[Cite as State v. Dehart, 2018-Ohio-865.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
MONTGOMERY COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : C.A. CASE NOS.: 27587/27678
:
v. : T.C. NOS.: 2017-CR-67/2017-CR-64
:
DAVID DEHART : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 9th day of March, 2018.
...........
MATHIAS H. HECK, JR., by HEATHER JANS, Atty. Reg. No. 84470, Assistant
Prosecuting Attorney, Montgomery County Prosecutor’s Office, Appellate Division, 301
W. Third Street, 5th Floor, Dayton, Ohio 45422
Attorney for Plaintiff-Appellee
GARY SCHAENGOLD, Atty. Reg. No. 7144, 4 E. Schantz Avenue, Dayton, Ohio 45409
Attorney for Defendant-Appellant
.............
DONOVAN, J.
{¶ 1} Defendant-appellant David Dehart appeals his conviction and sentence for
two counts of violating a protection order, in violation of R.C. 2919.27(A)(1)/(B)(1)(3), both
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felonies of the fifth degree.
{¶ 2} On January 17, 2017, Dehart was indicted in Case No. 2017 CR 0064 for
one count of violating a protection order, in violation of R.C. 2919.27 (A)(1)/(B)(1)(3), a
fifth degree felony. On the same day, Dehart was indicted in Case No. 2017 CR 0067
for an additional count of violating a protection order, in violation of R.C. 2919.27
(A)(1)/(B)(1)(3), also a fifth degree felony.
{¶ 3} Shortly thereafter on January 31, 2017, Dehart pled guilty to both counts of
violating a protection order in Case Nos. 2017 CR 0064 and 2017 CR 0067. During a
sidebar discussion at the plea hearing, it was acknowledged by the trial court and the
parties that Dehart had already received a twelve-month prison sentence for a probation
revocation in a separate case (Case No. 2016 CR 3661). Nevertheless, it was agreed
that Dehart would receive community control in Case Nos. 2017 CR 0064 and 2017 CR
0067. Furthermore, the trial court and the parties agreed that Dehart’s community
control sanctions would not begin until he completed his twelve-month sentence for the
probation revocation in Case No. 2016 CR 3661.
{¶ 4} At the plea hearing, the trial court stated the following regarding the maximum
possible sentences to which Dehart was subject in Case Nos. 2017 CR 0064 and 2017
CR 0067 :
The Court: Okay. Each of those felony fives carry maximum
potential penalties of a $2500.00 fine and from six to twelve months in
prison though by – but you’re going to get community control, which can last
as long as five years and could involve six months in jail; do you understand
that?
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Dehart: Yes, sir.
Tr. 12.
{¶ 5} Later in the plea hearing, the trial court stated the following:
Trial Court: And, Mr. Dehart, you understand that should you get
revoked from community control sanctions in your case, you’re going to get
twelve months on each case for a total of two years. Do you understand
that?
Dehart: Yes, I do.
Tr. 14.
{¶ 6} At the end of the Crim.R. 11 colloquy, Dehart pled guilty to the charged
offenses. The trial court accepted Dehart’s guilty pleas, ordered the preparation of a pre-
sentence investigation report (PSI), and scheduled a sentencing hearing to be held on
February 14, 2017.
{¶ 7} After the sentencing hearing was rescheduled, Dehart filed a motion to
withdraw his plea in Case No. 2017 CR 0064, arguing that he was confused regarding
the sentence he was to receive.1 Prior to sentencing Dehart, the trial court held a hearing
with respect to his motion to withdraw his guilty pleas. The trial court denied Dehart’s
motion to withdraw and immediately proceeded to sentencing in Case Nos. 2017 CR 0064
and 2017 CR 0067. Ignoring the prior agreement to impose community control
sanctions, the trial court sentenced Dehart to twelve months in prison for each of the two
counts of violating a protection order. The trial court ordered that the sentences run
1The record establishes that Dehart did not file a motion to withdraw his plea in Case
No. 2017 CR 0067.
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consecutively to one another but concurrent to the twelve-month term in Case No. 2016
CR 3661, for an aggregate sentence of twenty-four months in prison. Dehart’s judgment
entry of conviction was filed on March 3, 2017.
{¶ 8} Thereafter, on May 16, 2017, Dehart filed a motion for leave to file a delayed
appeal, but he did not file a notice of appeal. In an entry issued on July 17, 2017, we
granted Dehart’s motion for leave to file a delayed appeal on the condition that he file a
notice of appeal with the trial court within twenty days. (CA 27587) On August 7, 2017,
Dehart filed a notice of appeal in CA 27678 and a second motion for leave to file a delayed
appeal. In an entry issued on August 17, 2017, we consolidated CA 27587 and CA
27678 and granted Dehart’s second motion for leave to file a delayed appeal.
{¶ 9} Dehart filed his appellate brief on December 5, 2017. On January 11, 2018,
the State filed a notice of conceded error pursuant to Local Rule 2.24. On the same day,
the State filed its responsive brief in which it conceded that Dehart’s guilty pleas were not
knowingly, intelligently, and voluntarily made because the trial court failed to honor its
agreement whereby Dehart was to receive community control sanctions after pleading
guilty to two counts of violating a protection order in Case Nos. 2017 CR 0064 and 2017
CR 0067. Accordingly, the State agrees with Dehart that the trial court’s judgment
should be reversed and remanded for either the imposition of community control
sanctions or to allow Dehart to withdraw his guilty pleas. We agree.
{¶ 10} Dehart’s first assignment of error is as follows:
{¶ 11} “APPELLANT’S PLEAS OF GUILTY WERE NOT KNOWINGLY,
INTELLIGENTLY AND VOLUNTARILY MADE IN COMPLIANCE WITH RULE 11(C) OF
THE OHIO RULES OF CRIMINAL PROCEDURE.”
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{¶ 12} In his first assignment, Dehart argues that his guilty pleas were not
knowingly, intelligently, and voluntarily made because the trial court failed to honor its
promise to impose community control sanctions after he pled guilty to two counts of
violating a protection order in Case Nos. 2017 CR 0064 and 2017 CR 0067.
{¶ 13} “When a defendant enters a plea in a criminal case, the plea must be made
knowingly, intelligently, and voluntarily.” State v. Barker, 129 Ohio St.3d 472, 2011-Ohio-
4130, 953 N.E.2d 826, ¶ 9. “Crim.R. 11(C) requires a trial judge to determine whether
that criminal defendant is fully informed of his or her rights and understands the
consequences of his or her guilty plea.” Id. at ¶ 10. In determining whether Dehart's
guilty plea was made knowingly, intelligently, and voluntarily, we must review the record
“to ensure that Crim.R. 11 was followed by the trial court upon defendant's submission of
the guilty plea.” State v. Spates, 64 Ohio St.3d 269, 272, 595 N.E.2d 351 (1992). A trial
court must substantially comply with the notification of the non-constitutional rights
contained in Crim.R. 11(C)(2)(a) and (b), and a defendant must show prejudice before a
plea will be vacated for failure to substantially comply with those notifications. State v.
Veney, 120 Ohio St.3d 176, 2008-Ohio-5200, 897 N.E.2d 621, ¶ 14, 17.
{¶ 14} In State v. Mills, 2d Dist. Montgomery No. 26619, 2015-Ohio-5385, ¶ 14,
we stated the following:
*** [A] plea agreement is a contract, and a breach of that contract is
governed by contract law. State v. Adkins, 161 Ohio App.3d 114, 2005–
Ohio–2577, 829 N.E.2d 729 (4th Dist.). A breach of that contract entitles
the non-breaching party to recision or specific performance. Santobello v.
New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971); State v.
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Layman, 2d Dist. Montgomery No. 22307, 2008–Ohio–759. A promised
sentence is an inducement to plea, and unless given as promised, the plea
is not voluntary. State v. Gilroy, 195 Ohio App.3d 173, 2011–Ohio–4163,
959 N.E.2d 19 (2d Dist.); Layman at ¶ 15, citing State v. Triplett, 8th Dist.
Cuyahoga No. 69237, 1997 WL 64051 (Feb. 13, 1997); State v. Bonnell,
12th Dist. Clermont No. CA2001–12–094, 2002–Ohio–5882.
{¶ 15} In the instant case, the record clearly established that the trial court
promised Dehart that he would receive community control sanctions if he pled guilty to
two counts of violating a protection order in Case Nos. 2017 CR 0064 and 2017 CR 0067.
Significantly, we note that no conditions were placed upon Dehart at the time of the plea
which could account for the trial court’s decision to disregard its promise of community
control. Therefore, the trial court was obligated to sentence Dehart to community control
sanctions or otherwise permit him to withdraw his guilty pleas. The trial court, however,
did neither. Rather, the trial court sentenced Dehart to two consecutive twelve-month
sentences in Case Nos. 2017 CR 0064 and 2017 CR 0067. The trial court’s decision to
disregard its promise of community control rendered Dehart’s guilty pleas unknowing,
unintelligent, and involuntary.
{¶ 16} Dehart’s first assignment of error is sustained.
{¶ 17} Dehart’s second assignment of error is as follows:
{¶ 18} “THE TRIAL COURT ERRED IN DENYING APPELLANT’S MOTIONS TO
WITHDRAW HIS PLEAS OF GUILTY PRIOR TO SENTENCING PURSUANT TO RULE
32.1 OF THE OHIO RULES OF CRIMINAL PROCEDURE.”
{¶ 19} In light of our disposition with respect to Dehart’s first assignment, his
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second assignment of error is rendered MOOT, and therefore, we need not address it.
{¶ 20} Dehart’s first assignment of error having been sustained, the judgment of
the trial court is reversed and remanded for either the imposition of community control
sanctions or to allow Dehart to withdraw his guilty pleas.
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WELBAUM, P.J., concurs.
TUCKER, J., concurring:
{¶ 21} I agree that under the circumstances of this case the trial court had the
obligation to either allow Dehart to withdraw his guilty plea or, upon the withdrawal motion
being overruled, to impose the agreed upon sentence. State v. Walton, 2 Ohio App.3d
117, 440 N.E.2d 1225 (10th Dist. 1981). I write separately to note that a defendant’s
motion to withdraw his guilty plea, made after the parties, with the court’s imprimatur,
enter into a sentencing agreement, could be, under different circumstances, considered
an anticipatory repudiation of the sentencing contract that would allow the trial court to
overrule the withdrawal motion and impose a sentence greater than the agreed upon
sentence. State v. Calloway, 7th Dist. Mahoning No. 10 MA 147, 2011-Ohio-4257.
Copies mailed to:
Heather Jans
Gary Schaengold
Hon. Gregory F. Singer