State v.Kocak , 2016 Ohio 8483 ( 2016 )

[Cite as State v.Kocak, 2016-Ohio-8483.]
STATE OF OHIO, MAHONING COUNTY
IN THE COURT OF APPEALS
SEVENTH DISTRICT
STATE OF OHIO, ) CASE NO. 16 MA 0020
)
PLAINTIFF-APPELLEE, )
)
VS. ) OPINION
)
ANDREW J. KOCAK, )
)
DEFENDANT-APPELLANT. )
CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of
Common Pleas of Mahoning County,
Ohio
Case No. 15 CR 761
JUDGMENT: Affirmed.
APPEARANCES:
For Plaintiff-Appellee: Atty. Paul J. Gains
Mahoning County Prosecutor
Atty. Ralph M. Rivera
Assistant Prosecuting Attorney
21 West Boardman St., 6th Floor
Youngstown, Ohio 44503
For Defendant-Appellant: Atty. Anthony Farris
Deputy Law Director
860 Boardman-Canfield Road
Suite 204
Youngstown, Ohio 44512
JUDGES:
Hon. Carol Ann Robb
Hon. Gene Donofrio
Hon. Cheryl L. Waite
Dated: December 28, 2016
[Cite as State v.Kocak, 2016-Ohio-8483.]
ROBB, J.
{¶1} Defendant-Appellant Andrew Kocak appeals two decisions from the
Mahoning County Common Pleas Court. The first is the trial court’s judgment finding
him guilty of theft, menacing by stalking, and five counts of retaliation. The second
decision is the trial court’s denial of Appellant’s motion to withdraw his guilty plea.
Three issues are raised in this appeal. The first issue is whether the trial court
participated in the plea negotiations. The second issue is whether the state breached
the plea agreement. The third issue is whether the trial court should have vacated
the plea based on ineffective assistance of trial counsel.
{¶2} For the reasons discussed below, all assignments of error are
meritless. Both the conviction and the trial court’s decision to deny the motion to
withdraw the guilty plea are hereby affirmed.
Statement of the Case
{¶3} On September 3, 2015, Appellant was indicted for theft of a motor
vehicle in violation of R.C. 2913.02(A)(2)(B)(1)(5), a fourth-degree felony; five counts
of retaliation in violation of R.C. 2921.05(A)(C), third-degree felonies; and two counts
of menacing by stalking in violation of R.C. 2903.211(A)(1)(B)(2)(c) and R.C.
2903.211(A)(1)(B)(2)(e), both fourth-degree felonies. The first six alleged crimes
occurred on July 29, 2015. The alleged victim of theft of a motor vehicle was
Appellant’s mother Deborah Devor; she was also an alleged victim of one count of
the retaliation. The alleged victims of the other four counts of retaliation were
Rebecca Speicher (Appellant’s on-again off-again girlfriend), Daniella Fox
(Appellant’s ex-girlfriend), Andrea Pryjnja (Appellant’s sister), and Andrew Kocak, Sr.
(Appellant’s father). Rebecca Speicher was the alleged victim of both menacing by
stalking charges that occurred between June 1, 2015 and July 29, 2015.
{¶4} Appellant originally entered a not guilty plea; however, following plea
negotiations he changed his plea to guilty for the first seven counts of the indictment.
The state agreed to dismiss the eighth count of the indictment, menacing by stalking.
As a part of the deal, the state recommended an aggregate 36-month sentence for
the crimes and agreed to stand silent on whether the sentence should run concurrent
-2-
or consecutive to the sentence entered in case number 14CR915. Following a
colloquy, the trial court accepted the plea. 2/4/16 Plea Hearing.
{¶5} In late July 2015, under case number 14CR915, Appellant was
released on judicial release. While out on judicial release, Appellant allegedly
committed the above indicated crimes. As a result of violating the terms of judicial
release, the trial court in case number 14CR915 revoked judicial release and re-
imposed the original sentence.
{¶6} Sentencing for the theft, retaliation, and menacing by stalking
convictions occurred on February 8, 2016. The state followed the plea agreement
and recommended an aggregate 36-month sentence. It also indicated it was
standing silent on the issue of whether the sentence should run concurrent or
consecutive to the sentence imposed in case number 14CR915. However, because
Appellant waived his right to a pre-sentence investigation, the state informed the trial
court of Appellant’s lengthy criminal record.
{¶7} Victims to the offenses spoke at sentencing. Fox, a retaliation victim,
asked the court to sentence Appellant to the maximum. Devor, a retaliation victim
and the victim of the motor vehicle theft offense, and Speicher, a victim of retaliation
and menacing by stalking, asked the court for leniency. Devor and Speicher
specifically asked the court to run the sentence concurrent to case number 14CR915.
Sentencing Tr. 8-10.
{¶8} Appellant spoke at sentencing; he apologized and asked the court to
run the sentence concurrent to case number 14CR915. Sentencing Tr. 15-16. His
reason for asking the sentence to be concurrent was because he was accepted to a
prison program that has a three year cap, which meant if the offender received a
sentence over three years then the offender would not be eligible for the program.
Sentencing Tr. 15.
{¶9} Upon consideration of the appropriate factors, the trial court issued a
36-month aggregate sentence and ordered the sentence to be served consecutive to
the sentence imposed in case number 14CR915. Sentencing Tr. 24. Appellant
interrupted the sentencing, stated he thought the court agreed that the sentence
would run concurrent to case number 14CR915, and asked to withdraw his guilty
-3-
plea. Sentencing Tr. 24-25, 33. The trial court heard his argument, but explained it
never agreed the sentence would run concurrent. Sentencing Tr. 37. The court
reminded Appellant he was advised at the plea hearing that the trial court was free to
enter the maximum sentence and it was not obligated to follow any recommendation.
Sentencing Tr. 37. The trial court then denied the motion to withdraw the guilty plea.
Tr. 37; 2/16/16 J.E.
{¶10} Appellant timely appealed his conviction and the denial of the motion to
vacate the guilty plea.
First Assignment of Error
“Appellant’s guilty plea was not entered knowingly, intelligently, and voluntarily
as a result of the judge’s participation in the plea negotiations.”
{¶11} Appellant argues the trial court participated in the plea negotiations and
he was left with the impression the trial court agreed to order the sentence concurrent
to the sentence imposed in case number 14CR915. The trial court, however, ordered
the sentence to be served consecutively to the sentence imposed in case number
14CR915. According to Appellant, this makes his guilty plea not knowingly,
intelligently, or voluntarily entered.
{¶12} Under Crim.R. 11(C) a trial court must make certain advisements prior
to accepting a defendant's guilty plea to ensure the plea is entered into knowingly,
intelligently and voluntarily. These advisements are typically divided into
constitutional rights and nonconstitutional rights.
{¶13} The constitutional rights are: 1) a jury trial; 2) confrontation of witnesses
against him; 3) the compulsory process for obtaining witnesses in his favor; 4) the
state must prove the defendant's guilt beyond a reasonable doubt at trial; and 5) the
defendant cannot be compelled to testify against himself. Crim.R. 11(C)(2)(c); State
v. Veney, 120 Ohio St. 3d 176, 2008–Ohio–5200, 897 N.E.2d 621, ¶ 19–21. The trial
court must strictly comply with these requirements; if it fails to strictly comply, then
the defendant's plea is invalid. Veney at ¶ 31; State v. Ballard, 66 Ohio St. 2d 473,
477, 423 N.E.2d 115 (1981).
{¶14} The nonconstitutional rights are: 1) the nature of the charges; 2) the
maximum penalty involved, which includes, if applicable, an advisement on
-4-
postrelease control; 3) if applicable, that the defendant is not eligible for probation or
the imposition of community control sanctions; and 4) after entering a guilty plea or a
no contest plea, the court may proceed directly to judgment and sentencing. Crim.R.
11(C)(2)(a)(b); Veney at ¶ 10–13; State v. Sarkozy, 117 Ohio St. 3d 86, 2008–Ohio–
509, 423 N.E.2d 1224, ¶ 19–26, (postrelease control is a nonconstitutional
advisement). For the nonconstitutional rights, the trial court must substantially
comply with Crim.R. 11 mandates. State v. Nero, 56 Ohio St. 3d 106, 108, 564
N.E.2d 474 (1990). “Substantial compliance means that under the totality of the
circumstances the defendant subjectively understands the implications of his plea
and the rights he is waiving.” Veney at ¶ 15, quoting Nero at 108. Furthermore, a
defendant who challenges his guilty plea on the basis the advisement for the
nonconstitutional rights did not substantially comply with Crim.R. 11(C)(2)(a)(b) must
also show a prejudicial effect, meaning the plea would not have been otherwise
entered. Veney at ¶ 15, citing Nero at 108.
{¶15} The trial court's advisement on the constitutional rights strictly complied
with Crim.R. 11(C)(2)(c). Appellant was informed and indicated he understood that
by pleading guilty he was waiving his right to a jury trial, his right to confront
witnesses against him, his right to subpoena witnesses in his favor, and his right to
have the state prove beyond a reasonable doubt every element of the indicted
offenses. Plea Tr. 4-5. He was also informed and stated he understood that if he
went to trial then he could not be compelled to testify against himself. Plea Tr. 5.
{¶16} The trial court’s nonconstitutional rights advisement also complied with
the mandates of Crim.R. 11(C). Appellant was advised of the charged offenses, the
maximum penalty for each offense, including fines, and that the court could proceed
immediately to sentencing. Plea Tr. 4, 6-7, 10-12. He was advised of postrelease
control and his eligibility for community control. Plea Tr. 7-8, 9.
{¶17} Therefore, the trial court complied with Crim.R. 11(C) and, on that
basis, the plea was knowingly, intelligently and voluntarily entered.
{¶18} However, we have acknowledged that even with Crim.R. 11(C)
compliance, the plea bargaining process and the knowing, voluntary and intelligent
nature of the plea may still be undermined. State v. Ortello, 7th Dist. No. 14 MA 69,
-5-
2015-Ohio-3503, ¶ 28. The undermining of the process may result in a plea that is
not entered into knowingly, voluntarily, and intelligently. Id. In Ortello, the trial court
made numerous statements indicating it would impose a sentence of eight to ten
years. Id. at ¶ 28-30. Although the trial court’s statements did not amount to an
absolute promise to give an eight to ten year sentence, a reasonable interpretation
was the court would impose an eight to ten year sentence. Id. at ¶ 28. When the trial
court did not abide by that statement, we found the plea was not entered into
knowingly, intelligently, and voluntarily; accordingly, we vacated the plea. Id. at ¶30.
{¶19} In Ortello, we explained “[p]rinciples of contract law are generally
applicable to the interpretation and enforcement of plea agreements.” Id. at ¶ 5,
quoting State v. Bethel, 110 Ohio St. 3d 416, 2006–Ohio–4853, 854 N.E.2d 150, ¶ 50.
We also explained trial courts generally are not a party to the plea negotiations and
the contract itself; “the court is free to impose a sentence greater than that forming
the inducement for the defendant to plead guilty so long as the court forewarns the
defendant of the applicable penalties, including the possibility of imposing a greater
sentence than that recommended by the prosecutor.” Ortello at ¶ 7, citing State v.
Vari, 7th Dist. No. 07–MA–142, 2010–Ohio–1300, ¶ 24. However, that general rule
no longer applies when the trial court actively participates in the plea agreement by
making a promise. Ortello, citing State v. Bush, 7th Dist. No. 13 MA 110, 2014–
Ohio–4434, ¶ 36. When the court makes a promise it becomes a party to the
agreement and is bound by the agreement. Ortello citing Bush.
{¶20} In this instance, the record does not reflect active involvement in the
plea process by the trial court or any promises by the trial court of running the
sentence concurrent to case number 14CR915. At the plea hearing, Appellant
indicated he was not promised anything in exchange for his plea and the trial court
advised him it was in its discretion to sentence him within the applicable range. Plea
Tr. 9-10.
{¶21} Likewise, statements at the sentencing hearing made by Appellant, his
counsel, and witnesses do not evince a promise by the trial court to order the
sentence concurrent to the sentence imposed in case number 14CR915. Both Devor
and Speicher asked the court to run the sentence concurrent to case number
-6-
14CR915. Sentencing Tr. 8-10. Counsel argued for a concurrent sentence by
explaining the circumstances and Appellant’s growth over the past six years.
Sentencing Tr. 10-15. Appellant also argued for a concurrent sentence and
explained why he wanted that sentence. Sentencing Tr. 15-17. If a promise had
been made, counsel, appellant, and the two witnesses would not have had to ask for
the sentences to run concurrent.
{¶22} In addition to the arguments made by counsel and Appellant, the record
indicates the trial court was receptive to considering concurrent sentences, but it did
not promise Appellant he would receive a concurrent sentence:
THE COURT: I’m going to advise you to stop talking right now. When
you put the plea in, as I do with every defendant on every plea, I tell
them and I told you the recommendation that’s being made is just a
recommendation. I do not have to follow it and can sentence you up to
the maximum amount of time.
THE DEFENDANT: I was told you were receptive to it.
THE COURT: The recommendation that you signed off on on [sic] the
plea does not address the issue of consecutive or concurrent, nor did
the prosecutor make a recommendation there. I’m going to finish the
sentencing, and then we’ll address the issue that you’ve just raised.
***
MR. CARTWRIGHT-JONES [counsel for Appellant]: A couple of things.
First, I would ask the Court to appoint counsel to file a notice of appeal
and prosecute an appeal for Mr. Kocak.
Second, as we got in the sentencing colloquy, Mr. Kocak I think based
on my representations – my representation was I had spoken to the
Court, and the Court indicated being receptive to arguments as far as
sentencing, which is of course what we were here for today – wishes to
withdraw his guilty plea. I think that based on what Mr. Kocak just said,
he feels that he entered the plea on the basis of an inducement that he
-7-
would indeed be receiving concurrent sentences, that based on that
mistaken belief, it is a less than voluntary, knowing, and intelligent guilty
plea.
***
THE COURT: Here’s what I need to tell you about that. I don’t ever,
ever agree to a sentence at a plea. I don’t do it. And the reason that I
don’t do it is because of sentencing hearings. There’s a reason why we
have hearings for sentences, so that I can hear the evidence that I’m
not aware of at the time that the plea deal is made. So I don’t ever say
to the lawyers this is what I will do at sentencing. I just don’t do it.
THE DEFENDANT: I –
THE COURT: That’s why I didn’t do it at this time.
THE DEFENDANT: I understand –
THE COURT: Don’t interrupt me. That’s why every time I take a plea I
make it a point to say to the defendant do you understand I could
sentence you up to the maximum amount on each of these counts.
That statement was made to you while you knew that the case with
Judge D’Apolito was pending. Yes, what else would you like to say?
THE DEFENDANT: That statement was made to me from you like
three minutes after I was kind of comforted that you were really
receptive to concurrent time; we don’t see a problem with this. That’s
why I wanted the sentence quick. I didn’t think your mind would get
changed in a weekend. I mean, I would have never signed this. I’m
guilty of things, but not what I signed off on. Like I’m guilty of
misdemeanors, like a whole bunch of them. Like I’m not denying that at
all. The --
Emphasis added. Sentencing Tr. 25, 32-33, 34-36.
-8-
{¶23} The key word in the above colloquy is “receptive.” Receptive means
“open and responsive to ideas, impressions, or suggestions.”
http://www.merriam-webster.com/dictionary/receptive. Counsel’s and Appellant’s
continual use of the word “receptive” means the trial court was willing to consider
concurrent sentences, not that it was going to impose concurrent sentences.
{¶24} Furthermore, despite Appellant’s insistence, this case is not akin to
Ortello. In Ortello the trial court created confusion by repeated comments of what
sentence it would likely impose. Ortello, 2015-Ohio-3503 at ¶ 25. In this instance,
we do not have any evidence of repeated comments regarding a possible concurrent
sentence. In fact, the plea agreement is devoid of any discussion of whether the
sentence would run concurrent or consecutive to case number 14CR915; the state
indicated it would stand silent on the issue at sentencing and no further mention of
the issue was made. In Ortello, there were also other issues which called into doubt
the voluntary, intelligent, and knowing nature of the plea. Id. at ¶ 30 (There were
ambiguities at the plea hearing as to firearm specifications, the length of the
maximum possible sentence, and what the stated eight-to-ten-year period might
include.). Those issues are not present in this case.
{¶25} Consequently, for those reasons, this court concludes the trial court
was not actively involved in the plea negotiations, and the plea was entered into
voluntarily, intelligently, and knowingly. This assignment of error is deemed
meritless.
Second Assignment of Error
“The hearing court abused its discretion in denying Appellant’s request to
withdraw his plea after the plea agreement was violated.”
{¶26} Under this assignment of error, Appellant argues the trial court should
have permitted him to withdraw his guilty plea because the state breached the plea
agreement when it discussed his criminal record and the facts of the case.
{¶27} The plea agreement was mentioned both at the plea hearing and at the
sentencing hearing. The state indicated the agreement was for the state to
recommend a 36-month sentence and to stand silent on the issue of whether the
sentence should run concurrent or consecutive to the sentence imposed in case
-9-
number 14CR915. Plea Tr. 2; Sentencing Tr. 3-4. The state recommended a 36-
month sentence, and it did not explicitly present an argument for a consecutive
sentence. Tr. 3-4. However, the state did give the trial court a recitation of
Appellant’s criminal record and the facts of the case. Tr. 4-5. It did so because there
was no pre-sentence investigation; Appellant waived it, and the sentencing occurred
four days after the guilty plea was entered.
{¶28} A plea agreement is an essential part of the criminal justice system.
Vari, 7th Dist. No. 07MA142, 2010-Ohio-1300, ¶ 19, citing Santobello v. New York,
404 U.S. 257, 261, 92 S. Ct. 495 (1971). “Principles of contract law are generally
applicable to the interpretation and enforcement of plea agreements.” Bethel, 2006–
Ohio–4853 at ¶ 50. A defendant has a contractual right to enforcement of the
prosecutor's obligations under the plea agreement after the plea has been accepted
by the court. Vari at ¶ 25. If the state breaches a plea agreement, the defendant is
entitled to either rescission (withdrawal of the plea) or specific performance.
Santobello, 404 U.S. at 263; see, also, Vari, 2010–Ohio–1300 at ¶ 27.
{¶29} We are asked to determine whether the statements made by the state
at sentencing violated the terms of the plea agreement. Appellant argues it did
because the recitation of his record was an implicit way to not stand silent on the
issue of whether the sentence should run concurrent or consecutive to the sentence
imposed in case number 14CR915. The state disagrees.
{¶30} The following are the statements made by the state at sentencing:
MS. McLAUGHLIN [prosecutor for the state]: Good afternoon, Your
Honor. * * *
This defendant waived his presentence investigation. And because the
Court does not have that information in front of it, I would just like to
give you a little bit of information about the defendant’s criminal history
and what actually happened here. This defendant was granted judicial
release. He was serving a prison term for Judge D’Apolito. And on
July 29th of 2015 the Court did hold a hearing and granted him judicial
release. It was almost immediately upon his release that he then
engaged in the criminal activity we’re here about today. Judge
-10-
D’Apolito has since found him to be in violation, revoked that judicial
release, and sentenced him to serve the balance of his term in the
institution in Case No. 14 CR915C.
***
Today the parties are jointly recommending to you a term of 36 months
in the penitentiary on this case. However, the state is making no
argument as to whether that should be concurrent to Judge D’Apolito’s
sentence or consecutive to that sentence from Judge D’Apolito.
In looking back through his criminal history, this defendant has an
extremely lengthy history. Starting in 2001, he has a disorderly
conduct. He has forgery, a felony of the fifth degree, in 2006. He has
domestic violence, a misdemeanor of the first degree, in 2005. He has
two counts of forgery, felonies of the fifth degree. Looks like those are
in 2006. He has a theft, a misdemeanor of the first degree, in 2007.
Receiving stolen property in 2007. Receiving stolen property in 2008.
Theft, a felony, in 2010. Receiving stolen property, breaking and
entering, and another count of receiving stolen property in Summit
County in 2011. And then the conviction I just spoke of, endangering
children, corrupting another with drugs, felonious assault, and
intimidation. Those were in 2014, and that’s the Judge D’Apolito case.
In addition, he has a burglary conviction in 2014, another count of
receiving stolen property, and a retaliation offense. So this is now the
second time that we have him here pleading guilty to retaliation-type
offenses.
In this case the victims came to court to address the issue of the
defendant’s judicial release. They were present in the courtroom. I
was present at that hearing as well. Judge D’Apolito did not permit
them to address the Court because they weren’t actually victims or
parties in that litigation. However, these charges came after the
-11-
defendant was released and he told his mother he was going to kill
those individuals who had come in to speak against his judicial release.
In addition, the defendant did take his mother’s vehicle, televisions, and
cash. Her name is Deborah Devor. She has requested restitution in
the amount of $150, and I believe that actually a judgment entry was
prepared, your bailiff informed me, the last time the parties were here at
the time of the plea to order that restitution.
Sentencing Tr. 2-6.
{¶31} Appellant did not object during these statements and did not later lodge
an objection claiming the state breached its plea agreement when it made the above
statements. Failure to object waives all but plain error. State v. Adams, 2014-Ohio-
724, 8 N.E.3d 984, ¶ 23-24 (7th Dist.) (Counsel failed to object to alleged breach of
plea. Case reviewed under plain error standard.); State v. Hartley, 3d Dist. No. 5–
14–04, 2014–Ohio–4536, ¶ 9 (Failure to object to the alleged breach of the plea
agreement in the trial court resulted in forfeiture of “all but plain error on appeal.”);
State v. Dudas, 11th Dist. Nos. 2006–L–267, 2006–L–268, 2007–Ohio–6739, ¶ 93
(same).
{¶32} Pursuant to Crim.R. 52(B), “Plain errors or defects affecting substantial
rights may be noticed although they were not brought to the attention of the court.”
Plain error is a discretionary doctrine to be used with the utmost of care by the
appellate court only in exceptional circumstances in order to avoid a manifest
miscarriage of justice. State v. Noling, 98 Ohio St. 3d 44, 2002-Ohio-7044, 781
N.E.2d 88, ¶ 62.
{¶33} In this instance, this court concludes there was no error, plain or
otherwise. The state did not breach the plea agreement; it stood silent on the
concurrent versus consecutive sentence issue. Admittedly, the state did reference
Appellant’s criminal record and the facts of the case. However, the state was merely
stating facts; it was not presenting an argument on whether the sentence should be
concurrent or consecutive to the sentence imposed in case number 14CR915. In this
case, those facts were necessary for the trial court to hear; there was no presentence
investigation. Thus, the trial court had no information regarding Appellant’s prior
-12-
record. An offender’s prior criminal record is an important consideration for trial
courts when it is formulating a sentence that is guided by the purposes and principles
of sentencing enumerating in R.C. 2929.11 and R.C. 2929.12. Furthermore, the
state only recited the criminal record; it did not connect that recitation to any
argument.
{¶34} Consequently, this court concludes there was no breach of the plea
agreement. This assignment of error is meritless.
Third Assignment of Error
“Appellant received ineffective assistance of counsel in that defense counsel
admittedly induced a mistaken belief in Appellant that he would be receiving
concurrent sentences.”
{¶35} At the sentencing hearing, after hearing the trial court imposed a
consecutive sentence, Appellant orally moved to vacate his plea. He argued it was
represented to him that his sentence would run concurrent to the sentence imposed
in case number 14CR915. On appeal, he argues trial counsel was ineffective
because counsel told him he would receive a concurrent sentence. Appellant’s belief
he would receive a concurrent sentence was the reason he entered into the plea
agreement. He argued then and argues now that had he known it would be a
consecutive sentence he would never have entered into the plea agreement.
Sentencing Tr. 24, 33-34.
{¶36} “A motion to withdraw a plea of guilty or no contest may be made only
before sentence is imposed; but to correct manifest injustice the court after sentence
may set aside the judgment of conviction and permit the defendant to withdraw his or
her plea.” Crim.R. 32.1. The post-sentence motion to withdraw a guilty plea is
reserved for extraordinary circumstances. State v. Smith, 49 Ohio St. 2d 261, 264,
361 N.E.2d 1324 (1977). The defendant has the burden of establishing the existence
of manifest injustice. State v. Caraballo, 17 Ohio St. 3d 66, 67, 47 N.E.2d 627 (1985);
Smith, 49 Ohio St. 2d at 264, 361 N.E.2d 1324.
{¶37} Manifest injustice to support withdrawal of a guilty plea can take the
form of ineffective assistance of counsel. State v. Dalton, 153 Ohio App. 3d 286,
2003–Ohio–3813, 793 N.E.2d 509 ¶ 18 (10th Dist.). See also State v. Howard, 7th
-13-
Dist. No. 12MA41, 2012–Ohio–1437. In seeking to invalidate a guilty plea based on
ineffective assistance of counsel, a defendant must demonstrate counsel's
performance was deficient and he was prejudiced by the deficiency, i.e. a reasonable
probability he would not have agreed to plead guilty but for counsel's deficiency.
State v. Xie, 62 Ohio St. 3d 521, 524, 584 N.E.2d 715 (1992) (a presentence motion
case), applying Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984)
(setting forth the basic two-part test for evaluating counsel's performance) and Hill v.
Lockhart, 474 U.S. 52, 106 S. Ct. 366 (1985) (applying Strickland to an attorney's
representation at the plea stage). A defendant's failure to satisfy one prong of the
Strickland test negates a court's need to consider the other prong. State v. Madrigal,
87 Ohio St. 3d 378, 389, 721 N.E.2d 52 (2000).
{¶38} Appellant’s arguments are meritless. The assertions made at the
sentencing hearing were the trial court was “receptive” to running the sentence
concurrent to the sentence imposed in case number 14CR915. Both defense
counsel and Appellant used that word. Sentencing Tr. 25, 32, 35. As stated under
the first assignment of error, the word “receptive” means the trial court would
consider the issue. It does not mean the trial court had already decided it would give
a concurrent sentence. Appellant admitted counsel told him the trial court was
“receptive” to concurrent sentences. Sentencing Tr. 25, 32, 35. Nothing in the
record indicates counsel told Appellant he would receive a concurrent sentence.
{¶39} Furthermore, the trial court’s statements during sentencing clearly
indicate it was receptive to concurrent sentences:
THE COURT: I’m not a party to your conversations with your counsel.
I don’t know what went on, what was said, what wasn’t said. I know
that we always have conversations about what’s likely and what I might
be receptive to. And I always leave the door open for this very reason.
I hear things at sentencing hearing that either I didn’t hear earlier or that
I wasn’t aware of. Today I heard some very serious allegations with
regard to your past behavior. That influenced my decision, as I said
earlier, as to whether these should run consecutive or concurrent.
That’s the reason that we have sentencing hearings. That’s the reason
-14-
why I have discretion to do what I do. That’s the reason that I always
tell people are you aware that this could happen.
Sentencing Tr. 36-37.
{¶40} Given the record, counsel conveyed the information accurately; the
court was receptive to running the sentence concurrent to case number 14CR915. It
was for Appellant to decide whether to take the plea. Being receptive to possibly
imposing the sentence concurrent to the sentence in case number 14CR915 was not
a guarantee of imposing a concurrent sentence. Consequently, there is no evidence
counsel’s performance was deficient. This assignment of error is without merit.
Conclusion
{¶41} All assignments of error are meritless. The conviction and the trial
court’s decision to deny the motion to withdraw the guilty plea are affirmed.
Donofrio, P.J., concurs.
Waite, J., concurs.