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STATE OF OHIO v. JAMES PEDICINI III
Date: 07-15-2020
Case Number: 19 MA 0070
Judge: David A. D'Apolito
Court: IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MAHONING COUNTY
Plaintiff's Attorney: Atty. Paul J. Gains, Mahoning County Prosecutor, and Atty. Ralph M. Rivera, Assistant Prosecuting Attorney
Defendant's Attorney:
Need help finding a lawyer for representation for appealing that the state breached his plea agreement when it recommended a greater sentence than it had promised to recommend in the plea agreement in Ohio.
Call 918-582-6422. It's Free
Description:
{¶3} On May 11, 2017, Appellant was indicted for five counts of breaking and
entering, in violation of R.C. 2911.13(A)(C), felonies of the fifth degree, and one count of
theft, in violation of R.C. 2913.02(A)(1)(B), a felony of the fifth degree. Case No. 2017
CR 00329. Appellant was released on bond, but the conditions of Appellant’s bond are
not in the record.
{¶4} Roughly six months later, on November 9, 2017, Appellant was indicted for
six counts of receiving stolen property, in violation of 2913.51(A)(C), felonies of the fourth
degree, one count of receiving stolen property, in violation of 2913.51(A)(C), a felony of
the fifth degree; one count of possession of criminal tools, in violation of 2923.24(A)(C),
a felony of the fifth degree; three counts of breaking and entering, in violation of
2911.13(A)(C), felonies of the fifth degree; and one count of engaging in pattern of corrupt
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Case No. 19 MA 0070
activity, in violation of ORC 2923.32(A)(1)(B)(1), a felony of the second degree. Case
No. 17 CR 1217. Appellant was again released on bond.
{¶5} On April 18, 2018, Appellant was placed on probation by the Trumbull
County Court of Common Pleas. Although the crime(s) committed in Trumbull County
are not described in the record, they are presumably related to one or more of the alleged
thefts committed by Appellant and his codefendants that resulted in the convictions in this
case.
{¶6} At a plea hearing for both cases on January 14, 2019, Appellant executed
a written plea agreement, in which he agreed to enter guilty pleas to five counts of
receiving stolen property and three counts of breaking and entering, all fourth-degree
felonies, in Case No. 17 CR 1217, in exchange for the state’s recommendation of a sixyear sentence. Appellant reserved the right to ask the trial court to impose a lesser
sentence. The State moved to dismiss the remaining charges in the indictment. The
written plea agreement reads, in pertinent part:
THE STATE OF OHIO, AS PART OF THIS CRIM. R. 11(F) AGREEMENT,
HAS AGREED TO RECOMMEND THE FOLLOWING:
(handwritten) State to recommend 6 years in the State Penitentiary,
Defendant to ask for less. Defendant to forfeit all property being held by the
appropriate police departments unless proof of ownership is established.
{¶7} Appellant also pled guilty to three counts of breaking and entering, all fifthdegree felonies, in Case No. 17 CR 329, in exchange for the state’s recommendation of
a concurrent six-year sentence. Appellant reserved the right to seek a lesser sentence.
The written plea agreement reads, in pertinent part:
THE STATE OF OHIO, AS PART OF THIS CRIM. R. 11(F) AGREEMENT,
HAS AGREEED TO RECOMMNED THE FOLLOWING:
(handwritten) State to rec. 6 years to be run concurrent w/ case no.
17CR1217B. Defendant to ask for less. Defendant to forfeit all property
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Case No. 19 MA 0070
being held by the appropriate police departments unless proof of ownership
is established.
{¶8} At the plea hearing, the state summarized the terms of the plea agreement
as follows:
In exchange for the defendant withdrawing his previously entered plea of
not guilty on both aforementioned cases – in exchange for defendant
pleading guilty on Case No. 17 CR 329 to three counts of breaking and
entering, felonies of the fifth degree, and also pleading guilty on Case No.
17 CR 1217B to five counts of receiving stolen property, Counts One
through Five, felonies on the fourth degree, and three counts, Counts Nine
through Eleven, of breaking and entering, felonies of the fifth degree, in
exchange for those guilty pleas, the state of Ohio would recommend six
years to this Honorable Court at a later sentencing date. At that date the
defense will argue for something less.
(1/14/19 Plea Hrg., p. 2-3.) The State moved to dismiss the remaining charges in
the indictment.
{¶9} The state provided a detailed account of Appellant’s crimes at the plea
hearing. Appellant and three co-defendants, including his father, committed a battery of
thefts from work project sites and small businesses in both Mahoning County and
Trumbull County. At the conclusion of the plea hearing, the trial court dismissed the
remaining counts and ordered a presentence investigation report (“PSI”) to be prepared
by Community Corrections Association (“CCA”) for both cases. The sentencing hearing
was scheduled for February 26, 2019.
{¶10} The trial court provided the following admonition at the conclusion of the
plea hearing:
When we come back here at the time of sentence, the state of Ohio as you
have heard is going to recommend six years in the state penitentiary. That
is not an agreed sentence. I understand that. And as [defense counsel]
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Case No. 19 MA 0070
has indicated, he will obviously have an opportunity to present mitigation so
I could determine what the appropriate sentence will be. I don’t know
enough about you or this case to tell you what I’m going to do with two
exceptions. The first is sometimes somebody enters a plea of guilty.
There’s a recommendation from the state, and a court at sentence, a judge,
after hearing both sides might impose something greater than the
recommended sentence. Based on your acceptance of responsibility, as
long as you stay out of trouble, keep in touch with [defense counsel] get
up to CCA so they can prepare the [PSI], and appear back here on the date
and time that will be set for sentencing, I will not impose more than six years.
I’m not telling you I’m imposing six. You’re just capping your exposure.
(Emphasis added)(Plea Hrg., p. 14-15.)
{¶11} On February 22, 2019, Appellant was arrested and charged with Receiving
Stolen Property in Struthers Municipal Court. The matter was set for a preliminary hearing
on March 1, 2019. The same day, the state filed a motion to revoke Appellant’s bond,
which was sustained by the trial court. The state attached a copy of the Ohio Uniform
Incident Report from the Struthers case to the motion.
{¶12} According to the report, a Dodge Ram was stolen from a repair shop in
Warren, Ohio. Appellant had previously asked the owner of the stolen truck where it was
being serviced, and joked that the truck would be easy to steal after the owner divulged
the location of the repair shop. The victim told law enforcement officers that Appellant
had offered five different accounts of his whereabouts on the evening that the truck was
stolen.
{¶13} The victim further reported that his rims were on a black Dodge Ram parked
outside the home of one of Appellant’s associates, Brian Kelly, Jr. The victim also
believed that his engine had been installed in a red Dodge located at the same location.
Appellant had recently purchased the red Dodge, which had an inoperable motor at the
time of sale.
{¶14} During the police investigation, Brian Kelly Sr. consented to a search of his
property, and the victim identified components of his engine in the Red Dodge. The repair
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Case No. 19 MA 0070
shop owner identified a line bolt that he had installed in the victim’s motor. A Vehicle
Identification Number investigation revealed that the plates on the Red Dodge were
registered to Appellant, but the truck had been transferred to Kelly Jr.
{¶15} After he was arrested, Appellant declined to speak to the police, stating that
he “made a deal with the prosecutor downtown” and was “doing six years anyway.” Kelly
Jr. told the police that he and Appellant had purchased a motor for the Red Dodge, but
Appellant installed a different one. Appellant explained to Kelly that motor Appellant
installed was “better than the motor the[y] purchased.”
{¶16} At the sentencing hearing on March 13, 2019, the prosecutor summarized
the events leading to Appellant’s arrest in Struthers and then stated that “[w]hat
[Appellant] doesn’t know is the State of Ohio could revoke their deal. Which the State of
Ohio is going to do here today.” (2/26/19 Sent. Hrg., p. 20-21.) The prosecutor continued
that “[t]here’s no deal anymore because [Appellant] violated the terms of that deal.” (Id.,
p. 21.) Based on the charges in Struthers Municipal Court, and Appellant’s failure to
accept responsibility in the PSI, the state recommended a twelve-year sentence. In lieu
of the state’s recommendation, the trial court continued the hearing to allow defense
counsel additional time to consider and respond to the state’s change of position.
{¶17} The sentencing hearing resumed on March 13, 2019. Defense counsel
argued that Appellant was innocent until proven guilty of the municipal court charge, and,
further, he opined that the municipal court case was “highly winnable.” (3/13/19 Sent.
Hrg., p. 6.)
{¶18} The record reflects that Appellant and his counsel were aware that
Appellant could withdraw his plea as a remedy for the state’s alleged breach, but
Appellant expressly waived that right. Defense counsel stated at the hearing:
I’ll tell you how much [Appellant] is willing to stand forward, Your honor. I
believe that at this point in time – the conversations were had with my client
[sic], at this point in time I could have come before you and I could have
said, you know, pursuant to Criminal Rule [32.1], Your Honor, we’re
withdrawing our pleas based upon the breach of the plea agreement. Let’s
go back and let’s start at square one; let’s go to trial on this thing. But my
client stands ready to be punished. He does not want me to withdraw those
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Case No. 19 MA 0070
pleas. He has said to me in regards to this situation, let’s do what we have
to do. Let’s do it. Let’s get it done. Let me face the consequences in
regards to the whole matter.
(Id., p. 10.)
{¶19} The PSI recommended a period of local incarceration, followed by a period
of community control. Defense counsel argued that Appellant had fulfilled the conditions
of his probation in Trumbull County from April of 2018, when it was imposed, until his
arrest in February of 2019. Appellant had been gainfully employed for a substantial period
of that time, and had passed a series of drug tests. Defense counsel argued again that
the pending charge was merely an allegation, and, in the event that Appellant was
convicted, he would be subject to punishment in the municipal court case and the
Trumbull County case, because the conviction would constitute a parole violation.
Defense counsel conceded that, if Appellant had been convicted of the municipal court
charge, he would not be arguing for a lesser sentence. Finally, defense counsel asserted
that Appellant had “demonstrated that he’s capable of successfully being on probation.”
(Id., p. 10.)
{¶20} Before imposing sentence, the trial court observed “for the record that that
new charge certainly enabled the state of Ohio to file a motion to revoke bond, which this
court did.” (Id., p. 17.) The trial court continued:
The second question, of course, becomes whether or not that new charge
is a sufficient reason, a sufficient basis, for the state to ask this court to
deviate from the Rule 11 agreement previously entered and subsequently
requesting that this court impose a sentence double that which was
originally asked for. On the one hand, I think based upon the investigation
from the state and the new charge, that if I were a prosecutor, I would
certainly ask to deviate from the Rule 11 agreement, I’m not suggesting I’m
going to follow the recommendation. I’m simply indicating that I think there
is a sufficient basis to do that.
(Id., p. 17-18.)
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Case No. 19 MA 0070
{¶21} The trial court imposed an aggregate sentence of six years – one year for
each of the eleven convictions, with the sentences for the three convictions from the
original indictment to be served consecutively, and the sentences for the first three
convictions in the second indictment to be served consecutively to one another and the
sentences imposed for convictions in the original indictment. The remaining five one-year
sentences were to be served concurrently with one another and the six consecutive
sentences.
{¶22} The trial court predicated the sentence on the harm caused to the local work
projects and small businesses, which the trial court opined were particularly sensitive to
problems created by missing equipment and stolen merchandise. The trial court rejected
Appellants assertions that he was “young” and “dumb” based on the complexity of the
series of thefts. Finally, the trial court opined that Appellant failed to accept responsibility
for the crimes based on his statements in the PSI, wherein Appellant blamed a codefendant for Appellant’s conduct.
{¶23} Citing the presumption of innocence, the trial court expressly declined to
increase the sentence based on the pending municipal court charge, but reiterated that
Appellant’s bond violation relieved the state from its obligations under the plea
agreements. The municipal court charge was ultimately dismissed. This timely appeal
followed.
ASSIGNMENT OF ERROR
BECAUSE THE STATE BREACHED THE PLEA AGREEMENT, THE
TRIAL COURT SHOULD HAVE ORDERED SPECIFIC PERFORMANCE
OF THE PLEA AGREEMENT AND ASSIGNED THE DEFENDANTAPPELLANT’S SENTENCING TO A DIFFERENT JUDGE OR ALLOW
[SIC] THE DEFENDANT TO WITHDRAW HIS PLEA.
{¶24} Appellant expressly waived his right to withdraw his guilty plea at the
sentencing hearing. Furthermore, Appellant did not object to the imposition of the six-year
sentence. Because Appellant did not object to the State’s recommendation during
sentencing, he forfeited the alleged error and we review Appellant’s convictions and
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Case No. 19 MA 0070
sentence for plain error only. State v. Hansen, 7th Dist. Mahoning No. 11 MA 63, 2012-
Ohio-4574, ¶ 15, citing Puckett v. U.S., 556 U.S. 129, 173 L.Ed.2d 266, 129 S.Ct. 1423
(2009).
{¶25} Reversal based on the plain error doctrine requires an error that is obvious
and affected a defendant’s substantial rights under exceptional circumstances. Crim.R.
52(B); State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). It cannot be utilized
unless the outcome clearly would have been different but for the error. State v. Waddell,
75 Ohio St.3d 163, 166, 661 N.E.2d 1043 (1996). Where there is an error that is obvious
from the record and outcome determinative, we have the discretion to remedy the error if
it seriously affects the fairness, integrity or public reputation of judicial proceedings.
Puckett. at 1425.
{¶26} “[P]lain error is a discretionary doctrine which may, but need not, be
employed if warranted.” State v. Donald, 7th Dist. Mahoning No. 08 MA 154, 2009-Ohio4638, at ¶ 68. The Ohio Supreme Court has acknowledged the discretionary aspect of
Crim.R. 52(B) by admonishing courts to notice plain error “with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v.
Long, 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph three of the syllabus.
{¶27} Turning to Appellant’s substantive argument, it is well accepted that “[p]lea
agreements are an essential and necessary part of the administration of justice.” State v.
Carpenter (1993), 68 Ohio St.3d 59, 61, 623 N.E.2d 66 (1993), citing Santobello v. New
York, 404 U.S. 257, 261, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). The United States
Supreme Court has observed that:
[d]isposition of charges after plea discussions is not only an essential part
of the process but a highly desirable part for many reasons. It leads to
prompt and largely final disposition of most criminal cases; it avoids much
of the corrosive impact of enforced idleness during pre-trial confinement for
those who are denied release pending trial; it protects the public from those
accused persons who are prone to continue criminal conduct even while on
pretrial release; and, by shortening the time between charge and
disposition, it enhances whatever may be the rehabilitative prospects of the
guilty when they are ultimately imprisoned.
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Case No. 19 MA 0070
Santobello, 404 U.S. at 261, 92 S.Ct. 495, 30 L.Ed.2d 427.
{¶28} At its core, a plea agreement is contractual in nature and subject to contractlaw standards. State v. Vari, 7th Dist. Mahoning No. 07-MA-142, 2010-Ohio-1300, ¶ 27.
We have recognized that plea agreements should be construed strictly against the
government. State v. Namack, 7th Dist. Belmont No. 01 BA 46, 2002-Ohio-5187, ¶ 25.
{¶29} Appellant cites Santobello, supra, for the general rule that, where a
prosecutor breaches a plea agreement, two remedies exists: The defendant may
withdraw his plea, or he may demand specific performance, which requires the trial judge
to transfer the matter to a different judge for sentencing. In Santobello, the original
prosecutor promised to stand silent at sentencing in exchange for the defendant’s guilty
plea. An inordinate amount of time passed between the plea hearing and sentencing
hearing, and, as a result, a different prosecutor appeared at sentencing and
recommended the statutory maximum sentence of eight years. Although the trial judge
represented that he did not consider the prosecutor’s recommendation in imposing
sentence, the United States Supreme Court held:
This phase of the process of criminal justice, and the adjudicative element
inherent in accepting a plea of guilty, must be attended by safeguards to
insure [sic] the defendant what is reasonably due in the circumstances.
Those circumstances will vary, but a constant factor is that when a plea
rests in any significant degree on a promise or agreement of the prosecutor,
so that it can be said to be part of the inducement or consideration, such
promise must be fulfilled.
Santobello, 404 U.S. at 262, 92 S.Ct. 495, 30 L.Ed.2d 427.
{¶30} In 2009, the United States Supreme Court addressed the application of the
Santobello rule on plain error review in Puckett, supra. The Puckett Court held that a
defendant whose plea agreement is broken by the state will not always be able to show
prejudice, either because he obtained the benefits contemplated by the deal anyway (the
sentence that the prosecutor promised to request) or because he likely would not have
obtained those benefits in any event. Puckett at 1433.
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Case No. 19 MA 0070
{¶31} Last year, we held that a defendant's failure to appear for sentencing
relieved the state of its obligations under a plea agreement in State v. Turner, 7th Dist.
Mahoning No. 17 MA 0155, 2019-Ohio-934. The state argued that Turner’s failure to
appear at the sentencing hearing was a violation of an implied term of the plea agreement.
Based on repeated references in the record that required Turner’s timely appearance at
court hearings, we concluded that Turner’s appearance at sentencing was “an express
contractual term.“ Id. at ¶ 45.
{¶32} In State v. Bembry, 7th Dist. Columbiana No. 13 CO 33, 2014-Ohio-5498,
we recognized that “when a defendant enters a guilty plea in exchange for the
prosecutor’s promise to recommend a certain sentence, there is an implied condition that
the circumstances surrounding the bargain will remain substantially the same.” However,
“a substantial change in the circumstances is sufficient to relieve the state of its
obligation.” Id. at ¶ 22. We held that Bembrey’s violation of the conditions of his bond
relieved the state of its obligation to recommend the sentence described in the plea
agreement.
{¶33} The facts in Bembry are as follows. After Bembry entered guilty pleas to two
counts of burglary and one count of attempted safe cracking, he was released on his own
recognizance subject to certain pre-trial release conditions. The plea deal was subject to
a cooperation agreement under which Bembry would provide information on other cases.
Within a day or two of his release, Bembry was arrested and jailed in Columbiana County
for theft/burglary following a reported safe burglary.
{¶34} We first opined that Bembry was unable to fulfill his obligation under the
cooperation agreement due to the immediate revocation of his bond. However, we further
found that Bembry’s arrest constituted a violation of his bond conditions and relieved the
state of its obligation to recommend 3 years under the plea agreement. Bembry had
agreed to cooperate with the conditions of his bail, which required him to “obey all rules
and regulations of the CCAPD.” Bembry, supra, at ¶ 25-27.
{¶35} At the plea hearing in this case, Appellant was put on notice that the state’s
sentencing recommendation and the imposition of that sentence were conditioned on
certain post-plea conduct, specifically Appellant's acceptance of responsibility, “stay[ing]
out of trouble,” maintaining contact with defense counsel, cooperating with the CCA, and
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Case No. 19 MA 0070
appearing for sentencing. Although Appellant’s bond conditions are not in the record, his
bond was revoked immediately after the municipal court charge was filed. Because
Appellant was notified at the plea hearing that that he must avoid any conduct that may
result in new charges, and the municipal charge constitutes a bond violation, we find that
Appellant breached the plea agreement and the state was relived of its obligation to
recommend a six-year sentence.
{¶36} Even assuming that the municipal charge did not constitute a breach of the
plea agreement, we find that Appellant has failed to demonstrate that he suffered any
prejudice. Appellant received the sentence that the state was obligated to recommend
by the plea agreement. Applying plain error, the United States Supreme Court in Puckett,
supra, opined that prejudice cannot be shown where a defendant obtained the benefits
contemplated by the deal, that is, the sentence that the prosecutor agreed to recommend.
Puckett, supra, at 1433. Accordingly, we find, in the alternative, that Appellant cannot
demonstrate prejudice resulting from the state’s alleged breach.
{¶3} On May 11, 2017, Appellant was indicted for five counts of breaking and
entering, in violation of R.C. 2911.13(A)(C), felonies of the fifth degree, and one count of
theft, in violation of R.C. 2913.02(A)(1)(B), a felony of the fifth degree. Case No. 2017
CR 00329. Appellant was released on bond, but the conditions of Appellant’s bond are
not in the record.
{¶4} Roughly six months later, on November 9, 2017, Appellant was indicted for
six counts of receiving stolen property, in violation of 2913.51(A)(C), felonies of the fourth
degree, one count of receiving stolen property, in violation of 2913.51(A)(C), a felony of
the fifth degree; one count of possession of criminal tools, in violation of 2923.24(A)(C),
a felony of the fifth degree; three counts of breaking and entering, in violation of
2911.13(A)(C), felonies of the fifth degree; and one count of engaging in pattern of corrupt
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Case No. 19 MA 0070
activity, in violation of ORC 2923.32(A)(1)(B)(1), a felony of the second degree. Case
No. 17 CR 1217. Appellant was again released on bond.
{¶5} On April 18, 2018, Appellant was placed on probation by the Trumbull
County Court of Common Pleas. Although the crime(s) committed in Trumbull County
are not described in the record, they are presumably related to one or more of the alleged
thefts committed by Appellant and his codefendants that resulted in the convictions in this
case.
{¶6} At a plea hearing for both cases on January 14, 2019, Appellant executed
a written plea agreement, in which he agreed to enter guilty pleas to five counts of
receiving stolen property and three counts of breaking and entering, all fourth-degree
felonies, in Case No. 17 CR 1217, in exchange for the state’s recommendation of a sixyear sentence. Appellant reserved the right to ask the trial court to impose a lesser
sentence. The State moved to dismiss the remaining charges in the indictment. The
written plea agreement reads, in pertinent part:
THE STATE OF OHIO, AS PART OF THIS CRIM. R. 11(F) AGREEMENT,
HAS AGREED TO RECOMMEND THE FOLLOWING:
(handwritten) State to recommend 6 years in the State Penitentiary,
Defendant to ask for less. Defendant to forfeit all property being held by the
appropriate police departments unless proof of ownership is established.
{¶7} Appellant also pled guilty to three counts of breaking and entering, all fifthdegree felonies, in Case No. 17 CR 329, in exchange for the state’s recommendation of
a concurrent six-year sentence. Appellant reserved the right to seek a lesser sentence.
The written plea agreement reads, in pertinent part:
THE STATE OF OHIO, AS PART OF THIS CRIM. R. 11(F) AGREEMENT,
HAS AGREEED TO RECOMMNED THE FOLLOWING:
(handwritten) State to rec. 6 years to be run concurrent w/ case no.
17CR1217B. Defendant to ask for less. Defendant to forfeit all property
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Case No. 19 MA 0070
being held by the appropriate police departments unless proof of ownership
is established.
{¶8} At the plea hearing, the state summarized the terms of the plea agreement
as follows:
In exchange for the defendant withdrawing his previously entered plea of
not guilty on both aforementioned cases – in exchange for defendant
pleading guilty on Case No. 17 CR 329 to three counts of breaking and
entering, felonies of the fifth degree, and also pleading guilty on Case No.
17 CR 1217B to five counts of receiving stolen property, Counts One
through Five, felonies on the fourth degree, and three counts, Counts Nine
through Eleven, of breaking and entering, felonies of the fifth degree, in
exchange for those guilty pleas, the state of Ohio would recommend six
years to this Honorable Court at a later sentencing date. At that date the
defense will argue for something less.
(1/14/19 Plea Hrg., p. 2-3.) The State moved to dismiss the remaining charges in
the indictment.
{¶9} The state provided a detailed account of Appellant’s crimes at the plea
hearing. Appellant and three co-defendants, including his father, committed a battery of
thefts from work project sites and small businesses in both Mahoning County and
Trumbull County. At the conclusion of the plea hearing, the trial court dismissed the
remaining counts and ordered a presentence investigation report (“PSI”) to be prepared
by Community Corrections Association (“CCA”) for both cases. The sentencing hearing
was scheduled for February 26, 2019.
{¶10} The trial court provided the following admonition at the conclusion of the
plea hearing:
When we come back here at the time of sentence, the state of Ohio as you
have heard is going to recommend six years in the state penitentiary. That
is not an agreed sentence. I understand that. And as [defense counsel]
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Case No. 19 MA 0070
has indicated, he will obviously have an opportunity to present mitigation so
I could determine what the appropriate sentence will be. I don’t know
enough about you or this case to tell you what I’m going to do with two
exceptions. The first is sometimes somebody enters a plea of guilty.
There’s a recommendation from the state, and a court at sentence, a judge,
after hearing both sides might impose something greater than the
recommended sentence. Based on your acceptance of responsibility, as
long as you stay out of trouble, keep in touch with [defense counsel] get
up to CCA so they can prepare the [PSI], and appear back here on the date
and time that will be set for sentencing, I will not impose more than six years.
I’m not telling you I’m imposing six. You’re just capping your exposure.
(Emphasis added)(Plea Hrg., p. 14-15.)
{¶11} On February 22, 2019, Appellant was arrested and charged with Receiving
Stolen Property in Struthers Municipal Court. The matter was set for a preliminary hearing
on March 1, 2019. The same day, the state filed a motion to revoke Appellant’s bond,
which was sustained by the trial court. The state attached a copy of the Ohio Uniform
Incident Report from the Struthers case to the motion.
{¶12} According to the report, a Dodge Ram was stolen from a repair shop in
Warren, Ohio. Appellant had previously asked the owner of the stolen truck where it was
being serviced, and joked that the truck would be easy to steal after the owner divulged
the location of the repair shop. The victim told law enforcement officers that Appellant
had offered five different accounts of his whereabouts on the evening that the truck was
stolen.
{¶13} The victim further reported that his rims were on a black Dodge Ram parked
outside the home of one of Appellant’s associates, Brian Kelly, Jr. The victim also
believed that his engine had been installed in a red Dodge located at the same location.
Appellant had recently purchased the red Dodge, which had an inoperable motor at the
time of sale.
{¶14} During the police investigation, Brian Kelly Sr. consented to a search of his
property, and the victim identified components of his engine in the Red Dodge. The repair
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Case No. 19 MA 0070
shop owner identified a line bolt that he had installed in the victim’s motor. A Vehicle
Identification Number investigation revealed that the plates on the Red Dodge were
registered to Appellant, but the truck had been transferred to Kelly Jr.
{¶15} After he was arrested, Appellant declined to speak to the police, stating that
he “made a deal with the prosecutor downtown” and was “doing six years anyway.” Kelly
Jr. told the police that he and Appellant had purchased a motor for the Red Dodge, but
Appellant installed a different one. Appellant explained to Kelly that motor Appellant
installed was “better than the motor the[y] purchased.”
{¶16} At the sentencing hearing on March 13, 2019, the prosecutor summarized
the events leading to Appellant’s arrest in Struthers and then stated that “[w]hat
[Appellant] doesn’t know is the State of Ohio could revoke their deal. Which the State of
Ohio is going to do here today.” (2/26/19 Sent. Hrg., p. 20-21.) The prosecutor continued
that “[t]here’s no deal anymore because [Appellant] violated the terms of that deal.” (Id.,
p. 21.) Based on the charges in Struthers Municipal Court, and Appellant’s failure to
accept responsibility in the PSI, the state recommended a twelve-year sentence. In lieu
of the state’s recommendation, the trial court continued the hearing to allow defense
counsel additional time to consider and respond to the state’s change of position.
{¶17} The sentencing hearing resumed on March 13, 2019. Defense counsel
argued that Appellant was innocent until proven guilty of the municipal court charge, and,
further, he opined that the municipal court case was “highly winnable.” (3/13/19 Sent.
Hrg., p. 6.)
{¶18} The record reflects that Appellant and his counsel were aware that
Appellant could withdraw his plea as a remedy for the state’s alleged breach, but
Appellant expressly waived that right. Defense counsel stated at the hearing:
I’ll tell you how much [Appellant] is willing to stand forward, Your honor. I
believe that at this point in time – the conversations were had with my client
[sic], at this point in time I could have come before you and I could have
said, you know, pursuant to Criminal Rule [32.1], Your Honor, we’re
withdrawing our pleas based upon the breach of the plea agreement. Let’s
go back and let’s start at square one; let’s go to trial on this thing. But my
client stands ready to be punished. He does not want me to withdraw those
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Case No. 19 MA 0070
pleas. He has said to me in regards to this situation, let’s do what we have
to do. Let’s do it. Let’s get it done. Let me face the consequences in
regards to the whole matter.
(Id., p. 10.)
{¶19} The PSI recommended a period of local incarceration, followed by a period
of community control. Defense counsel argued that Appellant had fulfilled the conditions
of his probation in Trumbull County from April of 2018, when it was imposed, until his
arrest in February of 2019. Appellant had been gainfully employed for a substantial period
of that time, and had passed a series of drug tests. Defense counsel argued again that
the pending charge was merely an allegation, and, in the event that Appellant was
convicted, he would be subject to punishment in the municipal court case and the
Trumbull County case, because the conviction would constitute a parole violation.
Defense counsel conceded that, if Appellant had been convicted of the municipal court
charge, he would not be arguing for a lesser sentence. Finally, defense counsel asserted
that Appellant had “demonstrated that he’s capable of successfully being on probation.”
(Id., p. 10.)
{¶20} Before imposing sentence, the trial court observed “for the record that that
new charge certainly enabled the state of Ohio to file a motion to revoke bond, which this
court did.” (Id., p. 17.) The trial court continued:
The second question, of course, becomes whether or not that new charge
is a sufficient reason, a sufficient basis, for the state to ask this court to
deviate from the Rule 11 agreement previously entered and subsequently
requesting that this court impose a sentence double that which was
originally asked for. On the one hand, I think based upon the investigation
from the state and the new charge, that if I were a prosecutor, I would
certainly ask to deviate from the Rule 11 agreement, I’m not suggesting I’m
going to follow the recommendation. I’m simply indicating that I think there
is a sufficient basis to do that.
(Id., p. 17-18.)
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{¶21} The trial court imposed an aggregate sentence of six years – one year for
each of the eleven convictions, with the sentences for the three convictions from the
original indictment to be served consecutively, and the sentences for the first three
convictions in the second indictment to be served consecutively to one another and the
sentences imposed for convictions in the original indictment. The remaining five one-year
sentences were to be served concurrently with one another and the six consecutive
sentences.
{¶22} The trial court predicated the sentence on the harm caused to the local work
projects and small businesses, which the trial court opined were particularly sensitive to
problems created by missing equipment and stolen merchandise. The trial court rejected
Appellants assertions that he was “young” and “dumb” based on the complexity of the
series of thefts. Finally, the trial court opined that Appellant failed to accept responsibility
for the crimes based on his statements in the PSI, wherein Appellant blamed a codefendant for Appellant’s conduct.
{¶23} Citing the presumption of innocence, the trial court expressly declined to
increase the sentence based on the pending municipal court charge, but reiterated that
Appellant’s bond violation relieved the state from its obligations under the plea
agreements. The municipal court charge was ultimately dismissed. This timely appeal
followed.
ASSIGNMENT OF ERROR
BECAUSE THE STATE BREACHED THE PLEA AGREEMENT, THE
TRIAL COURT SHOULD HAVE ORDERED SPECIFIC PERFORMANCE
OF THE PLEA AGREEMENT AND ASSIGNED THE DEFENDANTAPPELLANT’S SENTENCING TO A DIFFERENT JUDGE OR ALLOW
[SIC] THE DEFENDANT TO WITHDRAW HIS PLEA.
{¶24} Appellant expressly waived his right to withdraw his guilty plea at the
sentencing hearing. Furthermore, Appellant did not object to the imposition of the six-year
sentence. Because Appellant did not object to the State’s recommendation during
sentencing, he forfeited the alleged error and we review Appellant’s convictions and
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sentence for plain error only. State v. Hansen, 7th Dist. Mahoning No. 11 MA 63, 2012-
Ohio-4574, ¶ 15, citing Puckett v. U.S., 556 U.S. 129, 173 L.Ed.2d 266, 129 S.Ct. 1423
(2009).
{¶25} Reversal based on the plain error doctrine requires an error that is obvious
and affected a defendant’s substantial rights under exceptional circumstances. Crim.R.
52(B); State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). It cannot be utilized
unless the outcome clearly would have been different but for the error. State v. Waddell,
75 Ohio St.3d 163, 166, 661 N.E.2d 1043 (1996). Where there is an error that is obvious
from the record and outcome determinative, we have the discretion to remedy the error if
it seriously affects the fairness, integrity or public reputation of judicial proceedings.
Puckett. at 1425.
{¶26} “[P]lain error is a discretionary doctrine which may, but need not, be
employed if warranted.” State v. Donald, 7th Dist. Mahoning No. 08 MA 154, 2009-Ohio4638, at ¶ 68. The Ohio Supreme Court has acknowledged the discretionary aspect of
Crim.R. 52(B) by admonishing courts to notice plain error “with the utmost caution, under
exceptional circumstances and only to prevent a manifest miscarriage of justice.” State v.
Long, 53 Ohio St.2d 91, 7 O.O.3d 178, 372 N.E.2d 804, paragraph three of the syllabus.
{¶27} Turning to Appellant’s substantive argument, it is well accepted that “[p]lea
agreements are an essential and necessary part of the administration of justice.” State v.
Carpenter (1993), 68 Ohio St.3d 59, 61, 623 N.E.2d 66 (1993), citing Santobello v. New
York, 404 U.S. 257, 261, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). The United States
Supreme Court has observed that:
[d]isposition of charges after plea discussions is not only an essential part
of the process but a highly desirable part for many reasons. It leads to
prompt and largely final disposition of most criminal cases; it avoids much
of the corrosive impact of enforced idleness during pre-trial confinement for
those who are denied release pending trial; it protects the public from those
accused persons who are prone to continue criminal conduct even while on
pretrial release; and, by shortening the time between charge and
disposition, it enhances whatever may be the rehabilitative prospects of the
guilty when they are ultimately imprisoned.
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Santobello, 404 U.S. at 261, 92 S.Ct. 495, 30 L.Ed.2d 427.
{¶28} At its core, a plea agreement is contractual in nature and subject to contractlaw standards. State v. Vari, 7th Dist. Mahoning No. 07-MA-142, 2010-Ohio-1300, ¶ 27.
We have recognized that plea agreements should be construed strictly against the
government. State v. Namack, 7th Dist. Belmont No. 01 BA 46, 2002-Ohio-5187, ¶ 25.
{¶29} Appellant cites Santobello, supra, for the general rule that, where a
prosecutor breaches a plea agreement, two remedies exists: The defendant may
withdraw his plea, or he may demand specific performance, which requires the trial judge
to transfer the matter to a different judge for sentencing. In Santobello, the original
prosecutor promised to stand silent at sentencing in exchange for the defendant’s guilty
plea. An inordinate amount of time passed between the plea hearing and sentencing
hearing, and, as a result, a different prosecutor appeared at sentencing and
recommended the statutory maximum sentence of eight years. Although the trial judge
represented that he did not consider the prosecutor’s recommendation in imposing
sentence, the United States Supreme Court held:
This phase of the process of criminal justice, and the adjudicative element
inherent in accepting a plea of guilty, must be attended by safeguards to
insure [sic] the defendant what is reasonably due in the circumstances.
Those circumstances will vary, but a constant factor is that when a plea
rests in any significant degree on a promise or agreement of the prosecutor,
so that it can be said to be part of the inducement or consideration, such
promise must be fulfilled.
Santobello, 404 U.S. at 262, 92 S.Ct. 495, 30 L.Ed.2d 427.
{¶30} In 2009, the United States Supreme Court addressed the application of the
Santobello rule on plain error review in Puckett, supra. The Puckett Court held that a
defendant whose plea agreement is broken by the state will not always be able to show
prejudice, either because he obtained the benefits contemplated by the deal anyway (the
sentence that the prosecutor promised to request) or because he likely would not have
obtained those benefits in any event. Puckett at 1433.
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{¶31} Last year, we held that a defendant's failure to appear for sentencing
relieved the state of its obligations under a plea agreement in State v. Turner, 7th Dist.
Mahoning No. 17 MA 0155, 2019-Ohio-934. The state argued that Turner’s failure to
appear at the sentencing hearing was a violation of an implied term of the plea agreement.
Based on repeated references in the record that required Turner’s timely appearance at
court hearings, we concluded that Turner’s appearance at sentencing was “an express
contractual term.“ Id. at ¶ 45.
{¶32} In State v. Bembry, 7th Dist. Columbiana No. 13 CO 33, 2014-Ohio-5498,
we recognized that “when a defendant enters a guilty plea in exchange for the
prosecutor’s promise to recommend a certain sentence, there is an implied condition that
the circumstances surrounding the bargain will remain substantially the same.” However,
“a substantial change in the circumstances is sufficient to relieve the state of its
obligation.” Id. at ¶ 22. We held that Bembrey’s violation of the conditions of his bond
relieved the state of its obligation to recommend the sentence described in the plea
agreement.
{¶33} The facts in Bembry are as follows. After Bembry entered guilty pleas to two
counts of burglary and one count of attempted safe cracking, he was released on his own
recognizance subject to certain pre-trial release conditions. The plea deal was subject to
a cooperation agreement under which Bembry would provide information on other cases.
Within a day or two of his release, Bembry was arrested and jailed in Columbiana County
for theft/burglary following a reported safe burglary.
{¶34} We first opined that Bembry was unable to fulfill his obligation under the
cooperation agreement due to the immediate revocation of his bond. However, we further
found that Bembry’s arrest constituted a violation of his bond conditions and relieved the
state of its obligation to recommend 3 years under the plea agreement. Bembry had
agreed to cooperate with the conditions of his bail, which required him to “obey all rules
and regulations of the CCAPD.” Bembry, supra, at ¶ 25-27.
{¶35} At the plea hearing in this case, Appellant was put on notice that the state’s
sentencing recommendation and the imposition of that sentence were conditioned on
certain post-plea conduct, specifically Appellant's acceptance of responsibility, “stay[ing]
out of trouble,” maintaining contact with defense counsel, cooperating with the CCA, and
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appearing for sentencing. Although Appellant’s bond conditions are not in the record, his
bond was revoked immediately after the municipal court charge was filed. Because
Appellant was notified at the plea hearing that that he must avoid any conduct that may
result in new charges, and the municipal charge constitutes a bond violation, we find that
Appellant breached the plea agreement and the state was relived of its obligation to
recommend a six-year sentence.
{¶36} Even assuming that the municipal charge did not constitute a breach of the
plea agreement, we find that Appellant has failed to demonstrate that he suffered any
prejudice. Appellant received the sentence that the state was obligated to recommend
by the plea agreement. Applying plain error, the United States Supreme Court in Puckett,
supra, opined that prejudice cannot be shown where a defendant obtained the benefits
contemplated by the deal, that is, the sentence that the prosecutor agreed to recommend.
Puckett, supra, at 1433. Accordingly, we find, in the alternative, that Appellant cannot
demonstrate prejudice resulting from the state’s alleged breach.
Outcome:
Based on the record in this case, we find that Appellant’s municipal court
charge constituted a breach of the plea agreement. As a consequence, Appellant’s
breach relieved the state from its obligations in the plea agreement. We find, in the alternative, that Appellant has failed to show prejudice because he was sentenced to six years – the prison term that the state was obligated to recommend pursuant to the plea agreement. As Appellant has failed to demonstrate plain error, we find that Appellant’s sole assignment of error has no merit, and his convictions and sentence are affirmed.
charge constituted a breach of the plea agreement. As a consequence, Appellant’s
breach relieved the state from its obligations in the plea agreement. We find, in the alternative, that Appellant has failed to show prejudice because he was sentenced to six years – the prison term that the state was obligated to recommend pursuant to the plea agreement. As Appellant has failed to demonstrate plain error, we find that Appellant’s sole assignment of error has no merit, and his convictions and sentence are affirmed.
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About This Case
What was the outcome of STATE OF OHIO v. JAMES PEDICINI III?
The outcome was: Based on the record in this case, we find that Appellant’s municipal court charge constituted a breach of the plea agreement. As a consequence, Appellant’s breach relieved the state from its obligations in the plea agreement. We find, in the alternative, that Appellant has failed to show prejudice because he was sentenced to six years – the prison term that the state was obligated to recommend pursuant to the plea agreement. As Appellant has failed to demonstrate plain error, we find that Appellant’s sole assignment of error has no merit, and his convictions and sentence are affirmed.
Which court heard STATE OF OHIO v. JAMES PEDICINI III?
This case was heard in IN THE COURT OF APPEALS OF OHIO SEVENTH APPELLATE DISTRICT MAHONING COUNTY, OH. The presiding judge was David A. D'Apolito.
Who were the attorneys in STATE OF OHIO v. JAMES PEDICINI III?
Plaintiff's attorney: Atty. Paul J. Gains, Mahoning County Prosecutor, and Atty. Ralph M. Rivera, Assistant Prosecuting Attorney. Defendant's attorney: Need help finding a lawyer for representation for appealing that the state breached his plea agreement when it recommended a greater sentence than it had promised to recommend in the plea agreement in Ohio. Call 918-582-6422. It's Free.
When was STATE OF OHIO v. JAMES PEDICINI III decided?
This case was decided on July 15, 2020.