[Cite as State v. Liles, 2015-Ohio-3093.]


                       IN THE COURT OF APPEALS OF OHIO
                           THIRD APPELLATE DISTRICT
                                ALLEN COUNTY




STATE OF OHIO,

       PLAINTIFF-APPELLEE,                                 CASE NO. 1-14-61

       v.

DEMOND D. LILES,                                           OPINION

       DEFENDANT-APPELLANT.



                   Appeal from Allen County Common Pleas Court
                            Trial Court No. CR2013 0472

                                       Judgment Affirmed

                              Date of Decision: August 3, 2015



APPEARANCES:

        Kenneth J. Rexford for Appellant

        Terri L. Kohlrieser for Appellee
Case No. 1-14-61


SHAW, J.

       {¶1} Defendant-appellant, Demond D. Liles (“Liles”), appeals the

December 2, 2014 judgment of the Allen County Court of Common Pleas,

accepting his guilty plea and convicting him on four counts of Trafficking in

Cocaine each with a vehicle forfeiture specification and one with a major drug

offender specification, and sentencing him to a prison term of twenty-five years.

       {¶2} On December 12, 2013, the Allen County Grand Jury returned a

fifteen-count indictment against Liles stating the following charges: Count One:

Trafficking in Cocaine, with a vehicle forfeiture specification, in violation of R.C.

2925.03(A)(1), (C)(4)(c), a felony of the fourth degree; Count Two: Permitting

Drug Abuse, with a vehicle forfeiture specification, in violation of R.C.

2925.13(A), a felony of the fifth degree; Count Three: Trafficking in Cocaine,

with a vehicle forfeiture specification, in violation of R.C. 2925.03(A)(1),

(C)(4)(d), a felony of the third degree; Count Four: Permitting Drug Abuse, with a

vehicle forfeiture specification, in violation of R.C. 2925.13(A), a felony of the

fifth degree; Count Five: Trafficking in Cocaine, with a vehicle forfeiture

specification, in violation of R.C. 2925.03(A)(1), (C)(4)(e), a felony of the second

degree; Count Six: Permitting Drug Abuse, with a vehicle forfeiture specification,

in violation of R.C. 2925.13(A), a felony of the fifth degree; Count Seven:

Trafficking in Cocaine, with a vehicle forfeiture specification, in violation of R.C.



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2925.03(A)(1), (C)(4)(f), a felony of the first degree; Count Eight: Permitting

Drug Abuse, with a vehicle forfeiture specification, in violation of R.C.

2925.13(A), a felony of the fifth degree; Count Nine: Trafficking in Cocaine, with

a vehicle forfeiture specification, in violation of R.C. 2925.03(A)(1), (C)(4)(e), a

felony of the second degree; Count Ten: Permitting Drug Abuse, with a vehicle

forfeiture specification, in violation of R.C. 2925.13(A), a felony of the fifth

degree; Count Eleven: Trafficking in Cocaine, with both a vehicle forfeiture

specification and a major drug offender (“MDO”) specification, in violation of

R.C. 2925.03(A)(1), (C)(4)(g), a felony of the first degree; Count Twelve:

Permitting Drug Abuse, with a vehicle forfeiture specification, in violation of R.C.

2925.13(A), a felony of the fifth degree; Count Thirteen: Trafficking in Cocaine,

in violation of R.C. 2925.03(A)(1), (C)(4)(f), a felony of the first degree; Count

Fourteen: Permitting Drug Abuse, in violation of R.C. 2925.13(A), a felony of the

fifth degree; Count Fifteen: Possession of Cocaine, in violation of R.C.

2925.11(A), (C)(4)(e), a felony of the first degree.

       {¶3} The charges stemmed from Liles’ participation in a series of

controlled drug transactions for the sale of cocaine with a confidential informant.

Liles subsequently entered a plea of not guilty to the charges and the case

proceeded to discovery.

       {¶4} On September 22, 2014, Liles appeared in court and pursuant to a



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negotiated plea agreement withdrew his previously tendered plea of not guilty and

entered a plea of guilty to Count One: Trafficking in Cocaine, with a vehicle

forfeiture specification, a felony of the fourth degree; Count Five: Trafficking in

Cocaine, with a vehicle forfeiture specification, a felony of the second degree;

Count Seven: Trafficking in Cocaine, with a vehicle forfeiture specification, a

felony of the first degree; and Count Eleven: Trafficking in Cocaine, with both a

vehicle forfeiture specification and a major drug offender specification, a felony of

the first degree. The prosecution dismissed the remaining eleven counts listed in

the indictment as a result of the parties’ agreement. As part of the plea deal, the

prosecution specifically reserved the right to be heard at sentencing, but agreed not

to make a sentencing recommendation.

       {¶5} The trial court accepted Liles’ guilty plea and entered a finding of

guilt. The matter was continued for sentencing and the preparation of a pre-

sentence investigation.

       {¶6} On December 1, 2014, Liles appeared for sentencing at which time the

trial court heard statements from the prosecutor, defense counsel, Liles, and

persons speaking on Liles’ behalf and in mitigation for sentencing purposes. The

trial court sentenced Liles to a prison term of twelve months on Count One; a

mandatory prison term of six years on Count Five; a mandatory prison term of

seven years on Count Seven; and a mandatory prison term of eleven years on



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Count Eleven. The trial court ordered the prison terms to run consecutively for a

total stated prison term of twenty-five years.

       {¶7} Liles filed this appeal, asserting the following assignments of error.

                  ASSIGNMENT OF ERROR NO. I
       THE SENTENCE SHOULD BE REVERSED AND
       REMANDED BECAUSE THE PROSECUTION BREACHED
       THE PLEA AGREEMENT, THEREBY DENYING TO MR.
       LILES DUE PROCESS OF LAW AS GUARANTEED TO HIM
       BY BOTH THE UNITED STATES CONSTITUTION AND
       OHIO CONSTITUTION.

                       ASSIGNMENT OF ERROR NO. II

       THE BREACH OF THE PLEA AGREEMENT BY THE
       PROSECUTION WAS PLAIN ERROR THAT THE TRIAL
       COURT SHOULD HAVE CORRECTED.

                      ASSIGNMENT OF ERROR NO. III

       TRIAL COUNSEL FOR THE DEFENSE WAS INEFFECTIVE
       FOR INSUFFICIENTLY OBJECTING TO THE BREACH OF
       CONTRACT BY THE STATE OF OHIO.

                      ASSIGNMENT OF ERROR NO. IV

       THE PROSECUTION ENGAGED IN PROSECUTORIAL
       MISCONDUCT BY ADVOCATING FOR A LENGTHY
       SENTENCE IN THE FACE OF A NEGOTIATED
       SETTLEMENT CALLING FOR NO SUCH ADVOCATING.

                       ASSIGNMENT OF ERROR NO. V

       THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE
       SENTENCES BECAUSE THE RECORD DOES NOT
       SUPPORT THE SENTENCING COURT’S FINDINGS THAT
       ARE   NECESSARY    TO   IMPOSE    CONSECUTIVE
       SENTENCES.


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       {¶8} Due to their interrelated nature, we elect to discuss the first, second,

third, and fourth assignments of error together.

              First, Second, Third, and Fourth Assignments of Error

       {¶9} In these assignments of error, Liles maintains that the prosecutor

breached the plea agreement when he made remarks during the sentencing hearing

advocating for a lengthy sentence after he agreed to make no sentencing

recommendation.      Liles asserts that the prosecutor’s actions amounted to

prosecutorial misconduct and affected his substantial rights because the

prosecutor’s comments improperly influenced the trial court’s sentence. Liles also

acknowledges that no specific objection was made to the prosecutor’s statements

regarding the length of sentence at the sentencing hearing, but urges this Court to

reverse his conviction and sentence under a plain error review. Liles also claims

that his trial counsel was ineffective for failing to object to the prosecutor’s

statements at the sentencing hearing.

       {¶10} For its part, the State maintains that the prosecutor’s statements at

sentencing did not breach the plea agreement. The State highlights the fact that

while it agreed to make no sentencing recommendation, it also expressly reserved

the right to be heard at the sentencing hearing. The State maintains that the

prosecutor’s statements did not amount to a “recommendation” of sentence to the

trial court and fell within the parameters of the plea agreement.



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       {¶11} We have previously held that “when a guilty 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.’

” State v. Crump, 3d Dist. Logan No. 8-04-24, 2005-Ohio-4451, ¶ 10, quoting

Santobello v. New York, 404 U.S. 257 (1971); accord State v. McGinnis, 3d Dist.

Van Wert No. 15-08-07, 2008–Ohio–5825, ¶ 5. The State’s failure to abide by the

terms of the plea agreement entitles the defendant to either specific performance—

i.e., the defendant’s resentencing by a different judge, or withdrawal of his or her

guilty plea. McGinnis at ¶ 5, see also Santobello v. New York, 404 U.S. 257, 263

(1971).

       {¶12} The record demonstrates that in exchange for Liles pleading guilty

on four counts with specifications, the prosecution agreed to dismiss the remaining

eleven counts and specifications in the fifteen-count indictment. The “Negotiated

Plea of Guilty” form detailed the four counts to which Liles agreed to plead guilty

and stated the possible penalties corresponding to each count. The plea agreement

form also contained a section with “check boxes” outlining the following:

       NO PROMISES, THREATS OR COERCION. Defendant states
       this change of plea is not made under threat or coercion and that
       no promises have been made except: (check applicable
       representation)

       