[Cite as State v. Ortello, 2015-Ohio-3503.]
                            STATE OF OHIO, MAHONING COUNTY

                                   IN THE COURT OF APPEALS

                                         SEVENTH DISTRICT


STATE OF OHIO                                  )    CASE NO. 14 MA 69
                                               )
        PLAINTIFF-APPELLEE                     )
                                               )
VS.                                            )    OPINION
                                               )
DYMOND D. ORTELLO                              )
                                               )
        DEFENDANT-APPELLANT                    )

CHARACTER OF PROCEEDINGS:                           Criminal Appeal from the Court of
                                                    Common Pleas of Mahoning County,
                                                    Ohio
                                                    Case No. 13 CR 436

JUDGMENT:                                           Reversed and Remanded.
                                                    Judgment Vacated.

APPEARANCES:

For Plaintiff-Appellee:                             Atty. Paul J. Gains
                                                    Mahoning County Prosecutor
                                                    Atty. Ralph M. Rivera
                                                    Assistant Prosecuting Attorney
                                                    21 West Boardman Street, 6th Floor
                                                    Youngstown, Ohio 44503

For Defendant-Appellant:                            Atty. Joshua R. Hiznay
                                                    1040 S. Commons Place, Suite 202
                                                    Youngstown, OH 44514


JUDGES:

Hon. Cheryl L. Waite
Hon. Mary DeGenaro
Hon. Carol Ann Robb
                                                    Dated: August 21, 2015
[Cite as State v. Ortello, 2015-Ohio-3503.]
WAITE, J.


        {¶1}     Appellant Dymond Ortello appeals his conviction and sentence on the

grounds that the trial court became involved in his plea negotiations, promised an

eight-to-ten-year sentence, and then breached the agreement by sentencing him to

fourteen years in prison for kidnapping, aggravated robbery, burglary and felonious

assault.     The record reveals that the judge did make commitments that could

reasonably have been interpreted as a promise to impose a lower sentence. Further,

it is clear from the record that Appellant’s acceptance of the plea was contingent on

these commitments. There was also some confusion in the matter about the number

and status of the firearm specifications, which could have added to Appellant's belief

that the total aggregate sentence would be eight to ten years.           Based on the

confusion caused by the court's discussion of an eight-to-ten-year sentence and the

discrepancy between the information that was communicated at the change of plea

hearing versus what was contained in the written plea agreement, the matter is

hereby remanded to the trial court to allow Appellant to withdraw his plea and for

further proceedings.

                                              Background

        {¶2}     Appellant was indicted on May 16, 2013, on four separate counts:

kidnapping, R.C. 2905.01(A)(3)(c), a first degree felony with a firearm specification;

aggravated robbery, R.C. 2911.01(A)(1), (C), a first degree felony with a firearm

specification; burglary, R.C. 2911.12(A)(2), (D), a second degree felony; and

felonious assault, R.C. 2903.11(A)(2), (D), a second degree felony with a firearm

specification. All of the firearm specifications arose out of the same set of events that
                                                                                   -2-

occurred on April 13, 2013, and it was clear that they should merge at sentencing.

Therefore, the maximum possible sentence in this case was 41 years: eleven years

for kidnapping, eleven years for aggravated robbery, eight years for burglary and

eight years for felonious assault, for a total of 38 years, plus a maximum of three

years for the firearm specifications.

       {¶3}   On October 30, 2013, Appellant signed a written plea agreement. He

agreed to plead guilty to all four counts and to two firearm specifications. A plea

hearing was held that same day and the court explained to Appellant the rights he

was waiving in entering the plea. Considerable discussion took place regarding the

specific sentence that would be imposed.        During the hearing the trial judge

repeatedly implied that he would impose an eight-to-ten-year prison term. Appellant

accepted the court's commitment to impose something between eight and ten years

in prison, thus, he agreed to change his plea from not guilty to guilty. At the end of

the hearing, the court accepted the written plea agreement. The plea agreement was

filed on November 1, 2013. The court's judgment entry accepting the guilty plea was

filed the same day.

       {¶4}   Sentencing was held on June 4, 2014. The court imposed a sentence

of eleven years in prison on count two, aggravated robbery; merged the kidnapping

count into the aggravated robbery count; imposed eight years for burglary and

felonious assault, to be served concurrently with each other and with the aggravated

robbery count; and imposed one three-year prison term for the firearm specifications,

to be served prior to and consecutive to the aggravated robbery sentence. The total
                                                                                    -3-

prison term amounted to fourteen years. Appellant protested that this was not the

sentence promised at the plea hearing, but the court disregarded his objections. This

timely appeal followed.

                             ASSIGNMENT OF ERROR

       The trial court breached the parties’ plea agreement by imposing a

       prison term greater than ten years.

       {¶5}   Appellant argues that he bargained for a prison term of between eight

and ten years and that he should be entitled to that prison term because the judge

agreed to it. Appellant contends that a Crim.R. 11 plea bargain is a contract. State

v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, 922 N.E.2d 923, ¶61. “Principles of

contract law are generally applicable to the interpretation and enforcement of plea

agreements.” State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150,

¶50. “[A]mbiguities in a plea agreement are to be construed against the state.” Id. at

¶52.   If the state breaches a plea agreement, the defendant is entitled to either

rescission (withdrawal of the plea) or specific performance. Santobello v. New York,

404 U.S. 257, 263, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); see, also, State v. Vari, 7th

Dist. No. 07-MA-142, 2010-Ohio-1300, ¶27; Ritchie v. State, 12th Dist. No. CA2008-

07-073, 2009-Ohio-1841, ¶9; State v. Netherland, 4th Dist. No. 08CA3043, 2008-

Ohio-7007, ¶37.

       {¶6}   In this case, there exists both a written plea agreement and an oral plea

agreement obtained during the change of plea hearing. The written agreement does

indicate that a maximum prison term of 41 years was possible. The prosecutor
                                                                                    -4-

agreed to recommend a prison term of 15 years. At the plea hearing, negotiations

took place to narrow down the possible maximum sentence. It is clear from the

record that Appellant relied on the specific prison term negotiated at the plea hearing

as his incentive to accept the plea bargain.

      {¶7}   Trial court judges generally are not a party to the plea negotiations.

Thus, they are not bound by the recommendations and the contract itself. Vari,

supra, at ¶24. The court usually remains “free to impose a sentence greater than

that forming the inducement for the defendant to plead guilty so long as the court

forewarns the defendant of the applicable penalties, including the possibility of

imposing a greater sentence than that recommended by the prosecutor.” Id., citing

State v. Martinez, 7th Dist. No. 03 MA 196, 2004-Ohio-6806, ¶8. Nevertheless, once

the trial court enters into the plea agreement by making a promise, the judge

becomes a party to the agreement and is bound by the agreement. State v. Bush,

7th Dist. No. 13 MA 110, 2014-Ohio-4434, ¶36, citing Vari.at ¶24.

      {¶8}   The Ohio Supreme Court has stated that, “although this court strongly

discourages judge participation in plea negotiations, we do not hold that such

participation per se renders a plea invalid under the Ohio and United States

Constitutions.” State v. Byrd, 63 Ohio St.2d 288, 293, 407 N.E.2d 1384 (1980). In

Byrd, the Court explained:

      A judge's participation in the actual bargaining process presents a high

      potential for coercion. The defendant often views the judge as the final

      arbiter of his fate or at the very least the person in control of the
                                                                                      -5-

       important environment of the courtroom. He may be led to believe that

       this person considers him guilty of the crime without a chance of

       proving otherwise.     He may infer that he will not be given a fair

       opportunity to present his case. Even if he wishes to go to trial, he may

       perceive the trial as a hopeless and dangerous exercise in futility.


       ***


       “The unequal positions of the judge and the accused, one with the

       power to commit to prison and the other deeply concerned to avoid

       prison, at once raise a question of fundamental fairness. When a judge

       becomes a participant in plea bargaining he brings to bear the full force

       and majesty of his office. His awesome power to impose a substantially

       longer or even maximum sentence in excess of that proposed is

       present whether referred to or not. A defendant needs no reminder that

       if he rejects the proposal, stands upon his right to trial and is convicted,

       he faces a significantly longer sentence. One facing a prison term,

       whether of longer or shorter duration, is easily influenced to accept

       what appears the more preferable choice. Intentionally or otherwise,

       and no matter how well motivated the judge may be, the accused is

       subjected to a subtle but powerful influence.”          (Internal Citations

       Omitted.)

Id. at 292.
                                                                                    -6-

       {¶9}     In this case, the judge did interject himself into the plea process by

making commitments to Appellant about the prison term that he would likely impose.

After reviewing Appellant's constitutional rights and after going over the charges, the

gun specifications and the maximum possible prison terms, the court reviewed the

prosecutor's prison recommendation. The judge stated that the prosecutor would be

asking for a total of twelve years in prison on the combined four counts in the

indictment, plus three years on a single firearm specification, to be served prior to

and consecutive to the other prison term.         (Tr., p. 13.)    The court noted that

Appellant's attorney would be asking for less than fifteen years.

       {¶10} The judge then asked Appellant about a case that was pending against

him in Columbiana County, and Appellant said he had not yet entered a plea in that

case. (Tr., p. 14.)

       {¶11} It is at this point that the court entered into the plea negotiations and

made certain commitments concerning the maximum sentence that he would impose.

At first, the judge spoke in terms of possibilities rather than absolutes:

       THE COURT:        Okay.   I indicated to counsel, so it's no surprise to

       anybody, and I know Attorney Taylor has indicated this to you and I will

       indicate this to you for the record, that based upon your acceptance of

       responsibility I would probably impose between eight and ten years

       depending upon what happens down in Columbiana County.

(Tr., p. 14.)
                                                                                  -7-

       {¶12} This statement indicates that Appellant’s sentence would likely be

between eight and ten years. It could also be interpreted to mean that if things did

not go well in Columbiana County, the sentence could be ten years. If they did go

well, the sentence could be eight years.        The judge makes no mention that the

sentence could be eight to ten years plus an additional three for the firearm

specification. At this point, however, it appears that no promise was made.

       {¶13} The judge then explained to Appellant the judicial release process. At

the end of that discussion, the judge stated:

       THE COURT: But I will tell you this. Based on your acceptance of

       responsibility, I'm telling you right now that I would come in somewhere

       between eight and ten years. Again, that's going to depend on what

       Columbiana does.

(Tr., pp. 15-16.)

       {¶14} This statement can reasonably be interpreted as a promise to impose a

sentence between eight and ten years.             Furthermore, it can reasonably be

interpreted to mean that the outcome of the Columbiana case would determine

whether Appellant received a ten-year sentence or an eight-year sentence.

       {¶15} Appellant then asked the judge if a seven-year prison term were

possible, depending on the outcome of the Columbiana case, and the judge stated:

“I suppose anything is possible, to answer your question.” (Tr., p. 16.) This was not

a general statement regarding sentencing.         Instead, it was given in answer to

Appellant’s question whether a seven-year prison term could be imposed.
                                                                                     -8-

       {¶16} The judge then clarified once again that although seven years was

possible, Appellant could not object if the sentence was between eight and ten years:

       THE COURT: But I don't want [you] to come back here at sentencing,

       read the presentence investigation, impose eight, nine, or ten, and have

       you say, wait a minute; that's not what I thought.

(Tr., pp. 16-17.)

       {¶17} So, in the course of a very few minutes of dialogue, the court stated

three times that Appellant’s prison sentence would fall between eight and ten years.

None of those statements mentioned that the eight-to-ten-year period excluded the

sentence for the firearm specification, or that the total sentence might be more than

eight to ten years.

       {¶18} At a later point the judge did explain that he retained judicial discretion

in regard to sentencing:

       THE COURT: But I don't want you misunderstanding me. Based upon

       everything and every pretrial and every discussion I've had with the

       attorneys --


       THE DEFENDANT: Yes, sir.


       THE COURT: -- I thought eight to ten years with what might happen in

       Columbiana County was a fair resolution. But I haven't made up my

       mind because I haven't seen the presentence investigation. I haven't

       made up my mind because I haven't heard from the victim who has an
                                                                                     -9-

       opportunity to address the Court. So I have an open mind. I do. And I

       will certainly consider anything presented at sentence, and I will

       certainly consider anything presented by the victim, and I will certainly

       consider the presentence investigation and all criteria that I have to

       consider under Ohio law. And I'll certainly listen to you.

(Tr., pp. 17-18.)

       {¶19} The judge still did not impress upon Appellant that a sentence of more

than eight to ten years was possible. This entire section appears aimed at informing

Appellant that more leniency might be granted. The court repeated the phrase “eight

to ten years” for the fourth time. The only discretion discussed at this point could

reasonably be understood to mean the discretion to impose anything within the eight-

to-ten-year period that was consistently discussed.

       {¶20} The    judge    then   talked   about    the   prosecutor’s   reasons   for

recommending a fifteen-year prison term. At the end of this discussion, the judge

stated:

       THE COURT:           Whatever the prosecutor asks for is just a

       recommendation. They can come in and ask for five and I could still

       come in at eight or ten.

(Tr., pp. 19-20.)

       {¶21} This reference is now the fifth time the eight-to-ten year sentence was

mentioned by the judge, and at this point the judge could have been expected to add

that he could impose eight or fifteen, or even forty-one years, given the actual
                                                                                   -10-

maximum possible sentences in this case. Yet, the court never strayed from the

“eight to ten” range he advanced in every reference to Appellant’s sentence.

       {¶22} Appellant and the prosecutor followed this with another discussion

about the prosecutor's fifteen-year recommendation, and the prosecutor stated that

the recommendation was lenient considering the maximum possible sentence of 45

years. This remark by the prosecutor was the first mention of a possible lengthy

prison term. However, a 45-year sentence is not supported by the record, and the

prosecutor’s statement appears to have been made in error. (Tr., p. 22.)

       {¶23} Finally, after Appellant again accepted responsibility for his crime, the

judge asked him if he had any further questions about the possible sentence:

       THE COURT: Any other questions about the possible sentence that I

       can impose or what you're looking at as it relates to the sentence that I

       told you I would follow as close as I can get?


       THE DEFENDANT: You say eight to ten?


       THE COURT: Yes.


       THE DEFENDANT: And you ask me do I have any questions about

       that?


       THE COURT: Yes.


       THE DEFENDANT: It's all in your hands, Your Honor.

(Tr., pp. 22-23.)
                                                                                 -11-

      {¶24} So, for the sixth time, the only prison term discussed with Appellant was

a term of eight to ten years. There were no qualifiers, disclaimers or caveats added

to the discussion. Appellant questioned whether his possible sentence would be

eight to ten years, and the judge replied “yes.” Although we recognize that the trial

court did remind Appellant on at least two occasions during the plea colloquy that the

court retained judicial discretion in sentencing, the overall impression to be gleaned

from this record is that discretion was limited to imposing something between eight

and ten years in prison.

      {¶25} Although the judge did not directly make Appellant an absolute promise

that he would receive an eight-to-ten-year sentence, the confusion created by the

judge's repeated comments about the sentence that would likely be imposed

undermines the knowing, intelligent and voluntary nature of the change of plea

process.   The Due Process Clause found in both the United States and Ohio

Constitutions requires that guilty or no contest pleas be made in a knowing,

intelligent, and voluntary manner. Parke v. Raley, 506 U.S. 20, 28–30, 113 S.Ct.

517, 121 L.Ed.2d 391 (1992); State v. Buchanan, 43 Ohio App.2d 93, 96, 334 N.E.2d

503 (8th Dist.1974). If a defendant's guilty plea is not voluntarily and intelligently

made, it has been obtained in violation of due process and is void.         Boykin v.

Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).               When

determining whether a plea is made knowingly, intelligently and voluntarily, courts

must consider all of the relevant circumstances surrounding it.      Brady v. United
                                                                                  -12-

States, 397 U.S. 742, 749, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970); State v. Johnson,

7th Dist. No. 07-MA-8, 2008-Ohio-1065, ¶8.

      {¶26} Ohio Crim.R. 11(C) was adopted in order to more accurately determine

the nature of a defendant's plea by ensuring an adequate record for review. State v.

Stone, 43 Ohio St.2d 163, 167-168, 331 N.E.2d 411 (1975); State v. Stewart, 51

Ohio St.2d 86, 92-93, 364 N.E.2d 1163 (1977). During the plea colloquy, the trial

court is to provide specific information to the defendant, including information about

the constitutional and nonconstitutional rights being waived. Crim.R. 11(C)(2); State

v. Francis, 104 Ohio St.3d 490, 2004-Ohio-6894, 820 N.E.2d 355, ¶29.

Constitutional rights include rights such as trial by jury and the right to confront

witnesses.   Nonconstitutional rights include information about the nature of the

charges and the maximum penalty involved. In order for a plea to be knowing and

voluntary, the trial court must follow the mandates of Crim.R. 11(C) and inform the

defendant of both the constitutional and nonconstitutional rights being waived.

      {¶27} Crim.R. 11(C)(2)(a) states that: “In felony cases the court * * * shall not

accept a plea of guilty or no contest without first addressing the defendant personally

and doing all of the following: (a) Determining that the defendant is making the plea

voluntarily, with understanding of the nature of the charges and of the maximum

penalty involved * * *.” A trial court must strictly comply with Crim.R. 11 regarding

constitutional rights, and must substantially comply regarding non-constitutional

rights. State v. Nero, 56 Ohio St.3d 106, 108, 564 N.E.2d 474 (1990). “Substantial

compliance [with Crim.R. 11] means that under the totality of the circumstances the
                                                                                -13-

defendant subjectively understands the implications of his plea and the rights he is

waiving.” Id.; see also, State v. Clark, 119 Ohio St.3d 239, 2008-Ohio-3748, 893

N.E.2d 462, ¶31.     The right to be informed of the maximum sentence is a

nonconstitutional right that must be discussed at the plea hearing. State v. Eckles,

173 Ohio App.3d 606, 612, 2007-Ohio-6220, 879 N.E.2d 829, ¶43, citing McCarthy v.

United States, 394 U.S. 459, 466, 89 S.Ct. 1166, 22 L.Ed.2d 418 (1969). Thus, the

trial court must substantially comply with the mandates of Crim.R. 11 with respect to

its discussion about maximum possible sentences. Informing the defendant about

the maximum possible sentence, though, does not mean having a speculative

discussion about the sentence that will likely be imposed.     The change of plea

hearing is not the appropriate time for the court to discuss his leanings as to a

specific sentence, except as it relates to the terms of the plea agreement or if the

terms of the sentence are mandatory. State v. Bragwell, 7th Dist. No. 06-MA-140,

2008-Ohio-3406, ¶54-58.

      {¶28} In this case, the trial judge's repeated comments about the likely

sentence, even if those comments cannot be construed as an absolute promise to

give a specific sentence, undermined the plea process and the knowing, intelligent

and voluntary acceptance of the plea.      A reasonable interpretation of this plea

colloquy was that the judge intended to impose a sentence of between eight and ten

years, regardless of the terms in the written plea agreement. The plea was not

formally accepted until the end of the plea hearing, giving the impression that the

many references to an eight-to-ten year sentence was the primary basis on which
                                                                                      -14-

Appellant agreed to the plea. While the judge's discussion relative to an eight-to-ten

year prison term do not rise to the level of an enforceable promise, the numerous

references to this likely sentence raise grave questions about the effect of those

discussions on the plea process.

       {¶29} The additional confusion about the gun specifications reinforces the

determination that the plea was not knowingly, intelligently and voluntarily made. The

plea agreement form explains that the firearm specification is mandatory, but page

one of the form lists two firearm specifications, whereas page three contains only

one, thus creating additional confusion about the possible sentence. The court's

judgment entry accepting the plea agreement notes that there were two gun

specifications.   At the plea hearing, Appellant raised a question about the

specifications: “Yeah, but I still don't understand the specification, like how I got two.”

(Tr., p. 6.) At a point late in the plea hearing, the prosecutor told Appellant that the

maximum sentence was 45 years. (Tr., p. 22.) The actual maximum was 41 years,

causing even more confusion as to whether a penalty for more than one firearm

specification might be imposed. The question about the gun specifications and how

they affected the sentence appear to be at the heart of Appellant's arguments

concerning his fourteen-year prison term, particularly when the court repeatedly

stated that the sentence would be between eight and ten years and the implication

was that the gun specification would be included in that range.

       {¶30} Given the many references that the judge made that he would likely

impose an eight-to-ten-year prison term, along with other ambiguities at the plea
                                                                                 -15-

hearing as to firearm specifications, the length of the maximum possible sentence,

and what the stated eight-to-ten-year period might include, Appellant's assignment of

error is sustained. We hereby vacate the conviction and sentence and remand the

case to the trial court so that Appellant may be allowed to withdraw his plea and for

further proceedings pursuant to law.


DeGenaro, J., concurs.

Robb, J., concurs.
