Oral Argument Preview: Can a Prosecutor in One County Bind the Prosecutor in Another County to a Plea Agreement? State v. Billingsley.

On September 25, 2012, the Supreme Court handed down a merit decision in this case.  Read the analysis here. 

Read the analysis of the oral argument in this case here.

On May 8, 2012 the Supreme Court of Ohio  will hear oral argument in the case of State v. Desmond Billingsley, 2011-0827. The issue in this case is whether, in a Crim.R. 11 plea agreement, a prosecutor’s assurance that a defendant would not be indicted for crimes in other counties in exchange for his cooperation with authorities can be enforced against other counties which are not parties to the plea agreement.

Billingsley was indicted in Portage County on aggravated robbery charges stemming from robberies in several counties. Each charge carried a firearm specification. The prosecution learned that Summit and Stark Counties were also investigating him on similar charges for robberies in those counties. Billingsley had previously negotiated a plea agreement with the Summit County prosecutor. The Summit County prosecutor informed Billingsley that she had spoken with Portage County officials, and she offered him a plea deal if he would give truthful statements regarding his involvement in those yet-unindicted robberies. Billingsley was told that he would not be indicted by any other jurisdiction, or if he had been, those charges would run concurrently, and that he would receive an eight-year sentence for the Summit County offenses. He cooperated with the authorities and provided information about robberies that had occurred in Portage County as well. Portage County then indicted him for aggravated robbery with a firearm specification.

Billingsley filed a motion in Portage County to enforce the Crim.R. 11 plea agreement he had entered into in Summit County, and to dismiss the firearm specification. The Portage County trial court denied the motion, finding that because Portage county was not a party to the Summit County Plea agreement, it was not bound by it.  Billingsley pled no contest. He was sentenced to mandatory terms for each firearm specification, to be served consecutively, and to eight years on each felony charge, to be served consecutively to one another and consecutively to the firearm specification sentences, for a total of thirty-three years.  These sentences were to be served concurrently with the eight-year Summit County sentence.

Billingsley appealed, arguing that because he complied with the terms of the Summit County plea agreement by cooperating with authorities, Portage County was either barred from prosecuting him or was required to run his sentence concurrently with his sentence in Summit County. (Part of Billingsley’s arguement to the Ohio Supreme Court is that he is entitled to have his sentences run concurrently.  The prosecutor argues that is what the judge did order in the case.)  The Eleventh District Court of Appeals affirmed the denial of the motion to enforce the Crim.R. 11 plea agreement.  The Court of Appeals agreed with the trial court that the Portage County Prosecutor’s office was not bound to a plea agreement to which it was not a party. The court also found that Summit County had no apparent authority to act on behalf of Portage County when entering the plea agreement.

On appeal to the Ohio Supreme Court, Billingsley argues that the Summit County prosecutor was an agent of the state of Ohio, not just of Summit County. She held herself out as having the apparent authority to bind Portage County to this plea agreement, after having spoken with the prosecutor there. Plea agreements are contractual in nature, and are to be strictly construed against the government. Billingsley argues that he relied to his detriment on the Summit county prosecutor’s representations, in return for his promise to cooperate with the authorities. Continuing his contract analysis, Billingsley seeks specific performance of the promise of concurrent sentences and dismissal of the firearms specifications.

 In response, the State argues that based on the statements made during the plea hearing, it was unreasonable for Billingsley to conclude that he would not be subject to prosecution in other counties. The prosecutor stated before the court that Billingsley would provide information about other robberies outside the Summit County indictment that the parties were aware of, and the record did not show that the Summit County prosecutor was aware of any Portage County robberies at the time of the agreement. Thus, because Billingsley provided information about crimes that the parties were not aware of and which were not included in the agreement, he was subject to prosecution for those crimes. Furthermore, the State argues that the Summit County prosecutor specifically disclaimed having reached any agreement with Portage County, and thus the prosecutor had no apparent authority to bind Portage County. Finally, in Ohio, prosecutors serve the counties which elect them.

 The Ohio Public Defender and Ohio Prosecuting Attorneys Association have filed amicus briefs. OPD argues that an Ohio county prosecutor pursuing a criminal action is an agent of the State of Ohio and has the authority to bind the state to a plea agreement. The OPAA argues that the Summit county prosecutor had neither the express nor the apparent authority to bind the Portage County prosecutor to its plea agreement, and that Billingsley wrongly failed to contact the Portage County Prosecutor’s office to confirm that it would consent to be bound by the Summit County agreement.

Student Contributor: Greg Kendall

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