[Cite as State v. Lumbus, 2014-Ohio-3821.]



                 Court of Appeals of Ohio
                               EIGHTH APPELLATE DISTRICT
                                  COUNTY OF CUYAHOGA



                              JOURNAL ENTRY AND OPINION
                                      No. 100787



                                     STATE OF OHIO

                                                      PLAINTIFF-APPELLEE

                                                vs.

                                  BRIAN LUMBUS, JR.
                                                      DEFENDANT-APPELLANT




                                             JUDGMENT:
                                              AFFIRMED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                   Case No. CR-11-556136-A

        BEFORE: Stewart, J., Blackmon, P.J., and McCormack, J.

        RELEASED AND JOURNALIZED:                     September 4, 2014
FOR APPELLANT

Brian Lumbus, pro se
Inmate No. 210921
Cuyahoga County Jail
P.O. Box 5600
Cleveland, OH 44101


ATTORNEYS FOR APPELLANT

Robert L. Tobik
Cuyahoga County Public Defender

BY: Erika B. Cunliffe
Assistant Public Defender
310 Lakeside Avenue, Suite 200
Cleveland, OH 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY: James D. May
Assistant County Prosecutor
The Justice Center
1200 Ontario Street, 9th Floor
Cleveland, OH 44113
MELODY J. STEWART, J.:

       {¶1} In State v. Lumbus, 8th Dist. Cuyahoga No. 99301, 2013-Ohio-4592, this

court held that the trial court erred by giving defendant-appellant Brian Lumbus, Jr., a

sentence that exceeded the three-year sentence that he and the state agreed to as part of a

plea bargain. In remanding the case, we ordered the court to “either impose the agreed

three-year sentence or allow Lumbus to withdraw his guilty plea.” Id. at ¶ 52. On

remand, the court refused to allow Lumbus to withdraw his guilty plea and ordered him to

serve a total of three years. On appeal from that sentence, Lumbus argues that the court

erred by refusing to allow him to withdraw his guilty plea.

       {¶2} Lumbus argues that despite the phrasing of our remand, we nonetheless held

that he had a “reasonable expectation that he would be given a three-year sentence as part

of his plea,” so the court’s refusal to impose that sentence meant that “Lumbus could not

have voluntarily, knowingly, or intelligently entered his plea.”      Id. at ¶ 50.    This

conclusion, he argues, should have required the court to grant the motion to vacate the

guilty plea.

       {¶3} To put Lumbus’s argument in perspective, we need to examine the basis for

the prior reversal.   When this court held that the plea was rendered involuntary,

unknowing, or unintelligent, it was because Lumbus agreed to plead guilty under

sentencing terms that were material to his agreement to enter into the plea. Lumbus at ¶

42. A plea agreement is a form of contract between the defendant and the state, State v.

Dye, 127 Ohio St.3d 357, 2010-Ohio-5728, 939 N.E.2d 1217, ¶ 21, so any alteration to
the terms that induced Lumbus to plead guilty affected the voluntary nature of the

agreement.

      {¶4} We should be clear that the trial judge was not a party to the plea agreement

and thus not bound by its terms — it had broad discretion to sentence Lumbus within the

applicable statutory range.   State v. Foster, 109 Ohio St.3d 1, 2006-Ohio-856, 845

N.E.2d 470, ¶ 100. However, once the court became aware that Lumbus entered into a

plea agreement with expectations regarding his sentence, it was obligated to inform

Lumbus prior to accepting the plea that it would not be bound by any sentencing

agreement between the parties. Lumbus at ¶ 43. Had the court done so, Lumbus would

have had the choice of refusing to plead guilty or taking a chance that the court would

impose a sentence consistent with the expectations of the parties. Either way, Lumbus

would have entered his guilty plea knowingly and intelligently.

      {¶5} The effect of our mandate from the first appeal — to require specific

performance of the plea agreement or to vacate the guilty plea — allowed the trial court

to select between two mutually-exclusive alternatives. However, the court could only

impose a three-year sentence (a form of specific performance) on a valid guilty plea.

Our prior decision specifically found that Lumbus’s guilty plea was unknowing and

involuntary at the time it was entered because the court did not inform him prior to

accepting the plea that it would not be bound by any sentencing agreement between the

parties. Imposing a three-year sentence could not make an invalid plea valid.
       {¶6} Despite giving the trial court two options, our decision was a mandate that the

court was not free to ignore. Under the “mandate rule,” a lower court must “carry the

mandate of the upper court into execution and not consider the questions which the

mandate laid to rest.” Sprague v. Ticonic Natl. Bank, 307 U.S. 161, 168, 59 S.Ct. 777,

83 L.Ed. 1184 (1939). When the mandate on appeal leaves nothing left to decide, the

lower court is bound to execute it. State v. Carlisle, 8th Dist. Cuyahoga No. 93266,

2010-Ohio-3407, ¶ 16.

       {¶7} Lumbus argued on remand that our mandate in the first appeal gave “him the

option to either accept the three-year sentence, specific performance on the original

sentence to which he pled guilty, or to vacate his guilty plea and proceed to trial.” See tr.

12. The court properly rejected that argument because our mandate very clearly gave the

court, not Lumbus, the discretion to exercise the stated options.           Lumbus did not

challenge our mandate by way of a motion for reconsideration or appeal to the Ohio

Supreme Court, so the mandate stands.           The court imposed a three-year sentence

consistent with our mandate to either impose sentence or permit Lumbus to withdraw his

guilty plea. We cannot find that the court erred by complying with our mandate. The

assigned error is overruled.

       {¶8} Judgment affirmed.

       It is ordered that appellee recover of appellant its 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 Cuyahoga

County Court of Common Pleas 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.




MELODY J. STEWART, JUDGE

PATRICIA ANN BLACKMON, P.J., and
TIM McCORMACK, J., CONCUR
