[Cite as State v. Schlichter, 2015-Ohio-5276.]

                              IN THE COURT OF APPEALS OF OHIO

                                    TENTH APPELLATE DISTRICT


State of Ohio,                                   :

                 Plaintiff-Appellee,             :          No. 14AP-1020
                                                          (C.P.C. No. 11CR-931)
v.                                               :
                                                       (REGULAR CALENDAR)
Arthur E. Schlichter,                            :

                 Defendant-Appellant.            :




                                          D E C I S I O N

                                    Rendered on December 17, 2015


                 Ron O'Brien, Prosecuting Attorney, and Steven L. Taylor, for
                 appellee.

                 Scott & Nolder Co., LPA, and Steven S. Nolder, for appellant.

                   APPEAL from the Franklin County Court of Common Pleas.

BROWN, P.J.
        {¶ 1} This is an appeal by defendant-appellant, Arthur E. Schlichter, from a
decision and entry of the Franklin County Court of Common Pleas denying his motion for
specific performance on a plea agreement.
        {¶ 2} On April 29, 2011, a grand jury returned an indictment charging appellant
with one count of engaging in a pattern of corrupt activity, in violation of R.C. 2923.32, a
felony of the first degree, and 12 counts of theft, in violation of R.C. 2913.02 (one count of
theft as a felony of the first degree, one count of theft as a felony of the second degree, six
counts of theft as felonies of the fourth degree, and four counts of theft as felonies of the
fifth degree). Appellant subsequently entered a guilty plea to all of the counts as charged
No. 14AP-1020                                                                           2

in the indictment except as to the second count, to which he entered a guilty plea to one
count of theft as a felony of the second degree.
       {¶ 3} On September 15, 2011, appellant and the state entered into a written plea
agreement. The terms of the agreement provided in pertinent part:
              2. The parties will jointly recommend to the Court that the
              defendant receive a sentence of 10 years imprisonment on
              count one, eight years on both counts two and three; one year
              on counts four, five, eight and nine; and 18 months on counts
              six, seven, ten, eleven, twelve and thirteen at the Ohio
              Department of Rehabilitation and Correction (ODRC). The
              parties will jointly recommend that these state court
              sentences be run concurrently with each other for a total state
              court prison sentence of ten years imprisonment. The parties
              will also jointly recommend that the total ten year state court
              sentence be served concurrently with any sentence that the
              defendant receives for a series of federal offenses that will be
              prosecuted in the United States District Court for the
              Southern District of Ohio upon completion of this guilty plea
              and imposition of sentence in this case.

              3. After the defendant has been sentenced in this state court
              case the defendant shall be arrested on a federal warrant and
              taken into federal custody in order to resolve the federal
              charges to be filed in the United States District Court in
              Columbus. The parties agree that if the defendant receives a
              federal sentence that is less than ten years the State will file a
              detainer with the Bureau of Prisons to require the balance
              remaining on his concurrent ten year state sentence to be
              served in ODRC.

              4. The 10-year term of state imprisonment that the court
              imposes in this case shall commence to run concurrently and
              on the same day that the defendant begins serving his federal
              sentence at the Federal Bureau of Prisons. If the defendant
              completes his federal sentence in less than 10 years, the
              remaining term of imprisonment from this case will be served
              at the Ohio Department of Rehabilitation and Corrections.

       {¶ 4} By judgment entry filed October 5, 2011, the trial court sentenced appellant
on the various counts, with all counts to "run concurrent with each other * * * plus
consistent with the attached plea agreement, for a total of ten (10) years to be served at
the Ohio Department of Rehabilitation and Correction. Sentence will not commence until
defendant reports to Federal BOP."
No. 14AP-1020                                                                             3

       {¶ 5} Following the trial court's imposition of sentence, appellant was released on
bond and then placed in federal custody pursuant to paragraph three of the plea
agreement.    On October 3, 2011, a federal magistrate released appellant on bond.
Appellant remained on release status until January 18, 2012, when he was arrested for
drug use while on federal pre-trial supervision. On May 4, 2012, the federal district court
imposed a 127-month sentence, to be served concurrently with the state court's 10-year
(120-month) sentence.
       {¶ 6} On March 25, 2013, the prosecutor sent a letter to the records office at the
federal facility where appellant was imprisoned, which stated in part:
              The purpose of this letter is to assure that your prison and the
              BOP have the Ohio state court judgment entry in your records
              office as a detainer against this inmate should he be eligible
              for or be released from your custody prior to completion of
              120 full months in your federal institution or facility. If he is
              released from federal prison prior to serving the complete 120
              months on the state RICO count the inmate is required to
              serve the balance remaining on that 10 year sentence in the
              Ohio Department of Rehabilitation and Correction per
              paragraphs 3 and 4 of the plea agreement and terms of the
              judgment entry.

              In addition, the inmate's plea agreement and state judgment
              entry provide that the 10 year state sentence commenced
              upon the date the sentence was imposed and executed, which
              in this case was May 4, 2012. Thus, the expiration of the state
              court sentence would be May 4, 2022 less 214 days of jail time
              credit for pre-sentence confinement – which would be on or
              about October 1, 2021.

       {¶ 7} On December 6, 2013, appellant filed a motion for specific performance on
the plea agreement. In the accompanying memorandum in support, appellant argued
that the prosecutor's March 25, 2013 letter to the records office, formally lodging a
detainer for his state sentence, violated paragraph three of the plea agreement because the
federal sentence he received was more than ten years imprisonment. Appellant further
argued that the prosecutor's action resulted in "the addition of security points for the
presence of the detainer that has left him housed at a medium-level facility" (as opposed
to a "low-level facility"), and that the presence of the detainer deprived him of the
opportunity to participate in rehabilitative programs offered in the federal prison system.
No. 14AP-1020                                                                                4

       {¶ 8} On January 9, 2014, the state filed a memorandum contra appellant's
motion for specific performance, asserting that appellant's plea agreement, "and the
surrounding facts," call for appellant's ten-year state sentence "to commence on May 4,
2012 and end on May 4, 2022, less 214 days jail time credit, which would release him
from custody on October 2, 2021." According to the state, an "inmate locator web site"
maintained by the Federal Bureau of Prisons ("BOP") indicated that appellant's release
date from federal custody would be August 18, 2020, "one year and 45 days (402 days)
before completion of his 10 year [state] sentence." (Emphasis deleted.) The state asserted
that the method available to it, and "contemplated by the plea agreement, is for the State
to file a detainer with the BOP to assure the transfer of custody from BOP to ODRC for the
completion of his sentence."
       {¶ 9} On January 11, 2014, appellant filed a reply to the state's memorandum
contra. In his reply, appellant argued that "[t]he express language in paragraph three of
the plea agreement makes it clear that the only circumstance under which the State of
Ohio can place a detainer on Schlichter is if he 'receives a federal sentence that is less than
ten years.' "
       {¶ 10} By decision and entry filed November 14, 2014, the trial court denied
appellant's motion for specific performance on the plea agreement. In its decision, the
court held in part:
                The parties acknowledged that the overriding intent of the
                written plea was to make sure that the Defendant spent 10
                years in jail. Paragraphs 3 and 4 were drafted to serve that
                intent. Defendant's argument is rejected by the Court.

                What the Defendant is actually asserting at this time - based
                upon his request for specific performance - is that the State
                performs on its bargain and withdraw the detainer; i.e., there
                was an agreement that the State would only be authorized to
                file a detainer pursuant to paragraph 3.

                The fact that a "detainer" was not specifically listed in
                paragraph 4 cannot be evidence of a meeting of the minds
                between the parties that the use of a detainer was specifically
                going to be excluded as the Defendant has argued.
                Defendant's argument requires this Court to read language
                into an otherwise clear clause. The filing of the detainer by
                the State is not precluded by the clear language and intent of
No. 14AP-1020                                                                           5

              the plea agreement. Filing of the detainer by the State was not
              a breach of the agreement.

       {¶ 11} On appeal, appellant sets forth the following assignment of error for this
court's review:
              The trial court erred by denying Appellant Schlichter's motion
              for specific performance on the plea agreement.

       {¶ 12} Under his single assignment of error, appellant contends the trial court
erred in denying his motion for specific performance on the plea agreement. As he argued
before the trial court, appellant maintains the express language of paragraph three of the
plea agreement indicates that the only circumstance under which the state can place a
detainer on him is if he "receives a federal sentence that is less than ten years."
       {¶ 13} The Supreme Court of Ohio has recognized that "[p]rinciples of contract law
are generally applicable to the interpretation and enforcement of plea agreements." State
v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, ¶ 50. The terms of a plea agreement are
to be ascertained before it can be determined whether a party breached the agreement.
State v. Blair, 4th Dist. No. 11CA3429, 2012-Ohio-769, ¶ 15. A plea agreement which has
been breached "may be remedied by specific performance." State v. Butts, 112 Ohio
App.3d 683, 686 (8th Dist.1996), citing Santobello v. New York, 404 U.S. 257 (1971).
       {¶ 14} This court has noted, in the context of reviewing a claimed breach of plea
agreement, that "where the facts are undisputed, a trial court's determination as to
whether a certain act constitutes a breach of contract is a question of law to be reviewed
de novo." State v. Blake, 10th Dist. No. 10AP-992, 2011-Ohio-3318, ¶ 17. In Blake,
however, this court recognized that "Ohio case law exists whereby the determination as to
whether a plea bargain has been breached was reviewed pursuant to an abuse of
discretion standard," and we further observed that "[o]ther Ohio courts do not specify
which standard of review was applied in determining whether a breach of plea bargain
occurred." Id.
       {¶ 15} As indicated, appellant contends that, in light of the fact he received a
federal sentence of greater than ten years (i.e., 127 months), the terms of the plea
agreement precluded the state from filing a detainer. Appellant argues that the intent of
No. 14AP-1020                                                                               6

the parties was to tie the filing of a detainer to the length of the federal sentence he
"receives," as opposed to the amount of time he serves or completes.
       {¶ 16} In response, the state argues that the chief flaw in appellant's argument
arises from his contention that, under the terms of the plea agreement, the "only"
circumstance under which the state could lodge a detainer was if he received a federal
sentence that was less than the state court's ten-year sentence. The state maintains the
plea agreement contains no such prohibition. We agree.
       {¶ 17} At the outset, we concur with the trial court's observation that "the
overriding intent" of the written plea agreement was "to make sure that the Defendant
spent 10 years in jail." Consistent with such intent, paragraph three contains language
expressing the parties' agreement "that if the defendant receives a federal sentence of less
than ten years the State will file a detainer with the Bureau of Prisons to require the
balance remaining on his concurrent ten year sentence to be served in ODRC."
       {¶ 18} While the above-cited provision addresses a specific circumstance in which
the state "will file a detainer" with the BOP (i.e., "if the defendant receives a federal
sentence that is less than ten years"), the plea agreement contains no covenant
prohibiting the state from filing a detainer under other circumstances. We note, in
addition to the provisions outlined above, the plea agreement includes an integration
clause providing "there are no understandings or agreements unless they have been set
forth in writing herein." As argued by the state, appellant effectively seeks to import the
word "only" into the terms of the plea agreement. However, the agreement contains no
limiting language indicating that paragraph three sets forth the only or exclusive
circumstance in which the state could exercise its right to file a detainer, and we decline to
construe the agreement as containing an implied prohibition. Rather, appellant's claim
that the state agreed not to file a detainer except under the circumstance outlined in
paragraph three is, as found by the trial court, an attempt to "read language" into an
integrated plea agreement.
       {¶ 19} Federal courts, similar to Ohio, interpret and enforce plea agreements
utilizing traditional contract law principles. As observed by one court, "[a] central tenet of
contract law is that no party is obligated to provide more than is specified in the
agreement," and therefore, "in enforcing plea agreements, the government is held only to
No. 14AP-1020                                                                                               7

those promises that it actually made to the defendant." United States v. Peglera, 33 F.3d
412, 413 (4th Cir.1994). Stated otherwise, "[w]hile the government must be held to the
promises it made, it will not be bound to those it did not make." United States v.
Fentress, 792 F.2d 461, 464 (4th Cir.1986).
        {¶ 20} Upon review, whether we utilize a de novo or abuse of discretion standard
of review, we reject appellant's interpretation of the plea agreement and find no error with
the trial court's determination that the state's filing of the detainer did not constitute a
breach of the plea agreement. Accordingly, we conclude that the trial court did not err in
denying appellant's motion for specific performance.1
        {¶ 21} Based upon the foregoing, appellant's single assignment of error is without
merit and is overruled, and the judgment of the Franklin County Court of Common Pleas
is hereby affirmed.
                                                                                     Judgment affirmed.

                          SADLER and LUPER SCHUSTER, JJ., concur.

                                  _______________________




1 The state has raised an alternative argument for affirmance, asserting a purported jurisdictional issue

based on the Supreme Court's recent decision in State v. Gilbert, 143 Ohio St.3d 150, 2014-Ohio-4562, ¶ 13,
in which the Supreme Court held that "once a defendant has been sentenced by a trial court, that court does
not have jurisdiction to entertain a motion by the state to vacate the defendant's guilty plea and sentence
based upon the defendant's alleged violation of a plea agreement." The state acknowledges it "does not
agree with Gilbert," but contends that lack of jurisdiction should be a "two-way street," arguing that Gilbert
"creates a jurisdictional problem with defendant's 'motion for specific performance.' " Given our disposition
of appellant's assignment of error, we need not reach the state's "good for the goose, good for the gander"
argument which, the state concedes, it never raised before the trial court.
