COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67944 STATE OF OHIO, : : Plaintiff-Appellee : : JOURNAL ENTRY vs. : and : OPINION HORACE GRIGGS, : : Defendant-Appellant : DATE OF ANNOUNCEMENT OF DECISION : FEBRUARY 8, 1996 CHARACTER OF PROCEEDING : Criminal appeal from : Common Pleas Court : Case No. CR-307434 JUDGMENT : AFFIRMED. DATE OF JOURNALIZATION : _______________________ APPEARANCES: For plaintiff-appellee: John W. Monroe Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant: James R. Willis Courthouse Square Building 310 Lakeside Avenue, N.W. Suite 350 Cleveland, Ohio 44113 -2- NAHRA, P.J.: Defendant-appellant Horace Griggs appeals from his convictions for violations of R.C. 2925.11, Drug abuse, and R.C. 2925.03, Trafficking in drugs. The record reflects appellant was originally indicted in this case on April 21, 1994. The indictment against appellant alleged three counts as follows: possession of heroin in an amount equal to or exceeding three times the bulk amount, R.C. 2925.03(A)(6); possession of heroin with the intent to distribute, R.C. 2925.03(A)(2); and possession of criminal tools, "to wit: cash and a pager," R.C. 2923.24. Appellant entered a plea of not guilty to the charges at his arraignment. The record further reflects several pretrials were held in appellant's case. Trial was eventually scheduled for July 18, 1994. On the date set for appellant's trial, the trial court held a plea hearing, initially stating for the record the following: THE COURT: Docket 307434, State of Ohio vs. Horace Griggs. Mr. Griggs, you are charged in a three-count indictment. At the time of your arraignment you pled not guilty to all three charges. My understanding is that you are going to plead guilty to the amended indictment in Count Number 1, reflecting and ultimately turning it into a third degree felony, with a mandatory period of incarceration of eighteen months, possible incarceration of a year, year and a half, or two years, a fine of five thousand dollars, or a combination of both. It is my understanding you are going to plead guilty to Count Number 2, a trafficking charge, a third degree -3- determinate felony, calling for a possible sentence of a year, year and a half, or two years, a fine of up to five thousand dollars, or a combination of both. I am told the plea as it relates to Count Number 2 is not mandatory, nor not probationable. However, there is an agreement as it relates to sentence. In actuality if you are going to plead guilty becomes non- probationable, because there is an agreement that you be sentenced to eighteen months mandatory, in Count 1, 1 1/2 on Count 2. The time is to run consecutively, which means that your flat sentence is a three-year aggregate sentence. Has that all been explained to you? THE DEFENDANT: Yes, sir. THE COURT: In return for that Count Number 3 is going to be dismissed. I will refer this, nonetheless, to the Probation Department for a presentence investigation report. You will come back for formal sentencing August 2nd, at 9:00 o'clock in the morning. There is also a mandatory fine, * * * . * * * Mandatory fines on each of these of twenty-five hundred dollars on each count, or an aggregate five thousand dollars. Do you understand that as well? THE DEFENDANT: Yes. THE COURT: Is there any forfeiture involved here other than the contraband? MR. GALLAGHER [THE PROSECUTOR]: $217.00 in cash, two cellular phones, and one pager. THE COURT: I take it as part and parcel of the plea agreement the defendant, Horace Griggs, is going to give up any right he may have to the contraband, money seized, phones, et cetera. MR. GALLAGHER: I believe so. THE COURT: Is that accurate? MR. WILLIS [DEFENSE COUNSEL]: Yes. (Emphasis added.) -4- The trial court thereafter continued to engage in a colloquy with appellant, describing in detail the constitutional rights appellant was relinquishing by pleading guilty to the charges. Appellant responded that he understood the information. At the end of this colloquy, the following exchange occurred: THE COURT: You already know what the sentence is going to be. Has anyone threatened you to make you enter a plea? THE DEFENDANT: No. THE COURT: Are you entering the plea voluntarily, knowledgeably, and of your own free will? THE DEFENDANT: Yes, sir. * * * THE COURT: Mr. Griggs, how do you plead to amended Count 1, rendering Count 1 a third degree non- probationable felony, with a mandatory period of incarceration of eighteen months, a mandatory fine of twenty-five hundred dollars, a possible fine of up to five thousand dollars, guilty or not? THE DEFENDANT: Guilty. THE COURT: How do you plead to Count Number 2, aggravated trafficking, a third degree probationable determinate felony, calling for a possible sentence of a year, year and a half, or two, a mandatory fine or twenty-five hundred dollars, a possible fine of up to five thousand dollars, guilty or not guilty? THE DEFENDANT: Guilty. THE COURT: And you understand that the agreement has also been struck as it relates to sentence in Count 1, that will be one and a half years. Count 2 will be one and a half years. The time will run consecutively. Your aggregate sentence will be a three-year period of incarceration, and thereafter the Court will impose the mandatory fine. Do you understand all that? -5- THE DEFENDANT: Yes, sir. * * * THE COURT: The Court will accept that plea. Count 3 will be dismissed. I will refer this for a presentence report. Come back for sentencing on August 2nd, at 9:00 o'clock in the morning. In light of the fact that the Court is granting your lawyers' request for a presentence report in the event you do something between now and August 2nd as far as I am concerned the agreement and sentence is off. * * * THE COURT: There is an agreement on sentence. If something happens between now and August 2nd that agreement is off, and I will proceed to sentence based upon the possible parameters. MR. WILLIS: Okay, Judge. THE COURT: Do you understand that, Mr. Griggs? THE DEFENDANT: Yes, sir. THE COURT: I suspect you are not going to do anything. That is not going to help you. I am forewarning you. That will be something hanging over your head. If something does pop between now and August 2nd the agreement and sentence is gone. See you on August 2nd at 9:00 o'clock. (Emphasis added.) The trial court journalized an entry reflecting both the plea agreement and appellant's referral to the probation department for a pre-sentence investigation and report. On August 23, 1994, appellant's case was called for sentencing. The trial court began the hearing by stating for the record as follows: Mr. Griggs, on an earlier date you had pled guilty to a drug law violation as amended in Count Number One, -6- aggravated trafficking, and Count Number Two. Count Three was dismissed. Initially, and at the time of the plea agreement it was an agreed upon sentence. That sentence was to be 18 months on Count One. That was a mandatory period of incarceration, a year-and-a-half on Count Two, time to run consecutive, which would render a three-year flat sentence, plus a $5,000 sentence fine-wise, and the aggregate. I indicated to you at the request of counsel, the request made to let you out on bond, even though you were going to go to jail, I indicated that reading from the plea itself, "In light of the fact that the Court is granting your lawyer's request for a presentence report, in the event you do something between now and August 2nd," that was the original date of sentencing, "as far as I'm concerned, the agreement and sentence is off. "There is an agreement on sentence. If something happens between now and August 2nd that agreement is off, and I will proceed to sentence based upon the possible parameters. "Mr. Willis, okay, Judge." Do you understand that, Mr. Griggs? THE DEFENDANT: Yes, sir, I do. THE COURT: The fact that I had your urine tested, it came back positive for cocaine as far as I'm concerned. If I choose to, I can sentence you based upon the plea, independent and apart from whatever agreement you may have had at the time, pending the completion of the presentence report. Having said that, is there anything else you'd like to say on your own behalf before the Court decides on the appropriate sentence? THE DEFENDANT: Yeah, your Honor. I'd just like to state that the reason for my problem is I have a drug problem, and it's never been addressed to the Court as far as I'm concerned. THE COURT: Never been addressed to who? THE DEFENDANT: To the Court. -7- THE COURT: What do you mean it's never been addressed? THE DEFENDANT: My drug problem. THE COURT: How many different times were you on probation and/or jail since 1974? THE DEFENDANT: Since 1974? THE COURT: Yes. THE DEFENDANT: Probation? THE COURT: Either probation or you went to jail. THE DEFENDANT: Well, by then it wasn't really a problem. THE COURT: Well, when do you say your drug problem started? THE DEFENDANT: Three years ago. THE COURT: Okay. Anything else you want to say? THE DEFENDANT: Just that I feel kind of reluctant about pleading guilty to drug trafficking when I wasn't selling drugs. THE COURT: You felt reluctant about pleading to the drug trafficking? THE DEFENDANT: Right. THE COURT: You want to vacate your plea? MR. WILLIS: He said because he wasn't selling. THE COURT: I understand that. If you feel uncomfortable, I won't take your plea. THE DEFENDANT: I said I wasn't selling. THE COURT: Listen to me. If you're uncomfortable about whether you were selling, if you want, I'll vacate the plea and start over. -8- THE DEFENDANT: That's all right. THE COURT: Anything else you want to say? THE DEFENDANT: That's it. (Emphasis added.) Upon further questioning by the trial court, appellant stated the 148 packets of heroin confiscated from him when he was arrested were "for my own" drug addiction; however, despite the trial court's persistence, appellant refused to divulge any of his suppliers' names. Apparently aware of the trial court's mounting frustration with appellant's evasive responses, defense counsel attempted to dissuade the court from further inquiry. The trial court rejoined: THE COURT: This is a joke, James. This has been his fifteenth, sixteenth time in court. He's going to blame it on drug addiction, his own drug addiction. He tested positive for cocaine, he got a sweet deal * * * and he's going to jack around with me. * * * THE COURT: In light of the fact that you tested positive for cocaine, and that is a felony * * * because you (sic) got to possess it in order to have it in your system, I'm not going to give you three years. * * * (Emphasis added.) The trial court thereupon imposed a mandatory sentence of one and one-half years on count one and two years on count two, noting in its journal entry that appellant "tested positive for cocaine when he was referred to the probation department for pre-sentence investigation." The sentences were to run consecutively. -9- Appellant was also ordered to pay a fine of $10,000.00 and court costs. Appellant has filed a timely appeal from the foregoing order and presents the following as his sole assignment of error: DUE PROCESS REQUIRES THAT WHERE THERE IS A PLEA BARGAIN, TO WHICH THE JUDGE IS PRIVY AND FULLY ACCEPTS, THE ULTIMATE SENTENCE GIVEN MUST BE IN ACCORDANCE WITH THAT AGREEMENT. Appellant argues his constitutional right to due process of law was violated when the trial court imposed a harsher sentence than the one arranged by plea bargain. He contends that without "proof" by the State that appellant breached the agreement, the trial court should be held to "specific performance of the negotiated deal." In making this argument, however, appellant fails to consider either the record or previous decisions of this court; therefore, the authority he cites to support his position does not avail him. The transcript of the hearing clearly indicates that prior to accepting appellant's plea, the trial court carefully detailed all the negative information it possessed about appellant with regard to the case. From this recitation, it can be gleaned the trial court's acceptance of the plea was conditioned on the belief that it would receive no further negative information. Under these circumstances, the agreement was a qualified one; appellant's failure to tell the trial court at the time of his plea hearing about the drugs he had ingested thus served as a legitimate basis for the trial court's repudiation of it. See, e.g., United -10- States v. Blackwell (D.C. Cir., 1982), 649 F.2d 1325 at 1338; cf. United States v. Cruz (1st Cir., 1983), 709 F.2d 111. Since the record demonstrates appellant failed to divulge an important piece of information to the trial court, especially when viewed in light of the trial court's specific warning on the matter and considering appellant's later unrepentant attitude, the trial court was well within its prerogative to impose a different sentence than appellant had originally anticipated. State v. Darmour (1987), 38 Ohio App.3d 160; see, also, State v. Ridgeway (1990), 66 Ohio App.3d 270. Moreover, the trial court clearly gave appellant every opportunity to "back out of" the "deal." Prior to imposing sentence, the trial court stated appellant could withdraw his pleas; however, despite his awareness that the trial court considered the agreement "off," appellant chose not to. This court has stated: When a trial court forewarns a defendant that it will not consider itself bound by any sentencing agreement and defendant fails to change his plea, the court does not abuse its discretion when it imposes a sentence greater than that forming the inducement for the defendant to plead guilty. State v. Darmour, supra, at the headnote. (Emphasis added.) After a thorough review of the record, this court concludes the trial court "acted within the bounds of reasonable discretion and in the public interest" in imposing appellant's sentence. Akron v. Ragsdale (1978), 61 Ohio App.2d 107. Therefore, appellant neither is entitled to "specific performance" of the plea agreement -11- nor had his constitutional rights violated by the trial court's action. Lakewood v. Pfiefer (1992), 83 Ohio App.3d 47. Accordingly, appellant's sole assignment of error is overruled. Appellant's convictions and sentences are affirmed. -12- 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. O'DONNELL, J., CONCURS. KARPINSKI, J., DISSENTS. (See attached Dissenting Opinion.) JOSEPH J. NAHRA 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 journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. COURT OF APPEALS OF OHIO EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 67944 : STATE OF OHIO : : : Plaintiff-Appellee : : DISSENTING -vs- : : OPINION HORACE GRIGGS : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: FEBRUARY 8, 1996 KARPINSKI, J., DISSENTING: I respectfully dissent from the majority's opinion because I believe the plea agreement at issue in this case should be analyzed as a contract. This case involves a plea bargain agreement that the court failed to adhere to. In exchange for defendant's guilty plea, the parties agreed to a cumulative sentence of three years and a $5,000 fine. At the conclusion of the hearing, the court made three conditional statements: -2- In the light of the fact that the Court is granting your lawyer's request for a presentence report in the event you do something between now and August 2nd as far as I am concerned the agreement and sentence is off. * * * I suspect you are not going to do anything. *** If something happens between now and August 2nd that agreement is off ***. * * * If something does pop between now and August 2nd the agreement and sentence is gone. (Emphasis added.) The defendant was then taken directly to the probation department for a presentence investigation, which included a drug test. The drug test came back positive for cocaine. Because of the results of the drug test, the court increased the sentence to three and one-half years instead of three years. Plea bargains are contractual in nature and must be measured by contract law principles. United States v. Robison (C.A.6, 1991), 924 F.2d 612, 613; State v. Taylor (May 19, 1993), Lorain App. No. 92CA005469, unreported. If a contract is reasonably susceptible of more than one interpretation, it is ambiguous. Herbert S. Crowther, III v. Walter H. Holtkamp, III (May 12, 1994), Cuyahoga App. No. 65337, unreported at 7. The contract entered into between the state and defendant is susceptible to more than one interpretation because the court made three conditional statements which seem to have two different meanings. The first statement conditioned the final sentence upon whether defendant did something between the date of the plea bargain agreement and the date of sentencing. The second two -3- statements are ambiguous because they refer vaguely to an unspecified event. It is unclear what is meant by imprecise statements such as "if something should happen" or the more colloquial "if something does pop." The majority erred, I believe, in interpreting these vague conditions as not receiving "further negative information." In so doing, the majority construed the ambiguous condition against the defendant. Constitutional "concerns require holding the Government to a greater degree of responsibility than the defendant *** for imprecisions or ambiguities in plea agreements." United States v. Harvey (C.A.4, 1986), 79 F.2d 294, 300. The court will construe the ambiguous term against the government. Harvey, 303. Either by reading the sentences as a group or by selecting the most specific version, one may reasonably interpret the court's agreement to mean that, as long as the defendant did not do anything wrong from the time of the agreement until sentencing, he would receive the agreed upon sentence. There is no evidence in the record to indicate that defendant did anything wrong between the date of the plea bargain hearing and the date of sentencing. The specimen used for the drug test was taken immediately after the plea bargain hearing, so he had no opportunity to ingest the cocaine after the hearing. It must be inferred, therefore, that the test reflected his actions before the hearing and, therefore, before the time specified in the agreement had begun to run. -4- Pleas that bind only the defendant, or even the prosecutor and the defendant, but not the judge, would be unfair to the defendant and would dilute the incentive for defendant to plead at all. United States v. Blackwell (C.A.D.C., 1982), 649 F.2d 1325 at 1339. Because there is no evidence that the defendant failed to adhere to those terms of the plea bargain agreement that are clear, the court was bound by the agreement and the defendant should have .