[Cite as State v. Baker, 2018-Ohio-3925.]




                             IN THE COURT OF APPEALS OF OHIO
                                SECOND APPELLATE DISTRICT
                                    MONTGOMERY COUNTY

 STATE OF OHIO                                    :
                                                  :
         Plaintiff-Appellee                       :  Appellate Case No. 27818
                                                  :
 v.                                               :  Trial Court Case No. 2017-CR-2160
                                                  :
 JOHNNY C. BAKER                                  :  (Criminal Appeal from
                                                  :   Common Pleas Court)
         Defendant-Appellant                      :
                                                  :
                                             ...........

                                            OPINION

                          Rendered on the 28th day of September, 2018.

                                             ...........

MICHAEL P. ALLEN, Atty. Reg. No. 0095826, Montgomery County Prosecutor’s Office,
Appellate Division, 301 W. Third Street, 5th Floor, Dayton, Ohio 45422
      Attorney for Plaintiff-Appellee

ANTHONY R. CICERO, Atty. Reg. No. 0065408, 500 E. Fifth Street, Dayton, Ohio 45402
    Attorney for Defendant-Appellant

                                            .............
                                                                                              -2-


HALL, J.

       {¶ 1} Johnny C. Baker appeals from his conviction and sentence following a guilty

plea to kidnapping, a first-degree felony.

       {¶ 2} Baker advances five assignments of error. First, he contends the trial court

erred in failing to be sure that he understood the nature of the charge when he entered

his plea. Second, he claims he was “convicted upon an indictment and bill of particulars

that contained structural error[.]” Third, he alleges that he received ineffective assistance

of trial counsel. Fourth, he asserts that the trial court erred in impermissibly involving itself

in plea negotiations. Fifth, he argues that his five-year prison sentence is contrary to law.

       {¶ 3} The record reflects that Baker was charged with felonious assault (serious

physical harm), domestic violence, and kidnapping for allegedly detaining his girlfriend

against her will and beating her. (See Indictment, Doc. # 4; Bill of Particulars, Doc. # 55.)

Pursuant to plea negotiations, he agreed to plead guilty to kidnapping. In exchange, the

State agreed to dismiss the other charges. The parties also jointly recommended a three-

year prison sentence. (Doc. # 58; Plea Tr. at 12.) During the plea hearing, the trial court

advised Baker that it would impose the agreed sentence provided that his record was as

represented, that he cooperate with the PSI process, that he show up for all court

appearances, and that he commit no additional crimes before sentencing. (Plea Tr. at

13.) The trial court then accepted the plea and made a finding of guilt. (Id. at 13-14.) At

that time, regarding the three-year jointly-recommended sentence, the trial court stated:

“the Court’s in agreement with that, but I’m going to condition my agreements with the

recommended sentence on the following conditions.” (Id.) The conditions were that

Baker’s prior record was as represented, that he cooperate with the PSI, that he appear
                                                                                         -3-


when required and that he commit no criminal violations before sentencing.

       {¶ 4} Baker subsequently appeared for sentencing, and at a sidebar conference

his counsel suggested a one-week continuance because his client disagreed with the

three-year sentence but was uncertain whether to withdraw his plea. Upon resuming open

court, the court, probably incorrectly,1 stated:

       THE COURT: Now, there's nothing -- and I think I told you at that time, nothing in

       your offer or your agreement with the State binds me in any way.

       THE DEFENDANT: Correct.

       THE COURT: All right. That’s your understanding as well?

       THE DEFENDANT: Yes.

       THE COURT: Is that your understanding as well?

       THE DEFENDANT: Yes, sir.

       {¶ 5} Baker then claimed he had misunderstood the three-year prison sentence.

He told the trial court he thought he was going to receive three years of community control.

(Sentencing Tr. at 8.) Defense counsel indicated that Baker did not necessarily want to

withdraw his plea, but he wanted to argue for community control. The trial court continued

the matter to allow Baker to consider how he wanted to proceed and to move to withdraw

his plea if he desired.

       {¶ 6} When the trial court reconvened the proceedings a week later, Baker stated

that he did not want to withdraw his plea. Rather, he wanted to keep his guilty plea to one

count of kidnapping, but he wanted to withdraw his agreement to a jointly-recommended


1There is no indication whether the conditional terms of the court’s acceptance of the
agreement were met, although Baker was in custody and a PSI was prepared.
Nevertheless the court later, several times, indicated it would follow the agreement.
                                                                                     -4-


three-year prison sentence. Baker advised the trial court that he wanted an opportunity

to argue for community control. The trial court explained his options:

             Good morning. Now Mr. Baker, we’re here today because last week

      we had a discussion about your options in proceeding today. And the

      options we had laid out were three—well, of three types. To proceed as you

      had urged and agreed under the three year agreement as option A.

             Option B with two subsections was to withdraw your plea. To then I

      would schedule a hearing and if I allowed your plea to stand, you would

      proceed accordingly or if you—if I allowed your plea to be withdrawn and

      then grant your motion, then you would proceed to trial on all the issues.

             The third option, Option C that was presented based on agreement

      by the parties—or both of you and the State was that you proceed with the

      agreed plea to the single count of kidnapping, felony the first degree. But

      that your sentencing range be opened up for argument and persuasion on

      the entire sentencing range which is probation or community controlled

      sanctions, all the way to the maximum term of incarceration of 11 years.

      And including the fine from zero to $20,000.

             With that said, my understand that day and my recollection of that

      day was that you had elected on the record to proceed with the third option,

      Option C, to continue with your plea to the first degree kidnapping charge

      with the range of arguments for penalty from the probation to 11 years,

      correct?

      THE DEFENDANT: Yes, sir.
                                                                                    -5-


THE COURT: Is that still your wish and election today?

THE DEFENDANT: Yes, sir.

THE COURT: All right. Has anyone pressured you or threatened you or

forced you to do so?

THE DEFENDANT: No, Your Honor.

THE COURT: All right. Has anyone promised you anything in order to get

you to do so?

THE DEFENDANT: Yes, sir.

THE COURT: Has anyone promised you anything to get you --

THE DEFENDANT: No, sir.

THE COURT: All right. That's your free and voluntary choice?

THE DEFENDANT: Yes, sir.

THE COURT: Do you have any questions about those options or your

election to proceed today?

THE DEFENDANT: No, sir.

THE COURT: Okay. [Defense counsel], do you have any concerns or

statements you'd like to make on that election of the three options?

[DEFENSE COUNSEL]: Your Honor, I advised Mr. Baker again and again

and when he accepted the plea deal I thought it was in his best interests,

the three years agreed upon sentence. Mr. Baker and I discussed that at

length. He has now decided to open it up from anywhere from community

controlled sanctions all the way up to maximum 11 years. We’ve discussed

that at length as well. It’s his decision. It’s not my decision but I advised him
                                                                                        -6-


      that this wouldn’t be the route I would suggest.

(Sentencing Tr., 11-22-2017 at 10-12.) The trial court continued by specifically indicating

to Baker that he could be sentenced anywhere from community control to eleven years

in prison and warning him that there was a presumption that prison would be imposed

unless the court could make “certain findings” otherwise. Baker indicated that he

understood. (Id. at 11-15.) The trial court then assured that he was making his decision

freely and voluntarily. Baker repeatedly indicated that he understood and wanted to

proceed with the entire range of sentencing options available. (Id. at 14-16.)

      {¶ 7} The trial court granted Baker’s request and heard sentencing arguments from

the prosecutor, defense counsel, and Baker. The State sought an eleven-year prison

sentence, whereas defense counsel and Baker advocated for community control. After

considering the parties’ arguments, sentencing memoranda, a letter, and a PSI report,

the trial court imposed a five-year prison sentence. The PSI report indicated that Baker

had beaten his live-in girlfriend several times over the course of a few days and had

shoved her head through a window. She had a left eye orbital blowout fracture and severe

bruising to her shoulders, chest, neck, eyes, face and lips. The trial court specifically

addressed several of the statutory seriousness and recidivism factors. It also noted that

it had considered the statutory principles and purposes of sentencing. (Id. at 23-25.)This

appeal followed.

      {¶ 8} In his first assignment of error, Baker contends the trial court did not comply

with Crim.R. 11(C)(2)(a) because it failed to assure that he understood the nature of the

kidnapping charge before accepting his guilty plea.

      {¶ 9} Baker pled guilty to violating R.C. 2905.01(A)(2), which as relevant here
                                                                                           -7-


requires restraint of a person’s liberty for the purpose of facilitating the commission of any

felony. Baker maintains that he could not have understood the nature of this charge

because neither the indictment nor the bill of particulars specified any underlying,

predicate felony, and the prosecutor’s recitation at the plea hearing did not identify one.

That being so, Baker argues that his affirmative response when asked whether he

understood the nature of the kidnapping charge was insufficient.

       {¶ 10} Upon review, we find Baker’s argument to be without merit. During the plea

hearing, he acknowledged that he and his attorney had discussed “what the State would

have to prove in order for [him] to be found guilty of [kidnapping].” (Plea Tr. at 9.) We note

too that his indictment charged only two felonies, kidnapping and “felonious assault

(serious harm) F2,” both of which occurred at the same time “[b]etween the dates of July

7, 2017 through July 9, 2017.” When addressing the kidnapping charge, the bill of

particulars specified that “[d]uring the above dates the Defendant did cause serious

physical harm to [the victim] and held her against her will.” (Doc. # 55 at 3.) Based on

Baker’s statements at the plea hearing, the indicted offenses, and the information

provided by the bill of particulars, which effectively identified felonious assault as the

underlying felony supporting the kidnapping charge, we are unpersuaded that he did not

understand, or could not have understood, the nature of the kidnapping charge when he

pled guilty. The first assignment of error is overruled.

       {¶ 11} In his second assignment of error, Baker alleges “structural error” based on

the omission from his indictment of a specified underlying, predicate felony to support the

kidnapping charge.

       {¶ 12} Once again, we find Baker’s argument to be unpersuasive. As a threshold
                                                                                          -8-


matter, his failure to raise this alleged defect in the indictment below waives all but plain

error. An objection to an indictment that is not raised prior to trial or entering a plea as

required by Crim.R. 12(C)(2) is waived unless it constitutes plain error. State v. Hartman,

2016-Ohio-2883, 64 N.E.3d 519, ¶ 66 (2d Dist.), citing State v. Skatzes, 104 Ohio St.3d

195, 2004-Ohio-6391, 819 N.E.2d 215, ¶ 26; State v. Gibson, 2d Dist. Champaign No.

2006 CA 26, 2007-Ohio-4547, ¶ 18. Reversal for plain error is warranted only when, “but

for the error, the outcome of the trial would have been different.” Id., citing State v.

Waddell, 75 Ohio St.3d 163, 166, 661 N.E.2d 1043 (1996.) Notice of plain error “is to be

taken with the utmost caution, under exceptional circumstances and only to prevent a

manifest miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),

paragraph three of the syllabus.

       {¶ 13} We see no error in Baker’s indictment—plain, structural, or otherwise. His

argument is foreclosed by State v. Skatzes. In Skatzes, the Ohio Supreme Court rejected

an argument that the defendant’s indictment on a kidnapping charge was defective

because it did not identify the underlying felony. The Ohio Supreme Court held that the

indictment properly charged an offense because it tracked the language of the statute. Id.

at ¶ 26-27. In addition, with regard to the indictment’s failure to specify the felony

underlying the kidnapping charge, the Skatzes court noted that a bill of particulars

properly was used to supply this information. Id. at ¶ 27-30. The court explained: “Here,

the omission of the underlying felony in the indictment was remedied because the bill of

particulars identified the underlying felony, as is permitted where the indictment

sufficiently tracked the wording of the kidnapping statute.” Id. at ¶ 30.

       {¶ 14} Baker argues that our decision should be controlled by State v. Buehner,
                                                                                        -9-

110 Ohio St.3d 403, 2006-Ohio-4707, 853 N.E.2d 1162, rather than Skatzes. The

defendant in Buehner was indicted for ethnic intimidation under R.C. 2927.12(A), which

states: “No person shall violate section 2903.21, 2903.22, 2909.06, or 2909.07, or division

(A)(3), (4), or (5) of section 2917.21 of the Revised Code by reason of the race, color,

religion, or national origin of another person or group of persons.” Buehner’s indictment

stated that he violated the ethnic intimidation statute by virtue of violation of “Section

2903.21 of the Revised Code” without indicating that nominally the predicate offense was

aggravated menacing and without containing the elements of aggravated menacing. The

syllabus of Buehner states: “An indictment that tracks the language of the charged offense

and identifies a predicate offense by reference to the statute number need not also include

each element of the predicate offense in the indictment.”

       {¶ 15} We distinguish Buehner for at least three reasons. First, the defendant in

Buehner specifically raised a challenge to the sufficiency of the indictment in the trial

court, which dismissed the charge, and the appellate court affirmed. The Ohio Supreme

Court reversed. Because Buehner raised the indictment issue, the Ohio Supreme Court

and appellate court decisions were not plain-error analyses. Second, the Buehner

indictment, like Baker’s, did track the applicable statutory language. The ethnic

intimidation statute referenced underlying predicate offenses by statute numbers, i.e.

“2903.21,” which is exactly what was included in the indictment. The statute in Baker’s

case, R.C. 2905.01(A)(2), prohibits restraining another’s liberty for several purposes, one

of which is “(2) To facilitate the commission of any felony or flight thereafter.” Baker’s

indictment tracked the specific statutory language, stating that he “did remove another

from the place where she was found or restrain her of her liberty, for the purpose of
                                                                                           -10-


facilitating the commission of a felony or flight thereafter.” The kidnapping statute

generically refers to “a felony” rather than a statutory number. Therefore, applying

Buehner and Skatzes, both of which tracked their respective statutory language, to the

specific statutory language in this record, we believe the holdings in those cases are in

harmony rather than in opposition.

       {¶ 16} Finally, in the present case, the bill of particulars addressed the kidnapping

charge and alleged that Baker had “cause[d] serious physical harm to the victim.” This

language was sufficient to inform Baker that felonious assault, the only other felony in the

indictment, was the predicate felony underlying the kidnapping charge. Reading the

indicted charges in pari materia provided additional notification that felonious assault was

the predicate felony underlying the kidnapping charge. Compare State v. Smith, 8th Dist.

Cuyahoga No. 83007, 2004-Ohio-3619, ¶ 27 (“Moreover, based on the inclusion of the

other felonies in the indictment, i.e., aggravated burglary and aggravated robbery, and

the specific facts contained in the bill of particulars, we find that Smith was adequately

notified of the underlying felonies supporting the kidnapping charges.”) Based on the

specific wording in this indictment, the applicable statute, the lack of objection, the bill of

particulars and record from the guilty plea itself, we conclude that Baker’s second

assignment of error should be and is overruled.

       {¶ 17} In his third assignment of error, Baker alleges ineffective assistance of

counsel based on his attorney’s failure to seek dismissal of the kidnapping charge,

presumably for the reasons addressed in the first two assignments of error. In our analysis

of Baker’s first two assignments of error, however, we concluded that the kidnapping

charge in the indictment was not defective. That being so, defense counsel did not provide
                                                                                            -11-


ineffective assistance by failing to seek its dismissal. The third assignment of error is

overruled.

       {¶ 18} In his fourth assignment of error, Baker contends the trial court erred in

impermissibly involving itself in plea negotiations. His argument focuses on the trial court

providing allegedly conflicting information about his sentence. Baker asserts that the trial

court originally told him he would receive a three-year prison sentence, then told him that

it was not bound by that agreement, then sentenced him to five years. Baker also argues

that an entirely new plea hearing was required when the initial plea agreement was

modified by making the entire range of sentencing options available.

       {¶ 19} Upon review, we find no merit in Baker’s arguments. As set forth above, the

trial court initially agreed to go along with the parties’ jointly-recommended three-year

prison term that was part of a plea bargain. When the parties later appeared in court,

Baker expressed concerns about the sentencing agreement. The trial court recessed the

case and gave him a week to think about how he wanted to proceed. When the case

reconvened on November 22, 2017, Baker repeatedly stated that he wanted to proceed

on his guilty plea but with the entire range of sentencing options available to the trial court.

In essence, Baker wanted to waive the agreed-sentence portion of his plea agreement.

The trial court discussed the issue with Baker and ensured that he was making this

decision knowingly, intelligently, and voluntarily. (Sentencing Tr. at 12-16.) Defense

counsel also stated that he had discussed the issue with Baker and had advised against

Baker’s course of action. Baker acknowledged receiving this advice. (Id. at 12-13.) Based

on our review of the record, we see no improper actions by the trial court. We also see

no need for an entirely new plea hearing. Baker repeatedly insisted that he did not want
                                                                                         -12-


to withdraw his prior guilty plea. He only wanted the trial court to be free to consider all

potential sentences. After painstakingly assuring that Baker understood what he was

doing, the trial court granted his request. We see no error. The fourth assignment of error

is overruled.

       {¶ 20} In his fifth assignment of error, Baker contends his five-year prison sentence

is contrary to law. He argues:

       * * * Appellant would submit that it is otherwise contrary to law for a trial

       judge to agree to a sentence of 3 years and then subsequently sentence

       the individual to 5 years. There is no logical basis for the prosecution to

       agree to a 3 year sentence and then argue that the appropriate sentence is

       11 years. A system that allows this to happen does not have rationality in

       the rule of law.

(Appellant’s brief at 9-10).

       {¶ 21} Upon review, we conclude that Baker’s five-year prison sentence for first-

degree felony kidnapping is not contrary to law. Once Baker waived the agreed-sentence

aspect of his plea agreement, the prosecutor was free to advocate for any lawful

sentence. In any event, we fail to see the relevance of the prosecutor’s argument for an

eleven-year sentence. The trial court only imposed a five-year sentence, and that is what

Baker’s assignment of error challenges.

       {¶ 22} The five-year sentence is not contrary to law because the trial court

complied with the applicable statutes before imposing the sentence, which was within the

authorized statutory range. Although Baker complains about the trial court deviating from

the previously-agreed three-year sentence, he took that risk when he waived the
                                                                                          -13-


sentencing aspect of the plea agreement and asked the trial court to select a sentence

from the entire range of available options. In essence, Baker exchanged the certainty of

a three-year sentence for the hope of convincing the trial court to grant him community

control. The risk in doing so was that the trial court would review the record, including the

PSI report, and conclude that Baker’s offense warranted a prison term longer than three

years. That is why defense counsel advised Baker against waiving the agreed-sentence

aspect of his plea. The fact that Baker’s gamble did not pay off does not make his

sentence contrary to law.

       {¶ 23} Finally, Baker asserts in passing that his five-year sentence constitutes

cruel and unusual punishment under the Eighth Amendment. He provides no substantive

argument for this claim, which we find to be unpersuasive. As noted above, the five-year

sentence was well within the authorized statutory range, and the trial court was not bound

to impose a three-year sentence because Baker knowingly, intelligently, and voluntarily

waived that aspect of his plea agreement. Accordingly, the fifth assignment of error is

overruled.

       {¶ 24} The judgment of the Montgomery County Common Pleas Court is affirmed.

                                      .............



TUCKER, J., concurs.

DONOVAN, J., dissents:

       {¶ 25} I disagree with the majority’s resolution of the fourth assignment of error.

Baker was sentenced based upon misinformation, incomplete information, and an illusory

inducement, all of which prevented Baker from exercising a rational calculus of how to
                                                                                        -14-


proceed.

      {¶ 26} On October 31, 2017, Baker, the State, and the trial court reached a plea

agreement, whereby Baker would plead guilty to kidnapping and would receive a three-

year prison sentence.    Guilty pleas must be “accorded a great deal of finality” and

“solemn declarations in open trial court carry a strong presumption of verity.” Blackledge

v. Allison, 431 U.S. 63, 71, 74, 97 S.Ct. 162, 152 L.Ed.2d 136 (1977).           We have

repeatedly stated that, when the trial court promises a certain sentence at a plea hearing,

that promise “becomes an inducement to enter a plea, and unless that sentence is given,

the plea is not voluntary.” E.g., State v. Dehart, 2018-Ohio-865, __ N.E.3d __, ¶ 14 (2d

Dist.); State v. Anderson, 2d Dist. Montgomery No. 26056, 2014-Ohio-4699, ¶ 9; State v.

Gilroy, 195 Ohio App.3d 173, 2011-Ohio-4163, 959 N.E.2d 19, ¶ 22 (2d Dist.); State v.

Layman, 2d Dist. Montgomery No. 22307, 2008-Ohio-759, ¶ 15, quoting State v. Bonnell,

12th Dist. Clermont No. CA2001-12-094, 2002-Ohio-5882.

      {¶ 27} A plea agreement is a contract between the parties. Dehart at ¶ 14. A

breach of a term in a plea agreement entitles the non-breaching party to rescission or

specific performance. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d

427 (1971); Layman. Crim.R. 32.1 further allows a defendant to seek to withdraw a plea.

I question whether there can be a “waiver” of the original written plea agreement, which

was done in this case.

      {¶ 28} However, even if such a “waiver” were possible, Baker’s waiver would be

invalid, as he was not informed of all the terms of the revised plea, and his options were

misstated. The trial court did not have the power to revise the contract when all the

parties -- in this case, Baker -- did not agree to all the terms of the modification.
                                                                                          -15-


Specifically, neither the trial court nor the State advised Baker that, if he chose “Option

C,” the State would so radically alter its recommendation and that the State would, in fact,

seek a maximum 11-year sentence (seemingly for no other reason than Baker had

indicated his confusion when the case was first called for sentencing, believing

community control was an option).

       {¶ 29} Baker initially expressed a desire to withdraw his plea on November 14,

2017, but misinformation and incomplete information prevented Baker from exercising a

rational calculus of how to proceed. Although the existing plea agreement included an

agreed three-year sentence, the trial court incorrectly told Baker that the trial court had

not entered an agreement for a particular sentence. The trial court even sought and

obtained Baker’s acquiescence to this mischaracterization with the following exchange:

       THE COURT: * * * [W]e’re here today for the purpose of sentencing on a

       presentence investigation conducted because you elected to change your

       plea a couple weeks ago to a plea of guilty and accept the State’s offer of a

       recommendation to me of a prison term.

       Now there’s nothing – and I think I told you at that time, nothing in your offer

       or your agreement with the State binds me in any way.

       THE DEFENDANT: Correct.

       THE COURT: All right. That’s your understanding as well?

       THE DEFENDANT: Yes.

       THE COURT: Is that your understanding as well?

       THE DEFENDANT: Yes, sir.

(Emphasis added.) (Sentencing Tr. p. 6-7).
                                                                                         -16-


      {¶ 30} The trial court’s misstatement was further exacerbated by the court’s

providing Baker a second option, which suggested that the trial court could impose more

(or less) than the binding plea agreement of three years in the event Baker stood on his

original plea. This was inaccurate, as the only two viable options at this juncture were

specific performance (3 years in prison) or rescission. The trial court told Baker:

      THE COURT: Okay. Now with that, I’m hear [sic] now you’re telling me that

      you don’t like that offer. [More or less than three years?] Your options are

      going to be as follows: You can file a motion to withdraw – well, first off, you

      can proceed with sentencing today. Make statements on your own behalf

      that may be a mitigation of sentence. And what I mean by that is may lessen

      the sentence. Alternatively, I’ve had people that have aggravated and made

      the sentence worse based on what they tell me. [More than the three year

      guarantee?]

             That said, you could also request that your plea be withdrawn. At

      which point, I’ll set a hearing to determine whether or not to allow the plea

      to be withdrawn. And if your plea is withdrawn and I grant it – well, if I deny

      it then you’re back – we’re back here for sentencing. If I grant the motion to

      withdraw your plea, then it is up to you to set an agreement with the State

      again for a future deal. Or what I – what most oftentimes happens I believe

      in these is that the State will then set – will set your case for trial. And we

      will proceed to trial at that point. Do you understand? Do you understand

      those options?

      THE DEFENDANT: Yes.
                                                                                         -17-


      THE COURT: All right.

      THE DEFENDANT: What I was understanding when we were here last time

      that I was getting probation for the three years, Your Honor. I would’ve never

      pled out to prison for this.

      THE COURT: I can tell you I am very clear on what the – you may be – you

      are eligible to be sentenced to – which I don’t think in your case you are

      eligible, is it?

      THE DEFENDANT: Yeah, I do –

      [THE PROSECUTOR]: He would be eligible for (indiscernible) sanctions.

      THE COURT: All right. So there is an eligibility but it’s an eligibility. But do

      you have a recommendation and agreement between the two of you? So

      the question is whether or not you want to proceed today?

      THE DEFENDANT: No, sir. Not if I’m eligible for probation and stuff. I – I --

      this is totally all blew out of proportion, Your Honor. I mean –

      THE COURT: All right. I’m going to stop you there then. What it sounds like

      you’re asking is to file a motion to withdraw your plea of guilty.

      THE DEFENDANT: Yes, sir.

      THE COURT: To proceed on the charges. So what I’m going to do is by law

      I’ve set the case for a hearing on whether or not to grant your motion. And

      so we’ll set that hearing. * * *

(Questions in bold added for emphasis.) (Sentencing Tr. p. 7-9.)

      {¶ 31} In this exchange, the trial court provided Baker with deeply flawed choices.

The court’s first choice misinformed Baker regarding the binding plea agreement. The
                                                                                               -18-


court’s second choice contained an editorial comment that implied that if the motion to

withdraw his plea were granted, the State “will as most often happens, set our case for

trial,” a choice that was, in fact, Baker’s to make, as he could still plead guilty to all indicted

counts and/or attempt to negotiate further. Under the circumstances, such comments by

the court suggest that the State can compel a trial.

         {¶ 32} This sort of judicial intervention and mischaracterization ostensibly had a

coercive impact on Baker’s decision whether to seek withdrawal of his plea or proceed as

agreed.

         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. * * * [A judge’s] awesome power

         to impose a substantially longer or even maximum sentence in excess of

         that proposed [or agreed upon] is present whether referred to or not.

United States ex rel. Elksnis v. Gilligan, 256 F.Supp. 244, 254 (S.D.N.Y. 1966).

         {¶ 33} An essential point is that particular facts and circumstances matter, and

Baker had an absolute right to be fully informed and correctly informed before exercising

any choice; otherwise his decision to rest on his initial plea with modified and unknown

oral terms cannot be deemed knowing, intelligent, or voluntary.

         {¶ 34} The record establishes that, on the original sentencing date of November

14, 2017, Baker indicated he wanted to withdraw his plea due to his purported confusion

and perhaps the trial court’s unexplained repudiation of its agreement to a three-year

prison term.2 In fact, defense counsel was directed by the trial court to file a motion to


2   Significantly, neither the State nor the defense lawyer reminded the trial court it agreed
                                                                                     -19-


withdraw the plea at the November 14, 2017 dispositional hearing.

      THE COURT: All right. I’m going to stop you there then. What it sounds like

      you’re asking is to file a motion to withdraw your plea of guilty.

      THE DEFENDANT: Yes, sir.

      THE COURT: To proceed on the charges. So what I’m going to do is by law

      I’ve set the case for a hearing on whether or not to grant your motion. And

      so we’ll set that hearing. Ms. Scott, when is the next available time we can

      have that?

      And [Defense Counsel] is this something that you can continue to represent

      Mr. Baker on or are you going to be a witness in that case?

      [DEFENSE COUNSEL]: I should be able to represent him, Your Honor. I’m

      not a witness in this matter.

      THE COURT: All right. Well, I would recommend that you take a look at

      that. Determine whether or not you can or if I need to appoint another –

      because you are appointed; is that right?

      [DEFENSE COUNSEL]: I am.

      THE BAILIFF: You’re going to continue this week because if we have to

      appoint, we’ll need new counsel’s schedule –

      THE COURT: Okay.

      THE BAILIFF: -- in order to get a hearing.

      THE COURT: So we’ll be here – what we’ll do is we’ll continue this case for



to a three year prison term. One or both should have. Furthermore, the pre-sentence
investigative report noted the trial court’s agreement to the three year prison term.
                                                                                       -20-


       one week. We’ll be back on docket in one week’s time. Mr. Fogt, if you

       would look to determine whether or not you can proceed or if you need to

       withdraw as counsel and I need to appoint new counsel and have new

       counsel present for our continued time in one week. We’ll do that. I am going

       to give back these letters. I’m not going to review them at this time.

       And Mr. Fogt, if you would please just for the purposes of the record, file a

       motion to withdraw the plea so we have that as part of the record.

       [DEFENSE COUNSEL]: Yes, sir. Thank you.

(Sentencing Tr. p. 8-9.)

       {¶ 35} When Baker returned to the trial court on November 22, 2017, the trial court

compounded its previous errors by again misstating Baker’s original plea agreement,

which the trial court characterized as Option A, and introduced a new option. This time,

the trial court seemed to suggest that Baker could “urge” a particular outcome for Option

A, once again disregarding the parties’ binding plea agreement, which the trial court had

the week before disavowed existed in the first instance. Option C was an entirely new

option, not presented by the State or the trial court on November 14, 2017, to retain the

original plea with modified terms.    Significantly, Baker lacked critical information on

Option C, namely that the State would now be seeking an 11-year maximum sentence.

              THE [COURT]3: Good morning. Now Mr. Baker, we’re here today

       because last week we had a discussion about your options in proceeding

       today. And the options we had laid out were three – well, of three types. To


3
  The transcript states that the speaker is the defendant. Read in context, it is apparent
that the trial court is speaking, not the defendant.
                                                                                        -21-


      proceed as you had urged and agreed under the three year agreement as

      Option A.4

             Option B with two subsections was to withdraw your plea. To [sic]

      then I would schedule a hearing and if I allowed your plea to stand, you

      would proceed accordingly or if you – if I allowed your plea to be withdrawn

      and then grant your motion, then you would proceed to trial on all the issues.

             The third option, Option C that was presented based on agreement

      by the parties – or both of you and the State was that you proceed with the

      agreed plea to the single count of kidnapping, felony the first degree. But

      that your sentencing range be opened up for argument and persuasion on

      the entire sentencing range which is probation or community controlled

      sanctions, all the way to the maximum term of incarceration of 11 years.

      And including the fine from zero to $20,000.

             With that said, my understand[ing] that day and my recollection of

      that day was that you had elected on the record to proceed with the third

      option, Option C, to continue with your plea to the first degree kidnapping

      charge with the range of arguments for penalty from the probation to 11

      years, correct?

             THE DEFENDANT: Yes, sir.

(Sentencing Tr. p. 10-11.)

      {¶ 36} Option C had the “lure” of possible community control sanctions, but this is


4 Although the majority suggests the trial court here is indicating a willingness to impose
a three-year sentence, that is not clear, particularly since at the original dispositional
hearing the court repudiated it.
                                                                                       -22-


nothing short of an illusory inducement under the totality of circumstances. The trial

court was well aware from the presentence investigation that this case carried a

presumption of prison and that Baker had a criminal history. In fact, the trial court’s

repudiation of its three-year agreement without explanation inferentially suggests the

court had already concluded, based on the presentence report, that three years was

inadequate. The trial court also ostensibly knew and failed to advise Baker that the State

would now recommend the maximum 11-year term.                  (The State’s sentencing

memorandum was filed on November 21, 2017, prior to the hearing.) Thus, any so-

called “waiver” of the original plea was not only wholly invalid and unintelligent, but

procedurally extremely unorthodox.

      {¶ 37} Furthermore, the record reflects that when the trial court attempted to

confirm Option C, Baker was understandably confused.

      THE COURT: All right. And is your election to proceed today with the

      argument [sic] of opening this to any –

      THE DEFENDANT: No, Sir. I agree to what you were saying to probation

      and the three year – 3 to 11 with the probation. I have an option with the

      probation with the last option.

      THE COURT: You – there – your election is at this point to – you – so for

      my understanding, is you want to make an argument to me –

      THE DEFENDANT: No, sir.

      THE COURT: -- about –

      THE DEFENDANT: I don’t – no, I want to go with it. What you said the last

      one.
                                                                                        -23-


      THE COURT: The third option?

      THE DEFENDANT: Yes, sir.

      THE COURT: All right. Then that’s the – somewhere between probation and

      11 years.

      THE DEFENDANT: Correct.

      THE COURT: And what happens by that – what I mean by argument is the

      State will present its argument they – what sentence they think I should

      impose. Your attorney will make his arguments and statements about what

      sentence he thinks I should impose. And then finally, you will make your

      statement and argument as to what sentence you think I should impose.

(Emphasis added.) (Sentencing Tr. p. 13-14.)

      {¶ 38} Notably, the State, defense counsel, and the trial court all failed to inform

Baker that the State would be recommending 11 years if Option C were elected. It was

only after Option C was selected by Baker that the State pronounced:

      [THE PROSECUTOR]: * * * Given that there are no factors on the recidivism

      and all relevant factors point in favor to the State. The State is asking for a

      prison term to be implemented of 11 years for the kidnapping as a result of

      the plea deal where we had dismissed the remaining felonies and

      misdemeanor at that point in time. That’s where the State is willing to stand,

      Your Honor.

(Sentencing Tr. p. 18.)

      {¶ 39} It is unseemly that the State would agree to three years and then so

vigorously recommend 11 years.       In my view, the State has a responsibility to the
                                                                                          -24-


community, to the victim, and to the trial court to recommend a disposition of the cases

that it believes to be fair and reasonable. Is the cost of an illusory consideration of

community control a demand for the maximum sentence of 11 years and a

characterization of the offense as the worst form of the offense, whereas the same

offense, two weeks earlier merited just the minimum upon a plea to the identical count?

If indeed Option C was consideration of community control, the State substantially and

materially undercut the essence of the “revised” plea agreement.

       {¶ 40} After this recommendation of 11 years, Baker was not asked if his plea was

indeed guilty, nor did he execute a new plea form with all revisions, including the State’s

request for 11 years, laid out on the record with clarity.

       {¶ 41} I reiterate, the manner in which Baker purportedly “waived” a new plea

colloquy under Crim.R. 11 is highly improper and cannot be characterized as knowing,

intelligent and voluntary. The record, in my view, establishes Baker did not understand

the full significance of the purported “waiver.”

       {¶ 42} As the United States Supreme Court has recognized, whether a trial court

impermissibly participated in a plea agreement depends on “the particular facts and

circumstances,” which “should be assessed, not in isolation, but in light of the full record.”

United States v. Davila, 569 U.S. 597, 611-612, 133 S.Ct. 2139, 186 L.Ed.2d 139 (2013).

The judge herein ultimately transformed himself from an impartial arbiter to a participant

in a new proposal (Option C), one made after November 14, 2017 and which did not

properly acknowledge specific performance 5 or complete rescission as the only


5 In the situation where the trial court declines to follow its own sentencing commitment,
the reasons must be set forth on the record by the trial court. See United States v.
Skidmore, 998 F.2d 372, 375 (6th Cir.1993).
                                                                                          -25-


legitimate options.

       {¶ 43} Imperfectly articulated oral remarks by the trial court unwittingly set forth a

series of traps for Baker:

             “DOOR ONE” (Option A): incorrectly stated original plea agreement

             “DOOR TWO” (Option B): discouraged withdrawal of the plea, suggesting

              the State could compel a trial

             “DOOR THREE” (Option C): revision of the original agreement with

              incomplete advisement of all consequences (the 11-year recommendation

              by the State was not set forth before Baker made his choice, and no new

              plea was entered pursuant to Crim.R. 11.)

       {¶ 44} The analogy of plea agreements to private contracts has been

characterized as far from precise. See generally Wisconsin v. Scott, 230 Wis.2d 643, 655,

602 N.W.2d 296 (Sept. 29, 1999).           The constitutional implications providing the

framework to Baker’s “contract rights” in a plea agreement demand broader and more

vigorous protection than those afforded a party in a private civil/commercial contract.

       {¶ 45} I would reverse and remand for specific performance of the original plea

agreement of October 31, 2017 or for a hearing on rescission providing Baker a fully and

accurately informed election.

       {¶ 46} Lastly, I would urge the Ohio Supreme Court to consider the issue of

“waiver” the majority suggests exists here, as it is conceptually unprecedented in my view,

wholly unorthodox, and fatally flawed. If a plea bargain is to be set aside, it should be

set aside in its entirety, not piecemeal. At a minimum, on this record, Baker’s choice was

not a knowing, intelligent and voluntary election.
                      -26-




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Michael P. Allen
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Hon. Erik R. Blaine
