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Date: 09-15-2020

Case Style:

STATE OF OHIO -vs- KYLE J. DUNLAP

Case Number: 2020 CA 00029

Judge: John W. Wise,

Court: COURT OF APPEALS LICKING COUNTY, OHIO FIFTH APPELLATE DISTRICT

Plaintiff's Attorney: WILLIAM C. HAYES
PAULA M. SAWYERS

Defendant's Attorney:


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Description: Newark, OH - Illegal Assembly or Possession of Chemicals for the Manufacture of Drugs
Illegal Manufacture of Drugs; Illegal Cultivation of Marihuana











On October 4, 2018, Appellant was indicted with one count of Illegal
Assembly or Possession of Chemicals for the Manufacture of Drugs, in violation of R.C.
2925.041, a felony in the second degree, and two counts of Illegal Manufacture of
Drugs; Illegal Cultivation of Marihuana, in violation of R.C. 2925.04, both felonies of the
second degree.
{¶3} On April 18, 2019, the State of Ohio and the Appellant reached a
negotiated plea agreement. In exchange for the Appellant pleading guilty to all three
charges of the indictment, the State would defer at sentencing and not argue that the
applicable presumption in favor of a prison term should apply.
{¶4} On August 13, 2019, Appellant entered a plea of guilty to Counts One,
Two, and Three to the indictment. After accepting Appellant’s guilty plea, the trial court
proceeded to sentencing. Trial counsel for Appellant referenced Appellant’s efforts to
assist investigators by proffering information to the Central Ohio Drug Enforcement
Task Force (“CODE”) in hopes to mitigate the sentence.
{¶5} When asked for a recommendation, the prosecuting attorney stated he
didn’t “believe that there was any cooperation with the Central Ohio Drug Enforcement
Task Force. I don’t believe that the individual that he mentions being in the county jail
had anything to do with anything that was provided by this Defendant.”
Licking County, Case No. 2020 CA 00029 3
{¶6} The trial court then sentenced Appellant to an eight-year mandatory prison
term.
{¶7} Thereafter, Appellant filed Appellant’s Motion to Withdraw Plea. In an
Affidavit to support the motion, Appellant asserts that his trial counsel assured him it
was overwhelmingly likely that he would be placed on probation if he entered a plea of
guilty to the original indictment. Counsel predicted there was a 99% likelihood that
Appellant would be placed on probation and that any period of incarceration would not
exceed sixty days of local jail time. Affidavit further asserts trial counsel told Appellant
he had spoken to the judge the previous day, who had remarked that trial counsel must
have been pleased that the case was resolving in the manner he hoped it would.
{¶8} The trial court denied Appellant’s Motion to Withdraw Plea, finding that the
Appellee’s statements at sentencing were made to correct the record, and there was no
breach of the parties’ plea agreement. The court also noted that the comments did not
affect the sentence imposed. The trial court found the Appellant failed to demonstrate
that a plea withdrawal was necessary to prevent manifest injustice, and that Appellant
failed to provide sufficient evidentiary support to justify conducting an evidentiary
hearing.
ASSIGNMENT OF ERROR
{¶9} On March 19, 2020, Appellant filed a notice of appeal. He herein raises
the following three Assignments of Error:
{¶10} “I. THE TRIAL COURT ERRED IN FINDING THAT THERE WAS NO
BREACH OF THE PLEA AGREEMENT BETWEEN THE PARTIES AND THAT
APPELLANT WAS NOT ENTITLED TO SPECIFIC PERFORMANCE OF THE
Licking County, Case No. 2020 CA 00029 4
PARTIES’ AGREEMENT OR WITHDRAWAL OF HIS GUILTY PLEA, IN VIOLATION
OF HIS RIGHTS GUARANTEED BY THE OHIO AND UNITED STATES
CONSTITUTIONS.
{¶11} “II. THE TRIAL COURT ABUSED ITS DISCRETION AND ERRED IN
DENYING APPELLANT’S MOTION TO WITHDRAW HIS GUILTY PLEA WHERE SAID
PLEA WAS ENTERED INVOLUNTARILY AND IN REASONABLE RELIANCE ON HIS
FORMER ATTORNEY’S ASSURANCES THAT A GUILTY PLEA WOULD RESULT IN
A SENTENCE MORE LENIENT THAT THE SENTENCE IMPOSED.
{¶12} “III. THE TRIAL COURT ERRED IN DENYING APPELLANT’S REQUEST
FOR AN EVIDENTIARY HEARING ON HIS MOTION TO WITHDRAW HIS GUILTY
PLEA, IN VIOLATION OF HIS RIGHTS AS GUARANTEED BY THE OHIO AND
UNITED STATES CONSTITUTIONS.”
I.
{¶13} In Appellant’s First Assignment of Error, Appellant argues that Appellee’s
comments during sentencing breached his plea agreement with the State, and the trial
court must either grant the withdrawal of the plea or require specific performance of the
agreement and be resentenced by a different judge. We disagree.
{¶14} Plea agreements are subject to contract-law principles. State v. Felder, 5th
Dist. Muskingum No. CT2017-0037, 2018-Ohio-826, ¶16. They should be construed
strictly against the government. State v. Walsh, 5th Dist. Licking No. 14-CA-110, 2015-
Ohio-4135, ¶17. The prosecutor must fulfill any promise made in a plea agreement
which induced the defendant to plea. Id. To show the plea agreement was broken, the
defendant must show the prosecutor did not fulfill the promise. Id. A prosecutor’s failure
Licking County, Case No. 2020 CA 00029 5
to fulfill the terms of the plea agreement may “render a defendant’s plea involuntary and
undermine the constitutionality of a conviction based upon that plea.” Id.
{¶15} An agreement for the prosecution to defer on sentencing does not
preclude the government’s participation at the sentencing hearing. State v. Shrider, 5th
Dist. Muskingum No. CT2017-0089, 2018-Ohio-3539, ¶21. Such agreement only
restricts the government’s attempts to influence the sentence by presenting the court
with conjecture, opinion, or disparaging information already in the court’s possession.
Id. The government’s disclosure of relevant factual information or efforts to correct
misstatements do not rise to the level of taking a position on the sentence and does not
violate the plea agreement. Id.
{¶16} In State v. Shrider, the State agreed to make no recommendation as to
sentencing. Id. at ¶22. At the sentencing hearing, the State disclosed to the court that
the defendant failed a drug screen while on bond. Id. The State also referred the letters
from the victim’s family to the trial court. Id. The trial court in Shrider held this level of
participation by the government in the sentencing hearing is not tantamount to taking a
position at sentencing. Id. at ¶24.
{¶17} In this case, the State agreed to defer at sentencing and refrain from
arguing that the presumption in favor of a prison term should apply. At the sentencing
hearing, the trial court asked if the prosecution wished to make a sentencing
recommendation. Appellee stated he had “one correction of record.” T. 26. Appellee
continued stating, “I don’t believe that there was any cooperation with the Central Ohio
Drug Enforcement Task Force. I don’t believe that the individual that he mentions being
in the county jail had anything to do with anything that was provided by the Defendant.”
Licking County, Case No. 2020 CA 00029 6

Outcome: We find Appellee was correcting the record regarding the State’s
understanding of the level of cooperation Appellant provided to CODE as is permissible under Shrider.

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