[Cite as State v. Hartley, 2014-Ohio-4536.]




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




STATE OF OHIO,

        PLAINTIFF-APPELLEE,                                CASE NO. 5-14-04

        v.

GREGERY L. HARTLEY,                                        OPINION

        DEFENDANT-APPELLANT.




                 Appeal from Hancock County Common Pleas Court
                           Trial Court No. 2013 CR 201

                                       Judgment Affirmed

                           Date of Decision:    October 14, 2014




APPEARANCES:

        Scott B. Johnson for Appellant

        Mark C. Miller and Alex K. Treece for Appellee
Case No. 5-14-04



WILLAMOWSKI, P.J.

       {¶1} Defendant-appellant Gregery Hartley (“Hartley”) brings this appeal

from the judgment of the Hancock County Common Pleas Court, sentencing him

to sixteen months in prison. For the reasons that follow, we affirm the trial court’s

judgment.

       {¶2} On October 1, 2013, the Hancock County Grand Jury indicted Hartley

on one count of trespass in a habitation when a person is present or likely to be

present, a felony of the fourth degree in violation of R.C. 2911.12(B). (R. at 1.)

On October 9, 2013, Hartley pled not guilty at an arraignment hearing, during

which he was represented by counsel. (R. at 7.) Following his plea, Hartley was

released on his own recognizance bond. (R. at 10.) The case was continued

several times and it was eventually scheduled for a pretrial or a potential change of

plea on January 22, 2014. (R. at 13, 15.) Prior to that date, a bench warrant for

Hartley was issued due to Hartley’s failure to comply with conditions of his bond.

(R. at 16.) Hartley moved for a bond modification and his motion was scheduled

to be addressed at the January 22, 2014 pretrial/potential change of plea hearing.

(R. at 23, 25.)




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        {¶3} At the January 22, 2014 hearing, it appeared that another case had

been filed against Hartley and the hearing addressed both cases jointly.1 The

prosecutor made a statement about the plea negotiations in both cases as follows.

        MR. TREECE:               What the negotiations call for are Mr.
        Hartley entering pleas of guilty to each count in each case. A
        violation of 2911.12(B), trespassing in a habitation in case 201.
        Violation of 2925.11(A). Possession of heroin, felony of the fifth
        degree in case 221.

        We then jointly ask that the Court order Mr. Hartley to submit to a
        pre-sentence investigation and set this matter for sentencing at a later
        date.

        At sentencing, pursuant to negotiations, the State of Ohio would
        have no objection with the Court reserving the imposition of a prison
        term and placing Mr. Hartley on a term of probation or community
        control. Now initially the negotiations call for the State seeking
        some local term of incarceration as a condition of community
        control. We still would reserve the right to ask for that. However I
        would indicate we would take into consideration the fact he has been
        incarcerated for a significant amount of time already on a bond
        violation. That is the sum total of the negotiations as to the plea.

        Above and beyond that, at conclusion of successful plea hearing,
        should that happen, the State of Ohio would have no objection the
        court [sic] at that time reinstating Mr. Hartley’s bond to a personal
        recognizance bond * * *, allowing him to be released from the
        justice center.

        As to the mandatory license suspension contained within case 221,
        we had no discussions on that, and the State would merely ask that
        the Court impose a suspension which is required under Ohio law.
        That is the sum total of the negotiations as I understand them.



1
  Although that other case has no relevance to the current appeal, we chose not to edit out references to it
from the record, so that the entire relevant statement can be quoted.

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(Emphasis added.) (Jan. 22, 2014 Hr’g Tr. at 4-5.)           Immediately after the

prosecutor’s statement, the defense attorney stated, “That’s my understanding as

well.” (Id. at 5.)

       {¶4} The trial court then inquired to Hartley, asking, among others, “Mr.

Hartley, has anybody promised you anything if you change your plea?” Hartley

responded, “No, sir.” (Id. at 9.) The court then inquired,

       THE COURT:                  We did talk about it and we did have
       placed [sic] into the record what I call the plea negotiations. I had
       Mr. Treece read those into the record. Were you here and did you
       hear them?

       THE DEFENDANT:              Yes, I heard them, yes.

       THE COURT:                  You understand what the offer is?

       THE DEFENDANT:           Yeah. I was just wondering about him
       saying about more incarceration to the County. About how much
       time that would be.

       THE COURT:                In a moment let me address that with
       you. But I want to make sure that first of all you understand while
       both Mr. Treece and Mr. Ried, and you in fact, may offer to the
       Court what you think the appropriate sentence ought to be in these
       cases, I don’t have to follow anybody’s recommendation. You
       understand that?

       THE DEFENDANT:              Yes, sir.

(Id. at 10.) Later, the court addressed Hartley’s question about more incarceration,

as follows.




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      THE COURT:                 Now you had mentioned, Mr. Hartley,
      you had a question about a local jail time. What is your question?

      THE DEFENDANT:          He was saying about you wanted to
      like—might put me in the County longer or what you was [sic]
      saying.

      THE COURT:                   Okay. Well what I thought heard I [sic]
      Mr. Treece argue, and he’s free to add to this if I don’t have it
      correctly. That is you have done some jail time already?

      THE DEFENDANT:              Yes, sir.

      THE COURT:                 It could be that what you’ve done so far
      is a satisfactory penalty, but he reserves the right to suggest at
      sentencing that there should be more local time than you’ve already
      served.

      THE DEFENDANT:              Right. He’s saying he wants more, right?

      THE COURT:                    I think he said he would like to reserve
      the right to argue for that at sentencing.

(Emphasis added.) (Id. at 15.)       The prosecutor then explained his

comments, and the following discussion occurred.

      MR. TREECE:                   We would examine—should an O.R.
      bond be granted we would examine how Mr. Hartley conducts
      himself while on personal recognizance bond. The better he is, the
      less likely it is that the State recommend incarceration. I will also
      note this is not a joint recommendation. So it merely gives the
      State’s position should it come to that, that he would serve local
      incarceration. We’ve not agreed to that. We would also reserve the
      right to not ask for local incarceration should he conduct himself in a
      perfectly acceptable manner.

      THE COURT:                  Mr. Hartley, does that help answer your
      question?


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Case No. 5-14-04


       THE DEFENDANT:               Yes, sir. Because I was saying because
       if I got out I got this job waiting for me right now. Because when I
       got put in they were suppose [sic] to call me and then three days
       later they been [sic] trying to get ahold of me. If I’m able to get
       back on my feet, make 19.75 again, you know, so I can stay out of
       the way and make you guys happy, make Joe happy, and keep me
       out of jail. That would also help, you know, be better for all of us.

       THE COURT:                 I think that’s exactly what Mr. Treece
       may have been referring to. But we all have to wait and see what
       happens.

       THE DEFENDANT:              Right.

       THE COURT:                   In terms of behavior and conduct.

       THE DEFENDANT:              Right, yes, sir. I actually want to make it
       clear, just to let them no [sic], I’m sitting in here and I got a job
       available. I’ve been waiting for a year and a half.

       MR. RIED:                   I think what the Judge and Mr. Treece
       are saying, they’re going to judge you by your actions when you get
       out there.

       THE DEFENDANT:               Yeah, because if I get out and I mess up,
       yeah, they going [sic] refer me do more time.

(Emphasis added.) (Id. at 16-17.) At the end of the hearing, Hartley signed a plea

of guilty. This document stated,

       No promises have been made to me by anyone to secure my plea of
       GUILTY other than those promises placed in the record pursuant to
       Criminal Rule 11(F) of the Ohio Rules Of Criminal Procedure.

(R. at 30 at 3.)

       {¶5} The trial court accepted Hartley’s plea and found him guilty of

trespass in a habitation. (Jan. 22, 2014 Hr’g Tr. at 24; R. at 34.) The court then

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ordered a pre-sentence investigation, continued the matter for sentencing at a later

date, and proceeded to address the issue of bond modification. (Id. at 24-25.) The

trial court granted Hartley’s motion and released him on bond with conditions

awaiting sentencing. (Id. at 28-30; R. at 29.)

       {¶6} Prior to the sentencing hearing, on February 3, 2014, a bench warrant

was again issued for Hartley for failure to comply with conditions of his

supervision. (R. at 33.) The sentencing hearing took place on March 24, 2014.

The prosecutor made the following statement.

       MR. TREECE:                * * * At the time Mr. Hartley entered his
       pleas of guilty back in January of this year, State put forth the
       following negotiations on the record. That at sentencing we would
       have no objection with the Court reserving imposition of a prison
       term and placing Mr. Hartley on a term of probation or community
       control.

       However, we specifically indicated two things. One, that we would
       seek a term of local incarceration as a condition of his probation.
       And two, this non-objection was contingent on Mr. Hartley
       remaining law abiding, reporting as directed, and remaining drug
       free.

       Well as we stand here today, Mr. Hartley is currently incarcerated
       based upon a number of bond violations while this matter has been
       pending. It’s because of those bond violations the State of Ohio is of
       the opinion we are no longer bound to that agreement, as it was put
       forth that he had to remain law abiding, drug free. And the court has
       directed he failed to abide by each of those conditions.

       Therefore today, I would have an objection to the Court finding him
       amenable. * * *



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      Therefore, given those factors I would ask that the Court find him no
      longer amenable to community control. Order him to serve a term of
      incarceration at the Ohio Department of Rehabilitation and
      Corrections. However, given the change in the circumstances the
      State of Ohio put forth on the record that should the Court do that we
      would remain silent in any future judicial release requests. Thank
      you.

(Mar. 24, 2014 Hr’g Tr. at 6-7.)

      {¶7} The trial court sentenced Hartley to a sixteen-month prison term at the

Ohio Department of Rehabilitation and Correction. (Id. at 18; R. at 46 at 3.)

Hartley now appeals raising one assignment of error for our consideration.

                               Assignment of Error

       The prosecutor breached his expressed plea recommendation
       making a recommendation contrary to the recommendation the
       defendant relied upon in changing his plea

       {¶8} Hartley admits that he violated the terms of his bond. Therefore, he

does not complain about the State’s recommendation against community control.

Hartley’s objection stems from the fact that at the plea hearing the State indicated

that it would seek local incarceration for failure to abide by the bond conditions.

At the sentencing hearing, however, the State recommended “incarceration at the

Ohio Department of Rehabilitation and Corrections.” (Mar. 24, 2014 Hr’g Tr. at

7.) 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.


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Case No. 5-14-04


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

New York, 404 U.S. 257, 262, 92 S.Ct. 495, 30 L.Ed.2d 427 (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 or to withdrawal of his or her guilty plea. Id.

       {¶9} We begin by noting that at the sentencing hearing Hartley did not

object to the State’s recommendation that he not be found amenable to community

control and thus, that non-local incarceration be imposed. Consequently, he has

forfeited all but plain error on appeal. McGinnis, 2008-Ohio-5825, at ¶ 8, citing

State v. Montgomery, 2008-Ohio-4753, 970 N.E.2d 999, ¶ 15 (4th Dist.) (holding

that the defendant “has forfeited any error related to the state’s breach of its

obligations under the plea agreements by not raising the issue at either sentencing

hearing”), United States v. Barnes, 278 F.3d 644, 646 (6th Cir.2002) (“[B]ecause

Defendant failed to object after the government did not offer a recommendation at

sentencing, Defendant waived his right to appeal any breach of the plea

agreement, and a plain error analysis thus guides this Court’s review.”), and State

v. Dudas, 11th Dist. Nos.2006-L-267, 2006-L-268, 2007-Ohio-6739, ¶ 93 (holding

that the failure to object to the State’s breach of a plea agreement forfeits all but

plain error).




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       {¶10} The standard of review under plain error “is a strict one.” State v.

Murphy, 91 Ohio St.3d 516, 532, 747 N.E.2d 765 (2001).

       “[A]n alleged error ‘does not constitute a plain error or defect under
       Crim.R. 52(B) unless, but for the error, the outcome of the trial
       clearly would have been otherwise.’ ” We have warned that the plain
       error rule is not to be invoked lightly. “Notice of plain error under
       Crim.R. 52(B) is to be taken with the utmost caution, under
       exceptional circumstances and only to prevent a manifest
       miscarriage of justice.”

Id., quoting State v. Campbell, 69 Ohio St.3d 38, 41, 630 N.E.2d 339 (1994), and

State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraphs two and three

of the syllabus. Under the plain error standard, “the defendant bears the burden of

demonstrating that a plain error affected his substantial rights” and “[e]ven if the

defendant satisfies this burden, an appellate court has discretion to disregard the

error and should correct it only to ‘prevent a manifest miscarriage of justice.’ ”

(Emphasis sic.) State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d

643, ¶ 14, quoting State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002),

and Long, 53 Ohio St.2d 91, at paragraph three of the syllabus.                 “Even

constitutional rights ‘may be lost as finally as any others by a failure to assert them

at the proper time.’ ” Murphy, 91 Ohio St.3d at 532, quoting State v. Childs, 14

Ohio St.2d 56, 62, 236 N.E.2d 545 (1968).

       {¶11} Here, Hartley does not even allege that a plain error occurred or that

his substantial rights have been affected in any way. He merely contends that


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Case No. 5-14-04


because the State has not done what it was allegedly supposed to do, we must

vacate his sentence. Hartley cites Santobello v. New York, 404 U.S. 257, 92 S.Ct.

495, 30 L.Ed.2d 427 (1971), where the United States Supreme Court vacated a

sentence and remanded the case to the trial court upon the prosecutor’s breach of

the plea agreement.     Santobello differs from the current case because there,

“Defense counsel immediately objected” upon the prosecutor breaching the plea

agreement. Id. at 259. Accordingly, the United States Supreme Court reviewed

Santobello’s case under a less strict standard of review, holding that “the interests

of justice and appropriate recognition of the duties of the prosecution in relation to

promises made in the negotiation of pleas of guilty will be best served by

remanding the case to the state courts for further consideration.” Id. at 262-263.

As we noted above, Hartley did not object to the alleged breach in the trial court

and we must apply the stricter, plain error, standard of review.

       {¶12} Under the benchmark provided by the Ohio Supreme Court that

“[n]otice of plain error * * * is to be taken with the utmost caution,” Murphy, 91

Ohio St.3d at 532, and that the defendant carries the burden “of demonstrating that

a plain error affected his substantial rights,” Perry, 2004-Ohio-297, at ¶ 14, we

choose not to proceed on plain error analysis because Hartley has not raised it and

consequently, he has failed to satisfy his burden on appeal.            See State v.

Quarterman, Slip Opinion No. 2014-Ohio-4034, ¶¶ 20-21 (refusing to apply a


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Case No. 5-14-04


plain error analysis where the defendant “did not make any attempt to

demonstrate” plain error).

       {¶13} Furthermore, no manifest miscarriage of justice is apparent from the

record. The trial court indicated that it had reviewed the presentence investigation

(Mar. 24, 2014 Hr’g Tr. at 12) and it noted Hartley’s prior felony conviction from

2008 (id. at 13-14), “long juvenile record” (id. at 15), his “substantial bond

violations” (id. at 14), and his “recidivism” (id. at 15). The trial court then found

that Hartley’s problems were “serious” and that he was not “amenable to the

community control.” (Id. at 17-18.) It does not appear that imposition of a prison

term at the Ohio Department of Rehabilitation and Correction instead of “local

incarceration” created a manifest miscarriage of justice. Accordingly, even if we

were to note plain error sua sponte, this case does not strike us as one that would

require us to exercise our discretion and note the error in order to “prevent a

manifest miscarriage of justice.” Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 802

N.E.2d 643, at ¶ 14, quoting Barnes, 94 Ohio St.3d at 27, 759 N.E.2d 1240, and

Long, 53 Ohio St.2d 91, 372 N.E.2d 804, at paragraph three of the syllabus.

                                    Conclusion

       {¶14} Having reviewed the arguments, the briefs, and the record in this

case, we find no error prejudicial to Appellant in the particulars assigned and




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Case No. 5-14-04


argued. The judgment of the Hancock County Common Pleas Court is therefore

affirmed.

                                                       Judgment Affirmed

SHAW and PRESTON, J.J., concur.

/jlr




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