[Cite as State v. Padilla, 2012-Ohio-5892.]


                 Court of Appeals of Ohio
                                EIGHTH APPELLATE DISTRICT
                                   COUNTY OF CUYAHOGA


                               JOURNAL ENTRY AND OPINION
                                        No. 98187




                                       STATE OF OHIO
                                                       PLAINTIFF-APPELLEE

                                                 vs.

                                     VICTOR PADILLA
                                                       DEFENDANT-APPELLANT




                                              JUDGMENT:
                                               AFFIRMED



                                     Criminal Appeal from the
                              Cuyahoga County Court of Common Pleas
                                       Case No. CR-549476

        BEFORE:           Celebrezze, J., Blackmon, A.J., and S. Gallagher, J.

        RELEASED AND JOURNALIZED:                      December 13, 2012
ATTORNEY FOR APPELLANT

Michael P. Maloney
24441 Detroit Road
Suite 300
Westlake, Ohio 44145


ATTORNEYS FOR APPELLEE

Timothy J. McGinty
Cuyahoga County Prosecutor
BY: James D. May
Assistant Prosecuting Attorney
The Justice Center
1200 Ontario Street
Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., J.:

       {¶1} Appellant, Victor Padilla, challenges his convictions and sentence as a result

of his guilty pleas to multiple counts related to his participation in an automobile theft

ring. Appellant claims the state impermissibly withdrew a plea offer after he accepted it,

and that the trial court failed to make necessary findings justifying the imposition of a

maximum sentence of eight years for conspiring to engage in a pattern of corrupt activity.

 After a thorough review of the record and law, we affirm appellant’s convictions and

sentence.

                            I. Factual and Procedural History

       {¶2} Appellant participated in an organized criminal enterprise formed to steal cars

and sell them for parts. The enterprise targeted older model vehicles as a means of

gaining parts to participate in street races. The targeted vehicles were stripped and parts

were sold individually, often for greater sums than the cars were valued as a whole. The

group’s activity ranged throughout northeastern Ohio. On April 2, 2010, appellant drove

Kelvin Pontajas and another member of the group to Akron intending for the two to steal

a car and drive it back to Cleveland. Police officers discovered Pontajas in the stolen

car, and a high-speed chase ensued. Pontajas approached speeds of 100 miles per hour

while attempting to evade the police. Calvin McMahon happened into the path of the

fleeing stolen vehicle and was struck and killed as he attempted to cross Interstate 77 on

foot. Pontajas was also killed in the collision.
      {¶3} Following this tragic incident, appellant and 34 others were secretly indicted

on 258 counts on May 3, 2011. Appellant was arrested soon after. The portion of the

indictment relating to appellant included multiple counts of theft, receiving stolen

property, telecommunications fraud, fraudulent actions concerning a vehicle identification

number (“VIN”), and tampering with records. The indictment also included two counts of

conspiracy to engage in a pattern of corrupt activity (R.C. 2923.01(A)(1) & (A)(2)), one

count of engaging in a pattern of corrupt activity (R.C. 2923.32(A)(1)) (“RICO”), and

two counts of involuntary manslaughter (R.C. 2903.04(A)).

      {¶4} Appellant was initially to enter a plea of guilty on November 14, 2011, as part

of a proposed agreement reached with the state. However, sometime before the change

of plea hearing, the state withdrew the offer. Although the full terms of the proposed

agreement reached between appellant and the state were not made part of the record, it is

apparent that the state and appellant arrived at a plea deal that did not include pleading

guilty to two counts of manslaughter.

      {¶5} On the record, appellant’s attorney indicated that the parties had reached an

agreement only to have the state withdraw the offer when a second district police

lieutenant did not approve because it did not include two counts of involuntary

manslaughter and, according to this lieutenant, appellant bore a great deal of

responsibility for the deaths of McMahon and Pontajas. After the withdrawal, the trial

court gave appellant and the state additional time to reach an agreement or go to trial.

Appellant filed a motion to dismiss the two manslaughter counts, arguing that the deaths
occurred outside of Cuyahoga county and that they were not properly included in the

indictment because they were not part of the pattern of criminal activity under the RICO

count. The motion also indicated appellant gave statements aiding the police while plea

negotiations were ongoing with the understanding that a plea agreement would be

reached.

       {¶6} After the trial court denied this motion on December 22, 2011, the parties did

reach a plea agreement.      On January 13, 2012, the state set forth the terms of the

agreement on the record and appellant pled guilty to an amended indictment: One count

of conspiracy to engage in a pattern of corrupt activity, in violation of R.C.

2923.01(A)(1); two counts of involuntary manslaughter, in violation of R.C. 2903.04(A);

seven counts of receiving stolen property, in violation of R.C. 2913.51(A); and one count

of grand theft, in violation of R.C. 2913.02(A).

       {¶7} On February 28, 2012, the trial court conducted a sentencing hearing after

reviewing a presentence investigation report. The court imposed an aggregate prison

term of nine years: a maximum eight-year term for conspiracy, two 26-month terms for

involuntary manslaughter, a one-year term for receiving stolen property to be served

consecutively to the other terms, and concurrent 18-month terms for all other counts.

The court also notified appellant of a three-year term of postrelease control and ordered

restitution to several victims.

       {¶8} Appellant now brings this appeal, raising two assignments of error:

       I. The trial court erred in failing to enforce the original plea agreement
       between the state of Ohio and appellant.
      II. The court erred in sentencing appellant to the maximum sentence on
      Count 2 of the indictment, conspiracy to engage in a pattern of corrupt
      activity.

                                  II. Law and Analysis

                     A. Enforcement of a Proposed Plea Agreement

      {¶9} Plea agreements are essentially contracts between the state and a criminal

defendant that must be accepted by the trial court before becoming effective. As such,

they are governed by ordinary contract principles. Puckett v. United States, 556 U.S.

129, 137, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009). As with many other contracts, a

writing is not required to be enforceable, but a trial court may only accept a plea made in

open court. Crim.R. 11(F). Therefore, implicit in every plea agreement is a method of

acceptance. State v. Keyes, 4th Dist. No. 05CA16, 2006-Ohio-5032, ¶ 7.

      {¶10} Appellant now wishes to have specific performance of his proposed plea

agreement.   The Supreme Court recognized that a criminal defendant is entitled to

enforcement of a plea agreement that has been entered on the record and accepted by the

defendant and the trial court. Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30

L.Ed.2d 427 (1971). However, that case does not address the precise situation here,

where the plea agreement was never put on the record because the offer was withdrawn

before the change-of-plea hearing could take place.

      {¶11} Appellant had agreed to plead guilty to an amended indictment, but the

details of that agreement are not contained in the record, nor were they in writing. This

lack of specificity places this court in an awkward position because to be enforceable the
terms of a plea agreement must be explicit. United States v. Benchimol, 471 U.S. 453,

105 S.Ct. 2103, 85 L.Ed.2d 462 (1985).

       {¶12} Appellant argues that inherent in every contract is the duty to bargain in

good faith. Where the state advances an offer that is accepted, the withdrawal of that

offer violates that duty. This view is supported in State v. Johnson, 10th Dist. No.

80AP-449, 1981 Ohio App. LEXIS 10183, *4-6 (June 23, 1981). Citing Santobello, the

Tenth District recognized that an offer, once made and accepted by the defendant, should

not be unilaterally withdrawn by the state. However, the Johnson court also recognized

that the trial court plays an important role in the process and has the ultimate authority to

accept or reject the agreement. Therefore, it is within the trial court’s discretion to allow

the state to withdraw an offer or to have the offer enforced at the insistence of the

defendant. Johnson at *9-11.

       While the trial court is obliged to use sound discretion in rejecting a
       plea-bargain agreement, this is a fundamental part of the administration of
       justice, and whether or not to accept a plea to a lesser crime or to impose a
       lesser sentence as agreed to by the prosecution in exchange for a guilty plea
       lies within the sound discretion of the trial court.

Johnson at *9. The Johnson court ultimately found that the trial court did not abuse its

discretion when it did not enforce a plea offered by the state and tentatively accepted by

the defendant.

       {¶13} This issue has also been addressed in the federal courts in the context of

constitutional rights to enforce a plea agreement.

       Relying on the Supreme Court’s sanctioning of specific performance of a
       plea agreement breached by the state, the United States Court of Appeals
         for the Fourth Circuit determined, in Cooper v. United States (1979), 594
         F.2d 12, that “under appropriate circumstances — which we find here — a
         constitutional right to enforcement of plea proposals may arise before any
         technical ‘contract’ has been formed, and on the basis alone of expectations
         reasonably formed in reliance upon the honor of the government in making
         and abiding by its proposals.” Id. at 18. In support, the court reasoned
         that “two distinct sources of constitutional right[s] are involved here: most
         obviously and directly, the right to fundamental fairness embraced within
         substantive due process guarantees; less directly perhaps, but nonetheless
         importantly, the Sixth Amendment right to effective assistance of counsel.”
          Id. at 18. Therefore, the court reasoned that on remand, “the only remedy
         available is specific enforcement of the plea proposal * * *.” Id. at 20.

State v. Luciano, 8th Dist. No. 58812, 1991 Ohio App. LEXIS 3567, *9-13 (July 18,

1991).

         {¶14} The Supreme Court rejected the idea that a constitutional right to enforce a

proposed plea agreement is the only remedy. Mabry v. Johnson, 467 U.S. 504, 104 S.Ct.

2543, 81 L.Ed.2d 437 (1984). The enforcement of the agreement is an available remedy,

but so is withdrawal of the plea, or trial. Mabry at fn. 11. The appropriate remedy is left

to the sound discretion of the trial court. Therefore the trial court’s decision on the

appropriate remedy must be reviewed for an abuse of discretion. To constitute an abuse

of discretion, the ruling must be unreasonable, arbitrary, or unconscionable. Blakemore

v. Blakemore, 5 Ohio St.3d 217, 450 N.E.2d 1140 (1983).

         {¶15} Here, when the situation was brought to the trial court’s attention, the court

determined to give the parties more time to reach an agreement or go to trial. The trial

court implicitly rejected the plea agreement. This was not an abuse of discretion given

that the activities appellant had engaged in caused the death of a pedestrian, and the plea

did not account for appellant’s role in this man’s death.
         {¶16} Another appellate district has examined this issue and come to the

conclusion that a plea agreement not set forth on the record at a change of plea hearing is

not enforceable by the defendant because of the executory nature of any acceptance of the

state’s offer. State v. Darnell, 4th Dist. No. 02CA15, 2003-Ohio-2775, ¶ 9. Before a

plea agreement is set forth on the record and accepted by the defendant and the trial court,

it remains a wholly executory contract, and the defendant is not bound by any acceptance

of the offer until a plea is entered because the plea must be voluntary.           Crim.R.

11(C)(2)(a). As an executory agreement, specific performance is available only when

the defendant has shown detrimental reliance — that a detrimental change in position has

occurred in reliance upon the agreement. U.S. v. Streebing, 987 F.2d 368, 372 (6th

Cir.1993); State v. Knight, 4th Dist. No. 1060, 1981 Ohio App. LEXIS 11953, *7-8 (Apr.

22, 1981).

         {¶17} This view is supported by the Supreme Court of Virginia:

         [A] plea “bargain” standing alone is without constitutional significance
         because it is a mere executory agreement “which, until embodied in the
         judgment of a court, does not deprive an accused of liberty or any other
         constitutionally protected interest. It is the ensuing guilty plea that
         implicates the Constitution.” [Commonwealth v. Sandy, 257 Va. 87, 91, 509
         S.E.2d 492 (1999)]. The court concluded that “a commonwealth’s attorney
         may withdraw from a proposed plea agreement at any time before the actual
         entry of a guilty plea by a defendant or any other change of position by the
         defendant resulting in prejudice to him because of reliance upon the
         agreement.” Id.

Commonwealth v. Stewart, 66 Va.Cir. 135, 152, 2004 Va.Cir. LEXIS 325 (Va.Cir.Ct.

2004).
       {¶18} Appellant is asking this court to order enforcement of a plea agreement

whose terms are unknown and disputed by the parties. Appellant claims an agreed

sentence of two years was a part of the offer, but that does not appear anywhere in the

record, and the state vehemently denies that its offer included any length of sentence.

       {¶19} Here, any contract is wholly executory, and appellant has not shown that it

was an abuse of discretion for the trial court to fail to order specific performance of an

agreement whose terms were not clearly set forth before it. Appellant did provide

statements to the police during plea negotiations that may have been inculpatory. Such

statements made in reliance on the plea agreement could show a detrimental change in

position. But here, the statements were made prior to appellant accepting any offer by

the state, and even before the offer appellant accepted was made. In his motion to turn

over audio recordings and notes, appellant acknowledges that such statements were given

“with the understanding that a plea bargain was going to be offered.” Appellant’s first

assignment of error is overruled.

                          B. Maximum Sentence for Conspiracy

       {¶20} Appellant claims that the trial court erred in sentencing him to the maximum

term for conspiracy to engage in a pattern of corrupt activity.

       {¶21} This court examines alleged errors such as these under the two-step

approach set forth by the Ohio Supreme Court in State v. Kalish, 120 Ohio St.3d 23,

2008-Ohio-4912, 896 N.E.2d 124. First, the parameters of the sentence are examined to
see if the sentence is contrary to law. If it is not, then we review the trial court’s analysis

to determine if the court abused its discretion when crafting the sentence under review.

       {¶22} Appellant does not claim that his sentence is contrary to law, so this court

will advance to the next step and determine if the trial court abused its discretion

regarding appellant’s sentence.

       {¶23} Appellant received an eight-year term of imprisonment for conspiracy. The

police officers involved in the case as well as other co-conspirators classified appellant as

one of the leaders of the organization. Appellant argues that he cannot read and write

English, and therefore could not have led such a vast criminal enterprise as the state

alleges.

       {¶24} According to R.C. 2929.11, the court is guided by the purposes and

principles of felony sentencing “to protect the public from future crime by the offender

and others and to punish the offender using the minimum sanctions that the court

determines accomplish those purposes without imposing an unnecessary burden on state

or local government resources.”         R.C. 2929.11(A). The sentence should also be

“commensurate with and not demeaning to the seriousness of the offender’s conduct and

its impact upon the victim, and consistent with sentences imposed for similar crimes

committed by similar offenders.” R.C. 2929.11(B). R.C. 2929.12 then sets forth factors

the sentencing court should consider in its analysis of R.C. 2929.11. These include

factors relating to “the seriousness of the conduct,” “the likelihood of the offender’s
recidivism,” and “any other factors that are relevant to achieving those purposes and

principles of sentencing.” R.C. 2929.12(A).

       {¶25} Appellant was indicted on dozens of counts stemming from the theft of

automobiles and engaging in the sale of their parts.           Even though charges may be

dismissed as part of the plea agreement, “a sentencing court may [within certain limits]

consider a criminal charge, and supporting facts, that is dismissed under a plea

agreement.” State v. Bowser, 186 Ohio App.3d 162, 168, 2010-Ohio-951, 926 N.E.2d

714 (7th Dist.). The criminal enterprise appellant participated in operated throughout

northeast Ohio and was responsible for the theft of an untold number of vehicles. The

group’s activities even resulted in the death of two people.

       {¶26} The court examined all this evidence, the presentence investigation report,

and the victim impact statements, and concluded that the maximum sentence was

appropriate. Based on the same information, this court cannot say that the trial court

abused its discretion when it determined that a maximum sentence was necessary to

adequately punish appellant and to not demean the seriousness of the offense.

       {¶27} In crafting appellant’s sentence, the court explained,

       [Appellant] comes to court with a noteworthy prior criminal history, which
       criminal history extends to his days as a juvenile. * * *.

       ***

       This court heard arguments in the courtroom as to whether [appellant] was
       the head of the [hydra], so to speak, or maybe just one of the top five
       involved in this vast criminal enterprise that involved the theft of Honda
       cars and Honda parts from a multicounty area.
       ***

       There are two people dead in this case. One was a co-conspirator of yours,
       * * * and then an innocent bystander * * *.
       Mr. Padilla, two dead people here, they have countless cars stolen, and a
       family whose Christmas was ruined.

       ***

       And then finally on Count 2, the conspiracy count, engaging in a pattern of
       corrupt activity count, I do feel that the maximum sentence is necessary to,
       one, send a message that your type of behavior will not be tolerated, and
       number two, it’s commensurate with the amount of harm involved in this
       case, the vast multicounty crime spree that you and your confederates
       visited upon the northern Ohio public, is worthy of a maximum eight year
       sentence.

       {¶28} The court’s statement regarding appellant’s sentence appropriately sets forth

its reasons for imposing a maximum sentence and adequately addresses the requirements

under R.C. 2929.11 and 2929.12 for imposing such a sentence.

       {¶29} Appellant argues the factors in R.C. 2929.12(B) should lead to the

conclusion that a maximum sentence is inappropriate in his case. He cites to R.C.

2929.12(B)(2) dealing with physical harm to the victim. He asserts that he caused no

physical harm to his victims. However, that ignores the deaths of two individuals killed

during activities of the organized criminal enterprise. Appellant’s attempts to distance

himself and his actions from these deaths is not availing. Appellant assisted in the theft

of the vehicle that crashed into and killed a pedestrian as the driver fled from police while

attempting to steal a car for the benefit of the criminal enterprise. The trial court did not

abuse its discretion in crafting appellant’s sentence.

                                       III. Conclusion
       {¶30} The trial court implicitly rejected the plea agreement offered to appellant by

the state, and therefore did not abuse its discretion by not ordering specific performance

of that plea deal where the terms were and are still unknown. The court also did not abuse

its discretion in sentencing appellant where he held a position of leadership in a vast

criminal enterprise that resulted in significant monetary losses to victims and the deaths of

two people.

       {¶31} Judgment affirmed.

       It is ordered that appellee recover from appellant costs herein taxed.

       The court finds there were reasonable grounds for this appeal.

       It is ordered that a special mandate issue out of this court directing the common

pleas court to carry this judgment into execution. The defendant’s convictions having

been affirmed, any bail pending appeal is terminated. Case remanded to the trial court

for execution of sentence.

       A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of

the Rules of Appellate Procedure.



FRANK D. CELEBREZZE, JR., JUDGE

PATRICIA A. BLACKMON, A.J., CONCURS;
SEAN C. GALLAGHER, J., CONCURS WITH SEPARATE OPINION ATTACHED
SEAN C. GALLAGHER, J., CONCURRING:

       {¶32} I concur fully with the judgment and analysis of the majority, but write

separately to address concerns about how the circumstances of a plea bargain can impact

the perception of fairness within our justice system. Had the terms specifically been

outlined on the record, my view of the outcome may well have been different.

       {¶33} In this case, both the prosecutor and defense counsel were placed in

untenable positions as the plea process evolved. At the oral argument, it was learned that

the prosecutor made a plea offer based on an understanding he developed with those

immediately involved in the state’s case and, with approval, communicated that offer to

defense counsel. After conferring with his client, the defense attorney indicated his

client would accept that plea. Unbeknownst to both, a supervisor above the investigating

officers later disapproved the plea agreement and voiced concerns to the prosecutor’s

supervisors, who then rescinded the original plea offer.

       {¶34} It is not uncommon in plea discussions to have myriad problems arise that

impact the outcome. Thus, this is certainly not a case of first impression. Nevertheless,

this is a good example of what can be, and should be, avoided.

       {¶35} Certainly, trial judges have discretion to accept or refuse plea agreements,

and victims have statutory rights respecting their views and the impact that a crime has on

their lives. R.C. Chapter 2930. Beyond those concerns, when prosecutors accept cases

for prosecution, they should make clear the parameters for input from concerned and
interested parties and make it clear they have the final say in what will be offered or

accepted by their office. R.C. 309.08.

       {¶36} As the majority notes, this indictment involved 35 individuals covering 258

counts. While the specific terms of the plea are unclear and there now seems to be some

debate over what exactly was agreed to by the defendant, there is no dispute a plea was

offered and that plea was accepted. While it may not be practical in every case and it

would not necessarily eliminate every problem, a written plea agreement, reviewable by

all parties in advance, would seem to be a good way to avoid the pitfall experienced here.

 A written plea offer and agreement can greatly limit problems, like here, where an oral

offer is made and then is subsequently rescinded on the morning that the plea is to be

taken in open court.

       {¶37} The defense counsel in this case is a former prosecutor and is now defense

counsel with a long history of honesty and integrity on both sides of the bar. To have to

convey to a client an agreement that includes jail time, only to then have to tell the client

that the plea has changed on the morning of the plea hearing does not inspire a great deal

of confidence in the process. Likewise, a prosecutor who works up a plea with the input

of police investigators and victims and has it approved by a supervisor can feel

undermined in his or her efforts to achieve case resolution when the terms are changed at

the eleventh hour. In this instance, both the trial prosecutor and the defense counsel had

to wade through a very difficult situation that would best be addressed in advance, before

the original plea was offered.
       {¶38} It is hoped that this case will result in changes that eliminate the concerns

raised here.
