In a 7-0 decision authored by Chief Justice Maureen O’Connor, the Supreme Court of Ohio ruled today that an Ohio county prosecutor lacks authority to enter into a plea bargain on behalf of the state for crimes that a defendant committed in a different county.

Applying that holding, the court held that a plea agreement between the Summit County prosecuting attorney and appellant, Desmond Billingsley, could not bind the Portage County prosecuting attorney regarding his prosecution of Billingsley for crimes that he committed wholly in Portage County. Billingsley claimed that he made a bargain with the Summit County prosecuting attorney to enter guilty pleas in that county and to provide information about a number of robberies that  he and codefendants had committed in Summit and other counties.  Billingsley also claimed that he understood that, in exchange, the other counties would either waive criminal charges against him  or would impose sentences for the crimes he committed in the other  counties that ran concurrent with Billingsley’s eight-year, Summit County sentence.

When Billingsley was subsequently indicted by a Portage County grand jury on three counts of aggravated robbery with firearm specifications for his role in robberies that took place in that county, he filed a pretrial motion asking the Portage County Court of Common Pleas to enforce the terms of his Summit County plea agreement by declaring either that he was immune from prosecution for the Portage County offenses, or that if convicted on those counts he was entitled to a ruling that his sentence for the Portage County crimes would run concurrent with his Summit County sentence.

After a hearing at which Billingsley, one of his Summit County defense attorneys, and an Akron police detective testified, and the transcript of the Summit County plea hearing was entered into evidence, the Portage County judge denied Billingsley’s motion. The court held that because no evidence had been presented showing that the Portage County prosecutor had authorized anyone to negotiate or contract with Billingsley on his behalf, or even that the Portage County prosecutor knew about the Summit County plea negotiation, the terms of that negotiation were not binding on Portage County.

Thereafter, Billingsley entered no-contest pleas to all of the Portage County charges and was sentenced to 33 years in prison, with eight years of that term to run concurrent to his Summit County sentence. Billingsley appealed the denial of his motion for enforcement of the terms of his plea agreement. On review, the Eleventh District Court of Appeals affirmed the ruling of the trial court. Billingsley then sought and was granted Supreme Court review of the Eleventh District’s decision.

Writing for a unanimous Supreme Court in today’s decision, Chief Justice O’Connor emphasized that the Portage County prosecution did not implicate the Double Jeopardy Clause of the U.S. Constitution because the charges brought against Billingsley in Summit and Portage counties arose from different criminal acts and were not part of the same course of conduct. She also noted that Billingsley did not claim that the Portage County prosecutor was a party to the Summit County plea negotiation. Thus, she wrote, the issue before the court was whether one county prosecutor had the authority to make a binding commitment to a defendant with regard to crimes he committed in a second county without the consent of the second county’s prosecutor.

The Chief Justice wrote: “Billingsley argues that the Summit County prosecuting attorney is a state employee ‘who binds the State of Ohio to the terms of its contracts, ... not merely to Summit County, but ... to all counties, including Portage County and its prosecutors.’ To be sure, a prosecuting attorney has authority to enter into plea agreements on behalf of the state. ... But the General Assembly provided for the election of a prosecuting attorney in each county (in) R.C. 309.01. ... And in prescribing the powers and duties of elected county prosecuting attorneys [in R.C. 309.08(A)], the legislature established that they have authority to ‘inquire into the commission of crimes within the county.’

“Based on the plain language of R.C. 309.01 and 309.08(A), we conclude that a county prosecuting attorney does not have actual authority to enter into a plea agreement on behalf of the state with respect to crimes committed wholly outside his or her county. Moreover, nothing in Ohio’s statutory scheme even implies that a county prosecuting attorney can bind the state in a plea agreement for crimes committed wholly in another county. Accordingly, we also easily conclude that a county prosecuting attorney lacks apparent authority to enter into plea agreements on behalf of the state with respect to crimes committed wholly outside of the prosecuting attorney’s county.  Our holding is consistent with the holdings of Ohio’s courts of appeals that have addressed this issue.”

“We conclude that the Summit County prosecuting attorney did not have authority to enter into a plea agreement on behalf of the state of Ohio with respect to crimes committed wholly outside of Summit County. Only the Portage County prosecuting attorney has the authority to enter into a plea agreement on behalf of the state with respect to crimes committed wholly within Portage County.  Billingsley concedes that the Portage County prosecuting attorney was not a party to Billingsley’s plea agreement. Thus, if the Summit County prosecuting attorney did not have the Portage County prosecuting attorney’s permission to negotiate on his behalf, the Summit County plea agreement cannot bind the Portage County prosecuting attorney, even if the plea agreement purports to do so.”

In deciding that the Summit County prosecuting attorney was not authorized to negotiate on behalf of the Portage County prosecuting attorney, the court noted that Billingsley made no claim that the Portage County prosecuting attorney actually authorized anyone in Summit County to negotiate on his behalf. Instead, Billingsley claimed that the Summit County assistant prosecutor’s own words and actions gave her apparent authority to bind the Portage County prosecuting attorney.

The court held, however, that “an agent cannot through her own words and actions create apparent authority to bind a principal where there is no evidence that the principal permitted the agent to act as if she had authority.  ... In deciding against Billingsley on the issue of apparent authority, the trial court properly emphasized that ‘no one testified that anyone with authority to bind the Portage County Prosecutor’s office ever was aware of the negotiated plea in Summit County.’ The fact that there is a complete lack of evidence that the Summit County prosecuting attorney acted with implied authority to resolve the Portage County case means that Billingsley’s argument must fail.”

Finally, the court refused Billingsley’s request to vacate his Portage County convictions, holding that fundamental fairness did not require it.  The court explained that “if, as Billingsley claims, the terms of the Summit County plea agreement purported to bind the Portage County prosecuting attorney, Billingsley’s remedy was to withdraw his guilty plea and move to suppress the statements that he made in reliance on the agreement. … And if his motion to suppress were granted and, as Billingsley claims, the Portage County prosecution was based solely on those statements (and evidence derived therefrom), Billingsley would be entitled to vacation of his conviction.  The court noted that not only had Billingsley failed to pursue those remedies, the existing records, which Billingsley failed to fully develop, did not necessarily support his claims.

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2011-0827.  State v. Billingsley, Slip Opinion No. 2012-Ohio-4307.
Portage App. Nos. 2010-P-0030 and 2010-P-0031, 2011-Ohio-1586.  Judgment affirmed.
O’Connor, C.J., Pfeifer, Lundberg Stratton, O’Donnell, Lanzinger, Cupp, and McGee Brown, JJ., concur.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2012/2012-Ohio-4307.pdf

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