On September 25, 2012, the Supreme Court of Ohio handed down a merit decision in State v. Billingsley, 2012-Ohio-4307. In a unanimous decision authored by Chief Justice O’Connor (she’s really been writing a lot of decisions of late. She was not present for this oral argument, but it was announced at the argument that she would fully participate in the decision), the Court held that a prosecutor in one county cannot bind the prosecutor of another county to a plea agreement. This case was argued May 8, 2012.
Defendant Desmond Billingsley, along with four others, was involved in a string of robberies in a number of different places. This case involves crimes in both Summit and Portage counties.
The Summit County Proceeding
The Summit county case was resolved by way of a plea agreement. At the plea hearing, Billingsley agreed to plead guilty to two counts of aggravated robbery with firearm specifications and one count of attempted aggravated robbery. He also agreed to co-operate with the authorities in their investigations of robberies elsewhere. In exchange, the prosecutor agreed to dismiss the remaining charges, recommend an eight year sentence, and agreed not to bring any new charges not contained in the indictment. But the crux of the case is Billingsley’s contention that the Summit County prosecutor also promised that he would not be charged for other robberies committed in another county.
This is what the Summit County assistant prosecutor said in open court, which forms the basis of Billingsley’s contention:
“There are potentially other charges from other counties. We have been in contact with those other counties and can say that’s our recommendation to him, and they’ve agreed at least in the other defendants’ cases, because we’re getting these pleas here and we’re resolving the cases here, that they will either not pursue charges on their robberies, or if they have already charged that, they’ll run concurrent. ”
Billingsley did co-operate, and the prosecutor dismissed the remaining charges. The trial judge accepted the plea agreement and sentenced Billingsley to eight years in prison. But then came the Portage county proceedings.
The Portage County Proceedings
Billingsley was indicted on more robbery charges in Portage County. He filed a motion to enforce the Summit County plea agreement, arguing that under its terms, the charges against him would either be thrown out or any sentences would run concurrently. After holding a hearing at which Billingsley was given the opportunity to subpoena the Summit county prosecutor, but did not, the trial court denied Billingsley’s motion because he had failed to prove that the Portage County prosecutor, who was not a party to the plea agreement, had authorized anyone in Summit County to enter into any agreement on his behalf. After pleading no contest to all the Portage County charges, Billingsley was sentenced to 33 years in prison, eight of which were to be served concurrently with the Summit County sentence. The Eleventh District Court of Appeals affirmed.
Billingsley, who waived oral argument before the Ohio Supreme Court, (the Portage County prosecutor did appear and argue) made three arguments.
- The Summit county prosecutor was a state agent, and could bind the prosecutors of any other county.
- The Summit County prosecutor had the apparent authority to act as the Portage County prosecuting attorney’s authorized agent.
- Fundamental fairness requires the plea agreement to be enforced in Portage County even if the Summit County prosecutor could not bind the Portage County Prosecutor.
The high court rejected all three arguments, and upheld the decisions of the trial court and the court of appeals.
A Few Basics About Plea Agreements from the Court
- They are a necessary part of the criminal justice system
- The underlying bases of the agreement should be stated in open court, and on the record. And, it’s a very good idea (“prudence dictates”) to get them in writing.
- Contract law governs the interpretation and enforcement of these agreements
Binding the Entire State
The Court rejected Billingsley’s argument that a county prosecutor is a state agent who can bind the whole state to any plea agreement. The Court agreed that prosecutors have the authority to enter into plea agreements on behalf of the state. But by statute, prosecutors are county elected officials, who have no actual or apparent authority to enter into plea agreements on behalf of the state with respect to crimes outside their jurisdictions. Which means that in this case, the Summit County prosecutor had no authority to enter into a plea agreement on behalf of the state of Ohio regarding crimes committed outside Summit County.
Binding the Prosecutor of a Different County
Next, the Court rejected Billingsley’s argument that the Summit County assistant prosecuting attorney’s words and actions gave her the apparent authority to bind the Portage County prosecuting attorney.
Citing the 1991 syllabus of Master Consol. Corp. v. BancOhio Natl. Bank, the Court reaffirmed that apparent authority exists when
(1)“the principal held the agent out to the public as possessing sufficient authority to embrace the particular act in question, or knowingly permitted him to act as having such authority, and (2) * * * the person dealing with the agent knew of those facts and acting in good faith had reason to believe and did believe that the agent possessed the necessary authority.”
The Court held that an agent cannot create such authority through her own words and actions when there is no evidence that the principal held her out as having such authority. And the Court found there was absolutely no evidence that the Summit County assistant prosecutor had any such authority from the Portage County Prosecutor, nor was there any evidence that anyone in the Portage County prosecutor’s office was even aware of the Summit County plea agreement. Without the permission of the Portage County Prosecutor to negotiate on his behalf, the Summit County Prosecutor clearly cannot bind him.
The Court rejected Billingsley’s final argument that fundamental fairness required that Portage County be bound to the agreement even if the Summit county prosecutor was not authorized to negotiate on behalf of Portage County. The Court found that Billingsley had failed to pursue the appropriate legal remedy in this case, which was to withdraw his guilty plea and move to suppress the statements he made in reliance on the agreement. In 1994, in State ex.rel. Seikbert v. Wilkinson, the Court held that a criminal defendant is not entitled to equitable relief to redress an alleged breach of a plea agreement when he possesses adequate legal remedies.
A county prosecuting attorney does not have authority to enter into a plea agreement on behalf of the state for crimes committed wholly outside the county in which the prosecuting attorney has been elected.
My prediction that the justices clearly weren’t going to hold that a prosecutor in one county can bind prosecutors in other counties to plea agreements to which they are not parties was correct. And the Court did recommend a best practices rule that plea agreements be in writing, which should certainly include any kind of joint cooperation agreement. But I thought there would be more sympathy for Billingsley’s detrimental reliance and apparent authority arguments. Justices O’Donnell and Lanzinger made a lot of this in oral argument. The final decision reflects no such sympathy.