[Cite as State v. Dehart, 2018-Ohio-865.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

STATE OF OHIO                                     :
                                                  :
         Plaintiff-Appellee                       :  C.A. CASE NOS.: 27587/27678
                                                  :
 v.                                               :  T.C. NOS.: 2017-CR-67/2017-CR-64
                                                  :
 DAVID DEHART                                     :  (Criminal Appeal from
                                                  :  Common Pleas Court)
         Defendant-Appellant                      :
                                                  :
                                             ...........

                                            OPINION

                              Rendered on the 9th day of March, 2018.

                                             ...........

MATHIAS H. HECK, JR., by HEATHER JANS, Atty. Reg. No. 84470, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, 301
W. Third Street, 5th Floor, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee


GARY SCHAENGOLD, Atty. Reg. No. 7144, 4 E. Schantz Avenue, Dayton, Ohio 45409
     Attorney for Defendant-Appellant

                                            .............

DONOVAN, J.

        {¶ 1} Defendant-appellant David Dehart appeals his conviction and sentence for

two counts of violating a protection order, in violation of R.C. 2919.27(A)(1)/(B)(1)(3), both
                                                                                          -2-


felonies of the fifth degree.

        {¶ 2} On January 17, 2017, Dehart was indicted in Case No. 2017 CR 0064 for

one count of violating a protection order, in violation of R.C. 2919.27 (A)(1)/(B)(1)(3), a

fifth degree felony. On the same day, Dehart was indicted in Case No. 2017 CR 0067

for an additional count of violating a protection order, in violation of R.C. 2919.27

(A)(1)/(B)(1)(3), also a fifth degree felony.

        {¶ 3} Shortly thereafter on January 31, 2017, Dehart pled guilty to both counts of

violating a protection order in Case Nos. 2017 CR 0064 and 2017 CR 0067. During a

sidebar discussion at the plea hearing, it was acknowledged by the trial court and the

parties that Dehart had already received a twelve-month prison sentence for a probation

revocation in a separate case (Case No. 2016 CR 3661). Nevertheless, it was agreed

that Dehart would receive community control in Case Nos. 2017 CR 0064 and 2017 CR

0067.    Furthermore, the trial court and the parties agreed that Dehart’s community

control sanctions would not begin until he completed his twelve-month sentence for the

probation revocation in Case No. 2016 CR 3661.

        {¶ 4} At the plea hearing, the trial court stated the following regarding the maximum

possible sentences to which Dehart was subject in Case Nos. 2017 CR 0064 and 2017

CR 0067 :

                The Court: Okay.      Each of those felony fives carry maximum

        potential penalties of a $2500.00 fine and from six to twelve months in

        prison though by – but you’re going to get community control, which can last

        as long as five years and could involve six months in jail; do you understand

        that?
                                                                                         -3-


                  Dehart: Yes, sir.

Tr. 12.

          {¶ 5} Later in the plea hearing, the trial court stated the following:

                  Trial Court: And, Mr. Dehart, you understand that should you get

          revoked from community control sanctions in your case, you’re going to get

          twelve months on each case for a total of two years. Do you understand

          that?

                  Dehart: Yes, I do.

Tr. 14.

          {¶ 6} At the end of the Crim.R. 11 colloquy, Dehart pled guilty to the charged

offenses. The trial court accepted Dehart’s guilty pleas, ordered the preparation of a pre-

sentence investigation report (PSI), and scheduled a sentencing hearing to be held on

February 14, 2017.

          {¶ 7} After the sentencing hearing was rescheduled, Dehart filed a motion to

withdraw his plea in Case No. 2017 CR 0064, arguing that he was confused regarding

the sentence he was to receive.1 Prior to sentencing Dehart, the trial court held a hearing

with respect to his motion to withdraw his guilty pleas. The trial court denied Dehart’s

motion to withdraw and immediately proceeded to sentencing in Case Nos. 2017 CR 0064

and 2017 CR 0067.            Ignoring the prior agreement to impose community control

sanctions, the trial court sentenced Dehart to twelve months in prison for each of the two

counts of violating a protection order. The trial court ordered that the sentences run



1The record establishes that Dehart did not file a motion to withdraw his plea in Case
No. 2017 CR 0067.
                                                                                          -4-


consecutively to one another but concurrent to the twelve-month term in Case No. 2016

CR 3661, for an aggregate sentence of twenty-four months in prison. Dehart’s judgment

entry of conviction was filed on March 3, 2017.

       {¶ 8} Thereafter, on May 16, 2017, Dehart filed a motion for leave to file a delayed

appeal, but he did not file a notice of appeal. In an entry issued on July 17, 2017, we

granted Dehart’s motion for leave to file a delayed appeal on the condition that he file a

notice of appeal with the trial court within twenty days. (CA 27587) On August 7, 2017,

Dehart filed a notice of appeal in CA 27678 and a second motion for leave to file a delayed

appeal. In an entry issued on August 17, 2017, we consolidated CA 27587 and CA

27678 and granted Dehart’s second motion for leave to file a delayed appeal.

       {¶ 9} Dehart filed his appellate brief on December 5, 2017. On January 11, 2018,

the State filed a notice of conceded error pursuant to Local Rule 2.24. On the same day,

the State filed its responsive brief in which it conceded that Dehart’s guilty pleas were not

knowingly, intelligently, and voluntarily made because the trial court failed to honor its

agreement whereby Dehart was to receive community control sanctions after pleading

guilty to two counts of violating a protection order in Case Nos. 2017 CR 0064 and 2017

CR 0067.    Accordingly, the State agrees with Dehart that the trial court’s judgment

should be reversed and remanded for either the imposition of community control

sanctions or to allow Dehart to withdraw his guilty pleas. We agree.

       {¶ 10} Dehart’s first assignment of error is as follows:

       {¶ 11} “APPELLANT’S       PLEAS     OF     GUILTY    WERE      NOT    KNOWINGLY,

INTELLIGENTLY AND VOLUNTARILY MADE IN COMPLIANCE WITH RULE 11(C) OF

THE OHIO RULES OF CRIMINAL PROCEDURE.”
                                                                                        -5-


      {¶ 12} In his first assignment, Dehart argues that his guilty pleas were not

knowingly, intelligently, and voluntarily made because the trial court failed to honor its

promise to impose community control sanctions after he pled guilty to two counts of

violating a protection order in Case Nos. 2017 CR 0064 and 2017 CR 0067.

      {¶ 13} “When a defendant enters a plea in a criminal case, the plea must be made

knowingly, intelligently, and voluntarily.” State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-

4130, 953 N.E.2d 826, ¶ 9. “Crim.R. 11(C) requires a trial judge to determine whether

that criminal defendant is fully informed of his or her rights and understands the

consequences of his or her guilty plea.” Id. at ¶ 10. In determining whether Dehart's

guilty plea was made knowingly, intelligently, and voluntarily, we must review the record

“to ensure that Crim.R. 11 was followed by the trial court upon defendant's submission of

the guilty plea.” State v. Spates, 64 Ohio St.3d 269, 272, 595 N.E.2d 351 (1992). A trial

court must substantially comply with the notification of the non-constitutional rights

contained in Crim.R. 11(C)(2)(a) and (b), and a defendant must show prejudice before a

plea will be vacated for failure to substantially comply with those notifications. State v.

Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 14, 17.

      {¶ 14} In State v. Mills, 2d Dist. Montgomery No. 26619, 2015-Ohio-5385, ¶ 14,

we stated the following:

      *** [A] plea agreement is a contract, and a breach of that contract is

      governed by contract law. State v. Adkins, 161 Ohio App.3d 114, 2005–

      Ohio–2577, 829 N.E.2d 729 (4th Dist.). A breach of that contract entitles

      the non-breaching party to recision or specific performance. Santobello v.

      New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); State v.
                                                                                       -6-

       Layman, 2d Dist. Montgomery No. 22307, 2008–Ohio–759. A promised

       sentence is an inducement to plea, and unless given as promised, the plea

       is not voluntary. State v. Gilroy, 195 Ohio App.3d 173, 2011–Ohio–4163,

       959 N.E.2d 19 (2d Dist.); Layman at ¶ 15, citing State v. Triplett, 8th Dist.

       Cuyahoga No. 69237, 1997 WL 64051 (Feb. 13, 1997); State v. Bonnell,

       12th Dist. Clermont No. CA2001–12–094, 2002–Ohio–5882.

       {¶ 15} In the instant case, the record clearly established that the trial court

promised Dehart that he would receive community control sanctions if he pled guilty to

two counts of violating a protection order in Case Nos. 2017 CR 0064 and 2017 CR 0067.

Significantly, we note that no conditions were placed upon Dehart at the time of the plea

which could account for the trial court’s decision to disregard its promise of community

control. Therefore, the trial court was obligated to sentence Dehart to community control

sanctions or otherwise permit him to withdraw his guilty pleas. The trial court, however,

did neither. Rather, the trial court sentenced Dehart to two consecutive twelve-month

sentences in Case Nos. 2017 CR 0064 and 2017 CR 0067. The trial court’s decision to

disregard its promise of community control rendered Dehart’s guilty pleas unknowing,

unintelligent, and involuntary.

       {¶ 16} Dehart’s first assignment of error is sustained.

       {¶ 17} Dehart’s second assignment of error is as follows:

       {¶ 18} “THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTIONS TO

WITHDRAW HIS PLEAS OF GUILTY PRIOR TO SENTENCING PURSUANT TO RULE

32.1 OF THE OHIO RULES OF CRIMINAL PROCEDURE.”

       {¶ 19} In light of our disposition with respect to Dehart’s first assignment, his
                                                                                         -7-


second assignment of error is rendered MOOT, and therefore, we need not address it.

       {¶ 20} Dehart’s first assignment of error having been sustained, the judgment of

the trial court is reversed and remanded for either the imposition of community control

sanctions or to allow Dehart to withdraw his guilty pleas.

                                         .............


WELBAUM, P.J., concurs.

TUCKER, J., concurring:

       {¶ 21} I agree that under the circumstances of this case the trial court had the

obligation to either allow Dehart to withdraw his guilty plea or, upon the withdrawal motion

being overruled, to impose the agreed upon sentence. State v. Walton, 2 Ohio App.3d

117, 440 N.E.2d 1225 (10th Dist. 1981). I write separately to note that a defendant’s

motion to withdraw his guilty plea, made after the parties, with the court’s imprimatur,

enter into a sentencing agreement, could be, under different circumstances, considered

an anticipatory repudiation of the sentencing contract that would allow the trial court to

overrule the withdrawal motion and impose a sentence greater than the agreed upon

sentence. State v. Calloway, 7th Dist. Mahoning No. 10 MA 147, 2011-Ohio-4257.


Copies mailed to:

Heather Jans
Gary Schaengold
Hon. Gregory F. Singer
