State v. Harack

Ringland, Judge,

concurring separately.

{¶ 33} I concur in the analysis and resolution of the state’s single assignment of error. I write separately, however, to emphasize that any alleged error or procedural- malady arising from this matter is tied directly to the state’s decision to enter into a new plea agreement.

{¶ 34} As the record clearly indicates, it was the state, and not the trial court, that induced, encouraged, and otherwise invited Harack to rescind his motion to withdraw his no-contest plea by entering into a new plea agreement so that the *166charge could be amended. Although this is not the typical example of an invited error, the rationale behind that doctrine still applies to preclude the state from taking advantage of any error the trial court may have committed by accepting and implementing the parties’ new plea agreement. State v. Petit, Butler App. No. CA2009-03-084, 2009-Ohio-6925, 2009 WL 5155998, ¶35, citing State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 102 (stating that “a party cannot take advantage of an error that the party invited or induced the court to commit”). In turn, while it may be true that “[pjarties to an action cannot, through invited error, confer jurisdiction where none exists,” as noted above, the trial court had jurisdiction throughout the pendency of these proceedings. See State v. Minkner, 194 Ohio App.3d 694, 2011-0hio-3106, 957 N.E.2d 829, ¶ 25; State ex rel. Kline v. Carroll, 96 Ohio St.3d 404, 2002-Ohio-4849, 775 N.E.2d 517, ¶ 27; Davis v. Wolfe (2001), 92 Ohio St.3d 549, 751 N.E.2d 1051.

{¶ 35} That said, even if I were to find that the court had somehow surrendered its jurisdiction, that loss of jurisdiction could be attributed solely to the instigation of the state. The state cannot claim loss of jurisdiction based on its invited error where the court previously exercised such jurisdiction. The trial court, therefore, certainly had the authority to act in accordance with the parties’ wishes by accepting and implementing their plea agreement as requested.

{¶ 36} I also write separately to address the state’s claim that the “trial court should not be allowed to permit” Harack to avoid the reporting requirements that come with a criminal child-enticement conviction by amending the charge to aggravated menacing. Although stated previously, it bears repeating that it was the state, and not the trial court, who agreed to enter into a new plea agreement. Any attempt by the state or the dissent to now shift the blame to the trial court for accepting and implementing this new plea agreement is improper.