[Cite as State v. Bortner, 2014-Ohio-4121.]


STATE OF OHIO                     )                    IN THE COURT OF APPEALS
                                  )ss:                 NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                  )

STATE OF OHIO                                          C.A. No.     13CA010494

        Appellee

        v.                                             APPEAL FROM JUDGMENT
                                                       ENTERED IN THE
DAVID BORTNER                                          COURT OF COMMON PLEAS
                                                       COUNTY OF LORAIN, OHIO
        Appellant                                      CASE No.   11CR082901

                                  DECISION AND JOURNAL ENTRY

Dated: September 22, 2014



        BELFANCE, Presiding Judge.

        {¶1}     Defendant-Appellant David Bortner appeals from the judgment of the Lorain

County Court of Common Pleas. For the reasons set forth below, we reverse and remand the

matter for proceedings consistent with this opinion.

                                                 I.

        {¶2}     In June 2011, Mr. Bortner was indicted for one count of failure to comply with an

order or signal of a police officer, two counts of operating a vehicle under the influence of

alcohol and/or drugs along with accompanying specifications stating that Mr. Bortner had five or

more similar previous convictions in the past 20 years, one count of obstructing official business,

and one count of driving under suspension.

        {¶3}     Ultimately, Mr. Bortner agreed to plead guilty to the indictment. While the

written plea agreement does not indicate there was any agreed upon sentence, the actual plea

hearing reflects otherwise. At the plea colloquy, the trial court stated that, “today it’s been
                                                2


represented to you that you’re going to receive a prison sentence of one year, 120 days; you’re

going to be fined in the sum of $1,350; and your driver’s license could be suspended anywhere

from three years to your lifetime.” The trial court then asked if any additional promises were

made to Mr. Bortner, to which Mr. Bortner replied, “No, sir.” The trial court then referred the

matter to the probation department for a PSI, and explained to Mr. Bortner that it could not

impose community control without having a completed PSI at the time of sentencing.

          {¶4}   The trial court set a sentencing hearing for February 1, 2013, but Mr. Bortner

failed to appear. A capias was issued and Mr. Bortner was subsequently arrested. On May 10,

2013, a sentencing hearing was held. Mr. Bortner’s defense counsel was not present and the trial

court authorized stand-in counsel. Additionally, the State was not represented by the same

assistant prosecutor as at the plea hearing. Neither attorney appeared to have any knowledge of

the substance of the plea hearing and agreement and the substance of that agreement was not

presented to the trial court. The trial court sentenced Mr. Bortner to a total of 11.5 years in

prison.

          {¶5}   On August 16, 2013, Mr. Bortner filed a pro se motion to withdraw his guilty

plea. He attached an affidavit to that motion averring that, as part of his plea agreement, he

agreed to serve a two-year prison sentence along with three years of probation but instead was

sentenced to 11.5 years. He further averred that neither attorney present at the sentencing

hearing participated in the plea negotiations, and, thus, neither attorney was able to discuss the

substance of the plea agreement at the sentencing hearing. Mr. Bortner further attested that had

he known he would be subject to an 11.5 year prison term, he would not have pleaded guilty and

would instead have gone to trial. Additionally, Mr. Bortner attached a copy of the sentencing

transcript to his motion.
                                                     3


           {¶6}   The trial court denied his motion without a hearing on August 23, 2013. Mr.

Bortner filed a pro se motion for a delayed appeal from the entry denying his motion to withdraw

his plea, which this Court granted. The trial court appointed Mr. Bortner appellate counsel. Mr.

Bortner has raised two assignments of error for our review.

                                                  II.

                                    ASSIGNMENT OF ERROR I

           APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN
           VIOLATION OF HIS RIGHTS UNDER THE SIXTH AND FOURTEENTH
           AMENDMENTS TO THE UNITED STATES CONSTITUTION, AND
           ARTICLE ONE, SECTION 10 OF THE OHIO STATE CONSTITUTION.

           {¶7}   Mr. Bortner contends in his first assignment of error that he was denied effective

assistance of counsel at sentencing. However, because Mr. Bortner only filed a notice of appeal

from the trial court’s August 23, 2013 entry denying Mr. Bortner’s motion to withdraw his guilty

plea, issues related to Mr. Bortner’s sentencing hearing are not properly before this Court.

           {¶8}   “A notice of appeal shall designate the judgment, order or part thereof appealed

from. An appellate court is without jurisdiction to review a judgment or order that is not

designated in the appellant’s notice of appeal.” (Internal quotations and citations omitted.) State

v. Pope, 9th Dist. Medina No. 13CA0031-M, 2014-Ohio-2864, ¶ 18.

           {¶9}   Mr. Bortner only designated the trial court’s August 23, 2013 entry in his notice

of appeal and his motion for delayed appeal. Further, this Court in its entry authorizing a

delayed appeal only referenced that same entry. See id.; see also App.R. 3(D). Additionally,

Mr. Bortner did not file a motion seeking to amend his notice of appeal. See App.R. 3(F); Pope

at ¶ 21.

           {¶10} As Mr. Bortner’s first assignment of error concerns orders from which he did not

appeal, we are without jurisdiction to address it.
                                                 4


                                  ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED IN DENYING MR. BORTNER’S MOTION TO
       WITHDRAW HIS GUILTY PLEA.

       {¶11} Mr. Bortner asserts in his second assignment of error that the trial court erred in

denying his motion to withdraw his guilty plea. Based upon the unique circumstances of this

case, we agree.

       {¶12} “The decision whether to allow a defendant to withdraw a guilty plea lies within

the discretion of the trial court.” (Internal quotations and citation omitted.) State v. McCallister,

9th Dist. Summit No. 26722, 2013-Ohio-5559, ¶ 6. Crim.R. 32.1 provides that “[a] motion to

withdraw a plea of guilty or no contest may be made only before sentence is imposed; but to

correct manifest injustice the court after sentence may set aside the judgment of conviction and

permit the defendant to withdraw his or her plea.” “While a presentence motion to withdraw a

guilty plea should be freely and liberally granted, * * * a post-sentence motion should only be

granted if the defendant has met his burden of establishing the existence of manifest injustice.”

McCallister at ¶ 6. (Internal quotations and citations omitted.)

       {¶13} Mr. Bortner attached an affidavit to his motion to withdraw his guilty plea. He

averred that he had agreed to plead guilty to the indictment with the understanding that after

merging some of the offenses he would essentially receive a total sentence of 2 years in prison

and 3 years of probation and that, instead of receiving the negotiated sentence, he received a

sentence of 11.5 years. He explained that he had failed to appear at the original sentencing

hearing due to his mother’s illness but that he had appeared at the subsequent sentencing hearing.

He also stated:

        5. Neither my attorney nor the prosecutor that negotiated the plea agreement
       w[as] present. Consequently, the Judge instructed his Bailiff to go to another
       courtroom and get an attorney for me. The Bailiff returned with [another
                                                5


       attorney], and the State was represented by [a different attorney as well]. Because
       [my new attorney] was not familiar with the [case,] she could not consult with me
       prior to sentencing, and was unable to discuss the nature of the sentencing
       agreement with the Court. Because [the new prosecutor] was not the prosecutor
       that participated in the negotiations, she was unable to discuss the agreement with
       the Court.

       ***

       7. I did not agree to serve a prison term of eleven and one-half years.
       [Undisputedly], had I known that I would be sentence[d] to such a sentence, I
       would not have waived my constitutional rights to take the case to trial.

       {¶14} Additionally, Mr. Bortner attached a copy of the sentencing hearing transcript

which evidenced that neither the State nor Mr. Bortner’s new defense counsel brought the terms

of the plea agreement to the trial court’s attention. Mr. Bortner’s new defense counsel indicated

that she was aware that some deal was made between the original prosecutor and original

defense counsel but she did not “recall what that deal [wa]s[.]” The trial court, contrary to its

statements to Mr. Bortner at the plea hearing, indicated that “[t]his was a case that carried

mandatory sentencing, so the State of Ohio just left it up to me[,]” and then proceeded to

sentence Mr. Bortner to 11.5 years in prison.

       {¶15} Mr. Bortner’s argument on appeal appears to be that he pleaded guilty with the

understanding that he would receive a prison sentence of approximately two years and that the

trial court, contrary to its representation to Mr. Bortner, “imposed a sentence which was 760

per[cent] longer than what he had been promised at his plea hearing.” “When a trial court

promises a certain sentence, the promise becomes an inducement to enter a plea, and unless that

sentence is given, the plea is not voluntary.” State v. Bonnell, 12th Dist. Clermont No. CA2001-

12-094, 2002-Ohio-5882, ¶ 18; see also State v. Layman, 2d Dist. Montogmery No. 22307,

2008-Ohio-759, ¶ 15; State v. Allgood, 9th Dist. Lorain Nos. 90CA004903, 90CA004904,

90CA004905, 90CA004907, 1991 WL 116269, *1-*3 (June 19, 1991).
                                                 6


       {¶16} Initially at the plea hearing, the State indicated that it would defer to the trial court

on the matter of sentencing. However, defense counsel almost immediately thereafter stated that

there were some “discussions about a sentence of one year and four months, and probation on the

failure to comply count * * *.” The trial court then proceeded to discuss the possible sentences

for the charges. Near the end of the colloquy, the trial court stated that, “today it’s been

represented to you that you’re going to receive a prison sentence of one year, 120 days; you’re

going to be fined in the sum of $1,350; and your driver’s license could be suspended anywhere

from three years to your lifetime.” (Emphasis added.) The trial court then asked if any additional

promises were made to Mr. Bortner, to which Mr. Bortner replied, “No, sir.”1

       {¶17} In this case, the trial court told Mr. Bortner that he would receive a specific prison

term, probation, a fine, and a driver’s license suspension. The trial court did not qualify the

ultimate imposition of the sentence in any manner. The record reflects that Mr. Bortner was

induced to forego his constitutional rights and enter the plea based upon the trial court’s

description of the sentence he would receive upon entering the plea. The trial court never

informed Mr. Bortner that the sentence was only a recommendation by the State, that it retained

discretion in sentencing, or that it was not required to accept the plea agreement. See State v.

Quinn, 2d Dist. Miami No. 02CA54, 2003-Ohio-5743, ¶ 53. Moreover, the trial court never put

Mr. Bortner on notice that it intended to deviate from the agreement, see Bonnell at ¶ 21, nor did

it warn Mr. Bortner at the plea hearing that there would be serious consequences should he fail to

appear at the initial sentencing hearing. See Layman at ¶ 8, quoting State v. Price, 1st Dist.



       1
         We note that the State does not argue that it did not agree to the sentence as described
by defense counsel and the trial court and the record reflects that the State did not object to the
imposition of the sentence as described by the court or indicate that it was not agreeing to that
prison sentence in exchange for Mr. Bortner’s plea of guilty.
                                                7


Hamilton No. C-030262, 2003-Ohio-7109, ¶ 14.2 Overall, the transcript of the plea hearing

reflects that the trial court agreed to sentence Mr. Bortner to the sentence it described to Mr.

Bortner at the time he agreed to plead guilty. However, it appears that, when the trial court

imposed sentence, it had the mistaken and uncorrected belief that the State had left sentencing

completely up to the trial court and that no agreement as to sentencing existed. At that point, the

trial court sentenced Mr. Bortner to 11.5 years in a prison – a dramatically harsher sentence than

the one promised to him at the plea hearing. Given all of the circumstances of this case, we

conclude the trial court abused its discretion in denying Mr. Bortner’s motion to withdraw his

guilty plea.

        {¶18} We sustain Mr. Bortner’s second assignment of error.

                                               III.

        {¶19} We are without jurisdiction to address Mr. Bortner’s first assignment of error and

sustain his second assignment of error. All outstanding motions are denied as moot. The

judgment of the Lorain County Court of Common Pleas is reversed.

                                                                              Judgment reversed,
                                                                             and cause remanded.




        There were reasonable grounds for this appeal.




        2
          We note that the State, citing cases such as State v. Hill, 10th Dist. Franklin No. 12AP-
463, 2013-Ohio-674, ¶ 20-22, maintains that Mr. Bortner’s failure to appear for sentencing was a
breach of the plea agreement, and, thus, the State was not bound to the agreement. However, the
cases cited by the State address the situation in which the State agreed to recommend a sentence,
not a situation such as this where a trial court informed the defendant that he would receive a
particular sentence in exchange for his plea and never informed the defendant that such sentence
was conditioned on his appearance at sentencing.
                                                 8


       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellee.




                                                     EVE V. BELFANCE
                                                     FOR THE COURT



HENSAL, J.
WHITMORE, J.
CONCUR.


APPEARANCES:

PAUL GRIFFIN, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and MARY R. SLANCZKA, Assistant Prosecuting
Attorney, for Appellee.
