[Cite as State v. Jenkins, 2020-Ohio-1480.]




                           IN THE COURT OF APPEALS OF OHIO
                              FOURTH APPELLATE DISTRICT
                                  LAWRENCE COUNTY

STATE OF OHIO,                 :
                               :
     Plaintiff-Appellee,       :    Case No. 18CA27
                               :
     vs.                       :
                               :    DECISION AND
FREDERICK JENKINS, JR.,        :    JUDGMENT ENTRY
                               :
     Defendant-Appellant.      :
_____________________________________________________________
                          APPEARANCES:

Steven H. Eckstein, Washington Court House, Ohio, for Appellant.

Brigham M. Anderson, Lawrence County Prosecuting Attorney, and Jeffrey M.
Smith, Assistant Prosecuting Attorney, Ironton, Ohio, for Appellee.
_____________________________________________________________

Smith, P.J.

        {¶1} This is an appeal from a Lawrence County Common Pleas Court

judgment of conviction and sentence. Appellant, Frederick Jenkins, Jr., pled guilty

as charged to three felony counts as follows: 1) trafficking in drugs, a fourth-

degree felony in violation of R.C. 2925.03(A)(1)(C)(1)(a); 2) tampering with

evidence, a third-degree felony in violation of R.C. 2921.12(A)(1); and possession

of drugs, a fifth-degree felony in violation of R.C. 2925.11(A)(C)(1)(a). The trial

court sentenced Jenkins to a seventeen-month prison term for trafficking in drugs,
Lawrence App. No. 18CA27                                                                2


to be served consecutively with a thirty-month prison term for tampering with

evidence. The trial court also sentenced Jenkins to an eleven-month prison term

for possession of drugs and ordered that the prison term run concurrently with the

other two prison terms, for a total of forty-seven months. On appeal, Jenkins

contends that the trial court failed to enforce the plea agreement in which the State

was to recommend a two-year sentence but failed to do so. Because we find no

merit in Jenkins’ sole assignment of error, it is overruled. Accordingly, the

judgment of the trial court is affirmed.

                                       FACTS

      {¶2} On August 22, 2018, a secret indictment was filed charging Jenkins

with one count of trafficking in drugs, a fourth-degree felony in violation of R.C.

2925.03(A)(1)(C)(1)(a), one count of tampering with evidence, a third-degree

felony in violation of R.C. 2921.12(A)(1), and one count of possession of drugs, a

fifth-degree felony in violation of R.C. 2925.11(A)(C)(1)(a). Jenkins pled not

guilty to the charges and counsel was appointed for him. Subsequently, on

September 19, 2018, Jenkins completed a proceeding on plea of guilty form and

the trial court held a change of plea hearing. Jenkins pled guilty to all three counts

of the indictment, as charged.

      {¶3} There are no references to any plea negotiations, plea agreements or

recommended sentences in the “proceeding on plea of guilty” form, the change of
Lawrence App. No. 18CA27                                                               3


plea hearing transcript, or the trial court’s subsequent judgment entry that was filed

on September 24, 2018, to document Jenkins’ guilty pleas. Aside from the trial

court accepting Jenkins’ guilty pleas after he gave an allocution, the only

discussion that took place on the record involved an agreement that the sentencing

date would be set two weeks later, on October 10, 2018, and that Jenkins would be

granted a furlough to visit his ailing father. The hearing transcript indicates the

trial court warned Jenkins that if he failed to appear for sentencing, he could be

indicted for fourth-degree felony failure to appear, and that the sentence on that

new charge would be ordered to run consecutive to the sentences imposed in the

current case.

      {¶4} The sentencing hearing transcript filed on October 10, 2018, indicates

that Jenkins failed to appear for sentencing. As such, the trial court issued a

warrant for his arrest. It appears from the record that Jenkins was eventually

arrested and brought before the trial court for sentencing on November 27, 2018.

During the sentencing hearing, Jenkins was also arraigned on two newly filed

cases. First, Jenkins was arraigned on new counts of tampering with evidence and

aggravated possession of drugs. He was also indicted for failure to appear as a

result of his failure to appear at his October 10, 2018, sentencing hearing. Jenkins

pled not guilty to the new charges.
Lawrence App. No. 18CA27                                                               4


      {¶5} The trial court then proceeded to sentence Jenkins on the three counts

to which Jenkins had already pled guilty. The State requested that Jenkins be

sentenced to seventeen months in prison for trafficking in drugs, thirty months in

prison for tampering with evidence, and eleven months in prison for possession of

drugs. The State requested that the first two prison terms run consecutively to one

another and that the third prison term run concurrent to the first two terms, for an

aggregate prison term of forty-seven months. In response, defense counsel argued

as follows:

      Your Honor, Mr. Jenkins pled guilty to the three counts in, um,

      connection to a an agreed to, um, sentence of two years on that . . . on .

      . . for on a total commitment of two years on that matter with the other

      matter, not 483, but 425, to be dismissed without re-re- . . . without his

      being arraigned on that matter. Umm the State is not . . . has not only

      asked for more time than it agreed to, they have also arraigned him on

      that matter and filed a failure to appear charge. I think that that’s fun-

      . . . offends fundamental, um, notions of fairness. That they both punish

      him through filing the failure to appear, and obviously their [sic] going

      to seek prison time on that, and violating their previous agreement. * *

      * Um, I don’t think that’s fair. We’re going to ask that he be sentenced

      to the two years. * * * I don’t think that the State can both go back on
Lawrence App. No. 18CA27                                                              5


      the deal in terms of the sentencing and go forward with these other

      charges. So, we believe the two year sentence is appropriate.

In response, the State argued as follows:

      The court is certainly aware that at the time of the guilty plea he was

      ordered to appear for sentencing on October 10th. He failed to do so.

      He’s failed to abide by his part of the agreement and, uh, that’s the

      reason that, uh, he’s in the condition he’s in now.

The trial court ultimately sentenced Jenkins consistent with the State’s request and

imposed a total prison sentence of forty-seven months. It is from the trial court’s

final judgment entry that Jenkins now brings his timely appeal, setting forth a

single assignment of error for our review.

                            ASSIGNMENT OF ERROR

I.    “THE TRIAL COURT FAILED TO ENFORCE THE PLEA AGREEMENT
      IN WHICH THE STATE WAS TO RECOMMEND A TWO-YEAR
      SENTENCE BUT FAILED TO DO SO.”

                                LEGAL ANALYSIS

      {¶6} In his sole assignment of error, Jenkins contends the trial court failed to

enforce a plea agreement in which the State was supposed to recommend a two-

year prison sentence, but ultimately failed to do so. Jenkins argues that the State

failed to abide by the terms of the plea agreement by failing to recommend the

agreed two-year sentence and as such, he should have been permitted to seek the
Lawrence App. No. 18CA27                                                               6


relief of either rescission or specific performance. Jenkins further argues,

however, that he “was not permitted to withdraw his guilty plea (rescission) or to

ask for a recommendation of two-years imprisonment (specific performance).” In

response, the State admits that “defense counsel and the state of Ohio negotiated a

proposed plea agreement: a recommended two-year ‘flat’ sentence.” However,

the State argues that Jenkins breached the plea agreement by failing to appear for

sentencing, thereby relieving the State of its obligations under the plea agreement.

      {¶7} We initially note that contrary to Jenkins’ argument that he was not

permitted to withdraw his guilty plea, the record before us fails to demonstrate that

he moved the court for withdrawal of his plea. Further, contrary to Jenkins’

argument that he was not permitted “to ask for a recommendation of two-years

imprisonment (specific performance)[,]” he did ask the court to impose a two-year

sentence, explaining that the State’s agreement to recommend a two-year sentence

was a term of the plea agreement. However, the trial court implicitly denied that

request when it proceeded to sentence Jenkins to an aggregate prison term of forty-

seven months. Thus, we conclude the issue presently before us simply involves the

question of whether the trial court erred in failing to enforce the terms of a plea

agreement where each party alleged the other party breached the terms.

      {¶8}This Court has explained that although we have applied a de novo

standard of review when a plea agreement’s terms were contained in an
Lawrence App. No. 18CA27                                                                7


unambiguous, written document, an abuse of discretion standard is the appropriate

standard when dealing with a plea agreement that is not contained in an

unambiguous, written document. State v. Dowler, 4th Dist. Athens No. 15CA7,

2015-Ohio-5027, ¶ 20, citing State v. Blair, 4th Dist. Scioto No. 11CA3429, 2012-

Ohio-769, ¶ 16. We conclude that an alleged verbal agreement, which in this case

was never made a part of the record, lends itself to an abuse of discretion standard

of review rather than a de novo standard of review. An abuse of discretion is an

unreasonable, arbitrary, or unconscionable use of discretion, including an action

that no conscientious judge could honestly have taken. Dowler at ¶ 19, citing State

v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, 15 N.E.3d 818, ¶ 67; State v.

Scott, 4th Dist. Washington No. 15CA2, 2015-Ohio-4170, ¶ 37.

      {¶9} “Principals of contract law are generally applicable to the interpretation

and enforcement of plea agreements.” State v. Bethel, 110 Ohio St.3d 416, 2006-

Ohio-4853, 854 N.E.2d 150, ¶ 50. “[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.” Santobello v. New

York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). “[I]f one side

breaches the agreement, the other side is entitled to either rescission or specific

performance of the plea agreement.” State v. Grier, 3d Dist. Crawford No. 3-10-

09, 2011-Ohio-902, ¶ 18, citing State v. Walker, 6th Dist. Lucas No. L-05-1207,
Lawrence App. No. 18CA27                                                              8


2006-Ohio-2929, ¶ 13. “The essential elements of a contract are an offer,

acceptance, contractual capacity, consideration (the bargained for legal benefit

and/or detriment), manifestation of mutual assent, and legality of the object and

consideration.” State v. Moore, 4th Dist. Adams No. 13CA965, 2014-Ohio-3024,

¶ 15, citing Williams v. Ormsby, 131 Ohio St.3d 427, 2012-Ohio-690, 966 N.E.2d

255, ¶ 14; Kostelnik v. Helper, 96 Ohio St.3d 1, 2002-Ohio-2985, 770 N.E.2d 58,

¶ 16. As we explained in State v. Dowler:

      To determine whether a plea agreement has been breached, courts

      examine what the parties reasonably understood at the time the

      defendant entered his guilty plea; that is, we must identify the terms of

      the plea agreement before we can determine if the state breached the

      agreement.

State v. Dowler, supra, at ¶ 23, citing State v. Walsh, 5th Dist. Licking No. 14-CA-

110, 2015-Ohio-4135, ¶ 18.

      {¶10} Crim.R. 11(F) requires that in negotiated plea cases, “the underlying

agreement upon which the plea is based shall be stated on the record in open

court.” The Supreme Court of Ohio has observed, however, that “[p]rudence also

dictates that a plea agreement be in writing.” State v. Billingsley, 133 Ohio St.3d

277, 2012-Ohio-4307, 978 N.E.2d 135, ¶ 25. As noted above, there was no

mention of a plea agreement in the record until it was referenced by defense
Lawrence App. No. 18CA27                                                                9


counsel at the sentencing hearing. Thus, the plea agreement was not stated on the

record in open court as required by Crim.R. 11(F). Nor was the plea agreement

contained in the proceeding upon guilty plea form. If the plea agreement was put

into writing in some form, it was not made a part of the record.

      {¶11} In State v. Darnell, this Court held that a plea agreement that “had not

been accepted by the trial court or entered on the record” was unenforceable. State

v. Darnell, 4th Dist. Gallia No. 02CA15, 2003-Ohio-2775, ¶ 1. In Darnell, the

defendant entered into a signed plea agreement with the State in which he agreed

to provide a signed statement regarding his knowledge of the incident at issue and

also agreed to undergo a polygraph examination in exchange for a recommended

sentence and other incarceration terms. Id. at ¶ 2. The State later expressed its

intention to prosecute fully after Darnell refused to take the polygraph test. Id. at

¶ 3. The trial court denied Darnell’s motion to enforce the plea agreement,

determining that “it lacked authority to enforce the agreement since no plea

agreement or negotiated plea had been stated on the record in open court.” Id. at

¶ 4. Darnell then entered into another negotiated plea agreement with the State and

appealed the trial court’s denial of the original plea agreement. Id. This Court

concluded that Darnell did not have an enforceable argument until 1) he entered his

plea; 2) the trial court accepted his plea; and 3) the trial court accepted the

underlying agreement upon which the plea was based. Id. at ¶ 9. In reaching our
Lawrence App. No. 18CA27                                                             10


decision, we reasoned that Darnell’s argument “ignore[d] the court’s role in the

bargaining process” in that “ ‘[t]he final judgment on whether the plea bargain

shall be accepted must rest with the trial judge.’ ” Id., quoting City of Akron v.

Ragsdale, 61 Ohio App.2d 107, 109, 399 N.E.2d 119 (1978).

      {¶12} In reaching our holding, we further reasoned as follows:

             It is well accepted that the trial court has the discretion to accept

      or reject a plea agreement. In re Disqualification of Mitrovich (1990),

      74 Ohio St.3d 1219, 1220, 657 N.E.2d 1333, citing City of Akron v.

      Ragsdale (1978), 61 Ohio App.2d 107, 399 N.E.2d 119. See also, State

      v. Jewell (Jan. 24, 1995) Meigs App. Nos. 94CA04, 94CA05; In re

      Daniel E. (1997), 122 Ohio App.3d 139, 701 N.E.2d 408; State v. Vega,

      Hamilton App. No. C-020486, 2003-Ohio-1548. Thus, any plea

      agreement between the state and a defendant is implicitly conditioned

      on the trial court's acceptance of that agreement. Until the trial court

      accepts the plea agreement, the agreement is unenforceable. See State

      v. Stanley, Mahoning App. No. 99-C.A.-55, 2002-Ohio-3007 (stating

      in a general discussion of negotiated plea agreements, that a plea

      agreement “is not binding until accepted by the court.”)

             Crim.R. 11(F) provides: “When, in felony cases, a negotiated

      plea of guilty or no contest to one or more offenses charged or to one
Lawrence App. No. 18CA27                                                              11


      or more other or lesser offenses is offered, the underlying agreement

      upon which the plea is based shall be stated on the record in open

      court.” Under Crim.R. 11(F), the parties are required to state the plea

      agreement on the record at the time the defendant enters his guilty or

      no contest plea. Thus, the plea agreement is presented to the court for

      its approval at the time the defendant enters his plea. By accepting the

      defendant's guilty or no contest plea, the court accepts the underlying

      plea agreement. See State v. Burchfield (1997), 118 Ohio App.3d 53,

      691 N.E.2d 1096 (finding that an unsigned plea agreement that had

      been neither stated on the record nor approved by the court was

      unenforceable.)

Darnell, supra, at ¶ 7-8. Thus, following the dictates of this Court’s prior

precedent set forth in Darnell, we conclude that here, because the plea agreement

alleged by Jenkins, and not disputed by the State, was neither stated upon the

record in open court nor put into writing, it was unenforceable.

      {¶13} Although Jenkins entered guilty pleas and the trial court accepted

those pleas, unlike in Darnell, there is no indication that the trial court accepted or

approved the underlying agreement upon which the pleas were based, as required

by Crim.R. 11(F). Further, it is not obvious from the record that Jenkins entered

his guilty pleas pursuant to a negotiated plea agreement. None of the charges in
Lawrence App. No. 18CA27                                                             12


the case were dismissed or reduced. The Supreme Court of Ohio has cautioned

courts that not “every plea of guilty is the result of a negotiated plea agreement

* * *.” State v. Dye, 127 Ohio St.3d 357, 2010-Ohio-5728, 939 N.E.2d 1217, ¶ 25.

Additionally, even if the terms of the plea agreement had been stated upon the

record in open court during Jenkins’ change of plea hearing,

      it is well settled that “when a defendant enters a guilty plea in exchange

      for the prosecutor’s promise to recommend a certain sentence, there is

      an implied condition that the circumstances surrounding the bargain

      will remain substantially the same; a substantial change in the

      circumstances is sufficient to relieve the state of its obligation.”

State v. Dowler, supra, at ¶ 26, quoting State v. Bembry, 7th Dist. Columbiana No.

13CO33, 2014-Ohio-5498, ¶ 22; see also State v. Hill, 10th Dist. Franklin No.

12AP-463, 2013-Ohio-674, ¶ 20, citing State v. Pascall, 49 Ohio App.2d 18, 20,

358 N.E.2d 1368 (9th Dist. 1972).

      {¶14} Of importance, “courts have held that implicit in a plea agreement is a

promise by the defendant to appear at the sentencing hearing, and that a defendant

breaches a plea agreement when the defendant fails to appear at the sentencing

hearing.” State v. McCartney, 12th Dist. Clinton No. CA2005-03-008, 2005-Ohio-

5627, ¶ 10, citing State v. Adkins, 161 Ohio App.3d 114, 2005-Ohio-2577, 829

N.E.2d 729, ¶ 8 and State v. Hess, 4th Dist. Adams No. 515, 1991 WL 286052, *6
Lawrence App. No. 18CA27                                                             13


(Dec. 24, 1991). Here, the only agreement that was put on the record in open court

was that the sentencing hearing would be set two weeks later so that Jenkins could

be furloughed to spend time with his father who was ill. Before concluding the

change of plea hearing, the trial court warned Jenkins as follows:

      Now here’s the problem. If you don’t show back up on ten ten with a

      recognizance bond at nine a.m., the State can indict you for failure to

      appear. It’s a felony of the fourth degree, but whatever the sentence is

      in that new charge, if there is a new charge, I have to tack on or make

      consecutive, uh, to what’s going to happen in the other, uh, three

      indictments in 18-CR-359.”

When Jenkins failed to appear for his sentencing hearing, the trial court issued a

warrant for his arrest. He was not sentenced until he was arrested on the warrant

seven weeks later. We believe that even if the plea agreement here had been stated

on the record in open court in accordance with Crim.R. 11(F), Jenkins’ failure to

appear for sentencing constituted a breach of the plea agreement which relieved the

State of its obligation to recommend a two-year sentence.

      {¶15} Moreover, even if the State had recommended the agreed-upon two-

year sentence, “the terms of a plea agreement are not binding on a trial court.”

State v. Russell, 4th Dist. Meigs No. 15CA11, 2016-Ohio-5290, ¶ 10, citing State

v. Liskany, 196 Ohio App.3d 609, 2011-Ohio-4456, 964 N.E.2d 1073, ¶ 190; State
Lawrence App. No. 18CA27                                                             14


v. Burks, 10th Dist. Franklin No. 04AP-531, 2005-Ohio-1262 at ¶ 18; State v.

Darnell, supra, at ¶ 7; see also State v. Dowler, supra, at ¶ 30 and State v. Hitt, 9th

Dist. Summit No. 29048, 2019-Ohio-2201, ¶ 14 (stating that “it is well settled that

a trial court is not bound by the terms of a plea agreement and it has a discretion to

depart from the State’s sentencing recommendation.”). Stated another way, in

Russell, supra, we observed that “this Court and others have held that punishment

is not subject to negotiated pleas.” Russell at *3.

      {¶16} In light of the foregoing, we reject Jenkins’ argument that the trial

court erred in failing to enforce the plea agreement. Thus, we find no merit in the

sole assignment of error raised on appeal. Accordingly, the judgment of the trial

court is affirmed.



                                                      JUDGMENT AFFIRMED.
Lawrence App. No. 18CA27                                                              15




                               JUDGMENT ENTRY

     It is ordered that the JUDGMENT BE AFFIRMED and costs be assessed to
Appellant.
      The Court finds there were reasonable grounds for this appeal.
     It is ordered that a special mandate issue out of this Court directing the
Lawrence County Common Pleas Court to carry this judgment into execution.
       IF A STAY OF EXECUTION OF SENTENCE AND RELEASE UPON
BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL COURT OR
THIS COURT, it is temporarily continued for a period not to exceed sixty days
upon the bail previously posted. The purpose of a continued stay is to allow
Appellant to file with the Supreme Court of Ohio an application for a stay during
the pendency of proceedings in that court. If a stay is continued by this entry, it
will terminate at the earlier of the expiration of the sixty day period, or the failure
of the Appellant to file a notice of appeal with the Supreme Court of Ohio in the
forty-five day appeal period pursuant to Rule II, Sec. 2 of the Rules of Practice of
the Supreme Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses
the appeal prior to expiration of sixty days, the stay will terminate as of the date of
such dismissal.
       A certified copy of this entry shall constitute the mandate pursuant to Rule
27 of the Rules of Appellate Procedure.
Abele, J. & Hess, J.: Concur in Judgment and Opinion.
                                 For the Court,
                                 _____________________________
                                 Jason P. Smith
                                 Presiding Judge
                             NOTICE TO COUNSEL
      Pursuant to Local Rule No. 14, this document constitutes a final
judgment entry and the time period for further appeal commences from the
date of filing with the clerk.
