[Cite as State v. Allen, 2013-Ohio-1656.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 98394



                                       STATE OF OHIO
                                                    PLAINTIFF-APPELLEE

                                              vs.

                                  SHARONIKA ALLEN
                                                    DEFENDANT-APPELLANT




                                    JUDGMENT:
                               VACATED AND REMANDED


                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-548831

         BEFORE: E.A. Gallagher, J., Jones, P.J., and Kilbane, J.

         RELEASED AND JOURNALIZED:                  April 25, 2013
ATTORNEYS FOR APPELLANT

Robert L. Tobik
State Public Defender

By: Peter B. Galyardt
Assistant State Public Defender
250 East Broad Street
Suite 1400
Columbus, OH 43215


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

By: Mary H. McGrath
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
EILEEN A. GALLAGHER, J.:

       {¶1} Appellant, Sharonika Allen (“Allen”), appeals from her conviction and

sentence in the Cuyahoga County Court of Common Pleas. Allen argues the trial court

erred when it rejected the proffered plea agreement and when it imposed restitution to a

third-party insurer.   For the following reasons, we reverse the decision of the trial court

and remand for proceedings consistent with this opinion.

       {¶2} On August 29, 2010, Ajoy Gill received a call from her brother, Floy Gill,

asking her to pick him up from the home of his girlfriend, Sharonika Allen. Ajoy

arrived at Allen’s apartment building and heard Floy and Allen arguing and saw that

Floy was having difficulty leaving Allen’s residence. Ajoy called police, exited her

vehicle, and approached Floy and Allen.

       {¶3} Ajoy testified that although she and Allen did not know each other, they

got into a verbal altercation that became physical.     Ajoy admitted that she and Allen

began throwing punches at each other and stopped only when police arrived.            Ajoy

stated that the police separated her and Allen and then instructed Ajoy and Floy to leave.

 Ajoy testified that she drove her brother to her house in the area of West 52nd and

Clark Avenue in Cleveland. Ajoy stated that when she and Floy got out of her vehicle,

they saw Allen approaching in her car.      Allen exited her vehicle and began yelling at

Ajoy who immediately called the police. Ajoy testified that she was on the phone with
the police department when Allen jumped into her car and drove it up onto the lawn.

Ajoy stated that Allen drove her car straight towards her, hitting her, forcing her onto the

car and crashing both herself and the vehicle into the front porch of Ajoy’s house.

         {¶4} Police responded and photographed the damage to Ajoy’s residence and

transported Ajoy to the hospital for treatment.     The officers placed Allen under arrest.



         {¶5} On April 12, 2011, the Cuyahoga County Grand Jury indicted Allen

charging her with three counts of felonious assault and one count of vandalism.        Prior

to the start of trial, the state of Ohio offered Allen a plea agreement: the state agreed to

amend Count 1, felonious assault, to attempted felonious assault, a third-degree felony.

In exchange for pleading guilty to the amended charge, the state agreed to dismiss the

remaining three counts.     Allen rejected the state’s offer.   The state renewed its offer

prior to selecting a jury and Allen again rejected the plea agreement.     At that time, the

court warned Allen that “once the jury comes on the floor there is no more plea

negotiation.”    Tr.   8.

         {¶6} The parties selected a jury and, prior to commencement of trial, the state

dismissed the felonious assault as charged in Count 2. Additionally, counsel for Allen

and the state had a discussion on the record outside of the presence of the jury and the

court.    At that time, the state admitted that it possessed recorded 911 calls from the date

of the incident that it was only then able to turn over to the defense after the court

impaneled the jury. After hearing the tapes, Allen indicated her desire to accept the
plea agreement that had been proposed by the state prior to trial.   Because of the unique

circumstances, the state agreed to extend the plea offer to Allen.    Counsel for the state

and Allen informed the court of their agreement but, according to counsel, the court

would “not allow the defendant to change her plea now that a jury has been impaneled.”

Tr. 113.

       {¶7} Allen failed to appear on the second day of trial and the court issued a

capias and a bond forfeiture notice.     The court proceeded with the trial over defense

counsel’s objection. The jury found Allen guilty of felonious assault as charged in

Count 1, not guilty of felonious assault as charged in Count 3 (renumbered to Count 2),

and guilty of vandalism as charged in Count 4 (renumbered Count 3).

       {¶8} On March 30, 2012, Allen was arrested and returned to the court’s custody.

 On April 26, 2012, the court sentenced Allen to two years on Count 1 and six months

on Count 4 (renumbered Count 3) to run concurrent to one another. The court informed

Allen of postrelease control and ordered her to pay $9,641.13 to Mutual Aid Exchange, a

third-party insurer.   Allen appeals, raising three assignments of error.

                                   Assignment of Error I

       The trial court abused its discretion when it rejected the plea agreement.

                                   Assignment of Error II

       The trial court committed plain error when it ordered that restitution be
       paid to a third-party insurer.

                                  Assignment of Error III

       Sharonika D. Allen was deprived of her right to the effective assistance of
       counsel.

       {¶9} In her first assignment of error, Allen takes issue with the trial court’s

adherence to its blanket rule that no plea negotiations would be accepted once it

impaneled a jury. In particular, Allen argues that the extenuating circumstances of not

hearing the 911 recorded calls until after the court impaneled the jury, coupled with the

state’s willingness to keep the plea offer open, demonstrate that the trial court abused its

discretion in failing to allow her to accept the plea agreement.    We agree.

       {¶10}      In State v. Fitzgerald, 188 Ohio App.3d 701, 2010-Ohio-3721, 936

N.E.2d 585 (8th Dist.), and State v. Switzer, 8th Dist. No. 93533, 2010-Ohio-2473, this

court considered similar policies that are at issue herein.   In Switzer, this court held:

       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. Raymond, 10th Dist. No.
       05AP-1043, 2006-Ohio-3259, at P15; State v. Graves (Nov. 19, 1998),
       10th Dist. No. 98AP-272, 1998 Ohio App. LEXIS 5608 (finding an abuse
       of discretion after trial court refused the defendant’s plea based upon its
       blanket policy of not accepting no contest pleas); State v. Hunt (Oct. 22,
       1985), 4th Dist. No. 1536, 1985 Ohio App. LEXIS 8937 (finding abuse of
       discretion when the trial court refused to accept a plea agreement because
       it had a policy of rejecting agreements after jury cards were mailed to
       prospective jurors in a case). See, also, United States v. Miller (C.A.9,
       1983), 722 F.2d 562, 565 (finding categorical rules limiting the type of
       plea bargains a court can accept impermissible).

       In State v. Raymond, supra, the trial court rejected a plea agreement
       reached by the state and the defendant due to its “blanket policy of not
       accepting ‘pleas from people that don’t think they did anything wrong.’”
       Id. at P11. In finding that the trial court abused its discretion in
       employing its overarching policy rather than examining the particular
       circumstances of the case, the Tenth District reasoned the following:

       Under those circumstances, the trial court’s refusal to accept appellant’s
        plea was an abuse of discretion, or more precisely, it was a refusal to
        exercise the court’s discretion. The trial court arbitrarily refused to
        consider the facts and circumstances presented, “but instead relied on a
        fixed policy established at its whim.” State v. Graves (Nov. 19, 1998),
        10th Dist. No. 98AP-272, 1998 Ohio App. LEXIS 5608, * * * quoting
        [State v.] Carter [(1997), 124 Ohio App.3d 423, 428, 706 N.E.2d 409].
        The Graves court held, “[a]lthough the trial court has the discretion to
        refuse to accept a no-contest plea, it must exercise its discretion based on
        the facts and circumstances before it, not on a blanket policy that affects all
        defendants regardless of their circumstances.” Graves, supra, at 10. Id.

        {¶11}     In Switzer, the trial court refused to accept the plea agreement reached by

the state and the appellant based on its policy of not accepting plea agreements on the

day of trial.    This court determined that under those circumstances, a trial court abuses

its discretion when it employs a blanket policy rather than examining the particular facts

and circumstances of the case.     This court reversed the decision of the trial court.

        {¶12}     Additionally, in Fitzgerald, the record demonstrated that defense counsel

informed the trial court of the impending plea agreement immediately after obtaining

discovery.      The trial court determined that the plea was untimely under the terms of the

court’s standing order because a trial date had been established. Id.        Once again, this

court determined that the trial court abused its discretion because it employed a blanket

policy rather than examining the facts and circumstances of the particular case. Id.

        {¶13}     We find Switzer and Fitzgerald to be remarkably similar to the present

case.   Here, the court announced its intention that no plea negotiations would take place

once the jury was impaneled.        The state and defense counsel informed the court that

after hearing the 911 recorded calls, which were provided to Allen for the first time after

the jury was impaneled, the parties wanted to enter into a plea agreement.          The court
refused.   Under these circumstances, like Switzer and Fitzgerald, the trial court abused

its discretion when it adhered to its blanket policy rather than examining the facts and

circumstances of this case.

       {¶14}   The recorded 911 calls constituted significant evidence, which was only

made available to Allen at the start of trial. Prior to that point, Allen did not have

sufficient information to make a knowing and voluntary decision regarding a guilty plea.

 The court’s refusal to consider these facts was an abuse of discretion.

       {¶15}   Allen’s first assignment of error is sustained.

       {¶16}   In her second assignment of error, Allen asserts that the trial court erred

when it ordered her to pay restitution to Mutual Aid Exchange, a third-party insurer.

The state concedes this error.   We agree.

       {¶17}   R.C. 2929.18(A)(1) provides that a trial court may order that a defendant

pay restitution to a victim in the amount of the victim’s economic loss. “If the court

imposes restitution, the court shall order that the restitution be made to the victim in open

court, to the adult probation department that serves the county on behalf of the victim, to

the clerk of courts, or to another agency designated by the court.”    R.C. 2929.18(A)(1).



       {¶18}   In 2004, the General Assembly amended the former version of R.C.

2929.18(A)(1) to remove language that allowed a trial court to order that restitution be

paid to a third party on behalf of the victim.   See State v. Berlinger, 194 Ohio App.3d

145, 2011-Ohio-2223, 954 N.E.2d 1290 (1st Dist.); State v. Johnson, 1st Dist. No.
C-100702, 2011-Ohio-5913. “Given this deletion, the legislature’s intent to disallow

payment to victims’ insurance companies is clear.” Johnson at ¶ 5.          See also State v.

Colon, 185 Ohio App.3d 671, 2010-Ohio-492, 925 N.E.2d 212 (2d Dist.). The state

concedes that the trial court erred when it ordered that restitution be paid to Mutual Aid

Exchange. Allen’s second assignment of error is sustained.

       {¶19}   Our analysis of Allen’s second assignment of error renders her third

assignment of error moot. We previously found error with the trial court’s order of

restitution and, as such, we render this assignment of error moot.

       {¶20}   The judgment of the trial court is reversed and the case is remanded for

proceedings consistent with this opinion.

       It is ordered that appellant recover of said appellee costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the

lower 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, JUDGE

LARRY A. JONES, SR., P.J., and
MARY EILEEN KILBANE, J., CONCUR
