[Cite as State v. Swortchek, 2020-Ohio-2831.]

                               COURT OF APPEALS OF OHIO

                             EIGHTH APPELLATE DISTRICT
                                COUNTY OF CUYAHOGA

STATE OF OHIO,                                    :

                 Plaintiff-Appellee,              :
                                                           No. 108908
                 v.                               :

JOHN SWORTCHEK,                                   :

                 Defendant-Appellant.             :


                                JOURNAL ENTRY AND OPINION

                 JUDGMENT: REVERSED AND REMANDED
                 RELEASED AND JOURNALIZED: May 7, 2020


         Criminal Appeal from the Cuyahoga County Court of Common Pleas
                             Case No. CR-19-639359-A


                                            Appearances:

                 Michael C. O’Malley, Cuyahoga County Prosecuting
                 Attorney, and Jennifer King, Assistant Prosecuting
                 Attorney, for appellee.

                 Paul Mancino, Jr., for appellant.


KATHLEEN ANN KEOUGH, J.:

                   Defendant-appellant, John Swortchek, appeals his sentence for

driving under the influence of alcohol (“DUI”) following a guilty plea. He contends

in his sole assignment of error that he was “denied due process of law when he was

sentenced differently from when he entered a plea.” For the reasons that follow,
we reverse his conviction and remand the case to the trial court to either

resentence Swortchek under the plea agreement or allow him to withdraw his

guilty plea.

               Swortchek was charged with three counts of DUI, felonies of the

fourth degree, and one count of physical control of a motor vehicle. He entered

into a plea agreement with the state whereby he agreed to plead guilty to a fourth-

degree felony count of DUI, and the remaining counts would be nolled.

Additionally, the prosecutor stated the following:

       And the [s]tate of Ohio and defense counsel have agreed upon
       sentence, if the Court will accept that recommendation of six months
       local time, to be served locally through the state prison system.

(Tr. 3.)

               Defense counsel affirmed that “there’s an agreed sentence in this

case of 180 days or six months, but there are a couple of issues that I —.” (Tr. 4.)

The trial court interrupted defense counsel, requesting “What’s your plea?” (Tr. at

id.) Although defense counsel stated that Swortchek is “going to go along,” counsel

further expressed “a couple of issues.” (Tr. at id.) The court again asked, “What’s

your plea going to be?” (Tr. at id.) Counsel advised, “Well, we’re willing to go along

with that.” (Tr. at id.) The following exchange then took place:

       THE COURT: What does that mean; what is your plea? Is your plea
       guilty, not guilty, no contest; what is your plea?

       COUNSEL: It will be guilty. * * *

       THE COURT: The government has indicated that he is pleading
       guilty to [DUI], a felony of the fourth degree.
      COUNSEL: Right. But we have an agreed — I don’t know if the Court
      is amenable to that agreed disposition of 180 days local time, which
      you can do in that type of case.

      THE COURT: But, you know, we’re not even at that point, [counsel].
      I need to know what your plea is going to be.

      COUNSEL: Well, if he can get some relief so he can see his heart
      surgeon, we’re willing to do that.

      THE COURT: I don’t bargain with people like that. I mean, you know
      better than that. I’m not going to agree to bargain with you while
      you’re standing in front of the bench. I’m not going to say okay, I’m
      going to give this and that and therefore there’s a plea. I’m not doing
      that.

      If you take the plea that the government has offered you, then fine, we
      have a procedure to go through. Other than that, I’m not agreeing to
      anything. I’m not telling you anything like that. I don’t discuss
      sentencing, and you know it.

      COUNSEL: Well, I thought you were amenable to an agreed sentence.

      THE COURT: I am. And the prosecutor says six months and I
      haven’t said one word.

      COUNSEL: Okay.

      THE COURT: I accept agreed-upon sentences, but I’m not going to
      tell you that I agree to any of these conditions that you’re making.

      ***

      If you want to enter a plea, enter the plea. If you don’t want to enter
      the plea, then don’t.

(Tr. 4-6.)

              After counsel explained that Swortchek wanted to see his “heart

doctor” and that he had letters from the doctor, the court explained:

      THE COURT: I don’t care. All I care about right now is the charge of
      DWI, a felony four. I want to know if he’s going to plead guilty or not
      guilty. That’s all I want. I don’t want to know about anything else
       that’s personal. He can work that out with the people in the jail. She
       said something about local time period all of the conditions you
       entered into with the government, she conveyed that to me. If she
       didn’t convey it correctly, let me know. If she conveyed it correctly
       and you have a deal, tell me what your plea is going to be.

       Counsel: Well, 180 days is appropriate, yes, that’s agreed to. But I
       just want to bring to the Court’s attention these other issues that he
       has.

       ***

       THE COURT: He’s here before the Court on a DUI. The prosecutor
       has indicated to the Court that you guys have an agreement that he’s
       going to plead to DUI, felony four, and you have an agreed-upon
       sentence for six months. Now, that’s all I’m concerned with. I don’t
       care about the rest of the stuff. Everybody here has issues.

(Tr. 6-7.)

              After further discussion, counsel advised the court that Swortchek

would plead guilty.

       THE COURT: Okay. Mr. Swortchek, do you wish to take this plea
       agreement?

       DEFENDANT: I do, Your Honor.

(Tr. 8.)

              The trial court then conducted a Crim.R. 11 plea colloquy. During

the colloquy, the trial court advised Swortchek of the maximum penalties he faced

by pleading guilty to a fourth-degree felony DUI, including all mandatory

penalties. Additionally, the court confirmed with him that he “entered into an

agreement with [the state] whereby you agree to serve six months in the Cuyahoga

County Jail.” (Tr. 12.) In asking whether any promises or threats were made to

induce Swortchek into taking the plea, the court questioned:
       Has anyone made any promises or threats in order to induce you to
       change your plea, other than what’s been spread upon the record?
       And because there has been an agreement spread upon the record, the
       Court’s going to review that. That is that you would plead guilty to
       DUI, a felony of the fourth degree, and that you have entered into an
       agreement with the government whereby you agree to serve six
       months local time. Is there anything else?

       DEFENDANT: That’s it, Your Honor.

(Tr. 13.)

              Swortchek pleaded guilty to the DUI offense.              Because of

Swortchek’s upcoming scheduled doctor appointments, the trial court continued

the matter for sentencing.

              Subsequently     at   the   sentencing   hearing,   the   trial   court

acknowledged the agreement between the parties and imposed the following

sentence:

       DUI in this case is a felony of the fourth degree. There is an
       agreement to serve six months local time; therefore, the sentence of
       the Court is $1,350 and costs, 18 months. Twelve months will be
       suspended. You’ll be placed on probation for a period of two years.
       Alcohol and drug counseling will be mandatory. His license will be
       suspended for a period of four years. The sentence will be ordered
       consistent with the agreement to be served locally.

(Tr. 20.) Following the announcement of the sentence, counsel requested that the

trial court allow Swortchek to complete his inpatient treatment before serving the

jail sentence. In response, the court stated:

       THE COURT: We had an agreement.

       COUNSEL: I know. I understand that.

       THE COURT: He has to finish it when he gets out. We have an
       agreement. We have to abide by the agreement.
       ***

      Oh. Well, you can finish it when you get out. Six months to do
      consistent with the agreement.

(Tr. 20-21.)

               On appeal, Swortchek contends in one paragraph, without citation

to any legal authority as required by App.R. 16(A)(7) and 12(A)(2), that the trial

court denied him due process when it sentenced him contrary to the agreed

sentence. Swortchek’s violation of the appellate rules is grounds enough for this

court to overrule his assignment of error and affirm his conviction; however, we

find that based on the record before us, Swortchek did not enter a knowing,

intelligent, and voluntary plea.

               We initially note that this was not an “agreed sentence” that would

prevent Swortchek a right to appeal pursuant to R.C. 2953.08(D)(1). Rather, the

case before us reflects that this was an agreement between the state and Swortchek

that was recommended to the trial court.

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

plea agreements.’” State v. Orlando, 8th Dist. Cuyahoga No. 99299, 2013-Ohio-

2335, ¶ 14, quoting State v. Dunbar, 8th Dist. Cuyahoga No. 87317, 2007-Ohio-

3261, ¶ 112. And the court is not obligated to follow the negotiated plea entered

into between the state and the defendant. Id. “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, 8th Dist.

Cuyahoga No. 105025, 2017-Ohio-2662, ¶ 4.

              In Warren v. Cromley, 11th Dist. Trumbull No. 97-T-0213, 1999

Ohio App. LEXIS 206, 7-8 (Jan. 29, 1999), referring to the trial court’s discretion

on whether to accept a negotiated plea, the court stated:

      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 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. See, generally,
      Katz & Giannelli, Criminal Law (1996) 154-155, Section 44.8. n.2

              “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, 154 Ohio App.3d 250, 2003-Ohio-4772, 796 N.E.2d 1003, ¶ 13 (5th

Dist.), citing State v. Darmour, 38 Ohio App.3d 160, 529 N.E.2d 208 (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.

Mahoning No. 01CA234, 2002-Ohio-6903 (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).

               Therefore, the issues before this court are whether (1) the trial court

indicated that it accepted the negotiated plea agreement with a recommended

sentence before it accepted Swortchek’s plea, (2) Swortchek was put on notice that

the trial court might deviate from the recommended sentence, and (3) Swortchek

was given an opportunity to withdraw his plea upon learning that the trial court

would not be implementing the recommended sentence.

               Before discussing the identified issues, we note that the

recommended sentence was that Swortchek would serve six months in the county

jail. Whether this was the entire agreed sentence between the parties, or only just

an agreement regarding the period of incarceration, is not entirely clear from the

record. But a person who pleads guilty to a fourth-degree felony DUI is subject to

certain mandatory minimum sanctions, and failure to impose those mandatory

minimums would have rendered Swortchek’s sentence contrary to law. The trial

court advised Swortchek of those mandatory minimums, which Swortchek does

not challenge on appeal.1 Accordingly, the record supports the conclusion that the


      1  A review of the record reveals that the trial court advised Swortchek of those
mandatory minimum sanctions including a mandatory period of incarceration, fine,
alcohol and drug addiction program, license suspension, restricted plates and
installation of an interlock device on the vehicle, and forfeiture of the motor vehicle if
registered to the defendant. See R.C. 4511.19. Moreover, the court advised that if
driving privileges are requested, they cannot be granted until after a requisite period of
time.
agreement between the parties only pertained to the potential term of

incarceration.

                 After reviewing the record, we find that the record is clear that the

trial court accepted Swortchek’s guilty plea. It is not as clear, however, as to

whether the court accepted the incarceration portion of the agreement prior to

accepting the plea because the trial court did not unequivocally state it would

impose the recommended sentence. That being said, we must determine whether

Swortchek had a reasonable expectation that the trial court would impose the

recommended sentence of six months local jail time. Based on the entire record

before this court, we conclude that Swortchek had a reasonable expectation that he

would only serve six months in the county jail for this offense because the trial

court did not forewarn him that it could or would deviate from the recommended

sentence.

                 Although the trial court indicated on several occasions that it was

not discussing the sentence during the plea hearing, a review of the entire context

of the plea reveals that this was in response to defense counsel’s requests about

Swortchek’s medical concerns and appointments.           Specifically, the trial court

stated that it was “amenable to an agreed sentence,” but not agreeable to any of

defense counsel’s “conditions that [he was] making.” (Tr. 6.) Additionally, the

court reiterated on multiple occasions prior to accepting the plea that there was an

agreement between the parties — “all of the conditions that [Swortchek] entered

into with the government, [the prosecutor] conveyed that to me.               If [the
prosecutor] didn’t convey it correctly, let me know. If [the prosecutor] conveyed it

correctly and you have a deal, tell me what your plea is going to be.” (tr. 6-7.); “the

prosecutor has indicated to the Court that you guys have an agreement that he’s

going to plead to DUI, felony four, and you have an agreed-upon sentence for six

months. Now, that’s all I’m concerned with.” (Tr. 7.)

               Moreover, the trial court acknowledged the agreement during the

plea colloquy. Immediately following the advisement of the mandatory minimum

penalties, the trial court confirmed Swortchek’s agreement to serve six months in

the county jail — “The government has further indicated to this Court that as part

and parcel of this plea agreement with you that you have entered into an

agreement with them whereby you agree to serve six months in the Cuyahoga

County Jail; did you agree to that?” (Tr. 12.)

               Based on the record, it is apparent that Swortchek had a reasonable

expectation that he would only receive a six-month jail sentence.

               “Due process requires the trial court to put the defendant on notice

of the possibility that it could impose a longer term than negotiated under the plea

agreement before accepting the guilty plea.” State v. Huffman, 8th Dist. Cuyahoga

No. 105805, 2018-Ohio-1192, ¶ 21, citing Williams, 8th Dist. Cuyahoga No.

105025, 2017-Ohio-2662, at ¶ 4. We find that Swortchek was not put on notice

that the court might deviate from the recommended jail sentence.

               At no time did the trial court indicate that it was not bound by the

recommended sentence. Again, the trial court indicated that it was not discussing
sentencing during the plea, but it never stated that it would deviate from the

recommended sentence. When defense counsel asked about its belief that the

court would be amenable to an agreed sentence, the court stated “I am. And the

prosecutor says six months and I haven’t said one word.” (Tr. 6.) The court

advised Swortchek of the mandatory minimum and maximum sentence that could

be imposed, but when the court noted the agreement between the defendant and

the state, it never said that it was not agreeing to the recommendation. Finally, the

trial court acknowledged the agreement immediately following the penalty

advisements during the plea colloquy and again never said that it was not making

any promises regarding the recommended sentence. Accordingly, Swortchek was

not put on notice that the trial court might deviate from the recommended

sentence.

               Finally, the record reveals that Swortchek was not given an

opportunity to withdraw his plea after learning the court would not be imposing

the recommended sentence.          At sentencing, the court stated, “There is an

agreement to serve six months local time; therefore[,] the sentence of the Court is

* * * 18 months. Twelve months will be suspended. You’ll be placed on probation

for a period of two years. * * * The sentence will be ordered consistent with the

agreement to be served locally.” (Tr. 20.) Admittedly, the court imposed the

recommended portion of six months local jail time, but as previously discussed,

the sentence went beyond Swortchek’s expectation that six months would be the

entire portion of his jail sentence.
              Moreover, although R.C. 4511.19 authorizes the trial court to impose

a period of community control in addition to a jail sentence, the record does not

reflect that the trial court advised Swortchek during the plea colloquy that he could

receive any period of community control, or that a suspended jail or prison

sentence could be imposed.

              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.’”

Dunbar, 8th Dist. Cuyahoga No. 87317, 2007-Ohio-3261, at ¶ 139, quoting State v.

Allgood, 9th Dist. Lorain Nos. 90CA004903, 90CA004904, 90CA004905, and

90CA004907, 1991 Ohio App. LEXIS 2972, 9 (June 19, 1991). Although the trial

court advised Swortchek of the potential range for the fourth-degree felony charge

of DUI, it did not state that it could impose community control in addition to any

jail or prison term or any suspended sentence.

              Accordingly, when the court deviated from the plea agreement, it

should have advised Swortchek of its intentions, and allowed him to reconsider his

plea. Dunbar at ¶ 140, citing Allgood at 10. If Swortchek had then chosen to still

plead guilty, there would be no error because Swortchek would have been fully

informed as to the potential sentence. However, after it deviated from the agreed-

recommended sentence, the trial court did not give him any opportunity to

withdraw his plea.
               Based on the record before this court, the trial court erred by failing

to either (1) forewarn Swortchek of the potential for a longer jail sentence than

recommended and the possibility of community control at the plea hearing, or (2)

give him an opportunity to withdraw his guilty plea at the sentencing hearing once

the recommended sentence was not imposed.              The assignment of error is

sustained.

               Judgment reversed and remanded for the trial court to either

resentence Swortchek under the plea agreement or allow him to withdraw his

guilty plea.

      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.

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

27 of the Rules of Appellate Procedure.



KATHLEEN ANN KEOUGH, JUDGE

LARRY A. JONES, SR., P.J., and
RAYMOND C. HEADEN, J., CONCUR
