[Cite as State v. Dennis, 2020-Ohio-2861.]




                             IN THE COURT OF APPEALS OF OHIO
                                 SIXTH APPELLATE DISTRICT
                                       ERIE COUNTY


State of Ohio                                    Court of Appeals No. E-19-032

        Appellee                                 Trial Court No. 2017 CR 0428

v.

Justin D. Dennis                                 DECISION AND JUDGMENT

        Appellant                                Decided: May 8, 2020

                                             *****

        Kevin J. Baxter, Erie County Prosecuting Attorney, and
        Kristin R. Palmer, Assistant Prosecuting Attorney, for appellee.

        Russell V. Leffler, for appellant.

                                             *****

        OSOWIK, J.

        {¶ 1} This is an appeal from an April 23, 2019 judgment of the Erie County Court

of Common Pleas, sentencing appellant to a total term of incarceration of four years

following appellant’s guilty pleas to two counts of operating a motor vehicle while under

the influence of alcohol, in violation of R.C. 4511.19, both offenses being felonies of the

fourth degree, as enhanced based upon appellant’s six prior OVI convictions.
         {¶ 2} Although the plea bargain discussions included a proposed provision for

unopposed judicial release into a residential treatment program after a period of 60 days,

this term was expressly contingent upon appellant committing no bond violations.

         {¶ 3} Subsequent to the change of plea hearing, appellant committed numerous

bond violations, in direct contravention of the above-described conditional plea

provision. Therefore, the provision regarding unopposed early release was nullified by

the intervening bond violations and not incorporated into appellant’s sentence, just as the

trial court had forewarned appellant would occur upon bond violations.

         {¶ 4} We note that while appellee contends that a portion of this appeal should not

be considered based upon procedural considerations, we shall resolve this matter fully on

the substantive merits. For the reasons set forth below, this court affirms the judgment

of the trial court.

         {¶ 5} Appellant, Justin D. Dennis, sets forth the following sole assignment of

error:

               IT WAS ERROR FOR THE TRIAL COURT TO BECOME

         INVOLVED IN GUARANTEEING THE PLEA BARGAIN PROCESS

         AND THEN VACATING SAME ON A MOTION FILED BY THE

         STATE WITH NO HEARING HELD ON THE MOTION TO REVOKE

         BOND AND THE GROUNDS FOR TERMINATING THE PLEA

         BARGAIN WERE INSUFFICIENT.




2.
       {¶ 6} The following undisputed facts are relevant to this appeal. On August 13,

2017, appellant was clocked on radar by an Ohio State Highway patrolman travelling

60 m.p.h. in a 35 m.p.h. zone. Upon initiating a traffic stop, the officer detected

numerous indicia of alcohol intoxication. Appellant, who possesses numerous past OVI

convictions, exhibited a strong odor of alcohol, glossy eyes, and slurred speech.

Appellant failed the field sobriety tests and refused BAC testing. In addition, appellant

lacked a valid operator’s license as he was under suspension for a prior OVI offense at

the time of this incident.

       {¶ 7} Subsequently, on April 13, 2018, appellant was again stopped by an Ohio

State Highway patrolman, following observation of a marked lanes violation. Appellant

was again found to be operating a motor vehicle while under the influence of alcohol and

a license suspension. Appellant failed field sobriety testing and refused BAC testing.

       {¶ 8} On March 8, 2019, appellant entered into a comprehensive plea agreement in

which appellant pled guilty to two counts of operating a motor vehicle while under the

influence of alcohol, in violation of R.C. 4511.19, both counts being felonies of the

fourth degree due to appellant’s six OVI prior convictions. In exchange, a repeat

offender specification was dismissed.

       {¶ 9} At the March 8, 2019 change of plea hearing, the trial court unequivocally

conveyed to appellant in relevant part, “As part of this plea agreement, if you violate your

bond, then the agreement as to judicial release is off the table, and you will be doing the

four years without judicial release.” (Emphasis added).




3.
       {¶ 10} The record reflects that subsequent to the plea hearing, in contravention of

the above-quoted agreement, appellant committed multiple bond violations. Specifically,

appellant disconnected his house arrest monitoring device, left his home numerous times

in the middle of the night without notifying or receiving authorization from probation

personnel, refused to cooperate in the presentence investigation, failed to report to

probation, refused to answer his door when probation personnel were dispatched to

follow-up on these breaches, provided an invalid phone number to probation, and failed

to respond to any of the communications from the probation department needed to

monitor bond compliance and prepare the presentence report.

       {¶ 11} Given these violations, and in accordance with the conditions conveyed to

appellant at the change of plea colloquy, appellant was sentenced to a four-year term of

incarceration without the proposed sentencing term of judicial early release. This appeal

ensued.

       {¶ 12} In the sole assignment of error, appellant maintains that the trial court erred

in declining to include the conditional plea bargain term of unopposed judicial early

release. We do not concur.

       {¶ 13} It is well-established that pursuant to R.C. 2953.08(G)(2), an appellate

court may increase, decrease, modify, or vacate a disputed trial court felony sentence if it

is demonstrated by clear and convincing evidence that either the record of evidence did

not support applicable statutory findings or is otherwise contrary to law. State v.

Tammerine, 6th Dist. Lucas No. L-13-1081, 2014-Ohio-425, ¶ 11.




4.
       {¶ 14} In support of this appeal, appellant mistakenly characterizes the trial court

as having unconditionally “guaranteed” adherence to all proposed plea bargain terms

upon final sentencing. The record clearly refutes this contention.

       {¶ 15} On the contrary, the record shows that appellant’s intervening bond

violations necessitated the trial court’s decision to not include unopposed judicial early

release at appellant’s sentencing hearing.

       {¶ 16} The record shows that appellant was duly advised of the consequences of

bond violations at the change of plea hearing. At the March 8, 2019 change of plea

hearing, the trial court expressly cautioned appellant that, “If you violate your bond, then

the agreement as to judicial release is off the table, and you will be doing the four years.”

       {¶ 17} The record further shows that following this hearing, appellant committed

the numerous above-described infractions and bond violations.

       {¶ 18} The record reflects that appellant possesses a lengthy criminal history,

including in excess of 80 prior offenses, including 6 prior OVI offenses, as well as a

range of other offenses, including heroin trafficking, receiving stolen property,

aggravated burglary, and felonious assault.

       {¶ 19} On April 23, 2019, appellant was sentenced. The trial court was presented

with uncontroverted evidence of appellant’s many bond violations occurring after the

March 8, 2019 change of plea hearing.

       {¶ 20} In response to the above-described considerable aggravating circumstances,

appellant’s statement in mitigation unconvincingly conveyed that, “It was really hard for




5.
me, sometimes I was sleeping and with the thing, the [home monitoring] box thing * * *

I didn’t unplug it. Like I knew I had a warrant * * * Like you want to punish me like.

I[‘m] going through enough punishment right now.”

       {¶ 21} The trial court was not persuaded and concluded in relevant part, “[M]y

information is that you were not complying with the terms of house arrest. You were not

checking in on bond. You did not provide a valid number * * * You had unauthorized

leaves in the middle of the night.”

       {¶ 22} Accordingly, appellant was sentenced to a four-year term of incarceration

without unopposed judicial early release, as appellant had been forewarned would occur

at the change of plea hearing.

       {¶ 23} It is well-established that trial courts are not strictly bound by plea bargain

terms proposed by the parties, and intervening circumstances may warrant final

sentencing deviation from proposed plea bargain term. As conveyed in State v Bonnell,

12th Dist. Clermont No. CA-12-094, 2002-Ohio-5882, ¶ 20, “We recognize that there are

instances in which a trial court intends to sentence a defendant in one manner and

circumstances or facts arise which make the promised sentence inappropriate.”

       {¶ 24} The Bonnell scenario is what occurred in the instant case. The trial court

hoped to sentence appellant with terms including unopposed judicial early release, but

cautioned appellant that it could not do so if appellant violated bond terms. Nevertheless,

appellant violated numerous bond terms, such that unopposed judicial early release was

no longer warranted or proper for sentencing purposes.




6.
       {¶ 25} We find that appellant has failed to establish that the trial court acted

improperly in sentencing appellant in connection to plea bargain considerations.

Appellant has also failed to demonstrate by clear and convincing evidence that the record

of evidence did not support applicable statutory findings, or was otherwise contrary to

law. We find appellant’s assignment of error not well-taken.

       {¶ 26} On consideration whereof, the judgment of the Erie County Court of

Common Pleas is hereby affirmed. Appellant is ordered to pay the costs of this appeal

pursuant to App.R. 24.

                                                                         Judgment affirmed.




       A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See also 6th Dist.Loc.App.R. 4.




Arlene Singer, J.                               _______________________________
                                                            JUDGE
Thomas J. Osowik, J.
                                                _______________________________
Christine E. Mayle, J.                                      JUDGE
CONCUR.
                                                _______________________________
                                                            JUDGE


           This decision is subject to further editing by the Supreme Court of
      Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
           version are advised to visit the Ohio Supreme Court’s web site at:
                    http://www.supremecourt.ohio.gov/ROD/docs/.




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