v.

Darnell, 4th Dist. Gallia No. 02CA15,

, ¶ 7 (“It is well accepted that the trial

court has the discretion to accept or reject a plea agreement.”), citing In re Disqualification

of Mitrovich,

,

(1990) (“[T]he final judgment on

whether a plea bargain shall be accepted must rest with the trial judge.”), quoting City of

Akron v. Ragsdale,

,

(9th Dist. 1978). “Thus, any

plea agreement between the state and a defendant is implicitly conditioned on the trial

court’s acceptance of that agreement.” Darnell at ¶ 7.

{¶9} Further complicating matters is that trial courts in Ohio, unlike federal courts

and many courts in other states, may participate in plea negotiations. See State v. Vari, 7th

Dist. Mahoning No. 07-MA-142,

(“The Federal Rules of Criminal

Procedure and a number of courts in other states prohibit participation by a judge in plea

bargain negotiations.”); compare State v. Byrd,

,

(1980) (“Although this court strongly discourages judge participation in plea negotiations,

we do not hold that such participation per se renders a plea invalid under the Ohio and

United States Constitutions.”). For example, a trial court may negotiate a material term of

the agreement. See State v. Bonnell, 12th Dist. Clermont No. CA2001-12-094, 2002-Ohio-

5 OHIO FIRST DISTRICT COURT OF APPEALS

5882, ¶ 8–13 (affirming the trial court’s participation in plea negotiation where it was

involved in the discussions and promised not to impose a prison sentence). Additionally,

the trial court may inject its own conditions for accepting a plea agreement. See State v.

Little, 1st Dist. Hamilton No. C-180523,

(“While the payment of

restitution was not part of the plea agreement as negotiated by the parties, the trial court

made the payment of restitution a condition of it accepting the plea.”).

{¶10} If the trial court inserts itself in plea negotiations, it probably goes without

saying that it may bind itself to that agreement.

(“Unless the court involves

itself in the plea negotiations or agrees to the terms of the agreement, the trial court is not

bound by the plea agreement, and the court may determine the appropriate sentence for the

charges to which the defendant has pled guilty or no contest.”); Bonnell at ¶ 18 (“When a

trial court promises a certain sentence, the promise becomes an inducement to enter a plea,

and unless that sentence is given, the plea is not voluntary.”); State ex rel. Sakalosh v.

Durkin, 7th Dist. Mahoning No. 09-MA-22,

(“[I]t is well recognized

that a trial court is free to impose a greater sentence so long as the defendant is forewarned

of the applicable maximum penalties and the sentencing court was itself not a party to the

agreement.”).

{¶11} But even if the trial court stays on the sidelines, “once the court approves the

plea agreement, its ability to deviate from it is limited.” State v. Allgood, 9th Dist. Lorain

Nos. 90CA004903, 90CA004905 and 90CA004907,

, *1 (June 19, 1991).

As a general rule, if the trial court accepts the terms of the plea agreement, it is also bound

to that agreement. See State v. Patrick,

,

,

(8th Dist.) (“While it is true that a trial court may accept or reject an agreed-upon

sentence, if a defendant and his attorney reached an agreement with the prosecutor and the

6 OHIO FIRST DISTRICT COURT OF APPEALS

trial court then accepted this agreement on the record, to impose anything other than the

agreed[-]upon sentence renders it void or voidable.”); Fenderson, 6th Dist. Erie Nos. E-14-

015 and E-14-021,

, at ¶ 12 (“[A] trial court conducted itself so as to have

promised to accept the terms of the disputed plea agreement and is thereby bound by the

terms of the agreement.”).

{¶12} Of course, acceptance by the trial court is not an all-or-nothing proposition.

The trial court has discretion to accept or a reject a plea agreement in part. See Allgood at

*1–2 (analyzing whether trial court had accepted the plea agreement in whole or in part).

Moreover, a trial court’s acceptance of an agreement need not be explicit. Acceptance of a

guilty plea, without more, may itself constitute acceptance of the underlying plea agreement.

See City of Warren v. Cromley, 11th Dist. Trumbull No. 97-T-0213,

, *3

(Jan. 29, 1999) (deciding that “the trial court’s silence when it was presented with the plea

agreement amounted to formal acceptance of the terms of the agreement.”); Darnell, 4th

Dist. Gallia No. 02CA15,

, at ¶ 8 (“By accepting the defendant’s guilty or no

contest plea, the court accepts the underlying plea agreement.”); Allgood at *2 (reasoning

that a “court’s failure to reject a plea agreement when offered or to expressly defer a

decision amounts to an acceptance of the agreement”).

{¶13} As this discussion probably suggests, ample room exists for a defendant to be

confused on whether, and to what extent, a trial court is negotiating or accepting a plea

agreement (thus binding itself). This risk of confusion stands in tension with the

transcendent principle of plea submissions: a defendant must enter his plea “knowingly,

intelligently, and voluntarily.” State v. Engle,

,

(1996). And failure on any point can render the plea unconstitutional—and unenforceable—

under both our federal and state constitutions.

Thus, “ ‘the adjudicative element

7 OHIO FIRST DISTRICT COURT OF APPEALS

inherent in accepting a plea of guilty[] must be attended by safeguards to insure the

defendant what is reasonably due in the circumstances.’ ” State v. Carpenter,

,

(1993), quoting Santobello,

,

,

.

{¶14} With that backdrop, we now turn to recommended and agreed sentences, a

particularly thorny subject because sentencing falls entirely within the trial court’s purview.

See Fenderson, 6th Dist. Erie Nos. E-14-015 and E-14-021,

, at ¶ 11 (“[I]t is

widely recognized that as a general rule plea agreements between the state and defense

counsel are not binding upon the trial court, as the ultimate discretion and sentencing

determination lies with the trial judge.”). Because parties typically cannot bind the court on

sentences (with some limited exceptions that we’ve mentioned above), Ohio courts often do

not draw any distinction between recommended and agreed sentences. However, Mr.

Elliott’s appeal hinges on this dichotomy, insisting that he did not receive due process

precisely because he negotiated an “agreed” sentence, instead of a “recommended” sentence.

More specifically, Mr. Elliott maintains that because the plea contained an “agreed”

sentence, the trial court’s failure to explicitly reject the negotiated sentence before accepting

his plea submission inexorably bound it to impose the four-year sentence.

1.

{¶15} A “recommended” sentence is just as it sounds: “a nonbinding

recommendation to the court, which the court is not required to accept or comment on.”

State v. Harvey, 8th Dist. Cuyahoga No. 107168,

, ¶ 7. Conversely, an

“agreed” sentence is a plea agreement “in which ‘the defendant and the State have agreed to

be mutually bound to a specific sentence or a sentence * * * within a prescribed range.’ ”

8 OHIO FIRST DISTRICT COURT OF APPEALS

State v. Jackson, 8th Dist. Cuyahoga No. 108364,

, quoting Huffman,

8th Dist. Cuyahoga No. 105805,

. In other words, an agreed

sentence contains “terms implying set guarantees.” City of Warren, 11th Dist. Trumbull No.

97-T-0213,

, at *3. Stated another way, the difference between

recommended and agreed sentences is that the first purports to “recommend” a particular

sentence, whereas the latter purports to stipulate to a particular sentence. However,

because many Ohio courts wield the term “agreed sentence” more expansively, often

encompassing recommended sentences,1 we will refer to agreed sentences as “stipulated”

sentences in order to avoid confusion.

{¶16} As to recommended sentences, it is beyond peradventure that such sentences

cannot be binding on the court. If the trial court accepts a plea agreement containing a

recommendation, the agreement necessarily acknowledges that the trial court may deviate

from the recommendation. See State v. Underwood,

,

,

, ¶ 28 (“[T]rial courts may reject plea agreements and [] are not bound by a

jointly recommended sentence.”); State ex rel. Duran v. Kelsey, 6th Dist. Wood No. WD-04-

077,

, ¶ 4 (“[I]t is well-established that a court is not bound to accept the

prosecution’s recommended sentence as part of a negotiated plea agreement.”).

{¶17} “ ‘However, the 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 * * * .’ ”

1See, e.g., State v. Rice, 1st Dist. Hamilton No. C-140348,

, ¶ 2 (noting that the trial court sentenced the defendant according to the “agreed sentence,” even though the agreement contained both a recommendation and a set guarantee); State v. Sawyer,

,

,

(1st Dist.) (“An agreed sentence is one that has been jointly recommended by the defendant and the state, is imposed by the sentencing court, and is ‘authorized by law.’ ”), overruled on other grounds, State v. Underwood,

,

,

, ¶ 19-20 (using “agreed sentence” to mean a negotiated “recommendation”). 9 OHIO FIRST DISTRICT COURT OF APPEALS

(Emphasis sic.) State v. Asberry,

,

,

(8th Dist.), quoting City of Warren at *3. In these scenarios, the defendants may

misunderstand the nonbinding nature of recommended sentences and thus walk into their

plea unknowingly. Approximately 30 years ago, Judge Gray lamented this scenario:

[T]he court may listen to the prosecution’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 his guilty plea. This smacks of the bait and switch tactics of

consumer fraud.

State v. Cox, 4th Dist. Ross No. 1626,

, *3–4 (Oct. 23, 1990) (Grey, J.,

dissenting).

{¶18} To remedy this potential unfairness, courts now generally agree that “[t]he

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.” (Emphasis

omitted.) City of Warren, 11th Dist. Trumbull No. 97-T-0213,

, at *3, citing

Katz & Giannelli, Criminal Law, Section 44.8, at 154-155, (1996); see also State v.

Anderson, 2d Dist. Montgomery No. 26056,

(same); Bonnell, 12th

Dist. Clermont No. CA2001-12-094,

, at ¶ 21 (same). And of course, actual

notice requires affording the defendant an opportunity “to change or to withdraw his plea

when he received this notice.” City of Warren at *3. Thus, the 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 that possibility. (Emphasis added.)

State ex rel. Duran v. Kelsey,

,

,

, ¶ 6,

quoting State v. Buchanan,

,

,

, ¶ 13

10 OHIO FIRST DISTRICT COURT OF APPEALS

(5th Dist.). And this principle applies whether the recommend sentence goes to duration or

other aspects, such as concurrent versus consecutive sentences. See State v. Dunbar, 8th

Dist. Cuyahoga No. 87317,

(applying the same reasoning to

consecutive/concurrent sentencing recommendation); Allgood, 9th Dist. Lorain Nos.

90CA004903, 90CA004905 and 90CA004907,

, at *2 (same). Regardless

of the context, the dispositive principle remains the same: the touchstone for determining

constitutional fairness in plea submissions is notice.

{¶19} If the trial court fails to provide adequate notice, the remedy is to resentence

the defendant in accordance with the recommendation or allow the defendant to withdraw

his plea. See State v. Williams, 8th Dist. Cuyahoga No. 105025,

, ¶ 5 (“The

trial court erred by failing to either forewarn [the defendant] of a potentially longer prison

term or to give him the opportunity to withdraw his guilty plea at the sentencing hearing.”);

Allgood at *3 (“When the court decided to change its position on the plea agreement, it

should have clearly advised [the defendant] of its intentions, and allowed [the defendant] to

reconsider his plea.”); Huffman, 8th Dist. Cuyahoga No. 105805,

(“Accordingly, the proper remedy is to remand this case to the trial court to resentence

appellant under the plea agreement or to allow appellant to withdraw his guilty plea.”).

{¶20} Finally, in regards to stipulated (agreed) sentences, Mr. Elliott claims that the

Eighth District adopted an additional rule: when a plea agreement contains a stipulated

sentence, the trial court must accept or reject the stipulated sentence explicitly. See Id. at ¶

20 (“Although the trial judge is free to accept or reject [the agreed sentence], it is incumbent

upon the court to do so expressly.”). But that doesn’t strike us as a novel conclusion. It is

rather a specific application of the principles we delineated above.

11 OHIO FIRST DISTRICT COURT OF APPEALS

{¶21} If the court accepts a stipulated sentence, it agrees to be bound by that

stipulation.2 See, e.g., State v. Sage, 2d Dist. Montgomery No. 21097,

(“As part of the plea agreement, the State agreed to not seek a sentence longer than life plus

eight years, and the trial court accepted this stipulation.”); Patrick,

,

,

(“While it is true that a trial court may accept or

reject an agreed-upon sentence, if a defendant and his attorney reached an agreement with

the prosecutor and the trial court then accepted this agreement on the record, to impose

anything other than the agreed[-]upon sentence renders it void or voidable.”); Rice, 1st Dist.

Hamilton No. C-140348,

, at ¶ 2 (noting that the trial court accepted both a

recommended sentence and a stipulation for community control); compare State v. Sykes,

,

(8th Dist.) (holding the defendant could not contest

the “agreed” sentence because the trial court had accepted the agreement).

2.

{¶22} Let’s now turn to the agreement at hand. We note at the outset that the

agreement in this case admits of some ambiguity. Stamped “AGREED GUILTY PLEA,” it

contains the caption: “ENTERING PLEA OF GUILTY TO AN AGREED SENTENCE.” While

that calls to mind the “stipulated” plea that we described above, the first paragraph

somewhat undermines that conclusion: “I understand and acknowledge that I have agreed

with the prosecution on potential sentence to wit: [four years’ imprisonment].”

Notwithstanding this paragraph, a defendant could perhaps be forgiven for thinking that

2Sometimes new information comes to light between the plea and sentencing that might cause the trial court to change its position. But in such a case, due process also requires giving the defendant the opportunity to withdraw his plea. See State v. Bonnell, 12th Dist. Clermont No. CA2001-12-094, 2002- Ohio-5882, at ¶ 23 (“Either the trial court must sentence appellant in accordance with the plea agreement, or if it determines such a sentence is no longer appropriate, it must allow appellant the opportunity to withdraw his guilty plea.”). 12 OHIO FIRST DISTRICT COURT OF APPEALS

such an agreement included a stipulated sentence of four years. But any lingering confusion

was dispelled by the trial court’s discussion with Mr. Elliott:

THE COURT: Further, it’s my understanding that you, apparently, your

attorney, the state, the officer involved in this case are making a

recommendation to the Court that you receive a sentence of four years in the

Ohio Department of corrections. Right?

MR. ELLIOTT: Yes, ma’am.

THE COURT: And there’s no promise. Did anybody promise you that’s what

you are going to get or guarantee that’s what you’re going to get?

MR. ELLIOTT: No, he came to an agreement with my lawyer.

THE COURT: And what does that mean?

****

MR. ELLIOTT: He came to an agreement I plead, I don’t know if anything

was promised to me.

THE COURT: That’s what I’m asking you. That’s why I want to know. Was

anything promised to you or guaranteed to you that you are going to get a

four-year sentence?

MR. ELLIOTT: No Ma’am.

THE COURT: Okay. Because there is no promise or guarantee, that’s an

agreement that you all made, but the Court, ultimately decides the sentence.

And I don’t have to give you four, and I never said I was going to give you

four. Okay. So I could give you more. I could give you less. Knowing that

there’s no promise, no guarantee that you’re going to get four, do you still

want to go forward with this plea?

13 OHIO FIRST DISTRICT COURT OF APPEALS

MR. ELLIOTT: Yes, Ma’am.

****

THE COURT: Now, these sentences could all run one right after the other.

And if that was the case you could get from 27 months in prison, minimum,

up to nine years in prison. Do you understand that?

MR. ELLIOTT: Yes.

****

THE COURT: Do you wish to voluntarily waive, give up your rights, not have

a jury or me, as the Court, decide if you are guilty or not at trial. You don’t

want a trial at all. Instead, what you want to do is enter this guilty plea; is

that correct?

MR. ELLIOTT: Yes, Ma’am.

{¶23} As the record confirms, even if Mr. Elliott reasonably believed the agreement

contained a stipulated sentence, the trial court expressly rejected any such stipulation. The

court could not have been clearer that it would not be bound by the negotiated sentence.

And to buttress the point, the trial court explained that it retained the discretion to sentence

Mr. Elliott up to nine years. Put another way, the trial court clarified that it was only

accepting the plea agreement as containing a sentencing recommendation, not a stipulation.

Finally, and most importantly, the court thereafter provided Mr. Elliott the opportunity to

withdraw his guilty plea, rendering the notice meaningful. In light of these measures, we

cannot conclude that the trial court went astray here.

{¶24} Confronted by the transcript, Mr. Elliott seeks to blame his attorney for

assuring him that the trial court would impose the negotiated sentence. But he points to no

evidence in the record to support this assertion, preventing us from considering the matter

14 OHIO FIRST DISTRICT COURT OF APPEALS

further. See State v. Ishmail,

,

(1978), paragraph one of

the syllabus (“A reviewing court cannot add matter to the record before it, which was not a

part of the trial court’s proceedings, and then decide the appeal on the basis of the new

matter.”). We therefore overrule this assignment of error.

III.

{¶25} In his second assignment of error, Mr. Elliott claims ineffective assistance of

counsel, painting his attorney’s assurance that the trial court would follow the negotiated

sentence as textbook ineffective assistance. But as already noted, Mr. Elliott fails to

substantiate this conclusion with anything in the record. See State v. Nawman, 2d Dist.

Clark No. 2016-CA-43,

(rejecting an ineffective assistance claim for

misleading advice on whether the trial court would deviate from the negotiated sentence

because “other than his bare assertion, [the defendant] has produced no evidence to

substantiate his claim that his counsel failed in that regard.”). Thus, this appeal is not the

correct forum for Mr. Elliott to fashion this argument. “[M]atters outside the record that

allegedly corrupted the defendant’s choice to enter a guilty or no contest plea * * *, such as

ineffective assistance * * *, are proper grounds for post-conviction relief pursuant to R.C.

2953.21 * * * .” State v. Graham, 2d Dist. Montgomery No. 27033,

.

Mr. Elliott’s second assignment of error is also overruled.

* * *

{¶26} In light of the foregoing analysis, we overrule both of Mr. Elliott’s

assignments of error and affirm the judgment of the trial court.

Judgment affirmed.

CROUSE and WINKLER, JJ., concur.

15 OHIO FIRST DISTRICT COURT OF APPEALS

Please note:

The court has recorded its entry on the date of the release of this opinion

16