[Cite as State v. Dowler, 2015-Ohio-5027.]


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

STATE OF OHIO,                                  :      Case No. 15CA7

        Plaintiff-Appellee,                     :

v.                                              :      DECISION AND
                                                       JUDGMENT ENTRY
NICHOLAS DOWLER,                                :

        Defendant-Appellant.                    :      RELEASED: 11/30/2015


                                             APPEARANCES:

Timothy Young, Ohio Public Defender, and Terrence K. Scott, Assistant Ohio Public Defender,
Columbus, Ohio, for appellant.

Keller J. Blackburn, Athens County Prosecuting Attorney, and Merry M. Saunders, Athens
County Assistant Prosecuting Attorney, Athens, Ohio, for appellee.


Hoover, P.J.
        {¶1}     Defendant-appellant Nicholas Dowler (“Dowler”) entered into a negotiated plea

agreement with the plaintiff-appellee State of Ohio (“State”) in which he pleaded guilty to an

amended count of robbery and two counts of theft in exchange for the dismissal of the remaining

count. The State further agreed to recommend an eight-year prison sentence and not oppose

judicial release after five years. At the sentencing hearing, the State indicated that it would not

oppose judicial release “pending a Warden’s report after five years.” The trial court convicted

Dowler upon his guilty plea to the offenses and sentenced him to an aggregate eight-year prison

term.

        {¶2}     After five years had elapsed, Dowler filed a motion for judicial release. The State

responded that it would not oppose judicial release if his institutional summary report was
Athens App. No. 15CA7                                                                                2


favorable. The report, however, disclosed that Dowler had tested positive for illegal drugs on two

different occasions—once for cocaine and once for opiates—and was disciplined internally for

these violations. Based upon the institutional report being unfavorable, the State argued against

judicial release. The trial court then denied Dowler’s motion for judicial release.

       {¶3}    On appeal, Dowler asserts that the trial court erred in denying his motion for

judicial release because the State breached the parties’ plea agreement by opposing his motion.

We reject Dowler’s assertion. The State had indicated at the sentencing hearing that its

recommendation regarding judicial release would depend on the Warden’s institutional report

after five years. Dowler did not object to this additional condition. Unfortunately, during

Dowler’s imprisonment, he tested positive for illegal drugs twice. The Warden disclosed this

information in the institutional report. Thus, the unfavorable report allowed the State to oppose

the motion for judicial release according to the terms discussed at the sentencing hearing. In

addition, the trial court had an independent basis irrespective of what the parties recommended to

deny his motion for judicial release. Under these circumstances, the trial court did not abuse its

broad discretion in denying his motion for judicial release.

                                              I. Facts

       {¶4}    The Athens County Grand Jury returned an indictment in July 2009 that charged

Nicholas Dowler with one count of grand theft in violation of R.C. 2913.02(A)(1), a felony of

the third degree. This case was designated as Case Number 09CR0238. In October 2009, the

Athens County Grand Jury returned another indictment charging Dowler with two counts of

aggravated robbery in violation of R.C. 2911.01(A)(1) and (3), felonies of the first degree, and

one count of theft in violation of R.C. 2913.02(A)(1), a felony of the fifth degree. This case was

designated as Case Number 09CR0364.
Athens App. No. 15CA7                                                                               3


       {¶5}    After the parties negotiated a plea agreement in the cases, Dowler pleaded guilty

to an amended charge of theft in Case Number 09CR0238 and to an amended charge of robbery

and the original charge of theft in Case Number 09CR0364 in return for dismissal of the

remaining charge of aggravated robbery. (09CR0238, OP16; 09CR0364, OP18). The document

in which Dowler withdrew his plea of not guilty and entered a plea of guilty included the

following language:

       No promises have been made except as part of this plea agreement, stated entirely

       as follows: STATE WILL RECOMMEND 8 YR. SENTENCE AND WILL NOT

       OPPOSE JUDICIAL RELEASE AFTER 5 YEARS; STATE WILL NOT

       OPPOSE FURLOUGH UNTIL SATURDAY DEC 26, 2009.

(Emphasis sic.) (Id.).

       {¶6}    At the change of plea hearing, the State represented that as part of the plea

agreement, it “would not oppose judicial release after five years.” The trial court further

specified that the state was “also committing that it will not oppose judicial release after five

years have been served[.]” (09CR0238, OP43; 09CR0364, OP40, p. 1, 7). At the time, the State

did not mention any condition on its promise not to oppose judicial release, but the trial court did

not suggest that Dowler would automatically be granted judicial release after five years in prison.

(Id. at 12). In fact, the trial court specifically told Dowler: “* * * [T]he Court usually approves of

plea agreements and usually sentences in accordance with them. There’s a lot of good reasons for

that. But I’m not required to. * * *” (Emphasis added.) (Id. at 7).

       {¶7}    The State presented the following facts to support the offenses to which Dowler

pleaded guilty. For Case Number 09CR0238, Dowler removed an automatic pistol and holster

without permission from a residence. (Id. at 2). In Case Number 09CR0364, Dowler approached
Athens App. No. 15CA7                                                                                4


a woman walking along the street, brandished a weapon, and took her purse. (Id. at 3). Dowler

then went to a gas station and used one of the woman’s credit cards. (Id.). The trial court

accepted Dowler’s guilty plea, convicted him of the offenses he pleaded guilty to, and dismissed

the remaining charge in Case Number 09CR0364. (09CR0238, OP16; 09CR0364, OP18).

       {¶8}    At sentencing, in accordance with the parties’ plea agreement, the State

recommended an eight-year aggregate prison sentence. (09CR0238, OP42; 09CR0364, OP40, p.

2). The State also noted that it “will not oppose judicial release pending a Warden’s report after

five years.” (Id.). Although this condition on the State’s promise had not been mentioned at the

plea hearing or specified in the written plea, Dowler and his counsel did not object to the

additional language. Dowler and his counsel did not contend that the condition was not part of

the parties’ plea agreement. (Id.). Further, the trial court explained what types of prison

infractions might prevent Dowler’s judicial release after five years:

       BY THE JUDGE: * * * Hopefully the goal of the parties here is that you get

       judicial release and that works out okay. But I have to tell you that’s within the

       realm of possibility. Now Mr. Wallace is able to file a motion for judicial release

       for you if you want him to when the time comes. That will be something between

       the two of you. Did you have any questions about that?

       BY MR. DOWLER: What about fights and stuff? Because I mean in prison, I

       heard prison is pretty rough these days.

       BY THE JUDGE: We get a report. When there’s a judicial release hearing we get

       a report as to what’s happened. Minor matters are not usually a concern of the

       Court. But if something would happen serious enough that let’s say you got

       caught for assaulting somebody with a weapon, something like that would mean
Athens App. No. 15CA7                                                                                5


        that you might not get judicial release. But minor matters usually are not negative

        enough to * * * prevent judicial release.

(Id. at 8).

        {¶9}   In January 2010, the trial court sentenced Dowler to an aggregate prison term of

eight years. This was consistent with the parties’ plea agreement. (09CR0238, OP20;

09CR0364, OP21).

        {¶10} In January 2015, after Dowler had served five years of his sentence, he filed a

motion for judicial release. (09CR0238, OP24; 09CR0364, OP23). In his motion, Dowler’s

counsel specified that under the terms of the parties’ plea agreement, “[t]he State agreed to not

oppose judicial release after five (5) years if the Defendant had a favorable institutional summary

report.” (Id.). His memorandum in support of the motion emphasized that he moved the trial

court “for judicial release pending a favorable Warden’s report.” (Id.). The State responded to

the motion by stating that “[p]er the negotiated plea agreement, the State would not oppose

judicial release pending a favorable Institutional Report Summary.” (09CR0238, OP25;

09CR0364, OP24).

        {¶11} The trial court held a hearing on Dowler’s motion at which he admitted that, as

the institutional summary report noted, during his imprisonment, he tested positive for cocaine in

October 2012, and he tested positive for opiates in May 2013. (09CR0238, OP44; 09CR0364,

OP41, p. 5). He was disciplined for both offenses by being placed in “the hole” for 30 days. (Id.

at 3, 5).

        {¶12} In February 2015, the trial court denied Dowler’s motion for judicial release

based on his institutional summary report. (09CR0238, OP30; 09CR0364, OP28). As a result of

the trial court’s denial of Dowler’s motion for judicial release, Dowler filed this timely appeal.
Athens App. No. 15CA7                                                                                6


                                      II. Assignment of Error

       {¶13} Dowler assigns the following error for our review:

       The State breached the plea agreement when it opposed Mr. Dowler’s motion for
       judicial release in violation of Crim.R. 11.

                                       III. Law and Analysis

                                           A. Jurisdiction

       {¶14} “The Ohio Constitution grants courts of appeals jurisdiction ‘to review and affirm,

modify, or reverse judgments or final orders.’ ” Smith v. Chen, 142 Ohio St.3d 411, 2015-Ohio-

1480, 31 N.E.3d 633, ¶ 8, quoting Ohio Constitution, Article IV, Section 3(B)(2). “The General

Assembly has enacted R.C. 2505.02 to specify which orders are final.” State v. Johnson, 4th

Dist. Scioto No. 14CA3660, 2015-Ohio-3370, ¶ 8, citing Smith at ¶ 8.

       {¶15} In State v. Coffman, 91 Ohio St.3d 125, 742 N.E.2d 644 (2001), syllabus, the

Supreme Court of Ohio held that “[a] trial court’s order denying shock probation pursuant to

former R.C. 2947.061(B) is not a final appealable order.” The court premised its holding on the

fact that although the decision arises in a special proceeding, no substantial right of the defendant

is impacted even if there is a constitutional or statutory violation. Id. at 127-129. Judicial release

replaced shock probation effective July 1996, and consistent with Coffman, courts have generally

held that a trial court’s order denying judicial release pursuant to R.C. 2929.20 is not a final

appealable order. See generally State v. Hague, 11th Dist. Ashtabula No. 2015-A-0030, 2015-

Ohio-3645, ¶ 3, and cases cited therein.

       {¶16} Nevertheless, following its decision in Coffman, the Supreme Court of Ohio

affirmed the judgment of a court of appeals denying a writ of mandamus to compel a defendant’s

release from prison because the defendant had an adequate remedy in the ordinary course of law

to raise his claim that the state breached a plea agreement—he “could also have appealed any
Athens App. No. 15CA7                                                                                                    7


judgment by Judge McCown denying his motion for judicial release.” State ex rel. Rowe v.

McCown, 108 Ohio St.3d 183, 2006-Ohio-548, 842 N.E.2d 51, ¶ 5. This holding presupposed

that a judgment denying a motion for judicial release premised on a purported breached plea

agreement constituted a final appealable order; otherwise, an appeal would not have been an

adequate legal remedy.

         {¶17} Based on Rowe, appellate courts, including this one, have recognized an exception

to the general rule in Coffman by holding that the denial of a motion for judicial release affects a

substantial right made in a special proceeding and thus constitutes a final appealable order when

the state breaches a plea agreement by opposing the judicial release. See State v. Francis, 4th

Dist. Meigs No. 10CA2, 2011-Ohio-4497, ¶ 14; State v. Jimenez, 9th Dist. Summit No. 24609,

2009-Ohio-4337, ¶ 6.1 The parties agree here that the judgment appealed constitutes a final

appealable order; and we so found in our prior administrative entry in this case. Therefore, we

proceed to the merits of this case.

                                              B. Standard of Review

         {¶18} “R.C. 2929.20, Ohio’s judicial-release statute, allows certain offenders to apply

for early release from prison.” State v. Ware, 141 Ohio St.3d 160, 2014-Ohio-5201, 22 N.E.3d

1082, ¶ 1. Judicial release is a privilege, not an entitlement; and statutes authorizing courts to

suspend execution of a sentence are strictly construed. Id. at ¶ 12.

         {¶19} R.C. 2929.20(B) vests the trial court with discretion in granting an eligible

defendant’s judicial release by providing that “[o]n the motion of an eligible offender or upon its


1
  In State v. Williams, 10th Dist. Franklin No. 07AP-1035, 2008-Ohio-1906, ¶ 10, the appellate court dismissed an
appeal from a judgment denying a motion for judicial release and noted, “[w]e further conclude that appellant may
not avoid this jurisdictional barrier by arguing that the trial court ‘broke its agreement’ to grant a motion for judicial
release after three months.” That case, however, is distinguishable because it did not discuss Rowe, did not involve
a claimed breach of a plea agreement by the State, and did not include any evidence supporting the defendant’s
claim that the trial court breached the plea agreement or represented that it would grant judicial release to the
defendant.
Athens App. No. 15CA7                                                                                  8


own motion, the sentencing court may reduce the eligible offender’s aggregated nonmandatory

prison term or terms through a judicial release under this section.” (Emphasis added.) Therefore,

the trial court’s decision can be reversed only upon a showing of an abuse of that discretion. See,

e.g., State v. Jenkins, 4th Dist. Scioto No. 10CA3389, 2011-Ohio-6924, ¶ 9 (applying an abuse

of discretion standard in reviewing a trial court’s decision finding a violation of judicial release

under R.C. 2929.20(K)). An abuse of discretion is an unreasonable, arbitrary, or unconscionable

use of discretion, including an action that no conscientious judge could honestly have taken.

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.

       {¶20} Moreover, appellate courts have generally applied the abuse of discretion standard

to determine whether a party breached a plea agreement. See State v. Blair, 4th Dist. Scioto No.

11CA3429, 2012-Ohio-769, ¶ 16, and cases cited therein. In Blair, however, we applied a de

novo standard of review of this claim because the plea agreement’s terms were contained in an

unambiguous, written document. Id. The pertinent provision of the parties’ plea agreement here

is not contained in an unambiguous, written document, so we will apply the general abuse of

discretion standard.

                                            C. Analysis

       {¶21} In his sole assignment of error, Dowler asserts that the State breached the parties’

plea agreement when it opposed his motion for judicial release.

       {¶22} “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
Athens App. No. 15CA7                                                                                 9


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, 2006-Ohio-2929, ¶

13.

       {¶23} 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. Walsh, 5th Dist. Licking No. 14-CA-110, 2015-Ohio-4135, ¶ 18.

       {¶24} The plea agreement was set forth in writing in the document entitled “Plea of

Guilty.” (09CA0238, OP 16; 09CA0364, OP 18). This document was signed by Dowler, defense

counsel, and the prosecutor. The plea agreement specified that the State would not oppose

Dowler’s motion for judicial release after he served five years in prison. It did not include a

provision that the non-opposition to the motion for judicial release was conditioned upon a

favorable institutional summary report.

       {¶25} Nevertheless, the record establishes that the parties reasonably understood that the

State’s promise not to oppose a motion by Dowler was so conditioned. At the sentencing

hearing, the state explicitly identified the condition concerning the institutional report; and the

trial court emphasized that if the report disclosed something more than a minor infraction during

imprisonment, he might not be granted judicial release after five years in prison. Notably, in

Dowler’s own motion for judicial release and memorandum in support, he conceded that the

State’s plea-agreement promise not to oppose the motion was expressly conditioned on him

receiving a favorable institutional report. Therefore, the parties reasonably understood that under
Athens App. No. 15CA7                                                                                 10


the plea agreement, a favorable institutional report was a condition of the State’s promise not to

oppose judicial release.

       {¶26} In addition, even if this condition were not an express condition of the parties’

plea agreement, 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. Bembry, 7th Dist.

Columbiana No. 13 CO 33, 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). Additional misconduct during incarceration represents a substantial change

in circumstances from when the plea agreement was executed.

       {¶27} The trial court correctly determined that Dowler’s institutional summary report

was not favorable. As he conceded in his sworn testimony at the hearing on his motion for

judicial release, Dowler twice tested positive for illegal drugs-cocaine and opiates-during his

imprisonment.

       {¶28} Dowler argues that his infractions were minor because he did not harm another

inmate or staff member and his violations consisted of two failed drug tests that occurred during

only .10% of the days he was initially incarcerated in prison. We are not persuaded.

Notwithstanding his incarceration, Dowler somehow managed to obtain illegal drugs and

consume them, resulting in his positive drug tests. This constitutes criminal activity. The fact that

he did not commit additional violations during the rest of his imprisonment does not minimize

the severity of those violations.
Athens App. No. 15CA7                                                                                             11


         {¶29} This evidence established that Dowler breached the condition of the plea

agreement that he have a favorable institutional summary report during his first five years of

incarceration. Because he did not, the State was relieved of its obligation under the plea

agreement not to oppose judicial release. See Blair, supra, at ¶ 19 (“As a result of Blair’s breach,

the state was then released of its obligations under the plea agreement and was free to oppose her

judicial release.”).

         {¶30} Moreover, even if the State would not have opposed the motion for judicial

release, the trial court would not have been bound by the parties’ recommendation to release

him. See State v. Davis, 4th Dist. Lawrence No. 05CA9, 2005-Ohio-5015, ¶ 15 (“a court is not

bound to accept the prosecution’s recommended sentence as part of a negotiated plea

agreement”); State ex rel. Duran v. Kelsey, 106 Ohio St.3d 58, 2005-Ohio-3674, 831 N.E.2d

430, ¶ 6 (trial court is not bound by prosecutor’s recommendation as part of plea agreement).

The trial court’s denial of Dowler’s motion for judicial release was supported by the adequate

independent basis that his institutional summary report disclosed two serious infractions—

consuming illegal drugs—during his first five years of imprisonment.2 See Blair at ¶ 20 (even if

the state breached the plea agreement, the trial court expressed an adequate independent basis to

reject defendant’s motion for judicial release because she failed to complete prison sponsored

programs aimed at rehabilitation).

         {¶31} Therefore, Dowler failed to establish that the trial court acted in an arbitrary,

unconscionable, or unreasonable manner by denying his motion for judicial release. The trial




2
 It is notable that during the sentencing hearing, a gentleman spoke, Mr. Stalder, indicating that Dowler “needs drug
help.” It is understandable that the trial court would rely upon the drug violation infractions as the basis for the
denial of the motion for judicial release.
Athens App. No. 15CA7                                                                           12


court properly determined that his continued abuse of illegal drugs during his imprisonment

warranted denial of his motion. We overrule Dowler’s assignment of error.

                                        IV. Conclusion

       {¶32} Dowler has not proven that the trial court abused its considerable discretion by

denying his motion for judicial release. Having overruled his sole assignment of error, we affirm

the judgment of the trial court.

                                                                      JUDGMENT AFFIRMED.
Athens App. No. 15CA7                                                                                 13


                                       JUDGMENT ENTRY

        It is ordered that the JUDGMENT IS AFFIRMED and that Appellant shall pay the costs.

        The Court finds reasonable grounds for this appeal existed.

       It is ordered that a special mandate issue out of this Court directing the Athens County
Court of Common Pleas 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.

Harsha, J.: Concurs in Judgment and Opinion.
McFarland, A.J.: Concurs in Judgment Only.

                                                For the Court


                                                BY: ____________________________
                                                    Marie Hoover
                                                    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.
