COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 69822 : STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : and v. : : OPINION DEVON MOODY : : : Defendant-Appellant : : : DATE OF ANNOUNCEMENT OF DECISION: DECEMBER 12, 1996 CHARACTER OF PROCEEDING: Criminal appeal from Common Pleas Court Case No. CR-303298 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: __________________________ APPEARANCES: For Plaintiff-Appellee: For Defendant-Appellant: STEPHANIE TUBBS JONES, ESQ. PATRICIA J. SMITH, ESQ. Cuyahoga County Prosecutor 4403 St. Clair Avenue Cleveland, Ohio 44103-1125 JOSEPH V. HOFFER, ESQ. Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 - 2 - KARPINSKI, J.: Defendant-appellant, Devon Moody, appeals from the judgment of the trial court wherein defendant pled guilty to two counts of possession of cocaine. On appeal, defendant argues that the trial court erred by not enforcing an alleged plea agreement between defendant and the state. Because defendant did not establish the existence of a valid plea agreement, the trial court did not err in refusing to enforce the alleged plea agreement. The relevant facts follow. On December 30, 1993, defendant was indicted for drug trafficking, receiving stolen property, possession of criminal tools, and having a weapon under a disability. On October 6, 1995, defendant pled guilty to count six, drug trafficking, which was amended to include three times the bulk amount. Defendant also pled guilty to count seven, drug trafficking without the "furthermore" clause. His sentence was from seven to twenty- five years on count six, and one year on count seven, both sentences to run consecutively. At the hearing wherein defendant pled guilty, counsel for defendant argued that there had been a prior plea agreement between the state and defendant and that this prior agreement should be enforced. Defense counsel argued that the assistant county prosecutor assigned to the case represented that if defendant would cooperate with the federal authorities his case would "go away." Defendant interpreted these statements to mean - 3 - that if he cooperated with the government, the charges against him would be dropped. At the hearing, defense counsel was sworn and testified as follows: Judge, this case began in December of 1993, some almost two years ago. We were initially contacted by the Government to ask for my client's cooperation in another matter, a drug related matter. We discussed this thoroughly, and at that time inquiries were made of myself as to this case that is pending before the Court today, what would be the outcome of this case. And I was told by Debra Naiman regarding this case "that you don't have to worry about this case, this case will take care of itself." * * * I inquired of her as to what, in fact, she wanted us to do. And she said that the Federal Government, Mr. Bakeman specifically, wanted to have my defendant, my client cooperate with them regarding other members of --regarding other matters. I discussed this with my client and indicated to him that in order for him to get consideration from the prosecutor's office, namely a dismissal and/or probation out of this case that he would have to cooperate with the Federal Government. I specifically asked Debra Naiman with respect to this case, what about this case -- quote, end of quote. I said I do not, there will be no jail time in this case. She said, "No, there will be no jail time. This case will take care of itself. You don't have to worry about this case. All you have to do is have him satisfy the Feds," meaning the Federal Government. (Tr. 4-6.) Defense counsel then testified about the next contact with the prosecutor's office after defendant talked with the federal authorities. Having done that, and it took to about February of this year to accomplish that, we were going to enter into a plea bargain, plea at that time, and I was informed by Debra Naiman at that time that I would have to talk to one Winston Graves, with whom I had not spoken up to that point. All the talk was between the federal government, my client and Debra Naiman. - 4 - At that time, to make a long story short, Mr. Graves came up and he said, "Well, a fair plea would be six years." Six to fifteen I think he said. And I informed him of the entire situation, and he said "No, I'm not going to allow that. I'm going to offer him six to fifteen years." (Tr. 7-8.) Defense counsel then testified that he communicated with the first assistant prosecutor, who, both verbally and through a note, stated no probation would be offered and that the defendant could plead guilty and receive eight to fifteen years. The prosecutor responded that the phase "this case will take care of itself" does not imply that the charges would be dropped or that defendant would receive probation. (Tr. 16.) Furthermore, the prosecutor stated that defense counsel could not produce any written proof of the alleged promises. (Tr. 16.) Debra Naiman, the original prosecutor assigned to the case, stated that she did not have the authority to, nor did she in fact, promise probation or that charges would be dropped. The trial court denied defendant's request to enforce any alleged prior agreement and accepted defendant's plea of guilty to amended counts six and seven of the indictment. The court found that defendant had received some consideration for his cooperation and stated as follows: THE COURT: I see the indictment here in count six charges your client Devon Moody with possessing cocaine in amount equal to or exceeding one hundred times the bulk amount. That is being reduced by the prosecutor permitting him to enter a plea to drug trafficking where the amount is three times bulk. That seems to be something of a reduction, so, some consideration has been given here. (Tr. 20.) - 5 - Defendant then stated that he was pleading guilty under duress. The trial court next asked the requisite questions under Crim.R. 11 to which defendant stated he understood his right. Most importantly, defendant answered as follows: THE COURT: Well, let me put it this way. Has anyone made any threats or promises to you to get you to plead guilty to these two offenses today? MR. MOODY: No. (Tr. 30.) Defendant timely appealed raising three assignments of error, which state as follows: I. THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT REFUSED TO ENFORCE A VALID PLEA AGREEMENT WHEN THE ONLY TESTIMONY PRESENTED WAS IN SUPPORT OF THE PLEA AGREEMENT. II. THE TRIAL COURT ERRED WHEN IT DID NOT HOLD A FULL EVIDENTIARY HEARING BEFORE DETERMINING IF THERE WAS A VALID PLEA AGREEMENT. III. THE APPELLANT WAS DEPRIVED OF HIS LIBERTY WITHOUT DUE PROCESS OF LAW BY THE FAILURE OF THE TRIAL COURT TO ORDER THE STATE TO SPECIFICALLY PERFORM THE PLEA AGREEMENT, AND BY THE ACCEPTANCE OF A GUILTY PLEA WHICH WAS NOT MADE VOLUNTARILY. In these three assignments, defendant argues that the court erred by not enforcing the alleged plea agreement between the state and defendant. These assignments lack merit because defendant did not prove that a valid plea agreement existed. "A plea bargain itself is contractual in nature and subject to contract-law standards." Baker v. United States (C.A.6, 1986), 781 F.2d 85, 60, cert. denied, 479 U.S. 1017, 107 S.Ct. 667, 93 L.Ed.2d 719. A breached plea agreement may be remedied by specific performance. Santobello v. New York (1971), 404 U.S. 257. Whether there has been a breach of a valid plea agreement - 6 - rests within the sound discretion of the trial court. State v. Mathews (1982), 8 Ohio App.3d 145, 146. Defendant has not established, however, that a plea agreement existed. As the moving party, defendant had the burden to establish the existence of a valid plea agreement and that the prosecutor did not comply with its terms. State v. Pocius (Dec. 11, 1992), Lake App. No. 92-L-028, unreported. To support the alleged agreement, defendant presented evidence in the form of testimony from defense counsel, who alleged prosecutor Naiman had proposed that the case would "take care of itself if defendant cooperated with federal authorities." This evidence does not satisfy defendant's burden. Prosecutor Naiman expressly denied making any promises that the case would be dismissed or that defendant would receive probation in exchange for cooperation. Defense counsel could offer no documented proof to establish that the state and defendant had reached an agreement that defendant would receive probation or have the charges dropped in exchange for cooperating with the federal agents. Defense counsel's own testimony regarding this alleged proposal, moreover, confirms unintentionally that no plea agreement was reached. In the lower court, after defense counsel described how defendant cooperated with the federal government by providing it with requested information, defense counsel then stated, "[h]aving done that, and it took to about February of this year to accomplish that, we were going to enter into a plea bargain, plea at that time and I was informed by Debra Naiman at - 7 - that time that I would have to talk to Winston Graves, with whom I had not spoken up to that point." (Tr. 7, emphasis added.) This statement supports the state's contention that no plea agreement had been previously reached. The statement shows no plea had been reached when defense counsel cooperated with the federal government. Defense counsel was still pursuing plea bargaining even after defendant cooperated. Although defendant pursued this plea bargaining, the state consistently represented that any guilty plea would result in jail time. Accordingly, the trial court did not err in finding that no prior plea agreement existed. Finally, defendant argues that (1) there was not a full evidentiary hearing on this issue, and (2) defense counsel's testimony was the only sworn testimony on this issue. Neither argument is persuasive. On the contrary, the record shows there was a hearing in open court on this issue wherein defendant, defense counsel, the initial assistant prosecutor, and the current assistant prosecutor all testified regarding the alleged plea agreement. Additionally, although defense counsel was sworn in, at his request, the hearing itself was informal. Moreover, his account was sharply contradicted by two prosecutors, who, although not sworn in, are officers of the court. It was for the trial court to determine the weight to give sworn and unsworn testimony under these circumstances. As a fact finder, the court acted within its discretion when it found no plea agreement had been breached. - 8 - Judgment affirmed. - 9 - 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. BLACKMON, P.J., and DAVID T. MATIA, J., CONCUR. DIANE KARPINSKI JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement .