State v. Downing , 2019 Ohio 4831 ( 2019 )

[Cite as State v. Downing, 2019-Ohio-4831.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
CLERMONT COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2019-05-038
: OPINION
- vs - 11/25/2019
:
JEREMY DOWNING, :
Appellant. :
CRIMINAL APPEAL FROM CLERMONT COUNTY COURT OF COMMON PLEAS
Case No. 2018-CR-0498
D. Vincent Faris, Clermont County Prosecuting Attorney, Nicholas Horton, 76 South
Riverside Drive, 2nd Floor, Batavia, Ohio 45103, for appellee
Denise S. Barone, 385 North Street, Batavia, Ohio 45103, for appellant
RINGLAND, J.
{¶ 1} Appellant, Jeremy Downing, appeals the sentence imposed by the Clermont
County Court of Common Pleas. For the reasons detailed below, we affirm.
{¶ 2} Downing was indicted for attempted murder, felonious assault, aggravated
robbery, aggravated burglary, and kidnapping. As part of a plea agreement, Downing pled
guilty to aggravated burglary, aggravated robbery, and one count of kidnapping. The state
Clermont CA2019-05-038
then dismissed the charges for attempted murder, felonious assault, and the remaining
kidnapping count. The plea agreement also included the removal of the violent offender
specifications in the indictment and the parties jointly recommended an agreed 15-year
prison sentence.
{¶ 3} The trial court accepted Downing's plea and adopted the agreed sentence of 15
years. Specifically, Downing was sentenced to seven years for aggravated robbery,
concurrent to seven years for aggravated burglary, and a consecutive eight years for
kidnapping. Downing now appeals, raising a single assignment of error for review:
{¶ 4} THE TRIAL COURT ERRED TO THE PREJUDICE OF DEFENDANT-
APPELLANT IN SENTENCING HIM TO SERVE A FIFTEEN-YEAR TERM.
{¶ 5} In his sole assignment of error, Downing argues that his 15-year sentence was
excessive. We find no merit to Downing's argument.
{¶ 6} This court reviews felony sentences pursuant to the standard of review set forth
in R.C. 2953.08(G)(2) to determine whether the imposition of those sentences is clearly and
convincingly contrary to law. State v. Julious, 12th Dist. Butler No. CA2015-12-224, 2016-
Ohio-4822, ¶ 8. However, in challenging his sentence, Downing fails to comprehend that he
was sentenced pursuant to an agreed sentence. During the plea hearing, the following
exchange took place:
THE COURT: * * * So Mr. Downing is going to plead guilty to
Count III, aggravated robbery; Count IV, aggravated burglary;
Count VI, kidnapping. These all carry presumptions of prison.
And the State is making a recommendation on sentence, and it's
an agreed sentence.
Is that your understanding, [Downing's trial counsel]?
[COUNSEL]: Yes.
THE COURT: Mr. Downing, is that your understanding?
THE DEFENDANT: Yes.
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In fact, the reviewability of the agreed sentence was specifically addressed during the plea
hearing:
THE COURT: * * * And you understand, Mr. Downing, if the
Court accepts the recommendations and imposes that
recommendation that you have no right to appeal later on if you
have a change of heart? That's what an agreed sentence is; you
understand that?
THE DEFENDANT: Yes.
{¶ 7} R.C. 2953.08(D)(1) provides that "[a] sentence imposed upon a defendant is
not subject to review under this section if the sentence is authorized by law, has been
recommended jointly by the defendant and the prosecution in the case, and is imposed by a
sentencing judge." In other words, a sentence that is "contrary to law" is generally
appealable as provided in R.C. 2953.08(A); however, an agreed-upon sentence may not be
appealable pursuant to R.C. 2953.08(D) if "(1) both, the defendant and the state agree to the
sentence, (2) the trial court imposes the agreed sentence, and (3) the sentence is authorized
by law." State v. Underwood, 124 Ohio St.3d 365, 2010-Ohio-1, ¶ 16. If all three conditions
are satisfied, the defendant's sentence is not reviewable. Id.; State v. Wardlow, 12th Dist.
Butler No. CA2014-01-011, 2014-Ohio-5740, ¶ 10.
{¶ 8} In this case, Downing and the state agreed to the sentence imposed by the trial
court and the sentence is authorized by law. Downing was sentenced to seven years for
aggravated robbery, seven years concurrent for aggravated burglary, and eight years
consecutive for kidnapping. Those offenses are first-degree felonies, carrying possible
punishments of three to eleven years. R.C. 2929.14 (A)(1)(b). Thus, Downing's sentence is
within the permissible sentencing range. We also note that Downing agreed that the
offenses did not merge, and the trial court made the relevant consecutive sentence findings
under R.C. 2929.14(C)(4). As a result, we find that all three conditions as set forth in
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Underwood are satisfied, and Downing's 15-year agreed sentence is not reviewable.
{¶ 9} Finally, Downing summarily argues that he received ineffective assistance of
counsel. However, it is not this court's duty to search the record for evidence to support an
appellant's argument as to any alleged error on appeal. State v. Doty, 12th Dist. Clermont
No. CA2018-07-055, 2019-Ohio-917, ¶ 25. We find this particularly true here considering
Downing has completely failed to point to any deficiencies in his trial counsel's performance.
Moreover, when dealing with a guilty plea, in order to establish prejudice, Downing must
show that there is a reasonable probability that, but for counsel's errors, he would not have
pled guilty. State v. Tringelof, 12th Dist. Clermont Nos. CA2017-03-015 and CA2017-03-016,
2017-Ohio-7657, ¶ 16. Downing points to nothing in the record to support his ineffective
assistance of counsel claim. As a result, we overrule Downing's sole assignment of error.
{¶ 10} Judgment affirmed.
HENDRICKSON, P.J., and PIPER, J., concur.
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