[Cite as State v. Caldwell, 2013-Ohio-5017.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 99166



                                       STATE OF OHIO

                                                     PLAINTIFF-APPELLEE

                                               vs.

                                 WARREN CALDWELL
                                                     DEFENDANT-APPELLANT



                               JUDGMENT:
                   AFFIRMED IN PART, REVERSED IN PART,
                             AND REMANDED


                                    Criminal Appeal from the
                             Cuyahoga County Court of Common Pleas
                                      Case No. CR-555552

        BEFORE: S. Gallagher, P.J., Kilbane, J., and E.T. Gallagher, J.

        RELEASED AND JOURNALIZED: November 14, 2013
ATTORNEY FOR APPELLANT

Russell S. Bensing
1350 Standard Building
1370 Ontario Street
Cleveland, Ohio 44113


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor

BY:    Ronni Ducoff
       John D. Toth
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
SEAN C. GALLAGHER, P.J.:

       {¶1} Defendant-appellant, Warren Caldwell, appeals his rape and kidnapping

convictions. For the reasons stated herein, we affirm in part, reverse in part, and remand

the matter to the trial court with instructions.

       {¶2} In a 30-count indictment, Caldwell was charged with 12 counts of

kidnapping, with sexual motivation and sexually violent predator specifications,1 and six

counts of rape, with sexually violent predator specifications. These charges included

Count 12, which alleged that the victim was less than 13 years of age and that Caldwell

purposely compelled her to submit by force or threat of force, during an incident that

allegedly occurred between February 8, 2008, and June 15, 2008. The indictment further

charged Caldwell with two counts of attempted rape, nine counts of gross sexual

imposition, and one count of disseminating material harmful to juveniles in Count 28.

Caldwell pled not guilty, and the matter proceeded to a jury trial on March 14, 2012.

The state dismissed two counts of rape and one count of attempted rape.




       1 The indictment charged defendant with 12 counts of kidnapping with
sexual motivations and sexually violent predator specifications in Counts 1, 3, 5, 7,
10, 13, 15, 18, 21, 24, 26, and 29. He was also charged with six counts of rape with
sexually violent predator specifications in Counts 11, 12, 16, 17, 22, and 23. The
indictment further charged defendant on two counts of attempted rape in Counts 19
and 20, and nine counts of gross sexual imposition in counts 2, 4, 6, 8, 9, 14, 25, 27,
and 30. He was also charged with one count of disseminating material harmful to
juveniles in Count 28.
       {¶3} The morning of the second day of trial, the attorneys and the court discussed

the possibility of a plea to “one or more child endangering charges.” The trial court

rejected the proposed plea, stating the following:

       He is accused of some terrible crimes here. And he either did them or did
       not do them.

              If he did not do them, he should be exonerated by an appropriate
       verdict; if he did do them, he should be appropriately sanctioned upon a
       guilty verdict.

             I find it hard to believe that there is some middle ground here, where
       he would deny committing rapes and gross sexual impositions and
       kidnapping, yet he would admit to having endangered [the victim].

              I haven’t heard evidence or a summary of evidence that would
       support his having endangered her, other than by, if he did it, having raped
       or otherwise sexually abused her.

             If you want further expansion of my thoughts * * * you might want
       to look at [State v. Frazier, Cuyahoga C.P. No. CR-549274 (Apr. 19,
       2012)].

              So I’m not inclined then, to accept a plea bargain, because I don’t
       think that plea bargain would be in the interest of justice, as I understand it.

       {¶4} In the afternoon of the second day of trial, following a portion of the victim’s

testimony, the attorneys again informed the court that they had reached a plea agreement

in which Caldwell would plead guilty to two counts of importuning and two counts of

abduction. In addition to the reasons “mentioned earlier,” the court rejected the second

plea agreement, stating it believed the plea agreement was “not in the interest of justice”

and was “inherently coercive.” The trial court indicated as follows:
             So we began a jury trial, and now, having heard some evidence,
       which, let’s be honest, if credited by this jury, may result in a guilty verdict,
       he proposes pleading guilty to certain third-degree felonies.

              I believe that to be inherently coercive.

             It would not be if he had agreed to a similar proposal prior to trial,
       but now we’re in a situation where he has heard some damaging evidence,
       but he hasn’t heard or seen * * * that evidence which may tend to favor
       him.

             So I don’t see how Mr. Caldwell can plead guilty to anything from
       jaywalking on up to anything less than the crimes charged at this moment,
       I’m not talking about before trial, at this moment, without it being to some
       degree coercive.

               And so I mention that, and I’ll just reiterate what I said before, which
       is that if the testimony we’ve heard is true beyond a reasonable doubt, then
       the State is entitled to have Mr. Caldwell found guilty of something worse
       than importuning or abduction.

              If, however, the testimony is not true beyond a reasonable doubt, Mr.
       Caldwell is entitled to walk out of here and never think about this case
       again.

               And that summarizes my other reason for not believing that such a
       plea is in the interest of justice.

       {¶5} In further discussions on the record, the trial court reiterated its all-or-nothing

viewpoint for rejecting the plea, stating as follows:

       [H]aving heard * * * some evidence * * *, it occurs to me that there are
       really two possible results.

              One just result is that Mr. Caldwell be found not guilty of all charges
       and be done with this case entirely, as I mentioned earlier.

               Another just result is that Mr. Caldwell be found guilty, at a
       minimum, because we’ve just heard the testimony to support it, of rape of a
       child, I think she said she was ten at the time. * * *
             So he either did nothing, or nothing criminal, and should be
      acquitted, or he did something which our legislature has characterized as
      one of the worst crimes one can commit, and he should be then treated
      accordingly.

             I’m not sure I see the middle ground.

      {¶6} The court further indicated that even assuming an appropriate inquiry into the

plea was made, it would still decline to accept the plea as not in the interest of justice.

The prosecutor proceeded to express that trials are works in progress and to express her

concerns over the weaknesses in the case and the need to convince the 12 jurors to agree

with the victim. The trial court was not persuaded, and the trial proceeded.

      {¶7} Following the state’s case, Caldwell motioned for acquittal pursuant to

Crim.R. 29, which the court granted as to six counts. Following the presentation of

Caldwell’s evidence, the jury returned guilty verdicts on Count 7 (kidnapping with sexual

motivation and sexual predator specifications), and Count 12 (rape of a victim under 13

years old with force and a sexually violent predator specification). The jury acquitted

Caldwell of all the remaining charges.

      {¶8} Following the merger of the offenses, the court sentenced Caldwell to 25

years to life in prison, in accordance with R.C. 2907.02 and 2971.03.            Caldwell

subsequently filed a motion for a new trial and a motion to enforce the plea agreement

offered by the state. The trial court denied both motions, and this appeal followed.

      {¶9} Caldwell raises four assignments of error for our review.           In his first

assignment of error, Caldwell argues the trial court erred in refusing to accept the second
plea agreement he made with the state in the afternoon of the second day of trial, wherein

he agreed to plead guilty to two counts of importuning and two counts of abduction.

      {¶10} It is well settled that the trial court enjoys wide discretion in deciding

whether to accept or reject a negotiated plea agreement. Santobello v. New York, 404

U.S. 257, 262, 92 S.Ct. 495, 30 L.E.2d 427 (1971); Akron v. Ragsdale, 61 Ohio App.2d

107, 121, 399 N.E.2d 119 (9th Dist.1978). Indeed, a defendant has no absolute right to

have a guilty plea accepted. Santobello at 262; Lafler v. Cooper, 556 U.S. 1___, 132

S.Ct. 1376, 1395, 182 L.Ed.2d 398 (2012).

      {¶11} However, the court’s discretion is not without limits. For example, a trial

court abuses its discretion when it rejects a plea agreement by relying on a blanket policy

rather than considering the facts and circumstances of the particular case.       State v.

Fitzgerald, 188 Ohio App.3d 701, 2010-Ohio-3721, 936 N.E.2d 585, ¶ 11 (8th Dist.). A

blanket policy rejecting plea agreements results in rejections based on policy rather than

reason.

      {¶12} A court’s discretion may be exercised erroneously if the court fails to give

reasons for its decisions and its reasons are not apparent from the record. “A decision

rejecting a plea bargain should be accompanied by the trial court’s reasons therefor,

absent facts and circumstances otherwise appearing which permit an evaluation of the

decision.” Ragsdale at paragraph two of the syllabus.
       {¶13} In this case, the court provided two reasons for rejecting the plea agreement.

 It stated that the plea agreement would not serve the interest of justice and was

inherently coercive. In rejecting the second plea agreement, the court stated:

              So he either did nothing, or nothing criminal, and should be
       acquitted, or he did something which our legislature has characterized as
       one of the worst crimes one can commit, and he should be then treated
       accordingly. I’m not sure I see the middle ground.

       ***

               In this case, if Mr. Caldwell has caused injury to [the victim], that
       injury is based on the testimony we’ve just heard, at a minimum, rape.

              Why, then, is it justice that he receive a consequence of whatever
       sentence he might get for importuning or abduction?

              By the same token, if he hasn’t done this, which by his not guilty
       plea he asserted that he hasn’t, how is it fair that he be convicted of four
       third-degree felonies and have to report as a sex offender for 15 years?

               So, in my opinion, the proposed plea bargain does not comport with
       the interest of justice.

       {¶14} The trial court’s reasoning would preclude virtually every plea bargain as

being against the “interest of justice” because every plea bargain involves the defendant

pleading to something less than he is charged with, but more than his not guilty plea

admits. In the trial court’s mind, the “interest of justice” required Caldwell to go through

trial and live with the verdict. He would either be convicted of the charges, if found

guilty, or acquitted, if found not guilty. In the court’s mind, there was “no middle

ground.”
       {¶15} Although there is no evidence the trial court had a blanket policy rejecting

all pleas after the commencement of trial, the court’s rationale became a de facto policy

of rejecting any plea offered in this case because it provided no principled reason

justifying its all-or-nothing approach. Had the court articulated some objective reason by

which we could review its exercise of discretion, we might have found no abuse of

discretion.

       {¶16} The trial court referenced its prior decision in Frazier, Cuyahoga C.P. No.

CR-549274, as part of its rationale for rejecting the first plea agreement. In Frazier, the

court rejected a plea because the evidence could not support the proposed charge. The

defendant had been charged with two counts of rape and one count of kidnapping. Both

sides agreed the defendant would plead guilty to abduction and the two rape counts would

be dismissed. In rejecting the plea agreement the court stated in Frazier:

       Justice here demands either that the defendant be convicted of a sex offense
       or nothing because the evidence cannot support a conviction for kidnapping
       or abduction without a conviction of a sex offense. Similarly, the court is
       not bound to put its imprimatur on a plea bargain by accepting the
       defendant’s guilty plea where it is inconsistent with any reasonable jury’s
       possible decision on the issues of fact.

       {¶17} In Frazier, the court provided a reason for rejecting the plea agreement, i.e.,

the evidence could not support a kidnapping or abduction conviction without a sex

conviction. In this case, the trial court failed to state any material reason for rejecting the

plea agreement. Furthermore, the plea agreement in this case included two counts of

importuning, which are sex offenses, and two counts of abduction. Count 20 of the

indictment was later amended to charge importuning to conform to the evidence. Thus,
after hearing all the evidence, the trial court concluded that a jury could determine that a

conviction for importuning was a possible outcome of trial. And the two proposed

abduction counts are lesser included offenses of kidnapping.            Therefore, Frazier is

inconsistent with the facts of this case and fails to shed any light on the court’s rationale.

       {¶18} This case should not be read as a movement away from the longstanding and

well-settled principle that a trial judge enjoys wide discretion in deciding whether to

accept or reject a negotiated plea agreement.     Nevertheless, where the decision to reject

a plea is characterized in an “all-or-nothing” approach, that approach is suspect absent

some objective rationale or apparent facts in the record that support the trial court’s

decision.   While the trial judge in this case is a well-seasoned and respected jurist, the

rationale offered on the record and the reference to Frazier were flawed.

       {¶19} It is important to note that the plea discussions in this case began prior to

trial, and the parties indicated to the court there was agreement with the proposed plea

bargain. The prosecutor conceded the records from Berea Children’s Home changed the

complexity of the case and that no one but Caldwell and the victim really knew the truth.

Indeed, the victim had previously recanted accusations that her uncle molested her. The

prosecutor’s argument in favor of the plea agreement illustrates why a plea agreement

would have better served the interest of justice in this case:

             But that’s what I’m trying to get you to understand, Your Honor.
       She could be telling the truth, and no one here knows besides those two
       people.

            She could be telling the absolute truth, but when 12 people have to
       make a decision about whether she was raped or not, if 12 people say,
      “There’s no medical evidence here, I’m not signing the verdict form,” and
      because there’s no medical evidence, he’s acquitted, is that justice? Not if
      he really raped her.

             So here is our remedy for him to stand up before you and say, “Okay,
      I’m willing to take on the onerous task of registering. I’m admitting to
      these [agreed upon] offenses.”

            That’s why I’m saying, I have a different opinion than you about
      where’s the justice.

              I can’t guarantee you that just because she said it happened, that 12
      people are going to agree with her. And if they say not guilty to rape,
      that’s not justice if it really happened.

            That’s * * * the occupational hazard of these cases, that you can’t
      always prove them. That doesn’t mean it didn’t happen.

            And this is not a legal fiction. You’re finding — you’re having a
      defendant stand before you and tell you, “I’m admitting to what she said
      happened.”

      ***

                And that’s why the State is saying * * * it is in the interest of justice.



      {¶20} The role of a prosecutor in the plea-bargaining process should not be

marginalized.      Prosecutors have an inherent duty to seek justice, all the while

representing the interest of the victim and the community as a whole. In offering a plea

deal, prosecutors may also consider the extent of harm caused by the offense, possible

improper motives of a complainant, reluctance of a victim to testify, and cooperation of

the accused in the apprehension and conviction of others.
       {¶21} In addition, prosecutors must at times make difficult decisions regarding the

viability of their evidence, especially at the moment of trial.     The importance of this

process cannot be understated.       Just as a trial judge may have concerns about “the

interests of justice” a prosecutor must likewise be concerned that a potentially guilty party

may go free and escape some level of responsibility.     A valid plea bargain is the state’s

protection to ensure some level of accountability and responsibility is established for

wrongful conduct. Admittedly, this is “negotiated justice” that is often far from the pure

or righteous doctrines of idyllic justice.

       {¶22} In Lafler, 132 S.Ct. 1376, 1381, 182 L.Ed.2d 398, Justice Kennedy noted

that “criminal justice today is for the most part a system of pleas, not a system of trials.

Ninety-seven percent of federal convictions and ninety-four percent of state convictions

are the result of guilty pleas.” See also Missouri v. Frye, 566 U.S. 1___, 132 S.Ct. 1399,

1407, 182 L.Ed.2d 379 (2012).      In such a system, prosecutors must invariably make hard

decisions that must be afforded respectful consideration by the trial judge in deciding

whether to accept or reject a plea, and where a prosecutor’s assessment is rejected, it

should be done with a valid objective. While this may well have been the trial court’s

view, its all-or-nothing analysis did not afford an objective basis for rejecting the

prosecutor’s concerns with the case and the proposed plea agreement.

       {¶23} Here, the trial prosecutor was an experienced and dedicated professional

who does not have a reputation of “giving the courthouse away” in the parlance of plea

negotiations.   While trial judges retain the inherent right to reject a plea, where a
prosecutor, as here, lays out a viable rationale for offering and recommending a plea, the

trial court’s decision to reject that plea should at least objectively address why the court

has rejected the prosecutor’s analysis.        Just as courts enjoy judicial discretion,

prosecutorial discretion is a prerogative of the executive branch of government. See

Wayte v. United States, 470 U.S. 598, 607, 105 S.Ct. 1524, 84 L.Ed.2d 547 (1985); State

ex rel. Murr v. Meyer, 34 Ohio St.3d 46, 516 N.E.2d 234 (1987); Crim.R. 48. Therefore,

while the trial court may reject a plea, in doing so, it “must provide a reasoned exercise of

discretion in order to justify a departure from the course agreed on by the prosecution and

defense.”   United States v. Maddox, 48 F.3d 555, 556 (D.C.Cir.1995); see also

Santobello, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.E.2d 427. It is clear from the record

that this seasoned prosecutor had evaluated the strengths and weaknesses of the case

based both on the facts of the case and her practical experience thus determining the

proposed plea would be just.

       {¶24} The trial court also stated it was rejecting the plea agreement because it was

“inherently coercive.” However, the court made no inquiry into Caldwell’s reasons for

accepting the plea agreement. Defendants enter into plea agreements after calculating

the risk of trial based on the available evidence. They also consider the ramifications of

the plea. After making such calculations, some defendants knowingly, intelligently, and

voluntarily plead guilty even while maintaining their innocence because they conclude it

would best serve their own interests. North Carolina v. Alford, 400 U.S. 25, 36-37, 91

S.Ct. 160, 27 L.Ed.2d 162 (1970).
        {¶25} Caldwell’s trial lawyer, who had a duty to counsel him regarding his

understanding of the plea agreement and its ramifications, assured the court that Caldwell

was in fact making the plea knowingly, intelligently, and voluntarily. The trial court

found an inquiry with regard to the plea unnecessary, stating it would still decline to

accept the plea as not in the interest of justice.

        {¶26} Therefore, we find the trial court abused its discretion in rejecting the plea

agreement in this case, and the first assignment of error is sustained. Having determined

that the court erred in rejecting the plea agreement, the second assignment of error is

moot.

        {¶27} In his third assignment of error, Caldwell claims the trial court erred in

allowing evidence of other acts and in allowing hearsay evidence.

        {¶28} We review the admission of evidence under an abuse of discretion standard.

 State v. Driggins, 8th Dist. Cuyahoga No. 98073, 2012-Ohio-5287, ¶ 59, citing State v.

Maurer, 15 Ohio St.3d 239, 473 N.E.2d 768 (1984). An abuse of discretion implies that

the court’s attitude was unreasonable, arbitrary, or unconscionable.         Blakemore v.

Blakemore, 5 Ohio St.3d 217, 219, 450 N.E.2d 1140 (1983).

        {¶29} Caldwell complains that the trial court erred in admitting testimony from

Officer Steven Reitz. Officer Reitz’s testimony concerned his response to a domestic

dispute involving Caldwell and the victim’s mother, with whom Caldwell shared a

residence. Over a hearsay objection, Officer Reitz testified to statements made by the

victim’s mother about being choked by Caldwell and to the officer’s observations of the
victim’s neck being red. He also testified to Caldwell’s statements denying the assault.

None of the testimony offered by Officer Reitz pertained to the minor victim in this case.

       {¶30} In State v. Williams, 134 Ohio St.3d 521, 2012-Ohio-5695, 983 N.E.2d

1278, the Ohio Supreme Court concluded that Evid.R. 404(B) is in accord with R.C.

2945.59 in that it precludes the admission of evidence of other crimes, wrongs, or acts

offered to prove the character of an accused in order to show that the accused acted in

conformity therewith, but does not preclude admission of that evidence for other

purposes, e.g., to show proof of motive, opportunity, intent, preparation, plan, knowledge,

identity, or absence of mistake or accident. Further, while testimony concerning police

investigations is generally admissible, the testimony must be relevant and its probative

value must not be substantially outweighed by the danger of unfair prejudice, confusion

of the issues, or misleading the jury. Evid.R. 403(A). See State v. Bailey, 8th Dist.

Cuyahoga No. 81498, 2003-Ohio-1834, ¶ 25-26.

       {¶31} In this instance, prior to accepting testimony from Officer Reitz, the trial

judge instructed the jury that the testimony was being offered to explain the officer’s

actions.

       [I]n this particular case, it’s the Court’s opinion that the remarks of [the
       victim’s mother] that this officer is about to relay are being offered here not
       for their truth, but to show why he did what he did; in other words, to
       explain his actions.

Tr. 390.

       {¶32} Our review of the record reflects that Officer Reitz’s testimony, which

pertained to an offense of domestic violence involving the victim’s mother, was irrelevant
to the charges in this case and was presented for the purpose of proving Caldwell’s bad

character and criminal propensity. We therefore conclude that the trial court’s ruling

contravened Evid.R. 404(B), and the trial court erred in permitting the introduction of this

testimony.

       {¶33} Under Crim.R. 52(A), we may disregard an error not affecting a substantial

right of the accused. In light of the substantial testimony concerning the charges against

Caldwell and because there is no reasonable possibility that Officer Reitz’s testimony

contributed to Caldwell’s conviction, the court’s error is rendered harmless beyond a

reasonable doubt.

       {¶34} Defendant next complains that the trial court erred in admitting testimony

from Pamela Ralston, a middle school guidance counselor. Ralston testified that the

minor victim told her Caldwell had inappropriately touched her.          Ralston provided

further details of what the victim told her. The counselor’s testimony was cumulative to

testimony of the victim and other witnesses in the case.         Further, after the victim

testified, the counselor could have been recalled to provide testimony to rebut an express

or implied charge of recent fabrication or improper influence or motive under Evid.R.

801(D)(1)(b).   Therefore, even assuming that the counselor’s testimony qualified as

hearsay, we find that her testimony was harmless. Crim.R. 52(A).

       {¶35} Defendant also complains that the trial court erred in introducing certain

testimony of Dr. Mark Feingold about domestic violence, neglect, and alcohol problems

in the victim’s home.     Dr. Feingold indicated that these risk factors correlate with
abusive injuries to children.      In State v. Ervin, 8th Dist. Cuyahoga No. 80473,

2002-Ohio-4093, ¶ 17, this court noted that Dr. Feingold treated and diagnosed the victim

at the Alpha Clinic following her allegations of sexual abuse and rape, and held that his

testimony was properly admitted under Evid.R. 803(4). Accord State v. Hilton, 8th Dist.

Cuyahoga No. 89220, 2008-Ohio-3010. Likewise, in this case, because the statements

were made for purposes of medical diagnosis and treatment, they were properly admitted

under Evid.R. 803(4). Even if we were to find the statements were inadmissible, we find

any error would have been harmless. Crim.R. 52(A).

       {¶36} In accordance with all of the foregoing, the third assignment of error is

without merit.

       {¶37} In his fourth assignment of error, Caldwell claims the trial court erred in

imposing postrelease controls upon him.          Defendant asserts that because he was

convicted of rape and received an indefinite sentence of 25 years of imprisonment to life,

the trial court erred in imposing a term of postrelease control.

       {¶38} R.C. 2967.28 provides:

       (B) Each sentence to a prison term for a felony of the first degree, for a
       felony of the second degree, for a felony sex offense, or for a felony of the
       third degree that is an offense of violence and is not a felony sex offense
       shall include a requirement that the offender be subject to a period of
       post-release control imposed by the parole board after the offender’s release
       from imprisonment. * * *

          (1) For a felony of the first degree or for a felony sex offense, five years;

       ***
      (F)(4) Any period of post-release control shall commence upon an
      offender’s actual release from prison. If an offender is serving an indefinite
      prison term or a life sentence in addition to a stated prison term, the
      offender shall serve the period of post-release control in the following
      manner:

       (a) If a period of post-release control is imposed upon the offender and if
      the offender also is subject to a period of parole under a life sentence or an
      indefinite sentence, and if the period of post-release control ends prior to
      the period of parole, the offender shall be supervised on parole. * * *

        (b) If a period of post-release control is imposed upon the offender and if

      the offender also is subject to a period of parole under an indefinite

      sentence, and if the period of parole ends prior to the period of post-release

      control, the offender shall be supervised on post-release control. * * *

      {¶39} In State ex rel. Carnail v. McCormick, 126 Ohio St.3d 124,

2010-Ohio-2671, 931 N.E.2d 110, the Ohio Supreme Court concluded that postrelease

control must be imposed upon a defendant who receives an indefinite sentence of life in

prison with parole eligibility for a conviction of rape in violation of R.C. 2907.02, which

is both a felony of the first degree and a felony sex offense. In rejecting the contention

that postrelease control was not necessary, the Ohio Supreme Court stated:

      Although it could be implied from [R.C. 2967.28(F)] that postrelease

      control is unnecessary for indefinite or life sentences, there is no specific

      language in either this or other provisions that modifies the express

      language in R.C. 2967.28(B)(1) requiring postrelease control. That is, R.C.

      2967.28(B)(1) is not expressly limited to definite sentences; instead, it

      applies broadly to “[e]ach sentence to a prison term for a felony of the first
       degree * * * [or] for a felony sex offense.” Because R.C. 2967.28(B)(1) is

       phrased in broad, sweeping language, we must accord it broad, sweeping

       application. See State ex rel. Mager v. State Teachers Retirement Sys. of

       Ohio, 123 Ohio St.3d 195, 2009-Ohio-4908, 915 N.E.2d 320, ¶ 16.

McCormick at ¶ 20; accord State v. Falkenstein, 8th Dist. Cuyahoga No. 96659,

2011-Ohio-5188; State v. Cottrell, 8th Dist. Cuyahoga No. 97629, 2012-Ohio-2634.

       {¶40}    Here,   defendant     was    sentenced    for   rape   in   violation      of

R.C. 2907.02(A)(1)(b), which is both a first-degree felony and a sex offense, so five years

of postrelease control is mandatory in accordance with R.C. 2967.28(B)(1). The court

sentenced defendant to an indefinite term of imprisonment pursuant to R.C. 2971.03(B),

but there is no specific language in either this or other provisions that modifies the

express language in R.C. 2967.28(B)(1) requiring postrelease control for the first-degree

felony convictions. McCormick. Therefore, the trial court did not err in imposing five

years of postrelease control sanctions. The fourth assignment of error is without merit.

       {¶41} Finally, we must address the remedy, under the limited circumstances of this

case, for the trial court’s failure to accept the second plea agreement. Caldwell should be

afforded the opportunity to enter a plea in accordance with the terms of the second plea

agreement. However, he is not entitled to an opportunity for a new trial should he fail to

enter a plea of guilty because the court’s error had no adverse impact upon the trial and

Caldwell was convicted and sentenced after receiving a fair trial.
       {¶42} “A new trial is not the appropriate remedy since the violation did not impact

the fairness of the trial” and, but for the error, “the most the petitioner could have done

would have been to accept the plea offer.” Williams v. Maryland, 326 Md. 367, 605

A.2d 103, 111 (1992) (remanding the matter for the petitioner to enter a guilty plea

pursuant to the plea offer with instructions that the judge reinstate the original convictions

and sentence if the petitioner declined to enter a guilty plea); see also United States v.

Hernandez-Limon, 134 F.3d 745 (9th Cir.1994) (reversing district court’s refusal to take a

guilty plea and remanding with instructions to allow the defendant to enter a guilty plea

pursuant to a plea agreement or else the convictions would be reinstated).

       {¶43} Accordingly, we reverse the trial court’s decision to reject the second plea

agreement. Upon remand, vacating the conviction is contingent upon Caldwell agreeing

to enter a plea according to the terms of the second plea agreement. We instruct the trial

court to hold a hearing at which Caldwell shall be offered the opportunity to knowingly,

intelligently, and voluntarily agree to the second plea agreement. Upon agreement, the

trial court shall vacate the conviction and, following compliance with Crim.R. 11,

Caldwell may enter his plea. If Caldwell enters a guilty plea, the court shall proceed

directly to sentencing. Should Caldwell fail to enter a plea of guilty pursuant to the plea

agreement, the trial court shall reinstate Caldwell’s original conviction and sentence.

       {¶44} Judgment affirmed in part, reversed in part; cause remanded with

instructions.

       It is ordered that appellant and appellee share the 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 common

pleas court to carry this judgment into execution.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.




SEAN C. GALLAGHER, PRESIDING JUDGE

EILEEN T. GALLAGHER, J., CONCURS;
MARY EILEEN KILBANE, J., DISSENTS WITH SEPARATE OPINION
MARY EILEEN KILBANE, J., DISSENTING:

       {¶45} I respectfully dissent. I would conclude that the trial court acted within its

discretion in rejecting the proposed pleas that were offered mid trial.

       {¶46} It is well settled that the decision to accept or reject a plea bargain rests

solely within the discretion of the trial court. State v. Arde, 190 Ohio App.3d 196,

2010-Ohio-5274, 941 N.E.2d 119, ¶ 18 (2d Dist.); State v. Howard, 2d Dist. Greene No.

2012-CA-39, 2013-Ohio-2343. The trial court is the final arbiter of whether the plea

should be accepted. Ragsdale, 61 Ohio App.2d 107, 109, 399 N.E.2d 119. The court is

not obligated to follow the negotiated plea entered into between the state and the

defendant, and it is not required to defer to the prosecutor. Id. An appellate court

generally reviews a trial court’s rejection of a plea agreement under an abuse of discretion

standard. State v. Keyes, 4th Dist. Meigs No. 05CA16, 2006-Ohio-5032, ¶ 8. It is the

prerogative of the trial court to accept or reject a proposed plea and, from its impartial
vantage point, the court has ability to view the proposed plea in light of the charges and

anticipated evidence. The court then determines, within the exercise of its discretion,

whether it advances the interest of justice and whether it comports with a reasonably

anticipated outcome.

      {¶47} In this matter, the defendant was indicted on October 20, 2011. Over the

next six months, the trial court held six pretrials and two motion hearings before the

March 13, 2012 jury trial. After the jury was empaneled and sworn, on the third day of

trial on the morning of March 15, 2012, the state and defense counsel informed the court

that they had a proposed plea. At that point, four witnesses had already testified for the

state, including a police officer, a school guidance counselor, a county social worker, and

one of the victim’s friends from school. The defendant faced 12 counts of kidnapping

with sexual motivation and sexually violent predator specifications; six counts of rape,

including one count alleging that the victim was less than 13 years of age and that the

defendant purposely compelled her to submit by force or threat of force; two counts of

attempted rape; nine counts of gross sexual imposition; and one count of disseminating

material harmful to juveniles. The parties informed the court that the defendant had

agreed to plead guilty to “one or more child endangering charges.”

      {¶48} The trial court stated:

      The written record should reflect that earlier today off the record the
      lawyers and the Court discussed the possibility of a plea bargain wherein
      Mr. Caldwell would plead guilty to one or more child endangering charges
      in violation of Revised Code Section 2919.22, and it wasn’t really
      determined or explained to the Court exactly which section, but it would be
      child endangering.
      The Court having renewed its acquaintance with that statute in the
      meantime and the Court having considered the circumstances, it’s likely to
      decline to accept that plea, if it were forthcoming.

      The reason for that is that it has very much to me the error of expediency.

      Mr. Caldwell is presumed innocent. He is accused of some terrible crimes
      here. And he either did them or did not do them.

      If he did not do them, he should be exonerated by an appropriate verdict; if
      he did do them, he should be appropriately sanctioned upon a guilty verdict.


      I find it hard to believe that there is some middle ground here, where he
      would deny committing rapes and gross sexual impositions and kidnapping,
      yet he would admit to having endangered [B.W.].

      I haven’t heard evidence or a summary of evidence that would support his
      having endangered her, other than by, if he did it, having raped or otherwise
      sexually abused her.

      {¶49} The trial court cited to and incorporated its previous remarks in Frazier,

Cuyahoga C.P. No. CR-549274. In that case, the defendant was charged with two counts

of rape and one count of kidnapping, and the parties anticipated that the evidence would

show that the parties were dating and had exchanged text messages. Prior to trial, the

parties proposed to the court that defendant would plead guilty to the lesser charge of

abduction and the rape charges would be dismissed. In rejecting the proposed plea, the

court noted that the state was advocating for a plea that appeared to be inconsistent with

the anticipated evidence and did not comport with any foreseeable outcome.            Four

months later, however, following additional pretrials in the matter, the court did permit
the defendant to plead guilty to one count of gross sexual imposition, a charge more in

keeping with the original charges.

       {¶50} The trial court also explained to the parties that, although it would not

involve itself in their further plea negotiations, they could continue such negotiations.

The court stated:

       You can certainly — if the parties reach a proposed plea bargain, you’re
       certainly welcome to present it to the Court and I will consider it.

       This particular plea bargain, though, that you have presented to me is not
       one that I believe would be in the interest of justice.

       So if you have further conversations, those probably should be outside of
       my presence.

       {¶51} Trial in this matter continued and the victim testified as to various incidents

of abuse. Later in the afternoon on March 15, 2012, following the victim’s testimony,

the state and defense counsel again informed the court that the defendant had agreed to

plead guilty to a second proposed plea agreement.          Under this proposed plea, the

defendant agreed to plead guilty to two counts of importuning and two counts of

abduction. The trial court declined to accept the plea and cited to its denial of the

previous plea offer. The trial court also stated that a kind of brinkmanship had occurred

in the negotiating that had rendered the plea inherently coercive.

       [T]his kind of brinksmanship [sic], negotiating seems to me to be inherently
       coercive, which is to say, how can this plea be truly voluntary under the
       circumstances of the plea?

       * * * [H]aving heard some of the evidence, which, let’s be honest, if
       credited by this jury, may result in a guilty verdict, he proposes pleading
       guilty to certain third-degree felonies.
I believe that to be inherently coercive.

It would not be if he had agreed to a similar proposal prior to trial, but now
we’re in a situation where he has heard some damaging evidence, but he
hasn’t heard or seen presented that evidence which may tend to favor him.

So I don’t see how Mr. Caldwell can plead guilty to anything from
jaywalking on up to anything less than the crimes charged at this moment *
* *, without it being to some degree coercive.

* * * [I]f the testimony we’ve heard is true beyond a reasonable doubt, then
the State is entitled to have Mr. Caldwell found guilty of something worse
than importuning or abduction.

If, however, the testimony is not true beyond a reasonable doubt, Mr.
Caldwell is entitled to walk out of here and never think about this case
again.

* * * [S]uch a plea is not in the interest of justice.

* * * I stipulate to the good faith and capable ethical advocacy

               of both lawyers, so I don’t fault or criticize

               either lawyer for offering this proposal. I’m

               just telling you that my belief is what I’ve just

               told you.

***

* * * I’m not — it’s not a policy. All I’m telling you is that based on
everything I know about the current state of affairs in this case, the
proposed plea is not in the interest of justice.

I believe that it’s within the discretion of a trial judge to accept or reject a

plea as being within or not within the interest of justice.
       {¶52} Therefore, although it may have been an abuse of discretion for the trial

court to deny the proposed pleas prior to trial, I would find no abuse of discretion in

connection with the denial of both proposed mid-trial pleas. The trial court specifically

stated on the record that it was not acting pursuant to a “policy” of denying any plea

offered during trial. The court further showed that the ruling was not made pursuant to a

policy because after the first proposed plea was rejected, the court invited the state and

defense counsel to present another proposed plea.          Therefore, there is no basis for

concluding that the court acted pursuant to a de facto policy. Rather, the trial court gave

cogent and reasoned analysis for its rulings.

       {¶53} At the time of the first proposed plea, the jury was already empaneled and

sworn, and four of the state’s witnesses had testified. There was no mention of any plea

negotiations until after the jury had been empaneled and sworn, and the matter was now

in the third day of trial, March 15, 2012. At that time, the court stated that “earlier today

off the record the lawyers and the Court discussed the possibility of a plea bargain

wherein Mr. Caldwell would plead guilty to one or more child endangering charges[.]”

The court then stopped the trial and allowed the state and the defense attorney to put forth

their reasons and arguments in favor of the first proposal.           The court ultimately

determined, however, that the proposed plea to child endangering had the defect of

“expediency,” since it was not clear what relation this offense bore to the charges and

evidence, and that the plea was not in the interest of justice.
       {¶54} By the time of the second proposed plea, the victim had completed her

testimony. The trial court again stopped the trial proceedings and again heard from the

state and defense counsel, but the court concluded, after thoughtful discernment, that a

type of brinkmanship had occurred and that, under the circumstances, the proposed plea

was coercive.

       {¶55} Moreover, with regard for judicial economy, convenience of witnesses and

jurors, it is significant that by that point the proceedings had been underway for three

days, and the court had heard testimony from numerous witnesses. The court was within

its discretion to require a resolution that was grounded in the facts developed by the

witnesses who testified up to that point in the trial. The court may also exercise its

discretion and reject a plea that develops out of brinkmanship, stratagems, or

maneuvering for the most advantageous position.          I would conclude that the court

properly considered the pleas offered in this case, weighed them in relation to the

interests of justice, and did not abuse its discretion when it declined to accept them.
