[Cite as State v. Gray-Cole, 2018-Ohio-1293.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA


                              JOURNAL ENTRY AND OPINION
                                      No. 105573




                                      STATE OF OHIO
                                                      PLAINTIFF-APPELLEE

                                                vs.

                                THOMAS GRAY-COLE
                                                      DEFENDANT-APPELLANT




                                JUDGMENT:
                        SENTENCE VACATED; REMANDED


                               Criminal Appeal from the
                        Cuyahoga County Court of Common Pleas
            Case Nos. CR-16-606498-A, CR-16-610084-A, and CR-16-611479-A

        BEFORE:          Laster Mays, J., Kilbane, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED: April 5, 2018
                               -i-
ATTORNEY FOR APPELLANT

Jerome M. Emoff
Dworken & Bernstein Co., L.P.A.
1468 West Ninth Street, Suite 135
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Michael C. O’Malley
Cuyahoga County Prosecutor

By: Shannon M. Musson
Assistant County Prosecutor
Justice Center, 9th Floor
1200 Ontario Street
Cleveland, Ohio 44113
ANITA LASTER MAYS, J.:

      {¶1} Appellant-defendant Thomas Gray-Cole (“Gray-Cole”) appeals his sentence

and asks this court to enforce the agreement that was set forth in the record, thereby

convicting him only of the aggravate assault count.   We vacate and remand.

      {¶2} Gray-Cole pleaded guilty to one count of endangering children, a first-degree

misdemeanor, in violation of R.C. 2919.02(A); one count of criminal damaging, a

first-degree misdemeanor, in violation of R.C. 2909.06(A)(1); amended counts of

aggravated assault, a fourth-degree felony, in violation of R.C. 2903.12; amended counts

of domestic violence, a first-degree misdemeanor, in violation of R.C. 2919.25(A), and

amended counts of attempted abduction, a fourth-degree felony, in violation of R.C.

2905.02(A)(2).   The trial court imposed a 29-month prison sentence.

      {¶3} Gray-Cole and the state discussed a merger deal and came to an agreement

that the aggravated assault and attempted abduction counts would merge.              After

reviewing the transcript, it is clear that the trial court strictly complied with Crim.R.

11(C)(2) and that Gray-Cole understood his plea.      The trial court reiterated the merger

agreement during the plea hearing, but then at sentencing did not merge the counts.

Gray-Cole filed an appeal, where the state concedes, asserting one assignment of error for

our review:

      I.      The trial court erred when it failed to merge amended counts one and
              five in imposing a 29 month sentence in excess of the maximum
              allowable sentence for a felony of the fourth degree, after advising
              Gray-Cole that he would be sentenced on one count.
I.    Law and Analysis

      {¶4} As the state conceded at the appeal hearing and in its brief that the trial court

did err when it failed to merge the amended counts, Gray-Cole’s sentence should be

vacated and remanded to the trial court for resentencing consistent with the negotiated

plea agreement.

      {¶5} The record reveals that the trial court acquiesced to the merger agreement.

However, the trial court erred by appearing to accept the negotiated plea agreement

before the court accepted Gray-Cole’s plea, and then during sentencing, deviated from the

recommended sentence or terms contained within the plea agreement at the time of

sentencing.

      The instructive case in this appellate district on a trial court’s deviation
      from a plea agreement is State v. Dunbar, 8th Dist. Cuyahoga No. 87317,
      2007-Ohio-3261, where we explained: [A] trial court is vested with sound
      discretion when implementing plea agreements. State v. Buchanan, 154
      Ohio App.3d 250, 2003-Ohio-4772, 796 N.E.2d 1003, ¶ 13 (5th Dist.),
      citing Akron v. Ragsdale, 61 Ohio App.2d 107, 399 N.E.2d 119 (9th
      Dist.1978). The court is not obligated to follow the negotiated plea entered
      into between the state and the defendant. Id. [O]nce the court approves the
      plea agreement, [however], its ability to deviate from it is limited. State v.
      Allgood, 9th Dist. Lorain Nos. 90CA004903, 90CA004904, 90CA004905,
      and 90CA004907, 1991 Ohio App. LEXIS 2972 (June 19, 1991), citing
      U.S. v. Holman, 728 F.2d 809, (6th Cir.1984) certiorari denied, 469 U.S.
      983, 105 S.Ct. 388, 83 L.Ed.2d 323 (1984).

      “[T]he law is somewhat less settled in those cases where the trial court
      appears to indicate that it accepts the negotiated plea agreement before the
      court accepts the defendant’s plea, and then deviates from the
      recommended sentence or terms contained within the plea agreement at the
      time of sentencing. The analysis in these scenarios turns to due process
      concerns over whether the accused was put on [notice] that the trial court
      might deviate from the recommended sentence or other terms of the
       agreement before the accused entered his plea and whether the accused was
       given an opportunity to change or to withdraw his plea when he received
       this notice.” See generally, Katz & Giannelli, Criminal Law 154-155,
       Section 44.8. n.2 (1996) (Emphasis sic.) [Warren v. Cromley, 11th Dist.
       Trumbull No. 97-T-0213, 1999 Ohio App. LEXIS 206 (Jan. 29,
       1999),*7-8.]

       “A trial court does not err by imposing a sentence greater than ‘that forming
       the inducement for the defendant to plead guilty when the trial court
       forewarns the defendant of the applicable penalties, including the possibility
       of imposing a greater sentence than that recommended by the prosecutor.’”
       Buchanan, supra, at ¶ 13, citing State v. Darmour, 38 Ohio App.3d 160,
       529 N.E.2d 208 (8th Dist.1987) (* * * no abuse of discretion is present
       when the trial court forewarns a defendant that it will not consider itself
       bound by any sentencing agreement and defendant fails to change his plea).
        Dunbar at ¶ 112-115.

State v. Lumbus, 8th Dist. Cuyahoga No. 99301, 2013-Ohio-4592, ¶ 38.

       {¶6} In this case, after the state recited the plea details, the transcript indicates that

the state and defense counsel had some discussions of merger in the first case.             The

record reveals that the state went on to express that the abduction and aggravated assault

would merge.     The trial court and state had the following exchange:

       COURT:               And the State would choose?

       STATE:               We would elect to proceed on the offense of violence,
                            the aggravated assault charge. * * *

(Tr. 30-31.)

       {¶7}    The trial court asked defense if that was the correct agreement.            After

discussion of an amended charge, it was agreed that the merger agreement was correct.

After the trial court reviewed the charges and possible penalty it stated to Gray-Cole:

       COURT:               Now, do you also understand that in this case the State
                            and your counsel have agreed that these cases would
                          merge — these charges, Counts 1 and 5, the felony
                          charges, would merge and you would only be sentenced
                          on one, and the State has elected to have you sentenced
                          on Count 1, aggravated assault, as amended, a Felony 4.
                           Do you understand that?

       GRAY-COLE:         Yes, ma’am.

       COURT:             The [c]ourt will accept the defendant’s pleas and find
                          the defendant guilty on the counts pled. At the request
                          of the prosecutor, Count 2 in [Cuyahoga C.P.] No.
                          CR-16-610084-A is nolled, as well as Counts 3 and 4 in
                          [[Cuyahoga C.P.] No. CR-16-6611479-A. For the
                          record, we learned today that Case No. 609288 was
                          dismissed and was reindicted in [Cuyahoga C.P.] No.
                          CR-16-611479-A.

(Tr. 37-38, 42.)

       {¶8} The trial court continued by reciting the parole requirements and then

accepted Gray-Cole’s plea.    The trial court, in its direction to Gray-Cole, did not put

Gray-Cole on notice that it might deviate from the recommended sentence or other terms

of the agreement before Gray-Cole entered his plea.        The matter was continued to

February 22, 2018, for a presentence investigation report and sentencing.   The trial court

sentenced Gray-Cole to 17 months imprisonment on Count 1 and 12 months

imprisonment on Count 5. (Tr. 56.)

       {¶9} As stated above, the record reveals that the trial court acquiesced to the

merger agreement; that Counts 1 and 5 merge and that Gray-Cole will be sentenced on

Count 1. Dunbar, 8th Dist. Cuyahoga No. 87317, 2007-Ohio-3261, at ¶ 114. (“The

analysis in these scenarios turns to due process concerns over whether the accused was

put on [notice] that the trial court might deviate from the recommended sentence or other
terms of the agreement before the accused entered his plea and whether the accused was

given an opportunity to change or to withdraw his plea when he received this notice”).

We find that the trial court did not provide Gray-Cole with notice that it may deviate from

the negotiated plea agreement, allowing Gray-Cole to change his plea.           As a result,

Gray-Cole’s sentence must be vacated and remanded to the trial court for resentencing in

agreement with the negotiated plea agreement.

       {¶10} Gray-Cole’s sole assignment of error is sustained.

       {¶11} Sentence vacated and remanded for resentencing in accordance with the plea

agreement.

       It is ordered that the appellant recover from 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 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.



______________________________________
ANITA LASTER MAYS, JUDGE

MARY EILEEN KILBANE, P.J., CONCURS;
TIM McCORMACK, J., DISSENTS WITH SEPARATE OPINION


TIM McCORMACK, J., DISSENTING:

       {¶12} I respectfully dissent.
      {¶13} Where a trial court indicates its acceptance of a plea agreement and fails to

notify the defendant that it is not bound by the terms of the agreement, the appropriate

remedy is to remand the case to the trial court to either enforce the terms of the plea

agreement or allow the defendant to withdraw his plea.
