State v. Frazier

[Cite as State v. Frazier, 2019-Ohio-1546.]
IN THE COURT OF APPEALS OF OHIO
SECOND APPELLATE DISTRICT
CLARK COUNTY
STATE OF OHIO :
:
Plaintiff-Appellee : Appellate Case No. 2018-CA-33
:
v. : Trial Court Case No. 2017-CR-597
:
TRAVON M. FRAZIER : (Criminal Appeal from
: Common Pleas Court)
Defendant-Appellant :
:
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OPINION
Rendered on the 26th day of April, 2019.
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ANDREW P. PICKERING, Atty. Reg. No. 0068770, Assistant Prosecuting Attorney, Clark
County Prosecutor’s Office, 50 East Columbia Street, Suite 449, Springfield, Ohio 45502
Attorney for Plaintiff-Appellee
V. GAYLE MILLER, Atty. Reg. No. 0091528, P.O. Box 10124, Dayton, Ohio 45402
Attorney for Defendant-Appellant
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WELBAUM, P.J.
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{¶ 1} Defendant-appellant, Travon M. Frazier, appeals from his conviction and
sentence in the Clark County Court of Common Pleas after he pled guilty to one count of
improperly handling a firearm in a motor vehicle. In support of his appeal, Frazier claims
that the six-month prison sentence he received for his offense was contrary to law.
Frazier also claims that his guilty plea and sentence should be vacated as a result of the
State’s breach of the parties’ plea agreement. Frazier further claims that his trial counsel
provided ineffective assistance by failing to object to the State’s breach of the plea
agreement. Having found no merit to any of Frazier’s claims, we will affirm the judgment
of the trial court.
Facts and Course of Proceedings
{¶ 2} On October 10, 2017, the Clark County Grand Jury returned an indictment
charging Frazier with one count of trafficking in marijuana in violation of R.C.
2925.03(A)(2), with an attached firearm specification, one count of improperly handling a
firearm in a motor vehicle in violation of R.C. 2923.16(B), and one count of carrying a
concealed weapon in violation of R.C. 2923.12(A). Each count included a forfeiture
specification for certain items of property that Frazier allegedly used in the commission of
the indicted offenses.
{¶ 3} As part of a plea agreement with the State, Frazier agreed to plead guilty to
improperly handling a firearm in a motor vehicle. Frazier also agreed to forfeit the items
of property that were identified in the forfeiture specifications. In exchange for Frazier’s
guilty plea and the forfeiture of property, the State agreed to dismiss the remaining
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charges and firearm specification. The State also agreed to request a presentence
investigation (“PSI”) and to recommend community control sanctions.
{¶ 4} At the plea hearing, the prosecutor who negotiated the plea agreement with
Frazier stated the terms of the plea agreement on the record. With regard to
recommending community control, the prosecutor specifically advised that “the State of
Ohio will recommend community control at disposition.” Plea Trans. (Jan. 19, 2018), p.
3-4.
{¶ 5} The terms of the plea agreement were also memorialized on a plea form
signed by Frazier and counsel. The plea form provided that in exchange for Frazier’s
guilty plea, the State would “[d]ismiss remaining counts and specifications. PSI.
Recommendation of community control.” Plea of Guilty (Jan. 19, 2018), Docket. No. 22,
p. 2.
{¶ 6} Following a Crim.R. 11 plea colloquy, the trial court accepted Frazier’s guilty
plea. The parties thereafter appeared at court for sentencing on February 9, 2018. The
prosecutor who covered the sentencing hearing was not the same prosecutor who had
negotiated the plea agreement with Frazier.
{¶ 7} During the sentencing hearing, the trial court asked why the negotiating
prosecutor had agreed to dismiss the other counts in the indictment and recommend
community control. The prosecutor covering the hearing stated that his file did not
indicate that a recommendation of community control was part of the plea agreement and
that, if such a recommendation had been agreed to, he did not know why. In an attempt
to clarify the matter, Frazier’s defense counsel advised the trial court that: “The
[negotiating] prosecutor was not going to recommend probation. He wasn’t opposed to
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it. That’s what we talked about in the plea arrangement.” Attempted Disposition Trans.
(Feb. 9, 2018), p. 5.
{¶ 8} The trial court ultimately decided to continue the sentencing hearing so that
the negotiating prosecutor could be present. A second sentencing hearing was
thereafter held on February 28, 2018. At the second sentencing hearing, the prosecutor
who had negotiated the plea agreement with Frazier advised the trial court that he was
aware the court had some questions about the plea agreement. The prosecutor then
proceeded to explain why he had agreed to accept a plea to improperly handling a firearm
in a motor vehicle as opposed to trafficking in marijuana. Following that explanation, the
prosecutor asked the trial court “to impose a sentence that is consistent with protecting
the public and punishing Mr. Frazier for the offense that he committed[.]” Disposition
Trans. (Feb. 28, 2018), p. 4-5.
{¶ 9} At no point during the second sentencing hearing did the prosecutor
recommend that Frazier be placed on community control, nor did the prosecutor discuss
any agreement for such a recommendation. Defense counsel did not object to any of
the prosecutor’s statements or lack thereof at the sentencing hearing. Accordingly, the
trial court proceeded to sentencing and sentenced Frazier to six months in prison for his
offense.
{¶ 10} Frazier now appeals from his conviction and sentence, raising four
assignments of error for review.
First and Second Assignments of Error
{¶ 11} For purposes of clarity, we will address Frazier’s First and Second
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Assignments of Error together, as they both challenge Frazier’s six-month prison
sentence as being contrary to law. Under his First Assignment of Error, Frazier contends
that his sentence was contrary to law because the trial court did not indicate, at the
sentencing hearing, that it considered the seriousness and recidivism factors in R.C.
2929.12. Under his Second Assignment of Error, Frazier contends that his sentence
was contrary to law because the trial court failed to comply with R.C. 2929.19(A) by not
affording him the opportunity to make a statement at the sentencing hearing after his
sentence was imposed.
{¶ 12} As a preliminary matter, we note that in reviewing felony sentences,
appellate courts must apply the standard of review set forth in R.C. 2953.08(G)(2). State
v. Marcum, 146 Ohio St.3d 516, 2016-Ohio-1002, 59 N.E.3d 1231, ¶ 1. Under R.C.
2953.08(G)(2), an appellate court may increase, reduce, or modify a sentence, or it may
vacate the sentence and remand for resentencing, only if it “clearly and convincingly”
finds either (1) that the record does not support certain specified findings or (2) that the
sentence imposed was contrary to law.
{¶ 13} “In general, a sentence is not contrary to law when it is within the authorized
statutory range and the trial court states that it has considered the principles and purposes
of sentencing [set forth in R.C. 2929.11] and the seriousness and recidivism factors [set
forth in R.C. 2929.12].” (Citation omitted.) State v. Bradley, 2d Dist. Greene No. 2017-
CA-64, 2018-Ohio-3192, ¶ 5. “ ‘The trial court has full discretion to impose any sentence
within the authorized statutory range, and the court is not required to make any findings
or give its reasons for imposing maximum or more than minimum sentences.’ ” State v.
Fyffe, 2018-Ohio-112, 109 N.E.3d 51, ¶ 31 (2d Dist.), quoting State v. King, 2013-Ohio-
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2021, 992 N.E.2d 491, ¶ 45 (2d Dist.).
{¶ 14} However, in exercising its discretion, a trial court must consider the statutory
policies set out in R.C. 2929.11 and R.C. 2929.12. State v. Castle, 2016-Ohio-4974, 67
N.E.3d 1283, ¶ 26 (2d Dist.). A defendant’s sentence is not contrary to law when the
trial court expressly states in its sentencing entry that it has considered the principles and
purposes of sentencing in R.C. 2929.11 and the seriousness and recidivism factors in
R.C. 2929.12, but neglects to mention those statutes at the sentencing hearing. State v.
Battle, 2d Dist. Clark No. 2014 CA 5, 2014-Ohio-4502, ¶ 15, citing State v. Miller, 2d Dist.
Clark No. 09-CA-28, 2010-Ohio-2138, ¶ 43. Even if there is no specific mention of R.C.
2929.11 or R.C. 2929.12 in the record, it is presumed that the trial court gave proper
consideration to those statutes. State v. English, 2d Dist. Montgomery No. 26337, 2015-
Ohio-1665, ¶ 22.
{¶ 15} In this case, the trial court specifically stated in the sentencing entry that it
had considered “the principles and purposes of sentencing under Ohio Revised Code
Section 2929.11, and then balanced the seriousness and recidivism factors under Ohio
Revised Code Section 2929.12.” Judgment Entry of Conviction (Mar. 1, 2018), Docket
No. 25, p. 1. The fact that the trial court did not make a similar statement at the
sentencing hearing is irrelevant, as no such statement was required. Therefore,
Frazier’s claim that his sentence was contrary to law because the trial court failed to state
at the sentencing hearing that it considered the factors under R.C. 2929.12 lacks merit.
{¶ 16} Also lacking in merit is Frazier’s claim that his sentence was contrary to law
due to the trial court’s failure to comply with R.C. 2929.19(A). That statute provides, in
pertinent part, as follows:
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The court shall hold a sentencing hearing before imposing a sentence under
this chapter upon an offender who was convicted of or pleaded guilty to a
felony[.] * * * The court shall * * * ask the offender whether the offender has
anything to say as to why sentence should not be imposed upon the
offender.
R.C. 2929.19(A).
{¶ 17} Crim.R. 32(A)(1) similarly provides that: “At the time of imposing sentence,
the court shall * * * address the defendant personally and ask if he or she wishes to make
a statement in his or her own behalf or present any information in mitigation of
punishment.”
{¶ 18} “R.C. 2929.19(A) and Crim.R. 32(A)(1) unambiguously require that an
offender be given an opportunity for allocution whenever a trial court imposes a sentence
at a sentencing hearing.” State v. Jackson, 150 Ohio St.3d 362, 2016-Ohio-8127, 81
N.E.3d 1237, ¶ 10, citing State v. Campbell, 90 Ohio St.3d 320, 738 N.E.2d 1178 (2000),
paragraph one of the syllabus. Both this court and the Supreme Court of Ohio have
recognized that a trial court complies with a defendant’s right of allocution when it
personally addresses the defendant and asks whether he or she has anything to say.
See, e.g., State v. Osie, 140 Ohio St.3d 131, 2014-Ohio-2966, 16 N.E.3d 588, ¶ 180
(finding the trial court complied with defendant’s right of allocution when, prior to being
resentenced, the trial court asked the defendant “whether he wished to say anything, and
[defendant] said that he did not”); State v. Shuri, 2d Dist. Greene No. 2009-CA-39, 2010-
Ohio-1616, ¶ 4-6 (finding no violation of Crim.R. 32(A)(1) when, prior to sentencing, the
trial court stated: “[Y]ou have the right to make a statement if you wish at this point in
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time. You’re not required to say anything, but if you want to say anything, I’m certainly
willing to listen.”). See also State v. Hunter, 2d Dist. Montgomery No. 13614, 1993 WL
290216, *5-6 (July 23, 1993).
{¶ 19} In this case, the record indicates that at both the attempted sentencing
hearing and the actual sentencing hearing, the trial court asked Frazier if he wanted to
say anything prior to being sentenced. Although he was given the opportunity to speak
before he was sentenced, Frazier nevertheless claims his right of allocution was violated
because the trial court did not give him the opportunity to speak after his sentence was
imposed.
{¶ 20} Frazier has not provided any authority supporting the proposition that a
defendant must be afforded the right to allocation after the trial court has imposed a
sentence. In fact, the plain language of both R.C. 2929.19(A) and Crim.R. 32(A)(1)
indicates otherwise.
{¶ 21} As previously noted, R.C. 2929.19(A) provides that the court shall “ask the
offender whether the offender has anything to say as to why sentence should not be
imposed upon the offender.” (Emphasis added.) Crim.R. 32(A)(1) also provides that
the court must afford the defendant the opportunity to make a statement “at the time of
imposing sentence” and that the defendant may “make a statement in his or her own
behalf or present any information in mitigation of punishment.” (Emphasis added.) The
language in both provisions indicates that a defendant must be given an opportunity to
speak on his or her own behalf before the trial court imposes a sentence. This is logical
because the right to allocution “represents a defendant’s last opportunity to plead his case
or express remorse.” State v. Green, 90 Ohio St.3d 352, 360, 738 N.E.2d 1208 (2000).
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{¶ 22} In Green, the Supreme Court of Ohio specifically held that “the trial court
clearly erred in not explicitly asking [the defendant], in an inquiry directed only to him,
whether he had anything to say before he was sentenced.” (Emphasis added.) Id. at
359. In so holding, the Supreme Court explained that:
[U]nder the comparable Federal Rules: “Trial judges before sentencing
should * * * unambiguously address themselves to the defendant. * * *
[J]udges should leave no room for doubt that the defendant has been issued
a personal invitation to speak prior to sentencing.”
(Emphasis added.) Id., quoting Green v. United States, 365 U.S. 301, 305, 81 S.Ct. 653,
5 L.Ed.2d 670 (1961). Therefore, Frazier’s claim that his sentence was contrary to law
because the trial court did not give him an opportunity to speak after imposing his
sentence lacks merit.
{¶ 23} Frazier’s First and Second Assignments of Error are overruled.
Third Assignment of Error
{¶ 24} Under his Third Assignment of Error, Frazier claims that the State breached
the parties’ plea agreement by failing to recommend community control at sentencing.
Frazier claims that because his decision to enter a guilty plea rested significantly on the
State’s agreement to recommend community control, his guilty plea was induced by a
false promise, which warrants vacating his plea and sentence. Frazier also takes issue
with the fact that the trial court was aware of the plea agreement and yet went forward
with sentencing even though the State failed to recommend community control.
{¶ 25} “When a prosecutor induces a defendant to plead guilty based upon certain
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promises, the prosecutor has a duty to keep those promises.” State v. Simpson, 158
Ohio App.3d 441, 2004-Ohio-4690, 816 N.E.2d 609, ¶ 14 (2d Dist.), citing Santobello v.
New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971). (Other citation omitted.)
Upon a breach of the agreement, the defendant is entitled to either specific performance
by the State or withdrawal of the plea. Id.{¶ 26} In an effort to establish that the State did not breach the parties’ plea
agreement, the State cites this court’s opinion in State v. Gibson, 2d Dist. Greene No.
2017-CA-7, 2017-Ohio-6995. In Gibson, the defendant and the State entered a plea
agreement wherein the State agreed to recommend community control sanctions. Id. at
¶ 3. On appeal, the defendant argued that the State breached the plea agreement by
remaining silent at sentencing and not advocating for community control. Id. at ¶ 5. In
finding no breach of the plea agreement, we stated as follows:
[W]e see no breach of the plea agreement by the prosecutor. Unlike some
agreements, the agreement in this case did not obligate the prosecutor to
recommend community control at sentencing. The agreement simply
stated: “The Defendant will plead guilty as charged in the indictment. The
State recommends Community Control Sanctions and will not bring forward
any new charges * * *.” The State made its present-tense recommendation
in the plea agreement itself, and the agreement was made part of the
record. Nothing in the agreement obligated the prosecutor to repeat, at
sentencing, the recommendation that already had been made and
memorialized in the record.
(Emphasis sic.) Id. at ¶ 7.
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{¶ 27} The instant case is distinguishable from Gibson in that the prosecutor
specifically indicated at the plea hearing that “the State of Ohio will recommend
community control at disposition.” (Emphasis added.) Plea Hearing Trans. (Jan. 19,
2018), p. 3-4. However, even then, at the first attempted sentencing hearing, defense
counsel later advised the trial court that “[t]he prosecutor was not going to recommend
probation. He wasn’t opposed to it. That’s what we talked about in the plea
arrangement.” Attempted Disposition Trans. (Feb. 9, 2018), p. 5. The record indicates
the State in fact made no recommendation for community control at the sentencing
hearing, which was consistent with what defense counsel had told the trial court.
Therefore, when considering defense counsel’s statement, it does not appear as though
the prosecutor breached the parties’ actual plea agreement.
{¶ 28} That said, even if we were to find that the prosecutor breached the plea
agreement by not recommending community control at sentencing, we are limited to a
plain-error review since Frazier did not object to the prosecutor’s silence. Gibson at ¶ 8,
citing State v. Becraft, 2d Dist. Clark No. 2016-CA-9, 2017-Ohio-1464, ¶ 37; State v. Kline,
2d Dist. Champaign No. 2009-CA-02, 2010-Ohio-3913, ¶ 5; Puckett v. United States, 556
U.S. 129, 129 S.Ct. 1423, 173 L.Ed.2d 266 (2009) (holding that a plain-error review is
appropriate in the context of failing to object to the government’s breach of a plea
agreement).
{¶ 29} “To establish plain error, [Frazier] must point to an obvious error that
affected the outcome of the proceedings below.” Kline at ¶ 5, citing State v. Rohrbaugh,
126 Ohio St.3d 421, 2010-Ohio-3286, 934 N.E.2d 920, ¶ 6. “Reversal is warranted only
if the outcome ‘clearly would have been different absent the error.’ ” Id., citing State v.
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Hill, 92 Ohio St.3d 191, 203, 749 N.E.2d 274 (2001). Notice of plain error “is to be taken
with the utmost caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),
paragraph three of the syllabus.
{¶ 30} In this case, Frazier cannot establish that the outcome of his case would
have been different had the prosecutor recommended community control at the
sentencing hearing. This is because the trial court would not have been bound to follow
any such recommendation. See State v. Alvarez, 154 Ohio App.3d 526, 2003-Ohio-
5094, 797 N.E.2d 1043, ¶ 15-16 (noting the sentencing court “was not in any way bound
by the state’s recommendation [that defendant receive community control sanctions]”); In
re Disqualification of Mitrovich, 74 Ohio St. 3d 1219, 1220, 657 N.E.2d 1333 (1990) (“the
acceptance or rejection of a plea bargain is within the sound discretion of the trial judge”).
{¶ 31} We also note that the prosecutor did not advocate for a prison sentence at
the sentencing hearing. Instead, the prosecutor simply asked the court “to impose a
sentence that is consistent with protecting the public and punishing Mr. Frazier for the
offense that he committed.” Disposition Trans. (Feb. 28, 2018), p. 4-5. In doing so, the
trial court determined that a prison sentence was appropriate. This was well within the
trial court’s discretion.
{¶ 32} It would be mere speculation to conclude that Frazier would have been
sentenced differently had the prosecutor recommended community control. It is well-
established that speculation does not suffice to demonstrate plain error. See State v.
Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 108 (finding no plain
error when the accused’s claim “is totally speculative”); State v. Sanders, 92 Ohio St.3d
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245, 265, 750 N.E.2d 90 (2001) (finding no plain error because defendant’s claim “rests
wholly on speculation” and “it is not clear that the outcome would have been otherwise
but for the error”); State v. Belcher, 2d Dist. Montgomery No. 24968, 2013-Ohio-1234,
¶ 66 (finding no plain error “because any finding of prejudice would have to rely on
speculation”). Therefore, when considering the facts of this case, the State’s failure to
recommend community control at the sentencing hearing did not constitute plain error.
{¶ 33} Frazier’s Third Assignment of Error is overruled.
Fourth Assignment of Error
{¶ 34} Under his Fourth Assignment of Error, Frazier contends that his trial counsel
provided ineffective assistance by failing to raise an objection at the sentencing hearing
when the prosecutor failed to recommend community control. Frazier contends that he
was prejudiced by this failure because it waived all but plain error with regard to his claim
that the State breached the parties’ plea agreement.
{¶ 35} Alleged instances of ineffective assistance of trial counsel are reviewed
under the two-pronged analysis set forth in Strickland v. Washington, 466 U.S. 668, 687,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Supreme Court of Ohio in
State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). To prevail on an ineffective
assistance claim, a defendant must establish: (1) that his or her trial counsel’s
performance was deficient and (2) that the deficient performance resulted in prejudice.
Strickland at paragraph two of the syllabus; Bradley at paragraph two of the syllabus.
The failure to make a showing of either deficient performance or prejudice defeats a claim
of ineffective assistance of counsel. Strickland at 697.
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{¶ 36} To establish deficient performance, it must be shown that trial counsel’s
performance fell below an objective standard of reasonable representation. Id. at 688.
In evaluating counsel’s performance, “a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance; that
is, the defendant must overcome the presumption that, under the circumstances, the
challenged action ‘might be considered sound trial strategy.’ ” Id. at 689, quoting Michel
v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955).
{¶ 37} To establish prejudice, the defendant must demonstrate that there is “a
reasonable probability that, but for counsel’s errors, the proceeding’s result would have
been different.” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864,
¶ 204, citing Strickland at 687-688 and Bradley at paragraph two of the syllabus. “ ‘A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.’ ” Bradley at 142, quoting Strickland at 694.
{¶ 38} We stress that “ ‘[a] claim of ineffective assistance of counsel cannot be
predicated upon a matter which did not constitute error.’ ” State v. Lanier, 2d Dist. Clark
No. 2007 CA 77, 2008-Ohio-4018, ¶ 42, quoting State v. Harrison, 2d Dist. Montgomery
No. 21548, 2007-Ohio-2421, ¶ 22. As previously noted, Frazier’s defense counsel
advised the trial court that “[t]he prosecutor was not going to recommend probation. He
wasn’t opposed to it. That’s what we talked about in the plea arrangement.” Attempted
Disposition Trans. (Feb. 9, 2018), p. 5. Frazier does not mention this comment in his
appellate brief nor challenge it in any manner. Rather, in support of his ineffective
assistance claim, Frazier simply argues that his trial counsel was ineffective in failing to
object when the State did not recommend community control at sentencing. However,
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when considering defense counsel’s comment about the parties’ plea agreement, it does
not appear as though such an objection would have been warranted.
{¶ 39} Although the record establishes that the State, for whatever reason,
indicated a recommendation of community control was part of the plea agreement,
defense counsel later explained to the trial court that the parties’ actual agreement did
not include a recommendation for community control. Rather, defense counsel
explained that the State was simply not going to oppose community control, which is what
transpired at the second sentencing hearing. Based on defense counsel’s clarification
of the plea agreement, which Frazier does not challenge on appeal, we do not find that
defense counsel was deficient in failing to object when the State did not recommend
community control at sentencing. Therefore, because Frazier cannot establish deficient
performance on the part of this trial counsel, his ineffective assistance claim must fail.
{¶ 40} Frazier’s Fourth Assignment of Error is overruled.
Conclusion
{¶ 41} Having overruled all four assignments of error raised by Frazier, the
judgment of the trial court is affirmed.
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HALL J., concurs.
FROELICH, J., concurs:
{¶ 42} The State promised, both orally at the plea hearing and in a written plea
form, that in exchange for Frazier’s plea of guilty it would recommend community control
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at disposition. Instead, at disposition, the prosecutor explicitly asked the court “to impose
a sentence that is consistent with protecting the public and punishing Mr. Frazier for the
offense that he committed.”
{¶ 43} When defense counsel stated that the “prosecutor was not going to
recommend probation. He wasn’t opposed to it…,” he specifically contradicted the oral
and written representations of the State; this was compounded by the court’s failure to
inform the Frazier that it was not bound by the State’s recommendation.
{¶ 44} Frazier’s only assigned error challenges the court’s sentence. As in tort law,
there can be an unintended breach of a duty, but still be no remedy unless there is proven
injury or damages; even if the State had kept its promises, it is, on this record, speculation
as to what the sentence would have been.
Copies sent to:
Andrew P. Pickering
V. Gayle Miller
Hon. Douglas M. Rastatter