[Cite as State v. Graham, 2013-Ohio-600.]


                                       COURT OF APPEALS
                                    DELAWARE COUNTY, OHIO
                                   FIFTH APPELLATE DISTRICT


                                              :   JUDGES:
STATE OF OHIO                                 :   Patricia A. Delaney, P.J.
                                              :   William B. Hoffman, J.
                         Plaintiff-Appellee   :   Sheila G. Farmer, J.
                                              :
-vs-                                          :   Case No. 12 CAA 11 0082
                                              :
                                              :
WILLIAM E. GRAHAM                             :   OPINION

                    Defendant-Appellant




CHARACTER OF PROCEEDING:                           Criminal Appeal from Delaware
                                                   County Court of Common Pleas Case
                                                   No. 11CR-I-05-0272

JUDGMENT:                                          Reversed and Remanded

DATE OF JUDGMENT ENTRY:                            February 15, 2013

APPEARANCES:

For Plaintiff-Appellee                             For Defendant-Appellant

CAROL HAMILTON O’BRIEN                             WILLIAM E. GRAHAM
Prosecuting Attorney                               Inmate #647-058
Delaware County, Ohio                              Pickaway Correctional Institution
                                                   P.O. Box 209
BY: ERIC C. PENKAL                                 Orient, Ohio 43146
Assistant Prosecuting Attorney
140 N. Sandusky Street – 3rd Floor
Delaware, Ohio 43015
[Cite as State v. Graham, 2013-Ohio-600.]


Hoffman, J.

           {¶1}    Defendant-appellant, William E. Graham, appeals the October 30, 2012,

Judgment Entry entered by the Delaware County Court of Common Pleas, denying his

motion to withdraw his plea of guilty. The State of Ohio is plaintiff-appellee.

                                           STATEMENT OF THE CASE1

           {¶2}    On September 15, 2011, Appellant pled guilty to one count of breaking

and entering in violation of R.C. 2911.13(A). As part of the negotiated plea agreement,

the State agreed to remain silent at sentencing.

           {¶3}    Appellant’s sentencing hearing was held on December 15, 2011. At the

sentencing hearing, the court asked the prosecutor to proceed. Rather than remaining

silent on the issue of sentencing as required by the plea agreement, the prosecutor

stated:

           {¶4}    “MR. DUMOLT: Your Honor, I think the PSI speaks for itself. There’s a

score of convictions going back to 1974. In this case I think we’re - - the last time we

were here everyone agreed he’s not a good candidate for CBCF at this time, and that a

prison sentence is appropriate in this case.

           {¶5}    “His record is one of the longest I have seen in the five years I’ve been

doing this; this is rather extensive. He’s a career criminal. Counsel will recommend a

CBCF, might be a condition, a condition of judicial release as an option, but at this time I

think that a prison sentence is appropriate. He’s obviously had a number of shots at

community control, proven not amenable to the past.” Tr. (S.H.) 5.




1
    A rendition of the facts is unnecessary for our disposition of this appeal.
Delaware County App. Case No. 12 CAA 11 0082                                          3


        {¶6}   The court sentenced Appellant to 11 months incarceration, to be served

consecutively with a sentence Appellant was serving from a conviction in an unrelated

case.

        {¶7}   Appellant moved to withdraw his guilty plea on June 7, 2012. Appellant’s

motion was based on the State’s breach of the plea agreement and his counsel’s failure

to object when the prosecutor spoke during the sentencing hearing. The trial court

overruled the motion via Judgment Entry filed October 30, 2012. Appellant appeals this

judgment, assigning two errors:

        {¶8}   “I. THE LOWER COURT ERRED AS A MATTER OF LAW IN FAILING TO

APPLY THE PRECEDENT SET BY THE U.S. SUPREME COURT IN SANTOBELLO V.

NEW YORK (1971), 404 U.S. 257, 262-63, IN CONSIDERING MY CLAIM THAT THE

PROSECUTOR HAD BREACHED THE TERMS OF A WRITTEN PLEA AGREEMENT.

        {¶9}   ‘II. DEFENSE COUNSEL WAS INEFFECTIVE IN FAILING TO OBJECT

WHEN THE COURT ASKED FOR THE STATE’S COMMENT AND AGAIN WHEN THE

PROSECUTOR RECOMMENDED A PRISON SENTENCE AFTER THE STATE

AGREED TO REMAIN SILENT AT SENTENCING.”

        {¶10} This case comes to us on the accelerated calendar governed by App. R.

11.1, which states the following in pertinent part:

        {¶11} “(E) Determination and judgment on appeal

        {¶12} “The appeal will be determined as provided by App. R. 11.1. It shall be

sufficient compliance with App. R. 12(A) for the statement of the reason for the court's

decision as to each error to be in brief and conclusionary form.”
Delaware County App. Case No. 12 CAA 11 0082                                           4


                                                 I

       {¶13} Appellant argues the court erred in failing to grant his motion to withdraw

based on the United States Supreme Court’s decision in Santobello v. New York, 404

U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971).

       {¶14} A motion to withdraw a guilty plea is governed by the standards set forth in

Crim.R. 32.1, which provides:

       {¶15} “A motion to withdraw a plea of guilty or no contest may be made only

before sentence is imposed; but to correct manifest injustice the court after sentence

may set aside the judgment of conviction and permit the defendant to withdraw his or

her plea.”

       {¶16} “Manifest injustice relates to some fundamental flaw in the proceedings

which result[s] in a miscarriage of justice or is inconsistent with the demands of due

process.” State v. Williams, 10th Dist. No. 03AP–1214, 2004–Ohio–6123, ¶ 5. “‘[I]t is

clear that under such standard, a postsentence withdrawal motion is allowable only in

extraordinary cases.’” State v. Gripper, 10th Dist. No. 10AP–1186, 2011–Ohio–3656, ¶

7, quoting State v. Smith, 49 Ohio St.2d 261, 264 (1977). A defendant seeking to

withdraw a post-sentence guilty plea bears the burden of establishing manifest injustice

based on specific facts either contained in the record or supplied through affidavits

attached to the motion. State v. Orris, 10th Dist. No. 07AP–390, 2007–Ohio–6499.

       {¶17} Appellant argues pursuant to Santobello, supra, he should have been

permitted to withdraw his plea based on the State’s breach of the plea agreement. The

defendant in Santobello was charged with a variety of gambling offenses.             The

defendant pled guilty to reduced charges in exchange for a promise by the prosecutor
Delaware County App. Case No. 12 CAA 11 0082                                          5

he would not make any recommendation as to the sentence.           404 U.S. at 258. A

different prosecutor then appeared at the sentencing hearing and recommended the

maximum sentence, and the defendant was sentenced accordingly. Id. at 260. The

Supreme Court held, “when 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 indictment or

consideration, such promise must be fulfilled.” Id. at 262. The Court remanded the case

to the state court to determine whether specific performance of the plea agreement or

withdrawal of the plea was appropriate. Id. at 263. The court interpreted specific

performance to mean the defendant would be resentenced in front of a different judge.

Id.

      {¶18} In the instant case, the State does not dispute the fact the prosecutor who

handled the sentencing hearing breached the plea agreement by speaking on the issue

of sentencing. However, in the instant case we do not find withdrawal of the plea is the

appropriate remedy. Appellant entered the plea three months prior to the sentencing

hearing, and the breach of the agreement relates solely to the issue of sentence. The

record does not demonstrate the plea was in any way involuntary, and Appellant has

not demonstrated his plea was rendered involuntary by the prosecutor’s statements at

the sentencing hearing.

      {¶19} However, the prosecutor did breach the plea agreement by arguing

strongly for a prison sentence at the sentencing hearing, when the terms of the

agreement stated the prosecutor would remain silent at sentencing.      The prosecutor

expressed his personal opinion as the nature of appellant’s record being one of the

longest he had ever seen. Counsel for Appellant argued community control might be
Delaware County App. Case No. 12 CAA 11 0082                                              6


appropriate at some point, as Appellant was older and tired of spending the majority of

his adult life in prison. Counsel quoted Appellant as saying he “did not want to be out

doing B and E’s when I’m seventy years old.”          Tr. (S.H.) 7.   We cannot say the

prosecutor’s statements had no effect on the outcome of the sentencing hearing, as the

court ultimately sentenced appellant to 11 months incarceration, one month less than

the maximum sentence of 12 months.

       {¶20} Based on Santobello, supra, we find Appellant is entitled to a new

sentencing hearing in front of a different judge, at which the prosecutor will remain silent

in accordance with the terms of the plea agreement in the instant case.           The first

assignment of error is sustained.

                                                II

       {¶21} In his second assignment of error, Appellant argues counsel was

ineffective for failing to object to the prosecutor’s statements during his sentencing

hearing. This assignment of error is rendered moot by our disposition of Appellant’s first

assignment of error.
Delaware County App. Case No. 12 CAA 11 0082                                         7


       {¶22} The judgment of the Delaware County Common Pleas Court is reversed.

This cause is remanded to that court with instructions to hold a new sentencing hearing

before a different judge.




By: Hoffman, J.

Delaney, P.J. and

Farmer, J. concur

                                                s/ William B. Hoffman _____________



                                                s/ Patricia A. Delaney _____________



                                                 s/ Sheila G. Farmer ______________



WBH/r0201
[Cite as State v. Graham, 2013-Ohio-600.]


             IN THE COURT OF APPEALS FOR DELAWARE COUNTY, OHIO

                                   FIFTH APPELLATE DISTRICT


STATE OF OHIO                                    :
                                                 :
                            Plaintiff-Appellee   :
                                                 :
                                                 :
-vs-                                             :    JUDGMENT ENTRY
                                                 :
WILLIAM E. GRAHAM                                :
                                                 :
                       Defendant-Appellant       :    CASE NO. 12 CAA 11 0082




       For the reason stated in our accompanying Opinion, the judgment of the Delaware

County Court of Common Pleas is reversed and this matter is remanded to the trial

court for a new sentencing hearing before a different judge.          Costs assessed to

Appellee.




                                                     s/ William B. Hoffman _____________



                                                     s/ Patricia A. Delaney _____________



                                                     s/ Sheila G. Farmer ______________
