[Cite as State v. James, 2013-Ohio-5322.]


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

State of Ohio,                                         :
                                                       :
         Plaintiff-Appellee,                           :
                                                       :             Case No. 13CA3371
         v.                                            :
                                                       :             DECISION AND
Brock E. James,                                        :             JUDGMENT ENTRY
                                                       :
         Defendant-Appellant.                          :             Released: 11/22/2013

                                        APPEARANCES:
Chase B. Bunstine, Chillicothe, Ohio, for Appellant.
Matthew S. Schmidt, Ross County Prosecuting Attorney, and Jeffrey C. Marks, Assistant
Prosecuting Attorney, Chillicothe, Ohio, for Appellee.



Hoover, J.

         {¶ 1} In this appeal from the Ross County Court of Common Pleas, appellant,

Brock E. James, argues that the State of Ohio breached his plea agreement, leading the

trial court to commit reversible error. Appellant entered into a plea agreement with the

State, where he would plead guilty to one count, Aggravated Robbery, a first degree

felony. In exchange, the State would recommend a prison sentence of six (6) years,

which was to run concurrently with the sentence in a separate case against appellant.

Appellant argues that at sentencing the State violated the plea agreement by

recommending a sentence greater than six years. We agree. For the following reasons,

we find appellant’s first assignment of error well taken and remand this cause to the trial

court.
Ross App. No. 13CA3371                                                                     2


       {¶ 2} On June 1, 2012, appellant, Brock E. James, was indicted on one count of

Complicity to Aggravated Robbery, a first degree felony, in violation of R.C. 2923.03.

Appellant’s brother, Dana S. James was simultaneously indicted on one count of

Aggravated Robbery, a first degree felony, in violation of R.C. 2911.01. Both cases

involve an alleged robbery of a fast food restaurant. On August 2, 2012, the trial court

consolidated the two cases and set a trial for the co-defendants.

       {¶ 3} On January 18, 2013, a plea hearing was held, during which appellant and

the State sought to enter into a plea agreement. The trial Judge read the agreement into

the record:

       THE COURT: *** I have been informed that Mr. James desired to

       withdraw his previously entered pleas of not guilty on both cases and pleas

       of guilty in both cases. I have before me written plea forms that indicate

       that the agreement on both cases is that an [sic] exchange for a guilty plea

       the defendant on the aggravated robbery case will get six years and on the

       tampering with evidence, one year and they will run concurrently for a net

       sentence of six years. Is that correct, Mr. Marks?

       MR. MARKS [Prosecutor]: It is, your Honor.

       THE COURT: Mr. McHenry?

       MR. MCHENRY: [Defendant-Appellant’s Attorney]: Yes, your Honor.

       THE COURT: Mr. James, is that your understanding of the deal you’re

       getting?

       MR. JAMES: Yes, sir.

Later, the Judge continued the colloquy:
Ross App. No. 13CA3371                                                                        3


        THE COURT: Now although the State’s making a recommendation of a

        net of six years, do you understand I don’t have to accept that

        recommendation. I’m going to but I don’t have to. Do you understand

        that?

        MR. JAMES: Yes, sir.

The parties filed a written Plea of Guilty on January 22, 2013, containing the hand

written statement: “In return for a guilty plea, the State will recommend a 6 year executed

prison sentence. This sentence will run concurrent to any sentence in 12CR000311.” A

sentencing hearing was scheduled for January 30, 2013.

        {¶ 4} One day before the sentencing hearing, January 29, 2013, appellant

testified at his brother’s trial. Appellant testified that his brother, Dana, had no part in the

robbery. On cross-examination, appellant was asked if he ever instructed a witness not to

show up to testify at trial. Appellant responded that he did not. The State then

introduced a letter that appellant admittedly sent to a witness stating: “Listen, mine, and

Dana’s case is the same. If you testify against Dana, you help them get me, too. So if

they got him, I go down smoking. Please stay away, please.”

        {¶ 5} The next day at appellant’s sentencing, the prosecutor would not honor the

plea agreement. The prosecutor felt the six-year plea deal was no longer in effect. The

State explained “The fact that he lied up there, the fact that he openly admitted to

attempting to disrupt the judicial process and not allowing the State to put on the

testimony it needed to convict Dana, again we feel that six year offer is off the table. We

would ask the Court to impose a greater sentence than that six years.” Appellant’s trial

counsel asked the court to honor the six-year agreement. The trial Judge stated: “I don’t
Ross App. No. 13CA3371                                                                       4


know whether the State’s bound by the agreement but I do know one thing, this Court

isn’t bound by that agreement.” The trial court sentenced appellant to eight years in

prison.

          {¶ 6} Now, appellant presents this appeal setting forth two assignments of error

for review:

First Assignment of Error:

          I. THE TRIAL COURT COMMITTED REVERSIBLE ERROR, WHERE

          THE STATE BREACHED ITS AGREEMENT BY RECOMMENDING

          A SENTENCE GREATER THAN THE NEGOTIATED PLEA

          AGREEMENT, BY FAILING TO EITHER ORDER SPECIFIC

          PERFORMANCE ON THE PLEA AGREEMENT BREACHED BY THE

          PROSECUTOR OR ALLOWING DEFENDANT TO WITHDRAW HIS

          PLEA OF GUILTY.

Second Assignment of Error:

          II. THE TRIAL COURT COMMITTED REVERSIBLE ERROR BY

          MAKING A PROMISE TO DEFENDANT BY STATING THE COURT

          WOULD ACCEPT THE SIX (6) YEAR AGREED UPON PLEA

          AGREEMENT BUT INSTEAD SENTENCED DEFENDANT TO

          EIGHT (8) YEARS.

          {¶ 7} In his first assignment of error, appellant argues that the State breached the

plea agreement when, at his sentencing hearing, the prosecutor recommended a sentence

greater than six years. Appellant asserts that because of the breach, he is entitled to either

a withdrawal of his guilty plea or specific performance of the State’s promises. The State
Ross App. No. 13CA3371                                                                       5


counters that appellant breached the plea agreement when he took the stand at his

brother’s trial, where he lied and interfered with the judicial process. The State also

argues that appellant’s assignment of error is entitled to only plain error review because

he failed to object to the State’s recommendation at the sentencing hearing.

       {¶ 8} “Due process requires the State to honor any promise it makes to induce a

guilty plea. When the State breaches a valid plea agreement, the trial court may allow

withdrawal of the negotiated plea or it may require the State to fulfill its end of the

bargain.” State v. Pasturzak, 4th Dist. Scioto No. 08CA3252, 2009-Ohio-4222, ¶ 13;

State v. Ford, 4th Dist. Lawrence No. 97CA32, 1998 WL 79885 (Feb. 18, 1998) citing

Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).

       {¶ 9} Generally, the failure to raise an issue or argument at the trial court level

that is apparent at the time constitutes a waiver of such issue. State v. Awan, 22 Ohio

St.3d 120, 489 N.E.2d 277 (1986), syllabus. The State cites State v. Montgomery, 4th

Dist. Scioto No. 07CA858, 2008-Ohio-4753, in its assertion that appellant’s argument is

subject to “plain error” review. In Montgomery, the defendant and the State reached an

agreement where in exchange for a guilty plea, the State would recommend any sentence

for count 2 to be served concurrently with the sentence for count 1. Id. at ¶ 6. At

sentencing the State did not make any statement concerning the appropriate sentence, nor

did defendant raise that aspect of the plea agreement. Id. Nonetheless, defendant was

sentenced to three years community control. Id. The trial court later revoked defendant’s

community control. Id. at ¶ 7. At the sentencing hearing for the violation of community

control, the State recommended maximum and consecutive sentences. Id. Defendant did
Ross App. No. 13CA3371                                                                        6


not object to the sentence but later filed an appeal asserting the prosecution breached the

plea agreement. Id.

       {¶ 10} Here, the facts of this case are distinguishable from those in Montgomery.

After the prosecution recommended “a greater sentence than that six years,” appellant’s

trial counsel was given an opportunity to respond. Counsel stated:

       *** I would still ask the Court to honor the six year agreement. These that

       Mr. Marks just mentioned were known at the time Mr. James entered his

       plea. He knew that he was going to testify on behalf on his brother. He

       also knew that this letter existed so I don’t think this is any new

       information that came to light during these past few days.

This statement asked the court to honor the plea agreement and sets forth an argument on

behalf of his client. Thus, appellant does not seek to enforce the plea deal, for the first

time on appeal. Therefore, appellant’s argument is not limited to plain error review.

       {¶ 11} We now turn to address appellant’s argument that the State breached the

plea agreement. In State v. Thompson, 4th Dist. Adams No. 03CA766, 2004-Ohio-2413,

we summarized the seminal case of Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495,

30 L.Ed.2d 427 (1971):

       The state in Santobello v. New York (1971), 404 U.S. 257, 92 S.Ct. 495, 30

       L.Ed.2d 427 breached the plea agreement when it did not carry through

       with one of its promises. The defendant in Santobello, charged with

       several offenses, agreed to enter a guilty plea to a reduced charge in

       exchange for a promise by the prosecutor that the state would make no

       sentencing recommendation to the trial judge. The state later
Ross App. No. 13CA3371                                                                 7


       recommended to the trial judge that the defendant receive the maximum

       penalty. When the defendant objected, the trial judge stated that he was

       not influenced by the state's recommendation. The trial judge later

       sentenced the defendant to the maximum penalty. Id. On appeal, the

       United States Supreme Court held that due process requires the state to

       honor any promise or representation it makes to induce a guilty plea by a

       defendant. Id. at 262. The Court determined that it did not need to reach

       the question of whether the sentencing judge allowed the state's

       recommendation to influence him. Id. Rather, the Court concluded that the

       overriding concerns in enforcing “plea bargain” agreements are “the

       interests of justice and appropriate recognition of the duties of the

       prosecution in relation to promises made in the negotiation of pleas.” Id. at

       263. The Santobello court therefore vacated the sentence, remanded the

       case and ordered the state trial court “to decide whether the circumstances

       of this case require only that there be specific performance of the

       agreement on the plea, in which case [the defendant] should be

       resentenced by a different judge, or whether, * * * the circumstances

       require granting * * * the opportunity to withdraw his plea of guilty.” Id.

       {¶ 12} “At its core, a plea agreement is contractual in nature and subject to

contract-law standards.” State v. Vari, 7th Dist. Mahoning No. 07MA142, 2010-Ohio-

1300, at ¶ 24 citing Santobello, supra; Baker v. United States, 781 F.2d 85, 90 (6th

Cir.1986). “Moreover, the agreement should be construed strictly against the

government.” Id. citing State v. Namack, 7th Dist. Belmont No. 01BA46, 2002-Ohio-
Ross App. No. 13CA3371                                                                      8


5187, ¶ 25. At the plea hearing, the trial court read the agreement on the record: “the

agreement on both cases is that an [sic] exchange for a guilty plea the defendant on the

aggravated robbery case will get six years and on the tampering with evidence, one year

and they will run concurrently for a net sentence of six years.” The same was reflected

on the written Plea of Guilty entry stating, “In return for a guilty plea, the State will

recommend a 6 year executed prison sentence. This sentence will run concurrent to any

sentence in 12CR000311.”

       {¶ 13} The intent of the parties to a contract presumptively resides in the

ordinary meaning of the language employed in their agreement. Id. citing Kelly v. Med.

Life Ins. Co., 31 Ohio St.3d 130, 509 N.E.2d 411 (1987), paragraph one of the syllabus.

Contractual language giving rise to doubt or ambiguity must be interpreted against the

party who used it. Graham v. Drydock Coal Co., 76 Ohio St.3d 311, 313, 667 N.E.2d

949 (1996) citing Cent. Realty Co. v. Clutter, 62 Ohio St.2d 411, 406 N.E.2d 515

(1980); Bellish v. C.I.T. Corp., 142 Ohio St. 36, 50 N.E.2d 147 (1943), paragraph one of

the syllabus. We find the plea agreement to be unambiguous and solely an exchange of a

guilty plea for the prosecutor’s sentence recommendation of six years for appellant’s

guilty plea and a further promise to recommend that the sentence in the separate case run

concurrently with the six years.

         {¶ 14} Based upon the preceding, we find that the State did breach its

agreement with appellant. According to the plain language of the agreement, the State

was to recommend a six-year prison term and a concurrent sentence to any punishment in

another charge against appellant. The State breached the agreement when it

recommended a sentence greater than six years. The plain language of the plea
Ross App. No. 13CA3371                                                                         9


agreement mentions only a simple exchange of promises. There is no language regarding

the actions of the appellant, in particular, actions regarding the testimony given in his

brother's trial.1 We decline to add stipulations to the negotiated plea agreement.

       {¶ 15} Ohio courts have adopted the Santobello rule that when a valid plea

agreement is breached by the state, the trial court, within its sound discretion, may either

allow the negotiated plea to be withdrawn, or may require the state to fulfill its end of the

bargain. Thompson, 2004-Ohio-2413, at ¶ 12 citing State v. Mathews, 8 Ohio App.3d

145, 146, 456 N.E.2d 539 (10th Dist.1982); See also, State v. DeMastry, 5th Dist.

Fairfield No. 05CA15, 2005-Ohio-5175, ¶ 24; State v. Roberts, 6th Dist. Wood Nos.

WD03001 & WD02066, 2003-Ohio-5689, ¶ 26. “The trial court can order specific

performance of the agreement and assign [defendant’s] sentencing to a different judge or

allow [defendant] to withdraw his guilty plea.” Thompson at ¶ 17 citing Santobello at

263; Mathews at 146. While the trial court may choose between these two remedies

within its discretion, failure to grant either remedy constitutes an error as a matter of law.

Id.

       {¶ 16} Appellant did not make a motion to withdraw his guilty plea at the

sentencing hearing. Nonetheless, based on the language used in previous Ohio decisions,

the defendant is entitled as a matter of law to one of the two remedies. See supra,

Thompson; Mathews. Here, the trial court disregarded the plea agreement by stating: “I

don’t know whether the State’s bound by the agreement, but I know one thing, this Court



1 We take a dim view of the appellant's apparent untruthful testimony offered during a
jury trial the day before the appellant' own sentencing hearing. However, the lack of
conditions expressed in the plea agreement did not provide any recourse under that
agreement. If the prosecution so desired and believed appropriate, the state could
certainly pursue a separate criminal action for appellant's actions.
Ross App. No. 13CA3371                                                                        10


isn’t bound by that agreement.” Although the trial court is correct in asserting that it is

not bound by a plea agreement, this does not cure a breach of a plea agreement. See Ford,

1998 WL 79885, at *4 (“We find in this case that the remedy given by the sentencing

judge, an assurance that he would not consider the state’s recommendation, was

insufficient as a matter of law.”). Therefore, we find appellant’s first assignment of error

well taken, as the trial court erred when it did not take one of two appropriate steps to

remedy the State’s breach of the plea agreement. Therefore, the appropriate remedy is to

remand this cause back to the trial court. The trial court can then decide whether 1) it

will require the prosecutor to comply with its prior promise to recommend the six year

sentence to run concurrent with the sentence of the other case; and then have a different

judge conduct the sentencing hearing or 2) it will allow the appellant to withdraw his

guilty plea.

        {¶ 17} In his second assignment of error, appellant argues that the trial court

erred when it failed to accept the plea agreement as promised. Appellant contends that

the trial court issued a binding promise at the plea hearing when it stated: “although the

State’s recommendation of a net of six years, do you understand I don’t have to accept

that recommendation. I’m going to but I don’t have to.”

        {¶ 18} Appellant seeks the same remedy sought in his first assignment of error.

Since we found his first assignment of error well taken, there is no need to address

appellant’s second assignment of error.

        {¶ 19} Accordingly we reverse the judgment of the trial court, vacate the

sentence imposed, and remand this case for proceedings consistent with this decision.

                                  JUDGMENT REVERSED AND CAUSE REMANDED.
Ross App. No. 13CA3371                                                                  11


                                 JUDGMENT ENTRY

        It is ordered that the trial court’s JUDGMENT BE REVERSED AND CAUSE
REMANDED for proceedings consistent with this decision. Appellee shall bear the 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 Ross
County Common Pleas Court to carry this judgment into execution.

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

Harsha, J & Abele, J.: Concur in Judgment and Opinion.

                                                            For the Court


                                                            By:
                                                                  Marie Hoover, 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.
