State v. Walters , 2014 Ohio 4966 ( 2014 )


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  • [Cite as State v. Walters, 2014-Ohio-4966.]
    IN THE COURT OF APPEALS OF OHIO
    FOURTH APPELLATE DISTRICT
    WASHINGTON COUNTY
    STATE OF OHIO,                 :
    :
    Plaintiff-Appellee,       :    Case Nos. 13CA33
    :                13CA36
    vs.                       :
    :    DECISION AND JUDGMENT
    BRANDON S. WALTERS,            :    ENTRY
    :
    Defendant-Appellant.       :    Released: 10/31/14
    _____________________________________________________________
    APPEARANCES:
    Jay S. Willis, Willis Legal Services, LLC, Portsmouth, Ohio, for Appellant.
    James E. Schneider, Washington County Prosecuting Attorney, and Amy
    Graham, Washington County Assistant Prosecuting Attorney, Marietta,
    Ohio, for Appellee.
    _____________________________________________________________
    McFarland, J.
    {¶1} Brandon Walters appeals his convictions in the Washington
    County Court of Common Pleas after he entered pleas of guilty to two
    separate, unrelated charges as part of an agreed plea arrangement. Walters
    pled to burglary, a felony of the third degree in violation of R.C.
    2911.12(A)(3), and illegal assembly of chemicals, a felony of the second
    degree, in violation of R.C. 2925.041(A)(C). On appeal, Walters contends
    the judgment of the trial court should be reversed because: (1) the trial court
    failed to follow Crim.R.32(A)(4), and imposition of consecutive sentences
    Washington App. Nos. 13CA33 and 13CA36                                         2
    violated R.C. 2929.14; and (2) Walters received ineffective assistance of
    counsel. Upon review, we find no merit to his assignments of error.
    Accordingly, we overrule both assignments of error and affirm the judgment
    of the trial court.
    FACTS
    {¶2} The Washington County Grand Jury indicted Brandon Walters
    (Appellant) on November 1, 2012, on a two-count indictment for burglary,
    count one, a felony of the third degree, and safecracking, count two, a felony
    of the fourth degree. This indictment arose from an incident alleged to have
    occurred on or about April 27, 2012. The victim in the case was Appellant’s
    mother. Appellant was arraigned on both charges on December 28, 2012,
    and entered not guilty pleas to both counts. The case number assigned to the
    indictment was 12-CR-309. Appellant was represented by counsel on behalf
    of the Public Defender’s Office in Washington County.
    {¶3} On May 31, 2013, Appellant was again indicted by the
    Washington County Grand Jury on a two-count indictment for illegal
    manufacture of drugs, a felony of the first degree, and illegal assembly of
    chemicals, a felony of the second degree. This second indictment arose
    from two separate incidents alleged to have occurred on or about October
    23, 2012 for the first felony, and on April 19, 2013, for the second felony.
    Washington App. Nos. 13CA33 and 13CA36                                       3
    Appellant was arraigned on these charges on June 3, 2013. The case number
    assigned to the second indictment was 13-CR-146. Appellant entered pleas
    of not guilty to both counts. He was again represented by counsel from the
    Public Defender’s Office.
    {¶4} On June 7, 2013, Appellant entered pleas of guilty to count one,
    the burglary count, a violation of R.C. 2911.12(A)(3), in case number 12-
    CR-309 and illegal assembly of chemicals, count two, a violation of R.C.
    2925.041(A)(C), in case number 13-CR-146. In exchange for the guilty
    pleas, the remaining two counts of the indictments were dismissed by the
    prosecution. The plea agreement did not include an agreed sentence.
    Appellant was also represented by the Public Defender’s Office at this
    hearing. A presentence investigation was conducted and a report was
    prepared prior to sentencing which occurred on August 8, 2013.
    {¶5} At the sentencing hearing, the court’s recording equipment
    malfunctioned and the beginning of the hearing was not recorded. The
    transcript of the hearing begins in mid-sentence as Appellant’s attorney, Eric
    Fowler, concluded statements on behalf of Appellant. The “Journal Entry:
    Sentencing Hearing” filed August 22, 2013 in case number 12CR309, and
    filed separately on the same date in case number 13CR146, reveal Appellant
    was ordered to a definite term of imprisonment of two years on the burglary
    Washington App. Nos. 13CA33 and 13CA36                                                                 4
    count, and a definite period of three years on the illegal assembly count.
    The court also ordered that the time imposed in the 13CR146 case was to be
    served consecutively to the time imposed in the 12CR309 case. In the
    aggregate, Appellant received a definite term of imprisonment of five years.1
    {¶6} Appellant has timely appealed his convictions. The cases have
    been consolidated. An Agreed App.R. 9(C) Statement was filed by the trial
    court detailing as much of the missing portion of the sentencing as possible.
    Where relevant, additional facts are contained in the body of this opinion.2
    ASSIGNMENTS OF ERROR
    I. THE TRIAL COURT FAILED TO FOLLOW CRIMINAL
    RULE 32(A)(4), AND IMPOSITION OF CONSECUTIVE
    SENTENCES IN THESE CASES VIOLATED ORC 2929.14,
    AND IS NOT SUPPORTED BY THE RECORD.
    II. THE PERFORMANCE OF TRIAL COUNSEL WAS
    DEFICIENT AND DEPRIVED APPELLANT OF THE
    RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL
    GUARANTEED BY THE SIXTH AND FOURTEENTH
    AMENDMENTS TO THE UNITED STATES
    CONSTITUTION AND SECTION 10, ARTICLE I OF THE
    OHIO CONSTITUTION.
    ASSIGNMENT OF ERROR ONE
    A. STANDARD OF REVIEW
    1
    Appellant was also to receive credit for 111 days already served.
    2
    Appellee agrees with the statement of the case and statement of facts as set forth by Appellant.
    Washington App. Nos. 13CA33 and 13CA36                                          5
    {¶7} R.C. 2953.08(G)(2) provides two grounds for an appellate court
    to overturn the imposition of consecutive sentences: (1) the appellate court,
    upon its review, clearly and convincingly finds that “the record does not
    support the sentencing court’s findings” under R.C. 2929.14(C)(4); or (2) the
    sentence is otherwise clearly and convincingly contrary to law. State v.
    Bever, 4th Dist. Washington No. 13CA21-2014-Ohio-600, ¶14.
    B. LEGAL ANALYSIS
    1. Statutory “seriousness” factors.
    {¶8} Under Appellant’s first assignment of error, he claims the trial
    court’s findings that the burglary charge was a serious offense do not
    comply with Crim.R. 32(A)(4). Appellant points out there was no
    agreement or request for restitution by his mother, the victim. Crim.R.
    32(A) provides nine statutory seriousness factors, pursuant to R.C. 2929.12.
    The ones relevant to this case are set forth as follows:
    “(B) The sentencing court shall consider all of the following
    that apply regarding the offender, the offense, or the victim, and
    any other relevant factors, as indicating that the offender’s
    conduct is more serious than conduct normally constituting the
    offense:
    (2) The victim of the offense suffered serious physical,
    psychological, or economic harm as a result of the offense.
    (6) The offender’s relationship with the victim facilitated the
    offense.”
    Washington App. Nos. 13CA33 and 13CA36                                        6
    {¶9} The transcript of the sentencing hearing reveals the trial court
    began imposing sentence by stating:
    “Okay. Let the record reflect that the Court is holding this
    sentencing pursuant to the dictates of 2929.19, that Mr. Walters
    has been afforded all of his rights, pursuant to Criminal Rule
    32. The Court has considered the record, the oral statements
    made in open court this date, the pre-sentence investigation
    report, the principles and purposes of sentencing set forth in
    2929.11, and the seriousness and recidivism factors set forth in
    2929.12.
    ***
    “Seriousness factors, there was economic harm to the victim
    and it was his mother, so the relationship with the victim
    facilitated the offense of burglary. Less serious, none of those
    factors are present.”
    {¶10} The sentencing entry reads as follows:
    “[B] The Court FINDS the following factors are present which
    make this crime more serious than the norm:
    (1) The Defendant caused economic harm to the victim;
    (2) The Defendant’s relationship to the victim facilitated the
    offense, the mother was the victim in the Burglary.
    [C] The Court FINDS that there are no factors present which
    make this crime less serious than the norm.
    {¶11} Here, two seriousness factors were present. One factor is the
    “relationship to the victim,” which in this case, was mother and son.
    Another factor is the “economic harm.” The Appellant deprived his mother
    of $1,800.00. Appellant makes much of the fact that no restitution was
    requested. However, that is often the case when family members are victims
    Washington App. Nos. 13CA33 and 13CA36                                          7
    of crime. Just because a family member does not make a request for
    restitution does not also mean the victim experienced no deprivation or
    economic harm.
    {¶12} Also, the trial court is entitled to consider “any other relevant
    factor * * * indicating that the offender’s conduct is more serious than
    conduct normally constituting the offense.” State v. Forney, 2nd Dist.
    Champaign No. 2012-CA-37, 2013-Ohio-3034, ¶13; R.C. 2929.12(B). We
    do not know what “other relevant factor” the trial court may have
    considered. However it is possible the trial court considered as “any other
    relevant factor” that the victim likely suffered mental harm, psychological
    harm, lack of trust, or fear of personal safety due to the knowledge that her
    son’s drug problem was so severe that he would resort to stealing from her.
    Based upon our review, we agree with the trial court’s findings that the
    burglary charge was a serious offense. As such, we find the record does
    clearly and convincingly support the court’s findings as to the seriousness of
    Appellant’s crime.
    2. The presentence investigation.
    {¶13} Appellant also argues the trial court’s sentence contradicts the
    recommendations in the presentence investigation report. He points out the
    presentence investigation report found no factors present making either of
    Washington App. Nos. 13CA33 and 13CA36                                           8
    the charges against him more serious offenses. However, we note a trial
    court is not bound by the recommendations contained in a presentence
    investigation report. State v. Krause, 5th Dist. Richland No. 2004-CA-74,
    2005-Ohio-1058, ¶11; State v. Gavin, 2nd Dist. Montgomery No. 20783,
    2005- Ohio-4738, ¶5. A presentence investigation report is one of various
    factors for consideration when imposing sentence. 
    Krause, supra
    . Here, the
    trial court stated at the outset that the presentence investigation report had
    been considered. The trial court was not bound by the recommendations of
    the presentence investigation report. As such, even though the presentence
    investigation report’s recommendations contradict the trial court’s findings
    that the burglary charge was a serious offense, we cannot agree that the trial
    court’s sentence was clearly and convincingly contrary to law.
    2. Consecutive sentences.
    {¶14} R.C. 2929.14(C)(4) sets forth certain findings that a trial court
    must make prior to imposing consecutive sentences. 
    Id., citing State
    v.
    Black, 4th Dist. Ross No. 12CA3327, 2013-Ohio-2105, ¶¶56-57. that is,
    under Ohio law, unless the sentencing court makes the required findings set
    forth in R.C. 2929.14(C)(4), there is a presumption that sentences are to run
    concurrently. 
    Bever, supra
    , citing Black at ¶ 56; R.C. 2929.41(A).
    Washington App. Nos. 13CA33 and 13CA36                                          9
    {¶15} Under R.C. 2929.14(C)(4), a sentencing court must engage in a
    three-step analysis and make certain findings before imposing consecutive
    sentences. 
    Bever, supra
    , at ¶16; Black, at ¶57; State v. Clay, 4th Dist.
    Lawrence No. 11CA23, 2013-Ohio-4649, ¶64; State v. Howze, 10th Dist.
    Franklin Nos. 13AP-386 & 13AP-387, 2013-Ohio-4800, ¶18. Specifically,
    the sentencing court must find that (1) “the consecutive service is necessary
    to protect the public from future crime or to punish the offender”; (2)
    “consecutive sentences are not disproportionate to the seriousness of the
    offender’s conduct and to the danger the offender poses to the public”; and
    (3) one of the following:
    (a) The offender committed one or more of the multiple
    offenses while the offender was awaiting trial or sentencing,
    was under a sanction imposed pursuant to section 2929.16,
    2929.17, or 2929.18 of the Revised Code, or was under post-
    release control for a prior offense.
    (b) At least two of the multiple offenses were committed as
    part of one or more courses of conduct, and the harm caused by
    two or more of the multiple offenses so committed was so great
    or unusual that no single prison term for any of the offenses
    committed as part of any of the courses of conduct adequately
    reflects the seriousness of the offender’s conduct.
    (c) The offender’s history of criminal conduct demonstrates
    that consecutive sentences are necessary to protect the public
    from future crime by the offender. 
    Bever, supra
    , at ¶16; R.C.
    2929.14(C)(4).
    {¶16} While the sentencing court is required to make these findings,
    Washington App. Nos. 13CA33 and 13CA36                                         10
    it is not required to give reasons explaining the findings. 
    Bever, supra
    , at
    ¶16; Howze at ¶18; State v. Stamper, 12th Dist. Butler No. CA2012-08-166,
    2013-Ohio-5669, ¶23. R.C. 2929.14 clearly states the trial court may
    impose a consecutive sentence if it “finds the statutorily enumerated
    factors.” State v. Williams, 5th Dist. Licking No. 11-CA-115, 2012-Ohio-
    3211, ¶47. Furthermore, the sentencing court is not required to recite any
    “magic” or “talismanic words” when imposing consecutive sentences.
    
    Bever, supra
    , at ¶17; Clay at ¶64; Howze at ¶18; Stamper at ¶23. However,
    it must be clear from the record that the sentencing court actually made the
    required statutory findings. Bever at ¶17; Clay at ¶64; Howze at ¶18;
    Stamper at ¶23. A failure to make the findings required by R.C. 2929.14
    (C)(4) renders a consecutive sentence contrary to law. Bever at ¶17; Stamper
    at ¶23; State v. Nia, 8th Dist. Cuyahoga No. 99387, 2013-Ohio-5424, ¶22.
    The findings required by the statute must be separate and distinct findings;
    in addition to any findings relating to the purposes and goals of criminal
    sentencing. Bever at ¶17; Nia at ¶22. Appellant also argues the trial court
    made no factual findings to support a conclusion that the harm caused by
    two or more multiple offenses committed was so great or unusual that no
    single prison term for any of the offenses committed as part of any of the
    Washington App. Nos. 13CA33 and 13CA36                                         11
    courses of conduct adequately reflected the seriousness of the offender’s
    conduct. This factual finding would relate to R.C. 2929.14(C)(3)(b).
    {¶17} In State v. Baker, 4th Dist. Athens No. 13CA18, 2014-Ohio-
    1967, Baker asserted the trial court clearly and convincingly violated R.C.
    2929.14(C)(4) and Crim.R. 32(A)(4) by imposing consecutive sentences
    without making the required statutory findings. We reiterated that it is not
    necessary for the trial court to use “talismanic words in each step of [the]
    analysis to comply with RC. 2929.14(C)(4); but it must be clear from the
    record that the trial court actually made the required findings.” 
    Baker, supra
    ,
    at ¶37; (internal citations omitted.). Our review in Baker indicated the trial
    court, before it imposed sentence, stated “Okay, the Court’s considered the
    principals and purposes of sentence. The pre-sentence investigation…” At
    this point, the trial court discussed the specific details of the home invasion
    and assault of an elderly woman. Our review also indicated in the
    sentencing entry, the trial court stated it considered “principles and purposes
    of sentencing under R.C. 2929.11, and has balanced the seriousness and
    recidivism factors under R.C. 2929.12.” The trial court further specified it
    considered “the factors under R.C. 2929.13.” However, we observed
    “notably absent” from the trial court’s sentencing entry was any indication
    Washington App. Nos. 13CA33 and 13CA36                                      12
    that the court considered the factors in R.C. 2929.14(C)(4). That is not the
    case here.
    {¶18} The transcript here reveals as follows:
    “On the count, 12 CR309, burglary, this Court will impose a
    sentence of two years on that. On the 123CR145 (sic), illegal
    assembly of chemicals, a second degree felony, the Court will
    impose a sentence of three years. They will run consecutive, so
    in the aggregate, it will be five years. * * *”
    The trial court specifically stated:
    “Consecutive sentences are necessary to protect the public from
    future crime and are not disproportionate to the seriousness of
    Mr. Walters’ conduct.
    They are a part of separate courses of conduct and his criminal
    history demonstrates that consecutive sentences are necessary
    to protect the public from future crime.”
    {¶19} Here the trial court stated “consecutive sentences are necessary
    to protect the public from future crime,” as required pursuant to R.C.
    2929.14(C)(4)(1). The judge also stated [consecutive sentences] “are not
    disproportionate to the seriousness of Mr. Walters’ conduct,” as required
    pursuant to R.C. 2929.14(C)(4)(2). In making the required finding pursuant
    to R.C. 2929.14(C)(4)(3), the trial court utilized the language of R.C.
    2929.14 (C)(4)(3)(c) by stating “his criminal history demonstrates that
    consecutive sentences are necessary to protect the public from future crime,”
    Washington App. Nos. 13CA33 and 13CA36                                         13
    instead of making a finding pursuant to either R.C. 2929.14(C)(4)(3)(a) or
    (b).
    {¶20} The required findings for consecutive sentences pursuant to
    R.C. 2929.14(C)(4) are also contained in the journal entry in case number 12
    CR 309, which states:
    “The Court further FINDS:
    (1) Imposition of consecutive sentences is necessary to protect
    the public from future crime or to punish the offender.
    (2) Imposition of consecutive sentences is not disproportionate
    to the seriousness of the offenders conduct and to the danger the
    offender poses to the public.
    (3) Harm so great or unusual that a single term does not
    adequately reflect seriousness of the conduct.
    (4) Offender’s criminal history shows that consecutive terms
    are needed to protect the public.”
    {¶21} The language in journal entry, case number 13CR146 is
    identical. In both the transcript of the sentencing hearing and the journal
    entries, the trial court made the required findings, but was not required to
    give reasons explaining the findings. See 
    Bever, supra
    , at ¶16. We find no
    merit to Appellant’s argument. As such, we find the trial court’s imposition
    of consecutive sentences is not clearly and convincingly contrary to law.
    Based on the above, Appellant’s first assignment of error is overruled.
    ASSIGNMENT OF ERROR TWO
    Washington App. Nos. 13CA33 and 13CA36                                          14
    A. STANDARD OF REVIEW
    {¶22} Criminal defendants have a right to counsel, including a right
    to the effective assistance from counsel. McMann v. Richardson, 
    397 U.S. 759
    , 770, 
    90 S. Ct. 1441
    (1970); State v. Stout, 4th Dist. No. 07CA5, 2008-
    Ohio-1366, ¶21. To establish constitutionally ineffective assistance of
    counsel, a defendant must show (1) that his counsel’s performance was
    deficient and (2) that the deficient performance prejudiced the defense and
    deprived him of a fair trial. Strickland v. Washington, 
    466 U.S. 668
    , 687,
    
    104 S. Ct. 2052
    (1984); State v. Issa, 
    93 Ohio St. 3d 49
    , 67, 
    752 N.E.2d 904
    (2001); State v. Goff, 
    82 Ohio St. 3d 123
    , 139, 
    694 N.E.2d 916
    (1998). “In
    order to show deficient performance, the defendant must prove that
    counsel’s performance fell below an objective level of reasonable
    representation. To show prejudice, the defendant must show a reasonable
    probability that, but for counsel’s error, the result of the proceeding would
    have been different.” State v. Conway, 
    109 Ohio St. 3d 412
    , 2006 Ohio-
    2815, 
    848 N.E.2d 810
    , ¶95 (citations omitted). “Failure to establish either
    element is fatal to the claim.” State v. Jones, 4th Dist. No. 06CA3116,
    2008-Ohio-968, ¶14. Therefore, if one element is dispositive, a court need
    not analyze both. State v. Madrigal, 
    87 Ohio St. 3d 378
    , 389, 
    721 N.E.2d 52
    Washington App. Nos. 13CA33 and 13CA36                                           15
    (2000) (stating that a defendant’s failure to satisfy one of the elements
    “negates a court’s need to consider the other”).
    {¶23} When considering whether trial counsel’s representation
    amounts to deficient performance, “a court must indulge a strong
    presumption that counsel’s conduct falls within the wide range of reasonable
    professional assistance.” 
    Strickland, 466 U.S. at 689
    . Thus, “the defendant
    must overcome the presumption that, under the circumstances, the
    challenged action might be considered sound trial strategy.” 
    Id. “A properly
    licensed attorney is presumed to execute his duties in an ethical and
    competent manner.” State v. Taylor, 4th Dist. No. 07CA1, 2008-Ohio-482,
    ¶10, citing State v. Smith, 
    17 Ohio St. 3d 98
    , 100, 
    477 N.E.2d 1128
    (1985).
    Therefore, a defendant bears the burden to show ineffectiveness by
    demonstrating that counsel’s errors were so serious that he or she failed to
    function as the counsel guaranteed by the Sixth Amendment. State v.
    Gondor, 
    112 Ohio St. 3d 377
    , 2006 Ohio-6679, 
    860 N.E.2d 77
    , ¶62; State v.
    Hamblin, 
    37 Ohio St. 3d 153
    , 
    524 N.E.2d 476
    (1988).
    {¶24} To establish prejudice, a defendant must demonstrate that a
    reasonable probability exists that but for counsel’s errors, the result of the
    trial would have been different. State v. White, 
    82 Ohio St. 3d 15
    , 23, 
    693 N.E.2d 772
    (1998); State v. Bradley, 
    42 Ohio St. 3d 136
    , 
    538 N.E.2d 373
    Washington App. Nos. 13CA33 and 13CA36                                        16
    (1989), at paragraph three of the syllabus. Furthermore, courts may not
    simply assume the existence of prejudice, but must require that prejudice be
    affirmatively demonstrated. See State v. Clark, 4th Dist. No. 02CA684,
    2003-Ohio-1707, ¶22; State v. Tucker, 4th Dist. No. 01CA2592 (Apr.2,
    2002); State v. Kuntz, Ross App. No. 1691 (Feb. 26, 1992). There are
    countless ways to provide effective assistance in any given case; therefore,
    judicial scrutiny of counsel’s performance must be highly deferential. State
    v. Ward, 6th Dist. Ottawa No. OT-13-001, 2014-Ohio-426, ¶28, citing State
    v. Bradley, 
    42 Ohio St. 3d 136
    , 142, 
    538 N.E.2d 373
    (1989), citing Strickland
    at 689.
    B. LEGAL ANALYSIS
    {¶25} In the second assignment of error, Appellant contends he was
    rendered ineffective assistance of counsel because he was counseled to
    accept a plea bargain with no agreed sentence and gave up his right to a fair
    trial. Specifically, Appellant points out that his counsel filed only these
    pleadings on his behalf in case number 13-CR-146:
    1. Motion to Preserve Evidence, June 4, 2013
    2. Request for Discovery, June 6, 2013
    3. Request to Prosecutor for Evidence Notice and Bill of
    Particulars, June 6, 2013
    Washington App. Nos. 13CA33 and 13CA36                                                                    17
    {¶26} Appellant argues no Bill of Particulars was ever filed and the
    State never answered the Request for Discovery. Therefore, Appellant did
    not have the benefit of knowing what evidence was going to be presented
    against him, nor a specific statement of the facts alleged. Appellant points
    out his counsel was only involved in 13-CR-146 for four days, from the
    arraignment date until he was counseled to change his plea. Appellant had
    no evidence to review and he gave up his right to trial. He was counseled to
    enter a plea bargain without a stated sentence. Appellant argues prejudice is
    clear and a reasonable probability exists that, but for counsel’s errors,
    Appellant could have had a trial or, at the least, been allowed sufficient time
    to review the evidence and negotiate for a better plea bargain.
    {¶27} In response, Appellee points out Appellant fails to mention that
    counsel was appointed to represent him in case number 12-CR-309 several
    months before, prior to the second indictment.3 The pleading docket in case
    number 12-CR-309 demonstrates that the following pleadings were filed on
    behalf of Appellant in this case:
    1. Motion to Preserve Evidence, November 5, 2012
    2. Request to Prosecutor for Evidence, Notice and Bill of
    3
    Appellee attached “Appendix C” to its brief, a letter from the assistant prosecuting attorney to Appellant’s
    trial counsel dated May 21, 2013, which indicates a copy of the file concerning Appellant’s involvement in
    the manufacture of methamphetamine was provided and, essentially, contains a “proposed resolution” to
    resolve the four charges contained in both indictments. We observe, however, that this correspondence was
    not filed in the trial court, and is not properly part of the record on appeal, as provided by App.R. 9. As
    such, we will not consider Appendix C.
    Washington App. Nos. 13CA33 and 13CA36                                     18
    Particulars, November 7, 2012
    3. Request for Discovery, November 7, 2012
    4. Motion to Preserve Evidence, January 3, 2013
    5. Request for Discovery, January 3, 2013
    {¶28} The record also reflects a response to the Request for
    Discovery was filed on January 9, 2013.
    {¶29} Our review of the transcript reveals this detailed exchange
    regarding Appellant’s plea took place between Appellant and the trial court:
    THE COURT: Now, it’s my understanding, Mr. Walters, that it is
    your present intention to plead guilty to Count 1, burglary, in the 309
    case, which is a third degree felony as I’ve described, and Count 2, the
    second degree felony, illegal assembly of chemicals or possession of
    chemicals for the manufacture of drugs, a second degree felony, in the
    146 case. Is that correct sir?
    THE DEFENDANT: Yes, Your Honor.
    THE COURT: Okay. Do you understand you’re not required to
    plead guilty and you can make the State of Ohio prove its case, even if
    you believe you have no defense to this charge? Do you understand
    that?
    THE DEFENDANT: Yes, Your Honor.
    ***
    THE COURT: Like I’ve told you in the past, I want you to have a
    full understanding of this. If you have a question or don’t understand
    something, interrupt me, get my attention, and I’ll do my best to
    explain things. You’re never going to be criticized for asking
    questions. And at any time, if you want to talk to Attorney Fowler,
    just say, I want to talk to my lawyer. If you want to talk privately,
    Washington App. Nos. 13CA33 and 13CA36                                       19
    we’ll make arrangements to do that. So, if you have a question, you
    don’t understand something, or you want to talk to your lawyer, will
    you let me know?
    THE DEFENDANT: Yeah.
    {¶30} The trial court went on to explain the maximum sentences, the
    maximum fines, and the loss of driving privileges, pursuant to the sentencing
    statute. The trial court also explained what the State of Ohio needed to
    prove in order to convict Appellant. He also questioned Appellant’s trial
    counsel as to whether or not he had informed Appellant of the elements of
    the offenses which he was charged, the defenses possibly available to him,
    and his state and federal constitutional rights. Counsel gave an affirmative
    response. The trial court then apprised Appellant of his state and federal
    constitutional rights. Regarding Appellant’s trial counsel, the court
    questioned:
    THE COURT: Okay. Do you personally acknowledge that he’s
    informed you and advised you on the matters I asked him about?
    THE DEFENDANT: Yes.
    THE COURT: Has he answered all you questions?
    THE DEFENDANT: Yes, Your, Honor.
    THE COURT: Are you satisfied with his services and his advice?
    THE DEFENDANT: Yes.
    Washington App. Nos. 13CA33 and 13CA36                                     20
    THE COURT: Now, I’ve been rattling on up here, trying to explain
    the nature of the charge, the elements and the penalty provisions.
    Have you understood everything I’ve said so far?
    THE DEFENDANT: Yes.
    Specifically, the trial court stated:
    THE COURT: Okay. Once again, 12CR309 Count 1 is burglary, a
    third degree felony in violation of 2911.12(A)(3). 13CR146, Count 2,
    is illegal assembly of chemicals or possession of chemicals for the
    manufacture of drugs, second degree felony in violation of
    2925.041(A) & (C). The maximum stat- - statutory penalty is $25,000
    in fines, 11 years in prison, followed by five years of no driving.
    Even if it’s not mandatory, I can make these sentences consecutive. *
    * * You understand everything I’ve said?
    THE DEFENDANT: Yeah. * * *
    THE COURT: Yeah, Now, I’m not saying I’ll give you the
    minimum. I’m not saying I’ll give you the maximum. And I’m not
    saying I’ll run them consecutive or I won’t, but you’re not eligible for
    community control. * * *If you plead guilty, will your plea be
    voluntary, of your own free will and accord?
    THE DEFENDANT: I’m sorry. What was that?
    THE COURT: If you plead guilty, will your plea be voluntary, of
    your own free will and accord?
    THE DEFENDANT: Yes.
    THE COURT: Okay. Is there a plea agreement, Attorney Rings?
    MR. RINGS: Judge, the Defendant will plead guilty * * *Count 1 in
    309 and Count 2 in 13CR146. The State will dismiss the other
    remaining charges in these two indictments.
    THE COURT: Okay. Is that the plea agreement, Attorney Fowler?
    Washington App. Nos. 13CA33 and 13CA36                                          21
    MR. FOWLER: That was my understanding, Your Honor. * * *
    THE COURT: I and I alone will decide your sentence. I will
    consider all the factors contained in Chapter 2929 of the Revised
    Code. I’ll have a pre-sentence investigation. But you could end up
    getting the maximum sentence. Do you understand that?
    THE DEFENDANT: Yes, Your Honor. * * *
    {¶31} The trial court next advised Appellant of his rights to trial to
    confront witnesses against him, to remain silent, and to subpoena witnesses
    on his behalf. He asked Appellant if he needed to talk to his counsel and he
    asked if Appellant understood the rights he was giving up. He then asked
    Appellant that he would be giving up his right to be presumed innocent until
    proven guilty beyond a reasonable doubt. He also apprised Appellant he had
    a right to a preliminary hearing and Appellant declined the hearing. The
    trial court asked Appellant if he wanted a jury trial or court trial in either of
    the cases and Appellant declined. Appellant entered his pleas of guilty and
    the prosecutor read the stipulated factual bases. The trial court gave
    Appellant a chance to back out of the guilty plea, to which Appellant replied
    “Yeah, I’ll stick with the guilty pleas.” The trial court again asked Appellant
    if he understood the proceedings and Appellant responded affirmatively.
    {¶32} In State v. Hayes, 10th Dist. Franklin No. 08AP-233, 2009-
    Ohio-1100, the appellant raised an ineffective assistance claim for her
    counsel’s alleged failure to negotiate an agreed or recommended sentence
    Washington App. Nos. 13CA33 and 13CA36                                       22
    from the state. The appellate court noted there was no evidence in the record
    indicating why counsel was unable to do so. 
    Id., at ¶25.
    The court mused it
    was possible that the prosecutor was unwilling to negotiate with appellant’s
    counsel and concluded that, in the absence of evidence in the record,
    appellant had not demonstrated that trial counsel acted deficiently by the
    omission. 
    Id. The court
    went on to note that appellant also could not
    demonstrate prejudice from the failure to negotiate an agreed or
    recommended sentence, because a trial court is not restricted by a sentencing
    recommendation. 
    Id., at ¶25,
    citing State v. Zamora, 3rd Dist. Paulding No.
    11-07-04, 2007-Ohio-6973, at ¶19; State v. McGhee, 3rd Dist. Shelby No.
    17-06-05, 2006-Ohio-5162, at ¶ 24; State v. Lamson, 5th Dist. Muskingum
    No. CT06-0064, 2007-Ohio-3098, at ¶8. The Hayes court reiterated that
    even if trial counsel and the prosecutor could have agreed on a
    recommended sentence, the trial court was not required to accept that
    recommendation. 
    Id., at ¶26.
    See, also, State v. Murray, 4th Dist. Pickaway
    No. 04CA30, 2005-Ohio-2225, ¶20.
    {¶33} In State v. Scott, 12th Dist. Madison No. CA2010-06-012,
    2010-Ohio-5056, the appellate court held defense counsel who secured a
    favorable plea agreement did not provide ineffective assistance even if
    defendant received the maximum penalties for the crimes to which he pled
    Washington App. Nos. 13CA33 and 13CA36                                      23
    guilty. The court noted through negotiation, trial counsel managed to have
    an aggravated murder charge reduced to voluntary manslaughter, a first
    degree felony, with a maximum sentence of ten years and negotiated
    dismissal of an aggravated robbery charge. 
    Id. at ¶10.
    The court rejected
    other arguments on this issue and concluded that there was no evidence that
    trial counsel’s representation fell below an objective standard of reasonable
    representation. 
    Id. at ¶11.
    {¶34} We feel this case is similar to State v. Miller, 4th Dist.
    Pickaway No. 13CA5, 2014-Ohio-1803. There, Miller pled guilty to
    breaking and entering and theft charges. On appeal, he argued the trial court
    erred in sentencing him to the maximum on each count and in sentencing
    him to consecutive sentences. This court noted the parties apparently
    reached a plea agreement whereby appellant would plead guilty to the
    aforementioned counts in exchange for the dismissal of four other counts.
    Our opinion set for the colloquy occurring between the court and counsel
    wherein the prosecutor set forth his understanding of the plea agreement as
    follows:
    “Thank you, your honor my understanding is that Mr. Miller is
    going to be pleading guilty to counts five and six * * * both of
    these are f-5’s.[Defense counsel] indicates Mr. Miller wants to
    go forward with sentencing today, recommend twelve months
    consecutive on each sentence, dismiss the balance of those
    charges. (Emphasis added.)”
    Washington App. Nos. 13CA33 and 13CA36                                        24
    {¶35} Defense counsel verified that was the agreement. The trial
    court further asked appellant if he understood that the State would ask for
    the maximum penalty that “would total of twenty-four months,” to which
    Appellant answered in the affirmative. The trial court then sentenced
    appellant to serve twelve months on each count, ordered the sentence to be
    served consecutively, and dismissed the remaining counts. On appeal, we
    noted that appellant was aware that multiple, consecutive sentences could be
    imposed. We stated:
    “[I]f not explicitly part of the plea agreement, appellant at least
    implicitly signaled his willingness to accept that punishment in
    exchange for the dismissal of the four remaining counts.
    Appellant cannot be heard not to complain about a sentence that
    he willingly accepted.”
    {¶36} The same is true in the case sub judice. The two indictments
    against Appellant were resolved pursuant to a plea arrangement. While
    Appellant had two counts pending, another two-count indictment was filed
    against him. He was facing substantial terms of imprisonment had he
    proceeded to trial on the four charges. The plea agreement allowed
    Appellant to plead to two counts in return for the dismissal of two counts.
    This was a benefit to the Appellant.
    {¶37} Furthermore, the transcript reveals the trial court discussed at
    Washington App. Nos. 13CA33 and 13CA36                                       25
    length with Appellant, the federal and state constitutional rights he was
    giving up by entering pleas and not taking the matters to trial. It appears that
    at least four times, Appellant indicated he understood the proceedings and
    the rights he was giving up. He indicated he was satisfied with his counsel’s
    performance. He was even given an opportunity to back out of the plea and
    he stated “I’ll stick with the guilty pleas.”
    {¶38} We do not find counsel’s performance to be deficient because
    Appellant now complains he had no evidence to review and gave up his trial
    rights. We must not speculate that prejudice exists simply because
    Appellant now speculates that he could have negotiated a different sentence.
    We do not know what his motivation was for entering pleas only four days
    after counsel became involved in the second indictment. However, the
    record reveals Appellant’s rights were clearly explained to him and he was
    well aware of the possibility of receiving maximum and consecutive
    sentences. We do not find Appellant was rendered ineffective assistance of
    counsel. As such, we overrule the second assignment of error and affirm the
    judgment of the trial court.
    JUDGMENT AFFIRMED.
    Washington App. Nos. 13CA33 and 13CA36                                         26
    JUDGMENT ENTRY
    It is ordered that the JUDGMENT BE AFFIRMED and costs be
    assessed to Appellant.
    The Court finds there were reasonable grounds for this appeal.
    It is ordered that a special mandate issue out of this Court directing
    the Washington County Common Pleas Court to carry this judgment into
    execution.
    IF A STAY OF EXECUTION OF SENTENCE AND RELEASE
    UPON BAIL HAS BEEN PREVIOUSLY GRANTED BY THE TRIAL
    COURT OR THIS COURT, it is temporarily continued for a period not to
    exceed sixty days upon the bail previously posted. The purpose of a
    continued stay is to allow Appellant to file with the Supreme Court of Ohio
    an application for a stay during the pendency of proceedings in that court. If
    a stay is continued by this entry, it will terminate at the earlier of the
    expiration of the sixty day period, or the failure of the Appellant to file a
    notice of appeal with the Supreme Court of Ohio in the forty-five day appeal
    period pursuant to Rule II, Sec. 2 of the Rules of Practice of the Supreme
    Court of Ohio. Additionally, if the Supreme Court of Ohio dismisses the
    appeal prior to expiration of sixty days, the stay will terminate as of the date
    of such dismissal.
    A certified copy of this entry shall constitute the mandate pursuant to
    Rule 27 of the Rules of Appellate Procedure.
    Abele, P.J. and Hoover, J.: Concur in Judgment and Opinion.
    For the Court,
    BY: ___________________________________
    Matthew W. McFarland, Judge
    NOTICE TO COUNSEL
    Pursuant to Local Rule No. 14, this document constitutes a final
    judgment entry and the time period for further appeal commences from
    the date of filing with the clerk.