[Cite as State v. Phillips, 2016-Ohio-8094.]


STATE OF OHIO                      )                 IN THE COURT OF APPEALS
                                   )ss:              NINTH JUDICIAL DISTRICT
COUNTY OF LORAIN                   )

STATE OF OHIO                                        C.A. No.      15CA010883

        Appellee

        v.                                           APPEAL FROM JUDGMENT
                                                     ENTERED IN THE
BRADY PHILLIPS                                       COURT OF COMMON PLEAS
                                                     COUNTY OF LORAIN, OHIO
        Appellant                                    CASE No.   10CR079807

                                  DECISION AND JOURNAL ENTRY

Dated: December 12, 2016



        SCHAFER, Judge.

        {¶1}     Defendant-Appellant, Brady Phillips, appeals the judgment of the Lorain County

Court of Common Pleas denying his motion to order specific performance. For the following

reasons, we affirm.

                                                I.

        {¶2}     The Lorain County Grand Jury indicted Phillips on two counts of murder and

numerous other criminal offenses. Subsequently, a supplemental indictment was filed charging

Phillips with several additional offenses. He entered a plea of not guilty to all charges and the

matter proceeded through the pretrial process.       During this process, Phillips expressed a

willingness to offer additional information on the underlying case, as well as information on an

unrelated unsolved murder, in exchange for a lesser sentence. A number of recorded discussions

took place between Phillips and the State regarding the exchange of evidence and the parties
                                                2


informed the trial court that such discussions were taking place. Although information was

exchanged, negotiations between Phillips and the State deteriorated.

       {¶3}    Subsequently, Phillips filed a motion to order specific performance of two

separate plea agreements. Following a hearing, the trial court issued a journal entry, finding both

of the alleged plea agreements were enforceable contracts, but that Phillips had not fully

performed on either agreement. The trial court recognized Phillips could still complete his

performance on the second matter and stated it would enforce that plea agreement if he did so.

       {¶4}    Prior to changing his plea pursuant to the negotiated plea agreement, Phillips filed

a notice of appeal alleging the trial court erred in refusing to order specific performance of the

plea agreements. This Court, however, dismissed the attempted appeal for lack of a final,

appealable order. See State v. Phillips, 9th Dist. Lorain No.14CA010564, 2015-Ohio-2192. On

remand, Phillips entered a guilty plea to an amended indictment and was sentenced to fourteen

years in prison with credit for time served.

       {¶5}    Phillips filed this timely appeal, alleging two assignments of error for our review.

As both assignments of error implicate similar issues, we elect to address them together.

                                                II.

                                 ASSIGNMENT OF ERROR I

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FINDING
       THAT THE DEFENDANT, BRADY PHILLIPS, WAS NOT ENTITLED TO
       SPECIFIC PERFORMANCE WITH REGARD TO THE TWO (2)
       COOPERATION AGREEMENTS ENTERED INTO WITH THE STATE OF
       OHIO.

                                 ASSIGNMENT OF ERROR II

       THE TRIAL COURT ERRED AND ABUSED ITS DISCRETION IN FINDING
       THAT THE DEFENDANT, BRADY PHILLIPS, WAS NOT ENTITLED TO
       SPECIFIC PERFORMANCE WITH REGARD TO THE TWO (2)
       COOPERATION AGREEMENTS ENTERED INTO WITH THE STATE OF
                                                  3


       OHIO SINCE THE STATE WAS JUDICIALLY AND EQUITABLY
       ESTOPPED FROM ASSERTING THAT THE DEFENDANT FAILED TO
       PERFORM ALL OF HIS OBLIGATIONS UNDER THE TERMS OF THE
       COOPERATION AGREEMENTS.

       {¶6}    In his first assignment of error, Phillips argues the trial court abused its discretion

in finding he was not entitled to specific performance of the six-year plea agreement. In his

second assignment of error, Phillips maintains the doctrines of judicial estoppel and equitable

estoppel prevented the State from arguing that he failed to perform all of his obligations under

the agreement and that the trial court erred and abused its discretion in finding Phillips was not

entitled to specific performance. However, we do not reach the merits of Phillips’s arguments

because Phillips has waived the right to challenge the trial court’s ruling on his motion.

       {¶7}    As a threshold matter, the State challenged Phillips’s ability to bring this appeal

because “a defendant, who admits guilt, waives the right to challenge the propriety of any action

taken by a trial court or trial counsel prior to that point in the proceedings unless it affected the

knowing and voluntary character of the plea.” State v. Franco, 9th Dist. Medina No. 07CA0090-

M, 2008-Ohio-4651, ¶ 28, quoting State v. Gegia, 57 Ohio App.3d 112, 2004-Ohio-2124, ¶ 18

(9th Dist.), quoting State v. Doak, 7th Dist. Columbiana Nos. 03 CO 15, 03 CO 31, 2004-Ohio-

1548, ¶ 55. In response to this argument, Phillips contends that all of the cases cited by the State

are in specific reference to an appellant’s assertion that he should be able to withdraw his guilty

plea due to ineffective assistance of counsel and do not apply in this situation. Specifically,

Phillips argues that he is not seeking to withdraw his guilty plea, but rather asking this Court to

find the trial court’s decision to partially deny his motion for specific performance was an abuse

of discretion and to order the trial court to resentence him. Thus, Phillips maintains that the

State’s reliance on this line of case law is misplaced.
                                                 4


       {¶8}    Citing State v. Padilla, 8th Dist. Cuyahoga No. 98187, 2012-Ohio-5892, Phillips

contends that although his case is unusual, “it is not the first time an Ohio appellate court has

addressed the issue of a breach of a plea agreement preceding the entrance of a guilty plea on a

subsequent plea agreement.” In Padilla, the appellant was initially scheduled to enter a guilty

plea as part of a proposed agreement with the state. However, before the change of plea hearing,

the state withdrew the offer when a police officer did not approve. Id. at ¶ 4. After the

withdrawal, the trial court gave the parties additional time to reach an agreement or to go to trial.

Id. The details of the proposed plea agreement were not contained in the record, nor were they in

writing. Id. at 11. On appeal, the defendant argued that the trial court erred in failing to enforce

the proposed plea agreement because the state had impermissibly withdrawn the plea offer after

he had accepted it. Id. at ¶ 1, ¶ 8. The Padilla court concluded that the trial court had implicitly

rejected the plea agreement by giving the parties additional time to reach an agreement or go to

trial and based on the underlying facts, it was not an abuse of discretion to do so. Id. at ¶ 15.

The parties eventually reached a second plea agreement and the defendant entered a guilty plea

to an amended indictment. Id. at ¶ 6. The Padilla court ultimately concluded that any agreement

was wholly executory and that the appellant had not shown it was an abuse of discretion for the

trial court to not order the specific performance of a proposed agreement when the terms of the

agreement were not clearly set forth. Id. at ¶ 19.

       {¶9}    Although we agree with Phillips that the Padilla court addressed the issue of an

alleged breach of a plea agreement preceding a guilty plea pursuant to a subsequent plea

agreement, Padilla did not address the specific assertion of the State in this case that a defendant

who enters a voluntary guilty plea to a subsequent plea agreement has waived his right to

challenge the propriety of a trial court’s ruling that he was not entitled to specific performance of
                                                  5


a prior plea agreement. See id. While Phillips is correct in stating that the cases cited by the

State consider the specific issue of an alleged ineffective assistance of counsel, Ohio appellate

courts have not limited the waiver effect of a guilty plea to circumstances where an appellant is

seeking to withdraw a guilty plea due to ineffective assistance of counsel. See State v. Spates, 64

Ohio St.3d 269, 271 (1992) (a plea of guilty waives a defendant’s right to challenge the denial of

his right to counsel at the preliminary hearing); Montpelier v. Greeno, 25 Ohio St.3d 170, 170

(1986) (a plea of guilty waives a defendant’s right to challenge the denial of his right to a speedy

trial); State v. King, 8th Dist. Cuyahoga No. 91909, 2009-Ohio-4551, ¶ 34 (a plea of guilty

waived a defendant’s argument that certain counts should have been merged); State v.

McQueeney, 12th Dist. Warren No. CA95-06-065, 2002-Ohio-3731, ¶ 13 (a plea of guilty waives

a defendant’s right to challenge a trial court’s suppression ruling). Additionally, the Supreme

Court of Ohio has explicitly held that a guilty plea precludes a defendant from raising issues

pertaining to a trial court’s disposition of pretrial motions which neither implicate the trial

court’s jurisdiction nor the constitutionality of the statutes at issue. State v. Fitzpatrick, 102 Ohio

St.3d 321, ¶ 77-79 (2004).

       {¶10} Accordingly, we conclude that Phillips has waived the right to challenge the

propriety of any action taken by the trial court prior to entering his guilty plea unless it affected

the knowing and voluntary nature of his plea. See Franco, 2008-Ohio-4651 at ¶ 28. In this case,

Phillips raises no argument that he did not enter his guilty plea knowingly, intelligently, or

voluntarily and we decline to do so on his behalf. See App.R. 16(A)(7).

       {¶11} Therefore, we overrule both of Phillips’s assignments of error.
                                                 6


                                                III.

       {¶12} Phillip’s two assignments of error are overruled. The judgment of the Lorain

County Court of Common Pleas is affirmed.

                                                                              Judgment affirmed.




       There were reasonable grounds for this appeal.

       We order that a special mandate issue out of this Court, directing the Court of Common

Pleas, County of Lorain, State of Ohio, to carry this judgment into execution. A certified copy of

this journal entry shall constitute the mandate, pursuant to App.R. 27.

       Immediately upon the filing hereof, this document shall constitute the journal entry of

judgment, and it shall be file stamped by the Clerk of the Court of Appeals at which time the

period for review shall begin to run. App.R. 22(C). The Clerk of the Court of Appeals is

instructed to mail a notice of entry of this judgment to the parties and to make a notation of the

mailing in the docket, pursuant to App.R. 30.

       Costs taxed to Appellant.




                                                       JULIE A. SCHAFER
                                                       FOR THE COURT



CARR, P. J.
HENSAL, J.
CONCUR.
                                           7


APPEARANCES:

BRIAN J. DARLING, Attorney at Law, for Appellant.

DENNIS P. WILL, Prosecuting Attorney, and NATASHA RUIZ GUERRIERI, Assistant
Prosecuting Attorney, for Appellee.
