[Cite as State v. Grove, 2016-Ohio-2721.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                       No. 103042


                                      STATE OF OHIO

                                                     PLAINTIFF-APPELLEE

                                               vs.

                                   THOMAS P. GROVE

                                                           DEFENDANT-APPELLANT



                                            JUDGMENT:
                                             AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-14-587579-A

        BEFORE:          McCormack, J., E.A. Gallagher, P.J., and Stewart, J.

        RELEASED AND JOURNALIZED: April 28, 2016
ATTORNEY FOR APPELLANT

Mary Catherine O’Neill
50 Public Square
Suite 1900
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: Jeffrey Schnatter
Assistant County Prosecutor
The Justice Center, 9th Floor
1200 Ontario Street
Cleveland, OH 44113
TIM McCORMACK, J.:

       {¶1} Defendant-appellant, Thomas P. Grove, appeals his conviction for rape,

attempted rape, kidnapping, and pandering sexually oriented matter involving a minor.

For the reasons that follow, we affirm.

                       Procedural History and Substantive Facts

       {¶2}    On July 24, 2014, Grove was charged in an eight-count indictment

involving two victims: (1) rape of Victim 1 in violation of R.C. 2907.02(A)(2), with

one- and three-year firearm specifications and a sexually violent predator specification

(Count1); rape of Victim 1 in violation of R.C. 2907.02(A)(2), with one- and three-year

firearm specifications and a sexually violent predator specification (Count 2);   rape of

Victim 1 in violation of R.C. 2907.02(A)(2), with one- and three-year firearm

specifications and a sexually violent predator specification (Count 3); kidnapping of

Victim 1 in violation of R.C. 2905.01(A)(4), with one- and three-year firearm

specifications, a sexually violent predator specification, and a sexual motivation

specification (Count 4); rape of Victim 2 in violation of R.C. 2907.02(A)(2), with a

sexually violent predator specification (Count 5); kidnapping of Victim 2 in violation of

R.C. 2905.01(A)(4), with a sexually violent predator specification and a sexual

motivation specification (Count 6); unlawful sexual conduct with a minor, Victim 2, in

violation of R.C. 2907.04(A) (Count 7); and pandering sexually oriented matter involving

a minor in violation of R.C. 2907.322(A)(5) (Count 8).
       {¶3} On August 18, 2014, the court found Grove not competent to stand trial,

based upon an evaluation prepared by the court psychiatric clinic.    In this evaluation, Dr.

Jennifer Franklin opined that within reasonable psychological certainty, Grove was not

capable of assisting in his defense. Both the state and defense counsel stipulated to Dr.

Franklin’s findings and the court ordered Grove to Northcoast Behavioral Healthcare

Center (“Northcoast”) for restoration to competency.

       {¶4} On November 19, 2014, the court held another hearing to address Grove’s

competency.     According to a report prepared by Dr. Gruber of Northcoast, Grove was

capable of assisting in his defense and was capable of understanding the nature and

objectives of the proceedings against him.      The report also indicated that Grove was

malingering. After some discussion regarding the evaluation, defense counsel informed

the court that Grove was not receiving his medication in the jail and he appeared confused

or “distant.”   Defense counsel, however, did not object to the report as it pertained to the

malingering.    The court continued the hearing in order to address the issue with Grove’s

medication.

       {¶5} On December 17, 2014, the court held another competency hearing.              At

this time, defense counsel submitted another psychological evaluation report, which was

prepared by Dr. J. Joseph Konieczny in November 2012 for determination of Grove’s

social security benefits.    This report indicated that Grove suffers from borderline

intellectual functioning and disruptive behavior disorder not otherwise specified, has an

IQ of 73, and has a history of involvement in the juvenile and adult criminal justice
systems. In light of this report, defense counsel requested an independent psychological

examination, “as a precaution.”         Thereafter, the court ordered the independent

examination and a report on malingering, and it advised defense counsel that he should

instruct his client to be compliant with his medication, as he was disciplined in the county

jail for hoarding his medications.

          {¶6} On February 17, 2015, the court held a hearing following receipt of the

independent forensic neuropsychological and psychological evaluation prepared by Dr.

John Fabian.      In his report, Dr. Fabian opined that Grove “has been consistently

malingering psychosis and low cognitive functioning.”            Dr. Fabian reported that

“[w]hile he likely qualifies for ADHD by history and borderline intellectual functioning, I

cannot say with a reasonable degree of psychological and neuropsychological certainty

that he qualifies for a mental condition under the competency to stand trial statute or a

severe mental disease or defect under the sanity statute.”            Dr. Fabian therefore

concluded that there is no indication that Grove is not competent to stand trial or that he

was insane at the time of the alleged offenses.    Defense counsel noted that Dr. Fabian’s

findings concurred with the court psychiatric clinic’s earlier evaluation, and he accepted

the findings contained in Dr. Fabian’s report.    The state also accepted the findings in the

report.    The court found Grove sane and competent to stand trial.

          {¶7} On March 11, 2015, Grove withdrew his previously entered not guilty plea

and entered into a plea agreement with the state.     Under the agreement, Grove pleaded

guilty to rape in amended Count 1, whereby the firearm specifications and the sexually
violent predator specifications were deleted. He pleaded guilty to kidnapping in amended

Count 4, whereby the firearm and sexually violent predator specifications were again

deleted.     Grove also pleaded guilty to amended Count 5, whereby the charge became

attempted rape.      Finally, Grove pleaded guilty to pandering sexually oriented matter

involving a minor in Count 8 as charged.     The remaining charges were nolled.

       {¶8} After conducting a colloquy with Grove in accordance with Crim.R. 11 and

advising Grove of his nonconstitutional and constitutional rights, the trial court accepted

Grove’s guilty plea, finding that it was knowingly, intelligently, and voluntarily made.

The court found Grove guilty of the charges and ordered a presentence investigation

report (PSI).     On a later date, the court sentenced Grove to ten years imprisonment on

Count 1 (rape, merging with kidnapping in Count 4), six years imprisonment on Count 5

(attempted rape), and 18 months imprisonment on Count 8 (pandering).              The court

ordered the sentences in Counts 1 and 5 to run consecutively and the sentence in Count 8

to run concurrently with Counts 1 and 5, thereby imposing an aggregate sentence of 16

years imprisonment.      The court also notified Grove of his reporting requirements as a

Tier III sex offender.

                {¶9} Grove now appeals his conviction and sentence, assigning three errors

for our review:

       I.       The trial court erred by sentencing appellant to multiple consecutive
                sentences by failing to engage in the three step analysis required by
                R.C. 2929.14(C) and the supporting case law.

       II.      The appellant received ineffective assistance of counsel during his
                plea negotiations.
        III.     The trial court erred by proceeding to sentence after the state did not

                 adhere to their portion of the plea agreement.

                                    Consecutive Sentences

        {¶10} In his first assignment of error, Grove alleges that the trial court failed to

“engage in the three-step analysis” required under R.C. 2929.14(C).            In support, he

essentially disputes the court’s findings and argues that the record does not support the

sentence.      He states that “consecutive sentences are not required to protect the public

from future crime” because a ten-year prison term “more than adequately punishes the

offender and protects the public”; the ten-year prison term is “completely proportional

with the facts of this case” because the record does not support “a finding that [Grove’s]

crime was more serious, egregious, or unusual than any other crime of that nature” and

Grove was convicted of attempted rape, “a much less serious crime” than rape, “which he

did not plea to and was never convicted of”; and the incidents were not part of a course of

conduct, but rather, they were independent crimes.

        {¶11} R.C. 2953.08(G)(2) provides that when reviewing felony sentences, the

appellate court may overturn the imposition of consecutive sentences where the reviewing

court “clearly and convincingly” finds that (1) “the record does not support the sentencing

court’s findings under R.C. 2929.14(C)(4),” or (2) “the sentence is otherwise contrary to

law.”    Our review of a claim that the record does not support the trial court’s findings

under R.C. 2929.14(C)(4) is “‘extremely deferential.’”             State v. Balbi, 8th Dist.
Cuyahoga No. 102321, 2015-Ohio-4075, ¶ 5, quoting State v. Venes, 2013-Ohio-1891,

992 N.E.2d 453, ¶ 21 (8th Dist.).

       {¶12} In Ohio, there is a presumption that prison sentences should be served

concurrently, unless the trial court makes the findings outlined in R.C. 2929.14(C)(4) to

justify consecutive service of the prison terms. State v. Cox, 8th Dist. Cuyahoga No.

102629, 2016-Ohio-20, ¶ 3; R.C. 2929.41(A). R.C. 2929.14(C)(4) provides that in order

to impose consecutive sentences, the trial court must find that consecutive sentences are

necessary to protect the public from future crime or to punish the offender, that such

sentences would not be disproportionate to the seriousness of the conduct and to the

danger the offender poses to the public, and that one of the following applies:

       (a)    The offender committed one or more of the multiple offenses while
              the offender was awaiting trial or sentencing, was under a sanction
              imposed pursuant to section 2929.16, 2929.17, or 2929.18 of the
              Revised Code, or was under postrelease control for a prior offense.

       (b)    At least two of the multiple offenses were committed as part of one
              or more courses of conduct, and the harm caused by two or more of
              the multiple offenses so committed was so great or unusual that no
              single prison term for any of the offenses committed as part of any of
              the courses of conduct adequately reflects the seriousness of the
              offender’s conduct.

       (c)    The offender’s history of criminal conduct demonstrates that
              consecutive sentences are necessary to protect the public from future
              crime by the offender.

State v. Bonnell, 140 Ohio St.3d 209, 2014-Ohio-3177, 16 N.E.3d 659, ¶ 20-22.

       {¶13} Compliance with R.C. 2929.14(C)(4) requires the trial court to make the

statutory findings at the sentencing hearing, “and by doing so it affords notice to the
offender and to defense counsel.” Bonnell at ¶ 29. “Findings,” for these purposes,

means that “‘the [trial] court must note that it engaged in the analysis’ and that it ‘has

considered the statutory criteria and specifie[d] which of the given bases warrants its

decision.’” Id. at ¶ 26, quoting State v. Edmonson, 86 Ohio St.3d 324, 326, 715 N.E.2d

131 (1999).   Further, the reviewing court must be able to determine that the record

contains evidence to support the findings.      State v. Davis, 8th Dist. Cuyahoga No.

102639, 2015-Ohio-4501, ¶ 21, citing Bonnell at ¶ 29.

       {¶14} A trial court is not, however, required to state its reasons to support its

findings, nor is it required to give a rote recitation of the statutory language, “provided

that the necessary findings can be found in the record and are incorporated in the

sentencing entry.” Bonnell at ¶ 37.     The failure to make consecutive sentence findings

is contrary to law. Balbi, 8th Dist. Cuyahoga No. 102321, 2015-Ohio-4075, at ¶ 4.

       {¶15} Here, the trial court made the requisite R.C. 2929.14(C)(4) findings in

support of its imposition of consecutive sentences:

       16 years is necessary to protect the public from future crime, to punish the

       offender, and the court finds it is not disproportionate to the seriousness of

       the offender’s conduct, which is rape and attempted rape, and to the danger

       that he posed to the public, luring your victims to locations by use of

       electronic means, * * * the court also finds that your history of criminal

       conduct demonstrates that consecutive sentences are necessary to protect

       the public.   You have had domestic violence, assault, another assault as a
       juvenile, disorderly conduct as a juvenile.   You’ve had disorderly conduct,

       burglary, part of this case all in your past, and you’re only 20 years old.



       {¶16} Prior to making the consecutive sentence findings, the court heard

statements from defense counsel, who noted that Grove has been

       on [social security income] for intelligence problems since he’s been five
       years old. He went to Northcoast. * * * He was determined to be a
       malingerer. * * * Dr. Fabian interviewed him and concurred with the
       Northcoast psychiatrist, and I think this goes into the limited intelligence
       that this defendant has in trying to converse with people and chooses to act
       that out.

Counsel then requested the court impose the agreed recommended sentence of ten years

imprisonment. Thereafter, Grove offered an apology to his victims.

       {¶17} The father of one of the victims then addressed the court, explaining the

pain that he and his daughter have experienced due to Grove’s actions.      He offered his

forgiveness but explained that he “still carr[ies] the pain” in wondering if he is doing

enough as a father.   Thereafter, Detective Buck Kidd, one of the investigating officers

provided the court with additional details regarding the incidents involving both victims.

He explained that one of the victims had initially recanted her statement to the police

because she was “threatened and beaten up by people [on Grove’s] behalf.”      Finally, the

state explained to the court that Victim 2 did not wish to come to court for the sentencing

because she was “greatly affected by what happened,” and her reason for recanting her

statement to the police was “based upon fear.”
       {¶18} The court then addressed Grove, noting the reports prepared by the court

psychiatric clinic, Northcoast, and an independent psychologist. The court stated that

the court psychiatric clinic reported that Grove “may have some desire to avoid prison by

going to a mental hospital and thus may have exaggerated some symptoms. He currently

does not appear sufficiently capable of cooperating.”         The court then considered

Northcoast’s report that found Grove was “exaggerating or feigning his ability to learn

about the case and how the court works.”      As indicated by the court, the report further

stated as follows:

       His score on the test of malingered memory showed that he deliberately

       chose incorrect answers in order to present himself a memory impaired.

       He also reported symptoms of mental illness and psychotic symptom related

       to being traumatized by witnessing Hurricane Katrina. This information

       contradicts collateral information indicating that Mr. Grove has never been

       in the area of the Hurricane Katrina disaster.            He also endorsed

       combinations of symptoms that very rarely, if ever, occur together, and his

       self-report was inconsistent with his behavior during the assessment. * * *

       The Miller Forensic Assessment of Symptoms was strongly suggestive of

       malingering.

       {¶19} Finally, the court noted that it found Grove’s “malingering and [his]

attempts to manipulate” the court and the process to be “gravely disturbing * * * and

indicative of the manipulation that [he] exercised in the committing of this case.”
       {¶20} In light of the foregoing, we conclude that the trial court made the

appropriate consecutive sentence findings and it engaged in the analysis required under

R.C. 2929.14(C)(4).    Further, we cannot “clearly and convincingly” find that the record

does not support the court’s findings.

       {¶21} Grove claims that his actions were “independent crimes” and the court failed

to find that his actions were committed as a “course of conduct.”            However, R.C.

2929.14(C)(4) requires the court find that either the offender committed the offenses as

part of a course of conduct or that the offender’s history of criminal conduct demonstrates

that consecutive sentences are necessary to protect the public from future crime. See

R.C. 2929.14(C)(4)(a)-(c).    The trial court in this case did, in fact, find that Grove’s

history of criminal conduct demonstrated the need for consecutive sentences because it

noted Grove’s history of domestic violence, assault, burglary, and disorderly conduct.

       {¶22} Additionally, Grove asserts that the court incorrectly sentenced him on rape,

rather than attempted rape, “a much less serious crime.”       However, Grove’s assertion is

incorrect.   Grove was convicted of rape in Count 1 (Victim 1) and attempted rape in

Count 5 (Victim 2), and the court sentenced him on both offenses. And the trial court

did, indeed, find both crimes to be very serious when it found that luring young victims to

a certain location by the use of electronic means was dangerous and manipulative.

       {¶23} Grove’s first assignment of error is overruled.

                             Ineffective Assistance of Counsel
       {¶24} In his second assignment of error, Grove alleges that he received ineffective

assistance of counsel during his plea negotiations. In support of his argument, Grove

claims that prior to his plea, he attempted to hire new counsel because he had “substantial

differences” with original counsel.       Grove states, however, that new counsel was

unavailable for the plea and his motion to continue the plea hearing was denied.       Grove

also argues that his original counsel told him that he would “die in prison with no defense

for the charges if he did not enter into a plea.”   He concedes that this alleged information

is not in the record but it “reinforces the lack of voluntariness” of his plea, and therefore,

he received ineffective assistance of counsel.

       {¶25} In order to establish a claim of ineffective assistance of counsel, the

defendant must show that his trial counsel’s performance was deficient in some aspect of

his representation and that deficiency prejudiced his defense. Strickland v. Washington,

466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d

136, 538 N.E.2d 373 (1989), cert. denied, 497 U.S. 1011, 110 S.Ct. 3258, 111 L.Ed.2d

768 (1990). Under Strickland, our scrutiny of an attorney’s representation must be

highly deferential, and we must indulge “a strong presumption that counsel’s conduct

falls within the range of reasonable professional assistance.” Id. at 689.    In Ohio, every

properly licensed attorney is presumed to be competent and, therefore, a defendant

claiming ineffective assistance of counsel bears the burden of proof. State v. Smith, 17

Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985).
          {¶26} In proving ineffective assistance in the context of a guilty plea, the

defendant must demonstrate that there is a reasonable probability that, but for counsel’s

errors, he would not have pleaded guilty and he would have insisted on going to trial.

State v. Wright, 8th Dist. Cuyahoga No. 98345, 2013-Ohio-936, ¶ 12. Generally, a

guilty plea waives all appealable errors that may have occurred in the trial court, unless

the errors precluded the defendant from knowingly, intelligently, and voluntarily entering

a guilty plea.       State v. Geraci, 8th Dist. Cuyahoga Nos. 101946 and 101947,

2015-Ohio-2699, ¶ 14; State v. Kelley, 57 Ohio St.3d 127, 566 N.E.2d 658 (1991). A

claim of ineffective assistance of counsel is therefore waived by a guilty plea, unless the

ineffective assistance of counsel precluded the defendant from knowingly, intelligently,

and voluntarily entering a guilty plea. Geraci.

          {¶27} “‘A failure by counsel to provide advice [which impairs the knowing and

voluntary nature of the plea] may form the basis of a claim of ineffective assistance of

counsel, but absent such a claim it cannot serve as the predicate for setting aside a valid

plea.’”     State v. Milczewski, 8th Dist. Cuyahoga No. 97138, 2012-Ohio-1743, ¶ 5,

quoting United States v. Broce, 488 U.S. 563, 574, 109 S.Ct. 757, 102 L.Ed.2d 927

(1989).

          {¶28} We note, initially, that Grove’s claims rely on statements made outside of

the record.     There is no evidence in the record of “substantial differences” Grove had

with his trial counsel, trial counsel’s allegedly improper legal advice or improper

inducement (that Grove would “die in prison with no defense for the charges if he did not
enter into a plea”), or of the purported effect of these differences or advice on his guilty

plea.   Alleged statements or purported evidence made outside of the record are not

properly considered on a direct appeal.    State v. Peak, 8th Dist. Cuyahoga No. 102850,

2015-Ohio-4702, ¶ 20; State v. Johnson, 2015-Ohio-96, 27 N.E.3d, ¶ 53 (8th Dist.)

(ineffective assistance of counsel claim that would require proof outside of the record is

not appropriately considered on a direct appeal).

        {¶29} Furthermore, there is nothing in the record that demonstrates counsel’s

deficient performance or counsel’s failure to provide advice that would impair the

knowing and voluntary nature of Grove’s plea.       Rather, the record reflects that Grove’s

guilty pleas were knowingly, intelligently, and voluntarily made.

        {¶30} During the court’s Crim.R. 11 colloquy with Grove, the court ensured that

Grove was not under the influence of any drugs or medication that would impair his

understanding of the proceedings, and it inquired of Grove’s education.      Thereafter, the

court advised Grove of his constitutional rights and explained the charges to which he

was pleading guilty, the maximum penalty of the charges (which the court explained was

a combined 31½ years incarceration), and the effect of his plea.            The court also

explained that it could immediately proceed to judgment and sentence following his plea.

 Grove repeatedly indicated that he understood.      The court inquired whether there had

been any threats, promises, or inducements made in an effort to cause Grove to enter his

plea, to which Grove replied in the negative.
       {¶31} The court specifically advised Grove that his attorneys recommended a

sentence of ten-years imprisonment, and Grove indicated that he understood.       The court

asked Grove if he agreed with the recommendation, to which he replied, “Yes.”           The

court then advised Grove that the recommended sentence is not binding upon the court

and that the court could, in fact, impose more time or less time than recommended.

Grove stated that he understood.

       {¶32} Furthermore, the court asked Grove, “Is there anything about this case or

these proceedings [that] you do not understand?”    Grove replied, “No.”     The court also

inquired whether he was satisfied with his counsel during the plea process, to which

Grove replied in the affirmative.   Finally, there is no indication in the record that Grove

expressed confusion or hesitation at any time during the plea hearing.

       {¶33} We therefore do not find that Grove received ineffective assistance of

counsel during the plea proceedings, and he entered his plea knowingly, intelligently, and

voluntarily.

       {¶34} Grove’s second assignment of error is overruled.

                          Enforcement of the Plea Agreement

       {¶35} In his third assignment of error, Grove claims that the court erred in

proceeding to sentencing where the state failed to adhere to its portion of the plea

agreement.     In support of this argument, Grove alleges that the state agreed to a

recommended sentence of ten-years imprisonment; however, it breached that agreement

when the investigating detective addressed the court and when the prosecutor provided an
additional statement regarding the second victim.     He claims that the statements were

provided only to inflame the court and is therefore a breach.

       {¶36} A plea agreement is a contract between the state and a criminal defendant

and is subject to contract-law principles. State v. Butts, 112 Ohio App.3d 683, 686, 679

N.E.2d 1170 (8th Dist.1996); Baker v. United States, 781 F.2d 85, 90 (6th Cir.1986).

The terms of a plea agreement must therefore be explicit. State v. Padilla, 8th Dist.

Cuyahoga No. 98187, 2012-Ohio-5892, ¶ 11.             Where the state breaches a plea

agreement, the defendant has the option to withdraw his plea or seek specific

performance. State v. Brunning, 8th Dist. Cuyahoga No. 95376, 2013-Ohio-930, ¶ 9;

Santobello v. New York, 404 U.S. 257, 263, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).

       {¶37} The trial court is vested with wide discretion in implementing a plea

agreement. State v. Dunbar, 8th Dist. Cuyahoga No. 87317, 2007-Ohio-3261, ¶ 112,

citing State v. Buchanan, 154 Ohio App.3d 250, 2003-Ohio-4772, 796 N.E.2d 1003, ¶

13 (5th Dist.). And the court is not obligated to follow the negotiated plea entered into

between the state and the defendant. Dunbar.       In fact, “[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 at ¶ 13, quoting State v. Pettiford, 12th Dist. Fayette No. CA2001-08-014,

2002-Ohio-1914, citing State v. Darmour, 38 Ohio App.3d 160, 529 N.E.2d 208 (8th

Dist.1987).
         {¶38} At the plea hearing in this case, the assistant prosecutor presented the plea

agreement to the court and stated that “as part of this plea, the defendant and the state

have agreed to recommend to the court * * * an aggregate sentence of 10 years on this

case.”    The state also advised the court that no other threats or promises had been made

in order to induce Grove into changing his plea.       Defense counsel agreed.      And the

court noted the recommendation during its colloquy with Grove.

         {¶39} At the sentencing hearing held one month later, the court reiterated the

parties’ agreed recommended sentence and then addressed a matter contained in the PSI.

Thereafter, the court provided the defense an opportunity to make a statement prior to the

court’s imposition of the sentence. As previously indicated in this opinion, defense

counsel addressed the court, noting the various psychological examinations conducted,

and offered Grove’s “limited intelligence” as mitigation for his offenses. Counsel then

requested the court impose the agreed recommended ten-year prison sentence, and Grove

offered an apology to his victims.

         {¶40} The court then inquired whether the state wished to make a statement.      At

that time, the father of one of the victim’s addressed the court, explaining the pain that he

and his daughter have experienced due to Grove’s actions.       The state advised the court

that Detective Kidd, one of the investigating officers, was also present in the courtroom

and wished to address the court.         Detective Kidd provided additional information

concerning his investigation of Grove, including a victim’s recantation out of fear and the

discovery of additional victims.     Defense counsel objected to the detective’s statement,
claiming the state was “backtracking” on the plea agreement because the detective’s

statement was “done not in support of the 10-year sentence * * * but to inflame this court

to give a sentence greater than 10 years.”

        {¶41} In response, the court advised defense counsel that it has “never, ever agreed

to any recommended sentence in 23 years” and it further stated as follows:

        It would be almost unheard of that somebody out there could inflame me

        more than a defendant and the conduct of a defendant.         I listen to victims,

        family members, law enforcement officers every day. You have been in

        my courtroom many times to know that what I look at is the conduct of a

        defendant.   I expect all victims to be upset.      I expect all law enforcement

        to be on a certain side. * * * It’s the defendant and the defendant’s conduct,

        character, record, etc. that concerns this court.

        {¶42} Thereafter, the court offered defense counsel an opportunity to address

which facts he deemed “pertinent or not.”        Defense counsel, however, declined.         The

state then added that it was not attempting to circumvent its recommendation, but it

wished to make the court aware of all of the circumstances.        In completing its statement,

the state provided that the victim in Count 5 would not be attending the hearing, that she

was “greatly affected” by Grove’s actions, and that her recantation was based upon her

fear.   The state then reiterated its agreement with defense counsel:

        That being said, you know, we did reach an agreement and we made a

        recommendation to the court. And I understand that this court is free to
       impose the sentence that it feels is supported by the revised code. But this

       in no way [was] meant to circumvent the agreement I had with [defense

       counsel].

       {¶43} In support of his argument that the state violated the plea agreement by

attempting to influence the court with disparaging statements at sentencing, Grove cites to

State v. Ross, 179 Ohio App.3d 45, 2008-Ohio-5388, 900 N.E.2d 678 (6th Dist.). In

Ross, the court determined that an agreement by the prosecution to stand silent, or take no

position on the sentence, “restricts the government from attempting to influence the

sentence by presenting the court with conjecture, opinion, or disparaging information

already in the court’s possession.”    Ross at ¶ 14, citing State v. Crump, 3d Dist. Logan

No. 8-04-24, 2005-Ohio-4451, ¶ 11.

       {¶44} Here, however, there was no evidence in the record that the state agreed to

stand silent.   Rather, the transcript of the plea hearing, which is the only evidence before

this court of the specific terms of the plea agreement, provides that the state agreed to a

recommended ten-year prison sentence.        In fact, the prosecutor reiterated this position

several times during the hearing.     And when the prosecutor initially presented the plea

agreement to the court, it advised the court that no other promises were made to Grove.

       {¶45} Furthermore, efforts by the state to provide “relevant factual information or

to correct misstatements are not tantamount to taking a position on the sentence and will

not violate the plea agreement.” Ross, citing Crump. In this case, in offering the

detective’s statement and the prosecutor’s additional information concerning Victim 2’s
recantation, which were not previously available to the court through the PSI, the state

provided relevant factual information to the court before sentencing.         There was no

evidence that such statements were attempts to influence the sentence with disparaging

information already in the court’s possession, i.e. through the PSI. See Ross; Crump.

Moreover, the prosecutor provided the additional statements only after the court provided

both Grove and the state an opportunity to make statements.          The court was free to

inquire of the parties whether they wished to further address the court prior to the

imposition of sentence.

       {¶46} Finally, we note that even if we found that the prosecutor breached the

agreement by offering additional statements at sentencing, the court expressly stated that

it was not bound by the agreement reached by the parties (at plea hearing) and that it

“never” agreed with recommended sentences and the additional comments had no effect

on the court’s sentence (at sentencing).     Also, there is no evidence in the record to

suggest that the court’s sentence would have been any different had the court not received

the statements.

       {¶47} Grove’s third assignment of error is overruled.

       {¶48} Judgment affirmed.

       It is ordered that appellee recover of appellant 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. The defendant’s conviction having
been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

      A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




______________________________________________
TIM McCORMACK, JUDGE

EILEEN A. GALLAGHER, P.J., CONCURS;
MELODY J. STEWART, J., CONCURS IN JUDGMENT ONLY (WITH SEPARATE
OPINION ATTACHED)


MELODY J. STEWART, J., CONCURRING IN JUDGMENT ONLY:

      {¶49} I agree with Grove that the state had an implied obligation to act in good

faith with its sentencing recommendation, but I must reluctantly concur that no breach of

that recommendation occurred because the state did not agree to stand silent at

sentencing.

      {¶50} The United States Supreme Court has indicated that “when 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). In

State v. Dye, 127 Ohio St.3d 357, 2010-Ohio-5728, 939 N.E.2d 1217, the Ohio Supreme

Court concluded that a plea bargain is contractual in nature and subject to principles of

contract law. Id. at ¶ 21. The federal courts use these same contract principles to hold
that “when a prosecutor secures a plea with a promise, the promise must be upheld.”

United States v. Jones, 58 F.3d 688, 691 (D.C.Cir.1995). See also United States v. Khan,

920 F.2d 1100, 1105 (2d Cir.1990) (applying “implied obligation of good faith and fair

dealing” to plea agreement); United States v. Hawkins, 274 F.3d 420, 430-431 (6th

Cir.2001) (“Like all contracts, [a plea agreement] includes an implied obligation of good

faith and fair dealing.”); Khan at 1105 (applying “implied obligation of good faith and

fair dealing” to plea agreement).

       {¶51} Good faith is “‘a compact reference to an implied undertaking not to take

opportunistic advantage in a way that could not have been contemplated at the time of

drafting, and which therefore was not resolved explicitly by the parties.’” Ed Schory &

Sons, Inc. v. Soc. Natl. Bank, 75 Ohio St.3d 433, 443-444, 662 N.E.2d 1074 (1996),

quoting Kham & Nate’s Shoes No. 2, Inc. v. First Bank of Whiting, 908 F.2d 1351, 1357

(7th Cir.1990).

       {¶52} The state agreed to recommend that the court impose a ten-year sentence on

Grove. It could, consistent with the express terms of its agreement, offer the court

information to ensure that Grove would not receive less than ten years in prison. While

the information the state offered may have gone beyond what was strictly necessary to

ensure that the court did not impose less than ten years in prison, the state did not take

opportunistic advantage in a way that could not have been contemplated at the time the

parties entered their agreement.
        {¶53} Notably, Grove did not insist that the state stand or remain silent as a term of

the plea agreement. Had the state’s silence been a part of the sentencing agreement, the

state would have no basis for offering the information it offered at sentencing.

        {¶54} Admittedly, there is no clear line in this case between what constitutes a

good faith presentation of information designed to ensure that the court enters a sentence

consistent with a recommendation and simple “piling on.”1 But for defense counsel, the

takeaway from this case is that if counsel wants to ensure that the state does nothing that

could be viewed as undermining an agreed upon sentence, the state’s agreement to stand

silent at sentencing must be made a part of the plea agreement.




         During sentencing, the court indicated that the state’s alleged bad faith in offering additional
        1


facts was of no consequence because the court would not be bound by any sentencing
recommendation and the state suggests that this militated against any prejudice to Grove. The
United States Supreme Court has made it clear that the breach of a plea agreement is not dependent
on whether the sentencing judge would have been influenced by the breached term of the plea
agreement. Santobello, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427.
