State v. Kryling ( 2011 )

[Cite as State v. Kryling, 2011-Ohio-166.]
IN THE COURT OF APPEALS OF OHIO
THIRD APPELLATE DISTRICT
HANCOCK COUNTY
STATE OF OHIO, CASE NO. 5-10-25
PLAINTIFF-APPELLEE,
v.
CHRISTIAN T. KRYLING, OPINION
DEFENDANT-APPELLANT.
Appeal from Hancock County Common Pleas Court
Trial Court No. 2009 CR 239
Judgment Affirmed
Date of Decision: January 18, 2011
APPEARANCES:
Keith O’Korn for Appellant
Drew A. Wortman for Appellee
Case No. 5-10-25
PRESTON, J.
{¶1} Appellant-defendant, Christian T. Kryling (hereinafter “Kryling”),
appeals the judgment of sentence entered against him by the Hancock County
Court of Common Pleas. For the reasons that follow, we affirm.
{¶2} On December 1, 2009, Kryling was indicted on one count of
aggravated robbery in violation of R.C. 2911.01(A)(1), a felony of the first degree.
Contained in the single count indictment was a repeat violent offender
specification pursuant to R.C. 2941.149. On December 9, 2009, Kryling entered a
plea of not guilty to the sole count in the indictment. On February 4, 2010, the
trial court granted Kryling’s then-appointed trial counsel’s motion to withdraw and
appointed Kryling another trial counsel.
{¶3} A motion hearing was scheduled for July 13, 2010, but instead, on
July 13, 2010, after negotiations with the State, Kryling withdrew his previous not
guilty plea and entered a plea of guilty to the sole count in the indictment. In
exchange for Kryling’s guilty plea, the State dismissed the repeat violent offender
specification. Moreover, at the hearing, the parties informed the trial court that
they had entered into a joint recommended sentence of nine (9) years in prison for
the aggravated robbery offense. After conducting a Crim.R. 11 colloquy, the trial
court found Kryling guilty of aggravated robbery and set the matter for sentencing.
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{¶4} On July 29, 2010, the sentencing hearing was held, at which time,
the trial court imposed the jointly recommended nine (9) year prison term.
{¶5} Kryling now appeals and raises one assignment of error.
ASSIGNMENT OF ERROR
THE SENTENCE WAS CONTRARY TO LAW AND
CONSTITUTED AN ABUSE OF DISCRETION, AND TRIAL
COUNSEL WAS INEFFECTIVE FOR NOT OBJECTING TO
THE SENTENCE OR ADVISEMENTS RENDERED BY THE
TRIAL COURT. (APPENDIX, EX. 1-3 AND JULY 13 AND
JULY 29, 2010 TRANSCRIPT OF PROCEEDINGS).
{¶6} In his only assignment of error, Kryling argues that his sentence was
contrary to law and that the trial court abused its discretion in imposing the
sentence. In particular, Kryling claims that his sentence was contrary to law
because the trial court incorrectly informed him of his eligibility of judicial release
at the change of plea hearing, and because the trial court failed to consider the
rehabilitation factor in R.C. 2929.11(A) and the seriousness or recidivism factors
contained in R.C. 2929.12(D) and (E). Kryling also claims that his trial counsel
was ineffective for failing to object to the sentence or the incorrect statements
made by the trial court regarding the possibility of judicial release. In response,
the State argues that Kryling’s sentence is not reviewable by this Court because it
was the result of a joint recommendation of sentence entered into by both Kryling
and the State.
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{¶7} Pursuant to R.C. 2953.08, a sentence is not subject to review when
the sentence is (1) authorized by law; (2) jointly recommended by the parties; and
(3) imposed by the sentencing judge. State v. Giesey, 3d Dist. No. 5-06-31, 2006-
Ohio-6851, ¶8 citing State v. Porterfield, 106 Ohio St.3d 5, 2005-Ohio-3095, 829
N.E.2d 690, ¶8. In discussing jointly recommended sentences, the Ohio Supreme
Court has recognized that “[t]he General Assembly intended a jointly agreed-upon
sentence to be protected from review precisely because the parties agreed that the
sentence is appropriate. Once a defendant stipulates that a particular sentence is
justified, the sentencing judge need not independently justify the sentence.”
Porterfield, 2005-Ohio-3095, at ¶25. See, also, State v. Cremeens, 4th Dist. No.
06CA646, 2006-Ohio-7092, ¶10; State v. Franklin, 4th Dist. No. 05CA9, 2006-
Ohio-1198, ¶15; State v. Covington, 5th Dist. No. CT2005-0038, 2006-Ohio-2700,
¶12; State v. Hammond, 8th Dist. No. 86192, 2006-Ohio-1570, ¶5, fn.1.
{¶8} Here, the State claims that Kryling’s sentence is not reviewable
because there was a negotiated resolution with a specific jointly recommended
sentence of nine (9) years. Kryling responds and claims that his sentence is still
reviewable by this Court because there is nothing in any of the applicable
judgment entries or documents that states that the parties had entered into a joint
recommendation of sentence.
{¶9} Although there is nothing explicitly written in the judgment entries
or the written plea agreement signed by Kryling and the State, we find that the
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record clearly demonstrates that this plea agreement contained a joint
recommendation of sentence. At the change of plea hearing on July 13, 2010, the
State explained the terms of the plea agreement to the trial court as follows:
It is the State’s understanding of the negotiations in this case for
the Defendant to withdraw his plea that’s previously been
entered of not guilty, and enter a plea of guilty to the sole count
contained in the indictment of aggravated robbery, in violation
of statute 2911.01(A)(1). That would be a guilty plea to the
charge without specifications.
In exchange, that the State would move the Court to dismiss the
repeat violent offender contained [sic] this single count of the
indictment and pursuant to negotiation [sic] states that we would
have a brief continuance for sentencing in approximately two
weeks.
At that point in time on July 29th it would be the joint
recommendation of the parties as an F-1, the Court impose a
prison term of nine years with The Department of Rehabilitation
& Corrections.
(July 13, 2010 Tr. at 4-5) (emphasis added). Subsequently, Kryling’s defense
counsel acknowledged the terms of the agreement and told the trial court that they
were in agreement with those terms. (Id. at 6). In addition, during the Crim.R. 11
colloquy, the trial court went over the details of the negotiated plea and joint
recommendation of sentence with Kryling. In particular, the trial court stated as
follows:
The Court: You’re pleading guilty to the base indictment, the
aggravated robbery charge. Is that your understanding?
Mr. Kryling: Yes, sir.
The Court: State of Ohio is dismissing the specification, the
repeat violent offender specification, to the indictment. Is that
your understanding?
Mr. Kryling: Yes, sir.
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The Court: We’re coming back here July 29th at 8:30 a.m. for
sentencing. Is that your understanding?
Mr. Kryling: Yes, sir.
The Court: State of Ohio, through the Prosecutor’s Office, you,
through Mr. Zografides, have negotiated a specific sentence.
That’s nine years with the Ohio Department of Rehabilitation &
Correction and you’ll be ordered to pay the costs of proceedings
in this case. Do you understand?
Mr. Kryling: Yes, sir.
***
The Court: And everybody negotiated a number of nine years in
prison. Do you understand?
Mr. Kryling: Yes, sir.
The Court: Okay. Any questions at all about the plea
negotiations?
Mr. Kryling: No, sir.
(July 13, 2010 Tr. at 19-20) (emphasis added). Moreover, on July 29, 2010, at the
sentencing hearing, the State again stated on the record, “[w]ith regards to the
State’s position of sentencing, the Court is aware this is a joint recommendation.
Both the State and the defense will be asking the Court to impose a nine year
prison term with the Ohio Department of Rehabilitation and Corrections.” (July
29 2010 Tr. at 4) (emphasis added). Furthermore, at the sentencing hearing,
Kryling even acknowledged to the trial court that he was aware that he was
accepting nine years as his prison sentence. (Id. at 15).
{¶10} Based on the above, we believe that the record clearly demonstrates
that Kryling and the State had entered into a joint recommendation of sentence for
nine (9) years in prison, despite Kryling’s argument to the contrary. See State v.
Wright, 7th Dist. No. 09 MA 1, 2009-Ohio-4636, ¶¶19-23 (“[A]lthough neither
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party nor the trial court uses the words ‘jointly recommended sentence’ at either
the sentencing hearing or in the written plea, given the statements made at the
sentencing hearing, we find that the community control sentence that was imposed
by the court was a jointly recommended sentence.”) Compare with State v.
Griffith, 10th Dist. No. 10AP-94, 2010-Ohio-5556, ¶22 (finding that the record
contained no evidence of a jointly recommended sentence) and State v. Lampson,
10th Dist. No. 09AP-1159, 2010-Ohio-3575, ¶13 (finding that there was no
evidence of a jointly recommended sentence). However, see, also, State v. Baird,
7th Dist. No. 06-CO-4, 2007-Ohio-3400, ¶¶13-16 (finding that because
defendant’s sentence was jointly recommended, fell within the statutory range, and
was imposed by the sentencing judge, defendant could not appeal his sentence);
State v. Rojas, 5th Dist. No. 2004-AP-03-0018, 2004-Ohio-3642, ¶12 (finding that
the record demonstrated that defendant’s sentence was jointly recommended and
was thus not reviewable); State v. Strong, 11th Dist. No. 2002-L-067, 2003-Ohio-
7219, ¶¶6-9 (finding that because the sentence was jointly recommended and was
within statutory range the court was without authority to review defendant’s
sentence for felonious assault). Therefore, so long as the sentence was authorized
by law, meaning that the sentence was within the applicable statutory range, R.C.
2953.08(D) provides that the sentence is not subject to appellate review and no
error regarding the sentence can be argued.
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{¶11} The statutory sentencing range available for a first degree felony is
three to ten years. R.C. 2929.14(A)(1). Here, Kryling was sentenced to nine (9)
years in prison, which clearly falls within the statutory sentencing range. Because
Kryling’s sentence falls within the permissible statutory range for his offense, it
was authorized by law. We note that had the State not dismissed the repeat violent
offender specification, Kryling would have been facing an additional and
mandatory prison term. See R.C. 2929.14(D)(2). However, in exchange for his
guilty plea, the State dismissed the repeat violent offender specification, and both
parties agreed to a prison sentence of nine (9) years. Accordingly, since the
imposed sentence was a jointly recommended sentence and was within the
applicable statutory range, we find that review of Kryling’s sentence is barred
pursuant to R.C. 2953.08(D) and we cannot address any of his arguments
pertaining to his sentence.1 State v. Turrentine, 3d Dist. No. 1-08-18, 2008-Ohio-
3231, ¶¶10-13, citing State v. Knisely, 3d Dist. No. 5-07-37, 2008-Ohio-2255, ¶¶7-
12.
{¶12} Finally, Kryling argues that his trial counsel was ineffective. While
Kryling admits that the incorrect advisement of his eligibility for judicial release
1
We note that throughout his appellate brief, Kryling claims that his sentence was not “authorized by law”
because the trial court incorrectly advised him of his eligibility for judicial release at the change of plea
hearing. While the trial court did inform Kryling that he was not eligible for judicial release at the change
of plea hearing, despite the fact that Kryling is eligible under the statute for judicial release, this in no way
renders his sentence “unauthorized.” (July 13, 2010 Tr. at 21); R.C. 2929.20(A)(1)(a). Moreover, as
Kryling specifically acknowledges in his brief, the “incorrect advisement of his ineligibility for judicial
release did not induce him to plea[d] guilty”; therefore, there is no need for this Court to discuss his
argument. (Appellant’s Brief at 10) (emphasis in original).
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“did not induce him to plea[d] guilty,” Kryling still claims that his trial counsel
was ineffective for failing to object to the trial court’s incorrect statement and for
failing to subsequently request that the trial court clarify its statements concerning
judicial release at the sentencing hearing. (Appellant’s Brief at 10) (emphasis in
original). We disagree.
{¶13} A defendant asserting a claim of ineffective assistance of counsel
must establish: (1) the counsel’s performance was deficient or unreasonable under
the circumstances; and (2) the deficient performance prejudiced the defendant.
State v. Kole (2001), 92 Ohio St.3d 303, 306, 750 N.E.2d 148, citing Strickland v.
Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. To
establish prejudice when ineffective assistance of counsel relates to a guilty plea, a
defendant must show there is a reasonable probability that but for counsel’s
deficient or unreasonable performance the defendant would not have pled guilty.
State v. Xie (1992), 62 Ohio St.3d 521, 524, 584 N.E.2d 715, citing Hill v.
Lockhart (1985), 474 U.S. 52, 59, 106 S.Ct. 366, 88 L.E.2d 203; Strickland, 466
U.S. at 687. To begin with, we do not believe that Kryling’s trial counsel’s
performance was deficient or unreasonable in this particular case; however, even if
Kryling’s trial counsel’s performance was not reasonable under these
circumstances Kryling has not established prejudice since Kryling has explicitly
stated that he would have gone forward with his guilty plea and with the jointly
recommended sentence of nine (9) years in prison despite the incorrect
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information regarding judicial release. Therefore, we find Kryling’s argument
meritless.
{¶14} Kryling’s assignment of error is, therefore, overruled.
{¶15} Having found no error prejudicial to the appellant herein in the
particulars assigned and argued, we affirm the judgment of the trial court.
Judgment Affirmed
ROGERS, P.J., and WILLAMOWSKI, J., concur.
/jnc
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