[Cite as State v. Perez, 2018-Ohio-2724.]



                 Court of Appeals of Ohio
                                    EIGHTH APPELLATE DISTRICT
                                       COUNTY OF CUYAHOGA


                                   JOURNAL ENTRY AND OPINION
                                           No. 104888



                                            STATE OF OHIO

                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                      HECTOR MANUEL PEREZ

                                                       DEFENDANT-APPELLANT




                                            JUDGMENT:
                                        REVERSED; REMANDED



                                      Criminal Appeal from the
                               Cuyahoga County Court of Common Pleas
                                     Case No. CR-16-604088-A

        BEFORE: E.A. Gallagher, A.J., Kilbane, J., and McCormack, J.

        RELEASED AND JOURNALIZED: July 12, 2018
ATTORNEY FOR APPELLANT

Jonathan N. Garver
The Brownhoist Building
4403 St. Clair Avenue
Cleveland, Ohio 44103

Also Listed:

Hector Manuel Perez
Inmate No. A684275
Richland Correctional Institution
P.O. Box 8107
Mansfield, Ohio 44103


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Brandon Piteo
Assistant Prosecuting Attorney
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN A. GALLAGHER, A.J.:

       {¶1}     Defendant-appellant Hector Manuel Perez appeals his convictions for drug

trafficking and possessing criminal tools in the Cuyahoga County Court of Common Pleas. For

the following reasons, we reverse and remand.

       Facts and Procedural Background

       {¶2} In March 2016, Perez was charged with drug trafficking, drug possession and

possessing criminal tools. The case proceeded to a plea hearing where the state set forth the

plea as follows: Count 1 in the indictment, a first-degree felony charge of drug trafficking in

violation of R.C. 2925.03(A)(2), would be amended to delete the schoolyard specification and

reduce the amount of heroin doses involved such that the offense would be a felony of the third

degree. The state would nolle the drug possession count, and Perez would plead guilty to the

possessing criminal tools in Count 3 as charged in the indictment. Perez’s attorney stated that

the parties agreed that the trafficking offense would be nonprobationable. Perez also agreed to

forfeit $105.

       {¶3} The trial court conducted a Crim.R. 11 colloquy and explained that the plea on

Count 1 would be to a felony of the third degree, “punishable by a possible term of incarceration

of 9, 12, 18, 24, 30, or 36 months in prison * * *.” Perez indicated that he understood the

nature of the charges and possible penalties.      Perez then entered a plea of guilty to drug

trafficking as amended in Count 1 and possession of criminal tools as charged in Count 3. The

trial court then asked Perez’s counsel if he believed Perez’s pleas were entered voluntarily,

knowingly and intelligently. Perez’s counsel indicated that he did so believe and that the trial

court had satisfied all the requirements of Crim.R. 11.

       {¶4} At this point the following exchange occurred:
       Defense Counsel:       Judge, there is one issue on penalties as it relates to Mr.
                                     Perez that I’m not sure we addressed.

       The Court:                    What is it?

       Defense Counsel:       As part of the plea on the felony 3, it will be a high-tier
                                     felony 3.

       The Court:                    You’re right. We did not address that. I was told

                                     low tier. I would like to see counsel up here a

                                     moment.

       {¶5} The trial court then conducted a sidebar before stating, “[h]ave a seat. I’m getting

more information on this case. We will come back on this case.” The court then took a recess

before returning to the record:

       The Court: Let’s go back on the record now in case 604088, State of Ohio vs.
       Manuel Hector Perez. The Court has considered further information on this case
       and has decided that in the performance of its duties, this Court could not accept
       the plea as previously conveyed to the Court. I have discussed that with the
       prosecutor and the defense attorney together. I’ve made my reasons known to
       counsel and then counsel have met and decided on an arrangement that would be
       acceptable to the Court, which is still an amendment to this three-count
       indictment. And the Court has been advised that it is acceptable to both the state
       and the defense.

       {¶6} The state then set forth the new plea agreement whereby Perez would plead guilty to

a second-degree felony charge of drug trafficking in Count 1. The other terms of the plea

agreement were unchanged: count two would be nolled and Perez would plead guilty to

possession of criminal tools in Count 3.   The trial court then conducted a second Crim.R. 11

colloquy, and Perez plead guilty to a second-degree drug trafficking charge as amended in Count

1 and possession of criminal tools. The trial court then accepted Perez’s guilty pleas and found

him guilty.
        {¶7} At sentencing the trial court imposed a prison term of six years on the drug

trafficking charge in Count 1 and a mandatory fine of $7,500. On the possession of criminal

tools count the trial court imposed a six-month prison term.           The court ordered the two

sentences to be served concurrently.

        Law and Analysis

        {¶8} Perez argues that his trial counsel provided ineffective assistance of counsel at his

plea hearing that the trial court abused its discretion in rejecting his original plea, that his

subsequent plea was not made voluntarily, that his subsequent plea violated double jeopardy, that

the trial court violated Crim.R. 11 by failing to advise him that no one could comment on his

failure to testify at trial or that he had a right to a bench trial. We find Perez’s second

assignment of error to be dispositive of this appeal and address it out of order.

        I. The Trial Court’s Rejection of the Original Plea

        {¶9} In his second assignment of error Perez argues that the trial court abused its

discretion in rejecting the original plea set forth on the record.

        {¶10} It is well settled that a trial court enjoys wide discretion in deciding whether to

accept or reject a negotiated plea agreement. State v. Caldwell, 2013-Ohio-5017, 1 N.E.3d 858, ¶

10 (8th Dist.), citing Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.E.2d 427

(1971); Akron v. Ragsdale, 61 Ohio App.2d 107, 109, 399 N.E.2d 119 (9th Dist.1978). Indeed, a

defendant has no absolute right to have a guilty plea accepted. Santobello at 262; Lafler v.

Cooper, 566 U.S. 156, 180, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012).

        {¶11} However, the court’s discretion is not without limits. For example, a trial court

abuses its discretion when it rejects a plea agreement by relying on a blanket policy rather than

considering the facts and circumstances of the particular case. State v. Fitzgerald, 188 Ohio
App.3d 701, 2010-Ohio-3721, 936 N.E.2d 585, ¶ 11 (8th Dist.). A court’s discretion may be

exercised erroneously if the court fails to give reasons for its decisions and its reasons are not

apparent from the record. Caldwell at ¶ 12. “A decision rejecting a plea bargain should be

accompanied by the trial court’s reasons therefor, absent facts and circumstances otherwise

appearing which permit an evaluation of the decision.” Ragsdale at paragraph two of the

syllabus.

       {¶12} In this instance, we find that the trial court abused its discretion in rejecting the

plea set forth on the record without explaining its reasons for rejecting the plea. On appeal, the

state now asserts that the parties had an out-of-court agreement to amend Count 1 to a “high-tier”

third-degree felony.      The state explains that Perez’s trial counsel made reference to the

“high-tier” nature of the agreement to correct the misstatement of the plea agreement by the

prosecutor and prevent a falsity being perpetrated before the trial court. The parties do not

dispute that a charge of trafficking in violation of R.C. 2925.03(A)(2) does not qualify for

treatment as a “high tier” third-degree felony under R.C. 2929.14(a)(3)(a) and, therefore, any

such agreement would have been a nullity. However, none of these alleged contextual facts are

in the record before us. The state would have us extrapolate from a single sentence that the

parties had an out-of-court agreement other than that stated in the record: that at some point

during the trial court’s recess, the parties discovered that the agreement could not be enforced

under R.C. 2929.14(A)(3)(a) and that the trial court rejected the stated plea to the third-degree

felony for this reason. Without any substantiation of these claims in the record, we are unable

to accept them as true.

       {¶13} The reason the record is bereft of details is because all the relevant discussions

amongst the trial court and the parties regarding the plea occurred off the record during a sidebar
and a recess. This procedure might have been acceptable had the trial court returned to the

record and provided a detailed accounting of its reasons for rejecting the plea as previously

stated.    Instead, the trial court provided no explanation for its rejection of the plea. Therefore,

we find that the trial court abused its discretion by failing to explain its rejection of Perez’s plea

under the standard as set for Ragsdale and Caldwell.

          {¶14} In considering the appropriate remedy, we find that it was not appropriate for Perez

to be prejudiced by the state’s inaction in this instance. The state set forth the plea on the record

as a plea to a third-degree felony and made no mention of it qualifying for “high-tier” treatment

under R.C. 2929.14(A)(3)(a). When the trial court, as part of its Crim.R. 11 colloquy, set

forth the potential prison terms as those of an ordinary third-degree felony rather than a

“high-tier” third-degree felony the state remained silent and failed to object.       When the trial

court prompted Perez to enter his plea to the agreement as set forth on the record the state, again,

remained silent as Perez plead guilty. When defense counsel raised his concern regarding the

“high-tier” issue, the state failed to dispute the trial court’s statement that it had been informed

that the plea was a “low tier” third-degree felony. Further, the state did not make a record of the

now alleged out-of-court agreement or explain its earlier inaction during the plea.      Finally, the

trial court erred in conducting the discussions pertaining to this matter off the record and failing

to set forth its reasons for rejecting Perez’s plea. Again, the state elected not to make a record

of the matter or explain why the plea that it had set forth, which the trial court had explained

without objection and that Perez had accepted, was unacceptable.

          {¶15} The state’s action and, more importantly, inaction at the plea cannot be ignored

even if we were to accept its contention on appeal that a separate agreement existed for a plea to

a “high-tier” third-degree felony.     The complete lack of a record as to such an agreement
precludes analysis of the matter on our part. Instead, what the record does reflect is that the

state presented Perez with a plea offer of a third-degree felony at the plea hearing, and Perez

accepted the plea offer.

        {¶16} We hold that the appropriate remedy under these unique facts is to vacate Perez’s

convictions contingent upon his agreement to enter a plea according to the terms of the original

plea as set forth by the state and the trial court on the record. See, e.g., State v. Caldwell,

2013-Ohio-5017, 1 N.E.3d 858, (8th Dist.), (reversing the trial court’s decision to reject a plea

and vacating the appellant’s conviction contingent upon his agreement to enter a plea according

to the terms of the rejected plea); Williams v. Maryland, 326 Md. 367, 605 A.2d 103, 111 (1992)

(remanding the matter for the petitioner to enter a guilty plea pursuant to the plea offer with

instructions that the judge reinstate the original convictions and sentence if the petitioner

declined to enter a guilty plea); United States v. Hernandez-Limon, 134 F.3d 745 (9th Cir.1994)

(reversing district court’s refusal to take a guilty plea and remanding with instructions to allow

the defendant to enter a guilty plea pursuant to a plea agreement or else the convictions would be

reinstated).

        {¶17} We instruct the trial court to hold a hearing at which Perez shall be offered the

opportunity to knowingly, intelligently, and voluntarily agree to the original plea. Upon

agreement, the trial court shall vacate the convictions and, following compliance with Crim.R.

11, Perez may enter his plea. If Perez enters a guilty plea, the court shall proceed directly to

sentencing. Should Perez fail to enter a plea of guilty pursuant to the plea agreement, the trial

court shall proceed with the matter according to law.

        {¶18} Appellant’s second assignment of error is sustained and, as such, we find

appellant’s remaining assignments of error to be moot.
       {¶19} The judgment of the trial court is reversed.             Case remanded for further

proceedings consistent with this opinion.

       It is ordered that appellant recover from appellee the costs herein taxed.

       The court finds that 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.



_____________________________________________________
EILEEN A. GALLAGHER, ADMINISTRATIVE JUDGE

MARY EILEEN KILBANE, J., CONCURS;
TIM McCORMACK, J., DISSENTS (WITH SEPARATE OPINION ATTACHED)
TIM McCORMACK, J., DISSENTING:

       {¶20} I would affirm the trial court’s decision.

       {¶21} Trial counsel effectively represented his client by performing his duties ethically in

that trial counsel advised the court of the accurate, applicable charge and penalty.

       {¶22} The trial court has wide discretion to accept or reject a plea, as in this case, as long

as the court’s reason is stated. Here the transcript contains sufficient explanation for the

procedure followed and the court’s reasoning.

       {¶23} Respectfully, I dissent.
