[Cite as State v. Brooks, 2011-Ohio-3722.]




            IN THE COURT OF APPEALS FOR GREENE COUNTY, OHIO

STATE OF OHIO                                            :

        Plaintiff-Appellee                               :        C.A. CASE NO. 2010 CA 48

v.                                                       :        T.C. NO.     08CR723

NATHANIEL B. BROOKS                                      :        (Criminal appeal from
                                                                  Common Pleas Court)
        Defendant-Appellant                   :

                                                         :

                                             ..........

                                             OPINION

                         Rendered on the          29th   day of     July     , 2011.

                                             ..........

ELIZABETH A. ELLIS, Atty. Reg. No. 0074332, Assistant Prosecutor, 61 Greene Street,
Xenia, Ohio 45385
       Attorney for Plaintiff-Appellee

P.J. CONBOY II, Atty. Reg. No. 0070073, 5613 Brandt Pike, Huber Heights, Ohio 45424
       Attorney for Defendant-Appellant

                                             ..........

FROELICH, J.

        {¶ 1} Nathaniel Brooks, Jr. appeals from a judgment of the Greene County Court of

Common Pleas, which denied his petition for post-conviction relief. For the following

reasons, the trial court’s judgment will be affirmed.
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                                                    I

       {¶ 2} Brooks was indicted for and pled not guilty to one count of complicity to

aggravated robbery (Count One) and one count of complicity to commit aggravated burglary

(Count Two). Brooks’s counsel subsequently informed the prosecutor that Brooks was

“interested in meeting with investigating agents for purposes of an ‘off-the-record’ proffer or

discussion concerning a drug enterprise investigation.”

       {¶ 3} On December 11, 2008, Brooks and the State entered into an oral agreement

whereby Brooks agreed to proffer information to the State concerning criminal activity and

the State agreed to recommend community control sanctions. The agreement required

Brooks to provide truthful statements concerning the incident that resulted in his indictment

and any additional information he possessed regarding other involved individuals. Brooks

states that, as a result of that agreement, he decided to change his plea to no contest.

       {¶ 4} On the same date (December 11), Brooks pled no contest to complicity to

aggravated burglary (Count Two), a first degree felony.           As part of the written plea

agreement, the State agreed to dismiss the complicity to commit aggravated robbery charge

(Count 1). The plea form further stated that Brooks had been informed that there was a

presumption of prison for first degree felonies. During the hearing, Brooks was asked

whether any promises had been made to him concerning that plea other than those that are

contained in the plea agreement; Brooks responded, “No.” The oral agreement was not

mentioned nor made a part of the record at the plea hearing. However, the trial judge (a

visiting judge) was apparently aware from an off-the-record conversation between counsel in

chambers that Brooks intended to speak with law enforcement officers. At the plea hearing,
                                                                                            3

the trial court found Brooks guilty and ordered a presentence investigation.

       {¶ 5} Later the same day, Brooks and the State entered into a written agreement so

that “there are no misunderstandings concerning the meaning of ‘of[f]-the-record’.” The

agreement provided, generally, that “no statements made or other information provided by

[Brooks] during the ‘off-the-record’ proffer or discussion related to the referenced

investigation will be used against [Brooks] in any criminal case,” but it addressed the

circumstances under which Brooks’s statements to law enforcement officers could be used

against him. Those circumstances included: “If [Brooks] is untruthful in his response, this

agreement shall be deemed null and void and that State of Ohio will use the information

provided against him in further proceedings.” The proffer agreement did not address the

change of plea or include a sentence recommendation in exchange for the proffer.

       {¶ 6} After the plea but prior to sentencing, Brooks twice met with Director Bruce

L. May of the Greene County Agencies for Combined Enforcement (“ACE Task Force”).

Brooks offered some information, but May believed that the information was “misleading,

deceiving, major things were omitted, and [Brooks] was not telling truthfulness [sic] and in

totality which he was required to do.”

       {¶ 7} Brooks was sentenced by the same visiting judge on February 9, 2009. The

State recommended a six-year prison term. Brooks was asked if he had anything to say.

He apologized to the court and his family, told the court that “[t]his will not be a revolving

door for me,” and asked for the opportunity to prove that he can be “a good respectful

citizen, father, husband, and above all, a good man.” The trial court found that Brooks was

not amenable to community control and sentenced him to five years in prison. Neither
                                                                                                            4

counsel nor Brooks objected to the sentence or said anything regarding the proffer agreement

between the parties.

        {¶ 8} Brooks appealed from the trial court’s judgment.

        {¶ 9} In April 2009, Brooks moved to withdraw his no contest plea, claiming that

the State breached an agreement to recommend six months of incarceration at the Greene

County Jail in exchange for proffered information by Brooks regarding the other perpetrators

of the robbery and burglary. Brooks supported his motion with an affidavit by his trial

counsel, Anthony VanNoy. Mr. VanNoy stated in his affidavit that he had negotiated a plea

agreement with the State on Brooks’s behalf whereby Brooks would plead guilty to one

count of complicity to commit aggravated burglary and the other charge would be dismissed.

 Mr. VanNoy further stated:

        {¶ 10} “5.      Mr. Brooks was also to proffer information with regard to other

Defendants and in exchange for the proffer, Mr. Brooks would be sent to jail for six months

with regard to his guilty plea.

        {¶ 11} “6. Mr. Brooks was cooperative and provided substantial information during

said proffer sessions.

        {¶ 12} “7. The proffer part of the plea agreement was too subjective and thus I do

not believe that Mr. Brooks’[s] guilty plea was entered knowingly and voluntarily.”

        {¶ 13} A hearing on Brooks’s motion was held on July 10, 2009. 1 Brooks and


           1
             On July 8, 2009, two days before the hearing, the State moved to dismiss Brooks’s motion to
   withdraw his plea, arguing that the trial court lacked jurisdiction to consider the motion due the pending
   direct appeal. Brooks filed a notice of voluntary dismissal of his direct appeal on the same date. State v.
   Brooks (July 16, 2009), Greene App. No. 2009 CA 15 (decision and final judgment entry sustaining motion
   for voluntary dismissal).
                                                                                                                        5

VanNoy testified on Brooks’s behalf.                    May testified for the State regarding the two

meetings he had with Brooks under the proffer agreement.

       {¶ 14} On July 14, 2009, the trial court overruled Brooks’s motion to withdraw his

plea, without addressing the merits of Brooks’s arguments, on the ground that Brooks’s

arguments were more properly raised in a petition for post-conviction relief.                                       Brooks

appealed the trial court’s order, but the appeal was dismissed voluntarily. State v. Brooks

(Feb. 25, 2010), Greene App. No. 2009 CA 55.

       {¶ 15} In light of the trial court’s ruling on his motion to withdraw his plea, Brooks

subsequently filed a petition for post-conviction relief, again arguing that his plea was not

entered knowingly, intelligently, and voluntarily because the “proffer part of the plea

agreement was too subjective.” Brooks relied upon VanNoy’s affidavit and the transcript of

the July 10, 2009 hearing on his prior motion to withdraw his plea. Brooks supplemented

his petition with a written statement 2 by Sheldon Smith (whose property was allegedly

targeted during the burglary and robbery for which Brooks was charged), which indicated

Smith’s belief that Brooks had committed “no crime or action against [his] personal

well[-]being or property.”

       {¶ 16} On March 12, 2010, the trial court held a hearing on Brooks’s petition, at

which time the parties agreed to rely on the evidence from the July 10, 2009 hearing.

Apparently, no additional evidence was taken.

       {¶ 17} On June 16, 2010, the trial court denied Brooks’s petition for post-conviction

relief. After considering the evidence presented at the July 10, 2009 hearing and Smith’s


          2
           Brooks’s memorandum refers to Smith’s statement as an “affidavit,” but the document was not notarized.
                                                                                            6

statement, the trial court concluded that “the facts do establish that a proffer agreement was

made with an understanding that the Defendant could receive some benefit from that

agreement, if he was truthful, and the Court [the visiting judge] was aware of this

understanding.” However, the court further found that Brooks “did not satisfy his end of

the contract and therefore the agreement is null and void and that the State was entitled to

make whatever recommendation they chose.”

       {¶ 18} Brooks appeals from the denial of his petition for post-conviction relief.

                                                  II

       {¶ 19} In his sole assignment of error, Brooks claims that the trial court abused its

discretion in overruling his petition for post-conviction relief, because his no contest plea

was not given knowingly, intelligently, and voluntarily, and he was denied due process.

Brooks states that he would not have entered a no contest plea but for the proffer agreement

and that the subjective nature of the agreement rendered his plea involuntary. Brooks

emphasizes that his compliance with the “truthfulness” requirement was dependent upon

others’ (i.e., Director May’s) subjective perception of his cooperation and truthfulness.

Brooks asserts that he provided all the information he had, that he was truthful, and that his

met his obligation under the proffer agreement. Brooks asserts that the State thus breached

the agreement by failing to recommend community control.

       {¶ 20} “A post[-]conviction proceeding is not an appeal of a criminal conviction,

but, rather, a collateral civil attack on the judgment.” State v. Steffen, 70 Ohio St.3d 399,

410, 1994-Ohio-111. See, also, State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679,

¶48. To prevail on a petition for post-conviction relief, the defendant must establish a
                                                                                             7

violation of his constitutional rights which renders the judgment of conviction void or

voidable. R.C. 2953.21.

       {¶ 21} We review the trial court’s denial of Brooks’s petition for an abuse of

discretion. Gondor at ¶52. An abuse of discretion implies an arbitrary, unreasonable,

unconscionable attitude on the part of the trial court. State v. Hancock, 108 Ohio St.3d 57,

2006-Ohio-160, ¶130.      Moreover, when the trial court has ruled on a petition for

post-conviction relief after a hearing, we must give deference to the trial court’s findings of

fact. Gondor at ¶47-48. A reviewing court should not overrule the trial court's findings on a

petition for post-conviction relief if those findings are supported by competent and credible

evidence. Id. at ¶58.

       {¶ 22} At the May 10, 2009 hearing, Brooks testified that he signed a proffer

agreement and, in return, the State agreed to recommend community control at sentencing if

he cooperated. Brooks understood that he was required to be truthful “to the best of my

ability.” At least two proffer sessions occurred between Brooks and May. Brooks testified

that May asked about certain “things” and individuals. Brooks stated that he “gave them to

the best of what I knew of those certain things;” he gave “[e]verything that I had.” May told

Brooks that he was “unhappy” with the information, because he didn’t believe that Brooks

had given enough information. Brooks testified that, after the second session, May said that

Brooks “was better.” Brooks stated that he was never told that May believed he was being

untruthful.

       {¶ 23} Brooks’s trial attorney, Mr. VanNoy, was present during these two proffer

sessions with May. VanNoy testified that he believed Brooks gave “truthful” and “useful”
                                                                                           8

information at the proffer meetings, and that Brooks “would not have entered a plea had he

not had a proffer in this case.” VanNoy stated that Brooks had been “very consistent” with

him “from day one” and that “the sincerity that [Brooks] conveyed with respect to what was

going on caused me to believe that he was telling the truth to law enforcement.” VanNoy

acknowledged that Brooks may not have told him (VanNoy) everything and that May might

have been privy to additional information.

       {¶ 24} In contrast, May, a 36-year veteran of law enforcement, testified that he leads

a multi-jurisdictional enforcement agency that investigates felony violations involving,

among other things, drugs, homicides, and felonious assaults. The ACE Task Force has

been investigating “the Brooks organization,” named for Brooks’s brother. May stated that

the organization had committed numerous crimes – such as home invasions, murder, torture,

and robberies – over a span of more than ten years; he said that several witnesses and

co-conspirators have spoken with law enforcement officers regarding the organization.

According to May, Nathaniel Brooks “was a principal figure in that group.” When the

proffer sessions occurred, May had gathered much information about the participation of

Brooks’s relatives, Brooks’s friends, and other co-conspirators in the Brooks organization.

May anticipated that the ACE Task Force would be seeking indictments regarding several

crimes by the members of the organization within the next few months.

       {¶ 25} May testified that Brooks was unaware of the information that had been

gathered prior to the proffer sessions. May stated that Brooks’s information during the

proffer sessions was “misleading and wasn’t directed toward any of the substance of what

we desired from him and what we felt that we knew that he could offer.” May indicated
                                                                                            9

that “major things were omitted” from Brooks’s information. May acknowledged that he

did not inform Brooks prior to the agreement what specific information was being sought

and that he “could not lead Mr. Brooks” during their meetings.

       {¶ 26} The parties do not challenge the trial court’s conclusion that a proffer

agreement was made with the understanding that Brooks would receive a benefit if he

provided truthful information to law enforcement.          Brooks argues that his plea was

constitutionally infirm, because the proffer agreement and, thus, the plea was based on an

individual’s (i.e., May’s) subjective assessment of his truthfulness.

       {¶ 27} Plea agreements are governed by contract law principles. State v. Borts,

Montgomery App. No. 23752, 2010-Ohio-4149, ¶4. “Contract clauses which make the duty

of performance of one of the parties conditional upon his satisfaction are generally referred

to as ‘satisfaction clauses.’    These clauses have been divided by the courts into two

categories, and have been interpreted in accordance with the category.

       {¶ 28} “Where the satisfaction clause requires satisfaction as to such matters as

commercial value or quality, operative fitness, or mechanical utility, dissatisfaction cannot

be claimed unreasonably.        In these contracts, an objective standard is applied to the

satisfaction clause and the test is whether the performance would satisfy a reasonable person.

       {¶ 29} “If, on the other hand, the satisfaction clause relates to matters involving

fancy, personal taste, or judgment, then a subjective standard is applied, and the test is

whether the party is actually satisfied. Although application of a subjective standard to a

satisfaction clause would seem to give the obligor virtually unlimited latitude to avoid his

duty of performance, such is not the case. In these situations, courts impose the limitation
                                                                                            10

that the obligor act in good faith. Thus, under the subjective standard, the promisor can

avoid the contract as long as he is genuinely, albeit unreasonably, dissatisfied. Which

standard applies in a given transaction is a matter of the actual or constructive intent of the

parties, which, in turn, is a function of the express language of the contract, or the subject

matter of the contract.” (Internal citations omitted.) Hutton v. Monograms Plus, Inc.

(1992), 78 Ohio App. 3d 176, 181.

       {¶ 30} Brooks and his trial counsel acknowledged that the proffer agreement

between Brooks and the State required Brooks to provide truthful information.              Mr.

VanNoy testified that, if Brooks were untruthful, the State would not be bound by any

sentence recommendation.         In short, the proffer agreement conditioned the State’s

beneficial sentencing recommendation upon the State’s (in this case, May’s) satisfaction that

the information provided by Brooks was truthful.          Although the agreement required

considerable confidence in the law enforcement officer’s ability to accurately assess

Brooks’s truthfulness, the agreement was valid under contract law, despite the subjective

nature of the satisfaction clause.

       {¶ 31} Moreover, the record does not reflect that the subjective nature of the

agreement rendered Brooks’s plea involuntary. Brooks and his trial counsel were aware,

prior to the plea, that the proffer agreement would require Brooks to speak with law

enforcement officers and to provide “full and accurate” facts. Brooks did not object to the

subjective terms of the proffer agreement before or at the plea hearing. We note that

Brooks received the additional benefit that Count One of the indictment (complicity to

aggravated robbery) was dismissed as a result of the plea.
                                                                                           11

       {¶ 32} Brooks further argues that he did not breach the plea agreement. “Whether

there has been a breach of a plea agreement is a determination that initially rests within the

sound discretion of the trial court, and is reviewed on appeal under an abuse of discretion

standard.” Id.

       {¶ 33} The court was presented with conflicting testimony regarding Brooks’s

compliance with his obligation under the proffer agreement that he provide truthful

information to law enforcement officers. Brooks testified that he was truthful with May and

provided “everything he had;” Brooks’s trial counsel also believed that to be true. May, on

the other hand, had substantial information about the “Brooks organization” prior to the

proffer sessions and believed that Brooks’s information was “misleading,” “deceitful,” and

incomplete. The trial court expressly found May’s testimony to be more credible and

well-supported. In light of the evidence, the trial court’s conclusion was reasonable and not

erroneous.

       {¶ 34} Accordingly, the trial court did not abuse its discretion in finding that Brooks

had breached the proffer agreement with the State. As a result, the State was not bound by

its agreement to recommend community control to the trial court at sentencing, and Brooks’s

due process rights were not violated when the State recommended a sentence of six years.

       {¶ 35} Brooks’s assignment of error is overruled.

                                                 III

       {¶ 36} The trial court’s judgment will be affirmed.

                                         ..........

DONOVAN, J. and HALL, J., concur.
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Copies mailed to:

Elizabeth A. Ellis
P.J. Conboy II
Hon. Stephen A. Wolaver
