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State v. Parker

Court of Appeals of Ohio, Eighth District, Cuyahoga

December 12, 2019

STATE OF OHIO, Plaintiff-Appellee,
ANDRE PARKER, Defendant-Appellant.

          Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-18-629347-A

          Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Jonathan Block, Assistant Prosecuting Attorney, for appellee.

          Mark A Stanton, Cuyahoga County Public Defender, and Jeffrey Gamso, Assistant Public Defender, for appellant



         {¶ 1} Defendant-appellant, Andre Parker, appeals the trial court's denial of his presentence motion to withdraw his guilty plea. He raises one assignment of error for our review:

Andre Parker was deprived of his contractual rights under his plea bargain when the state wrongly asserted that he had breached the agreement.

         {¶ 2} Finding no merit to his assigned error, we affirm.

         I. Procedural History and Factual Background

         {¶ 3} Parker and his codefendant were indicted in June 2018 on two counts of aggravated robbery in violation of R.C. 2911.01(A)(1), felonies of the first degree; two counts of robbery in violation of R.C. 2911.02(A)(2), felonies of the second degree; one count of felonious assault in violation of R.C. 2903.11(A)(2), a felony of the second degree; and one count of having weapons while under disability in violation of R.C. 2923.13(A)(2), a felony of the third degree. All of the counts except the weapons-disability charge carried one- and three-year firearm specifications, a 54-month firearm specification (which arises when an accused has a prior conviction for a firearm specification), a notice of prior conviction specification, and a repeat violent offender specification.

         {¶ 4} According to the state's recitation of the facts, police had surveillance footage from a gas station where the robbery took place that proved the defendants' guilt. Parker and his codefendant robbed the victim in his car at gunpoint and stole the car from the victim. Parker was the driver who drove his codefendant to the gas station and then drove away once the codefendant secured the stolen vehicle. The codefendant held the gun during the incident, the gun went "off," and the victim's hand was injured. According to the state, it could also show through testimonial and video evidence that Parker "actually [held] up the other victim with a firearm as well."

         {¶ 5} On August 29, 2018, the day scheduled for trial, the state and defense counsel informed the court that the state had offered a plea deal to Parker but that they had been in discussions regarding the possibility of a better plea bargain if Parker cooperated with detectives and led them to his codefendant. The state explained that Parker had rejected its plea offer. Thus, according to the state, it would only consider offering a better plea deal if the court granted a continuance at Parker's request so that detectives could verify that Parker's information was true before they would offer a new plea.

         {¶6} The court explained that the alleged events took place on April 22, 2018. Parker was indicted June 7 and arraigned on June 12. On June 19, the trial court set August 29, 2018 for trial. The court stated that it appeared as if Parker was attempting to delay trial. The court stated that it believed that trials should be held "as close in time to the alleged crime as possible" because it was more "just." The trial court denied Parker's request for a continuance.

         {¶ 7} The trial court then asked the state to place the plea offer on the record. At that point, more discussions took place regarding why Parker was trying to cooperate with detectives so close to the trial date. Defense counsel explained to the court that Parker was related to his codefendant by blood and that the codefendant had been hiding from police and no one knew where he was until just the previous weekend.

         {¶ 8} The state then placed the proposed plea offer on the record. The state explained that it was prepared to delete all of the specifications on Count 1, except the one-year firearm specification. Thus, Parker would plead guilty to first-degree aggravated robbery with a one-year firearm specification. Parker would also have to plead to Count 6 as indicted, having weapons while under disability, a third-degree felony. The state further indicated that Parker would have to agree to not contact the victim. The state told the court that because of the 0ne-year firearm specification, Parker would be pleading to a "mandatory sentence." The state indicated that it would request the court to nolle the remaining counts and specifications. According to the state, the plea would reduce Parker's minimum time from 7.5 years to 4 years and would reduce the maximum time from 18.5 years to 12 years.

         {¶ 9} The trial court asked Parker if he was interested in the state's plea offer. Parker stated that he was not.

         {¶ 10} The trial court then asked the state what it was prepared to offer if Parker provided the information that led the police to his codefendant. The state explained that it could not "say exactly how much better this gets." The state told the court that if Parker provided information that led to the arrest of the codefendant, it was prepared to "get rid of any mandatory time as well as other specifications, RVO, repeat violent offender." The state further stated that "cooperation and additional information that might be helpful to the case" would probably mean that the state would reduce mandatory time and "at least a one level of reduction based on that cooperation, possibly two depending on the information."

         {¶ 11} The trial court then asked the parties, "What if [Parker] agreed to plead guilty to the plea bargain" the state had just proposed "and then sometime between now and sentencing, let's say within four to six weeks, he led you to" the codefendant, "and then prior to sentencing he moved to vacate the plea in favor of a better plea bargain," would it be a motion that the state "would be likely to join in?" The state responded, "Your Honor, given his participation, truthful statements, and leading to the apprehension of the codefendant, I think the state would then be prepared to join in on that motion to renegotiate the potential plea deal."

         {¶ 12} The trial court then turned to defense counsel, asking him what he thought of the possibility of a plea bargain to the plea that had been offered that day and then if Parker's "information turns out to be what he's claiming it is," then there would be a joint motion or an unopposed motion to withdraw that plea before sentencing. The court explained that although it would not be part of the contract between the state and Parker, it typically grants agreed motions requesting a plea to be withdrawn before sentencing. The court stated, "It's not certain because nothing is certain, but it's almost certain to be granted." The court asked if Parker would consider that.

         {¶ 13} Defense counsel stated that he would talk to Parker. The trial court told Parker that it would permit him to talk to his defense counsel privately. The court stated, "Maybe something can be done here today. Maybe not. If not, again, that's fine. Plea bargain is your decision. It's not your lawyer's, certainly not the prosecutor's, not mine. Your lawyer can recommend or not recommend a certain plea, but in the end it's your decision. You have a right to a trial, you have the right to a fair trial, and as far as I'm concerned, you're going to get a fair trial here, but before we begin that fair trial, I want to make sure that all the possibilities of the negotiated settlement are exhausted. If you would speak to your lawyer for a few minutes I would appreciate it. Thank you."

         {¶ 14} When the trial court went back on the record, defense counsel informed the court that Parker was interested in entering into a plea that day. The court stated, "Well, we'll talk about this as we go along, if we go along," but the plea was "with the possibility but not the guarantee that between now and sentencing [Parker] might be allowed to withdraw [his] plea and enter a new plea bargain." The court then asked Parker if he understood that and Parker indicated that he did.

         {¶ 15} The trial court explained to Parker that before he pleaded guilty, it had to ensure that he pleaded guilty with the "full knowledge of possible consequences * * * to be sure the plea is voluntary." Parker then told the court that he had previously pleaded guilty to a crime, was 28 years old, could write and read in English, was not under the influence of any drugs or alcohol, did not have any mental or physical illness, was a United States citizen, was thinking clearly that day, and was satisfied with his defense counsel.

         {¶ 16} Parker then told the trial court that he was still on probation in Cuyahoga C.P. No. 614o57. The court explained to Parker that if he pleaded guilty to the offenses that day, that he would be considered "to have violated probation in 614057 because of course it's a violation of probation to commit a new crime while on probation." Parker stated that he understood that.

         {¶ 17} Parker then informed the trial court that he also had a case pending from Monroe County where he had been sentenced to 11 months to county jail but that it was pending concurrent with his jail time "right now." Once he completed that 11 months, he was facing three years of postrelease control in that case. The court stated that since Parker was not on ...

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