[Cite as State v. Richmond, 2012-Ohio-842.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                      CLARK COUNTY

STATE OF OHIO                                    :
                                                 :     Appellate Case No. 2011-CA-25
        Plaintiff-Appellee                       :
                                                 :     Trial Court Case No. 2011-CR-55
v.                                               :
                                                 :
CHRISTOPHER RICHMOND                             :     (Criminal Appeal from
                                                 :     (Common Pleas Court)
        Defendant-Appellant              :
                                                 :
                                              ...........

                                              OPINION

                              Rendered on the 2nd day of March, 2012.

                                              ...........

ANDREW R. PICEK, Atty. Reg. #0082121, Clark County Prosecutor’s Office, 50 East
Columbia Street, 4th Floor, Post Office Box 1608, Springfield, Ohio 45501
      Attorney for Plaintiff-Appellee

BRETT A. RINEHART, Atty. Reg. #0081226, 150 North Limestone Street, Suite 206,
Springfield, Ohio 45502
       Attorney for Defendant-Appellant

                                                      .............

FAIN, J.

                {¶ 1} Defendant-appellant Christopher Richmond appeals from his one-year

sentence imposed for Attempted Burglary, a felony of the fifth degree, to which he pled guilty

as part of a plea bargain.
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                    {¶ 2} Richmond contends that the State violated its undertaking, as part of the

plea bargain, to remain silent with respect to a recommendation of sentence, when, at

sentencing, it noted its undertaking to remain silent with respect to a recommendation, but

asked the trial court to take into consideration Richmond’s “lengthy prior criminal history.”

                    {¶ 3} Richmond does not appeal from his conviction, but only from his

sentence. Richmond was sentenced on March 28, 2011, to one year in prison, with jail credit

from January 10, 2011, until his conveyance to the penitentiary system. The web site of the

office of the Clark County Clerk of Courts discloses that the execution of Richmond’s

sentence has not been stayed by the trial court or by this court. Therefore, Richmond would

have completed serving his sentence on January 10, 2012. We conclude, therefore, that this

appeal is moot, and it is therefore Dismissed.



                                                   I. The Plea Bargain.

                    {¶ 4} Richmond was charged by indictment with one count of Burglary, in

violation of R.C. 2911.12(A)(4), a felony of the fourth degree.1 In a plea bargain, which was

reduced to writing, Richmond agreed to plead guilty to the reduced offense of Attempted

Burglary, a felony of the fifth degree.

                    {¶ 5} In the written plea agreement, which Richmond signed, the State’s

undertaking is set forth as follows: “State will stand silent with respect to recommendation of

sentence at sentencing.” At the plea hearing, the State described its undertaking as follows:


           1
             The Burglary statute was amended, effective September 30, 2011, by 2011 H.B. 86, as a result of which it no longer contains a
 division (A)(4).
                                                                                            3


               The facts – Well, it’s also understood between the parties that the defendant

       will be given a presentence investigation prior to sentencing in this matter, and that at

       sentencing the State will not recommend a sentencing and stand silent with respect to

       recommending a sentence, but we may be able to speak with respect to the facts of the

       case.

               {¶ 6} Pursuant to the plea agreement, Richmond pled guilty to the reduced

charge of Attempted Burglary.



                                   II. The Sentencing Hearing.

               {¶ 7} At the sentencing hearing, Richmond and his attorney were afforded the

opportunity to address the court. The court then asked the State if it had anything to say.

The State then responded as follows:

               Your Honor, pursuant to the terms of the plea agreement the State will not be

       speaking as to a sentence; however, the State would just ask that the Court take into

       consideration the lengthy prior criminal history that the defendant has, as both a

       juvenile and as an adult.

               {¶ 8} The transcript of the sentencing hearing then indicates: “(Judge

reading.)” Following which, the trial court made the following statement:

               You’ve been convicted of burglary back in 2005, theft in 2007, telephone

       harassment in 2007, theft in 2008. You went to prison for that offense. Aggravated

       menacing in 2010, domestic violence in 2011.

       It’s the order of the Court you be sentenced to one year in the Ohio State Penitentiary
                                                                                                      4


          and court costs. That’s all for today.

                   {¶ 9} Whereupon, the sentencing hearing concluded.

          {¶ 10}     Richmond appeals from his sentence.



                                              III. This Appeal.

          {¶ 11}        Richmond’s sole assignment of error is as follows:

          {¶ 12} “THE PROSECUTION VIOLATED THE TERMS OF THE PLEA AGREEMENT

BY NOT STANDING SILENT DURING DISPOSITION, THEREBY MAKING APPELLANT’S

PLEA OF GUILTY INVOLUNTARY.”

          {¶ 13}     Richmond does not ask us to disturb his conviction for Attempted Burglary. The

relief he requests in his brief is as follows:

                   Appellant respectfully requests that this court vacate the sentence and allow Appellant

          the full benefit of his bargain. Therefore, as the State failed to honor the plea agreement, the

          sentence should be vacated and this case should be remanded for proceedings consistent with

          this [sic] opinion.

          {¶ 14}     The State points out that Richmond did not object to the State’s comment at the

sentencing hearing.         But it is questionable whether Richmond had a meaningful opportunity to

object.     The trial court appears to have turned its attention to reading from the pre-sentence

investigation report as soon as the State was finished speaking. The practical realities of sentencing

hearings are that defendants and their counsel are loathe to interrupt, and possibly irritate, the trial

court at this critical stage, when the trial court is about to pronounce sentence.

                   {¶ 15}       Richmond relies upon Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495,
                                                                                           5


30 L.Ed.2d 427 (1971), for the proposition that a material breach of an undertaking by the

State, in a plea agreement, requires either the remedy of specific performance or the remedy of

rescission.   Richmond, evidently content with the plea bargain wherein his offense was

reduced from Burglary to Attempted Burglary, seeks only the remedy of specific performance.

       {¶ 16}    Without addressing the merits of Richmond’s assignment of error, we

conclude that this appeal is moot. Richmond’s sentence was due to expire on January 10,

2012. The website maintained by the Department of Rehabilitation and Corrections, of which

we have taken judicial notice, does not list Richmond as a prisoner. It also does not reflect

that he is on post-release control. The only relief Richmond seeks concerns his sentence.

Even if we were to conclude that there was error in the imposition of his sentence, we cannot

provide him meaningful relief, since he has already completed the sentence. Therefore, this

appeal is moot. State v. Money, 2d Dist. Clark No. 2009 CA 119, 2010-Ohio-6225, ¶ 25.

See, also, State v. Johnson, 11th Dist. Lake No. 2005-L-208, 2007-Ohio-780, ¶ 7.

       {¶ 17}

                                        IV. Conclusion.

       {¶ 18}       This appeal being moot, it is Dismissed.

                                                   .............

GRADY, P.J., and FROELICH, J., concur.



Copies mailed to:

Andrew R. Picek
Brett Rinehart
Hon. Douglas M. Rastatter
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