Authority figureFrom last week's Ohio Supreme Court decision in State v. Billingsley, we learn two things. We get a refresher course in contract law, and we learn why they're called "county prosecutors" and not "state prosecutors."
Everybody needs a hobby, and Desmond Billingsley's was robbery. That earned him a 24-count indictment in Summit County, and, as Anthony Kennedy told us last year in Missouri v. Frye, our justice system is "a system of pleas"; Billingsley worked out a deal to plead to two counts of aggravated robbery with firearm specs, and one of attempted aggravated robbery, with a recommendation for a sentence of eight years. He also agreed to give statements against his co-defendants, and provide information about other robberies that he and his gang had committed. At the plea hearing, the prosecutor represented that Summit County agreed that if Billingsley disclosed other crimes not contained in the indictment, it wouldn't prosecute him for those. The prosecutor also stated that she'd been in contact with the authorities in other counties, and that "it's our recommendation, at least in the [co-defendant's] cases, that they will either not pursue charges on their robberies, or if they already charged that they'll run concurrent." Billingsley entered his pleas and, as we say in the law biz, performed his part of the bargain by cooperating and giving information about other robberies, and was sentenced to eight years.
Two months later, Portage County indicted him on several other robberies, and Billingsley was subsequently sentenced to 33 years imprisonment, concurrent to the Summit County sentence.
Those of you who paid attention in Contracts class can spot the issue: did the Summit County prosecutor have the authority to enter into a plea agreement involving cases from another county? Billingsley argued that the Summit County prosecutor did in fact have the authority to "bind the State of Ohio, not merely to Summit County, but to all counties," but the court gave that short shrift. The Ohio statutes provide for the election of a county prosecutor, who has authority to "inquire into the commission of crimes within the county." Based on that "plain language," the court has no problem concluding that a prosecutor lacks the authority "to enter into a plea agreement on behalf of the state with respect to crimes committed wholly outside his or her county. "
But as we all remember from Contracts, authority in the contractual context comes in two flavors: actual and apparent. Having rejected the first, the court spends little time rejecting the second as well. Citing a civil case, the court notes that one cannot create apparent authority where there's "no evidence that the principal permitted the agent to act as if she had the authority." That's true, but there's a difference between believing that someone has the authority to bind Master Consolidated Corp. to an agreement, when Master Consolidated hasn't given any reason for you to believe that, and believing that a prosecutor has the authority to bind the State of Ohio to an agreement when you're staring at an indictment captioned "State of Ohio v. You." The court does a little sleight of hand here, holding that the question is whether the Portage County prosecutor, not the State, ever did anything to cause Billingsley to believe that the Summit County prosecutor had the full power to wheel and deal. Still, the decision is in line with the case law, so it's hard to fault the result.
But there's another point here. We also know from Contracts that before we even get to the issue of authority, you need a contract -- that is, a meeting of the minds. It's not at all clear that there was one here. There's nothing in the opinion's recitation of the record which indicates that the prosecutor ever made a clear statement that the cases in the other counties wouldn't be prosecuted in return for the plea. Billingsley filed a motion with the Portage County court seeking enforcement of the Summit County deal, but notably failed to call the Summit County prosecutor as a witness, even after being granted a continuance for the express purpose of doing so.
So Billingsley contains a cautionary note for the defense bar. It's fairly clear that Billingsley and his attorney fully expected that the plea in the Summit County case would be the end of his legal travails; at the least, it's fair to say, neither anticipated that he'd wind up doing an additional twenty-five years for those other robberies. Yet the record is extremely poor in showing that there was a deal, what the parameters of the deal were, and who had authorized it. What's more, Billingsley's best argument was that it was unfair to use the statements he made pursuant to the agreement against him in the Portage County case, yet the record doesn't even establish that: the State had produced a list of robberies, which Billingsley claims included the Portage County ones, yet that list wasn't offered as evidence. The chief detective testified that he couldn't remember whether Billingsley's statements referenced the Portage County robberies, but the defense made no effort to subpoena the notes, even after the continuance of the hearing.
So the main lesson is one that you don't have to sit through a Contracts case to learn: an oral agreement isn't worth the paper it's not printed on. If you're trying to negotiate a multi-county resolution of your client's legal woes, get it in writing, from each county prosecutor involved.