What’s On Their Minds: 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.

On May 8, 2012 the Supreme Court of Ohio heard oral argument in State v. Desmond Billingsley, 2011-0827. The issue in the case is whether the prosecutor in one county (in this case, Summit County) can bind the prosecutor in another county (in this case Portage County) to a plea agreement.

Billingsley had been indicted for a number of felony charges in Summit county. As part of his Criminal Rule 11 plea agreement there, he agreed to sit down with an investigator and tell him the truth about his involvement in all other criminal activity wherever it had occurred. In exchange for his cooperation, he would receive an eight year sentence in Summit county. Additionally, the Summit county prosecutor made these representations in open court:

“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 cooperate with the authorities. He was later indicted in Portage County, where he filed a motion to enforce the Crim R. 11 plea agreement he had entered into in Summit County. The trial court denied his motion because Portage County was not a party to that agreement and could not be bound by it. Billingsley was sentenced to another thirty-three years in prison, although that sentence was to run concurrently with the Summit County sentence. Read the oral argument preview of this case here.

Billingsley waived participation in oral argument of this case, so only the Portage County prosecutor argued (professor’s note: that can be very difficult, because all eyes are only on you!). He was very professional, walking a fine line between firmly supporting the state’s position, while not disparaging the defendant’s. He made it clear that it is a not uncommon occurrence for a defendant to commit crimes in a number of jurisdictions. When that happens, the established procedure to be followed is for any other involved prosecutor to exchange a written document with the home county prosecutor to establish that the prosecutor is signing on to the plea agreement in the home county. He argued that the law is clear that in Ohio, prosecutors are limited by their county jurisdiction and cannot be held to plea agreements unless they are a party to them. In this case, the Portage County prosecutor’s office was not consulted about any plea deal. The defendant had other remedies he could have pursued instead of challenging the jurisdiction of county prosecutors, such as filing a motion to vacate the plea in Summit County or a motion to suppress in Portage County.

Justice Pfeifer presided over this case because Chief Justice O’Connor was not present for argument. But he announced she would participate fully in the decision.

Justice Stratton was ready to quit right out of the starting gate since she saw no new law for the court to write here. But a number of the justices were troubled by the Crim. R. 11 colloquy in Summit County. Justice O’Donnell, in particular, dominated the questioning, and made it very clear that an officer of the court (the Summit County prosecutor) had made a representation that the defendant had relied on to his detriment. The Portage County prosecutor argued that the Summit County colloquy was muddled, but O’Donnell persisted that one fair reading of it was that if Billingsley co-operated, the others either wouldn’t pursue charges or any sentences on offenses already charged would run concurrently. Shouldn’t the defendant be able to take the word of the prosecutor as an officer of the court who has said she’s discussed this with other counties and that representation forms the basis of the sentence? Then later the defendant learns that the other county prosecutors haven’t been included in it– “There’s something inherently wrong with that process in my view,” he stated.

Justice Lanzinger shared Justice O’Donnell’s concerns, particularly about the reliance aspects of the case. When an attorney says in open court that other jurisdictions have been contacted and they agreed to the deal, and that’s how the defendant understood it, shouldn’t that be of concern to the justices? And wasn’t pleading no contest in the Portage County case an indication of that reliance? Inthe key exchange of the day she said, “you’re not arguing that we should bless what happened here, but are worried about any rule that a state prosecutor can bind outside the county?” The answer was yes, but the Portage County prosecutor refused to concede that is what happened in what he repeatedly referred to as a “muddled colloquy”.

Justice McGee Brown also noted her concerns—while defense counsel clearly should have gotten any agreement with Portage county in writing, weren’t Billingsley’s convictions in Portage County based solely on the confessions to the crimes he made as part of the agreement he thought he had with Summit and Portage counties?

Justice Pfeifer mused that it wouldn’t be useful simply to dismiss this case as improvidently allowed because it would be helpful to all involved in the system to know that they can’t expect to bind prosecutors in other counties who have never been consulted at all about a case.

How it Looks from the Bleachers

It seems pretty clear that as a general principle, the Court is not going to hold that a prosecutor in one county can bind prosecutors in other counties to plea agreements to which they are not parties. But it also looks like a majority of the justices in this case seem to feel that Billingsley got hosed here, as a matter of detrimental reliance on the apparent authority of the Summit County prosecutor in open court. He may get some kind of relief, but without the Court adopting any broad proposition of law. The Court also may well recommend that in the future, all joint cooperation agreements among county prosecutors be in writing, signed by the parties to be bound by them.