[Cite as State v. Shelton, 2013-Ohio-1441.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98416



                                       STATE OF OHIO
                                              PLAINTIFF-APPELLEE

                                               vs.


                                    JOSEPH SHELTON
                                              DEFENDANT-APPELLANT




                              JUDGMENT:
                    SENTENCE VACATED AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-545216

        BEFORE: Kilbane, J., Stewart, A.J., and Blackmon, J.

        RELEASED AND JOURNALIZED:                    April 11, 2013
ATTORNEY FOR APPELLANT

Joseph F. Salzgeber
Foth & Foth Co., L.P.A.
11221 Pearl Road
Strongsville, Ohio 44136

ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
Kristen L. Sobieski
Assistant County Prosecutor
The Justice Center - 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
MARY EILEEN KILBANE, J.:

      {¶1} Defendant-appellant, Joseph Shelton, appeals from the order of the trial

court that imposed a 12-year term of incarceration following his guilty plea to voluntary

manslaughter and ordered it to be served consecutively to his term of four years of

incarceration in Case No. CR-529582.      For the reasons set forth below, we vacate

Shelton’s sentence and remand for imposition of the concurrent term.

      {¶2} The record indicates that Shelton was indicted in Case No. CR-529582 on

October 7, 2009, and charged with felonious assault, carrying a concealed weapon, and

having a weapon while under disability. On May 5, 2010, he pled guilty to the felonious

assault charge, and the remaining charges were dismissed. On September 8, 2010, he

was sentenced to four years.

      {¶3} The record further reflects that on December 29, 2010, Shelton was indicted

in the instant matter pursuant to a two-count indictment in connection with the July 31,

2010 death of Trent Willis (“Willis”). Count 1 charged him with aggravated murder,

with one- and three-year firearm specifications. Count 2 charged him with having a

weapon while under disability. Shelton pled not guilty.

      {¶4} On April 17, 2012, Shelton entered into a plea agreement with the State of

Ohio whereby the State would amend Count 1 to voluntary manslaughter, the firearm

specifications for this offense would remain, and Count 2 would be dismissed.
      {¶5} At the plea hearing, the following transpired:

      The Court: Going back to that case that you’re serving the 4 years on [Case
      No. CR-529582], with regard to this matter, I can issue a consecutive or
      concurrent sentence in [this] case. I have indicated to counsel that I intend
      to issue a concurrent sentence with regard to that. I wanted to put that out
      there and let you know that the State will be objecting to that, but I’ll run
      the sentence — it’s my intention to run those concurrent to one another.

      The Defendant: Yes, sir.

      The Court: Besides the negotiations of the agreed sentence, have any threats
      or promises been made to you in order to get you to plea today?

      The Defendant: No, sir.

      ***

      The Court: [H]ow do you plead?

      The Defendant: Guilty.

      {¶6} The matter proceeded to sentencing on May 1, 2012. At that time, the

court heard from the victim’s family, and the defendant declined to speak.             The

prosecuting attorney informed the court that Shelton killed Willis while on bond in Case

No. CR-529582. The court sentenced him to a total of 12 years of imprisonment. It also

determined that a consecutive sentence is necessary, would not be disproportionate to the

offenses, the harm was so great that a single term would not reflect the seriousness of the

offense, and that consecutive sentences were necessary to protect the public. The court

then ordered that the instant sentence be served consecutively to the four-year sentence in

Case No. CR-529582.

      {¶7} Defendant now appeals and assigns the following errors for our review:
                                      Assignment of Error 1

       The trial court committed reversible error by participating in the plea
       negotiations to the extent that defendant-appellant was promised that the
       agreed-upon prison sentence would be run concurrently with his existing
       prison sentence in another case, but then ordered those two sentences to
       instead be run consecutively.
                                  Assignment of Error 2

       The    trial   court   erred     and   abused   its    discretion   by   denying

       defendant-appellant’s motion to withdraw his guilty plea at the conclusion

       of his sentencing hearing, where that plea was not knowingly, intelligently

       and voluntarily made under the circumstances.

       {¶8} As an initial matter, we note that pursuant to Crim.R. 11(C)(2), a trial court

must personally address the defendant and determine whether the plea is voluntarily made

with an understanding of the nature of the charges and the maximum penalty involved

before it accepts a guilty plea to a felony offense. State v. Walker, 61 Ohio App.3d 768,

573 N.E.2d 1158 (8th Dist.1989).

       {¶9} Participation by the trial court in the plea process must be scrutinized on

appeal in order to determine whether it undermined the voluntariness of the plea. Id.,

citing State v. Byrd, 63 Ohio St.2d 288, 407 N.E.2d 1384 (1980), syllabus. If the court’s

active conduct “could lead a defendant to believe he cannot get a fair trial because the

judge thinks that a trial is a futile exercise or that the judge would be biased against him at

trial, the plea should be held to be involuntary * * *.” Id., quoting Byrd, 63 Ohio St.2d at

293-294.
       {¶10} If, however, the trial judge’s participation in the plea bargaining was limited

to promising a particular sentence, the case may be remanded for imposition of the

promised sentence. State v. Triplett, 8th Dist. No. 69237, 1997 Ohio App. LEXIS 493

(Feb. 13, 1997); State v. Bonnell, 12th Dist. No. CA2001-12-094, 2002-Ohio-5882; State

v. Layman, 2d Dist. No. 22307, 2008-Ohio-759. As explained in State v. Blackburn, 8th

Dist. Nos. 97811 and 97812, 2012-Ohio-4590, ¶ 21, a plea agreement is a contract

between the prosecution and a criminal defendant and is governed by principles of

contract law. If one side breaches the agreement, the other side is entitled to rescission

or specific performance. Id.

       {¶11} The record reveals that the trial court stated the following to defendant

before accepting his guilty plea:

       I have indicated to counsel that I intend to issue a concurrent sentence with
       regard to that. I wanted to put that out there and let you know that the
       State will be objecting to that, but I’ll run the sentence — it’s my intention
       to run those concurrent to one another. (Emphasis added.)

       The Defendant: Yes, sir.

       The Court: Besides the negotiations of the agreed sentence, have any threats
       or promises been made to you in order to get you to plea today?

       The Defendant: No, sir.

       {¶12} The court’s remarks demonstrate its clear involvement in the plea

proceedings. The court’s statements that it had “indicated to counsel that I intend to

issue a concurrent sentence,” and “wanted to put that out there,” despite the fact that “the
State will be objecting,” became part of the plea and communicated to the defendant that

he would receive concurrent terms.

       {¶13} In our view, the court’s remarks, like the trial court’s remarks in Triplett, led

Shelton to justifiably believe that the agreed twelve-year sentence would be served

concurrent to the sentence in Case No. CR-529582. As such, the court’s participation

was not so extensive as to undermine the voluntariness of the plea itself and does not

render the plea involuntary. The second assignment of error is therefore without merit.

       {¶14} Moreover, the court set forth a definite and specific sentence during the plea

proceedings and, thus, became obligated to impose that particular sentence. Accord

Blackburn at ¶ 22, citing Triplett; Bonnell; Layman. When the court later decided to

order defendant to serve this sentence consecutively to the four-year sentence in Case No.

CR-529582, the court acted contrary to its earlier statement, so the defendant is entitled to

rescind the plea or obtain specific performance of the promised concurrent term.

Triplett; Layman.

       {¶15} Further, although the court did apply the analysis set forth in

R.C. 2929.14(C) before it imposed the consecutive term, and apparently gave great

weight to the fact that this offense was committed while defendant was on bond (and

prior to his sentencing) in Case No. CR-529582, that fact was already established as of

the April 17, 2012 plea hearing where the court informed defendant, on the record, that

concurrent terms would be imposed for the offenses.
         {¶16} In accordance with the foregoing, the first assignment of error is well

taken.

         {¶17} We vacate Shelton’s sentence and remand this case for imposition of the

concurrent term that the court stated it would impose and that the defendant justifiably

relied on at the plea hearing on April 17, 2012.

         It is ordered that 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.




MARY EILEEN KILBANE, JUDGE

PATRICIA A. BLACKMON, J., CONCURS;
MELODY J. STEWART, A.J., CONCURS IN PART AND DISSENTS IN PART (SEE
SEPARATE OPINION ATTACHED)


MELODY J. STEWART, A.J., CONCURRING IN PART AND DISSENTING IN
PART:
         {¶18} I agree with the majority’s decision to reverse this case and vacate

appellant’s conviction. However, I would overrule his first assignment of error, sustain

the second, and allow him to withdraw his guilty plea as not being knowingly,

intelligently, and voluntarily made under the circumstances of this case.

         {¶19} In Shelton’s first assigned error, he argues that the court committed

reversible error by participating in the plea negotiation and promising him that he would

get a concurrent sentence, then ordering him to serve his two sentences

consecutively. But the court did not promise Shelton concurrent sentences. After

informing Shelton that it could order consecutive or concurrent sentences, the court

clearly told Shelton that it intended to run his sentences concurrently. The court went on

to note that even though the state would be objecting, it was still the court’s “intention to

run [the sentences] concurrent to one another.” But the court’s stated intention does not

rise to the level of a promise, nor does it unequivocally indicate that concurrent sentences

“would be imposed” as the majority states. Therefore, I would overrule the first assigned

error.

         {¶20} I would, however, sustain Shelton’s second assigned error and allow him to

withdraw his guilty plea. The analysis of this case is similar to that in State v. Asberry,

173 Ohio App.3d 443, 2007-Ohio-5436, 878 N.E.2d 1082 (8th Dist.), where this court

reversed the decision of the trial court and ordered that the appellant be allowed to

withdraw his guilty plea. We found that after the court’s plea colloquy with Asberry, he

could not “be said to have voluntarily and knowingly entered his guilty plea with an
understanding of the effects of [his] plea” under the circumstances of the case. Id. at ¶

37. Similarly, in light of the trial court’s repeated statements, with no contingencies, of

its intent to impose concurrent sentences, Shelton cannot be said to have understood that

the effect of his plea would result in consecutive sentences.
