[Cite as State v. Wallace, 2015-Ohio-4222.]


STATE OF OHIO                     )                  IN THE COURT OF APPEALS
                                  )ss:               NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                        C.A. Nos.    14CA010609
                                                                  14CA010610
        Appellee

        v.
                                                     APPEAL FROM JUDGMENT
TREMAYNE WALLACE                                     ENTERED IN THE
                                                     COURT OF COMMON PLEAS
        Appellant                                    COUNTY OF LORAIN, OHIO
                                                     CASE Nos. 13CR087432
                                                                13CR088330

                                 DECISION AND JOURNAL ENTRY

Dated: October 13, 2015



        MOORE, Judge.

        {¶1}     Defendant-Appellant Tremayne Wallace appeals from the judgments of the

Lorain County Court of Common Pleas. We affirm.

                                                I.

        {¶2}     In August 2013, Mr. Wallace was indicted in case 13CR087432 (“case one”) on

one count of possession of drugs (cocaine), in violation of R.C. 2925.11(A), one count of having

drug paraphernalia, in violation of R.C. 2925.14(C)(1), and one count of possession of drugs

(marijuana), in violation of R.C. 2925.11(A). In December 2013, Mr. Wallace was indicted in

case 13CR088330 (“case two”) on one count of trafficking in drugs (cocaine), in violation of

R.C. 2925.03(A)(2), along with an accompanying forfeiture specification, one count of

possession of drugs (cocaine), in violation of R.C. 2925.11(A), and one count of having drug

paraphernalia, in violation of R.C. 2925.14(C)(1).
                                                 2


        {¶3}     The matter proceeded to a combined plea hearing on both cases, at which time

Mr. Wallace agreed to plead guilty to the indictments in both cases. The trial judge told Mr.

Wallace that, “even though the State doesn’t go along with this, I’m going to put you on

probation. I’m not going to send you to the penitentiary.” The trial judge then asked if any other

promises were made, to which Mr. Wallace answered in the negative. The trial judge then

accepted Mr. Wallace’s plea and told him that,

        [w]e’re going to give you a referral slip to go over to the Probation Department
        for an interview. They’re going to send me a report about you beginning with
        your birth up to the present time. I’ve made a promise to you. So whatever I read
        in that report wouldn’t matter unless I read that you weren’t cooperative. That’s
        the only thing that would hurt you, or if between now and sentence you got
        arrested. Other than that, we have a deal.

        {¶4}     Additionally, the parties and the trial judge had a somewhat confusing exchange

over the money that was subject to the forfeiture specification. Ultimately, the trial judge

indicated that Mr. Wallace had pleaded guilty to the forfeiture specification, but seemed to

indicate that the State still would have to demonstrate at sentencing that the money was subject

to forfeiture.

        {¶5}     Prior to sentencing, the trial judge was removed from the matter and another

judge conducted the sentencing hearing. Also, a different assistant prosecutor attended the

sentencing hearing, who appears to have been unaware of the details of the plea. She stated that

“the [prior] judge had indicated that a community control[] sanction appeared appropriate and

would be given as long as nothing else, a surprise propped up on the [presentence investigation

report (“PSI”).” After looking at the record, and the PSI, the trial court merged count two of

case two (the possession charge) into count one of case two (the trafficking charge).

Additionally, the trial court merged count three in case one (the possession charge) into count

two of case one (the drug paraphernalia charge).
                                                  3


        {¶6}    The sentencing trial court then commented on Mr. Wallace’s extensive record and

sentenced him to an aggregate term of one year in prison. Mr. Wallace’s attorney pointed out

that the prior judge had agreed to sentence Mr. Wallace to community control. The sentencing

trial judge replied that, “[s]omething came up on the PSI[,]” and declined to reconsider the

sentence. The trial court did not discuss forfeiture at sentencing, nor did Mr. Wallace’s counsel

object to the trial court’s failure to do so.

        {¶7}    Mr. Wallace separately appealed from each sentencing entry.1            This Court

consolidated the appeals.

                                                  II.

                                   ASSIGNMENT OF ERROR I

        THE TRIAL COURT ABUSED ITS DISCRETION, TO THE DETRIMENT OF
        [MR. WALLACE], WHEN THE COURT SENTENCED [HIM] TO ONE YEAR
        IN PRISON RATHER THAN COMMUNITY CONTROL SANCTIONS (CCS)
        AS PREVIOUSLY AGREED TO BY THE TRIAL COURT.

        {¶8}    Mr. Wallace argues in his first assignment of error that the trial court erred in

failing to sentence him to community control as it agreed to do. While the State concedes error,

because we do not possess a complete record, we cannot say that Mr. Wallace has demonstrated

that the trial court erred in sentencing him to prison.

        {¶9}    “Disposition of charges after plea discussions is not only an essential part of the

process but a highly desirable part for many reasons.” Santobello v. New York, 404 U.S. 257,

261 (1971). That process is traditionally limited to negotiations between the prosecutor and the

accused and does not involve the trial judge. See State v. Byrd, 63 Ohio St.2d 288, 293-294

(1980). In fact, “[d]ue to the high potential for coercion when the judge participates in the actual


        1
        14CA010609 is an appeal from 13CR088330, case two, and 14CA010610 is an appeal
from 13CR087432, case one.
                                                4


negotiation process, a number of courts have indicated that such participation is per se in

violation of the Fifth Amendment.” Id. at 292. While the Ohio Supreme Court has not gone so

far as to hold that a trial judge’s participation in the plea negotiation process automatically

renders a plea invalid, it has “strongly discourage[d] judge participation in plea negotiations[.]”

Id. at 293. Thus, when a trial judge does participate in the plea bargaining process, that

participation must be carefully scrutinized to assure that the participation did not affect the

voluntariness of the defendant’s plea. Id.

       {¶10} “A plea cannot sustain a judgment of guilt unless it is voluntarily made.” State v.

Cruz, 9th Dist. Lorain No. 14CA010550, 2015-Ohio-2472, ¶ 11, quoting State v. West, 9th Dist.

Lorain No. 04CA008554, 2005-Ohio-990, ¶ 8. “If a defendant is induced into pleading guilty

based upon a promise by the court and the court does not fulfill that promise, the defendant’s

plea is not voluntary.” Cruz at ¶ 11, quoting State v. Reeves, 9th Dist. Summit No. 27230, 2014-

Ohio-5259, ¶ 6, citing State v. Bortner, 9th Dist. Lorain No. 13CA010494, 2014-Ohio-4121, ¶

15.

       {¶11} Here, the original trial judge told Mr. Wallace at the plea hearing that, “even

though the State doesn’t go along with this, I’m going to put you on probation. I’m not going to

send you to the penitentiary.” The trial judge then asked if any other promises were made, to

which Mr. Wallace answered in the negative. The trial judge then accepted Mr. Wallace’s plea

and told him that,

       [w]e’re going to give you a referral slip to go over to the Probation Department
       for an interview. They’re going to send me a report about you beginning with
       your birth up to the present time. I’ve made a promise to you. So whatever I read
       in that report wouldn’t matter unless I read that you weren’t cooperative. That’s
       the only thing that would hurt you, or if between now and sentence you got
       arrested. Other than that, we have a deal.
                                                 5


The written plea agreements included language indicating that the trial court promised to

sentence him to community control.

       {¶12} As noted above, a different judge conducted the sentencing hearing and a

different assistant prosecutor represented the State’s interests. The prosecutor unfortunately

characterized the prior trial judge’s promise being that Mr. Wallace would receive community

control unless, “a surprise popped up on the PSI.” The trial court, after examining the PSI and

commenting on Mr. Wallace’s long record, apparently took that evidence as being a condition

that would authorize a prison term.       While Mr. Wallace’s counsel tried to persuade the

sentencing judge otherwise, the trial court declined to reconsider the sentence.

       {¶13} On appeal, the State concedes error, pointing out that the assistant prosecutor who

appeared at sentencing did not accurately state the trial court’s promise. While it is true that the

prosecutor’s statement about the prior judge’s promise to Mr. Wallace was not accurate, the prior

judge did require that Mr. Wallace cooperate with the probation department and not get arrested

prior to sentencing in order to receive the benefit of the agreement the trial court promised. The

trial court implied that he would examine the PSI to determine whether Mr. Wallace had

complied with those requirements. Unfortunately, the record before this Court does not contain

the PSI, and so we are unable to evaluate whether Mr. Wallace complied with the two conditions

set out by the prior trial judge. If Mr. Wallace failed to do so, the sentencing trial judge would

not have violated the prior judge’s promise by sentencing Mr. Wallace to prison. Because, a

review of the PSI is necessary for this Court to determine whether the trial court committed

reversible error in sentencing Mr. Wallace to prison, and it was Mr. Wallace’s burden to ensure

that the record on appeal contained that document, he has not demonstrated the trial court
                                                 6


committed reversible error. See State v. Vitt, 9th Dist. Medina No. 11CA0071-M, 2012-Ohio-

4438, ¶ 12.

       {¶14} Mr. Wallace’s first assignment of error is overruled.

                                ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED TO THE DETRIMENT OF [MR.] WALLACE
       WHEN IT DID NOT CONSIDER THE FORFEITURE SPECIFICATION AT
       SENTENCING.

       {¶15} Mr. Wallace argues in his second assignment of error that the trial court erred

when it did not consider the forfeiture specification at sentencing. According to Mr. Wallace,

“[t]he issue is whether the court erred by not considering the forf[ei]ture of Wallace’s money at

sentencing.” Based on Mr. Wallace’s limited argument, we do not agree.

       {¶16} Mr. Wallace premises his argument on a discussion by the parties and the trial

court at the plea hearing about forfeiture. Unfortunately, with respect to the issue of forfeiture,

Mr. Wallace’s plea hearing was confusing. The prosecutor informed the trial judge that Mr.

Wallace was pleading guilty to the indictments; however, in discussing the charges and the

penalties associated with them, the forfeiture specification was not discussed. After the trial

court accepted Mr. Wallace’s plea, the following discussion took place:

       [Defense counsel]: [Mr. Wallace] had some cash in his pocket they took and
       forfeited. I wrote on the plea sheets we didn’t agree to the forfeiture. He would
       like that money to apply to his costs if he could.

       [The Court]: When we come back for sentence, we will make that determination.
       The money was seized from Mr. Wallace?

       [Defense counsel]: At the hospital.

       [The Court]: I’m aware of – there’s been no forfeiture.

       [The State]: There’s a forfeiture spec on there, Judge.

       [The Court]: There’s a forfeiture spec?
                                                 7


       [Defense counsel]: Yes, there i[s].

       [The Court]: If the State of Ohio can prove that this comes from some unlawful
       means, then I won’t give it back. If the State of Ohio cannot prove that, I’m going
       to give it back.

       [Defense counsel]: Thank you, Judge.

       [The Court]: All right. Good luck. So that the guilty plea is to everything but the
       specification?

       [Defense counsel]: Yes. Thank you, Judge.

       [The Court]: All right.

       [Mr. Wallace]: Thank you, sir.

       [The Court]: He has pled guilty to the forfeiture specification. Whether we
       forfeit the money –

       [The State]: Your honor, the State will check with whatever department that was
       – I think it was EPD –

       [Defense counsel]: It would have been.

       [The State]: – to see if they would be okay to have it applied to costs.

       {¶17} The matter proceeded to a sentencing hearing before a different judge. The

sentencing trial judge noted that Mr. Wallace had been convicted of a forfeiture specification.

Otherwise, the trial court did not mention forfeiture. Mr. Wallace’s counsel did not object to the

lack of discussion concerning forfeiture at the sentencing hearing.

       {¶18} While there is an argument to be made that Mr. Wallace did not understand he

was pleading guilty to the forfeiture specification, or that, by pleading guilty to the forfeiture

specification, he was making “a complete admission of [his] guilt[,]” Crim.R. 11(B)(1), he has

not made any of these arguments on appeal. See App.R. 16(A)(7). Further, while this Court has

on prior occasions sua sponte concluded that, when a defendant pleads no contest to a charge

based upon an understanding by all involved that the plea preserved an issue for appeal that was

not actually preserved, the trial court errs in convicting a defendant of that charge, we believe
                                                 8


those cases are distinguishable from the current matter. See State v. Rondon, 9th Dist. Summit

No. 25447, 2011-Ohio-4938, ¶ 6; State v. Smith, 9th Dist. Lorain No. 08CA009338, 2008-Ohio-

6942, ¶ 9-12; State v. Palm, 9th Dist. Summit No. 22298, 2005-Ohio-1637, ¶ 14-15.

       {¶19} In the cases cited above, involving pleas conditioned on the ability to appeal an

issue, until the time of appeal the defendant would have no reason to question whether the plea

preserved the issue. Here, Mr. Wallace did not condition his plea on the ability to appeal an

issue; instead it appears he may have conditioned it on the ability to have the issue of forfeiture

decided at the time of sentencing. Accordingly, the sentencing hearing presented Mr. Wallace

with an opportunity to raise the issue. Given that there was an opportunity for Mr. Wallace to

address the issue below, we are not inclined to sua sponte address issues related to his plea.

       {¶20} Moreover, at the time of sentencing, when the issue could have been resolved,

Mr. Wallace did not object to the trial court’s failure to discuss the forfeiture specification or

move to withdraw his plea. “It is a well-established rule that an appellate court will not consider

any error which counsel for a party complaining of the trial court’s judgment could have called

but did not call to the trial court’s attention at a time when such error could have been avoided or

corrected by the trial court.” (Quotations omitted.) State v. Rogers, Slip Opinion No. 2015-

Ohio-2459, ¶ 21. Thus, Mr. Wallace has forfeited all but plain error. See id. at ¶ 28. However,

this Court “generally will not undertake a plain-error analysis if a defendant fails to do so.” State

v. Thomas, 9th Dist. Summit No. 27266, 2015-Ohio-2935, ¶ 15. As Mr. Wallace has not argued

plain error on appeal, we decline to create a plain-error argument on his behalf. See id.

       {¶21} Mr. Wallace’s second assignment of error is overruled.

                                                III.

       {¶22} We affirm the judgment of the Lorain County Court of Common Pleas.
                                                 9


                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                     CARLA MOORE
                                                     FOR THE COURT



HENSAL, P. J.
SCHAFER, J.
CONCUR.


APPEARANCES:

KENNETH N. ORTNER, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting
Attorney, for Appellee.
