Court of Appeals of Ohio, Eighth District, Cuyahoga
Criminal Appeal from the Cuyahoga County Court of Common
Pleas Case Nos. CR-16-606498-A, CR-16-610084-A, and
ATTORNEY FOR APPELLANT Jerome M. Emoff Dworken &
Bernstein Co., L.P.A.
ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga
County Prosecutor By: Shannon M. Musson Assistant County
BEFORE: Laster Mays, J., Kilbane, P.J., and McCormack, J.
JOURNAL ENTRY AND OPINION
LASTER MAYS, JUDGE
Appellant-defendant Thomas Gray-Cole ("Gray-Cole")
appeals his sentence and asks this court to enforce the
agreement that was set forth in the record, thereby
convicting him only of the aggravate assault count. We vacate
Gray-Cole pleaded guilty to one count of endangering
children, a first-degree misdemeanor, in violation of R.C.
2919.02(A); one count of criminal damaging, a first-degree
misdemeanor, in violation of R.C. 2909.06(A)(1); amended
counts of aggravated assault, a fourth-degree felony, in
violation of R.C. 2903.12; amended counts of domestic
violence, a first-degree misdemeanor, in violation of R.C.
2919.25(A), and amended counts of attempted abduction, a
fourth-degree felony, in violation of R.C. 2905.02(A)(2). The
trial court imposed a 29-month prison sentence.
Gray-Cole and the state discussed a merger deal and came to
an agreement that the aggravated assault and attempted
abduction counts would merge. After reviewing the transcript,
it is clear that the trial court strictly complied with
Crim.R. 11(C)(2) and that Gray-Cole understood his plea. The
trial court reiterated the merger agreement during the plea
hearing, but then at sentencing did not merge the counts.
Gray-Cole filed an appeal, where the state concedes,
asserting one assignment of error for our review:
I. The trial court erred when it failed to merge amended
counts one and five in imposing a 29 month sentence in excess
of the maximum allowable sentence for a felony of the fourth
degree, after advising Gray-Cole that he would be sentenced
on one count.
Law and Analysis
As the state conceded at the appeal hearing and in its brief
that the trial court did err when it failed to merge the
amended counts, Gray-Cole's sentence should be vacated
and remanded to the trial court for resentencing consistent
with the negotiated plea agreement.
The record reveals that the trial court acquiesced to the
merger agreement. However, the trial court erred by appearing
to accept the negotiated plea agreement before the court
accepted Gray-Cole's plea, and then during sentencing,
deviated from the recommended sentence or terms contained
within the plea agreement at the time of sentencing.
The instructive case in this appellate district on a trial
court's deviation from a plea agreement is State v.
Dunbar, 8th Dist. Cuyahoga No. 87317, 2007-Ohio-3261,
where we explained: [A] trial court is vested with sound
discretion when implementing plea agreements. State v.
Buchanan, 154 Ohio App.3d 250, 2003-Ohio-4772, 796
N.E.2d 1003, ¶ 13 (5th Dist), citing Akron v.
Ragsdale, 61 Ohio App.2d 107, 399 N.E.2d 119 (9th
Dist.1978). The court is not obligated to follow the
negotiated plea entered into between the state and the
defendant. Id. [O]nce the court approves the plea
agreement, [however], its ability to deviate from it is
limited. State v. Allgood, 9th Dist. Lorain Nos.
90CA004903, 90CA004904, 90CA004905, and 90CA004907, 1991 Ohio
App. LEXIS 2972 (June 19, 1991), citing U.S. v.
Holman, 728 F.2d 809, (6th Cir.1984) certiorari denied,
469 U.S. 983, 105 S.Ct. 388, 83 L.Ed.2d 323 (1984).
"[T]he law is somewhat less settled in those cases where
the trial court appears to indicate that it accepts the
negotiated plea agreement before the court accepts the
defendant's plea, and then deviates from the recommended
sentence or terms contained within the plea agreement at the
time of sentencing. The analysis in these scenarios turns to
due process concerns over whether the accused was put on
[notice] that the trial court might deviate from the
recommended sentence or other terms of the agreement before
the accused entered his plea and whether the accused was
given an opportunity to change or to withdraw his plea when
he received this notice." See generally, Katz &