COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 68454 STATE OF OHIO : : : PLAINTIFF-APPELLEE : JOURNAL ENTRY : v. : AND : EDGARDO ORTIZ : OPINION : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 21, 1995 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court, No. CR-310789. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor David C. Sheldon, Esq. Assistant County Prosecutor Justice Center - 8th Floor 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: Donald Green, Esq. Assistant Public Defender 100 Lakeside Place 1200 West Third Street Cleveland, OH 44113 -2- DAVID T. MATIA, P.J.: Edgardo Ortiz, defendant-appellant, appeals from the sentence imposed by the Cuyahoga County Court of Common Pleas. Defendant- appellant assigns two errors for this court's review. Defendant-appellant's appeal is not well taken. I. THE FACTS On May 26, 1994 Edgardo Ortiz, defendant-appellant, was indicted by the Cuyahoga County Grand Jury. The indictment charged defendant-appellant with two counts of drug trafficking in violation of R.C. 2925.03 and one count of possession of criminal tools in violation of R.C. 2923.24. Specifically, the indictment alleged that defendant-appellant knowingly possessed and prepared for shipment heroin in an amount equal to or exceeding three times the bulk amount. Defendant-appellant was arraigned on June 10, 1994 whereupon a plea of not guilty was entered as to all three counts contained in the indictment. On October 13, 1994 defendant-appellant withdrew his formerly entered plea of not guilty and entered a plea of guilty to one count of possession of heroin in an amount exceeding three times the bulk amount in violation of R.C. 2995.03, a second degree felony. During the plea, the State informed the trial court that there was a stipulated and agreed sentence of three years actual to fifteen years. During the course of the plea the trial court informed defendant-appellant that his sentence would be three years actual to fifteen years and explained to defendant-appellant the -3- meaning of actual time. The trial court concluded the plea with the following admonishment to defendant-appellant: You will be referred for a presentence investigation. Don't make any mistakes before sentencing. You have a good agreement here. Don't get involved in drugs in any way. (Tr., p. 9.) Defendant-appellant's first sentencing hearing was scheduled for November 4, 1994. Defendant-appellant failed to appear for sentencing and a warrant was issued for his arrest. On December 8, 1994 defendant-appellant was arrested and held in police custody until sentencing could proceed. On December 13, 1994, the trial court sentenced defendant- appellant. Prior to imposing sentence, the following dialogue took place: THE COURT: What do you have to say? THE DEFENDANT: The reason I didn't come to sentencing that day is three weeks was not enough. I had to switch custody over to my ex-wife, change schools, change welfare so it took a little time, and I just didn't know what to do. Me and my girlfriend, we had a fight so we're still together, but I really didn't know what to do, Your Honor. I had this drug problem and still do. THE COURT: Counsel. MR. SHAUGHNESSY: Thank you, Your Honor. I do have an affidavit regarding the mandatory fine. I think we had an agreed sentence. That was contingent upon him coming to court. he didn't live up to his end of the bargain. I ask you to please consider imposing the agreed upon sentence. -4- The trial court then sentenced defendant-appellant to three years actual incarceration to be followed by a three to fifteen year indefinite term of incarceration. On January 24, 1995 defendant-appellant filed a timely notice of appeal from the judgment of the trial court. II. FIRST ASSIGNMENT OF ERROR Edgardo Ortiz's, defendant-appellant's, first assignment of error states: THE IMPOSITION OF A TERM OF ACTUAL INCARCERATION TO BE SERVED CONSECUTIVE TO A (SIC) INDEFINITE TERM FOR A SINGLE CONVICTION OF AGGRAVATED TRAFFICKING IS IMPERMISSIBLE AS IT EXCEEDS THE STATUTORILY PERMISSIBLE SENTENCE FOR THE CRIME. A. THE ISSUE RAISED: IMPROPER SENTENCE Defendant-appellant argues, through his first assignment of error, that the trial court erred by sentencing him to a three year actual term of incarceration to be served consecutively with a three to fifteen year indefinite term of incarceration. Defendant-appellant argues further that the trial court's sentence "may be" the result of its interpretation of State v. Odubanjo (1992), 80 Ohio App.3d 329 in which this court found that trial courts must sentence defendants convicted of R.C. 2925 violations under the guidelines set forth in both R.C. 2925.03 and R.C. 2929.11. Defendant-appellant maintains that the only proper sentence he could have received was an indefinite sentence of three, four or five to fifteen years with three years actual incarceration constituting the statutory minimum. -5- Defendant-appellant's first assignment of error is not well taken. B. STANDARD OF REVIEW In State v. Arnold (1991), 61 Ohio St.3d 175, the Ohio Supreme Court, in dealing with a similar factual scenario, stated: Where a defendant has been convicted of trafficking in drugs in violation of R.C. 2925.03(A), the indefinite term of imprisonment prescribed by R.C. 2929.11(B) is imposed in addition to a period of actual incarceration prescribed by R.C. 2925.03(C). Id., at syllabus. In State v. Odubanjo, supra, this court followed the holding in Arnold, supra, requiring that trial courts sentence defendants under both R.C. sentencing guidelines as set forth in R.C. 2925.03 and R.C. 2929.11. In State v. Nunn (Aug. 25, 1994), Cuyahoga App. No. 66221, unreported, this court rejected the argument that Arnold and Odubanjo require the trial court to impose an actual term of incarceration mandated by R.C. 2925.03 consecutively to an indefinite term of incarceration. This court stated: *** we again emphasize that the holdings of Arnold and Odubanjo do not require trial courts to impose either concurrent or consecutive sentences. They do however require trial courts to utilize both Revised Code guidelines when sentencing defendants convicted of certain R.C. 2925.03 crimes. In State v. Brown (Dec. 1, 1994), Cuyahoga App. No. 67017, unreported, this court reasserted the holding that the trial court has discretion in sentencing defendants convicted of -6- certain crimes pursuant to R.C. 2925.03. In Brown, supra, this court found: It should be emphasized that the trial court, in its discretion, may impose consecutive sentences when sentencing a defendant to a term of actual incarceration pursuant to R.C. 2925.03(C)(6) and to an indefinite term of incarceration pursuant to R.C. 2929.11(B). Our holding today merely points out that such sentences are not required to be served consecutively. C. DEFENDANT-APPELLANT'S SENTENCE WAS PROPER. In this case, defendant-appellant pleaded guilty to one count of possession of heroin, a Schedule I drug, in an amount equal to or exceeding three times the bulk amount, a violation of R.C. 2925.03, a felony of the second degree. R.C. 2929.11 provides that a second degree felony carries with it a possible term of incarceration of two, three, four or five to fifteen years. In addition, R.C. 2925.03(C)(6) states: Where the offender has violated division (A)(6) of this section, aggravated trafficking is a felony of the second degree and the court shall impose a sentence of actual incarceration of three years. *** Pursuant to the Ohio Supreme Court's holding in Arnold and this court's holdings in Nunn and Brown, the trial court has discretion to impose consecutive sentences when sentencing a defendant to a term of actual incarceration under R.C. 2925.03 and to an indefinite term of incarceration pursuant to R.C. 2929.11. Contrary to defendant-appellant's assertion, the trial court is not required to impose the three year actual term of incarceration concurrently with the indefinite term of -7- incarceration, although the trial court does have the option of ordering concurrent sentences, if, in its judgment, concurrent sentences would be appropriate. State v. Martinez (March 2, 1995), Cuyahoga App. No. 66992, unreported. Accordingly, the trial court did not err in sentencing defendant-appellant to a three year term of actual incarceration to be served consecutively to the three to fifteen year indefinite term. Defendant-appellant's first assignment of error is not well taken. III. SECOND ASSIGNMENT OF ERROR Edgardo Ortiz's, defendant-appellant's, second assignment of error states: THE TRIAL COURT ERRED WHEN IT SENTENCED EDGARDO ORTIZ TO A MORE SEVERE TERM OF INCARCERATION THAN WAS AGREED UPON AT THE TIME OF THE PLEA AND THEREFORE VIOLATED MR. ORTIZ'S CONSTITUTIONAL RIGHT UNDER THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION. A. THE ISSUE RAISED: PLEA AGREEMENT Defendant-appellant argues, through his second assignment of error, that the trial court erred when it sentenced him to a more severe term of incarceration than was agreed upon at the plea. Specifically, defendant-appellant maintains that his plea was not knowingly and intelligently made since he did not have a full understanding of its consequences. Defendant-appellant requests -8- that this court vacate this guilty plea and remand the case to the trial court for further proceedings. Defendant-appellant's second assignment of error is not well taken. B. STANDARD OF REVIEW FOR PLEA AGREEMENTS Plea bargaining is an accepted and approved method of disposing of criminal cases in today's criminal justice system. State v. Griffey (1972), 29 Ohio App.2d 246, 250. The final judgment on whether a plea bargain shall be accepted rests within the sound discretion of the trial court. State v. Minshall (Nov. 9, 1993), Meigs App. No. 93 CAJ11, unreported. An abuse of discretion connotes more than an error in law or judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219. This court, in dealing with the effect of a plea bargain, stated that where a defendant has agreed to fully cooperate or otherwise provide truthful information pursuant to a plea agreement but it is later discovered that the defendant may not have fulfilled the terms of the agreement, the defendant's failure to fulfill the terms of the plea agreement will relieve the government of its reciprocal obligations under the agreement. State v. Small (1987), 41 Ohio App.3d 252. Punishment, however, is not subject to plea bargaining. While the State may agree to recommend a certain sentence or to make no recommendation regarding sentencing, punishment is a matter -9- determined expressly by statute or lying within the sound discretion of the trial court. State v. Mathews (1982), 8 ohio App.3d 145, 146. C. CRIM.R. 11(C) AND PLEA OF GUILTY Crim.R. 11(C), which deals with a trial court's acceptance of a plea of guilty to a felony offense provides: (1) Where in a felony case the defendant is unrepresented by counsel the court shall not accept a plea of guilty or no contest unless the defendant, after being readvised that he has the right to be represented by retained counsel, or pursuant to Rule 44 by appointed counsel, waives the right. (2) In felony cases the court may refuse to accept a plea of guilty or a plea of no contest, and shall not accept such plea without first addressing the defendant personally and: (a) Determining that he is making the plea voluntarily, with understanding of the nature of the charge and of the maximum penalty involved, and, if applicable, that he is not eligible for probation. (b) Informing him of and determining that he understands the effect of his plea of guilty or no contest, and that the court upon acceptance of the plea may proceed with judgment and sentence. (c) Informing him and determining that he understands that by his plea he is waiving his rights to jury trial, to confront witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to require the state to prove his guilt beyond a reasonable doubt at a trial at which he cannot be compelled to testify against himself. -10- D. STANDARD OF REVIEW APPLICABLE TO A PLEA OF GUILTY In order to comply with Crim.R. 11(C), a trial court must determine whether the defendant fully comprehends the consequences of his plea of guilty. Such a determination is made through an oral dialogue between the trial court and the defendant who is entering the plea of guilty. Adherence to the provisions of Crim.R. 11(C)(2) requires an oral dialogue between the trial court and the defendant which enables the court to determine fully the defendant's understanding of the consequences of his plea of guilty or not contest. (Emphasis added.) State v. Caudill (1976), 48 Ohio St.2d 343, paragraph two of the syllabus. In addition, the Supreme Court of Ohio has established that a trial court in accepting a plea of guilty, need only substantially comply with the mandates of Crim.R. 11(C). State v. Stewart (1977), 51 Ohio St.2d 86, at 92. E. THE TRIAL COURT DID NOT ERR WHEN IT SENTENCED DEFENDANT- APPELLANT. In the case sub judice, a review of the record demonstrates that the trial court did not err in sentencing defendant- appellant to a longer term of incarceration than was agreed upon at defendant-appellant's plea. A review of defendant-appellant's guilty plea shows that defendant-appellant's agreed sentence was clearly contingent upon defendant-appellant's continued cooperation with the court and compliance with the terms of the plea agreement. Once defendant-appellant failed to appear -11- for sentencing on -12- November 4, 1994 as ordered by the trial court, the trial court was no longer bound by the agreed sentence. This is particularly true given the fact that defendant-appellant had to be arrested and brought before the trial court in police custody for sentencing on December 13, 1994. A further examination of the record fails to support defendant-appellant's claim that his plea of guilty to drug trafficking was not voluntarily, knowingly and intelligently entered. State v. Carter (1979), 60 Ohio St.2d 34. The trial court substantially complied with Crim.R. 11(C) in accepting defendant-appellant's plea of guilty and defendant-appellant indicated on the record that he understood his constitutional rights, the nature of the charges against him as well as the terms of incarceration which could be imposed. Based upon the foregoing, defendant-appellant's second assignment of error is not well taken. Judgment of the trial court is affirmed. -13- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. The defendant's conviction having been affirmed, any bail pending appeal is terminated. Case remanded to the trial court for execution of sentence. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. PORTER, J. and O'DONNELL, J., CONCUR. DAVID T. MATIA PRESIDING JUDGE N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announcement of decision (see Rule 26). Ten (10) days from the date hereof this document will be stamped to indicate .