[Cite as State v. Dye, 127 Ohio St.3d 357, 2010-Ohio-5728.]




                THE STATE OF OHIO, APPELLANT, v. DYE, APPELLEE.
            [Cite as State v. Dye, 127 Ohio St.3d 357, 2010-Ohio-5728.]
Criminal law — Effect of negotiated guilty pleas on future charges — When the
          state accepts a negotiated guilty plea and the victim later dies of the
          injuries sustained in the crime, the defendant cannot be indicted for
          murder unless the state reserved the right to file additional charges —
          Plea here had been negotiated — Judgment affirmed.
 (No. 2009-1149  Submitted March 31, 2010  Decided December 1, 2010.)
                 APPEAL from the Court of Appeals for Lake County,
                           No. 2008-L-106, 2009-Ohio-2949.
                                  __________________
          CUPP, J.
          {¶ 1} When may a defendant who has pleaded guilty to an offense less
than homicide prior to the victim’s death be prosecuted for homicide when the
victim subsequently dies? In State v. Carpenter (1993), 68 Ohio St.3d 59, 623
N.E.2d 66, syllabus, we held, “The state cannot indict a defendant for murder
after the court has accepted a negotiated guilty plea to a lesser offense and the
victim later dies of injuries sustained in the crime, unless the state expressly
reserves the right to file additional charges on the record at the time of the
defendant’s plea.” The answer depends upon the meaning of “negotiated guilty
plea” and whether the facts show such a plea in Dye’s case.
          {¶ 2} For the reasons that follow, we hold that Dye’s original guilty plea
was a “negotiated guilty plea” within the meaning of Carpenter, and accordingly,
his conviction for aggravated vehicular homicide under R.C. 2903.06(A)(1)(a) is
barred.
                             SUPREME COURT OF OHIO




                                         I
        {¶ 3} On August 10, 1999, appellee, James Dye, drove his truck while
Dye was under the influence of alcohol and while his driver’s license was
suspended. Dye’s vehicle struck Robbie Arnold, a 13-year-old boy, in front of
Arnold’s home in Concord Township, Ohio. The boy suffered severe injuries,
which left him a quadriplegic. Police who came to scene of the accident observed
that Dye smelled of alcohol and slurred his speech, and Dye eventually admitted
having drunk seven beers before driving.
        {¶ 4} In September 1999, the grand jury indicted Dye on one count of
aggravated vehicular assault in violation of R.C. 2903.08, a fourth-degree felony,
and one count of driving under the influence of alcohol in violation of R.C.
4511.19, a first-degree misdemeanor. The aggravated-vehicular-assault count also
added three specifications: (1) that Dye was under the influence of alcohol during
the offense, (2) that he was driving with a suspended license when he committed
the offense, and (3) that he had a previous conviction for driving under the
influence of alcohol. Dye initially pleaded not guilty to these charges, but in
November 1999, he changed his plea to guilty of aggravated vehicular assault and
the first specification, driving under the influence of alcohol, as well as to the
second count. Based on Dye’s guilty plea, the trial court, on the state’s motion,
dismissed the other two specifications in the first count of the indictment. Despite
the gravity of Arnold’s injuries, apparent at the time of the plea, the state did not
reserve the right to file additional criminal charges should Arnold die from those
injuries.
        {¶ 5} In addition to recommending that the second and third
specifications be dismissed, the state represented that an agreement had been
reached with Dye regarding bond pending sentencing:
        {¶ 6} “THE COURT:          * * * You want to continue his bond? I was
considering cancelling his bond today. Had you made an agreement?




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                               January Term, 2010




       {¶ 7} “[THE STATE]: I had assumed that bond was continued. We had
represented to the Defendant that that would happen.
       {¶ 8} “THE COURT: You would recommend that?
       {¶ 9} “[THE STATE]: Yes.
       {¶ 10} “THE COURT: You were involved with the case?
       {¶ 11} “[THE STATE]: Yes. That’s what we had agreed to with the
same conditions, one, no driving, and two, no drug and alcohol use pending the
presentence report. We are also asking that a victim impact statement be ordered.
       {¶ 12} “THE COURT: I will order the victim impact statement as well.
And with your recommendation I will allow him to continue on bond.”
(Emphasis added.)
       {¶ 13} In December 1999, the trial court sentenced Dye to the maximum
prison term for each count: 18 months for aggravated vehicular assault and six
months for driving under the influence, to be served concurrently. Dye was
released from prison in June 2001 after serving his full prison term.
       {¶ 14} On December 26, 2006, more than seven years after the date of the
original incident, Robbie Arnold died from complications of his injuries,
prompting the state to pursue new charges of aggravated vehicular homicide
against Dye.    In July 2007, the grand jury indicted Dye on three counts of
aggravated vehicular homicide: (1) as a proximate result of driving under the
influence of alcohol, in violation of the current R.C. 2903.06(A)(1)(a), a first-
degree felony, (2) recklessly, in violation of the current R.C. 2903.06(A)(2)(a), a
second-degree felony, and (3) recklessly, in violation of the 1999 version of R.C.
2903.06(A), a third-degree felony. Am.Sub.S.B. No. 238, 146 Ohio Laws, Part
VI, 10416, 10427.
       {¶ 15} Dye moved to dismiss the indictment on the authority of
Carpenter, 68 Ohio St.3d 59, 623 N.E.2d 66, contending that his 1999 guilty plea
to the aggravated-vehicular-assault and driving-under-the-influence charges was a



                                         3
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“negotiated guilty plea” within the meaning of Carpenter, and therefore, further
prosecution of him for the 1999 incident was barred..1 The trial court denied the
motion to dismiss, concluding that Dye had not pleaded guilty to a lesser offense
in 1999 and that there was insufficient evidence that the guilty plea was
“negotiated” within the meaning of Carpenter. Dye then changed his plea to “no
contest” to Count One of the indictment, which charged aggravated vehicular
homicide under the current R.C. 2903.06(A)(1)(a). The trial court found Dye
guilty on that count and sentenced him to nine years’ imprisonment, less the time
served on the prior aggravated-vehicular-assault conviction, for a total of seven
and a half years’ imprisonment, and ordered Dye to pay restitution to the victim’s
family.
          {¶ 16} On appeal, the court of appeals sustained Dye’s claim that
Carpenter barred the prosecution for aggravated vehicular homicide. The court of
appeals concluded that Dye’s 1999 plea was “negotiated” under Carpenter
because the state had obtained the benefit of a conviction without a trial and that
the defendant, by pleading guilty, had given up the trial rights enumerated in
Crim.R. 11(C). State v. Dye, Lake App. No. 2008-L-10, 2009-Ohio-2949, at ¶
29-30. The court of appeals did not find consequential that the state had not given
a favorable recommendation concerning sentencing or that Dye had been
sentenced to the maximum at the state’s request. Id. at ¶ 28. Nor did the court of
appeals find it significant that the two specifications that were dismissed on the
state’s motion did not provide for a greater penalty than the specification to which
Dye had pleaded guilty. Id.
          {¶ 17} The state sought review in this court. We accepted the state’s
discretionary appeal on its first proposition of law. State v. Dye, 123 Ohio St.3d

1. Dye also filed another motion, urging the court to apply the aggravated-vehicular-homicide
statute that existed in 1999, which provided a lesser penalty than the law as it existed at the time of
the victim’s death in 2006. The trial court denied that motion. The court of appeals did not reach
that issue, and it is not before us here.




                                                  4
                                January Term, 2010




1492, 2009-Ohio-6015, 916 N.E.2d 1073. It asserts, “State v. Carpenter does not
stand for the proposition that every plea of guilty is a negotiated plea.”
                                          II
                                          A
       {¶ 18} In Carpenter, the defendant had stabbed a victim and was indicted
for one count of felonious assault. 68 Ohio St.3d at 60, 623 N.E.2d 66. Four
months later, Carpenter engaged in plea negotiations with the state and entered a
guilty plea to the lesser included offense of attempted felonious assault. The
opinion does not describe the substance of the plea agreement in that case, but
stated that Carpenter pleaded guilty to attempted felonious assault, a lesser
included offense than the felonious assault charged in the indictment, and the state
agreed to and did recommend the minimum allowable sentence. Carpenter was
sentenced to the minimum prison term of two to ten years. The plea agreement
did not reserve the state’s right to prosecute for any death of the victim resulting
from the defendant’s crime. One year and two months later, in March 1986, the
victim of Carpenter’s assault died. Carpenter was released from prison in 1987,
after almost three years in prison on the attempted-assault charge. In 1988, he
was indicted for the murder of the victim. The trial court eventually dismissed the
indictment based on the terms of the 1985 plea agreement, but the court of
appeals reversed.
       {¶ 19} This court reversed and dismissed the murder indictment against
Carpenter. We concluded that when the state accepts a negotiated guilty plea and
the victim later dies of injuries sustained in the crime, the defendant cannot be
indicted for murder when the state does not expressly reserve the right to file
additional charges in the event of the victim’s death. 68 Ohio St.3d at 60-61, 623
N.E.2d 66. We decided that Carpenter’s expectation that his initial guilty plea
would terminate prosecutions was reasonable under the circumstances. Id. at 62.
                                          B



                                          5
                                  SUPREME COURT OF OHIO




         {¶ 20} The basis for the rule announced in Carpenter was the application
of contract law to the construction of the plea agreement:                      “The holding in
Carpenter is essentially a synthesis of contract and criminal law in a particular
factual setting. Its supporting analysis is ultimately derived from the proposition
that plea agreements are a necessary and desirable part of the administration of
criminal justice, and, therefore, ‘ “must be attended by safeguards to insure the
defendant what is reasonably due in the circumstances.” ’ Id., 68 Ohio St.3d at 61,
623 N.E.2d 66, quoting Santobello v. New York (1971), 404 U.S. 257, 262, 92
S.Ct. 495, 30 L.Ed.2d 427.” State v. Zima, 102 Ohio St.3d 61, 2004-Ohio-1807,
806 N.E.2d 542, ¶ 11.2
         {¶ 21} “ ‘[A] plea bargain itself is contractual in nature and “subject to
contract-law standards.” ’ ” Baker v. United States (C.A.6, 1986), 781 F.2d 85,
90, quoting United States v. Krasn (C.A.9, 1980), 614 F.2d 1229, 1233, quoting
United States v. Arnett (C.A.9, 1979), 628 F.2d 1162, 1164. “In the process of
determining whether disputed plea agreements have been formed or performed,
courts have necessarily drawn on the most relevant body of developed rules and
principles of private law, those pertaining to the formation and interpretation of
commercial contracts.” United States v. Harvey (C.A.4, 1986), 791 F.2d 294,

2. The rule in Carpenter was based on contract-law principles, not the Double Jeopardy Clause of
the Fifth Amendment to the United States Constitution applicable to the states through the
Fourteenth Amendment. When the victim dies after the defendant has pleaded guilty to an offense
less serious than homicide, that plea does not of itself bar the state from prosecuting the defendant
for the homicide under double-jeopardy principles. See generally State v. Thomas (1980), 61 Ohio
St.2d 254, 262, 15 O.O.3d 262, 400 N.E.2d 897, overruled on other grounds, State v. Crago
(1990), 53 Ohio St.3d 243, 559 N.E.2d 1353 (“The courts have long held that where a fact
necessary to the commission of one offense occurs after the defendant has been convicted of
another offense, multiple prosecutions are not barred by the Double Jeopardy Clause”). The
principal element of a homicide offense is the death of the victim, and that element is not part of
an assault charge. The Double Jeopardy Clause provides: “[N]o person * * * shall be subject for
the same offence to be twice put in jeopardy of life or limb.” (Emphasis added.) If at the time of
the guilty plea to the assault charge, the victim has not died, the final element of the homicide has
not occurred, so the offenses are not “the same.” See Diaz v. United States (1912), 223 U.S. 442,
449, 32 S.Ct. 250, 56 L.Ed. 500 (only at the time of the victim’s death, “and not before, [is] it
possible to put the accused in jeopardy for that [homicide] offense”). Accord Brown v. Ohio
(1977), 432 U.S. 161, 169, 97 S.Ct. 2221, 53 L.Ed.2d 187, fn. 7.




                                                 6
                               January Term, 2010




300. Because the defendant’s constitutional rights are at stake in the plea process,
the concerns underlying a plea agreement differ from and go beyond those of
commercial contract law. Carpenter, 68 Ohio St.3d at 61, 623 N.E.2d 66.
       {¶ 22} Our concern in Carpenter was to avoid the breaking of promises
made by the prosecutor in the original plea agreement. Carpenter’s citation of
cases from other states underscores the court’s concern with enforcing the
promises in a valid plea agreement. See id. at 61, citing State v. Thomas (1972),
61 N.J. 314, 294 A.2d 57, and State v. Nelson (1990), 23 Conn.App. 215, 579
A.2d 1104. Thomas relied on Santobello, which involved a concession by the
state that a particular plea agreement had been made following plea bargaining
with the defendant. Santobello, 404 U.S. at 258, 92 S.Ct. 495, 30 L.Ed.2d 427.
The question in Santobello was whether that plea agreement could be enforced
when a new assistant prosecutor sought a different sentence at the sentencing
hearing, unaware of the earlier plea agreement. Id. at 259. The United States
Supreme Court upheld the validity of the plea agreement. Id. at 262. Thomas
quotes Santobello for this proposition: “ ‘[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 must be fulfilled.’ ” 61 N.J.
at 323, 294 A.2d 57, quoting Santobello, 404 U.S. at 262, 92 S.Ct. 495, 30
L.Ed.2d 427. See also Nelson, 23 Conn.App. at 221, 579 A.2d 1104 ( “specific
performance of the [plea] agreement is the only appropriate remedy * * *”). These
cases underscore the basis of the rule in Carpenter—effect must be given to the
intention of the state and the defendant in their plea bargain, and courts should
enforce what they perceive to be the terms of the original plea agreement.
                                         C
       {¶ 23} In order for a guilty plea to be a “negotiated guilty plea” within the
meaning of State v. Carpenter, the record must show the existence of the elements
of a contract (the plea agreement). The state maintains that there was no plea



                                         7
                             SUPREME COURT OF OHIO




agreement and that Dye effectively pleaded guilty to the indictment in the first
case. Dye pleaded guilty to both counts of the first indictment, but only to the
first of the three specifications attached to the aggravated vehicular assault charge.
(To be sure, that specification not only imposed a mandatory prison term, as did
the other specifications that were dismissed, but it included a mandatory
permanent revocation of Dye’s driver’s license.) The state sought the maximum
sentence, which was imposed. The state contends that Dye did not gain a reduced
charge, a more favorable sentencing recommendation, or anything else, as one
would expect from a negotiated plea agreement.
       {¶ 24} This matter is not without some difficulty.          However, a close
examination of the record supports the conclusion that a negotiated plea existed
within the meaning of Carpenter. Although the record is limited regarding the
plea negotiations in Dye’s first case, the transcript of the plea hearing reflects that
some form of communication occurred before that hearing during which Dye
notified the state that he would plead guilty to Counts One and Two and the first
specification. Because Dye agreed to plead to this portion of the charges, the state
recommended dismissal of the two remaining specifications. In addition, the state
indicated that it had made an agreement with Dye to recommend the continuation
of bond on the condition that Dye refrain from driving and using drugs or alcohol.
The state contends that this latter part of the agreement at most related to the
continuation of the bond and not the overall plea, but, although it is a close
question, we view the agreement for continuation of the bond as corroborating the
defendant’s claim that his guilty plea was negotiated with the state. Dye’s change
of plea from not guilty to guilty and the state’s later recommendation that the
second and third specifications be dismissed, in conjunction with the agreement
on continuation of bond, support the conclusion that Dye’s guilty plea was a
negotiated plea within the meaning of Carpenter. The state obtained a definite




                                          8
                               January Term, 2010




prison term and avoided the uncertainties of trial. Dye gave up rights that may
have resulted in acquittal.
       {¶ 25} As the court of appeals concluded, any time a defendant enters a
guilty plea, he or she will have relinquished the right to a trial at which the
defendant could be acquitted, and the state gains the benefit of obtaining a
conviction without having to go to trial. State v. Dye, 2009-Ohio-2949, at ¶ 28.
We caution that our holding that a negotiated plea existed in Dye’s case does not
mean that every plea of guilty necessarily is the result of a negotiated plea
agreement within the meaning of Carpenter. On this record, the evidence of plea
negotiations and the parties’ awareness of the gravity of the victim’s injuries,
together with the state’s failure to reserve the right to prosecute for any later
homicide charge, justify the conclusion that the state agreed to forgo further
prosecution of Dye.
       {¶ 26} Holding that Dye’s plea was a negotiated plea is consistent with
the rule in Carpenter and upholds important rights afforded to defendants
generally. Both the state and Dye were aware of the grave nature of Arnold’s
injuries, and the record contains testimony that Arnold’s death from those injuries
was foreseeable. As in Carpenter, without an expressed reservation by the state
of the right to prosecute for any later homicide charge, Dye had a reasonable
expectation that his plea of guilty would end criminal prosecution based on this
incident. Given the extreme nature of Arnold’s injuries and the defendant’s
reasonable expectation that pleading guilty would end the criminal proceedings
arising out of the incident, we conclude that if the state had wished to reserve the
right to bring further charges in the event of Arnold’s death, it would have so
reserved on the record. Requiring the state to make this reservation under these
circumstances places no unreasonable burden on prosecutors and ensures that
defendants are fully aware of the consequences of their guilty pleas.




                                         9
                            SUPREME COURT OF OHIO




       {¶ 27} Because Dye’s 1999 plea was a “negotiated guilty plea” within the
meaning of Carpenter, the state had a duty to “expressly reserve[] the right to file
additional charges” if the victim dies of his injuries. Id., 68 Ohio St.3d 59, 623
N.E.2d 66, syllabus. Thus, Carpenter precluded the aggravated-vehicular-
homicide charge in this case.
                                         III
       {¶ 28} We hold that Dye’s 1999 guilty plea to aggravated vehicular
assault was a “negotiated plea” to a lesser offense within the meaning of
Carpenter. Carpenter thus required the state to expressly reserve its right to bring
a later homicide charge against Dye in the event that the victim died from injuries
sustained in the aggravated vehicular assault to which Dye had pleaded guilty.
Accordingly, the state was precluded from bringing the aggravated-vehicular-
homicide charge against Dye after the victim died. We affirm the judgment of the
court of appeals.
                                                                Judgment affirmed.
       PFEIFER, O’CONNOR, O’DONNELL, and LANZINGER, JJ., concur.
       LUNDBERG STRATTON, J., dissents.
       BROWN, C.J., not participating.
                                __________________
       LUNDBERG STRATTON, J., dissenting.
       {¶ 29} I respectfully dissent. For the reasons that follow, I would hold
that Dye’s original guilty plea was not a “negotiated guilty plea” within the
meaning of State v. Carpenter (1993), 68 Ohio St.3d 59, 623 N.E.2d 66, syllabus,
and accordingly, his conviction for aggravated vehicular homicide under R.C.
2903.06(A)(1)(a) is not barred.
       {¶ 30} At the outset, the holding in Carpenter is not compelled by the
Double Jeopardy Clause of the Fifth and Fourteenth Amendments to the United
States Constitution. The Double Jeopardy Clause provides: “[N]o person * * *




                                         10
                                     January Term, 2010




shall be subject for the same offence to be twice put in jeopardy of life or limb”
and generally bars a successive prosecution for the “same” offense. See
Blockburger v. United States (1932), 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed.
306; Gavieres v. United States (1911), 220 U.S. 338, 342, 31 S.Ct. 421, 55 L.Ed.
489.3 The principal element of a homicide offense is the death of the victim, and
that element is not part of an assault charge. If at the time of the guilty plea to the
assault charge, the victim has not died, the final element of the homicide charge
has not occurred. See Diaz v. United States (1912), 223 U.S. 442, 449, 32 S.Ct.
250, 56 L.Ed. 500 (only at the time of the victim’s death, “and not before, [is] it
possible to put the accused in jeopardy for that [homicide] offense”). Accord
Brown v. Ohio (1977), 432 U.S. 161, 169, 97 S.Ct. 2221, 53 L.Ed.2d 187, fn. 7.
        {¶ 31} Thus, when the victim dies after the defendant has pleaded guilty
to an offense other than homicide, that plea does not of itself bar the state under
double jeopardy principles from prosecuting the defendant for the homicide. See
generally State v. Thomas (1980), 61 Ohio St.2d 254, 262, 15 O.O.3d 262, 400
N.E.2d 897, overruled on other grounds, State v. Crago (1990), 53 Ohio St.3d
243, 559 N.E.2d 1353 (“The courts have long held that where a fact necessary to
the commission of one offense occurs after the defendant has been convicted of
another offense, multiple prosecutions are not barred by the Double Jeopardy
Clause”).
        {¶ 32} Instead, the basis for our concern for the defendant’s expectation
that he would not face additional prosecution was the “negotiated guilty plea.”
Carpenter, 68 Ohio St.3d 59, 623 N.E.2d 66, syllabus. Carpenter noted that the
guilty plea had followed “plea negotiations with the state.” Id. at 60. The opinion


3. In determining whether an offense is the “same” for double-jeopardy purposes, courts employ
the “same elements” test of Blockburger, 284 U.S. at 304, 52 S.Ct. 180, 76 L.Ed. 306. The same-
elements test inquires as to whether each offense contains an element not included in the other: if
not, they are the “same offence,” and the Double Jeopardy Clause bars successive prosecution.
United States v. Dixon (1993), 509 U.S. 688, 696, 113 S.Ct. 2849, 125 L.Ed.2d 556.




                                                11
                             SUPREME COURT OF OHIO




does not describe the substance of the plea agreement, but the court observed that
Carpenter did not plead guilty to felonious assault, the crime charged in the
indictment, but instead to attempted felonious assault, a lesser included offense of
felonious assault. Id. Additionally, Carpenter was sentenced to the minimum
prison term for attempted assault, and the court noted that the “state had agreed to
recommend” that minimum sentence. Id. The lesser charge, combined with the
state’s favorable sentencing recommendation, indicated that a negotiated plea
agreement had been reached in that case.
       {¶ 33} I agree with the cases cited by the majority. However, I believe
that their application to this case merits a different result. In this case, the state
maintains that there was no plea agreement and that Dye effectively pleaded
guilty to the indictment in the first case. Dye pleaded guilty to both counts of the
first indictment.    While he pleaded guilty only to the first of the three
specifications attached to the charge of aggravated vehicular assault, that
specification carried the most serious consequences for the defendant. It not only
imposed a mandatory prison term (as did the other specifications that were
dismissed), but it included a mandatory permanent revocation of Dye’s driver’s
license. Further, the dismissal of the other two specifications did not affect Dye’s
sentence.
       {¶ 34} The state sought the maximum sentence, which was imposed. The
state contends that Dye did not gain a reduced charge, a more favorable
sentencing recommendation, or anything else that one would expect from a
negotiated plea agreement. Dye, on the other hand, contends that the dismissal of
two of the three specifications shows that there was a negotiated plea agreement.
He also argues that the state’s comments to the effect that the prosecutor had
assumed that Dye’s bond would be continued pending sentencing (and that he had
so represented to Dye and his counsel) show that a negotiated plea existed,
because the trial judge had been prepared to revoke Dye’s bond.




                                         12
                               January Term, 2010




        {¶ 35} The record does not contain the details of a plea agreement.
However, Dye essentially pleaded guilty to the crimes charged.           The state
requested a maximum sentence, which was imposed. There was no negotiated
reduced plea or plea bargain. The dismissal of the two specifications to the
charge of aggravated vehicular assault did not result in a reduced sentence. Dye
received no more lenient a sentence than he would have if he had been found
guilty at trial.
        {¶ 36} The fact that there is a written entry memorializing defendant’s
guilty plea is not dispositive of the characterization of the plea as a “negotiated
guilty plea.” The guilty plea form’s recitation that “No promises other than those
which are part of this plea agreement have been made” does not prove a
“negotiated guilty plea” within the meaning of Carpenter. The written entry is on
a form used for guilty pleas.     Thus, the typed words “plea agreement” that
appeared as part of the form do not suffice of themselves to satisfy Carpenter’s
requirement of a negotiated guilty plea.
        {¶ 37} The record regarding the continuation of bond does not
unequivocally support appellee’s position. The judge inquired of the assistant
prosecutor about continuation of the bond: “Had you made an agreement?” The
prosecutor responded: “I had assumed that bond was continued.             We had
represented to the Defendant that that would happen.” The judge then asked the
prosecutor: “You would recommend that?” and the prosecutor replied
affirmatively. Upon being asked by the judge whether he had been involved with
this case previously, the prosecutor responded: “Yes. That’s what we had agreed
to with the same conditions, one, no driving, and two, no drug and alcohol use
pending the presentence report. We are also asking that a victim impact statement
be ordered.” The court then continued the bond for Dye. At most, this brief
discussion shows an agreement with regard to the continuation of bond pending
sentencing on the terms earlier provided. And a bond is not part of a sentence. A



                                           13
                             SUPREME COURT OF OHIO




bond only provides assurance that the defendant will appear for trial. When
considered with the substance of the plea—essentially pleading guilty to the
offense charged—and the state’s sentencing recommendation of the maximum
sentence, the trial court’s conclusion that Dye’s plea was not a “negotiated guilty
plea” within the meaning of Carpenter is not error.
       {¶ 38} I agree with the court of appeals that any time a defendant enters a
guilty plea, he or she will have relinquished the right to a trial at which the
defendant could be acquitted, and the state gains the benefit of obtaining a
conviction without having to go to trial. State v. Dye, Lake App. No. 2008-L-106,
2009-Ohio-2949, at ¶ 28. But to hold that this detriment to the defendant and
benefit to the state—which will be true of every guilty plea—amounts to a
negotiated plea agreement under Carpenter is to read that case’s holding too
broadly. Under that reading, any guilty plea would be considered “negotiated.”
That is not what Carpenter held. Instead, Carpenter addresses those guilty pleas
in which both the state and the defendant understand at the time of the agreement
that the state does not intend to seek further prosecution of the defendant for the
incident, even if the victim later dies from injuries suffered from the incident. Not
every guilty plea will satisfy that condition.
       {¶ 39} Because Dye’s 1999 plea was not a “negotiated guilty plea” within
the meaning of Carpenter, I believe that the state had no duty to expressly reserve
the right to file additional charges in the event of the death of the victim.
Accordingly, I would hold that the state was not precluded from bringing the
aggravated-vehicular-homicide charge against Dye after the victim died.             I
respectfully dissent.
                               __________________
       Charles E. Coulson, Lake County Prosecuting Attorney, and Teri R.
Daniel, Assistant Prosecuting Attorney, for appellant.




                                          14
                           January Term, 2010




       Blakemore, Meeker & Bowler Co., L.P.A., and Michael B. Bowler, for
appellee.
                        ______________________




                                   15
