[Cite as State v. Adams, 2014-Ohio-724.]

                           STATE OF OHIO, MAHONING COUNTY

                                  IN THE COURT OF APPEALS

                                       SEVENTH DISTRICT


STATE OF OHIO,                               )
                                             )    CASE NO.    13 MA 54
        PLAINTIFF-APPELLEE,                  )
                                             )
VS.                                          )    OPINION
                                             )
LAMAR ADAMS,                                 )
                                             )
        DEFENDANT-APPELLANT.                 )


CHARACTER OF PROCEEDINGS:                         Criminal Appeal from Common Pleas
                                                  Court, Case No. 11CR952.


JUDGMENT:                                         Reversed and Remanded.


APPEARANCES:
For Plaintiff-Appellee:                           Attorney Paul Gains
                                                  Prosecuting Attorney
                                                  Attorney Ralph Rivera
                                                  Assistant Prosecuting Attorney
                                                  21 West Boardman Street, 6th Floor
                                                  Youngstown, Ohio 44503

For Defendant-Appellant:                          Attorney Joshua Hiznay
                                                  1040 South Commons Place, Suite 202
                                                  Youngstown, Ohio 44514


JUDGES:
Hon. Joseph J. Vukovich
Hon. Cheryl L. Waite
Hon. Mary DeGenaro


                                                  Dated: February 14, 2014
[Cite as State v. Adams, 2014-Ohio-724.]
VUKOVICH, J.


        {¶1}    Defendant-appellant Lamar Adams appeals after being sentenced by
the Mahoning County Common Pleas Court to six years in prison for felonious
assault. He asks that we vacate his plea because the assistant prosecutor breached
the plea agreement by asking for a maximum sentence of eight years after the state
had specifically agreed in writing and on the record at the plea hearing to stand silent
and make no recommendation at sentencing. The state points out that the defense
entered no objection to the state’s recommendation at sentencing and urges that the
breach did not constitute plain error.
        {¶2}    We hereby recognize plain error in the breach of the plea agreement by
the state. However, we conclude that plea withdrawal is not required here. This
case is reversed and remanded for a new sentencing hearing before a different trial
judge where the state shall abide by its agreement.
                                   STATEMENT OF THE CASE
        {¶3}    In August of 2011, appellant hit his girlfriend in the face with a bottle
during an argument while she was asking him to move out. Appellant was charged
with felonious assault for knowingly causing serious physical harm to another in
violation of R.C. 2903.11(A), a second degree felony.          A mental examiner was
appointed as appellant’s attorney considered whether a defense could be presented
based upon appellant’s diagnosed post-traumatic stress disorder, for which he
received SSI-disability. This condition resulted from appellant witnessing the suicide
of a person who lived with him.
        {¶4}    On October 22, 2012, appellant agreed to enter an Alford plea to the
charge. The written plea shows that the state agreed to make “no recommendation”
and to “stand silent.” At the plea hearing, the assistant prosecutor explained that the
victim would be speaking at sentencing but: “The state would not be saying anything
-- [we] will remain silent at the time of sentencing.” (Plea Tr. 2). The state also asked
that appellant be permitted to remain out on bond pending sentencing.
        {¶5}    Sentencing was originally set for December 18, 2012. The defense
asked for a continuance as appellant’s counselor was unavailable to testify on that
                                                                                    -2-

date, and sentencing was reset for February 4, 2013. For some undocketed reason,
sentencing was thereafter apparently reset for March 21, 2013.             Sentencing
proceeded on that date, four months after the plea hearing, where the state was
represented by a different assistant prosecutor.
      {¶6}   The assistant prosecutor began by asking the court to follow the
recommendation in the PSI.        (The PSI states merely that appellant should be
sentenced to prison for a period deemed appropriate by the court.)      He pointed out
that the case was worked by a different prosecutor and admitted that he was not
familiar with the case. He stated that he did review the victim’s statement and the
police report.   (Sent. Tr. 2).   He then expressed that the victim’s life has been
changed in a terrible way by appellant hitting her with the bottle and causing terrible
injuries to her face from which she still suffers.     (Sent. Tr. 3).   The assistant
prosecutor acknowledged that the defendant’s issues outlined in the PSI may have
contributed to the offense but urged that punishment is not the only goal of
sentencing as the victim and public need protected. He then concluded by asking
the court to impose the maximum sentence of eight years in prison. (Sent. Tr. 3).
      {¶7}   The court then heard from the victim. Her injuries required more than
100 stitches, and future surgery was recommended. She had to leave college due to
the injuries. (Sent. Tr. 4). She disclosed that she and her children are still afraid.
(Sent. Tr. 5). She required counseling due to the emotional difficulties the attack
caused. She still has severe headaches and daily pain in her face requiring her to
take medication.
      {¶8}   The victim explained that she received a five-year protection order
against appellant but feared that he may violate it upon release.          The victim
professed that when appellant was released on bond, she began received harassing
Facebook comments from his family, which she suggested may have actually been
from him. (Sent. Tr. 6). She opined that appellant has not expressed remorse or
taken responsibility for his actions. (Sent. Tr. 6-7). She concluded: “I am hoping Mr.
Adams gets some jail time and long probation time when he gets out.” (Sent. Tr. 7).
                                                                                     -3-

       {¶9}   Defense counsel then emphasized that appellant’s criminal history is
fairly minimal. The only prior felony charge was successfully disposed of through
drug court in 2001. Counsel mentioned that appellant has led a law-abiding life since
then (with the exception of a receiving stolen property offense in 2007 where he was
given a ninety-day suspended sentence). (Sent. Tr. 8).          It was explained that
appellant witnessed his friend’s suicide in 2009 and has since suffered depression
and PTSD; he also experienced alcohol issues from self-medicating for the mental
health issues. (Sent. Tr. 8-9). Counsel explained that appellant and the victim had a
good relationship that was ending on the day of the incident and that appellant’s
PTSD contributed to his excessive reaction. (Sent. Tr. 9-10).
       {¶10} Defense counsel noted that appellant’s family helped him bond out in
February 2012, after he spent six months in jail on this offense. In the year since,
appellant committed no new offenses, appeared for court, attended AA classes,
visited his counselor, and completed some community college courses. Counsel
opined that if appellant is permitted to return home to his family, he would stay out of
trouble. (Sent. Tr. 11).
       {¶11} Appellant then professed that the six months in jail changed his life as it
forced him to stop drinking and living in denial.      He said that he had a good
relationship with the victim prior to the incident and that he “snapped,” alluding to
alcohol and PTSD issues. (Sent. Tr. 12). Appellant explained that he goes to his
meetings, completed anger management, and goes to school. (Sent. Tr. 13).
       {¶12} The trial court then sentenced appellant to six years in prison.
Appellant filed a timely notice of appeal.      Appellant’s sole assignment of error
provides: “The State of Ohio breached the parties’ plea agreement by failing to stand
silent at sentencing and therefore Appellant Adams’ plea must be withdrawn.”
                                    ARGUMENTS
       {¶13} Appellant urges that upon breach of the promise in the contractual plea
agreement, the defendant is entitled to rescission or specific performance. Appellant,
who is represented by the same attorney that represented him below, recognizes that
he failed to object to the assistant prosecutor’s statement at sentencing and has thus
                                                                                    -4-

waived all but plain error, citing State v. Hansen, 7th Dist. No. 11MA63, 2012-Ohio-
4574, ¶ 15.
       {¶14} He urges that the state’s agreeing to stand silent and make no
recommendation but then asking for a maximum sentence of eight years and making
statements to justify a maximum sentence is an obvious error which is outcome
determinative as the state’s recommendation is a strong influence on the court and is
a major plea motivator for this reason. He notes that the trial court stated that it
considered the oral statements in making its decision, which would include the
assistant prosecutor’s recommendation and statements made in breach of the plea
agreement.
       {¶15} Initially, the state posits that the determination of whether a plea
agreement was breached is within the trial court’s discretion, citing State v. Payton,
6th Dist. No. E-09-070, E-09-071, 2010-Ohio-5178, ¶ 11 and the cases cited therein.
However, these cases dealt with a claim that the agreement was not breached due to
some action or inaction by the defendant.         Here, the agreement was clearly
breached. Next, the state contends that the defendant failed to object at sentencing
and thus waived all but plain error. As aforementioned, appellant admitted that plain
error was the proper standard of review.
       {¶16} Lastly, the state contends that the plain error test is not satisfied here
because appellant cannot show that the outcome clearly would have been different if
not for the error.    The state notes that the trial court is not bound by its
recommendation and urges that there is no indication that the court was influenced
by the state’s recommendation of the maximum. The state also points out that our
plain error analysis is a discretionary doctrine which may, but need not, be employed
if warranted.
                                           LAW
       {¶17} A plea agreement is an essential part of the criminal justice system.
State v. Vari, 7th Dist. No. 07MA142, 2010-Ohio-1300, ¶ 19, citing Santobello v. New
York, 404 U.S. 257, 261, 92 S.Ct. 495, 30 L.Ed. 427 (1971). A defendant has a
                                                                                      -5-

contractual right to enforcement of the prosecutor’s obligations under the plea
agreement after the plea has been accepted by the court. See id. at ¶ 25.
       {¶18} In Santobello, the defendant was charged with two felonies, he pled
guilty to a lesser included offense with a maximum sentence of one year, and the
state agreed to make no recommendation as to the sentence. Santobello, 404 U.S.
at 258. Sentencing did not take place until more than a year later, where the trial
judge, the assistant prosecutor, and the defense counsel were all different than those
present at the plea. Id. at 258-259.
       {¶19} The new prosecutor asked for a maximum sentence of one year in
prison and made statements in support. Id. at 259. Defense counsel objected urging
that the state had agreed to make no recommendation. Id. The new prosecutor
urged that there was no such promise (but the state did not thereafter maintain this
argument). Id. The trial judge stated that he was not at all influenced by what the
prosecutor recommended and concluded that there was no need to adjourn the
sentencing. Id. The judge related that the defendant had a long and serious criminal
history and noted that the PSI stated that he was a professional criminal. Id. at 259-
260. The judge then sentenced the defendant to the maximum sentence of one year
in prison. Id. at 260.
       {¶20} The United States Supreme Court found that reversal was required,
stating: “[W]hen a plea rests in any significant degree on a promise or agreement of
the prosecutor, so that it can be said to be part of the inducement or consideration,
such promise must be fulfilled.” Id. at 262. The Court pointed out that the defendant
bargained for a promise from the state that it would make no recommendation as to
the sentence. Id. “The staff lawyers in a prosecutor's office have the burden of
‘letting the left hand know what the right hand is doing’ or has done. That the breach
of agreement was inadvertent does not lessen its impact.” Id.
       {¶21} The United States Supreme Court acknowledged that the trial judge
stated that the prosecutor's recommendation did not influence him, and the Court
expressed that it had no reason to doubt that. Id. at 261. Still, the Court concluded:
“the interests of justice and appropriate recognition of the duties of the prosecution in
                                                                                        -6-

relation to promises made in the negotiation of pleas of guilty will be best served by
remanding the case to the state courts for further consideration.” Id. at 261-262. The
state court was ordered to “decide whether the circumstances of this case require
only that there be specific performance of the agreement on the plea, in which case
petitioner should be resentenced by a different judge, or whether, in the view of the
state court, the circumstances require granting the relief sought by petitioner, i.e., the
opportunity to withdraw his plea of guilty.” Id. at 262.
       {¶22} One justice concurred to add that there should be considerable weight
given to the defendant’s choice of vacation or resentencing when the state court
makes its decision but recognized that each case is different. Id. at 267 (Douglas, J.,
concurring in judgment and opinion and writing separately). Three other justices
concurred in the reversal, but dissented to the decision to leave the optional
remedies on remand, positing that vacation of the plea as requested was required
because the defendant requested it prior to the trial court’s entry of the sentence. Id.
at 267-269 (Marshall, J., concurring in part and dissenting in part).
       {¶23} In Hansen, this court stated that where a defendant fails to object at
sentencing to the state’s recommendation, the appellate court proceeds under a plain
error review. Hansen, 7th Dist. No. 11MA63 at ¶ 15, citing Puckett v. United States,
526 U.S. 129, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009).                 See also State v.
Montgomery, 4th Dist. No. 07CA858, 2008-Ohio-4753, ¶ 17 (finding no plain error
where state forgot to recommend concurrent sentences but court gave defendant
community control and defendant later violated probation so state was no longer
obligated); State v. Sideris, 4th Dist. No. 04CA37, 2005-Ohio-37, ¶38 (finding no
plain error because there was no evidence in the record that the prosecutor agreed
to recommend a certain sentence); United States v. Barnes, 278 F.3d 644 (6th
Cir.2002) (finding plain error where government agreed to recommend the low end of
the   guidelines,   but   at   sentencing   the   government    did     not   mention   the
recommendation)
       {¶24} Pursuant to Crim.R. 52(B), “Plain errors or defects affecting substantial
rights may be noticed although they were not brought to the attention of the court.”
                                                                                    -7-

Plain error is a discretionary doctrine to be used with the utmost of care by the
appellate court only in exceptional circumstances in order to avoid a manifest
miscarriage of justice.   State v. Noling, 98 Ohio St.3d 44, 2002-Ohio-7044, 781
N.E.2d 88, ¶ 62. A plain error is an obvious error, and in order to have affected
substantial rights, the error must have affected the outcome of the proceeding. Id.
See also State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-160, 840 N.E.2d 1032, ¶
59 (only if outcome clearly would have been different).
       {¶25} In Hansen, we thus framed the question as whether the defendant’s
sentence would have been different absent the breach.          Hansen, 7th Dist. No.
11MA63 at ¶ 15. We then concluded that there was no error, let alone plain error,
because the state did not breach its agreement to recommend a five-year sentence.
Id. at ¶ 15, 33 (at sentencing, the state recommended five years and then recapped
by asking for “a sentence no less than the five years recommended by the State”).
We alternatively stated that even if there were some error, the defendant failed to
show how his eight-year sentence would have been different absent the state’s
comment. Id. at ¶ 18 (noting that the court had discretion to sentence up to 18 years
for one first-degree and one second-degree felony and that the court was not bound
by the state’s recommendation).
       {¶26} In McGinnis, the Third District found no plain error where the trial court
sentenced the defendant to consecutive terms after the prosecution failed to
recommend concurrent sentences at the sentencing hearing, which it had agreed to
recommend in the plea agreement and at the plea hearing. State v. McGinnis, 3d
Dist. No. 15-08-07, 2008-Ohio-5825. Notably, it was not a case where the state, for
instance, agreed to recommend concurrent sentences but then a prosecutor stands
up at sentencing and recommends consecutive sentences with negative statements
in support.
       {¶27} In Puckett, the government backed off its reduction agreement at
sentencing and the defendant pointed to the prior agreement but did not object to the
state failing to stand by it. Importantly, the trial judge stated at sentencing that a
reduction for acceptance of responsibility is “so rare [as] to be unknown” where a
                                                                                        -8-

defendant continues to engage in crime pending sentencing, and the PSI
recommended no reduction. (Thus, new acts occurred since the plea.) The Circuit
Court applied the plain error doctrine and found the breach was not outcome-
determinative due to the trial judge’s statements.
       {¶28} The United States Supreme Court heard the case to settle the question
of whether the plain error test applies in such cases. Puckett, 526 U.S. at 133. The
Court decided that plain error review was appropriate. Notably, that Court adds to its
plain error test that the error must seriously affect the fairness, integrity or public
reputation of judicial proceedings (a prong additional to that of Ohio’s plain error test).
Id. at 135. The Court suggested that the error was not outcome determinative and
opined that a sentencing reduction under the facts of that case would have been
“ludicrous” so that the final prong of their plain error standard would not have been
met either. Id. at 142-143.
                                       ANALYSIS
       {¶29} The prosecution’s statements here were not borderline or ambiguous.
Nor was this a mere failure to speak. In contrast to our Hansen case, there is
absolutely no question here that the state breached its agreement. The agreement
was not just contained in an oral statement at the plea hearing but was also included
in the written agreement within the record. The substitute assistant prosecutor read
the victim impact statement and the police reports; he should have first read the
written plea to ascertain his duties based upon what the state promised.
       {¶30} And, the breach here was not minor or technical. The state went from
agreeing to stand silent and make no sentencing recommendation to insisting that a
maximum sentence of eight years was required in order to protect the victim and the
public and provided facts in support of its new recommendation.
       {¶31} We must contrast appellant’s argument (that the prosecution’s request
for the maximum was outcome-determinative) to the Hansen defendant’s situation
where the state set forth its recommended sentence of five years and then happened
to thereafter use the language, “no less than five years.” In an argument base on
sentences, Hansen contested the propriety of the language used in the prosecutor’s
                                                                                        -9-

concluding statement. In any event, the prosecutor in Hansen had informed the trial
court at sentencing that it agreed to recommend five years and reported that it stood
by that recommendation.        Here, there was no indication to the trial court at
sentencing that the actual agreed-upon recommendation was not a maximum
sentence but rather that the state had previously bound itself to take no position and
to stand silent at appellant’s sentencing.
       {¶32} In addition, there are no statements by the trial court which could dispel
concerns as there were in the United States Supreme Court’s Puckett case. See
Puckett, 56 U.S. 129. There, the state did not follow through in recommending a
reduction in sentence, but the trial judge specifically stated that a reduction after a
defendant continues to engage in crime is “so rare [as] to be unknown.” The trial
court was presented with the state’s refusal to follow through with its promised
recommendation and that the refusal was based on new behavior by the defendant
that had occurred after the state agreed to recommend the reduction. Plus, the PSI
in that case urged that a reduction was not warranted.
       {¶33} Consequently, the state’s failure to recommend a reduction was easier
to categorize as not outcome-determinative in that case. Notably, the Court opined a
reduction would have been “ludicrous” in that case, whereas here, had the state
fulfilled its promise to stand silent, a sentence of less than six years would not be
considered ludicrous based on this record. Moreover, the omission of an agreed
upon recommendation is less outcome-determinative in its nature than outright
advocation for a maximum sentence when the state was bound to stand silent.
       {¶34} Likewise, the difference between standing silent and pressing for a
maximum sentence of eight years is great. As appellant points out, it is difficult to
affirmatively show that the sentence would have been different had the prosecutor
fulfilled the state’s promise to stand silent. Yet, it is also impossible to say, under the
facts and circumstances of this case, that the state’s pressing for a maximum eight-
year sentence did not contribute to the trial court decision to impose six years.
       {¶35} We cannot agree that the trial court’s decision to diverge downward
from the state’s recommendation shows that the state’s recommendation had no
                                                                                  -10-

effect on the length of the sentence. Unlike many other cases, the trial court did not
have a career criminal before it, and the victim did not beseech the court to impose a
long prison sentence. Rather, the victim asked for “some jail time” and then for a
long term of probation. Appellant did not have a recent criminal history, nor was his
criminal record lengthy (with the exception of loud music offenses). The original
prosecutor even pointed out at the plea hearing that appellant’s history contains no
offense of a similar nature. (Plea Tr. 10).
       {¶36} The state’s recommendation is a well-recognized tool in the plea
bargaining process, which is an essential component of the criminal justice system.
The state’s promise to refrain from insisting upon a lengthy sentence is a favorable
factor in a decision to enter a plea. And, the state’s recommendation of a maximum
sentence does carry great weight. This seems especially true in a case involving a
plea to the original charge, where the trial court would be left to ponder why the
defendant agreed to plead as charged when the state is still asking for a maximum
sentence. Due to the circumstances of this case, this is matter where we should
recognize plain error in the state’s breach of the plea agreement.
       {¶37} Appellant asks that we vacate his plea. However, we also have the
option of imposing specific performance in the form of a remand for resentencing in
front of a different judge where the state will stand by its agreement. See Santobello,
404 U.S. 257. Notably, Santobello involved a request to vacate the plea made to the
trial judge, prior to the imposition of sentence, making the plea vacation remedy more
palatable in that case.   (And that Court still did not require vacation but left the
remedy choice to the state courts).
       {¶38} In Barnes, the United States Court of Appeals for the Sixth Circuit found
plain error where the government did not follow through with its agreement to
recommend sentencing at the low end of the guidelines. That court chose to remand
for resentencing in front of a different district court judge. Barnes 278 F.3d 644, 649
citing United States v. Mondragon, 228 F.3d 978, 981 (9th Cir.2000). As the Barnes
Court noted, the choice of this remedy in no way questions the fairness of the original
sentencing judge. Rather, it merely represents the most appropriate choice from the
                                                                                -11-

two options presented by the United States Supreme Court: plea vacation or new
sentencing hearing before a different judge.
      {¶39} For the foregoing reasons, the judgment of the trial court is reversed
and the case is remanded for a new sentencing hearing before a different trial judge
where the state shall abide by its agreement.



Waite, J., concurs.
DeGenaro, P.J., concurs.
