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State v. Gray-Cole

Court of Appeals of Ohio, Eighth District, Cuyahoga

April 5, 2018

STATE OF OHIO PLAINTIFF-APPELLEE
v.
THOMAS GRAY-COLE DEFENDANT-APPELLANT

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case Nos. CR-16-606498-A, CR-16-610084-A, and CR-16-611479-A

          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 Prosecutor Justice

          BEFORE: Laster Mays, J., Kilbane, P.J., and McCormack, J.

          JOURNAL ENTRY AND OPINION

          ANITA LASTER MAYS, JUDGE

         {¶1} 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 and remand.

         {¶2} 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.

         {¶3} 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.

         I. Law and Analysis

         {¶4} 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.

         {¶5} 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 & Giannelli, ...

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