[Cite as State v. Adams, 2014-Ohio-883.]




                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                           SEVENTH DISTRICT


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


CHARACTER OF PROCEEDINGS:                            Application for Reconsideration.


JUDGMENT:                                            Application for Reconsideration Denied.


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: March 5, 2014
[Cite as State v. Adams, 2014-Ohio-883.]


PER CURIAM:


        ¶{1}    On February 14, 2014, this court found that the state’s breach of a plea
agreement was plain error requiring our recognition. The defendant asked for plea withdrawal
as his remedy.      The state asked that we not recognize plain error urging there was no
prejudice. We pointed out how the United States Supreme Court stated that upon a breach of
a plea, the court is to decide whether the circumstances require plea withdrawal or specific
performance “in which case [the defendant] shall be resentenced by a different judge.”
Santobello v. New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.E.2d 424 (1971) (leaving the
choice to the state courts). Santobello was then remanded by the United States Supreme
Court to the appellate court, which chose the resentencing option and remanded to the trial
court for resentencing by a different judge. See People v. Tindle, 61 N.Y.2d 752, 460 N.E.2d
1354 (1984), citing People v. Santobello, 39 A.D.2d. 654, 331 N.Y.S.2d 776 (1972)
(remanding to a particularly numbered Bronx court for resentencing).
        ¶{2}    In implementing Santobello, we chose the option of remanding for resentencing
before a different judge rather than the plea withdrawal option. We emphasized that our
choice of remedy in no way questioned the fairness of the original sentencing judge. State v.
Adams, 7th Dist. No. 13MA54, ¶ 38, citing United States v. Barnes, 278 F.3d 644 (6th
Cir.2002) (remanding for resentencing before different district judge).       Our decision was
merely the choice of a Santobello option and a remand with instruction; it was not a
disqualification order.
        ¶{3}    The state has filed a timely application to reconsider under App.R. 26(A)(1),
asking only that we eliminate the requirement that resentencing be held before a different
judge, urging that sentencing should proceed before the same judge. In support, the state
relies on the fact that the Chief Justice of the Ohio Supreme Court or her designee has the
exclusive jurisdiction to disqualify a trial judge. See Art. IV, Sec. 5 of Ohio Constitution; R.C.
2701.03; State v. Moore, 7th Dist. No. 05MA178, 2007-Ohio-7215, ¶ 12-14. Although the
state did not discuss Santobello’s perceived remedy limitations in Ohio in their response brief,
the state posits that our choice of remedy is an “obvious error.” See Juhasz v. Costanzo, 7th
Dist. No. 99CA294 (Feb. 7, 2002) (obvious error as reason for reconsideration).
        ¶{4}    However, there are Ohio appellate cases that have remanded for resentencing
with instructions that the resentencing be held before a different judge under Santobello. See,
e.g., State v. Graham, 5th Dist. No. 12CAA110082, 2013-Ohio-600, ¶ 22; State v. Wilson, 2d
Dist. No. 11CA04, 2011-Ohio-6184, ¶ 20; State v. Spence, 2d Dist. No. 09-CA-25, 2009-Ohio-
                                                                                          -2-


6386, ¶ 10. And, even in remanding for the trial court to choose the option, there are Ohio
appellate cases that instructed the trial court to have the case reassigned to another judge for
resentencing if it refuses the option of plea vacation. See, e.g., State v. James, 4th Dist. No.
13CA3371, 2013-Ohio-5322, ¶ 15-16 (trial court must either allow plea withdrawal or reassign
the case for resentencing); State v. Thompson, 4th Dist. No. 03CA766, 2004-Ohio-2413, ¶ 17;
State v. Lewis, 3d Dist. No. 1-02-10, 2002-Ohio-3950, ¶ 23. And, the remedy of remanding for
resentencing with instructions to reassign has also been utilized in a case not involving a
Santobello choice of remedy but one involving bias. See Columbus v. Hayes, 68 Ohio App.3d
184, 587 N.E.2d 939 (10th Dist.1990), cited in In re Disqualification of Floyd, 135 Ohio St.3d
1249, 989 N.E.2d 10, 2012-Ohio-6336, ¶ 10 (with no suggestion that Hayes was improper).
       ¶{5}   Thus, the alleged error is less than obvious. Rather, the state is disagreeing
with our legal conclusion. See Victory White Metal Co. v. N.P. Motel Syst., 7th Dist. No.
04MA245, 2005-Ohio-3828, ¶ 2; Hampton v. Ahmed, 7th Dist. No. 02BE66, 2005-Ohio-1766, ¶
16 (reconsideration motions are rarely considered when the movant simply disagrees with the
logic used and conclusions reached by an appellate court). We note that under the state’s
position, we would essentially have to remand for resentencing with a statement that the
defendant could ask the trial court to recuse under Santobello and file an affidavit of
disqualification if the court refuses. However, the defendant here wanted plea vacation and
may not file these requests, which would leave our choice of remedy without effect as we may
have permitted plea withdrawal in the absence of reassignment. This issue is best left for the
Ohio Supreme Court in an appeal by the state here. Reconsideration is denied.



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